Authority to Decline Compensation for

Service on the National Council of Arts

The Anti-Deficiency Act does not prohibit a member of the National Council of the Arts 

from serving without compensation.

April 18, 1989

Mem o r a n d u m O pin io n f o r t h e C o u n se l t o t h e P r e s id e n t

You have asked for the opinion of this Office whether the Chairperson 

of the National Council of Arts (“Council”) may, at the request of a mem­ ber of that Council, allow only such member to serve on the Council at 

zero compensation.1 For reasons set forth below, we conclude that the 

Anti-Deficiency Act, 31 U.S.C. § 1342, does not prohibit the member from 

serving on the Council without compensation.

Analysis

The Anti-Deficiency Act provides:

An officer or employee of the United States government ... may not accept voluntary services for [the] government or 

employ personal services exceeding that authorized by law 

except for emergencies involving the safety of human life 

or the protection of property.

31 U.S.C. § 1342. This Office considered the application of the AntiDeficiency Act to noncompensated services most recently in the context of 

the authority of Independent Counsel Lawrence Walsh to appoint 

Professor Laurence Tribe as a Special Counsel without compensation. See

Memorandum for Francis A. Keating n, Acting Associate Attorney General, 

from Michael Carvin, Deputy Assistant Attorney General, Office of Legal 

Counsel, Re: Independent Counsel’s Authority to Accept Voluntary

Services - Appointment of Laurence W. Tribe (May 19, 1988). We relied on 

Attorney General Wickersham’s authoritative opinion construing the Anti1 Memorandum for Douglas W Kmiec, Assistant Attorney General, Office of Legal Counsel, from C 

Boyden Gray, Counsel to the President, Re Compensation of Members of the National Council on the

Arts (Apr. 14, 1989)

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Deficiency Act to permit a retired Army officer to serve without compensation as superintendent of an Indian school. The Attorney General wrote:

[I]t seems plain that the words “voluntary service” were not 

intended to be synonymous with “gratuitous service” and 

were not intended to cover services rendered in an official 

capacity under regular appointment to an office otherwise 

permitted by law to be nonsalaried. In their ordinary and 

normal meaning these words refer to services intruded by a 

private person as a “volunteer” and not rendered pursuant 

to any prior contract or obligation ....

30 Op. Att’y Gen. 51, 52 (1913). We concluded Professor Tribe could serve 

as a Special Counsel on a noncompensated (i.e., “gratuitous”) basis 

because he had been appointed to an official position of public accountability pursuant to a statute that requires no minimum compensation but 

merely states a maximum compensation.

Under the interpretation of the Anti-Deficiency Act articulated by 

Attorney General Wickersham and since followed by this Office, permissible noncompensated service has two elements. First, the service must 

be rendered “in an official capacity under regular appointment to an 

office.” 30 Op. Att’y Gen. at 52. Second, the office must be “otherwise permitted by law to be nonsalaried.” Id.2 Permission for a position to be nonsalaried may be inferred if there is no specific statutory rate of compensation for an office, but only a maximum. Thus, if the level of 

compensation for an office is entirely discretionary, or if it has only a 

fixed maximum and no minimum, salary for that office may be set at zero.

The twenty-six members of the Council are appointed to a regular 

office by the President with the advice and consent of the Senate. 20 

U.S.C. § 955(b). As such, the members of the Council serve “in an official 

capacity under regular appointment to an office” and therefore satisfy the 

first element of permissible noncompensated service under the AntiDeficiency Act. They also satisfy the second element. Members of the 

Council “shall receive compensation at a rate to be fixed by the Chairperson but not to exceed the per diem equivalent of the rate authorized 

for grade GS-18.” 20 U.S.C. § 955(e). This is a statutory maximum rate 

which, under our prior interpretations of the Anti-Deficiency Act, establishes that the position is permitted to be non-salaried. Accordingly, the 

Anti-Deficiency Act does not prohibit a member of the National Council 

of the Arts from serving without compensation, or more precisely, to 

serve with compensation fixed at zero.

2 Of course, if Congress has expressly authorized acceptance of voluntary services notwithstanding the 

Anti-Deficiency Act, it is not necessary to infer any authonty to accept noncompensated services from 

an interpretation of the intended scope o f the Act.

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The only objection to this conclusion would attach special significance 

to that fact that the members of the Council are to be compensated at a

rate fixed by the Chairperson of the Council. It may be suggested that this 

language required that each member of the Council must be compensated at the same rate. We disagree. First, the language itself does not mandate this result: it does not provide that the members of the Council shall 

be compensated at a single rate or that the discretion of the Chairperson 

is constrained to fixing a single rate. The emphasis on the word “a” is 

unwarranted in the context of the entire provision. Moreover, the legislative history rebuts any argument that the provision authorizing the Chairperson to establish “a rate” of compensation restricts the Chairperson to 

selecting one rate for all appointees. The predecessor statute provided:

Members of the Council, and persons appointed to assist

the Council in making its studies, while attending meetings 

of the Council, or while engaged in duties related to such 

meetings, or while engaged in the conduct of studies authorized by this title, shall receive compensation at a rate to be 

fixed by the Chairman, but not exceeding $75 per diem ....

National Arts and Cultural Development Act of 1964, Pub. L. No. 88-579, 

§ 8, 78 Stat. 905, 907 (emphasis added). If the provision authorizing “compensation at a rate to be fixed by the Chairperson” limits the Chairperson 

to establishing one rate, then the predecessor statute required Members 

of the Council and their staff to be paid at the same rate. We cannot 

believe that Congress intended this unusual result, and because the plain 

language of the statute does not demand this construction, we reject it. 

We also believe a court would defer to an agency interpretation that the 

statute authorizes the Chairperson of the Council to establish different 

rates of compensation for different members. See Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Conclusion

The members of the National Council on the Arts are officials who are 

appointed by the President and who may be compensated at a rate which 

is established by the Chairperson of the Council pursuant to a statute 

which specifies a statutory maximum, but no minimum. Therefore, in 

light of this Department’s prior interpretations of the Anti-Deficiency Act, 

a member of the Council may serve without compensation.

DOUGLAS W. KMIEC 

Assistant Attorney General

Office of Legal Counsel

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