Base legal office gives rules, regulations on holiday gifting

  • Published
  • By Timothy "Greer" Aiken
  • Staff Judge Advocate Civil Law Division attorney
Federal law sets forth standards which prohibit a Department of Defense employee from soliciting or accepting any gift from a prohibited source or given because of the employee's official position unless the item is excluded from the definition of a gift or falls within a number of exceptions. 

Gift questions are best understood by breaking down the components of this general prohibition and defining the terms gift; prohibited source; because of the employee's official position and the gift exceptions.

What is considered a gift?
The definition of "gift" is very broad and includes "any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. 

It includes services as well as gifts of training, transportation, local travel, lodgings and meals, whether provided in-kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred." 

This broad definition also includes a gift that is "given with the employee's knowledge and acquiescence to his parent, sibling, spouse, child, or dependent relative because of that person's relationship to the employee." 

Certain items are specifically excluded from the definition of "gift," including modest items of food and refreshments that are not part of a meal such as soft drinks, coffee and donuts.

What is considered as a prohibited source?
A "prohibited source" is defined as:  
  • Is seeking official action by the employee's agency; 
  • Does business or seeks to do business with the employee's agency; 
  • Conducts activities regulated by the employee's agency;
  • Has interests that may be substantially affected by performance or nonperformance of the employee's official duties;
  • Is an organization a majority of whose members are described in (the previous four sections). The classic example of a prohibited source is a DOD contractor or DOD contractor employee.

When is a gift considered to be given/accepted because of an official position?
A gift is considered to be solicited or accepted "because of the employee's official position" if it is from a person other than an employee and would not have been solicited, offered, or given had the employee not held the status, authority or duties associated with his or her federal position."

Despite the general prohibition, there are several gift exceptions. 

Though too numerous to list, the most common is the "de miminis gift exception," which provides that an employee may accept an unsolicited gift having an aggregate market value of $20 or less per source, per occasion, provided that the aggregate market value of individual gifts received from any one person shall not exceed $50 in a calendar year. 

Other exceptions exist for certain gifts based on personal relationships, social invitations, widely attended gatherings, gifts from foreign governments, awards and honorary degrees, and much more. 

Remember that, even if a gift falls under one of the exceptions to the gift rule, it's never inappropriate for you to decline a gift offered by a prohibited source or given to you because of your official position. 

This is especially true when a person or organization whose interests could be affected by your official actions offers the gift.

Editor's note: If you have questions regarding gifts, always seek the advice of one of the attorneys in the Civil Law Division at DSN 468-9276.