When to Disclose Employment Negotiations
Q: I am a Senate staffer with a question about searching for a new job while still employed by the Senate. A senior staffer in our office recently told me that he is seeking a job in the private sector. He has already interviewed with a number of firms but says he was unimpressed and never considered joining them. He now plans to interview with a few more, but he has yet to schedule interviews. I am pretty sure that there was a rule change a few years back requiring staffers to report job negotiations with outside employers in order to prevent conflicts of interest. But the senior staffer hasn’t done so. Should I report him to the Ethics Committee?
A: This is sort of a toned-down version of a good Samaritan question. If you are aware that someone is breaking a Senate ethics rule, are you required to do anything about it?
While this is an intriguing question, before even considering it, there is actually a threshold question that needs to be addressed. Are you really aware that someone is breaking a rule in the first place?
You are certainly correct that there are Senate rules governing employment negotiations for Members and senior staffers. These rules were changed substantially in 2007 with the passage of the Honest Leadership and Open Government Act. The rule for senior staffers is Senate Rule 37, Paragraph 14(c), and it applies to any staffer earning 75 percent or more of a Member’s salary. Right now, that makes the threshold staffer salary $130,500.
If the senior staffer in your office is paid less than this amount, the rule does not apply to him at all. If his salary exceeds this amount, however, there are several things about the rule that warrant attention.
First, the rule requires a staffer to disclose any “negotiation” or “arrangement” for private employment to the Senate Ethics Committee within three days of beginning such negotiation or arrangement.
Second, the rule requires a staffer who has engaged in a negotiation or arrangement with a prospective employer to recuse himself from certain matters that could raise a conflict of interest.
First, a staffer must recuse himself from any communications with the employer on issues of legislative interest. In other words, do not talk to the prospective employer about legislative issues of interest to the employer.
And second, a staffer must recuse himself from any legislative matter in which there is a conflict of interest or an appearance of a conflict by virtue of the staffer’s relationship with the prospective employer. Any such recusal must also be disclosed to the Ethics Committee.
The Senate Ethics Committee has a form with which staffers can make the required disclosures, which are nonpublic.
Under Ethics Committee guidance, the staffer must also disclose employment negotiations to his supervising Senator. Specifically, the guidance states: “As negotiations with prospective employers advance, there necessarily comes a point where it is imperative that a staffer inform his or her supervising Senator of negotiations.”
This is “so that the Senator may make an informed decision as to how best protect against a conflict of interest.” In other words, to avoid a conflict of interest, the Senator will eventually need to know about this, too.
So, has the staffer in your office violated these rules? Based on the facts in your question, my guess is probably not. The answer turns on the definitions of “arrangement” and “negotiation.” According to the Senate Ethics Committee, an arrangement begins when an offer is made and accepted. From what you say, it sounds like he has not reached this stage with any firm.
The Senate Ethics Committee has also issued guidance on the meaning of “negotiation” in this context. Under the guidance, negotiation means “the discussion of terms and conditions of employment after an offer has been made and the Member or Senate staffer is considering accepting.”
Again, it seems unlikely from what you have said that the staffer has reached this stage with any of the firms. You identify two groups of firms, one with which he has already interviewed and one with which he plans to interview in the future. As for the firms with which he has already interviewed, it is conceivable that one of those firms offered him a job.
However, under the committee’s guidance, even if a firm did so, the staffer’s discussions with the firm would not qualify as negotiations unless the staffer was “considering accepting” the job offer. You say that the staffer never considered joining any of the firms with which he has interviewed, which suggests he never reached what the committee considers “negotiations.”
In sum, it does not appear that the staffer has violated the employment negotiation rules because his talks have not reached the stages at which disclosure is required. So, even if staffers had an obligation to report violations by other staffers, in this case there is nothing to report.
I am glad you asked. That could have been awkward.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.