Federal criminal conflict of interest.

• Jurisdiction: United States
• Date: 22 March 2000
• Author: Kaiser, Bridgette

1. INTRODUCTION

   The term "conflict of interest legislation" encompasses the numerous statutes passed by Congress, largely in the post-Watergate era, to prevent and punish corruption by public officials.(1) This Article discusses six of those statutes, including their respective elements, defenses, and penalties.

   Section II examines the elements of, and defenses to, bribery(2) and illegal gratuities(3) offenses. Section III first examines the elements of, and defenses to, an unauthorized compensation offense.(4) Second, Section III then examines the provisions imposing certain limitations on the activities of government officers and employees during the period of their employment.(5) Third, Section III discusses those provisions dealing with post-employment lobbying and representation,(6) participation in activities in which an official has a financial interest,(7) and improper acceptance of outside salaries.(8) Finally, Section III concludes by examining the sanctions that may be imposed on public officials and private citizens who make criminal use of a public office for private gain.(9)

2. BRIBERY AND ILLEGAL GRATUITIES

   While not always characterized as a conflict-of-interest provision,(10) prohibition of bribery has been part of the criminal conflict-of-interest statute since 1961.(11) The statute also criminalizes certain gratuities given to, or requested by, federal public officials(12) as a lesser included offense of bribery.(13) The bribery and gratuity prohibitions are "but one strand of an intricate web of regulation ... governing the acceptance of gifts and other self-enriching actions by public officials."(14)

   The primary difference between bribery and illegal gratuities is in the intent element required for each.(15) Bribery requires a quid pro quo, where something of value is given or demanded to influence an official to perform a specific act.(16) Illegal gratuities, on the other hand, do not require a quid pro quo. Rather, something of value is given to reward actions a public official has already performed or is already committed co perform.(17) An exchange involving a former official, for example, can be an illegal gratuity, but not a bribe, because the official's acts have already been performed.(18)

   A single violation may be charged as both a bribe and an illegal gratuity.(19) In some cases, a defendant may aver the offering of an illegal gratuity in defending against a bribery charge, claiming a lack of the requisite corrupt intent for bribery.(20) Both the individual/organization giving the thing of value, and the official receiving it, may be charged in cases of bribery or illegal gratuity.(21)

   Part A describes the four elements of the bribery and gratuities offenses; Part B discusses several defenses; and Part C presents the sanctions for these offenses.

   1. Elements of the Bribery and Gratuities Offenses

      18 U.S.C. [sections] 201 governs gratuities and bribery offenses.(22) The gratuities and bribery offenses have several elements in common and differ only in the required intent. The meanings of "public official" and "official act" as required for the bribery and gratuities offenses are provided in [sections] 201(a)(1)-(3). Section 201(b)(1) sets forth the elements of a bribery offense applicable to the donor, and [sections] 201(b)(2) sets forth the elements applicable to the recipient, of a bribe. To sustain a bribery conviction, the government must demonstrate that: (1) a benefit or thing of value (2) was given, offered or promised to (or demanded, sought, received, or accepted by) (3) a public official (4) with intent to influence (or be influenced in) "the performance of any official act."(23)

      Section 201 (c)(1)(A) sets forth the elements of a gratuities offense applicable to the donor, and [sections] 201(c)(1)(B) sets forth the elements applicable to the recipient, of the unlawful gift. To sustain a gratuities conviction, the government must demonstrate that (1) a benefit or thing of value (2) was given, offered or promised (or demanded, sought, received or accepted by) (3) a public official (4) "for or because of any official act performed or to be performed by such public official."(24)

      Because the two crimes differ primarily only with respect to the fourth element, the discussion below of the other elements will not distinguish between gratuities and bribes except where relevant.

      1. Official Act

         An official act is defined as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit."(25) To prove either a bribery or a gratuities violation, it is not enough to show that the giver wished to ingratiate herself with the public official or hoped merely for favorable future treatment. While a bribe requires a quid pro quo for a specific official act as defined in the statute,(26) a gratuities violation requires a nexus between the giver's intent and a particular official act.(27) In United States v. Sun-Diamond Growers,(28) the Supreme Court recently clarified that a gift motivated by the fact that the official will likely have before her in the future a number of inchoate matters of importance to the giver will not suffice for a gratuities violation.(29) The Court reasoned that a narrow reading of "official act" was more consistent with the overall statutory text than an interpretation which would criminalize any gift motivated by an official's position.(30) For example, token gifts to the President, "such as the replica jerseys given by championship sports teams each year during ceremonial White House visits" are not illegal gratuities because, although based on the President's official position, they are not linked to any identifiable official act.(31) A ceremonial visit does not fit the statutory definition of "official act."

         A bribe may occur even if the recipient misrepresents his authority and ability to perform the official act,(32) the act was not within his lawful duties,(33) or he could perform the act only by violating state law.(34) Courts have rejected the notion that a bribe is not received when the briber misperceives the public official's ability or authority to perform an official act.(35) However, not every inducement will constitute bribery; the "briber must still have intended that the federal employee utilize that employee status to accomplish the illegal goals."(36)

      2. Benefit or Thing of Value

         The term "thing of value" is broadly construed, focusing on "the value which the defendant subjectively attache[d] to the items received."(37) Where the alleged bribe is something that is not clearly monetary, there may be some question as to whether a "thing of value" was exchanged. Where a defendant incorrectly assesses the value of an item, it may still be "of value" for purposes of the statute.(38) Courts have found the promise of future employment,(39) vacation trips,(40) shares of stock,(41) and unsecured, quickly arranged loans(42) all to be "things of value." However, the offer of information in return for lenience does not constitute offering a "thing of value."(43)

      3. Federal Public Official

         Charges may be brought against either a public official or one who bribes a public official.(44) For the purposes of the bribery and gratuities statute, "public official" is defined as a:

         Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror.(45) The Supreme Court has interpreted the phrases "for or on behalf of the United States" and "in any official function" broadly.(46) Thus a person need not be an elected official, have signed a contract with the United States, have agreed to be an agent of the United States, or work directly for a federal agency to qualify as a "public official" under the bribery and gratuities prohibitions.(47)

         In Dixson v. United States,(48) the Supreme Court defined a federal "public official" as any person who holds a position of public trust and has official federal responsibilities.(49) The Dixson Court cautioned that the decision was not meant to bring every employee of an organization that receives federal funds within the definition of "public official."(50) Rather, the Court held that public officials are only those individuals who "possess some degree of official responsibility for carrying out a federal program or policy."(51)

         An individual's status as a "mere employee" and ability or inability to carry out the quid pro quo promise do not affect whether the individual is characterized as a public official.(52) Likewise, classification as a public official does not depend solely upon the management or distribution of federal funds.(53) Rather, an individual may be a public official based on his or her "federal responsibilities."(54)

         The "public official" question is a matter of law for the court to decide, and the Dixson decision supports a broad application of [sections] 201.(55) Courts have found that an Army private,(56) a building services manager for a Federal Reserve Bank,(57) a District of Columbia corrections officer,(58) a director of a halfway house which had contracted with the Bureau of Prisons pursuant to a federal statute to house and supervise federal convicts,(59) a fee appraiser for the Veterans Administration,(60) an "eligibility technician" for a municipal housing authority who administered federal funds,(61) an executive director for a city housing authority who administered both federal and state funds in a federal program,(62) doctors who made referrals for federal...