A Question of Ethics

Holiday Party Guest Lists: Check Them Twice

November 19, 2007

Q: I am a registered lobbyist with a question about holiday parties. Next month is our family’s annual holiday oyster roast. It’s a huge dinner party at our home, with more than 100 guests, thousands of oysters, Virginia ham, Brunswick stew and lots of good wine and beer. My question concerns whom I may include on the guest list.

In particular, last month a House staffer moved into the house next door. We do not know him well yet, but we plan to invite him anyway, as it is a longtime family tradition to include everyone on our street. Before inviting him, I wanted to confirm that the invitation would not violate the new restrictions on lobbyists. I don’t think it would because our oyster roast is a widely attended event. Is that right? Or am I required to leave him off the list, while inviting everyone else on the street?

A: When preparing a guest list for a holiday party, a host’s biggest risk used to be omitting someone who might take offense. Now, when lobbyists are the hosts, they could face an even bigger risk: going to jail for inviting someone they should not have. As odd as that might seem, it is yet another consequence of the breadth of the recently enacted Honest Leadership and Open Government Act.

As you are no doubt aware, that act requires registered lobbyists to comply with the Congressional gift rules. Here, since your question concerns a House staffer, the House gift rule applies. That rule prohibits Members and staffers from accepting any gift, unless an exception applies. Therefore, whenever you think you may need to apply the gift rule, there are always two questions to ask. First, is there a gift? And second, does any exception apply?

For the first question, the place to start is the definition of “gift.” After all, if there is no gift, there can be no gift rule violation. Admittedly, if I had to characterize some of the holiday parties I have attended over the years, “gift” would not leap to mind. However, the House rule’s definition is broad and captures more than just what Santa leaves under the tree. It includes, among other things, favors, gratuities, entertainment, hospitality and any other item having monetary value. Under this definition, there seems a good chance that the ethics committee would consider attendance at your party, with all the food and drinks that go with it, to be a gift.

If the invitation is a gift, the next question is whether any exception applies. Your suggestion is the exception for widely attended events, which allows Members and staffers to accept free attendance at such events when certain criteria are met. Unfortunately, it would be difficult to argue that your party meets the criteria. The exception typically covers events like meetings of trade groups and professional associations. Most significantly, in order for the exception to apply, the staffer’s attendance would need to be in connection with his or her official duties. Here, unless your neighbor happens to work for the Subcommittee on Brunswick Stew (which, of course, debates whether squirrel is an essential ingredient), it would be hard to argue that his attendance would somehow be connected to his official duties.

Another exception to consider for holiday parties allows staffers to accept food and refreshments of a nominal value offered other than as part of a meal. The ethics committee has interpreted this provision to allow Members and staffers to accept “the kinds of food and refreshments usually offered at receptions (such as hors d’oeuvres, appetizers and beverages).” Unfortunately, while the offerings at some holiday parties might meet this definition, the fact that your spread is intended as dinner makes it unlikely to qualify.

One final exception that can apply to some holiday parties covers gifts given on the basis of personal friendship. Again, however, it is unlikely that you meet the criteria. In applying this exception, one of the factors the ethics committee considers is the history of the relationship between the donor and the recipient, including any previous exchange of gifts. Here, you say that you do not know the staffer well, so the exception does not seem applicable.

There also is the question of whether you intend to invite any other Members or staffers to your party. If so, before sending them invitations, you should study the criteria of the personal friendship exception to make sure it applies to each one. In the spirit of the season, many holiday party guest lists are very large and include invitees who might not meet the specific criteria of the personal friendship exception.

Regardless of whether you intend to invite other staffers, the options that the ethics reform gives you with respect to your neighbor don’t seem all that, well, neighborly. You could leave him off the list altogether. You could invite him but instruct him not to eat (perhaps he could just taste the stew). Or, you could seek the approval of the ethics committee. Unfortunately, the committee provides advisory opinions only to House employees, so, if you went this route, you would have to suggest that your neighbor seek the committee’s approval himself.

If you can’t stomach any of these options and you choose to ignore the rules altogether, you do so at your peril, as the possible sanctions are more serious than mere coal in your stocking. Knowing violations of the Congressional gift rules can result in heavy fines, while corrupt violations can lead to up to five years in jail. Of course, unless Scrooge himself has recently joined the Justice Department, it seems unlikely that federal attorneys would investigate you for observing your tradition of inviting all your neighbors to your holiday party. Yet, you might not want to be the one to test their holiday spirit. “’Tis the season to be jolly” is not much of a legal defense.

© Copyright 2007, 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.


A Question of Ethics

Meals With Lobbyists Pose Unappetizing Compliance Questions

November 5, 2007

by C. Simon Davidson

Q: I am a House staffer with a question about splitting restaurant checks with lobbyists. Like many staffers, I often go out after work with other House and Senate staffers, and sometimes lobbyists join us, too. When they do, I know that the new ethics rules forbid them from paying for our meals. Therefore, to avoid a violation, we simply divide the total cost of the meal among the number of diners. Last week, however, a friend who joined us took issue with our method of splitting up the check. She said that, when lobbyists join us, the ethics rules require each diner to pay specifically for the items that they consume. Is she right? Or is our normal check-splitting method enough?

A: As trivial as some people might find the subject of splitting restaurant checks, the issue you have raised actually merits close scrutiny. This is true for two reasons. First, the House ethics committee has said so. In the case of potential gift rule violations, the House Ethics Manual states that Members and staffers must be “especially careful” about “small group and one-on-one meals.”

Second, your issue concerns so many Members and staffers. As you point out, Members and staffers frequently dine with lobbyists. Under the Congressional gift rules, every meal with lobbyists raises the risk of a violation. Even if you are mindful of the rules, it can be difficult to remain compliant.

Fundamentally, you are right that the House and Senate ethics rules prohibit lobbyists from paying for staffers’ meals. The new rules generally prohibit gifts from lobbyists, and a meal at a restaurant would certainly qualify as a gift. While the rules are silent regarding how to split restaurant checks, the Senate Ethics Manual does address the issue. Because of the similarity between the House and Senate gift rules, the Senate manual’s reasoning likely would apply in the House as well.

The Senate manual states that if someone else pays for a staffer’s meal, it is a gift and therefore is prohibited unless it meets an exception to the gift rule. However, if a staffer dining in a group pays an amount equal to the staffer’s “proportionate share of the total meal,” the staffer has not received a gift at all.

Your question boils down to how to ensure that you have paid your “proportionate share of the total meal.” Your favored method seems reasonable. After all, people use your method to split checks all the time. However, popular as it might be, there is a risk that the ethics committees might view it as not good enough.

The risk lies in the potential that the food and drink items that you consume might cost much more than the lobbyists’. Suppose a lobbyist joins you and a staffer for dinner. The lobbyist orders a $10 salad while you and the other staffer splurge on $100 each worth of Kobe beef and pricey wine. If you were to follow your approach and split the $210 check three ways, you and the staffer would pay only $70, or $30 less than the cost of what you consumed. Meanwhile, the lobbyist would pay $60 more than the cost of his salad. The risk is that the ethics committees might deem this to be a $30 gift to each of you, in violation of the rules. Moreover, while in your case the violation would be completely innocent, it is conceivable that less virtuous staffers and lobbyists might use your method as an end-around the ban on gifts from lobbyists.

Perhaps, then, the ethics committees would prefer your friend’s rule that each diner must pay only for the items of food and drink they consume. However, it is far less practical. In fact, it may even be impossible to follow.

Setting aside waiters’ resistance to providing so many separate checks, the biggest problem with your friend’s rule would arise when diners share food and drink items during the course of a meal. Take appetizers, like a $12 plate of calamari shared among three diners. Seems easy, right? Four dollars for each of you. Not so fast. What if one of you eats most of it? Or, if the lobbyist has just one bite? Must everyone count their individual calamari rings? Wine is an even bigger curveball. Suppose you order two $100 bottles among the three of you, and one guzzles much more of it than the others? To comply, do you need to bring beakers to dinner?

In light of these problems, neither your approach to splitting checks nor your friend’s seems ideal. Yours runs the risk of a violation, while adhering perfectly to your friend’s rule just doesn’t seem practical.

So what are you to do? Given the frequency of meals like yours, and the uncertainty about how to comply, staffers like you could benefit from guidance from the ethics committees. Nowhere does the ban on gifts from lobbyists intrude more upon the daily lives of staffers than in the context of group meals.

Eating out with lobbyists can now result in needless anxiety. It would go a long way toward alleviating that anxiety if staffers knew that when they dine with lobbyists, they will not violate the gift rules so long as they make a good-faith effort to pay their share. This seems a reasonable standard to me, and, in most circumstances, your method of splitting a dinner tab evenly should be enough to meet the standard. But, only the ethics committees can say for sure.

© Copyright 2007, 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.