Iowa Gift Law
In 1992 the legislature
passed the Iowa Public Officials Act which amended the gift law in Iowa
Code chapter 68B. The gift law was further amended in 1993. This information
sets forth portions of the gift law as amended in 1993 and answers some
common questions that may arise in interpreting the gift law. The Iowa
Public Officials Act as amended also contains many other provisions of
law restricting the activities of public officials and employees and lobbyists.
This information is addressed to governmental officers and employees and
their family members who are subject to the law.
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Scope of the Gift Law |
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Application of the Gift Law |
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Enforcement of the Gift Law |
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Scope
of the Gift Law
1.
How do I know whether the gift law applies?
You should ask three questions
when determining whether the gift law applies:
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Am
I getting something for nothing or less than it is worth? |
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Is
the donatee (the person receiving the item) a public official,
public employee, or candidate for office or the spouse or
dependent child of an
official, employee, or candidate covered by the statute? (See
questions 2, 3 & 4.) |
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Is
the donor (the giver) a "restricted donor"'? (See
questions 5-11.) |
If the answer to all three
questions is yes, then the gift law likely applies and the gift
is prohibited unless a specific exception applies. (See
questions 12-33.) If the answer to any of the questions is no,
the transaction is not subject to the gift law. (Of course, other
laws, including other provisions of chapter 68B, may nonetheless
apply.)
2.
Who is subject to the gift law?
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All
state officers, elected or appointed; including members of
boards and commissions (but not members of purely advisory
committees or certain agricultural commodity promotional boards) |
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Legislators |
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State
employees, including both executive and legislative branch
employees |
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Officeholders
or employees of any political subdivision, such as cities,
counties, school districts, townships, benefited fire districts,
or solid waste agencies |
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Candidates
for public office |
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Spouses
and dependent children of all of the above |
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"Restricted
donors" who provide gifts to any of the above |
The categories of persons
who are subject to the gift law are defined in section 68B.2.
Specific definitions should be considered and legal advice sought
if the application of the terms in any particular situation is
unclear.
3.
Are judges and judicial employees subject to the gift law?
Not directly. However, Iowa
Supreme Court Rule 204 provides substantially similar requirements
for judges and Judicial Department employees. Be sure to check
these rules to determine whether the gift rules applicable to
judges and Judicial Department employees vary from the statutes
construed in this brochure.
4. Does the
gift law apply to my family?
Yes. The spouse and dependent
children of each person who is subject to the gift law are subject
to the law as well. §§ 68B.2(11), 68B.22.
5. Does the
gift law apply whenever I receive a gift from anyone?
No. The gift law applies only
when the donor is within one of four categories defined in the
statute. § 68B.2(24). The law uses the term "restricted donor"
to mean a giver who is within these four categories.
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Anyone
who contracts with your agency or is seeking to contract with
it. This includes persons involved in sales, leases, purchases,
or other contracts. The term "agency" includes all
public bodies covered by the statute, including a city, school
district, or county. (Certain agricultural commodity production boards are excluded.) |
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If
you are an official or employee of one of the 16 listed "state
regulatory agencies, " a "restricted donor" is
also any person who is the subject of, or a party to, a matter
pending before that part of the regulatory agency (or "subunit")
in which you have discretionary authority as an officer or employee. The agent of persons with
matters pending before your subunit is also a "restricted
donor." Thus, for example, a member of the Board of Medical
Examiners could not accept a gift from a doctor who is the subject
of a pending investigation before that board nor from the doctor's
lawyer. However, this would not make the doctor a "restricted
donor" as to employees or officials of unrelated units
in the Department of Health. |
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Anyone
who will be directly and substantially affected financially
by performance or nonperformance of your official duties in
a way that is greater than the effect on the general public
or a substantial class to which the person belongs (such as
all members of a profession or residents of a region). An agent
of such a person is also a "restricted donor." |
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Anyone
who is a "lobbyist," or a client of a lobbyist, regarding
matters within your agency's jurisdiction. The term "lobbyist"
is specially defined, as described below. |
6. Who is
a "lobbyist"?
The term "lobbyist"
includes any individual who, for the purpose of encouraging the
passage, defeat, approval, veto, or modification of legislation,
a rule, or an executive order, by members of the general assembly,
a state agency, or any statewide elected official, by acting directly,
does any one or more of the following:
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Receives
compensation |
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Is
a designated representative of an organization |
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Represents
the position of a federal, state, or local agency in which the
person serves or is employed as the designated representative |
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Makes
expenditures of more than $1,000.00 in a calendar year to communicate
in person (other than to compensate another for lobbying services
or to communicate with a person's own legislators). §68B.2(13)(a)(1)-(4). |
7. Why is
the definition of "lobbyist" significant?
Lobbyists and their clients
are "restricted donors" under the gift law and, therefore,
cannot offer or make a gift to the public officials or public
employees of agencies whom they lobby or to their spouses or dependent
children. Conversely, public officials, public employees,
their spouses or dependent children cannot accept or receive gifts
from lobbyists of the agency in which they serve or are employed.
§ 68B.22(1),(2).
The definition is important for reasons in addition to the gift
law. Persons who are lobbyists must comply with registration and
reporting requirements. §§ 68B.36, 68B.37. They are prohibited
from making loans to officials, members of the general assembly,
state employees, legislative employees, or candidates for state
office - except in the ordinary course of business. § 68B.24.
Except in the case of a special election, lobbyists cannot make
contributions to the campaign of a state official, candidate for
state office, or a member of the general assembly during and,
in some cases, shortly after, the legislative session. § 56.15A.
Finally, officials and state or legislative employees are restricted
from certain
lobbying during service or employment and for a period after termination
of service or employment. § 68B.5A.
8. Is a city
employee designated by the council to meet with a state
agency a "lobbyist'?
The city employee would be
a lobbyist only if the contact concerns rulemaking. The new definition
of "lobbyist" applies only when a person acts directly
as described in § 68B.2(13)(a)(3) to encourage the passage, defeat,
approval, veto, or modification of legislation, a rule, or an
executive order, by members of the general assembly, a state agency,
or any statewide elected official. These definitions are significantly
more narrow than those under the 1992 legislation. Under these
definitions contact with a state agency, even as the designated
local representative, will now trigger the definition of lobbyist
only if the contact is to encourage the passage, defeat, approval,
veto, or modification of rules.
9. My agency
and another state agency are required by statute to jointly promulgate
rules, and I have been designated by my agency to coordinate this
effort. Will I become a "lobbyist"?
No. The term "lobbyist"
does not include agency officials and employees engaged in activities
with another agency with which the official or employee's agency
is engaged in a collaborative project. §68B.2(13)(b)(6).
10. Do lawyers
representing clients before state agencies become "lobbyists"?
Lawyers representing clients
before state agencies will trigger the definition of lobbyist
only when encouraging the passage, defeat, approval, veto, or
modification of rules. A lawyer representing a client for any
other purpose before a state agency will not become a lobbyist.
Further, even if a lawyer is engaged in the described activities,
an exception may apply. Although the provision excluding lawyers
from the definition of "lobbyist" was repealed, new
provisions have been enacted which exclude "persons whose
activities are limited to appearances to give testimony or provide
information or assistance at sessions of committees of the general
assembly or at public hearings of state agencies or who are giving
testimony or providing information or assistance at the request
of public officials or employees" and "persons whose
activities are limited to submitting data, views, or arguments
in writing, or requesting an opportunity to make an oral presentation"
in a rulemaking. §§68B.2(13)(b)(4), 68B.2(13)(b)(8). These exclusions
are not limited to lawyers.
11. Can a
public official or employee be a "restricted donor"?
Yes, if one of the four definitions
of "restricted donors" applies to you. See question
number 5. Therefore, you must consult the gift law when you are
giving a gift to another public official or employee as well as
when you receive one.
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Application
of the Gift Law
12.
What is a gift?
A gift is anything of value
given to you for which you did not give something of equal or
greater value in return. A gift is prohibited only if the person
who gave you the gift is a "restricted donor" and no
exception applies. §§ 68B.2(9), 68B.2(24), 68B.22(4).
13. What exceptions
may apply?
There are sixteen exceptions
to the gift law. § 68B.22(4). You may, for example, accept items
available free of charge to members of the general public and
non-monetary items worth three dollars or less, such as pencils
or bumper stickers.
14. Can I
accept non-food items worth three dollars or less?
Yes, but you can't accept
money from a "restricted donor". The 1993 revisions
combined non-food items with food and drink as "non-monetary
items." § 68B.22(4)(i). Even if the non-monetary items are
received from a "restricted donor," you may accept them
if worth three dollars or less.
15. Must I
continue to file reports of gifts?
No. There is no reporting
obligation under the new statute. Instead, the law precludes
the receipt of all gifts unless a statutory exception applies.
16. What about
food and drink? Can I accept lunch from a "restricted donor"
without worrying about the gift law?
You can accept free food and
drink from a "restricted donor" only if it fits within
an exception. Specific exceptions for food and drink include the
following:
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You
may accept food and drink with a value of three dollars or
less
received from any restricted donor in any one calendar day.
§ 68B.22(4)(i). |
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You
may accept food and drink given in return for your participation
in
a panel or speaking engagement so long as the food and drink
relates
directly to the day or days on which you participate or speak.
§§68B.22(4)(g), 68B.23(2)(a). |
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You
may accept food and drink given to an economic development
delegation under " limited circumstances. § 68B.22(4)(o).
(See question 28.)
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17. What should
l do if I am part of a group entertained by a "restricted donor"
at a private club which does not provide individual checks?
You should advise the "restricted
donor" that the state gift law prohibits your acceptance
of free food and drink worth more than three dollars and ask
the donor to provide either an estimate or a bill so that you
can pay your share.
18. Under
§ 68B.22(4)(i) I can accept $3.00 worth of food and drink from a
"restricted donor." What if I attend a dinner sponsored
by a "restricted donor" that is worth $10.00? Can I pay
$7.00 and accept the remaining $3.00 in value under this exception?
Technically, this is an option
under the gift law. You may accept $3.00 in food and drink from
a "restricted donor" under an exception to the prohibition
against accepting gifts and pay for the remainder of the meal.
19. Can "restricted
donors" avoid the limit on food and drink by joining with others
to buy my dinner?
No. The gift law specifically
prohibits "restricted donors" from joining together
to give one gift and dividing the value of the gift among them.
§§ 68B.22(2), 68B.22(5).
20. Can I
go to dinner at the home of a "restricted donor"?
A dinner worth more than three
dollars would be a prohibited gift if provided by a "restricted
donor" unless you provide something of equal value in return.
You can accomplish this by, for example, bringing a gift to the
host, going "potluck," or by reciprocating at another
date.
21. Can I
accept gifts from a covered "restricted donor" who is
also a personal friend?
No. The gift law contains
an exception for close relatives, but not for friends. See §§
68B.21, 68B.22(4)(c). A friend who is also a "restricted
donor" must comply with the gift law.
22. Can a
"restricted donor" give me a gift on ceremonial occasions
or holidays?
The 1993 amendments allow
receipt of a wedding gift, twenty-fifth and fiftieth anniversary
gifts, funeral flowers, or contributions to a memorial. See §§
68B.22(4)(l), (m). The law still contains no exceptions for Christmas
presents, birthday gifts, or other holiday gifts. Gifts from a
"restricted donor" are prohibited unless an exception
applies or you reciprocate such as by exchanging gifts of equal
value.
23. Can someone
who wants to sell a product to my agency give me free samples for
my personal use?
A vendor seeking to do business
with your agency is a "restricted donor." §§ 68B.2(24)(a),
(c). Therefore, you cannot accept samples worth over three dollars
for personal use unless these are made available free of charge
to members of the general public or otherwise fit within an exception.
However, you can test samples as part of normal contract review
or donate samples, as provided by §68B.22(3), within 30 days of
receipt.
24. Can I
continue to accept government employee discounts on hotel rooms
or other goods and services?
You may accept a government
rate which is available to all government employees for official
business. Whether you can accept a discount for personal use depends
on the circumstances involved, and you should seek legal advice.
Op.Att'yGen. #93-7-7(L).
25. Is there
a polite alternative to rejecting a prohibited gift?
You may accept gifts other
than money if you turn the gift over to a public body or charity
within thirty days and meet all the requirements of § 68B.22(3).
You may also exchange gifts of equal value, where appropriate.
26. May I
accept a gift from a foreign citizen?
Yes. You may accept a gift
from a foreign citizen given during a ceremonial presentation
or as a result of a foreign custom, provided the gift is only
of personal value to you. § 68B.22(4)(p). If the gift has more
than personal value, you should follow the advice given in response
to question 25.
27. Can a
"restricted donor" pay my travel expenses to a conference
by reimbursing the agency where I work? Is it a gift to me or to
my agency?
The payment of travel expenses
for a governmental official or employee by a "restricted
donor" is almost always prohibited. Generally, the law treats
free travel as a gift to the employee and limits payment of travel
expenses from a "restricted donor" to those exceptions
specifically permitted by statute. 1990 Op.Att'yGen. 52 (#89-11-3(L).
These exceptions include, for example, travel expenses given in
return for participation in a panel or speaking engagement at
a meeting when the expenses related directly to the days of participation.
§68B.22(4)(g).
28. May a
"restricted donor" pay my travel expenses as part of a
joint economic development effort?
Yes, under certain circumstances.
Section 68B.22(4)(o) permits you to accept travel, lodging, food
and drink while an official member of a delegation to attract
a specific business if you play a significant role in the presentation
to the business and the donor is not the business being contacted.
If the donor is the business being contacted, you may consume
food and drink provided by the business during the meeting.
29.
Can I attend an official reception at a meeting of an association
of governmental entities?
Yes. The gift law specifically
exempts regularly scheduled events at meetings of an association
of which the State or a political subdivision is a member. Examples
of these groups are the National Conference of State Legislatures,
Council of State Governments, Iowa State Association of Counties,
the Iowa Association of School Boards, and the League of Iowa
Municipalities. §68B.22(4)(k).
30. Can I
attend an official reception at a meeting of an association of public
officers?
Yes. The gift law also specifically
exempts regularly scheduled events at meetings of an association
of public officers if you or your governmental entity is a member
of the association. Examples of these groups are the National
Governors' Association, Iowa State Sheriffs' and Deputies' Association,
and the Iowa Municipal Finance Officers' Association. §68B.22(4)(k).
31. Can I
attend a free reception sponsored by a "'restricted donor"
at a meeting of an association?
Yes, but you cannot consume
food or drink worth more than three dollars at any event sponsored
by a "restricted donor" unless it fits within the exception
for a "regularly scheduled event" at a meeting of an
association of public officers or an association in which the
State or a political subdivision is a member. The scope of this
exception will need to be resolved on a case-by-case basis. §
68B.22(4)(i), (k).
32. Can I
attend a free reception of a professional organization or civic
group?
Yes, but if the sponsor is
a "restricted donor," you cannot consume food or drink
worth more than three dollars unless the event is free to the
public or the event is part of the benefits you receive in return
for your payment of membership dues. § 68B.22(4)(e), (i).
33. Is a "restricted
donor's" contribution to an official's political campaign a
gift?
No. Contributions made to
a candidate or candidate's committee are excluded from the gift
law but are subject to the campaign finance law, Iowa Code ch.
56. § 68B.22(4)(a).
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Enforcement
of the Gift Law
34.
What is the effective date of the 1993 gift law amendments?
The 1993 amendments to the
gift law became effective May 28, 1993. Be aware that some sections
of House File 144 amending lobbyist registration and reporting
requirements, lobbyist client reporting, and personal financial
disclosure requirements are effective retroactively.
35. What are
the penalties for violating the gift law?
A violation of the gift law
is a serious misdemeanor which may, upon conviction, result in
imprisonment for one year and a $1,000 fine. §§ 68B.25, 903.1.
In addition, the Ethics and Campaign Disclosure Board may impose
a civil penalty of up to $2,000 for each violation of chapter
68B. §68B.32D(1)(h). A violation can also be grounds for
removal from office, suspension or dismissal from employment,
or other employee discipline. §§ 68B.25, 68B.31(11), 68B.32D.
36. Does the
gift law apply when I'm attending a conference in another state?
Yes. If the gift law applies
to you, it will apply even though the
transaction occurs out of state. 1990 Op.Att'yGen. 27.
37. Where
can a person file a complaint about a violation of the gift law?
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File
complaints about state executive branch officers, employees,
or lobbyists with the Ethics and Campaign Disclosure Board.
§ 68B.32(1). |
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File
complaints about legislators and legislative employees and lobbyists
with the legislative ethics committees. § 63B.31(5). |
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File
complaints about judicial officers with the commission on judicial
qualifications. §602.2104. |
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File
criminal complaints for knowing and intentional violations of
the law with the county attorney where the violation allegedly
occurred. Complaints regarding the conduct of local officials
and employees are filed with the county attorney in the county
where the accused resides. § 68B.26. |
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