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October 6, 2020

JCOPE Seeks to Clarify the Prohibition on Third-Party Gifts by Lobbyists and Their Clients

Lobbyists and their clients (those who attempt to influence governmental decision making) are prohibited from both offering and making “gifts” (anything of more than nominal value) to public officials in New York.1 Coupled with this prohibition is the restriction on public officials from accepting gifts from lobbyists or their clients.2 The purpose is to avoid appearances of impropriety and protect public confidence in government.

Specifically, in New York, it is presumptively impermissible for a lobbyist or their clients to offer or make a gift to a public official or to the spouse or unemancipated child of a public official.3 Violations are considered a Class A misdemeanor for the first offense and a Class E felony for successive offenses.4

This gift prohibition extends to gifts to third parties, including charitable organizations, made on behalf of or at the designation or recommendation of a public official or his or her spouse or unemancipated child.5

The gift prohibition, as it applies to third-party gifts, was recently explained by the Joint Commission on Public Ethics (JCOPE) in Advisory Opinion 20-02.

This analysis for third-party gifts necessitates additional scrutiny not necessarily involved in the analysis of a direct gift to a public official.6 It requires consideration of the totality of the circumstances and, as a result, is very fact intensive. As part of this, JCOPE has determined that, even in the absence of a specific solicitation by a public official, a gift to a third-party may be impermissible.7

As clarified in JCOPE’s recent advisory opinion, in order to determine if a third-party gift is permissible, consideration must be given to whether there is a “nexus” between the third-party gift and the public official.8 Relevant factors, the weight of which may vary between public officials, lobbyists, and their clients, include:

  • The nature of the solicitation. How is the solicitation made? Is it a direct solicitation or a mass solicitation sent to the general public?
  • The substance of the communication. What was the specific discussion between the public official (or his or her intermediary) and the offeror of the gift? Was there any suggestion that the third-party gift would result in access to the public official?
  • The nature and purpose of the gift. What is the value of the third-party gift and its  significance to the public official? Does the third-party gift serve the offeror’s general philanthropic purpose?
  • The nature and purpose of the third-party recipient. Do the interests of the offeror and public official coincide? Is the third-party gift’s purpose to further the public official’s agenda?
  • The public official’s knowledge. Does the public official know about the third-party gift, or will he or she ultimately learn about it?
  • The nature of pending business. What is the status and significance of any pending business the offeror has with the public official?
  • The nexus between the solicitation and pending business. What is the timing of the third-party gift relative to any pending business the offeror has with the public official?
  • The offeror’s history. Does the offeror have a history of making gifts to the third party, or is the third-party gift out of the ordinary?

In short, the prohibition on third-party gifts is not clear cut. And, while JCOPE’s advisory opinion seeks to provide guidance on what is and is not permissible, it raises more questions than it answers. As a result, lobbyists and their clients should exercise caution in making third-party gifts that are either at the request of a public official or that could be seen as attempts to gain favor with a public official.

If you have questions regarding the content of this alert, please contact Yvonne Hennessey, Lobbying & Election Law Compliance Practice Area chair, at yhennessey@barclaydamon.com.

1 Lobbying Act, § 1-m.

2 Public Officers Law, § 73(5)(b), (c).

3 6 NYCRR § 934.3(a), (b).

4 Lobbying Act, § 1-o.

5 6 NYCRR 934.3(e).

6 Adv. Op. 20-02, pp. 7-8.

7 Adv. Op. 20-02, p. 7.

8 Adv. Op. 20-02, p. 2.

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