III. Committee on Standards of Official Conduct Advisory Opinion No. 2 [1]

SUBJECT

On the subject of a Members’ Representational Allowance.[2]

REASON FOR ISSUANCE

A number of requests have come to the Committee for advice on specific situations which to some degree, involve consideration of whether monies appropriated for Members’ Representational Allowance are being properly utilized.

A summary of the responses to these requests forms the basis for this Advisory Opinion which, it is hoped, will provide some guidelines and assistance to all Members.

BACKGROUND

The Committee requested the Congressional Research Service to examine in depth the full scope of the laws and the legislative history surrounding Members’ clerk hire. The search produced little in the way of specific parameters in either case law or congressional intent, concluding that “ . . . no definitive definition was found . . . . ” It is out of this absence of other guidance the Committee feels constrained to express its views.

The clerk hire allowance [now included in the Members’ Representational Allowance (MRA)][3] for Representatives was initiated in 1893 (27 Stat. 757). The law providing it spoke of providing clerical assistance to a Representative “in the discharge of his official and representative duties ” The same phraseology is used today in each Legislative Appropriations bill and by the Clerk of the House in his testimony before the Subcommittee on Legislative Appropriations. An exact definition of “official and representative duties” was not found in the extensive materials researched. Remarks concerning various bills, however, usually refer to “clerical service” or terms of similar import, thus implying a consistent perception of the term as payment for personal services.

SUMMARY OPINION

This Committee is of the opinion that the funds appropriated for [Members to hire staff] should result only in payment for personal services of individuals, in accordance with the law relating to the employment of relatives, employed on a regular basis, in places as provided by law, for the purpose of performing the duties a Member requires in carrying out his representational functions.

The Committee emphasizes that this opinion in no way seeks to encourage the establishment of uniform job descriptions or imposition of any rigid work standards on a Member’s staff. It does suggest, however, that it is improper to levy, as a condition of employment, any responsibility on any clerk to incur personal expenditures for the primary benefit of the Member or of the Member’s congressional office operations, such as subscriptions to publications, or purchase of services, goods or products intended for other than the employee’s own personal use.

The opinion clearly would prohibit any Member from retaining any person from his [MRA] under either an express or tacit agreement that the salary to be paid him in lieu of any present or future indebtedness of the Member, any portion of which may be allocable to goods, products, printing costs, campaign obligations, or any other non- representational service.

In a related regard, the Committee feels a statement it made earlier, in responding to a complaint, may be of interest. It states: “As to the allegation regarding campaign activity by an individual on the House [payroll], it should be noted that, due to the irregular time frames in which the Congress operates, it is unrealistic to impose conventional work hours and rules on congressional employees. At some times, these employees may work more than double the usual work week – at others, some less. Thus employees are expected to fulfill the clerical work the Member requires during the hours he requires and generally are fee at other periods. If, during the periods employees are free and they voluntarily engage in campaign activity, there is no bar to this. There will, of course, be differing views as to whether the spirit of this principle is violated, but this Committee expects Members of the House to abide by the general proposition.”