March 4, 1998

MEMORANDUM FOR ALL MEMBERS, OFFICERS AND EMPLOYEES

FROM: 

Committee on Standards of Official Conduct
  James V. Hansen, Chairman
  Howard L. Berman, Ranking Democratic Member 

SUBJECT: 

Answers to the "Top 20 Questions" 

An important part of the Committee's work is responding to questions from Members and staff regarding House rules and standards of conduct, and the Committee receives numerous inquiries of this nature over the phone, through the mail, and in the course of briefings and other appearances. In this memorandum we have compiled what we believe to be the "top 20 questions" presented to the Committee in recent months, and the responses to those questions. 
These questions are not necessarily the ones that are raised most frequently to the Committee. Instead, they are ones that concern important provisions of the rules, with which Members and staff should be familiar. At times the same basic question can arise in a number of different contexts, and in those instances, we have phrased the question in terms of one of the possible contexts. 
Not surprisingly, many of the questions concern the gift rule and, with an election year now underway, the matter of political activity. Other questions concern, for example, the proper use of stationery, and Member and staff relationship with outside organizations. The Committee also receives many questions on travel by Members and staff. However, with one exception, travel questions are not addressed here, for the reason that the Committee issued a detailed advisory memorandum on travel in December. 

Gift Rule Questions 

1.  A state university in the Member's home state has offered the Member tickets to one of its basketball games. Can the Member accept? 
Yes.  Acceptance of the tickets is allowed under the provision allowing the acceptance of things paid for by the Federal Government, or by a state or local government. A ticket to a sporting event may also be accepted from a relative, or where the offer is made by an individual on the basis of personal friendship with the Member or staffer. Otherwise, however, free attendance at a sporting event - including a sporting event of a private college or university - is rarely permissible. Instead, a Member or employee must pay market value for tickets. In general, the Committee considers the market value of such a ticket to be its face price. However, special considerations apply with regard to valuing tickets for "skyboxes" and other seats that are acquired under a lease. Questions regarding the value of those tickets should be directed to the Committee. 
2.  A representative of a corporation has called to invite the Member to dinner, at which he will give the Member a campaign contribution from the corporation's political action committee. He proposes to pay for the meal and treat the entire cost as an in-kind contribution to the Member's campaign. Can the Member accept the meal in these circumstances? 
No.  One of the purposes of the 1995 revision of the gift rule was to severely limit the ability of Members and staff to accept such one-on-one meals. While it is possible to read certain provisions of the rule to make a meal in the stated circumstances permissible, the Committee has declined to interpret the rule in such a manner, because to do so would undermine this basic purpose. 
3.  A long-time friend of mine who is also a lobbyist has offered me the use of his Ocean City condo for a few days. Can I accept? 
You can accept only if you determine, after considering the criteria provided in the rule, that this offer was made because of your friendship, and not because of your official position. In other words, the fact that you consider yourselves to be friends does not mean that you can accept any and all gifts that he offers to you. The rule includes three criteria for making this determination, and special care must be exercised where - as in the example given here - the offeror is someone who has interests before Congress. 
The first criterion is whether the individual paid for the gift out of his own pocket. In the example here, the question would be whether the individual owns the condo (or a share in it) personally, or is it actually owned by a business? If in fact the individual's business is paying for the gift, or the individual will be taking a tax deduction for it, then the gift must be declined. The second criterion is whether you have exchanged gifts of similar magnitude in the past. Particularly where the offeror is a lobbyist, or someone else with interests before Congress, the gift should be declined in the absence of a history of reciprocal gift giving. The final criterion is whether the individual made this offer only to you - a circumstance that makes it more likely that the offer was made on the basis of the friendship - as opposed to making the same offer to other Members or staff. 
Also bear in mind that no gift exceeding $250 in value may be accepted on the basis of personal friendship without the prior written approval of this Committee. 
4.  At times when the House is in session late, an association with which the office has worked will send over pizzas for the staff. Can we accept them? 
No.  Either the food should be declined, or the staffers should reimburse the association. As noted above, the rule severely restricts the circumstances in which a meal can be accepted, and no provision of the rule allows acceptance of a meal in the circumstances stated here. 
In addition, while the rule includes a provision allowing the acceptance of "[f]ood or refreshments of a nominal value offered other than as a part of a meal," the intent of that provision was primarily to allow attendance at receptions, as well as the acceptance of the beverages and snacks typically offered at briefings, conferences and similar events. Members and staff should also bear in mind the aspect of this provision that allows acceptance of food and refreshments "of a nominal value" only. Thus the provision allows the acceptance of such things as coffee, donuts, bagels, soft drinks, and small appetizers. As to food or refreshments having a value greater than these items, however, a question can arise as to whether they are "of a nominal value." 
5.  A movie studio has invited a staff member to a screening of its latest release. Can the staff member accept? 
The staff member can accept only if the gift rule's requirements regarding "widely attended events" are satisfied. The requirements are set out in a Committee advisory memorandum to the House of March 18, 1996, and they include a requirement that attendance is appropriate to the performance of the invited staffer's duties in the congressional office. The decision as to whether attending a particular event is appropriate to the performance of one's official duties is primarily the responsibility of the staffer and the employing Member. However, especially with regard to events such as movie screenings, Members and staff should bear in mind that attendance at an event merely for one's own personal pleasure or entertainment is never related to the performance of official duties. 
6.  The Member has been invited to play golf by an acquaintance who belongs to a country club, and under the rules of the country club, the guest of a club member plays without any fee. Since the host will pay nothing, can the Member accept the invitation to play free of charge? 
No.  The Member can play only if he or she pays the host the market value for a round of golf at that country club. For purposes of the gift rule, the value of any item, service or other thing offered to a Member or staffer is its market value. Thus in the circumstances here, the actual cost to the offeror is irrelevant, and the same would be true where, for example, something offered to a Member or employee was obtained by the offeror at a "wholesale" price. 
7.  During the recent holidays, the office received a number of gifts that were perishable in nature, such as fruit, flowers, and a cut Christmas tree. Does the rule accord more leeway in the acceptance of perishables? 
No.  Perishables are subject to the same rules on acceptability as any other type of gift. The only way in which the rule treats perishables differently is with regard to the disposition of items that cannot be accepted under the rule. That is, where an office receives a perishable gift that cannot be accepted - because, for example, it exceeds nominal value and is not a home-state product - the office has the options of donating the item to a charity or discarding it. Where an office receives a non-perishable gift that cannot be accepted under the rule, the office has no choice but to return the item to the donor. (Because, under the franking laws, the frank cannot be used to return gifts, offices can return gifts through the mail only by purchasing postage stamps. Otherwise, the use of official resources to return gifts is entirely permissible.) 

Questions on Political Activity 

8.  A staffer - on his own time, and outside the office - is working on a campaign fund-raiser for the Member. He's going to the printer to pick up the invitations, and while he'll pay for them with his own credit card, he's going to be promptly reimbursed by the campaign. Is this arrangement permissible? 
No, but this is largely the result of Federal Election Commission regulations, and not House rules. Under FEC regulations, advances for campaign expenses are generally deemed to be campaign contributions, even though they're later reimbursed, and under Federal criminal law, staffers are prohibited from making campaign contributions to their employing Member. Thus in the circumstances presented in the question, the staffer would be viewed as making an illegal contribution to his Member's campaign. (The same rules apply to a staffer who is doing campaign work while on Leave Without Pay status.) 
However, the travel expenses that an individual incurs in behalf of a campaign are treated differently in the FEC regulations. Thus a staffer who - again, on his own time - travels on behalf of the campaign may pay his travel expenses himself and then receive reimbursement from the campaign, provided that the reimbursement is made within 60 days where the staffer paid with a credit card, and within 30 days in all other cases. 
9.  The Attorney General's recent statement in the case of Vice President Gore indicates that the prohibition on soliciting campaign contributions on federal property set forth in the criminal law (18 U.S.C. §607) is not absolute. In light of the Department's approach, isn't it permissible for House Members to conduct at least some fund-raising activities from or in their offices? 
No.  In an advisory memorandum to the House dated April 25, 1997, the Committee sought to make clear that on this subject, Members and staff are subject not only to the criminal statute, but also to certain other laws, and House rules and standards of conduct. As a result, notwithstanding the Attorney General's statement on the criminal statute, House Members and staff are generally prohibited from soliciting political contributions in their offices and elsewhere in the House buildings, whether in person, over the telephone, or otherwise. The prohibition extends not only to solicitations for federal campaign contributions, but also to solicitations for any other kind of political contributions, including "soft money," and contributions for state or local campaigns. 
10.  The Member will be flying to Chicago (not our congressional district) at the expense of a private corporation for the purposes of seeing the corporate facilities and meeting with its officials. The trip will comply with the provisions of the gift rule on travel in connection with official duties. While in the Chicago area, the Member would also like to attend a political fundraising dinner. Can he do so? 
Where a privately paid trip, such as the one suggested here, would include both officially related business and a federal political event, the trip is subject to two sets of rules: the travel provisions of the House gift rule, and regulations of the Federal Election Commission. Thus before beginning any such trip, it is important to determine whether the trip would be permissible under both sets of rules. The Committee understands that if, in the example given here, the fundraising dinner would be for the benefit of that Member's campaign, the trip as proposed may be impermissible under the FEC rules. 
Insofar as this Committee is concerned, mixed purpose trips are permissible. With regard to any such trip, the Member or employee must determine what the primary purpose of the trip will be. The source associated with that primary purpose - in the example here, likely it would be the corporation that the Member is to visit - must pay the airfare and all other travel expenses necessary to accomplish that purpose. Any additional meal, lodging or other travel expenses that a Member or employee incurs in serving a secondary purpose, such as attending an event of a different organization, should be paid by a source associated with that secondary purpose. In any event, where a privately paid trip will include a federal political event, it must be taken in compliance with both the House gift rule and FEC regulations. 
11.  Under the web site rules issued by the House Oversight Committee, a Member's site cannot include a link to his or her campaign web site. Can the Member's campaign web site include a link to the congressional office site? Can the congressional office site be advertised on the Member's campaign web site, or on campaign material issued by the Member's campaign? 
The answer to both questions is no. It has long been the rule that campaign contributions cannot be used to support the activities of, or pay the expenses of, a congressional office, and under this rule, the Committee has long advised that campaign materials cannot include, for example, the address or telephone number of the congressional office. There is no basis for according any different treatment to either a Member's campaign web site or the office web site address. 
12.  The Member wants to provide a letter of support for a political candidate. We know that this letter cannot be on the official stationery, and because the letter will be reprinted at the expense of that candidate's campaign, no official funds will be used to circulate the letter. In these circumstances, are there any restrictions on the content of the letterhead for such a letter? 
Yes, there are essentially two sets of restrictions. First, the institutional names "House of Representatives" and "Congress of the United States" cannot be used in the letterhead. However, the personal titles of "Congressman," "Member of Congress," and "Representative" can be used. Second, neither the Seal of the United States, the Seal of the House of Representatives, nor the Seal of the Congress may be used, and likewise the term "Official Business" may not be used. An image of the Capitol dome can be used instead. 
Please note that these restrictions apply as well to any letter that a Member (or employee) sends on behalf of any outside organization, including any charity, as well as to any letter that a Member sends in behalf of his or her own campaign. (Where a letter is being sent in behalf of one's own campaign, FEC regulations should also be checked regarding the possible need for a campaign disclaimer.) Likewise, these restrictions apply whether the letter is to be reproduced in quantity for distribution or is to be reprinted in, for example, a newspaper or an organization's publication. 
It should also be noted that the preprinted stationery bearing the seal or "House of Representatives" that is sold by the House stationery store may not be used in a manner inconsistent with the above guidance, even where it is paid for with the Member's personal funds. That stationery is properly used for the Member's personal correspondence with family and friends, and for other individual letters (for example, certain letters of congratulations, or birthday greetings) that cannot be sent under the frank. 

Other Questions 

13.  Solicitation. The office is throwing a farewell party for a departing staffer, and we know of some people in the private sector, with whom this staffer has worked for many years, who would probably be willing to donate refreshments. Can we call them to ask if they would like to donate anything? 
NO!  As a general rule, Members and staff may never solicit anything of value from anyone for the personal benefit of themselves, their families, their associates, or virtually anyone else. The prohibition against soliciting things of value is elaborated upon in the Committee's advisory memorandum to the House dated April 25, 1997. 
14.  Use of official stationery. Where the Member is sending a letter that cannot be sent under the frank - for example, a letter of congratulations or recommendation that is not frankable under Franking Commission rules - can we print it on the official stationery and mail it with a stamp?  The stamp would be one that the Member has paid for personally. 
No.  As a general rule, neither a letter nor any other kind of document may be printed on official letterhead (including the official news release letterhead) unless its content is frankable. (The major exception here is "Dear Colleague" letters sent in the Inside Mail, which are given more leeway as to content.) Thus often it's important to know whether the content of a letter, news release or other document is frankable even if you are not intending to mail it under the frank: for example, a news release that you intend to send out over the fax, or distribute to reporters personally. Again, the general rule is that if the content is not frankable, it should not be on official letterhead. Questions on the franking rules should be directed to the House Commission on Congressional Mailing Standards ("Franking Commission"). 
15.  Charitable projects. The Member is very interested in the matter of childhood literacy and would like to have the congressional office staff work with a local literacy group in, for example, enlisting volunteer tutors, locating children who need help, and making arrangements for the volunteers to work with those children. Is it permissible for the office to undertake such an effort as an "official" project? 
No.  As a general rule, staff time, the office equipment and other official resources must be devoted to official purposes. Charitable and other community service projects, while unquestionably worthwhile, generally are not deemed to constitute official business of the House, but instead are primarily the responsibility of other public agencies and private organizations. Thus the charitable undertaking described in the question, which would involve a significant use of official House resources, would not be permissible. 
Member and staff involvement in charitable and other community service work is commendable, and House staff members are always free to work on such projects on their own time, and without using office equipment or other official resources. Moreover, the Committee is willing to grant gift rule waivers to facilitate Member and staff participation in such projects. For example, with regard to the Habitat for Humanity home-building project in Washington last year, the Committee granted waivers to enable participating Members and staff to accept local transportation to and from, and a meal at the worksite. 
16.  "Co-sponsorship" of events. The Member has been active on tax reform, and there is a private organization that espouses views on tax reform nearly identical to those of the Member. The office would like to co-sponsor a conference on tax reform with that organization. Would this be permissible? 
No.  Members may not "co-sponsor" any event with any private organization, in the sense that the office and the outside organization would jointly organize, conduct and pay for the event. This prohibition derives from rules that (1) generally prohibit Members from accepting private support (financial or in-kind) for official activities, and (2) generally require that official House resources be expended for official business of the House, and not for the business of any other entity, public or private. 
However, if the Member chooses to have a tax reform conference as an official event, the Member would be free to have representatives of the private organization appear there as guests for the purpose of presenting or distributing information on the issue of tax reform. Conversely, if the tax reform organization wishes to organize a conference, the Member would be free to lend his or her name to the event and could also, of course, appear at the event. But Members are not be free to assign staff members to assist in organizing any privately sponsored event, or otherwise to use the resources of a congressional office in furtherance of such an event. 
17.  In-kind support for an official event. One of our district offices is having an open house, and a friend of the Member has offered to provide some light refreshments, such as soft drinks and cookies. Can we accept? 
No.  As noted above, House offices are generally prohibited from accepting private support for official activities, and the prohibition extends not only to private monetary contributions, but also to in-kind support from private sources. The open house is an official event, to which the prohibition clearly applies. However, bear in mind that it is always permissible for an office to accept in-kind support for official activities from public entities - that is, any agency or other entity of the Federal Government, or a state or local government, including a state college or university. 
18.  Letters of recommendation. A constituent is applying for a job with one of the Federal agencies and has asked the Member for a letter of recommendation. Are there restrictions on what can be said in such a letter, and can the letter be sent on official stationery? 
This question concerns the Hatch Act, and the answer depends on whether the job for which the constituent is applying is a political appointment. If the job being sought is a political appointment - that is, if it is a presidential appointment, a Schedule C position, or a noncareer appointment in the Senior Executive Service - the agency is free to consider any recommendation that a Member wishes to make. If, however, the job is not a political appointment - that is, if it is in the competitive service - then there are severe restrictions on the ability of the agency to consider a recommendation from a Member. For those jobs, the agency may consider a recommendation only if it is limited to (1) the character of the applicant, (2) the applicant's residence, and (3) statements based on the Member's personal knowledge of or records on the applicant, such as where the applicant is a current or former employee of the Member. 
As to whether a letter of recommendation may be on official stationery, in accordance with the response to question no. 14 above, the rules of the Franking Commission must be referenced. Briefly stated, under those rules, a recommendation letter is frankable, and hence may be on official stationery, only if is for a political appointment or a military academy appointment, or it is in behalf of a current or former employee, or someone else with whom the Member worked in an official capacity. In addition, a letter that is merely a letter of introduction, and not a recommendation, is frankable. Contact the Franking Commission for further information on this matter. 
19.  Focus groups. A staffer has been invited by a consulting firm to participate, along with other Hill staffers, in a focus group. The firm has offered to give the staffer lunch in connection with her participation, as well as $100. Can the staffer participate in the focus group, and accept the meal and payment in return for doing so? 
The staffer can participate in the focus group on her own time - for example, after regular business hours, or on a weekend or leave day - but she cannot accept either the $100 payment or the meal. Acceptance of the payment would violate the honorarium rule, which prohibits all Members and staff from accepting any payment for any speech, article or appearance. Participation in the focus group would constitute an "appearance" for purposes of the rule. However, in accordance with the rules on charitable donations in lieu of honoraria, the staffer could request that the firm donate the $100 to a specific charity. As to the meal, no provision of the gift rule would permit her to accept it. 
20.  "Dear Colleague" letters of invitation. An environmental organization with which the office has worked is going to be holding an issues briefing in one of the House meeting rooms. We would like to give House offices notice of the briefing by means of a "Dear Colleague" letter on official stationery. Can we do this? 
No.  As we've noted, greater leeway is given to the content of Dear Colleague letters, but the sending of such a letter would constitute an impermissible use of official resources to support the event of a private organization. Any letter giving notice of the event should be issued by, and at the expense of, the sponsoring organization. (The sponsoring organization can send these letters to House offices through the Inside Mail by paying a relatively modest, per-piece fee to the House Postal Operations Office.) However, once the sponsoring organization has sent out its own letter of invitation to House offices, a Member may send out a follow-up Dear Colleague letter, on official stationery, that, for example, states why the Member believes the event will be worthwhile and encourages other Members to attend. 
* * *
One additional point should be made here. At times offices receive invitations - whether to a reception, a dinner, or some other event - that state that the event has been "approved" by the House Ethics Committee. However, in general, the Committee does not "approve" particular gifts or events. 
This is so because the key provisions of the gift rule do not lend themselves to such grants of approval. Instead, under those provisions of the rule, the acceptability of a particular gift depends in large part on a determination to be made by the individual Member or staffer - for example, whether a particular item is of "nominal value," or whether one's attendance at an event is appropriate to the performance of his or her official duties. While those determinations must be made in a reasonable way, it is the responsibility of the individual Members and staffers to make them, not the Committee. Where an outside group or individual asserts that a particular gift has been approved by this Committee, it is advisable either to ask the person if he or she has a letter from the Committee that you can review, or to contact the Committee directly. 
Any further questions on these subjects should be directed to the Committee's Office of Advice and Education at 5-3787. 
 
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