80.07

OPINION NO. 80-7

An official has requested our advice concerning whether it is permissible to accept an honorarium for providing editing services to a Federal agency regulating activities within the purview of the official's responsibilities. This request involves a consideration of §3-106(b)(8) and 3-104 of the Maryland Public Ethics Law (Md. Code Ann., Art. 40A, the Law).

The official is employed as an executive technical assistant by an executive agency responsible in part for developing standards for Maryland workers safety in conformity with Federal regulations in this field. Prior to the official's State employment, the official had worked for 15 years in this field in the private sector.

The interested Federal regulatory agency sponsored a conference designed to develop regulations covering a particular aspect of workers safety. The Federal agency employed a private contractor to organize the conference. At the request of the Federal agency's chief, the contractor contacted the Maryland official and requested the official to chair several conference meetings. The Federal agency chief indicates that he selected the official primarily because of the official's reputation in the subject matter of the conference, which, according to him resulted primarily from the official's private work.

With the approval of his supervisors, the official chaired the conference's opening and closing plenary sessions. The official performed these duties on State time and viewed them as part of a regular working day. After the conference, the contractor, at the request of the Federal agency chief, requested the official to edit the tapes of the plenary sessions, which he did on his own time. After the official had finished editing the tapes, the contractor offered the official what it called an "honorarium."

Section 3-106(a) is a general prohibition against the acceptance of gifts by State officials or employees. Under the Law, a gift generally is defined as the transfer of anything of economic value regardless of its form without adequate and lawful consideration. An exception to the prohibition against the acceptance of gifts is §3-106(b)(8) of the Law which permits officials and employees to accept honoraria. However, the Commission does not interpret this provision to be a blanket grant of permission for officials and employees to accept gifts or fees in situations similar to this one. We believe the honoraria exception is intended to cover those situations where an official or employee is presented with a free and gratuitous gift in recognition of some charitable, scientific, educational, artistic, civic or similar achievement, and for which the official or employee has neither rendered, nor is expected to render any significant service to the organization making the gift. This definition of honoraria is distinguishable from the payment of fees for services rendered. Further, we believe that the substance and not the form of the transaction should determine whether a payment is an honorarium; merely calling a payment an honorarium does not classify the payment as such for purposes of §3-106(b)(8). In this case, the payment appears to have been offered as consideration for service the official rendered in editing certain tapes. Therefore, the payment is not an honorarium and is not covered by §3-106(b)(8).

However, although the fee cannot be accepted as an honorarium, it may be accepted if it does not violate the provisions of Title 3, §3-104 prohibiting the intentional use of one's prestige of office for private gain. The Board of Ethics, under its power to suspend the Code in cases similar to this one, adopted the view that executive officials and employees could accept speaking, writing, public appearance and similar fees where the dominant factor in the offering of the fee was the individual's non-State employment related duties. However, in those cases where an official performed actions directly and immediately related to their current duties, the Board prohibited the official from accepting fees for performing the actions. The Board reasoned that under these circumstances the actions undertaken went with the job, and that in such a case it would constitute the intentional misuse of the official's prestige of office to accept fees for the services rendered under Article III, section 4 of the Code. Title 19 COMAR Opinions 96, 100, 105, 131. The Commission adopts its predecessor Board's interpretation that the prohibition against the intentional use of an official's prestige of office is a restriction on the acceptance by an official of any fee for services directly and immediately related to the official's duties.

The question then, is whether the editing of the conference tapes was directly and immediately related to the official's State duties. There seems to be a direct connection between the conference's subject matter and the responsibilities of the official's State agency. Moreover, there seems to be an immediate relationship between this official's editing of the conference tapes and his participation in the conference as a state official, i.e., participation on State time and with the approval of his superiors. Moreover, the official viewed his conference participation as part of his regular State duties.

As a direct and immediate relationship exists between the official's State duties and those the official rendered for which the fee is proffered, the Commission advises the official that acceptance of the fee would violate §3-104 of the Law.

Herbert J. Belgrad, Chairman
   William B. Calvert
   Jervis S. Finney
   Reverend John Wesley Holland
   Barbara M. Steckel

Date: May 5, 1980