Disclosure Obligations Complicate Hill Staffers’ Job Talks
Last week, my wife gave birth to our first child, a beautiful baby girl. Her birth has prompted us to reassess our financial situation, and, after nine years as a House staffer, I am contemplating a move to the private sector. While I have had communications with several potential employers in the private sector, none has advanced beyond preliminary discussions. (The baby hasn’t allowed any time for that!) I am aware that recent changes to the House rules do require that staffers make some sort of disclosure of their employment discussions to the House ethics committee. However, I am reluctant to disclose my current communications because I would like them to remain confidential in case they fall through. Besides, if I do ultimately enter the private sector, I presume the ethics committee won’t have jurisdiction over me anyway, so, once I leave the House, it won’t matter if I haven’t complied with the rules. Just to be sure, I have two questions. What do the new rules say regarding my contacts with potential employers? And, if I leave the House for the private sector, will the committee still have jurisdiction over me?
[IMGCAP(1)]A: Last September’s Honest Leadership and Open Government Act imposed new obligations upon House and Senate employees who negotiate with potential employers. In the House, the new obligations appear in Rule 27, which states that very senior staffers must notify the Committee on Standards of Official Conduct when they are negotiating or have any agreement of future employment or compensation with a private entity, and must recuse themselves from official matters in connection with the entity.
When applying this rule, the first thing to consider is whether you qualify as “very senior staff,” since staffers who do not qualify are exempt from the obligations. While you have been a staffer for nine years, the criterion for seniority under the rule is salary, not experience. The rule applies to all staffers whose salary exceeds 75 percent of a Member’s. With last week’s pay raise for Members, that threshold is now an annual salary of $126,975. If your salary is equal to or less than this amount, the new obligations in House Rule 27 do not apply to you.
If, however, you make more than $126,975, the next thing to consider is what counts as “negotiating” for purposes of the rule. Although the rule itself does not define “negotiating,” the ethics committee stated in a memorandum last fall that it would generally consider you to have begun negotiations with an outside party when the following two conditions have been met.
First, there must be “a communication between two parties with a view toward reaching an agreement.” Second, there must be “active interest on both sides.” This suggests that the disclosure requirement is not triggered where either you or a potential employer expresses interest but that interest is not reciprocated. In addition, the committee would not consider you to be “negotiating” with a potential employer if you were merely to send the employer your résumé.
In your case, you characterize your discussions as preliminary. If by this you mean that you have not engaged in communications with a view toward reaching an agreement or if there is no active interest on both sides, then you do not yet need to disclose your discussions to the ethics committee.
However, if and when your discussions with a potential employer do reach this stage, then the rules require disclosure within three business days after beginning negotiations or formalizing an employment or compensation agreement. Disclosure forms are available from the ethics committee and are on its Web site. These forms require disclosure of the name of the potential employer, the date you began negotiations or reached an employment agreement, and a certification that you will recuse yourself from any official matter that would present even the appearance of a conflict of interest in connection with the potential employer. In the case of such recusal, you also must file a recusal form with the ethics committee, acknowledging that you may not directly or indirectly participate in any official matter with the potential employer.
From your questions, it appears that these disclosure requirements have given you pause. This is understandable. After all, in the private sector, employees frequently explore job changes without the knowledge of their current employer. Because of your concern, you raise the question of whether the ethics committee would have jurisdiction over you after you leave the House.
Never say never, but it seems extremely unlikely that the ethics committee would attempt to assert jurisdiction over a former House staffer. Neither the constitutional nor statutory bases for the authority of the ethics committee appear to confer jurisdiction over staffers and Members once they leave the House. In fact, the ethics committee has explicitly acknowledged this limitation on its jurisdiction. For example, in its December 2006 report regarding former Rep. Mark Foley’s (R-Fla.) alleged improprieties with House pages, the committee declined to take action against Foley, stating that it lacks “disciplinary authority” over former employees.
This doesn’t mean, of course, that no risks lie in ignoring your obligations regarding employment negotiations. For one, assuming you are a “very senior staffer,” you clearly are subject to the disclosure rules now. Second, engaging in negotiations while still a staffer subjects you to ethical obligations beyond merely disclosure and recusal. For a good summary of the additional obligations, see the committee’s Sept. 29, 2006, memorandum regarding post- employment restrictions for staff. Third, after negotiating with private employers, you might change your mind and remain in the House, in which case the ethics committee would retain jurisdiction over you. Finally, even if you leave the House with nothing coming to light, if it ever were to come out that you had ignored your ethical obligations before leaving, it might tarnish not only your own reputation, but also those of both your former employer in the House and your new employer in the private sector.
Whatever you decide, make sure you are aware of the risks before you act. And take care of your daughter!
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.