There's No Free Lunch

It's been a difficult morning but it's almost over. The day started with a visit from agents of the U.S. Environmental Protection Agency (EPA) and the State Department of Natural Resources. The agents inspected your swine operation in response to a complaint about an alleged violation of the Clean Water Act.When the four agents first arrived at your farm you tried to call your nephew, the lawyer.

It's been a difficult morning but it's almost over. The day started with a visit from agents of the U.S. Environmental Protection Agency (EPA) and the State Department of Natural Resources. The agents inspected your swine operation in response to a complaint about an alleged violation of the Clean Water Act.

When the four agents first arrived at your farm you tried to call your nephew, the lawyer. Gone hunting.

It turns out not being able to reach your nephew, the lawyer, was a good thing. Everything seems to have gone well and you saved on legal fees. Besides, the four agents are actually very nice. You remember meeting one of them years ago in college when you were in a biology class together.

It is almost noon and you know the agents must be hungry. To let them know there are no hard feelings, you graciously offer to buy them lunch at the local diner. At first you get only stunned silence in response. One agent, however, your old college acquaintance, is clearly agitated. The agents huddle and you hear the words "cheap bribe." You silently ask yourself, "where is my nephew?"

Pork producers often come into contact with federal and state employees as the government workers perform their official duties. Personal contact with U.S. Department of Agricultural (USDA) employees, EPA agents, and Packers and Stockyards representatives are relatively common.

Social interaction with many of these same government employees may also occur, especially in rural communities. Church, civic and school activities may frequently bring together pork producers and government employees. Friendships, or at least friendly acquaintances, may develop over a period of time.

Given the social interaction between the parties and the natural friendliness and courtesy of many pork producers, a producer may be inclined on occasion, to offer to buy lunch for a government employee. If the producer feels that he or she has a particularly good relationship with a government worker, they may even be tempted to give the government employee or a member of the employee's family a gift at Christmas or on some other special occasion (i.e., birthday, wedding anniversary or a child's high school graduation).

Unfortunately, the gift or offer of common courtesy, such as lunch, places the government employee in an awkward and embarrassing position. It also exposes the pork producer to criminal prosecution as the gift or courtesy may be construed as a bribe or illegal gratuity.

Gift-Giving Rules The federal government has strict rules governing gifts to government employees. The generous but unwary pork producer can potentially violate a number of federal statutes with a single gift, including the Federal Bribery Statute, the Federal Anti-Gratuity Statute, the Agricultural Marketing Act and even mail and wire fraud statutes.

Many state laws prohibiting gifts to state employees model the federal statutes. In some instances, the state laws are more restrictive than their federal counterparts.

Federal statute 18 U.S.C. P.201 is the general federal prohibition against bribing or attempting to bribe a public official. A bribe is simply an offer to exchange something of value in return for an official act.

In legal jargon it is known as a "quid pro quo exchange." Section 201 prohibits the giving or promising of "anything of value" to a public official with the intent to influence an official act. The statute defines "public official" to include all federal employees. "Anything of value" includes money, lodging, transportation, tickets to sporting events, meals and virtually any other gift, service or common courtesy.

The monetary value of the bribe is irrelevant, except in determining the amount of the criminal fine. Besides a criminal fine, a violator of the statute may also be imprisoned for up to 15 years. Federal law also prohibits the giving or offering of illegal gratuities to public officials. Unlike a bribe, an illegal gratuity does not require proof of a quid pro quo. In other words, the government doesn't need to prove that the illegal gratuity was given in exchange for a specific act.

Until the recent U.S. Supreme Court decision in United States vs. Sun-Diamond, in prosecuting an illegal gratuity case, federal prosecutors only had to prove that a gratuity was given or offered to a public official. For example, in this articles opening scenario, the mere offer of lunch was an illegal gratuity.

The Sun-Diamond decision, however, has now modified the old standard. The case arose from gifts provided by Sun-Diamond to former Secretary of Agriculture Mike Espy. The company and two of its executives were successfully prosecuted under the Federal Anti-Gratuity statute on the basis that the gifts to a government official violated the statute, regardless of whether there was evidence linking the gifts to official conduct.

The U.S. Supreme Court, in reversing the company's conviction, held that there must be evidence of some connection between the gratuity and the officials' conduct. The illegal nature of the gratuity can be established by proving that it was a reward for past favorable treatment by the official or was given for future, favorable treatment.

For example, to convict our generous pork producer of offering an illegal gratuity when he offered to buy lunch for the agents investigating an alleged Clean Water Act violation, the prosecution would have to establish a link between the offer and past lax enforcement of environmental standards, or that the regulators were supposed to go easy on him as to any future violations.

Regardless of the strict bribery and gratuity standards, some things are deemed permitable to officials. The rules, however, are very restrictive.

For example, a pork producer can give a government employee a gift appropriate to the occasion if there exists between the parties a family or obvious personal relationship. For example, do marriage or longtime personal friends relate the parties? The circumstances must make it clear, however, that it is the relationship that motivated the gift and nothing more.

Some common social courtesies are also permissible, at least under federal law. Offers of soft drinks or coffee being the most common examples. But the value of the courtesy must be trivial, as well as wholly free of any embarrassing or improper implications. Promotional items of trivial value, such as pencils and note pads with a farm's name on them can also be given out. Some promotional items, however, such as meat products, alcoholic beverages, fruit baskets, boxes of candy and jewelry should never be offered. (See Food Safety Inspection Directive 4735.3 Part Six.)

No Gifts Policy The best policy is one of absolutely no gifts or gratuities to public officials, unless the official is a relative and the item given is appropriate to the occasion. Extreme caution must be exercised at all times to protect the pork producer and the government officials with whom the producer comes in contact.

Regardless of whether the producer's offer of a gift or gratuity violates federal or state law, government officials have strict codes of ethics under which they must operate. The official's acceptance of seemingly trivial items could result in disciplinary action being taken against the official by the agency for which he or she works. It is best for everyone to keep relationships with government officials professional and to avoid even the appearance of impropriety.