[This document was published at 61 Federal Register 42965-42970
(August 20, 1996); a couple of minor corrections of typographical
errors have been made in this TEBBS version of the rulemaking
document (which itself will be so corrected in the Federal
Register).]
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2635
RIN 3209-AA04
Widely Attended Gatherings Gifts Exception Under the Standards of
Ethical Conduct for Employees of the Executive Branch
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule.
SUMMARY: The Office of Government Ethics is issuing a final rule
revising the gift exception contained in the Standards of Ethical
Conduct for Employees of the Executive Branch to permit employees
to accept invitations to certain widely attended gatherings from
persons other than the sponsors of those events, subject to
appropriate limitations, and to clarify that only those events
attended by a large number of persons qualify as widely attended
gatherings. The rule also permits agency authorization for a
guest, other than the employee's spouse, to accompany the employee
to a widely attended gathering or to a conference or other event at
which the employee is assigned to participate as a speaker, panel
participant, or other presenter of information.
EFFECTIVE DATE: September 19, 1996.
FOR FURTHER INFORMATION CONTACT: William E. Gressman or Vincent J.
Salamone, Office of Government Ethics, Suite 500, 1201 New York
Avenue, NW., Washington, DC 20005-3917; telephone: 202-208-8000;
FAX: 202-208-8037.
SUPPLEMENTARY INFORMATION:
I. Background
On June 15, 1995, the Office of Government Ethics published a
proposed amendment to the Standards of Ethical Conduct for
Employees of the Executive Branch (Standards), as codified at 5 CFR
part 2635, that would allow acceptance by agency employees of
certain invitations of free attendance at widely attended
gatherings from persons (individuals or organizations) other than
sponsors of the events and to otherwise modify the gifts exception
for such gatherings. See 60 FR 31415-31418, which provided for a
60-day public comment period. The Office of Government Ethics
received eleven comment letters on the proposed rule from eight
executive agencies, two agency employees and one private
organization, as well as a few telephonic comments. In this
rulemaking document, OGE is finalizing the proposed amendment, with
certain changes (noted below) mostly in response to certain of the
comments received.
The section of the Standards subject to this rulemaking is
5 CFR 2634.204(g), one provision of subpart B of the Standards
which implements the outside source gift restrictions contained in
5 U.S.C. 7353 and section 101(d) of Executive Order 12674, as
modified by Executive Order 12731. In accordance with those
authorities, 2635.204 sets forth exceptions to the primary
constraint at 2635.202(a), which provides that, in the absence of
an exception, an employee shall not directly or indirectly solicit
or accept a gift from a prohibited source or a gift that is given
because of the employee's official position.
Section 2635.204(g)(2), as it has been in effect for the past
three and a half years, provides that an agency employee may accept
an unsolicited gift of free attendance at all or part of a widely
attended gathering from the sponsor of the event, subject to a
determination of agency interest. Unlike the de minimis exception
at 2635.204(a) for unsolicited gifts having a market value of $20
or less per occasion (with a calendar year aggregate limit of $50),
2635.204(g)(2) imposes no limitation on the market value of the
gifts of free attendance that may be accepted. While the tickets
or other fees for attendance at such gatherings ordinarily cost
much less, this exception would permit acceptance of free
attendance at events for which the ticket price exceeds even
$1,000. In part to ensure that prohibited sources do not use this
exception to provide lavish entertainment to employees of the
agencies with which they do business or otherwise interact,
2635.204(g)(2) has to date specified that an invitation to a
widely attended gathering can be accepted only if it is from the
sponsor of the event.
On March 9, 1993, shortly after the Standards first took
effect, the White House declared a six-month suspension of
application, with respect to attendance at press dinners, of that
portion of 2635.204(g)(2) that has limited acceptance of
invitations of free attendance at widely attended gatherings to
those issued by the sponsor of the event. Thus, during that six-
month period, executive branch officials were authorized to attend
press dinners as guests of individuals or organizations other than
the event's sponsor, if the event otherwise met the conditions of
the widely attended gathering exception. On December 21, 1993,
with another round of press association events in the offing, the
White House issued another memorandum to all agency heads once
again temporarily suspending administrative enforcement of that
portion of the rule affecting widely attended gatherings solely as
it relates to dinners sponsored by news associations for which
admission for executive branch officials is paid by news
organizations.
In a December 21, 1993 letter addressed to OGE, the White
House asked OGE to consider a revision to 2635.204(g)(2) of the
Standards to provide that an employee may accept an invitation
received directly from a news organization to attend a widely
attended gathering sponsored by a news association where there has
been a determination that the employee's attendance is in the
interest of the agency. In the alternative, the White House
suggested that OGE might wish to consider revising 2635.204(g)(2)
to provide an exception for invitations to a broader range of
widely attended gatherings from persons other than the sponsors of
those events. Both in the rule as proposed and as being finally
adopted here, OGE has opted for this alternative approach. The
White House specified in its above-referenced December 1993
memorandum that the suspension as to press dinners was to extend
until August 1, 1994, or until such later date as OGE responded to
its request for revision of 2635.204(g)(2). Therefore, as noted
in the preamble to the proposed rule, the White House suspension as
to press dinners has remained in effect. However, when this final
rule takes effect on [insert date 30 days after the date of
publication in the FEDERAL REGISTER], that suspension will be
superseded by the broader "nonsponsor" free attendance gift
provisions of 2635.204(g) as amended in this rulemaking document.
II. Analysis of Comments
As noted, the Office of Government Ethics has carefully
considered the comments submitted on last year's proposed rule and,
as discussed below, is modifying a few portions of the rule as
proposed in adopting it as final. The discussion below is focused
on the major areas of comment regarding the proposed rule changes.
Clarification of Widely Attended Gatherings Definition/A Large
Number of Persons
Several agencies commented on the proposed addition of an
express clause requiring attendance by "a large number of persons"
to the definition of a widely attended gathering in
2635.204(g)(2). One commenter asked that the term be eliminated
altogether from the final rule. Four agencies questioned why the
proposed change to the rule did not require that a specific minimum
number of persons be expected to attend a gathering for it to be
considered attended by a "large number of persons." One of these
agencies commented that such a minimum number designation would
assist program administration by helping to reduce the number of
employee inquiries on this matter. However, three agencies wanted
ethics officials to be able focus more on factors other than the
size of the event, such as the nature of the gathering itself and
the event's overall importance to the agency's programs and
operations when making a determination about a widely attended
gathering under 2635.204(g)(3). One agency suggested that OGE
might be able to avoid the limitations of setting a minimum number
by providing instead for an acceptable range of numbers. Further,
two commenters suggested that OGE could assist agencies more by
providing agencies with a list of factors that the agencies could
apply to determine if an event qualified as widely attended.
After carefully reviewing these recommendations, including the
alternative approaches suggested, OGE has decided not to change the
proposed addition of the "large number of persons" clause, other
than to add the clarification that attendance by such a number is
"expected." While a specific minimum number or a range of numbers
might, in some ways, facilitate agency administration of the rule
and even possibly reduce employee inquiries, OGE believes that
setting such numbers for sponsor gifts would unduly limit the
flexibility that agencies require to administer this rule
effectively. (The newly revised rule does require a minimum number
of attendees as to nonsponsor gifts of free attendance, which are
subject to additional safeguards (see the discussion below).)
It is OGE's belief that executive agencies are in the best
position to determine when unsolicited gifts of free attendance
offered by sponsors of widely attended gatherings (or nonsponsors)
should be permitted based on a balancing of the event's value in
facilitating administration of agency programs/operations versus
any appearance concerns. As stated in the proposed rule, agencies
should apply the normal meaning of the phrase "widely attended" as
encompassing those events that are attended by many persons and
excluding those events attended by only a few. Additionally,
ethics officials should note that the rule requires more than a
"large number" of attendees -- the gathering itself must be of
mutual interest to those in attendance. See OGE Informal Advisory
Letters 93x15, 93x18 and 94x2, as published in "The Informal
Advisory Letters and Memoranda and Formal Opinions of the United
States Office of Government Ethics," which is available from the
U.S. Government Printing Office and is on OGE's electronic bulletin
board TEBBS ("The Ethics Bulletin Board System").
In sum, the determination of whether an event is widely
attended requires ethics officials to carefully examine the
particular circumstances of each event in light of all the
regulatory factors. Even if an event is expected to be attended by
a large number of persons and to have present a diversity of views
or interests (see discussion below), agency ethics officials must
still make a finding that the agency's interest in the employee's
participation in the event outweighs any concern that the
acceptance of the gift of free attendance may or may appear to
improperly influence the employee in the performance of his or her
official duties. We believe that these requirements will help
preserve the Government's valid interest in ensuring that employees
are free from improper influences and that the acceptance of any
gift of free attendance from an outside source will not create the
appearance of partiality.
Furthermore, one commentator asked if the term "a large number
of persons" would include any accompanying spouse or other guest of
each invitee. The Office of Government Ethics believes that
accompanying spouses and guests can be counted, both for
determining whether a large number of persons is expected to attend
an event and for purposes of the 100-person threshold applicable to
acceptance of gifts of free attendance from nonsponsors.
A few agencies pointed out that an ambiguity in the definition
of a widely attended gathering was created by the use of the term
"for example" in the second sentence of proposed 2635.204(g)(2).
In response to these concerns, OGE is changing the wording of the
passage in 2635.204(g)(2) of this final rule, by adding the words
"persons with a diversity of views or interests" before the "for
example" phrase, to clarify that the types of events which are
widely attended are those at which a "large number of persons" is
expected to attend and at which persons having a diversity of
viewpoints or interests are expected to be present. The latter
factor can be satisfied if the event is open to members from
throughout a given industry or profession, if persons in attendance
represent a range of persons interested in a given matter, or if
there is otherwise a diversity of views or interests present.
Agencies should consider both factors in determining whether an
event is "widely attended" -- the number of persons attending the
event and the breadth of the views and interests presented by the
group itself.
Several agencies expressed specific concerns with proposed new
Example 3 following the regulatory text of 2635.204(g), focusing
on the proposed disqualification of a 20-person dinner party as not
meeting the "large number of persons" test. Some comments noted
that the example might well be overly restrictive in the context of
smaller agencies. The desirability of agency discretion in setting
a lower limit for sponsor events was also stressed. One agency
recommended that Example 3 be revised so that reference to the
number of persons in attendance at the dinner party of the major
utility be removed from the example and that the event be merely
referred to as a small dinner party. In this way, the point would
be made that agency officials should consider the size of a
gathering as part of their analysis on whether an event was a
widely attended gathering. The Office of Government Ethics has
rewritten Example 3 to try to clarify the main point intended that
a small dinner party is not a widely attended gathering. Further,
OGE has reworked the comment at the end of the example about the
additional requirement that a range of persons interested in a
given matter be present at any qualified widely attended gathering.
This passage has been broken out into a separate sentence and the
hypothetical facts have been modified, to reference a larger
company "banquet" as still not widely attended, in order to
emphasize that attendance by persons with a diverse set of views or
interests is an additional, separate requirement for finding that
a gathering is "widely attended."
Sponsor/Nonsponsor Distinction
Although there was general support for the proposed new
exception to allow employees to accept an invitation of free
attendance to a larger widely attended gathering from a source
other than the sponsor in appropriate cases, two agencies and a
private organization questioned the need for any distinction
between such gifts from the sponsor and from others. After
carefully reviewing this matter, OGE has decided to maintain the
additional standards imposed as to "nonsponsor" gifts. The Office
of Government Ethics believes that there is an important
distinction between situations in which gifts of free attendance
are offered by sponsors of widely attended gatherings, as opposed
to those circumstances where gifts of free attendance are tendered
by nonsponsors. When a sponsor invites an individual to attend an
event, the sponsor is presumably doing so for the benefit of all
those in attendance. The sponsor's attention is also not focused
solely upon the invitee at the event. Thus, the invitee does have
more of an opportunity to meet and mingle with a wider number of
people in attendance. This supports more fully the agency's
interest in his or her attendance at the event. When a nonsponsor
invites an individual to attend an event, however, the attention of
the nonsponsor host is more focused upon the employee. The 100-
person threshold provides an additional measure of public and press
scrutiny of that relationship. In addition, the $250 ceiling on
nonsponsor donor gifts constitutes an important further safeguard
against more lavish entertainment, which a nonsponsor might be able
to afford in a one-on-one situation, but the sponsor could not in
any significant numbers. The dollar ceiling also protects against
excess in the case of fundraising events that are not lavish, but
exclusive because of cost of attendance. Finally, OGE stresses
that both nonsponsor and sponsor gifts must still be screened by
agencies for any appearance of conflict in accordance with
2635.204(g)(3) of the Standards. Together, these protections
will help ensure that any gifts of free attendance accepted are in
the best interests of the agency concerned and do not involve an
appearance of undue influence or loss of impartiality.
Press Dinners
One agency suggested that OGE might consider adopting an
exception that applies to press dinners, because of the uniqueness
of press organizations, rather than carving out a broader
sponsor/nonsponsor distinction. Another commenter suggested an
alternative approach in which OGE would determine that journalist
members of the press groups were themselves "individual sponsors"
of a dinner. As stated above and in the preamble to the proposed
rule, OGE earlier considered and rejected the option of singling
out the press under the widely attended gatherings exception. The
Office of Government Ethics does not believe that the press should
be treated differently than any other private entities that deal
with the Government. Thus, in liberalizing this provision, with
appropriate safeguards, OGE believes that there is no reason to
limit nonsponsor gifts to press entities.
The 100 Person Attendee Threshold for Nonsponsor Gifts
Four commenters recommended that OGE drop the proposed
requirement that 100 persons be in attendance at a widely attended
gathering before a gift of free attendance can be accepted from a
nonsponsor. The general consensus among these four commenters was
that this number should be left to the judgment of agency ethics
officials and that it would unduly restrict agency discretionary
authority in those situations where gifts of free attendance are
offered by nonsponsors of widely attended gatherings. An agency
and one individual commenting thought that the proposed 100-person
threshold would not be fair to smaller agencies or smaller industry
groups. The agency indicated that, particularly in the scientific
and technical communities, an agency's interest might be advanced
by having a representative attend a public meeting at which fewer
than 100 persons are expected to disseminate information about its
agency functions and policies. Additionally, one agency was
concerned that a prohibited source could circumvent the rule by
ensuring that a sufficient number of persons were invited to an
event at the appropriate cost. One agency, however, favored the
use of specific numbers, stating that this would facilitate the
administration of the rule.
After reviewing these comments, OGE has decided to maintain
the proposed 100-person threshold in the final rule. The Office of
Government Ethics recognizes that it may be in the agency's
interest, in some cases, to have an employee attend a
nonconflicting event where less than 100 persons are expected if it
would assist the agency in the accomplishment of its mission. In
that regard, OGE notes that the new rule's specific 100-person
threshold only applies to nonsponsor gifts. Thus a sponsor's offer
of free attendance to an otherwise qualified widely attended
gathering (including attendance by "a large number of persons")
could be accepted, if there were an agency interest determination
under 2635.204(g)(3), even though fewer than 100 persons were
expected to attend. Furthermore, if permissible in terms of
appropriations principles, the agency could consider paying for the
employee's attendance at smaller events. The employee could also
pay his or her own way. Finally, as to other events involving
fewer than 100 expected attendees, certain separate authorities,
such as the Government employees training statute, the law
permitting agencies to accept certain travel payments from non-
Federal sources, or other agency statutory authority might permit
the acceptance of free attendance. See 5 U.S.C. 4111 and 31 U.S.C.
1353, as well as the respective implementing regulations of the
Office of Personnel Management, at subpart G of 5 CFR part 410, and
the General Services Administration, at 41 CFR part 304-1; see also
the note following 2635.204(g)(4) of the Standards.
The rationale for the 100-person threshold as to nonsponsor
gifts of free attendance is that the larger, generally more public
events are subject to greater potential press and public scrutiny,
which will serve as additional protection against any apparent
conflict situation. In combination with the $250 free attendance
gift value limitation (discussed below), these two requirements
will protect against the possibility that this new exception might
result in the provision to Government employees by a nonsponsor
donor of lavish entertainment or an opportunity to attend an event
made highly exclusive by virtue of the admission price.
One agency suggested that OGE provide agency designees with
the authority to except a nonsponsor offer of free attendance from
the 100-person requirement in appropriate circumstances. However,
OGE believes that there should be a uniform threshold for
nonsponsor gifts and has not accepted that suggestion.
Another agency asked for additional clarification on whether
accompanying spouses and other guests are to be counted for
purposes of the 100-person requirement. In response, OGE notes
that spouses and guests, who often form an integral part of widely
attended gatherings, may be counted for purposes of determining
whether the 100-person requirement is met for a particular event.
The $250 Ceiling on Nonsponsor Gifts of Free Attendance
One agency comment indicated that having the $250 cap on
nonsponsor gifts would facilitate administration of the regulation.
However, another agency thought that the amount should be lowered,
but that the rule should provide an exemption for charitable events
where the face value of the ticket primarily reflects a charitable
contribution and not a benefit to the employee. The Office of
Government Ethics is concerned that providing for any such
exemption would unnecessarily complicate the rule and detract from
the uniformity to be accorded as to nonsponsor free attendance
offers. Furthermore, the opportunity to attend, free of charge, an
event where the ticket prices include a sizable donation, and thus
make the event more exclusive, can also be viewed as a benefit to
the employee. On the other hand, one agency and a private
organization believed that the $250 numerical limitation for free
attendance in the case of a nonsponsor was too low. The Office of
Government Ethics has neither raised nor lowered the $250 ceiling
amount, because we believe that $250 is the right amount,
permitting reasonable application of the new authority as to
nonsponsor gifts while protecting against lavish entertainment by
prohibited sources.
A few commentators suggested that provision be made for
periodic reevaluation of the ceiling amount. A commenting
organization noted that most hotels that accommodate many widely
attended gatherings have an escalation factor built into their
contracts with private organizations and that some sort of
mechanism was needed to keep up with rising costs. The Office of
Government Ethics notes that the $250 ceiling on the value of free
attendance that may be accepted from a person other than the
event's sponsor coincides generally with the legislative and OGE
consensus that gifts of lesser amount do not need to be subjected
to public or confidential financial reporting under the Ethics in
Government Act, 5 U.S.C. app., sections 102(a)(2) and 107, or OGE's
5 CFR part 2634 regulation thereunder. Considering that the $250
ceiling is imposed only in those situations where the gift of free
attendance is coming from a nonsponsor, OGE believes it is a
reasonable limitation to protect Government employees and their
agencies from the possible appearance of favoritism or undue
influence. The Office of Government Ethics notes that it will
periodically review the appropriateness of the $250 ceiling in the
future. If any adjustment to that dollar amount appears
appropriate, OGE will initiate a rulemaking action to change it.
Accompanying Guest Authority
Two commenters supported the proposed revision of
2635.204(g)(6) to permit acceptance of an offer of free
attendance to a widely attended gathering extended, by the same
donor, to an accompanying guest of an employee whether or not the
guest is the employee's spouse (that provision has been limited to
an accompanying spouse). One commenter opposed the proposed
change. In this final rule, OGE has decided to retain the change
as proposed. The expansion of acceptance authority to another
guest, when appropriate, will provide additional flexibility in
cases where the agency has determined that acceptance of the gift
of free attendance for an accompanying guest, in addition to the
employee, at a widely attended gathering of mutual interest to a
number of parties will further agency programs and operations. In
addition to addressing the fact that many employees are not
married, the expanded rule would apply to situations in which a
spouse is unable or does not wish to attend an event, but another
family member, a colleague or another appropriate guest could
attend. The Office of Government Ethics notes that the offer of
free attendance for the guest must be from the same person offering
to pay for the employee's attendance. Further, only one guest of
an employee maybe authorized to accept an offer of free attendance
to accompany the employee to an event at which the employee himself
or herself is authorized by the employing agency to accept a gift
of free attendance. Moreover, in such cases, the value of the
guest's free attendance must be aggregated with that of the
employee's in applying $250 ceiling for nonsponsor gifts (see
2635.204(g)(6) and Example 2, the wording of both of which has
been slightly revised to reflect their application to an
accompanying guest's free attendance).
Miscellaneous
Finally, OGE is making a couple of minor clarifications to the
rule as proposed in adopting it as final.
III. Matters of Regulatory Procedure
Executive Order 12866
In promulgating this final rule, the Office of Government
Ethics has adhered to the regulatory philosophy and the applicable
principles of regulation set forth in section 1 of Executive
Order 12866, Regulatory Planning and Review. This amendatory
regulation has also been reviewed by the Office of Management and
Budget (OMB) under that Executive order.
Regulatory Flexibility Act
As the Deputy General Counsel of OGE, I certify under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this
amendatory rule will not have a significant economic impact on a
substantial number of small entities because it primarily affects
Federal executive branch employees and their agencies.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not
apply to this amendatory regulation because it does not contain
information collection requirements that require OMB approval.
List of Subjects in 5 CFR Part 2635
Conflict of interests, Executive branch standards of ethical
conduct, Government employees.
Approved: August 14, 1996.
_____________________________________
Marilyn L. Glynn,
Deputy General Counsel, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the
Office of Government Ethics is amending part 2635 of chapter XVI of
title 5 of the Code of Federal Regulations as follows:
PART 2635 -- [AMENDED]
1. The authority citation for part 2635 continues to read as
follows:
Authority: 5 U.S.C. 7351, 7353; 5 U.S.C. App. (Ethics in
Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990
Comp., p. 306.
Subpart B -- Gifts From Outside Sources
2. Section 2635.204 is amended as set forth below:
A. Revising paragraphs (g)(2) through (g)(5);
B. Revising the text of paragraph (g)(6) preceding Example 1
and Example 1 following that paragraph;
C. Redesignating Examples 2, 3 and 4 following paragraph
(g)(6) as Examples 4, 5 and 6, respectively; and
E. Adding new Examples 2 and 3 following paragraph (g)(6).
The revisions and addition read as follows:
2635.204 Exceptions.
* * * * *
(g) * * *
(2) Widely attended gatherings. When there has been a
determination that his attendance is in the interest of the agency
because it will further agency programs and operations, an employee
may accept an unsolicited gift of free attendance at all or
appropriate parts of a widely attended gathering of mutual interest
to a number of parties from the sponsor of the event or, if more
than 100 persons are expected to attend the event and the gift of
free attendance has a market value of $250 or less, from a person
other than the sponsor of the event. A gathering is widely
attended if it is expected that a large number of persons will
attend and that persons with a diversity of views or interests will
be present, for example, if it is open to members from throughout
the interested industry or profession or if those in attendance
represent a range of persons interested in a given matter. For
employees subject to a leave system, attendance at the event shall
be on the employee's own time or, if authorized by the employee's
agency, on excused absence pursuant to applicable guidelines for
granting such absence, or otherwise without charge to the
employee's leave account.
(3) Determination of agency interest. The determination of
agency interest required by paragraph (g)(2) of this section shall
be made orally or in writing by the agency designee.
(i) If the person who has extended the invitation has
interests that may be substantially affected by the performance or
nonperformance of an employee's official duties or is an
association or organization the majority of whose members have such
interests, the employee's participation may be determined to be in
the interest of the agency only where there is a written finding by
the agency designee that the agency's interest in the employee's
participation in the event outweighs the concern that acceptance of
the gift of free attendance may or may appear to improperly
influence the employee in the performance of his official duties.
Relevant factors that should be considered by the agency designee
include the importance of the event to the agency, the nature and
sensitivity of any pending matter affecting the interests of the
person who has extended the invitation, the significance of the
employee's role in any such matter, the purpose of the event, the
identity of other expected participants and the market value of the
gift of free attendance.
(ii) A blanket determination of agency interest may be issued
to cover all or any category of invitees other than those as to
whom the finding is required by paragraph (g)(3)(i) of this
section. Where a finding under paragraph (g)(3)(i) of this section
is required, a written determination of agency interest, including
the necessary finding, may be issued to cover two or more employees
whose duties similarly affect the interests of the person who has
extended the invitation or, where that person is an association or
organization, of its members.
(4) Free attendance. For purposes of paragraphs (g)(1)
and (g)(2) of this section, free attendance may include waiver of
all or part of a conference or other fee or the provision of food,
refreshments, entertainment, instruction and materials furnished to
all attendees as an integral part of the event. It does not
include travel expenses, lodgings, entertainment collateral to the
event, or meals taken other than in a group setting with all other
attendees. Where the invitation has been extended to an
accompanying spouse or other guest (see paragraph (g)(6) of this
section), the market value of the gift of free attendance includes
the market value of free attendance by the spouse or other guest as
well as the market value of the employee's own attendance.
Note: There are statutory authorities implemented other than
by part 2635 under which an agency or an employee may be able to
accept free attendance or other items not included in the
definition of free attendance, such as travel expenses.
(5) Cost provided by sponsor of event. The cost of the
employee's attendance will not be considered to be provided by the
sponsor, and the invitation is not considered to be from the
sponsor of the event, where a person other than the sponsor
designates the employee to be invited and bears the cost of the
employee's attendance through a contribution or other payment
intended to facilitate that employee's attendance. Payment of dues
or a similar assessment to a sponsoring organization does not
constitute a payment intended to facilitate a particular employee's
attendance.
(6) Accompanying spouse or other guest. When others in
attendance will generally be accompanied by a spouse or other
guest, and where the invitation is from the same person who has
invited the employee, the agency designee may authorize an employee
to accept an unsolicited invitation of free attendance to an
accompanying spouse or to another accompanying guest to participate
in all or a portion of the event at which the employee's free
attendance is permitted under paragraph (g)(1) or (g)(2) of this
section. The authorization required by this paragraph may be
provided orally or in writing.
Example 1: An aerospace industry association that is a
prohibited source sponsors an industrywide, two-day seminar for
which it charges a fee of $400 and anticipates attendance of
approximately 400. An Air Force contractor pays $2,000 to the
association so that the association can extend free invitations to
five Air Force officials designated by the contractor. The Air
Force officials may not accept the gifts of free attendance.
Because the contractor specified the invitees and bore the cost of
their attendance, the gift of free attendance is considered to be
provided by the company and not by the sponsoring association. Had
the contractor paid $2,000 to the association in order that the
association might invite any five Federal employees, an Air Force
official to whom the sponsoring association extended one of the
five invitations could attend if his participation were determined
to be in the interest of the agency. The Air Force official could
not in any case accept an invitation directly from the nonsponsor
contractor because the market value of the gift exceeds $250.
Example 2: An employee of the Department of Transportation is
invited by a news organization to an annual press dinner sponsored
by an association of press organizations. Tickets for the event
cost $250 per person and attendance is limited to 400
representatives of press organizations and their guests. If the
employee's attendance is determined to be in the interest of the
agency, she may accept the invitation from the news organization
because more than 100 persons will attend and the cost of the
ticket does not exceed $250. However, if the invitation were
extended to the employee and an accompanying guest, her guest could
not be authorized to attend for free since the market value of the
gift of free attendance would be $500 and the invitation is from a
person other than the sponsor of the event.
Example 3: An employee of the Department of Energy (DOE) and
his wife have been invited by a major utility executive to a small
dinner party. A few other officials of the utility and their
spouses or other guests are also invited, as is a representative of
a consumer group concerned with utility rates and her husband. The
DOE official believes the dinner party will provide him an
opportunity to socialize with and get to know those in attendance.
The employee may not accept the free invitation under this
exception, even if his attendance could be determined to be in the
interest of the agency. The small dinner party is not a widely
attended gathering. Nor could the employee be authorized to accept
even if the event were instead a corporate banquet to which forty
company officials and their spouses or other guests were invited.
In this second case, notwithstanding the larger number of persons
expected (as opposed to the small dinner party just noted) and
despite the presence of the consumer group representative and her
husband who are not officials of the utility, those in attendance
would still not represent a diversity of views or interests. Thus,
the company banquet would not qualify as a widely attended
gathering under those circumstances either.
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