New York’s JCOPE Issues Draft Advisory Opinion on Gifts to Third Parties


New York law has long imposed restrictions on lobbyists and clients of lobbyists, as well as on other individuals and entities with business before the state (Interested Sources), giving gifts to public officials. In recent years, the restrictions were expanded to expressly limit gifts to a third party at the request of a public official, sometimes referred to as “behested” gifts. Indirect giving or gifts to a third party at the request or solicitation of a public official are murkier and implicate several different laws including the Public Officer’s Law, the Lobbying Act, and the New York State Joint Committee on Public Ethics (JCOPE, or the Commission) regulations. Notably, as we highlighted in April, the Coronavirus Disease 2019 (COVID-19) pandemic has spawned an increase in charitable giving, including to philanthropic organizations, newly formed groups helping front-line workers, or those in other sectors who have been directly affected by the economic effects of the current crisis. As such, individuals and entities regulated by New York’s lobbying laws should be aware that charitable giving may be prohibited by law in certain instances. To provide the regulated community better guidance on how to navigate these sensitive waters, on Sept. 16, 2020, JCOPE issued a draft advisory opinion (the Advisory Opinion) to clarify the interplay between various laws regulating gift restrictions made to third parties at the behest of a public official. As noted in the draft Advisory Opinion, “[a] gift offered or given to a third party at the behest of a public official can...give rise to...a perception that the gift is motivated by factors other than the public interest...and damage public confidence in government.” Although not yet adopted, this opinion provides significant insight into how JCOPE – or at least its staff – will analyze third party gifts.

The Advisory Opinion begins with the presumption that “[a]ny gift made by an Interested Source to a third party upon a public official’s personal solicitation is presumptively prohibited.” In such instances, the solicitation of the gift as well as any gift given in response to the solicitation could violate the law. JCOPE’s draft warns that it is possible for an Interested Source to violate the gift restrictions even in the absence of a public official’s solicitation, direction, designation, or recommendation. A determination on whether a violation of the law has occurred will depend on the “totality of the circumstance,” and will require a case-by-case analysis based on the circumstances surrounding the gift.

The Advisory Opinion highlights key categories the Commission may consider in evaluating whether a gift to a third party is prohibited:

Given the guidance above, regulated parties should consider the circumstances surrounding a solicitation or suggestion to give to third parties, including charitable and philanthropic organizations. According to JCOPE’s draft opinion, the restrictions on direct giving to a public official “cannot be evaded by arranging to have a third party receive a gift that is meant to influence a public official.” However, if adopted, this Advisory Opinion may help ensure that Interested Sources can still actively participate in charitable activities, without running afoul of the gift laws.


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National Law Review, Volume X, Number 274