FREQUENTLY ASKED QUESTIONS ON GIFTS
Important: This Q & A is intended only to be a general guide; it is not legal advice and is not intended to be the definitive answer on any particular situation. Employees with particular questions should refer to the applicable statutes themselves and seek the advice of the Ethics Board or Law Department.
1. Q: What rules apply?
A: There are provisions restricting what gifts City employees may accept in the Charter, the City Code, and the State Ethics Act, but the most commonly referred to provision is Mayor’s Executive Order No. 002-04.
2. Q: Does the Executive Order apply to me?
A: Only if you are an appointee of the Mayor or an employee of one of his appointees. The Executive Order does not apply, for example, if you are a Councilperson or an employee of Council, the City Controller or an employee of that office, or any other separately elected public official or an employee in that official’s office. However, in all of those cases, the Ethics Code, Section 20-604 of the Philadelphia Code, would apply to you, and although the Code gift provision is different, and less specific, the Executive Order is a good indication of how we would likely interpret the Code.
3. Q: What is the main difference between the Executive Order and the Code provision?
A: The Executive Order has no minimum value for gifts that are prohibited, whereas the Code prohibits only gifts “of substantial economic value that might reasonably be expected to influence” the recipient. (The remainder of this Q & A will relate to the Executive Order only.)
4. Q: What is the best place to learn what is prohibited by the Executive Order?
A: Read the Executive Order itself. It is a fairly easy to understand document that clearly lays out the general rule and the exceptions.
5. Q: I received a gift from a local business that has no City contracts. May I accept the gift?
A: No. Section 1(1) of the Executive Order spells out five different categories of sources from which gifts are generally prohibited. Essentially, any entity or person that is located within the City limits or does business in the City is subject to City action (parking regulation, police protection, zoning rules, licenses and permits, taxation, trash pick-up, etc.), so almost anyone in this area who is likely to offer you a gift is likely to be a prohibited source.
6. Q: You mean I have to return the birthday present from my mother?
A: No. There is an exception for gifts from a close relative when the circumstances make it clear that the gift is based on the family relationship.
7. Q: Does the same exception apply to gifts from friends?
A: Yes, but again, the gift must be based on the friendship relationship. This can be tricky. If, in your City work, you have been dealing with the same outside vendor for so many years that the vendor considers you a “friend,” it may be difficult to conclude that a gift from that “friend” is based solely on the friendship, rather than on the fact that the donor is a City vendor.
8. Q: What if my 11 am meeting with a vendor runs long and the vendor offers to send out for lunch, so we can work through lunch?
A: The free lunch is a gift, but there is an exception for food gifts at a meeting in order to allow the meeting to continue. There are limits, however. You can’t call it a “meeting” if it’s happening at a restaurant, club or similar establishment, and it has to be a meeting for the purpose of accomplishing legitimate City government business, not just an occasion for providing you with a free meal. If in doubt, you can always chip in to pay for the cost of your meal.
9. Q: A City vendor has offered to pay for me to travel to another City to attend a conference that will assist me in my work, and pay all expenses, including meals and the conference fee. May I accept?
A: In certain very specific factual situations such a gift may be accepted as a “gift to the City,” but only upon approval by either the Board of Ethics or the Law Department. Seek the advice of those entities as soon as possible upon such an opportunity arising.
10. Q: Does the executive order prohibit me and my colleagues from getting together to buy a birthday or holiday gift for our secretary?
A: Probably not. There is an exception for a gift of nominal value (use common sense on what is “nominal”) on special occasions, such as those on which it is customary to give gifts, like birthdays, retirement, the birth of a child, etc.
11. Q: I received a delivery of a bouquet of flowers, not very expensive. Do I have to return it, and if so, how?
A: There is no minimum value below which gifts are acceptable. If possible, refuse the delivery if you can, if it can be immediately determined that the giver is a prohibited source and no exception applies. Otherwise, if the item is perishable, you may distribute it equitably to members of the office. The Ethics Board recommends sending a letter to the donor pointing out that such gifts are prohibited.
12. Q: Can the donor get in trouble for sending a prohibited gift?
A: Yes. Executive Order No. 002-04 provides that a person who offers a prohibited gift to a City employee may be subject to sanctions with regard to future City contracts, which can include being barred from any City contracting.
13. Q: Won’t the donor be offended if I refuse his/her gift?
A: They should not be, if they understand that you are only complying with the rule that is now the law in the City of Philadelphia. It is important to get the word out, so that those who do business with the City know to stop offering such gifts. It may be a good idea to enclose a copy of the Executive Order with any letter returning or refusing such a gift.