X. Employment Considerations for Spouses of Members and Staff

Being married to a House Member or staff person does not, of course, preclude one from earning a salary. Nevertheless, certain aspects of a spouse’s employment may have implications for the Member or staff person.[118]

Federal law, at 5 U.S.C. § 3110, generally prohibits a federal official from hiring or promoting a relative, including a spouse. Prior to the 107^th Congress, if a House employee married his or her employing Member, the employee could remain on the Member’s personal or committee staff, but could not thereafter receive any promotions or raises other than cost-of-living or other across-the-board adjustments. However, at the beginning of that Congress in 2001, the House amended the Code of Official Conduct to provide that a Member may not retain his or her spouse in a paid position, and that a House employee may not accept compensation for work for a committee on which his or her spouse serves as a member.[119] Accordingly, as a general rule, a Member’s spouse may work in the Member’s office on an unpaid basis only.[120]

Spouses who accept civil service positions with federal, state, or local governments should be aware of possible limitations relating to their outside political activity under the Hatch Act [121] or a similar law of the employing authority. An individual employed in such a position may be limited in the campaign efforts that may be made on behalf of his or her spouse. A spouse holding such a governmental position should consult with his or her supervising ethics office to determine the propriety of proposed campaign activities.

Neither federal law nor House rules specifically precludes the spouse of a Member or staff person from engaging in any activity on the ground that it could create a conflict of interest with the official’s congressional duties. However, House rules and statutory provisions impute to a Member or staff person certain benefits that are received by his or her spouse. Thus, a question may arise as to whether the official is improperly benefiting as a result of the spouse’s employment.

The rules and standards that prohibit the use of one’s official position for personal gain, which are set out in this chapter, are fully applicable to Members and staff persons with regard to their spouse’s employment. Specifically, a provision of the House Code of Official Conduct, prohibits a Member from receiving any compensation, or allowing any compensation to accrue to the Member’s beneficial interest, from any source as a result of an improper exercise of official influence (House Rule 23, cl. 3). Additionally, the Code of Ethics for Government Service (¶ 5) admonishes officials never to accept benefits for themselves or their families “under circumstances which might be construed by reasonable persons as influencing the performance” of official duties. The income received by a spouse from employment usually accrues, albeit indirectly, to a Member’s interest. Nonetheless, neither of these provisions is triggered by a spouse’s employment unless a Member or staff person exerts influence or performs official acts in order to obtain compensation for, or as a result of compensation paid to, his or her spouse.

Two other provisions of the Code of Ethics for Government Service are also applicable to a Member or staff person with regard to the employment activities of one’s spouse or any other family member. These are provisions that prohibit a government official from –

• Using “any information coming to him confidentially in the performance of governmental duties as a means of making private profit” (¶ 8); and
• “[D]iscriminat[ing] unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not” (¶ 5).

The prohibition against doing any special favors for anyone in one’s official capacity is a fundamental standard of conduct, and it applies to an official’s conduct with regard to not only his or her spouse or other family members, but more broadly to any person.

Special caution must be exercised when the spouse of a Member or staff person, or any other immediate family member, is a lobbyist. At a minimum, such an official should not permit the spouse to lobby either him- or herself or any of his or her subordinates. When the spouse of a staff person is a lobbyist, the staff person should inform his or her employing Member before the spouse or anyone with the spouse’s firm makes a lobbying contact with anyone on the staff, and no such contacts should occur without the Member’s approval. Furthermore, a recently enacted provision of the House rules (House Rule 25, clause 7) requires that the Member prohibit his or her staff from having any lobbying contacts with that spouse if such individual is a registered lobbyist or is employed or retained by a registered lobbyist to influence legislation.[122]

In certain limited circumstances, the gift rule allows a Member or staff person to accept a meal, travel, or other benefits that result from his or her spouse’s business or employment activities (House Rule 25, cl. 5(a)(3)(G)(i)). This provision of the rule is explained in Chapter 2 of this volume, as is the rule’s applicability to gifts given to the spouse or another family member of a Member or staff person.

As explained earlier in this chapter, official resources are to be used for official purposes. Thus a Member may not use any congressional resources (including, e.g., staff time or the office computer) on behalf of any private enterprise, including a spouse’s professional activities.

Occasionally the Standards Committee has looked into allegations that spouses were not earning their income, but rather that their salaries and benefits were provided as indirect gifts to the Members. In one case, the Committee issued a Statement of Alleged Violations stating, among other things, that there was reason to believe that the Member had violated the gift and financial disclosure rules in that:

• Compensation received by the Member’s wife from a business was not in return for identifiable services or work products that she provided to the business;
• The free use of a car that she received from that business was not required for her employment with that business; and
• These apparent gifts were not provided wholly independent of her relationship to the Member. [123]

In that case, the Member resigned before the Committee could proceed further. However, in another case in which there was a complaint against a Member alleging that fees paid to a Member’s spouse by a business were a gift received by the Member in violation of the gift rule, the Committee declined to initiate a preliminary inquiry upon receiving documentation of the services that the spouse had performed for the business.[124]