August 18, 1978

78-46 MEMORANDUM OPINION FOR THE

ASSOCIATE ATTORNEY GENERAL AND THE

DEPUTY ATTORNEY GENERAL

Voluntary Services (31 U.S.C. § 665(b),

5 U.S.C. § 3111)— Use of Student Volunteers

This concerns the Civil Rights Division’s memorandum to the Associate 

Attorney General and the Deputy Attorney General raising the issue of the 

legality of the Department accepting the uncompensated services of student 

volunteers. This is usually done incident to an academic program in which the 

student performs supervised outside work for academic credit.

The specific issue posed is whether 31 U.S.C. § 665(b) or any other 

authority precludes the Department from accepting uncompensated services by 

students who are “ given assignments that would aid the Department in its 

mission.” The Office of Management and Finance believes this is not 

permissible. We agree.

Section 665(b) provides that:

No officer or employee of the United States shall accept voluntary 

service for the United States or employ personal service ip 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, the statute appears to prohibit the acceptance of all nonemergency 

voluntary service. However, an opinion of the Attorney General construing this 

provision states:

[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. Att’y Gen. 51, 

52(1913)]

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The Attorney General concluded that the prohibition was designed to prevent 

“ the acceptance of unauthorized services not intended or agreed to be 

gratuitous and therefore likely to afford a basis for a future claim upon 

Congress.” Id., at55. See also 27 Comp. Gen. 194, 195 (1947). Thus § 665(b) 

does not necessarily preclude an Agency from accepting uncompensated service where it is clear that there will be no subsequent claim for compensation.

It is important to note that the opinion further concludes that employees 

cannot waive statutorily fixed compensation or any part thereof. 30 Op. Att’y 

Gen., supra, at 56. See also, Glavey v. United States, 182 U.S. 595, 609-610 

(1909); United States v. Andrews, 240 U.S. 90 (1916); 27 Comp. Dec. 131, 

133 (1920).1 In G lavey, the Court quoted with approval from the opinion of 

Judge Lacombe in Miller v. United States, 103 Fed. 413, 415 (S.D.N.Y. 

1900). Judge Lacombe stated:

It is to be assumed that Congress fixes the salary with due regard to 

the work to be performed, and the grade of man that such salary may 

secure. It would lead to the grossest abuses if a candidate and the 

executive officer who selects him may combine together so as 

entirely to exclude from consideration the whole class of men who 

are willing to take the office on the salary Congress has fixed, but 

will not come for less. And, if public policy prohibit such a bargain in 

advance, it would seem that a court should be astute not to give effect 

to such illegal contract by indirection, as by spelling out a waiver or 

estoppel. [See 182 U.S. at 609.]

Reasoning from this, the Court in Glavey stated:

If it were held otherwise, the result would be that the Heads of 

Executive Departments could provide, in respect of all offices with 

fixed salaries attached and which they could fill by appointments, 

that the incumbents should not have the compensation established by 

Congress, but should perform the service connected with their 

respective positions for such compensation as the head of a Department, under all the circumstances, deemed to be fair and adequate. In 

this way the subject of salaries for public officers would be under the 

control of the Executive Department of the Government. Public 

policy forbids the recognition of any such power as belonging to the 

head of an Executive Department. The distribution of officers upon 

such a basis suggests evils in the administration of public affairs 

which it cannot be supposed Congress intended to produce by its 

legislation. [Ibid.]

Thus, if a position falls under the classification provisions of 5 U.S.C. 

§ 1501 et seq., the compensation cannot be waived since compensation for the

'The Attorney General stated:

“ O f course, I do not mean by anything I have said herein to intimate that persons may be 

appointed without com pensation to any position to which Congress has by law attached 

com pensation."

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position is statutorily fixed. See 26 Comp. Gen. 956, 958 (1947); Chap. 311-4, 

FPM (revised July 1969). If, however, a statute authorizes appointments to 

particular positions without regard to the civil service laws, or confers 

discretion in the appointing officer as to compensation, there is no bar to the 

acceptance of uncompensated services. 27 Comp. Gen. 194 (1947); 27 Comp. 

Dec. 13\, supra.

The question of the propriety of an Agency accepting uncompensated 

services in student intern programs involving assignment to “ productive work, 

i.e., to the regular work of the Agency in a position which would ordinarily fall 

in the competitive service” was raised by the Civil Service Commission in 

1947. The Comptroller General concluded that, absent specific statutory 

authority, an appointee to a position in the Federal service cannot legally waive 

the compensation fixed by law for that position. 26 Comp. Gen., supra, at 961.

It is worthy of note that the Civil Service Commission in requesting the 

opinion on the student intern program limited its request as follows:

This situation, of course, is distinguishable from a college student 

serving as an “ intern” in the capacity of an outside student or 

investigator, observing the work of a government unit, performing 

tasks which fall outside the usual functions of the unit, or utilizing its 

facilities primarily for the benefit of his own educational advancement. Although the results of the intern’s work would be interesting, 

and probably useful to the agency in such a case, the work would not 

be authorized as an official task or project and would ordinarily be 

incidental or supplemental to the intern’s undergraduate or postgraduate study in the educational institution. The question does not 

involve the propriety of such arrangements. [Id., at 957]

The Civil Service Commission in its Bulletin No. 308-15, July 12, 1974, deals 

with the subject of “ Providing Work Experience for Students in a Nonpay 

Status.” The Commission believes that, even absent statutory authority to 

accept voluntary services, such limited programs are permissible. The rationale 

is that a participant in such a program renders no service to the Government 

because his work does not further the Agency’s mission. Therefore § 665(b) 

has no application.

We now consider the application of the above principles to the issue at hand. 

Section 665(b) is not a bar because it is understood by all concerned parties that 

no financial remuneration will be given for the students’ services. But if the 

students fill positions having statutorily fixed minimum compensation, considerations other than § 665(b) preclude the acceptance of voluntary services. See

30 Op. Att’y G en., supra, at 56; 26 Comp. Gen. 956, supra. It appears that the 

students fill such positions. Although we have been informed by the Office of 

Management and Finance that the students are not formally appointed in the 

Federal service, it is only this technicality that distinguishes them from other 

Agency employees.2 This omission does not permit the acceptance of voluntary

2Section 2105(a), title 5 U.S. Code, defines an employee as one who (I) performs a Federal 

function, (2) is under the supervision of a Federal employee, and (3) has been appointed in the civil 

service by an appropriate official.

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services. If it did, the prohibition against accepting voluntary services where 

there is a fixed compensation would be no prohibition at all. Because all of the 

requisites of employee status except formal appointment are met, a de facto

appointment exists.3

The Department would prefer student programs that are both beneficial to the 

student and further the Department’s mission. But those objectives can only be 

accomplished pursuant to legislative authority. The only uncompensated 

student services that the Department may accept are those in which student 

volunteers do not perform productive work for the benefit of the Department.

L e o n U l m a n

Deputy Assistant Attorney General

Office of Legal Counsel

3We have been unable to find any statute authorizing the Department to accept the services here 

involved without com pensation. (It should be noted that by § 301(a) of the Civil Service Reform 

Act of 1978, Pub. L. 95-454 (Oct. 13, 1978), 92 Stat. 1144, 5 U .S.C . § 3111, Congress has now 

authorized Agencies to accept uncompensated services of student volunteers.)

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