81.32

OPINION NO. 81-32

An Opinion has been requested from the Administrator of the Division of State Documents concerning whether he may accept an honorarium for his services as a speaker at the Legislative Reference Services Conference (the Conference) sponsored by the Western Council of Libraries.

The Division of State Documents (DSD) is a division in the Office of the Secretary of State. It is responsible for publication of the Maryland Register and the compilation, publication and distribution of the Code of Maryland Regulations (COMAR). The Administrator indicates that he has served for the past three years as Executive Secretary of the Administrative Codes and Registers (ACR) Committee of the National Association of Secretaries of State. He states that this position is a voluntary unpaid position not required as part of his State duties.

The invitation to speak at the Conference was directed to the Administrator as the Executive Secretary of the ACR Committee and he is identified as such in the Conference's tentative program; his State of Maryland position is not identified. He believes that the invitation is the result of his knowledge and reputation on the ACR Committee and his activities conducting two national seminars for the Committee. He intends to be on leave from his State job while he participates in the Conference. He has been offered a $400 honorarium plus expenses.

This situation raises issues under the misuse of prestige provisions and the gift provisions of 3-104 and 3-106 of the Public Ethics Law (Article 40A, §§3-104 and 3-106, Annotated Code of Maryland, the Ethics Law), and involves the application of two prior Ethics Commission opinions relating to the acceptance of honoraria (Opinions No. 80-7 and No. 80-8). 1 In both of these Opinions, we held that the honoraria exception in the gifts section of the Ethics Law (section 3-106(b)(8)) does not apply in situations where the proffered "honorarium" is a payment for services rendered rather than a free and gratuitous gift in recognition of some charitable, civic or similar achievement. Where an honorarium is a payment for services the Commission followed the views of the Board of Ethics (the Commission's predecessor, responsible for interpreting the Code of Ethics) regarding the prohibition against use of prestige of office, holding 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."

In Opinion No. 80-7, we prohibited acceptance of an honorarium offered to an official in return for editing tapes of a conference in which he participated for a Federal regulatory agency. The official had originally participated in the conference on State time and with approval of his superiors, and there was a direct and close relationship between the conference's subject matter and the official's then current responsibilities for his State agency. Opinion No. 80-8 involved an official's participation in a conference sponsored by a national organization concerning subject matter which had not been within his State responsibilities for several years. The official had paid his own dues in the organization, participated in its seminars for several years, and provided his services to the conference on his own, rather than State, time. We found in this situation no direct and immediate relationship between the official's State duties and private activities and allowed acceptance of the honorarium.

Moreover, the Conference is sponsored by the Western Council of State Libraries and is to deal with developments in that area rather than in Maryland. The experience sought from the Administrator relates to activities and knowledge developed by him in activities undertaken on his own, though they are related to his State position. Also, he has been approached and identified solely in his ACR Committee capacity rather than as an official of the State of Maryland. The Administrator's invitation to speak thus appears to have resulted from professional relationships and experience developed, as is to be expected, from his employment, but not directly involving a State of Maryland activity about which his judgment or impartiality could be adversely impacted. Under all of these circumstances, we conclude that his participation in the Conference is not so directly and immediately related to his official duties that participation and acceptance of the proffered honorarium would constitute an improper use of prestige of office as contemplated by section 3-104 of the Ethics Law.

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

Date: August 19, 1981

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1 Reimbursement of expenses would not appear to be a fee for services rendered and, in any case, would seem to be allowable under §3-106(b)(4) of the Ethics Law, which permits acceptance of gifts of expenses relating to conference or panel participation where the acceptance would not tend to or give appearance of being intended to impair the official's impartiality or independence of judgment. The Administrator was thus informally advised by the Executive Director (based on consultation with the Commission) that such reimbursement is allowable.