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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.
House rules prohibit unofficial office accounts - that is, private supplements to the funds available to Members through their clerk hire and official expenses allowances.70 In Advisory Opinion No. 6, interpreting the unofficial office account prohibition, the House Select Committee on Ethics, 95th Congress, concluded that in addition to money, the prohibition on unofficial office accounts proscribes the private, in-kind contribution of goods or services for official purposes. The Select Committee found that “no logical distinction can be drawn between the private contribution of in-kind services and the private contribution of money, and that both perpetuate the very kind of unofficial office accounts and practices that are prohibited” by the rule.71
The Select Committee did, however, recognize several exceptions to the general prohibition against acceptance of services including the following:
The Committee defines the terms “employee,” “intern,” “fellow,” “volunteer,” and “detailee” as follows:
A Member or House office may accept the temporary services of an intern participating in a program, as discussed below, which is primarily of educational benefit to the participant, irrespective of whether the individual is being compensated by a third-party sponsoring organization. Similarly, a Member or House office may accept the temporary services of a fellow participating in a mid-career education program, as discussed below, while the individual receives compensation from his or her employer. An internship or fellowship program should be operated by an entity not affiliated with a congressional office, and the organization should be willing to indicate its sponsorship of the intern or fellow in writing.
Restrictions on Establishing Internships and Fellowships. House Members and staff may not raise or disburse funds for programs that place interns or fellows in their own offices.74 Offices that have established their own internship program for students may advertise intern openings.75 In addition, Members do have the right to select or approve those program participants who will be working in their offices.
While internship and fellowship programs are often sponsored by educational institutions, other public or private organizations may act as sponsors, provided the arrangement does not give undue advantage to special interests. Therefore, an intern or fellow should not be assigned duties that will result in any direct or indirect benefit to the sponsoring organization or anyone else with which the individual is affiliated (including the employer or a fellow), other than broadening the individual’s knowledge.
An individual who is serving as a paid intern or fellow must comply with all the laws, rules, and standards of conduct applicable to House employees, including the Code of Official Conduct (House Rule 23), the gift rule (House Rule 25, clause 5), the ban on solicitations (5 U.S.C. § 7353), and the limitations on accepting a payment for a speech, article, or appearance (House Rule 25, clause 1(a)(2)). In addition, under provisions of the criminal code (18 U.S.C. §§ 203, 205), such individuals are prohibited from representing anyone before any federal agency or official or in any matter in which the federal government is a party or has a direct and substantial interest.
Foreign nationals. Generally, it is permissible for a foreign national to serve an unpaid internship or fellowship for a Member in either a personal or committee office. Such an internship or fellowship would be subject to the same conditions and restrictions as other such educational programs. Thus, the foreign national should not be assigned any matter of interest to the individual’s employer (if any) or the program sponsor. In addition, the foreign national should not be assigned any duties that enable the individual to influence United States policy in a way that benefits the individual’s home country. Because of concerns arising under Article I, section 9, clause 8 of the Constitution (the Emoluments Clause), the Ethics Committee should be contacted for advice about any prospective internship or fellowship involving a foreign national receiving a salary, or some other form of support, from the individual’s home country while serving in a House office.
Example 8. Student A writes to Member B offering to work in B’s office for one semester, as part of his college’s government internship program. A encloses a copy of the college’s brochure on its internship program and a letter from the dean, indicating that A will get college credit for his participation. B may accept A’s services.
Example 9. Scientist C works for a pharmaceutical company that sponsors a mid-career fellowship program. In conjunction with the program, C writes to the Science Committee, offering her services for one year, during which time the company would continue to pay her salary. The Committee may accept C’s services, provided that she does not work on legislation that will directly benefit her employing company.
Example 10. Student D’s college does not have a formal internship program. D’s political science professor has offered to give him independent study credit if he volunteers in a congressional office and writes a paper on what he learns about the legislative process. A Member could accept D’s services as a volunteer under these circumstances (see discussion below on “Volunteers”). The independent study credit demonstrates the educational benefit to Student D.
Example 11. E, a foreign national, has applied through an educational program in Washington, D.C., to serve as a “visiting fellow” in Member F’s office for six months. The program will pay E a stipend and will pay for the individual’s health insurance during the fellowship. E will receive no other salary or form of support from any source. Member F may accept E’s services, provided that she is not assigned any duties that would benefit the sponsoring program or the fellow’s home country.
A Member or House office may accept the temporary services of a volunteer, provided the Member or office has a clearly defined program to assure that: (1) The voluntary service is of significant educational benefit to the participant; and (2) such voluntary assistance does not supplant the normal and regular duties of paid employees. In this regard, limitations should be imposed on the number of volunteers who may assist a congressional office at any one time, as well as the duration of services any one volunteer may provide. A volunteer should be required to agree, in advance and in writing, to serve without compensation and not to make any future claim for payment, and to acknowledge that the voluntary service does not constitute House employment.76
A Member or House office wishing to use the services of an individual seeking to volunteer may also place the individual in a temporary paid position on the Member’s clerk hire payroll or other personnel fund, as authorized by regulations of the Committee on House Administration. If so, the individual would have to comply with the laws, regulations, and standards of conduct applicable to House employees.
Immediate Family Members May Volunteer. A Member may accept volunteer services without limit from his or her own immediate family, i.e., spouse, children, or parents. As discussed previously in this chapter, however, 5 U.S.C. § 3110 and House rules prohibit Members from appointing relatives to paid positions.
Example 12. A recent college graduate seeking work on Capitol Hill offers to volunteer in Member A’s office while looking for a paying job. Unless A has a program in the office to ensure that volunteers derive significant educational benefit and do not merely fill in for busy staffers, A may not accept the offer.
Example 13. A retiree in Member B’s district offers to volunteer two days a week in the district office, answering telephones, making copies and generally freeing up the paid staff to do more substantive work. B may not accept this volunteer’s services because they are not of significant educational benefit to the volunteer, and they supplant the normal and regular duties of paid employees.
Example 14. Member C runs a program for senior citizens in C’s district office. One or two retirees at a time volunteer for six-month periods during which time they receive regular briefings on legislative issues of concern to seniors and act as liaisons to other seniors in the district. Because the volunteers’ services are temporary, of significant educational benefit to the participants, and do not supplant the normal and regular duties of paid employees, this program complies with Committee guidelines.
Example 15. Member D’s spouse offers to volunteer in the district office as an extra caseworker. As long as the spouse receives no pay, Member D may accept.
Example 16. A social services agency in Member E’s district wishes to include the Member’s district office as a work site in a welfare-to-work program. A participant in the program wishes to be assigned to the office for up to 12 months to provide clerical services. The program participant would not displace any incumbent employee or fill a vacant, unfilled position. Because the job training program sponsored by the agency serves essentially the same purpose as in internship or volunteer program providing a significant educational benefit to the participant, E may participate in the welfare-to-work program.
Volunteers, interns, and fellows should be made aware of the implications their activities have for the Members in whose offices they work. Technically, House rules cannot be enforced against individuals who are not House employees. However, such individuals may be in a position to take actions and make representations in the name of a Member, for which the Member may be responsible. The government may also be subject to a claim of liability for work-related injuries to, or caused by, a volunteer, intern, or fellow acting within the scope of his or her position with the House. The Committee recommends that Members and House offices obtain the agreement of such individuals that, although not House employees, they will conduct themselves in a manner that reflects creditably on the House. Members are also encouraged to obtain the Committee’s guidance regarding their participation in any volunteer, internship, or fellowship program in which they wish to participate.
Business Cards. In a June 29, 1990, letter from the Ethics Committee to all Members addressing the circumstances under which the services of volunteers may be accepted in congressional offices, the Committee concluded that individuals not paid by the House of Representatives (which also includes interns and fellows) may not use or obtain business cards or other materials suggesting an employment relationship with the House.77
Standards Committee Actions. In recent years, the Ethics Committee has investigated a number of complaints involving the inappropriate use of volunteers. In the 104th Congress, the Committee considered two complaints involving the misuse of volunteer services by a Member. In one matter, the Committee found that the Member made inappropriate use of volunteer services during the period in which he was assembling a leadership staff to become the Speaker of the House.78 In addition, the Committee found that the routine presence of a volunteer in the Member’s congressional office created the appearance of improper commingling of political and official resources and, thus, violated the prohibition on unofficial accounts.79 In the second matter, the Committee found that while the Member’s office took steps to ensure that a volunteer’s activities were proper, the volunteer’s participation as an “informal advisor” did not comply with the Committee’s guidelines governing interns or volunteers because the services were not part of a clearly defined educational program.80 The Committee directed the Member to take immediate steps to not only prevent the reoccurrence of similar incidents and ensure compliance with the Committee’s standards, but also to guard against even the appearance of any impropriety.81
In the 105th Congress, the Ethics Committee considered a complaint that alleged, among other things, that a Member had received improper personal benefits from a political action committee. The Committee determined that there was substantial documentary evidence that a paid consultant to the political action committee “provided a wide array of services pertaining to the development and implementation of [the Member’s] legislative agenda, and that he did so at [the Member’s] request.”82
Another matter considered during the 105th Congress concerned a Member’s use of a paid employee of an outside organization. An investigative subcommittee determined that the individual, who had unusual access to the Member’s official schedule, served as an unofficial policy advisor to the Member, and the Member solicited the individual’s views and assistance concerning official matters. Specifically, the individual was found to have provided ongoing advice to the Member and his staff to assist him in conducting duties related to urban issues, frequently attending official meetings with Members of Congress, other government officials, and staff.83 The investigative subcommittee, in its report, advised that “Members must exercise caution to limit the use of outside resources to ensure that the duties of official staff are not improperly supplanted or supplemented.”84
In the 106th Congress, a Member admitted to a Statement of Alleged Violation charging, among other things, that the Member had authorized and accepted the scheduling and advisory services of his former chief of staff on exclusively official matters over an eighteen-month period after the individual had resigned her position.85 The Standards Committee determined that the repeated and prolonged nature of the conduct, supplanting the duties normally performed by congressional employees, represented a significant violation that lasted beyond a reasonable period of transition.86 The activities in question involved the day-to-day management of the Member’s schedule, such as screening appointments, arranging meetings (including those for clients of the former employee), and directing congressional employees to attend designated events. The activities also involved routine service as a political advisor to the Member.87 The Committee concluded that such conduct violated the prohibition on unofficial accounts,
under which House offices are generally prohibited from accepting private support for official activities. Former Rule 45 [now Rule 24] provided that “no Member may maintain or have maintained for his use an unofficial office account.” The prohibition extends not only to private monetary contributions, but also to in-kind support from private sources. As a general matter, the official activities of each Member and Committee office are to be supported by official monies appropriated for those activities. The Ethics Committee has interpreted former Rule 45 to support its finding that the regular involvement of a volunteer/political advisor in a congressional office who performs tasks properly associated with the official responsibilities of House Members and employees is inappropriate.
The concerns regarding the acceptance of voluntary services of individuals include the fact that at times, quite obviously, an individual offering to perform such services for a Member of Congress may have his or her own agenda. Thus, even with regard to individual participation in established intern or fellowship programs, whose services may be accepted by a House office, the Committee on Standards has cautioned that those individuals “should not be assigned duties that will result in any direct or indirect benefit to the sponsoring organization, other than the broadening the individual’s knowledge.”88
The above guidelines do not prohibit a Member or other House office from accepting services, including detailed staff, provided on an official basis by a unit of federal, state, or local government. House staff and resources may not, however, be similarly used to perform the work of other governmental units, or of any private organization.
A committee may request or accept detailed staff from executive branch departments or agencies. The Select Committee on Ethics ruled that “in-kind services and functions provided by federal, state, and local government agencies do not fall in the same category as private donations of money or in-kind services.”89 While federal law specifically authorizes the detailing of executive branch personnel to committee staffs, there is no comparable provision allowing detailees to serve on the personal staffs of Members.90
Regulations of the Committee on House Administration provide that the detailee remains, for most purposes, an employee of the source department or agency, rather than becoming a House employee during the assignment period.91 For the purposes of post-employment restrictions, however, federal law mandates that detailees be considered employees both of the entity from which they come and that to which they are sent.92
The Committee on House Administration’s guidelines provide that Committees are not required to reimburse the sending organization for detailees, except for detailees from the Government Printing Office (“GPO”). Detailees assigned from GPO require reimbursement from committee funds. According to House Administration guidance, the number of non-reimbursable detailees, at one time, most remain at or below 10% of the committee’s staffing ceiling.
70 A full explanation of this topic is available in Chapter 10 of this Manual.
71 House Select Comm. on Ethics, Advisory Opinion No. 6 (May 9, 1977), reprinted in Final Report of the Select Committee on Ethics, H. Rep. 95-1837, 95th Cong., 2d Sess. app. at 65 (1979), and in the appendices to this Manual.
72 The Members’ Handbook and Committees’ Handbook include provisions for paid interns, but they provide that such individuals may work for no more than 120 days in a twelve-month period. See supra note 6.
73 See generally 2 U.S.C. § 72a(f); Members’ Handbook and Committees’ Handbook, supra note 6.
74 See Advisory Opinion No. 6, supra note 71.
75 See Members’ Handbook and Committees’ Handbook, supra note 6.
76 Federal law, at 31 U.S.C § 1342, provides:
An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property. . . .
In Opinion B-69907 (issued on February 11, 1977), the Comptroller General of the United States determined that the statute applies to Members of Congress and other legislative branch officers and employees. However, because the statute was enacted to prevent funding deficiencies, it was deemed not to prohibit a Member of Congress from using volunteers to assist in the performance of official functions of the Member’s office, provided such volunteers agree in advance to serve without compensation, so that there is no basis for a future claim for payment.
77 A copy of the letter is contained in the appendices to this Manual.
78 See House Comm. on Standards of Official Conduct, Summary of Activities, One Hundred Fourth Congress, H. Rep. 104-886, 104th Cong., 2d Sess. 13 (In re Rep. Newt Gingrich).
79 See id.
80 Id. at 16.
81 See id.
82 House Comm. on Standards of Official Conduct, Summary of Activities, One Hundred Fifth Congress, H. Rep. 105-848, 105th Cong., 2d Sess. 15 (In re Rep. Newt Gingrich). In this matter, the Committee dismissed the count of the complaint involving the inappropriate use of volunteer services because the violation had alleged occurred approximately five years before the filing of the complaint and there was no evidence of an ongoing violation involving the prohibition against unofficial House office accounts. See id.
83 House Comm. on Standards of Official Conduct, In the Matter of Rep. Newt Gingrich, H. Rep. 105-1, 105th Cong., 1st Sess. 96-97 (1997).
84 While the subcommittee determined that the “regular, routine, and ongoing assistance” provided by the individual to the Member and his staff “could create the appearance of improper commingling of official and unofficial resources,” the subcommittee found that the action did not warrant inclusion as a count in the Statement of Alleged Violation because the activities had ceased before the issuance of two earlier letters of reproval to the Member regarding the use of outside resources in two unrelated matters. Id. at 97.
85 See H. Rep. 106-979, at 44, supra note 52.
86 See id.
87 See generally id. at 44-51.
88 Id. at 44-45 (quoting Inquiry into Various Complaints Filed Against Rep. Newt Gingrich, H. Rep. 104-401, 104th Cong., 1st Sess. 4 (1995)); and House Ethics Manual, 102d Cong., 2d Sess. 197 (1992)).
89 Advisory Opinion No. 6, supra note 72.
90 See 2 U.S.C. § 72a(f); Members’ Handbook and Committees’ Handbook, supra note 6.
91 See Members’ Handbook and Committees’ Handbook, supra note 6. However, regulations of the Office of Government Ethics provide: “An employee on detail, including a uniformed officer on assignment, from his employing agency to the legislative or judicial branch for a period in excess of 30 calendar days shall be subject to the ethical standards of the branch or entity to which detailed.” 5 C.F.R. § 2635.104(b).
92 18 U.S.C. § 207(g). Post-employment restrictions are discussed in Chapter 5.