New Federal Executive Branch Gift Rules for 2017

The U.S. Office of Government Ethics (“OGE”) has issued revised regulations governing the solicitation and acceptance by Federal Executive Branch employees of gifts from outside sources. The final revised regulations are effective January 1, 2017 (“New Gift Rules”) and are available here. Please note that these revisions do not affect the gift rules applicable to the Federal Legislative Branch (U.S. House of Representatives Rule XXV and U.S. Senate Rule XXXV, available here).

As a reminder, the current gift rules at 5 C.F.R. Part 2635, Subpart B (“Current Gift Rules”) generally prohibit Federal Executive Branch employees from accepting gifts from sources from outside the Federal government if the gifts are given because of an employee’s official position or the gifts are from certain sources, unless an exception applies. The Current Gift Rules contain numerous exceptions.

According to the OGE, the New Gift Rules were issued in order to “more effectively advance public confidence in the integrity of Federal officials”, as well as to incorporate past interpretive guidance, add and update regulatory examples, improve clarity and make technical corrections.¹ This Client Alert provides an overview of the most notable changes.

Revisions that further restrict the Current Gift Rules include the following:

• Alcohol is not a “modest” refreshment: The Current Gift Rules provide an exception for “modest items of food and refreshments, such as soft drinks, coffee and donuts, offered other than as part of a meal.”² Although the Current Gift Rule does not explicitly include or exclude alcohol from this exception, the OGE has explained that its “longstanding interpretation” is that alcohol is not covered by this exception. With the issuance of the New Gift Rules, OGE revises this exception to specify that it does not cover alcohol.
  
  This revision does not mean that alcohol is completely banned under the gift rules. Alcohol may be accepted under other applicable exceptions, such as at events that qualify as “widely attended gatherings.” However, if alcoholic refreshments will be offered, a specific exception needs to be identified.

• Attendance at “widely attended gatherings” is only permissible upon written authorization by agency officials: The Current Gift Rules allow a Federal Executive Branch employee to attend events that qualify as “widely attended gatherings” if an agency designee determines orally or in writing that the employee’s attendance is in the interest of the agency, or if the employee is speaking or presenting at the event. The New Gift Rules require such determinations to be made in writing for all such widely attended gatherings, regardless of whether the employee is assigned to speak or present at the event.

Revisions that loosen the Current Gift Rules include the following:

• “Presenter-only” meals are permissible: The Current Gift Rules allow Federal Executive Branch employees to receive, at widely attended gatherings, “free attendance” which includes meals provided in a group setting with all other attendees. However, the New Gift Rules allow a Federal Executive Branch employee who is presenting at an event to receive a separate meal that is provided by the event sponsor for only participating presenters.

• Attendance at events hosted by former employers is permissible: The New Gift Rules include a specific exception allowing a Federal Executive Branch employee to attend a reception or similar event hosted by his/her former employer if other former employees are invited to attend, the invitation and benefits are based on the former employment relationship and it is clear that such benefits have not been offered or enhanced because of the employee’s official position. This does not mean that attendance at such events was impermissible under the Current Gift Rules; just that such attendance was only permitted if it met another exception. This exception makes it easier for private sector employees to invite former employees, including those working in the Federal Executive Branch, to certain events such as holiday parties.

• Certain informational materials are permissible: Similar to the gift rules of the U.S. House of Representatives and Senate, the New Gift Rules now include a specific exception for unsolicited “gifts of informational materials.” The value of such informational materials from any one person must be $100 or less in a calendar year; provided that a Federal Executive Branch employee may accept informational material exceeding this threshold if an agency designee has made a written determination that the gift is permissible.
  
  Covered informational materials are writings, recordings, documents, records or other items that are educational or instructive in nature and are not primarily created for entertainment, display or decoration (for example, novels are unlikely to fall under this exception). They must also contain information that relates to: the employee’s official duties/position, profession or field of study; a general subject matter area, industry or other economic sector affected by or involved in the programs or operations of the agency; or other topic of interest to the agency or its mission.

The OGE also added a number of examples to the New Gift Rules to clarify the applicability of the exceptions. For instance, examples were added to help clarify how the market value of a gift should be calculated. An example was added to clarify the exception allowing gifts to be provided on the basis of personal friendship; this example demonstrates that two people who are “friends” through social media are not necessarily friends for purposes of this exception. The New Gift Rules also encourage Federal Executive Branch employees to decline otherwise permissible gifts if they would raise concerns about the appearance of impropriety and provide guidelines to help employees make such determinations.

¹ Standards for Ethical Conduct for Employees of the Executive Branch; Amendment to the Standards Governing Solicitation and Acceptance of Gifts from Outside Sources, 81 Fed. Reg. 81641, 81641 (Nov. 18, 2016) (to be codified at 5 C.F.R. Part 2635).

² 5 C.F.R. 2653.203(b)(1).