May Former Staffers Help New Staffers Do Their Jobs?

Posted May 18, 2009 at 2:49pm

Q: I recently became the chief of staff for a Member of the House, replacing someone who had held the position for several years. I am trying to learn the ropes as quickly as possible and have found that the former chief of staff has been an invaluable resource in getting me up to speed. He is particularly helpful with the Member’s schedule. Given that he is no longer a House employee, are there any restrictions on the help that he can provide me?

[IMGCAP(1)]A: In 1977, the House created what is now House Rule 24, which prohibits Members from maintaining “unofficial office accounts.— The rule essentially erected a wall between private funds and official allowances, prohibiting private funding of official House expenses. The House commission that recommended the rule said that its purpose was to put an end to “influence peddling— through private financing of the official expenses of Members of Congress.

Shortly after the rule was adopted, the House ethics committee published an advisory opinion declaring that Rule 24 prohibits not only monetary contributions to official expenses, but in-kind contributions as well. The opinion states: “For purposes of House Rule 24, the private contribution of in-kind services for official purpose is prohibited.— Broadly, this means that only official staff should do official work. When does the assistance of a former staffer qualify as the type of services that are prohibited by Rule 24?

In answering that question, the case of former Rep. Bud Shuster (R-Pa.) is a useful guide. In 1996, a watchdog group filed an ethics complaint against Shuster, focused in part on Shuster’s relationship with his former chief of staff, Ann Eppard. An investigative subcommittee conducted a lengthy investigation after which it charged Shuster with several violations and issued a report. Eppard herself was also ultimately indicted for conduct related to the investigation.

One of the allegations against Shuster was that his office allowed Eppard to do official work even after she left Congress to become a lobbyist. The report states that, after Eppard left Shuster’s staff, Shuster “routinely encouraged, authorized or otherwise accepted the scheduling and advisory service of Ms. Eppard on matters that were official in nature.— This, the report said, violated what is now House Rule 24. The report said that “the regular involvement of a volunteer/political advisor in a congressional office who performs tasks properly associated with the official responsibilities of House Members and employees is inappropriate.—

During the investigation, Shuster’s staffers testified that the reason they sought Eppard’s advice was because of her institutional knowledge. Some staffers also explained that they felt it was appropriate for them to seek Eppard’s assistance because she had become an employee of Shuster’s campaign and that any request to see Shuster obviously had implications for his campaign.

The investigative committee disagreed and concluded that Shuster had violated House Rule 24. The report’s key finding was that Eppard “rendered extensive assistance to Representative Shuster’s congressional staff on a regular and routine basis that supplanted the duties normally performed by congressional employees.— Although the conduct in question primarily involved Shuster’s staffers and not Shuster himself, the report stated that “Members of the House are ultimately responsible for ensuring that their offices function in accordance with applicable standards.—

It should be noted just how extensively involved Eppard remained in Shuster’s office even after becoming a lobbyist. According to the report, when staff received requests for appointments in Shuster’s office, the staff routinely sought Eppard’s assistance in identifying the persons making the requests, explaining why they might be seeking the requests and determining what their views on certain issues might be. The staff solicited Eppard’s input on the majority of the appointment requests that the subcommittee reviewed during its investigation. Eppard’s authority was so extensive, the report said, that in some instances Shuster’s scheduler was authorized to follow Eppard’s direct instructions.

I presume that you do not plan to utilize the former chief of staff nearly as much as Shuster’s office used Eppard. However, you do mention that you find his assistance in scheduling particularly useful. Shuster’s case illustrates that you should be careful not to allow the former chief of staff to be involved in the actual scheduling of your Member’s appointments.

But this does not mean that incoming staffers can never rely on the help of former staffers. The Shuster report acknowledged that a “limited amount of involvement by a departing congressional employee with his or her former employing office … might be reasonable under certain circumstances to ensure a smooth transition before his or her successor becomes familiar with job responsibilities.— So, a little help in the short term should be OK. Just don’t let him do your job.

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.