B-152844, DEC 12, 1963

B-152844: Dec 12, 1963

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SECRETARY: REFERENCE IS MADE TO LETTER OF NOVEMBER 6. THE REQUEST FOR DECISION WAS ASSIGNED NO. IT IS REPORTED THAT DOUBT ARISES IN THIS CASE BY REASON OF THE POSSIBLE VIOLATION OF THE EIGHTH CLAUSE OF ARTICLE 1. THE TERM "EMOLUMENTS" IS DEFINED IN BALLENTINE'S LAW DICTIONARY. AS "THE PROFIT ARISING FROM OFFICE OR EMPLOYMENT" AND "THAT WHICH IS RECEIVED AS COMPENSATION FOR SERVICES. OR WHICH IS ANNEXED TO THE POSSESSION OF OFFICE AS SALARY. THE TERM "OFFICE" IS A BROAD GENERAL TERM AND IS DEFINED AS "THE RIGHT TO EXERCISE A PUBLIC OR PRIVATE EMPLOYMENT. THE QUESTION FOR CONSIDERATION IS WHETHER ACCEPTANCE OF THE POSITION IN QUESTION WOULD CONSTITUTE PRIVATE EMPLOYMENT OR THE ACCEPTANCE OF AN "OFFICE" OR "EMOLUMENT" FROM A "FOREIGN STATE" WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION UNDER CONSIDERATION.

B-152844, DEC 12, 1963

PRECIS-UNAVAILABLE

MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF NOVEMBER 6, 1963, FROM THE ACTING SECRETARY OF THE NAVY, REQUESTING A DECISION AS TO WHETHER A RETIRED OFFICER OF THE REGULAR NAVY MAY ACCEPT EMPLOYMENT AS A PROFESSOR OF ENGINEERING IN THE ENGINEERING SCHOOL OF THE UNIVERSITY OF SAO PAULO, SAO PAULO, BRAZIL, WITHOUT JEOPARDIZING HIS ENTITLEMENT TO RECEIVE RETIRED PAY FROM THE UNITED STATES NAVY. THE REQUEST FOR DECISION WAS ASSIGNED NO. SS -N-732 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT DOUBT ARISES IN THIS CASE BY REASON OF THE POSSIBLE VIOLATION OF THE EIGHTH CLAUSE OF ARTICLE 1, SECTION 9, OF THE UNITED STATES CONSTITUTION, WHICH PROVIDES AS FOLLOWS:

"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."

THE TERM "EMOLUMENTS" IS DEFINED IN BALLENTINE'S LAW DICTIONARY, SECOND EDITION, AS "THE PROFIT ARISING FROM OFFICE OR EMPLOYMENT" AND "THAT WHICH IS RECEIVED AS COMPENSATION FOR SERVICES, OR WHICH IS ANNEXED TO THE POSSESSION OF OFFICE AS SALARY, FEES, AND PERQUISITES." THE TERM "OFFICE" IS A BROAD GENERAL TERM AND IS DEFINED AS "THE RIGHT TO EXERCISE A PUBLIC OR PRIVATE EMPLOYMENT, AND TO TAKE THE FEES OR EMOLUMENTS THERETO BELONGING." SINCE RETIRED MEMBERS OF THE REGULAR NAVY REMAIN A PART OF THE NAVAL SERVICE AND IT THUS APPEARS PROPER TO VIEW THEM AS HOLDING AN OFFICE OF PROFIT AND TRUST UNDER THE FEDERAL GOVERNMENT AFTER RETIREMENT (1 COMP. GEN. 700), THE QUESTION FOR CONSIDERATION IS WHETHER ACCEPTANCE OF THE POSITION IN QUESTION WOULD CONSTITUTE PRIVATE EMPLOYMENT OR THE ACCEPTANCE OF AN "OFFICE" OR "EMOLUMENT" FROM A "FOREIGN STATE" WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION UNDER CONSIDERATION.

UNDER THE PROVISIONS OF ARTICLES 80 AND 81 OF THE TRANSLATED STATUTE FURNISHED WITH YOUR LETTER, PUBLIC LAW 4024 OF THE GOVERNMENT OF BRAZIL, APPROVED DECEMBER 20, 1961, UNIVERSITIES IN BRAZIL ARE GRANTED DIDACTIC, ADMINISTRATIVE, FINANCIAL AND DISCIPLINARY AUTONOMY AND ARE CONSTITUTED AS SELF-GOVERNING ENTITIES. ALSO, BY LETTER DATED OCTOBER 4, 1963, THE DIRECTOR OF THE ENGINEERING SCHOOL, UNIVERSITY OF SAO PAULO, HAS CONFIRMED THAT THE UNIVERSITY IS NOT "IN ANY WAY" UNDER THE CONTROL OF THE STATE OF SAO PAULO OR THE GOVERNMENT OF BRAZIL.

THE HISTORY OF THE CONSTITUTIONAL PROVISION UNDER CONSIDERATION INDICATES THAT THE EVIL INTENDED TO BE AVOIDED IS THE EXERCISE OF UNDUE INFLUENCE BY A FOREIGN GOVERNMENT UPON OFFICERS OF THE UNITED STATES. SEE, IN THIS CONNECTION, 24 OP. ATTY. GEN. 116. IN VIEW OF THE INFORMATION FURNISHED, INCLUDING THE INDICATION THAT THE UNIVERSITY OF SAO PAULO RECEIVES FINANCIAL SUPPORT FROM THE STATE OF SAO PAULO, IT IS ASSUMED THAT THE UNIVERSITY IS NOT A PRIVATE INSTITUTION OF LEARNING. HOWEVER, NOTHING IS SHOWN AS TO THE CIRCUMSTANCES AND LAWS UNDER WHICH IT WAS FOUNDED OR THE BY-LAWS UNDER WHICH IT OPERATES. IN SUCH CIRCUMSTANCES, A CATEGORICAL ANSWER MAY NOT BE GIVEN TO THE QUESTION HERE INVOLVED. HOWEVER, IT MAY BE SAID THAT, IF THE RIGHTS AND BENEFITS THE RETIRED OFFICER WOULD RECEIVE UNDER A CONTRACT OF EMPLOYMENT WITH THE UNIVERSITY WOULD ACCRUE SOLELY BY VIRTUE OF THE TERMS OF SUCH CONTRACT AND SUCH CONTRACT WOULD NOT BE SUBJECT TO REVIEW OR QUESTION BY OR ON BEHALF OF ANY BRAZILIAN GOVERNMENT OFFICIAL, THE SITUATION THE CONSTITUTIONAL PROVISION WAS INTENDED TO PREVENT WOULD NOT ARISE. HIS EMPLOYMENT UNDER SUCH CONDITIONS WOULD NOT VIOLATE THAT PROVISION AS LONG AS THE AUTONOMY OF THE UNIVERSITY WAS NOT TERMINATED. SEE ARTICLE 84 OF PUBLIC LAW 4024.

THE QUESTION SUBMITTED IS ANSWERED ACCORDINGLY.