Q: I am little embarrassed even to ask a question like this, but here it goes. I met a great guy at a cocktail reception last week, and we really seemed to hit it off. I didn’t hear from him again until yesterday, when he sent me three dozen beautiful red long-stem roses for Valentine’s Day. A little forward, I suppose, but I must admit that I am thrilled with them. My question is whether the fact that I happen to be a House staffer means I cannot keep the flowers. Please say I can keep them. They are stunning, and I really don’t want to mess this up.
A: Your question is an excellent reminder of the breadth of the House gift rule. The House gift rule can essentially be stated in two words: no gifts. As written, the rule really is that broad. According to the House Ethics Committee, you may not accept anything of value from anyone — whether in your personal life or official life — unless acceptance is allowed by one of the exceptions to the gift rule.
So, the exceptions are the key. Anytime you receive anything from anyone, an alarm bell should go off and you should consider whether there is an exception that allows you to accept it. Here, you have heard the alarm bell. That’s the good news. The bad news is that it is difficult to find an exception that would apply.
There is one exception that permits you to accept gifts that are below a certain value, so long as the donor is not a registered lobbyist or foreign agent. However, the limit is $50. Those of us who have recently been in the market for long-stem roses for their valentine know that the price for three dozen roses almost certainly exceeds this limit.
Another exception covers gifts given on the basis of personal friendship. Beware, however, that this exception has long had a reputation for being one of the most misunderstood of all the gift rule exceptions. This is because it does not mean simply that you may accept a gift from anyone whom you call a friend. Rather, the gift rule requires that you consider the circumstances in which the gift was offered, and it lists three factors that merit particular consideration.
One factor is whether, to your actual knowledge, the donor personally paid for the gift or instead sought a tax deduction or business reimbursement. I sure hope this factor is on your side here. You do not mention having any actual knowledge that your suitor did not pay for the flowers himself. But I suspect that if you had such knowledge, you might not have called him a “great guy.” So, chalk this factor up for you.
A second factor is whether, to your actual knowledge, the donor gave the same or similar gifts to other staffers or Members. Again, if you had knowledge of him showering other staffers with Valentine’s Day gifts at the same time as he sent yours, I suspect that you would have chosen a more colorful description for him than “great guy.” So this appears to be in your favor as well.
The third factor, however, could prove more problematic. It is the history of your relationship with the gift donor, including “any previous exchange of gifts.” Here, the history of your relationship is clearly very short, and you do not mention any previous exchange of gifts. You only met this guy once, and you have had no contact with him since. In light of this, there is a substantial risk that the House Ethics Committee could take the position that the flowers do not qualify as a gift given on the basis of personal friendship.
Unfortunately, none of the other exceptions looks any better. There are exceptions that would allow you to accept Valentine’s Day gifts from your father, your mother, your brother and even other staffers. But, no exception on its face appears to permit a gift as generous as three dozen roses from someone you only just met.
On the other hand, the ethics rules were certainly not designed to prevent staffers from enjoying Valentine’s Day. And there is no precedent for the House Ethics Committee taking public action against a staffer for accepting flowers on Valentine’s Day. Yet, technically, there remains a risk that the committee would consider this a violation of the rules.
If you do not keep them, then, what can do you with them? Ordinarily, the House gift rule requires that, when you receive an impermissible gift, you must return it promptly to the donor or pay him the market value of the gift. For obvious reasons, that could be more than a little awkward here.
Fortunately, you may have other options. The House gift rule includes a special provision for perishable items, such as flowers. “When it is not practicable to return a tangible item because it is perishable,” the rule says, “the item may ... be given to an appropriate charity.” Thus, the Ethics Committee has said that a perishable item may be donated to a local hospital, homeless shelter, religious organization or other charity.
In sum, if you chose not to keep them, your options are: Return the flowers, pay him the market value for them, destroy them or donate them to an appropriate charity. Whatever you chose, it looks like you will have a good story to tell the kids one day.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.