A bipartisan group of attorneys who represent lawmakers in ethics proceedings said in a letter to the independent Office of Congressional Ethics on Monday that its recent rules changes rolled back important protections for their clients and that there should have been public input.
“We were surprised to learn that the Board has amended its rules without providing any opportunity for notice or comment,” the letter said. “A close review of the revised rules shows that these changes are at odds with the resolution that established and governs the office.”
The letter to Chairman Porter Goss and Co-Chairman David Skaggs was signed by Stanley Brand of the Brand Law Group, Christopher DeLacy of Holland & Knight, Joseph Sandler of Sandler Reiff Young & Lamb, Brian Svoboda and Karl Sandstrom of Perkins Coie, Elliot Berke and William Farah of McGuire Woods, Cleta Mitchell of Foley & Lardner, William McGinley of Patton Boggs, and Robert Kelner of Covington & Burling.
The attorneys take issue with four rules detailed in the ethics office’s Rules for the Conduct of Investigations that was published on Jan. 25. Specifically, they say some of the defined provisions prohibit their clients from freely addressing the board before it votes on matters, withholds certain forms of exculpatory evidence and does not provide them enough information about the reason for a review.
“It comes as no surprise that attorneys in this area often talk and express concerns that we have when there’s a development like this,” Berke said. “We talked and decided that this was the responsible thing for us to do.”
Some of the same attorneys raised similar concerns last month in calling on the ethics office to codify its procedures.
“These are the same rules and the same application of the rules everyone has been operating under for the last four years. There are no surprises here,” OCE Staff Director and Chief Counsel Omar Ashmawy said. “These rules are consistent with the highest investigative standards, codifying long-standing board practice, keeping with our commitment to transparency in the ethics process.”
The OCE was created by the House in 2008 as an independent fact-finding entity to review possible misconduct. The office conducts its investigations in two stages: a 30-day preliminary review followed by a 45-day second-phase review that can be extended an additional 14 days. At that point, it sends the case to the House Ethics Committee with a recommendation to either review the case further or dismiss it. The committee ultimately decides whether a violation of House rules or law has occurred and can levy appropriate sanctions. There is no equivalent body for the Senate.
Monday’s letter asked the OCE to vacate the new rules and adopt new rules only after the public gets a chance to weigh in on proposed changes. The OCE typically adopts rules changes in private — it did so in September 2011 — because its rules prohibit having meetings except in executive session.
Berke said, even so, it would be constructive for attorneys who practice in this area to sit down with OCE representatives and have a broader conversation or submit written feedback about some of the rules changes, outside the context of a given case.
Lois Lerner, director of exempt organizations for the IRS, arrives for a House Oversight and Government Reform Committee hearing on the investigation of the IRS' targeting of political groups. Lerner invoked her Fifth Amendment right to not testify and caused a protest from some committee members when she offered an opening statement and engaged in dialogue with members before invoking the right.
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