Public Ethics Law: Gifts, Presents and Donations Made to Public Officers

On November 18, 2016, the Argentine President passed Decree No. 1179/2016 (the “Decree”) which implements Section 18 of Law No. 25,188 (the “Public Ethics Act”).

Pursuant to Section 18 of the Public Ethics Act, which applies to every public officer within all branches of the Argentine Federal Government, public officers are forbidden from receiving presents, gifts or donations as a result of their work or in the performance of their public duties. The only exception is when such gifts are deemed to have been granted as a matter of courtesy or diplomatic practice. Although the abovementioned section provides for the implementation of a registry for such gifts, and the cases and means in which they must be incorporated to the State’s assets, it had not yet been fully implemented until now.

The Decree creates the "Registry of Gifts to Public Officers" and the "Registry of Trips Financed by Third Parties". In addition, it regulates the procedure for the registration of gifts to public officers, the cases and way in which these gifts will be incorporated to the State’s assets, and the procedures for the registration of trips and stays in favor of public officers.

The main provisions of the Decree are the following:

1. Prohibition and Exceptions

The Decree, in line with the Public Ethics Act, provides that public officers are forbidden from receiving presents, gifts, donations, benefits or gratuities, of things, services or goods “as a result of their work or in the performance of their public duties”. That is, when these would not have been offered if the addressee had not performed such function.

Notwithstanding this, the Decree states and defines two situations that are exempted from this prohibition:

1. Gifts offered as diplomatic practice: Considering as such protocol recognitions received from governments, international organizations or non-profit entities, within the conditions under which the Law or usual official customs admit those benefits.
2. Courtesy gifts: Considering as such presents, gifts, donations, benefits or gratuities which may be deemed as demonstrations or acts indicating attention, respect or affection towards other person, on the occasion of certain events in which it is usual to grant them.

These gifts must be included in the Registry of Gifts to Public Officers and, in principle, must not proceed from individuals or entities which: (i) perform activities regulated or audited by the agency where the public officer performs his/her duties; (ii) manage or exploit concessions, authorizations, privileges or exemptions granted by the agency or body in which the public officer performs his/her duties; (iii) are contractors or suppliers of works, goods or services for the agency or body in which the public officer performs his/her duties; (iv) procures a decision or action from the agency where the officer performs his/her duties, or (v) have interests that may be significantly affected by a decision, action, delay or omission from the agency where the officer performs his/her duties.

2. Incorporation to the State’s property

The abovementioned gifts granted to public officers shall be incorporated to the State’s assets in the following cases:

1. when their market value is greater than the amount established in the Decree,[i] i.e. ARS 4,000, at the time of the gift’s granting, or
2. when the gifts were granted as of an act of diplomatic practice have an institutional value representative of the relationship with the government or agency which has submitted it.

In these cases, the gifts shall be allocated to matters related with health, social action, education or historical cultural heritage, depending on the gift’s nature.

3. Travel or hotel expenses financed by third parties

Finally, the Decree establishes that public officers may accept the payment of travel or hotel expenses or financed by third parties if:

1. They are allocated to the organization of  conferences, courses or academic or cultural activities, or for the participation in them;
2. They do not proceed from governments, entities, individuals or agencies who are forbidden from giving gifts to public officers —as defined in point 1—; and
3. Their acceptance is neither incompatible with public officers’ functions nor forbidden by special rules.

Public officers who receive these benefits must register them at the Registry of Trips Financed by Third Parties created by the Decree.

4. Conclusion

The provisions of the Decree give certainty to the scope of the general prohibition to receive presents, gifts and donations and its exceptions, even when its interpretation, together with the Ethics Code for Public Servants (Decree No. 41/1999), applicable within the scope of the National Executive Branch, may still generate some questions.

[i] The amount established in the Decree is equivalent of the value of four modules according Section 28, Decree No. 1030/2016, i.e. ARS 4,000.