Tread Lightly Through the Gift Rules
rimm should be complimented on his sensitivity to ethics issues. When Tucker Arnold called with the invitation, Grimm did not jump the gun. He did his ethics analysis before accepting. But for one little wrinkle, Grimm would be home free and spending his evening poring over wild duck recipes. His original analysis was on target. However, Murphy's Law kicked in and Grimm is rightfully now wondering about the implications of the recent acquisition.
Grimm could call off the trip. He has enough qualms and questions that he might feel better if he does just that. Certainly, if he knows that in the not-too-distant future he will be facing Walker-Reese across the table when he evaluates them, Grimm would not be considered an over-ethical wimp if he bowed out.
If he wants to find a way to go on his trip and still avoid the gift-rule trap, then Grimm should consult his ethics official. He could wade through the 20-plus pages of the Office of Government Ethics' gift rules--and his bureau's supplemental rules--and try to figure out what to do. However, given Grimm's high-level position with the bureau and the fact that he may be in a position to affect Walker-Reese's livelihood, he should get Frank Edwards' advice and follow it. Sloshing around in the government's gift rules and flushing out crisp answers is a much more grueling sport than sloshing around in a duck blind and bagging birds.
When Grimm calls on Edwards, he should be armed with as many facts as possible and be prepared to answer all of Edwards' questions.
Unless Edwards belongs to the "you can absolutely never have fun as a federal employee" ethics school, he will quickly point to a simple solution. He will first explain that a gift can mean anything of value, so the trip would fit the test. But, under the gift rules, if Grimm pays fair market value, then there's no gift.
The trick here will be figuring out the fair market value for a couple of days spent at a rustic lodge ensconced in a duck blind in the middle of a swamp. Like most ethics officials, Edwards will gamely help Grimm tag a value on the trip.
If Grimm is really parsimonious, he might press Edwards for another approach. Grimm will then walk through the things he must consider in his gift-rule analysis. Is the gift from a prohibited source? Good question. This is anyone who has an interest and may be substantially affected by Grimm's performance or nonperformance of his duties. Sounds like Arnold might fit this definition.
But Grimm will also consider whether there is a gift-rule exception that would fit here. While it's true he has a personal relationship with Arnold that long predates their current employment roles, Grimm will weigh whether the circumstances make it clear that the gift is motivated by that personal friendship. He will consider that they have done this kind of outing together before, and the offer from Arnold came before Walker-Reese got into the picture. He will also consider that Arnold's employer told him to bring a friend along.
Edwards may want Grimm to check with Arnold to verify that the company did not indicate that the "friend" needed to be a government official, an employee of Grimm's bureau or anyone of that sort. Assuming that checks out OK, then Edwards may well conclude that the personal relationship exception to the gift rule permits Grimm to accept. Or Edwards may ask Grimm more questions about where Arnold fits in with Walker-Reese and its contract with the bureau.
By now Grimm may be wishing he had simply taken Edwards' initial advice and planned to pay for the trip. In any event, he should appreciate the importance of getting the ethics official involved--sooner rather than later.
Susan McGuire Smith is retired from a 26-year legal career with the government, most of which was spent as an agency ethics adviser. As assistant counsel to the Senate Select Committee on Ethics just after the Watergate scandal, she helped write new ethics rules for senators and their staff. She is author of Practical Ethics for the Federal Employee, published by FPMI Communications Inc.