The Office of Government Ethics (OGE) recently amended the executive branch gift rules, which became effective on January 1, 2017. The changes include clarifications to existing exceptions that are frequently used as well as a new exception.
Persons impacted by these rules include corporations, government contractors, lobbyists and their employers, lobbying firms, trade associations, and any entity whose employees interact with or is regulated by the executive branch.
Gift Rule: Under the OGE’s gift rules, executive branch employees may not accept gifts that are given because of their official position or gifts that are from prohibited sources, unless an exception applies. The term "prohibited source" includes anyone seeking business with or official action by an employee's agency and anyone substantially affected by the performance of the employee's duties.
Highlights—Significant Changes and Clarifications:
- Definition of “Gift”: Exclusion for Modest Items of Food and Refreshments—Does Not Include Alcoholic Beverages. The amended rule exempts “[m]odest items of food and non-alcoholic refreshments, such as soft drinks, coffee and donuts, offered other than as part of a meal.’’
- This does not mean, however, that alcohol cannot be served at events qualifying under separate exceptions (e.g. Alcohol may be served at a “Widely-Attended Gathering” and an alcoholic beverage may be permissible if it falls within the $20 per occasion/$50 per source per calendar year exemption).
- Gifts of Free Attendance to Widely Attended Gatherings—Agency Interest Determination Must be Made in Writing. An event is widely-attended if (1) a large number of persons will attend; (2) persons with a diversity of views or interests will be present (persons from throughout industry); and (3) a determination is made that attendance is in the agency’s interest because it will benefit agency programs and operations. Under the amended exception, the determination of agency interest must be made in writing. Under the old rule it could be made in writing or orally.
- Presenter-Only Meals at Events Permissible. An employee who is a presenter at an event may attend a separate meal for participating presenters that is hosted by the sponsor of the event.
- Gifts Based on a Personal Friendship. An employee may accept a gift given by an individual under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. The rule suggests that merely being connected on social media (such as Facebook friends) is insufficient in establishing a personal friendship qualifying under this exception. Note: The personal friend of the employee must personally pay for the gift—it cannot be expensed to the friend’s employer and qualify under the exception.
- NEW! Attendance at Events Hosted by Former Private Employer Permissible. An employee may now attend a reception or similar event hosted by a former employer when other former employees have been invited and the invitation and benefits are based on the former employment relationship, and it is clear that such benefits have not been offered or enhanced because of the employee’s official position. Attendance at these types of events in the past was only permissible if the event qualified under a different exception (such as a “widely-attended gathering”).
- Considerations for Declining Otherwise Permissible Gifts. This new section establishes a values-based standard that executive branch employees should consider when deciding whether to accept or decline offered gifts. If an employee believes that a reasonable person with knowledge of the relevant facts would question the employee’s integrity or impartiality as a result of accepting the gift, the employee should not accept. Relevant factors to consider:
- The gift has a high market value;
- The timing of the gift creates the appearance that the donor is seeking to influence an official action;
- The gift was provided by a person who has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties; and
- Acceptance of the gift would provide the donor with significantly disproportionate access.