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May Staffers Participate in SOTU Gambling Pools? | A Question of Ethics

Q. I’m a longtime House staffer, and every year for the State of the Union address I host a party with a big group of friends, including many other staffers. One of the most popular traditions at the party is a “word pool” where guests are all assigned certain words at random, and the winner is whoever’s words are heard most often in the address. (I won’t mention what this year’s magic words are.) I always send around emails in advance to administer the pool and solicit entries. This year, one of the invitees told me I shouldn’t be sending these emails from work, using House email addresses. Does this really matter?

A. As a lawyer, I can tell you that we lawyers hate to say no. If the law prohibits a client’s proposed course of conduct, we like to try to find other ways clients can achieve their goals without running afoul of the law. In this case, however, I have to take the unpopular role of party-pooper and say your friend is probably right. I don’t make the rules. I just report on them. And, technically speaking, the rules do in fact prohibit running betting pools on government time with government resources, even one as innocent as this. This issue sometimes receives attention during March Madness, when millions of people across the country enter betting pools, hoping their bracket will be the winner. The law does not necessarily forbid congressional employees from participating in friendly pools such as this. If it did, there would be thousands of violations every year. But, the law does have something to say about when and how federal employees may participate.  

Specifically, the law bans gambling of any kind by a government employee while “on duty.” It states: “While on Government-owned or leased property or on duty for the Government, an employee shall not conduct or participate in any gambling activity.”  

But, does a friendly pool really qualify as “gambling activity?” Unfortunately, yes.  

The law says such activity includes, “operating a gambling device, conducting a lottery or pool, participating in a game for money or property, or selling or purchasing a numbers slip or ticket.” Elsewhere, federal law defines gambling as “a game of chance where the participant risks something of value for the chance to gain or win a prize.” And “prize” includes “a monetary award, or a tangible or intangible item.”  

In light of these definitions, it would be difficult to argue that a “word pool” such as the one you describe is not prohibited gambling activity under federal law. And many times in the past, the federal government has issued guidance affirming this.  

Again, it often comes around March Madness. For example, in 2013, one federal agency told its employees about betting pools: “While betting a few dollars … is often viewed as a harmless social pastime, if done at work it violates the Federal regulations that prohibit gambling for money or property in the Federal workplace.” Incidentally, the rules against gambling on federal property apply to everyone, not just government employees. “These restrictions apply not only to Federal employees, but also to members of the public at large, contractors, vendors, and exhibitors,” the National Institutes of Health told its employees in 2013.  

Keep in mind the penalties for violations of this prohibition are not anything to sniff at; they can include loss of job, fines and more. In 2013, for example, the Transportation Security Administration conducted an extensive investigation of potential gambling violations, resulting in the discipline of dozens of employees for their participation in March Madness and Super Bowl betting pools.  

This doesn’t mean you need to cancel your party. We lawyers aren’t that bad. And, it doesn’t even mean that you have to cancel your word pool. But, it does mean that if you want to avoid any risk of violating federal law, you’d be wise to follow your friend’s advice and avoid administering your pool on House time with House resources. I presume you have another email address. Try using that one this year. From home.  

It’s the safe, er, bet.  

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.
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