When is a Gift a Bribe
By Adam Graycar and David Jancsics
Some years ago, one of this article’s authors participated in a day-long workshop organized by a state governor. Among the dozen or so participants were businesspeople, nongovernmental organization people, local government people, academics and a couple of state civil servants. It was facilitated by a consultancy and a modest sandwich lunch was brought in. The participants took a sandwich and continued their deliberations, but the two civil servants left the meeting. When they returned there were still many uneaten sandwiches but they said they could not accept a sandwich from an organization that was doing business with the state government.
Did they do the right thing?
They certainly slowed the day’s deliberations as participants had to explain what had transpired in their absence. The material benefit of the gift was minor and unlikely to sway any future decision-making, but there is a principle involved and these officers stuck to that principle.
This example raises an important set of questions about gift giving and what is expected in return. Anthropologists have studied gifts, which are universal in all cultures, for a long time. Almost anything of value can be given as a gift. It does not even need to be an object with physical properties. Gifts come in different forms such as labor (for example, cooking for someone), mutual favors (including sex) or various types of symbolic capital, including prestige, honor or recognition.
Gift exchange is a fundamentally social phenomenon compared to impersonal market transactions. It generates trust, keeps social groups together and triggers reciprocity—a feeling of obligation to somehow repay it in the future. Yet, because of this social element, gifts also can be used to hide the corrupt character of a transaction. Gift-type exchanges between partners who trust each other are less risky because the delayed counter-transfer and immaterial form of the exchanged resource can blur the illegal nature of the deal and makes corruption less detectable. When found in a public administration context, the form of the gift and the reciprocity is very important. Materiality is the key: A coffee or a donut might be acceptable while two people are working over a problem, but what about a lavish banquet or a lavish trip to Hawaii?
Former Virginia Governor Bob McDonnell was indicted and ultimately convicted on charges of accepting more than $140,000 in loans and gifts in exchange for promoting the business of a political patron who was seeking special favors from the state government. The gifts included golf outings, designer clothing and a Rolex watch. Two years later the Supreme Court overturned his conviction, saying there was no proof of an explicit agreement linking a campaign donation or gift to a specific contract, grant or vote. This ruling makes it difficult to prosecute unless there is a clearly identified quid pro quo. But we know that that is not how politics works.
We wrote a paper a few years ago on this topic and made a distinction between a social gift and a bureaucratic gift. There is a big difference between a neighbor bringing home-baked cakes and cookies to a newcomer to the neighborhood and a city official who is responsible for approving construction permits being taken to a lavish lunch by a property developer, and then to a football match where he sits in a corporate box. The former gift comes from personal resources, the latter is not likely to be such.
When is a gift a bribe? When is gift-giving official policy? When is bribery (often masked and difficult to trace) official policy? The key is to be open and transparent about any gift. In essence we have four situations, which we call social gifts, social bribes, bureaucratic gifts and bureaucratic bribes.
Social gift is an exchange of private resources between individuals. In this case the organizational affiliation of the partners is irrelevant. Social bribe is very similar to social gift practices except that at least one actor brings into the transaction goods that belong to an organization. Cases of favoritism and nepotism typically fall in this category. Bureaucratic gift is a transparent and formally regulated gift form that allocates organizational resources. It tries to simulate social gifting by creating goodwill and triggering reciprocal effects between office holders in different bureaucracies. Bureaucratic bribe involves gift-type transactions in which the main beneficiary, as in the case of bureaucratic gift, is a whole private organization. Gifts—often expensive ones—to public officials from a private enterprise for government contracts or permits are typical examples here. The company’s corrupt culture often makes the employees believe this is a normal business practice. Although individuals may also profit from a bureaucratic bribe, the primary function of such non-transparent transactions is to ensure the organization’s survival. For example, San Francisco Recreation & Parks accepted hundreds of free passes from promoters to blockbuster musical events in return for permits.
All of these occur in any government setting, and it is important to know where to draw the line. Public administration involves the implementation of policies and the use of discretion in that implementation. Gift-giving is a universal phenomenon and will always persist, but if it is done to the detriment of quality decision-making our whole enterprise suffers, not to mention the public we serve.
Author: Adam Graycar is professor of public policy and director of the Stretton Institute at the University of Adelaide (Australia). He has had careers in both academia and government. He has worked in universities in Australia, Europe, USA and Asia. He can be reached at email@example.com.
Author: David Jancsics is associate professor at the School of Public Affairs at San Diego State University. His research interests include corruption and informal practices. He frequently consults with international organizations and NGOs such as the United Nations, U4 Anti-Corruption Resource Centre and Transparency International. He can be reached at firstname.lastname@example.org.
This article was first published by the American Society for Public Administration in PA Times on 11 April 2022.