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Q: I am a Senate staffer with a question about communicating with former staffers. I have several good friends who have left the Hill for jobs in the private sector. We remain good friends, and I continue to see them on a regular basis. I recently heard that a Senate staffer was admonished by the Senate Ethics Committee for continuing to speak with a friend after the friend left the Hill. Do the rules really require me to stop talking to my friends just because they no longer work on the Hill?
A: First, you may rest assured that no law prohibits you from speaking with friends who no longer work on the Hill. As recently as last month, the Senate Ethics Committee confirmed this in a memorandum providing guidance on restrictions on post-employment communications. While the memorandum reiterates the ban on certain types of communications by former Senators and staff, it states: “Even during the period when departed Senators and staff are banned from official contacts with their former colleagues, purely social contact with former colleagues is generally permitted.”
The trick is distinguishing between “purely social contact” and the types of communications that are prohibited. Unfortunately, there is no bright line rule here that separates one from the other. But the recent Senate ethics memorandum does provide some guideposts.
Federal criminal law prohibits former Senators and senior staffers from contacting their former colleagues in the Senate with the intent to influence official action during a “cooling off period” after they leave the Senate. The period is two years for former Senators and applies to contacts with both the Senate and the House. The period is one year for former senior staffers and applies to contacts with the Senate. In addition, all former Senate employees, whether senior or not, are prohibited from making certain types of “lobbying contacts” within one year after leaving the Senate. A senior staffer is someone who is paid at least a rate equivalent to at least 75 percent of a Member’s annual salary for 60 days or more during the staffer’s most recent year or Senate employment.
During these cooling-off periods, the extent of restrictions depends on the type of position held before leaving the Senate. In general, however, the restrictions prohibit communications intended to influence official action. The recent Senate ethics memorandum emphasizes the breadth of the types of communications that are restricted. It notes that the restrictions extend even to contacts in which a former official does not explicitly advocate or plead on behalf of a client but instead makes a contact on behalf of a client. For example, a contact by an official “merely seeking information ... may be problematic ... when the information is sought on behalf of a client.” This, the memorandum says, is because a request for information by a former official on behalf of an influential constituent might induce official action even in the absence of an express request for official action. Because a request for “routine information not intended to induce some action” would not normally require the involvement of a former Senator or senior staffer, the memorandum says, such a request raises the inference that it is in fact intended to influence the recipient in some way.
Although the restrictions target former Senators and staffers, the Ethics Committee memorandum warns that current staffers should also not engage in communications that would violate the restrictions. This is in part because engaging in such communications could expose current employees to criminal liability for aiding and abetting a former official’s violation or conspiring with a former official to commit a violation. In addition, ethics rules require Senate employees generally to uphold the laws of the United States and avoid conduct that discredits the Senate.
Some staffers might wonder how careful they really need to be when speaking with friends who have left the Senate. After all, is it really conceivable that an enforcement official would ever become privy to the content of their conversations?
To such skeptics, recent admonitions issued by the Ethics Committee should serve as warnings. Inappropriate communications with former staffers can sometimes be discovered during investigations focused on entirely different conduct.
In 2009, the Senate Ethics Committee began a preliminary inquiry of then-Sen. John Ensign, initially focusing on the Nevada Republican’s conduct surrounding his extramarital affair with the wife of his former chief of staff, Doug Hampton. The investigation soon grew, requiring the hiring of outside special counsel. Hundreds of staffer communications were scrutinized. Not surprisingly, the inquiry turned up violations unrelated to the initial focus. Most significantly, it was discovered that Hampton had violated post-employment restrictions by communicating with Senators and staffers immediately after leaving the Senate. Federal prosecutors indicted Hampton on criminal charges, and last week he pleaded guilty.
Last month, the Ethics Committee admonished two people involved: Sen. Tom Coburn (R-Okla.) and Bret Bernhardt, a chief of staff for Sen. Jim DeMint (R-S.C.). The committee concluded that both had been friends of Hampton and were involved in discussing legislative matters with Hampton after he left the Senate, or at least arranging such discussions. In both cases, the admonitions came despite the committee’s conclusions that neither Coburn nor Bernhardt had committed actionable violations of criminal law.
Simply put, you can never know in advance what conduct will one day face government scrutiny. This means that a good rule to follow is to assume that all of your conduct might one day face scrutiny. Someone once said that character is doing the right thing when no one is looking. One could say that the best compliance policy is to assume that someone is.
C. Simon Davidson is a partner with the law firm McGuireWoods. Readers should not treat his column as legal advice.