81.25

OPINION NO. 81-25

The Commission has been requested to provide advice as to whether a State employee (the Requestor), participating in his official capacity in a private profit-making seminar, may direct the sponsor to make a donation to a State fund, in lieu of payment to him for his services.

The Requestor is employed in the Attorney General's Office, assigned to provide legal services to the Maryland Environmental Service (MES). Through a series of circumstances involving his official State responsibilities, he was requested to participate as a speaker in a seminar sponsored by a private profit-making firm which is a consulting firm in the environmental field. He indicates that the request grew directly out of his activities as a State employee and that he intends to participate on State time in his official capacity as an Assistant Attorney General. He states that officials in the Attorney General's office approve of his participation and the MES officials encourage it, as they believe it is supportive of the agency's mission.

The Requestor understands that under the circumstances, and consistent with Ethics Commission Opinions No. 80-7 and 80-8, he cannot accept direct payment from the sponsor for his services. He believes very strongly, however, that private firms should not be able to use, for their own gain, the services and expertise of State employees without being required to pay some compensation. He has therefore suggested to the sponsor that it compensate the State for his services by making a donation to the Maryland Hazardous Substance Control Fund, a State entity managed by the Department of Health and Mental Hygiene. A donation of $50-125 is apparently planned by the sponsor. The donation would be made directly to the Fund and would not mention or refer to the Requestor in any way.

The issue here is application of the principles of Commission Opinions No. 80-7 and 80-8, which involved interpretation of sections 3-104 and 3-106 of the Public Ethics Law (Article 40A, §§3-104 and 3-106, Annotated Code of Maryland, the Ethics Law). Basically, the Commission concluded in these Opinions that the prohibitions against acceptance of gifts (and the exceptions thereto) of§3-106 of the Ethics Law do not apply where payment is offered as a fee for services rendered, and that the prestige of office provisions of§3-104 of the Law prohibit an official or employee from accepting a fee for services which are directly and immediately related to his State duties. Also, as a follow-up to Opinion No. 80-7 (where the employee was advised that acceptance of a $500 editing fee would be improper), the requestor in that case was advised that the fee also could not be paid to him solely as a conduit for donation to a charitable entity. The donor in that case was not in a position to make a direct donation. The Commission's view was that acceptance of the fee, even if it were immediately donated to another, would constitute improper acceptance, and, even though donated, could otherwise inure to the employee's personal benefit.

The situation here, however, does not involve direct payment to an employee, or any recognition of his involvement in the donation. Section 3-106 of the Ethics Law would not appear to apply, partly since the donor does not apparently fit the criteria in§3-106(a) (i.e., it does not do business with the State or the employee's agency and is also apparently not regulated by either). Also, the donation does not appear to be a gift, as contemplated in§3-106 and as discussed in Opinions No. 80-7 and 80-8. We further conclude that the provisions of§3-104 also do not apply in this situation. This section prohibits the intentional use of prestige of one's office for his own personal gain or that of another. The donation here is to benefit, not the Requestor himself, or a private party, but an entity of the State.

Whether requesting this type of donation in recognition of services of State employees is acceptable as a legal matter or desirable from a policy standpoint, is, of course, a question for the Attorney General and the employing State agency. Since neither the Requestor nor any other private party is in any way involved in or would benefit from the donation, however, it is our view that it would not violate the prohibitions of§3-104 of the Ethics Law. Nor do we believe, in these circumstances, that the Requestor's appearance at the seminar, with the approval of his agency and his supervisors, should be viewed as an improper use of his office for the benefit of another.

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

Date: June 23, 1981