Dear Colleague:
In recent weeks a number of statements have appeared in the news media that reflect a serious misunderstanding of the work and the practices of the Committee on Standards of Official Conduct. While we are confident that the overwhelming majority of Members correctly understand the Committee and its processes, we, as the Chairman and Ranking Minority Member of the Committee, wanted to provide you with our thoughts and experiences on this important subject.
Turning first to the fundamentals, both of us devote a great deal of time and energy to the Committee’s work, and we take our responsibilities very seriously. We are absolutely committed to taking all reasonable steps to ensure that all House Members and staff comply fully with the House rules and standards of conduct. We are also fully committed to pursuing any credible claim that a Member or staff person has violated any provision of the House rules. An equally important commitment we share is to perform our Committee responsibilities on an entirely non-partisan basis, and to ensure that the Committee and the ethics processes of the House are not again used – as they were used in the past – for partisan or political purposes. All of these commitments are ones that we share as well with all of the Committee members, with whom we are proud to serve.
While conducting inquiries on possible violations of the rules is an important part of the Committee’s work, the Committee has at least two other broad responsibilities:
to educate Members and staff on the rules and standards of conduct, and to respond to their inquiries on how the rules apply in specific circumstances (and, as a related matter, to propose changes in the rules as the need arises); and
to review the Financial Disclosure Statements and the travel disclosure forms filed by Members and staff (as well as the financial disclosures of candidates for the House) for the purpose of ensuring both that the disclosure requirements are being complied with, and that the activity reflected in the disclosures is in accord with the applicable laws and rules.
Some elaboration on each of these Committee responsibilities follows.
Committee enforcement actions since 1997. Commentors on the House ethics process often note that in 1997, the House deleted from its rules a provision that gave outside organizations and individuals a limited ability to file complaints with the Committee, and they assert that as a result, there has been a severe drop-off in Committee enforcement actions. Nothing could be further from the truth, because, in fact, since 1997, the Committee has made extensive use of its authority under the rules to self-initiate inquiries. While the Committee has long had the authority to self-initiate cases, this authority has been used far more frequently since 1997 than it was prior to then.
Specifically, the Committee rules authorize the Chairman and the Ranking Minority Member to initiate informal fact-finding whenever information indicating a violation of the House rules or standards of conduct comes to their attention. Since 1997, that authority has been exercised in 18 instances.[1] Usually these inquiries were initiated on the basis of information in the news media that came to our attention directly and/or was provided by an outside organization, but some were initiated based on information provided directly to the Committee by individuals. Most of these matters are now closed, but a number of them are ongoing. In two of those instances, both of which are a matter of public record, the result of the inquiry was a recommendation to the full Committee that a formal investigation be initiated, and in both, such an investigation was completed. We noted one other informal inquiry we have undertaken in a public statement that we issued last month.
Otherwise, it has been our practice, as well as that of our predecessors since 1997, not to publicly disclose any information on these inquiries, or the conclusions that have been reached in them. The major reason for this is that our experience has been that this procedure is most effective when conducted on a confidential basis. In undertaking any inquiry, our major purposes are to learn what occurred, and, unless the conduct involved warrants a sanction, to ensure that any improper conduct ceases and does not recur. Provided that the Member or staff person involved cooperates fully with the Committee, and we are satisfied that we have obtained all of the material facts, these purposes can be achieved expeditiously, and without resort to a time-consuming, expensive formal investigation. In short, it has been our experience that confidentiality facilitates cooperation and compliance. If and when, in our conduct of an inquiry, we determine that these purposes have been achieved, we bring the matter to a close.[2]
Nevertheless, we are concerned to the extent our treatment of these matters on a confidential basis results in a perception, however incorrect, that we have taken no action on matters where there is credible information indicating a violation of the rules. As in the past, it is our intention to consider, on a case-by-case basis, whether information on the status or disposition of a particular matter may be appropriate to release.
The so-called “ethics truce”. Commentors on the House ethics process often refer to a “truce” between the parties regarding the filing of ethics complaints.[3] There was a House-imposed moratorium on the filing of complaints that was in effect for most of 1997, pending House consideration of proposed changes in the ethics process. That moratorium was in effect only until action on the rules changes was completed, and it expired once the Committee was reconstituted. Nevertheless, it may well be that Members have refrained from filing complaints, which they believed in good faith should have been filed, simply out of concern that such action would prompt the filing of retaliatory complaints against members of their own party. To the extent this has occurred, we believe that it is regrettable, and that we can assuage the concerns of any Member in that position.
To begin with, we believe that in recent years the Committee has developed a well-deserved reputation for acting in an entirely fair, non-partisan manner. Every Member can be assured that any complaint filed with the Committee will be handled in a fair, thorough and non-partisan manner. We also believe that we and the other Committee members are more than capable of identifying any complaint that is, in fact, frivolous, and of sanctioning any Member who attempts to misuse the ethics process for partisan or political purposes. It is also conceivable that some Members may have had a concern of an entirely different nature, i.e., the possibility that filing a complaint may generate other complaints, with the result that there would be Committee inquiries on matters on which the Committee otherwise would not have acted. To the extent there is any such concern, it is clearly not well founded, because of our extensive use of the authority to self-initiate enforcement actions.
Any Member considering filing a complaint should pay close attention to the applicable House and Committee rules. For example, the Committee is prohibited from undertaking an investigation of an alleged violation that occurred before the third previous Congress, unless the Committee determines that the alleged violation is directly related to one that occurred in a more recent Congress (House Rule 11, cl. 3(b)(3); Committee Rule 15(i)). In addition, the Committee will not accept any complaint that is submitted within 60 days prior to an election in which the subject of the complaint is a candidate (Committee Rule 15(h)). Furthermore, the Committee may defer action on a complaint when the Committee has reason to believe that the conduct involved is being reviewed by law enforcement or regulatory authorities (Committee Rule 15(f)). Finally, a number of specific requirements for complaints are set out in Committee Rule 15, clauses (a)-(e).
But it is important for everyone to understand that, as we indicated earlier, Member complaints are by no means the only vehicle by which Committee enforcement actions are begun. Outside individuals and organizations are free to submit to the Committee any information they wish relating to the conduct of a Member or a staff person, and as we’ve made clear, any credible information that is submitted to the Committee or otherwise comes to our attention may be used as the basis for a self-initiated inquiry.
The Committee’s advice and education efforts. We believe that the Committee’s advice and education efforts – that is, its efforts aimed at preventing violations from occurring in the first place – are as important as its enforcement activities. Thus for a number of years the Committee has maintained a vigorous advice and education program that has included issuance of numerous advisory memoranda and other publications, the holding of briefings open to all House Members and staff, holding briefings for individual offices upon request, and maintaining a staff of attorneys who are readily available to discuss the rules and respond to questions.
In addition, in response to the written request of any Member or staff person on his or her current or proposed conduct, the Committee will issue a private, formal advisory opinion letter. We especially encourage Members and staff to seek a written advisory opinion where the circumstances involved are unusual or complex.
We are very pleased that in this Congress, Members and staff are showing a greatly increased willingness to use this service of the Committee. Thus far in this Congress, the Committee has issued over 600 advisory opinion letters to Members and staff and letters providing information on the rules to outside organizations that are planning a trip or an event. The advisory opinion letters cover virtually the entire range of subjects addressed in the House rules, including gifts and travel offered to Members and staff, campaign activity by congressional staff members, the outside earned income and employment limitations applicable to Members and senior staff, conflict of interest, and the post-employment restrictions.
Review of Financial Disclosure Statements and travel disclosure forms. Yet another Committee responsibility is to oversee the financial disclosure system for House Members and staff and candidates for the House. The task of reviewing the statements is performed by the Committee staff, and staff also reviews the Member and employee travel disclosure forms that are filed under the House gift rule. In this Congress to date, staff has reviewed over 2,300 Financial Disclosure Statements, and we anticipate that the total number of financial disclosures that will be filed this year, including the candidate statements, will be about 4,000.
There is a two-fold purpose to these reviews: to ensure that the disclosure requirements are being complied with, and that the activity reflected in the disclosures filed by House Members and staff is in accord with the applicable rules and laws. At times these disclosures will indicate an action that was possibly improper, such as acceptance of impermissible travel expenses under the gift rule, acceptance of income in violation of the outside earned income or outside employment limitations, or the making of an excessive charitable donation in lieu of an honorarium. Where this occurs, the Committee requests pertinent information from the individual. Where it is determined that a violation has occurred, the Committee takes appropriate action. In the case of improper acceptance of travel expenses or outside income, the remedy has frequently included a requirement for repayment with personal funds.
At times such an action will necessitate the filing of an amended disclosure, but the Committee’s practice has not been to publicize these actions otherwise. This practice has been based on the same reasons that underlie the Committee’s general policy of maintaining its informal inquiries on a confidential basis, as explained above.
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The Committee on Standards of Official Conduct is a unique entity in the House, having a membership that is equally divided between the parties, and the sensitive nature of its responsibilities requires that its duties be performed with diligence and discretion. In fulfilling our responsibilities, we seek neither to protect Members from valid claims of improper conduct nor to needlessly harass Members. Rather, we seek simply to apply the rules in a fair, non-partisan and even-handed manner, to the end of protecting the integrity and the reputation of the House of Representatives.
We recognize that it is possible for individuals reasonably to disagree with the determinations that we and the Committee have made in interpreting and implementing the House rules and standards of conduct. But we can assure you that our actions have and will continue to reflect our best judgment on the requirements of the rules, and the needs and interests of the House. We would be happy to discuss with you any questions or concerns you may have regarding the Committee and its processes.
Sincerely,
s/ Joel Hefley s/ Alan
B. Mollohan
Chairman Ranking Minority Member
[1] As we discuss below, there are, in addition, a number of instances in which the Committee commenced an enforcement action on the basis of information contained in a financial disclosure or travel disclosure form filed by a Member or staff person that indicated a possible violation of House rules or law.
[2] Certain of these inquiries have indicated a need for the Committee to issue an advisory memorandum to House Members and staff on a particular subject, and in those instances, we have followed up by issuing such an advisory.
[3] It should also be noted that not all complaints filed with the Committee necessarily become public knowledge. There is certainly no requirement that the filer of a complaint publicly disclose his or her action, and, indeed, the decision of a complainant to refrain from making a public statement may be taken as an indication that the action is not motivated by political considerations. A provision of the House rules prohibits the Committee from publicly disclosing “the contents of a complaint or the fact of its filing . . . unless specifically authorized in each instance by a vote of the full committee.” House Rule 11, cl. 3(b)(6).