A Member, officer, or employee of Congress may not:
* discriminate on the basis of race, color, religion, sex (including marital or parental status), handicap, age, or national origin in hiring, pay, or working conditions;
* hire, promote, or recommend for hiring or promotion a relative;
* promise to help someone get a Federal job in return for a political contribution or anything else of value;
* prevent someone, or threaten to prevent someone, from getting a Federal job or benefit in order to obtain a political contribution or to coerce political activity.
Employees of the House may not be required:
* to divide or share their salaries;
* to ``kick back'' a portion of their salaries to a Member or an aide;
* to spend personal money to benefit a Member or the operation of a Member's office.
House employees are not covered by the ``Hatch Act.''
Once they fulfill their required official duties, employees are free to engage voluntarily in campaign activities.
Employees may not make political contributions to their employing Members of Congress.
House employees may not allow outside jobs to interfere with official congressional duties and so must restrict outside employment to their free time.
Employees must avoid any inherent conflict of interest between the substance of their outside employment and their congressional jobs.
The House has adopted specific laws, regulations, and rules governing the employer-employee relationship. This chapter discusses restrictions against discrimination in hiring and compensation; nepotism; protection of employees from ``kickback'' schemes and other illegal hiring, firing, and compensation practices; regulations on pay; and guidelines affecting interns and volunteers. Outside employment and campaign activity by House employees are also briefly addressed. (FOOTNOTE 1)
(FOOTNOTE 1) See Chapters 3 and 8 of this Manual for more detail on these topics.
The general terms, conditions, and specific duties of House employees traditionally have been within the discretion of the employing Members or committees. (FOOTNOTE 2) Nonetheless, certain general principles apply to all House employees. Employees of the House are paid from funds of the United States Treasury to perform public duties. These include assisting the Members in official responsibilities (FOOTNOTE 3) and working on official committee business (FOOTNOTE 4) but do not include performing nonofficial, personal, or campaign duties. (FOOTNOTE 5) The Code of Official Conduct (House Rule 43, clause 8) instructs Members and officers to retain no one on their staffs ``who does not perform official duties commensurate with the compensation received in the offices of the employing authority.'' (FOOTNOTE 6)
(FOOTNOTE 2) Some House employees, generally those under the employ of an officer of the House, will be subject to the House Employees Position Classification Act (2 U.S.C. secs. 291-303) and regulations on applicable employment standards issued by the Committee on House Administration.
(FOOTNOTE 3) See, e.g., Legislative Branch Appropriations Act, 1992, Pub. L. No. 102-90, 105 Stat. 447, 453, title I - Congressional Operations, Members' Clerk Hire (1991).
(FOOTNOTE 4) See Donnald K. Anderson, Clerk of the House of Representatives, Rules of the House of Representatives, 102d Cong. (1991) (hereinafter House Rules), Rule 11, cls. 6(a)(3), 6(b)(1)-(2).
(FOOTNOTE 5) See United States v. Diggs, 613 F.2d 988, 994-997, 1002 (D.C. Cir. 1979), cert. denied, 446 U.S. 982 (1980).
(FOOTNOTE 6) See also Comm. on House Admin., U.S. House of Representatives Congressional Handbook sec. 2.II.B.2, at 2.5 (as amended by Dear Colleague letter from Frank Annunzio, Chairman and William M. Thomas, Ranking Republican Member, Comm. on House Admin. (Oct. 19, 1989)) and sec. 3.III.B.1, at 3.3 (Sept. 1985) (hereinafter Congressional Handbook); Code of Ethics for Government Service para. 3, H. Con. Res. 175, 85th Cong., 2d Sess., 72 Stat., pt. 2, B12 (1958), reprinted at the front of this Manual.
(FOOTNOTE 7) Davis v. Passman, 442 U.S. 228 (1979). See also Hanson v. Hoffman, 628 F.2d 42 (D.C. Cir. 1980).
Rule 43 is the Code of Official Conduct for all Members, officers, and employees of the House. Clause 9 of this code states:
A Member, officer, or employee of the House of Representatives shall not discharge or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex (including marital or parental status), handicap, age, or national origin, but may take into consideration the domicile or political affiliation of such individual.
This provision has been part of the Code, in substantially this form, since 1975. (FOOTNOTE 8)
(FOOTNOTE 8) See H. Res. 5, 94th Cong., 1st Sess., 121 Cong. Rec. 20-32 (Jan. 14, 1975). The rule was amended by H. Res. 5, 100th Cong., 1st Sess., to include age (133 Cong. Rec. H6-16 (daily ed. Jan. 6, 1987)), and by the Ethics Reform Act of 1989, to include marital or parental status and handicap and to exclude domicile and political affiliation (see Pub. L. No. 101-194, sec. 802(b)(2), 103 Stat. 1716, 1773 (1989)).
The Committee on Standards of Official Conduct is charged with investigating alleged violations of the Code of Official Conduct. (FOOTNOTE 9) In the 101st Congress, the Committee undertook a Preliminary Inquiry into charges that a Member had sexually harassed two female employees on his personal staff. In that case, the Committee affirmed that sexual harassment is a form of sex discrimination, that the Member charged had indeed harassed his employees, and that this behavior violated the Code of Official Conduct. The Committee report stressed that clause 9 tracks the language of Title VII of the Civil Rights Law of 1964 and should be interpreted in light of judicial and administrative (Equal Employment Opportunity Commission) decisions construing that law. (FOOTNOTE 10)
(FOOTNOTE 9) House Rule 10, cl. 4(c)(2)(B).
(FOOTNOTE 10) House Comm. on Standards of Official Conduct, In the Matter of Representative Jim Bates, H. Rep. No. 101-293, 101st Cong., 1st Sess. 8-10 (1989). The Committee issued a public letter of reproval to the Member. Id. at 25-26.
While the Committee may conduct investigations and disciplinary hearings and make recommendations to the full House that it formally sanction a Member, the Committee does not have the authority to order remedies such as monetary relief for an aggrieved employee. Employees seeking such remedies have recourse to the House Office of Fair Employment Practices.
In 1988, the House adopted H. Res. 558, the Fair Employment Practices Resolution, now codified in House Rule 51. The Resolution reiterates (at section 2(a)) that ``[p]ersonnel actions affecting employment positions in the House of Representatives shall be made free from discrimination based on race, color, national origin, religion, sex (including marital or parental status), handicap, or age.'' The resolution established the Office of Fair Employment Practices (OFEP) and authorized it to offer counseling and mediation services and to conduct hearings into formal complaints. OFEP staff are appointed by the Chairman and Ranking Minority Member of the Committee on House Administration. OFEP is subject to the administrative direction of the Clerk of the House, and its decisions are appealable to a bipartisan review panel of Members, officers, and employees. Either OFEP or the panel may order the following remedies: monetary compensation; injunctive relief; costs and attorneys fees; employment, reinstatement, or promotion (with or without back pay). The Fair Employment Practices Resolution further prohibits intimidation of, or reprisal against any person for exercising rights to fair employment.
Example 1. Member A, a Californian, only hires other Californians. A is not violating House rules.
Example 2. Member B, a Republican, only hires other Republicans. B is not violating House rules.
Example 3. As a matter of policy, Member C refuses to hire women except for clerical positions. C is in violation of House Rules 43 and 51.
Example 4. District manager D dismisses Employee E after E turns 55, on the ground that the office needs to maintain a youthful and energetic image. D has violated House Rules 43 and 51.
Effective October 1, 1990, Congress adopted the rights and protections of the Fair Labor Standards Act of 1938 (FOOTNOTE 11) for House staff and staff of the Architect of the Capitol. (FOOTNOTE 12) House employees are thus now entitled to the minimum wage and overtime (except for exempt employees (FOOTNOTE 13) ), equal pay for equal work, protection against oppressive child labor, (FOOTNOTE 14) and protection against retaliation for exercising any of these rights. OFEP administers these provisions in accordance with the Fair Employment Practices Resolution. (FOOTNOTE 15)
(FOOTNOTE 11) 29 U.S.C. secs. 201-219.
(FOOTNOTE 12) Fair Labor Standards Amendments of 1989, Pub. L. No. 101-157, 101st Cong., 1st Sess. sec. 8, 103 Stat. 938, 944 (1989).
(FOOTNOTE 13) See Comm. on House Admin., FLSA Regulations, sec. I Exemption Criteria (adopted May 8, 1991).
(FOOTNOTE 14) See 29 U.S.C. sec. 203(l) for the definition of ``oppressive child labor.''
(FOOTNOTE 15) See House Rule 51.
The minimum wage and overtime provisions do not apply to any staff ``employed in a bona fide executive, administrative, or professional capacity.'' (FOOTNOTE 16) In light of these standards, the Committee on House Administration recommends that each office establish written leave policies, job descriptions for each employee stating whether or not the position is exempt from the pay provisions, and time-keeping procedures. (FOOTNOTE 17) The equal pay provision supplements Rule 43's ban on sex discrimination in that it prohibits paying lower wages to employees of one sex than those paid to employees of the other sex --
(FOOTNOTE 16) 29 U.S.C. sec. 213(a)(1).
(FOOTNOTE 17) See Dear Colleague letter from Frank Annunzio, Chairman, and William M. Thomas, Ranking Republican Member, Comm. on House Admin. (Sept. 28, 1990).
. . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . . (FOOTNOTE 18)
(FOOTNOTE 18) 29 U.S.C. sec. 206(d)(1). An employer may not comply with this provision by reducing anyone's wages.
an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother or half sister.
The law bans the employment only of these specifically named relatives. (FOOTNOTE 19) Note that this definition is slightly narrower than the definition of relative included in the House gift rule, which also includes great uncles, great aunts, grandparents, grandchildren, grandparents of spouses, and fiances. (FOOTNOTE 20)
(FOOTNOTE 19) See Lee v. Blount, 345 F. Supp. 585, 588 (N.D. Cal. 1972).
(FOOTNOTE 20) See House Rule 43.
The employing Member or committee and subcommittee chairman must certify, on the monthly payroll authorizations, each employee's relationship (or lack thereof) to any Members of Congress. The antinepotism law, as applied in the House, prohibits the hiring of a relative of a Member on that Member's staff or on the staff of a committee or subcommittee that the Member chairs. Similarly, regulations issued by the Committee on House Administration state that ``[n]o Member, relative of the Member, or anyone with whom the Member has a professional or legal relationship may directly benefit monetarily from the expenditure'' of either the clerk hire or the official expenses allowances. (FOOTNOTE 21) The antinepotism restrictions apply only to employees on the Member's official payroll. Campaign workers are not covered.
(FOOTNOTE 21) Congressional Handbook, supra note 6, sec. 2.I.A.2, at 2.1.
If a House employee becomes related to the employing Member (by marriage), the employee may remain on the Member's personal or committee staff. Similarly, if a Member becomes the supervisor of a relative who was hired by someone else (e.g., the Member ascends to the chairmanship of a committee or subcommittee for which the relative is already working), the relative may remain on the payroll. However, the Member may not then give that individual further promotions or raises, other than cost-of-living or other across-the-board adjustments. The statute does not prohibit a Member from employing two individuals who are related to each other, but not to the Member.
(FOOTNOTE 22) 18 U.S.C. sec. 211.
(FOOTNOTE 23) 18 U.S.C. sec. 599.
(FOOTNOTE 24) 18 U.S.C. sec. 600.
(FOOTNOTE 25) 18 U.S.C. sec. 601.
(FOOTNOTE 26) See statutory appendix of this Manual for the full text of these laws.
(FOOTNOTE 27) A ``kickback'' generally refers to a scheme whereby an employee is coerced, as a condition of employment, into remitting or kicking back a portion of his or her salary to the employer or into spending a portion of the salary for goods or services for the employer's benefit. It could include the designation by an employer of certain persons on the payroll who actually perform no duties, but turn over their salaries to the employer.
(FOOTNOTE 28) United States v. Bramblett, 348 U.S. 503 (1955).
(FOOTNOTE 29) 18 U.S.C. sec. 1341. See United States v. Diggs, supra note 5, 613 F.2d at 997-999, 1002-1003; United States v. Clark, Crim. No. 78-207 (W.D. Pa. 1978).
The United States Court of Appeals for the District of Columbia Circuit upheld the conviction of a Member of the House under 18 U.S.C. sec. 1001, finding that the Member's failure to disclose to the House payroll office the real purpose of pay to employees in a kickback scheme, where such funds were used for personal and congressional expenses of the Member, was a material omission in violation of the criminal law. (FOOTNOTE 30) In the course of a subsequent Committee investigation of the Member, he admitted that he had misused the clerk hire allowance in violation of House rule 43, clauses 1 and 8, and that he had been unjustly enriched thereby. He agreed to make restitution to the House, apologized, and was censured by the House. (FOOTNOTE 31)
(FOOTNOTE 30) United States v. Diggs, supra note 5, 613 F.2d at 999.
(FOOTNOTE 31) See House Comm. on Standards of Official Conduct, In the Matter of Representative Charles C. Diggs, Jr., H. Rep. No. 96-351, 96th Cong., 1st Sess. (1979); 125 Cong. Rec. 21584-92 (July 31, 1979).
With respect to a Member's clerk hire allowance, this Committee has noted:
[I]t is improper to levy, as a condition of employment, any responsibility on any clerk to incur personal expenditures for the primary benefit of the Member or of the Member's congressional office operations . . . .
The opinion clearly would prohibit any Member from retaining any person from his clerk-hire allowance under either an express or tacit agreement that the salary to be paid him is in lieu of any present or future indebtedness of the Member, any portion of which may be allocable to goods, products, printing costs, campaign obligations, or any other nonrepresentational service. (FOOTNOTE 32)
(FOOTNOTE 32) House Comm. on Standards of Official Conduct, Advisory Opinion No. 2 (July 11, 1973), reprinted in 119 Cong. Rec. 23691-92 (July 12, 1973) and at the end of this chapter.
In the 100th Congress, a Member and his Administrative Assistant pleaded guilty to having conspired to defraud the United States in violation of 18 U.S.C. sec. 371 (the criminal conspiracy statute) by submitting payroll forms and collecting salary checks for individuals who did no work for the House. The Committee on Standards found that the Delegate had used the checks to pay for hotel and meal expenses for visiting constituents and staff, campaign expenses, and travel for the Delegate and his family, in violation not only of the conspiracy statute, but also of the House Code of Official Conduct and the Code of Ethics for Government Service. The Delegate and employee resigned before the Committee could hold a disciplinary hearing to consider sanctions. (FOOTNOTE 33)
(FOOTNOTE 33) House Comm. on Standards of Official Conduct, Summary of Activities, One Hundredth Congress, H. Rep. No. 100-1125, 100th Cong., 2d Sess. 15-16 (In the Matter of Delegate Fofo I.F. Sunia and Matthew K. Iuli).
(FOOTNOTE 34) See note 3, supra.
(FOOTNOTE 35) 2 U.S.C. sec. 92-1.
(FOOTNOTE 36) See House Rule 11, cl. 6; see also cl. 5.
(FOOTNOTE 37) See id., cl. 6(c).
The House rules state that professional staff members of the standing committees of the House ``shall not be assigned any duties other than those pertaining to committee business.'' (FOOTNOTE 38) The rules further provide that the clerical staff of the House standing committees shall work on ``matters related to committee work.'' (FOOTNOTE 39) Thus, committee staff may not be used to supplement the personal office needs of committee members.
(FOOTNOTE 38) Id., cl. 6(a)(3).
(FOOTNOTE 39) Id., cl. 6(b)(1).
The Ethics Reform Act of 1989 amended House Rule 43, clause 8, ``to strengthen and broaden [Members' and officers'] accountability for the pay and performance of staff.'' (FOOTNOTE 40) While the old rule addressed only Members as employing authorities for their personal staffs, the revised rule applies to House officers, committee chairs, subcommittee chairs, and ranking minority members in their supervisory roles. The rule now reads:
(FOOTNOTE 40) Bipartisan Task Force on Ethics, Report on H.R. 3660, 101st Cong., 1st Sess. 60 (Comm. Print, Comm. on Rules 1989), reprinted in 135 Cong. Rec. H9253, H9270 (daily ed. Nov. 21, 1989) (hereinafter Bipartisan Task Force Report). See also Ethics Reform Act of 1989, Pub. L. No. 101-194, sec. 802(b)(1), 103 Stat. 1716, 1773 (1989).
A Member or officer of the House of Representatives shall retain no one under his payroll authority who does not perform official duties commensurate with the compensation received in the offices of the employing authority. In the case of committee employees who work under the direct supervision of a Member other than a chairman, the chairman may require that such Member affirm in writing that the employees have complied with the preceding sentence (subject to clause 6 of rule XI) as evidence of the chairman's compliance with this clause and with clause 6 of rule XI.
Thus where a Member other than a committee chair (e.g., a subcommittee chair or ranking minority member) directly supervises committee staff, the chair may require the supervising Member to certify the staff's performance. The Bipartisan Task Force intended that ``[a]ny violation would consequently become the responsibility of the supervising Member.'' (FOOTNOTE 41)
(FOOTNOTE 41) Bipartisan Task Force Report, supra note 40, at 33, 135 Cong. Rec. H9262-63.
Under Federal law, two or more employees may not hold the same House position; neither may an employee divide a House salary with another person. (FOOTNOTE 42) Further, House employees must personally perform the duties for which they are compensated, as they are specifically prohibited from subletting any portion of their official duties to someone else. (FOOTNOTE 43) While two employees may not hold a single position, one employee may be shared between two House employing authorities (e.g., one staffer may work for two Members). Part-time work is also permitted. (FOOTNOTE 44)
(FOOTNOTE 42) 2 U.S.C. sec. 86.
(FOOTNOTE 43) 2 U.S.C. secs. 87 and 101.
(FOOTNOTE 44) Congressional Handbook, supra note 6, sec. 2.II.A.2.a-b, at 2.3.
Thus, in order to earn compensation from the House, an employee must regularly perform official duties commensurate with the compensation received. The Code of Ethics for Government Service instructs every employee to ``[g]ive a full day's labor for a full day's pay; giving to the performance of his duties his earnest effort and best thought.'' (FOOTNOTE 45) Employees are paid from United States Treasury funds to perform public duties. Federal law dictates that appropriated funds be used solely for the purposes for which appropriated. (FOOTNOTE 46) Funds appropriated to pay congressional staff to perform official duties may be used only for the purposes of assisting a Member in his legislative and representational duties, working on committee business, or performing other congressional functions. (FOOTNOTE 47) Employees may not be compensated from public funds to perform nonofficial, personal, or campaign activities on behalf of the Member, the employee, or anyone else.
(FOOTNOTE 45) Code of Ethics for Government Service para. 3, supra note 6.
(FOOTNOTE 46) 31 U.S.C. sec. 1301(a).
(FOOTNOTE 47) See 2 U.S.C. sec. 85.
(FOOTNOTE 48) See House Comm. on Standards of Official Conduct, In the Matter of Representative Austin J. Murphy, H. Rep. No. 100-485, 100th Cong., 1st Sess. 5, 9 (1987); 133 Cong. Rec. H11686-96 (daily ed. Dec. 18, 1987).
In a second case, the Committee found that a Member had maintained an employee on staff for almost two years after the employee moved to a city beyond the environs of either the congressional district or the District of Columbia. (FOOTNOTE 49) Although the employee had provided valuable services to the Member and the Committee found no intent to defraud the Government, the Member admitted fault and reimbursed the U.S. Treasury. (FOOTNOTE 50)
(FOOTNOTE 49) See 2 U.S.C. sec. 92-1; Congressional Handbook, supra note 6, sec. 2.II.B.3, at 2.5.
(FOOTNOTE 50) H. Rep. No. 100-1125, supra note 33, at 6-7 (In the Matter of Representative Mary Rose Oakar).
The Department of Justice has on two separate occasions pursued criminal charges, against a then-current and a former Member of the House, for allegedly placing persons on the congressional payroll who did not regularly perform official congressional duties but rather performed personal services or duties for or on behalf of the Members. (FOOTNOTE 51) The charges included fraud, mail fraud, and perjury. The sitting Member was convicted; (FOOTNOTE 52) the former Member pleaded guilty. (FOOTNOTE 53)
(FOOTNOTE 51) United States v. Diggs, Crim. No. 78-142 (D.D.C.); United States v. Clark, supra note 29.
(FOOTNOTE 52) See note 5, supra.
(FOOTNOTE 53) See 37 Cong. Q. Wkly. Rep. 1263 (June 23, 1979).
The United States Court of Appeals, in upholding the fraud conviction of the Member of Congress, noted that although the employees had performed some official services for the Member, ``only a nominal percentage of [the employees'] responsibilities were congressionally related,'' and a jury had sufficient evidence to conclude that such employees were paid from clerk hire allowances ``with the intention of compensating them for services rendered to the [defendant Member's private business] or the defendant.'' (FOOTNOTE 54) Therefore, although it might be argued that ``it was a matter of [the Member's] discretion to fix their duties and salaries as congressional employees,'' the ``defendant's representations to the House Office of Finance that the [employees] were bona fide congressional employees were fraudulent and material in violation of 18 U.S.C. sec. 1001.'' (FOOTNOTE 55)
(FOOTNOTE 54) United States v. Diggs, supra note 5, 613 F.2d at 1002.
(FOOTNOTE 55) Id.
The United States Court of Appeals, summarizing the testimony of a House officer, noted that it is ``within a congressman's discretion to define the parameters of an employee's responsibilities as long as those responsibilities related to the congressman's `official and representative duties.''' (FOOTNOTE 56) There is no conclusive listing of what a Member's ``official and representational duties'' entail. However, the Supreme Court discussed such a concept in a different context and noted that ``legitimate'' activities of a Member include legislative acts, that is, things said or done in the House in the performance of official duties, and representational activities, such as ``legitimate `errands' performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called `news letters' to constituents, news releases, and speeches delivered outside the Congress.'' (FOOTNOTE 57)
(FOOTNOTE 56) Id. at 997.
(FOOTNOTE 57) United States v. Brewster, 408 U.S. 501, 512 (1972). See also McCormick v. United States, 111 S. Ct. 1807, 1816 (1991) (``Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator.'').
(FOOTNOTE 58) For more detail on Rule 45, see Chapter 6 of this Manual.
(FOOTNOTE 59) Advisory Opinion No. 6 (May 9, 1977), reprinted in Final Report of the Select Committee on Ethics, H. Rep. No. 95-1837, 95th Cong., 2d Sess. app. at 65 (1979), and at the end of Chapter 6 of this Manual.
The Select Committee did, however, recognize several exceptions to the general prohibition against acceptance of services including the following:
* Services provided by federal, state, or local government agencies; and
* Intern, fellowship, or similar educational programs that are primarily of educational benefit to the individual, as opposed to primarily benefiting the Member or office, and which do not give undue advantage to special interest groups.
An employee means a person appointed to a position of employment in the House of Representatives by an authorized employing authority, whether that person is receiving a salary disbursed by the Clerk of the House, or is in a Leave Without Pay or Furlough status.
An intern means an individual performing services in a House office on a temporary basis incidental to the pursuit of the individual's educational objectives. Some interns receive no compensation from any source, while some receive compensation or other assistance from an educational institution or other sponsoring entity. Although some interns may receive compensation from House allowances, (FOOTNOTE 60) this discussion deals primarily with those who do not receive such House compensation.
(FOOTNOTE 60) Each year, for example, each Member may appoint one teacher or student to be the ``Lyndon Baines Johnson Congressional Intern'' (LBJ intern), for two months, at a capped salary not derived from the Member's clerk hire allowance. Other interns may be paid a limited salary from the clerk hire allowance for up to 120 days, but may not receive other employment benefits. See Congressional Handbook, supra note 6, secs. 2.II.A.2.c and A.3, at 2.3-2.4.
A fellow means an individual performing services in a House office on a temporary basis as part of an established mid-career education program, while continuing to receive the usual compensation from his or her sponsoring employer.
A volunteer means an individual performing services in a House office without compensation from any source.
A detailee means an executive branch employee assigned to a committee staff for a period of up to one year. (FOOTNOTE 61)
(FOOTNOTE 61) See 2 U.S.C. sec. 72a(f); Congressional Handbook, supra note 6, secs. 3.IV.E.4-5, at 3.53-3.54.
(FOOTNOTE 62) See Select Comm. on Ethics, Advisory Opinion No. 6, supra note 59.
While intern and fellowship programs are often sponsored by educational institutions, other public or private organizations may act as sponsors, provided the arrangement does not give undue advantage to special interests. Therefore, an intern or fellow should not be assigned duties that will result in any direct or indirect benefit to the sponsoring organization, other than broadening the individual's knowledge.
Example 5. Student A writes to Member B offering to work in B's office for one semester, as part of his college's government internship program. A encloses a copy of the college's brochure on its internship program and a letter from the dean, indicating that A will get college credit for his participation. B may accept A's services.
Example 6. Scientist C works for a pharmaceutical company that sponsors a mid-career fellowship program. In conjunction with the program, C writes to the Science Committee, offering her services for one year, during which time the company would continue to pay her salary. The Committee may accept C's services, provided that she does not work on legislation that will directly benefit her employing company.
Example 7. Student D's college does not have a formal internship program. D's political science professor has offered to give him independent study credit if he volunteers in a congressional office and writes a paper on what he learns about the legislative process. A Member could accept D's services as a volunteer under these circumstances. The independent study credit demonstrates the educational benefit to the volunteer.
(FOOTNOTE 63) Federal law, at 31 U.S.C. sec. 1342, provides:
An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.
In Opinion B-69907 (issued February 11, 1977), the Comptroller General of the United States determined that the statute applies to Members of Congress and other officers and employees of the Legislative Branch. However, because the statute was enacted to prevent funding deficiencies, it was deemed not to prohibit a Member of Congress from utilizing volunteers to assist in the performance of official functions of the Member's office, provided such volunteers agree in advance to serve without compensation, so that there is no basis for a future claim for payment.
Obviously, a Member or House office wishing to use the services of an individual seeking to volunteer may also place the individual in a temporary intern position on the Member's clerk hire payroll or other personnel fund, as authorized by regulations of the Committee on House Administration. The individual may also be referred to an organization that sponsors an internship program. In addition, a Member may accept volunteer services without limit from his or her own immediate family, i.e., spouse, children, or parents (although Federal law, at 5 U.S.C. sec. 3110, prohibits Members from appointing relatives to paid positions).
Example 8. A recent college graduate seeking work on Capitol Hill offers to volunteer in Member A's office while looking for a paying job. Unless A has a program in the office to ensure that volunteers derive significant educational benefit and do not merely fill in for busy staffers, A may not accept the offer.
Example 9. A retiree in Member B's district offers to volunteer two days a week in the district office, answering telephones, making copies and generally freeing up the paid staff to do more substantive work. B may not accept this volunteer's services because they are not of significant educational benefit to the volunteer, and they supplant the normal and regular duties of paid employees.
Example 10. Member C runs a program for senior citizens in C's district office. One or two retirees at a time volunteer for six month periods during which time they receive regular briefings on legislative issues of concern to seniors and act as liaisons to other seniors in the district. Because the volunteers' services are temporary, are of significant educational benefit to the participants, and do not supplant the normal and regular duties of paid employees, this program complies with Committee guidelines.
Example 11. Member D's spouse offers to volunteer in the district office as an extra caseworker. As long as the spouse receives no pay, Member D may accept.
Volunteers, interns, and fellows should be made aware of the implications their activities have for the Members in whose offices they work. Technically, House rules cannot be enforced against individuals who are not House employees. However, such individuals may be in a position to take actions and make representations in the name of a Member, for which the Member may be responsible. The Member or office may also be subject to a claim of liability for work-related injuries to, or caused by, a volunteer. The Committee recommends that Members and House offices obtain the agreement of such individuals that, although not House employees, they will conduct themselves in a manner that reflects creditably on the House. Members are also encouraged to obtain the Committee's approval for any volunteer, intern, or fellowship program in which they wish to participate.
A committee may request or accept detailed staff from executive branch departments or agencies. The Select Committee on Ethics ruled that ``in-kind services and functions provided by federal, state and local government agencies do not fall in the same category as private donations of money or in-kind services.'' (FOOTNOTE 64) Note, however, that while Federal law specifically authorizes the detailing of executive branch personnel to committee staffs, there is no comparable provision allowing detailees to serve on the personal staffs of Members. (FOOTNOTE 65)
(FOOTNOTE 64) Advisory Opinion No. 6, supra note 59.
(FOOTNOTE 65) See 2 U.S.C. sec. 72a(f); Congressional Handbook, supra note 6, secs. 3.IV.E.4-5, at 3.53-3.54.
Regulations of the Committee on House Administration stipulate that the detailee remains, for most purposes, an employee of the source department or agency, rather than becoming a House employee during the assignment period. (FOOTNOTE 66) For the purposes of post-employment restrictions, however, Federal law mandates that detailees be considered employees both of the entity from which they come and that to which they are sent. (FOOTNOTE 67)
(FOOTNOTE 66) See Congressional Handbook, supra note 6, sec. 3.IV.E.4.c, at 3.53. But see proposed regulations of the Office of Government Ethics at 5 C.F.R. sec. 2635.104, stating: ``An employee detailed to the legislative or judicial branch for a period in excess of 30 days shall be subject to the ethical standards of the branch or entity to which detailed.''
(FOOTNOTE 67) 18 U.S.C. sec. 207(g). Post-employment restrictions are discussed in Chapter 3 of this Manual.
(FOOTNOTE 68) 5 U.S.C. sec. 7324.
(FOOTNOTE 69) See 18 U.S.C. sec. 603; 2 U.S.C. sec. 431(8).
(FOOTNOTE 70) The Committee's guidance concerning political activities of Members, officers, and employees of the House is reprinted at the end of Chapter 8 of this Manual. Dear Colleague letter from Julian C. Dixon, Chairman, and Floyd D. Spence, Ranking Minority Member, House Comm. on Standards of Official Conduct (Nov. 21, 1985).
All House staff must fulfill the congressional duties for which they receive their Government salaries. Therefore, official responsibilities may not be neglected for the sake of campaign activities. Similarly, no campaign activities should be performed in a manner that utilizes any official resources. (FOOTNOTE 71) Within these constraints, employees may engage in campaign activities in their free time after official duties have been completed, while on annual leave or on leave-without-pay status. In any case, the employee should keep careful records documenting that campaign work was not done on official time.
(FOOTNOTE 71) See Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), aff'd, 461 U.S. 911 (1983). See generally Chapter 8 of this Manual.
The line between official and political duties may not always be easy to pinpoint. Certain of a Member's legitimate, official, representational duties, such as constituent casework, news releases or newsletters to constituents, may be viewed as ``political in nature.'' (FOOTNOTE 72) However, the general distinction between official representational and legislative duties on the one hand and political campaign activities on the other is a common and longstanding distinction in Congress. This distinction is specifically recognized in such measures as the franking law (FOOTNOTE 73) and the House rule on unofficial office accounts. (FOOTNOTE 74)
(FOOTNOTE 72) United States v. Brewster, supra note 57, 408 U.S. at 512. See also Buckley v. Valeo, 424 U.S. 1, 84 n.112 (1976) (recognizing that reasonable accommodations may be made ``between the legitimate and necessary efforts of legislators to communicate with their constituents and activities designed to win elections by legislators in their other role as politicians'').
(FOOTNOTE 73) Compare 39 U.S.C. sec. 3210(a)(1) and (2) with sec. 3210(a)(5)(A) and (C). See generally Common Cause v. Bolger, supra note 71, as to distinction between official and campaign mailings.
(FOOTNOTE 74) House Rule 45; see also Comm'n on Admin. Review, Financial Ethics, H. Doc. No. 95-73, 95th Cong., 1st Sess. 16-17 (1977).
Questions sometimes arise over the potential, and arguably unavoidable, overlap or intrusion of some minimal campaign-related activities into official operations when dealing with the practical, day-to-day realities of a Member's functioning office. In responding to ``official'' inquiries from the press or inquiries from constituents, for example, congressional staff may need to respond to issues that relate to a Member's political campaign, as well as his official duties. Similarly, scheduling assistance and information from the Member's official staff may be requested by the campaign staff to ensure that the Member's campaign schedule does not conflict with his official agenda. To the extent possible, however, campaign-related matters should not be handled in the congressional office or on official time. (FOOTNOTE 75)
(FOOTNOTE 75) See House Comm. on Standards of Official Conduct, Advisory Opinion No. 2, supra note 32.
In addition to congressional ethical standards and rulings, legal implications arise if salaries are claimed from public appropriations for individuals performing nonofficial, campaign services on behalf of a Member. As noted above, a Member may be held criminally liable for fraud against the Government for compensating individuals from public moneys for campaign services. (FOOTNOTE 76) In this connection, in 1979, a former Member of the House of Representatives pleaded guilty to mail fraud and tax evasion for having placed on his congressional payroll 11 persons who were operating and staffing various reelection campaign headquarters. (FOOTNOTE 77)
(FOOTNOTE 76) See United States v. Clark, supra note 29; see also United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C. Cir. 1981), cert. denied, 455 U.S. 999 (1982), and United States v. Diggs, supra note 5, 613 F.2d at 997 (where the court found a fraudulent scheme in using staff appropriations ``for purposes other than those intended by the appropriation and duly certified by the congressman'').
(FOOTNOTE 77) United States v. Clark, supra note 29; see Washington Post, Sept. 6, 1978, at A6 (report on indictment).
* to the neglect of their congressional duties;
* on ``official time'' for which a salary is received from the United States Treasury, or
* if the employment is gained through the improper use of their official positions.
Neither may they use confidential information received in the course of their public employment ``as a means for making private profit.'' (FOOTNOTE 78) These standards, as well as other limitations on outside employment, are discussed more fully in Chapter 3.
(FOOTNOTE 78) House Rule 43, cl. 3.
The Ethics Reform Act amended House Rule 11, clause 6(a)(3) to clarify that the professional staff of committees may ``not engage in any work other than committee business during congressional working hours'' (emphasis added). Thus, professional staffers remain free to engage in outside employment or campaign work on their own time, as long as they comply with all other relevant standards discussed above and in Chapters 3 and 8. (FOOTNOTE 79)
(FOOTNOTE 79) See Bipartisan Task Force Report, supra note 40, at 34, 135 Cong. Rec. H9263.
The Ethics Reform Act also added a staff conflict of interest provision at Rule 43, clause 12, such that an employee who files a financial disclosure statement may not contact anyone in the executive or judicial branch with respect to an entity in which the employee has a significant financial interest. The employing Member may waive this provision by filing a statement with the Committee on Standards of Official Conduct, acknowledging the financial interest and affirming that the employee's participation is necessary. (FOOTNOTE 80) As explained by the Bipartisan Task Force on Ethics:
(FOOTNOTE 80) See House Rule 43, cl. 12(b).
This new provision is intended to provide both a standard of conduct and a workable framework to guarantee that employees who engage in the proper and necessary congressional role of preforming constituent service are not motivated by personal financial interests but are performing, at the direction of the Member, services motivated by the Member's representational duties. (FOOTNOTE 81)
(FOOTNOTE 81) Bipartisan Task Force Report, supra note 40, at 32, 135 Cong. Rec. H9262. See also discussion of Rule 43, cl. 12, in Chapter 3 of this Manual.
(FOOTNOTE 1) Issued July 11, 1973.
On the subject of a Member's clerk hire.
A number of requests have come to the Committee for advice on specific situations which to some degree, involve consideration of whether monies appropriated for Members' clerk hire are being properly utilized. A summary of the responses to these requests forms the basis for this Advisory Opinion which, it is hoped, will provide some guidelines and assistance to all Members.
The Committee requested the Congressional Research Service to examine in depth the full scope of the laws and the legislative history surrounding Members' clerk hire. The search produced little in the way of specific parameters in either case law or congressional intent, concluding that `` . . . no definitive definition was found . . . .'' It is out of this absence of other guidance the Committee feels constrained to express its views. The clerk hire allowance for Representatives was initiated in 1893 (27 Stat. 757). The law providing it spoke of providing clerical assistance to a Representative ``in the discharge of his official and representative duties . . . .'' The same phraseology is used today in each Legislative Appropriations bill and by the Clerk of the House in his testimony before the Subcommittee on Legislative Appropriations. An exact definition of ``official and representative duties'' was not found in the extensive materials researched. Remarks concerning various bills, however, usually refer to ``clerical service'' or terms of similar import, thus implying a consistent perception of the term as payment for personal services.
This Committee is of the opinion that the funds appropriated for Members' clerk hire should result only in payment for personal services of individuals, in accordance with the law relating to the employment of relatives, employed on a regular basis, in places as provided by law, for the purpose of performing the duties a Member requires in carrying out his representational functions. The Committee emphasizes that this opinion in no way seeks to encourage the establishment of uniform job descriptions or imposition of any rigid work standards on a Member's clerical staff. It does suggest, however, that it is improper to levy, as a condition of employment, any responsibility on any clerk to incur personal expenditures for the primary benefit of the Member or of the Member's congressional office operations, such as subscriptions to publications, or purchase of services, goods or products intended for other than the clerk's own personal use. The opinion clearly would prohibit any Member from retaining any person from his clerk hire allowance under either an express or tacit agreement that the salary to be paid him in lieu of any present or future indebtedness of the Member, any portion of which may be allocable to goods, products, printing costs, campaign obligations, or any other non-representational service.
In a related regard, the Committee feels a statement it made earlier, in responding to a complaint, may be of interest. It states: ``As to the allegation regarding campaign activity by an individual on the clerk hire rolls of the House, it should be noted that, due to the irregular time frames in which the Congress operates, it is unrealistic to impose conventional work hours and rules on congressional employees. At some times, these employees may work more than double the usual work week -- at others, some less. Thus employees are expected to fulfill the clerical work the Member requires during the hours he requires and generally are free at other periods. If, during the periods he is free, he voluntarily engages in campaign activity, there is no bar to this. There will, of course, be differing views as to whether the spirit of this principle is violated, but this Committee expects Members of the House to abide by the general proposition.''
Dear Colleague: The Committee on Standards of Official Conduct has received a number of inquiries regarding the propriety of House offices accepting services from volunteers, (FOOTNOTE 1) interns, (FOOTNOTE 2) fellows, (FOOTNOTE 3) and others who receive no salary from the House of Representatives. This is to explain the Committee's policy on this subject for all Members and House offices.
(FOOTNOTE 1) A ``volunteer'' as used in this letter means an individual performing services in a House office without compensation from any source.
(FOOTNOTE 2) An ``intern'' is an individual performing services in a House office on a temporary basis incidental to the pursuit of the individual's educational objectives. Some interns receive no compensation from any source, while some receive compensation or other assistance from an educational institution or other sponsoring entity. While some interns may receive compensation from House allowances, this letter deals primarily with those who do not receive such House compensation.
(FOOTNOTE 3) A ``fellow'' is an individual performing services in a House office on a temporary basis as part of an established mid-career education program, while continuing to receive the usual compensation from his or her sponsoring employer.
House Rule XLV, ``Prohibition of Unofficial Office Accounts,'' was adopted by the House on March 2, 1977, along with other recommendations of the Commission on Administrative Review. H. Res. 287, 95th Congress, 123 Congressional Record 5933-53. In recommending the rule, the Commission posed the question: ``Is it proper for a private corporation, independent businessman, or anyone else to pay for the conduct of the House's official business?'' The Commission concluded that the answer was ``no,'' that a ``wall'' should exist between official and unofficial funds. H. Doc. No. 95-73, Financial Ethics, 95th Cong., 1st Sess., p. 17. In Advisory Opinion No. 6, interpreting the unofficial office account prohibition, the House Select Committee on Ethics concluded that in addition to money, Rule XLV prohibits the private, in-kind contribution of goods or services for official purposes. The Select Committee found that ``no logical distinction can be drawn between the private contribution of, in-kind services and the private contribution of money, and that both perpetuate the very kind of unofficial office accounts and practices that are prohibited'' by the rule. H. Rept. No. 95-1837, 95th Cong., 2d Sess., Final Report of the Select Committee on Ethics, p. 65.
However, the Select Committee did recognize several exceptions to the general prohibition against the acceptance of services, including the following:
Services provided by federal, state or local government agencies;
Intern, fellowship, or similar educational programs that are primarily of educational benefit to the individual, as opposed to primarily benefiting the Member or office, and which do not give undue advantage to special interest groups.
Accordingly, while House Rule XLV generally prohibits Members from accepting either the services of volunteers or of individuals compensated for congressional duties by an outside entity, limited authority exists to accept the services of volunteers, interns, and fellows. In this regard, the Select Committee expressed the view that the intent and spirit of House Rule XLV would be violated if a congressional office attempted to supplement official allowances by directly or indirectly raising, receiving, or disbursing contributions, if such contributions were to be used to compensate individuals working in a House office, or used to support programs which placed interns, fellows, or volunteers in House offices. The prohibition against engaging in such activities applies to both Members and staff. Also relevant to this issue is 31 U.S.C. sec. 1342, as follows:
An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.
In Opinion B-69907, issued February 11, 1977, the Comptroller General of the United States determined that the statute applies to Members of Congress and other officers and employees of the Legislative Branch. However, because the statute was enacted to prevent funding deficiencies, it was deemed not to prohibit a Member of Congress from utilizing volunteers to assist in the performance of official functions of the Member's office, provided such volunteers agree in advance to serve without compensation, so that there is no basis for a future claim for payment. The acceptance of services from volunteers not associated with an established program potentially raises other concerns. Individuals who are not House employees (FOOTNOTE 4) are not subject to rules and statutes governing their conduct. However, such individuals may be in a position to take actions and make representations in the name of a Member, for which the Member may be responsible. The Member or office may also be subject to a claim of liability for work-related injuries to, or caused by, a volunteer.
(FOOTNOTE 4) An ``employee'' for the purposes of this letter means a person appointed to a position of employment in the House of Representatives by an authorized employing authority, whether that person is receiving a salary disbursed by the Clerk of the House, or is in a Leave Without Pay status.
In view of the above, the Committee has established the guidelines set forth below to Members and House offices considering acceptance of the services of interns, fellows, or volunteers who will not be paid by the House of Representatives.
A Member or House office may accept the temporary services of an intern participating in a program, as discussed below, which is primarily of educational benefit to the participant, irrespective of whether the individual is being compensated by a third-party sponsoring organization.
Similarly, a Member or House office may accept the temporary services of a fellow participating in a mid-career education program, as discussed below, while the individual receives compensation from his or her employer.
An intern or fellowship program should be operated by an entity not affiliated with a congressional office, and the organization should be willing to indicate its sponsorship of the intern or fellow in writing.
House Members and staff may not raise or disburse funds for programs which place interns or fellows in their own offices, nor may congressional offices solicit or recruit volunteers. Members do, however, have the right to select or approve those who will be working in their offices.
While intern and fellowship programs are often sponsored by educational institutions, other public or private organizations may act as sponsors, provided the arrangement does not give undue advantage to special interests. In that regard, the Member accepting the services of an intern or fellow should not assign him or her to duties that will result in any direct or indirect benefit to the sponsoring organization.
A Member may accept volunteer services from his or her own immediate family, i.e., spouse, children, or parents (although Federal law, at 5 U.S.C. sec. 3110, prohibits Members from appointing relatives to paid positions); this is consistent with regulations of the Committee on House Administration which allow Members to use their own personal resources to support the activities of their own offices. A Member or House office may accept the temporary services of a volunteer, provided the Member or office has a clearly defined program to assure that: (1) the voluntary service is of significant educational benefit to the participant; and (2) that such voluntary assistance does not supplant the normal and regular duties of paid employees. In this regard, limitations should be imposed on the number of volunteers who may assist a congressional office at any one time, as well as the duration of services any one volunteer may provide. Voluntary assistance to a congressional office should not be solicited.
A volunteer should be required to agree, in advance and in writing, to serve without compensation and to not make any future claim for payment, and acknowledge that the voluntary service does not constitute House employment. (Obviously, a Member or House office wishing to use the services of an individual seeking to volunteer may also place the individual in a temporary intern position on the Member's clerk hire payroll or other personnel fund, as authorized by the Committee on House Administration. The individual may also be referred to an organization which sponsors an internship.)
Volunteers, interns, and fellows should be made aware of the implications their activities have for the Member in whose office they work. The Committee recommends that Members and House offices obtain the agreement of such individuals that, although not House employees, they will conduct themselves in a manner which reflects creditably on the House. Members are also encouraged to obtain the Committee's approval for any volunteer, intern, or fellowship program in which they wish to participate. The above guidelines do not prohibit a Member or other House office from accepting services, including detailed staff, provided on an official basis by a unit of Federal, state, or local government. (House staff and resources may not, however, be similarly used to perform the work of other governmental units, or of any private organization.) As a related matter, House Rule XLIII, clause 11, part of the Code of Official Conduct, provides that a Member of the House of Representatives shall not authorize or otherwise allow a non-House individual or organization to use the words ``Congress of the United States,'' ``House of Representatives,'' or ``official business'' on any letterhead or envelope. The intent of this provision is to prevent persons who are not Members, officers, or employees of the House from represent that their activities are officially sponsored or sanctioned. This prohibition also extends to other printed matter, such as business cards. Accordingly, individuals not paid by the House of Representatives may not use or obtain business cards or other materials suggesting an employment relationship with the House. Any questions concerning these matters should be directed to the Committee's Office of Advice and Education at 225-3787.