An obscure provision of the Constitution banning acceptance of compensation or items of value from a foreign government contains traps for unwary federal employees and active or retired military personnel, the Pentagon ethics office has said.
The language, designed to prevent influence by foreign nations over U.S. government decisions, covers various forms of pay as well as travel or gifts, says a March white paper from the Defense Department Standards of Conduct Office.
“This little known provision, the ‘Emoluments Clause,’ is still in effect today and applies to Federal civilian employees and active-duty military personnel. It also applies to retired military officers and enlisted personnel from the active and reserve components including military officers, enlisted retirees and retired Reservists,” the white paper says.
The clause applies to all federal employees because “the problem of divided loyalties can arise at any management level in the Government,” it says, and military retirees are covered because they are subject to recall.
The guidance notes that Congress has carved out some exceptions, however. One is a law allowing the acceptance of gifts from a foreign government of “minimal value” – currently defined as $350 or less – as well as certain travel, meals and lodging expenses.
While decisions on accepting such benefits may be straightforward, “There are several types of scenarios in which an employee will be deemed to have received an emolument where the payment is indirectly received from a foreign state. Such scenarios include consulting, law, or other partnership distributions, as well as payments (such as salary) from domestic professional corporations. Federal personnel, especially retired military personnel, need to be aware of these potential traps for the unwary,” it says.
Even commercial entities or public universities owned or controlled by a foreign government could be considered an arm of that government, it said.
The guidance recommends that employees get advance approval from their agencies before accepting anything of value that could violate the prohibition. Improper acceptance creates a debt owed to the U.S. government, and loss of citizenship may occur if an oath is taken to uphold allegiance to the foreign state, it says.
Federal employees also are subject to restrictions against accepting gifts from various sources under ethics guidelines.