Ethics Advisory Opinion No. 115
March 13, 2007
Issued By: City Attorney’s Office
May a potential city vendor provide a sample of its product to a city employee so that the employee can evaluate the product for potential purchase by the city?
A city employee recently attended an event held by a software vendor at which the vendor was demonstrating and launching a new product. The employee attended the event in his capacity as a city employee to examine products for possible purchase by the city. The vendor offered individuals who attended a software package with a fair market value of approximately $450. The employee and the vendor inquired whether the city’s Ethics Code would prohibit the employee’s acceptance of this product sample.
III. The Ethics Code - Gifts
The Ethics Code contains two rules which regulate the acceptance of gifts by city employees. The first restricts gifts given with the intent to influence or reward a city official or employee for official action:
A city official or employee 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.
Ethics Code, Section 2-45(a)(1).
The second rule restricts gifts from specific sources, regardless of the motivation for the gift:
A city official or employee shall not solicit, accept, or agree to accept any gift or benefit, from:
(A) any individual or business entity doing or seeking to do business with the City; or
(B) any registered lobbyist or public relations firm; or
(C) any person seeking action or advocating on zoning or platting matters before a city body,
save and except for
i) items received that are of nominal value; or
ii) meals in an individual expense of $50 or less at any occurrence and no more than a cumulative value of $500 in a single calendar year from a single source.
Ethics Code, Section 2-45(a)(2).
Under the facts of this inquiry, a city employee is inquiring whether he can accept a software package worth $450 from potential city vendor. The vendor is offering the package with the intent that representatives from different entities will choose to purchase the product for other employees. The concern in this inquiry is that the product would be provided to a particular individual employee, who could then use the product as he chooses. As such, this product would constitute a personal gift or benefit to the employee. Because the vendor is seeking city business, the employee would be prohibited from accepting any item worth more than $50 under Section 2-45(b). Accordingly, he could not accept this benefit in his individual capacity.
However, the vendor could provide the product to the city or a city department as a sample or donation for use by the city as the city determines is best. City employees using and evaluating the product in their capacity as city employees could not use the product for personal use or take the product with them should they leave city service. Any disposition of the product would be done in accordance with standard property disposition procedures for city property. It is recommended that the vendor provide this sample product to the employee’s department director or to the department staff who typically handle procurements. The department director may then select an employee to use and evaluate the product on behalf of the city.
City employee cannot accept product sample worth more than $50 from a potential city vendor. The vendor, though, may provide product to city as a sample, but it must be used for city purposes and distributed to employees for use in accordance with city policy.