The House Committee on Ethics has issued two memoranda—one to Members and officers and the other to staff—detailing the restrictions placed on these individuals when negotiating future employment and entering the private workforce. While this guidance is directed to those within the House of Representatives, it provides a useful description of the issues private employers must consider when interviewing or hiring from the House. We summarize below the restrictions discussed by the Ethics Committee. Note that while the rules for those in the Senate are similar in many ways, there are key differences, and the recent guidance applies only to those in the House of Representatives.
Negotiating for Future Employment
Members, officers, and staff face certain ethical constraints when negotiating future employment while still employed by the House. The Ethics Committee first clarifies that there is a distinction between “negotiations” and “preliminary or exploratory talks.” Negotiations imply “a communication between two parties with a view toward reaching an agreement” where there is “active interest on both sides.” Sending a copy of a resume to a potential employer is not “negotiating.” The guidance memos state that Members and staff should take particular care when negotiating with an entity that could be affected by the performance of the individual’s official duties. The Committee suggests that Members, officers, and employees tell prospective employers that no official favors will be given as a result of the job negotiations, and that the individuals will be subject to certain post-employment restrictions.
Disclosure of Negotiations and Recusal Requirements
Members and certain House staff must notify the Ethics Committee within three business days after commencing negotiations with a private entity. In addition, members must recuse themselves from matters, which includes votes, where the negotiations would create a conflict of interest or appearance of a conflict.
Benefits Offered by Prospective Employers
Members, officers, and employees may accept food, refreshments, lodging, transportation or other benefits customarily provided by a prospective employer during employment discussions. This is an exception to the general rule prohibiting House Members and employees from accepting gifts. Depending on the total value, the benefits might need to be disclosed by the recipient.
Members, officers, and employees paid above a certain level face detailed restrictions on representations they engage in after leaving the House. The post-employment restrictions are comprised of a complex pattern of prohibitions and exceptions, and violators face criminal penalties. In addition, the Committee correctly notes that DOJ has recently paid “close attention” to potential violations of the post-employment restrictions. While we provide highlights of the Committee’s guidance here, it is important to note that post-employment issues entail a significant level of risk and are highly individualized, and therefore experienced political law counsel should be consulted to evaluate the impact of the restriction on Members, officers, or employees you might consider hiring.
Generally—the guidance memos note—House Members, officers, and employees face a one-year “cooling-off” period measured from the date the individual departs from the House payroll (not adjournment sine die). The restrictions on Members and officers are different from those placed on senior staff (broader for Members), and prohibit various communications with, appearances before, and representations of government officials or entities that change depending on the parties involved. The guidance memos provide an overview of the prohibitions as well as the many exceptions to the prohibitions.
Other Restrictions and Considerations
The Committee’s memos also summarize the following issues related to the departure of House Members, officers, and employees: floor privileges of a former Member; financial disclosure requirements; use of excess campaign funds; outside employment and earned income restrictions; travel restrictions. One item from the guidance memos is worth noting here—House rules limiting outside employment could be implicated if a new employer suggests that a departing Member start working after the House adjourns but before the Member’s term expires, or that a departing employee start working while the individual is still collecting accrued annual leave.