V. General Employment and Compensation Provisions

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 regulations. [38] A summary follows.

Personal Staff

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hire allowance[40] work either in Washington, D.C., or in the state or district that the Member represents was repealed in 1996, thereby permitting employees to “telecommute.”[41] The Committee on House Administration has issued a policy statement on telecommuting, which is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 Standards Committee.

Committee Staff

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.

All Staff

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 amended what is now House Rule 23, clause 8, “to strengthen and broaden [Members’ and officers’] accountability for the pay and performance of staff.”[42] Whereas the old rule explicitly addressed only Members as employing authorities, the revised rule explicitly applies as well to House officers, committee chairs, subcommittee chairs, and ranking minority members in their supervisory roles. Clause 8, in pertinent part, provides:

1. 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.
2. 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 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]

[43] Bipartisan Task Force Report, supra note 42, at 33; 135 Cong. Rec. H9262.

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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]

Standards Committee Actions. In one case considered by the Standards Committee in the 100^th Congress, involving the misuse of clerk hire funds, the Committee found that a Member maintained an employee on the payroll of a subcommittee the Member chaired, while knowing that the employee was not coming to work. The House reprimanded the Member for, among other things, violating the Code of Official Conduct (currently clause 8 of House Rule 23).[49]

In the 104^th Congress, the Standards Committee considered several allegations also involving a Member’s misuse of clerk hire funds. One matter concerned, among other things, a Member’s regular assignment to an employee of duties that were clearly personal in nature, including paying the Member’s bills, retrieving personal mail, cleaning the Member’s home, serving as a point of contact for vendors and service providers in connection with the Member’s personal affairs, and performing a variety of personal services, such as curling the Member’s hair and making shopping trips to department stores, grocery stores, and furniture stores, during work hours.[50]

In another matter, the Committee self-initiated a complaint against a Member involving allegations that, among other things, the Member had “misused congressional staff for personal purposes” and “failed to repay personal debts incurred by personal staff on the [Member’s] behalf.”[51]

In the 106^th Congress, a Member admitted to a Statement of Alleged Violation charging that he brought discredit to the House of Representatives by, among other things, permitting employees under his supervision and control to work for the Member’s campaign, to “the detriment of the time they were required to spend on official duties.”[52] The Committee determined that contributing to this misconduct was the failure of the Member “to establish a comprehensive and comprehensible policy for his congressional staff to record the annual, sick[,] and administrative leave taken by each employee in his congressional office.”[53]

Court Actions. The Department of Justice has on four separate occasions pursued criminal charges, against two then-current and two former Members of the House, for allegedly placing persons on the congressional payroll who did not regularly perform official congressional duties but rather performed personal services or duties for or on behalf of the Members.[54]  The charges included fraud, mail fraud, perjury, and embezzlement of government funds. The sitting Members were convicted;[55] the former Members pleaded guilty.[56]

In one of these cases, the United States Court of Appeals, summarizing the testimony of a House officer, stated that it is “within a congressman’s discretion to define the parameters of an employee’s responsibilities as long as those responsibilities related to the congressman’s ‘official and representative duties.’”[57] Nevertheless, the court, in upholding the fraud conviction of the Member of Congress, stated that although the employees had performed some official services for the Member, “only a nominal percentage of [the employees’] responsibilities were congressionally related,” and thus a jury had sufficient evidence to conclude that such employees were paid from clerk hire allowances “with the intention of compensating them for services rendered to the [defendant Member’s private business] or the defendant.”[58] Thus, while it might have been argued that “it was a matter of [the Member’s] discretion to fix their duties and salaries as congressional employees,” the “defendant’s representations to the House Office of Finance that the [employees] were bona fide congressional employees were fraudulent and material in violation of 18 U.S.C. § 1001.”[59]

In a more recent case, the Court of Appeals observed that, although “the House has not attempted to define a Member’s ‘official and representative duties,’ and has in large measure vested Members ‘with discretion to fix the terms and conditions of employment’ of staff members,” Congress “has drawn a line between use of the Clerk Hire Allowance to employ staff assisting ‘in the discharge of official and representative duties’ (permissible under the Annual Appropriations Acts) and use of that allowance ‘to defray personal, political or campaign related allowances’ (prohibited by 2 U.S.C. § 57; 31 U.S.C. § 1301; and the [Members’ Congressional] Handbook.”[60] The court stated that where to draw the line between “official work” and “personal services” may not always be clear. In concluding that certain counts of the criminal indictment against a former Member were justiciable (i.e., capable of resolution by the court), the court determined that staff’s involvement with engraving gift items and mounting souvenirs on plaques as gifts and performing bookkeeping duties for a private insurance company owned by the Member would be prohibited by House rules and regulations as personal services, but the court could not say that “picking up [a Member’s] laundry and driving his family members around Washington” could not be considered official rather than personal activities “[b]ecause the performance of those activities might, in some circumstances, directly – even vitally – aid a Congressman in the performance of his official duties.”[61]

During the 107^th Congress, a Member was convicted of conspiracy to defraud the United States by, among other things, soliciting and receiving payments from the salaries of congressional employees, directing members of his congressional staff to perform labor and services to maintain his boat, and by having members of his congressional staff perform labor and services at the Member’s farm.[62] In a subsequent investigation by the Standards Committee, an investigative subcommittee stated that such personal services included baling hay, running and repairing farm equipment, repairing farm structures, building a horse corral, converting a corn crib to another use, and performing electrical and plumbing repairs. For example, one employee testified at trial that he spent most of his time at the Member’s farm doing work which included plumbing, wiring, and other handyman work. That employee further testified that he also spent time in Washington, D.C., as a part of his part- time congressional employment for the Member, but that he performed no official duties at the congressional office. Instead, he performed work on the Member’s boat, which included painting, varnishing, and repairing brass fittings.[63] For their personal services, the employees received no compensation other than their congressional salaries.[64] Following the investigation, the adjudicatory subcommittee found that the Member’s conduct in directing and having members of his congressional staff perform personal services and labor violated clauses 1-3 of the Code of Official Conduct.[65]