Reprinted from Roll Call (June 14, 2011)
Q: I am the chief of staff for a freshman Member of the House with
a question about an issue that seems to keep coming up. We often receive calls
from constituents asking our Member to contact federal agencies regarding
pending decisions affecting their constituents. Our general rule is that,
because of the ethics rules, we do not assist with formal agency matters.
However, constituents have recently pushed back, claiming the rules allow a
Member to call on their behalf so long as the Member does not explicitly take a
position regarding the merits of the matter. Is this right?
A: To a certain extent, the constituents are right. House ethics
standards not only permit Members to communicate with agencies on behalf of
constituents, they downright encourage it. According to the House Ethics Manual,
serving as a “go-between” for a Member’s constituents and administrative
agencies is an “important aspect of a House Member’s representative function.”
The manual notes that the Constitution guarantees citizens the right to petition
the government and that a logical point of contact is one’s elected
Representative.
But, despite this encouragement for Members to communicate with agencies, not
all such communications are permissible. Members must be careful of what they
say to agency employees, how they say it and when they say it. You are right to
proceed with caution.
For a given administrative proceeding, to understand the difference between
permissible and impermissible communications with agency officials, two factors
merit consideration. One is the type of administrative proceeding. The other is
the content of the communication.
The primary restrictions on communications with federal agencies are found in
the Government in the Sunshine Act. That act prohibits off-the-record
communications — known as ex parte communications — with agency officials
regarding the merits of matters under their formal consideration. The purpose of
the ex parte rule, the Ethics Manual says, is to preserve the due-process rights
of all parties to formal administrative proceedings. As the manual states:
“Whenever parties to a dispute come before a formal tribunal, they are entitled
to a fair, impartial hearing and to equal access to the fact-finder.” Therefore,
the rule prohibits off-the-record communications by anyone — not just Members —
made on behalf of an interested party.
The first factor is the type of proceeding. The ex parte rule applies only to
formal agency proceedings. These include proceedings of a “trial-type” nature as
well as rule-making proceedings that must include formal hearings and a decision
on the record.
Thus, the House Ethics Manual states, a Member may communicate with agency
officials “concerning those matters not subject to formal agency proceedings.”
The House Ethics Manual identifies examples of proceedings covered by the
rules as well as those not covered by the rule. Examples of proceedings not
covered by the rules include informal rulemaking proceedings, “development of
agency policy” and “establishment of budgetary principles.”
One common example of a proceeding covered by the rule is a formal, contested
proceeding to award a contract among competitive bidders. In such a
circumstance, the manual says, a Member may not call the deciding official and
suggest which bidder should be awarded the contract. The Member could, of
course, express such a view in writing, as part of the record, consistent with
agency procedure because the ex parte rule does not prohibit communications made
on the record.
The second factor is the content of the communication. Even in the case of
formal agency adjudicatory proceedings, not all ex parte communications from
Members are forbidden. The Government in the Sunshine Act explicitly limits the
prohibition on ex parte communications to those that are “relevant to the merits
of the proceeding.” Therefore, the prohibition does not apply to “general
background discussions about an entire industry which do not directly relate to
specific agency adjudication involving a member of that industry.” The rule also
does not prohibit “status requests,” “routine inquiries” or “referrals of
constituent correspondence.” Moreover, a House ethics advisory opinion has
stated that a Member may introduce an individual to an agency, arrange
interviews and meetings for the individual, provide a character reference and
urge prompt and fair consideration of a matter.
However, while communications unrelated to the merits of a formal agency
matter are generally permissible, the House Ethics Committee has offered words
of caution about such communications. The concern expressed by the committee has
been that requests for background information or status requests “may in effect
be an indirect or subtle effort to influence the substantive outcome of the
proceedings.” The Ethics Manual suggests one way to avoid violating the rule is
to communicate solely in writing. However, while this might be a sensible
practice, it might not always be practical, and it is certainly by no means
required.
In sum, there is no need for a Member’s office to implement a blanket rule
against all communications with agency officials regarding pending matters. But
Members who do engage in such communications should be mindful of the applicable
rules. The rules require deliberate attention. They are anything but intuitive.
© Copyright 2011, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.