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Advisory Council on Ethics (ACE)

Advisory Council on Ethics Opinion No. 8

March 25, 1998

Should a TDCJ employee, who's job description includes the negotiation and signing of contracts with outside businesses for goods or services, accept an invitation to a social function or entertainment offered as a result of that business relationship?

A definite resolution of this particular question would require an investigation into the facts in a manner that is beyond the scope of the council's authority, therefore we do not address whether attending the "social function" is a violation of law or policy.

Several statutes are important to the proper discussion of the question posed.

  1. Texas Government Code 572.052 - discourages state employees from "accepting, soliciting any gift, favor or service that would reasonably tend to influence the employee in the discharge of official duties or that the employee knows or should know is being offered with the intent to influence. The TDCJ Ethics Policy ED 02.01 prohibits the conduct described in the government code.
  2. Texas Penal Code 36.08 (d) - prohibits an employee "who exercises discretion in connection with contracts...or other pecuniary transaction or government from accepting a benefit from a person the employee knows is interested in or likely to become interested in any contract...or transaction involving the exercise of his/her discretion." It is important to note that the prohibition in this section applies even if the donor is not seeking anything in return.

However, 36.10 (b) of the penal code provides an exception to the gift prohibition if the "benefits are in the form of food, lodging, transportation or entertainment, and if they are accepted as a guest, and, if the donor is required by law to report those items, reported by the donor in accordance with that law." In essence, to accept a gift as a guest the donor must be present. Additionally, there is an exception that exempts benefits whose value do not exceed $50.00, whether the function in question would qualify under either exception depends on facts outside the scope of this opinion.

Because each situation is unique and must be examined for the intent of the parties and the potential for undue influence, it is almost impossible to offer a blanket answer to this question. Occasions may arise in which one might accept a social invitation, for instance, and fall within the letter of the law. The greater question is whether the acceptance of such an invitation would be ethical. While it is reasonable to suppose a gift or invitation might come as a result of honest gesture of appreciation or an effort to establish or continue pleasant working relationships, it is naïve to suppose such commerce is not also offered as an inducement for future business.

In addition, one must examine whether one could accept such favors without being influenced, however subtly, towards a more favorable consideration of future contract with the donor. The Council prefers the exercise of discretion and recommends all such gifts be refused.