If I gave a parking valet ten dollars to tend to my car while I was in a restaurant, was the ten dollars a tip, or was it a bribe?
The answer lies in the timing. If I gave or promised the money as I dropped the car off, the money was a bribe. If I simply gave it when reclaiming the car, it was a tip—a gratuity. How do I know this? Because the United States Supreme Court says so.
Bribe or tip, what difference does it make? In this hypothetical, none, because bribing a parking valet is no more a crime than tipping a valet is. But what if my payment (a) was to a city mayor rather than a parking valet, (b) was for influence in winning a million dollars in city contracts rather than tending to my car, and (c) the amount was $13,000 instead of a ten spot?
The answer to the first question—tip or bribe? —doesn’t change. It still depends on the timing. If I paid or promised it in advance, it was a bribe. If I simply paid afterward, it was a tip—or, in the terminology favored by the Court’s majority, a gratuity.
But the answer to the second question—what difference does it make?—changes profoundly. Why? Because federal law makes it a crime for a mayor to accept a bribe in return for influence on an official action worth $5,000 or more. But it’s not a crime for the mayor to accept a gratuity as a reward for the same influence on the same official action.
The case arose when federal authorities charged a former Indiana mayor ,with violating 18 U.S.C. §666, which makes it a crime for an official to corruptly solicit, accept, or agree to accept anything of value “intending to be influenced or rewarded in connection with” an official transaction worth $5,000 or more.
The basic facts were that in 2013, the city awarded a local trucking company a million dollars in contracts, and the next year the company gave the mayor a $13,000 check. The mayor insisted that the check was for consulting work and was entirely unrelated to the city contract.
The mayor was convicted, and the Seventh Circuit affirmed. On certiorari, the Supreme Court, by a six-to-three majority, ruled that it didn’t matter if the mayor had accepted the $13,000 check as a reward for influencing the award of the city contracts. Why not? Because the $13,000 check wasn’t paid or agreed to before the alleged influence by the mayor. Therefore, it was a gratuity and not a bribe. And §666 outlaws only bribes, not gratuities.
In the words of the opinion syllabus, “Section 666 [of title 18] proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.”
Does this mean it’s open season for paying state and local officials to reward them for influencing their official actions, provided payment is not made or agreed to before the action? Yes, it does, as far as federal bribery statute 18 U.S.C. § 666 is concerned.
But here’s a tip for anyone planning to tip a public official: Remember that the decision applies only to the federal bribe statute. You still need to check local and state laws.
