August 29, 1989

FACTS:


You represent the College Alumni Association, Inc.,

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(Association) a private, non-profit corporation formed to promote
the interests of the state college and its alumni and to provide
services and programs that benefit ad develop the student, faculty,
staff and student bodies. According to its bylaws, the Association
operates independently in its goal to further the interest of the
alumni, and the Commonwealth. Eligibility for membership in the
Association is available to alumni and others who were enrolled
for two years and whose classes have graduated.

The Association wishes to invite a college coach "to address and
participate in meetings and events of [the Association's]
membership." Specifically, the Association would like the coach to
speak at alumni functions located off campus. The Association
wishes to provide the coach with honoraria for these formal
presentations. Funds for the honoraria could be derived solely
from private sources. An agreement between the Association and the
coach would provide honoraria for each speaking engagement for four
years. The Association maintains that the coach's speaking fee
comports to fees that would be paid to a similarly qualified
individual. The preparation and delivery of the speeches will be
accomplished outside of the coach's regular working hours.

The coach states that he has no official duties concerning the
Association. He states that any formal speaking engagements he
presents to the nation would be outside of his college duties. For
example, he would not give a formal presentation while he is out
of town for a school athletic event.

The Legal Counsel that the state college has provided his
opinion that the proposed series of speaking engagements would "not
fall within the scope of the coach's official duties." He concludes
that the coach's duties "would allow and perhaps require, the coach
to make informal presentations to local groups in the immediate
campus area during regular working hours as he determines. This
is distinctly different from the proposed program which involves
formal presentations on the coach's personal time off campus
without the involvement of college resources and at a time and
place determined by the Association." Additionally, the Counsel
states that the speaking program would not be connected to any
fundraising activity by the Association. The coach joins the
Association's request for this opinion.


QUESTION:


May the Association offer to the coach and may he accept
honoraria for four engagements per year, for four years in exchange
for the coach's formal speaking presentations off campus as
arranged by the Associations.[1]


ANSWER:


The honorarium may be offered and accepted only if the speeches
meet the standards enurnerated below.


DISCUSSION:


In his capacity as a college coach, the coach is considered a
"state employee" within the meaning of the conllict law, G.L.c.
s.1(q).

Section 3(a) prohibits an offeror of an item of substantial
value from giving anything valued at $50 or more to a present or
former state, county or municipal employee for or because of any
official act performed or to be performed by such employee[2] A
corresponding provision under s.3(b) prohibits the public employee
from accepting an item of substantial value for or because of his
official duties. The Commission has previously stated that s.3
prohibits the offering of a gift of substantial value to a public
employee where there is a connection between the motivation for the
gift and the employee's duties. See, In the Matter of George
Michael
, 1981 SEC 59. Section 3 also prohibits additional
compensation to a public employee for or because of his official
duties. The preventative purpose of s.3 is to preclude public
employees from "temptations which would undermine the impartial
performance of their duties, and permit multiple remuneration for
doing what employees are already obliged to do a good job." Id. at
p. 68. See also, EC-COI-88-20; 84-1O1.

Under s.3, the Association would be prohibited from offering
and the coach would be prohibited from accepting honoraria of
substantial value for speaking engagements if such speeches were
considered as part of his official college duties. Under the facts
presented, however, the coach states he has no official duties with
respect to the Association. The college Legal Counsel has also
determined that the Coach's proposed formal presentations to the
Association would fall outside the scope of his official college
duties. The Counsel notes that the Coach's official position may
well require him to "make informal presentations" to local groups
during his normal working hours, he concludes that this differs
from the Coach's presentations to the Association because they
would be formal speeches presented off campus and on his own
private time.

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The Commission will ordinarily defer to an appointing
official's interpretation of a public employee's job description
unless it is unreasonable or it would frustrate the purposes of
c. 268A. See, EC-COI-88-17; 83-137. The Commission thus defers to
the counsel's interpretation that coach's official duties do not
include formal presentation on his private time off campus. See,
EC-COI-88-10
.[3]

Section 23, the standards of conduct provision, applies to a
public employee's actions which create the appearance of a
conflict of interest. Section 23(b)(2) prohibits a state, county
or municipal employee from using his official position to secure
for himself or others unwarranted privileges or exemptions of
substantial value which are not properly available to similarly
situated individuals. The Coach would violate this section by
using his official position to obtain the series of Association's
speaking engagements, worth more than $50, if it is unwarranted
and not available to similary situated individuals.

Under s.23, the Commission has on numerous occasions
considered issues pertaining to speaking engagements given by
public employees and the receipt of honoraria. See, Commission
Advisory No. 2; EC-COI-80-28
pertaining to members of the general
court giving speeches) EC-COI-86-11 (judge would violate
s.23(b)(2) if he accepted honoraria of substantial value while
also receiving his regular state compensation). In EC-COI-82-43,
the Commission enumerated four criteria which must be met in
order for a speaking engagement to be permissible under s.23.
The four requirements are:

1. state supplies or facilities not available to the general
public are not used in the preparation or delivery of the
address;

2. state time is not taken for the preparation or delivery of
the address;

3. delivering the speech is not part of the state employee's
official duties; and

4. neither the sponsor of the address nor the source of the
honorarium, if different, is a person or entity with which the
state employee might reasonably expect to have dealings in his
official capacity.

Under the facts presented, the Coach appears to meet all four
criteria.

An additional issue remains, however, whether the series of
speeches by the coach to the Association would be legitimate. As
outlined in {Commission Advisory No. 2}, the Commission considers
several factors in determining whether a speaking engagement is
legitimate. See, EC-COI-83-87. In order for a speaking
engagement to be considered legitimate, it must be:

1. formally scheduled on the agenda of the meeting or
conference;

2. scheduled in advance of the speaker's arrival at the meeting
or conference;

3. before an organination which would normally have outside
speakers address them at such an event; and

4. the speaking engagement must not be perfunctory, but should
significantly contribute to the event, taking into account such
factors as the length of the speech or presentation, the expected
size of the audience, and the extent to which the speaker is
providing substantive or unique information or viewpoints.

If these four factors are not satisfied, no fees or expenses may
be received.

In drafting your proposed speaking arrangements with the coach,
you may have been unaware that the legitimacy of the speeches would
be a factor in determing whether the honoraria would be permitted
under G.L. c. 268A. If this is so, the Commission anticipates that
you will take the opportunity to evaluate the proposed honoraria
in light of the considerations enumerated above. [4]

---------------

[1] The Commission presumes, for the purposes of this opinion, that
the Association is a private, nonprofit corporation which is not
considered a state entity for the purposes of the conflict law.
See, EC-COI-89-18.

[2] See, Commission Advisory No. 8.

[3] To the extent that the coach's proposed activities may be
considered as outside employment, no state agency would appear to
be a party to or have a direct and substantial interest in the
matters for which he will be receiving compensation. G.L. c. 268A,
s.4.

[4] We note that the advice contained in this opinion is limited
to the application of G.L. c. 268A to the facts presented.
Additional rules or regulations, such

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as those promulagated by the athletic associations to which the
college belongs, may also be applicable.

End Of Decision