Giving or Receiving Unlawful Gratuities in New York
Any money that is given as a “gift” or in exchange for a favor can be considered a bribe. The money that is given to an official who is not being paid directly by you for services is considered a bribe. Not only is the act of giving money a criminal offense but you may also be punished for unlawfully receiving funds.
Who is at risk?
You place yourself at risk when you receive a tip or source of payment when you are not being paid for services or goods provided. This can include gifting to influence officials in your favor. When receiving funds from an illegitimate source, it should be carefully evaluated to ensure that the funds are being provided in a legal fashion.
If at any time you feel as though the funds you are receiving are questionable, it is best to consult with an attorney or inform law enforcement of the contribution. If you are providing funds to a source, it should be carefully considered why you are giving them a donation and if it could be construed as though you are influencing the individual.
In New York, Article 200 sets out the offense of bribery. It clearly states that providing or receiving funds to (or as) a public official is illegal. There are consequences that are dependent based upon the amounts and intentions.
The state has determined that receiving or giving funds in order to gain an edge, influence, or provide funds when they are not due. As stated in Article 200, section 200.3 and 200.35, funds cannot be donated in order to gain benefit in an official setting.
Members of public service are clearly stated in both statutes of the law not to receive any funds or gift them inappropriately. When receiving funds, it cannot be to benefit the source of the donation.
A judge would be unable to accept a gift from an attorney that they have an open case with. This conduct would be seen as an obvious attempt to sway the opinion. When on trial for any civil or criminal matter, there should not be any conversing with any members of the jury. To provide any of the jurors, any sort of gift or funds would be considered illegal.
To attempt to sway the opinion of any member would be considered tampering. Any conversation with any member would have to be reported, and the jury re-selected to prevent an unfair trial.
Per the New York Penal code, it defines giving and receiving gratuities in the same light. A public servant or official refers to any individual who is employed by the government and has any sort of authority. For example, judges, police, and lawyers are considered public officials. These individuals have the power to make decisions that affect the lives of other individuals.
The next piece states that they cannot make any kind of deal, receive money, or any sort of compensation for doing their job. When performing their duties, for example, on a trial, the members as expected to remain unbiased and be paid for services through their employer, the government. Here is an example:
- If the prosecution were to accept or make any deal for the defendant to receive a lighter punishment in exchange for the money, it would be considered receiving unlawful gratuities.
On the other hand, should you receive an offer from the defendant to pursue a lighter charge for money, then this would also be unlawful gratuities. These are classified in the same section of the law of bribery and can be a very dangerous slippery slope.
It is best to avoid receiving gifts from questionable sources or in exchange for favor as it could lead to this charge. Any gifts or monetary gains should be directly from the employer, allowed sources, and reported when applicable. This law does contain certain elements that must be proven by the prosecution in order to pursue charges.
Element #1 A public servant knowingly accepting an offer or benefit
The first element of this law states that you must be someone in public service, meaning you have some sort of authority. You cannot engage in any sort of agreement. You cannot accept funds, gifts, or donations that could cause a sway in opinion or to grant an advantage. This is clearly stated in the law and is an offense.
An example of this would be to offer an officer a tip to not perform traffic stops or stage on your block. This would allow you to speed as you wish and causes a risk for the public. Though you would have the freedom like the Autobahn, it would place every other driver and resident in the area to be in danger as you drive too quickly to stop for the school crossguard at the bottom of a hill.
Element #2 You receive/give compensation for performing your/their role
This element pertains to being given a tip, bribe, or gratuity that you do not deserve. In the role of a public servant, you receive payment from the government or other applicable employers. They are responsible for your salary and not the opposing party. This prevents unfair treatment while you are performing your job. This means that there should be no tip for doing your job.
An example of this would be to provide the prosecutor, in this case, we’ll say the district attorney, with a campaign donation to help with their reelection in exchange for them investigating your competition to scrutinize and find an illegal activity that may not exist. This would also be filing a false report and would distract them from performing their already overwhelming role.
From another perspective, if you are working as a public defender and receive a “bonus” from a lawyer who you commonly are in a trial against, then this would be considered illegal. It could cause you to be swayed and favor them in a case where you should be focused on your client instead of the cash they gave you.
Side Note: Bribe vs. Gratuity
It is also critical to note the difference between a bribe and a gratuity as they are similar, but not the same. The big difference is the intention.
A bribe is given in exchange for (quid pro quo) something to be done. There has to be physical or tangible proof that money or services were exchanged to benefit one. A gratuity is given to an official because they are doing a specific thing or did a specific thing. Here is an example:
- You donate to a political campaign and hope that the candidate achieves and delivers on promises. This is completely legal. However, if we change the example to you donate to a political campaign because the candidate says he is going to pass a specific bill that helps you out (ex tax cuts), that is a gratuity.
This is illegal. Finally, if the example changes to you met with the candidate and wrote him a check so that he will vote for a specific bill to benefit your company. This is a bribe. This is also illegal.
The difference lies in the proof and the intention. There is nothing illegal about donating to a cause or campaign to assist them in winning, but it cannot be because of that bill. You can give for the cause but not for one specific act or a promise to commit that act, and this is where the law draws a line in the sand.
Under the United States Code, found in 18 US Code Section 201, it details the components of payments to public officials in the form of bribes. It states that any member of any type of public service (it defines public official: any individual from any form of government work that has authority) that receives or gives any sort of favor is fined three times the amount.
The code includes jurors in this as well. This prevents them from receiving compensation for their opinion. The code clearly states that anyone that makes an offer to a public official or a public official who seeks out is liable. The favor can be any tangible or not form of payment. This can be achieved via payments, a vote, change of opinion, or anything of value. Due to the wording of the code, it also covers bribes that are offered but not paid.
This law is very inclusive and detailed about any form of giving, getting, planning, talking to, or even looks to make money in the form of influence. It is designed to cover cases of corruption and is detailed on purpose.
As previously discussed, bribery and gratuity are very similar in nature. When receiving funds or giving, it must be taken into consideration the reason why and where the funds come from and what they are given for. These three pieces of information can be the factor that turns a donation from legal to illegal.
Similar charges to unlawful gratuity to a juror would be tampering with a juror or bribery. When this occurs, it causes the jury to have to be reselected. A jury is meant to be a neutral deciding factor. It would not be appropriate or fair if they were swayed by gifts and money.
Cases that involve bribery and unlawful gratuities attract large media attention. These individuals receive these charges amongst others and are brought front and center to the public eye. These charges are often with larger corruption cases. In the two following examples, cases of unlawful gratuities are charged to a variety of individuals.
- The first example case includes a plethora of individuals and charges. Over 50 businessmen and officials were indicted over charges of bribery, unlawful gratuities, and official misconduct. Many of these individuals settled and plead guilty to felony charges to avoid imprisonment. Others are facing up to for years for these crimes.
These bribes and gratuities were associated with city workers overlooking and dismissing violations. This allowed for those involved to retain the money that was meant to go to the repair of older buildings. Fines from all individuals, prison sentences, and community service have been issued to recover the losses.
- The second case involved Marlene Mizzi when she worked for JFK airport. She was an assistant supervisor. Despite regulations that foreign planes must depart two hours after the initial landing, Mizzi allowed many planes to stay longer, notably many from Qatar.
She received gifts of wine, dinners, a watch, and several limousine rides in exchange for allowing them longer times and to even stay overnight. She has the possibility for up to four years in prison from charges of bribery, unlawful gratuities, and official misconduct.
Both of these cases involve unlawful gratuities that occur in multiple fields. The construction workers, businessmen, and even a supervisor at an airport received these charges. The first case involved a large scheme which had many levels of involvement and components to make it function.
The second case was a single individual who granted special privileges to foreign countries aircraft that placed their interests above the American people’s interest.
Who Investigates these cases?
In addition to complaints filed to law enforcement, New York has its own Department of Investigation (DOI). They focus on gathering the evidence, working on new legislation, and even reforms to catch those who illegally benefit.
In New York, there is also the Office of State Comptroller who investigates fraudulent claims. This department has a heavy focus on the financial welfare, spendings, and taxes associated with the state. They also report fraud and investigate the financial aspects and losses that occur.
Finally, the FBI can assist state agencies in their search and investigations. This agency has many tools at its disposal, including technology, funds, and manpower to assist in these investigations and to stop them. All three of these agencies can work in conjunction or independently to find cases of unlawful gratuities, fraud, and corruption.
Should you be charged with unlawful gratuities, giving or receiving and paying a juror, it is important to understand the maximum charges that can be applied. With giving unlawful gratuities, receiving unlawful gratuities, and providing unlawful gratuities to a juror, all three are classified as class A misdemeanors.
This is the worst level of misdemeanor and merely a step away from a felony. As a misdemeanor, the law states you cannot be placed in prison for more than 1 year. Since it is not a felony charge, there is no loss of civil rights such as voting or gun ownership. However, this charge does stay on your criminal record, meaning it will appear on routine background checks.
This can cause difficulty in gaining employment in some fields or services. Fines can also be imposed. These can be up to $1,000 or double the amount that was given/received.Though not as life-altering, these charges still remain a part of your record. It is critical to note that this can also cause higher/harsher penalties if you were to commit any further illegal activity.
There are notable instances when giving money as a gift is legal. Anyone can donate to a charity, political campaign, or organization. The donation itself is not illegal. However, the intent for the donation is what leads to a problem. The primary defense to unlawful gratuities is a lack of intention. Funds can be donated to a cause as long as they are not as a reward for performed actions or to guarantee action by the individual.
As long as the funds are not meant as a promise for a favor or as a reward for one, the donation is legal. Proving the intention of the donation allows for your lawyer to argue that you were making a charitable donation rather than a payout in exchange for a vote or a reward to a public official performing their job. Once this is determined, it can no longer be considered an unlawful gratuity or bribe.
Other defenses revolve around how evidence was obtained, were you coerced into giving the funds (meaning you did so under duress), or a lack of evidence to connect you and the funds to an individual and specific act. These defenses are very complex and involve an in-depth knowledge of the laws. It is critical to consult with an attorney rather than attempt to wade through these sections alone.
Why get a Lawyer?
In simple: because you don’t want to go to jail or pay out a lot of money. These cases affect your background record for the rest of your life. This mark, like a scar, is available to all who look for it and can cause hardship down the road. Though the prison sentence is shorter than some crimes, with a maximum penalty of 1 year, an attorney can help to negotiate on your behalf to save you time behind bars.
An attorney can help to prepare your defense, stand in your place to negotiate and be able to determine the best strategy for your individual circumstances. Going to court is stressful enough for minor traffic infractions, to be tried in court over criminal charges can be even worse.
The stakes are higher with permanent remarks on your record. And the fines are much larger in sums of one thousand rather than a few hundred. A lawyer being present for your defense shows how serious you take these charges. They can speak on your behalf to have charges lowered or even dropped. Call today to begin working on a plan for your trail and rest easy knowing we have a strategy to help you.
- Marlene Mizzi is charged with:
- Official Misconduct
- Unlawful Gratuities
She was an assistant supervisor at JFK airport. She allegedly provided favors for foreign countries, especially Qatar, that violated the airport policies. The airport regulations state that a foreign country cannot stay longer than 2 hours. This allows for time to refuel and get supplies.
However, Mizzi allowed them longer stays, overnight parking, and favorable treatment in exchange for wines, limousine rides, expensive gifts, and travel opportunities. She approved the extra time without approval, and at times an aircraft was noted to have parked for days.
There is a clear policy at her position that does not allow for tips, gifts, or additional compensation. This placed her in direct violation for her position and for charges. She has been suspended from her position and is awaiting trial for multiple counts of each charge.
- David Daughtery is charged with:
- Unlawful gratuities
- Conspiracy to commit wire fraud and bank fraud
- Disability fraud
He pleads guilty on Aug 25, 2017, to two counts of receiving unlawful gratuities and was sentenced to four years in prison. He was a part of a larger scheme to commit a fraud involving the Social Security Department.
The individuals in the claim submitted false medical documentation for payment on thousands of patients’ records for procedures that were not performed. The individuals attempted to defraud them of $550 million dollars and when discovered, tried to flee the country.
- Stephen Kremer was charged with:
- Receiving unlawful gratuities
- Larceny of government funds
- Official misconduct
Kremer was involved in NASA as a Chief of the Range and Mission Management Office. In his roles, he was required to travel to various test sites, including one in Norfolk, VA. At this home, he was furnished with everything for 1 week through an employee of a subcontractor agency.
However, Kremer made a deal with a subcontractor agency for furnishings and personal gift cards in exchange to be used in exchange for staying at home. By allowing him to stay in the home free of charge, his agency was chosen to provide furnishings for the offices and other interior design aspects.
He pleads guilty to receiving the illegal funds and theft of government resources. He faces a maximum of 10 years in prison. He has not been sentenced at this time.
- John Thesis was charged with:
- Receiving illegal gratuities
- Impersonation of a US officer
Thesis was working with the Immigration Department as an officer (his title was ISO-Immigration Service Officer). He was responsible for reviewing documentation provided by immigrants, reviewing citizenship cases and granting permanent residence, with secondary approval.
In his role, he was known to accept cash in exchange for an advantage in their case. He also gave advice and offered legal aid to some of the victims, in one instance receiving $500 for taking a picture of the application for a green card and supplying it to an alien. \
Over his times, he managed to obtain over $16,000 in gratuities. He faces trial and has already been ordered to pay back the money he received in a false disability claim.
- Dennis Toenjes was charged with:
- Receiving Unlawful Gratuities
Toenjes was working on an Air Force Base where he received compensation from an asbestos company. They performed work at the base in removing the asbestos. The owner of the company paid for Toenjes’ vehicle repairs and repairs to his personal heat and cooling.
Due to the nature of his position and the offer, he was found guilty and sentenced to 3 years of probation for accepting the gifts.