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Davidson: Travel Rules Require Planning Ahead

A significant amount of information must be provided when requesting approval for a trip

Q: I am a staffer for a member of the House, and one of my longtime responsibilities has been arranging his travel. This can be time-consuming as there are lots of hoops to jump through and forms to fill out in order to get the Ethics Committee’s approval for travel expenses to be paid by an outside source. Now I see that the Ethics Committee has issued new travel regulations. I am not an attorney, and the new rules are very lengthy, so I have not read them. But I gather that for travel expenses to be paid by an outside source, we now must obtain Ethics Committee approval 30 days in advance of the travel. I’m not sure that will always be possible for our member, particularly when he is invited on a trip that is less than 30 days away. Is this really a new requirement?

A. As you know, House rules require members to obtain the approval of the Ethics Committee before an outside source may pay a member’s expenses for officially related travel. This is an offshoot of the House gift rule, which generally prohibits members from accepting anything of value — including travel expenses — unless an exception applies. As the House Ethics Manual states: “travel may be among the most attractive and expensive gifts, and thus before accepting travel, a Member ... should exercise special care to ensure compliance ...”

One of the exceptions to the gift ban allows members to accept travel expenses from an outside source to participate in trips connected to official House duties. Trips that typically qualify for this exception include travel for speaking engagements or fact-finding trips. For many years, it was up to each member to assess whether a particular trip qualified as being connected to official duties and therefore could be paid for by an outside source.

In 2007, however, after a rash of headline-grabbing lavish trips taken by members, the House adopted new rules delegating that assessment to the Ethics Committee and requiring members to obtain written approval from the committee before accepting travel expenses from an outside source for officially related trips. The rules also directed the Ethics Committee to issue regulations outlining the circumstances under which members could accept travel expenses and establishing a process for members to obtain committee approval.

Those regulations were in effect until December of last year when, after a lengthy review, the committee issued new travel regulations, making several substantive changes. Among the most significant changes is an increase in the amount of time in advance of travel that members must seek committee approval for their trips. Under the old rules, members were required to request the committee’s approval 14 days in advance of a trip. The new rules require them to do so 30 days in advance. As you point out, this could make life more difficult for you, as well as for others who oversee travel for members of the House.

As you know, there is a significant amount of information that must be provided to the committee when requesting approval for a trip. This information allows the committee to make an informed assessment of whether it is appropriate for an outside source to pay for expenses related to the trip. Gathering this information can be time-consuming and should be begun well in advance of the deadline.

This is because the new regulations state that the Ethics Committee will not grant requests after the deadline. There are only two exceptions. One applies to a media outlet offering travel in order for the member to make a media appearance. The other is when the committee deems that “exceptional circumstances” exist. If the regulations themselves are any indication, by “exceptional circumstances” the committee appears to mean circumstances that are truly, well, exceptional.

Notably, the regulations state that “exceptional circumstances do not include the fact that the sponsor failed to extend the invitation more than thirty days before the start of the trip.” This means that the committee may enforce the deadline and deny a late trip request even when the member making the request is not to blame for missing the deadline.

What can you do about this? For one, you can try to educate potential trip sponsors about the approval requirement and the importance of advance planning. If there are individuals or entities that seem to be regular trip sponsors or that you anticipate as potential future trip sponsors, you can make them aware now of the member’s need to seek approval from the Ethics Committee well in advance of a trip.

As you probably know, one of the forms that members must submit when requesting the committee’s approval for travel is a Private Sponsor Certification Form. This multipage form must be filled out by the proposed sponsor of the trip. In addition to the information on the form itself, the sponsor also must attach a “detailed agenda of the activities taking place during the travel (i.e., an hourly description of planned activities).” The form reiterates the 30-day advance notice requirement and states: “The failure to provide the Committee with adequate time to review the form and attachments may result in the invitee not receiving approval for the trip.”

The new rules go into effect for travel beginning April 1, which means requests relating to trips that day must be made by March 1. Of course, it is possible that the Ethics Committee will consider requests even when some of the necessary information comes in after the 30-day deadline. However, given that your member depends on you to handle his travel, I imagine you don’t want to take that chance.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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