Recommendations for Government Employment - House Committee on Ethics

VI. Recommendations for Government Employment

Members of the House are frequently asked to provide letters of recommendation on behalf of persons seeking employment or appointment to positions in the federal government, state or local governments, or in the private sector.[48] Writing letters of recommendation for constituents is consistent with the representational duties of Members of Congress. However, when writing letters of recommendation, Members should adhere to the Code of Ethics for Government Service, which requires Members to “never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not.”[49] Requests from similarly situated constituents should therefore be handled in comparable fashion, without regard to party affiliation, campaign support, or other such factors.

[48] The provisions governing written recommendations apply equally to oral recommendations; therefore, when a “letter of recommendation” is used, the guidance provided above also applies to oral recommendations.

[49] Code of Ethics for Government Service ¶ 5, supra note 39.

This section summarizes the laws and rules governing the ability of Members to provide employment recommendations for positions with federal, state, or local governments and the private sector, and also addresses the use of official letterhead and other miscellaneous issues related to preparing letters of recommendation.

“Competitive Service” Positions With the Federal Government

Under amendments to the Hatch Act that were enacted in 1996,[50] Members may make recommendations, either orally or in writing, on behalf of applicants for competitive service [51] positions in the executive branch of the federal government.[52] However, as detailed below, there are significant limitations on the content of such recommendations. The statutes governing recommendations for the competitive service apply equally to administrative law judge positions, career positions in the Senior Executive Service, and any position in the “excepted service”[53] that is not confidential or policy-related in nature.[54]

[50] Pub. L. 104-197, § 315, 110 Stat. 2416 (1996).

[51] The competitive service is defined at 5 U.S.C. § 2102. Essentially, the competitive service includes all civil services positions other than statutorily excepted positions, non-career Senior Executive Service positions, and political positions. Certain positions, such as agency fellowships, do not fall within the definition of the competitive service, but agencies sometimes require compliance with the competitive service provisions when considering recommendations for such positions. The Committee recommends consulting with individual agencies if there is any question whether a position falls within the competitive service or is governed by the same guidelines.

[52] Prior to the 1996 amendments, Members could provide only a statement related to the character and residence of the applicant unless the agency requested an evaluation of the applicant’s qualifications. See Pub. L. 103-94, 107 Stat. 1001, 1006 (1993) (codified at 5 U.S.C. § 3303).

[53] The excepted service is defined at 5 U.S.C. § 2103.

[54] Memorandum from James B. King, Director, Office of Personnel Management, to Heads of Executive Departments and Agencies, at 3 (Apr. 7, 1997) (hereafter “OPM Memorandum”).

Federal hiring officials may consider a recommendation for a competitive service position only if the content of the recommendation complies with established guidelines. Federal hiring officials may never consider a recommendation for a competitive service position that contains direct or indirect references to the job applicant’s political affiliation or membership.[55] The permissible contents of recommendations for a competitive service position depend on whether the Member has personal knowledge of the applicant’s work ability or performance.

[55] 5 U.S.C. § 3303 and 5 U.S.C. § 2302(b)(2).

If the Member does not have personal knowledge of the applicant’s work ability or performance, the letter of recommendation may address only the applicant’s character or residence.[56] In that circumstance, the hiring official may not consider any portion of a recommendation that discusses the specific qualifications of an applicant or that assesses the applicant’s suitability for employment with a particular agency or for a particular job.[57]

[56] 5 U.S.C. § 3303. A recommendation under this statute based on the character and residence of the applicant may be offered only by a Representative or a Senator.

[57] OPM Memorandum, supra note 54, at 2.

Example 14. Constituent Z asks Member A to provide a letter of recommendation to Federal Agency in connection with Z’s application for a competitive service position. A may provide a letter of recommendation concerning Z’s character and residence. Hiring Official at Federal Agency may consider a recommendation similar to the following: “I have known Z, a resident of my state, for many years. Z is a fine person and has always been reliable, has shown good judgment and integrity, and is highly regarded in the community.” Hiring Official could not consider any portion of the letter if it also referred to Z’s political affiliation or suitability for employment in a particular agency or a particular job (e.g., “I would like you to consider Z for the currently vacant position of policy analyst in your office.”).

If the Member has personal knowledge of the applicant’s work ability or performance, the federal hiring official may consider a recommendation based on the Member’s personal knowledge or records that contains an evaluation of the job applicant’s work performance, ability, aptitude, general qualifications, character, loyalty, or suitability.[58] Such personal knowledge of applicant’s work can be the result of any working association of the Member and the applicant, whether or not related to the Member’s official responsibilities.

[58] 5 U.S.C. § 2302(b)(2). A recommendation under this statute based on personal knowledge or records may be offered by anyone and is not limited to Representatives and Senators.

Example 15. A former staff member asks his former employing Member, B, to provide a letter of recommendation to Federal Agency in support of his application for a competitive service position. Member B may prepare a letter of recommendation based on the former employee’s prior work performance, ability, aptitude, and character. A hiring official at Federal Agency may consider the letter of recommendation.

“Political” Positions With the Federal Government

With respect to applications for “political” positions, such as Schedule C or non- career Senior Executive Service positions, federal hiring officials may consider any information a Member includes in a recommendation, even if the recommendation is not based on the Member’s personal knowledge or records. The information permitted to be considered includes, but is not limited to, statements about character and residence, evaluations of work qualifications, statements about political affiliation, and statements about the suitability for employment with a particular agency or a particular job. (The matter of whether such a letter may be sent on official letterhead is discussed below.)

Example 16. Employee asks Member C to provide a letter of recommendation to Federal Agency in connection with employee’s interest in a Schedule C (i.e., political) position. Member C may prepare a letter to Federal Agency that endorses employee for the position based on various factors, including prior work performance, ability, aptitude, character, and political considerations. A hiring official at Federal Agency may consider the letter of recommendation in its totality.

Postal Service

Under federal law, Members of Congress are prohibited from making or transmitting to the Postal Service “any recommendation or statement, oral or written” on behalf of a person under consideration for a position with the Postal Service except for a “statement” relating solely to the character and residence of such person; however, if the Postal Service so requests, a Member may provide a statement regarding the applicant’s qualifications.[59]

[59] 39 U.S.C. § 1002(b), (e)(2).

Military Services and Academies

Under federal law, military services or academies may consider any relevant information a Member chooses to provide in a letter of recommendation. With respect to letters to military promotion boards, congressional offices should consult with the particular promotion board or the constituent service member to ensure compliance with applicable regulations. For example, although officer promotion boards may consider letters of recommendation authored by third parties, such letters should be submitted directly by the officer concerned, and they cannot be accepted from the third party.[60]

[60] Under 10 U.S.C. §§ 615 and 14107, active and reserve officer promotion boards may consider “information communicated to the board by the officer.” (Emphasis added). See also Department of Defense Instruction 1320.14, Commissioned Officer Promotion Program Procedures, September 24, 1996.

State Governments and the Private Sector

Unless otherwise prohibited by state law or by corporate policy, a hiring official may consider any information the Member chooses to provide in a letter of recommendation for appointments or positions in state and local governments or the private sector. Members may provide statements about character and residence, evaluations of work qualifications, statements about political affiliation, and statements about the suitability for employment with a particular agency or a particular job.

Example 17. Constituent Z, who is a personal friend of Member D, asks D for a letter of recommendation concerning Z’s interest in a position with a corporation in Member D’s district. Many private parties are not used to dealing with Members of Congress on a regular basis. Accordingly, Members should exercise caution when submitting a letter of recommendation to a private company or individual to avoid even the appearance of improper or undue influence on the private party. In this case, D may be able to provide the requested recommendation, but she should proceed cautiously and should consult with the Standards Committee.

Letterhead

When writing letters of recommendation, Members must carefully assess whether the letter may be sent on official congressional stationery. Official stationery, like other official resources, may be used only for official purposes.[61] Whether a particular letter of recommendation may be considered official business, and may therefore be written on official letterhead, depends on whether the proposed letter may be mailed using the frank under the regulations of the Franking Commission.[62]

[61] 31 U.S.C. § 1301(a); Members’ Handbook, supra note 29.

[62] Any question regarding whether a particular letter may be mailed under the frank should be addressed to the Franking Commission, formally known as the Commission on Congressional Mailing Standards of the House of Representatives.

According to Franking Commission regulations, Members may use the frank to mail letters of recommendation for the following:

An applicant seeking admission to a military academy;
An applicant seeking a political appointment to a federal or state government position; or
An applicant who is a current employee, was a former employee, or has worked with the Member in an official capacity and the letter relates to the duties performed by the applicant.[63]

[63] Commission on Congressional Mailing Standards, U.S. House of Representatives, Regulations on the Use of the Frank by Members of the House of Representatives, at 13 (June 1998). Members may also send under the frank general letters of introduction that are not endorsements or recommendations. Id.

The Franking Commission broadly interprets the authority to write letters of recommendation on behalf of a person “who has worked with the Member in an official capacity.” Such persons may include, among others, persons employed (or formerly employed) by a federal, state, or local government agency who worked with the Member or the Member’s staff on matters relating to the Member’s official duties, as well as persons working in the private sector (such as attorneys, university professors, or persons affiliated with “think tanks”) who have assisted the Member’s office on legislative matters.

If the criteria specified above are met, letters of recommendation may be prepared on official stationery for persons seeking jobs in the private sector as well as federal, state, or local governments; otherwise, the letter of recommendation must be prepared on the Member’s personal stationery.

Example 18. A social acquaintance of Member E, who has not previously worked with E in any official capacity, asks E to write a letter of recommendation to Federal Agency in support of his application for a competitive service position. E may prepare a letter of recommendation but must do so on personal stationery.

Example 19. An Executive Director of a nonprofit organization, who assisted Member F with a legislative initiative, asks F to provide a letter of recommendation to a corporation in Member F’s district in support of Executive Director’s application for a position with the corporation. F may provide a letter of recommendation on official letterhead and mail it by means of the congressional frank.

Miscellaneous Considerations

In addition to the standards and requirements discussed above, Members should be mindful of the following restrictions set forth in federal criminal statutes:

A candidate, including a Member of Congress, may not promise to appoint, or to use influence or support in appointing, any person to any public or private position for the purpose of procuring support for his or her candidacy.[64]

[64] 18 U.S.C. § 599.

No one may promise any employment, position, compensation, contract, appointment, or other benefit provided for or made possible by any Act of Congress, to any person in return for political activity or support in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office.[65]

[65] 18 U.S.C. § 600.

The knowing denial or deprivation, or the threat of denial or deprivation, of any federal or state employment, or any employment, compensation, or benefit made possible by an Act of Congress, for the purpose of securing political contributions, services, or any other thing of value, is prohibited.[66]

[66] 18 U.S.C. § 601.

No one may solicit or receive any money or other thing of value in return for the promise of support or the use of influence in obtaining an appointive federal post on behalf of another person.[67]

[67] 18 U.S.C. § 211.

Violations of these statutory provisions are criminal offenses and are all punishable by fines, imprisonment for up to one year, or both. If a Member willfully violates the prohibition against promising employment in exchange for political support under 18 U.S.C. § 599, the imprisonment may be for up to two years.

Example 20. Constituent Z who made a financial contribution to Member G’s election campaign sends G a letter requesting a recommendation in support of Z’s application for a political position at Federal Agency. In the letter, Z refers to his contribution to Member G’s campaign; however, he does not expressly ask G to provide the job recommendation in return for his past financial support. The Committee cautions Members against providing such a letter because, under these facts, the Member G’s letter of recommendation might be construed as an improper quid pro quo.

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House Ethics Manual 2022 Edition