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May Senate Staffers Hold Elected Office in Their Home States?

I am a full-time employee on the campaign of a candidate for Senate. If he is elected, I hope to join his staff and start gaining experience for my own eventual run for Congress. In the meantime, I am also looking for ways to get involved in public service at the state and local levels. Recently, an opening arose on my local school board, and I am very interested in running for the position. It is an unpaid position, and board members meet only twice a month, so I think it would not interfere with a Senate staff position. However, before joining the school board race, I wanted to make sure that the Senate rules would allow me to remain on the board even if I were to become a Senate staffer. If my candidate were to win and I wanted to join his staff, would the rules require me to resign from the school board?

[IMGCAP(1)]A: Yours is a question of conflict of interest. Does a conflict exist between serving on a local school board and being a Senate staffer? The answer lies in Senate Rule 37, which states: “No Member, officer, or employee shall engage in any outside business or professional activity or employment for compensation which is inconsistent or in conflict with the conscientious performance of official duties.”

According to the Senate Ethics Manual, this restriction extends to uncompensated positions on boards, commissions or advisory councils where such service could create a conflict of interest with an individual’s Senate duties. Moreover, the manual states that the restriction prohibits not just actual conflicts of interest but also activities that give the appearance of a conflict of interest. In one case, the Senate Ethics Committee considered whether a subcommittee staffer should refrain from joining a local bar association that intends to lobby the staffer’s subcommittee. The committee advised that, while there was no rule specifically precluding the staffer from joining the bar association, “the more prudent choice” would be to refrain from joining because of the appearance of a conflict of interest.

In your case, an argument certainly could be made that there would be a conflict between serving on a local school board and being a Senate staffer. If your candidate were to be elected to the Senate, it seems likely that at some point he would be faced with legislation or some other official decision that might affect the local school system — e.g., legislation providing educational funding that would benefit your school system. Someone might contend that the mere fact that a Senator has a staffer who serves as a school board member gives the appearance of a conflict of interest. On the other hand, extending the restriction to a staffer’s service on a local school board on these grounds does seem to go too far. If the rule really were to prohibit all mere potential appearances of a conflict of interest, it could plausibly find a conflict in almost anything.

The good news for you is that the Senate Ethics Committee has already settled this argument in your favor. The Ethics Manual states that no statute or Senate rule prohibits staffers from holding state and local elected office. In fact, on several occasions the Ethics Committee has approved staffer requests to hold state and local elected office positions. These have included positions on state commissions, state legislatures and city councils.

However, you would be unwise to treat these rulings as providing a blanket approval of staffers holding elective office, regardless of the circumstances. Rather, there are ethical guidelines governing both the circumstances in which staffers may hold elective office and what staffers who hold elective office may do. Therefore, in case you strike it big, and both you and your candidate were to win your elections, be sure to keep these guidelines in mind.

First, you would need to obtain your supervisor’s approval of your school board service. In order for your supervisor to provide such approval, the Ethics Committee has said that your supervisor would need to determine that your school board service would present no actual or apparent conflict of interest either with respect to the time required or the nature of the service itself. In addition, the committee has said that your supervisor would then have an ongoing responsibility to monitor your school board service and take whatever actions he considers necessary to avoid a future actual or apparent conflict of interest.

Second, assuming your supervisor were to approve your school board service, it would then be your responsibility to ensure that you did not do your school board work on “official time” during which you receive a government salary. This means no school work in the Senate office. Nor could you utilize any official resources, including computers and telephones. These restrictions can be extremely onerous. Whereas in the private sector, employers frequently allow employees to use office phones and computers to perform outside responsibilities, the Senate Ethics Committee has taken a strict approach forbidding staffers from doing so.

Finally, to avoid any appearance of a conflict of interest, the committee has said that you should discourage any suggestion that your local constituents would receive special treatment from the Senate office, beyond the treatment received by other residents of your state. So, as your school board campaign gets under way, I’d avoid the slogan: “Vote for the Future Senate Staffer.”

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Readers should not treat his column as legal advice.

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