Q: I am a staffer for a freshman Member of the House with a question about filling out our boss’ staff. We have one more position to fill, and our Member would like to hire someone who has served as his personal assistant for the past eight years. Over the years, the personal assistant has done a little bit of everything for the Member, including scheduling, driving, laundry — even baby-sitting his children. Our chief of staff has concerns about whether someone on the House payroll can perform duties like these. May the Member hire his longtime assistant to perform these duties as a House staffer?
[IMGCAP(1)]A: There are several different sources of restrictions on the uses of House staff. These include the House Rules, the House Members’ Handbook, the House Committee Handbook and federal statutes. Rather than parsing the language of each, for our purposes let’s just focus on their gist.
The House Ethics Manual provides a good synthesis of the many restrictions. It begins with the general principles that Congressional employees “are paid United States Treasury funds to perform public duties— and that “appropriated funds are to be used solely for the purposes for which they are appropriated.— In the case of staffers, the funds used to pay their salaries should be used only for legislative and representative duties, working on committee business, and other Congressional functions. “Employees may not be compensated from public funds to perform … personal … activities on behalf of [a] Member, the employee, or anyone else.— Members must certify that the compensation their staffers receive complies with these rules.
In short, staffers may perform “official and representational duties— but may not perform personal duties for Members as part of their work responsibilities. The difficulty lies in discerning the difference.
Unfortunately, none of the sources of restrictions on the uses of House staff include clear guidance regarding the distinction between official and personal duties. No House rule or federal statute even defines the “official and representational duties— that staffers may perform. This means that discerning the difference between official and personal duties must largely be done on a case-by-case basis.
What makes this gray area particularly troubling is that personal use of House staff can in some cases subject Members to criminal liability. Four times in the past, a Member has faced criminal charges for using staff for personal services. Charges have included embezzlement of government funds, fraud and false certifications regarding staffers’ compensation. Prosecutors have essentially alleged that Members who use staffers for personal services are stealing official funds.
But, just as these cases warn of the risks of using staffers for personal services, they also illustrate the difficulty in discerning the difference between personal and official services. For example, in 1995, a federal appeals court reviewed the conviction of Rep. Dan Rostenkowski (D-Ill.) for, among other things, using staff for personal services. In an opinion that was more candid than it was clarifying, the court said that it was “not so sure— that the rules provide a standard for distinguishing between official and personal services. This, the court said, is because “the line between official work’ and personal services’ is not so clear.—
The court’s analysis of the specific allegations regarding Rostenkowski’s staff further reveals how difficult it is to tell “personal— from “official.— The court concluded that a staffer who performed bookkeeping duties for a company Rostenkowski owned was plainly doing personal services for him in violation of the law. On the other hand, the court concluded that the following services might qualify as official work: mounting souvenirs on plaques, picking up Rostenkowski’s laundry and driving his family around. This is because such services might, in some circumstances, aid a Congressman in performing his official duties. The court cited the Members’ Handbook for the general proposition that the House vests Members with discretion to fix the terms and conditions of employment of staff.
Yet, you should take only so much comfort in the court’s conclusion with respect to these services. Just because a federal court in 1995 said that certain services might qualify as official services does not mean that today’s House Committee on Standards of Official Conduct would agree. Ultimately, the only way to know whether the ethics committee would consider a given service to be personal or official is to ask.
So, while I may have my own views regarding what should count as official work and what should count as personal, I am afraid that those views will not be of much use here. Rather, the ambiguous line between personal and official services means that the safest course for your Member would be to seek an advisory opinion from the House ethics committee. Specifically, he can submit a list of all of the duties that he wishes his assistant to perform, and he can request that the committee opine as to the propriety of each one. In the meantime, if his children need a baby sitter, I’d suggest he look somewhere other than his House staff.
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.