Sample White Paper

7
intermediary, makes the ultimate decision regarding the gift or emolument; and (3) whether a
foreign government is a substantial source of funding for the entity.
24
DoD Financial Management Regulation: What Constitutes Foreign Control
One way to show foreign control is through an employer-employee relationship. At
DoD, to determine whether an employer-employee relationship exists between the retired
military member and a foreign government, DoD relies upon the DoD Financial Management
Regulation 7000.14-R (DoD FMR) which implements the Clause. DoD FMR 7000.14-R
provides that the employment analysis will follow the common law rules of agency. The
analysis involves the evaluation of the following factors:
the selection and engagement of the employee;
the payment of wages;
the power to discharge;
the power to control the employee’s conduct; and
the relationship of the work to the employer’s business, whether the work is a
part of the regular business of the employer.
DoD FMR Vol. 7B 5-5 to 5-6. The regulation further provides that the “decisive test” is whether
the employer has “the right to control and direct the employee in the performance of his or her
work and in the manner in which the work is to be done.”
25
a. Foreign Public University
Payments from a foreign public university influenced or controlled by a foreign
government may be a prohibited emolument.
26
OLC opinions addressing whether the
Emolument Clause extends to foreign public universities have come to contrary conclusions
depending on the facts. The key for OLC has been the extent of influence or control by the
foreign government. OLC reasoned that improper “influence” occurs when the foreign
government, and not the university, is making the payment. OLC explained that “control” is
based on whether the foreign government selects the faculty members. OLC enumerated two
factors to be considered in determining when a foreign government influences or controls a
university: 1) whether a foreign government, as opposed to a private intermediary, makes the
ultimate decision regarding the gift or emolument; and 2) whether a foreign government has an
24
Goteborg Award, p. 3.
25
DoD FMR Vol. 7B 5-5 to 5-6.
26
ACUS, 17 Op. O.L.C. 114, at 121-22.
Page 7/17
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