MEMORANDUM

 

To: All Members, Officers, and Employees of the House of Representatives

From: Committee on Standards of Official Conduct

James V. Hansen, Chairman

Howard L. Berman, Ranking Democratic Member

Subject: Employment Recommendations

Date: October 1, 1998

 Many Members have expressed uncertainty about whether they may write letters of recommendation, what they may include in letters of recommendations, and whether letters of recommendation may be prepared on official stationery. The answers vary depending upon the position sought by the applicant and the Member's prior dealings with the applicant.

 

Summary Overview

This summary overview highlights the major points of this memorandum. For a more detailed explanation of the laws and rules governing letters of recommendation, please see the discussion and examples following the overview.

Competitive Service in the Federal Government

  • Although Members may include any information in letters of recommendation for competitive service positions, federal hiring officials may consider a letter of recommendation from a Member only if the recommendation is made in accordance with the following guidelines:
    1. The letter addresses only the character or residence of the job applicant; or
    2. The letter is based on the Member's personal knowledge or records and contains an evaluation of the job applicant's work performance, ability, aptitude, general qualifications, character, loyalty, or suitability.
  • Federal hiring officials may not consider a recommendation for a competitive service position if it contains direct or indirect references to the job applicant's political affiliation or membership.
Political Positions in Federal or State Governments
  • Letters of recommendation on behalf of applicants for political positions in federal or State governments need not be based solely on the job applicant's character or residence or on the Member's personal knowledge or records of the applicant's abilities and performance. Federal hiring officials may consider such recommendations without restriction on content.
Use of Official Letterhead
  • Letters of recommendation may be prepared on official congressional stationery only when the recommendation falls within one of the following categories:
    1. Recommendations for appointments to military academies.
    2. Recommendations for political appointments in federal or State governments.
    3. Recommendations for a person who has worked with the Member in an official capacity, even if the recommendation is for a job in the private sector.
 
Introduction

Members of the House of Representatives are frequently asked to provide letters 1 of recommendation on behalf of persons seeking employment or appointment to positions in the federal government, State or local governments, or in the private sector. Writing letters of recommendations for constituents is consistent with the representational duties of Members of Congress; however, when writing letters of recommendations, Members should adhere to the Code of Ethics for Government Service, which requires Members to "never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not."2 Similarly situated constituents should be treated alike.

The Committee on Standards of Official Conduct offers this guidance to clarify the laws and rules governing the ability of Members to prepare employment recommendations for positions with federal, State, or local governments and the private sector. This memorandum also addresses the use of official letterhead and other miscellaneous issues related to preparing letters of recommendation.

 

Competitive Service

As a result of 1996 amendments to the Hatch Act,3 Members may make recommendations, either orally or in writing, on behalf of applicants for competitive service 4 positions in the executive branch of the federal government.5 The statutes governing recommendations for the competitive service apply equally to administrative law judge positions, career positions in the Senior Executive Service, and any position in the "excepted service"6 that is not confidential or policy-related in nature.7

While Members may include any information in recommendations for competitive service positions, federal hiring officials may consider such letters only if the contents of the letters comply with established guidelines. Federal hiring officials may never consider a recommendation for a competitive service position that contains direct or indirect references to the job applicant's political affiliation or membership.8 The permissible contents of recommendations for a competitive service position depend on whether the Member has personal knowledge of the applicant's work ability or performance.

No Personal Knowledge Of Applicant's Work Ability Or Performance. If the Member does not have personal knowledge of the applicant's work ability or performance, the letter of recommendation may address only the applicant's character or residence.9 The hiring official may not consider any portion of a recommendation that discusses the specific qualifications of an applicant or that assesses the applicant's suitability for employment with a particular agency or for a particular job.10

Example 1: Constituent asks Member to provide a letter of recommendation to Federal Agency in connection with Constituent's application for a competitive service position. Member may provide a letter of recommendation concerning Constituent's character and residence. Hiring Official at Federal Agency may consider a recommendation similar to the following: "I have known Constituent, a resident of my State, for many years. Constituent is a fine person and has always been reliable, has shown good judgment and integrity, and is highly regarded in the community." Hiring Official could not consider any portion of the letter if it also referred to Constituent's political affiliation or suitability for employment in a particular agency or a particular job (e.g., "I would like you to consider Constituent for the currently vacant position of policy analyst in your office."). Member Has Personal Knowledge Of Applicant's Work Ability Or Performance. If the Member has personal knowledge of the applicant's work ability or performance, the federal hiring official may consider a recommendation based on the Member's personal knowledge or records that contains an evaluation of the job applicant's work performance, ability, aptitude, general qualifications, character, loyalty, or suitability.11 Such personal knowledge of applicant's work can be the result of any working association of the Member and the applicant, whether or not related to the Member's official responsibilities. Example 2: Former Staffer asks Member to provide a letter of recommendation to Federal Agency in support of his application for a competitive service position. Member may prepare a letter of recommendation based on Former Staffer's prior work performance, ability, aptitude, and character. Hiring Official at Federal Agency may consider the letter of recommendation.

 
Political

With respect to applications for "political" positions, such as Schedule C or non-career Senior Executive Service positions, federal hiring official may consider any information a Member includes in a recommendation even if the recommendation is not based on the Member's personal knowledge or records. The information permitted to be considered includes, but is not limited to, statements about character and residence, evaluations of work qualifications, statements about political affiliation, and statements about the suitability for employment with a particular agency or a particular job.

Example 3: Staffer asks Member to provide a letter of recommendation to Federal Agency in connection with Staffer's interest in a Schedule C (i.e., political) position. Member may prepare a letter to Federal Agency that endorses Staffer for the position based on various factors, including prior work performance, ability, aptitude, character, and political considerations. Hiring Official at Federal Agency may consider the letter of recommendation in its totality.

 
Postal Service

Under current federal law, Members of Congress are still prohibited from making or transmitting to the Postal Service "any recommendation or statement, oral or written" on behalf of a person under consideration for a position with the Postal Service except for a "statement" relating solely to the character and residence of such person; however, if the Postal Service so requests, a Member may provide a statement regarding the applicant's qualifications.12

 

Military Services and Academies

Under federal law, military services or academies may consider any relevant information a Member chooses to provide in a letter of recommendation. With respect to the military services, the submission of a letter of recommendation to a promotion board may be governed by regulations of the promotion board. The Committee recommends consulting the promotion board to ensure compliance with any such regulations.

 

State Governments and the Private Sector

Unless otherwise prohibited by State law or by corporate policy, a hiring official may consider any information the Member chooses to provide in a letter of recommendation for appointments or positions in State and local governments or the private sector. Members may provide statements about character and residence, evaluations of work qualifications, statements about political affiliation, and statements about the suitability for employment with a particular agency or a particular job.

Example 4: Constituent, who is a personal friend of Member, asks Member for a letter of recommendation concerning Constituent's interest in a position with Corporation in Member's district. Member may provide the recommendation and may include any relevant information; however, because many private parties are not used to dealing with Members of Congress on a regular basis, Members should exercise caution when submitting a letter of recommendation to a private company or individual to avoid even the appearance of improper or undue influence on the private party.
Letterhead

When writing letters of recommendation, Members must carefully assess whether official congressional stationery may be used to prepare the letter of recommendation. Official stationery, like other official resources, may be used only for official purposes.13 Whether a particular letter of recommendation may be considered official business, and may therefore be written on official letterhead, depends on whether the proposed letter may be mailed using the frank under the regulations of the Franking Commission.14

According to Franking Commission regulations, Members may use the frank to mail letters of recommendation for the following: 1) an applicant seeking admission to a military academy; 2) an applicant seeking a political appointment to a federal or State government position; or 3) an applicant who is a current employee, was a former employee, or has worked with the Member in an official capacity and the letter relates to the duties performed by the applicant.15

The Franking Commission broadly interprets the authority to write letters of recommendation on behalf of a person "who has worked with the Member in an official capacity." Such persons may include, among others, persons employed (or formerly employed) by a federal, State, or local government agency who worked with the Member or the Member's staff on matters relating to the Member's official duties, as well as persons working in the private sector (such as attorneys, university professors, or persons affiliated with "think tanks") who have assisted the Member's office on legislative matters.

If the criteria specified above are met, letters of recommendation may be prepared on official stationery for persons seeking jobs in the private sector as well as federal, State or local governments; otherwise, the letter of recommendation must be prepared on the Member's personal stationery.

Example 5: Social Acquaintance of Member, who has not previously worked with Member in any official capacity, asks Member to write a letter of recommendation to Federal Agency in support of his application for a competitive service position. Member may prepare a letter of recommendation but must do so on personal stationery.

Example 6: Executive Director of non-profit organization, who assisted Member with a legislative initiative, asks Member to provide a letter of recommendation to Corporation in Member's district in support of Executive Director's application for a position with Corporation. Member may provide a letter of recommendation on official letterhead and mail it by means of the congressional frank.

 
Miscellaneous Considerations

In addition to the standards and requirements discussed above, Members should be mindful of the following restrictions set forth in federal criminal statutes:

  • A candidate, including a Member of Congress, may not promise to appoint, or to use influence or support in appointing, any person to any public or private position for the purpose of procuring support for his or her candidacy.16
  • No one may promise any employment, position, compensation, contract, appointment, or other benefit provided for or made possible by any Act of Congress, to any person in return for political activity or support in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office.17
  • The knowing denial or deprivation, or the threat of denial or deprivation, of any Federal or State employment, or any employment, compensation, or benefit made possible by an Act of Congress, for the purpose of securing political contributions, services, or any other thing of value, is prohibited.18
  • No one may solicit or receive any money or other thing of value in return for the promise of support or the use of influence in obtaining an appointive Federal post on behalf of another person.19
Violations of these statutory provisions are criminal offenses and are all punishable by fines and/or imprisonment for up to one year. If a Member willfully violates the prohibition against promising employment in exchange for political support under 18 U.S.C. § 599, the imprisonment may be for up to two years. Example 7: Constituent who made a financial contribution to Member's election campaign sends Member a letter requesting a recommendation in support of Constituent's application for a political position at Federal Agency. In the letter, Constituent refers to his contribution to Member's campaign; however, he does not expressly ask Member to provide the job recommendation in return for his past financial support. Although Member may provide the recommendation and Hiring Official at Federal Agency may consider it, the Committee cautions Members against providing such a letter because, under these facts, the Member's letter of recommendation might be construed as an improper quid pro quo. Any questions on the above matters should be directed to the Committee's Office of Advice and Education at (202) 225-3787.
 

1 The provisions governing written recommendations apply equally to oral recommendations; therefore, where "letter of recommendation" is used, it includes oral recommendations as well. 
2 Code of Ethics for Government Service 5 (adopted in H. Con. Res. 175, 85th Cong., 2d Sess.). 
3 Pub. L. No. 104-197, § 315, 110 Stat. 2416 (1996). 
4 The competitive service is defined at 5 U.S.C. § 2102. Essentially, the competitive service includes all civil services positions other than statutorily excepted positions, non-career Senior Executive Service positions, and political positions. Certain positions, such as agency fellowships, do not fall within the definition of the competitive service, but agencies sometimes require compliance with the competitive service provisions when considering recommendations for such positions. The Committee recommends consulting with the individual agencies if there is any question whether a position falls within the competitive service or is governed by the same guidelines. 
5 Prior to the 1996 amendments, Members could provide only a statement related to the character and residence of the applicant unless the agency requested an evaluation of the applicant's qualifications. See Pub. L. No. 103-94, 107 Stat. 1001, 1006 (1993) (codified at 5 U.S.C. § 3303). 
6 The excepted service is defined at 5 U.S.C. § 2103. 
7 Memorandum from James B. King, Director, Office of Personnel Management, to Heads of Executive Departments and Agencies at 3 (Apr. 7, 1997) (hereafter "OPM Memorandum"). 
85 U.S.C. § 3303 and 5 U.S.C. § 2302(b)(2). 
95 U.S.C. § 3303. A recommendation under this statute based on the character and residence of the applicant may be offered only by a Representative or a Senator. 
10OPM Memorandum, at 2. 
115 U.S.C. § 2302(b)(2). A recommendation under this statute based on personal knowledge or records may be offered by anyone and is not limited to Representatives and Senators.  
1239 U.S.C. § 1002(b), (e)(2).  
1331 U.S.C. § 1301(a); Members' Congressional Handbook, page 1, Committee on House Oversight (1998) (use of Member's Representational Allowance).  
14The "Franking Commission" is properly the Commission on Congressional Mailing Standards of the House of Representatives. Any question regarding whether a particular letter may be mailed under the frank should be addressed to the Franking Commission. 
15Regulations on the Use of the Congressional Frank By Members of the House of Representatives, Commission on Congressional Mailing Standards, U.S. House of Representatives, at 12 (March 1996). Members may also send under the frank general letters of introduction that are not endorsements nor recommendations. Id. 
16 18 U.S.C. § 599 
17 18 U.S.C. § 600 
1818 U.S.C. § 601  
1918 U.S.C. § 211.  
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