Consultants
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.
Amendments to the House rules that were approved at the start of the 106th Congress and the 107th Congress subject consultants to the House, including consultants to House committees, to certain ethics rules.93 Under the Code of Official Conduct (House Rule XXIII), any individual whose services are paid for by the House pursuant to a consultant contract are considered “an employee of the House”94 subject to clauses 1-4, 8, 9, and 13 of House Rule XXIII, under which such individual:
- Must at all times conduct him or herself in a manner that reflects creditably on the House;
- Must adhere to the spirit as well as the letter of the rules of the House and its committees;
- May not receive compensation and may not permit compensation to accrue to his or her beneficial interest from any source, the receipt of which would occur by virtue of influence improperly exerted from the consultant’s position with the House;
- May not accept any gift, except as provided in the House gift rule (House Rule XXV, clause 5);
- Must perform duties for the contracting committee that are commensurate with the compensation received by the consultant;
- May not discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, gender, disability, age, or national origin; and
- Must execute a confidentiality oath before receiving access to classified information.
Lobbying
In addition to these limitations and restrictions, consultants are also prohibited from engaging in certain lobbying activity. In the 110th Congress this lobbying provision was extended to include lobbying restrictions for the other members of firms whose employees are consultants for House committees. Specifically, House Rule XXIII, clause 18(b) provides:
An individual whose services are compensated by the House pursuant to a consultant contract may not lobby the contracting committee or the members of staff of the contracting committee on any matter. Such an individual may lobby other Members, Delegates, or the Resident Commissioner or staff of the House on matters outside the jurisdiction of the contracting committee. In the case of such individual who is a member or employee of a firm, partnership, or other business organization, the other members and employees of the firm, partnership, or other business organization shall be subject to the same restrictions on lobbying that apply to the individual under this paragraph. (Emphasis added.)
Accordingly, the Ethics Committee considers the following restrictions to be appropriate:
- Each such consultant should establish an “ethics wall” to isolate his or her work on behalf of the contracting committee from any lobbying activity of the other members of his or her firm before the House;
- During the period of the consultant’s service to the House, other members of the firm may not lobby the contracting committee, including its Members or staff during the term of the contract on any matter;
- Regardless of the subject matter, the other members of the firm should not refer to or otherwise use the fact of the consultant’s position in the House in any contacts they may have with any House Member, officer, or employee in official matters; and
- In conducting any permissible lobbying activity, consultants are subject to the provision of the Code of Official Conduct discussed above.
Acceptable Gifts
Consultants are also subject to the House gift rule, which is set forth in clause 5 of House Rule XXV, and which is described in detail in Chapter 2 on gifts. Under the gift rule, a consultant – like any House Member or regular staff person – may not accept any gift except as specifically provided in the rule. The rule governs the acceptance of virtually anything having monetary value, including services, travel, meals, and tickets to sporting events and shows (House Rule XXV, clause 5(a)(2)(A)). Thus, prior to commencing service under a consultant contract, an individual should carefully review the provisions of the gift rule and should contact the Ethics Committee staff as any questions arise.
Practically speaking, the major effect of the gift rule on consultants is to limit their ability to accept gifts that are motivated by their position with the House. The Standards Committee anticipates that consultants will have relatively little difficulty in distinguishing such gifts. The gift rule includes a number of provisions allowing the acceptance of gifts that are motivated by some factor other than one’s position with the government.
For example, one provision that consultants may find particularly relevant allows the acceptance of benefits that result from one’s outside business, employment or other activities and are not offered or enhanced because of one’s position with the House (Id., clause 5(a)(3)(G)(i)). Another provision allows the acceptance of gifts offered by an individual on the basis of personal friendship, and that provision includes criteria to be used in determining whether a gift can validly be considered a personal friendship gift (Id., clause 5(a)(3)(D)). Other provisions allow the acceptance of gifts from one’s relatives, gifts from Members, officers, and employees of the House or Senate, and anything paid for by a federal, state, or local governmental entity (Id., clauses 5(a)(3)(C), (F) and (O)).
The gift rule also includes a general provision allowing the acceptance of any gift (other than cash or cash equivalent) having a value of less than $50 provided that the donor is not a registered lobbyist, an agent of a foreign principal, or an entity that retains or employs such individuals (Id., clause 5(a)(1)(A)-(B)). Under this provision, an individual may not accept, from any one source in a calendar year, gifts having a cumulative value of $100 or more, but gifts having a value of less than $10 do not count toward this annual limitation. Gifts that may be motivated by one’s position with the House may be accepted under this provision, although in no event may any government official accept a gift that is linked to any official action that the official has taken or is being asked to take.
Confidential Financial Disclosure
House rules do not require consultants to file public financial disclosure statements. In the Committee’s view, such a requirement would be inappropriate for consultants, who serve the House on a relatively short-term basis and hence are expected to maintain their outside business activities.95
It is equally clear, however, that a contracting committee would not be in a position to evaluate a prospective consultant’s compliance with conflict-of-interest rules without having certain basic information on his or her financial interests. Similarly, when the Ethics Committee is asked for an advisory opinion on a committee’s proposed arrangements with a contractor, it will be unable to render a complete opinion without having access to such information. But such information need not be as extensive as that required by the House of Representatives Financial Disclosure Statement, and the purposes here can be served by submission of the information on a confidential, rather than a public basis.
Accordingly, the Ethics Committee strongly recommends that each committee, prior to entering into a consulting contract, obtain, at a minimum, the following information from the prospective consultant(s):
- Each of the individual’s current sources of earned income, the type of income (e.g., salary, partnership income, director’s fee), and the rate at which he or she is compensated;
- The identity of each client for whom the individual is currently providing services, and of each client for whom he or she anticipates providing services during the term of the committee contract; and
- The nature and value of any investment or liability held by the consultant that could be affected by or is in any way related to the duties that the individual would perform for the committee.
The contracting committee should also obtain the commitment of a prospective consultant to inform the committee promptly regarding any such source of earned income, client or investment that he or she obtains during the term of the contract.
House committees are urged to contact the Ethics Committee before entering into any proposed arrangement with a consultant.
93 See H. Res. 5, 106th Cong., 1st Sess. (145 Cong. Rec. H6-10, H31 (Jan. 6, 1999)); H. Res. 5, 107th Cong., 1st Sess. (147 Cong. Rec. H6-10, H8 (Jan. 3, 2001)).
94 House Rule XXIII, cl. 18(b).
95 The Committee understands that in the Senate, consultants are technically subject to the requirement to file a public financial disclosure statement, but that the U.S. Senate Select Committee on Ethics will routinely waive the requirement. However, the grant of the waiver is subject to the condition that the consultant agrees to make confidential submissions to the Senate Ethics Committee regarding, among other things, his or her clients and the clients of the firm with which the consultant is affiliated.