Q:
I apologize if this is a simple question, but I only just recently became a House staffer, and I am still learning all of the rules that now apply to me. My question concerns two Super Bowl tickets that I won in a raffle. Rather than attend the game, I have placed an online ad to sell the tickets. I have received lots of good offers, but yesterday a die-hard Arizona Cardinals fan blew the other offers out of the water. I started e-mailing with him right away, and I was all ready to sell him the tickets when I noticed that his e-mail address domain name belongs to a major lobbying firm. I looked him up and, sure enough, he is registered as a lobbyist. Because the Member I work for is new to the House, I have no idea whether the lobbyist or his firm has any plans to lobby me or my Member. But something still doesn’t feel quite right. Is it OK to sell him the tickets?

[IMGCAP(1)]A: No need to apologize for simple questions. They are my favorite kind. Unfortunately, this is not one. In fact, you must have good instincts because you have identified a real ethical quandary where even Hill veterans might not recognize one: sale of personal items.

You’re new to the House, so let’s start at the beginning: the House gift rule. This is a rule with which you will need to become very familiar. Embodied in clause 5 of House Rule 25, the gift rule establishes restrictions upon the gifts you may receive while you are a staffer. Broadly, you may not accept any gift from anyone at any time, unless an exception applies. “Gift” is defined as “a gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value.”

Just on its face, this is an extremely broad prohibition. It would appear to cover nearly everything, even including items or money received in purchases and sales. After all, when the guy at the deli hands you your sandwich for lunch, you are accepting an “item having monetary value.” Yet, that can’t be a gift rule violation.

This is where the exceptions come in. The exceptions try to limit the extent to which the gift rule inhibits Members and staffers from carrying on their everyday lives. They cover things like gifts from relatives, gifts based on personal friendship, and prizes — such as the tickets you won. The exception that applies to typical purchases and sales allows you to accept anything for which you pay the “market value.”

So, there is no need for staffers who are new to the House to cancel their yard sales or close their eBay accounts. However, House ethics guidance regarding the “market value” exception does suggest that, when making sales, staffers should be wary of exceedingly generous offers. In particular, they should be on the lookout for offers that are so generous that the House Committee on Standards of Official Conduct — or federal prosecutors — might consider the offers to qualify as “gifts.”

Your situation calls to mind some of the allegations against former Sen. Ted Stevens (R-Alaska), who was convicted last year of failing to report hundreds of thousands of dollars in gifts. While most news reports on Stevens’ trial focused on allegations that he had received home improvements that he did not pay for, the indictment also contained allegations of a sweetheart deal involving a car swap between Stevens and his friend Bill Allen.

Prosecutors alleged that Stevens received Allen’s brand new Land Rover Discovery in exchange for $5,000 in cash and Stevens’ vintage Ford Mustang. At the time of the swap, prosecutors said, Stevens’ Mustang was worth less than $20,000, while Allen’s Land Rover was allegedly worth more than $40,000. Prosecutors contended that, because the value of what Stevens received so greatly exceeded the value of what he gave up, he had received a “gift.”

In your case, you say that the lobbyist’s offer blew all the other offers out of the water. The House Ethics Manual states that a gift rule violation may exist when a staffer “is sold property at less than market value, or receives more than market value in selling property.” So, the question is whether the lobbyist is offering “more than market value” for your tickets. Unfortunately, discerning the market value of Super Bowl tickets is not easy. Depending on seat location, prices at ticket agencies such as StubHub range from $1,500 for nosebleed seats to as much as $150,000 for luxury suites. You might consider researching ticket agencies’ prices for seats like yours to confirm that the lobbyist’s offer is comparable to the going rate. If his offer substantially exceeds the ticket agencies’ prices, it would be difficult to understand why he doesn’t buy tickets from an agency instead.

On the other hand, maybe he’s just a lazy shopper. I assume that there is nothing in your ad that would indicate that you are a staffer, so it would seem unlikely that the lobbyist is trying to curry favor. (It didn’t say “House Staffer Offers Super Bowl Tickets,” did it?) Yet, even if it is not his intent to curry favor, and even though you have no reason to suspect that the lobbyist will lobby your office, suppose he does. Would the fact that he had recently overpaid you for your tickets give rise to an appearance of impropriety?

As you know, Stevens was convicted. This doesn’t mean that you will be carried off to jail for negotiating a good price at your next yard sale. It does mean, however, that when selling personal items you would be wise to be wary of offers that seem too good to be true. On the other hand, if the lobbyist’s offer is within a reasonable range of the going rate for your tickets, you may have a deal.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.