Q:
I am a House staffer with a question about splitting restaurant checks with lobbyists. Like many staffers, I often go out after work with other House and Senate staffers, and sometimes lobbyists join us, too. When they do, I know that the new ethics rules forbid them from paying for our meals. Therefore, to avoid a violation, we simply divide the total cost of the meal among the number of diners. Last week, however, a friend who joined us took issue with our method of splitting up the check. She said that, when lobbyists join us, the ethics rules require each diner to pay specifically for the items that they consume. Is she right? Or is our normal check-splitting method enough? [IMGCAP(1)]

A: As trivial as some people might find the subject of splitting restaurant checks, the issue you have raised actually merits close scrutiny. This is true for two reasons. First, the House ethics committee has said so. In the case of potential gift rule violations, the House Ethics Manual states that Members and staffers must be “especially careful” about “small group and one-on-one meals.”

Second, your issue concerns so many Members and staffers. As you point out, Members and staffers frequently dine with lobbyists. Under the Congressional gift rules, every meal with lobbyists raises the risk of a violation. Even if you are mindful of the rules, it can be difficult to remain compliant.

Fundamentally, you are right that the House and Senate ethics rules prohibit lobbyists from paying for staffers’ meals. The new rules generally prohibit gifts from lobbyists, and a meal at a restaurant would certainly qualify as a gift. While the rules are silent regarding how to split restaurant checks, the Senate Ethics Manual does address the issue. Because of the similarity between the House and Senate gift rules, the Senate manual’s reasoning likely would apply in the House as well.

The Senate manual states that if someone else pays for a staffer’s meal, it is a gift and therefore is prohibited unless it meets an exception to the gift rule. However, if a staffer dining in a group pays an amount equal to the staffer’s “proportionate share of the total meal,” the staffer has not received a gift at all.

Your question boils down to how to ensure that you have paid your “proportionate share of the total meal.” Your favored method seems reasonable. After all, people use your method to split checks all the time. However, popular as it might be, there is a risk that the ethics committees might view it as not good enough.

The risk lies in the potential that the food and drink items that you consume might cost much more than the lobbyists’. Suppose a lobbyist joins you and a staffer for dinner. The lobbyist orders a $10 salad while you and the other staffer splurge on $100 each worth of Kobe beef and pricey wine. If you were to follow your approach and split the $210 check three ways, you and the staffer would pay only $70, or $30 less than the cost of what you consumed. Meanwhile, the lobbyist would pay $60 more than the cost of his salad. The risk is that the ethics committees might deem this to be a $30 gift to each of you, in violation of the rules. Moreover, while in your case the violation would be completely innocent, it is conceivable that less virtuous staffers and lobbyists might use your method as an end-around the ban on gifts from lobbyists.

Perhaps, then, the ethics committees would prefer your friend’s rule that each diner must pay only for the items of food and drink they consume. However, it is far less practical. In fact, it may even be impossible to follow.

Setting aside waiters’ resistance to providing so many separate checks, the biggest problem with your friend’s rule would arise when diners share food and drink items during the course of a meal. Take appetizers, like a $12 plate of calamari shared among three diners. Seems easy, right? Four dollars for each of you. Not so fast. What if one of you eats most of it? Or, if the lobbyist has just one bite? Must everyone count their individual calamari rings? Wine is an even bigger curveball. Suppose you order two $100 bottles among the three of you, and one guzzles much more of it than the others? To comply, do you need to bring beakers to dinner?

In light of these problems, neither your approach to splitting checks nor your friend’s seems ideal. Yours runs the risk of a violation, while adhering perfectly to your friend’s rule just doesn’t seem practical.

So what are you to do? Given the frequency of meals like yours, and the uncertainty about how to comply, staffers like you could benefit from guidance from the ethics committees. Nowhere does the ban on gifts from lobbyists intrude more upon the daily lives of staffers than in the context of group meals.

Eating out with lobbyists can now result in needless anxiety. It would go a long way toward alleviating that anxiety if staffers knew that when they dine with lobbyists, they will not violate the gift rules so long as they make a good-faith effort to pay their share. This seems a reasonable standard to me, and, in most circumstances, your method of splitting a dinner tab evenly should be enough to meet the standard. But, only the ethics committees can say for sure.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.