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, City Ethics
203-230-2548
