Risks Lie in Submitting Allegations to the New Ethics Office

Posted April 17, 2009 at 5:16pm

Q: I am a recently retired employee of a government watchdog group. I have suspicions that the Representative in my district may have engaged in a pay-to-play scheme with a local contractor. I am considering filing a complaint, and am pleased that the newly created Office of Congressional Ethics allows private citizens like me to do so. My wife says that I should be careful, however. She says that if I start trouble, I could wind up in trouble myself. What is the process for reviewing complaints filed with the Office of Congressional Ethics, and do I have anything to be concerned about in filing one?

[IMGCAP(1)]A: Your question is well-timed. While the OCE was barely visible during the first few months after its creation, that recently changed. Last week the OCE issued its first quarterly report, which confirms that the office is charged with reviewing allegations of House misconduct and, when appropriate, referring matters to the Committee on Standards of Official Conduct (casually known as the ethics committee). The report also states that several reviews are already under way.

While only Members may file formal complaints with the ethics committee, anyone may submit information to the OCE. The recently launched OCE Web site sets forth the rules and procedures, including how to submit allegations. Under the OCE rules, when the office receives allegations of misconduct there are three stages of review and to move from one to the next requires an increasingly heightened standard of proof.

The first stage is a preliminary review, which is an inquiry of no more than 30 days. To begin such a review, the OCE must first determine that there is a “reasonable basis— to believe the allegation in question.

After the preliminary review, the OCE conducts a second-phase review if it finds “probable cause— to believe that the allegation occurred. This means that the evidence in the preliminary review must be sufficient to lead a person of ordinary caution and prudence to have a strong suspicion of a violation. The second-phase review should last no more than 45 days.

Finally, after the second-phase review, the OCE recommends further review by the Committee on Standards of Official Conduct if it determines that there is “substantial reason— to believe the allegations. Before making such a recommendation, the OCE must allow a statement from the subject of the allegations. According to the OCE report, there are currently six second-phase reviews pending.

As for how to submit information to the OCE, there is no process for filing a formal complaint. Instead, citizens can request investigations through informal “submissions.—

The OCE rules have a list of information to include in submissions. Most of the items on the list are straightforward and non-controversial — for example, your name, the Representative’s name, a statement of facts and relevant documents. One of the items, however, is a little thornier. It is a signed declaration acknowledging that the False Statements Act applies to the information you are providing.

You should be aware that to include such a declaration could expose you to the kind of trouble your wife warned about. The False Statements Act states that it is a crime if you knowingly make a false statement in any matter within the jurisdiction of the executive, judicial or legislative branch of government. Violators can face up to five years in jail. While I am sure you have no plans to include any false information, you do refer to your concerns as “suspicions,— so you should be careful to ensure that any information you submit is true.

To provide some context, this is the same act that former Sen. Ted Stevens (R-Alaska) was convicted of violating last year for alleged misrepresentations in his Senate financial disclosure reports. While that conviction was recently dismissed amid allegations of prosecutorial misconduct, the case nevertheless demonstrates the legal risks raised by the False Statements Act.

In an even more relevant example, former Office of Management and Budget official David Safavian was also convicted late last year for violating the False Statements Act. His conviction stemmed, in part, from statements he made during a Senate Ethics Committee investigation.

Of course, in the case of both Stevens and Safavian, prosecutors might have suspected that the defendants were guilty of more than just making false statements. The False Statements Act is a tool commonly utilized by prosecutors who suspect more serious crimes but may have insufficient evidence to pursue them. In the absence of such suspicions, prosecutions under the act are less common. Therefore, even if you were to make a few mistakes in the information you submit to the OCE, it is unlikely the mistakes alone would land you in jail.

Finally, it is unclear whether the False Statements Act should even apply to your submission. Perhaps in acknowledgement of the potential inapplicability of the act, the OCE rules merely “suggest— — and do not require — that submissions include a statement acknowledging the applicability of the act. This is in contrast to the rules for witnesses who testify during OCE proceedings. The House resolution that created the OCE explicitly requires such witnesses to acknowledge the applicability of the False Statements Act to their testimony.

Despite these mitigating factors, filing an OCE complaint, at least in theory, can carry legal risks. As to whether you should proceed with your submission, I’ll leave that to you. But I will say this: My wife is always right. Maybe yours is, too. Look before you leap.

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.