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Below is a condensed version of this topic. For complete guidance please refer to the House Ethics Manual, Chapter 7 on staff rights and duties.
The Committee on House Administration has promulgated regulations covering the Members’ Representational Allowance (“MRA”)37 and the employment of committee staff. The Members’ Handbook and Committees’ Handbook contain these regulations38 A summary follows.
Each Member of the House may employ up to 18 permanent employees and a total of not more than four additional employees appointed as interns, part-time employees, shared employees, temporary employees, or staff on leave without pay to serve as the Member’s staff. The regulations issued by the Committee on House Administration establish the maximum and minimum annual rates of employee salaries. A portion of the MRA is used for securing staff to provide assistance to Members in the discharge of official and representational duties.39 A statute that required that individuals compensated from the then-clerk hire allowance40 work either in Washington, D.C., or in the state or district that the Member represents was repealed in 1996, thereby permitting employees to “telecommute.”41 The Committee on House Administration has issued a policy statement on telecommuting, which is available on that committee’s website. As discussed in that policy statement, telecommuting is entirely at the discretion of the employing office, and employing offices are under no obligation to offer a telecommuting option to employees. An employee with a telecommuting work arrangement is subject to the same rules, regulations, and procedures applicable to all staff of an employing office, including those contained in the House rules, the Committee on House Administration’s regulations set forth in the Members’ Handbook and Committees’ Handbook, the employing office’s employee manual, applicable federal laws, and guidance of the Ethics Committee.
Provisions of the House rules establish a ceiling on the number of professional and clerical staff that may be employed by each standing committee of the House and address the pay of these employees (House Rule 10, clauses 9(a) and 9(c)). The Committees’ Handbook sets out regulations and guidelines for employment and compensation of committee staff.
The House rules state that professional staff members of the standing committees of the House “may not engage in any work other than committee business during congressional working hours” and that they “may not be assigned a duty other than one pertaining to committee business” (House Rule 10, clauses 9(b)(1)(A) and 9(b)(1)(B)). Thus, committee staff may not be used to supplement the personal office needs of committee members.
The regulations of the Committee on House Administration require employing Members to provide monthly salary certifications for their staff. A salary may be disbursed to an employee only upon submission of a signed statement by the appropriate Member certifying that the Office of Human Resources has correctly listed the name and salary of each employee, and that the employees have certified that they have no relationship to any current Member of Congress, unless specifically noted. Compensation may be received only for duties performed within the preceding month.
The Ethics Reform Act of 1989, incorporated into House Rule XXIII, clause 8, was intended “to strengthen and broaden [Members’ and officers’] accountability for the pay and performance of staff.”42 The rule previously addressed only Members as employing authorities. It now also applies to House officers, committee chairs, subcommittee chairs, and ranking minority members in their supervisory roles. Clause 8, in pertinent part, provides:
(a) A Member, Delegate, Resident Commissioner, or officer of the House may not retain an employee who does not perform duties for the offices of the employing authority commensurate with the compensation he receives.
(b) In the case of committee employee who works under the direct supervision of a member of the committee other than a chairman, the chairman may require that such member affirm in writing that the employee has a complied with clause 8(a) (subject to clause 9 of rule X) as evidence of compliance by the chairman with this clause and with clause 9 of rule X.
Thus, when a Member other than a committee chair (e.g., a subcommittee chair or ranking minority member) directly supervises committee staff, the chair may require the supervising Member to certify the staff’s performance. According to the Bipartisan Task Force on Ethics report,
[t]he purpose of this requirement is to ensure accountability for employee performance. The rule specifically states that, if a supervising Member has affirmed in writing that the employee under his authority has met the criteria of the rule, this written affirmation is sufficient evidence that the chairman is in compliance with the rule’s provisions. Any violation would consequently become the responsibility of the supervising Member.43
Guidelines of the Committee on House Administration prohibit two or more employees from holding the same House position and from dividing a House salary. In addition, House employees are prohibited from subletting any portion of their official duties to someone else.44 One employee may be shared between two or more House employing authorities (e.g., one staffer may work for two Members or for both a Member and a committee). Part-time work is also permitted.45
The underlying standard for the receipt of compensation by an employee of the House is that the employee has regularly performed official duties commensurate with the compensation received. The Code of Ethics for Government Service instructs every employee to “[g]ive a full day’s labor for a full day’s pay; giving to the performance of his duties his earnest effort and best thought.”46 Employees are paid United States Treasury funds to perform public duties. Appropriated funds are to be used solely for the purposes for which appropriated.47 Funds appropriated for congressional staff to perform official duties should be used only for assisting a Member in his or her legislative and representational duties, working on committee business, or performing other congressional functions. Employees may not be compensated from public funds to perform nonofficial, personal, or campaign activities on behalf of the Member, the employee, or anyone else.
There is no conclusive listing of a Member’s “official and representational duties.” However, the Supreme Court discussed such a concept in a different context and stated that “legitimate” activities of a Member include things said or done in the House relating to official duties and include “legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases and speeches delivered outside the Congress.”48
38 See note 6, supra.
41 Pub. L. 104-186, Title II, § 204(43), 110 Stat. 1718, 1736 (Aug. 20, 1996).
42 Bipartisan Task Force on Ethics, Report on H.R. 3660, 101st Cong., 1st Sess. 60 (Comm. Print, Comm. on Rules 1989), reprinted in 135 Cong. Rec. H9253, H9270 (daily ed. Nov. 21, 1989) (hereinafter “Bipartisan Task Force Report”). See also Ethics Reform Act of 1989, Pub. L. 101-194, § 802(b)(1), 103 Stat. 1716, 1773 (1989).
43 Bipartisan Task Force Report, supra note 42, at 33; 135 Cong. Rec. H9262.
44 See 2 U.S.C. § 101.
45 See Members’ Handbook and Committees’ Handbook, supra note 6.
46 See Code of Ethics for Government Service ¶ 3, supra note 6.
47 See 31 U.S.C. § 1301(a).
48 United States v. Brewster, 408 U.S. 501, 512 (1972). See also McCormick v. United States, 500 U.S. 257, 272 (1991) (“Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator.”).