Posted March 23, 2007 by Meredith McGehee

Gratuities Accepted... Unless Illegal

The criminal statute on “illegal gratuities” has always sounded like a law to penalize over-zealous tipping.  But it has proven itself a valuable tool for prosecutors pursuing public officials on the take.  A recent case decided by the U.S. Court of Appeals for the District of Columbia, Valdes v. United States (2007), has again highlighted why the 110^th Congress needs to take action to ensure that public officials who put a for-sale sign on their office can be held accountable under the law.

On February 9, in a 7 to 5 decision, the DC Court of Appeals reversed a trial verdict against a police officer who accepted cash from an undercover FBI agent, who posed as a federal judge, as a reward for searching law enforcement databases for information on automobile ownership and possible arrest warrants for people the “judge” said owed him money.  There is no disagreement in this case over the facts:  the policeman in question, Nelson Valdes, accepted the $400 and he looked up information in the restricted database, using a colleague’s code to cover his tracks.     

However, the court threw out Mr. Valdes’ conviction because the majority determined that his actions were not covered by the term “official act” in the illegal gratuities statute.  The court ruled that, since looking up the information was not part of a pending police matter and not part of his assigned official duties, his acts did not fall within the meaning of the term “official act.”  DOJ has not determined whether to appeal this decision to the Supreme Court.

When the Valdes decision is combined with an earlier U.S. Supreme Court decision United States v. Sun-Diamond Growers (1999), the result is now that the federal gratuities statute has been eviscerated.  The two decisions have removed a very valuable arrow from the legal quiver of public integrity prosecutors’ dealing with officials who commit malfeasance in office.  In the Sun-Diamond case, U.S. Agriculture Secretary Mike Espy received more than $6,000 worth of gifts from individuals with interests before the Department.  The Supreme Court found that the federal gratuities statute requires that a particular official act be identified and proved in connection to a gift to a public official.  The government’s establishment of the fact that the recipient official had the authority to act on pending matters in favor of the donor was deemed insufficient.

The anti-gratuities statute is an important corollary to the federal bribery statute because unlike bribery, which requires an explicit quid pro quo, gratuity statutes address the gifts and favors given to public officials in order to curry favor with them.  Gratuities statutes have been on the books for more than three decades in recognition that gifts and favors can bias a government official in favor of the giver and distort the official’s ability to execute the duties of office impartially, even if the official is not aware of it or believes he or she is immune to influence.  The statute recognizes that the giving and receiving of these gifts creates a sense of obligation.  It also creates an appearance of impropriety that undermines public confidence in government. 

The Valdes ruling, when combined Sun-Diamond, has created a loophole in federal ethics laws that requires congressional action to close. The 110^th Congress should put rewriting the federal gratuity statute on its “must-do” list in order to correct the extremely narrow construction given this statute by two recent federal cases.

A new statute should more closely track the interpretation of the federal gratuities statute asserted by the U.S. Department of Justice in the Sun Diamond case, and specify that gifts given or accepted “for or because of” an official’s position fall under the statute’s prohibition, with an appropriate exemption for gifts that are permitted under rules promulgated by the supervisory ethics office, pursuant to the federal gift statute.  As the DOJ argued, the gratuities statute should reach “any effort to buy favor or generalized goodwill from an official who either has been, is, or may at some unknown, unspecified later time, be in a position to act favorably to the giver's interests,” and should not require a showing that “a gratuity was connected to a particular official act.” 

Without such a change, only those acts which meet an ambiguous standard of formality will violate the law. 

As the law now stands, public officials can accept gifts if they are not specifically tied to “official acts” under Sun Diamond, and can still accept gifts even if they are tied to official acts, so long as those acts do not meet the stringent standards established by Valdes.  The improper disclosure of government information or the misuse of government property or resources, according to Valdes, would not be covered by the federal gratuities statute. 

Such a state of law is insufficient to protect the public from official corruption and to ensure that federal officials on all levels fulfill their responsibilities in an honest and impartial manner and refrain from using their positions for financial gain.

The gratuity statute is an important bulwark precluding a Member from legally accepting cash rewards for performing legislative favors that fall short of “formal” actions.  Fixing this statute becomes even more critical as long as the congressional ethics process remains in its current dysfunctional state.