Q: I am a staffer for a freshman Member of the House with a question about
filling out our boss’ staff. We have one more position to fill, and our Member
would like to hire someone who has served as his personal assistant for the past
eight years. Over the years, the personal assistant has done a little bit of
everything for the Member, including scheduling, driving, laundry — even
baby-sitting his children. Our chief of staff has concerns about whether someone
on the House payroll can perform duties like these. May the Member hire his
longtime assistant to perform these duties as a House staffer?
A: There are several different sources of restrictions on the uses of House
staff. These include the House Rules, the House Members’ Handbook, the House
Committee Handbook and federal statutes. Rather than parsing the language of
each, for our purposes let’s just focus on their gist.
The House Ethics Manual provides a good synthesis of the many restrictions.
It begins with the general principles that Congressional employees “are paid
United States Treasury funds to perform public duties” and that “appropriated
funds are to be used solely for the purposes for which they are appropriated.”
In the case of staffers, the funds used to pay their salaries should be used
only for legislative and representative duties, working on committee business,
and other Congressional functions. “Employees may not be compensated from public
funds to perform ... personal ... activities on behalf of [a] Member, the
employee, or anyone else.” Members must certify that the compensation their
staffers receive complies with these rules.
In short, staffers may perform “official and representational duties” but may
not perform personal duties for Members as part of their work responsibilities.
The difficulty lies in discerning the difference.
Unfortunately, none of the sources of restrictions on the uses of House staff
include clear guidance regarding the distinction between official and personal
duties. No House rule or federal statute even defines the “official and
representational duties” that staffers may perform. This means that discerning
the difference between official and personal duties must largely be done on a
What makes this gray area particularly troubling is that personal use of
House staff can in some cases subject Members to criminal liability. Four times
in the past, a Member has faced criminal charges for using staff for personal
services. Charges have included embezzlement of government funds, fraud and
false certifications regarding staffers’ compensation. Prosecutors have
essentially alleged that Members who use staffers for personal services are
stealing official funds.
But, just as these cases warn of the risks of using staffers for personal
services, they also illustrate the difficulty in discerning the difference
between personal and official services. For example, in 1995, a federal appeals
court reviewed the conviction of Rep. Dan Rostenkowski (D-Ill.) for, among other
things, using staff for personal services. In an opinion that was more candid
than it was clarifying, the court said that it was “not so sure” that the rules
provide a standard for distinguishing between official and personal services.
This, the court said, is because “the line between ‘official work’ and ‘personal
services’ is not so clear.”
The court’s analysis of the specific allegations regarding Rostenkowski’s
staff further reveals how difficult it is to tell “personal” from “official.”
The court concluded that a staffer who performed bookkeeping duties for a
company Rostenkowski owned was plainly doing personal services for him in
violation of the law. On the other hand, the court concluded that the following
services might qualify as official work: mounting souvenirs on plaques, picking
up Rostenkowski’s laundry and driving his family around. This is because such
services might, in some circumstances, aid a Congressman in performing his
official duties. The court cited the Members’ Handbook for the general
proposition that the House vests Members with discretion to fix the terms and
conditions of employment of staff.
Yet, you should take only so much comfort in the court’s conclusion with
respect to these services. Just because a federal court in 1995 said that
certain services might qualify as official services does not mean that today’s
House Committee on Standards of Official Conduct would agree. Ultimately, the
only way to know whether the ethics committee would consider a given service to
be personal or official is to ask.
So, while I may have my own views regarding what should count as official
work and what should count as personal, I am afraid that those views will not be
of much use here. Rather, the ambiguous line between personal and official
services means that the safest course for your Member would be to seek an
advisory opinion from the House ethics committee. Specifically, he can submit a
list of all of the duties that he wishes his assistant to perform, and he can
request that the committee opine as to the propriety of each one. In the
meantime, if his children need a baby sitter, I’d suggest he look somewhere
other than his House staff.
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