                  Office of Government Ethics Jurisdiction
                      Over the Smithsonian Institution
The authority of the Office of Government Ethics to administer the Executive Branch ethics program
  under the Ethics in Government Act of 1978 and other statutes does not extend to the Smithsonian
  Institution or its personnel.

                                                                                February 29, 2008

                       MEMORANDUM OPINION FOR THE DIRECTOR
                          OFFICE OF GOVERNMENT ETHICS

   The Ethics in Government Act of 1978 (“EIGA”), Pub. L. No. 95-521, 92 Stat.
1824 (codified as amended at 5 U.S.C. app., EIGA §§ 101–111, 401–408, 501–
505 (2000 & Supp. V 2005)), established the Office of Government Ethics
(“OGE”) and charged it with developing and implementing ethics policies for the
Executive Branch. You have asked whether the Smithsonian Institution and its
personnel (the “Smithsonian” or “Institution”) are subject to OGE’s authority to
administer the Executive Branch ethics program. 1 We conclude that they are not.

                                                 I.

   With limited exceptions not applicable here, OGE’s jurisdiction does not ex-
tend to an entity outside the Executive Branch. The text and structure of EIGA
unmistakably support this conclusion.
   EIGA clearly indicates that the Executive Branch is the focus of OGE’s juris-
diction. EIGA establishes a tripartite structure for the federal government’s ethics
program that tracks the Constitution’s three-branch structure. Title I of EIGA,
which governs financial disclosure requirements for federal officials and employ-
ees, creates a separate “supervising ethics office” for each of the three branches. It
specifies that OGE is the “supervising ethics office . . . for all executive branch
officers and employees,” 5 U.S.C. app., EIGA § 109(18), and authorizes its
Director (along with certain agency officials) to administer financial disclosure
requirements for Executive Branch officials and employees, id. § 111(1). EIGA
provides that the ethics committees in the Senate and House of Representatives
perform those functions for members of Congress, “officers and employees” of the
two houses, and “employees of the legislative branch,” id. § 109(18)(A), (B); id.
§ 111(2); and the Judicial Conference does so “for judicial officers and judicial


   1
     See Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel,
from Robert I. Cusick, Director, Office of Government Ethics (Apr. 26, 2007) (“OGE Letter”). We also
have received the views of the Smithsonian Institution. See Letter for John P. Elwood, Deputy
Assistant Attorney General, Office of Legal Counsel, from John E. Huerta, General Counsel,
Smithsonian Institution (May 11, 2007) (“Smithsonian Letter”).




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          Office of Government Ethics Jurisdiction Over the Smithsonian Institution


employees,” id. § 109(18)(C); id. § 111(3). Title V of EIGA, which imposes
restrictions on outside sources of income or employment by high-level federal
employees, distributes administrative and regulatory authority in the same manner;
OGE is directed to issue rules and regulations to implement its provisions “with
respect to officers and employees of the executive branch.” Id. § 503(2).
   EIGA directs OGE to develop and implement ethics policies for the Executive
Branch. Title IV of EIGA, which constitutes OGE’s “organic law,” OGE Letter
at 2, authorizes OGE’s Director to “provide . . . overall direction of executive
branch policies related to preventing conflicts of interest on the part of officers and
employees of any executive agency.” Id. § 402(a). The Director’s duties include,
among other things, developing rules and regulations to address conflicts of
interest and ethics in the Executive Branch, id. § 402(b)(1)–(2), monitoring
Executive Branch compliance with financial disclosure and reporting require-
ments, id. § 402(b)(3)–(5), and ensuring that executive agencies develop and
implement appropriate ethics rules, id. § 402(c)–(f).
    Other authorities also direct OGE to oversee Executive Branch ethics programs.
Sections 7351 and 7353 of title 5 of the United States Code authorize OGE to
implement statutory restrictions on gifts to federal employees and gifts from federal
employees to their superiors by issuing regulations “for all executive branch officers
and employees.” 5 U.S.C. §§ 7351(c), 7353(b), (d) (2000 & Supp. V 2005). And the
President has delegated OGE authority under 5 U.S.C. § 7301 (2000) to “prescribe
regulations for the conduct of employees in the executive branch.” Exec. Order No.
12731, § 403, 3 C.F.R. 306, 310 (1990 Comp.). Thus, the authorities that created
OGE and articulate its jurisdiction and responsibilities make clear that, with limited
exceptions not implicated here, OGE supervises only entities and employees in the
“executive branch.” 2

        The term “executive branch” is defined for purposes of title I of EI-
        GA as follows:

        For the purposes of this title, the term . . . “executive branch” in-
        cludes each Executive agency (as defined in section 105 of title 5,
        United States Code), other than the Government Accountability Of-
        fice, and any other entity or administrative unit in the executive
        branch . . . .



   2
     Under 18 U.S.C. § 208(b)(2) and (d)(2) (2000), OGE is authorized to issue regulations exempting
employees from a criminal conflict of interest statute that applies to “an officer or employee of the
executive branch of the United States Government, or of any independent agency of the United States,
a Federal Reserve bank director, officer, or employee, or an officer or employee of the District of
Columbia, including a special Government employee.” Id. § 208(a). You have not asked us to consider
any issues regarding the application of section 208 to the Smithsonian or the extent of OGE’s authority
under that provision. See OGE Letter at 2 n.1.




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5 U.S.C. app., EIGA § 109. OGE has adopted a similar definition in its regulations
implementing title IV:

        Executive branch includes each executive agency as defined in 5
        U.S.C. 105 and any other entity or administrative unit in the execu-
        tive branch. However, it does not include any agency, entity, office
        or commission that is defined by or referred to in 5 U.S.C. app.
        109(8)–(11) of the Act as within the judicial or legislative branch.

5 C.F.R. § 2638.104 (2006); see also 5 U.S.C. app., EIGA § 109(8)–(11) (defining
the terms “judicial employee,” “Judicial Conference,” “judicial officer,” and
“legislative branch”). We see no reason to believe that Congress intended that the
term would have another meaning under the other authorities providing OGE with
jurisdiction over “executive branch” officers and employees. See Enfield ex rel.
Enfield v. A.B. Chance Co., 228 F.3d 1245, 1251 (10th Cir. 2000) (“It is a well
recognized rule of statutory construction used to determine legislative intent that
ordinarily identical words or terms used in different statutes on a specific subject
are interpreted to have the same meaning in the absence of anything in the context
to indicate that a different meaning was intended.”) (quotation marks omitted).
    The definition of “executive branch” set forth in title I provides that the term
“includes each Executive agency as defined in 5 U.S.C. 105.” Section 105’s
definition is also referenced in title IV of the Act. See 5 U.S.C. app., EIGA
§ 402(a) (stating that the Director shall provide “overall direction of executive
branch policies” related to preventing conflicts of interest on the part of “officers
and employees of any executive agency, as defined in section 105 of title 5, United
States Code”); cf. Exec. Order No. 12731, § 503(c), 3 C.F.R. at 310 (“‘Agency’
means any executive agency as defined in 5 U.S.C. 105 . . . .”). 3 The clear focus of
section 105 is on Executive Branch entities: “an Executive department, a Govern-
ment corporation, and an independent establishment.” 5 U.S.C. § 105 (2000). All
“Executive department[s]” are within the Executive Branch. See 5 U.S.C. § 101
(2006); see also Haddon v. Walters, 43 F.3d 1488, 1490 (D.C. Cir. 1995) (refer-
encing the “exclusive list of Executive departments” in 5 U.S.C. § 101). Similarly,
the term “independent establishment” is defined as “(1) an establishment in the
executive branch,” and “(2) the Government Accountability Office.” 5 U.S.C.
§ 104 (2006). The definitions in both title I of EIGA and the regulations imple-
menting title IV, however, explicitly exclude from their reach the Government
Accountability Office, which is a Legislative Branch agency, see Bowsher v.
Synar, 478 U.S. 714, 730–32 (1986). While the definition of “Government

    3
      The term “Executive agency” itself plainly suggests agencies within the Executive Branch.
Although the term does encompass at least one agency in the Legislative Branch—the Government
Accountability Office—it does so only by virtue of an explicit statutory provision, 5 U.S.C. § 104(2)
(Supp. V 2005), that tends to underscore that GAO would not otherwise come within the scope of the
term.




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        Office of Government Ethics Jurisdiction Over the Smithsonian Institution


corporation” in 5 U.S.C. § 103 (2000) is not necessarily limited to Executive
Branch entities, this Office has opined that the Smithsonian is not a “Government
corporation” for purposes of a similar definition of “agency” under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552(f)(1) (2000). Memorandum for Peter
Powers, General Counsel, Smithsonian Institution, from Leon Ulman, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Coverage of the
Smithsonian Institution by Certain Federal Statutes at 10 (Feb. 19, 1976) (“Ulman
Memorandum”); see also Status of National Veterans Business Development
Corporation, 28 Op. O.L.C. 70, 73 n.4 (2004) (explaining that “the understanding
of [“Government corporation” and “Government controlled corporation”] reflected
in the FOIA cases is . . . relevant” to the definition of those terms in 5 U.S.C.
§ 103); Rivera v. Heyman, 982 F. Supp. 932, 938 (S.D.N.Y. 1997) (holding that
the Smithsonian is not a government corporation for purposes of 5 U.S.C. § 103),
rev’d in part on other grounds, 157 F.3d 101 (2d Cir. 1998); cf. Dong v. Smithson-
ian Inst., 125 F.3d 877, 879 (D.C. Cir. 1997) (stating that there is “much force” to
the Smithsonian’s claim that it is not a “Government controlled corporation” but
finding it unnecessary to resolve the issue).
    Moreover, the phrase “executive agency as defined in 5 U.S.C. 105” in section
109 is followed by the catch-all phrase “any other entity or administrative unit in
the executive branch,” confirming that Congress understood the term “Executive
agency” to be within that category. The D.C. Circuit applied this principle, which
it termed “reverse ejusdem generis,” in a similar context. Construing the definition
of “agency” within the Privacy Act, 5 U.S.C. § 552a (2000 & Supp. V 2005)—
“any executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the executive branch
of the Government,” id. § 552(f)(1) (2000)—the court held that the phrase applied
only to establishments in the Executive Branch. Dong, 125 F.3d at 879–80. The
court reasoned, “Congress evidently viewed the four specified classes as examples
of ‘establishments in the executive branch,’ so that an entity clearly outside the
executive branch would not qualify even if it could otherwise be shoehorned into
the concept of a ‘Government controlled corporation.’” Id. at 879. This Office
found that argument compelling in construing the same definition in the Ulman
Memorandum, where we stated that the argument “lend[s] considerable credence
to the contention that an authority must be within the Executive branch in order to
be covered by” the Privacy Act. Id. at 4–5.
    We therefore conclude that, with limited exceptions not applicable here, OGE’s
jurisdiction does not extend to an entity outside the Executive Branch, regardless
of whether that entity otherwise meets the definition of “executive agency” found
in 5 U.S.C. § 105.




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                 Opinions of the Office of Legal Counsel in Volume 32


                                         II.

   The question thus becomes whether the Smithsonian is within the Executive
Branch of the government for purposes of EIGA. We conclude that it is not.
   This Office previously has described the Smithsonian Institution as a “very
unusual entity,” a “historical and legal anomaly,” Memorandum for the Attorney
General, from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel, Re: S. 653, a [sic] Act to Establish a Foundation for the Advancement of
Military Medicine at 1 (May 23, 1983); that occupies an “anomalous position in
the Government,” Memorandum for Drew S. Days, III, Assistant Attorney
General, Civil Rights Division, from Leon Ulman, Deputy Assistant Attorney
General, Office of Legal Counsel at 2 (Mar. 20, 1978) (“Status of GPO and
Smithsonian”); “sui generis,” Garnishment of Remuneration Paid to Federal Em-
ployees, 3 Op. O.L.C. 274, 277 (1979); and “unique unto its own terms,” Ulman
Memorandum at 9; accord Memorandum for Fred F. Fielding, Counsel to the
President, from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel, Re: President’s Removal Power over Certain Appointees at 8 (Aug. 8,
1983) (“President’s Removal Power”). On occasion, we have suggested that the
Smithsonian is a “congressional agenc[y]” that operates “in aid of the legislative
process.” See The Constitutional Separation of Powers Between the President and
Congress, 20 Op. O.L.C. 124, 172 (1996) (stating that the Smithsonian “fit[s]
under a broad construction of that concept”); cf. Ulman Memorandum at 5 (“[I]t
could be argued that the Smithsonian is . . . an arm of the Congress itself . . . .”).
Others have classified it as a creature of the government of the District of Colum-
bia. See, e.g., David P. Currie, The Smithsonian, 70 U. Chi. L. Rev. 65, 67–68 &
n.14 (2003). Others have described the Smithsonian as “a private institution under
the guardianship of the [federal] Government.” The Status of the Smithsonian
Institution under the Federal Property and Administrative Services Act, 12 Op.
O.L.C. 122, 123 (1988) (quoting Chief Justice Taft as Chancellor of the Smithson-
ian’s Board of Regents); see also Ulman Memorandum at 5 (“it could be argued
that the Smithsonian is . . . a body entirely separate from the government of the
United States utilized to fulfill trust obligations”); Dong, 125 F.3d at 879 (suggest-
ing that the Smithsonian might accurately be classified as “a testamentary trust
res”). We have advised that “[t]he unique nature of the Smithsonian counsels
reluctance toward a sweeping declaration of the Smithsonian’s status within the
federal government. The wiser course, which we and others have followed, is to
focus upon the position of the Smithsonian within a precise statutory scheme.”
Status of the Smithsonian Institution, 12 Op. O.L.C. at 123–24. We follow that
course today.
   The history of the Smithsonian suggests that Congress created the entity outside
the Executive Branch. In 1836, Congress enacted legislation to accept the bequest
of James Smithson, a wealthy English scholar and scientist, who bequeathed all
his property to the United States to found “an Establishment for the increase and



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        Office of Government Ethics Jurisdiction Over the Smithsonian Institution


diffusion of knowledge among men.” Smithsonian Letter at 3 (quoting Smithson
will). See generally Act of July 1, 1836, ch. 252, 5 Stat. 64; The Smithsonian
Legacy to the United States, 3 Op. Att’y Gen. 383 (1838). In 1846, Congress
created the Institution as an “establishment” to “have perpetual succession,” see
Act of Aug. 10, 1846, ch. 178, § 1, 9 Stat. 102, 102, created a Board of Regents to
conduct the business of the Institution consistent with the terms of the Smithson
will, id. § 3, 9 Stat. at 103, and provided that the funds would be held in the
Treasury to support the Institution, id. § 2, 9 Stat. at 102.
    It appears that Congress accepted the bequest and established the Institution
under its constitutional power to legislate for the District of Columbia, see U.S.
Const. art. I, § 8, cl. 17. 1 The Smithsonian Institution: Documents Relative to Its
Origin and History, 1835–1899, at 396 (William J. Rhees ed., 1901) (“There was
but one power in the Constitution under which this charity could be administered,
and that was as a local legislature for the District of Columbia.”) (statement of
Rep. Alexander D. Sims, Apr. 28, 1846); id. at 560 (“[T]he action of Congress in
accepting the bequest, and agreeing to carry it into execution, was justified at the
time on the ground of its peculiar and complete jurisdiction over the District of
Columbia.”) (quoting House Committee Report, Mar. 3, 1855). It seems unlikely
that Congress would have relied on this particular power—to act as a local
legislature for the federal seat of government—if it had intended to establish the
Smithsonian within the Executive Branch of the national government. At the time
of the Smithsonian’s founding, many doubted that the Executive Branch had the
constitutional authority to administer such a charitable trust. Id. at 130 (suggesting
that the Executive lacked authority to “assum[e] and fulfill[] . . . the high and
honorable duties involved in the performance of the trust committed with it”)
(quoting report of House select committee, Jan. 19, 1836); see also id. at 471
(“The Smithsonian Institution is not a department of the Government . . . .”)
(statement of Sen. Jefferson Davis) (Jan. 30, 1851); Status of the Smithsonian
Institution, 12 Op. O.L.C. at 123 (quoting Chief Justice Taft’s statement, made as
Chancellor of the Smithsonian’s Board of Regents, that “the Smithsonian Institu-
tion is not, and never had been considered a government bureau”).
    Congress’s intent to establish the Smithsonian outside the Executive Branch is
clear from its governing structure. The President appoints none of the Institution’s
seventeen board members. Fifteen of its members are either members of Congress
or congressional appointees; its remaining members are the Chief Justice and the
Vice President. 20 U.S.C. §§ 42–43 (2000). As the D.C. Circuit has observed, “if
the Smithsonian were to wield executive power, the method by which its Regents
are appointed would appear to violate the Constitution’s separation of powers
principles.” Dong, 125 F.3d at 879; Ulman Memorandum at 5 (“[I]f the Smithson-
ian were an ‘executive agency’ this mode of appointment might raise serious
constitutional questions, in the sense that the Congress cannot appoint executive
officers . . . .”). In addition, if the Board of Regents exercises a portion of the
sovereign power of the United States, this manner of selection would violate the



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                  Opinions of the Office of Legal Counsel in Volume 32


Appointments Clause, which vests in the President alone the power to appoint
“all . . . Officers of the United States” and does not permit Congress to appoint
even “inferior Officers.” U.S. Const. art. II, § 2, cl. 2. It would also run afoul of
the Incompatibility Clause, which forbids members of Congress from holding “any
Office under the United States.” Id. art. I, § 6, cl. 2.
    Moreover, the President exercises no control over the Smithsonian and has no
power to remove its board members. See Dong, 125 F.3d at 879 (“[T]here is no
evidence that the Secretary of the Smithsonian answers to the President . . . .”);
Ulman Memorandum at 5 (Smithsonian is “under no executive power of control or
appointment whatever”). Instead, Congress presumably retains the ability to
remove those members it appoints. See generally President’s Removal Power at 3
(“[T]he fundamental principle applicable in removal cases is that, absent contrary
indications, the power to appoint implies the power to remove.”). Indeed, Con-
gress did remove and replace a board member at least once in the Smithsonian’s
history. See Act of Feb. 21, 1863, Pub. Res. No. 37-21, 12 Stat. 825 (removing and
replacing a Board member for “giving aid and comfort to” the Confederacy). If the
Smithsonian were in the Executive Branch, the President’s inability to supervise
its operation through removal of its Board members, and Congress’s authority
over the Institution, would implicate fundamental separation of powers principles.
Dong, 125 F.3d at 879; see generally Bowsher, 478 U.S. at 726, 730.
    Finally, structural and functional aspects of EIGA indicate that the Smithsonian
is not part of the Executive Branch for purposes of the Act. As noted above, OGE
is the supervising ethics office for the Executive Branch, while the Legislative and
Judicial Branches have their own supervising ethics offices. Members of Congress
and the Chief Justice fill seven of the positions on the Institution’s Board of
Regents. If the Smithsonian fell within OGE’s jurisdiction, OGE would exercise
authority over members of Congress and the Chief Justice in their capacity as
Regents. Moreover, OGE’s ability to conduct its ethics programs under title IV of
EIGA ultimately relies on the President’s authority to supervise the Executive
Branch. OGE’s Director is required to monitor compliance with EIGA’s require-
ments and may order an agency or its employees under OGE’s jurisdiction to take
corrective action when necessary. 5 U.S.C. app., EIGA § 402(b)(9). If the OGE
Director concludes that an agency has not adequately investigated or dealt with an
ethics violation, or if an agency head is himself the subject of an investigation, the
Director is to report directly to the President. Id. § 402(f)(1)(B), (f)(2)(A)(ii)–(iv),
(f)(3)(B). Those notification provisions would make little sense if applied to
entities and persons, such as the Smithsonian and its board members, over which
the President has no removal or disciplinary authority. See S. Rep. No. 100-392, at
16 (1988) (report on reauthorization of OGE) (“[I]n the final analysis, the OGE
Director’s enforcement authority lies with his or her powers of persuasion and
ability to appeal to the President and the public.”) (emphasis added).




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          Office of Government Ethics Jurisdiction Over the Smithsonian Institution


   While the Smithsonian’s place in the taxonomy of government may not be
entirely clear, it is certainly not within the Executive Branch for purposes of
EIGA. 4 See Status of GPO and Smithsonian at 2 (“The Smithsonian Institution is
not within the Executive branch of the Government.”); Ulman Memorandum at 5
(“It is readily apparent that the Smithsonian, . . . under no executive power of
control or appointment whatever, is not within the Executive branch.”). Therefore,
we conclude that OGE’s authority to administer the Executive Branch ethics
program does not extend to the Smithsonian.

                                                  III.

    Our conclusion that OGE does not supervise the Smithsonian under EIGA is
consistent with longstanding practice. Before EIGA’s passage, standards of ethical
conduct for Executive Branch employees were governed by Executive Order
11222, 3 C.F.R. 130 (1965 Supp.). That order outlined rules relating to conflicts of
interest, outside employment, receipt of gifts, and financial disclosure, to be
administered by agency heads and the Civil Service Commission. The Institution
first adopted standards of conduct in October 1961. Smithsonian Letter at 2.
Shortly after issuance of the Executive Order, the Smithsonian issued revised
standards “[p]ursuant to and in conformity with sections 201 through 209 of the
United States Code, Executive Order 11222,” and the regulations implementing
the order, “set[ting] forth minimum standards of conduct” for Smithsonian
employees. Smithsonian Institution Standards of Conduct, 31 Fed. Reg. 4512
(Mar. 17, 1966). Those regulations were published annually in the Code of Federal
Regulations. See 36 C.F.R. pt. 500 (1966–1983).
    Shortly after Congress enacted EIGA, the Smithsonian sought OGE’s opinion
about whether its board members and employees were subject to the financial
disclosure requirements of EIGA. OGE concluded that, because the Smithsonian
was not in the Executive Branch, EIGA’s disclosure requirements for Executive
Branch employees did not apply. Memorandum for Peter G. Powers, General
Counsel, Smithsonian Institution, from Bernhardt K. Wruble, Director, Office of


   4
       We do not address whether the Smithsonian might be deemed part of the federal government or an
executive agency for other statutory purposes. In a 1988 opinion, for example, this Office concluded
that the Smithsonian was an “executive agency” for purposes of the Federal Property and Administra-
tive Services Act (“Property Act”). The Status of the Smithsonian Institution under the Federal
Property and Administrative Services Act, 12 Op. O.L.C. 122 (1988). That determination rested on the
Property Act’s particular legislative history. Section 201(c) of the Property Act, which granted
authority to “any executive agency,” replaced an earlier statute that had explicitly covered the
Smithsonian. Because the legislative history of section 201(c) indicated that it was meant to “preserve
all . . . existing authority,” we concluded that the Smithsonian was included within its reach. Id. at 126
(quotation marks omitted). By contrast, there is no indication that the Executive Branch ethics program
that existed before EIGA was meant to encompass the Smithsonian. See Exec. Order No. 11222,
3 C.F.R. 130 (1965 Supp.); see generally S. Rep. No. 95-170, at 28–31 (1977) (describing the ethics
program that existed before EIGA).




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                 Opinions of the Office of Legal Counsel in Volume 32


Government Ethics, Re: Ethics in Government Act of 1978 (Apr. 13, 1979). OGE
informally reaffirmed that conclusion in 1990, see OGE Letter at 6, and continues
to abide by it today. Thus, during the thirty years since enactment of EIGA, OGE
has not asserted jurisdiction over the Smithsonian or its personnel. OGE has not
sought—nor has the Smithsonian submitted—an annual ethics program report, as
required of executive agencies under 5 U.S.C. app., EIGA § 402(e). Nor has the
Smithsonian sought OGE’s guidance in resolving ethics questions. See OGE Letter
at 6–7; Smithsonian Letter at 1.
    Following the passage of EIGA, the Smithsonian continued to publish its own
ethics regulations, which did not refer to OGE or EIGA. The Institution ceased to
publish the regulations in 1984. The Smithsonian’s General Counsel explained:

      The Smithsonian Institution is not a government agency as that term
      is traditionally used, but for a number of years the Standards of Con-
      duct for Smithsonian employees . . . have been published in the for-
      mat of government agency regulations as Part 500 . . . of Title 36 of
      the Code of Federal Regulations. Part 500 . . . [is] obsolete and [is]
      being removed from Title 36 of the Code of Federal Regulations.
      Henceforth, in keeping with the Institution’s status, current Stan-
      dards of Conduct for Smithsonian employees . . . will be promulgat-
      ed internally . . . .

49 Fed. Reg. 9171 (Mar. 12, 1984); see also Smithsonian Institution, Smithsonian
Directive 103, Smithsonian Institution Standards of Conduct (Feb. 13, 2006)
(current ethics standards).
   Since then, Congress has amended EIGA and reauthorized OGE without modi-
fying the definitions of “executive branch” or “executive agency,” and without
taking other action to bring the Smithsonian within OGE’s jurisdiction. See, e.g.,
An Act to Reauthorize the Office of Government Ethics, Pub. L. No. 100-598, 102
Stat. 3031 (1988); Office of Government Ethics Authorization Act of 1996, Pub.
L. No. 104-179, 110 Stat. 1566; see also An Act to Amend the Ethics in Govern-
ment Act of 1978, Pub. L. No. 98-150, 97 Stat. 959 (1983). Congress’s repeated
decisions not to amend the scope of OGE’s jurisdiction provide further evidence
that Congress did not intend for the Institution to be under the supervision of OGE.
See Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be
aware of an administrative or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change . . . .”).

                                                JOHN P. ELWOOD
                                          Deputy Assistant Attorney General
                                              Office of Legal Counsel




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