This article was originally published in Venable's Political Law Briefing Blog.
The Office of Government Ethics (OGE) has proposed revisions to the gift rules for executive branch employees. Although some of the proposed changes are meant to bring clarity without changing the rules’ substance, several changes will result in new restrictions on the "gifts" that flow from day-to-day interactions companies and associations have with officials. Overall, the changes do little to bring further clarity, and do a lot to cloud the waters of when certain gifts are permissible.
It is important to remember that a gift is broadly defined to include anything of value. Most entities with any business or policy issue before an agency are considered prohibited sources, and may not give any gifts unless an exemption applies. Thus, attendance at events, food and drink, attendance at receptions, and commemorative plaques are all considered to be gifts subject to restrictions on whether executive branch employees may accept them.
The proposals would require written approval before any executive branch employee may attend a widely attended event, limit the kinds of food and drink that may be served at a reception, and encourage employees to decline gifts that are otherwise permissible. In our view, the proposed rules are needlessly complicated, overly restrictive, and likely to limit interaction between government employees and the outside world. Fortunately, the proposals are subject to comment until January 26. The last time OGE proposed new rules, it did not act on the proposal.
Some of the notable proposals, on which outside organizations may wish to provide comment, include:
Considerations for Declining Otherwise Permissible Gifts. The biggest change to the gift rules would be a new section on "declining otherwise permissible gifts." If the rules were not already confusing enough, with certain things of value defined as not being a gift, and other things of value being included as "exceptions” to the gift prohibitions, OGE now proposes a new test for employees to decide whether they should not accept a gift that is permissible under the rules.
The proposed addition shifts the focus of accepting a gift from a simple, “does this gift fit into one of the exemptions” approach to a “flexible, non-binding standard.” This change would have the recipient government employee evaluate how a reasonable person, aware of all the relevant factors at play, would perceive the gift, and whether prudence and promoting public trust in the government might counsel the government employee to decline the otherwise legally permissible gift.
The addition includes a list of several factors an employee should consider in making this determination. The list is merely illustrative, and because the factors are “inherently subjective,” a government employee would not violate this proposed section if he or she accepts a gift that is otherwise permissible under the rules—either expressly or by exception. The list includes:
- Whether the gift has a high or low market value;
- Whether the gift was provided by a person or organization who has interests that may be affected substantially by the performance or nonperformance of the employee’s official duties;
- Whether acceptance of the gift would lead the employee to feel a sense of obligation to the donor;
- Whether acceptance of the gift would reasonably create an appearance that the employee is providing the donor with preferential treatment or access to the Government;
- With regard to a gift of free attendance at an event, whether the Government is also providing persons with views or interests that differ from those of the donor with access to the Government;
- With regard to a gift of free attendance at an event, whether the event is open to interested members of the public or representatives of the news media;
- Whether acceptance of the gift would cause a reasonable person to question the employee’s ability to act impartially; and
- Whether acceptance of the gift would interfere with the employee’s conscientious performance of official duties.
The proposed standards are even cross-referenced in other sections of the rules, which makes it look more like these standards will become part of the required, written determination an agency ethics official must make before granting a gift rule exemption. For example, the section on accepting social invitations extended by an organization specifically references these new provisions.
Despite claiming the revisions will bring clarity to the rules, OGE’s proposed changes are ripe for misinterpretations and divided opinions. Worse, the proposal—a vague rule that does not clearly define proscribed conduct—would compel government employees to further limit how they interact with the public. “Are the coffee and donuts I have been offered as part of a morning meeting to discuss the new regulations ‘provided by a person or organization who has interests that may be affected substantially by the performance or nonperformance of my official duties’?” Of course they are, but does that somehow mean the employee should not accept the donuts or, worse yet, not attend the meeting?
Alcoholic Drinks Would Be Considered Gifts. The gift rules as currently written exempt "modest items of food and refreshments, such as soft drinks, coffee and donuts, offered other than as part of a meal." What exactly fits into this category has been the subject of much debate by agency ethics officials who have to make day-to-day decisions about whether someone may attend an event. Because coffee and donuts are specifically exempted in the regulation, some ethics officials have been quick to approve morning meetings, but have been less willing to approve evening events with hors d’oeuvres and drinks. The proposal includes a new example that specifies that alcoholic beverages "are not modest items of food and refreshments." The example goes on to say that "attendance at the party would be a gift to the employee." This raises additional confusion because it is not clear why attending a party, if a person does not consume the food or drink, would be a gift. The result of the example further moves the executive branch gift rules away from the House and Senate gift rules, meaning that a reception for one is not a reception for all.
Widely Attended Gatherings. The proposal would make two changes to the exemption for attendance at a widely attended gathering. First, the proposal would require the event provide "an opportunity to exchange ideas and views among invited persons." Although this is based on prior OGE guidance on widely attended gatherings, it further complicates the regulation. Also, written authorization from the agency ethics official would now be required before an employee could accept an invitation to attend any widely attended gathering free of charge. Thus, the hurdles for attendance have been raised, not lowered, and the process for approval complicated, not simplified.
Informational Materials. One useful proposed change is to include a new gift exception for unsolicited informational materials. The House and Senate have a similar exemption in their rules. The proposal would include “writings, recordings, documents, records, or other items intended primarily to communicate information, not including images intended primarily for display or decoration.” It also would specify that the information must relate to:
- The employee's official duties or position, profession, or field of study;
- A general subject matter area, industry, or economic sector affected by or involved in the programs and operations of the agency; or
- Another topic of interest to the agency or its mission.
If the value of the informational material exceeds $100, the proposed rule would require the agency to consider whether prudence counsels declining the gift, as described above.
Gift Cards. The proposed rules would now distinguish between store gift cards worth less than $20 (acceptable) and pre-paid general-use gift cards (impermissible). The theory being that the latter are akin to a gift of cash, which is never acceptable.
Are Online "Friends" Really "Friends"? Finally, the proposed rules include an example of how the exemption for gifts given on the basis of personal friendship might apply in the online world. The proposed example tries to differentiate a connection made through the government employee’s job and a contractor from other online friendships. The example is straightforward, but does not capture some of the nuances of modern life or social media.
Written comments on the proposed changes must be received by January 26, 2016. Please contact one of the authors or a member of Venable's Political Law Practice Group if you or your organization would like Venable to submit comments on your behalf or if you have questions about how the changes could affect your activities.