In accordance with this basic purpose, an executive branch employee may not use the exception unless several criteria are met. Most significantly, an employee must obtain approval from his agency’s ethics officer. Moreover, an ethics officer may not provide such approval unless he determines that the employee’s attendance will further agency interests and furthering those interests outweighs any appearance that attending might improperly influence the employee’s official duties. The exception has previously been deemed applicable to trade shows, seminars and similar conferences.
Last month, the Office of Government Ethics proposed significant revisions to this exception. Most notably, if the proposed revisions become law, the exception would no longer be available to organizations that employ federally registered lobbyists. Thus, even if it would be in an agency’s interest for its employee to accept an invitation to an event and even if that interest were to outweigh any appearance of impropriety, the employee would no longer be permitted to attend the event if the invitation were to come from an organization with in-house lobbyists.
Conversely, the proposed revisions would not affect the availability of the exception to organizations that do not employ registered lobbyists. An agency employee would still be able to use the exception to accept invitations to events from such an organization. This would remain true even where the organization making the invitation has business before the agency employee, so long as the organization does not employ lobbyists. Under the new rule, the crucial distinction is whether the organization extending the invitation employs in-house lobbyists.
At this stage, the revisions are mere proposals. The Office of Government Ethics is soliciting public comments on the rules, which must be received by Nov. 14.
Assuming the Office of Government Ethics proceeds with the new rules, however, organizations with in-house lobbyists should take particular notice. Given the long history of the widely attended gathering exception in government gift rules at both the federal and state level, many organizations have grown accustomed to it. If the proposed revisions become law, organizations will need to make adjustments when it comes to federal executive branch employees.
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.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.