                  Requirement That “Private Citizens” Be
                   Appointed From “Private Life” to the
                   National Council for the Humanities
Because state and local public officials, including a county commissioner, are not “private citizens”
  who would be appointed “from private life” within the ordinary meaning of those terms in 20 U.S.C.
  § 957(b), such officials are disqualified from appointment to the National Council for the Humani-
  ties.

                                                                                  August 27, 2004

       MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

   You have asked for our opinion whether the statutory requirement that mem-
bers of the National Council for the Humanities (“NCH”) be appointed “from
private life” and “selected from among private citizens of the United States,” 20
U.S.C. § 957(b) (2000), bars appointment of a state or local government official.
We understand, in particular, that this question concerns the possible appointment
of a part-time county commissioner. We conclude that because state and local
public officials, including a county commissioner, are not “private citizens” who
would be appointed “from private life” within the ordinary meaning of those
terms, such officials are disqualified from appointment to the NCH under section
957(b).
   The statute authorizing the President to appoint members of the NCH provides:

        The Council shall be composed of the Chairperson of the National
        Endowment for the Humanities, who shall be the Chairperson of the
        Council, and twenty-six other members appointed by the President,
        by and with the advice and consent of the Senate, from private life.
        Such members shall be individuals who (1) are selected from among
        private citizens of the United States who are recognized for their
        broad knowledge of, expertise in, or commitment to the humanities,
        and (2) have established records of distinguished service and schol-
        arship or creativity and in a manner which will provide a compre-
        hensive representation of the views of scholars and professional
        practitioners in the humanities and of the public throughout the Unit-
        ed States.

Id. § 957(b) (emphases added).1

    1
      The National Endowment for the Humanities (“NEH”) was created in 1965 to promote scholarly,
educational, and public projects in the humanities. See 20 U.S.C. §§ 956–958. The NEH is headed by
the Chairperson of the Endowment, who is authorized to enter into contracts, issue grants and loans,
and make other arrangements consistent with advancing the humanities. Id. § 956(b)–(c). The Chair-
person is advised by the NCH, which consists of 26 members appointed to staggered six-year terms. Id.




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    The requirement that NCH members be selected from “private life” and from
among the “private citizens of the United States” generally disqualifies all
government officials, whether federal, state, or local, from appointment to the
NCH. The plain meaning of the statute, particularly the phrase “private citizens,”
governs the question at issue. The word “private” is derived from the Latin
prīvātus, meaning “apart from the state, deprived of office.” Webster’s Third Int’l
Dictionary of the English Language 1804 (2002). According to its ordinary
definition and usage, the adjective “private,” specifically when used in the phrase
“private citizen,” means “not invested with or engaged in public office or em-
ployment (a ~ citizen).” Id. at 1805. See also Funk & Wagnall’s Standard College
Dictionary 1072 (1969) (“Having no official rank, character, office, etc.: a private
citizen”); American Heritage Dictionary of the English Language 1442 (1992)
(“Not holding an official or public position”); Random House Dictionary of the
English Language 1540 (2d ed. 1987) (“not holding public office or employment:
private citizens”). The word “private” has similar meaning when used in the
phrase “private life.” See id. (“not of an official or public character: private life”).
These phrases, by their plain terms, exclude all persons who hold public office.
    Consistent with this plain meaning, this Office has interpreted similar statutes
that require appointment “from private life” to preclude appointment of persons
who hold government office, whether federal or state, at the time of the appoint-
ment.2 See Memorandum for Dudley H. Chapman, Associate Counsel to the
President, from Leon Ulman, Acting Assistant Attorney General, Office of Legal
Counsel, Re: The Status of Members of the Board of Trustees of the Woodrow


§ 957(b)–(c). The NCH advises generally on matters relating to the Endowment’s mission, and the
Chairperson is required to seek the recommendation of the NCH on any application for funding that
exceeds $30,000. Id. § 957(f). The recommendation of the NCH does not bind the Chairperson,
however; the Council is advisory only. Id. Because the NCH is strictly advisory, members of the NCH
are not “Officers of the United States” for purposes of the Appointments Clause, and thus the
qualifications on NCH appointments set forth in section 957(b) do not violate the Constitution. See The
Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 144
(1996); Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 249
(1989).
    2
      Similar appointment requirements are found in a number of other federal statutes. For statutes
requiring appointment of “private citizens,” see 12 U.S.C. § 4703(d) (2000) (Community Development
Advisory Board); 16 U.S.C. § 19f (2000) (National Park Foundation Board); 42 U.S.C. § 4273(a)(1)
(2000) (Advisory Commission on Intergovernmental Relations); 20 U.S.C. § 955(b)(C)(i) (2000)
(National Council on the Arts). For statutes requiring appointment “from private life,” see 2 U.S.C.
§ 352(1) (2000) (Citizens’ Commission on Public Service and Compensation); 12 U.S.C. § 2402(a)(13)
(2000) (National Commission on Electronic Fund Transfers); 20 U.S.C. § 80f(b)(9) (2000) (Board of
Trustees for the Woodrow Wilson International Center for Scholars); 20 U.S.C. § 2103(b)(1)(B) (2000)
(Board of Trustees for the American Folklife Center); 22 U.S.C. § 290f(g) (2000) (Board of Trustees
for the Inter-American Foundation); 22 U.S.C. § 290h-5(a)(1) (2000) (Board of Directors for the
African Development Foundation); 29 U.S.C. § 656(b) (2000) (National Advisory Committee on
Occupational Safety and Health). The courts have not construed these appointment provisions, and we
are not aware of relevant case law interpreting the phrases “public citizen” or “public life” in a manner
inconsistent with our analysis.




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    Requirement That “Private Citizens” Be Appointed From “Private Life” to the NCH


Wilson International Center for Scholars (June 27, 1975) (opining that members
may remain on the board of the Wilson Center after becoming public officials but
may not hold public office at the time of their appointment); Memorandum for the
Deputy Attorney General from W. Wilson White, Assistant Attorney General,
Office of Legal Counsel, Re: H.R. 1131, Commission on Voter Participation in
Federal Elections (June 20, 1957) (pointing out that a requirement in proposed
legislation (never enacted into law) that certain commission members be state or
local government representatives would be inconsistent with language in the same
bill prescribing appointment “from private life”). We also note that in other
contexts, we have acknowledged a distinction between “private citizens” and state
government officials. See, e.g., Common Legislative Encroachments On Executive
Branch Authority, 13 Op. O.L.C. 248, 250 (1989) (listing “private citizens”
separate from “state officials”); Delegation of Authority to State Governors in
End-user Gasoline Allocation Program, 3 Op. O.L.C. 231, 232 (1979) (discussing
“State officers” separate from “private citizens”).
    In prescribing generally that NCH members be appointed “from private life”
and “from among private citizens,” Congress did not intend, in our view, to
distinguish federal government officials, on the one hand, from state and local
government officials, on the other. Congress has used specific language when it
intends to disqualify only federal officials from appointment to particular offices.
See, e.g., 42 U.S.C. § 242m(b)(2)(C) (2000) (requiring that members of peer
review groups advising the Secretary of Health and Human Services be appointed
“from among persons who are not officers or employees of the United States”).
See also 42 U.S.C. § 289a-1(b)(5)(C) (2000) (Ethics Advisory Boards for the
National Research Institute); 42 U.S.C. § 5616(a)(2)(A) (2000) (Coordinating
Council on Juvenile Justice and Delinquency Prevention); 49 U.S.C. § 30306(c)(1)
(2000) (National Driver Register Advisory Committee); 50 U.S.C. app. § 1989b-
5(c)(1) (2000) (Civil Liberties Public Education Fund Board of Directors). These
examples of other statutes specifically precluding appointment of federal officials
reinforce the plain meaning of section 957(b); language requiring appointees to be
“private citizens” selected “from private life” is deliberately broader than a
proscription against appointment of federal officials.3
    We are informed that in at least one instance a state official was appointed to a
similar body, the National Council for the Arts (“NCA”). As with the NCH, NCA


    3
      We are aware of an instance in which some members of Congress, in legislative history, appeared
to equate the phrase “not Federal officers or employees” with “private-life members.” See H.R. Conf.
Rep. No. 105-599, at 197 (1998) (describing statutory membership requirements for the Internal Reve-
nue Service Oversight Board, codified at 26 U.S.C. § 7802 (2000)). But in that instance the terms
“private life” and “private citizen” did not appear in the statute, which specifically prescribed only that
members of the IRS Oversight Board be “individuals who are not otherwise Federal officers or
employees.” 26 U.S.C. § 7802(b)(1)(A). That statutory language supports our view that Congress
would use more specific language if it intended to bar only federal officials from appointment to the
NCH.




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                 Opinions of the Office of Legal Counsel in Volume 28


appointees must be “private citizens.” 20 U.S.C. § 955(b)(C)(i) (2000). We
understand that, in 1989, a state senator from New York was appointed to the
NCA. This Office evidently did not opine on that appointment. We do not believe
that this single appointment constitutes a history and practice that may overcome
the plain meaning of the statutory text governing appointments to the NCH. See
Nat’l Fed’n of Fed. Emps., Local 1309 v. Dep’t of Interior, 526 U.S. 86, 95–96
(1999) (“[A] single, unreviewed decision [based on an executive order that
preceded the statute] does not demonstrate the kind of historical practice that one
might assume would be reflected in the Statute.”).
    Nor do we believe the statutory text could bear a distinction between state
officials, on the one hand, and local government officials, such as a county
commissioner. One who holds or is invested with a public office, whether part of
state or local government, is not a “private citizen” or in “private life” within the
ordinary sense of those terms. Congress appears to have recognized this ordinary
distinction between private citizens and local officials in statutory language: “[the
Director may appoint] one or more advisory committees composed of such private
citizens and officials of Federal, State, and local governments.” 42 U.S.C.
§ 285a-2(b)(7) (2000) (National Cancer Institute Advisory Committee) (emphases
added). See also 49 U.S.C. § 1113(b)(1)(E) (2000) (Advisory Committees to the
National Transportation Safety Board must be “composed of qualified private
citizens and officials of the Government and State and local governments”).
Again, the inference from these examples is clear: “private citizens” are distin-
guished from local government officials.
    In one instance, under a different statute, we did conclude that a municipal
employee could be appointed to a position reserved for those from “private life.”
Memorandum for the Vice President from Nicholas deB. Katzenbach, Assistant
Attorney General, Office of Legal Counsel, Re: Appointment to the United States
Citizens Commission on NATO (Mar. 1, 1961). That opinion addressed an appoint-
ment to the United States Citizens Commission on NATO (“NATO Commis-
sion”), a two-year advisory commission intended to meet with citizens in other
NATO countries to facilitate greater cooperation and unity of purpose within
NATO. See Pub. L. No. 86-719, 74 Stat. 818 (1960). As with the NCH, appointees
to the NATO Commission were to be appointed from “private life.” Id. In that
opinion, we relied solely on the legislative history of the provision, which
indicated that Congress wanted only to insure that appointees to the NATO
Commission were not connected with the foreign policy of the United States.
Specifically, Congress desired an objective perspective on foreign policy and went
so far as to vest the authority to make appointments to the NATO Commission in
Congress, not in the President. Based on that unique legislative history, we
concluded that a Chicago municipal employee—who obviously had no prior
connection with the foreign policy of the United States—qualified for appointment
to that particular commission.




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    Requirement That “Private Citizens” Be Appointed From “Private Life” to the NCH


    Legislative history, of course, cannot trump the clear words of a statute, and we
question the continued validity of our 1961 opinion for that reason. In any event,
here, by contrast, there is no such legislative history indicating that Congress was
specifically concerned to ensure only that appointees to the NCH be unaffiliated
with the federal government, as distinct from local government. Indeed, there is no
relevant legislative history at all on the “private life” and “private citizen”
appointment requirement for NCH. To the extent the legislative history discusses
the appointment requirements of section 957(b), it is only to emphasize the other
criteria set forth in section 957(b)—that NCH appointees should broadly represent
the humanities and be individuals of distinction in and commitment to the
humanities. See S. Rep. No. 91-879, at 3 (1970). See also 20 U.S.C. § 957(b)
(NCH appointees must be “recognized for their broad knowledge of, expertise in,
or commitment to the humanities,” “have established records of distinguished
service,” and “provide a comprehensive representation of the views of scholars
and professional practitioners in the humanities”). The fact that only private
citizens may be appointed suggests that Congress was seeking more than just
expertise from the NCH; it specifically wanted the NCH appointees to be non-
governmental.
    We believe the same conclusion holds when the local government official
exercises his or her duties on a part-time basis only, even if the public official also
holds a full-time private job. The dictionary definition of “private citizen”
reinforces this view: a person is a private citizen if he or she does not hold a public
office and is not engaged in public employment. Webster’s Third Int’l Dictionary
at 1805. A person who holds such an office, whether full-time or part-time, is not a
private citizen. The definition indicates that whether persons are public officials
turns on the nature of their position, not the number of hours occupied in their
official duties. Many important government officials are or have been part-time.
Indeed, the first twenty-three Attorneys General of the United States were part-
time and continued to represent private clients. See Luther A. Huston, The
Department of Justice 11 (1967). Nonetheless, even a part-time Attorney General
surely would not be classified as a private citizen. According to the National
Conference of State Legislatures, only eleven states have legislatures whose public
duties occupy eighty percent or more of the time equivalent of a full-time job.
National Conference of State Legislatures, available at http://www.ncsl.org/
programs/legman/about/partfulllegis.htm (last visited Aug. 26, 2004). Whether full-
time or part-time, legislators are elected officials who exercise lawmaking powers
and are clearly public officials disqualified from appointment to the NCH. If part-
time officials could be considered private citizens, then numerous local govern-
ment officials, including county commissioners, state legislators, state and local
judges, and city council members, would have to be deemed private citizens.4 We

   4
     The average city council member spends only 22 hours per week on council-related duties. National
League of Cities, Serving on City Councils: America’s City Councils in Profile (Part II), at 2–3 (2003),




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                      Opinions of the Office of Legal Counsel in Volume 28


think that in light of the considerable governmental powers exercised by such
officials, they cannot be deemed private citizens consistent with the ordinary usage
of that term. We therefore conclude that local government officials who exercise
lawmaking or policymaking powers pursuant to their office cannot be considered
private citizens regardless of whether they are full-time or part-time.

                                                      STEVEN G. BRADBURY
                                              Principal Deputy Assistant Attorney General
                                                        Office of Legal Counsel




available at http://www.nlc.org/nlc_org/site/files/pdf/council_brief2.pdf (last visited Aug. 26, 2004). Most
county commissioners are part-time. National Association of Counties, What Do County Commissioners
Do All Day? at 3, available at http://www.naco.org/ContentManagement/ContentDisplay.cfm?Content
ID=12026 (last visited Aug. 26, 2004). Part-time local judges are sufficiently common that the ABA
Model Code of Judicial Conduct distinguishes ethical rules for part-time versus full-time judges. See
Model Code of Judicial Conduct Application §§ C–E (1990).




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