Oh Boy! A Gift!

I’d guess that just about everyone likes getting gifts, and that’s probably true for local government officials as well. It’s okay for an elected official to accept a gift, isn’t it? Maybe yes, maybe no.

The concern is whether acceptance of a gift violates RCW 42.23.070, which states:

(2) No municipal officer may, directly or indirectly, give or receive or agree to receive any compensation, gift, reward, or gratuity from a source except the employing municipality, for a matter connected with or related to the officer's services as such an officer unless otherwise provided for by law.

What Is a Municipal Officer?

In RCW 42.23.020(2), the term “municipal officer” is defined to include both elected and appointed officers, as well as their deputies and assistants.

Clearly mayors, councilmembers, commissioners, prosecuting attorneys, sheriffs, auditors, treasurers, and other elected officials are covered, as are their deputies and assistants. Since appointed officers are included as well, fire chiefs, police officers, city managers, public works directors, clerks and clerk treasurers, and other appointed officers come under the statute’s reach.

Gifts that Are Allowed/Prohibited

Knowing whom is included in the prohibition, what does the statute allow or prohibit?

If a gift is given by someone’s Aunt Nell, obviously the statute does not apply, since it is personal and not given in connection with the recipient’s office. But if a contractor gives the public works director tickets to an upcoming football game, the statute would likely apply and the offered gift should not be accepted.

When a gift is given to an officer, arguably for a matter associated with the officer’s position, acceptance of the gift is prohibited. No ballgame tickets, no free lunches, no box of apples, and no candy.

Penalties

If a gift is given to an officer and accepted by that officer, what’s the penalty? It is severe.

Per RCW 42.23.050, violation of the statute may result in a $500 penalty, possible forfeiture of office, and “other civil or criminal liability as may otherwise be imposed upon the office by law.”

Exceptions

Does it matter that the gift is small, such as a lunch, a cup of coffee, or some flowers? Presumably, under the above statute, it would not matter since the statute covers any gift or compensation, but here is where things can get complicated: A similar prohibition against the acceptance of gifts applies to state officers and employees (see RCW 42.52.140).

Importantly though, state laws permit acceptance of some gifts, such as those with an aggregate value of $50 or less. See RCW 42.52.150(1). Additionally, other items, such as flowers, plants, pens, note pads, plaques, trophies, and food and beverages served at hosted receptions may be accepted without violating the statute. The “problem” is that the statute only applies to state officers and employees, not to local government officials who are covered by RCW 42.23.070.

Contrasting the two statutes, RCW 42.23.070, which is applicable to local officials, and RCW 42.52.140, which is applicable to state officers and employees, it would appear state employees and officials may accept some gifts, but local officials may not. However, some local governments have adopted their own rules regarding the acceptance of gifts, rules that often mirror the state rules. The following codes offers some examples:

• Tacoma Municipal Code Sec. 1.46.030 allows "Nominal promotional items including, but not limited to, items such as ball point pens, calendars, wearing apparel, or food items which cannot reasonably be presumed to influence the vote, action, or judgment of the City Official or be considered as part of a reward for action or inaction”
• Bremerton Municipal Code Sec. 2.96.030 adopts the state threshold of $50 or less
• Vancouver's Employee Ethics Policy requires that gifts received by city employees be given to the employee’s immediate supervisor with an explanation of the circumstances surrounding receipt of the gift.
• King County Code Sec.3.04.017.G allows "gifts of $50 or less for bona fide, non-recurring, ceremonial occasions"

Do these and other local policies allow gifts otherwise prohibited by state law? Perhaps not. On the other hand, local governments that have adopted their own rules have apparently done so without adverse action by the state auditor’s office or citizens.

If your jurisdiction wishes to adopt rules that are not consistent with RCW 42.23.070, it would be wise to consult with your city, district, or county attorney to better gauge the possible risks.

Questions? Comments?

If you have questions about the receipt of gifts or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me at psullivan@mrsc.org. Just so you know, I also accept gifts, as does MRSC.