When to Invite, or Not Invite, Federal Employees
By Jim D’Agostino and Andrew Belofsky
General ethical tenets that bar accepting or giving gifts or gratuities to or from federal employees, for the most part, are understood. However, there are certain subtle gray areas that remain open to interpretation by federal employees and contractors alike.
One exception to the general ban on gifts or gratuities from specified sources or those given due to a federal employee’s official position are “widely attended gatherings,” or WAG.
The WAG exception allows federal employees to accept or give invitations to events that accommodate discussion or activity of a large group of attendees that advance official governmental duties, to include receptions, picnics and conferences.
WAGs are not necessarily proper leverage for legitimizing entertainment events such as sporting events or theater productions that precede or follow receptions or conferences. But federal ethics regulations do not expressly rule out sporting or theatrical events as being integral to an otherwise legitimate WAG, which leaves the definition somewhat confusing at times.
The Office of Government Ethics provided guidance on the WAG exception in December 2007. Yet, the Defense Department’s ethics advisors still receive questions as to specific events and how they fit into the WAG exception. In an attempt to clarify, the department’s General Counsel, Standards of Conduct Office (SOCO) recently published an advisory covering the WAG rules. It is divided into three categories: WAG events that are “stand alone” sporting and entertainment events; sporting and entertainment events that are “integral” to a WAG and hence acceptable; and sporting and entertainment events that are not “integral” to a WAG and therefore barred.
First, corporate invitations to federal employees to such events generally are not authorized WAGs unless the event provides sufficient opportunity for exchange of ideas among a large and diverse group per WAG criteria. Tickets to a baseball game that would assign federal employees particular seats would limit their discussions to those people seated in the immediate area. Game attendance in this case would not qualify as a WAG. Similarly barred are golf tournaments where discussions during the round of golf are necessarily limited to a foursome. In each of these cases, federal employees must pay the fair market value for attendance and participation. Contractors therefore are also barred from offering free invitations.
SOCO provides for an ethics counselor to permit free admission to such events if the event is integral to a WAG itself — if it is “a natural and real part of the WAG, not ancillary or incidental to the overall event.”
An example would be federal employees who are invited to a baseball game in a skybox where all attendees are free throughout the game to mingle and confer, rather than confined to stadium seats, provided attendance is in the interest of furthering agency programs and operations. The same would apply to a corporate tent at an event where invited government employees freely mingle before, during, and after the event. The opposite case would be a theatrical performance where assigned seats only allow discussion among a limited number of attendees before, during intermission, and after the event.
To qualify, a WAG must accommodate active exchange of views throughout the event. And even after reading SOCO’s advisory, the WAG exception is still not crystal clear. To avoid problems, contractors should review each invitation carefully before extending free admission to federal employees, and should welcome, and even encourage the federal employee invitees to seek advice from ethics counselors as well.
L. James D’Agostino, and Andrew J. Belofsky are attorneys with the international law firm of Greenberg Traurig LLP, and specialize as members of the firm’s government contracts practice group. The views expressed are solely those of the authors.