November 14, 2002
MEMORANDUM FOR ALL MEMBERS, OFFICERS AND EMPLOYEES
FROM: Committee on Standards of Official Conduct
Joel Hefley, Chairman
Howard L. Berman, Ranking Minority Member
SUBJECT: Gift Rule Provisions on Meals, Entertainment and Recreational Activities from Lobbyists
This memorandum reiterates a number of the basic rules that Members and staff need to follow when they are offered a meal, tickets to a sporting event or show, or other entertainment or recreational activity by a lobbyist.1
As is stated in the Gifts and Travel booklet issued by the Standards Committee (on pp. 12-13), as a general rule a Member or staff person may accept such an offer only if (1) the value of the meal or other gift is less than $50 and (2) the cumulative value of the gifts accepted from that source during a calendar year is less than $100. Other fundamental points that the Committee here reiterates are as follows –
A gift having a value of $50 or more is not acceptable as a "personal friendship" gift merely because a lobbyist pays for it with personal funds.
While one of the provisions of the gift rule allows the acceptance of gifts given on the basis of personal friendship, the Committee has advised Members and staff to be very cautious about relying on this provision in accepting any gift from a lobbyist (see pp. 20-21 of the Gifts and Travel booklet). The "personal friendship" exception to the gift rule by its terms does not apply where –
the official has reason to believe that, in the circumstances, the gift was provided because of his or her official position with the House, and not because of the personal friendship. [House Rule 25, cl. 5(a)(3)(D)(i)]
While the matter of who is paying for a gift – an individual personally, or his or her employer – is an important consideration here, it is clearly not the only consideration. A consideration of at least equal importance under the rule is "[t]he history of [the official’s] relationship with the individual giving the gift, including any previous exchange of gifts between them."2 The Standards Committee has long advised that a Member or staff person should not accept a gift from a lobbyist under the personal friendship provision unless both (1) the lobbyist is paying for the gift personally and (2) the history of the relationship has included reciprocal gift exchange.3 Acceptance of such a gift under the personal friendship provision is also precluded where "the individual who gave the gift also gave the same or similar gifts to other Members . . . officers, or employees of the House."4
Furthermore, certain gifts clearly have a business purpose – for example, meals and similar food items sent to a congressional office (discussed further below), and any meal the primary purpose of which is to discuss the host’s congressional business. Such gifts are never acceptable under the personal friendship provision of the rule. Members and staff must also bear in mind that under the rule, they may not accept a "personal friendship" gift having a value exceeding $250 – including, for example, a vacation trip – without the written approval of the Standards Committee.5
Meals and similar food items sent to a House office for consumption by staff are deemed a gift to the employing Member.
At times a lobbyist sends pizza, Chinese food or other food items to a House office for staff, particularly when the House is in session late or on a weekend. This circumstance too is addressed in the Gifts and Travel booklet, on pp. 18-19. Such a gift of food to a House office, although intended primarily for consumption by staff, is deemed to be a gift to the employing Member of those staff persons. As such, any such gift is subject to the per-gift limit of less than $50, and it counts against the employing Member’s annual gift limit of less than $100 from the person who provided the food.
Moreover, as the booklet makes clear, such a gift, even if within the dollar limits of the gift rule, must be refused entirely if the person offering it has a direct interest in the particular legislation on which staff is working at the time. Acceptance of the food in that circumstance may implicate the illegal gratuities statute, which prohibits the acceptance of any gift for or because of an official act.6
The less-than-$50 gift limit cannot be evaded by such devices as dividing the expense of a gift among two or more lobbyists, or averaging the expense of gifts given to more than one Member or staff person.
The per-gift limitation of less than $50 is clearly stated in the gift rule. It is absolute, and it cannot be evaded by any artificial devices.
Thus, for example, a Member or staff person may not accept a meal having a value of $50 or more merely because he or she is being hosted by more than one person, and the hosts will divide the bill in such a manner that the outlay of each will be less than $50. The same rule applies to, for example, a gift of free attendance at a show or sporting event. Where more than one person will be paying for a gift, the full value of the gift is to be attributed to one of those persons for gift rule purposes, and hence the total value of the gift must be less than $50.7
Similarly, where a person is hosting more than one Member or staff person, it is not permissible for any of them to accept a meal having a value of $50 or more merely because others are accepting a meal valued below the limit and the host’s outlay will be on average less than $50 per guest. For each Member or staff person attending such a meal, the value of the gift is the value of the food and beverages accepted by the individual.
In this regard, Members and staff are reminded that the House Code of Official Conduct explicitly requires them to adhere to the spirit as well as to the letter of the Rules of the House, including the gift rule (House Rule 23, cl. 2). This provision of the Code of Conduct means, among other things, that a Member or staff person may not do indirectly what he or she would be barred from doing directly.8
An additional point to bear in mind is that "buydowns" are not allowed under the rule – that is, a Member or staff person may not "buy down" the value of a gift in order to bring it within the dollar limitations. This matter is addressed on pp. 16-17 of the Gifts and Travel booklet. Thus, for example, a Member or staff person may not accept a meal or a sporting event ticket having a value of $60 merely by paying $11 to the offeror. Instead, if the official wishes to accept or has already accepted the gift, he or she must pay the full value of the gift to the person who provided it.
For purposes of the rules, gifts are generally valued at the amount at which the item or service is available to the public, and the less-than-$50 limit applies to each occasion on which one or more gifts are offered.
The gift limits likewise cannot be evaded by attributing an improperly low value to a gift.9 The rules on valuation of gifts are set out on pp. 18, 56-58 of the Gifts and Travel booklet.
In addition, the less-than-$50 limit applies to each gift occasion. Thus, for example, if a Member or a staff person accepts a ticket to a sporting event having a value of $35, he or she may not accept, in connection with attendance at that event, any other gifts (including, for example, food or beverages, parking, or souvenirs) having a cumulative value greater than $14.99. Any officially connected trip that a Member or staff person takes under the rules is likewise considered a single gift occasion, and thus in the course of any such trip, he or she may not accept from the trip sponsor (or anyone else) any entertainment or recreational activities having a cumulative value greater than $49.99. Bear in mind too that any gift given to a spouse or other person accompanying a Member or staff person on a trip or to an event is deemed a gift to the official and counts against the less-than-$50 limit.10
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Violations of the limits of the gift rule by a Member or staff person may result in the initiation of formal disciplinary proceedings.11 Gifts of the nature discussed in this memorandum are of particular concern, as one of the overriding purposes of the gift rule approved by the House in 1995 was to curtail the acceptance of meals and entertainment or recreational activities from lobbyists and others having business before the House. Members and staff should also be aware that in certain specific circumstances – for example, where a gift appears to be tied to an official action – acceptance of gifts from such persons may be a basis for the initiation of a criminal prosecution by the Justice Department.12
Whenever offered a gift that does not clearly fit within the limitations of the gift rule, a Member or staff person should seek guidance from the Standards Committee. Guidance or interpretations provided by any other source – whether other Members or staff, or any outsiders – should not be relied upon. In that the Committee has issued extensive publications on the gift rule and is available to respond to any questions that arise, the Committee will excuse no violation on the basis of a claim that the Member or staff person did not know that the particular conduct violated the rule.
Any questions on these matters should be directed to the Committee’s Office of Advice and Education at extension 5-7103.
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1 Here we use the term "lobbyist" broadly to refer not only to individuals who are registered under the Lobbying Disclosure Act or the Foreign Agents Registration Act, but also to lobbying firms, and to businesses, unions, other entities and individuals having business before the House, and the non-lobbyist officials of those entities. 2 House Rule 25, cl. 5(a)(3)(D)(ii)(I). 3 Gifts and Travel booklet, pp. 20-21. 4 House Rule 25, cl. 5(a)(3)(D)(ii)(III). 5 Id., cl. 5(a)(5). 6 The Senate Select Committee on Ethics has issued the same guidance to Senators and staff regarding gifts of food sent to a Senate office. Senate Ethics Manual, 106th Cong., 2d Sess. (2000) at 24-25. 7 The Senate Select Committee on Ethics has issued the same advice on this point to Senators and staff. Senate Ethics Manual, 106th Cong., 2d Sess. (2000) at 55. 8 House Ethics Manual, 102d Cong., 2d Sess. (1992) at 15-16. 9 See Senate Select Comm. on Ethics, Letter of Admonition to Sen. Robert G. Torricelli dated July 30, 2002, p. 2. 10 The only exception to this rule is where a Member or staff person and the official’s spouse or child are guests at a meal. In that circumstance, the value of the meal provided to the spouse or child does not count against the gift rule limits. House Rule 25, cl. 5(a)(2)(B)(ii). 11 See, e.g., House Comm. on Standards of Official Conduct, Summary of Activities One Hundred Sixth Congress, H. Rep. 106-1044, 106th Cong., 2d Sess. at pp. 10, 13, 15, 16-17 (2001). See also Senate Select Comm. on Ethics, Letter of Admonition to Sen. Robert G. Torricelli dated July 30, 2002.12 See, e.g. United States v. Traficant, Case No. 4:01CR207 (N.D. Ohio), Counts One-Five, and United States v. Ann M. Eppard, Crim. No. 98-10114 (D. Mass.) (former staff member pled guilty to accepting money and other benefits from a lobbyist in violation of 18 U.S.C. §203, which prohibits the acceptance of compensation other than as authorized by law).