May Staffers Provide Legal Services to Campaigns?

Posted September 19, 2008 at 1:30pm

Q:
I am an attorney working as chief of staff for a Member of the House who is seeking re-election. The legal counsel for his campaign recently went on maternity leave, and my Member has asked me to take over in my spare time. Under the arrangement, I would continue my role as chief of staff while being paid $10,000 by the campaign to be its legal counsel. The campaign says there is a limit on the income that staffers may earn while employed by Congress, but the $10,000 addition still keeps me below the limit. In fact, campaign officials say they specifically designed the proposed arrangement to comply with the ethics rules. Does it?

A: [IMGCAP(1)]House rules do allow staffers to work on Members’ campaigns during their spare time, but there are strict rules governing such work. These rules are extensive and require close attention. In fact, the House Ethics Manual devotes more than 60 pages to its chapter on campaign activity and another 60 pages to a chapter addressing outside employment and income.

One set of rules discussed in these chapters prohibits the use of House resources for campaign purposes and provides that staffers may work on campaigns only on their “own time.” Another set imposes restrictions on the types of outside employment staffers may accept and the amount of income they may earn. The House Ethics Manual identifies two purposes of this latter set of rules. First, they ensure that staffers do not use the influence or prestige of their position for personal gain. Second, they prevent conflicts of interest.

As to your question, House Rule 25 sets forth the restrictions on the income that staffers may receive from sources outside Congress during a given year. However, the restrictions do not apply to all staffers. So, the first task is to determine whether they apply to you. The rule states that the restrictions apply to all staffers who are “paid at a rate equal to or greater than 120 percent of the minimum rate of basic pay for GS-15 of the General Schedule.” That rate currently equates to $114,468. As chief of staff, I assume your pay exceeds this.

If that’s right, the restrictions themselves provide that you may not “have outside earned income attributable to a calendar year that exceeds 15 percent of the annual rate of basic pay for level II of the Executive Schedule.” In English, this means that you cannot make more than $25,830 for part-time work done during your own time. The only exception to this rule is for staffers who go on leave-without-pay status.

In your case, a House Member wants you to remain chief of staff, so leave without pay is not an option. The campaign proposes paying you $10,000 to be campaign counsel. Since this is below $25,830, the campaign is right that your compensation would not exceed Rule 25’s limit on compensation for work on the side. So far so good.

But, as you probably guessed, there’s a catch. And, it’s a big one. Under the Ethics Reform Act of 1989, there are some outside activities for which staffers may not receive any compensation at all. Specifically, staffers may not “receive compensation for practicing a profession that involves a fiduciary relationship.” The purpose of this prohibition is to prevent conflicts of interest.

According to the legislative history, when an outside position creates a fiduciary responsibility to a private party, there is the potential for a “serious conflict of interest,” which occurs in “the clash of those responsibilities and the divergence of public and private interests on a particular governmental matter or in general government policy.”

The Bipartisan Task Force Report that led to the Ethics Reform Act states that the term “fiduciary” should not “be applied in a narrow, technical sense.” Although the rule itself neither defines “fiduciary” nor contains a list of professions to which the prohibition applies, the task force report does provide a representative list of covered services. The list includes “legal, consulting and advising” services, among others. The House Ethics Manual also confirms that staffers may not receive compensation for providing professional services in these fields.

In your case, then, the campaign’s proposed arrangement unfortunately does not comply with the rules. In fact, the only way for you to work on the campaign as an attorney while also keeping your job as a staffer is one that might not be particularly appealing to you: You could work for the campaign for no pay, because the prohibition on providing professional services involving a fiduciary relationship only applies when you receive compensation for those services. So, either you’ll have to join the campaign pro bono, or someone else should take the job.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.