I made a mistake. Yes, it happens. The error crept into my Civil Beat column this week when I overlooked the asymmetrical nature of the gift provisions in the state’s ethics law.
While writing the column, I refreshed my memory of the ethics issues by looking at the “resolution of charge” in the matter that was made public by the State Ethics Commission. It described the charges brought against Relativity Media and focused on disclosure, rather than whether the DVD sets given as gifts were proper.
In the column, I wrote:
Despite the relationship between Relativity’s push for increased credits and its lavish (and, at the time, undisclosed) spending, the Ethics Commission did not find the gifts to be prohibited.
It did, however, require compliance with reporting requirements. The law requires lobbyists to publicly disclose any expenditures of $25 or more per day lobbying any legislator. The amount could include the cost of gifts, meals, entertainment, or other expenses. Those gifts must also be reported by the legislator if they total $200 or more from a single source in a year.
Here’s the problem with what I wrote. It was technically correct to say that the commission “did not find the gifts to be prohibited,” as long as this referred to the giving of gifts.
However, as I was reminded yesterday, the commission did determine that it was illegal for any legislator or state employee to solicit or accept these gifts under the circumstances. They advised that recipients had to either return the gifts or pay fair market value for them. Otherwise, acceptance would violate state law.
So that’s the trick. The state ethics laws apply to officers and employees of the state. It does not apply to others. So the gift provisions set out conditions under which a state officer or employee, including legislators, may not accept a gift without violating the law. Meanwhile, third parties, including lobbyists and special interests, are free to offer those same gifts as long as they are properly disclosed. Of course, if the gifts were accompanied by explicit agreements for officials to take actions in exchange for the gifts, that would be a a different matter. Not a matter of ethics but of bribery.
So in this case of Relativity Media’s DVDs, giving the gifts did not violate the law, but accepting the gifts did. And that’s the fine print I failed to note.