I’d be remiss in my role as the columnist charged with offering legal advice to readers if I did not close 2014 with advice on the obtuse and cumbersome rules governing gift-giving. So, to do so, I went back to a column written by Bill Bransford, my predecessor columnist.
By way of introduction, I remind readers that the rules governing gift-giving by or to executive branch employees are issued by the Office of Government Ethics. Those regulations are complex, cumbersome, with generally stated prohibitions followed by lists of exceptions. And yes, Congress is exempt from these rules. You can find the actual text of the rules on OGE’s website or directly in OGE regulations at 5 CFR Part 2635, Subparts B and C.
Here, with slight revising by me, is Bill’s distilled (but accurate) version of the complicated (many argue arcane) rules on gifts:
Given the holiday season and the spirit of gift-giving, it is helpful to review a few of the rules so you can avoid the common pitfalls and, receive or give those gifts that are allowed.
For example, it used to be customary to tip your letter carrier. This is no longer allowed, and a letter carrier or any federal employee cannot receive a gift of monetary value given to him or her because of their position. The employee must refuse the gift. Acceptance of such a gift might be considered a violation of ethics rules and justification for disciplinary action.
Also, federal employees are not allowed to accept gifts from entities seeking or doing business with their agency or that might be influenced by their agency. An employee may never solicit or coerce a gift, accept a gift in return for the performance of an official act, or accept a gift so frequently that a reasonable person would be led to believe the employee is using his public office for private gain.
The most widely known exception to the ban on accepting gifts is the $20 lunch with an annual cap of $50. (The $20 amount may also apply to gifts other than lunch.) The amounts were set in 1992, and lunches have gotten much more expensive in the intervening years. So be careful with the lunch exception because it may be difficult to go to a nice restaurant and get a lunch or a dinner for only $20. If you pay cash for your portion of a lunch with a contractor doing business in your agency, make sure that the contractor keeps documentation of your cash payment (possibly in the form of a receipt to you) or you may be falsely accused of accepting a gift and you may lack documentation to show your contribution. It may be better for you to use a credit card to pay for your lunch and hold onto the receipt and monthly credit card statement.
Another exception allows attendance at widely attended gatherings, if it is determined to be in the agency’s interest and of general interest to a number of parties to the sponsor of the event.
Of course, you may also accept a gift if the reason for the gift has nothing to do with your federal employment. For example, if your sister-in-law and you have always exchanged holiday presents and she now works for a company doing business at your agency and thus has become a prohibited source, you may continue to accept gifts from your sister-in-law, even if the gift is worth more than $20. The same is true for gifts between longtime friends and gifts exchanged because of affiliations with organizations outside the workplace.Federal employees are also allowed to accept gifts of nominal value, such as food and drink that are not a part of a meal; certificates, plaques and trophies; and prizes from drawings or raffles open to the public.
Supervisors are not supposed to accept gifts from subordinates. There are exceptions for events like retirement parties. Also, the ethics rules prohibit a higher-paid employee from accepting a gift from a lower-paid employee unless the employees are not in a supervisor-subordinate relationship and the personal relationship of the two employees would justify the gift.
Any questions or areas of doubt should be referred to the agency ethics official, who will tell you if you are allowed to accept a gift or whether something is even considered a gift.
And, of course, Bill closed his column with a warm wish to all during the holiday season.
Bill Bransford passed away in September 2013. Set up in his memory is the Bill Bransford Helping Hands Fund, administered by FEEA. This fund provides grants to federal employees in need. Bill was known as a champion of the federal workforce. This fund recognizes that dedication and ensures that his legacy continues to help those in need. www.feea.org/GiveBBfund
Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk“ program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to firstname.lastname@example.org. View her blog at blogs.federaltimes.com/federal-law.