January 27, 1977

The White House Office—Acceptance of

Voluntary Service (31 U.S.C. § 665(b))

This is in response to your oral request for our views regarding the propriety 

of the acceptance of voluntary service in the White House. We understand that 

your immediate concern is with the receipt of such assistance in the processing of 

the many resumes and applications for employment now being received by the 

White House. But we also understand that the White House has utilized 

voluntary secretarial and clerical services in the past on an ongoing basis and 

that there is interest in continuing this practice if it is lawful. It is our opinion 

that the practice is lawful.

No officer or employee of the United States shall accept voluntary 

service for the United States or employ personal service in excess of 

that authorized by law, except in cases of emergency involving the 

safety of human life or the protection of property.

On its face, this statute appears to prohibit the acceptance of the kind of 

voluntary services you have described. However, a 1913 opinion of the 

Attorney General construing this provision concluded:

[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 service 

intruded by a private person as a “ volunteer” and not rendered 

pursuant to any prior contract or obligation. 30 Op. A.G. 51, 52. 

[Emphasis added.]

See also, J. Weinstein, A Part-Time Clerkship Program in Federal Courts

fo r Law Students, 68 F.R.D. 265, 269-73 (1975). Thus, 31 U.S.C. § 665(b) 

does not prohibit a person from serving without compensation in a position that 

is “ otherwise permitted by law to be nonsalaried.”

When Congress has established a minimum salary for a position, either 

directly or by including it under the General Schedule or some comparable

78-72 MEMORANDUM OPINION FOR THE DEPUTY

COUNSEL TO THE PRESIDENT

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salary schedule, it is unlawful for the employing agency to pay less than the 

established salary. See, e.g., Glavey v. United States, 182 U.S. 595 (1901); 

MacMath v. United States, 248 U.S. 151 (1918); Saltzman v. United States,

161 Ct. Cl. 634, 639 (1963); 26 Comp. Gen. 956 (1947); Federal Personnel

Manual, Chapter 311, Subchapter l-4.d. Work of a secretarial or clerical 

nature is generally covered by the Classification Act, which establishes the 

rates of pay for civil service positions, and there is no express exception in that 

Act for positions in the White House. See 5 U. S. C . § 5102. Also, under the Fair 

Labor Standards Act, which was made applicable to the Federal Government in 

1974, see 29 U.S.C. §§ 203(d) and (e)(2) (1975 Supp.), it is unlawful to pay 

less than the minimum wage to an employee of the United States Government. 

29 U.S.C. § 206.

However, we do not believe that these restrictions are applicable here. Of the 

$16,530,000 appropriated to the White House Office under the Executive 

Office Appropriations Act of 1977, 90 Stat. 966, not to exceed $3,850,000 is 

appropriated

. . . for services as authorized by 5 U.S.C. 3109, at such per diem 

rates for individuals as the President may specify and other personal

services without regard to the provisions o f law regulating the

employment and compensation o f persons in the Government

service. . . . [Emphasis added.]

We interpret the underscored language to be an express exception to the Fair 

Labor Standards Act and to provide that the salary requirements of the 

Classification Act are inapplicable to positions covered by this portion of the 

appropriation to the White House Office.* Since Congress has mandated no 

minimum salary for these positions, it is our view that positions covered by this 

appropriation may carry a nominal compensation or no compensation at all.

To insure technical compliance with the law, we suggest that the White 

House administratively allocate the positions for which voluntary services will 

be accepted to the $3,850,000 portion of the appropriation for the White House 

Office. Also, because of the emphasis in the above passage from the Attorney 

General’s opinion quoted above on a prior agreement between the United States 

and the employee that the employee will serve without compensation, see also

7 Comp. Gen. 810, 811 (1928), we suggest that papers relating to the 

appointment or employment of persons whose services will be voluntary 

expressly provide that they will serve without compensation.

L eon U lm a n Deputy Assistant Attorney General Office o f Legal Counsel

*Even if (he Fair Labor Standards Act were thought to be applicable despite the language in the 

appropriation for the W hite House Office quoted in the text, that Act has been construed not to 

require a person to be paid where it is clear he has donated his services as a volunteer without any 

expectation of com pensation. See, Rogers v. Schenkel, 162 F. (2d) 596 (2d Cir. 1947); c f , Walling

v. Portland Terminal Co.. 330 U .S. 148, 152 (1947).

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