Ethics Advisory Opinion No. 104
Issued By: City Attorney’s Office
I. Issue: May city employees accept gifts in exchange for selecting a vendor to make purchases?
A group of city employees have an allowance of city funds on which to spend for certain duty-related equipment. A vendor wishes to offer the employees a gift as an incentive to choose its products. A city employee asks whether the employees may accept the gift.
III. Ethics Code
Section 2-45(a)(1) of the Ethics Code states:
A city official shall not solicit, accept or agree to accept any gift or benefit for himself or herself or his or her business:
(A) that reasonably tends to influence or reward official conduct; or
(B) that the official or employee knows or should know is being offered with the intent to influence or reward official conduct.
Also, Section 2-44(b)(2) provides:
A city official or employee may not enter into an agreement or understanding with any other person that official action by the official or employee will be rewarded or reciprocated by the other person, directly or indirectly.
Section 2-42(v) defines “official action” as follows:
“Official action” includes:
(1) any affirmative act (including the making of a recommendation) within the scope of, or in violation of, an official or employee’s duties, and
(2) any failure to act, if the official or employee is under a duty to act and knows that inaction is likely to affect substantially an economic interest of the official or employee or any person or entity listed in Subsections 2-43(a)(2) through (9) of Division 2 (Improper Economic Benefit).
The group of employees have been provided with an “allowance” funded by the city for the purpose of purchasing duty-related equipment required to carry out their responsibilities. Accordingly, the decision to expend the allowance with one vendor rather than another is an act “within the scope of the employee’s duties,” and therefore is an “official action.”
The incentive program makes an express quid pro quo offer – choosing one vendor over another in exchange for an item with a value of approximately $100. Under Sections 2-45(a)(1) and 2-44(b)(2), the value of the gift is of no relevance. The critical issue is whether the gift is being offered in exchange for official action. The program as proposed envisions such a trade and would violate Sections 2-45(a)(1) and 2-44(b)(2). 
The Texas Penal Code also regulates the receipt of gifts or other benefits by public servants. Section 36.02(a)(1) (Bribery) provides:
(a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:
(1) any benefit as consideration for the recipient's decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter.
The offense under Section 36.02(a)(1) is a second-degree felony. Like Section 2-45(a)(1) of the Ethics Code, this statute also prohibits a quid pro quo exchange of benefits, such as gifts, for a particular exercise of official discretion.
Section 36.08(d) of the Texas Penal Code (Gift to Public Servant by Person Subject to his Jurisdiction) also restricts gifts to public servant. Section 36.08(d) states:
(d) A public servant who exercises discretion in connection with contracts, purchases, payments, claims or other pecuniary transactions of government commits an offense (Class A misdemeanor) if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any contract, purchase, payment, claim, or transaction involving the exercise of his discretion.
Section 36.08 provides an exception to Section 36.08 for nominal gifts up to $50 in fair market value; there is no similar exception to Section 36.02.
It is a class A misdemeanor for a person who offers, confers or agrees to confer any benefit on a public servant that he knows the public servant is prohibited from accepting. Penal Code Section 36.09.
City employees may not accept gifts in exchange for the exercise of their discretion to expend city funds. The proposed program would violate the city’s Ethics Code if accepted by city personnel.
 The Ethics Code includes another gift provision, Section 2-45(a)(2). This section regulates the acceptance of gifts by city officials and employees from individuals or entities doing or seeking business with the city, registered lobbyists and those seeking zoning or platting decisions from the city. Some gifts are allowed under this provision: meals of up to $50, items of nominal value, or gifts of entertainment, lodging or transportation up to $500. However, for this inquiry, Section 2-45(a)(1) governs because of the direct quid pro quo nature of the incentive program.