Ethics Refresher Training - Gifts and the Public Officers ... · Gifts Public Officers Law §73(5) No OSC employee may receive any gift having more than a nominal value if it could

THOMAS P. DiNAPOLI

State Comptroller

PARS Refresher Training: Gifts and the Public

Officers Law

[email protected]

What May Be Considered a “Gift”?

Gifts include anything of value:

Money

Services

Loans

Travel

Lodging

Meals

Refreshments

Entertainment

Discounts

Job offers

GiftsPublic Officers Law § 73(5)

No OSC employee may receive any

gift having more than a nominal

value if it could be inferred that:

the gift was intended to influence

the performance of an employee’s

official duties, or

intended as reward for official

action.

Key Concepts

NOMINAL VALUE = $15 or less

INTERESTED SOURCE

An “Interested Source” is, generally, a person or entity with

a business relationship with the agency. For example,

those who appear on other than a ministerial matter,

lobbyists, applicants for funds, regulated entities, and the

spouses and the minor children of any person who is

required to be listed on a lobbying registration statement.

Key Concepts

PRESUMPTIONS

A Gift from an Interested

Source is presumptively prohibited.

A Gift that is not from an

Interested Source is

permissible unless certain

factors are present.

Exclusions

Acceptance of these items is not subject to the Gift analysis

required under Public Officers Law §73.

Anything for which a Covered Person has paid fair market value

Anything for which the State has paid or secured by State contract

Gifts from friends or family members

Contributions reportable under article fourteen of the Election Law

Exclusions (cont’d)

Acceptance of the remaining items/exclusions are not

subject to the Gift analysis required under Public

Officers Law §73.

**Acceptance is, however,

subject to an analysis under Public

Officers Law §74. **

Exclusions (cont’d)

Honorary degrees

Provision of local transportation to

inspect facilities in New York State

Meals for participants at a

professional or educational program

Food or beverage valued at fifteen

dollars or less per occasion

Promotional items that have no

substantial resale value and bear an

entity’s name, logo, or message.

(Examples: pens, mugs, calendars,

hats, and t-shirts)

Awards, plaques, and other

ceremonial items

Exclusions (cont’d)

Reimbursement of expenses for speakers at informational events applies only

when a governmental entity or in-state accredited institution of higher

learning is paying the expenses or reimbursing the Covered Person

Complimentary Attendance, including food and beverage, at a Bona Fide

Charitable Event or a Bona Fide Political Event

– Bona Fide Charitable Event – event’s primary purpose must be to provide

financial support to an organization that is either registered as a charity

with the Attorney General’s Office (unless exempt) or qualified under section

501(c)(3) of the Internal Revenue Code

– Bona Fide Political Event – event’s primary purpose must be to provide

financial support to a political organization or a candidate for statewide

office (as defined in Public Officers Law §§73-a(2)(a)(iii)-(viii))

Exclusion - Widely Attended Events

You may attend a conference if your State agency pays for registration.

You may be able to attend a conference if the sponsor waives the registration fee, including complimentary attendance, food and beverage:

The Ethics Unit must determine if the event is a widely-attended gathering.

The Ethics Unit must also determine if there is a legitimate State purpose.

State Officers and Employees must provide written notification to their Ethics Officer before attending a Widely Attended Event

“Widely Attended Events”Public Integrity Reform Act of 2011

Defined as an event that includes at least 25

individuals (other than members, officers or

employees from the governmental entity in which

the public official serves) who attend, or were in

good faith, invited to attend the event.

There must be a job-related purpose, for example,

hearing a speech on a substantive matter.

Widely Attended Events:

Parameters of exclusion

– Ok to accept free or discounted attendance

– Food and beverage is only permissible if offered

to all participants

– The exclusion does not cover entertainment,

recreational, or sporting activity unless the

presentation addressing the public interest or

concern is delivered during the entertainment,

recreational, or sporting activity

Exclusions (cont’d)

Goods and services and discounts for goods and

services

The goods and services, or the discounts, must be offered

to: (i) the general public or a segment of the general public

that is not based on status as a Covered Person; or (ii) all

Covered Persons; or (iii) a select group of Covered Persons

under certain circumstances

Exclusions (cont’d)

Rewards or prizes given to

competitors in contests or events

(including random drawings)

The reward or prize must be offered

to the general public or a segment of

the general public defined on a basis

other than status as a Covered Person.

GiftsPublic Officers Law § 73

Impermissible Indirect Gifts:

You may NOT designate a

friend, family member, or

entity to receive a gift that

you could not receive

yourself.

Gift Hypos

Maria works in the Banking Division of the

Department of Financial Services, which regulates

Acme Bank. Her husband, Albert, is a Vice President

at Acme Bank. All Acme employees have been given

an invitation to attend the annual holiday party that

includes 1 guest. There will be performances by

entertainers and a dinner. Can Maria attend the

Acme party for free?

Gift Hypos

A lobbyist, Leo, went to high school with an

employee of the Department of Environmental

Conservation, David. Leo regularly has matters

before the DEC. Leo sends David a $50 bottle of

wine as a Christmas gift. Can David accept the gift?

Gift Hypos

An employee of the NYS Office of Information

Technology Services, Hal, works with a vendor,

Valerie, who provides software that Hal uses at work.

Hal is not involved in selecting the vendor. Valerie

takes Hal out for lunch 1-2 times a month. Each

time, Hal’s lunch is less than $15. Is this permissible?

Gift Hypos

Thelma and Louise both work at the State Education

Department. Thelma runs the Office of Cultural

Education and Louise runs the Office of the

Professions. Both have been invited by the sponsor

of the event, Acme Society for Education in the

Media, to a cocktail reception at the Plaza Hotel. The

invitation indicates that a Professor from NYU will

be receiving an award for, and making a presentation

on, his research relating to educational programming

on television. May they attend?

Gift Hypos

I have been invited to a luncheon by an Interested

Source and the value of the meal is $25. If I pay $10

towards the price of the meal, may I accept the

invitation?

Gift Hypos

I have been invited to a bona fide charitable event by

a lobbyist who lobbies my agency. The value of the

admission to the event is $250. May I accept the

invitation?

PARS Hypo

Can I accept a gift – that does not meet one of the gift

exclusions - from an individual employed by another State

agency with a matter before me?

PARS Hypo Response

If the item, service, or any other thing of value meets the definition of Gift and is

from an Interested Source, it is presumptively impermissible. Such Gift is only

permissible if, under the circumstances, all of the following criteria are met:

(1) it is not reasonable to infer that the Gift was intended to influence the

Covered Person; and

(2) the Gift could not reasonably be expected to influence the Covered Person in

the performance of his or her official duties; and

(3) it is not reasonable to infer that the Gift was intended as a reward for any

official action on the Covered Person’s part.

Job OffersAdvisory Opinion No. 06-01

What are your obligations when you are offered a job from an

Business with a matter under your consideration?

Disclose conversation to:

Supervisor

Ethics Officer

If still interested in the position:

Remove yourself from the specific matter or project

30 day “cooling off” period

Rule on Solicited Offers

If you are interested in soliciting an employment opportunity with such

an entity or individual, you may only solicit an employment opportunity

after waiting 30 days from:

-The date the matter before you closed; or

-The date on which you notified your supervisor or Ethics

Officer of your intent to solicit a job offer and recused yourself

from the matter.

Contact Information

Division of Legal Services

Ethics Unit

110 State Street

Albany, New York 12236

(518) 408-3855

[email protected]