Following is the description of proposed rules from the Office of Government Ethics designed to clarify the policies, and their exceptions, regarding acceptance of gifts by federal employees.
Proposed § 2635.201 Overview and Considerations For Declining Otherwise Permissible Gifts
Proposed § 2635.201(a) reiterates the language that is contained in current § 2635.201, and includes a new subheading “Overview.” Proposed § 2635.201(b) is new to the Standards. This section is entitled “Considerations for declining otherwise permissible gifts.” OGE is proposing the addition of this section because it is OGE’s experience that employees and ethics officials sometimes focus on whether a regulatory exception permits the acceptance of an otherwise impermissible gift, and not on whether acceptance of the gift could affect the perceived integrity of the employee or the credibility and legitimacy of the agency’s programs. To counter this tendency, OGE is proposing to add § 2635.201(b)(1), which sets out a flexible, non-binding standard that employees are encouraged to use when deciding whether to accept a gift that would otherwise be permitted by this subpart. Specifically, this section encourages employees to consider the potential that a “reasonable person” would question their integrity if they were to accept the gift. In a circumstance where an employee concludes that a reasonable person would question his or her integrity, the employee is encouraged to consider declining the gift.
To assist employees in making this determination, OGE has added proposed § 2635.201(b)(2), which sets out some factors that employees can consider when evaluating whether they should decline an otherwise permissible gift because acceptance might cause a reasonable person with knowledge of the relevant facts to question their integrity. Employees are not, however, required to consider these factors in every case; these factors are merely intended to be illustrative of the types of considerations that are relevant to this determination. In addition, because the regulatory exceptions represent OGE’s determination that, in most cases, acceptance of a gift under the relevant exception will not adversely affect public confidence, and because the factors are inherently subjective, the proposed rule clarifies that an employee has not violated the subpart by accepting a gift under an exception found in § 2635.204. The section concludes by encouraging employees to seek advice from an appropriate agency ethics official when making this determination or where there are questions related to other provisions of this subpart.
Proposed § 2635.203Definitions
OGE proposes a number of changes to § 2635.203(b), which defines the term “gift” as well as provides exclusions from that definition.
OGE proposes to amend current § 2635.203(b)(2), which excludes from the definition of the term “gift” certain presentation items with little intrinsic value, to permit employees to accept items that are “primarily” for presentation as opposed to only those that are “solely” for presentation. OGE believes distinguishing between items intended for presentation based on whether the item hypothetically could have some independent use is not intuitive or necessary, so long as the presentation item is truly of “little intrinsic value.” Items such as watches, artwork, items containing precious metals or gemstones, fine crystal, or that otherwise have significant independent value would not qualify for this exclusion, even if they were inscribed or otherwise adorned with personalized information (such as the name of the donor, the date of an event, or the name of the recipient).
Proposed § 2635.203(b)(6) would clarify that continued participation in an employee welfare or benefit plan with a current or former employer would not constitute a gift for purposes of subpart B.
OGE proposes to delete the Note following current paragraph (b)(7) stating that employees are prohibited from accepting certain frequent flyer program benefits that are earned from Government-financed travel, as it no longer reflects current law.
Proposed § 2635.203(b)(8) is new as an exclusion, and excludes from the definition of “gift” certain offers of free attendance to an event provided to a speaker on the day of his or her presentation. Such offers of free attendance are currently treated as gifts that employees are permitted to accept pursuant to an exception set out in current § 2635.204(g)(1). As described in current § 2635.204(g)(1), OGE views the employee’s attendance in these circumstances as customary and necessary to allow the employee to carry out his or her assignment, and therefore views such offers of free attendance as not constituting a gift to either the agency or the employee. Moving the exception at § 2635.204(g)(1) to the exclusion section at § 2635.203(b)(8) reflects that long-time understanding. Advice OGE has previously provided on the application of current § 2635.204(g)(1) would continue to be applicable to proposed § 2635.203(b)(8).
OGE has also provided that an offer of free attendance provided to an employee’s spouse or another accompanying guest on the day the employee is presenting is also excluded from the gift rules in certain circumstances, which accords with the current exception for such attendees under § 2635.204(g)(6). Likewise, OGE has excluded from the definition of “gift” an offer of free attendance to certain personnel, such as security details or press officers, who are assigned by the agency to perform official duties in support of the presenting employee. This regulatory exclusion accords with OGE’s longstanding interpretation of current § 2635.204(g)(1). See OGE DAEOgram DO-10-003 (Feb. 18, 2010). OGE also proposes simplifying the language of the exclusion to cover “Free attendance to an event provided by the sponsor of an event to . . . an employee who is assigned to present information on behalf of the agency . . .” (emphasis added). Current § 2635.204(g)(1) provides that an employee may accept an offer of free attendance to an event when he or she is assigned to participate as a speaker or panel participant or otherwise to present information on behalf of the agency. See also OGE Legal Advisory LA-12-05 (Sept. 7, 2012). The proposed regulation is consistent with this advice.
OGE proposes to include ten examples to § 2635.203(b) to provide clarification to the regulatory exclusions to the definition of “gift.” These examples are not intended to be comprehensive. Proposed Example 1 to paragraph (b)(1) clarifies that the exclusion for “modest items of food and refreshment” would not cover alcoholic beverages served at a Government contractor’s holiday party. Proposed Example 1, Example 2, and Example 3 to paragraph (b)(2) clarify the meaningof “items with little intrinsic value . . . which are intended primarily for presentation.” Proposed Example 1 and Example 2 to paragraph (b)(5) both clarify the exclusion for rewards and prizes given to participants in contests or events open to the public. Example 1 to paragraph (b)(7) emphasizes that employees may accept certain travel-related benefits, such as frequent flyer miles, pursuant to an applicable statute or regulation. OGE proposes to move Example 4 following current § 2635.204(g) to Example 1 to paragraph (b)(8) following proposed § 2635.203(b)(8). OGE proposes to add Example 2 and Example 3 to paragraph (b)(8) to provide additional guidance on what constitutes “present[ing] information” on behalf of an employee’s agency.
OGE is proposing to revise the first sentence of § 2635.203(c), which sets out the definition of “market value” as used throughout the subpart. The current definition states that “Market value means the retail cost the employee would incur to purchase the gift.” OGE has found that this definition can lead to confusion and in certain circumstances may not be applicable at all if the gift does not have a “retail” price, e.g., if the gift takes the form of services or intangibles. As OGE stated in 1992, the purpose of including a definition of “market value” was to “ensure that the employee pays the fair value” of the gift and to allow the employee to “determine the value or the amount to be reimbursed without having to consult the donor as to the donor’s cost.” 57 FR 35006, 35014 (Aug. 7, 1992); see also OGE Informal Advisory Opinion 96 x 20. To better accord with OGE’s intent that the term “market value” reflect the price the employee would pay for the gift if he or she were to purchase it at fair value and on the open market, OGE has amended the first sentence of the definition to read: “Market value means the cost that a member of the general public would reasonably expect to incur to purchase the gift.” The proposed change also reflects OGE’s interpretation that the “market value” of a gift is the cost the recipient would incur to purchase the item on the open market, not the cost that the donor paid to acquire the gift. This principle is illustrated in proposed Example 1 and new Example 2 to paragraph (c). Proposed Example 1 to paragraph (c) also illustrates OGE’s longstanding guidance that the market value of a gift is not eliminated or significantly diminished because the item has been inscribed or otherwise adorned with the donor or recipient’s name or information related to an event at which the gift was presented. Proposed Example 3 to paragraph (c) is current Example 2 following § 2635.203(c) without substantive change. Example 4 and Example 5 to paragraph (c) are provided to clarify how to calculate the market value of certain gifts that are not available for retail purchase, such as free admission to a private skybox or an invitation-only event where an entry fee is not charged to attendees.
OGE proposes to modify the formatting of § 2635.203(e) and § 2635.203(f) to enhance clarity. OGE also proposes to amend § 2635.203(f)(1) to expand the definition of “indirectly solicited or accepted” gifts to include gifts that are given to “a member of the employee’s household” on the basis of the person’s relationship with the employee and with the employee’s knowledge and acquiescence. OGE proposes to amend § 2635.203(f)(2) to clarify that employees who solicit or accept funds or other support for a charitable organization in accordance with subpart H of the Standards have not indirectly solicited or accepted a gift under subpart B. Proposed Example 1 to paragraph (e) is current Example 1 following § 2635.203(e). Proposed Example 2 to paragraph (e) is current Example 2 following § 2635.203(e). Proposed Example 1 to paragraph (f)(2) is current Example 1 following § 2635.203(f).
OGE proposes removing current § 2635.203(g), defining the term “vendor promotional training.” The term is no longer used in the substantive provisions of the subpart, and the definition is therefore unnecessary.
OGE proposes to add a new § 2635.203(g) defining the term “free attendance” as used throughout the subpart. The language found in this definition is based on the definition of “free attendance” currently found in § 2635.204(g)(4). Because the term is used throughout the subpart, OGE believes it is more logical for the definition to appear in § 2635.203. OGE has amended the definition as it is currently found in § 2635.204(g)(4) to 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 is aware that it is customary for the sponsors of an event to provide a separate luncheon or dinner for participating presenters. OGE believes that these meals are often beneficial to the agency because the agency employee is able to interact with other presenters, receive instructions, and hear about program goals or changes. OGE believes that where a meal is provided to all other presenters, the meal does not constitute a separate gift for the personal benefit of the employee.
OGE has determined that the explanatory Note that follows current § 2635.204(g) is unnecessary. OGE therefore proposes to remove the Note.
Proposed § 2635.204 Exceptions to the Prohibition on Acceptance of Certain Gifts
OGE proposes retitling this section to provide additional clarity as to the substantive regulatory text. OGE also proposes amending the introductory clause to improve readability.
OGE is proposing to revise and add a number of examples to § 2635.204(a) to clarify the application of the rule in various contexts. Proposed Examples 1 through 5 to paragraph (a) are unchanged except for technical modification. Proposed Example 6 to paragraph (a) is new and emphasizes that an employee may not rely on the exception for gifts of $20 or less to accept a group gift with an aggregate market value in excess of $20. Proposed Example 7 to paragraph (a) is new and incorporates OGE’s advice that store gift cards that are worth $20 or less may be accepted under § 2635.204(a), but that general-use prepaid gift cards may not be accepted under the exception, even if their value is below the regulatory threshold. See OGE Legal Advisory LA-15-04 (April 30, 2015). General-use prepaid cards operate similarly to debit cards in practice and are therefore akin to gifts of cash. See id.
OGE proposes amending § 2635.204(b) to incorporate OGE’s long-standing interpretation that the exception for gifts based on a personal relationship applies only to gifts provided by an individual. As used in the Standards, the term “individual” refers only to a natural person, i.e., a human being. See 5 CFR 2635.102(k) (defining “person” to include an “individual” as well as a “corporation” “company” or “other organization or institution”). This accords with the common understanding of the term. See Mohammed v. Palestinian Authority, 132 S. Ct. 1702, 1707 (2012). OGE also proposes amending § 2635.204(b) to make explicit that in determining whether a gift is motivated by a personal relationship, employees and agencies may consider not only the “history of the relationship” but also the “nature of the relationship.” This amendment accords with advice that OGE has issued on this exception in the past. See OGE Informal Advisory Opinion 06 x 3 (Mar. 21, 2006).
Proposed Example 1 to paragraph (b) is revised to reflect circumstances that arise more frequently. Proposed Example 2 to paragraph (b) has no substantive change. Proposed Example 3 to paragraph (b) is new and provides guidance on the application of the exception at § 2635.204(b) to personal contacts made through social media networking Web sites.
OGE is proposing to revise § 2635.204(c)(1) to clarify that an employee may accept a reduction or waiver of membership or other fees to an organization where the only restriction on membership is related to professional qualifications and the reduction or waiver is available to all Government employees or all uniformed military personnel. OGE proposes to amend § 2635.204(c)(2) to explain that “opportunities and benefits” under this section may include free attendance or participation at an event if the other criteria of the section are met. OGE also proposes to amend § 2635.204(c)(3) to provide that the general prohibition on an employee accepting for personal use a benefit to which the Government is entitled does not apply when the employee is specifically authorized by statute or regulation to retain the benefit. Proposed Example 1 to paragraph (c)(2) illustrates circumstances under which an employee would not be able to accept a discount under § 2635.204(c)(2)(i), as it would be related to the employee’s Government employment. Proposed Example 2 and Example 3 to paragraph (c)(2) and Example 1 to paragraph (c)(3) are renumbered but not substantively changed.
OGE proposes to restructure § 2635.204(d), Awards and honorary degrees, to clarify this exception. Proposed § 2635.204(d)(l) covers awards. The elements are the same as currently set forth in § 2635.204(d), but are reordered for clarity. Proposed § 2635.204(d)(2) defines an “Established program of recognition.” Proposed § 2635.204(d)(3), entitled “Honorary degrees,” is current § 2635.204(d)(2). As proposed, this paragraph updates the citation for the definition of an institution of higher education found at 20 U.S.C. 1001 and provides that employees may also accept honorary degrees from “similar foreign institution[s] of higher education.” For purposes of this exception, a “foreign institution of higher education” would include an institution of higher education that is physically located outside of the United States if it is accredited by a recognized quality assurance or accreditation organization. OGE proposes to add a note following § 2635.204(d)(3) reminding agency ethics officials that before approving the acceptance of an honorary degree from a foreign institution of higher education, the agency should also consider the potential applicability of the Emoluments Clause of the U.S. Constitution and the Foreign Gifts and Decorations Act.
Proposed § 2635.204(d)(4) is similar to current § 2635.204(d)(3), but is reworded to clarify that, for the purpose of determining whether the value of an award exceeds $200 (and therefore is subject to additional restrictions), the value of the free attendance at the event does not need to be included but the cost of any travel expenses do. This is consistent with OGE’s current interpretation, as reflected in Example 3 in the awards section of the current regulation.
OGE also proposes to amend the examples to § 2635.204(d) by adding one new example and updating the remaining example designations. Proposed Example 1 to paragraph (d)(1), Example 3 to paragraph (d)(1), and Example 1 to paragraph (d)(3) are currently in the regulation, and OGE proposes no substantive amendment to these examples. Proposed Example 2 to paragraph (d)(1) is a new example added to emphasize the existing rule that even where there is an “established program of recognition,” an employee may not accept the award 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.
OGE proposes to amend § 2635.204(e) by moving the definition of “employment” currently found at § 2635.204(e)(4) to a new § 2635.204(e)(5). Currently the term “employment” is defined by cross-reference to the definition of “employment” in § 2635.603(a). New § 2635.204(e)(5) removes the cross-reference and incorporates the substantive definition found in § 2635.603(a), i.e.,”`employment’ means any form of non-Federal employment or business relationship involving the provision of personal services.” OGE is also proposing to add a new subparagraph (e)(4) providing that an employee may accept an invitation from his or her former employer to attend a reception or similar event, and accept benefits that are provided at the event, if other former employees have also been invited to attend and it is clear that these benefits are not being offered or enhanced because of the employee’s official position. There is currently some ambiguity in this regard because of the phrasing of the existing paragraph. OGE does not believe a distinction should be made between events based on current and former business or employment activities. Under either situation, the invitation and any benefits must clearly be offered because of the employee’s former or current non-Government position and not because of Federal employment or the official’s status. Proposed Example 1 to paragraph (e)(4) illustrates this provision. There are no substantive changes to the other examples to paragraph (e).
OGE proposes to amend § 2635.204(f) to clarify that a gift that may be accepted in connection with certain political activities includes offers of free attendance to an accompanying spouse and other guests. Proposed Example 1 to paragraph (f) is currently Example 1 following § 2635.204(f). There is no substantive change to this example.
OGE is proposing a number of substantive revisions to § 2635.204(g). As described above, OGE proposes to remove § 2635.204(g)(1), Speaking and similar engagements. The substance of the exception will be included in a new exclusion from the definition of “gift” at proposed § 2635.203(b)(8). Proposed § 2635.204(g) will focus on when an employee may accept an invitation of free attendance at a “widely attended gathering.” Accordingly, OGE proposes re-titling § 2635.204(g) as “Gifts of free attendance at widely attended gatherings.” Proposed § 2635.204(g)(1) would set forth the rule for when an employee may accept an unsolicited gift of free attendance at such a gathering, while proposed subparagraphs (g)(2)-(g)(5) provide definitions and concepts that apply throughout § 2635.204(g). Proposed § 2635.204(g)(6) is similar to current § 2635.204(g)(6), but has been amended to clarify that an employee may bring only one accompanying guest under the authority found in that section. This has been OGE’s interpretation of the regulation since its promulgation in 1996. See 61 FR 42965, 42968 (Aug. 20, 1996).
Proposed § 2635.204(g)(1) provides that an employee may accept a gift of free attendance to attend a widely attended gathering only upon receiving a written authorization from the agency designee. This is a change from the current rule. Currently, a written determination is required 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, or is an organization the majority of whose members have such interests.
Although OGE is sympathetic to agency concerns that requiring that all determinations be made in writing may increase workload, OGE believes that increased access to certain technologies since the Standards were promulgated, such as the Internet and mobile devices, reduces this concern. Additionally, OGE believes that requiring a written authorization on all occasions will promote the public’s confidence in Government operations.
Proposed § 2635.204(g)(2) defines “widely attended gatherings.” This definition is similar to the definition that is used in current § 2635.204(g)(2). OGE is proposing to amend the current definition to highlight 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.” OGE has long held that an event does not meet the criteria of this exception if an opportunity to exchange ideas and views is not available. See, e.g., OGE Informal Advisory Opinion 08 x 1 (Jan. 30, 2008) (stating that “the `widely attended gathering’ exception cannot be used to justify free attendance at an event that is not structured to allow interchange among attendees”); OGE Informal Advisory Opinion 07 x 14 (Dec. 5, 2007) (stating that OGE “considers it fundamental that a WAG must provide the opportunity for `an exchange of ideas’ with a large and diverse group. . . . If an event is so structured that an employee has little opportunity to exchange views with a large and diverse number of persons, then the very purpose of the exception would be defeated.”); OGE Informal Advisory Opinion 99 x 2 (March 15, 1999). This amendment is being proposed to codify OGE’s long-standing interpretation.
Proposed § 2635.204(g)(3) describes the finding that the agency designee must make before authorizing an employee to accept an offer of free attendance at a widely attended gathering. The proposed rule does not require a particular degree of specificity in making this finding, but does require written evidence that the determination was made. For example, an email from the agency designee to the employee indicating the designee’s approval would be sufficient. This section also sets out the limitations that apply when the gift of free attendance is from someone other than the sponsor, including restrictions on the aggregate value of such gifts. OGE has set the ceiling for nonsponsor gifts of free attendance to match the threshold set by the General Service Administration (GSA) as the “minimal value” level used in the regulations implementing the Foreign Gifts and Decorations Act, 5 U.S.C. 7342. OGE raises this threshold on a three-year basis to match the dollar value set by GSA. The last time the regulatory ceiling was raised was in 2014. See, e.g. , 79 FR 28605 (May 19, 2014).
As described above, OGE proposes removing § 2635.204(g)(4) and the explanatory Note following the regulation, which sets out the definition of “free attendance” for the purposes of § 2635.204(g), because there is now a proposed subpart-wide definition of “free attendance” at § 2635.203(g). OGE proposes adding a new § 2635.204(g)(4) establishing factors the agency designee may consider in determining whether the agency’s interest in having the employee attend the event outweighs the potential that the employee may be, or may appear to be, improperly influenced in the performance of his or her duties by accepting the gift.
OGE proposes to reword § 2635.204(g)(5) to more clearly state the criteria that apply when making a determination that a gift is from a person other than the sponsor.
Because the exception for widely attended gatherings generates more questions than perhaps any other gift exception, OGE has provided eight examples to the regulation. Proposed Example 1 to paragraph (g) is part of current Example 1 following § 2635.204(g), but has been modified to illustrate when acceptance would not be permitted under the exception because the value of the gift from a nonsponsor is in excess of the regulatory threshold. Example 2 to paragraph (g) is new, and illustrates when acceptance would not be permitted under the exception because the gift is from a nonsponsor and the event is not expected to be attended by more than 100 persons. Example 3 to paragraph (g) is part of current Example 1 following § 2635.204(g), but has been modified to illustrate when acceptance could be permitted under the exception because the gift is from the sponsor of the event. Example 4 to paragraph (g) is current Example 2 following § 2635.204(g) modified to account for changes in the regulatory dollar threshold. Example 5 to paragraph (g) is current Example 3 following § 2635.204(g). Example 6 to paragraph (g) is current Example 5 following § 2635.204(g). Example 7 to paragraph (g) is current Example 6 following § 2635.204(g) modified to reflect that all widely attended gathering authorizations must be in writing. Proposed Example 8 to paragraph (g) is new, and explains that an employee may not accept gifts of transportation to or from an event pursuant to the exception at § 2635.204(g). This is consistent with OGE’s longstanding interpretation of the definition.
OGE proposes to revise § 2635.204(h) to clarify that an employee may accept an invitation to attend a social event permitted under the current rule only when that invitation is unsolicited. OGE also proposes clarifying that the gift exception includes food, refreshments, and entertainment that are provided to the employee’s spouse or other accompanying guests. OGE further proposes to add a new § 2635.204(h)(3) to require an employee to receive a written determination that the employee’s attendance at the event complies with the proposed standard set out at § 2635.201(b) when either the sponsor of the event or the person extending the invitation is not an individual. If the event is being hosted by an organization or the invitation is from an organization, as opposed to an individual, OGE believes that it is appropriate to require an independent written determination by an agency ethics official confirming that the employee’s acceptance of free meals, refreshments, and entertainment would not cause a reasonable person to question the employee’s integrity under the standard found in proposed § 2635.201(b). OGE proposes removing the examples following § 2635.204(h), and replacing them with new Example 1 to paragraph (h) illustrating a situation in which acceptance under this paragraph would be permitted.
OGE proposes to amend § 2635.204(i) to clarify that gifts of meals, refreshments, and entertainment provided in a foreign area may be accepted only when unsolicited. OGE has also updated the citations throughout the regulation.
OGE proposes revising § 2635.204(k) to include a cross-reference to § 2635.105, which sets forth the requirements that agencies must follow to promulgate supplemental agency regulations.
OGE proposes to revise § 2635.204(l) by removing the Note following paragraph (1), as it is not necessary for understanding the scope or substance of the exception.
OGE proposes to add a new gift exception for unsolicited gifts of informational materials at proposed § 2635.204(m). Executive Branch employees occasionally receive unsolicited gifts of books and periodicals. These items are often given with the goal of communicating the ideas and positions of the donor rather than personally benefitting the individual employee. The proposed gift exception would allow acceptance of these materials when either they are lessthan $100 or, if they are in excess of $100, there has been a determination that their acceptance accords with the general standard found at proposed § 2635.201(b). An employee could not use the proposed exception to accept entertainment materials, such as novels, audio or video recordings of entertainment programs, or pictures, photographs, or artwork intended for display or decoration. Section (m)(2) provides guidance on what constitutes informational materials. OGE also proposes providing two new examples to illustrate this exception.
Proposed § 2635.205 Limitations on Use of Exceptions
As previously described, OGE is proposing to move the limitations on employees’ ability to use and rely on the exceptions in § 2635.204, which were previously located at § 2635.202(c), to § 2635.205. OGE further proposes to revise the regulatory text of proposed § 2635.205(b), which is current § 2635.202(c)(2), by rewording this paragraph to prohibit an employee from “[u]s[ing], or permit[ing] the use of, the employee’s Government position, or any authority associated with public office, to solicit or coerce the offering of a gift.” This rewording is consistent with the language currently found in subpart G of the Standards, which broadly prohibits employees from using their public office for private gain. See 5 CFR 2635.702(a).
Some exceptions would permit employees to solicit certain gifts in limited circumstances where it is clear that they have not used their official positions to induce the offering of the gifts, as in the case of an employee who solicits a gift from his or her spouse even though the spouse is employed by a prohibited source, pursuant to the exception at § 2635.204(b). These exceptions include: § 2635.204(b) (Gifts based on a personal relationship); § 2635.204(c) (Discounts and similar benefits); § 2635.204(d) (Awards and honorary degrees); § 2635.204(e) (Gifts based on outside business or employment relationships); § 2635.204(f) (Gifts in connection with political activities permitted by the Hatch Act Reform Amendments); § 2635.204(j) (Gifts to the President or Vice President); § 2635.204(k) (Gifts authorized by supplemental agency regulation); and § 2635.204(l) (Gifts accepted under specific statutory authority). However, these exceptions would continue to prohibit employees from using the authority of their positions to solicit or coerce the offering of gifts. They would also continue to prohibit employees from soliciting gifts to be given because of the employee’s position.
Other exceptions would bar solicitation of gifts under any circumstances, even where employees have not used the authority of their positions to influence or induce the giving of the gift. To emphasize this broader prohibition, OGE retained, and in some cases added, language in these exceptions clarifying that they apply only to the acceptance of “unsolicited” gifts. These exceptions include: § 2635.204(a) (Gifts of $20 or less); § 2635.204(g) (Gifts of free attendance at widely attended gatherings); § 2635.204(h) (Social invitations); § 2635.204(i) (Meals, refreshments and entertainment in foreign areas); and § 2635.204(m) (Gifts of informational materials).
OGE proposes to expand the description of the federal bribery statute, found at proposed § 2635.205(d)(1), to more closely follow the text of the law. OGE also proposes to add two new limitations on the use of the exceptions found at § 2635.204. Proposed § 2635.205(e) would bar an employee from relying on an exception to the general gift prohibition when the acceptance of the gift would be prohibited by Executive Order. Similarly, proposed § 2635.205(f) would bar an employee from relying on an exception to the general gift prohibition when the acceptance of the gift would be prohibited by supplemental agency regulation issued with the concurrence of OGE.
OGE proposes removing the limitation currently found at § 2635.202(c)(5) dealing with the acceptance of vendor promotional training. This limitation was originally included to ensure that any gift would be consistent with the guidelines on vendor promotional training in the Federal Information Resources Management Regulation, which was issued by the General Services Administration (GSA). See 57 FR 35006, 35012-13 (Aug. 7, 1992). However, that GSA regulation was rescinded in 1996.
Proposed Example 1 to paragraph (c) is current Example 1 following § 2635.202(c)(3).
Proposed § 2635.206 Proper Disposition of Prohibited Gifts
OGE proposes to move the regulations pertaining to the proper disposition of prohibited gifts from § 2635.205 to § 2635.206.
OGE proposes to modify the language currently found at § 2635.205(a), and redesignated at § 2635.206(a), to enhance readability, to add headings to the subparagraphs, and to emphasize that employees must promptly dispose of gifts that are accepted in violation of the subpart. OGE also proposes to add a sentence explaining that the obligation to dispose of prohibited gifts is independent of an agency’s decision to initiate corrective or disciplinary action.
Currently, § 2635.205(a)(1) provides that an employee who receives a tangible gift that is prohibited by the subpart must either return the gift to the donor or pay the donor the market value. Proposed § 2635.206(a)(1) would amend the regulation to provide employees with the option of destroying gifts with a market value not in excess of $100. OGE understands that on occasion it may be impossible, cost-prohibitive, or time-consuming for the employee or agency to return the prohibited gift. This could be the case, for example, if the donor was unknown or unreachable. In these cases, where the gift is a tangible item and the market value is $100 or less, OGE believes the Government’s interest may be better served by permitting an employee to destroy the gift. Destruction may be carried out by physical destruction or by permanently discarding the gift by placing it in a waste receptacle. OGE has provided examples illustrating proper gift disposition at the end of the relevant paragraphs.
OGE proposes revising § 2635.206(a)(2) for technical reasons. Proposed § 2635.206(a)(4) updates the citation that relates to disposition of gifts received from foreign governments or international organizations and strikes the language related to disposal of materials related to official travel. The latter provision has become obsolete following statutory changes occurring after the original promulgation of the Standards.
OGE proposes to add a new § 2635.206(d) to encourage employees to record any actions that they take to dispose of gifts that cannot be accepted under the subpart.
