83.09

OPINION NO. 83-9

An opinion has been requested as to whether the Chairman of the Board of Contract Appeals (the Chairman) may accept a $100 honorarium for a lecture he gave in a Maryland Construction Law course sponsored by the D.C. Metropolitan Chapter of the Construction Specifications Institute (CSI).

The Maryland State Board of Contract Appeals (the Board) was established in the State Procurement Law enacted in the 1981 Session of the General Assembly (Article 21, Annotated Code of Maryland). It roughly represents an extension of the Department of Transportation (DOT) Board of Contract Appeals to cover all agencies in State government. The Board is an independent quasi-judicial agency that has jurisdiction

to hear and decide all disputes arising under a contract with any State agency, or as a result of a protest leading to the award of a contract with any State agency, except for architect or engineer contracts entered into pursuant to [Article 21, 9-101—9-218,Annotated Code of Maryland].

Prior to his State service, the Chairman was employed with the Washington Metropolitan Area Transit Authority (WMATA), handling construction contract disputes and participating in the government contract bar in the Washington metropolitan area. At this time he participated in a Maryland State Bar Association Committee that assisted in the early development of the Maryland Procurement Law. He subsequently became employed as the Chairman of the DOT Contract Appeals Board and was in this capacity significantly involved in the development of the Procurement Law. He also worked on the Board's portion of the State's procurement regulations and commented on other parts of the regulations (Title 21 COMAR). The Chairman and members of the DOT Board were continued by the Law as members of the new Statewide Board.

The Chairman participated as a lecturer in a course on Maryland Construction Law sponsored by the D.C. Metropolitan Chapter of the CSI. A D.C. law firm, some of whose members were his colleagues when he was employed with WMATA, assisted CSI in developing the course. Apparently none of the attorneys in the firm appear before the Board. His contribution dealt with the Maryland Procurement Law generally, reviewing the background of the Law's development, and its requirements as implemented in the procurement regulations. His lecture included discussion of the Board's procedures, but no discussion of specific decisions or analysis or commentary on the policies or trends reflected in the decisions. He believes he was invited to participate partly because of his contacts with attorney cosponsors and also because of his known experience in and involvement with the development of the Law. He indicates that he also gave a similar lecture a few years ago for the Bar Association's continuing education program (MICPEL), and recognizes that to some extent his participation is related to his position as Chairman of the Board.

The Construction Specifications Institute is a national non-profit organization having about 16,000 members, in 152 Chapters. Its local groups are supported by Chapter dues; and this particular Chapter's jurisdiction encompasses Northern Virginia, D.C., and the Maryland/D.C. suburbs. The organization's function is described by its President as primarily educational, involving periodic presentations of seminars within the area that are designed to improve communication and the general quality of construction specification documents. The membership is roughly 55% professional (architects, engineers, specification writers) and 45% industry (contractors and other vendors who use the specifications), with a few students. The seminar attendance apparently tends to follow this breakdown; the Chairman recalls that his lecture was attended largely by architects and engineers, but also included several contractors and a few attorneys. His participation, and apparently that of other speakers, was originally to be non-compensated, though copies of the proceedings were to be provided. The honoraria were provided by CSI only after the course was completed and it was determined that sufficient income was available to compensate the lecturers.

The issue presented by this request is application of the principles applied by us in several cases dealing with fees or "honoraria" proffered in connection with lectures, speeches, or similar or related activities. We originally addressed this issue in our Opinions No. 80-7 and 80-8.1 In these Opinions we adopted the general approach of our predecessor, the Board of Ethics, concluding that payment provided in return for services rendered is not a gift under §3-106 of the Public Ethics Law (Article 40A, §3-106, Annotated Code of Maryland, the Ethics Law), and not acceptable under the honoraria exception to the gift prohibition in §3-106(a). We have thus generally concluded that such payments should be treated as fees for services rendered and their acceptance governed by a determination under §3-104 of the Ethics Law as to whether the activity flowed directly and immediately from the individual's State duties.

In Opinion No. 80-7 an official was prohibited from accepting a $500 fee for editing tapes related to a seminar that he attended as a State employee. In No. 80-8 acceptance of a fee was allowed, since the employee's then-current duties were not related to the subject of the seminar, and the employee had maintained his own, clearly private, affiliation with the sponsoring entity. We have also applied these principles in several subsequent opinions. In Opinion No. 81-32, for example, we approved the acceptance of a fee by the Administrator of State Documents for his participation in a Legislative Reference Services Conference sponsored by the Western Council of Libraries. In other Opinions we allowed an employee of the Maryland Training and Employment Office to have outside employment with an out-of-state firm involved in the same federal program as his State agency. (Opinion No. 81-33.) A State policeman who received State training in a subject was also permitted to have outside employment teaching a course in the same subject in Albany, N.Y. for the International Association of Chiefs of Police. (Opinion No. 81-36.)

In a more recent opinion, however (Opinion No 83-4), the Administrator of the Division of Condominium Registration in the Secretary of State's Office was advised not to conduct seminars on the Maryland Condominium Law for private legal entities. The Requestor in this Opinion held a significant and responsible position in his program, interpreting, if not directly making, program policy. His proposed outside activity related directly to the subject matter of his State duties, and his audiences would have been composed of persons who could reasonably have expected to be dealing with him in his official capacity. Moreover, the individual's supervisor indicated that the type of public education involved was appropriately considered as part of his official duties.

We believe that the considerations presented in Opinion No. 83-4 are equally applicable here to bar the Chairman's acceptance of the payment from CSI. The Chairman is the chief official in a new and highly visible Maryland agency, one that has a central role in interpreting and applying the State's new comprehensive Procurement Law. He was significantly involved in the development of that Law, as a State official, and also of portions of the regulations implementing it. Even though his lecture avoided specific decisions and approaches of the Board, it did deal with the Board's procedures and also generally with the Law that is its primary subject responsibility. Moreover, the individuals participating in the course were persons interested in and likely to be involved with the Maryland Procurement Law, possibly appearing before the Board in connection with bid protests or contract claims or disputes. Also, the Chairman might reasonably be expected to do this type of public information activity as part of his job.

Given these circumstances, we conclude that his participation in the course related directly and immediately to his official duties, and that acceptance of a payment from CSI is barred by §3-104 of the Ethics Law.

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

Date: April 21, 1983

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1 Unless otherwise specifically noted, all Opinion citations are to Commission Opinions published in COMAR, Title 19A.