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Ot'fice of Legai Counse}

 

 

` ` Omcc 0[' the Washl'ngtan. D.C. 20530

Assistant Anomcy Gcncral . _ n n NUV _ d 1988

MEMORAND:JM FoR DICK THORNBURGH
Attorney General

Re: Acceptance of Gifts and Awards
bv the Attornev General

This memorandum is in response_to your request for
information on the applicable limits and regulations affecting
the acceptance of gifts and awards by the Attorney General.\ This
memorandum is not exhaustive, and it is intended only to provide
general guidance. Please do not hesitate to call on this Office
should you or your staff wish additional assistance in
interpreting any particular rule.

I. 'Restrictions on Acceptance-of Gifts

The rules governing the acceptance of gifts by departmental
officers and employees are derived from the criminal conflict of
interest statutes, 18 U.S.C. 201-209, from Exec. Order No. 11222,
3 C.F.R. 67 £1964-1965 Comp.), and from Department of Justice
regulations.

While your inquiry relates to the treatment of gifts to you
personally, we note at the outset that the_Department of Justice
does not have statutory authority to accept gifts §§ g
Dep_a;§ment.2 Therefore, you and-your staff are precluded from

 

z See, §4§.,.18 U;S`C. 201 (prohibiting the acceptance of
anything of value with the intent to influence an official action
or in return for an official act); 18 U.S.C. 203 (prohibiting
the acceptance of sharing.of fees derived from a matter involving
the Federal Government when the fee is based on any person’s
representation before a Department or agency during the period of
the employee's government service); and 18 U.S.C. 209(a)
(prohibiting the acceptance of 'any salary, or contribution to or
supplementation of salary, as-compensation for" the recipient's
services rendered to_the government.'). '

2 By comparison, eight of the thirteen Cabinet-level
agencies have general authority to accept gifts of money or
property ”for the purpose of aiding or facilitating the work” of
' ` (continued...)

 

accepting gifts on behalf.of the Department from anyone.3 lf the
gift is not accepted on behalf of the Department, it will be
'viewed as a gift to the individual._ This, in turn, raises two
concerns: whether_acceptance of a gift is permissible under the.
applicable laws and regulations and how the gift should be
reported on your financial disclosure form.

A. Statutory Restrictions on the Acceptance of Gifts

The most significant restriction on your ability to accept
gifts as an individual is 18 U.S.C. 209(a), which is a criminal
law prohibiting the receipt of "any salary, or any contribution
or supplementation of salary, as compensation for . . . services
as an officer or employee” of the Federal Government. See
Attachment 1. This section prohibits government employees from
accepting anything of value from a nongovernmental source which
is intended to provide additional salary or compensation for the`
official's government work.5 Section 209, which applies to
gifts of tangible property, as well as to things that might more
conventionally be regarded as a supplementation of salary, does
not depend upon the existence of a conflict of interest or an

appearance of impropriety. The statute also has no ge minimis
exception.

Because section 209(a) has no exception for items of minimal
value, the dispositive issue in a section 209 inquiry is whether

 

2(...continued)
the agency. These include the Departments of Agriculture (7
U.S.C. 2269), Commerce (15 U.S;C. 1522-23), Education (20 U.S.C.
3431), anergy (42 U.s.c. 7262), Housing and Urban nevelopment (42
U.S.C. 3535(k)), State (22 U.S.C. 2697), Transportation (49
U.S.C. 326), and Treasury (31 U.S.C. 321(d)(1)).

3 gfé, the Emoluments Clause of the Constitution forbids
officers of the United States from accepting gifts from foreign
countries without the consent of Congress. U.S. Const§, art. I,
sec. 9, cl. 8. The Foreign Gifts Act, 5 U.S.C. 7342,'provides-
limited consent for the acceptance of gifts in certain
circumstances on behalf of the United States, and, where the
value is minimal, on behalf of oneself. S.Rep. No. 1160, 89th _
Cong., 2d Sess. 2 (1966). See infra at Section III.

 

_F This memorandum does not discuss possible tax

consequences, but there may be some if you accept gifts of more
than a nominal valued

5 The most frequently used example is moving expenses, whichl
former employers often attempt to pay in order to minimize the

financial hardship to a new government employee. See, e.g., 5
cpc OuLoCo 150(1981)¢

 

a gift is offered on account of the recipient’s performance of

. official duties. Section 209(a) forbids only payments that are
intended to serve as additional compensation to an individual for
undertaking or performing government service.

The statutory objection is not to the outside income,
but to the linkage between the income and the
performance of official duties. The purpose is to
prevent an outside source from diluting an official's
loyalty by paying him on the side what the government
has already hired him to do.

B. Manning, Federal Conflict of lnterest Law, at 146 (1964).
Therefore, for each gift there must be an evaluation of whether
the gift provides financial benefit and whether it has been
tendered in an effort to supplement your official salary or in
gratitude for some action you have taken in your official
position. We emphasize that no one factor is determinative and
that the_totality of the circumstances'must be examined in each
case. _ -

The-evaluation should reference the purpose underlying
section 209, that is, ”that no Government official or employee
should serve two masters to the prejudice of his unbiased
devotion to the interests of the United States.' See 33 Op.
htt'y Gen. 272, 275 (1942). _Accordingly, we believe that the-
primary inquiry is an assessment of the motivation for the gift.
For example, if it is something given to a large number of-
individuals, both in and out of government, then it is less
likely to be classed as prohibited compensation under section
209.6 In addition, although section 209 has no ge minimis
exception, you should consider the value of a particular_gift in
ascertaining motivation and determining whether acceptance of `
that gift could be said to 'prejudice" your duty to interests of
the United States. The more valuable the gift, the more likely
it is that an objective observer would conclude that the gift was
intended to supplement your official salary.' The identity of
`the donor is also important to consider in assessing whether a
_ particular gift is compensation for government service or whether
it might be viewed as prejudicing your undivided loyalty to the
Department. Gifts of low value from donors who have no ties to
the Department and no reason to be interested in the particulars
of your official duties will probably be found not to violate
section 209. Expensive gifts from interested parties would
obviously be precluded. Thus, routine donations of commemorative

 

5 For example, if a university has an established policy of
continuing certain benefits for faculty on leave, whether in
government service or at another academic institutionr acceptance
of such benefits would ordinarily not be viewed as contrary to
section 209. see 5 op. o.L.c. 150 (1981). - ' '

_3_

 

plagues, souvenirs and other gifts of limited value are not
typically characterized as the kind of "compensation for services
as an employee of the United States” prohibited by section 209.

lt should also be noted that section 209 contains no
provision for depositing prohibited gifts in an arohive or
elsewhere. Under section 209(a), the mere acceptance of such
items constitutes the violation. Since the Department of
Justice cannot accept a gift, if you conclude that a gift was
intended as a supplement to your salary or to compensate you for

your official acts in violation of section 209(a), you must
return the gift.` , "

On the other hand, section 209(a) does not prohibit the
receipt of awards from certain charitable and other similar
organizations, even where the recipient's federal service was the

public service that gave rise to the award. 28 C.F.R. 45.735-
` l4a(e). The Department has come to this conclusion because
awards usually do not give rise to the divided loyalty that
section 209(a) was designed to prevent,'particularly because the
grantors are typically more likely to be disinterested in the
performance of the public official's duties with respect to
'particular matters. However, whether something is best described
as a gift or an award is often a difficult and fact-bound issue.

One of the functions of this Office is to assist you in making
such determinations. '

_ B. Executive Order and Department Restrictions
\ Affecting Gifts

Even if a gift is not intended to-influence an official in
violation of 18 U.S.C. 201 or to serve as a supplement to his
salary in violation of 18 U.S.C. 209, the gift may be barred by
the broader sweep of Exec. Order No. 11222 (Attachment 2} or
Department of Justice_regulations. Exec. Order No. 11222
prohibits an official from accepting gifts or 'any other thing of
monetary value" from any person or corporation which, inter alia,
does business with his agency, conducts activities which are
regulated by his agency or which has interests which may be
substantially affected by the performance or nonperformance of
his official duty. _lg., sec. 201(a)(l)-(3). An agency may by
regulation make such exceptions to this general prohibition ”as
may be necessary.and appropriate in view of the nature of their
agency's work and the duties and responsibilities of their
employees.' ;g., sec. 201(b). The Executive Order is '
implemented by the Department of Justice's Standards of Conduct
which prohibit the solicitation or acceptance of gifts or other
things of "monetary-value" from any person who:

(l) Has, or is seeking to obtain, contractual or other
business or financial relations with the Department: 7

 

(2) Conducts operations or activities that are
regulated by the Department; `

(3) ls engaged, either as principal or attorney,
in proceedings before the Departmen[t] or in court
proceedings in which the United States is an adverse
party; or

(4) Has interests that may be substantially
affected by the performance or nonperformance of the
employee's official duty. `

23 c.F.R. 45.735-14(a)(1)#(4). As with 13 U.s.c. 209(a), there
is no ge minimis exception. -

There are exceptions for certain limited classes of gifts.
The prohibition does not apply to ”solicitation or acceptance of
anything of monetary value from a friend, parent, spouse, child
or other close relative when the circumstances make it clear that
the motivation for the action is a personal or family
relationship.” 28 C.F.R. 45.735-14(c)(1). Nor does it apply to
bank loans containing customary terms for individual purposes
such as mortgages, or to ”acceptance of unsolicited advertising
or promotional materials, such as pens, pencils, note pads,
calendars or other items of nominal intrinsic value." 28 C.F.R.
45.735-14(c)(3),(4). These exceptions recognize that there are
situations in which the acceptance of a gift from an otherwise
prohibited source will not, as'a practical matter, raise any

'significant appearance of impropriety.

In_general, in advising whether a particular item should be
regarded as having "nominal intrinsic value” for the purpose of
this regulation, we have tended to take into account both the
\gift’s fair market value and the gift's practical value to the
recipient. Typically, plaques, certificates and other similar
tokens of appreciation have little if any market value and are of
_limited practical value to the recipient as well.

'f' One other provision of Exec. Order No. 11222 must be
considered in determining whether to accept any gift. Section
201(c), like 5 C.F.R. 735.201a, requires that executive branch
personnel avoid any action that might result in or create the
appearance of using public office for private gain, the loss of
complete independence or impartiality, or the loss of public

 

~7 Again, as indicated in the text, if something is truly an
award given by a charitable or similar organization, which has
an established history of giving such awards to others, the
award's monetary value is generally not determinative. In such
event, government employees "may accept awards . . . so long as
the circumstances are such that acceptance is compatible with the
other principles set forth.in [Part 45].” `28 C.F.R. 735-14a(e}.
See our discussion of awards, supra.

_5..

 

confidence in the integrity of the government. This language,
while general in nature, serves as a reminder that it is
necessary to evaluate whether acceptance of a gift is appropriate

as well as lawful.

`Overall, the soundest course would-be to decline any gifts
except unsolicited items of relatively insignificant monetary or
practical value, To minimize problems, your staff should, when
scheduling events, notify potential individual and corporate
donors that although you_are honored by their thoughtfulness, you
must decline gifts as a matter of propriety and compliance with
.the standards outlined above. Finally, because gifts that are
prohibited under these provisions may not be accepted "directly
or indirectly,” we would advise that no gifts should be accepted
by Mrs..Thornburgh that could not be accepted directly by you.

Finally, while it is not the-subject of this memorandum, it
yshould be noted that reimbursement from any source other than the
Federal government for transportation, food and lodging in
connection with official business is generally not permissible.
See 28 C.F.R. 45.735»14a(a). There is a highly limited exception
for the acceptance of reimbursement from an organization
qualifying under section 501(0}(3) of the Internal Revenue Code,
but only in connection with *training or attendance at `
meetings.” `

II. Financial Disclosure

In addition to the restrictions on the receipt or acceptance
of gifts outlined above, you are also required by the Ethics in
Government hot to file an annual financial disclosure statement
with the Office of Government Ethics reporting any qifts,
including honoraria, received during the year.9 The Act requires
the reporting of "[t]he identity of the source, a brief
description, and the value of all gifts other than .'
transportation, lodging, food, or entertainment aggregating $100
or more in value-received from any source other than a relative .
. . , except that any gift with a fair market value of $35 or
less need not be aggregated . . . ." 5 U.S.C. Appendix, sec;

 

8 The Department, with the concurrence of OGE, has
determined that ”meetings" include most functions funded by
501(c)(3) organizations, including dinners.

9 Disclosure requirements are in addition to, not a
substitution for, the restrictions on the receipt of gifts, even
though the latter may be more restrictive.

_6_

 

zoz(a)(z)(s).lo see also 5 c.F.R. 734.301(¢)(1), (5). You must
also disclose those gifts accepted by your wife or dependent
children that were received by them "by reason of such spouse's
or dependent child's relationship to [you]." 5 C.F.R.
734.303(1)) (3) .

Separate, specific disclosure requirements also apply to
gifts and reimbursements of more than $250 worth of
-"transportation, lodging, food, or entertainment {received] from
any source other than a relative.” 5 C.F.R. 734.301(0)(2).
while the $35 threshold for aggregating is also applicable here,
those gifts which are received as the ”personal hospitality of
any individual"'11 need not be reported. lg.

III. Foreign Gifts

The rules governing the acceptance of gifts from units or
representatives of a foreign government are different from those
discussed`above.12 The Foreign Gifts Act, 5 U.S.C. 7342,
permits federal employees to accept from a foreign government "a
gift of minimal value tendered and received as a souvenir or mark
of courtesy.” :5 U.S.C. 7342(0)(1)(A). The gift may not, of
course, be solicited. 5 U.S.C. 7342(b)(1). A gift of more than
”minimal value” may be accepted if ”it appears that to refuse the
gift would likely cause offense or embarrassment or otherwise
adversely affect the foreign relations of the United States':
such a gift; however, is ?deemed to have been accepted on behalf
of the United States, and,_upon acceptance, shall become the
property of the United States.” 5 U.S.C. 7342(c)(1)(B){i).
-Pursuant to the Federal Property Management Regulations, 41
C.F.R. Part 101-49, which implements the Foreign Gifts Act,
”minimal value" means ”a retail value in the United States at the
time of acceptance of $180 or less . . . .” 41 C.F.R. 101-
49.001-5. lt should be noted that "where more than one tangible
item is included in a single presentation, the entire

 

: 10 Value is defined to mean ”a good faith estimate of the
dollar value if the exact value is neither known nor easily
obtainable.” 5 C.F.R. 734.105.

ll The term "personal hospitality of any individual” is
defined as hospitality "extended_for a nonbusiness purpose by an
individual, not a corporation or organization, at the personal
residence of that individual or the family of such individual or

on property or facilities owned by that individual or the family
of such individual.”` 5 C.F.R. 734.105.

12 Gifts from foreign private individuals, however, are
subject to the same rules discussed above for gifts from
domestic donors. _ -_ 7

...7_.

 

presentation shall be considered as one gift,” with the aggregate
value not exceeding the "minimal value.” 22 C,F.R. 3.4(b)(1).

You are responsible for determining whether a foreign gift
offered to you meets the ”minimal value” requirements.' 22
C.F.R. 3.4(a)(2}. If a dispute should arise over its value, "the

employing agency will secure the services of an outside appraiser

to establish whether the gift is one of 'minimal value.'” '22
c;F.R. 3.4(b)(2).13

All foreign gifts valued at $50 or more must be reported to
lthe Assistant Attorney General for Administration within 15 days~
of their acceptance (or, if you are on a lengthy foreign trip,
within 15 days of your return), pursuant to the Justice Property
Management Regulations (JPMR), Part 128-49. Any foreign gifts
accepted on behalf of the United States should be turned over to_
the Justice Management Division for proper disposition. If you'
decide to personally accept a foreign gift that is in excess of
$lQO but is of less than ”minimal value," you must report it, ,
'along with domestic gifts, on your financial disclosure form.~ 5
c.F.R. 734.301(¢)(1). '

IV. Handling of Gifts of Nominal Value

You have also asked whether it would be acceptable for
someone on your staff to identify those gifts that are clearly
below the value limitations, without seeking a formal appraisal.
We believe that someone on your staff could be tasked with the
responsibility, in consultation with this Office when necessary,
with separating commemorative gifts of nominal value which need
not be returned or reported from others that must. The value of
an item can be determined without appraisal if it is generally
available in the marketplace; in such event, the rule states that
”the value shall be its retail price."l 5 C.F.R. » -
734.301(0)(4)(i). The reporting individual *need not contact the
donor but may and_should contact a retail establishment selling
similar items to determine the present cost in the market." ld.
We believe that this language indicates that it is not mandatory
that such contacts be made in every circumstance, particularly
when the gift in question is clearly below the value limitation
of what may be legally accepted. If the item is one with which
your staff is familiar, it would not_make sense to call a retail
store every time such an item is received. Accordingly, we.
believe it would be permissible for a member of your staff to_
value items either where the staff person has personal knowledge
of the value of an item or where it is clear that the value of `

 

13_The cost of the appraisal will be borne by the Department
if the appraisal establishes that the value of the gift is less

than $200. If it reveals a higher value, you would have to pay
_ the cost of the appraisal. ld. `

_8_.

 

the gift is nominal, either for purposes of accepting a
commemorative gift of nominal value under 28 C.F.R. 45.735-
14(c)(4) or a foreign ”minimal value" gift under 5 U.S.C.
'7342(c)(1)(h) or for purposes of filing your financial
disclosure report. 5 C.F.R. 734.301(c)(5). -

V. Conclusion

As a general rule, to minimize your administrative burdens,
the sponsors of events to which you are invited should be
discouraged from presenting you with anything except commem-
orative gifts of nominal value. ln all events, any accepted
gift must be unsolicited, and before acceptance, should be
evaluated to see if it violates 18 U.S.C. 209, Executive Order
No. 11272 and the Department's implementing Standards of Conduct
or the other applicable rules or statutes discussed herein. Bona
,fide awards can be accepted from charitable and other similar
organizations. Assuming under the Standards outlined herein that
pit is appropriate to accept a gift, that gift must be disclosed
on your financial disclosure report if it is worth more than $lOO
and is from a source other than a relative. Assuming under the '
Standards outlined herein that it is appropriate to accept a
reimbursement, that reimbursement for travel or lodging must be
disclosed on your financial disclosure report if it is worth more
than $250 and is from a source other than a relative. Foreign
gifts in excess of $180 should not be accepted, or if accepted to
avoid diplomatic embarrassment, must be turned over to thel
Justice Management Division. Any foreign gift accepted and
valued at $50 or more must be promptly reported to the Assistant
Attorney General for Administration,-and if in excess of $100 but

not greater than $180, reported on your financial disclosure
report. - ' '

Please let me know if we can be of further assistance.

  

Assist Attorney General
Offic of Legal Counsel

cc: Robin Ross
lony Schall
Murray Dickman
Cuyler Walker

 

