80.08

OPINION NO. 80-8

An employee of the Department of Economic and Community Development (DECD) has asked whether he may accept an "honorarium" from a national organization (the Council) composed of representatives of industries, commercial establishments, and governmental units interested in the field of industrial development.

The subject waived confidentiality. The Commission and the subject agreed that his personal appearance before the Commission was not necessary.

The employee has been with DECD for approximately twenty years. From 1960 to 1967 he was substantively involved in matters relating to industrial development. From 1967 to the present, however, his DECD duties have been entirely administrative and have involved the administration of the Department's planning and monitoring programs.

He is a member of the technical advisory committee and Chairman of the Board of the Council. Prior to 1967 when he was involved in industrial development his dues were paid by the State; since 1967 he has personally paid for his membership. During the past thirteen years he has often participated as an instructor in industrial development for the Council's seminars, developing his course materials for both beginning and advanced courses on his own time and taking annual leave days to participate.

The most recent seminar was held in the summer of 1979. The Council received Federal funding through the U.S. Department of Commerce for the seminar. A private firm, under contract with the U.S. Department of Commerce, was the sponsor for the seminar. The payment to the employee came from the private firm. Neither the Council nor the private firm is a contractor with DECD.

The employee was asked by the Council to be Chairman of the seminar's planning committee, to develop seminar topics and to teach an industrial development course offered at the seminar. The payment was offered as a fee for teaching the course.

Section 3-106(a) is a general prohibition against the acceptance of gifts by State officials or employees. Under the Law, a gift is generally defined as the transfer of anything of economic value regardless of its form without adequate and lawful consideration. An exception of 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. First, the exception in section (b) would only permit an employee to accept an honorarium where the acceptance would not "...tend to impair the impartiality and the independence of judgment of the...employee receiving it or, if of significant value, the recipient...employee believes, or has reason to believe, that it is designed to do so...."

Further, although the employee in his advisory opinion request letter calls the payment an honorarium, the Commission in Opinion No. 80-7 adopted the view that the substance and not the form of the payment should control, holding that the term honorarium should generally be applied only to those situations where an official or employee is presented with a gratuitous gift in recognition of some charitable, scientific, educational, artistic, civic or other similar achievement. We believe the honoraria exception is intended to cover those situations where an official or employee is presented with a free and gratuitous gift for which he 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.

Since the payment offered here is a fee for services rendered, i.e., teaching the course, it is not an honorarium and therefore §3-106(b)(8) is irrelevant to a determination of whether this employee accepts this fee. The answer to this question requires our consideration of §3-104, which prohibits employees and officials from intentionally using the prestige of their office for their own private gain or that of another. We interpret this section to prohibit two types of activity. First, the section directly proscribes an employee or official from intentionally misusing the influence of his position. Second, as we explained in Opinion 80-7 the section also prohibits an employee or official from accepting a fee for performing services which are directly and immediately related to his State duties.

In this case the facts do not indicate that the employee used the prestige of his office to obtain the fee. Moreover, we find no facts indicating that the services rendered by the employee, and for which the fee is offered, are directly and immediately related to his official activities since 1967. He has continued independent study in the field and has often been called upon by the Council to serve as an instructor on the basis of the expertise developed on his own time. He does not attend the seminars as a representative of DECD; he pays his own dues and uses vacation time to participate in a professional organization which interests him. He was asked to participate not because he is an employee of DECD, but because he is an active participant in Council activities and through the Council's personal knowledge of his prior service to them.

The Commission therefore finds that there will be no violation of the use of prestige if the employee accepts the fee.

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

Date: May 28, 1980