Acting Director (00)

Re: Receipt and Donation of Honorarium for a Speaking Presentation Related to VA Research

Dear Ms. Z:

This is written in Response to the request for a legal opinion by your office on March 29, 2000 regarding questions posed by Dr. X, VA Staff Physician in ABC City regarding the above subject matter.

As it appears he may be confusing issues involving honoraria for outside professional activities with issues regarding supplementation of salary as compensation for services performed as a VA employee, I provide the following underlying principles.

Generally, under the Standards of Ethical Conduct for Employees of the Executive Branch, codified at 5 C.F.R. Section 2635, an employee is prohibited from engaging in outside employment, or any other outside activity, which conflicts with official duties. Employees must also avoid activities which create an appearance of violating any of the ethical standards. An activity conflicts with an employee’s official duties if it is prohibited by statute or regulation.

The acceptance of an honorarium is no longer precluded by the honoraria ban. In a decision on February 22, 1995 the U.S. Supreme Court held that the honoraria ban was unconstitutional as applied to Title 5 employees under the grade of GS-16. Later it was determined that the court’s holding on the honoraria ban would also apply to Title 38 employees.

However, even in the absence of an honoraria ban, there is a prohibition against an employee receiving compensation, including honoraria, for teaching, speaking or writing on subject matter which relates to the employee’s official duties from any source other than the government. 5C.F.R. Section 2635.807. In addition, acceptance of compensation from any source other than the federal government for services which are considered to be performed “as an employee” can result in criminal liability under 18 U.S.C. Section 209.

Circumstances in which teaching, speaking or writing will be considered to “relate to an employee’s official duties” include, but are not limited to: 1) where the activity is undertaken as part of the employee’s official duties and 2) where the subject matter deals in significant part with any matter to which the employee is currently assigned or to which the employee has been assigned during the previous one year period. 5 C.F.R. Section 2635.807.

Accordingly, I answer the questions posed by Dr. X in the order presented under the facts as set forth below:

1. “I understand that I may not accept honoraria while on official time. However, may I accept honoraria under these circumstances?”

Dr. X has stated that he will attend a meeting of the American Society of XYZ to be held on April 27 through 29, 2000 in San Diego, CA. His travel and lodging will be paid through VA travel funds. He stated that he plans to request an “authorized absence” for official duty time on Thursday, April 27, 2000 and Friday, April 28, 2000. My understanding is that he will request administrative leave as opposed to annual leave.

On Saturday, April 29, 2000, he will give a speaking presentation at the XYZ meeting which is based on research he has conducted at the VA. In my telephone conversations with him regarding this matter, he explained that a significant portion of the presentation will be based on VA research conducted within the last year, including a slide presentation of data from that research. The XYZ meeting has offered him an honorarium of $300.00.

Given the subject matter of his speaking presentation, he may not accept the honorarium under any circumstances. Since his presentation is based in significant part on research he has conducted at the VA, whether or not he is speaking “on a non-duty administrative day off,” this speaking engagement would be considered to “relate to” his official duties. Receipt by him of any honorarium or other form of compensation would be considered a conflict of interest in violation of 5C.F.R. Section 2635.807. It may also result in criminal liability under 18 U.S.C. section 209 for acceptance of compensation from a source other than the federal government for services performed “as an employee,” particularly where the travel and lodging expenses associated with this presentation are being paid for by the agency.

2. “Is there any prohibition to a donation by XYZ company to NPC, as described?

The donation to NPC that he has described would be in the form of a gift directed “for use in (his) VA research projects.” Despite the fact that the donation would be administered by the state chartered non-profit Research Corporation, NPC, any circumstance where he would have the authority to direct the use of the honorarium constitutes receipt of the compensation, particularly where it would be directed to his own VA research. He would again violate 5 C.F.R. Section 2635.807, as well as the criminal statute, 18 U.S.C. Section 209.

3. “Please also advise me whether these action would be otherwise considered a conflict of interest”

Yes. See above.

Thank you for requesting a legal opinion regarding these matters. I hope that I have addressed your concerns. If you have any further questions, please contact me at (415) 750-2288.

Very Truly Yours,

CASEY L. MERRILL
Staff Counsel

Cc: VA Palo Alto Health Care System