Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities

Applicability of Emoluments Clause to Employment of
Government Employees by Foreign Public Universities

T h e E m o lu m e n ts C la u se o f th e C o n stitu tio n d o e s not a p p ly in the c ase s o f g o v e rn m e n t e m p lo y e e s
o ffe re d facu lty e m p lo y m e n t b y a fo reig n p u b lic u n iv e rsity w h e re it c a n b e sh o w n th a t the u n iv e rsity
acts in d e p e n d e n tly o f the fo reign sta te w h e n m a k in g facu lty e m p lo y m e n t d e cisio n s.

March 1, 1994

M e m o r a n d u m O p in io n f o r t h e C h ie f C o u n s e l
G o d d a r d S p a c e F l ig h t C e n t e r
N a t io n a l A e r o n a u t ic s a n d S p a c e A d m in is t r a t io n

This memorandum responds to your request of September 9, 1993, for our
opinion concerning the applicability of the Emoluments Clause, U.S. Const, art. I,
§ 9, cl. 8 (“Emoluments Clause”), to the employment by the University of Victoria
in British Columbia, Canada, of two scientists on leave without pay from the G od­
dard Space Flight Center (“Goddard”), a component of the National Aeronautics
and Space Administration (“NA SA ”) .1 We conclude that the Em olum ents Clause
does not apply in these cases.

I.

As Goddard has explained, Drs. Inez Fung and James K. B. Bishop have sought
your administrative approval for employment as Professors in the School of Earth
and Ocean Sciences at the University of Victoria until August 31, 1994. During
that period, the two scientists would be in Leave W ithout Pay status from their
positions at the Goddard Institute for Space Studies, a com ponent of Goddard.
(Goddard is itself a NASA field installation.) Both scientists hold the position of
Aerospace Technology (AST)/Global Ecology Studies at the GS-15 level. For
their services in teaching and research while on leave, Drs. Fung and Bishop would
be paid $85,000 and $70,000 respectively by the University of Victoria.
The University of Victoria operates under the University Act, a statute enacted
by the legislature of British Columbia. See University Act, R.S.B.C., ch. 419
(1979) (Can.) (“University Act”). The Act provides that the university is to consist
of a chancellor, convocation, board, senate, and faculties. University Act, § 3(2).
The chancellor is to be elected by the members of the convocation, id. § 11(1), and
is to serve on the board of governors, id. § 19(a). The convocation is composed of

1 See L etter for W alter D ellinger, A cting A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Law -
rence F. W atson, C h ief C ounsel, G oddard Space R ig h t Center, N ational A eronautics and Space A d m inistra­
tion (Sept. 9, 1993) (the “G oddard M em ” )

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 O pinions o f the O ffice o f Legal C ounsel

the chancellor, the president, the m em bers o f the senate, all faculty members, all
graduates, all persons added to the roll of the convocation by the senate, and all
other persons carried on the roll before July 4, 1974. Id. § 5(1).
The Suprem e Court o f Canada has outlined the powers of the boards o f gover­
nors and senates subject to the University Act:

U nder the U niversity Act, R.S.B.C. 1979, c. 419, the management,
adm inistration and control of the property, revenue, business and af­
fairs o f the university are vested in a board of governors consisting
o f 15 members. Eight of the members are appointed by the Lieu­
tenant G overnor in Council, but two of these must be nominated by
the alumni association. The provincial government, therefore, has
the power to appoint a majority o f the members of the board of
governors, but it does not have the power to select a majority. The
academ ic governm ent of the university is vested in the senate, only
a minority o f the members o f which are appointed by the Lieutenant
Governor.

H arrison v. U niversity o f British C olum bia, [1990] 3 S.C.R. 451, 459 (Can.)
(plurality op.). Further, “under s. 22(1) of the Act, the Lieutenant G overnor ‘may,
at any time, remove from office an appointed member of the board.’” Id. at 467
(W ilson, J., dissenting).
In general, the “management, administration and control of the property, reve­
nue, business and affairs of the university are vested in the board.” University Act,
§ 27. In addition, the university “enjoys special government-like powers in a num­
ber o f respects and the exercise of these would presumably fall under the jurisdic­
tion o f the board. It has the power to expropriate property under s. 48 and its pro­
perty is protected against expropriation under s. 50. It is exempt from taxation un­
der s. 51. The board may also borrow money to meet University expenditures (s.
30) and appoint advisory boards for purposes it considers advisable (s. 33). The
University may not dispose of its property without the approval of the Lieutenant
G overnor (s. 47(2)).” H arrison, [1990] 3 S.C.R. at 467 (W ilson, J., dissenting).
As pointed out above, the academic governance of the university is vested in the
senate. U niversity Act, § 36. The senate is composed o f a number of persons,
including the chancellor, the president, deans, administrators, faculty, students,
four m em bers of convocation, representatives of affiliated colleges, and four per­
sons appointed by the Lieutenant G overnor. Id. § 34(2). Thus, only a relatively
small minority of the senate will consist of governmental appointees.2

2 ‘‘W ith resp ect to som e im portant matters, ho w ev er, the decisions of the senate are effectively controlled
by the board o f g o v e r n o r s H a rriso n , [1990] 3 S C R at 469 (W ilson, J , dissenting) For exam ple, “every
resolutio n p a sse d by the senate respecting th e establishm ent o r discontinuance o f any faculty, departm ent,
course o f in stru ctio n , c h a ir fellow ship, scholarship, exhibition, bursary or prize (s 3 6 (0 ) as well as internal

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 A p plicability o f Em olum ents C lause to E m ploym ent o f G overnm ent E m ployees by
Foreign P ublic U niversities

Finally, the faculty is “constituted by the board, on the recommendation of the
senate.” University Act, § 38. The faculty has various powers, including the
power to determine, subject to the approval of the senate, courses o f instruction.
Id. § 39(d).

II.

The Emoluments Clause, U.S. Const, art. I, § 9, cl. 8, provides:

No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall,
without the Consent of the Congress, accept of any present,
Emolument, Office, or Title, of any kind whatever, from any King,
Prince, or foreign State.

Goddard advances two basic arguments for concluding that the Emoluments
Clause is inapplicable in these cases. First, it maintains that the University of
Victoria is not a “foreign State” within the meaning o f the Clause. Second, it sug­
gests that when a Federal employee is on Leave of Absence W ithout Pay status, he
or she does not occupy an “Office of Profit or Trust” under the United States.
For reasons somewhat different from G oddard’s, we agree that the Clause is in­
applicable here. Although we believe that foreign public universities, such as the
University o f Victoria, are presumptively foreign states under the Emoluments
Clause, we also find that, in this case, the university can be shown to be acting in­
dependently of the foreign state with respect to its faculty employment decisions.
Because such a showing can be made, we conclude that in that context the Univer­
sity of Victoria should not be considered a foreign state.

A.

The Emoluments Clause was adopted unanimously at the Constitutional Con­
vention, and was intended to protect foreign ministers and other officers of the
United States from undue influence and corruption by foreign governments — a
danger of which the Framers were acutely aware.3 James M adison’s notes on the
Convention for August 23, 1787, report:

Mr[.] Pinkney urged the necessity of preserving foreign M inisters &
other officers of the U.S. independent of external influence and

faculty m atters and terms o f affiliation w ith other universities is o f no force or effect unless approved by the
board (s 37) " h i
3 See, e g , The Federalist N o 22, at 149 (A lexander H am ilton) (C linton R ossiter ed , 1961) (“O ne o f the_
w eak sides o f republics, am ong their num erous advantages, is that they afford too easy an inlet to foreign
corruption ’’)

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 O pinions o f the O ffice o f Legal C ounsel

m oved to insert — after Art[.] V II sect[.] 7. the clause following —
“No person holding any office o f profit or trust under the U.S. shall
w ithout the consent of the Legislature, accept of any present,
em olum ent, office or title of any kind whatever, from any King,
Prince or foreign State[”] which passed nem: contrad.

2 The R eco rd s o f the F ederal Convention o f 1787, at 389 (M. Farrand ed., 1966)
(“Records”); see also 3 id. at 327 (rem arks of G overnor Randolph).4 “Consistent
with its expansive language and underlying purpose, the provision has been inter­
preted as being ‘particularly directed against every kind of influence by foreign
go vern m en ts upon officers o f the United States, based upon our historic policies as
a nation.’” A p p lica b ility o f Em olum ents Clause to P ro p o sed Service o f G overn ­
m ent E m ployee on C om m ission of In ternational H istorians, 11 Op. O.L.C. 89, 90
(1987) (quoting 24 Op. A tt’y Gen. 116, 117 (1902)).
Our O ffice has been asked from tim e to time whether foreign entities that are
public institutions but not diplomatic, military, or political arms of their govern­
ment should be considered to be “foreign Statefs]” for purposes of the Emoluments
Clause. In particular, we have been asked whether foreign public universities con­
stitute “foreign State[s]” under the Clause. Our prior opinions on this subject have
not been a seam less web. Thus, in an opinion that Goddard cites and relies upon,
we concluded that while the University of New South Wales was clearly a public
institution, it was not so clear that it w as a “foreign State” under the Emoluments
Clause, given its functional and operational independence from the federal and
state governm ents in Australia.5 Accordingly, we opined that the question posed
there — w hether a NASA employee could accept a fee of $150 for reviewing a
Ph.D. thesis — had to be answered by considering the particular circumstances of
the case, in order to determ ine whether the proposed arrangement had the potential

4 T h e E m o lu m en ts C lau se builds upon practices that had d ev eloped during the period o f the C onfedera­
tion:
It w as the practice o f Louis XVI of F ran c e to give presents to departing m inisters w ho signed
treaties w ith F rance Before he left France in m id-1780, A rth u r Lee received a portrait o f Louis
set in d iam o n d s atop a gold s n u ff box In O c to b e r 1780 Lee tu rned the gift over to C ongress, and
o n I D ecem b er C o n g ress resolved that he c o u ld keep the g ift In Septem ber 1785 B enjam in
F ran k lin in fo rm ed Secretary for Foreign A ffa irs John Jay that, w hen he left France, Louis XVI
p resen ted him w ith a m in iatu re portrait o f h im self, set w ith 4 0 8 diam onds In O ctober Jay rec­
o m m e n d e d to C o n g ress that Franklin be p e rm itte d to keep the m iniature in accordance w ith its
D e ce m b e r 1780 ru lin g about a sim ilar m in iatu re given to Lee In M arch 1786 C ongress ordered
that F ran k lin be p erm itted to k e ep the gift A t the sam e tim e, C ongress also allow ed Jay him self
to accep t the g ift o f a horse from the King o f Spain even th o u gh Jay was then engaged in nego­
tiatio n s w ith S p a in ’s rep resen tativ e, Don D ie g o de G ardoqui
10 The D o c u m e n ta ry H isto ry o f th e Ratification o f the C onstitution 1369 n 7 (John P K am inski et al. eds ,
1993), se e a lso P resid en t R e a g a n ’s Ability to R e c e iv e R etirem en t B enefits fr o m the State o f C alifornia, 5
O p. O .L C . 187, 188 (1 9 8 1 ) (d iscu ssin g background o f the ratificatio n o f the C lause).
3 S e e M em o ran d u m for H G erald Staub, O ffic e o f C h ief C ounsel, N ASA, from Sam uel A. A lito, J r ,
D eputy A ssistan t A ttorney G eneral, Office of L e g a l C ounsel, Re. Em olum ents C lause Q uestions ra ised by
N ASA S c ie n tis t's P ro p o sed C o n su ltin g A rra n g em en t with the U niversity o f N ew South Wales (M ay 23,
1986)

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 A pplicability• o f Em olum ents Clause to E m ploym ent o f G overnm ent E m ployees by
Foreign Public Universities

for corruption or improper foreign influence of the kind that the Emoluments
Clause was designed to address. On other occasions, however, we have construed
the Emoluments Clause to apply to public institutions of higher education in for­
eign countries without engaging in such an inquiry.6
In re-examining these precedents, we have considered the claim that foreign
universities, even if “public” in character, should generally not be considered to be
instrumentalities of foreign states for purposes of the Emoluments Clause. On be­
half of this view, it can be argued that the Clause was designed to guard against the
exercise of improper influence on United States officers or employees by the po­
litical, military, or diplomatic agencies of foreign states, because payments by
those agencies are most likely to create a conflict between the recipient’s Federal
employment and his or her outside activity. Because public universities do not
generally perform such functions, they ought not, on this analysis, to be brought
within the Clause.7
After considering the question carefully, we have concluded that such an inter­
pretation of the Emoluments Clause is mistaken. Foreign public universities are,
presumptively, foreign states within the meaning of the Clause.8
The language of the Emoluments Clause is both sweeping and unqualified.9
The Clause in terms prohibits those holding offices o f profit or trust under the
United States from accepting “any present, Emolument, Office, or Title, o f any
kind w hatever” from “any . . . foreign State” unless Congress consents. U.S.
Const, art. I, § 9, cl. 8. (emphases added). There is no express or implied excep­
tion for emoluments received from foreign states when the latter act in some ca­
pacity other than the performance of their political, military, or diplomatic
functions. The decision whether to permit exceptions that qualify for the C lause’s
absolute prohibition or that temper any harshness it may cause is textually com­

6 See. e g , M em orandum to File from R obert J. Delahunty, A cting Special C ounsel, Re. Applicability' oj
Em olum ents C lause to Em ploym ent o f C F TC A tto rn ey bv East China Institute oj P olitics a nd Law (A ug. 27,
1992), M em orandum to Files from B arbara E A rm acost, R e Em olum ents C lause a n d A pp o in tm en t to the
P re sid e n t’s C om m ittee on the A rts a n d H um anities (N ov 15, 1990) T he G eneral A ccounting O ffice has
reached a sim ilar result in a related context See 44 C om p. G en 130 (1964) (retired C oast G uard officer
subject to recall to active duly held not entitled to retirem ent pay for period in w hich he was teaching for
D epartm ent o f E ducation o f Stale o f Tasm ania, A ustralia)
S ee G erald S Schatz, F ederal A d v is o r : C om mittees, Foreign C onflicts o j Interest, The C onstitution,
and D r F ra n k lin ’s S n u jf Box, 2 D C. L Rev 141, 163, 166 (1993) (“T he Em olum ents C la u se 's reference to
foreign states was a reference to foreign g overnm ents' acts in their sovereign capacity, as distinguished from
the acts . . o f foreign g overnm ental entities w ithout the legal capacity to represent the national sovereign
T he C lause addresses the problem o f conflict o f interest on the part o f a U S G overnm ent functionary
vis-a-vis a foreign sovereign in a sovereign capacity The C lause thus may not be assum ed to disqualify from
U S G overnm ent service an academ ic paid by a foreign governm ent with w hich the o fficer does not
deal.").
8 S ee also A p p lica b ility o f the Em olum ents C lause To N on-G overnm ent M em bers oj A C U S , 17 Op
O L C 114, 121-23 (1993) (opining that Em olum ents C lause applies to foreign public universities)
9 A c c o rd 49 C om p G en 819, 8 2 1 (1970) (the “drafters [of the C lause] intended the prohibition to have
the broadest possible scope and applicability”)

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 O pinions o f the O ffice o f L egal Counsel

m itted to C ongress, which may give consent to the acceptance of offices or
em olum ents otherwise barred by the C lause.10
Further, it serves the policy behind the Emoluments Clause to construe it to ap­
ply to foreign states even when they act through instrumentalities, such as univer­
sities, which do not perform political, military, or diplomatic functions. Those who
hold offices under the United States must give the government their unclouded
judgm ent and their uncompromised loyalty.11 That judgm ent might be biased, and
that loyalty divided, if they received financial benefits from a foreign government,
even when those benefits took the form of remuneration for academic work or re­
search.12 M oreover, institutions of higher learning are often substantially funded,
w hether directly or indirectly, by their governments, and university research pro­
grams or other academic activities m ay be linked to the missions o f their govern­
mental sponsors, including national scientific and defense agencies.13 Thus, United
States G overnm ent officers or employees might well find themselves exposed to
conflicting claims on their interests and loyalties if they were permitted to accept
em ploym ent at foreign public universities.14
Finally, Congress has exercised its power under the Emoluments Clause to cre­
ate a limited exception for academic research at foreign public institutions of
learning. The Foreign Gifts and Decorations A ct provides in part that Federal em­
ployees may accept from foreign governmental sources “a gift o f more than mini­
mal value when such gift is in the nature of an educational scholarship.” 5 U.S.C.
§ 7342(c)(1)(B ).15 Thus, Congress has recognized that foreign governmental bod­
ies may wish to reward or encourage scholarly or scientific work by employees of
our G overnm ent, but has carefully delim ited the circumstances in which Federal
em ployees may accept such honors or emoluments That suggests that Congress

10 A cco rd in g ly , C ongress has acted in ap p ro p riate cases to relieve certain classes o f governm ent person-
nel, e g , reiired m ilitary officers, from applications o f the C lause. See W ard v U nited S ta te s, 1 Cl Ct. 46
(1982).
11 S e e A p p lica tio n o f E m o lu m en ts Clause to P art-T im e C onsu ltant f o r the N uclear R egulatory C o m m is­
sion, 10 O p. O .L .C . 96, 1 0 0 (1 9 8 6 )
C o n sisten t w ith this view , w e have opined that an em p lo y ee o f the N ational A rchives could not serve
on an international c o m m issio n o f historians c re a te d and funded by the A ustrian G overnm ent to review the
w artim e record o f Dr. K urt W ald h eim , the P resid en t o f A ustria. S ee generally, 11 Op O L C. 89 (1987)
n G o d d a rd ’s ow n link w ith C olum bia U niversity in N ew Y ork City, see G oddard M em . at 3, 7, is illus­
trative.
14 O f course, the sam e p red icam en t could a n s e if G o v ern m ent em ployees w orked at priva te universities
abroad (o r even in the U nited S tates). But the fa c t that the E m olum ents C lause does not address every situ a­
tion in w hich G o v ern m en t em p lo y ees might b e subjected to im proper influence from foreign slates is no
reason to refuse to apply it to the c ase s which it d o e s reach.
13 W e have opined that this exception a p p lie d to an aw ard o f approxim ately $24,000 by a foundation
acting on b eh alf o f the W est G erm an G overnm ent to a scientist em ployed by the N aval R esearch L aboratory
W e reaso n ed that a “ program d esig n ed to h o n o r U nited States scientists and enable them to stay for an ex ­
tended perio d at research in stitu tes in the F ed eral R epublic o f G erm any to carry out research o f the
A w ard ee 's ow n choice seem s to be in the n a tu re o f an educational scholarship, acceptance o f w hich C o n ­
gress has p erm itted .M L etter for W alter T. S k alleru p , Jr., G eneral C ounsel, D epartm ent o f the N avy, from
R obert B. S hanks, D eputy A ssistant Attorney G e n eral, O ffice o f Legal C ounsel at 4 (M ar 17, 1983) (internal
q uotatio n om itted).

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 A p plicability o f Em olum ents Clause to E m ploym ent o f G overnm ent E m ployees by
Foreign P ublic U niversities

believes both that the Emoluments Clause extends to paid academic work by Fed­
eral employees at foreign public universities and that the Clause’s prohibition on
such activity should generally remain in force.
Accordingly, we conclude that foreign governmental entities, including public
universities, are presumptively instrumentalities of foreign states under the
Emoluments Clause, even if they do not engage specifically in political, military, or
diplomatic functions.16

B.

Having found that foreign public universities may and presumptively do fall un­
der the Emoluments Clause, we turn next to the question whether the University of
Victoria in particular is an instrumentality of a foreign state (the province of British
Columbia), and hence within the Clause. We conclude that it is not, at least with
respect to the faculty employment decisionmaking that is in issue here. Goddard
contends:

The ability of [Canadian] federal or provincial government officials
to influence and control the actions of [the University of V ictoria’s
board, senate, and faculty] is most possible concerning the Board,
but in all three cases is minimized by the other members of the or­
ganizations, the sources from which those members are obtained,
the method of their ominations and appointments, and the proce­
dures concerning replacem ent. . . .

Thus, it appears [that] the University of Victoria is established as
a largely self-governing institution, with minimal influence exercis­
able over the daily affairs and even general policies of the Univer­
sity.

Goddard Mem. at 6.

16 W e w ould also reject any argum ent that foreign public universities should be excluded from the pur-
view o f the Em olum ents C lause on the theory that the C lause must be taken to prohibit only the acceptance
o f office or em olum ents bestow ed by a foreign state while engaged in perform ing “traditional”’ governm ental
functions, 1 e , functions that governm ents w ould norm ally have perform ed at the tim e o f the fram ing The
theory assum es that governm ental support for higher education w ould not have been am ong such functions.
T he argum ent has several flaws. First, there is no such exception provided by or im plicit in the language of
the C lause Second, the purposes o f the C lause are better served if it is understood to c o v er all the functions
o f m odem governm ent, not som e n a u o w class o f them. Third, the Fram ers appear to have thought that
support for higher education was indeed a legitim ate function o f governm ent The C onstitutional C onven­
tion considered a proposal to em p o w er C ongress to establish a national university, but rejected it on the
g round that the p o w er was already em braced w ithin the D istrict o f C olum bia C lause S e e 2 R ecords at 616
President G eorge W ashington, in his first and eighth annual addresses, called on C ongress to c o n sid e r estab­
lishing a national university. S ee 30 rhe W riting,\ o f G eorge W ashington 494 (John F itzpatrick ed , 1939),
35 id. at 316-17

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 Opinions o f the O ffice o f L egal C ounsel

W ithout attem pting to decide whether, as G oddard claims, the University of
V ictoria is generally free from the control of the provincial government of British
Colum bia, we think that the evidence shows that the university is independent of
that governm ent when making faculty em ploym ent decisions. We rely here chiefly
on the Suprem e Court of Canada’s decisions in the H arrison case, cited above, and
in the com panion case, McKinney v. U niversity o f G uelph, [1990] 3 S.C.R. 229
(Can.).
The principal question presented in H arrison was whether the University of
British C olum bia’s mandatory retirement policy respecting its faculty and admin­
istrative staff was consistent with the requirements of the Canadian Charter of
Rights and Freedom s (“the Charter”) .17 W hether the Charter applied turned on
w hether the challenged policy constituted governm ental action — an inquiry rais­
ing issues at least som ew hat akin to those posed by the “State action” doctrine in
United States jurisprudence. See H arrison, [1990] 3 S.C.R. at 463 (plurality
op.).18 O ver dissent, the Court held that the university’s policy was not govern­
mental action under the Charter. In reaching that conclusion, three of the seven
judges drew a distinction between “ultim ate or extraordinary control and routine or
regular control,” and held that while the governm ent of British Columbia may be
able to exercise the form er, it lacked “ the quality o f control that would justify the
application o f the Charter." Id.\ see a lso id. at 478 (L ’Heureux-Dube, J., dissent­
ing on the appeal only) (university not “governm ent” for purpose of section 32 of
Charter).
Sim ilarly, in M cK inney, a majority o f the Court, again over dissent, held that the
mandatory retirem ent policies of the defendant universities (there, located in the
Province o f O ntario) did not implicate the Charter. Moreover, the lead opinion
em phasized the autonom y o f the provincial universities when making faculty em­
ploym ent decisions:

T he C h arter apart, there is no question of the power of the uni­
versities to negotiate contracts and collective agreements with their
em ployees and to include w ithin them provisions for mandatory re­
tirem ent. These actions are not taken under statutory compulsion,
so a C h arter attack cannot be sustained on that ground. There is

17 T h e C an a d ia n C h arte r is, in essence, a bill o f rights T h e Federal G overnm ent o f C anada “enacted first
the C a n a d ia n B ill o j R ig h ts, R S.C ., 1985, A pp. Ill, in 1960 and then the C anadian C harter o f R ights and
F reedom s in 1982, the latter h aving constitutional status. T he v alues reflected in the C harter w ere to be the
foundatio n o f all law s, p art o f the ‘supreme la w o f C an a d a ’ a g ain st w hich the constitutionality of all other
law s w as to be measured.*’ M c K in n e y v U n iversity o f G uelph, [1 990] 3 S.C R at 355 (W ilson, J., dissen t­
ing)
1 B u t se e M c K in n e y , [1990] 3 S.C .R . at 2 7 4 -7 5 (plurality o p.) (noting certain differences betw een C ana­
d ian and A m e ric a n d o ctrin es), id. at 343-44 (W ilso n , J., d issen tin g ) ( “T his C ourt has already recognized that
w hile the A m erican ju risp ru d e n tia l record may p ro v id e assistan ce in the adjudication o f C harter claim s, its
utility is lim ited . . The C h a rter has to be u n d ersto o d and resp ected as a uniquely C anadian constitutional
d o c u m e n t.’').

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 A p plicability o f E m olum ents C lause to E m ploym ent o f G overnm ent E m ployees by
Foreign P ublic U niversities

nothing to indicate that in entering into these arrangements, the uni­
versities were in any way following the dictates of the government.
They were acting purely on their own initiative . . . .

The legal autonomy of the universities is fully buttressed by their
traditional position in society. Any attempt by government to influ­
ence university decisions, especially decisions regarding appoint­
ment, tenure and dismissal o f academic staff, would be strenuously
resisted by the universities on the basis that this could lead to
breaches of academic freedom. In a word, these are not government
decisions.

M cK inney , [1990] 3 S.C.R. at 269, 273 (plurality op.); see a lso id. at 418-19
(L ’Heureux-Dube, J., dissenting) (while universities may perform certain public
functions attracting Charter review, hiring and firing o f employees at universities in
both British Columbia and Ontario are not among such actions: “Canadian univer­
sities have always fiercely defended their independence”).
W hile the Ontario statute at issue in M cK inney differed from the British Colum ­
bia statute considered in H arrison (in particular, O ntario’s statutes, unlike British
Colum bia’s, did not permit the provincial government to appoint a majority of a
university board’s membership), the H arrison plurality held that these differences
did not establish that the core functions of the British Columbian universities were
under the province’s control. H arrison , [1990] 3 S.C.R. at 463-64 (plurality op.)
Thus, the C ourt’s statements in M cKinney concerning the autonomy of O ntario’s
universities in matters of faculty em ployment would apparently hold true for the
universities in British Columbia as w ell.19 Furthermore, even the dissent in H a rri­
son acknowledged “the lack of government control over the mandatory retirement
policy specifically in issue here and over matters specifically directed to the princi­
ple o f academic freedom.” Id. at 471-72 (W ilson, J., dissenting).20 The remaining
member of the Court accepted the trial court’s finding that the university’s em-

19 Judge Sopinka concurred in the conclusions and reasoning o f the H arrison plurality except on the
question w hether the m andatory retirem ent policy was “ law ” within the m eaning o f section 15(1) o f the
C anadian C harter He w ould have preferred not to decide th at question o n the basis o f the assu m p tio n that
the university was part o f the governm ent H arrison, [1990] 3 S.C R at 481 (O pinion o f Sopinka, J ). In
M cK innev, Judge Sopinka agreed that “a university is not a governm ent entity for the purpose o f attracting
the provisions o f the C anadian C harter o f R ig h ts a n d F reed o m s ” [ 1990] 3 S C R at 444. W hile not being
w illing to say that “ none o f the activities o f a university are g overnm ental in nature,’’ he was o f the opinion
that “ the core functions o f a university are non-governm ental and therefore not directly subject to the C har­
ter T h is applies a fo rtio ri to the u n iv ersity 's relations w ith its staff ” Id. (O pinion o f Sopinka, J ) A s in his
opinio n in H arrison, he preferred not to reach the question w hether, if a university w ere part of the g o v e rn ­
m ent, its m andatory retirem ent policies w ould be “law ” for purposes o f the C anadian C h arter Id.
20 Judge Cory agreed with Judge W ilson that the U niversity o f B ritish C olum bia form ed part o f the gov­
ernm en t for purposes o f section 32 o f the C anadian C harter, b u t disagreed w ith her on o th e r grounds. H arri-
son, [1990] 3 S C.R. at 481 (O pinion o f C ory, J ) .

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 O pinions o f the O ffice o f L egal C ounsel

ploym ent agreem ents were essentially private contracts. Id. at 479-80 (L ’Heureux-
Dube, J., dissenting on appeal only).
These Canadian cases cannot o f course determ ine our interpretation o f the
Em olum ents Clause. But they do provide compelling evidence that the University
o f Victoria is independent o f the governm ent o f British Columbia with respect to
decisions regarding the terms and conditions o f faculty employment. Because that
showing can be made, we believe the university should not be considered to be a
foreign state under the Emoluments C lause when it is acting in that context.21

C O N C L U SIO N

The Em olum ents Clause does not prohibit the two NASA scientists from ac­
cepting paid teaching positions at the University of Victoria during their unpaid
leave o f absence from their agency.

W ALTER DELLINGER
A ssistan t A ttorney G eneral
Office o f L egal C ounsel

S in ce it is not n ecessary to o u r decision, w e d o not address G o d d ard ’s alternative argum ent that Federal
e m ployees in L eave W ithout Pay statu s do not o c cu p y an O ffice o f Profit or T rust w ithin the m eaning o f the
E m olum en ts C lause

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