Cell Phone Rules Leave Staffers Out in the Rain

Posted October 20, 2008 at 3:29pm

Q:
I am a staffer in the district office of a Member of the House. In my spare time, I also volunteer on the Member’s re-election campaign. The campaign issued me a cell phone, which I typically use for all types of calls, whether related to the campaign or to my official work in his district office. Last week, while in the Member’s district office, I received a call on my cell phone from our campaign manager. We spoke for about a half-hour regarding planning for upcoming campaign events. When I got off the phone, a lawyer in our district office chastised me for violating House ethics rules. He said I had to leave the office to have such a call. I don’t think that’s right. My understanding is that I can use a campaign cell phone for both official and campaign purposes. Besides, it was raining! Who’s right?

[IMGCAP(1)]A: Although there is no general prohibition against staffers working on campaigns in their spare time, doing so can be risky. It brings into play a whole host of ethics rules about which staffers who don’t work on campaigns generally need not worry. Your question implicates two sets of rules in particular that happen to be mirror images of one another. One governs the use of campaign resources for official purposes. The other governs the use of official resources for campaign purposes. Under the first set of rules, you are OK. On the second set, however, you hit a snag. In fact, the attorney appears to be right.

Let’s start with the restrictions on using campaign resources for official purposes, which appear in House Rule 24 and a federal statute: 2 U.S.C. 59e. Broadly, those rules provide that Members must pay official expenses from their office account, and that they may not maintain a separate “unofficial office account.” When these rules were originally established, one of their purposes was to erect a wall such that campaign funds could be used only for campaign purposes, and official allowances could be used only for official purposes. Since that time, however, the rules have been amended to allow the use of campaign funds for certain official purposes, so as to maintain the spirit of the original rules while alleviating inconveniences Members experienced under those rules.

The restrictions on the use of campaign funds for official purposes now apply only to five main categories: (1) official mail or other communications, (2) official employee salaries, (3) House office space, (4) furniture and (5) equipment and any associated information technology services. The rule explicitly exempts “handheld communications devices.” This the House ethics manual defines to include cell phones, BlackBerrys and associated communications services. Therefore, you are right that it was OK for the campaign to issue you a cell phone that you use for both campaign and official purposes.

However, you’re not out of the woods yet. This is because of the other set of rules that is relevant here — the ones requiring that official resources be used only for official business of the House. Under these rules, with limited exceptions, official resources may not be used for political or campaign purposes. The House ethics manual states that this is based on the principle that “government funds should not be spent to help incumbents gain re-election.”

House offices are one of the primary types of official resources that Members and staffers may not use for campaign business. This includes not only offices on Capitol Hill, but also Members’ offices in their districts, like the one where you work. The manual lists examples of activities that, under this prohibition, may not take place in your office: solicitation of contributions; drafting campaign speeches, press releases or other literature; preparation of Federal Election Commission reports; creation or issuance of a campaign mailing; and campaign meetings. In fact, the House ethics manual specifically addresses your exact situation. It states: “Even though a cellphone or BlackBerry is paid for with campaign funds, it may not be used to make or answer campaign- related calls, or to send or respond to e-mails or campaign matters, while the user is in a House room or office.” Therefore, while there is nothing wrong with using your cell phone for both campaign and official purposes, you may not use it for campaign purposes when you are in your district office. To conduct such calls, you must leave the office, raining or not.

I’ve written before that compliance with ethics rules requires close attention. For staffers who work on Members’ campaigns, there is something else that might help them comply — an umbrella.

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.