Q. I do not work on the Hill, but I have several friends who do, and I have a question about when it’s okay to buy them a meal. I had lunch the other day with a chief of staff of a member of the House of Representatives. He forgot his wallet and so asked if I could by lunch. I don’t know anything about government ethics rules, but he said it was fine because the rules allow staffers to accept meals and gifts worth less than $50 from anyone other than a lobbyist, and our tab was $40 after tip. I went ahead and paid based on this, but I later asked another staffer, and he said it was probably not okay for me to have done so. What gives?
A. Thanks for the great question, which illustrates a limitation on the exceptions to the gift rule that can be easy to overlook.  

But, let’s start with the gift rule. Though the House gift rule can seem complicated, the rule itself is simple. It can be stated in two words: no gifts. Members and staffers may not accept any gifts from anyone unless an exception applies. It’s the exceptions that can make things confusing.  

The exception that the chief of staff appears to have in mind allows members and staffers to accept “a gift, other than cash or cash equivalent, having a value of less than $50.” Note, however, this exception is not available to registered lobbyists or foreign agents. Moreover, the cumulative value of gifts that a member or staffer accepts from a single source in a year must be less than $100. So, as long as you’re not a lobbyist or foreign agent, and your gifts to the chief of staff are below the $100 annual cap, it would ordinarily be okay for you to buy a $40 meal for him.  

But, there’s a catch. Isn’t there always?  

The problem here is that he asked you to pay. And, according to the House ethics manual, when that happens, the exceptions to the gift ban do not apply. “While the House gift rule defines what Members, officers, and employees may accept in the way of gifts,” the manual states, “the rule does not authorize them to ask for any gift.”  

The manual includes an example of a House office planning a farewell party for a departing staff member. The office is aware of individuals in the private sector, with whom the staff member had worked, who may be willing to donate refreshments to the party. “The office may not request donations from those individuals,” the manual states. Note that the manual reaches this conclusion without regard to the value of the refreshments or whether some other gift rule exception may apply.  

Technically, though, the analysis does omit one factor that could be relevant under the text of the statutory gift ban: the status of those donating refreshments. On its face, the statute banning gifts to members and staffers applies only to gifts from specific groups of people: those seeking official action from the recipient’s agency, those doing business with the agency, those conducting activities regulated by the agency and those with interests that may be affected by the performance or nonperformance of the recipient’s duties. Thus, the ban presumably should not apply to gifts from individuals outside these groups.  

But, in its official guidance, the House Ethics Committee has appeared to take the position that the statutory gift ban applies regardless of the source. According to the ethics manual, the ban “prohibits federal officials, including House members and staff, from soliciting or accepting anything of value, except as provided in rules and regulations issued by their supervising ethics office.” In addition, “as a general rule, the Committee will not approve a solicitation that would result in any personal or financial benefit to Members or staff.”  

Thus, the chief of staff was right that there is an exception to the gift rule for gifts worth less than $50. But, the House Ethics Committee has said that the exceptions do not apply when a member or staffer solicits a gift. You might want to remind the chief of staff of this. And the next time a member or staffer asks you for something, you’ll be prepared.  

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

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