August 16, 2010 DEC/EC Meeting Cases Studies – Answer Guide

FACTS:  four intramural employees are to meet with four University researchers to discuss a potential collaboration.  Since the meeting will begin at 5:30pm, the University said it will provide dinner.

Is it a gift? -- Look at exclusions to the definition of a gift – 2536.203(b)

If it is a gift, is it a prohibited gift (because given by a prohibited source or due to the employee’s official position)? 

If yes, look at exceptions to the gift prohibition under 2635.204

• For both .204(g)(1) and (g)(2), the event needs to be “widely attended.”  Not the case here; just two parties
• .204(a) – less than $20 maybe; get value of the meal.  However, check with employee.  Under the $20 rule, cannot accept more than $50 in the calendar year from any one source. 

Even if permissible, perhaps should not accept

FACTS:  an employee is told by her alma mater that a lecture hall is being named after her to recognize her prior service and achievements.  Her alma mater is an SRI.

Is it a gift?

• No, nothing of monetary value is being offered.
• For guidance, use honorary degree analysis in 2635.204(d)(2) and consider whether timing of the honor “would . . . cause a reasonable person to question the employee’s impartiality in a matter affecting the institution.”  Ask:  Does the University have any pending matters before the employee?

Other issues?

• Public office for private gain of oneself or another – was the employee required to do something for the University?

Fundraising – was the employee’s title or position used in connection with fundraising by the University

FACTS:  an employee is notified that he has been selected as the Association’s 2010 awardee.  As the awardee, the employee will receive a $2,500 cash prize and the Association will make a $2,000 contribution to an organization of his choosing.

Is it a gift?

• Yes, under 2635.203(b) – the cash prize is a item of monetary value

Is it prohibited? 

• Yes, given because of the employee’s official position (as an NIH researcher).  2635.202(a)(2)

Can it be accepted?

• Yes, gifts of cash can be accepted if determined to be incident to a bona fide award for meritorious service

But what is the gift being offered?

• Must look at gifts given directly to the employee ($2,500 cash prize) and those given indirectly to him ($2,000 contribution to an organization of the employee’s choosing).
• Under 2635.203(f)(2), the $2,000 would be a gift received indirectly because it was “given to any other person, including any charitable organization, on the basis of designation . . . by the employee.

FACTS:  employee is asked by Elsevier Publishing to be the Editor-in-Chief of its new journal, The Journal of Microbiology.  Elsevier will compensate the employee $25,000 for her services. 

Is the activity prohibited? 

• 5501.109(c)(1) prohibits an outside activity with an SAO, SRI or a healthcare provider or insurer.  So, no, not prohibited. 
• Because not an activity with a prohibited employer, do NOT need to consider exceptions under 5501.109(c)(2) or (3)

Next step?  Is the activity prohibited under 2635.802 – if the employee would engage in the activity, would it require the employee to be disqualified from a matter so central or critical to the performance of employee’s duties.

Posted 8/18/10