Sample White Paper

8
active role in the management of the entity, such as choosing the faculty or the Board of
Governors.
27
By contrast, for example, OLC opined that two NASA scientists could teach at the
University of Canada without violating the Emoluments Clause. OLC concluded that evidence
clearly demonstrated that the University acted independently from the Canadian Government,
and the University selected its own faculty members independent from the Canadian
government.
28
Similarly, a Federal officer serving as a consultant at Harvard on a project funded
by the Government of Indonesia did not violate the Clause because the Indonesian Government
had no veto power over Harvard’s selection of consultants. In other words, Indonesia funded a
Harvard study. Harvard selected a Federal employee who also was a consultant to Harvard.
Harvard determined which consultant would participate in the project. The Indonesian
Government never took part in the selection or rejection of the consultant; rather, it just provided
funding to Harvard for the study. Because Harvard selected the Federal employee, and the
Indonesian Government did not select or reject whom Harvard offered, the Federal employee
was not considered to have violated the Emoluments Clause.
29
In sum, the foreign public
university is generally considered part of a foreign state unless there is evidence that the
university is independent of the foreign government on decisions regarding the terms and
conditions of faculty appointments, and it is clear that the gift given is from the university and
not from the foreign government.
b. Consultant to a Foreign Government
OLC also focuses on “control” for purposes of determining if an employee is subject to
the Clause when he or she consults for a foreign government. Ultimate control is exercised when
a foreign government selects the consultant. For example, the Government of Mexico
specifically wanted a Nuclear Regulatory Commission (NRC) employee to serve as a consultant
on a project.
30
Knowing that paying him directly could be a problem, the Mexican Government
hired a consulting firm, and requested that the Federal employee be hired by the consulting firm
for the sole purpose of providing consulting services to the Mexican Government. OLC
concluded that, in this instance, the “ultimate control, including selection of personnel, remains
with the Mexican government. That is because the principal reason for the Mexican government
27
Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the
President’s Receipt of the Nobel Peace Prize, December 7, 2009 (“Nobel).
28
Applicability of Emoluments Clause to Employment of Government Employees by Foreign
Public Universities (Public University”), 18 Op. O.L.C. 13 (1994)
29
Nobel at page 9.
30
6 Op. O.L.C 156 (1982).
Page 8/17
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