New York state law prohibits lobbyists and clients of lobbyists and other individuals or entities who have interests before the State from offering or giving a gift to any public official, unless under the circumstances it is not reasonable to infer that the gift was intended to influence such public official. This prohibition extends to children and spouses of the public official, as well as gifts to a third party (including charitable organizations) at the behest of a public official. While some exclusions may apply, gifts to third parties are presumptively impermissible and may implicate the Lobbying Law, the recently promulgated lobbying regulations, the Public Officers Law and criminal laws.
After receiving a number of inquiries about the permissibility of contributions or gifts given to a third party, such as a charitable organization at the solicitation of a public official, the Joint Commission on Public Ethics (“JCOPE”) issued Draft Advisory Opinion No. 20-02 on Sept. 22, 2020 to provide guidance to public officials, lobbyists, and their clients about third-party gifts. The Opinion has not been formally adopted and serves as a resource to those perhaps considering making a charitable donation at the direction of a public official.
As stated in the Advisory Opinion “[a]ny gift made by an Interested Source to a third party upon a public official’s personal solicitation is presumptively prohibited. In such a case, both the solicitation itself, as well as any gift in response could violate the law depending on the totality of the circumstances.” Identifying the circumstances surrounding the gift is key to determining whether that gift is prohibited. For example, an unsolicited gift is presumptively permissible, but the presumption can be overcome with evidence that the totality of the circumstances indicate that the gift was intended to influence a public official.
JCOPE offered a case-by-case analysis of each gift, which includes the following factors: the nature of the solicitation; the substance of the solicitation; the nature and purpose of the gift; the nature and purpose of the gift recipient; the public official’s awareness of the gift; the nature of the gift offeror’s business before the official; the nexus between that pending business, the public official, and the gift; and the offeror’s history with respect to similar gifts. The weight given to each factor within an analysis will vary depending on the facts and motives of each party in a given case.
Nature of the Solicitation – “A solicitation may take many forms, and it need not specifically request a financial contribution or any other specific item or favor.” State officials cannot knowingly solicit an Interested Source, but can see support from a third party through mass solicitations.
Substance of the Solicitation – “The specific discussion between the public official (or his or intermediary) and the gift offeror is significant. Any communication that looks like a quid pro quo is a clear red flag implicating the gift restrictions, but there are no specific phrases or words that per se implicate the ban.” Depending on the totality of the circumstances, a mere reference to a specific charity by a public official to an Interested Source could constitute directing that a gift be tendered to a third party.
Nature and Purpose of Gift – JCOPE will consider the value of the gift, the significance of the gift to the offeror and the public official, as well as whether the gift serves a general philanthropic purpose or furthers an individual’s policy or political goals.
Nature and Purpose of Third-Party Recipient – Factors considered will “center upon the extent to which the interests of the public official coincide with that of the third-party gift recipient…Other considerations include whether the public official or a relative is involved in operating or managing the organization, and whether the official is publicly associated with the organization.” In addition, a gift made to a governmental entity or to the public at large upon a public official’s request will also be subject to review and could be deemed impermissible.
Public Official’s Knowledge – JCOPE intends to consider the extent of the public official’s knowledge when it comes to the identity of those who respond to a solicitation.
Nature of Pending Business – Consideration will be given to the nature of the offeror’s pending business before the public official, including the status of the business and the significance of the business to the offeror.
Nexus between Solicitation and Pending Business – JCOPE will consider “any nexus between the solicitation and the pending business, including but not limited to the timing of the solicitation and offer, the status of the pending business and the public official’s role with respect to that business.” Evidence that the solicitation occurred close in time to a pending matter before the public official will be considered in determining whether the gift was meant to influence the official.
Offeror’s History – An offeror’s history of making gifts to similar organizations and supporting similar causes is also relevant to the analysis. “For example, if the donation is made to support a cause or charity that the offeror has consistently supported over time, independent of any solicitation connected to the public official, and if the donation is commensurate in amount to prior donations, such factors may support a finding that the gift is permissible. Conversely, if the donation is out of the ordinary for that offeror, it may support a finding that the solicitation and the gift are impermissible.”
Charitable gifts serve a worthy purpose and are to be encouraged, especially now. Executive Order 202.6 suspended Legislative Law 1-m to the extent that any agency may receive a donation in kind or otherwise provided the donation is made to the state and is administered by a state agency in furtherance of the pandemic response effort. However, gifts solicited by public officials to charitable organizations and other third parties are different and require a deeper analysis that should carefully consider all of the circumstances surrounding the gift to avoid violations or even the appearance of impropriety.
