                       Gifts Received on Official Travel

Gifts given to United States employees by a Japanese government agency may be retained
   consistent with 5 U.S.C. § 7342 and implementing regulations if the items are worth less than
   $140. More valuable gifts must be deposited with the employing agency.

Gifts from private Japanese organizations are governed by 19 U.S.C. § 209(a). That statute, as
   consistently construed by the Departm ent of Justice, makes it a crime to receive items of any
   value given as additional compensation for performing government service. The gifts from
   private Japanese organizations appear to have been given as a result o f the federal em ployee's
   official duties, and may not be accepted under § 209(a), and pursuant to the statute, must be
   returned to their donors.

In addition, Departm ent of Justice conflict-of-interest regulations would independently prohibit
   acceptance o f these gifts if the donors have litigation or financial business with the Depart­
   ment.

                                                                                       June 15, 1984

                         M e m o r a n d u m O p i n io n f o r t h e C h i e f ,
               F o r e i g n C o m m e r c e S e c t io n , A n t it r u s t D iv is io n


   An employee of the Antitrust Division requested an opinion on the
Department’s policy regarding disposition of gifts recently received by certain
government employees while attending official bilateral antitrust consultations
in Japan. We understand the facts to be as follows: Eight employees (four from
the Department of Justice and four from the Federal Trade Commission) each
were given either a leather wallet or a case for eyeglasses of unknown value by
the Japan Fair Trade Commission, a government agency. In addition, each was
given a small tape recorder, valued at approximately $120, by the Corporation
A in Japan while on a tour of that company’s plant. Finally, a regional
association of private Japanese manufacturers gave each employee a small item
of pearl jewelry, ranging in value from $56 to $78.
   The gifts from the Government of Japan are regulated by 5 U.S.C. § 7342,
which permits the acceptance and retention by an employee of a gift from a
foreign government if the gift is “of minimal value tendered and received as a
souvenir or mark of courtesy .” 5 U.S.C. § 7342(c)(1)(A); see 28 C.F.R. § 45.735-
14(d) (1983). “Minimal value,” which the statute directs to be determined
administratively, is defined, as of 1983, to mean a retail value in the United
States of $140 or less. 41 C.F.R. § 101^19.001-5 (1983). Therefore, if the
leather item tendered to each employee by the Japanese Government is worth
$140 or less, it may be retained. If it is worth more than $140, the statute and
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regulations provide a procedure for depositing the gift with the employing
agency for disposal or official use.1 5 U.S.C. § 7342(c)(2); 41 C.F.R. §§ 101—
49.101 et seq.
    Retention of the gifts given by private organizations — the tape recorders
and pearl jewelry — is not covered by the foreign gifts statute because those
items were not given by representatives of a foreign government. With respect
to these gifts, we believe there is a serious problem under 18 U.S.C. § 209(a),
which makes it a crime, with certain exceptions not here relevant, to give or
receive “any salary, or contribution to or supplementation of salary, as com­
pensation for” the recipient’s services to the federal government. Because the
statute has no exception for items of minimal value, the dispositive issue in a
§ 209 inquiry is whether a gift is offered on account of the recipient’s perfor­
mance of official duties. This Department has consistently construed § 209(a)
and its predecessor, 18 U.S.C. § 1914, to forbid only payments intended to
serve as additional compensation to an individual for undertaking or perform­
ing government service. See 41 Op. Att’y Gen. 217, 221 (1955); 39 Op. Att’y
Gen. 501,503 (1940). In addition to the express statutory exceptions to § 209(a),
we have recognized implicit exceptions for commemorative awards for public
service. We have opined that such awards are permissible primarily because
the grantors are typically detached from and disinterested in the performance of
the public official’s duties. Consequently these gifts do not tend to give rise to
the divided loyalty or dependence on outside remuneration that § 209 was
designed to prevent.
    From the facts outlined above, it appears clear to us that the gifts in question
were given under circumstances which were the result of the federal employ­
ees’ participation in meetings with Japanese representatives, an aspect of their
official duty as government employees. Furthermore, they do not appear to be
motivated by a disinterested desire to honor distinguished public service. Thus
we believe § 209(a) prohibits the employees’ acceptance of the gifts which
were tendered by private donors.
    In addition, the Department’s gift regulation, 28 C.F.R. § 45.735-14, would
independently prohibit acceptance of these gifts on conflict-of-interest grounds
if the donors have the requisite litigation or financial business with the Depart­
ment. That regulation provides that a Department employee may not accept any
gift from a “person” who
             (1) Has, or is seeking to obtain, contractual or other business
          or financial relations with the Department;
            (2) Conducts operations or activities that are regulated by the
          Department;
             (3) Is engaged, either as principal or attorney, in proceedings
          before the Departmental [sic] or in court proceedings in which
          the United States is an adverse party; or
   1 A dditionally, those em ployees required to file annual public financial disclosure reports must report this
g ift if its value m eets o r exceeds $100. 5 C .F .R . § 734.301(c)

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            (4) Has interests that may be substantially affected by the
          performance or nonperformance of the employee’s official duty.
28 C.F.R. § 45.735-14(a) (1983).2
   We do not have sufficient information to determine with certainty whether
either Corporation A or the trade association would fall into one of these
categories. However, it is clear that the regulations define the term “person”
broadly enough to encompass both of these entities. See 28 C.F.R. § 45.735-
3(e) (1983) (“ ‘Person’ means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company, or any other
organization or institution”). Thus, if either entity conducts business that would
classify it as one of the prohibited donors, the regulation would proscribe
acceptance of gifts from that entity by Department of Justice employees.3
   We understand that these gifts have already been accepted and have been
transported to the United States via official pouch for appropriate disposition.
Unlike the foreign gifts statute, however, § 209 contains no provision for
depositing prohibited gifts with the United States. Under § 209(a), it is the
mere acceptance of such items that constitutes a crime. Further, even if the gifts
were treated as gifts to the agencies themselves, the Department of Justice
could not accept them because it does not have gift authority. We must advise,
therefore, that the gifts donated by non-governmental entities be returned to
their donors, to effect compliance with the statute.

                                                                     R alph W . T arr
                                                        Deputy Assistant Attorney General
                                                            Office o f Legal Counsel




  2 The Federal Trade Com m ission has a sim ilar regulation prohibiting gifts from persons having business
w ith that C om m ission. See 16 C.F.R. § 5.11 (1984).
  3The gifts by the Japanese G overnm ent are exem pted from the regulatory prohibition if they conform to the
requirem ents o f the foreign gifts statute, discussed above. 28 C.F.R. § 7 3 5 -14(d) (1983).

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