Warning: New Rules Could Snare Travel Sponsors
I work for an organization that sponsors business events around the country. We frequently invite Members and staff to our events and reimburse their travel expenses when the law allows. (We do not employ or retain lobbyists.) Recently, the House ethics committee created a new form that we, as sponsors, must fill out before Members and staff travel to events for which their expenses will be reimbursed. One of my job responsibilities is to fill out these forms. (Lucky me!) I take care to confirm the accuracy of every entry, which is very time-consuming because the form has 23 of them. My boss has been frustrated by the time and expense involved and has told me to speed it up. He said that I don’t need to be so thorough in my fact-checking because the committee is focused on Members, not sponsors. In fact, he said, the committee doesn’t even have jurisdiction over us. Is my boss right?
[IMGCAP(1)]A: Well, he’s half right. He is right that the ethics committee does not have jurisdiction over your association. But he is wrong that this means that you should be any less thorough in ensuring the accuracy of the form.
The jurisdiction of the ethics committee originates in the Constitution. Section 5 of Article 1 of the Constitution authorizes Congress to punish its Members for disorderly behavior. With House Rule 10, the House delegated that authority to the ethics committee. The committee’s jurisdiction extends to the conduct of House Members, officers and employees.
The jurisdiction of the committee does not extend, however, beyond current Members, officers and employees. This is why, for example, the ethics committee had no jurisdiction over former Rep. Mark Foley (R-Fla.), who resigned before the committee’s investigation of the circumstances surrounding his alleged misconduct. Therefore, your boss is right that the ethics committee lacks jurisdiction over your association.
But the committee’s lack of jurisdiction over you does not mean that you have nothing to worry about regarding the accuracy of the form. Rather, submitting false travel forms could expose you to substantial legal risk.
In particular, submitting a false form could result in an investigation and possibly even a prosecution for violation of federal criminal law. In 1996, Congress broadened the scope of the federal statute forbidding false statements to the government (Title 18, U.S. Code, Section 1001). Under the broader scope, the statute criminalizes knowingly and willfully making a materially false statement in a “document required by law, rule, or regulation” to be submitted to Congress or any officer within the legislative branch. Because House Rule 25 requires trip sponsors to submit the new travel forms to Members for submittal to the ethics committee, the forms appear to meet this definition.
Assuming the new travel forms meet the statutory definition, knowingly and willfully making a material false statement on a form could subject you to criminal liability, including substantial fines and imprisonment. Your boss might say that the statute is irrelevant here because it doesn’t apply to unintentional false statements. Presumably, any inaccuracies that might result from relaxing your fact-checking would be wholly unintentional. So long as you never knowingly and willfully make a material false statement on your travel form, he might say, you have nothing to worry about.
Strictly speaking, your boss would be right regarding the scope of the statute. Inadvertent false statements should not result in liability. Thus, if you were ever investigated for a material false statement that you did not make “knowingly and willfully,” you would have a strong argument that such investigation should not result in a prosecution.
Presumably, however, you would like more than just a good argument in the event you were subject to an investigation. Because of the enormous burden that a federal investigation can be, I imagine that you would like to avoid being subject to one in the first place.
To minimize the risk of an investigation, you should avoid not only intentional misstatements of material fact but inadvertent ones as well. This is because when a false statement appears on a travel form it may not be discernable from the face of the form whether the false statement was made “knowingly and willfully.”
Admittedly, eliminating inaccuracies altogether could be impossible. For example, the form requires you to certify that a federally registered lobbyist will not accompany the Member on any segment of a trip. In advance of the trip, you may have no way of being certain that this is the case. After all, how could you know for sure the identity of every person who might accompany the Member on each segment of a trip? Therefore, it is quite possible that you might certify that no lobbyist would accompany the Member on any segment of a trip when, unbeknownst to you, a lobbyist did end up accompanying the Member.
Under these circumstances, the fact that you were not aware that the statement was false should provide a defense against any prosecution based on the statement. However, the unintentional nature of your misstatement likely would not be apparent on the face of the document. A prosecutor might wish to pursue an investigation, and your lack of knowledge that the statement was false would be no guarantee that a prosecutor would not do so.
To sum up, while it may be impossible to be certain that your travel forms never include unintentional errors, taking measures to minimize such errors is the safest way to decrease the risk of an investigation. Although a careful approach to confirming the accuracy of the travel forms may be time-consuming and expensive, the time and expense of responding to a federal investigation could be much greater.
C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.