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August 16, 2010

August 16, 2010 DEC/EC Meeting Cases Studies – Answer Guide

FACTS: four intramural employees are to meet with four University researchers to discuss a potential collaboration. Since the meeting will begin at 5:30pm, the University said it will provide dinner.

Is it a gift? -- Look at exclusions to the definition of a gift – 2536.203(b)

If it is a gift, is it a prohibited gift (because given by a prohibited source or due to the employee’s official position)?

If yes, look at exceptions to the gift prohibition under 2635.204

  • For both .204(g)(1) and (g)(2), the event needs to be “widely attended.” Not the case here; just two parties
  • .204(a) – less than $20 maybe; get value of the meal. However, check with employee. Under the $20 rule, cannot accept more than $50 in the calendar year from any one source.

Even if permissible, perhaps should not accept

FACTS: an employee is told by her alma mater that a lecture hall is being named after her to recognize her prior service and achievements. Her alma mater is an SRI.

Is it a gift?

  • No, nothing of monetary value is being offered.
  • For guidance, use honorary degree analysis in 2635.204(d)(2) and consider whether timing of the honor “would . . . cause a reasonable person to question the employee’s impartiality in a matter affecting the institution.” Ask: Does the University have any pending matters before the employee?

Other issues?

  • Public office for private gain of oneself or another – was the employee required to do something for the University?

Fundraising – was the employee’s title or position used in connection with fundraising by the University

FACTS: an employee is notified that he has been selected as the Association’s 2010 awardee. As the awardee, the employee will receive a $2,500 cash prize and the Association will make a $2,000 contribution to an organization of his choosing.

Is it a gift?

  • Yes, under 2635.203(b) – the cash prize is a item of monetary value

Is it prohibited?

  • Yes, given because of the employee’s official position (as an NIH researcher). 2635.202(a)(2)

Can it be accepted?

  • Yes, gifts of cash can be accepted if determined to be incident to a bona fide award for meritorious service

But what is the gift being offered?

  • Must look at gifts given directly to the employee ($2,500 cash prize) and those given indirectly to him ($2,000 contribution to an organization of the employee’s choosing).
  • Under 2635.203(f)(2), the $2,000 would be a gift received indirectly because it was “given to any other person, including any charitable organization, on the basis of designation . . . by the employee.

FACTS: employee is asked by Elsevier Publishing to be the Editor-in-Chief of its new journal, The Journal of Microbiology. Elsevier will compensate the employee $25,000 for her services.

Is the activity prohibited?

  • 5501.109(c)(1) prohibits an outside activity with an SAO, SRI or a healthcare provider or insurer. So, no, not prohibited.
  • Because not an activity with a prohibited employer, do NOT need to consider exceptions under 5501.109(c)(2) or (3)

Next step? Is the activity prohibited under 2635.802 – if the employee would engage in the activity, would it require the employee to be disqualified from a matter so central or critical to the performance of employee’s duties.

Posted 8/18/10