College of Business Administration

Article Reprints:

Randy Cohen

Gift or Bribe?

Lawrence Noble

When a Gift Isn't Right

January 6, 2002, Sunday, Late Edition - Final

SECTION: Section 6; Page 18; Column 1; Magazine Desk

LENGTH: 375 words

HEADLINE: THE WAY WE LIVE NOW: 1-06-02: THE ETHICIST;

Gift or Bribe?

BYLINE: By Randy Cohen

BODY:

At the college where I teach, my department has an oral policy that

Forbids faculty to accept gifts from students. Three days after graduation, several newly former students gave me a beautiful engraved watch, saying their gift could no longer influence my grading. I was touched, and although I felt they had manipulated the rules, I kept the watch. Was this ethical? Anonymous,

Oakdale, N.Y.

Your students didn't manipulate the rules; they followed them. And by keeping the watch, you adhered to both the letter -- or would have, had there been an actual letter -- and the spirit of departmental policy.

You were right to consider the purpose of the policy and the intent of your former students. The rule was meant to thwart students from bribing professors for better grades; in your situation, this was not even a possibility. Nor was it the intention of those students to corrupt you retroactively, rewarding you for having inflated their grades in the past, since there was no way for you to know which students you could count on for a deferred payoff, an implicit quid pro quo not unknown in politics and other realms.

Sometimes a gift of a nice watch (or a nice box of cigars) is only a gift of a nice watch (or a nice box of cigars), as Freud did not say.

I sell products internationally. From time to time, I receive an e-mail message from a client in which many other recipients' addresses are visible. May I take advantage of this e-pot of gold by sending out a mass e-mail mailing to all on his C.C. list? Or does this violate e-ethics? Mary Brigid Adams, Dallas

As I understand it, there is no legal obstacle to your using these addresses. Indeed, you may look up e-mail addresses online or purchase mailing lists--this is not confidential information. And were you to send out a mass mailing, you would do the recipients no harm. (Although they might want to inflict some on you.) Junk e-mail annoys but does not injure. Your client could suffer, however, if his contacts resent his lapse in disseminating their addresses. Also, ethics can set higher standards than the law. Thus, knowing that these e-mail addresses were not intended for you, you shouldn't exploit your client's failure to B.C.C. rather than C.C.

When a Gift Isn't Right

January 12, 2002

By LAWRENCE NOBLE

WASHINGTON -- The new year brought some happy news for

Senator Robert G. Torricelli of New Jersey. On Jan. 3, the

United States attorney in Manhattan, Mary Jo White, announced that she was closing her investigation into allegations that the senator had illegally accepted tens of thousands of dollars in cash and gifts from David Chang, a businessman. Without offering any explanation for her decision not to seek a criminal indictment, Ms. White referred the matter to the Senate Ethics Committee.

It may very well be that Senator Torricelli is innocent of taking "illegal gifts," as he has long claimed. It is also possible that Ms. White felt she didn't have enough evidence for a conviction. And while the senator has lately denied taking a few specific gifts, his more common defense has been that he did not take any "illegal gifts" from Mr. Chang. Thus a consideration of the difference between legal and illegal gifts to a federal official may prove useful.

Federal campaign finance laws, which are supposed to prevent political corruption, have been rendered meaningless by the tidal wave of "soft money" contributions that now floods political campaigns. These laws were supposed to prohibit large, undisclosed "gifts" to political parties that benefit candidates for public office. Those already in office, meanwhile, are also supposed to be governed by federal laws against bribery and gratuities.

Outright bribery requires explicit proof of a quid pro quo, which is often difficult to get. Another federal statute regarding gratuities is more open-ended, making it illegal to give "anything of value" to a public official "for or because of any official act performed or to be performed by such public official."

In 1999, however, the United States Supreme Court ruled that this second law also required the government to prove a specific link between the gift and "some particular official act." Under the gratuities and bribery laws, it is not illegal to give an expensive present to a government official so long as it is not given for any particular action.

Thus it appears that a businessman looking for assistance in gaining a contract with a foreign government can give a senator thousands of dollars in cash and other gifts in hopes that he will get a friendly hearing when he comes to visit. He just has to be careful not to say he wants a specific action in return for the gifts. Of course, he can always independently discuss his needs with the senator. According to the Supreme Court, this is the way Congress wrote the law.

If the law is supposed to be a reflection of society's values, we have to ask if this truly reflects our standards. Shouldn't we demand that our public officials behave in a way that doesn't require parsing the distinction between accepting large gifts from someone just looking for a friendly relationship and someone unsubtle enough to condition the gifts on a specific favor? Our elected officials are supposed to be working for all their constituents, not just those who can afford to buy them gifts of "friendship."

The Supreme Court's decision undermined effectiveness of the criminal ethics laws. But Congress has also been culpable in making enforcement of anti-corruption laws in political campaigns practically impossible. It has long tolerated a system that allows unlimited gifts to political parties in the form of soft money. As Congress considers changes in our campaign finance laws when it returns to session later this month, it should also revisit the laws gutted by the Supreme Court.

All this may be too much to hope for in an election year. But at the very least, we should demand that the Senate Ethics Committee examine whatever evidence the United States attorney delivers in the Torricelli case in a manner that inspires public confidence. If the committee finds that Mr. Torricelli has violated Senate ethics rules, it should punish him quickly and effectively. If the committee finds no violation, it should fully explain its decision.

We are owed no less.

Lawrence Noble, executive director of the Center for Responsive Politics, was general counsel of the Federal Election Commission from 1987 to 2000.

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