U.S. Supreme Court Says Federal Bribery Statute Permits “Gratuities”: Virginia Law Much Less Forgiving

Last month, in Snyder v. United States, the Supreme Court of the United States narrowly construed the federal anti-bribery statute.  In that case, the mayor of Portage, Indiana worked with other officials to carefully prepare a solicitation to purchase garbage trucks that favored a particular vendor.  After the vendor won the lucrative contracts, the mayor, in personal financial difficulties, went to the vendor’s office and told them, “I need money.”  He asked for $15,000.  They gave him $13,000.

Charged with bribery, the by-then former mayor claimed he’d provided “consulting” services to the garbage truck vendors. They denied any such services. On appeal to the Supreme Court, the mayor argued that he wasn’t bribed by the vendors for steering the lucrative contract to them. He was, instead, the recipient of a “gratuity.” A gratuity, given after an official provides a friendly service to a vendor, is a gesture of appreciation or a tip, not unlike a Starbucks gift card to a favorite elementary school teacher or some cookies for the mailman around the holidays.  That the gratuity in this case was $13,000 and came on the heels of a million-dollar contract award made, in the mayor’s estimation, no difference.

Relying on its obligation to construe criminal statutes strictly, the Supreme Court agreed with the mayor. (Justice Gorsuch, in his concurring opinion explicitly referenced the rule of lenity which requires strict construction against the Government of penal statutes.)

Writing for the 6-3 majority, Justice Kavanaugh reasoned that the federal statute that outlaws bribery for state and local officials only makes a gift a crime if the recipient has a corrupt intent before doing an official act. If the gratuity is received after the public official acts, then, by the terms of this particular federal statute the payment is a mere gesture of appreciation, not a bribe. For that reason, when the mayor accepted a surprisingly large “gift” after he steered the contract to his preferred vendor, he accepted a lawful gratuity and not an unlawful bribe.

Justice Jackson, writing for three Justices in dissent, disagreed with majority’s statutory interpretation. She wrote that the text of the federal statute in question expressly “targets officials who ‘corruptly’ solicit … payments ‘intending to be … rewarded” for their official acts. The dissenters, for that reason, would have allowed the prosecution even if the bribe happened after the official act.

Notwithstanding the result in Snyder, Virginia officials thinking about accepting a “gratuity” should be wary. Virginia law is materially different from the federal law at issue in Snyder. Virginia law makes a person guilty of bribery if “he accepts … from another … any pecuniary benefit … conferred … as consideration for the recipient’s decision … or other exercise of discretion as a public servant.” Under Virginia law, it is easy to imagine that a court would find that the mayor in the Snyder case accepted $13,000 as “consideration” for his efforts in steering the garbage truck contract. The bribery statute punishes the offense as a Class 4 felony with a statutory range of imprisonment of two to ten years.

Virginia officials should also consider that Virginia’s State and Local Government Conflict of Interests Act has very strict limits on acceptance of gifts. Among other limitations, it provides that “no officer or employee of a state or local governmental or advisory agency shall … [s]olicit or accept money or other thing of value for services performed within the scope of his official duties, except the compensation, expenses or other remuneration paid by the agency of which he is an officer or employee.”

Snyder v. United States narrowly construed one federal statute regulating state and local officials’ acceptance of bribes.  In that case, the Court signaled its intention to narrowly construe federal criminal statutes to guard against the risk of prosecutions where defendants are unsure whether their conduct really violates the law. That concern, whether or not properly applied in Snyder, is a healthy one.

But there is a broad patchwork of federal and state regulations that guard against public corruption.  The ruling in Snyder should not be interpreted as open season for giving and accepting “gratuities” for doing the public’s work.  Those invested with the public trust, and those seeking to do business with public entities, should remain now, as ever, vigilant that the government’s work is not corrupted by inappropriate or unlawful gifts.

If you have any questions about this post or other litigation issues, please contact Cullen at (804)783-7235 or CSeltzer@sandsanderson.com.