Questions Raised by the Attorney General’s Service as a Trustee of the National Thist for Historic Preservation

Headnotes: 

No conflict of interest or breach of fiduciary duty is created where the Attorney General is responsible for defending a suit brought against the Army Corps of Engineers by the National Trust for Historic Preservation, on whose Board of Trustees he serves, by statute, as an ex officio member. As an ex officio trustee, the Attorney General is always presumed to be representing the interests of the United States, especially in those situations in which the interests of the Trust and those of the United States conflict, so that no question of divided loyalty arises.

While the Attorney General is authorized to participate in litigation involving the National Trust if he considers it to be in the interests of the United States, the National Trust is not a federal agency such that the Attorney General has the authonty to supervise and control all litigation to which the Trust is a party.

The terms “officer, director, or trustee” in 18 U.S.C. § 208 do not include an ex officio member of an essentially private body, whose service in that body derives only from an office of public trust. While a trustee ordinarily owes a duty of loyalty to the beneficiaries of the trust, that requirement may be altered by the terms of the trust, in this case the statute which established the Trust and which made the Attorney General an ex officio trustee.

Updated July 9, 2014