Outside the political boundaries of Idaho, federal agents and federal prosecutors aggressively strive to protect the integrity of our government by investigating and prosecuting bribes and gratuities alleged to have been offered to public officials or solicited or accepted by them.  Here are some examples of public corruption investigations undertaken by the Internal Revenue Service in FY 2013.

Doing its part to educate and inform the public inside the political boundaries of Idaho, OpenCdA will explain what the federal statutes pertaining to bribery and gratuities.   It won’t change the feds’ political cowardice here, but it will help explain why corrupt officials outside Idaho go to jail.

Most of the following material is copied from the Criminal Resource Manual of the US Attorneys.

Crimes which affect government integrity, including bribery of public officials and accepting a gratuity, election crimes, and other related offenses are under the supervisory jurisdiction of the US Department of Justice, Criminal Division, Public Integrity Section.

Section 201 of Title 18, United States Code,  is entitled “Bribery of public officials and witnesses.” The statute comprises two distinct offenses, however, and in common parlance only the first of these is true “bribery.”

The first offense, codified in section 201(b), prohibits the giving or accepting of anything of value to or by a public official, if the thing is given “with intent to influence” an official act, or if it is received by the official “in return for being influenced.”The second offense, codified in section 201(c), concerns what are commonly known as “gratuities,” although that word does not appear anywhere in the statute. Section 201(c) prohibits that same public official from accepting the same thing of value, if he does so “for or because of” any official act, and prohibits anyone from giving any such thing to him for such a reason.

The two offenses differ in several respects. The most important of these differences concerns how close a connection there is between the giving (or receiving) of the thing of value, on the one hand, and the doing of the official act, on the other. If the connection is causally direct – if money was given essentially to purchase or ensure an official act, as a “quid pro quo” then the crime is bribery.

For example, suppose a developer in Coeur d’Alene wants to get a proposal for a development on the Council’s agenda.  He approaches a City Councilman and asks how he can get his proposal on the agenda for Council consideration.  The Councilman agrees to put it on the Council agenda if the developer will make a $1,000 contribution to the Councilman’s campaign.  The developer makes the $1,000 contribution and voila!, the Councilman puts the project on the agenda for Council consideration.  In this example, the thing of value was the $1,000 contribution and the official act was placement of the developer’s request on the agenda.

If the connection is looser – if money was given after the fact, as “thanks” for an act but not in exchange for it, or if it was given with a nonspecific intent to “curry favor” with the public official to whom it was given -then it is a gratuity. The distinction is sometimes hard to see, but the statute makes it critical: a § 201(b) “bribe” conviction is punishable by up to 15 years in prison, while a § 201(c) “gratuity” conviction permits only a maximum 2-year sentence. In addition, with a “bribe” the payment may go to anyone or to anything and may include campaign contributions, while with a “gratuity” the payment must inure to the personal benefit of the public official and cannot include campaign contributions.

Here’s an example of a payment that would look like a gratuity (if anyone was looking…).  A prospective candidate for an office declares his candidacy for an office he knows will be uncontested.  He will be the only candidate.  Knowing that the candidate is sure to be elected, a group of people decide to curry favor with the candidate by entering into a professional services agreement with a close family member of the candidate.  The payment of the professional services agreement is grossly inflated to ensure the candidate gets the message that these are people with whom it would be profitable for him and his family to deal.  There has been no direct solicitation, no “quid pro quo” sought or agreed upon.  It’s more of an investment by those offering and delivering the gratuity.  They hope that down the road, the candidate/office holder will remember their investment paid to his or her family member.

The crime of bribery (in violation of § 201(b)) and the crime of accepting a gratuity (in violation of § 201(c)) require proof of the same basic elements: In general terms, these are the following:

1. A public official [not necessarily elected; could be an appointed official such as a planning commissioner or an urban renewal agency commissioner];

2. A thing of value;

3. A request or receipt by the official, or an offer or promise to the official, of that thing of value;

4. For the benefit of the official or (in the case of section 201(b) bribery) of some other person or entity);

5. With the requisite connection to an official act;

6. With the requisite intent.

The details of those six elements are explained further in the Criminal Resources Manual, §2044.  Of special importance in that section is how the federal law can be applied to state and local public officials who are authorized to allocate federal grant money such as HUD Community Development Block Grant money.

For a good summary of a landmark case which explains well the differences between bribery and gratuities, see this synopsis of United States v. Brewster, 506 F.2d. 62 (D.C. Cir. 1974).

In June of this year OpenCdA put up a series of posts describing the Charbonneau Commission’s efforts to stem bribery in Montreal.  It is noteworthy that the Charbonneau Commission came about when the public became outraged at the level of bribery and corruption in Montreal and surrounding communities, particularly bribery of public officials by prominent players in the construction industry.  And how did the public learn about the corruption?  Through clear, concise, and systematic news reporting by Montreal’s newspapers!

Imagine that!  Professional, honest, and diligent newspaper owners, publishers, and editors who are more interested in exposing bribery and public corruption than in promoting it.