A Question of Ethics

OK to Use Campaign iPads for Official Work?

June 26, 2012

Reprinted from Roll Call (June 26, 2012)

Q: I am a staffer for a Senator, and I am hoping you can resolve a question that has arisen about the use of iPads for Senate work. As I understand it, the rules prohibit us from using computers for official Senate business if they are paid for by our Senator’s campaign. I have been a staffer for years, and this has been our practice for as long as I can remember. Others in our office say, however, that it is OK to use certain types of computers for Senate work even if paid for by the campaign. Specifically, they say that it is OK to use campaign-funded iPads for official purposes. Is this right?

A: It is right. But I can understand your confusion. Until recently, devices such as iPads had lurked in a gray area in the rules. It was not entirely clear whether it was OK to do official Senate business on campaign-funded iPads. Recently, the Senate Ethics Committee resolved that ambiguity and confirmed that it is OK.

The rule in question is Senate Rule 38, which prohibits “unofficial office accounts.” This means that Members and staffers may not fund official activities with private donations, such as campaign funds.

On the other hand, it is permissible to use campaign funds for activities that are “related to official duties or status” but do not qualify as “core Senate functions.” The idea is that private individuals should not be paying directly for official duties by Senators and staffers.

The challenge, of course, is to distinguish between activities that are merely related to official duties and those that are actually core Senate functions. Fortunately, there is official guidance on point. Specifically, campaign funds may not be used for franked mail, employee salaries, office space and equipment. Campaign funds may be used for other expenses related to Senate official duties.

The issue here is the prohibition on the use of campaign funds to pay for Senate “equipment.” The Senate Ethics Manual states that campaign funds may not be “used to provide equipment used in the performance of official duties, and Members may not accept equipment of loans of equipment from any third party, including any campaign.”

There is an exception, however, that permits the use of campaign funds to purchase a handheld communication device (iPhone or BlackBerry) and its associated information technology services. Under this exception, Members and staffers may use campaign-funded cellphones in connection with both official and campaign purposes. Before this exception was created, in order to avoid violating the rules, Senators and staffers “suffered the paradoxical inconvenience of sometimes having to carry duplicate if not triplicate cellphones (Senate, campaign and personal),” states a 2002 interpretative ruling. The exception was intended to end this inconvenience.

On the other hand, this exception does not extend to personal computers. This is consistent with your understanding that historically campaigns may not pay for computers used for official Senate business. According to the Senate Ethics Committee, a “handheld communications device includes devices such as cellular telephones and handheld digital assistants, but does not include laptop computers.”

The question here is whether an iPad is treated as a personal computer or a handheld communication device for purposes of the rule. If it’s a personal computer, Senate rules would prohibit using campaign funds to pay for an iPad used for official purposes. If it’s a handheld device, it meets the exception.

Earlier this month, this question was addressed squarely in a “Dear Colleague” letter issued jointly by the Ethics Committee and the Rules and Administration Committee. The Ethics Committee issues guidance regarding conduct by Senators and employees, while the Rules and Administration Committee oversees the appropriate use of official Senate funds.

The letter states that “tablet computers, such as iPads and other similar devices, may be purchased with funds from a Senator’s principal campaign committee and used by Members and employees on a Member’s personal office staff for both official and campaign purposes.” The reasoning is similar to the reasoning in creating the exception for handheld communications devices. Specifically, the letter states that it is “intended to provide Senate Members and employees with the convenience of using a single handheld communications device for multiple purposes (i.e., official and campaign), at no cost to the taxpayer, without unduly intruding upon the Senate’s role in providing equipment for Senate duties.”

If your Senator’s campaign decides to take advantage of this exception, or already is, there is good reason to proceed with caution.

The Dear Colleague letter closes with a useful reminder about protecting confidential information. Because campaign-funded iPads do not operate within the firewall of the Senate Computer Center, “confidentiality and security are not assured,” the letter says.

So, before using a campaign-funded iPad for official purposes, it might be wise to brush up on the rules on treatment of confidential information and to make sure the iPad is set up appropriately.

Either that, or just stick to games of Angry Birds.

© Copyright 2012, 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

How to Handle Having Former Staffer Friends

June 12, 2012

Reprinted from Roll Call (June 12, 2012)

Q: I am a Senate staffer with a question about communicating with former staffers. I have several good friends who have left the Hill for jobs in the private sector. We remain good friends, and I continue to see them on a regular basis. I recently heard that a Senate staffer was admonished by the Senate Ethics Committee for continuing to speak with a friend after the friend left the Hill. Do the rules really require me to stop talking to my friends just because they no longer work on the Hill?

A: First, you may rest assured that no law prohibits you from speaking with friends who no longer work on the Hill. As recently as last month, the Senate Ethics Committee confirmed this in a memorandum providing guidance on restrictions on post-employment communications. While the memorandum reiterates the ban on certain types of communications by former Senators and staff, it states: “Even during the period when departed Senators and staff are banned from official contacts with their former colleagues, purely social contact with former colleagues is generally permitted.”

The trick is distinguishing between “purely social contact” and the types of communications that are prohibited. Unfortunately, there is no bright line rule here that separates one from the other. But the recent Senate ethics memorandum does provide some guideposts.

Federal criminal law prohibits former Senators and senior staffers from contacting their former colleagues in the Senate with the intent to influence official action during a “cooling off period” after they leave the Senate. The period is two years for former Senators and applies to contacts with both the Senate and the House. The period is one year for former senior staffers and applies to contacts with the Senate. In addition, all former Senate employees, whether senior or not, are prohibited from making certain types of “lobbying contacts” within one year after leaving the Senate. A senior staffer is someone who is paid at least a rate equivalent to at least 75 percent of a Member’s annual salary for 60 days or more during the staffer’s most recent year or Senate employment.

During these cooling-off periods, the extent of restrictions depends on the type of position held before leaving the Senate. In general, however, the restrictions prohibit communications intended to influence official action. The recent Senate ethics memorandum emphasizes the breadth of the types of communications that are restricted. It notes that the restrictions extend even to contacts in which a former official does not explicitly advocate or plead on behalf of a client but instead makes a contact on behalf of a client. For example, a contact by an official “merely seeking information … may be problematic … when the information is sought on behalf of a client.” This, the memorandum says, is because a request for information by a former official on behalf of an influential constituent might induce official action even in the absence of an express request for official action. Because a request for “routine information not intended to induce some action” would not normally require the involvement of a former Senator or senior staffer, the memorandum says, such a request raises the inference that it is in fact intended to influence the recipient in some way.

Although the restrictions target former Senators and staffers, the Ethics Committee memorandum warns that current staffers should also not engage in communications that would violate the restrictions. This is in part because engaging in such communications could expose current employees to criminal liability for aiding and abetting a former official’s violation or conspiring with a former official to commit a violation. In addition, ethics rules require Senate employees generally to uphold the laws of the United States and avoid conduct that discredits the Senate.

Some staffers might wonder how careful they really need to be when speaking with friends who have left the Senate. After all, is it really conceivable that an enforcement official would ever become privy to the content of their conversations?

To such skeptics, recent admonitions issued by the Ethics Committee should serve as warnings. Inappropriate communications with former staffers can sometimes be discovered during investigations focused on entirely different conduct.

In 2009, the Senate Ethics Committee began a preliminary inquiry of then-Sen. John Ensign, initially focusing on the Nevada Republican’s conduct surrounding his extramarital affair with the wife of his former chief of staff, Doug Hampton. The investigation soon grew, requiring the hiring of outside special counsel. Hundreds of staffer communications were scrutinized. Not surprisingly, the inquiry turned up violations unrelated to the initial focus. Most significantly, it was discovered that Hampton had violated post-employment restrictions by communicating with Senators and staffers immediately after leaving the Senate. Federal prosecutors indicted Hampton on criminal charges, and last week he pleaded guilty.

Last month, the Ethics Committee admonished two people involved: Sen. Tom Coburn (R-Okla.) and Bret Bernhardt, a chief of staff for Sen. Jim DeMint (R-S.C.). The committee concluded that both had been friends of Hampton and were involved in discussing legislative matters with Hampton after he left the Senate, or at least arranging such discussions. In both cases, the admonitions came despite the committee’s conclusions that neither Coburn nor Bernhardt had committed actionable violations of criminal law.

Simply put, you can never know in advance what conduct will one day face government scrutiny. This means that a good rule to follow is to assume that all of your conduct might one day face scrutiny. Someone once said that character is doing the right thing when no one is looking. One could say that the best compliance policy is to assume that someone is.

© Copyright 2012, 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.