Q: I am an in-house lobbyist for a major health care provider that is providing an H1N1 flu vaccine clinic this Saturday. It is widely expected that there will be an enormous turnout. A Representative called me today and asked if there is any way that her family could receive the vaccine a day early. She has two young children and wants to make sure they receive the vaccine before we run out. We really do not want to say no, as we hate the idea of the Representative possibly spending all day waiting in line with her family, let alone not getting the vaccine at all. I discussed this with my supervisor, and the plan we came up with is to allow the Representative to come the day before the vaccine clinic. This way the vaccine will not be a “gift,— and we will not be violating any rules. Is that right?
[IMGCAP(1)]A: This is one of those situations where the ethics rules can get in the way of good intentions. The Representative who called you wants to protect her family from the H1N1 flu. You want to help. Yet the rules suggest that doing so could result in legal trouble for you, your employer and the Representative. Here’s why.
As you are no doubt aware, the Honest Leadership and Open Government Act makes it illegal for lobbyists and businesses that employ lobbyists to violate the House and Senate gift rules. Broadly, this means that you and your employer may not make a gift to a Representative or staffer unless an exception applies. Here, the question is what counts as a “gift.—
House Rule 25 defines the term “gift— as a “gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value.— The rule says the term also includes “services.— According to the House Ethics Manual, when determining whether a particular service or item qualifies as a gift, the first question is whether the service or item has monetary value. If so, a Representative may only accept it if an exception applies. So, the question to ask is this: Would your plan constitute providing something of monetary value to the Representative?
Regarding the vaccine itself, your analysis seems spot on. You plan to provide the vaccine to the Representative and her family at the same price that everyone else will pay. That’s not a gift. It’s a sale. Indeed, there is an exception to the gift rule for “anything for which [a] Member pays the market value.—
However, this is unfortunately not the end of the analysis. This is because you not only plan to sell the vaccine to the Member and her family, but you also plan to provide her with the opportunity to receive it in circumstances not generally available to the public. The question is whether affording her this opportunity would qualify as a gift.
As you may or may not be aware, the attending physician is currently providing the H1N1 vaccine to Representatives and staffers but only if they fall into one of three high-risk categories: (1) pregnant; (2) under the age of 25; or (3) living with a child under the age of six months. Here, the Representative presumably does not meet any of these criteria, or she would just obtain the vaccine from the attending physician. This means that she is in the same boat as the general public. Your plan would essentially take her out of that boat by allowing her family to receive the special treatment of a vaccine without the inconvenience of a long wait or the worry that it might run out. So, does taking her out of the boat have “monetary value—?
Unfortunately, there is very little official guidance regarding how to determine if a service or item has “monetary value.— Indeed, there is none that squarely addresses your question. The analysis would be much simpler if you were extending this opportunity not just to the Representative but also to others and were charging a fee for the special service. If that were the case, and if you did not charge that fee to the Representative, your offer would plainly be a gift. On the other hand, if you did charge her the fee then the exception discussed above could apply. Assuming neither of these is the case, however, the analysis is much less clear.
In ambiguous cases like these, the safest course is usually to avoid the course of conduct in question. This is because, however innocent your intentions might be, there is always the risk that an aggressive prosecutor might see things differently and consider your conduct to be a gift rule violation. The consequences of that would not be small. Under HLOGA, corrupt violations of the gift rules can lead to criminal liability, included lengthy jail sentences and large fines.
With stakes as high as those, perhaps you could find a way to suggest to the Representative that she join the line on Saturday. Better still, you could suggest that she arrange for her husband to wake up early and save her family a place in line. That’s what my wife did.
C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.