Applicability of Emoluments Clause to Employment of

Government Employees by Foreign Public Universities

T he E m olum ents C lause o f the C onstitution does not apply in the cases o f g o v e rn m e n t e m ployees 

offered faculty em ploym ent by a foreign public university w here it can be show n that the university 

acts in dependently o f the foreign state w hen m aking faculty em p lo y m en t decisions.

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 Goddard Space Flight Center (“Goddard”), a component of the National Aeronautics 

and Space Administration (“NASA”).1 We conclude that the Emoluments 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 Without Pay status from their 

positions at the Goddard Institute for Space Studies, a component 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 Letter for W alter Dellinger, Acting Assistant Attorney General, O ffice of Legal Counsel, from Lawrence F. W atson, C hief Counsel, G oddard Space R ig h t Center, National A eronautics and Space A dm inistration (Sept. 9, 1993) (the “Goddard M em ”)

13
Opinions o f the Office o f Legal Counsel

the chancellor, the president, the members of 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 Supreme Court of Canada has outlined the powers of the boards of governors and senates subject to the University Act:

Under the U niversity Act, R.S.B.C. 1979, c. 419, the management, 

administration and control of the property, revenue, business and affairs of the university are vested in a board of governors consisting 

o f 15 members. Eight of the members are appointed by the Lieutenant Governor in Council, but two of these must be nominated by 

the alumni association. The provincial government, therefore, has 

the power to appoint a majority of the members of the board of 

governors, but it does not have the power to select a majority. The 

academic government of the university is vested in the senate, only 

a minority of the members of which are appointed by the Lieutenant 

Governor.

Harrison v. U niversity o f British Colum bia, [1990] 3 S.C.R. 451, 459 (Can.) 

(plurality op.). Further, “under s. 22(1) of the Act, the Lieutenant Governor ‘may, 

at any time, remove from office an appointed member of the board.’” Id. at 467 

(Wilson, J., dissenting).

In general, the “management, administration and control of the property, revenue, 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 number of respects and the exercise of these would presumably fall under the jurisdiction of the board. It has the power to expropriate property under s. 48 and its property is protected against expropriation under s. 50. It is exempt from taxation under 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 

Governor (s. 47(2)).” Harrison, [1990] 3 S.C.R. at 467 (Wilson, J., dissenting).

As pointed out above, the academic governance of the university is vested in the 

senate. University Act, § 36. The senate is composed of a number of persons, 

including the chancellor, the president, deans, administrators, faculty, students, 

four members of convocation, representatives of affiliated colleges, and four persons appointed by the Lieutenant Governor. Id. § 34(2). Thus, only a relatively 

small minority of the senate will consist of governmental appointees.2

2 ‘‘W ith respect to som e im portant matters, how ever, the decisions of the senate are effectively controlled 

by the board o f g o v e r n o r s H arrison, [1990] 3 S C R at 469 (W ilson, J , dissenting) For exam ple, “every 

resolution passed by the senate respecting the establishm ent or discontinuance o f any faculty, departm ent, 

course o f instruction, chair fellow ship, scholarship, exhibition, bursary or prize (s 36(0) as well as internal

14
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 of 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 of the Clause. Second, it suggests that when a Federal employee is on Leave of Absence Without Pay status, he 

or she does not occupy an “Office of Profit or Trust” under the United States.

For reasons somewhat different from Goddard’s, we agree that the Clause is inapplicable here. Although we believe that foreign public universities, such as the 

University of Victoria, are presumptively foreign states under the Emoluments 

Clause, we also find that, in this case, the university can be shown to be acting independently 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 University of Victoria should not be considered a foreign state.

A.

The Emoluments Clause was adopted unanimously at the Constitutional Convention, 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 Ministers & 

other officers of the U.S. independent of external influence and

A pplicability o f Emoluments Clause to Employment o f Government Em ployees by

Foreign Public Universities

faculty matters and terms of affiliation with other universities is of no force or effect unless approved by the 

board (s 37) " h i

3 See, e g , The Federalist No 22, at 149 (A lexander Ham ilton) (C linton Rossiter ed , 1961) (“One of the_ 

weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign 

corruption ’’)

15
Opinions o f the O ffice o f Legal Counsel

moved to insert — after Art[.] VII sect[.] 7. the clause following —

“No person holding any office o f profit or trust under the U.S. shall 

without the consent of the Legislature, accept of any present, 

emolument, office or title of any kind whatever, from any King,

Prince or foreign State[”] which passed nem: contrad.

2 The R ecords o f the F ederal Convention o f 1787, at 389 (M. Farrand ed., 1966) 

(“Records”); see also 3 id. at 327 (remarks of Governor Randolph).4 “Consistent 

with its expansive language and underlying purpose, the provision has been interpreted as being ‘particularly directed against every kind of influence by foreign 

governm ents upon officers of the United States, based upon our historic policies as 

a nation.’” A pplicability o f Emoluments Clause to P roposed Service o f G overnment E m ployee on Com mission of International H istorians, 11 Op. O.L.C. 89, 90

(1987) (quoting 24 Op. A tt’y Gen. 116, 117 (1902)).

Our Office has been asked from tim e to time whether foreign entities that are 

public institutions but not diplomatic, military, or political arms of their government should be considered to be “foreign Statefs]” for purposes of the Emoluments 

Clause. In particular, we have been asked whether foreign public universities constitute “foreign State[s]” under the Clause. Our prior opinions on this subject have 

not been a seamless 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 was a “foreign State” under the Emoluments 

Clause, given its functional and operational independence from the federal and 

state governments in Australia.5 Accordingly, we opined that the question posed 

there — whether 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 determine whether the proposed arrangement had the potential

4 T he Em olum ents C lause builds upon practices that had developed during the period o f the C onfederation:

It was the practice o f Louis XVI of France to give presents to departing ministers who signed 

treaties w ith France Before he left France in mid-1780, A rthur Lee received a portrait of Louis

set in diam onds atop a gold sn u ff box In O ctober 1780 Lee turned the gift over to Congress, and

on I D ecem ber C ongress resolved that he could keep the gift In Septem ber 1785 Benjamin 

Franklin inform ed Secretary for Foreign A ffairs John Jay that, when he left France, Louis XVI 

presented him with a m iniature portrait o f him self, set with 408 diam onds In October Jay recom m ended to C ongress that Franklin be perm itted to keep the miniature in accordance with its 

D ecem ber 1780 ruling about a similar m iniature given to Lee In M arch 1786 Congress ordered

that Franklin be perm itted to keep the gift A t the same time, Congress also allowed Jay him self 

to accept the gift o f a horse from the King o f Spain even though Jay was then engaged in negotiations w ith S pain’s representative, Don D iego de Gardoqui

10 The D ocum entary H istory o f the Ratification o f the C onstitution 1369 n 7 (John P Kaminski et al. eds ,

1993), see also P resident R ea g a n ’s Ability to R eceive R etirem ent Benefits fro m the State o f California, 5

O p. O .L C. 187, 188 (1981) (discussing background o f the ratification of the Clause).

3 See M em orandum for H G erald Staub, O ffice o f C hief C ounsel, NASA, from Samuel A. Alito, J r , 

Deputy A ssistant A ttorney G eneral, Office of Legal Counsel, Re. Emoluments Clause Q uestions raised by

NASA S c ie n tist's P roposed C onsulting A rrangem ent with the U niversity o f N ew South Wales (M ay 23, 

1986)

16
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 foreign 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 behalf 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 political, 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 interpretation 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 of profit or trust under the 

United States from accepting “any present, Emolument, Office, or Title, o f any

kind whatever” from “any . . . foreign State” unless Congress consents. U.S. 

Const, art. I, § 9, cl. 8. (emphases added). There is no express or implied exception for emoluments received from foreign states when the latter act in some capacity other than the performance of their political, military, or diplomatic 

functions. The decision whether to permit exceptions that qualify for the Clause’s 

absolute prohibition or that temper any harshness it may cause is textually comApplicability• o f Emoluments Clause to Employment o f Government Em ployees by

Foreign Public Universities

6 See. e g , M emorandum to File from Robert J. Delahunty, Acting Special Counsel, Re. Applicability' oj

Emoluments Clause to Employm ent o f C FTC Attorney bv East China Institute oj Politics and Law (Aug. 27, 

1992), M emorandum to Files from Barbara E Armacost, Re Emoluments Clause an d Appointm ent to the

P resident’s Committee on the A rts and H um anities (Nov 15, 1990) The General Accounting O ffice has 

reached a sim ilar result in a related context See 44 Comp. G en 130 (1964) (retired C oast G uard officer 

subject to recall to active duly held not entitled to retirement pay for period in which he was teaching for 

Department o f Education of Stale o f Tasm ania, Australia)

See G erald S Schatz, Federal A d v iso r: Committees, Foreign Conflicts oj Interest, The Constitution,

and D r F ranklin’s Snujf Box, 2 D C. L Rev 141, 163, 166 (1993) (“The Em olum ents C lause's reference to 

foreign states was a reference to foreign governm ents' acts in their sovereign capacity, as distinguished from 

the acts . . of foreign governm ental entities without the legal capacity to represent the national sovereign 

The Clause addresses the problem of conflict of interest on the part of 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 academic paid by a foreign governm ent with which the officer does not 

deal.").

8 See also Applicability of the Emoluments Clause To Non-G overnm ent M embers oj A C U S, 17 Op

O L C 114, 121-23 (1993) (opining that Em olum ents Clause applies to foreign public universities)

9 A ccord 49 Com p Gen 819, 8 2 1 (1970) (the “drafters [of the C lause] intended the prohibition to have 

the broadest possible scope and applicability”)

17
Opinions o f the O ffice o f Legal Counsel

mitted to Congress, which may give consent to the acceptance of offices or 

emoluments otherwise barred by the Clause.10

Further, it serves the policy behind the Emoluments Clause to construe it to apply to foreign states even when they act through instrumentalities, such as universities, 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 judgment 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 research.12 Moreover, institutions of higher learning are often substantially funded, 

whether directly or indirectly, by their governments, and university research programs or other academic activities may be linked to the missions of their governmental sponsors, including national scientific and defense agencies.13 Thus, United 

States Government officers or employees might well find themselves exposed to 

conflicting claims on their interests and loyalties if they were permitted to accept 

employment at foreign public universities.14

Finally, Congress has exercised its power under the Emoluments Clause to create a limited exception for academic research at foreign public institutions of 

learning. The Foreign Gifts and Decorations Act provides in part that Federal employees may accept from foreign governmental sources “a gift of more than minimal 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 bodies may wish to reward or encourage scholarly or scientific work by employees of 

our Government, but has carefully delimited the circumstances in which Federal 

employees may accept such honors or emoluments That suggests that Congress

10 A ccordingly, C ongress has acted in appropriate cases to relieve certain classes of governm ent personnel, e g , reiired m ilitary officers, from applications of the C lause. See W ard v United States, 1 Cl Ct. 46

(1982).

11 See A pplication o f E m olum ents Clause to Part-Tim e C onsultant fo r the N uclear Regulatory C om m ission, 10 Op. O.L.C . 96, 100(1986)

C onsistent with this view, we have opined that an em ployee of the National Archives could not serve 

on an international com m ission o f historians created and funded by the Austrian G overnm ent to review the 

wartim e record of Dr. Kurt W aldheim , the President of Austria. See generally, 11 Op O L C. 89 (1987)

n G od d ard ’s ow n link with C olum bia U niversity in New Y ork City, see G oddard M em. at 3, 7, is illustrative.

14 O f course, the sam e predicam ent could a n se if G overnm ent em ployees worked at private universities 

abroad (or even in the United States). But the fact that the Em olum ents C lause does not address every situation in w hich G overnm ent em ployees might be subjected to im proper influence from foreign slates is no 

reason to refuse to apply it to the cases which it does reach.

13 W e have opined that this exception applied to an aw ard o f approxim ately $24,000 by a foundation

acting on behalf of the W est G erm an Governm ent to a scientist em ployed by the Naval Research Laboratory 

We reasoned that a “program designed to honor United States scientists and enable them to stay for an extended period at research institutes in the Federal Republic o f G erm any to carry out research o f the 

A w ardee's own choice seem s to be in the nature of an educational scholarship, acceptance of which C ongress has perm itted.M Letter for W alter T. Skallerup, Jr., G eneral Counsel, Department of the Navy, from

Robert B. Shanks, D eputy A ssistant Attorney G eneral, O ffice o f Legal Counsel at 4 (M ar 17, 1983) (internal 

quotation om itted).

18
believes both that the Emoluments Clause extends to paid academic work by Federal 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 under 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 Victoria’s 

board, senate, and faculty] is most possible concerning the Board, 

but in all three cases is minimized by the other members of the organizations, the sources from which those members are obtained, 

the method of their ominations and appointments, and the procedures concerning replacem ent. . . .

Thus, it appears [that] the University of Victoria is established as 

a largely self-governing institution, with minimal influence exercisable over the daily affairs and even general policies of the University.

Goddard Mem. at 6.

A pplicability o f Emoluments Clause to Employment o f Governm ent Em ployees by

Foreign Public Universities

16 We would also reject any argum ent that foreign public universities should be excluded from the purview of the Em olum ents Clause on the theory that the Clause must be taken to prohibit only the acceptance 

o f office or em olum ents bestowed by a foreign state while engaged in perform ing “traditional”’ governm ental 

functions, 1 e , functions that governm ents would normally have performed at the tim e o f the fram ing The 

theory assumes that governm ental support for higher education would not have been am ong such functions. 

The argument has several flaws. First, there is no such exception provided by or im plicit in the language of 

the Clause Second, the purposes of the Clause are better served if it is understood to cover all the functions 

of m odem governm ent, not some nauow class o f them. Third, the Fram ers appear to have thought that 

support for higher education was indeed a legitim ate function of governm ent The C onstitutional C onvention considered a proposal to em pow er Congress to establish a national university, but rejected it on the 

ground that the pow er was already em braced within the District of C olum bia Clause See 2 Records at 616 

President George W ashington, in his first and eighth annual addresses, called on Congress to consider establishing a national university. See 30 rhe W riting,\ o f G eorge W ashington 494 (John Fitzpatrick ed , 1939), 

35 id. at 316-17

19
Opinions o f the O ffice o f Legal Counsel

W ithout attempting to decide whether, as Goddard claims, the University of 

Victoria is generally free from the control of the provincial government of British 

Columbia, we think that the evidence shows that the university is independent of 

that government when making faculty employment decisions. We rely here chiefly 

on the Supreme Court of Canada’s decisions in the Harrison case, cited above, and 

in the companion case, McKinney v. U niversity o f Guelph, [1990] 3 S.C.R. 229 

(Can.).

The principal question presented in H arrison was whether the University of 

British Colum bia’s mandatory retirement policy respecting its faculty and administrative staff was consistent with the requirements of the Canadian Charter of 

Rights and Freedoms (“the Charter”).17 W hether the Charter applied turned on 

whether the challenged policy constituted governmental action — an inquiry raising issues at least somewhat 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 Over dissent, the Court held that the university’s policy was not governmental action under the Charter. In reaching that conclusion, three of the seven 

judges drew a distinction between “ultimate or extraordinary control and routine or 

regular control,” and held that while the government of British Columbia may be 

able to exercise the former, it lacked “the quality of control that would justify the 

application of the Charter." Id.\ see also id. at 478 (L’Heureux-Dube, J., dissenting on the appeal only) (university not “government” for purpose of section 32 of 

Charter).

Similarly, in M cKinney, a majority of the Court, again over dissent, held that the 

mandatory retirement policies of the defendant universities (there, located in the 

Province of Ontario) did not implicate the Charter. Moreover, the lead opinion 

emphasized the autonomy of the provincial universities when making faculty employment decisions:

The C harter apart, there is no question of the power of the universities to negotiate contracts and collective agreements with their 

employees and to include within them provisions for mandatory retirement. These actions are not taken under statutory compulsion, 

so a Charter attack cannot be sustained on that ground. There is

17 T he C anadian C harter is, in essence, a bill o f rights The Federal Governm ent o f Canada “enacted first 

the C anadian B ill o j Rights, R S.C., 1985, App. Ill, in 1960 and then the C anadian C harter o f Rights and

Freedom s in 1982, the latter having constitutional status. The values reflected in the C harter were to be the 

foundation o f all law s, part o f the ‘supreme law o f C anada’ against w hich the constitutionality of all other 

laws w as to be measured.*’ M cK inney v U niversity o f G uelph, [1990] 3 S.C R at 355 (W ilson, J., dissenting)

1 B ut see M cK inney, [1990] 3 S.C.R. at 274-75 (plurality op.) (noting certain differences between C anadian and A m erican doctrines), id. at 343-44 (W ilson, J., dissenting) ( “This Court has already recognized that 

while the A m erican jurisprudential record may provide assistance in the adjudication of C harter claim s, its 

utility is lim ited . . The C harter has to be understood and respected as a uniquely C anadian constitutional 

docum ent.’').

20
nothing to indicate that in entering into these arrangements, the universities were in any way following the dictates of the government. 

They were acting purely on their own initiative ....

Applicability o f Emoluments Clause to Em ploym ent o f Governm ent Em ployees by

Foreign Public Universities

The legal autonomy of the universities is fully buttressed by their 

traditional position in society. Any attempt by government to influence university decisions, especially decisions regarding appointment, tenure and dismissal of 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 cKinney, [1990] 3 S.C.R. at 269, 273 (plurality op.); see also id. at 418-19 

(L’Heureux-Dube, J., dissenting) (while universities may perform certain public 

functions attracting Charter review, hiring and firing of employees at universities in 

both British Columbia and Ontario are not among such actions: “Canadian universities have always fiercely defended their independence”).

While the Ontario statute at issue in M cKinney differed from the British Columbia statute considered in Harrison (in particular, Ontario’s statutes, unlike British 

Columbia’s, did not permit the provincial government to appoint a majority of a 

university board’s membership), the Harrison 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 Court’s statements in M cKinney concerning the autonomy of O ntario’s 

universities in matters of faculty employment would apparently hold true for the 

universities in British Columbia as well.19 Furthermore, even the dissent in H arrison acknowledged “the lack of government control over the mandatory retirement 

policy specifically in issue here and over matters specifically directed to the principle of academic freedom.” Id. at 471-72 (Wilson, J., dissenting).20 The remaining 

member of the Court accepted the trial court’s finding that the university’s em19 Judge Sopinka concurred in the conclusions and reasoning of the Harrison plurality except on the 

question w hether the mandatory retirem ent policy was “law ” within the meaning o f section 15(1) o f the 

C anadian Charter He would have preferred not to decide that question on the basis o f the assum ption that 

the university was part of the governm ent H arrison, [1990] 3 S.C R at 481 (Opinion of Sopinka, J ). In 

M cKinnev, Judge Sopinka agreed that “a university is not a governm ent entity for the purpose of attracting 

the provisions of the C anadian C harter o f Rights an d Freedom s ” [ 1990] 3 S C R at 444. W hile not being 

w illing to say that “none of the activities of a university are governm ental in nature,’’ he was of the opinion 

that “the core functions of a university are non-governm ental and therefore not directly subject to the C harter T his applies a fortiori to the university's relations with its staff ” Id. (Opinion of Sopinka, J ) As in his 

opinion in H arrison, he preferred not to reach the question w hether, if a university were part of the government, its mandatory retirement policies would be “law ” for purposes of the Canadian C harter Id.

20 Judge Cory agreed with Judge W ilson that the U niversity of British C olum bia form ed part of the governm ent for purposes of section 32 of the Canadian Charter, but disagreed with her on other grounds. Harrison, [1990] 3 S C.R. at 481 (Opinion of Cory, J ) .

21
Opinions o f the Office o f Legal Counsel

ployment agreements were essentially private contracts. Id. at 479-80 (L’HeureuxDube, J., dissenting on appeal only).

These Canadian cases cannot of course determine our interpretation of the 

Emoluments Clause. But they do provide compelling evidence that the University 

of Victoria is independent of the government of British Columbia with respect to 

decisions regarding the terms and conditions of faculty employment. Because that 

showing can be made, we believe the university should not be considered to be a 

foreign state under the Emoluments Clause when it is acting in that context.21

CO N CLU SIO N

The Emoluments Clause does not prohibit the two NASA scientists from accepting paid teaching positions at the University of Victoria during their unpaid 

leave of absence from their agency.

WALTER DELLINGER 

Assistant Attorney G eneral

Office o f Legal Counsel

Since it is not necessary to our decision, we do not address G oddard’s alternative argum ent that Federal 

em ployees in Leave W ithout Pay status do not occupy an O ffice o f Profit or Trust within the meaning of the 

Em olum ents C lause

22