A Question of Ethics

Cell Phone Rules Leave Staffers Out in the Rain

October 21, 2008

Q: I am a staffer in the district office of a Member of the House. In my spare time, I also volunteer on the Member’s re-election campaign. The campaign issued me a cell phone, which I typically use for all types of calls, whether related to the campaign or to my official work in his district office. Last week, while in the Member’s district office, I received a call on my cell phone from our campaign manager. We spoke for about a half-hour regarding planning for upcoming campaign events. When I got off the phone, a lawyer in our district office chastised me for violating House ethics rules. He said I had to leave the office to have such a call. I don’t think that’s right. My understanding is that I can use a campaign cell phone for both official and campaign purposes. Besides, it was raining! Who’s right?

A: Although there is no general prohibition against staffers working on campaigns in their spare time, doing so can be risky. It brings into play a whole host of ethics rules about which staffers who don’t work on campaigns generally need not worry. Your question implicates two sets of rules in particular that happen to be mirror images of one another. One governs the use of campaign resources for official purposes. The other governs the use of official resources for campaign purposes. Under the first set of rules, you are OK. On the second set, however, you hit a snag. In fact, the attorney appears to be right.

Let’s start with the restrictions on using campaign resources for official purposes, which appear in House Rule 24 and a federal statute: 2 U.S.C. 59e. Broadly, those rules provide that Members must pay official expenses from their office account, and that they may not maintain a separate “unofficial office account.” When these rules were originally established, one of their purposes was to erect a wall such that campaign funds could be used only for campaign purposes, and official allowances could be used only for official purposes. Since that time, however, the rules have been amended to allow the use of campaign funds for certain official purposes, so as to maintain the spirit of the original rules while alleviating inconveniences Members experienced under those rules.

The restrictions on the use of campaign funds for official purposes now apply only to five main categories: (1) official mail or other communications, (2) official employee salaries, (3) House office space, (4) furniture and (5) equipment and any associated information technology services. The rule explicitly exempts “handheld communications devices.” This the House ethics manual defines to include cell phones, BlackBerrys and associated communications services. Therefore, you are right that it was OK for the campaign to issue you a cell phone that you use for both campaign and official purposes.

However, you’re not out of the woods yet. This is because of the other set of rules that is relevant here — the ones requiring that official resources be used only for official business of the House. Under these rules, with limited exceptions, official resources may not be used for political or campaign purposes. The House ethics manual states that this is based on the principle that “government funds should not be spent to help incumbents gain re-election.”

House offices are one of the primary types of official resources that Members and staffers may not use for campaign business. This includes not only offices on Capitol Hill, but also Members’ offices in their districts, like the one where you work. The manual lists examples of activities that, under this prohibition, may not take place in your office: solicitation of contributions; drafting campaign speeches, press releases or other literature; preparation of Federal Election Commission reports; creation or issuance of a campaign mailing; and campaign meetings. In fact, the House ethics manual specifically addresses your exact situation. It states: “Even though a cellphone or BlackBerry is paid for with campaign funds, it may not be used to make or answer campaign- related calls, or to send or respond to e-mails or campaign matters, while the user is in a House room or office.” Therefore, while there is nothing wrong with using your cell phone for both campaign and official purposes, you may not use it for campaign purposes when you are in your district office. To conduct such calls, you must leave the office, raining or not.

I’ve written before that compliance with ethics rules requires close attention. For staffers who work on Members’ campaigns, there is something else that might help them comply — an umbrella.

© Copyright 2008, 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

It's the Big Game: Are Members Allowed to Accept Tickets?

October 7, 2008

Q: A lifelong friend of mine attended a state university in our home state and now works as a registered lobbyist for the school. Meanwhile, I attended a private university that is his school’s main rival, and I now work as a registered lobbyist for my alma mater. Later this month is the annual football game between his school and mine. It is always a big event and tickets are scarce. I recently learned that my friend has invited one of the House Members from our state, along with several of his top staffers. He plans to fly them out to the game, provide free tickets to the president’s box and then to treat them to a lavish dinner after the game. This sounded like an ethics rules violation to me, but my friend says he is sure the rules allow it. Maybe that’s true, but what really irked me is that he also said the rules would forbid me from making the same offer to Members and staffers. That can’t be right, can it?

A: Sometimes I field questions that require me to preface my response with the reminder that I did not write the rules, but merely report what they say. This is just such a question. Your friend is right. He may offer the tickets and other goodies to the Members and staffers on his school’s tab. But you may not. Here’s why:

As I am sure you are well aware, the Honest Leadership and Open Government Act of 2007 makes it illegal for lobbyists to make a gift in violation of the Congressional gift rules. Broadly, this means that lobbyists may not make a gift to a Member or staffer unless an exception applies. Tickets to the big game between your two schools, along with the other goodies your friend is offering the Member and staffers, surely qualify as gifts. Therefore, neither you nor your friend can provide them to Members or staffers unless an exception applies.

Believe it or not, there is an exception that applies to him but not to you. That exception, contained in clause 5(a)(3)(O) of House Rule 25, covers “anything that is paid for the Federal Government, by a State or local government, or secured by the Government under a Government contract.” The exception was created, in part, to facilitate cooperation and assistance within the government.

One of the critical questions regarding this exception is what qualifies as the “government.” The House Ethics Manual has answered that an entity qualifies only if “under the law, it is treated as a government agency for other purposes.” Examples of entities that the House ethics committee has recognized as government entities under this exception include government agencies, the Washington Metropolitan Area Transit Authority and the Tennessee Valley Authority. On the other hand, examples of entities that do not qualify include Amtrak, regional Federal Home Loan Banks and American Indian tribes.

In this case, the committee has explicitly stated that state universities qualify for the exception. In fact, the Ethics Manual includes an example that is right on point. In that example, a state university in a Member’s district offers the Member tickets to a game of one of the university’s teams. The manual states: “The Member may accept the tickets under this provision.” The manual goes on to state that a Member cannot, however, accept tickets from a private university unless their value is less than $50 and the university does not retain or employ lobbyists. That means you’re out of luck.

As for the other goodies your friend plans to provide to the Member and staffers, the rules allow those gifts as well. Your friend proposes to fly them out to the game and treat them to a lavish post-game dinner. According to the House Ethics Manual, the exception for gifts from the government is a broad provision that extends to “tangible items of all kinds, as well as meals, services, and travel.”

But there is a potential snag here. Your question doesn’t say who plans to pay for your friend’s whole affair. For the exception to apply, the Ethics Manual stresses that it is crucial that the gifts must be “paid for by” the government. This means that Members and staffers may not accept a gift from a government agency that was donated to the agency by a third party and for which the agency is merely acting as a conduit. In your friend’s case, then, he should be careful to ensure that the state university itself pays for anything and everything that is provided to the Member and staffers. Any other source of payment, such as school boosters, might be a rule violation.

To sum up, you have raised a question that highlights one of the quirky applications of the ethics rules. In short, state schools may shower Members and staffers with gifts. Private schools may not. Which leaves one more question: How good a friend is this friend of yours? Maybe he’ll invite you, too.

© Copyright 2008, 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.