Posted October 2, 2006 by Meredith McGehee

Narrowing “Official Acts” Definition Could Lead to Widening Corruption

Last week’s oral argument in U.S. v. Valdes before the en banc U.S. Court of Appeals for the District of Columbia did not reveal how the 12-member court will rule in this case dealing with a D.C. policeman whose conviction for acceptance of an illegal gratuity was overturned by the lower appeals court.  The case in question involves Nelson Valdes, a former D.C. police detective who was convicted of receiving illegal cash gratuities in exchange for disclosing vehicle registration and arrest-warrant information from a law enforcement database to an acquaintance who was an FBI informant.  Valdes’ conviction was overturned on his first appeal because the court said his actions were not a sufficiently “formal” part of his job and therefore did not constitute an “official act” under the gratuities law.

The judges questioned lawyers for both sides about the meaning of the gratuities statute, especially in light of a 1999 decision in United States v. Sun-Diamond which rejected a broader interpretation of the term “official act” in finding that former U.S. Agriculture Secretary Mike Espy did not violate the illegal gratuities statute.  Mr. Espy had accepted $6,000 worth of U.S. Open tennis tickets, luggage, and meals from officials that had business before the Department.  The Supreme Court was worried that too broad an interpretation of the statute would subject public officials to “absurd” prosecutions.

But based on the questions asked and the hypothetical scenarios raised by the full panel today, there may very well be some judges who believe that receiving a “tip” or “gratuity” for performing your duties as a public official is just fine. 

Want to know which courtroom a case is being heard?  Just ask the court’s clerk, and if he or she proves helpful by giving you the answer, you can show your appreciation for their kindness by presenting them with a $5 bill.  What’s the problem with that?   The information wasn’t secret.  Where’s the harm – or more importantly, the criminal offense – in showing your appreciation for a job well done by a public official?  So what if a group of reporters want to provide a free lunch to the press officer of a Department while asking him questions about what’s going on in the Department?  Isn’t that just conviviality?

I know it is hard to predict the outcome of a case based on questions asked at oral argument, and the Valdes case is no exception.  Nevertheless this does appear to be the path that some judges on the court want to go down in the Valdes case.  In their interpretation of the illegal gratuity statute, if there was no obligation for the public official to act, then a gift (or anything of value) given to that official for doing them a favor is fine, and would not run afoul of the law.  Only if the public official is performing a formal “official action” is there a problem.

But under this approach, the United States would start to resemble the banana republics from which we like to think we are so different.  In those countries, the expectation of a “show of appreciation” for what we consider to be the most basic of services is commonplace.  And what happens to those who fail to show appropriate appreciation?  The electric services don’t get hooked up, the phone lines don’t get installed, and the important papers never seem to arrive.

According to Valdes’ attorney, the answer to these misdeeds by a public official should be administrative penalties.  Yet, relying on administrative penalties to dissuade this approach to public service not only means a long, bureaucratic tussle, it would be an ineffective punishment that would fail to prevent such public officials from depriving citizens of their honest services.  Moreover, why shouldn’t it be an illegal gratuity for a clerk to accept a $5 bill for answering a routine question that falls within their official duties?

It is important to distinguish the gratuity statute from the bribery statute, the latter requiring some agreement between two parties between an action taken and the promised reward.  But is also important to understand how the administrative ethics rules work in concert with the gratuities statute.  Executive and legislative gift rules draw clear lines for public officials about what is acceptable and what crosses the line.  They make clear when a gift is a gratuity and when it is so de minimis that it is not, and thus provide considerable clarity to any vagueness the statute may have.  That is in fact the purpose of ethics rules and regulations.

It is wrong for a policeman like Valdes to use his special access to a law enforcement database and then to accept money from someone other than his employer for doing so.  It is wrong for a court clerk to provide information related to his position as a public official and then accept a fiver.  Whether the latter rises to the level of seeking an indictment should be left to prosecutorial discretion.

But making clear that providing “tips” to public servants for taking actions in their capacity as public officials is not acceptable should be a priority for this court.  Letting Valdes off the hook for accepting money in exchange for doing a search on the police data base will only send the clear message that judges are more concerned with entertaining themselves by parsing the clear meaning of the law than they are with protecting the integrity of our public institutions.  

If the intent of the law is gutted by the twelve judge panel and those same rules, or lack thereof, are applied on up the food chain, the repercussions will be felt all the way to the halls of Congress and the White House.  Recent scandals clearly indicate that our elected officials in Washington do not need significantly more latitude in their dealings with lobbyists.