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Advisory Opinion

IECDB AO 2003-11

 

September 11, 2003

TO ALL INTERESTED PERSONS:

Pursuant to Iowa Code section 68B.32A(11) and rule 351—1.2, the Iowa Ethics and Campaign Disclosure Board takes the opportunity to issue its opinion on governmental entities receiving a free gift when purchasing items from a vendor. We note at the outset that the Board’s jurisdiction is limited to the application of Iowa Code chapters 68A and 68B and rules in Iowa Administrative Code chapter 351.

OPINION:

The issue has been raised whether a governmental body purchasing a product from a vendor may accept a free gift offered in conjunction with the purchase of a product. Iowa Code section 68B.22(4) provides certain exceptions to the prohibition on public officials and employees soliciting or receiving gifts from a “restricted donor.” 1 Paragraph “e” provides, in pertinent part, the following exception:

“Anything available or distributed free of charge to members of the general public without regard to the official status of the recipients.”

The Board believes that “anything available or distributed free of charge” would include a free gift with a purchased item if the same offer is available to the general public. Therefore, so long as the vendor makes the same offer to other customers, the gift could be received and accepted by a governmental body. As the purchased item was purchased using taxpayer funds, the gift must be donated to a public body, the Department of Administrative Services (formerly the Department of General Services), or a charitable organization. 2

In closing, the Board notes while the receipt of gifts under this scenario is permissible, there could be a potential appearance of impropriety that governmental officials should consider. This is especially true in light of Iowa Code section 68B.21 that describes the General Assembly’s intent behind the gift law:

“It is the goal of the general assembly that public officials and public employees of the state be extremely cautious and circumspect about accepting a gratuity or favor, especially from persons that have a substantial interest in the legislative, administrative, or political actions of the official or employee. Even where there is a genuine personal friendship, the acceptance of personal benefits from those who could gain advantage by influencing official actions raises suspicions that tend to undermine the public trust. It is therefore the intent of the general assembly that the provisions of this division be construed to discourage all gratuities, but to prohibit only those that create unacceptable conflicts of interest or appearance of impropriety.”

BY DIRECTION AND VOTE OF THE BOARD

James Albert, Board Chair
1st Vice-Chair Geraldine Leinen
2nd Vice-Chair Gwen Boeke
Mark McCormick
Bernie McKinley
Phyllis Peters

Submitted by: W. Charles Smithson, Board Legal Counsel


1 See Iowa Code section 68B.2(24) for the definition of a restricted donor. Under that definition, a vendor would be considered a “restricted donor.”

2 See Iowa Code section 68B.22(3) as amended by 2003 Iowa Acts, HF 534, sec. 286(2)“a”.

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