_ U.S. Dephrnnent of Justic_e_
n " Oflice fof _Legal C`~_ f\illrnsel

 

!

 

.orace anne 4 . Wa$hmgron, D.c. 20530
Deputy Assistaz_lt Att`orney General

TO: H. Gerald Staub
Office of Chief Counsel .
National Aeronautics and Space Administration

From: Samuel A. Alito, Jr. E;ZL§\ _
` Deputy Assistant Attorney General
Office of Legal Counsel_

'\SUBJECT;. Emoluments Clause Questions raised by NASA
' _ Scientist‘s Proposed Consulting Arrangement
with the University of New Southrwales

This responds to your request of April 10, 1986, for our
Views as to whether there is any constitutional obstacle to a
NASA employee‘s accepting a fee for the performance of certain
consulting services for a foreign university. Specifically, you“
wish to-know whether a NASA scientist may accept an invitation
from the_University of New South Wales to review a thesis j

, submitted by an Australian Ph. D. candidate. The total amount of
the remuneration for this service would be $150. The question is
whether the employee's acceptance of the $lBO consulting fee '
would Violate the Emoluments Clause of the Constitution, Article
I, section 9, clause 8.' Based on our understanding of the facts
in this situation,.including the relationship between the Uni~
`yersity of New South Wales and the government of Australia, we
conclude that there would be no constitutional violation._

Article I, section 9, clause 8 provides:
No Title of Nobility shall be granted by the

United Statest and no Person holding any Office
of Profit or Trust under them, shallr without

 

l This opinion addresses only the constitutional issue raised
under Article I, section 9, clause 85 and does not purport to
deal with other statutory or regulatory restrictions that may be
implicated by your employee's proposed consultancy. We assume
that your office has considered whether the consultancy would be
permissible under applicable NASA regulations governing outside
employment by agency employees. ` '

 

`\
F

. ~, ,
1 _ .
._j - ,;

the consent of Congress, accept of any present,
Emolument, Office or Title, `of any kind whatever,
from any King, Prince, or foreign State.

This clause was adopted unanimously at the Constitutional Conven-
tion as a means of preserving the independence of foreign minis-
ters and other officers of the United States from external influ-
ences. 3 J. Madison, Papers 1408 (1840). Its purpose, as exh

7 plained by Governor Randolph during the ratification debate in
the Virginia Convention, is "to exclude corruption and foreign
influence [by prohibiting] any one in office from receiving or
holding any emoluments from foreign states." 3 M. Farrand, The
Records of the Federal Convention of 1787, at 327 (1966 ed.) See
also 2 M. Farrandr supra, 389.‘ Thus the Emoluments Clause is
"directed against every kind of influence by foreign governments
upon officers of the United States," (24 Op. A. G. 116 117
(1902)) unless the payment has been expressly consented to by
Congress. See 5 U. S. C. 7342.

 

The individual who has been offered the consultancy is a
full time permanent employee of NASA and thus occupies an "Office
'of Profit or Trust under [the nited States]" as that phrase is‘
used in the Emoluments Clause. Moreover, a stipend or
consulting fee from a foreign government would ordinarily be

 

Governor~Randolph referred to the incident that apparently
precipitated the enactment of the clause: King Louis XIV's
presentation of a snuffbox to the departing Ambassador Franklin.
See H. Grigsby, History of the Virqinia Federal Convention of
1788, contained in 9 Virqinia Historical Society Collections (New
Series) 264.

3 See, g;g., 27 Op. A.G. 219 (1909)(C1erk of Class 4 in-the Post
Office holds an office of profit or trust for Emoluments Clause
purposes, since he "holds his appointment from the head of a
Department. . ., receives for his services a fixed compensation
from moneys appropriated for the purpose by Congress, . . . has
regularly prescribed services to perform, and his duties are
continuing and permanent, and not occasional and temporary").
See United States v; Hartwell, 73 U.S. (6 Wall.) 385, 395
(1867)(the concept of office "embraces the ideas of tenure,
duration, emolumentsy and duties").

 

 

`\ 7 7 *.:`.\
.i , ' _- g

considered an "emolgment" within the meaning of the constitu-.
tional prohibition. The question in this case, however, is
whether the consulting fee from the University of New South
Wales can be said to be from a Fforeign state.".

We have found no judicial opinions construing the Emoluments
Clause in which the identity of the source of an emolument was at
issue; nor have we fgund any discussion of this issue in any
relevant commentary. In the absence of any authoritative guid-4
ance, but with the underlying purpose of the constitutional
prohibition in mind, we have relied for our analysis on the
factual circumstances of the proposed consultancy.

 

4 See 6 Op. A.G. 409 (1854)(United States Marshal may not accept
1compensation for acting as commercial agent of France); 40 Op.
A.G. 513 (1947)(c1ause would preclude Irish government from
paying the salaries of detailed U.S. government employees, were
'it not_authorized by legislation); Memorandum from the Deputy
Assistant Attorney General, Office of Legal Counsel, to the
Assistant General Counsel, Nuclear Regulatory Commission,
_February 24} 1982 (clause prohibits employee of NRC from
undertaking paid consultancy with Mexican government). See also
uoyt v. united states, 51 U.S. (10 How.) 109, 135 (1850)("...the
term emoluments, that being more comprehensive, and embracing
every species of compensation or pecuniary profit derived from a
discharge of the duties of the office"); Sherburne v. United

7 States, 16 Ct. Cl. 491, 496 (lBBO)(“emoluments . . . are indirect
or contingent remuneration, which may or may not be earned, and
which is sometimes in the nature of compensation, and sometimes
in the nature of reimbursement,") `

5 This Office has on two previous occasions considered whether a
_proferred "emolument" was "from" a foreign government. In_a
August ll, 1980, memorandum for the General Counsel of the
Comodities Futures Trading Commission, we concluded that a
government official could be reimbursed by Harvard University for
travel expenses from funds paid under a consultancy contract with
the government of Indonesia by which Harvard provided expert
consultants on a variety of issues. There, the foreign
government had no control over the selection of experts and their
payment, which matters were entirely within the discretion of the
University. By contrast, in the February 24, 1982, opinion for
the Nuclear Regulatory Commission cited above in the text, we
concluded that the Emoluments Clause could not be avoided by
channeling funds from the foreign government through a consulting
firm that had been established apparently for the sole purpose of
providing the consulting services at issue. There, the facts
suggested that the retention of the NRC employee by the
consulting firm was the principal reason for selection of the
firm by the Mexican government.

 

1 -' _' :1:'§'{';\

_ :Our understanding of the facts is based on the descriptive
material included in your letter of April lO, as amplified in
subsequent_conversations-between our staff and personnel at the

Australian Embassy;

_. The University of New South Wales was established pursuant
` to a 1949 Act of the legislature of the state of New South Wales,
Australia. It is governed by a Council, which consists of 44
elected and appointed members. Two members are so-called
“parliamentary members," or members of the state government of
New South Wales; 21 members are elected from within the
University community to represent the administration, faculty,
_and student body; and 21 members are appointed by the Minister
of Education of New South Wales, who is an elected member of the
state legislature, to represent various interest groups,
including business, the professions, and trade unions.

Under the University' s organic act, the Council has complete
'power over the University' s academic program, the appointment _
and termination of faculty and other employees, and the manage-
ment of the affairs, property and funds of the University. In
general, it “may act in all matters concerning the University in
such manner as appears to it best calculated to promote the
objects and interests of the University." Act No. ll 1949, s.
25, reprinted in the Calendar of the University for 1981. There
is no provision in the law for review of any of the Council' s
decisions by any state agency or official. lt would appear,
therefore, that although a bare majority of members of the
Council consists of state officials or their- -appointees, the
Council itself acts enti-rely independently of the state
government in making decisions affecting the management and
academic governance of the University.

While the University' s governing body reflects state and
local interests, its finances are derived from and controlled
entirely by the federal government. Like other public
universities in Australia, the University charges no tuition or
fees to its students, and no state or local taxes are levied for
its support. All of the University' s funding comes directly from
the Australian federal government, and decisions relating to the
_ level and general allocation of that funding are made by the

Australian Tertiary Education Commission, subject to review by
the Australian Parliament.

Given its source of financial support and governing
structure, the University of New South Wales is clearly a public
institution. However, it is not so clear that it should
necessarily be regarded as a “foreign state" for Emoluments
Clause purposes, given its functional and operational separation
and independence from the government of Australia and state
political instrumentalities. The answer to the Emoluments
Clause question in this particular situation must depend, we

 

i') . '-_"; d 1 s ` _j¢ §

_believe, upon a further inquiry into the circumstances of the
proposed consultancy, to determine whether the consultancy would
raise the kind of concern (viz., the potential for "corruption
and foreign influence" ) that motivated the Framers in enacting
the constitutional prohibition.-

We turn now to those particular facts, as you have described
them to us. The NASA scientist was selected by the University of
New South Wales to review the Ph. D. thesis because of his inter-
national reputation as_a scholar in the field to which the thesis
relatgs,.and not because of his position with the U.S. govern-
ment. The invitation was extended to him on University
letterhead by the chairman of the academic department in which
the Ph.D. candidate is enrolled. The $150 consulting fee is
apparently to be paid from funds made available to departments
of the University for this purpose and is in an amount ordinari»
ly paid by departments to outside experts for services of this
kind. The thesis to be reviewed will be sent directly to the
NASA scientist in this country, and he will review it here on his
own time and submit a written report to the University. There
does not appear to be any reason for him to have any direct
contact with officials of the University during the course of
the consultancy, and you expect that he will not. The con-
sultancy is by its terms limited both in time and in substantive
'scope, and you do not anticipate that there will be any continu-
ing relationship between the University and the NASA employee
after the consultant's report has been submitted.

Considering the factual setting described above in light of
the Framers‘ concerns expressed in the Emoluments Clause, we do
not believe that it presents the opportunity for "corruption and
foreign influence“ .that concerned the Framers and that we must
presume exists whenever a gift or emolument comes directly from a
foreign government or one of its instrumentalities. We there-
fore conclude that the NASA employee's acceptance of the con~
sultant's stipend from the University in this case would not be
prohibited by the Emoluments Clause.

 

6The field in question involves the measurement of components of
the atmosphere. The Ph. D. thesis deals with the use of inversion
methods for aerosol remote sensing. -

 

