December 3, 2014

Don't Get Scrooged: Remember to Follow Holiday Ethics Rules

Holland & Knight Eyes on Washington Blog
Christopher DeLacy

'Tis the season for holiday cheer, but before you grab that cookie or accept a holiday gift, you should take a moment to contemplate whether it complies with applicable ethics rules. While this may cause you to say “bah, humbug!” the truth is that even an inadvertent holiday ethics violation can come back to haunt you like the Ghost of Christmas Past. In fact, many common holiday courtesies can run afoul of ethics rules when members of Congress, their staffs, and other government officials are involved. The good news is that, with some advance planning, many holiday traditions can conform to both the holiday spirit and the ethics rules. 

Catering Law 101

One of the most common holiday traditions - the holiday party - also happens to be the easiest from an ethics perspective. Both House and Senate Rules permit events that serve food and refreshments of a nominal value - this is commonly referred to as the reception exception. So long as the food is limited to finger foods (including holiday cookies) and drinks without a meal, it is generally permissible. Remember - no heavy hors d'oeuvres or carving stations and no super-premium booze worthy of a professional athlete or foreign oligarch. 

Catering Law 102

If you want to serve a meal at your holiday party, the degree of difficulty goes up significantly. Under most circumstances, a meal may only be served if the event complies with the widely attended event or charity event  exceptions.  These exceptions are more complex than the reception exception and should only be relied upon with the assistance of counsel and House and Senate Ethics Committee staff. Remember that the widely attended event exception must be related to the Member or staffer's official duties and the primary purpose of a charity event must be to raise funds for the charity. 

Gift Giving

While it is almost always polite (and maybe expected) to provide a gift during the holidays, you may end up with a holiday hang-over if the gift is not properly vetted in advance. Put another way - it is far better to give a properly vetted gift than to receive a subpoena. Gifts valued at less than $49.99 may be permissible so long as they are not provided by a lobbyist or entity that employs a lobbyist and items paid for by a state or local government or gifts given on the basis of personal friendship may be permissible as well.  And when the Ethics Committees say personal friendship, they really mean a personal friend  - the rule does not apply if the gift giver seeks reimbursement or a tax deduction.  Also, keep in mind that gifts valued at $250 or more may not be accepted on the basis of personal friendship unless the House or Senate Ethics Committee issues a written determination in advance.      


Gift rule exceptions provide fodder for many popular and oft-repeated pearls of wisdom that have been passed down by generations of Washingtonians. Examples include confusing or combining the reception exception with the widely-attended event exception. A common example of this phenomenon is a statement along the lines of: "my party complies with the rules - it is widely attended and we are only serving food on toothpicks." Another variant is forcing attendees to stand for the entire event - with no chairs or tables. Like all urban legends, these tales are based on a grain of truth, but ultimately miss the mark.  In truth, while serving food on toothpicks is clearly indicia of finger food, it is by no means a requirement under the reception exception and neither is forcing people to stand up (which could be rude and may violate the Americans with Disabilities Act).  Rather than rely on arm chair dispensers of ethics advice, it is better to work directly with counsel and the ethics professionals at relevant Ethics Committees or agencies.     

Bottom Line

In order to stay on the House and Senate Ethics Committees "nice list," it is always best to check with them prior to giving anything of value to a House or Senate Member or staffer or accepting anything of value if you are a House or Senate Member or staffer. In addition to Congress, the executive branch has its own ethics rules, including rules that apply to all executive branch employees, rules that apply to specific agencies and rules that apply to certain types of employees (e.g., political appointees). In addition to the federal government, each state and many localities have their own ethics rules. 

More information:

House Committee on Ethics - 202.225.7103 
Senate Select Committee on Ethics - 202.224.2981 
U.S. Office of Government Ethics - 202.482.9300 
Executive Order 13490 - Ethics Commitments by Executive Branch Personnel
State Ethics Commissions

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