Contractor-Sponsored Events: Navigating through the Rules
Moorhouse, Dick, Hickey, Dave, National Defense
The ethics culture in Washington, D.C., during recent decades has become encrusted in a bewildering array of statutes, regulations, guidelines, policies, procedures, assorted memoranda, brochures and bulletins. Federal contractors and their government customers must navigate these ethics rules daily. Contractor-sponsored events that involve federal employees require special planning considerations. Published guidance often relies on broad objective standards of conduct, such as avoiding the "appearance of impropriety" or "apparent conflicts of interest." Or it simply recites complex regulatory language.
Event sponsorship triggers federal rules that generally bar contractor gifts to Defense Department personnel. Government employees in fact may accept something of value from outside sources if it is not a "gift" or if it falls within the widely attended gathering or event exception (or something similar).
When invoking the widely-attended gathering exemption, the following considerations should be examined: the nature of the event, the role and capacity of the government employees attending the event and the specific, sponsored activities and "takeaways" that comprise the event. Company-sponsored social events commemorating a historic military milestone, for example, differ from seminar speaking invitations to a Defense Department official. Government attendees also should understand the difference between attendance in an official capacity, or in a personal status. Finally, a breakdown of all logistical elements is necessary, such as any food, refreshments, entertainment, materials, plaques, travel, lodging and other items of value that will be furnished.
Defense Department employees are permitted to attend events where it is in the interest of the agency or its operations. In approving an event, ethics officials will focus on certain key factors, such as the number of attendees (100 is the benchmark), market value of free attendance, nature and diversity of attendees (all from one contractor or broader community), and whether there is a legitimate government purpose for attending.
For example, many events sponsored by trade associations can be approved under a "community relations" rationale if it does not interfere with government duties or favor one entity over others, and does not support a profit-making function. In many cases, a supervisor must make a written determination permitting attendance. Contractors can and should assist an employee in obtaining approval by providing pertinent information. Ultimately the government employee bears responsibility for accepting free attendance in consultation with the employee's ethics office.
Defense Department personnel can properly deliver a speech in an official capacity, but they may not participate in fundraising in an official capacity and should not officially endorse non-federal organizations. Employees also may be barred from making an official speech that affects the financial interests of the sponsoring organization. …