On November 27, 2015, the Office of Government Ethics (“OGE”) issued a proposed rule that would revise the portions of the Standards of Ethical Conduct for Executive Branch Employees that govern the solicitation and acceptance of gifts from outside sources (“Standards”). See 5 CFR § 2635. Although it is a proposed rule (with the comment period closing on January 26, 2016), the OGE has identified several areas in which the new language is meant to “clarify” the existing rules and “incorporate past interpretive guidance.”
Summary of Notable Proposed Changes
Notable proposed changes include the following:
- Clarification Regarding “Modest Items of Food and Refreshment.”
Under the proposed rules, the exclusion from the definition of “gift” for “modest items of food and refreshment” expressly would not cover alcoholic beverages. The proposed rule provides an example of alcoholic beverages served at a government contractor’s holiday party and states that executive branch officials may not invoke the modest refreshment exclusion to partake of the beverages.
- Retention of Frequent Flyer Miles.
The revisions would make clear that a government employee may accept travel-related benefits, such as frequent flyer miles received during official travel, pursuant to an applicable statute or regulation.
- Definition of “Market Value.”
The current definition of “market value” is the “retail cost the employee would incur to purchase the gift.” OGE would clarify that “market value” means the amount the general public “would reasonably expect to incur to purchase the gift.” In addition, a proposed example states that the market value of a gift is not “significantly diminished” because the item has been inscribed with the donor or recipient’s name or information related to an event at which the gift is presented. Another example calculates the market value of certain gifts not available for retail purchase, such as admission to a private skybox or an invitation-only event where an entry fee is not charged.
- “Indirectly Solicited or Accepted Gifts”
OGE proposes to expand the definition of “indirectly solicited or accepted” gifts in § 2635.203(f)(1) to include gifts given to “a member of the employee’s household” based on the member’s relationship with the employee and given with the employee’s knowledge and acquiescence.
- Soliciting Support for Charitable Organizations.
The proposed rule would clarify that employees who solicit or accept funds or other support for a charitable organization in conformity with subpart H (which governs an employee’s outside activities) do not violate the prohibition on soliciting gifts.
- “Free Attendance” at Events for Speakers and others Presenters.
The new rule would permit “employees who are presenters at an event to accept meals outside of a group context, so long as the meal is open to all presenters and is hosted by the sponsor of the event.” OGE noted that event sponsors typically provide a separate luncheon or dinner for presenters to give them an opportunity to “interact with other presenters, receive instructions, and hear about program goals or changes.”
- Illustration of the exception allowing acceptance of gifts below $20.
Section 2635.204(a) permits executive branch employees to accept gifts valued at $20 or less. The proposed rule expressly prohibits “group gifts” exceeding $20, even if individual contributors paid no more than $20 for the gift (e.g., a clock worth $120 gifted to an employee, where each contributor paid $20).Another example would add that employees may accept store gift cards worth $20 but not general-use prepaid gift cards under $20, since they are “akin to gifts of cash.”
- Gifts Based on Personal Relationship.
Section 2635.204(b) allows an employee to accept a gift given by an individual and “motivated by a family relationship or personal friendship rather than the position of the employee.” The new rule would incorporate OGE’s position that “individual” refers only to a natural person, not to a corporation or any other institution. The new rule also includes the example that social media contacts formed when an employee is acting in her official capacity are not personal relationships within the meaning of the rule.
- Membership Fee Discounts or Waivers
The proposed rule would allow an employee to accept a reduction or waiver of membership or other fees to an organization, provided that the reduction is available to all Government employees or all uniformed military personnel and that the only “restriction on membership is related to professional qualifications.”
- Receipt of Certain Awards and Honors
The proposed rule would emphasize that an employee may not accept an award even where there is an “established program of recognition,” if the entity that is giving the award has interests that may be substantially affected by the performance or nonperformance of the employee’s official duties.
- Invitations from Former Employer
The proposed rules would permit an employee to accept an invitation from his or her former employer to attend a reception or similar event, as well as benefits that are provided at the event, if other former employees have also been invited and the benefits are not being offered or enhanced because of the employee’s official position.
- “Widely Attended Gatherings” and Attendance at Events
- Criteria for a Widely Attended Gathering
The proposed rules retain the current definition of a “widely attended event” but adds that an event does not qualify as a widely attended gathering unless it is “expected that . . . there will be an opportunity to exchange ideas and views among invited persons.”
- Written Authorization to Attend Widely Attended Gatherings
The proposed rules would require executive branch employees to obtain written authorization from their agency designee before accepting an invitation to a widely attended gathering. The current rule requires a written determination only “when the person extending the invitation has interests that may be substantially affected by the performance or non-performance of the employee’s official duties.”
- Attendance at an Event Provided by Someone Other Than the Sponsor
The proposed rules specify that an executive branch employee’s attendance at an event is provided by a person other than the sponsor of the event, where the person “designates the employee to be invited and bears the cost of the employee’s attendance through a contribution or other payment.” Paying dues or similar assessments to a sponsoring organization would not constitute a payment intended to facilitate a particular employee’s attendance.
- Transportation Not Authorized
The proposed rules would clarify that the exception for widely attended gatherings does not authorize gifts of transportation to or from such events.
- Accompanying Guest
The proposed rule would clarify that an executive branch employee may bring an “accompanying spouse or one other accompanying guest” to participate in all or a portion of an event at which the employee’s free attendance is permitted.
- Criteria for a Widely Attended Gathering
- Attending Social Events
Before attending a social event where the sponsor or person extending the invitation is not an individual, the proposed rules would require executive branch employees to receive a written determination that the “employee’s acceptance of free meals, refreshments, and entertainment would not cause a reasonable person to question the employee’s integrity.”
- Gifts Received in a Foreign Area
The proposed rule would clarify that employees may receive gifts of meals, refreshments, and entertainment provided in a foreign area only if they are unsolicited.
- Informational Materials
The proposed rules would allow executive branch employees to receive unsolicited gifts of books and periodicals, provided that: (a) their value is less than $100, or (b) if their value exceeds $100, acceptance would not cause a reasonable person to question the employee’s integrity. This new exception would not permit employees to accept entertainment materials, such as novels and audio or video recordings of entertainment.
- Exception Permitting Solicitation of Gifts
The new rules would permit executive branch employees to solicit the following types of gifts so long as they have not used their official positions to induce such gifts:
– Gifts based on personal relationships;
– Awards and honorary degrees;
– Gifts based on outside business or employment relationships;
– Gifts in connection with political activities permitted by the Hatch Act Reform Amendments;
– Gifts to the President or Vice President;
– Gifts authorized by supplemental agency regulation; and
– Gifts accepted under specific statutory authority
- Application of Executive Orders
The proposed rules would bar an employee from relying on an exception to the gift prohibitions when the acceptance of the gift would be prohibited by an Executive Order or supplemental agency regulation issued with the concurrence of the OGE.
- Disposition of Prohibited Gifts
Currently, the gift rules require an employee who receives a prohibited tangible gift to either return the gift to the donor or pay the donor the gift’s market value. The proposed rules would allow employees to destroy gifts with a market value not in excess of $100, recognizing that it may be “impossible, cost-prohibitive, or time consuming” for an employee or an agency to return some gifts. The proposed rule would encourage employees to record any actions that they take to dispose of prohibited gifts.