April 12, 2000

Under an amendment to the House rules that was approved at the beginning of this Congress, consultants to the House, including consultants to House committees, were made subject to certain basic provisions of House Rule 24, the House Code of Official Conduct. Specifically, any individual whose services are compensated by the House pursuant to a consultant contract –

• must at all times conduct himself or herself in a manner that reflects creditably on the House,

 

• must adhere to the spirit as well as the letter of the Rules of the House and its committees,

 

• may not receive compensation and may not permit compensation to accrue to his or her beneficial interest from any source, the receipt of which would occur by virtue of influence improperly exerted from the consultant’s position with the House,

 

• may not accept any gift except as provided in the House gift rule (clause 5 of House Rule 26),

 

• must perform duties for the contracting committee that are commensurate with the compensation received by the consultant,

 

• may not discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, disability, age, or national origin, and

 

• must execute a confidentiality oath before receiving access to classified information.

The points set forth above reflect the substance of clauses 1 through 4, 8, 9 and 13 of House Rule 24. Under clause 14(b) of House Rule 24, a consultant is deemed to be "an employee of the House" for the purposes of those specific provisions of the House Code of Official Conduct.¹  Explanatory material on the rules amendment regarding consultants is set forth in the Congressional Record of the date on which the amendment was approved, January 6, 1999.²  As those materials reflect, this amendment was proposed by the Committee on Standards of Official Conduct on a bipartisan basis.

Among the authorities granted to the Standards Committee by the House rules is to investigate, make reports and take other actions with regard to alleged violations of the House Code of Official Conduct.³  With the above amendment to the House rules, this authority now extends to consultants.

This memorandum has three purposes:

 

• To bring these new provisions of the House rules to your attention, so that you and any consultants whom you are considering retaining will be aware of them;

 

• To provide you with the Committee’s general guidance on three matters: (1) lobbying by consultants, (2) acceptance of gifts by consultants, and (3) confidential financial disclosure by consultants; this general guidance is set forth below; and

 

• To note that the Committee is also available to provide a confidential advisory opinion that addresses the application of these rules and standards of conduct in specific circumstances;⁴  such an advisory opinion may be requested by a current or prospective consultant, or by the employing authority.

It should also be noted that under 2 U.S.C. §72a(i), a House committee may retain a consultant only with the prior approval of the House Administration Committee. The Committees’ Congressional Handbook issued by that Committee includes a set of regulations governing the retention of consultants.⁵  Any questions on those regulations should be directed to the House Administration Committee.

Considering the important and highly visible tasks that have frequently been assigned to individuals retained under consultant contracts, the Standards Committee interprets the Code of Official Conduct, as a general matter, to prohibit consultants – that is, individuals whose services are to be compensated pursuant to a consultant contract – from lobbying Members, officers or employees of the House on behalf of any other client during the term of the contract.⁶ 

The Committee’s conclusion on this point is predicated on the provisions of the Code of Official Conduct requiring that Members and staff, including consultants, conduct themselves at all times in a manner that reflects creditably on the House, and prohibiting the receipt of compensation occurring by virtue of influence improperly exerted from one’s position with the House (clauses 1 and 3 of House Rule 24). This conclusion also reflects the Standards Committee’s long-standing advice that Members and staff should avoid situations in which even an inference might be drawn suggesting improper action. Moreover, it is clear from the legislative history of the above-noted amendment of the House rules that the amendment was motivated primarily by objections to lobbying of the House by consultants.⁷ 

The Committee has long advised that House Members and regular staff may not lobby Congress on behalf of private outside organizations (see p. 322 of the House Ethics Manual, 102d Cong., 2d Sess. (1992)). In addition, the Senate Select Committee on Ethics prohibits Senate committee consultants from lobbying the Senate during the term of their contract. Accordingly, under the guidance set forth here, House consultants are subject to restrictions similar to those already applicable to House Members and regular staff, and to Senate consultants.

Often consultants (in contrast to regular staff) are members of a firm, and other members of the firm lobby the House. Accordingly, certain reasonable restrictions relating to the activities of other members of the consultant’s firm are also in order. As a general matter, the Standards Committee considers the following restrictions to be reasonable and appropriate:

 

• each such consultant should establish an "ethics wall" to isolate his or her work on behalf of the contracting committee from any lobbying activity of the other members of his or her firm before the House;

 

• during the term of the contract, other members of the firm should have no involvement with the activities of the contracting committee (including, for example, counseling or representing witnesses) and should not lobby the contracting committee (including its members, staff or others providing services to that committee); and

 

• the other members of the firm should not mention the name of any of its affiliated individuals who are providing services to a House committee in any contact that they may otherwise have with any House Member, officer or employee on other, unrelated matters.

The Senate Select Ethics Committee imposes virtually identical restrictions on Senate committee consultants who are members of a firm.

As noted at the outset of this memorandum, consultants are also subject to the House gift rule, which is set forth in clause 5 of House Rule 26. Under the gift rule, a consultant – like any House Member or regular staff person – may not accept any gift except as specifically provided in the rule. The rule governs the acceptance of virtually anything having monetary value, including services, travel, meals, and tickets to sporting events and shows (clause 5(a)(2)(A) of House Rule 26). Thus, prior to commencing service under a consultant contract, an individual should carefully review the provisions of the gift rule and should contact the Standards Committee staff as any questions arise.

Practically speaking, the major effect of extending the gift rule to consultants will be to inhibit their acceptance of gifts that are motivated by their position with the House. The Standards Committee anticipates that consultants will have relatively little difficulty in distinguishing such gifts. The gift rule includes a number of provisions allowing the acceptance of gifts that are motivated by some factor other than one’s position with the government.

For example, one provision that consultants may find particularly useful is that allowing the acceptance of benefits that result from one’s outside business, employment or other activities and are not offered or enhanced because of one’s position with the House (clause 5(a)(3)(G)(i) of House Rule 26). There is also a provision allowing the acceptance of gifts offered by an individual on the basis of personal friendship, and that provision includes criteria to be used in determining whether a gift can validly be considered a personal friendship gift (clause 5(a)(3)(D)). In addition, there are provisions allowing the acceptance of gifts from one’s relatives, gifts from Members, officers and employees of the House or Senate, and anything paid for by a Federal, state or local governmental entity (clauses 5(a)(3)(C), (F) and (O)).

The gift rule also includes a general provision allowing the acceptance of any gift (other than cash or cash equivalent) having a value of less than $50 (clause 5(a)(1)(B)). Under this provision, an individual may not accept, from any one source in a calendar year, gifts having a cumulative value of $100 or more, but gifts having a value of less than $10 do not count toward this annual limitation. Gifts that may be motivated by one’s position with the House may be accepted under this provision, although in no event may any government official accept a gift that is linked to any official action that the official has taken or is being asked to take.

The above-noted amendment to the House rules on consultants does not subject consultants to the requirements of House Rule 27 on the filing of public financial disclosure statements. The Standards Committee did not recommend that consultants be required to file public financial disclosure statements. In the Committee’s view, such a requirement would be inappropriate for consultants, who serve the House on a relatively short-term basis and hence are expected to maintain their outside business activities.⁸ 

It is equally clear, however, that a contracting committee would not be in a position to evaluate a prospective consultant’s compliance with conflict-of-interest rules without having certain basic information on his or her financial interests. Similarly, when the Standards Committee is asked for an advisory opinion on a committee’s proposed arrangements with a contractor, it will be unable to render a complete opinion without having access to such information. But such information need not be as extensive as that required by the House of Representatives Financial Disclosure Statement, and the purposes here can be served by submission of the information on a confidential, rather than a public basis.

Accordingly, the Standards Committee strongly recommends that each committee, prior to entering into a consulting contract, obtain, at a minimum, the following information from the prospective consultant(s):

 

• each of the individual’s current sources of earned income, the type of income (e.g., salary, partnership income, director’s fee), and the rate at which he or she is compensated;

 

• the identity of each client for whom the individual is currently providing services, and of each client for whom he or she anticipates providing services during the term of the committee contract; and

 

• the nature and value of any investment or liability held by the consultant that could be affected by or is in any way related to the duties that the individual would perform for the committee.

The contracting committee should also obtain the commitment of a prospective consultant to inform the committee promptly regarding any such source of earned income, client or investment that he or she obtains during the term of the contract.

Where a committee or a consultant requests an advisory opinion from the Standards Committee on a consulting arrangement, the Standards Committee will request that, at a minimum, the above information on the consultant be provided to it.

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Any questions on the rules and standards of conduct governing consultants should be directed to the Standards Committee’s Office of Advice and Education at extension 5-7103.