Disclosure Obligations Complicate Hill Staffers' Job Talks
January 14, 2008
Q: Last week, my wife gave birth to our first child, a beautiful
baby girl. Her birth has prompted us to reassess our financial situation, and,
after nine years as a House staffer, I am contemplating a move to the private
sector. While I have had communications with several potential employers in the
private sector, none has advanced beyond preliminary discussions. (The baby
hasn't allowed any time for that!) I am aware that recent changes to the House
rules do require that staffers make some sort of disclosure of their employment
discussions to the House ethics committee. However, I am reluctant to disclose
my current communications because I would like them to remain confidential in
case they fall through. Besides, if I do ultimately enter the private sector, I
presume the ethics committee won't have jurisdiction over me anyway, so, once I
leave the House, it won't matter if I haven't complied with the rules. Just to
be sure, I have two questions. What do the new rules say regarding my contacts
with potential employers? And, if I leave the House for the private sector, will
the committee still have jurisdiction over me?
A: Last September's Honest Leadership and Open Government Act imposed
new obligations upon House and Senate employees who negotiate with potential
employers. In the House, the new obligations appear in Rule 27, which states
that very senior staffers must notify the Committee on Standards of Official
Conduct when they are negotiating or have any agreement of future employment or
compensation with a private entity, and must recuse themselves from official
matters in connection with the entity.
When applying this rule, the first thing to consider is whether you qualify
as "very senior staff," since staffers who do not qualify are exempt from the
obligations. While you have been a staffer for nine years, the criterion for
seniority under the rule is salary, not experience. The rule applies to all
staffers whose salary exceeds 75 percent of a Member's. With last week's pay
raise for Members, that threshold is now an annual salary of $126,975. If your
salary is equal to or less than this amount, the new obligations in House Rule
27 do not apply to you.
If, however, you make more than $126,975, the next thing to consider is what
counts as "negotiating" for purposes of the rule. Although the rule itself does
not define "negotiating," the ethics committee stated in a memorandum last fall
that it would generally consider you to have begun negotiations with an outside
party when the following two conditions have been met.
First, there must be "a communication between two parties with a view toward
reaching an agreement." Second, there must be "active interest on both sides."
This suggests that the disclosure requirement is not triggered where either you
or a potential employer expresses interest but that interest is not
reciprocated. In addition, the committee would not consider you to be
"negotiating" with a potential employer if you were merely to send the employer
In your case, you characterize your discussions as preliminary. If by this
you mean that you have not engaged in communications with a view toward reaching
an agreement or if there is no active interest on both sides, then you do not
yet need to disclose your discussions to the ethics committee.
However, if and when your discussions with a potential employer do reach this
stage, then the rules require disclosure within three business days after
beginning negotiations or formalizing an employment or compensation agreement.
Disclosure forms are available from the ethics committee and are on its Web
site. These forms require disclosure of the name of the potential employer, the
date you began negotiations or reached an employment agreement, and a
certification that you will recuse yourself from any official matter that would
present even the appearance of a conflict of interest in connection with the
potential employer. In the case of such recusal, you also must file a recusal
form with the ethics committee, acknowledging that you may not directly or
indirectly participate in any official matter with the potential employer.
From your questions, it appears that these disclosure requirements have given
you pause. This is understandable. After all, in the private sector, employees
frequently explore job changes without the knowledge of their current employer.
Because of your concern, you raise the question of whether the ethics committee
would have jurisdiction over you after you leave the House.
Never say never, but it seems extremely unlikely that the ethics committee
would attempt to assert jurisdiction over a former House staffer. Neither the
constitutional nor statutory bases for the authority of the ethics committee
appear to confer jurisdiction over staffers and Members once they leave the
House. In fact, the ethics committee has explicitly acknowledged this limitation
on its jurisdiction. For example, in its December 2006 report regarding former
Rep. Mark Foley's (R-Fla.) alleged improprieties with House pages, the committee
declined to take action against Foley, stating that it lacks "disciplinary
authority" over former employees.
This doesn't mean, of course, that no risks lie in ignoring your obligations
regarding employment negotiations. For one, assuming you are a "very senior
staffer," you clearly are subject to the disclosure rules now. Second, engaging
in negotiations while still a staffer subjects you to ethical obligations beyond
merely disclosure and recusal. For a good summary of the additional obligations,
see the committee's Sept. 29, 2006, memorandum regarding post- employment
restrictions for staff. Third, after negotiating with private employers, you
might change your mind and remain in the House, in which case the ethics
committee would retain jurisdiction over you. Finally, even if you leave the
House with nothing coming to light, if it ever were to come out that you had
ignored your ethical obligations before leaving, it might tarnish not only your
own reputation, but also those of both your former employer in the House and
your new employer in the private sector.
Whatever you decide, make sure you are aware of the risks before you act. And
take care of your daughter!
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