Replies

http://njlegallib.rutgers.edu/govcond/report.html#C

C. Acceptance of Gifts and Favors

As the Chief Executive of the State, the Governor is regularly offered gifts and other mementos from the numerous individuals and organizations he meets with every day. As the symbolic head of state, the Governor cannot under most circumstances refuse to accept these tokens of gratitude. Indeed, to do so, in many instances, would be viewed as a breach of etiquette. On the other hand, depending on the nature and [end of page 6] circumstances of the gift, an appearance of impropriety may arise when the item exceeds nominal value under the Conflicts Law. Historically, the decision to accept gifts from individuals and groups has been left entirely to the Governor’s discretion.

We have evaluated a number of standards that could be adopted to avoid the potential of a conflict of interest arising from an unsolicited gift to the Governor. These options range from an outright prohibition on the acceptance of all gifts of more than nominal value, to the voluntary imposition of a disclosure requirement under which the Governor would remain free to accept gifts, but would publicly disclose any gifts having a value over a certain amount.

An example of outright prohibition is California. California prohibits all elected state officials — including the Governor — from accepting any gifts valued at over $250. Cal. Gov’t Code Section 89504. The advantage of this approach is obvious - it creates a bright line that, if followed, unquestionably eliminates any potential for a conflict of interest. By contrast, the Governor of New York is free to accept gifts but must annually submit a detailed financial disclosure statement, which includes a disclosure of all gifts received with a value exceed $1,000. N.Y. Pub. Off. Section 73-a(3). In addition, the Governor of New York is prohibited from accepting a gift of greater than $75 in value “under circumstances in which it could reasonably be inferred that the gift was intended as a reward for any official action on his part.” N.Y. Pub. Off. Section 73(5). Pennsylvania and Connecticut have adopted mechanisms similar to New York. They allow for the receipt of gifts within limits, but. require reporting.

On the federal level, the Foreign Gifts and Decorations Act (”FGDA”), 5 U.S.C.A. Section 7342, governs the disposition of gifts made by foreign governments to federal employees. Recognizing that gifts of nominal value raise no legitimate ethical [end of page 7] concerns, the FGDA permits federal employees to accept and keep any gift of minimal value (presently deemed to be $285, 42 C.F.R. Section 102-42.10). When the gift is of greater than minimal value, however, that gift “is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.” 5 U.S.C.A. Section 7342(c)(1)(B). Thus, a federal employee who is the beneficiary of such a gift must deposit the item with his or her agency within 60 days of receiving it. 5 U.S.C.A. Section 7342(c)(2). Under the regulations promulgated to effectuate the FGDA, however, the recipient is permitted to purchase the item if the agency elects to dispose of it through sale. 41 C.F.R. Section 102-42.20.

In this regard, we have also examined the provisions of N.J.S.A. 2C:27-6. That statute makes it a criminal offense to accept any benefit “not allowed by law.” We understand this to mean that the benefit may not be accepted if it is prohibited by law. This would include gifts given to improperly influence a public official in the discharge of his public duties and gifts that the public official receives with corrupt intent. N.J.S.A. 52:13D-14; -13D-23(e)(6). Our recommendations are consistent with these statutory provisions. We also believe that the type of gifts we recommend the Governor may accept—those less than $285 in value, as opposed to those he would accept only on the part of the State—are of a level that fall within the safe harbor provisions of N.J.S.A. 2C:27-6(d)(3), in any event.

After reviewing these issues, we propose the adoption of a guideline modeled on the FGDA. We have rejected the notion that the Governor should evaluate every gift in an effort to define the intention of the giver. At some level it can be said that every gift is intended to “influence” to some extent. No one could reasonably believe, however, that a Governor could be so easily corrupted by gifts of relatively small value. We are only [end of page 8] concerned by gifts, which by their intrinsic nature, have the capacity to unduly influence government decisionmaking.

Our proposal would permit the Governor to accept and to keep all gifts valued under a certain amount (we believe that $285, the current federal standard, would be a reasonable threshold; we further recommend this standard be indexed to the federal law). Where the value of the gift exceeds this threshold, the Governor would treat the item as a donation to the State. Although the Governor could possess and/or display any such gift during the duration of his incumbency on behalf of the citizens, he would be required, before leaving office, to deliver the item to the State Museum or other State entity for appropriate disposition, or purchase the item with his personal funds.

In most circumstances, of course, these issues present no significant problems for the Governor. The vast majority of the gifts offered to the Governor - tee shirts, baseball caps, plaques, and the like - are of relatively minor value, and may be kept without any concern for appearances. Indeed, if there is any danger associated with accepting these sorts of gifts, it is the opposite concern: ensuring that they are handled with proper care and respect. There is no surer way to hurt the feelings of or embarrass an individual or group, than to treat a remembrance from them carelessly.

A more sensitive problem arises when the value of the gift is more substantial. In certain circumstances, an individual or organization may present the Governor with a gift of potentially significant value - a Boehm statue, a gold pen, and so on. The Governor must exercise care and discretion in determining when and under what ckcumstances to keep them. The Governor should, therefore, continue to decline any gift where he believes the gift is offered with intent to unduly influence him, regardless of whether the gift is above or below the $285 threshold. [end of page 9]

Under this proposal then, when a gift of over $285 is made to the Governor, the Governor would treat it as a gift to the citizens of New Jersey and dispose of it accordingly - by either turning it over to the State Museum at the end of his term, or by purchasing it with his personal funds. The Governor should be under no compulsion to immediately dispose of the item. Rather, as Chief Executive of New Jersey, the Governor should be permitted to retain (and preferably display in a suitable manner) such gifts during the period of incumbency, on behalf of the citizens of the State. At the conclusion of his final term as Governor, he would then have the choice of either delivering the gift to the State Museum for appropriate disposition, or purchasing the gift at fair market value.