Attendance at Events, Acceptance of Honoraria, Acceptance of Compensation for Published Works, and Acceptance of Things of Value
Proposed Amendments: N.J.A.C. 19:61-6.2, 6.4, 6.5, 6.7, and 6.9
Proposed New Rule: N.J.A.C. 19:61-6.10
Authorized By: State Ethics Commission, Rita L. Strmensky, Esq., Executive Director.
Authority: N.J.S.A. 52:13D-12 et seq.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2007-252
A public hearing concerning this proposal will be held on:
Date: Tuesday, August 28, 2007
Time: 9:00 A.M. to 12:00 P.M. or close of comments, whichever occurs first
Location: Room 218
Mary G. Roebling Building
20 W. State Street
Trenton, New Jersey 08608
Please call the State Ethics Commission at (609)292-1892 if you wish to be included on the list of speakers.
Submit written comments by October 5, 2007 to:
Kathleen C. Wiechnik, Esq.
Legal Specialist
State Ethics Commission
P.O. Box 082
Trenton, New Jersey 08625-0082
ethics@ethics.state.nj.us
The agency proposal follows:
The Commission has determined that its rules must be amended to recognize the unique nature of the academic setting and the difficulty inherent in defining "official duties" for faculty and researchers at New Jersey's State colleges and universities. Faculty tenure is based on research, writing, and various forms of service within the institution and the community at large. Many of these activities take place outside the normal eight-hour workday.
The Commission recognizes that the mission of the State colleges and universities does differ significantly from that of the typical State agency. The distinction between official and personal capacities is easily discernible in the State agency situation where invitations are almost always extended to the State official because of his or her official position. This is not necessarily the case in the academic arena. Obviously, a professor is acting in his or her official capacity when delivering a classroom lecture. However, his or her role is less clear in other contexts.
In light of these acknowledged distinctions and pursuant to its general rulemaking authority, N.J.S.A. 52:13D-21, the Commission proposes to amend N.J.A.C. 19:61-6 to establish standards applicable to State college and university professors and researchers regarding attendance at events, acceptance of honoraria, academic prizes and other things of value, published works, and disclosure. The amendments regarding acceptance of honoraria, academic prizes and other things of value and published works are based, in part, on the contract between the State and the Council of New Jersey State College Locals, AFT, AFL-CIO, effective July 1, 2003 through June 30, 2007, Article XXXIII, Copyright Ownership. That article expressly disclaims State or university ownership of copyright in scholarly or aesthetic works, subject to several exceptions. Therefore, an honorarium for speaking at a scholarly event can be seen as payment for orally sharing the intellectual property of the faculty member. Thus, such a payment does not fall within the ambit of N.J.S.A. 52:13D-24 and should be accommodated in the Commission's rules.
In addition, the Commission proposes to amend a definition at N.J.A.C. 19:61-6.2 that applies to all State agencies. At N.J.A.C. 19:61-6.2, the Commission has amended the definition of "interested party" to include any grantee or grantor of a State official's agency or any employee, representative or agent thereof. The Commission and State Executive branch agencies have long regarded grantees and grantors as interested parties, and this amendment formalizes that long-standing practice.
At N.J.A.C. 19:61-6.2, a definition for "scholarly capacity" has been added. This definition will accommodate the unique characteristics of academia and would be applicable to individuals, mainly faculty members and researchers, at State colleges and universities who perform pedagogical, academic, artistic, educational or scholarly activities in the course of their employment or appointment.
At N.J.A.C. 19:61-6.4 and 6.5, the proposed amendments would permit State officials acting in a scholarly capacity to receive a direct or indirect benefit from an interested party or an entity other than an interested party when that State official is attending, participating in, or making presentations at colloquia, seminars, conferences or similar scholarly gatherings. The direct or indirect benefit associated with such events may include the acceptance of travel and subsistence expenses and allowable entertainment expenses; an honorarium, academic prize, or other thing of value may be accepted if the honorarium, academic prize or other things of value reflects payment for orally sharing the State official's own intellectual property. Examples of these situations are also added.
At N.J.A.C. 19:61-6.7, the proposed amendment would allow a State official acting in a scholarly capacity to receive compensation for published work(s) created as part of his or her official duties. This section also makes clear that a faculty member is permitted to require the use of his or her own textbook in a course that he or she teaches. However, monies resulting from such use must be donated to the college or university or other non-profit institution. A textbook authored by a faculty member may be utilized in a course other than his or her own if the use of the textbook is approved by a committee set up for this purpose. Neither the faculty member nor his or her subordinate may participate in such committee.
The term "from an interested party" is being deleted from the heading of N.J.A.C. 19:61-6.9 because the rule is universal in its application and is not limited to things of value offered or given by interested parties. The proposed amendments at N.J.A.C. 19:61-6.9 exempt State officials acting in a scholarly capacity from the prohibition against receiving things of value, including honoraria or academic prizes if the honoraria, academic prizes or other things of value reflect payment for orally or verbally sharing the State official's own intellectual property or acting in an editorial capacity for a journal or other publication or reviewing journal or book manuscripts, or grants or contract proposals, or participating in accreditation or other peer review activities. The proposed amendments also exempt compensation for published works from the general prohibition against solicitation or acceptance of any thing of value, consistent with the proposed amendments at N.J.A.C. 19:61-6.7.
The proposed new rule at N.J.A.C. 19:61-6.10 requires a State official acting in a scholarly capacity to annually disclose, to his or her department head, any travel, subsistence or entertainment expenses, honoraria, academic prizes and awards, or other things of value received in the previous calendar year that were related to activities performed in his or her scholarly capacity. Compensation, except for salary from his or her employing institution, earned in relation to work performed in connection with his or her scholarly capacity must also be disclosed. Sources of benefits, honoraria, compensation, etc. must be identified. The proposed new rule also requires that each State college and university forward copies of the disclosure forms annually to the Commission.
It is anticipated that the amendments and new rule will enable the Commission to continue to administer and enforce the Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq., to the benefit of the public. The functioning of the Commission has positive consequences to members of the public and to public officials and employees who need to hold the respect and confidence of the people.
The proposed amendments and new rule are not expected to have an economic impact on other State agencies or on the Commission.
Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
19:61-6.2 Definitions
The following words and terms, as used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
. . .
"Interested party" means:
1. (No change.)
2. Any grantee or grantor of the State official's agency, or employee, representative or agent thereof;
Recodify existing 2.-4. as 3.-5. (No change in text.)
. . .
"Scholarly capacity" means any pedagogical, academic, artistic, educational or scholarly activity performed by a State official for the institution of higher education that employs or has appointed such State official.
…
19:61-6.4 Attendance at an event sponsored by an interested party
(a) (No change.)
(b) Except as provided in (c) or (d) below:
1.-2. (no change.)
(c) (No change.)
(d) The requirements and prohibitions in (a) and (b) above shall not apply to a State official, acting in a scholarly capacity, attending, participating in, or making presentations at colloquia, seminars, conferences, or similar scholarly gatherings so long as the State official notifies his or her department head of his or her attendance, participation or presentation. The direct or indirect benefit provided to the State official, acting in a scholarly capacity, may include the acceptance of reasonable travel and subsistence expenses and allowable entertainment expenses. The State official, acting in a scholarly capacity, may accept an honorarium, academic prize or other thing of value if the honorarium, academic prize or other thing of value reflects payment for orally sharing his or her intellectual property.
[(d)] (e) If an actual conflict or the appearance of a conflict could arise under the application of (c) or (d) above, (b) above shall govern.
Recodify existing (e) and (f) as (f) and (g).
[(g)] (h) [The] Except as provided in (d) above, the State official shall not accept an honorarium or fee for a speech or presentation at an event covered by this section.
Examples
. . .
A professor from a State law school, who has published extensively in the field of Constitutional Law, has been invited, by the publisher of legal textbooks, to attend a symposium and make a presentation on current trends in Constitutional Law. The publisher has offered to waive the costs of the symposium and pay for the professor's transportation, hotel, and meals during the symposium. In addition, each speaker will receive a $1,000 honorarium. At the conclusion of the symposium, the publisher has offered to send the professor on a golf retreat to thank the professor for her participation in the symposium. Because the symposium is part of the professor's scholarly activities, she would be attending in her scholarly capacity and the honorarium reflects a payment for an oral presentation of her own intellectual property, the professor may accept the reasonable travel and subsistence expenses and the honorarium. However, the professor may not accept the golf retreat because the retreat is not an allowable entertainment expense.
19:61-6.5 Attendance at an event sponsored by an entity other than an interested party
(a) (No change.)
(b) The State official, acting in a scholarly capacity, may attend, participate in or make presentations at colloquia, seminars, conferences, or similar scholarly gatherings, so long as the State official notifies his or her department head of his or her attendance, participation or presentation, in which case (a) above need not apply. The direct or indirect benefit provided to the State official, acting in a scholarly capacity, may include the acceptance of reasonable travel and subsistence expenses and allowable entertainment expenses. The State official, acting in a scholarly capacity, may accept an honorarium, academic prize or other thing of value if the honorarium, academic prize or other thing of value reflects payment for orally sharing his or her intellectual property.
[b] (c) The State may pay the reasonable expenses of the State official associated with attending the event or may permit the State official to accept direct or indirect benefits. Direct or indirect benefits may include the following:
1. (No change.)
2. Reimbursement or payment of actual and reasonable expenditures for travel or subsistence outside New Jersey, not to exceed $500.00 per trip, if expenditures for travel or subsistence and entertainment expenses are not paid for by the State of New Jersey. The $500.00 per trip limitation shall not apply to State officials acting in a scholarly capacity or if the reimbursement or payment is made by:
i.-iii. (No change.)
[(c)] (d) An interested party shall not provide a direct or indirect benefit to the State official in order to facilitate his or her attendance unless in accordance with (b) above.
[(d)] (e) A State official making a speech or presentation at the event shall not accept an honorarium or fee from the sponsor unless in accordance with (b) above.
[(e)] (f) (No change in text.)
Examples
. . .
A history professor at a State college has been asked by his department head to attend the dedication of a restored historic house museum and speak about the importance of maintaining New Jersey's historic resources. The professor has produced several films about New Jersey historic houses. The historic association has offered to provide the professor with a $300.00 honorarium for his attendance and speech. The professor may attend the event and accept the honorarium since the professor is attending in his scholarly capacity, the event relates to his scholarly activities and the honorarium is essentially a payment for his oral presentation of his own intellectual property.
19:61-6.7 Compensation for published work(s)
(a) [A] Except as provided in (e) below, a State official shall not accept compensation for published work(s) created as part of his or her official duties on State time utilizing State resources, but may accept compensation for published works not created as part of his or her official duties.
(b)-(c) (No change.)
(d) [The] Except as provided in (e) below, the State official shall not use his or her official title in any way in soliciting compensation.
(e) A State official acting in a scholarly capacity may accept compensation for published works created as part of his or her official duties on State time utilizing State resources.
(f) A State official acting in a scholarly capacity may require the use of his or her own published work in a course that he or she teaches. However, monies resulting from such use must be donated to the college or university or other non-profit institution.
(g) A State official acting in a scholarly capacity may accept compensation for the use of his or her published work in a course that he or she does not teach, provided that he or she was not involved in the selection of the published work for use in that course.
Examples
(No change.)
19:61-6.9 Solicitation or acceptance of a thing of value [from an interested party]
(a) Except in accordance with the Commission's rules on attendance at events, N.J.A.C. 19:61-6.4 and 6.5 and compensation for published works, N.J.A.C. 19:61-6.7, no State official, whether by himself or herself or through his or her spouse, or member of his or her family or through any partner or associate shall solicit or accept, directly or indirectly, any thing of value that is related in any way to the State official's public duties.
(b)-(e) (No change.)
(f) Notwithstanding (a) through (e) above, a State official, acting in a scholarly capacity, may accept an honorarium, academic prize or other thing of value if the honorarium, academic prize or other thing of value reflects payment for orally or verbally sharing his or her intellectual property, acting in an editorial capacity for a journal or other publication or reviewing journal or book manuscripts, or grants or contract proposals, or participating in accreditation or other peer review activities.
19:61-6.10 Annual disclosure
(a) A State official serving in a scholarly capacity shall disclose annually to his or her department head any travel, subsistence or entertainment expenses, honoraria, academic prizes, or other things of value related to activities performed in his or her scholarly capacity received in the prior calendar year. The sources of all such expenses and things of value shall be identified.
(b) A State official serving in a scholarly capacity shall use the following form for his or her annual disclosure. The completed forms shall be submitted to his or her department head, and the form shall be kept on file for a period of five years. Each State college and university shall forward copies of the forms to the Commission annually, at the end of each January.
College and University Disclosure Form
Date of Statement _____ For Calendar Year _____
First Name ______________________________
Last Name ______________________________
Institution _______________________________
Department _____________________________
Position _______________________________
Daytime Telephone _______________________
Email Address __________________________
List below any benefit you received, from any source, including, but not limited to, travel, subsistence or entertainment expenses, honoraria, academic prizes, or other things of value related to activities performed in your scholarly capacity. Identify the source of each benefit received.
Type of Benefit Amount of Benefit Source
_____________ __________________ ___________
_____________ __________________ ___________
_____________ __________________ ___________
List below all compensation, excluding salary from your employing institution, you received, from any source, in connection with work performed in your scholarly capacity. Identify each source.
____________________________________________
____________________________________________
____________________________________________
Do you assign educational materials authored by you as a course requirement?
Yes _____ No _____
Do you receive royalties from those educational materials? Yes _____ No _____
