More Than One Code May Apply

By Tara Hoke

Situation

An ASCE member employed at a district office of the Federal Highway Administration serves as a project manager on a major infrastructure undertaking. During the holiday season, he receives two thank-you presents from private firms involved as subcontractors on the project. One gift is a plastic paperweight bearing the firm's corporate logo; the other is a pair of tickets to a professional sporting event.

Shortly thereafter, the member receives an invitation to attend an infrastructure workshop hosted by the local chamber of commerce. The purpose of the workshop is to bring together representatives from the public sector, private industries, and the local citizenry to discuss ways of addressing the region's growing infrastructure challenges. The workshop program includes lunch and dinner, and the program carries a $250 registration fee. However, because the chamber is interested in having the member's input, it offers to waive his registration fees.

In recognition of the member's work in overseeing the infrastructure project, the state's ASCE section honored him with its engineer of the year award. The member is invited to accept the award, a commemorative medal valued at approximately $200, at the section's annual meeting, and the section agrees to pay any expenses incurred by the member for travel and lodging.

Question

Is it a violation of professional ethics for the federal employee to accept these gifts or benefits?

Discussion

Personal gifts from a customer, vendor, or other outside party are an ethical concern in that they create a potential conflict of interest. If an engineer receives significant personal benefits from an outside party, it is possible that the engineer's decisions or recommendations on the job might seek to preserve that beneficial relationship and not be in the best interests of the engineer's employer or client.

If a question such as this were brought before ASCE's Committee on Professional Conduct, that body would first examine the member's conduct with respect to canon 4 of ASCE's Code of Ethics, which reads as follows: "Engineers shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest." The committee might also consider category (a) in the guidelines to practice for that canon, which requires disclosure of potential conflicts of interest to an employer or client. Furthermore, category (c) in the guidelines prohibits gratuities from third parties in connection with one's work responsibilities. Also applicable is category (a) in the guidelines for canon 5, which bans gratuities offered to secure work.

The committee would consider whether the member's acceptance of the gift or benefit could influence his judgment in carrying out his professional duties. If the gift giver were someone whose interests might be affected by the employee's professional duties and the gift were of a nature that might raise questions as to a potential conflict of interest or an attempt at unfair competition, the committee would probably recommend that the employee disclose the offered gift or benefit to his employer and be guided by the employer's decision on the matter. Another course of action the committee might suggest would be to simply reject the offer outright.

As a federal employee, however, the member's actions are governed not only by ASCE's Code of Ethics but also by standards set forth in the Code of Federal Regulations (title 5, part 2635). Subpart C of these regulations deals with gifts from outside sources, and it stipulates that employees of the U.S. government "shall not, directly or indirectly, solicit or accept a gift: 1) from a prohibited source; or 2) given because of the employee's official position." The term "prohibited source" is defined to include any person or entity meeting any of the following criteria:

• Seeks official action from the employee's agency;
• Does business with or seeks business from the agency;
• Conducts activities regulated by the agency;
• Has interests that may be substantially affected by the employee's official duties.

Any organization with a majority of members meeting any of the above criteria also would be deemed a prohibited source.

This prohibition is subject to a handful of limits and exceptions. One is the "de minimus" exception, which allows employees to accept unsolicited gifts valued at $20 or less as long as the gift is not cash. (The total value of gifts received from a single donor must not exceed $50 in a calendar year.) Under this exception, the ASCE member might be able to accept the corporate paperweight, but he would almost certainly be barred from accepting the tickets to the sporting event.

A second exception applies to "widely attended gatherings." Under this exception, an employee may accept an unsolicited gift of free attendance at a meeting if the meeting provides an opportunity to exchange ideas with individuals representing a diversity of interests and if the employee's agency determines that the employee's attendance furthers agency programs and operations. Under this exception, the employee in question may be able to accept the waiver of attendance fees at the chamber of commerce meeting if his agency regards his attendance as advancing the agency's purposes.

A third exception exists for awards and honorary degrees. A federal employee may accept a "bona fide award" for public service or merit, including gifts of $200 or less not in the form of cash, as long as the donor is not a party whose interests may be substantially affected by the employee's performance of his or her official duties. For this exception to apply, the donor also must not be an organization with a majority of members having interests that could be substantially affected by the honoree's performance of his or her official duties. Gifts valued at more than $200 require written authorization from the agency's ethics official. The employee in question may therefore be able to accept the $200 medal from the ASCE section if his official duties do not affect a substantial interest of the section or the interests of a majority of its members. The employee would not, however, be able to accept travel costs in addition to that medal without a written determination by his agency's ethics official that the award met the provisions of the statutory exception.

The U.S. Office of Government Ethics recently proposed regulations that would tighten the restrictions on gifts to federal employees from professional lobbyists and organizations that employ or retain paid lobbyists. These regulations already apply to political appointees under a 2009 executive order. Public charities such as ASCE are excluded from the proposed regulations, but if the proposals are approved many of the exceptions discussed above would be eliminated if the gifts came from for-profit entities, trade associations, or other organizations that retained lobbyists.

Although the hypothetical situation discussed here pertains to an employees of the federal government, most state and local government officials also are subject to statutory ethics regulations, some of them even more restrictive than those imposed on federal employees.

These restrictions underscore the notion that a government employee is a "public servant," a person whose primary responsibility is to the public interest. Accordingly, any individual who is considering offering or accepting a gift involving a public employee is encouraged to consult the applicable regulations, state professional licensure laws, and his or her professional society's code of ethics.

Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.

© ASCE, ASCE News, December, 2011