STATE OF NEW YORK
STATE ETHICS COMMISSION

Advisory Opinion No. 90-9: Application of Commission's Regulations on Limitations on the Receipt of Honoraria.

INTRODUCTION

The following advisory opinion is issued in response to an inquiry from a [State agency] as to the application of the regulations of the State Ethics Commission ("Commission") on Limitations on the Receipt of Honoraria to an employee who has been offered passes for entrance to Continuing Legal Education ("CLE") programs sponsored by the New York State Bar Association in return for his participation as a speaker in two CLE programs in the area of his expertise in State service.

Pursuant to the authority vested in the Commission by §94(15) of the Executive Law, the Commission hereby renders its opinion that the regulations on Limitations of the Receipt of Honoraria permit the State agency to accept the passes, in lieu of permitting the employee to receive the passes, and the agency may then determine to whom the passes should be distributed for the purpose of attending future CLE programs. The acceptance of passes by the State agency is consistent with the letter and spirit of the regulation which permits acceptance of payments of honoraria to the State general fund in lieu of payment directly to the individual, when the service provided for which the honorarium was offered is related to the covered individual's official duties or responsibilities.

BACKGROUND

The [requesting individual] requests an opinion as to whether it was appropriate for him to accept passes to New York State Bar Association CLE programs which were offered to him in lieu of an honorarium for speaking at two of the CLE programs. He stated in his letter of request that the [State agency] is "an independent, cabinet-level agency established to advise the Governor and the Legislature on the development and implementation of state policy regarding people with disabilities."

The [requesting individual] has been asked, because of his expertise in matters relating to disabilities, to participate in several CLE programs. He is currently a member of the NYS Bar Association's Committee on Physical and Mental Disability. The program, in which he was most recently participating and which generated this request, was entitled, "Representing People with Disabilities."

The past practice of the NYS Bar Association has been to "reward" or "pay" the speakers who participate in CLE programs by giving them passes to future CLE programs. The passes are usable by any person who wishes to use them.

The [requesting individual] asked whether the passes would be considered "honoraria" which he could accept as defined under the current regulations of the Commission, and whether he may continue to accept the passes for use by the agency.

DISCUSSION

The Commission issued final regulations governing limitations on the receipt of honoraria and reimbursement for travel expenses which were effective April 11, 1990.1 The regulations provide the circumstances under which a State employee may accept honoraria. The regulations provide a definition for honorarium, which is the following:
(c) "Honorarium" shall mean

(1) a payment, fee or other compensation to a covered individual for services rendered by a covered individual not related to the covered individual's official duties, which payment, fee or other compensation is made as a gratuity, or as an award or honor; e.g., for delivering a speech, writing or authoring an article or publication or attending a meeting or conference, and

(2) a payment, whether to a lodging site or a provider of transportation, for travel expenses made to or on behalf of an individual, or reimbursement made to the covered individual for travel expenses incurred, for such services rendered by a covered individual not related to the covered individual's official duties.

(3) "Honorarium" shall not mean

(i) a travel payment in the form of a gift from a relative; or

(ii) a payment in lieu of an honorarium made to the State or travel payment provided by non-governmental sources for activities related to a covered individual's official duties; or

(iii) compensation in the nature of salary, wages or fees for services for non-State related work performed or travel payment provided by non-governmental sources for activities related to a covered individual's appropriate or authorized outside employment; or

(iv) a payment, fee, travel payment or other compensation provided to a covered individual who provides services for or acts on behalf of an employee organization certified or recognized under Article 14 of the Civil Service Law to represent such covered individual.

The passes from the Bar Association for services provided which are related to the covered individual's job duties or responsibilities clearly are not honoraria which may be received under the regulations.

In this case, the Bar Association decided to compensate the [requesting individual] for speaking in the area of his professional expertise on disabilities, which is part of his official duties, by giving him passes to future programs. The regulations of the Commission address the conditions under which such passes may be accepted when offered as a payment in lieu of an honorarium to the State under circumstances where the offered honorarium is for presentation of a program or delivery of a speech which relates to the covered individual's official duties. Part 930.4 of the regulations states the following:

Conditions for limited acceptance by the State of a payment in lieu of an honorarium.

An approving authority may approve payment in lieu of an honorarium, and the use of State equipment, personnel and time to prepare a speech or publication or render a service, provided that the payment in lieu of an honorarium will be made by the granting organization or individual directly to the general fund of the State or to such fund as is appropriate for a public authority, public benefit corporation or commission not funded through State general fund appropriations, and the service for which an honorarium was offered is related to the covered individual's official duties or responsibilities.

There is no distinction between the receipt of a payment of money and payment received in other forms, such as passes or other things of value, for the purpose of this regulation. The State agency, which otherwise would transmit an honorarium to the general fund, may receive payment or compensation in the form of these passes only if the passes are received by the State agency, distributed by the State agency, for purposes determined to be in the interest of the agency, to those employees approved by it to take such courses and the organization providing the "passes" permits any bearer of these passes--not just the deliverer of the speech--to utilize the passes. In that way, the State, and not the individual for whom the passes were provided, will benefit from the services of its employee.

CONCLUSION

The Commission has determined that the requesting individual may not receive an honorarium as a gratuity for speaking engagements which are related to his official duties or responsibilities. The receipt of such benefits can, however, be covered under the regulation as a payment in lieu of an honorarium. Accordingly, the State employee who may be eligible to receive such passes shall either not accept such passes or inform the NYS Bar Association that it may, in lieu of presentation to the individual, provide the passes for the use of the State agency as it determines is in its best interest.2

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion. All concur:

Elizabeth D. Moore, Chair

Angelo A. Costanza
Norman Lamm
Robert B. McKay, Members

Dated: June 21, 1990


ENDNOTES

1. The regulations are found at 19 NYCRR Part 930, and were published in the April 11, 1990 edition of the New York State Register.

2. It is our finding that passes of this nature may appropriately be accepted and distributed by the employing State agency rather than given to the "general fund" of the State because the passes are not actual dollars. The passes should be fairly distributed by the State agency from which the services of the individual were requested in order to reduce its costs in sending its lawyers to future continuing legal education programs which the State agency determines are in its interest.