THOMAS P. DiNAPOLI State Comptroller. PARS Refresher Training: Gifts and the Public Officers Law.

Transcription

1 THOMAS P. DiNAPOLI State Comptroller PARS Refresher Training: Gifts and the Public Officers Law

2 What May Be Considered a Gift? Gifts include anything of value: Money Services Loans Travel Lodging Meals Refreshments Entertainment Discounts Job offers

3 Gifts Public 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.

4 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.

5 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.

6 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

7 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. **

8 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

9 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))

10 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 widelyattended 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

11 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.

12 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

13 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

14 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.

15 Gifts Public 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.

16 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?

17 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?

18 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?

19 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?

20 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?

21 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?

22 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?

23 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.

24 Job Offers Advisory Opinion No 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

25 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.

26 Contact Information Division of Legal Services Ethics Unit 110 State Street Albany, New York (518)