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

Opinion

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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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

14 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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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)

16 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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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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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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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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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 ) .

21 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- 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