83.11

OPINION NO. 83-11

An opinion has been requested from an Assistant Attorney General in the Department of Transportation (DOT) concerning whether he may retain a $100 honorarium for a lecture he gave at a course in Maryland construction law sponsored by the D.C. Chapter of the Construction Specifications Institute (CSI).

The Requestor is an Attorney in DOT who is responsible for defending the Mass Transit Administration (MTA) in claims filed against it under Baltimore subway construction contracts. He indicates that his work involves claims and disputes arising under all aspects of the contracts. He states, and his supervisor confirms, that the subway contractors with which he interacts in these cases are generally not Maryland firms. Subway construction involves what he describes as "heavy construction," that is done by only 15-20 firms throughout the country. None of the prime contractors for the subway are local, though there are some local subcontractors.

This inquiry deals with an honorarium the Requestor received from CSI in connection with his participation in the entity's recent course in Maryland construction law. 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 Requestor participated as a lecturer on one evening of a 10-week seminar on Maryland construction law sponsored by CSI's D.C. Metropolitan Chapter. The seminar attendance tends to follow the same breakdown as the entity's membership, apparently attended largely by architects and engineers, as well as several contractors and a few attorneys. The Requestor's 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. His inquiry to the Commission is whether he may retain the payment.

The Requestor indicated that his participation in the course was recommended by the Chairman of the Maryland Board of Contract Appeals, who is familiar with his work through his appearances before the Board of Contract Appeals. He recognizes that, since he has been with the State for five years, his official position was part of the reason for his participation. He indicates, however, that his speech related to the general legal principles related to the "Changes" clause in government contracts. This clause has been standard in federal contracts for many years and the Requestor indicates that there is a substantial body of federal administrative case law interpreting it.

The Maryland "Changes" clause is apparently nearly identical to the federal clause, but there are very few cases from the Board of Contract Appeals dealing with it. The Requestor indicates that his expertise was developed in this area as an attorney with the Army Corps of Engineers doing contract claims before the Armed Services Board of Contract Appeals and the Court of Claims. He states that a significant number of the issues he handles on behalf of the MTA involve the "Changes" clause, though his work covers the whole spectrum of issues likely to be raised under construction contracts such as those involved in the Baltimore subway projects.

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 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 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, it was noted that "more than common subject matter or expertise between State and private employment is required to support a finding of intentional use of prestige of office." This Opinion 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 another Opinion 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 Opinion No. 83-4, however, the Administrator of the Division of Condominium Registration in the Secretary of State's Office was barred from conducting seminars on the Maryland Condominium Law for private legal entities.

A basic criterion reflected in these decisions is whether the fee is for activities that relate directly and immediately to the employee's State duties. In applying this principle to the Requestor's situation we note his substantial non-State background, as well as the fact that the subject of his lecture related to a small part of his State job and one where his expertise was primarily developed during his service with the Corps of Engineers. His lecture did not deal generally with the Maryland law or with practices, procedures or policies followed by his office in connection with his official duties. Nor do the Requestor's responsibilities appear to involve policy-making or the types of public information activities likely to include this type of lecturing as a part of his official duties. We note further the Requestor's statement that all of this activity, including preparation, was done on his own time, and that the participants in the seminar, as local firms not involved in the subway project, are unlikely to be parties to or otherwise involved in cases assigned to the Requestor.

Under all these circumstances, and because we do not think that this activity related directly and immediately to the Requestor's State duties, we conclude that acceptance by him of the proffered payment would not be prohibited by §3-104 of the 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 noted all Opinion references are to Commission Opinions published in COMAR, Title 19A.