6.9. Gifts and Representation Policy

 

Gift means any material thing having any value given to another person as a sign of friendship or gratitude according to the international protocol, established traditions and customs. Gifts are usually given without expecting any consideration back; however, depending on the value of the gift, also whom to it was given and on what circumstances as well as for what purpose, a gift may be interpreted as an illegal advantage or a bribe; therefore, it is extremely important to know the divide between a gift and a bribe both in the public and private sectors.

Thus, a gift is a voluntary transfer of one's property to another person free of charge, with no compensation. The concept of a gift should be synonymous with the word "free".

 

A real gift can never become a bribe, and a bribe will never be a gift.

 

Service[85] means an intangible activity having material value (repair works, design, beauty, health promotion procedures, recreational services, consultations, etc.), used to satisfy specific material or immaterial need of a customer.

Hospitality means a pleasant and courteous manner of welcome, reception or service to a person, including a complex of tangible (food, drinks, bedding) and intangible (service, atmosphere, and image) elements.

 

Approach to gifts (including services and hospitality) in the public sector

 

Legal acts of the Republic of Lithuania prohibit any type of gifts, services, gratuities or hospitality expressions for the employees in the public sector if they are related to the current official duties of the employee. Granting or acceptance of such advantage, irrespective of the value of the advantage, shall be deemed an illegal act and lead to disciplinary, administrative or criminal liability proceedings.

It should be noted that the Criminal Code of the Republic of Lithuania establishes criminal liability for giving or acceptance  of undue advantage even in the value lesser  than 1 MSL (38 euros).

On the other hand, in practice both a prosecutor and a court examine each  case individually, taking into consideration  the entirety of circumstances of committed act, therefore,  it is presumable that the actions of a civil servant in acceptance  of a bribe in the shape of a bottle of not expensive alcoholic beverage for the fast issue of a certificate to the visitor (i.e. for legitimate performance in execution of  his/her   duties) would be presumably regarded as a minor violation in the court which would  exempt the  civil servant from criminal liability; however, it would be a basis to apply disciplinary liability to the person. Meanwhile, acceptance of the analogous bribe for an unlawful issue of a forged certificate (i.e. illegitimate performance in execution of his/her duties), presumably, would be regarded as a criminal offence in court and incur criminal liability[86].

 

The legal acts or their provisions, which prohibit acceptance of gifts by employees in the public sector as well as indicate how the employees must act in case of the receipt of such gifts, are provided below:

  • Article 6.470(5) of the Civil Code of the Republic of Lithuania states that a gift shall not be permitted to politicians, officials of state and municipal institutions, and other public servants, as well as to their close relatives where it is connected with the official position of the politician, official or public servant or with the performance of their official duties.
  • Paragraph 4(2) of Article 3 of the Republic of Lithuania Law on Civil Service states that a civil servant must exercise impeccable behaviour, be incorruptible, must not accept gifts, money or services, exclusive privileges and concessions from individuals or organisations that may influence him/her in performance of his/her duties as state politician or those of a civil servant.
  • Article 14 of the Republic of Lithuania Law on the Adjustment of Public and Private Interests in the Civil Service  states that:
    • a person in the civil service[87] may not accept or grant gifts or services if this may give rise to a conflict of private and public interests.
    • The  restriction referred to above shall not be applicable to persons who have accepted gifts or services pursuant to the international protocol or customs usually connected with the official duties of the person in the civil service, as well as to gifts designated for representation (symbols of the State or an institution, other symbols, calendars, books and other informative printed matter) with a value of less than 30 euros (in case  the gift specified  is valued in excess of 30 euros, such a gift shall be considered the state or municipal property. The said gift shall be evaluated and kept in accordance with the procedure laid down by the Government). 
    • A person in the civil service who personally or through intermediaries accepts a gift with the permitted value from a natural or legal person which could give rise to a conflict of public and private interests may not, for a duration of one year, participate in the preparation, consideration and taking of decisions or carry out other official duties in respect of that person.

 

Transparency International proposes to pursue zero tolerance for gifts policy and to follow the recommendations of the Chief Official Ethics Commission[88] on non-acceptance of  any gifts and/or free services if the circumstances of their acceptance  if this may  result in ambiguous  interpretations, controversial considerations on the part of the public and may create  an appearance of  conflict of interest.

 

Example. A businessman is subject to regular delay, albeit insignificant, in submission of documents on the performance of his company to the controlling state (or municipal) institution. Moreover, the company's reporting documents are completed failing to comply with appropriate formal requirements. Publicly demonstrating his “regret” and as if ”apologising” for such behaviour and believing that the state (municipal) institution, which accepts  the documents, will not qualify his negligence as a violation and take a "humane" and "non-bureaucratic" approach to the situation, the businessman leaves the documents at the reception together with a box of chocolates and a flower bouquet.

 

In such situations the civil servants who accept these "signs of personal attention" — even if symbolic or totally trivial “gifts” — inevitably face a psychological dilemma:  how to deal with this "nice person" who does not  follow formal "bureaucratic" requirements?.

 

The answer is straightforward — in this case civil servants definitely should not accept any gifts, and the businessman should not give them.

 

A "thank you" and some nice words are more than enough to show gratitude to an employee in the public sector.

 

Some of the recommended ways of saying "thank you" for polite, cultured, courteous or professional behaviour include filling in a service feedback questionnaire, writing a letter/appreciation to the head of the institution, etc. This will be a legal way of expressing gratitude, which will allow avoiding both psychological discomfort and, at the same time, show appreciation to the employee and the institution.

 

Approach to gifts (including services and hospitality) in the private sector

 

The approach to gifts in the private sector is generally more flexible than in the public sector. All organisations usually decide on their gift policy individually. However, the basic rule still counts — all gifts should be given (received) bona fide (Lat. in good faith), i.e. openly, honestly and without any hidden intentions. Moreover, organisations should prohibit any gifts, the giving or receipt of which may affect mutual business transactions, influence decision-making or allow for a reasonable suspicion of such effect.

 

In order to avoid uncomfortable situations and their unnecessary interpretations, it would be expedient for each business organisation to formalise a gift policy acceptable to it, i.e. to state in wring and publicly announce (for example, on the website of the organisation) what type and value of gifts are allowed to be given or accepted by the employees of the organisation..

Such policy is also a very valuable informative measure for all partners of the organisation, which would allow both sides to avoid uncomfortable situations in the future.

 

Few organisations impose a strict total prohibition on any type of gifts for their employees. They usually establish appropriate conditions for granting / acceptance of gifts, for example, as follows:

  • The maximum admissible value of  gifts is fixed, for example, the value whereof does not  exceed 50 euros;
  • Specific  allowable gifts are named (by providing their list) or the type and the maximum admissible value of gifts is specified, for example: office calendars, stationary, organisation's merchandise, representational souvenirs, small accessories, alcoholic beverages or tobacco products, the value whereof does not exceed 30 euros;
  • Any type of gifts in pecuniary expression, including gift vouchers or gift certificates, etc. is prohibited;
  • The rules for acceptance of gifts are established, for example: 1) a duty to report all gifts to the direct supervisor and/ or the employee responsible for ethics and the implementation of anti-corruption measures in the organisation  (the compliance officer); 2) a duty to register all gifts with the organisation's gift register and transfer the gift to the compliance officer ; 3) in case of doubt over the value of the gift or the purposes of its granting, a duty to address the supervisor/compliance officer for advice on whether to accept or decline the gift; 4) at the end of the year the organisation forms a commission to decide the fate of the gifts received during the year (which of them should be stored in the souvenir showcase, which to be distributed to the employees through lottery, donated to charity, etc.) and publishes the decision on the  website of the organisation.

 

Prior to deciding on whether to accept (grant) a gift or not, consideration should be given to the following:

  • Circumstances of granting a gift: reasons, place, time, manner and form of the gift;
  • Value of the gift, in particular, where  it is clearly seen that its value is higher than that which would allow to  be expected from the relationship with the grantor (or  grantee) of the gift;
  • Frequency and periodicity of  such grantings  (even small, but frequent gifts should raise concern);
  • The intentions of the grantor (he/she does that out of courtesy or respect, or perhaps with an intention to affect the future decisions in his/her favour, or maybe directly or indirectly repay for the decisions being made or already made);
  • If the behaviour with the grantor was not ambiguous, by the employee’s own behaviour allowing  the grantor to form a false impression that the gift was or is expected;
  • If the fact of acceptance (granting) of the gift does not provide for  a sense of potential commitment on the part  of the grantor (or grantee) of the gift;
  • If the fact of acceptance (granting) of the gift does not create any inconveniences or psychological discomfort, should it become known to all publicly (to colleagues, partners, the media, and the general public).


[85] Article 10(2)of the Republic of Lithuania Law on Services:
Service shall mean any self-employed economic activity, normally provided for remuneration, in so far as it is not governed by the provisions relating to freedom of movement for goods, capital or persons, as referred to in Article 50 of the Treaty establishing the European Community.
[86] It is noteworthy that pursuant to paragraph 1(3) of Article 3  of the Republic of Lithuania  Law on Civil Service, a person may not  be regarded as being of impeccable reputation and be employed in the civil service if such person was legally found guilty of a criminal offence in the civil service and the public interest or corruption-related criminal offence, and the period since the effective date of the judgement has not exceeded three years.
[87] Persons in the civil service  shall mean state politicians, public officials, civil servants, judges, intelligence officers, officers of professional military service, persons working at state and municipal enterprises, budget institutions and provided with administrative powers, persons working at public institutions and associations, which receive funds from the state or municipal budgets and funds, as well as provided with administrative powers, employees of the Bank of Lithuania, provided with administrative powers (performing the functions of financial market supervision, examining non-court disputes between consumers and participants of the financial market, as well as other functions of public administration), directors and deputy directors of public limited companies or private limited companies  with shares, providing more than 1/2 of votes at the general meeting of shareholders, owned by the state or municipality, as well as other persons with administrative powers.
[88] Chief  Official Ethics Commission Resolution No. KS-73 On Gifts and Free Services of 25 November 2015.