The U.S. Supreme Court continues to lower the ethical standard for elected officials by blurring the line between a “bribe” and a “tip” by drawing a distinction between bribes given before an official act and gratuities provided in appreciation after the official act.
According to the Court, James Snyder, the former mayor of Portage, Indiana, should not have been convicted for violating 18 U.S.C. §666, which prohibits state and local government officials from “corruptly” accepting “anything of value of any person, intending to be influenced or rewarded” for an official act. In 2014, Snyder received $13,000 from a trucking company that had recently received contracts totaling more than $1 million for new trash trucks for the city. While Snyder maintains that the payment was for consulting services, federal prosecutors charged him with receiving an illegal gratuity.
The Supreme Court’s decision won’t help Sen. Bob Menendez, who faces charges under a different federal bribery law, but it does provide clarity for local New Jersey officials who often face a dizzying patchwork of federal, state and local ethics laws. As stated by Justice Brett Kavanaugh, “the government’s interpretation of the statue would create traps for unwary state and local officials.”
Legal Distinction Between Bribes and Gratuities
Bribes and gratuities have always been treated differently under public corruption laws. Bribes are typically payments made or agreed to before an official act in order to influence the public official with respect to that future official act. Meanwhile, gratuities are generally defined as payments made to a public official after an official act as a reward or token of appreciation. The penalties for bribery are typically more severe, as it is considered a more serious crime.
Justice Kavanaugh emphasized the distinction in his opinion. He wrote: “While American law generally treats bribes as inherently corrupt and unlawful, the law’s treatment of gratuities is more nuanced. Some gratuities might be innocuous, and others may raise ethical and appearance concerns.”
The Snyder case centered on 18 U.S.C. §666, which extended the gratuities statute (18 U.S.C. §201(c)) for federal officials to most state and local officials. The current version of the law, however, more closely resembles the bribery prohibition for federal officials (18 U.S.C. §201(b)), and makes it a crime for most state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value” “intending to be influenced or rewarded in connection with” any official business or transaction worth $5,000 or more.
Supreme Court’s Decision
A six-member majority of the Supreme Court held that Section 666 prohibits state and local officials from accepting bribes that are promised or given before the official act but does not apply to accepting gratuities made in appreciation of the official act.
Writing for the majority, Justice Kavanaugh outlined six reasons that “taken together” resulted in the Court’s holding: “text, statutory history, statutory structure, statutory punishments, federalism, and fair notice.” The first three reasons centered on Section 666, and how it compares to the bribery and gratuity provisions for federal officials. The Court placed significant weight on the fact that the bribery statute for federal officials, §201(b), uses the term “corruptly,” while the gratuities statute for federal officials, §201(c), does not. According to the majority, the term “corruptly” clearly signals that §666 is a bribery statute.
The Court also found that federalism principles heavily favored reading §666 as a bribery statute and not as a gratuities law. “Reading §666 to create a federal prohibition on gratuities would suddenly subject 19 million state and local officials to a new and different regulatory regime for gratuities,” Justice Kavanaugh wrote. “In other words, a county official could meticulously comply with her county’s local gratuities rules—say, by declining a $200 gift card but accepting a $100 gift card from a neighbor as thanks for her diligent work on a new park—but still face up to 10 years in federal prison because she accepted a thing of value in connection with an official act.”
According to the Court, the Government’s interpretation of the statute would also create traps for unwary state and local officials. As Justice Kavanaugh wrote:
The Government simply opines that state and local officials may not accept “wrongful” gratuities. That is no guidance at all. Is a $100 Dunkin’ Donuts gift card for a trash collector wrongful? What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle for an end-of-term celebration? And if so, would it somehow become criminal to take the professor for a steak dinner? Or to treat her to a Hoosiers game? … The Government’s so-called guidance would leave state and local officials entirely at sea to guess about what gifts they are allowed to accept under federal law, with the threat of up to 10 years in federal prison if they happen to guess wrong. That is not how federal criminal law works.
The bottom-line is that although a gratuity offered and accepted after an official act may be unethical or illegal under other federal, state, or local laws, it does not violate federal law.