A month out from the pivotal – and correct – U.S. Supreme Court opinion in Snyder v. United States, how will it affect state and local public officials? And will it affect the day-to-day investigative activities of law enforcement? For those not familiar with the Snyder opinion, the U.S. Supreme Court was tasked with deciding whether 18 United States Code (U.S.C.) § 666(a)(1)(B) criminalize gratuities without any quid pro quo agreement to take an official action? For context, James Snyder was the mayor of a small town in Indiana who was found guilty of receiving $13,000 in gratuities pursuant to 18 U.S.C. § 666(a)(1)(B) in connection with his city’s purchases of garbage trucks. On appeal, Snyder argued the statute did not codify gratuities, yet the Sixth Circuit Court of Appeals upheld the conviction. The U.S. Supreme Court overruled the Sixth Circuit Court of Appeals and opined 18 U.S.C. § 666(a)(1)(B) did not make it a crime for state and local officials to accept gratuities that may be given as a token of appreciation after an official act.[1]
There is a lot of unpack here. For those state and local public officials, as well as the private individuals here in Alaska who see this opinion and say to themselves, “Oh great! Gratuities are LEGAL!” Not so fast. First, it has been long held that a “wink and a nod” is sufficient to prove a corrupt agreement before the official act. That is, failing to explicitly outline the corrupt agreement (quid pro quo) when it is understood through a “wink and a nod” that the public official will carry out an official act in exchange for a "surprise" gratuity at some point in the future remains illegal. Such a “wink and a nod” scenario is the very definition of a corrupt agreement, and hence a bribe.
What the U.S. Supreme Court made clear, is in the instances where a private individual is so inclined to provide a public official with a gratuity – something of value as a "thank you" – after the official act is completed, and with no foreknowledge of the gratuity by the public official, 18 U.S.C. § 666(a)(1)(B) does NOT apply.
Second, Snyder aside, it is now up to the individual states, territories, counties, and cities to codify their own gratuity statute. The question then becomes one of thresholds. Is there a zero-tolerance gratuity statute for state and local public officials? Or perhaps there is a more lenient policy, say a $50 dollar threshold on gratuities to public officials? The next question then revolves around whether to attach teeth to such a violation, and how sharp those teeth are. Does a gratuity constitute an administrative violation or criminal violation? If criminal, is it a misdemeanor or felony?
Third, the Snyder opinion has no effect on current federal public officials. 18 U.S.C. § 201(c) specifically prohibits gratuities to federal public officials and those non-federal public officials who have the power to allocate and expend federal monies under grant programs. The maximum sentence for a federal gratuity violation is two-years in prison.
Finally, for us here in Alaska, AS 11.56.120 expressly prohibits “unlawful gratuities” if a public servant “engaged in an official act which was required or authorized and for which the public servant was not entitled to any special or additional compensation…” The value of the benefit must exceed $50 dollars to violate the statute. The Alaska State Legislature and the governor settled on making such a violation a class A misdemeanor.[2]
If it is not already self-evident, a public official (or in the verbiage of Alaska Statute – public servant) includes the following: “an officer or employee of the state, a municipality or other political subdivision of the state, or a governmental instrumentality of the states, including legislators, members of the judiciary, and peace officers,” among various advisors, consultants, and assistants directed or appointed by such entities.
The next question revolves around the value of the benefit - which can be anything tangible (money, loans, vehicles, etc.) or intangible (promises of future employment, sex, experiences, etc.). The key in determining the value of a benefit does not necessarily rely upon the commercial or market value of the thing or benefit in question, but rather the value to the beneficiary.
The definition of “official act” has been pared down in recent years, specifically following the U.S. Supreme Court opinion in McDonnell v. United States (2016), in which the court held that arranging a meeting, contacting another public official, or hosting an event – on its own – is not sufficient to rise to the level of an “official act.”[3] McDonnell aside, official acts can be such things as voting a particular way on legislation, refraining from voting on legislation, signing a contract, writing a letter of recommendation in one’s official capacity, dismissing a case, reduced or increased sentences, among many other actions.
Now that 18 U.S.C. § 666(a)(1)(B) does not incorporate gratuities, how does it affect law enforcement? From first-hand experience, 18 U.S.C. § 666 in general is, and will remain a public corruption investigators’ bread-and-butter statute. The fact gratuities are no longer covered by 18 U.S.C. § 666 significantly limits the investigative scope of all law enforcement agencies, but primarily the beloved FBI. No longer can an investigator predicate a criminal case on allegations a state or local public official took a gratuity. Of course, if there is information to suggest the public official may have had prior knowledge that a gratuity would be paid after taking official action, then by definition the investigation would be into bribery, not gratuities, and rightfully so. Remember, a “wink and a nod” agreement is still an agreement!
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