NOAA Employee’s Receipt of the Göteborg
Award for Sustainable Development
Neither the Emoluments Clause of the Constitution nor the Foreign Gifts and Decorations
Act would bar an employee of the National Oceanic and Atmospheric Administration
from accepting the 2010 Göteborg Award for Sustainable Development.
October 6, 2010
MEMORANDUM OPINION FOR THE
ASSISTANT GENERAL COUNSEL
DEPARTMENT OF COMMERCE
You have asked for our opinion whether the Emoluments Clause of the
Constitution would bar an employee of the National Oceanic and Atmos-
pheric Administration (“NOAA”) from accepting the 2010 Göteborg
Award for Sustainable Development. See Memorandum for David J.
Barron, Acting Assistant Attorney General, Office of Legal Counsel,
from Barbara S. Fredericks, Assistant General Counsel, Department of
Commerce (July 22, 2010) (“Commerce Memo”). The Clause forbids
anyone “holding any Office of Profit or Trust” under the United States
from accepting, without congressional consent, “any present, Emolu-
ment, Office, or Title, of any kind whatever, from any King, Prince, or
foreign State.” U.S. Const. art. I, § 9, cl. 8. On the facts you have provid-
ed, we conclude that the employee may accept the award without violat-
ing the Emoluments Clause, because the award would not be “from any
King, Prince, or foreign State.” For similar reasons, we conclude that
acceptance of the award would not violate the Foreign Gifts and Decora-
tions Act, 5 U.S.C. § 7342 (2006).
I.
The Association for the Göteborg Award for Sustainable Development
(“Göteborg Award Association”) has chosen a NOAA scientist* to be one
* Editor’s Note: For privacy reasons, the published version of this opinion does not
identify the NOAA scientist.
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NOAA Employee’s Receipt of the Göteborg Award for Sustainable Development
of two recipients of the 2010 Göteborg Award. 1 The award consists of one
million Swedish Kroner (approximately $142,000) to be shared equally
with the co-recipient, travel expenses to the award ceremony in Sweden,
and a ceremonial globe.
The Göteborg Award Association is registered under Swedish law as a
non-governmental entity, and its sole function is to administer the Göte-
borg Award. You have told us that the Association consists of the City of
Göteborg and twelve businesses and that the Association is “funded one-
third by the City and two-thirds by the private businesses.” Commerce
Memo at 1. The Association is managed by a Board of Trustees that cur-
rently consists of three officials of the City of Göteborg and one business-
man. See Göteborg Award, Organisation, http://www.goteborgaward.com/
en/informationssida/organisation.html (last visited Oct. 5, 2010). That
Board appoints the seven-member jury that selects the winners and
presents the award during a formal ceremony. None of the members of
the jury that selected the 2010 awardees was a government official. The
Göteborg Association’s bylaws authorize the Board to act as the “ulti-
mate decisionmaker,” but you have told us that, as a matter of practice,
neither the City of Göteborg nor the Association’s Board has interfered
with the jury’s selection process during the ten years the award has
existed. See Jacobi E-mail, supra note 1.
II.
Under the Emoluments Clause of the Constitution, “no Person holding
any Office of Profit or Trust under [the United States], 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.” U.S.
Const. art. I, § 9, cl. 8. The Clause was intended to “preserv[e] foreign
Ministers & other officers of the U.S. independent of external influence”
by foreign governments. 2 The Records of the Federal Convention of
1787, at 389 (Max Farrand ed., rev. ed. 1966) (notes of James Madison);
see also 3 id. at 327 (remarks of Governor Randolph) (“It was thought
1For the facts regarding the award, we rely chiefly upon the statements of the Com-
merce Department. See Commerce Memo at 1; see also E-mail for Pankaj Venugopal,
Attorney-Adviser, Office of Legal Counsel, from Will Jacobi, Senior Counsel, Depart-
ment of Commerce (Aug. 20, 2010) (“Jacobi E-mail”).
211
34 Op. O.L.C. 210 (2010)
proper, in order to exclude corruption and foreign influence, to prohibit
any one in office from receiving or holding any emoluments from foreign
states.”); President Reagan’s Ability to Receive Retirement Benefits from
the State of California, 5 Op. O.L.C. 187, 188 (1981) (discussing back-
ground of ratification of the Clause).
In our view, the Emoluments Clause does not apply to the NOAA sci-
entist’s acceptance of the Göteborg Award because that prize would not
be tendered by a “foreign State” within the Clause’s meaning. 2 That view
does not rest on the notion that the City of Göteborg is not a “foreign
State” under the Emoluments Clause, 3 but rather on the conclusion, based
on the representations you have made, that the City does not appear to
control the granting of the Göteborg Award. Rather, the selection of the
award recipients appears to be made by the Göteborg Award Association,
2 In light of this conclusion, we do not address whether the NOAA scientist holds an
“Office of Profit or Trust” within the meaning of the Emoluments Clause. Nor do we
consider whether each element of the Göteborg Award—the cash prize, the travel to
Sweden, or the ceremonial globe—is a “present” or “Emolument . . . of any kind whatev-
er.” U.S. Const. art I, § 9, cl. 8.
3 We need not resolve that issue definitively here. At least once, we have informally
advised that the term “foreign State” in the Emoluments Clause applies equally to national
governments and to sub-national governmental units. See Memorandum for the Files from
Rosemary Nidiry, Attorney-Adviser, Re: Title of Honorary Village Chief from a Nigerian
Village at 2 (Jan. 19, 2001) (rejecting a “literal reading” of the term “foreign State” in the
Emoluments Clause and noting that “just as ‘King’ and ‘Prince’ should be read to cover a
foreign ‘Queen’ or ‘Princess’ or ‘Duke,’ ‘foreign State’ did not mean merely the ‘national
government of that foreign State,’ but also should include any political governing entity
within that foreign state”). And we appear to have assumed the same position in one of
our published opinions. See Applicability of Emoluments Clause to Employment of
Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 19 (1994)
(“Foreign Public Universities”) (characterizing University of Victoria as “an instru-
mentality of a foreign state (the province of British Columbia)”). The Comptroller
General has also taken the position that the Emoluments Clause is not limited to the
national government of a foreign state. See Major James D. Dunn, B-251084, 1993 WL
426335, at *3 (Comp. Gen. Oct. 12, 1993) (“Foreign governmental influence can just as
readily occur whether a member is employed by local government within a foreign
country or by the national government of the country. For this reason, we believe that the
term ‘foreign State’ should be interpreted to include local governmental units within a
foreign country as well as the national government itself.”); see also Military Personnel—
Acceptance of Foreign Presents, Emoluments, etc.—Foreign Government Employment—
Retired Enlisted Members, 44 Comp. Gen. 130, 131 (1964) (“[T]he State of Tasmania
must be considered a ‘foreign State’ within the meaning of the constitutional provision.”).
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NOAA Employee’s Receipt of the Göteborg Award for Sustainable Development
acting through a jury appointed by the Board of the Association. The
relevant question here is whether the decision to grant the award to a
particular individual by the jury appointed by the Board of the Associa-
tion is sufficiently independent of the government of the City of Göteborg
that conferral of the award should not be deemed an action of a foreign
state for the purposes of the Emoluments Clause. See President’s Receipt
of the Nobel Peace Prize, 33 Op. O.L.C. 370, 380–82 (2009) (“Nobel
Peace Prize”).
In previous opinions, the factors we have considered in conducting
such an assessment include whether a foreign government has an active
role in the management of the decisionmaking entity, Foreign Public
Universities, 18 Op. O.L.C. at 15; whether a foreign government, as
opposed to a private intermediary, makes the ultimate decision regarding
the gift or emolument, Memorandum for John G. Gaine, General Counsel,
Commodity Futures Trading Commission, from Leon Ulman, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Expense Reim-
bursement in Connection with Trip to Indonesia (Aug. 11, 1980) (“Indo-
nesia Trip”); see also Application of the Emoluments Clause of the Con-
stitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156
(1982); and whether a foreign government is a substantial source of
funding for the entity, see Applicability of Emoluments Clause to Pro-
posed Service of Government Employee on Commission of International
Historians, 11 Op. O.L.C. 89, 90 (1987) (“International Historians”). No
one of these factors has been dispositive. We have looked to them in
combination to assess the status of the decisionmaking entity for purposes
of the Clause, keeping in mind the underlying purpose that the Clause
serves. See, e.g., Memorandum for H. Gerald Staub, Office of Chief
Counsel, NASA, from Samuel A. Alito, Jr., Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Emoluments Clause Questions
Raised by NASA Scientist’s Proposed Consulting Arrangement with the
University of New South Wales at 4–5 (May 23, 1986) (“NASA Scientist”)
(“The answer to the Emoluments Clause question . . . must depend [on]
whether the consultancy would raise the kind of concern (viz., the poten-
tial for ‘corruption and foreign influence’) that motivated the Framers in
enacting the constitutional prohibition”).
Although the question is close, we believe that the Göteborg Award
Association, acting through the jury, is not an instrumentality of a foreign
213
34 Op. O.L.C. 210 (2010)
state for purposes of the Emoluments Clause. As you have told us, the
Association is governed by a Board, a majority of whose members are
City officials. For the Emoluments Clause analysis, however, this fact is
less significant than the composition of the entity that actually selects
award recipients. The selection is made not by the Association as a whole
or by its Board, but by the jury of seven private individuals, without
interference from the Association’s members, including the municipal
government. To be sure, the bylaws of the Association designate the
Board as the “ultimate decisionmaker,” and we assume that this control
could potentially include the authority to veto the jury’s selection of
award winners. Our Office’s precedents nonetheless suggest that such
ultimate authority is not dispositive where, as here, there is a strong
indication that the decision at issue was in fact made autonomously and
without governmental influence.
In our Foreign Public Universities opinion, for example, we considered
whether the University of British Columbia’s hiring of faculty members
was so independent of the provincial government’s control as not to
implicate the Emoluments Clause. We acknowledged that the University’s
faculty was “constituted by the board [of governors],” a majority of whose
members were appointed by the provincial government. 18 Op. O.L.C.
at 14–15, 22. We nevertheless determined that the Emoluments Clause
was inapplicable, in significant part because there was no evidence of a
governmental effort to influence the University’s faculty hiring decisions.
Id. at 15 (“[T]he [U]niversity can be shown to be acting independently of
the foreign state with respect to its faculty employment decisions.”); id.
at 20–21 (“‘There is nothing to indicate that in entering into these ar-
rangements, the universities were in any way following the dictates of
the government. They were acting purely on their own initiative.’” (quot-
ing McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229, 269, 273 (Can.)));
id. at 20 (noting “the autonomy of the provincial universities when mak-
ing faculty employment decisions”). Despite the board of governors’
“ultimate” control over the constitution of the faculty, id. at 20, faculty
hiring decisions were, in practice, made autonomously by the University
itself. 4
4 We acknowledge that, in the Foreign Public Universities opinion, decisions of Cana-
dian courts had affirmed the independence of the universities from day-to-day control by
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NOAA Employee’s Receipt of the Göteborg Award for Sustainable Development
Similarly, while the Board of the Göteborg Association may formally
be the “ultimate decisionmaker” with respect to various aspects of the
Göteborg Award, neither the Board nor the City of Göteborg has dictated
the selection of recipients. Indeed, the Secretary of the Board, Lennart
Wassenius, has represented that “[d]uring [his] close to ten years with the
[A]ssociation it has been absolutely clear that the jury de facto has the
complete control of and the full responsibility for the selection process as
well as the final decision as regards the award. The Board has never
discussed less so questioned, the work of the jury.” Jacobi E-mail, supra
note 1 (emphases deleted). 5
Besides looking to whether the government makes the ultimate decision
as to the conferral of a gift or emolument, our opinions indicate that a
substantial amount of government funding may help to establish that an
institution is an instrumentality of a “foreign State” for the purposes of the
Emoluments Clause. For instance, our conclusion that a commission of
international historians was a foreign state within the meaning of the
Clause was based on the “Commission’s establishment and funding” by
the Austrian government. International Historians, 11 Op. O.L.C. at 89–
90.
The presence of some public funding, however, does not necessarily
mean that an institution counts as a “foreign State.” Although the exist-
ence of significant public funding raises the potential for foreign govern-
mental influence, other evidence of an entity’s independence may estab-
lish that the Emoluments Clause does not apply. The more an entity is
financed by a foreign government, the more likely it is that the state
exercises control over that entity’s decision to confer a present or emolu-
the government, 18 Op. O.L.C. at 20 (citing Harrison v. Univ. of British Columbia,
[1990] 3 S.C.R. 451 (Can.); McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229 (Can.)),
while here the conclusion that the jury is independent does not rest on a foreign judicial
determination. The issue here is thus closer than in our earlier opinion. Even in Foreign
Public Universities, however, we observed that the Canadian court cases, while “compel-
ling evidence” of independence, “cannot of course determine our interpretation of the
Emoluments Clause.” Id. at 22. The question, here as there, is whether the decisionmak-
ing entity is free from governmental control when it makes its selection.
5 The Board does appoint the jury members, but in view of the private composition of
the jury and its de facto autonomy in selecting award recipients, we do not view the
Board’s “appointment authority . . . as having dispositive significance.” Nobel Peace
Prize, 33 Op. O.L.C. at 384.
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34 Op. O.L.C. 210 (2010)
ment. A greater measure of public funding would require correspondingly
stronger evidence that the foreign government does not in fact retain
control over the decision at issue. Nevertheless, even when a foreign
government was the sole source of funding for an institution, we have
determined that the particular institution was not a foreign state because
of its “functional and operational separation and independence” from the
government. See NASA Scientist at 4. Such considerations of autonomy
also informed our view that a federal officer could serve as a consultant to
Harvard University on a project funded substantially, if not entirely, by
the government of Indonesia. See Indonesia Trip at 5. Despite the funding
by the foreign government, we determined that the Emoluments Clause
did not apply because “Harvard has complete discretion in the selection”
of consultants and Indonesia “neither controls nor even influences . . .
[Harvard’s] selection and payment of consultants.” Id. at 4–5. Here,
similarly, although the City of Göteborg’s contribution of one-third of the
Association’s annual funding is significant, this factor does not outweigh
the jury’s consistent ten-year practice of selecting both the nominees for
and ultimate recipients of the award without governmental interference.
On the facts presented, we accordingly conclude that the NOAA scien-
tist’s receipt of the award would not violate the Emoluments Clause.
III.
The reasons making the Emoluments Clause inapplicable also lead to
the conclusion that the NOAA scientist may accept the Göteborg Award
without violating the Foreign Gifts and Decorations Act. The Act gen-
erally bars the acceptance of “gifts and decorations” from “foreign
government[s]” except under certain limited circumstances. 5 U.S.C.
§ 7342(b)(2) (2006); id. § 7342(a)(3) (defining “gift” to mean “a tangible
or intangible present (other than a decoration) tendered by, or received
from, a foreign government”). We need not address whether any of those
exceptions would apply here because we do not believe that the scientist
would be receiving an award “tendered by, or received from, a foreign
government.”
In pertinent part, the Act defines the term “foreign government” to
mean:
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NOAA Employee’s Receipt of the Göteborg Award for Sustainable Development
(A) any unit of foreign governmental authority, including any for-
eign national, State, local, and municipal government;
. . . and
(C) any agent or representative of any such unit or such organiza-
tion, while acting as such.
Id. § 7342(a)(2).
Our Office previously gave some guidance about this definitional pro-
vision in the context of a prize awarded by the Alexander Von Humboldt
Foundation. See Letter for Walter T. Skallerup, Jr., General Counsel,
Department of the Navy, from Robert B. Shanks, Deputy Assistant Attor-
ney General, Office of Legal Counsel (Mar. 17, 1983) (“Von Humboldt
Foundation”). The Foundation was established and mainly financed by
the West German government, and we noted that the West German gov-
ernment was undoubtedly a “unit of foreign governmental authority.” Id.
at 2. Yet we explained that it was not necessary “to go into the questions
whether, in view of its intimate connection with the German Government,
the Foundation should always be considered a foreign government.” Id.
at 3. Under the statute, the relevant question was instead whether the
Alexander Von Humboldt Foundation was a “foreign government, as
defined in section 7342(a)(2)(C), while it [was] acting as the agent for the
German Government in connection with the administration of [the award
program].” Id.; see also 5 U.S.C. § 7342(a)(2)(C) (“agent or representa-
tive . . . while acting as such” (emphasis added)). On the facts, we con-
cluded that the Foundation was acting as an agent in awarding the prize.
In particular, ministers of the German government sat not only on the
Board of the Foundation, but also on the special committee of the Founda-
tion that selected the award recipients. 6
This prior interpretation of the Act supports the conclusion that the
Göteborg Association is not a “foreign government” within the meaning
of the Act. Although, as a “local” or “municipal government,” the City
of Göteborg is a “unit of foreign governmental authority,” 5 U.S.C.
§ 7342(a)(2)(A), we do not believe that this definition of “foreign gov-
6 Although we concluded that the award was from a foreign government, we advised
that the award could be accepted because it fell within the Act’s exception for “education-
al scholarship[s].” Von Humboldt Foundation at 4 (citing 5 U.S.C. § 7342(c)(1)(B)).
217
34 Op. O.L.C. 210 (2010)
ernment” applies to the Göteborg Award Association, which is registered
as a non-governmental entity under Swedish law, when it acts through its
award jury consisting of private persons. To be sure, the City’s represen-
tation on the Association’s Board makes it theoretically possible that the
Association could function as an agent or representative of the City for
certain purposes, but the critical question is whether the Association acts
as an agent or representative of the City in determining the winners of the
award. Id. § 7342(a)(2)(C); see also Von Humboldt Foundation at 1. As
explained above, the Association has assigned a jury of private persons
the authority to select the recipients of the Göteborg Award—a decision
made without interference by either the Board or the Association’s mem-
bers, including the city government. The Board does appoint the award
jury’s members, but the jury’s private composition and decisional auton-
omy refute the idea that the jury members act as “agents or representa-
tives” of the City when they choose the recipients of the Göteborg
Award. Furthermore, unlike the special committee of the Von Humboldt
Foundation, the Göteborg Award Association does not distribute a whol-
ly (or even mostly) government-financed award. See Von Humboldt
Foundation at 2. The majority of the Association’s funding (two-thirds)
comes from private businesses. The Act consequently poses no bar to the
scientist’s acceptance of the Göteborg Award.
IV.
For the foregoing reasons, we conclude that neither the Emoluments
Clause nor the Foreign Gifts and Decorations Act would prohibit the
NOAA scientist from accepting the Göteborg Award. 7
DANIEL L. KOFFSKY
Deputy Assistant Attorney General
Office of Legal Counsel
7 We address here only the Emoluments Clause and the Foreign Gifts and Decorations
Act. In particular, we do not consider 5 C.F.R. § 2635.502(d) (2010), a provision in the
Standards of Ethical Conduct for Employees in the Executive Branch dealing with
acceptance of awards.
218