             Authority to Decline Compensation for
             Service on the National Council of Arts
The Anti-Deficiency Act does not prohibit a member of the National Council of the Arts
  from serving without compensation.
                                                                                 April 18, 1989
          M em orandum O pin io n       fo r th e   C o u n sel to   th e   P r esid en t

   You have asked for the opinion of this Office whether the Chairperson
of the National Council of Arts (“Council”) may, at the request of a mem­
ber of that Council, allow only such member to serve on the Council at
zero compensation.1 For reasons set forth below, we conclude that the
Anti-Deficiency Act, 31 U.S.C. § 1342, does not prohibit the member from
serving on the Council without compensation.
                                Analysis
   The Anti-Deficiency Act provides:
       An officer or employee of the United States government ...
       may not accept voluntary services for [the] government or
       employ personal services exceeding that authorized by law
       except for emergencies involving the safety of human life
       or the protection of property.
31 U.S.C. § 1342. This Office considered the application of the Anti-
Deficiency Act to noncompensated services most recently in the context of
the authority of Independent Counsel Lawrence Walsh to appoint
Professor Laurence Tribe as a Special Counsel without compensation. See
Memorandum for Francis A. Keating n, Acting Associate Attorney General,
from Michael Carvin, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Independent Counsel’s Authority to Accept Voluntary
Services - Appointment of Laurence W. Tribe (May 19, 1988). We relied on
Attorney General Wickersham’s authoritative opinion construing the Anti-
  1 Memorandum for Douglas W Kmiec, Assistant Attorney General, Office of Legal Counsel, from C
Boyden Gray, Counsel to the President, Re Compensation o f Members o f the National Council on the
Arts (Apr. 14, 1989)

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Deficiency Act to permit a retired Army officer to serve without compen­
sation as superintendent of an Indian school. The Attorney General wrote:
         [I]t seems plain that the words “voluntary service” were not
         intended to be synonymous with “gratuitous service” and
         were not intended to cover services rendered in an official
         capacity under regular appointment to an office otherwise
         permitted by law to be nonsalaried. In their ordinary and
         normal meaning these words refer to services intruded by a
         private person as a “volunteer” and not rendered pursuant
         to any prior contract or obligation ....
30 Op. Att’y Gen. 51, 52 (1913). We concluded Professor Tribe could serve
as a Special Counsel on a noncompensated (i.e., “gratuitous”) basis
because he had been appointed to an official position of public account­
ability pursuant to a statute that requires no minimum compensation but
merely states a maximum compensation.
   Under the interpretation of the Anti-Deficiency Act articulated by
Attorney General Wickersham and since followed by this Office, permis­
sible noncompensated service has two elements. First, the service must
be rendered “in an official capacity under regular appointment to an
office.” 30 Op. Att’y Gen. at 52. Second, the office must be “otherwise per­
mitted by law to be nonsalaried.” Id.2Permission for a position to be non­
salaried may be inferred if there is no specific statutory rate of compen­
sation for an office, but only a maximum. Thus, if the level of
compensation for an office is entirely discretionary, or if it has only a
fixed maximum and no minimum, salary for that office may be set at zero.
   The twenty-six members of the Council are appointed to a regular
office by the President with the advice and consent of the Senate. 20
U.S.C. § 955(b). As such, the members of the Council serve “in an official
capacity under regular appointment to an office” and therefore satisfy the
first element of permissible noncompensated service under the Anti-
Deficiency Act. They also satisfy the second element. Members of the
Council “shall receive compensation at a rate to be fixed by the Chair­
person but not to exceed the per diem equivalent of the rate authorized
for grade GS-18.” 20 U.S.C. § 955(e). This is a statutory maximum rate
which, under our prior interpretations of the Anti-Deficiency Act, estab­
lishes that the position is permitted to be non-salaried. Accordingly, the
Anti-Deficiency Act does not prohibit a member of the National Council
of the Arts from serving without compensation, or more precisely, to
serve with compensation fixed at zero.
  2 Of course, if Congress has expressly authorized acceptance of voluntary services notwithstanding the
Anti-Deficiency Act, it is not necessary to infer any authonty to accept noncompensated services from
an interpretation of the intended scope of the Act.
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   The only objection to this conclusion would attach special significance
to that fact that the members of the Council are to be compensated at a
rate fixed by the Chairperson of the Council. It may be suggested that this
language required that each member of the Council must be compensat­
ed at the same rate. We disagree. First, the language itself does not man­
date this result: it does not provide that the members of the Council shall
be compensated at a single rate or that the discretion of the Chairperson
is constrained to fixing a single rate. The emphasis on the word “a” is
unwarranted in the context of the entire provision. Moreover, the legisla­
tive history rebuts any argument that the provision authorizing the Chair­
person to establish “a rate” of compensation restricts the Chairperson to
selecting one rate for all appointees. The predecessor statute provided:
         Members of the Council, and persons appointed to assist
       the Council in making its studies, while attending meetings
       of the Council, or while engaged in duties related to such
       meetings, or while engaged in the conduct of studies autho­
       rized by this title, shall receive compensation at a rate to be
       fixed by the Chairman, but not exceeding $75 per diem ....
National Arts and Cultural Development Act of 1964, Pub. L. No. 88-579,
§ 8, 78 Stat. 905, 907 (emphasis added). If the provision authorizing “com­
pensation at a rate to be fixed by the Chairperson” limits the Chairperson
to establishing one rate, then the predecessor statute required Members
of the Council and their staff to be paid at the same rate. We cannot
believe that Congress intended this unusual result, and because the plain
language of the statute does not demand this construction, we reject it.
We also believe a court would defer to an agency interpretation that the
statute authorizes the Chairperson of the Council to establish different
rates of compensation for different members. See Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
                                Conclusion
   The members of the National Council on the Arts are officials who are
appointed by the President and who may be compensated at a rate which
is established by the Chairperson of the Council pursuant to a statute
which specifies a statutory maximum, but no minimum. Therefore, in
light of this Department’s prior interpretations of the Anti-Deficiency Act,
a member of the Council may serve without compensation.
                                             DOUGLAS W. KMIEC
                                          Assistant Attorney General
                                            Office of Legal Counsel
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