A Question of Ethics

Risks Lie in Submitting Allegations to the New Ethics Office

April 20, 2009

Q: I am a recently retired employee of a government watchdog group. I have suspicions that the Representative in my district may have engaged in a pay-to-play scheme with a local contractor. I am considering filing a complaint, and am pleased that the newly created Office of Congressional Ethics allows private citizens like me to do so. My wife says that I should be careful, however. She says that if I start trouble, I could wind up in trouble myself. What is the process for reviewing complaints filed with the Office of Congressional Ethics, and do I have anything to be concerned about in filing one?

A: Your question is well-timed. While the OCE was barely visible during the first few months after its creation, that recently changed. Last week the OCE issued its first quarterly report, which confirms that the office is charged with reviewing allegations of House misconduct and, when appropriate, referring matters to the Committee on Standards of Official Conduct (casually known as the ethics committee). The report also states that several reviews are already under way.

While only Members may file formal complaints with the ethics committee, anyone may submit information to the OCE. The recently launched OCE Web site sets forth the rules and procedures, including how to submit allegations. Under the OCE rules, when the office receives allegations of misconduct there are three stages of review and to move from one to the next requires an increasingly heightened standard of proof.

The first stage is a preliminary review, which is an inquiry of no more than 30 days. To begin such a review, the OCE must first determine that there is a “reasonable basis” to believe the allegation in question.

After the preliminary review, the OCE conducts a second-phase review if it finds “probable cause” to believe that the allegation occurred. This means that the evidence in the preliminary review must be sufficient to lead a person of ordinary caution and prudence to have a strong suspicion of a violation. The second-phase review should last no more than 45 days.

Finally, after the second-phase review, the OCE recommends further review by the Committee on Standards of Official Conduct if it determines that there is “substantial reason” to believe the allegations. Before making such a recommendation, the OCE must allow a statement from the subject of the allegations. According to the OCE report, there are currently six second-phase reviews pending.

As for how to submit information to the OCE, there is no process for filing a formal complaint. Instead, citizens can request investigations through informal “submissions.”

The OCE rules have a list of information to include in submissions. Most of the items on the list are straightforward and non-controversial — for example, your name, the Representative’s name, a statement of facts and relevant documents. One of the items, however, is a little thornier. It is a signed declaration acknowledging that the False Statements Act applies to the information you are providing.

You should be aware that to include such a declaration could expose you to the kind of trouble your wife warned about. The False Statements Act states that it is a crime if you knowingly make a false statement in any matter within the jurisdiction of the executive, judicial or legislative branch of government. Violators can face up to five years in jail. While I am sure you have no plans to include any false information, you do refer to your concerns as “suspicions,” so you should be careful to ensure that any information you submit is true.

To provide some context, this is the same act that former Sen. Ted Stevens (R-Alaska) was convicted of violating last year for alleged misrepresentations in his Senate financial disclosure reports. While that conviction was recently dismissed amid allegations of prosecutorial misconduct, the case nevertheless demonstrates the legal risks raised by the False Statements Act.

In an even more relevant example, former Office of Management and Budget official David Safavian was also convicted late last year for violating the False Statements Act. His conviction stemmed, in part, from statements he made during a Senate Ethics Committee investigation.

Of course, in the case of both Stevens and Safavian, prosecutors might have suspected that the defendants were guilty of more than just making false statements. The False Statements Act is a tool commonly utilized by prosecutors who suspect more serious crimes but may have insufficient evidence to pursue them. In the absence of such suspicions, prosecutions under the act are less common. Therefore, even if you were to make a few mistakes in the information you submit to the OCE, it is unlikely the mistakes alone would land you in jail.

Finally, it is unclear whether the False Statements Act should even apply to your submission. Perhaps in acknowledgement of the potential inapplicability of the act, the OCE rules merely “suggest” — and do not require — that submissions include a statement acknowledging the applicability of the act. This is in contrast to the rules for witnesses who testify during OCE proceedings. The House resolution that created the OCE explicitly requires such witnesses to acknowledge the applicability of the False Statements Act to their testimony.

Despite these mitigating factors, filing an OCE complaint, at least in theory, can carry legal risks. As to whether you should proceed with your submission, I’ll leave that to you. But I will say this: My wife is always right. Maybe yours is, too. Look before you leap.

© Copyright 2009, 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

May Lobbyists Still Lobby for Stimulus Funding?

April 6, 2009

Q: I am a lobbyist with several clients who are interested in funds from the recent stimulus package and have sought my help. I understand that there are brand new restrictions regarding lobbying for these funds, including an outright ban on talking to federal officials. This really concerns me. I’m not sure how I can do my job without speaking to the officials about funding. Do the new rules really prohibit me from doing so?

A: As a lawyer myself, I know what it’s like to work in a profession that is not always held in the highest esteem. Our bad rap dates back at least as far as William Shakespeare’s character Dick the Butcher famously suggested killing us all. Lately, though, your profession may have displaced mine as everyone’s favorite punching bag. To some, “lobbyist” is now such a bad word that many lobbyists are afraid to admit what they do.

But reputation is not the only reason they might not want to call themselves lobbyists these days. There are legal ramifications as well, including a bevy of new rules that apply to registered lobbyists but not to anyone else.

The latest singling out of lobbyists came in a March 20 presidential memorandum intended to ensure responsible spending of American Recovery and Reinvestment Act funds. Broadly, the memorandum requires federal agencies to do three things. First, they must develop transparent, merit-based selection criteria for spending the funds. Second, they must avoid imprudent projects. Finally, they must ensure the transparency of their communications with registered lobbyists regarding the funds.

As to this third requirement, the memorandum prohibits oral communications between registered lobbyists and agencies concerning particular projects, applications or applicants for funding under the act. In fact, whenever an agency employee is about to engage in oral communications regarding a particular project, application or applicant, the employee must first confirm that none of the participants is a lobbyist. This includes telephone communications, which could mean agency employees will start answering the phone: “Hello, are you a lobbyist?” As to face-to-face communications, it might make things easier if all lobbyists began wearing a Scarlet L.

It probably gives you little comfort to know that you are not completely forbidden from communicating with the agencies. The memorandum does allow, for example, a lobbyist and an agency official to discuss “general” issues with the act, so long as the talks do not “touch upon” particular projects, applications or applicants. Even for these general policy talks, however, the official must immediately document the time, participants and subject matter. That documentation must then be posted on the Internet within three days.

In addition, lobbyists may still send officials written communications that specifically address projects, applications or applicants. Again, however, agencies that receive such communications must post them on the Internet within three days of receipt.

In a nutshell, the rules mean that you may not communicate orally with agency officials regarding a “specific project, application, or applicant.” As you suggest, this could make your work very difficult. Talking seems an important part of lobbying. Lobbying without talking to the people might make for a good parlor game, but doing it for a living sounds less fun. (You better think of a good “sounds-like” signal for “stimulus.”)

If it’s any silver lining, there is some uncertainty about how long the new restrictions will remain in effect. The memorandum requires the director of the Office of Management and Budget to review implementation of the rules and then provide any recommended revisions within 60 days. It is possible that agencies will find the restrictions so cumbersome as to make them impractical. For example, many agency officials have countless conversations about funding. The new rules could make officials try to count the countless.

In the meantime, the rules might face legal challenges as well. Three unlikely allies have joined forces to request that the restrictions be replaced with a “constructive alternative.” The American League of Lobbyists, the American Civil Liberties Union and Citizens for Responsibility and Ethics in Washington sent a joint letter to the White House, calling the new rules an “ill-advised restriction on speech and not narrowly tailored to achieve the intended purpose.” It is possible that if one of the groups challenged the ban in court, it could succeed. After all, the right to petition the government for redress of grievances is explicitly protected by the First Amendment. Moreover, it does seem difficult to justify prohibiting lobbyists from talking to officials about the bill’s projects while allowing oral communications from everyone else, including potential recipients of such funding.

There is a chance, then, that the limits on your lobbying activities will be short-lived. For the time being, however, your lobbying for specific act funding and clients should be in writing. Given the public disclosure requirements, be careful what you write.

© Copyright 2009, 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.