At this time of the year many companies and trade associations host holiday parties and invite government officials and staff. Strict rules regulate whether attendance is ethically permissible. More than ever, government officials and staff are extremely hesitant to attend a privately sponsored event unless they are sure that it complies with relevant rules. As a general rule, government officials may not accept a gift from a private source unless there is an exception to this broad prohibition.

There are two relevant exceptions that are often confused. The first exception involves what you would typically find at a reception while the other relates to more elaborate events, such as a sit-down dinner. To help you plan an event that is deemed to be "safe to attend," we offer the following review.

Receptions

Legislative Branch. Both the House of Representatives and the Senate allow members and staff to attend some privately sponsored receptions. A reception does not require a minimum number of attendees to qualify for the exception, nor is there any prohibition on lobbyist sponsorship or involvement. What does matter is the type of food that is being served. Under House Rule 25, clause 5(a)(3)(U) and Senate Rule 35.1(c)(22), Senators, Representatives and staff may accept food or refreshments of a nominal value offered other than as part of a meal. This includes hors d'oeuvres and beverages usually offered at an evening reception. This is sometimes referred to as the "toothpick rule." As a general rule, keep the menu simple and serve foods that do not require a knife and fork and your reception can comply with this provision, enabling members and staff to attend.

Executive Branch. In the Executive Branch there is no specific exception for receptions; however, under 5 CFR § 2635.204(a), an Executive Branch official may accept an unsolicited gift, including food having a market value of $20.00 or less per occasion. Therefore, if the per person cost of the reception is under $20.00, an Executive Branch official could attend under this exception. Note, however, that a Schedule C political appointee may not accept gifts under $20 if they are offered by an individual or company which is registered under the Lobbying Disclosure Act of 1995, as amended ("LDA"). Thus, a political appointee could not attend a reception under the section 2635.204(a) exception if it were sponsored by a company with employees registered under the LDA. (This prohibition does not apply to companies that only lobby through outside consultants and have no employees who are registered under the LDA.)

Widely Attended Events/Gatherings

Legislative Branch. If you would like to offer more than reception fare at your event, you can do so under the widely attended event exception found in House Rule 25, clause 5(a)(4)(A) and Senate Rule 35.1(d)(1). To satisfy this exception, the event must meet the following conditions:

• the invitation must be issued by the event sponsor;
• at least 25 persons from outside Congress will attend;
• attendance at the event is open to individuals from throughout a given industry or profession or to a range of persons interested in the issue; and
• the event is connected to the official's duties.

Again, the invitation must come from the event sponsor and not from a third party. For example, if a trade association is the sponsor of the event, a member of that trade association which has no other connection to the event other than membership in the organization may not issue the invitation. However, if one or several members have a significant role in planning and financing the event, they may be deemed a "sponsor" and extend invitations in their own name. Another critical element of the exception is that at least 25 persons from outside Congress must be expected to attend and they must come from throughout a given industry or profession, for example, members of a trade association or a community organization. Thus, one company could never host a widely attended event even if 500 of its employees were in attendance. If the elements of a widely attended event are met, a seated meal could be accepted by a Senator, Representative or staff. Note, however, that at the dinner, no significant entertainment could be offered. So, while a jazz combo could play as background music during the event, a well-known performer could not provide entertainment as part of the event.

Executive Branch. Section 2635.204(g)(2) permits Executive Branch employees to attend what it refers to as a "widely attended gathering" at which a meal and even entertainment are provided. A gathering is widely attended if it is expected that "a large number of persons will attend and that persons with a diversity of views or interests will be present." This is similar to the test used in the Legislative Branch described above. But note that attendance at such events requires a determination by the employing Executive Branch department or agency that attendance will further agency programs and operations. If anyone other than the sponsor extends an invitation to the event, more than 100 persons must be expected to attend the event and the market value of attendance must be $375 or less. Again in this instance, Schedule C political appointees may not accept an invitation to a widely attended gathering if the sponsor is a registered lobbyist or an entity that employs registered lobbyists.

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One key to having government officials accept an invitation to your holiday event is knowing and complying with the ethical rules under which they operate. Assuring that you've paved the way for all guests who you would like to attend can help make your event a success.

Thomas J. Spulak, Claudia A. Hrvatin, Lauren M. Donoghue