A Gift? For Me? The Basics of Gifts for Municipal Officers and Employees

The holidays are just around the corner, and it’s a time when professional colleagues will often share their appreciation by sending gifts or hosting special events and parties.

But is it OK for an elected official or municipal employee to accept that round of Cougar Gold cheddar from one of its contracted consultants? Or that bottle of Walla Walla Cabernet Sauvignon from a local developer? What about the invitation to a private holiday dinner from the local chamber of commerce?

As you may have guessed, in general, state law places significant limitations on both the giving and receiving of gifts by public officials. Likewise, local ethics codes and employment policies will generally address gifts to officials and employees. This blog will look at those limitations in the context of the municipal officer and the municipal employee.

The Prohibition on Municipal Officers Accepting Gifts

Chapter 42.23 RCW codifies the state code of ethics for municipal officers. RCW 42.23.070 lists “prohibited acts,” including that:

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.

Who is considered a "municipal officer?"

The term “municipal officer” is broadly defined to include both elected and appointed officers as well as their deputies and assistants—see RCW 42.23.020(2)—while “municipal” under RCW 42.23.020(1) refers to “counties, cities, towns, districts, and other municipal or quasi-municipal corporations…”

Elected officials include mayors, councilmembers, commissioners, prosecuting attorneys, sheriffs, auditors, treasurers, and any other locally elected officials. Appointed officials includes fire chiefs, police officers, city managers, public works directors, clerks, and clerk treasurers, planning commission members, and others.

Notably, the prohibition at RCW 42.23.070(2) does not apply to local government employees who do not meet the definition of  a “municipal officer.”  For more on municipal employees receiving gifts, see the section What About Municipal Employees? below.

What constitutes a prohibited gift? 

State law does not define “gift” in the context of a municipal officer, so we generally assume it is a gift within the ordinary meaning of the word, i.e., something of value given with donative intent.

Using RCW 42.23.070 as a guide, determining whether the gift or offering is prohibited depends on whether it is given “for a matter connected with or related to the officer's services.” (Note this provision does not restrict an officer from accepting gifts in their personal capacity.)

However, it is important for a municipal officer to be cautious. For example, if you have a friend who has bought lunch for you every Wednesday—even before you became a municipal officer—then perhaps that practice can continue.

If, however, a contractor offers the public works director tickets to an upcoming football game, and gifts of tickets were not being made prior to that individual becoming the public works director, the limitation would apply, and the public works director should not accept the tickets.

Additionally, a gift might not be prohibited if it is offered in a way that is unrelated to an officer’s position. For example, if there are “freebies” or “swag” at sponsor/exhibitor tables at a conference, and these items are available to any attendee, regardless of affiliation, then we’ve advised it is probably OK to accept those items, as they would not likely be considered a gift “for a matter connected with or related to the officer's services.”

Likewise, entering and winning a raffle at a conference may not implicate the prohibition on receiving gifts because the organization giving the gift could not have known it would go to that particular municipal officer. (Of course, municipal officers should always consult their agency attorney and local policies when there is a question of whether they should accept anything that could be considered a gift.)

For more analysis on gifts and ethical considerations for employees and public officials, see this MRSC blog, But What About Me? Ethics for Local Public Employees.

What Happens if the Gift Has Limited Monetary Value?

We’ve been asked whether there is a dollar value threshold below which a municipal officer may accept a gift. In short, technically no. There is no dollar threshold or exception set forth in the gift prohibition at RCW 42.23.070.

With that said, we are aware that several local governments have policies which allow municipal officers to accept gifts with an aggregate value of $50 or $100 or less within a calendar year. These local ethics codes/policies generally mirror RCW 42.52.150, a statute that applies to state officials and employees but not municipal officers or employees.

RCW 42.52.150(3) prohibits state officials and employees from:

• Accepting gifts greater than $100 in aggregate from a single source in any calendar year; and/or
• Accepting a single gift valued at more than $100 from multiple sources (the dollar threshold was increased in the last couple of years from $50 to $100).

This provision also expressly excludes certain items from the definition of “gifts,” such as group discounts and awards or scholarships for academic or scientific achievement.

Note that including a dollar threshold for acceptable gifts in a local government policy (akin to the provisions applicable to state officials and employees) carries some risk, but MRSC is not aware of adverse legal consequences or audit findings in connection with such policies. Importantly, a local elected official should adhere to whatever agency policy dictates regarding the acceptance of gifts.

What Is the Penalty for a Municipal Officer Accepting a Prohibited Gift?

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.”

What About Municipal Employees?

If you are a municipal employee but not a municipal officer, there are several things to consider with respect to gifts.

First, does your employer have an employment policy or local ethics code that restricts or prohibits the acceptance of gifts? It is common for local government ethics codes to address gifts made to employees as well as to municipal officers. If an employee accepts a gift in violation of a local employment policy or code of ethics, it could be grounds for imposition of discipline. For more information and examples, see MRSC’s Personnel Policy Manuals and Local Codes of Ethics webpages.  

Second, it is important for local government employees to consider the appearance of their conduct. Even if accepting a gift does not violate state law or local policies, it may erode public trust, tarnish the reputation of the local government entity, and put the employee in an awkward and embarrassing position.

Conclusion

Henry Clay, a lawyer who served in both houses of Congress and as secretary of state under President John Quincy Adams, once said,

Government is a trust, and the officers of the government are trustees. And both the trust and the trustees are created for the benefit of the people.

A gift given to a public servant could send the wrong message—to the donor, the recipient, and the public. Erring on the side of caution and politely declining a gift is a good practice if there is any appearance that the gift may have been offered in connection with the official duties of a municipal employee or a municipal officer.

For more information, see our Ethics and Conflicts of Interest webpage, and if you have questions about the receipt of gifts or other local government issues, please reach out to us through Ask MRSC.