COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 88

Receipt of Mementos or Other Tokens Under the Prohibition Against the Receipt of Honoraria for Any Appearance, Speech, or Article.

A judge has asked the Committee whether a decorative table clock, made by a well-known manufacturer, presented to the judge in connection with a speech at a program sponsored by a nonprofit institute falls within the definition of "honorarium" as defined in the Judicial Conference Ethics Reform Act Regulations on Outside Earned Income, Honoraria, and Outside Employment, promulgated under Title VI of the Ethics Reform Act of 1989, 5 U.S.C. app., §§ 501, 505. The Committee has also been asked whether it is permissible to be reimbursed for travel expenses in connection with the speech.

Section 4(a) of the Judicial Conference Regulations on Outside Earned Income, Honoraria, and Outside Employment provides that no judicial officer or employee shall receive an honorarium and Section 4(b) defines "honorarium" to mean:

a payment of money or anything of value (excluding or reduced by travel expenses as provided in 5 U.S.C. app. 7, §§ 505(3) and (4)) for an appearance, speech or article by a judicial officer or employee, provided that the following shall not constitute an honorarium:
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(2) Compensation received for teaching activity . . . approved pursuant to Section 5 hereof.
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(7) A suitable memento or other token in connection with an occasion or article, provided that it is neither money nor of commercial value.

Guide to Judiciary Policies and Procedures, Volume II, Chapter VI, Part H.

The Committee notes at the outset that a presentation to a nonprofit institute may constitute a teaching activity that is exempt from the definition of "honorarium." The commentary to the regulations states that "[t]eaching may also include participation in programs sponsored by bar associations or professional associations or other established providers of continuing legal education programs for practicing lawyers." If the institute is an established provider of continuing legal education programs for practicing lawyers, a presentation sponsored by it would appear to be a teaching activity. If so, the receipt of a memento or other token would not constitute an honorarium for purposes of the Ethics Reform Act.

Moreover, assuming that the presentation was a teaching activity and the judge had no knowledge that he or she would receive anything other than expenses prior to giving the presentation, the receipt of a memento or other token at or following a presentation would not, in the Committee's view, convert the presentation into "compensated teaching" that required prior approval. Under these circumstances, the ethical propriety of accepting the gift is to be determined under the Judicial Conference Ethics Reform Act Gift Regulations, the Code of Conduct for United States Judges gift provisions of Canon 5C(4) and Canon 2's prohibition of conduct giving the appearance of impropriety. If the institute is a bona fide regular provider of continuing legal education programs, the Committee believes that receipt of a memento or other token would be a permissible gift under the Gift Regulations and Canon 5C(4) and would not violate Canon 2.

Assuming that the presentation was not a teaching activity, the determinative issue is whether the gift would constitute an "honorarium" or a "suitable memento or other token." In order to be a suitable memento or token, the item received must be (1) something other than money and (2) without "commercial value." The prohibition on receiving anything of "commercial value" is intended to foreclose compensation in kind for a speech or appearance as a substitute for the payment of cash. A judge could not properly receive, for example, securities or other resalable property as compensation for a speech. The regulations must be construed with this overall purpose in mind.

In this context, without "commercial value" does not refer to the absence of any commercial value in the hands of the manufacturer of the article given or in the hands of the sponsor of the presentation. Any article, including the letter opener referred to in the commentary to the regulations as an example of a suitable memento, will have some commercial value in the hands of the manufacturer or sponsor, and such an interpretation would render the "suitable memento or other token" exception meaningless. Rather, the appropriate question, is whether the gift would have commercial value in the hands of the judge if accepted. Accordingly, where the circumstances are such that the judge could not, consistent with the intent of the donor, transfer the tendered article to another, the article has no commercial value within the meaning of the regulations.

This does not mean that a judge is free to accept any gift in connection with a presentation, no matter what its commercial value in the hands of the manufacturer or the sponsor. The article tendered must be "suitable" as a reminder of the occasion and must be in the nature of a "token." This means that a judge may accept a gift in connection with an appearance, speech, or article if its value to the judge is solely as a reminder of the occasion, and that a judge may not accept such a gift if it confers any other benefit upon him or her. While the "suitability" of a memento has no necessary relationship to the commercial value of the gift in the hands of the manufacturer or sponsor, if that value is in the neighborhood of $250 or less, it will be unlikely to have either a utilitarian or a prestige value to the judge beyond its value as a reminder of the occasion.

Assuming that the gift is a "suitable memento" and not an "honorarium," there remains the issue of whether it is a permissible gift under the Gift Regulations and Canon 5C(4). Assuming that the gift is properly viewed under all the circumstances as a gift from the institute as an entity and not as a gift on behalf of identifiable lawyers, the receipt of the gift would be permissible under the Gift Regulations Section 5(j) and Canon 5C(4) which authorize the receipt of a gift so long as:

(i) the donor has not sought and is not seeking to do business with the court or other entity served by the judicial officer or employee; or
(ii) in the case of a judge, the donor is not a party or other person who has come or is likely to come before the judge or whose interests may be substantially affected by the performance or nonperformance of his or her official duties. . . .

We now turn to the propriety of accepting reimbursement of travel expenses in connection with a presentation of this kind. Under the provisions of 5 U.S.C. app., § 505 cited in Regulation § 4(b) supra, which excludes travel expenses from the definition of "honorarium," the term "travel expenses" means "necessary travel expenses incurred by such individual (and one relative)" and includes "the cost of transportation, and the cost of lodging and meals while away from his or her residence or principal place of employment." Thus, acceptance of reimbursement for the costs of transportation, lodging, and meals is clearly appropriate.

June 30, 1992
Revised January 16, 1998