March 23, 1998
Guidelines for Acceptance of Free or Discounted Legal Services by Employees of the Department of the Interior (Department)
1) If I am offered free or discounted legal services, is that a "gift"?
Yes. Under OGE regulations, free or discounted legal services are included within the definition of a "gift," except when such legal services are offered to the general public or all federal government employees.
2) What regulations govern Department employees' acceptance of gifts from sources outside the Department?
Office of Government Ethics (OGE) regulations govern the acceptance of gifts by Department employees. See 5 C.F.R. §§ 2635.201-.205 as supplemented by 5 C.F.R. § 3501.102.
3) What is the general rule on acceptance of gifts from sources outside the Department?
A Department employee may accept a gift except (1) a gift from a prohibited source; or (2) a gift given because of the employee's official position. Thus, if a gift is not from a prohibited source and not given because of the employee's official position, the employee may accept the gift.
4) What is a "prohibited source"?
A "prohibited source" is any person who (1) is seeking official action by the employee's agency; (2) does business or seeks to do business with the employee's agency; (3) conducts activities regulated by the employee's agency; (4) has interests that may be substantially affected by performance or nonperformance of the employee's officials duties; OR (5) is an organization, such as a trade association, a majority of whose members are described in (1) through (4) above.
If you discuss with an outside attorney the possibility of free or discounted legal services, you need to assure yourself that these services would not come from a prohibited source. Therefore, you should ask the attorney to canvass his or her law firm (or in the instance of a sole practitioner, to check his or her own workload) to determine whether that firm or sole practitioner is providing representation in any litigation involving any bureau of the Department or any other part of the Department, or has any other legal matters pending before any bureau or any other part of the Department. The attorney should report back to you with a brief summary of each such matter. If there are such matters, a determination must be made by you and one or more of the people listed in Question 9 below whether the firm or sole practitioner would be a prohibited source. If there are no such matters, the firm or the sole practitioner would not be a prohibited source.
A "person" is an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity.
An "employee's agency" is that specific bureau or component of the Department for which the employee works. The following ten components are designated as separate agencies: (1) Bureau of Indian Affairs (BIA), including the Office of Indian Education Programs; (2) Bureau of Land Management (BLM); (3) Bureau of Reclamation (BOR); (4) Minerals Management Service (MMS); (5) National Indian Gaming Commission; (6) National Park Service (NPS); (7) Office of Surface Mining Reclamation and Enforcement (OSM); (8) Office of the Special Trustee for American Indians; (9) U.S. Fish and Wildlife Service; (10) U.S. Geologic Survey (USGS). For example, a law firm that has dealings with the BLM is not a prohibited source for an employee of the NPS, unless that law firm also has dealings with the NPS.
Department employees not in one of these ten components--for example, in the Office of the Secretary, the Office of the Solicitor, or the Office of Inspector General--are considered employees of the remainder of the Department. For purposes of determining whether a source is "prohibited," employees of the remainder of the Department must consider the ten components listed above as well as those parts of the Department not listed. For example, a law firm that has dealings with the BIA is a prohibited source for any employee of the Office of the Solicitor.
5) How do I know if a gift from a source outside the Department is given because of my official position?
A gift is given because of the employee's official position if it would not have been given had the employee not held his or her position as a federal employee.
6) Are there exceptions? What are they? In other words, are there circumstances under which I may accept a gift from a prohibited source?
Yes. There are several exceptions to this general prohibition which may apply to the acceptance of free or discounted legal services. This means that if a gift fits one of the categories below, it may be accepted even if it comes from a prohibited source. In our view, none of the exceptions listed below applies to a gift given because of an employee's official position.
* Gifts based on a personal relationship. An employee may accept a gift given under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship and not because of the position of the employee. Relevant factors in making such a determination include the history of the relationship and whether the family member or friend personally pays for the gift. For example, if a Department employee is offered free legal services by members of a law firm with whom the employee has become acquainted as a result of the firm's dealings with the Department, it is an indication that the gift is not based on a personal relationship. On the other hand, if the relationship between the Department employee and the law firm members was initiated and maintained outside of the firm's dealings with the Department, it is an indication that the gift is based on this personal relationship. Both circumstances are factors to be considered, but are not necessarily determinative of whether the gift was based on a personal relationship. Bear in mind, however, that even though this personal relationship exception may allow an employee to accept a gift from a prohibited source, the employee should consider the appearance of impropriety as discussed under Question 8.
* Discounts and similar benefits. An employee may accept opportunities and benefits (1) offered to members of a group or class in which membership is unrelated to government employment; or (2) offered to members of an organization, such as an employees' association or agency credit union, in which membership is related to government employment if the same offer is broadly available to large segments of the public through organizations of similar size. For example, members of the Senior Executive Association may be able to accept discounted or free legal services that qualify under (2). In addition, an employee may accept free or discounted legal services that are offered to the public at large or to a class consisting of all federal employees.
* Gifts based on outside business or employment relationships. An employee may accept benefits resulting from the non- Department business or employment activities of the employee or the employee's spouse when it is clear that such benefits have not been offered or enhanced because of the employee's official position or status. For example, if an employee's spouse is a member of a private law firm and that firm's policy is to provide free legal services to firm members' families, the employee may accept those free legal services. In this example, it is clear that the services are made available because of the employment of the Department employee's spouse, and not because of the Department employee's position. In a second example, if the Department employee has a part-time job with a company that provides free or discounted legal services to its employees, the Department employee may accept the services because they are offered on the basis of the employment with the company and not on the basis of the employment with the Department.
7) Must I report gifts of free or discounted legal services that I accept?
If, as discussed above, an employee's acceptance of free or discounted legal services constitutes a gift, and the employee is required to file a financial disclosure report, then the employee may have to report the receipt of that gift. An employee who is required to file a financial disclosure report and who receives during the reporting period gifts aggregating $250 or more from any one source must report:
(1) The source of the gift;
(2) a brief description of the gift; and
(3) in the case of an employee required to file a public financial disclosure report, the value of the gift.
To determine if gifts from one source exceed the $250 limit for the period, an employee should combine only gifts from that source valued at more than $100. For example, if an employee receives three gifts during the reporting period from XYZ law firm and the gifts are valued at $300, $75, and $200, the employee should report: "Gift of legal services from XYZ law firm $500."
8) Are there any other general considerations?
Yes. Even when acceptance of a gift is legally permissible, there may be an appearance of impropriety associated with its acceptance. If you are personally concerned about such an appearance, please contact one of the people listed below.
9) Are you confused? Need more details? What if I have a question not answered here?
You may find it helpful to consult the regulations cited above--they contain several examples. You may also telephone Gabe Paone in the Department's Ethics Office at (202) 208-4722, or any of the following people in the Office of the Solicitor's Division of General Law: Karen Maloy Sprecher or Tim Elliott at (202) 208-4722, or Bob Moll at (202) 208-5216.