July 17,
2001
Opinion No.
2001-15
E. J. Reppert,
M.D.
Medical Director, Lafene
Health Center
Kansas State
University
107 Lafene Health
Center
Manhattan, Kansas
66506-3300
Dear Dr.
Reppert:
This opinion is in response
to your letter of June 15, 2001, in which you request an advisory
opinion from the Kansas Governmental Ethics Commission concerning
the application of the governmental ethics laws (K.S.A. 46-215
et seq.). We note at the outset that the Commission’s
jurisdiction is limited to the application of K.S.A. 46-215 et
seq., and whether some other statutory system, common law
theory or agency rule and regulation applies to your inquiry is not
covered by this opinion.
FACTUAL STATEMENT:
We understand you request
this opinion in your capacity as the Medical Director for the
Kansas State University Lafene Health Center. You have explained
that pharmaceutical representatives occasionally offer to buy
doctors dinner during the course of which the representative tells
the doctor about the pharmaceutical company’s products. In
addition, the representatives occasionally offer the doctors gifts
as compensation for the time spent listening to their
presentations. If the doctors are not permitted to accept the free
meals and gifts, you question whether the doctors could ask these
representatives for cash donations to your health center in
exchange for the time spent listening to their presentations. The
donations would be used for the purchase of medical educational
materials which would be the property of the health center and
would be available to all professional staff.
QUESTIONS:
I. May an
employee of the Kansas State University Lafene Health Center accept
a gift from a pharmaceutical representative?
II. May an
employee of the Kansas State University Lafene Health Center accept
a meal from a pharmaceutical representative?
III. May an employee
of the Kansas State University Lafene Health Center solicit a
donation for the Health Center from a pharmaceutical
representative?
OPINION:
In response to your first
question, K.S.A. 46-237a(b) applies. It
states:
“No person
subject to the provisions of this section shall solicit or accept
any gift, economic opportunity, loan, gratuity, special discount or
service provided because of such person’s official position,
except:
“(1) A gift
having an aggregate value of less than $40 given at a ceremony or
public function where the person is accepting the gift in such
person’s official capacity; or
“(2) gifts from
relatives or gifts from personal friends when it is obvious to the
person that the gift is not being given because of the
person’s official position; or
“(3) anything
of value received by the person on behalf of the state that inures
to the benefit of the state or that becomes the property of the
state; or
“(4)
contributions solicited on behalf of a nonprofit organization which
is exempt from taxation under paragraph (3) of subsection (c) of
section 501 of the internal revenue code of 1986, as
amended.”
Pursuant to this section,
state employees are entirely prohibited from accepting gifts
unless one of
the four enumerated exceptions applies. Based upon the factual
scenario you have described, there are no exceptions that would
allow the employee to accept the gift in his or her personal
capacity. If this unsolicited gift, however, was given to and
accepted by the employee on behalf of the
University and became the property of the University, the third
exception would apply and the University could accept the
gift.
With respect to the
second question, K.S.A. 46-237a(c) applies. It
states:
“No person subject to
the provisions of this section shall solicit or accept free or
special discount meals from a source outside of state government,
except:
“(1) Meals, the
provision of which is motivated by a personal or family
relationship or provided at events that are widely attended. An
occasion is ‘widely attended’ when it is obvious to the
person accepting the meal that the reason for providing the meal is
not a pretext for exclusive or nearly exclusive access to the
person;
“(2) meals provided at
public events in which the person is attending in an official
capacity;
“(3) meals provided
to a person subject to this act when it is obvious such meals are
not being provided because of the person's official position;
and
“(4) food such as
soft drinks, coffee or snack foods not offered as part of a
meal.”
Pursuant to this
section, state employees are entirely prohibited from accepting
free or discountedmeals unless one of the
four enumerated exceptions applies. Under the factual situation you
have provided, the doctor would not be
able to accept the free meal. It should be noted,
however, thatthe doctor could consume
the meal and listen to the presentation, but he or she must pay to
the host, the fair market value of the meal
consumed.
Finally, with respect
to your third question, both K.S.A. 46-237a and K.S.A. 46-236
apply. Although K.S.A. 237a(b)(3) would appear to allow the
solicitation you have inquired about, K.S.A. 46-236 is a more
specific statute and therefore controls the outcome of this
question. K.S.A. 46-236, states in pertinent
part:
“No state officer or
employee . . . shall solicit any economic opportunity, [or] gift .
. .from
any person known to have a special interest, under circumstances
where such officer [or] employee . . . knows or should know that a
major purpose of the donor in granting the same could be to
influence the performance of the official duties or prospective
official duties of such officer [or] employee. . .
.”
K.S.A.
46-228 defines “special interest” in the following
manner:
“ ‘Special
interest’ means an interest of any person . . . in the action
or non-action of any state agency or state officer or employee upon
any matter affecting such person as distinct from affect upon the
people of the state as a whole.”
Pursuant to this
statute the doctors may not solicit any economic opportunity, gift,
special discount, etc., from any person known to have a special
interest in the doctor or the agency, when the doctor knows or
should know that a major purpose of the donor in granting the gift
could be to influence the performance of the doctor’s
official duties. Because the pharmaceutical representatives are
attempting to sell the doctor or the agency a product, they have a
“special interest” in the doctor and the agency and
could be trying to influence the performance of the doctor’s
official duties. Consequently, pursuant
to K.S.A. 46-236, the doctor may not
solicit gifts from pharmaceutical representatives even though the gift
would become the property of the State.
In conclusion, 1)
pursuant to K.S.A. 46-237a(b), the
doctors are prohibited from accepting gifts given to them in their
personal capacities. They may, however, accept unsolicited gifts
given to and accepted on behalf of the agency which become the
property of the agency; 2) pursuant to K.S.A. 46-237a(c) the
doctors may not accept free or discounted meals, although they
could consume the meal and listen to the presentation, but he or
she must pay to the host, the fair market value of the meal
consumed; 3) finally, pursuant to K.S.A. 46-236, the doctors may not
solicit gifts from the pharmaceutical representatives even though the gift
would become the property of the State.
Sincerely,
Daniel Sevart,
Chairman
By Direction of the
Commission
DS:VMG:dlw
