Are Gratuities and Rewards Government Ethics Issues?

Update: September 6, 2010 (see below)

For many local government employees, gratuities are the principal way in which an ethics code affects them, because many ethics code prohibit gratuities. But are they really a government ethics issue? In other words, does a government employee, say a sanitation worker, have a conflict or create an appearance of impropriety by accepting a tip from a citizen for whom he has done routine work?

This issue arose out of an Associated Press article today about a reward that has been offered to a National Forest ranger by the U.S. Marshals Service and the owners of a privately-run prison for information leading to the capture of three men who had escaped from an Arizona prison.

The U.S. Department of Agriculture Office of Ethics will make a determination soon, but the early word is that the ranger will not be able to accept the reward. I assume the governing law is 18 USC §209(a), which reads in part:

Whoever receives any salary, or any contribution to or supplementation of salary, as compensation for his services as an officer or employee of the executive branch of the United States Government ... from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality ... Shall be subject to the penalties set forth in section 216 of this title.

In short, no one can supplement a government employee's salary for work he or she has done for the government. The ranger reported a suspicious car and campfire as part of his routine work for the government.

Ethics laws are intended to prevent government employees from serving two masters, but a sanitation worker accepting a tip doesn't do that, nor does such a ranger. Neither does their work for a tip or reward, neither gives preferential treatment or seeks to help themselves in any way at the government's expense or at the expense of public trust.

Ethics rules involve gifts that seek to influence behavior, not that reward behavior after the fact. If someone offered the ranger money not to report the suspicious car, that's a crime. But if someone who doesn't do business with the particular agency offers a reward for helping to capture dangerous fugitives? There's nothing wrong with that. Why then should there be anything wrong with accepting such a reward?

If gratuities and rewards are to be prohibited, the prohibition should appear as a personnel rule, not an ethics rule. That is why the City Ethics Model Code limits prohibited gifts to those coming from individuals and entities seeking financial benefits from the local government.

Some jurisdictions (e.g., New Jersey's §52:13D-24(a)) actually include the noun "reward" in their list of what can be a gift, but it's unlikely that the drafters really thought through the common use of this word as a noun. The problem is that the verb "reward" is often used in ethics codes, as it is in the City Ethics Model Code. The verb means giving someone something of value in return for doing something, a central prohibition of government ethics. The noun "reward" usually means something of value given for helping to capture criminals or finding a lost dog, hardly something an ethics code would frown on.

Yes the noun is sometimes used more generally, in expressions such as "he got his just reward" and "a reward for action and inaction" (the second expression was taken from the Washington State ethics training brochure on gifts, p. 2). But when used alone, the noun "reward" has a much more specific meaning.

This situation is big news across the country. Everyone wants to see the ranger get his reward. And few people begrudge sanitation workers their holiday gifts. These matters do not involve the public trust and should be removed from ethics codes.

Update: September 6, 2010
In a comment below, Wayne Barnett, the executive director of the Seattle Ethics and Elections Commission, points out a situation I hadn't considered, where tips are effectively required to get service, as they are in many parts of the world, and probably a number of agencies in the U.S., as well. I consider these bribes because they are given to get action, rather than reward action. But there is a ... well ... tipping point where completely innocent tipping, which is purely up to citizens, could turn into a low-level pay-to-play regime, where those who do not give either get no service or a lesser or slower service from local government employees. Therefore, any tipping that is allowed under personnel rules should, I think, be closely monitored, and complaints from citizens regarding their impression that tips are required should be dealt with not just individually but, if there appears to be more than an isolated incident, they should dealt with in a public hearing that considers whether to disallow tipping in particular situations or overall.

Barnett also raises the issue of the difference in an environment where public service is done without tipping vs. one where there is tipping as a matter of course (or even, I would add, as a matter of choice, which puts the citizen in an uncomfortable position). This should definitely be an important consideration in a local government's decision to allow tipping.

Robert Wechsler
Director of Research-Retired, City Ethics

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