Employment Status of “Volunteers” Connected with

Federal Advisory Committees

The Departm ent of Com m erce may em ploy volunteers as consultants to the President’s Task Force on 

Private Sector Initiatives pursuant to 5 U .S.C . § 3109, as long as the services involved are 

tem porary or interm ittent, and purely advisory in nature. It m ust also be clearly understood that 

such volunteers expect no governmental com pensation.

Federal agencies ordinarily may not accept voluntary services or other donations in the absence of 

express statutory authority, and volunteers should not in any case be used on a broad scale or to 

accomplish tasks ordinarily performed by paid government employees.

February 25, 1982

MEM ORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

Members of your staff have asked us for advice concerning the employment 

status of persons who volunteer to assist a federal advisory committee. We have 

been given materials describing the President’s Task Force on Private Sector 

Initiatives (Task Force), an advisory committee created by Executive Order No. 

12329, 46 Fed. Reg. 50919 (1981), and we have been asked to comment 

specifically on the propriety of accepting certain donations and voluntary services in this context. We conclude that, subject to the specific limitations described 

below, voluntary services of consultants and other donations may be accepted by 

the government to assist this advisory committee.

Background

The Task Force was established in accordance with the provisions of the 

Federal Advisory Committee A ct, as amended (5 U .S.C . App. I), to advise the 

President and the Secretary of Commerce concerning methods of promoting 

private sector activities designed to meet public needs, and to serve as a focal 

point for such private sector initiatives. See Exec. Order No. 12329, §§ 1 and 2. 

The membership of the Task Force consists of both private citizens and public 

officials from the federal, state, and local governments. Id. at § 1. Members of 

the Task Force serve without compensation, but the government may pay their 

expenses pursuant to 5 U.S.C. §§ 5701-5707. Id. at § 3(b). The Department of 

Commerce is responsible for providing the Task Force with “ such administrative

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services, funds, facilities, staff, and other support services as may be necessary 

for the effective performance of its functions.” Id. at § 3(c).1

In addition to staff provided by the Department of Commerce,2 the Task Force 

would be “ loaned” personnel from various corporations or other private entities,3 and it would receive donations and loans of equipment from such private 

sources.4 One corporation also has proposed to contribute the salary of another 

Task Force employee by donating money to a charitable organization5 that would 

compensate the “ employee” directly for his services to the Task Force.

Discussion

A. Personnel

(1) Voluntary Service. The Federal Advisory Committee Act provides that the 

D irector of the Office of M anagem ent and Budget (OM B) shall establish 

guidelines with respect to rates of pay for services of members, staffs, and 

consultants of advisory com m ittees. 5 U .S .C . App. I, § 7(d). The OM B 

guidelines address the question of voluntary services as follows:

The provisions of this section [dealing with pay for members, 

staff and consultants] shall not prevent an agency from accepting 

the voluntary services of a member of an advisory committee, or a 

member of the staff of an advisory committee, provided that the 

agency has authority to accept such services without compensation.

OMB Circular No. A -63, § 11(d) at A -9 (1974).

As a general matter, federal agencies do not have the authority to accept 

voluntary services. In fact, Congress has expressly provided in the AntiDeficiency Act that “ [n]o officer or employee of the United States shall accept 

voluntary service for the United States . . . except in cases of emergency 

involving the safety of human life or the protection of property.” 31 U .S.C. 

§ 665(b) (1976). In addition, employees may not waive a salary for which 

Congress has set a minimum. See, e.g., Glavey v. United States, 182 U.S. 595 

(1901).

1 Travel and support services, of course, may be provided only to the extent otherwise authorized by law, and 

subject to the availability of funds. See §§ 3(b) and 3(c) of Exec. O rder No. 12329

2 T he Com m erce Departm ent staff includes regular C om m erce D epartm ent em ployees who are assigned to assist 

the Task Force, as well as em ployees hired specifically for the Task Force and paid with funds provided by the 

C om m erce Departm ent

3 We understand that the "lo an ed ” personnel w ill serve the Task Force in either a full-time or a part-tim e capacity, 

but that they are all otherwise em ployees of ihe donors. To date, the Task Force has been offered the services of one 

person from each o f the following entities the A m erican Stock Exchange, RCA Corporation, A rm co Steel, A etna 

Life and Casualty, and Call for Action (a national volunteer network).

4 T h e donations in kind consist o f the following: four typewriters (from IBM ), stationery (from M ead F^per 

C orporation), one A pple Computer, word processing softw are, and one televideo CRT unit (from Armco); and a 

o n e-y ea r loan o f a d uplicating m achine, including free in stallatio n , serv icin g , and su p p lies (from X erox 

Corporation)

5 T he organization would be exempt from taxation under 26 U S C . § 501(c)(3)

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Although the interpretation o f § 665(b) has not been entirely consistent over 

the years, the weight of authority does support the view that the section was 

intended to eliminate subsequent claims against the United States for compensation of the “ volunteer,” rather than to deprive the government of the benefit of 

truly gratuitous services.6 Section 665(b) accordingly has been read as a complete bar to subsequent compensation of a “ volunteer,” and as an admonition to 

federal agencies to reach an express understanding with such volunteers that they 

will receive no government compensation.7

In addition to the limitation of liability rationale underlying § 665(b), agencies 

contemplating the acceptance of volunteer services must also take account of the 

fact that an individual may not waive a salary for which Congress has fixed a 

minimum. See, e.g., Glavey, supra. Whether this principle is expressed as a 

matter of personnel management or unauthorized augmentation of appropriations, it has always been interpreted to limit the situations in which services may 

be accepted.8

There are, however, discrete situations where Congress has not set minimum 

salaries for employees. For example, there is no minimum salary set for persons 

employed as consultants pursuant to 5 U .S.C . § 3109.9 Although consultants 

may not be employed to perform “ governmental functions,” and their services 

must be intermittent or temporary and limited to tasks of a purely advisory 

nature, it seems likely to us that some of the Task Force staff positions would fit 

this description.10 To the extent that individuals serving the Task Force work as 

consultants, they may do so on a volunteer basis, so long as it is clear that they 

expect no governmental compensation. We understand that the Commerce Department will require each “consultant volunteer” to execute a written waiver of 

com pensation, which should be sufficient to protect the government from subsequent salary claims.

We should emphasize that our research on this subject has revealed a virtually 

unanimous view that there is an avowed preference for paid government employ6 T he legislative history, as w ell as the judicial and adm inistrative interpretations of § 665(b) are discussed at 

som e length in an opinion o f this Office dated M ay 25, 1976 You should refer to the 1976 opinion fo ra full analysis 

o f the law o f voluntary services. In this opinion, we will sim ply apply the prevailing interpretation of the law to the 

Task Force A dvisory C om m ittee.

7 O ur interpretation of § 665(b) is bolstered by a subsequent congressional enactm ent perm itting federal 

em ployees w ho serve “ w ithout com pensation” (W OCs) to accept a salary for their governm ent service from a 

source outside the governm ent See 18 U S C . § 209. Section 209 makes no reference in its text o r legislative 

history to a bar on the acceptance of voluntary services by the governm ent, but it surely contem plates that there are 

circum stances w here the acceptance of uncom pensated service is proper For a discussion o f voluntary services that 

have been specifically authorized by C ongress, see Antitrust Subcommittee c f the House Comm, on the Judiciary,

84th C ong , 2d Sess , Interim Report on W O Cs and G overnm ent Advisory Groups (C om m . Print, 1956) 

(h ereinafter referred to as Interim Report). See also 5 U S C § 3111 which specifically authorizes the acceptance of 

volunteer services from students.

8 See discussion in opinion of May 25, 1976, referred to in footnote 6 As you know, m ost federal positions are 

covered by the G eneral Salary (G S) schedule, for which Congress has set fixed mim m um s. See 5 U .S.C . § 5101 et

seq. W hile this fixed salary schedule actually exem pts persons w ho serve “ w ithout com pensation,” 5 U S.C 

§ 5102(c) 13, the policy underlying the schedules has been read to counsel against the use of volunteers to 

accom plish tasks that w ould ordinarily be perform ed by em ployees covered by the schedule

9 A s we have recently advised you, there is also no m inimum salary set for certain employees o f the W hite House 

staff.

10 See O M B C ircular A - 120 (1980) fora full description of the limitations on the use of consultants We will leave 

it to the judgm ent o f the Com m erce D epartm ent to determ ine which o f the Task Force staff positions may 

appropriately be filled by consultants

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ment. See, e.g.. Interim Report, supra at 23-9. The express prohibition in 

§ 665(b) on the acceptance of voluntary services admittedly has caused some 

uncertainty about the propriety of uncompensated government service when such 

service is not expressly authorized by statute." Although there is no express 

statutory authorization for volunteer consultants to the Task Force, we are 

comfortable with the position that the absence of a minimum salary level, and the 

nature of consultant services, make the use of volunteer consultants acceptable in 

this context. We must advise caution, however, against the use of volunteers on a 

broad scale or to accomplish tasks ordinarily performed by paid government 

employees.12

(2) Conflict of Interest. Having determined that it is appropriate as a general 

matter for the Commerce Department to accept volunteer consultants to serve the 

Task Force, we next must determine the extent to which the conflict of interest 

statutes and agency conduct regulations will apply to these volunteers. The 

Federal Personnel Manual (FPM), Ch. 735, App. C (1969), sets forth the 

principles for determining whether persons serving the government on a temporary or intermittent basis are subject to the conflict of interest laws. Briefly, the 

FPM distinguishes between (1) persons “ whose advice is obtained by an agency 

. . . because of [their] individual qualifications and who serve . . . in an independent capacity” and (2) persons who are asked “ to present the views of a nongovernmental organization^] or group[s] which [they] represent, or for which 

[they are] in a position to speak.” FPM, App. C at p. C—4. The former category of 

independent experts is deemed to be subject to the conflict of interest laws 

because their service to the government is expected to be impartial, and free from 

outside influence or control. The latter category of private representatives, on the 

other hand, is not subject to the conflict of interest laws because it is expected that 

such persons would be influenced by the private groups that they have been 

chosen to represent.13

M For a discussion o f statutes which expressly authorize governm ent em ployment without com pensation, see

Interim Report, supra at 120. See also 5 U S C . § 3111

12 See in particular. Interim Report, supra at 23 and App B, citing Executive O rder N o 10182 (Nov. 21, 1950)

15 Fed. Reg 8013 which governed the use o f “ W OCs” as authorized by the D efense Production A ct of 1950. The 

Executive O rder provides that

So far as possible, operations under the Act shall be earned on by full-tim e, salaried em ployees of 

the G overnm ent, and appointm ents under this authority shall be to advisory or consultative positions 

only.

A ppointm ents to positions other than advisory o r consultative may be made under this order only 

when the requirem ents of the position are such that the incum bent must personally possess 

outstanding experience and ability not obtainable on a full-tim e, salaried basis.

Interim Report. supra at 121.

13 We have found that these FPM criteria are ordinarily the m ost useful standard to apply in determ ining w hether 

particular persons who serve an advisory com m ittee are federal em ployees for purposes o f the conflict o f interest 

laws There are, however, other factors that may be relevant to such a determ ination. For exam ple, if a person 

perform s a governm ent function, recetves a governm ent salary, or ts supervised directly by governm ent em ployees, 

it is likely that he w ill be deem ed a federal em ployee for other personnel purposes. See 5 U S C . § 2105(a), and 

Lodge 1858, AFGE v NASA, 424 F. Supp. 186 (D .D .C 1976) Similarly, the Standards of C onduct for the 

Com m erce D epartm ent apply to “ fejvery other person w ho is retained, designated, appointed, o r em ployed by a 

Federal officer or em ployee, w ho is engaged in the perform ance of a function of the Departm ent under authority of 

law or an Executive act, and w ho is subject to the supervision o f a Federal officer or em ployee w hile engaged in the 

perform ance o f duties of his position not only as to what he does but also as to how he perform s his duties, regardless 

of whether the relationship to the D epartm ent is created by assignm ent, detail, contract, agreem ent or otherw ise ” 

1 5 C F .R § 0 7 3 5 -4 (1981).

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Although the members of the Task Force may not be subject to the conflict of 

interest laws under this formulation, members of the Task Force staff (i.e., the 

regular Commerce Department employees or the staff hired with Commerce 

Department funds) would be subject to those statutes. Given our understanding 

of the Task Force and the role o f the consultant volunteers, we would be inclined 

to place the volunteers in the category of the staff employees who are fully subject 

to the conflict of interest laws. We reach this conclusion based upon our 

understanding that the volunteers will be performing impartial professional 

services for the Task Force.14

One conflict of interest issue will be especially significant to the Task Force 

volunteers. As Commerce Department employees, the volunteers will be subject 

to rules governing outside compensation and gifts. While government employees 

serving without compensation are not prohibited by 18 U .S.C . § 209 from 

accepting a salary from an outside source, they should not accept anything of 

value (including a salary) under circumstances that will create, or appear to 

create, a conflict of interest. The Commerce Department Standards of Conduct 

prohibit employees from soliciting or accepting any compensation or other thing 

of value from a person who:

(1) Has, or is seeking to obtain, contractual or other business or 

financial relations with the Department of Commerce;

(2) Conducts operations or activities that are regulated by the 

Department of Commerce; or

(3) Has interests that may be substantially affected by the 

performance or nonperformance of the employee’s official duty or 

by actions of the Department.

15 C.F.R. § 0 .7 3 5 -1 1(a).

There is an exception to this rule when the acceptance of the compensation

is determined by the head of the operating unit concerned to be 

necessary and appropriate in view of the work of the Department 

and the duties and responsibilities of the employee.

15 C.F.R. § 0 .7 3 5 -1 1(b)(5).

We are not in a position to give you a definitive interpretation of this regulation 

for purposes of the Task Force. While we would note the likelihood that a donor 

such as Armco Steel has business relations with the Commerce Department, we 

are not aware of any particular interest of this donor in the work of the Task Force. 

The Commerce Department, therefore, may feel that it is appropriate to apply the 

above-quoted exemption to the situation of the “ volunteer” from Armco. In this 

manner each payment should be reviewed carefully and individually, and we will

14 Since it appears that the volunteers will b e serving for m ore than 130 days, they w ill be subject to the conflict of 

interest laws as regular, rather than special governm ent em ployees. Appendix C o f the FPM sum m arizes the conflict 

statutes as they apply to both regular and special governm ent em ployees. Specific questions about the application of 

these statutes o r the C om m erce Department Standards o f Conduct should be directed to the Designated Agency 

Ethics Official for that D epartm ent or the O ffice o f G overnm ent Ethics.

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defer to the judgment of the Commerce Department about the propriety of 

payments in specific cases.15

B. Equipment

The Secretary of Commerce has been given authority by Congress to accept 

gifts of property for the purpose of aiding or facilitating the work of that 

Department. See 15 U .S.C. § 1522. In order to implement this authority, the 

Secretary has issued an Administrative Order (DAO-203-9), dated July 30, 

1965, governing the acceptance of gifts and bequests by the D epartm ent.16 We 

understand that the anticipated donation of supplies and equipment to the Task 

Force will be processed by the Commerce Department pursuant to this order. You 

should be aware that the order provides that gifts shall not be accepted unless they 

meet specific conditions, which include the following:

[the gift] would not involve in substance, or have the appearance 

of involving, personal benefit to an employee for or in contemplation of services to the donor.

Its acceptance would not tend to result in public misunderstanding 

concerning the ability of any Department employee to carry out 

his official duties in a fair, independent, impartial, or objective 

manner.

Its acceptance would not compromise or appear to compromise 

the honesty and integrity of departmental programs or of its 

employees and their official actions or decisions.

Administrative Order at p. 2. We would interpret these conditions to suggest that 

the Commerce Department direct the same kind of attention to the identity of 

donors as we described previously with regard to the volunteers.17

Conclusion

For the reasons discussed above, we conclude that it would be appropriate for 

the Commerce Department to accept “ volunteer” consultants to assist the Task 

Force. These volunteer consultants may receive a salary from an outside source, 

so long as the salary payment does not otherwise create a conflict of interest.

15 We do not fully understand the reasons for the one proposed corporate paym ent to a volunteer through a taxexem pt organization. While we are not prepared to state unequivocally that such payment is improper, we must 

express special concern about the advisability o f this proposal At the least, we would note that the conflict o f interest 

regulations may not be circum vented by such a m echanism , both the corporation and the tax-exem pt organization 

should be scrutinized as to any disqualifying conflicts.

16 The order expressly provides that it shall not govern the donation of personal services.

17 You have not asked us for advice concerning the propriety of soliciting, as opposed to accepting, donations of 

property or services. Since we do not know whether, or in what manner, the Task Force would be soliciting 

donations, we have not attem pted to address that issue in this memorandum .

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Under similar standards, donations of equipment may be accepted on behalf of 

the Task Force.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office of Legal Counsel

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