Monday, November 30, 2015

Accepting Gifts from Outside Sources

The U.S. Office of Government Ethics (OGE) has proposed revisions to the Standards of Ethical Conduct for Executive Branch Employees that are designed to identify situations where Government employees should not accept what would otherwise be permissible gifts. Most Government contractors are required to have ethics and standards of conduct programs and many pattern theirs after the OGE's authorities and materials. Staying abreast of what the Government is doing in this area should help contractors keep their own policies and procedures fresh and current.

The proposed rules are quite lengthy and contain many situational examples of ethical conduct and ethical dilemmas. To read and study (and perhaps comment on) the entire proposal, click here.

One of the new sections proposed for addition to the guidance is entitled "Considerations for declining otherwise permissible gifts." The OGE wants to add this section because, in its experience, employees and ethics officials sometimes focus on whether a regulatory exception permits the acceptance of an otherwise impermissible gift, and no 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, the proposed regulations 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. Specifically, the new section encourages employees to consider the potential that a reasonable person would question their integrity if they were to accept the gift. In circumstances where an employee concludes that a reasonable person would question his or her integrity, the employee is encouraged to consider declining the gift.

Such considerations include:

  • 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 ot 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.
Of course, the fail-safe policy is never to accept gifts, period.

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