Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
December 20, 2014

Posts by C. Simon Davidson

26 Posts

December 9, 2014

The Year in Government Ethics | A Question of Ethics

mcdonnell 049 110612 445x296 The Year in Government Ethics | A Question of Ethics

The trial and convictions of former Virginia Gov. Bob McDonnell and his wife, Maureen, stood out among the biggest ethics stories of the year. (Bill Clark/CQ Roll Call File Photo)

As long as there are governments, there will be government corruption. The temptations to abuse power are never going away, and neither is human frailty, which means government ethics will remain an important issue for, well, forever.

A look back on 2014 reveals yet another year of explosive government ethics stories, scandals and legal developments. As has been the custom for the year’s final column, I asked several of the top practitioners in the field to name the biggest government ethics stories of the year. Full story

November 11, 2014

What Does a Gift Tag Have to Do With Breaking the Law? | A Question of Ethics

Q. I worked on the campaign of someone who has just been elected to the House of Representatives for the first time, and I expect to work for him in the House as well beginning in January. I recently met with some experienced staffers to learn the ins-and-outs of working on the Hill. One thing they filled me in on is how strict the gift limitations are, but what really stuck out was that the permissibility of a gift supposedly can depend somehow on the language of the tag or card that comes with it. I had trouble wrapping my head around this. Is this really true?

A. First, congratulations to you and your boss. Exciting times ahead.

As for your question: Yes, believe it or not, the language on a card attached to a gift can impact the legality of accepting it. In fact, some language on a gift tag could expose you and the donor to serious liability.

There are several sources of the limitations on gifts and other benefits members and staffers may receive, and it is important to consider them all any time you are offered a gift. One is the House gift rule. Broadly, the gift rule forbids you from accepting anything of value from anyone unless an exception applies. There is a long list of exceptions, including things such as gifts from family members, widely available opportunities and more. You should certainly familiarize yourself with the rule and the exceptions as you prepare for your job on the Hill.

But, complying with the law doesn’t end there. Just because a gift meets an exception to the House gift rule does not mean that it might not violate some other restriction. Bribery law, for example, criminalizes gifts given to influence an official act regardless of whether they might meet a gift rule exception.

The law that it sounds like the staffers you met with have in mind is a subsection of the federal bribery statute governing what have become known as “gratuities.” It provides that, as a government official, you may not accept anything of value given because of an official act you perform. Some have described it as a prohibition on a reward for an official act that has already been performed. The Supreme Court has said what makes a gratuity illegal is “a link between a thing of value and a specific official act for or because of which it was given.”

What does this have to do with gift tags? The House Ethics Manual has a few examples to illustrate.

Suppose you help introduce a bill, and you do so solely because you and your member believe it will be good for the country. Suppose also that there is a lawyer who favors the bill because it will benefit some of his clients. The lawyer sends you a small gift that meets one of the exceptions to the House gift rule, and attaches a note stating, “In appreciation for your good work on the bill.” According to the ethics manual, this would violate the ban on gratuities, and you would have to return the offering in question to the lawyer.

Another example involves a caseworker who helps a constituent with a Veterans’ Affairs claim. The following week, the constituent sends a modest restaurant gift certificate, with a note saying: “I’ll never be able to repay you for what you’ve done for me.” Again, the manual says this is an illegal gratuity and the caseworker must return it to the constituent.

In contrast, suppose during the holidays you receive a small gift from a lawyer that again meets one of the exceptions to the gift rules. This time, the gift tag says, “Season’s Greetings to you and peers!” Accepting this gift, the manual says, “is not prohibited by the bribery and illegal gratuity statutes.” This is because there is no apparent link between the gift and any official act.

Does any of this really matter? Yes.

Violations of the bribery and gratuity statues are federal crimes, and carry stiff penalties including fines and jail time. Several members who have been convicted of violations of the gratuity ban have gone to jail.

So, as you tackle all of the tasks that you and your member must accomplish to prepare for your time on the Hill, here’s one more to add to your to-do list. Learn the rules about gifts, bribery, and gratuities. They matter. And, some of them may surprise you.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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October 14, 2014

Are Members Permitted to Help Companies in Which They Own Stock? | A Question of Ethics

Q. I heard that Rep. Tom Petri, R-Wis., may face ethics discipline because he assisted companies in which he owned stock. I know that Members are not supposed to use their position for their own personal gain, but I didn’t realize that meant they are disqualified from taking action on behalf of any companies in which they might own stock. Is that really the rule?

A. No, it is not. A member’s mere ownership of stock in a company does not disqualify the member from taking official acts on the company’s behalf. But, as the Petri matter illustrates, members should take special care when they assist companies in which they happen to own stock. Exactly what that means, unfortunately, is less than clear.

In a report made public last month the Office of Congressional Ethics, which filters allegations of misconduct for review by the House Committee on Ethics, concluded there is substantial reason to believe Petri “improperly performed official acts on behalf of companies in which he had a financial interest.” The OCE therefore recommended further review by the House Committee on Ethics, which it is now considering.

There is no dispute that Petri took official acts for companies in which he owned stock. That is allowed. At issue in the Petri case is whether he did so “improperly.” That is not. Full story

September 16, 2014

Can Answering a Campaign Call Break the Law? | A Question of Ethics

Q. As an aide to a Member of the House, I have a question about the rule requiring the separation of campaign work from official House activities. In our office, we are generally careful about keeping these separate. But, one problem we run into time and again is that people outside the House are not at all familiar with the distinction. For example, we frequently receive calls or emails about the Member’s upcoming campaign at our Member’s House office. We don’t want to run afoul of the rules. But, we don’t want to ignore folks either. What can we do?

A. Campaign season is upon us! Does it ever really go away?

Yes, campaigning has become a year-round activity, and members and staffers must always be mindful of rules governing campaign activity. But, as November approaches, the increased activity and urgency makes the risk of violations grow even greater.

While there are many, many rules governing campaign activity by House staffers, your question concerns the prohibition against using official House resources for campaign purposes. Let’s take a look at that rule and see how it might apply to your quandary.

Broadly, official House resources may only be used for official House purposes. They may not be put to personal use or used for campaign activities. These restrictions derive from the general rule that congressional allocations of funds must be used for the purpose for which they are allocated.

As you point out, many House staffers and campaign staffers are familiar with the prohibition against using House resources for campaign purposes, and responsible House offices and campaigns take care to comply with it. For example, a compliant House staffer would never perform campaign activities while at work or using official House resources. Staffers who wish to work on campaigns generally know they must do so outside their congressional office and on their own time.

Unfortunately, many people who contact these offices, including constituents, are not aware of these rules. In fact, some even seem unaware there is any distinction at all between someone acting in their official capacity as opposed to for campaign purposes. So, when these people contact a House office with a campaign question, what can you do? Do you have to ignore them?

The short answer is no. The rules do not require incivility. But you do need to be careful about how you respond.

Last month, the House Committee on Ethics issued a memorandum about campaign activity that might help. It contains no new rules, but instead is a “reminder to the House about commonly encountered issues” related to campaign activity. In addition to a top 10 list of “things to remember” about campaign activity, the memorandum contains a useful series of questions and answers with tips from the committee itself.

One question is right on point. It asks: “What do I do if people call, email, stop in, or write to the congressional office about campaign activities?” The memorandum answers generally that congressional offices receiving such communications may refer them to the appropriate campaign office. Conversely, campaign offices may refer to their respective congressional offices any communications received regarding officially related matters. All such referrals, the memorandum says, should come at the expense of the campaign.

The memorandum offers several tips for how congressional offices can handle these types of communications without running afoul of the law. Broadly, it says the “best practice” is to use the least amount of official resources necessary to forward the communications to where they belong. More specifically, for calls, the memorandum says  the campaign should bear the expense of any long-distance calls in response to messages left at the office related to campaign activity. For letters, a congressional office should consider having on hand envelopes and stamps paid for by the campaign that can be used in responding to letters about the campaign to inform the sender to contact the campaign. And, for emails, congressional offices may simply forward the email to a campaign email address, and then the campaign may respond.

Note that there can be severe sanctions for those who blur the lines between campaign activity and official work, including steep fines and even jail time. When answering the phone, the rules don’t require you to be rude. Just careful.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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July 22, 2014

When Is a Tweet an Ethics Violation? | A Question of Ethics

Q. As a staffer for a Member of the House, one of my responsibilities is to run his official Twitter and Facebook accounts, and I have a question about permissible uses of those accounts. The Member occasionally likes to help political allies by making public endorsements during their campaigns. I figure it is okay to announce these via Twitter as I have seen other Members do it, but another staffer in our office said the rules might not allow it. It’s not really against the rules to tweet endorsements of other candidates, is it?

A. Are there restrictions on members’ use of Twitter? You bet there are.

The restrictions derive from a fundamental principle about the permissible uses of federal funds: “Appropriations shall be applied only to the objects for which the appropriations were made.” Put another way, when Congress allocates federal funds for a particular purpose, the funds may be used only for such purpose.

This restriction extends to resources purchased with official funds. The House Committee on Ethics has said “official resources of the House must, as a general rule, be used for the performance of official business of the House,” and not campaign or political purposes. Moreover, the Ethics Committee requires all official resources be used in accordance with the Members’ Handbook, published by the Committee on House Administration.

The rapid rise of social media in recent years has raised new questions about how to apply these rules, many of which were created before social media’s advent. According to a Congressional Research Service report, as of January 2012, more than three quarters of members had official Twitter accounts. Two and a half years later, that figure may be approaching 100 percent.

While the House Ethics Manual does not specifically address the permissible content of members’ official media accounts, the Members’ Handbook does. It allows members to establish “social media accounts,” which the handbook defines as “profiles, pages, channels or any similar presence on third-party sites that allow individuals or organizations to offer information about themselves to the public.” However, and this is important, “Member-controlled content on Social Media Accounts is subject to the same requirements as content on Member websites.”

Specifically, content of websites, and therefore social media accounts, must “be in compliance with Federal law and House Rules and Regulations applicable to official communications and germane to the conduct of the Member’s official and representational duties.” Content must not include “personal … or campaign information” nor “grassroots lobbying or solicit support for a Member’s position.”

Although not specifically addressing social media accounts, the House Ethics Manual states that “the general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking.”

Taken together, the Ethics Committee guidance and the Member’s Handbook suggest that endorsing campaigns via official social media accounts, such as Twitter, could indeed draw the attention of the Ethics Committee. While the committee has never admonished any member for sending a campaign tweet from an official House Twitter account, you should not interpret this as a license to use official Twitter accounts for non-official purposes. Social media such as Twitter and Facebook are still relatively new, and the committee has previously taken action against misuses of older forms of communication. In March 1996, the committee advised a member that he had violated rules governing the use of official resources by using a House fax machine to send a mass communication on House letterhead criticizing a potential campaign opponent.

The safer course, then, is to do what many members are already doing: Use official social media accounts for permissible official purposes, and establish other social media accounts — e.g., personal or campaign accounts — for other purposes.

Notably, the Members’ Handbook’s restrictions on the content of social media accounts do not govern these unofficial accounts. Of course, if you do go that route, it is important to remember to distinguish between official and unofficial accounts.

Specifically, the handbook states that “Members should ensure their social media URLs and account names reflect their position.” Conversely, members’ personal and campaign accounts should not give the impression that they are the members’ official account.

As you can see, in managing your members’ social media accounts, you’ve got your hands full.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

July 8, 2014

Did House Travel Disclosure Rules Change? | A Question of Ethics

Q. I am hoping you can clear up some confusion about the controversy over news that the House Ethics Committee changed the rules to limit Members’ disclosure of gifts of free travel on annual financial disclosure forms. The reactions seemed all over the place. Some said that it was a big step backwards. Others said that nothing really changed. So, what’s the story?

A. Last week, travel disclosure requirements for members and staff did indeed make news when National Journal published an article titled, “Congress Quietly Deletes a Key Disclosure of Free Trips Lawmakers Take.” According to the article, the House Committee on Ethics reversed three decades of precedent by eliminating the requirement that privately sponsored travel be included on members’ and staffers’ annual financial disclosure forms.

Uproar ensued. Ethics advocates cried foul. Bloggers blogged. Nancy Pelosi vowed to push for legislation if the Ethics Committee did not reverse its “new rule.”

But, did the committee really create a new rule?

To answer that, it helps to understand the financial disclosure process. Financial disclosure by members of Congress is governed by the Ethics in Government Act of 1978. The general idea is to enable the public to monitor potential financial conflicts of interest for members and staffers. To that end, every year members and certain senior staffers must file financial disclosure forms, revealing things such as assets, liabilities and significant transactions made during the year. The forms also require disclosure of any gifts received, including payment of travel expenses by outside sources.

For years, the House Ethics Committee has published guidance on how to fill out the forms. For trips paid for by outside sources, the guidance lists the types of trips that must be included and those that need not be. Historically, the guidance has stated that it is not necessary to include several kinds of trips that already must be disclosed on other publicly filed forms.

For example, the guidance has not required filers to include on their forms certain trips paid for by foreign government entities, which are separately reported under the Foreign Gifts and Decorations Act. Similarly, the forms do not require disclosure of political or campaign trips paid for by a federal political organization, if reported separately as an expense under the Federal Election Campaign Act.

In this year’s guidance, the Ethics Committee added another type of trip that may be excluded: trips taken in connection with official duties. Again, such trips already are required to be disclosed elsewhere. In fact, the law requires that the trips be pre-approved by the Ethics Committee and then disclosed to the clerk of the House within 15 days of the trip. The information that must be disclosed within 15 days is much more detailed than the information on annual financial disclosure forms, and is in fact available to the public in a searchable database maintained by the clerk on the same website as the financial disclosure forms.

Late last week, however, the Ethics Committee issued a memorandum announcing that it was reversing its new guidance. The memo explained the initial decision not to require officially connected travel to be disclosed on annual forms had been made to promote efficiency, as one of several changes recommended by non-partisan, professional staff in collaboration with the clerk’s office when developing the new online filing system introduced early this year. “The additional reporting of privately sponsored travel on financial disclosure reports,” the memorandum stated, “is duplicative of information the filer has already reported and that is made publicly available in the same place online as financial disclosure reports.”

In 2013, for example, the committee reviewed 2,651 financial disclosure forms. Valuable time and resources, the memorandum said, was required to identify and contact any filers who inadvertently failed to include on their forms privately sponsored travel that they had already properly disclosed elsewhere. Moreover, the memorandum stated, requiring privately sponsored travel to be included on financial disclosure forms essentially required the committee to review the same private trip three times: once before the trip for purposes of approval, again after the trip in the post-travel paperwork and then once more, in reviewing the financial disclosure forms. Eliminating the disclosure on financial disclosure forms would have reduced this redundancy.

Nevertheless, “in light of feedback we have received from our fellow Members” the committee decided to reinstitute the requirement to include the trips on annual financial disclosure forms. The committee encourages anyone looking for information about such trips to continue “to use the searchable online database of detailed post-travel filing on the Clerk’s website,” which, compared to the annual forms, contains more information more contemporaneously.

Even before the reversal last week, it was not clear whether anything significant had changed. Now, it is completely clear. Nothing has.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

June 17, 2014

Why Can’t Hill Staff Contribute to Their Boss’ Campaign? | A Question of Ethics

Q. I am a staffer for a member of the House and I have a question about restrictions on campaign contributions. I saw that Rep. Steve Stockman, R-Texas, was under investigation for accepting campaign contributions from employees of his congressional office. Generally, I know that this is not OK, but I don’t really understand why. It seems to me that congressional staffers are among those who would most want to donate to members’ campaigns. I know I’d like to donate to my member’s campaign. He could use it, and I believe in him. Why can’t I donate?

A. Last week, the House Committee on Ethics published a March report by the Office of Congressional Ethics concluding that there is substantial reason to believe that Rep. Steve Stockman broke the law by accepting contributions from donors who were employed by his congressional office at the time the contributions were made. The OCE is an independent, entity created in 2008, to screen allegations of ethics violations for potential review by the House Ethics Committee. When the OCE refers a matter to the ethics committee, the committee must determine whether to pursue its own investigation. Unless the committee elects to dismiss the matter, committee rules typically require it to publish the OCE investigative report while proceeding with its own further investigation.

The OCE report cites several potential violations of federal statutes and House rules, but your question concerns campaign contributions from congressional staff. According to the report, in February 2013, Stockman’s campaign committee received contributions from two employees of his congressional office. One was a director of special projects, and the other a special assistant. Stockman’s campaign committee, the report stated, filed Federal Election Commission reports first identifying the contributions as being made by family members of the employees — the father of the director of special projects and the mother of the special assistant. After an ethics advocacy group raised questions about the contributions, Stockman’s campaign filed two amended reports, the first attributing the contributions to the congressional employees themselves, and the second stating that the contributions had been refunded to the employees.

The report also alleges that Stockman’s office offered shifting and conflicting explanations to the OCE. Ultimately, in a January 2014 letter to the OCE, Stockman stated the employees were not in fact employed by Stockman’s congressional office when they made the contributions because they resigned before making the contributions, and then re-joined Stockman’s congressional office the next day. The allegations in the OCE report are of course just that, allegations. It will be for the ethics committee to draw its own conclusions about the evidence.

So, what’s wrong with campaign contributions to one’s employing member? Well, as it turns out, they are a federal crime. 18 U.S.C. § 603 states: “It shall be unlawful for an officer or employee of the United States … to make any contribution … to any Senator or Representative in … Congress, if the person receiving such contribution is the employer or employing authority of the person making the contribution.” In short, if you work in the congressional office of a member, you can’t donate to your boss’ re-election campaign.

According to the House ethics manual, the prohibition on contributions to one’s employing member is “absolute.” It applies “even if the contribution was entirely unsolicited and the employee genuinely wishes to make the contribution.” This means House employees may not even purchase a ticket to a fundraiser by their member’s campaign.

The ban has its roots in a host of longtime restrictions upon political activity by federal employees, such as the Hatch Act of 1939 — “An Act to Prevent Pernicious Political Activities.” While the restrictions have been eroded over the years by court challenges and legislative action, the ban on contributions to the campaign of a staffer’s employing member remains.

And, the stakes are serious. An illegal contribution to one’s employing member is not just an ethics violation. It’s a crime, punishable by up to three years in prison. So, as much as your member’s campaign may need a financial boost, it’s probably not worth prison time. Perhaps there are other ways you can help.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

May 27, 2014

Campaigns Ignore State Law at Their Peril | A Question of Ethics

I heard that a member of the House was in hot water for using a raffle to raise campaign funds. As a longtime campaign employee, this surprised me. I am nearly certain that this issue has come up several times over the years, and that the government has always confirmed that it is legal for campaigns to use raffles to help to raise funds. Why would the campaign of a member of the House now face legal problems for doing so?

Your memory is absolutely correct, at least when it comes to federal law. But, don’t forget that campaigns must comply with state laws, too. In fact, your question is an excellent reminder that election campaigns, even ones for federal office, must be mindful of state laws, not just federal.

The member in question is Tim Huelskamp, R-Kan. In March, Huelskamp’s re-election campaign reportedly sent an email to potential contributors inviting them to participate in a raffle for four tickets to early round games of the NCAA men’s basketball tournament in St. Louis. Three schools from Kansas — Kansas State, Wichita State and the University of Kansas — were all scheduled to play there. The email urged recipients: “Celebrate with me the success of our Kansas basketball teams and enter this opportunity for NCAA Tournament tickets right away.”

As you point out, federal election law generally permits the use raffles like this one to help raise campaign funds. That being said, there are specific regulations and guidance governing such raffles. Any campaign or organization considering a raffle should be sure to familiarize itself  with the federal regulations and guidance.

But, that’s not enough — the fact that a campaign fundraiser complies with federal law does not guarantee that it complies with state and local laws as well.

In Huelskamp’s case, soon after the campaign sent out the email about the raffle, he received a letter from Charles Branson, the district attorney of Douglas County, stating that the raffle appeared to be a felony under Kansas law. According to the letter, it is a crime in Kansas to run a “lottery,” and there are three elements that qualify a contest as an illegal lottery: a prize, the fact that chance determines the winner of the prize and “consideration” to enter the contest. The email from Huelskamp’s campaign stated: “A online contribution to our campaign of at least $10 … will enter you in the drawing.” And then: “The winner of these four tickets will be randomly chosen.” Branson reportedly posted his letter to Huelskamp online before the lawmaker actually received it.

The key issue with the email from Huelskamp’s campaign is that it appeared to require “consideration” — that is, people had to pay money to be eligible for the prize. According to Huelskamp’s campaign, this was an error that it promptly corrected by informing recipients of the email that no contribution or payment was required to be eligible for the drawing. The campaign also offered refunds to anyone who made a contribution upon the mistaken belief that it was necessary to be eligible. And, when the campaign announced the winner of the raffle, it stated: “For the attorneys and reporters more interested in legalese than lay-ups — this drawing was strictly voluntary and required no contribution in order to participate!”

The steps taken by the campaign appeared to satisfy Branson. In fact, they mirrored what Branson had requested the campaign do in his initial letter to the campaign. Branson issued a release stating he had received a response from Huelskamp’s campaign and that, in light of the response, his office planned no further investigation or action relating to the raffle.

“Often times, charitable organizations or other well-intentioned groups organize events which run afoul of the criminal prohibition of these types of drawings,” Branson said. “Unless we have some reason to believe there was some actual intent to operate in violation of the law, we do not usually initiate a formal prosecution.”

Of course, the fact that Huelskamp was not prosecuted should be cold comfort to other members and campaigns. The email from Huelskamp’s campaign caused him a number of problems he could have avoided, such as the time and expense of responding to a state prosecutor and the negative publicity that came with it. Moreover, it exposed him to the risk of further legal liability. In short, the takeaway for members and their campaigns is clear: Don’t forget about state laws.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

May 6, 2014

Did the ‘Kissing Congressman’ Break House Ethics Rules? | A Question of Ethics

Q. I’ve been following the story of Rep. Vance McAllister, R-La., ever since he was caught kissing a staffer, and am wondering whether he could face ethics sanctions. I can think of instances in the past where similar conduct by a member has led to ethics investigations. But, in the stories I’ve seen about McAllister, the focus has always been on political fallout — not on whether he could face ethics charges. Did McAllister violate ethics rules by having an affair with a staffer?

A. No House ethics rule explicitly forbids a member from adultery, even with a staffer. But, of course that doesn’t mean that such conduct is without risk. McAllister is experiencing firsthand the political consequences of being caught kissing a staffer on a videotape released last month. The Republican, who won his seat in a special election less than six months ago, has already announced that he will not seek re-election this fall. And several Republican leaders have urged McAllister to consider resigning.

But setting aside the political ramifications, you’ve asked whether McAllister could also face sanctions by the House Committee on Ethics. As you point out, philandering members have found themselves the subjects of ethics investigations in the past. However, in all such cases, what triggered the investigation was not the infidelity itself, but rather some other conduct related or incidental to the infidelity.

Take former Sen. John Ensign, R-Nev., who had an affair with a longtime staffer. Before news of his affair became public, Ensign was alleged to have taken actions to cover it up, including arranging for his parents to make payments to his mistress’ family totaling $96,000. It was those actions and payments, not the adultery itself, that were at issue in investigations by the Senate Ethics Committee, the Federal Election Commission and the Department of Justice. Ensign ultimately resigned before the Ethics Committee completed its investigation.

But the committee published an investigation report anyway, concluding that there was credible evidence to conclude that Ensign had violated Senate rules and federal civil and criminal laws, and had engaged in improper conduct reflecting upon the Senate. The report took pains to make clear, however, that adultery alone was not the basis for any of the violations. “Whether a person is unfaithful to his or her spouse is generally the couple’s own business to deal with,” the report said.

On the other hand, the fact that Ensign’s mistress was a staffer for the senator did play a role in the report’s conclusions as to some of the alleged violations. Given the power that Ensign had over his mistress and her husband (who Ensign also employed), and the effects the affair and its dissolution had upon them, the report concluded that there was “substantial credible evidence” that Ensign discriminated against his mistress on the basis of sex, and that her husband was also a victim of that discrimination.

This is not to say that for a member to commit adultery with a subordinate is to commit a per se ethics violation. To the contrary, adultery with a staffer has never been the sole basis for ethics sanctions against a member.

Nonetheless, the fact that McAllister employed the woman he was caught kissing could encourage his peers to request an ethics investigation. In May 2010, after Rep. Mark Souder admitted to having an affair with a staffer, a fellow House Republican from Indiana, Mike Pence (who is now governor) contacted the Ethics Committee about Souder. Speaker John A. Boehner, R-Ohio, then demanded that Souder resign, and wrote a letter to the Ethics Committee. Before the committee could take any action, Souder left office.

You might ask: If there is no rule explicitly forbidding a member from committing adultery with a staffer, on what basis could there be an ethics investigation? A fair question, but the answer is that the Ethics Committee has broad authority to investigate all potential ethics violations, and has an ace in the hole when it comes to conduct that is not specifically covered by an ethics rule. Rule 1 of the Code of Official Conduct, which is sort of a catch-all for bad behavior by members and staffers, states, “A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.”

In short, do something that might not reflect creditably on the House, and the committee might investigate.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

 

April 8, 2014

Do Campaign Finance Violations Warrant Jail Time? | A Question of Ethics

Q. I was amazed to see last month that longtime Fiesta Bowl official John Junker was sentenced to time in federal prison. He’s been a respected member of the community for decades, and I have a hard time fathoming that he would do anything that warrants time in prison. He does not seem like a criminal to me, and from what I’m told, he was accused of breaking rules about how to raise money for political campaigns. Can you really go to jail for that?

On March 13, John Junker, former executive director and CEO of the Fiesta Bowl, was sentenced to eight months in federal prison. This is someone who Sports Illustrated once named the seventh-most-powerful man in college football, and whom others have called the face of what was good about college football bowls. Junker became executive director of the Fiesta Bowl in 1990, at just 34, and helped build it into one of the premier sporting events in the country, eventually becoming the nation’s highest paid bowl executive.

Yet there he was last month in federal court in Arizona, standing before U.S. District Court Judge David Campbell, awaiting his fate.

Many in the community submitted letters urging that Junker be spared prison time. There were more than 100 such letters, including one from Jerry Colangelo, former owner of the NBA’s Phoenix Suns and MLB’s Arizona Diamondbacks, who called Junker an “important contributor and supporter of our community.” Other letters came from employees of the Society of St. Vincent de Paul, the Phoenix charity serving the poor where Junker now works.

Federal prosecutors argued, however, that prison time was warranted. “Junker’s crime is serious,” prosecutors wrote in a February court filing. “He was the leader of a multi-object conspiracy to make illegal campaign contributions, to lie to the Federal Election Commission and to defraud the United States by concealing illegal campaign contributions and lobbying expenses from the IRS.”

In 2011, Junker admitted to all of this when he pleaded guilty to one count of criminal conspiracy. Specifically, he acknowledged conspiring to solicit political campaign contributions from Fiesta Bowl employees and to later reimburse those employees in the guise of employee bonuses.

Why would someone do this? In fact, it is a classic way to try to evade laws that, at the time, prohibited corporations from making direct contributions to political campaigns. Junker stated in his plea agreement that he knew what he was doing, and that it was wrong.

“I knew … that … it was illegal for … corporations … to make donations to political campaigns,” Junker stated in the agreement, “and that it was illegal to use other people’s names to pretend that contributions being made by … corporations … were actually not being made by the … corporations.” Junker also acknowledged that he knew that, since making contributions using other people’s names was illegal, agreeing to engage in this conduct with others was also a crime.

But, he did so anyway. And, that’s presumably why he pleaded guilty to criminal conspiracy, a felony carrying a maximum of five years in prison.

His plea agreement with prosecutors provided that his prison sentence would not exceed two years. And, in the time since his 2012 plea, Junker reportedly continued to help prosecutors with their investigation, as required by his plea agreement. Prosecutors ultimately recommended a one year sentence to the court. Junker’s attorney argued in response that probation alone would suffice.

As judges often do, Campbell arrived at a result somewhere in between: eight months in prison. Campbell acknowledged that Junker has already paid a serious price for his actions, losing his job and more. But, Campbell said, Junker’s violations of law warranted a prison sentence because Junker had engaged in a conspiracy and caused his employees to commit crimes as well. As a result, even the Fiesta Bowl itself was put at risk by making false statements about campaign contributions to the government, including the IRS and the Federal Election Commission.

So, what’s the lesson here? If you ever face sentencing for a federal crime, it may help reduce your sentence that you’re a valued member of the community, that you cooperated with the government, and that others speak out on your behalf. But, it won’t necessarily keep you out of prison. A felony is a felony.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

March 5, 2014

Why Did Petri Ask to Be Investigated? | A Question of Ethics

Q. I read that Rep. Tom Petri, R-Wis., has requested the House Ethics Committee to investigate himself. I know that members call for ethics investigations from time to time, but, I don’t recall if I’ve ever heard of a member asking for an investigation of himself. As I understand it, responding to an ethics investigation can be time-consuming and costly. Why would any member wish this upon himself?

A. What you have read is correct. In a Feb. 16 letter to the House Ethics Committee, Rep. Tom Petri did indeed ask that the committee review Petri’s “ownership of stock in companies” as well as his “actions on their behalf,” both of which were the subject of news articles attached to the letter.

One such article was a Feb. 8 Gannett Washington Bureau report about an investigation into Petri’s relationship with Oshkosh Corp., a defense contractor headquartered in Petri’s congressional district in Wisconsin. According to the report, Petri lobbied the Pentagon for defense funding, and helped Oshkosh retain a $3 billion truck-manufacturing contract it had secured from the Pentagon. Meanwhile, says the report, Petri owned hundreds of thousands of dollars of Oshkosh stock, and in fact purchased additional stock during the same period in which he was advocating on Oshkosh’s behalf.

So, why would Petri ask for the Ethics Committee to investigate this? Well, that depends on whom you ask. In Petri’s letter, he says the reason for the request is “to end any questions.” “I am distressed by the innuendo in the articles,” the letter states. And, “[i]t is regrettable, but not surprising, that many are confused by the articles.” Full story

February 18, 2014

May Staffers Write for Money? | A Question of Ethics

Q. I am a staffer for a member of the House and am considering getting a second job. My wife, who is an attorney, is pregnant with our first child, and she plans to stop practicing law so that she can stay home and raise our child. I am more than happy with this arrangement, but it will definitely be a blow to our family budget, so I am looking for ways to supplement my income. One idea was to resume my career as a writer. I wrote for newspapers and magazines before working in the House, and would like to write some magazine articles on the side after the baby arrives. I would not allow the writing to interfere with my official duties in any way. I assume this is okay, but figured I would check. May I write magazine articles for money while employed by the House?

A. First of all, congratulations! Your life is about to change in more ways than one. As for your budget, I may not have good news. Unfortunately, House rules impose tight restrictions on the extent to which members and staffers may earn outside income. In fact, the work that you have in mind may be off-limits, depending on your position and the nature of the job. Full story

February 4, 2014

Why Did the Ethics Investigation of Radel End? | A Question of Ethics

Q. I have a follow-up question to your recent column about the House Ethics Committee’s investigation of Trey Radel. Radel has since resigned from the House, and the Ethics Committee announced that, as a result, it was ending its investigation. Can you help me understand this? I would think that the mere fact that Radel resigned doesn’t mean that he didn’t do anything wrong. So, why would the Ethics Committee stop investigating him?

A. The House Ethics Committee ended its investigation of Trey Radel for one reason: It no longer had jurisdiction over him. To understand why, let’s look at what led up to the decision to stop the investigation.

In December of last year, the Ethics Committee announced that it had formed an investigative subcommittee to review whether the Florida Republican had “violated the Code of Official Conduct or any law, rule, regulation, or other applicable standard of conduct in the performance of his duties or the discharge of his responsibilities, with respect to conduct forming the basis for criminal charges of possession of cocaine in the District of Columbia, to which Representative Radel pled guilty on November 20, 2013.”

In conducting its investigation, an investigative subcommittee may subpoena documents and take sworn testimony from witnesses who may have relevant information. However, committee rules require that all investigative subcommittee proceedings take place in “executive session,” which means they must remain confidential. Therefore, except where a report is issued after an investigation, little is known about the details of ethics investigations such as the one of Radel.

On Jan. 27, Radel resigned from the House. “It is my belief that professionally I cannot fully and effectively serve as a United States Representative,” he wrote in a letter read on the House floor.

Although Radel’s resignation led many to presume that the ethics investigation would end as well, others argued that it should continue, including the advocacy group Citizens for Responsibility and Ethics in Washington. “The congressman’s resignation should in no way derail the ethics investigation stemming from this incident,” CREW said in a public statement. CREW said that many questions remained unanswered, like who introduced Radel to his drug dealer and whether he shared drugs with other members or staffers.

Nevertheless, two days later, the Ethics Committee announced that the subcommittee had indeed ended the investigation. “The Investigative Subcommittee began its investigation but was unable to complete its work before Representative Radel resigned from the House on January 27, 2014,” the investigative subcommittee said. “As a consequence, the Investigative Subcommittee no longer has jurisdiction over him.”

This conclusion is not surprising. House Rules empower the Ethics Committee to investigate potential violations of members, delegates, resident commissioners, officers and employees of the House. Conversely, the committee has often recognized that members and staffers who “are no longer serving in or employed by the House … are outside the Committee’s jurisdiction pursuant to House Rule XI, clause 3(a)(2).” Thus, when a member that is the subject of an investigation resigns, the general practice of the Ethics Committee has been to discontinue that investigation.

The few exceptions to this practice have occurred where there was reason to believe that the conduct of other members and staffers was at issue. CREW has argued that’s the case here by suggesting that Radel’s dealings with drugs might have involved other members and staffers. However, while the confidentiality requirements make it impossible to know what the subcommittee discovered during its investigation, there has been no public information reported linking other members or staffers to Radel’s drug use.

In 2006, after Mark Foley resigned amid allegations of improper conduct with House pages, the Ethics Committee formed an investigative subcommittee to “conduct a full and complete inquiry and investigation into any conduct of House Members, officers, and staff related to information concerning improper conduct involving Members and current and former House pages.” There, however, the committee already had information raising questions about how specific members and staffers responded after learning of Foley’s misconduct.

Here, by contrast, it appears the committee had no such information, and concluded there was nothing left that it could investigate. In short, since Radel is no longer a member of the House, the Ethics Committee lacks jurisdiction over him.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

January 22, 2014

Why Is Trey Radel Being Investigated? | A Question of Ethics

Q. I am a House staffer with a question about the House Ethics investigation of Rep. Trey Radel, R-Fla. I know Radel pled guilty to a drug charge last year, but I’m pretty sure that the charge was just a misdemeanor. Also, I know that the House Ethics Committee automatically investigates any Member who commits a crime, but I thought that applied just to felonies, not misdemeanors. If that’s right, why is the Ethics Committee investigating Radel?

A. This is a good question because it illuminates some of the different ways in which an investigation by the House Ethics Committee can begin, whether by House resolution, the committee’s own initiative, or even by the filing of a complaint by another member.

Let’s start with some factual background. On Nov. 20, Radel pleaded guilty in District of Columbia Superior Court to a misdemeanor charge of possession of cocaine. According to court documents filed with his plea, Radel admitted to using cocaine several times and was caught attempting to purchase it from an undercover agent in Washington, D.C., in late October.

Under House rules, the charges against Radel meant that within 30 days, the House Ethics Committee was required to do one of two things. It either had to start an investigation or submit a report to the House explaining why it had decided against an investigation. These requirements were first imposed on the committee by H Res 451, which the House adopted in June 2007, the day after then-Rep. William Jefferson was indicted on 16 criminal charges in federal court related to alleged bribery. The requirements apply whenever a member is indicted or otherwise formally charged with criminal conduct in a federal or state court, regardless of the level of charge.

In several instances since the resolution was adopted, members have been charged with crimes that the committee concluded did not warrant an investigation. For example, in October last year, several members were arrested and charged with blocking passage after participating in a protest outside the Capitol. Less than 30 days later, the House Ethics Committee issued a report to the House stating that an investigation was not necessary based on the “scope and nature” of the members’ conduct. The report noted that the charges against the members were dropped after forfeiture of a $50 collateral payment.

In Radel’s case, the day after his guilty plea, before the Ethics Committee took any action, an advocacy group filed a complaint with the Office of Congressional Ethics. This is another avenue that can lead to an investigation by the committee. The House created the OCE in 2008 to screen allegations of misconduct by members. Historically, only other members could file complaints with the Ethics Committee, but the OCE was created in part to provide the general public with a vehicle to initiate allegations of unethical conduct by members and staffers. The OCE has no authority to impose sanctions but instead reviews allegations and determines which warrant further review by the Ethics Committee.

On Dec. 16, the Ethics Committee announced that it was commencing an investigation of Radel to determine whether he “violated the Code of Official Conduct or any law, rule, regulation, or other applicable standard of conduct in the performance of his duties or the discharge of his responsibilities, with respect to conduct forming the basis for criminal charges of possession of cocaine in the District of Columbia, to which Representative Radel pled guilty on November 20, 2013.” Thus, the OCE’s review was no longer needed.

Incidentally, even in the absence of H Res 451, the Ethics Committee still could have begun an investigation. House rules allow the Ethics Committee to exercise its investigative authority “on its own initiative.” To do so, the committee “may consider any information in its possession indicating that a Member, officer, or employee may have committed a violation of the Code of Official Conduct or any law, rule, regulation, or other standard of conduct applicable to the conduct of such Member, officer, or employee in the performance of the duties or the discharge of the responsibilities of such individual.”

On the other hand, if the charge against Radel had been a felony — as opposed to a misdemeanor — you are correct that the rules would have required the committee to investigate, regardless of its desire to do so. In short, House rules require an Ethics investigation after a member is convicted and sentenced for a felony but leave it to the committee’s discretion as to whether to investigate members’ other involvement with the criminal justice system. Here, the Ethics Committee decided Radel’s circumstances warranted probing.

January 7, 2014

May Campaign Funds Be Used for Holiday Gifts? | A Question of Ethics

Q. Over the holidays, I saw news reports that some members of the House use funds from their campaigns to purchase holiday gifts for constituents. As a concerned citizen, this practice surprised me. I would think that money donated to campaigns should be used solely for campaign purposes. Is it really okay to use campaign funds to buy holiday gifts?

A. Great question. Answering it actually requires considering two different bodies of law: federal election law and House ethics rules. Broadly, the use of campaign funds is governed by the Federal Election Campaign Act and regulations administered by the Federal Election Commission. However, active members of the House must also abide by House ethics rules administered by the House Ethics Committee.

In most cases, the Ethics Committee defers to the FEC’s determinations on permissible uses of campaign funds. But, at least in theory, there may be instances where the Ethics Committee prohibits uses that the FEC allows. Thus, the Ethics Committee has cautioned: “A Member’s use of campaign funds for federal office is permissible only if it complies with the provisions of both the House Rules” and FEC regulations.

So, let’s start with the FEC regulations. In principle, you are correct: The regulations require that campaign funds be used solely for campaign or other official purposes. Campaign funds, the regulations state, “shall not be converted by any person to personal use.” Violations of this restriction can result in stiff civil penalties and fines from the FEC. In some circumstances, where criminal conduct is involved, misusing campaign funds can result in even harsher penalties from the Department of Justice. Former Rep. Jesse L. Jackson Jr., for example, is currently serving a 30-month prison sentence in part for using campaign funds for personal use.

The tricky question is what counts as “personal use.” The regulations define personal use as when funds are used to fulfill a commitment, obligation or expense that would exist irrespective of the member’s campaign or duties as a holder of federal office. This is sometimes referred to as the “irrespective test.” The FEC lists uses that are presumed to fail the irrespective test and are therefore typically considered “personal uses,” including, for example, a home mortgage, clothing, country club fees and tuition payment.

As you point out, recent news stories have described House members using campaign funds to buy holiday gifts. Campaigns must file reports describing the various uses of campaign funds, and some members’ campaign reports have historically described purchases of ornaments, cards and other items from the House gift shop. In many cases, the reports specify that the items are for constituents.

So are these gifts allowed? Provided certain conditions are met, yes. FEC regulations explicitly exclude “gifts” from the definition of personal use. “Gifts of nominal value … made on a special occasion such as a holiday, graduation, marriage, retirement, or death are not personal use, unless made to a member of the candidate’s family.” In promulgating this regulation, the FEC explained that candidates and officeholders frequently send small gifts to constituents and supporters on special occasions as gestures of sympathy or goodwill, and that expenses for such gifts “would not exist irrespective of the candidate’s or officeholder’s status.” The FEC cautioned, however, that the gifts must be of nominal value. Moreover, they may not be to family members because members would presumably make gifts to family members irrespective of their campaign or federal office (one would hope).

As for the House Ethics Committee, it has issued guidance which cites approvingly the FEC regulations that allow members to use campaign funds to buy gifts of nominal value on special occasions. “Such gifts,” the Ethics Committee guidance states, “may include the relatively inexpensive House or Capitol souvenir items sold by the House gift store or the U.S. Capitol Historical Society, and thus a Member may use campaign funds to purchase such nominal-value gifts for the Member’s supporters or contributors.” However, the committee’s guidance cautions that use of campaign funds for a gift is permissible only if it “serves a bona fide campaign or political purpose” and, of course, that the recipient may not be a family member.

So, to sum up, you are right that the law prohibits personal use of campaign funds. Holiday gifts of nominal value to constituents just don’t count as personal use.

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