Facilitating Payments

Let’s say you are a trucker.  And you have arrived at your destination in Canada to deliver a load of paper.  The official at the paper plant says quite plainly – “you may not unload your truck . . . . unless you give me fifty dollars.”  You hem and haw and he tells that unless you fork over the fifty, you will have to drive back to Oklahoma City.  You then agree and hand him a fifty dollar bill.  Is that a bribe? 

You want to influence a public official to admit only your company’s product into a particular city in Costa Rica.  You offer the official a thousand dollars to keep your competitors out of the city.  She accepts the grand.  Is that a bribe?

Answer?  The first situation is probably legal.  It might be considered a “facilitating payment” under American federal law.  The second is a bribe.  Hands down.  And you can go to jail.  There is a clear difference between the two situations.  While a facilitating payment (or “grease payment”) might be considered to be a questionable business ethic, there is nothing legally wrong with it. 

A “facilitating payment” is defined by the Foreign Corupt Practices Act (1977) as a payment to a foreign official, political party or party official for “routine government action” (such as processing papers, issuing permits or other duties) which are non-discretionary which an official is already bound to perform.  The payment is not intended to influence the outcome of an official’s action — only the timing thereof.  Facilitating payments are one of the few exceptions from anti-bribery prohibitions of the law. 

I sometimes suggest to Donna that a facilitating payment on her part might be in order for my doing the dishes or organizing a closet.  Unfortunately it normally takes a bribe on my part to avoid such tasks.     

As a lawyer, I have to say – This is not legal advice (except perhaps when dealing with your spouse).