Panel: Staff Conduct Falls on Members

Posted March 1, 2010 at 6:31pm

The House ethics committee on Friday lobbed a warning to Members: You are ethically accountable for your staff.

The admonition came embedded in the ethics committee’s ruling that two Caribbean trips involving six Members violated House rules because the events secretly received corporate funding.

Although it excused five of the Members who attended while still requiring they repay the cost of the trip, the ethics panel admonished Ways and Means Chairman Charlie Rangel (D-N.Y.) on the basis that his staff was aware of the conflict.

The subcommittee report, adopted by the full Committee on Standards of Official Conduct, cited precedents for the decision, but legal experts and government reform advocates suggested the decision could effectively expand Members’ liability for the actions of their aides.

“The Investigative Subcommittee also intends the publication of this report will serve as an advisory for all Members, employees, and officials of the House that Members may be held responsible for the knowledge and official conduct of their staff,” the Feb. 26 report states.

Defense attorney Stan Brand, a former House general counsel who has represented numerous Members before the ethics panel, characterized the decision as a “fairly momentous and unsettling development.”

“As a practical matter, it’s going to force some type of examination of what you have to do to supervise your staff, and I think that’s going to create some problems,” Brand said.

In particular, Brand pointed to House committees, citing the extensive activities and meetings staff may conduct without a Member present as well as the sheer number of staff.

“It’s kind of a strict liability standard for staff supervision that I don’t think people anticipated was the prevailing rule,” he added.

In the report, the ethics committee highlighted three prior investigations as precedents for its decision against Rangel, including inquiries involving former Reps. Newt Gingrich (R-Ga.), Austin Murphy (D-Pa.) and Bud Shuster (R-Pa.).

In its 1990 decision involving Gingrich, the committee chastised the lawmaker for franking committee violations by his aides “despite his lack of personal knowledge,” but it dismissed the entire inquiry and took no formal action against the Georgia lawmaker.

The ethics panel also cites its formal reprimand of Murphy in 1987 over allegations that included diverting official House resources to his former law firm, despite Murphy’s contention that he had not approved those distributions.

“Counsel to the Select Committee argued that ‘a Member must bear responsibility for the actions which are under his ultimate authority and should not escape liability by attempting to blame his staff,'” the ethics committee wrote, quoting its 1987 report.

The committee also reiterated its decision in 2000 that resulted in a “letter of reproval” against Shuster for five violations related to his interactions with his chief-of-staff-turned-lobbyist, in which it stated that “Members of the House are ultimately responsible for ensuring their offices function in accordance with applicable standards.”

In the ethics committee’s account on Rangel, investigators reported that one of the New York Democrat’s aides, Michelle Sherwood, wrote a memorandum to the lawmaker in September 2008 that addressed concerns over corporate funding related to that year’s Carib News event and requested Rangel’s advice on “how to proceed.”

But Rangel told investigators he did not recall seeing the memo, the report states, and investigators could not prove he had received it.

Instead, ethics investigators reproached both Sherwood and then-Chief of Staff George Dalley for their apparent knowledge of corporate funding at the 2008 event.

“Many times Members act through the actions of their staff and, therefore, should be held liable for those actions in certain circumstances,” the ethics subcommittee wrote. “In this case, Representative Rangel acted when he attended the conference through Mr. Dalley’s actions of completing and signing the forms necessary for the approval to attend the conference. … Representative Rangel, therefore, can and should be held responsible for the knowledge Mr. Dalley and Ms. Sherwood had regarding the corporate sponsors.”

Campaign Legal Center Policy Director Meredith McGehee welcomed the ethics committee’s newfound determination to hold Members liable for their aides’ actions.

“Certainly the standard should exist,” McGehee said. “If you don’t have accountability for your staff, then you have no accountability.”

But Rob Walker, an attorney with Wiley Rein who was previously a top aide to the Senate and the House ethics committees, said that a ruling made in a subcommittee report should not necessarily be interpreted as a new committee policy.

“The committee is going to have to clarify the extent to which that report can be read as a statement of actual committee position and principle,” Walker said.

Although the committee is unlikely to produce an independent statement to that effect, Walker said it could be incorporated into a revised Ethics Manual.

“I think the committee needs to clarify what the standard is for holding Members responsible for the actions of their staff,” Walker said. “I don’t think the principles enunciated in the subcommittee report are crystal clear enough to give Members sufficient guidance as to when they would be held accountable and when they would not be.”

Citizens for Responsibility and Ethics in Washington Executive Director Melanie Sloan offered a more blunt assessment: “I don’t think they meant it.”

“It would have to mean that the ethics committee would have to start investigating Members for staff misconduct,” Sloan added.

Sloan criticized the ethics committee for its decision not to sanction any of the Members who attended the Caribbean trips, stating, “It doesn’t seem to me they’re willing to hold Members accountable for almost anything.”

In a statement issued Friday, Rangel criticized the ethics panel’s decision to admonish him — while it cleared the other five Members who participated in the trips, despite ruling the travel itself violated House gift rules — and disputed any parallels to the precedents cited by the investigators in their report.

“If Members are to be charged with knowledge of everything that each of their staffs know or should know, Members will be blind-sided with ethics problems,” Rangel wrote. “Under this ill-considered standard, Members may commit ethics violations vicariously, even when they have reasonably relied on staff and have no knowledge or reason to know of any staff errors or improprieties.”

“If the Committee proposes to adopt such a standard, it should do so prospectively, after careful analysis and consideration of its broader implications,” he continued.