[House Report 114-687]
[From the U.S. Government Publishing Office]
House Calendar No. 137
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-687
_______________________________________________________________________
IN THE MATTER OF ALLEGATIONS RELATED
TO REPRESENTATIVE ED WHITFIELD
----------
R E P O R T
of the
COMMITTEE ON ETHICS
July 14, 2016.--Referred to the House Calendar and
ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
20-740 WASHINGTON : 2016
COMMITTEE ON ETHICS
CHARLES W. DENT, Pennsylvania LINDA T. SANCHEZ, California
Chairman Ranking Member
PATRICK MEEHAN, Pennsylvania MICHAEL E. CAPUANO, Massachusetts
TREY GOWDY, South Carolina YVETTE D. CLARKE, New York
SUSAN W. BROOKS, Indiana TED DEUTCH, Florida
KENNY MARCHANT, Texas JOHN B. LARSON, Connecticut
REPORT STAFF
Thomas A. Rust, Chief Counsel/Staff Director
Patrick M. McMullen, Director of Investigations
Clifford C. Stoddard, Jr., Counsel to the Chairman
Daniel J. Taylor, Counsel to the Ranking Member
David W. Arrojo, Council
Molly N. McCarty, Investigator
Michael Koren, Investigative Clerk
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on Ethics,
Washington, DC, July 14, 2016.
Hon. Karen L. Haas,
Clerk, House of Representatives,
Washington, DC.
Dear Ms. Haas: Pursuant to clauses 3(a)(2) and 3(b) of Rule
XI of the Rules of the House of Representatives, we herewith
transmit the attached Report, ``In the Matter of Allegations
Related to Representative Ed Whitfield.''
Sincerely,
Charles W. Dent,
Chairman.
Linda T. Sanchez,
Ranking Member.
C O N T E N T S
__________
Page
I. INTRODUCTION.....................................................1
II. PROCEDURAL BACKGROUND............................................2
III. FINDINGS AND CONCLUSIONS.........................................3
IV. STATEMENT UNDER HOUSE RULE XIII, CLAUSE 3(c) OF THE RULES OF THE
HOUSE OF REPRESENTATIVES.........................................8
APPENDIX A: REPORT OF THE INVESTIGATIVE SUBCOMMITTEE.............9
APPENDIX B: REPORT AND FINDINGS OF THE OFFICE OF CONGRESSIONAL
ETHICS (REVIEW NO. 14-2940)....................................457
APPENDIX C: REPRESENTATIVE WHITFIELD'S SUBMISSION TO OCE......1067
APPENDIX D: REPRESENTATIVE WHITFIELD'S SUBMISSIONS TO THE
COMMITTEE AND INVESTIGATIVE SUBCOMMITTEE......................1103
House Calendar No. 137
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-687
======================================================================
IN THE MATTER OF ALLEGATIONS RELATING TO REPRESENTATIVE ED WHITFIELD
_______
July 14, 2016.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Dent, from the Committee on Ethics,
submitted the following
R E P O R T
In accordance with House Rule XI, clauses 3(a)(2) and 3(b),
the Committee on Ethics (Committee) hereby submits the
following Report to the House of Representatives:
I. INTRODUCTION
On July 12, 2016, the Committee considered the Report
adopted by the Investigative Subcommittee (ISC) in this matter.
This Report memorializes the Committee's conclusions based on
the ISC Report.
The Committee agrees with the findings and conclusions the
ISC reached following its thorough thirteen-month
investigation.\1\ Specifically, the Committee finds that
Representative Ed Whitfield failed to prohibit lobbying
contacts between his staff and his wife, Constance Harriman,
and dispensed special privileges to Ms. Harriman, but that he
did not violate the rule against improperly using his position
for his own interest. The Committee also found, as the ISC did,
that Representative Whitfield did not intend to violate the
House Rules or other standards of conduct, or to benefit
himself or his spouse by doing so. However, the Committee
agreed with the ISC's conclusion that Representative Whitfield
did not take sufficient care to familiarize himself with the
applicable rules and other standards of conduct, or to ensure
that his office complied with them, and that the resulting
violations were significant and numerous enough to warrant a
reproval by the Committee.
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\1\The Committee thanks the Members of the ISC for their efforts
and attention to this matter.
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Accordingly, the Committee hereby adopts the ISC's Report,
which will serve as a reproval to Representative Whitfield. The
ISC's Report is transmitted as an appendix to this Report.
II. PROCEDURAL BACKGROUND
On June 10, 2014, the Office of Congressional Ethics (OCE)
transmitted a Report and Findings (Referral) relating to
Representative Whitfield to the Committee. OCE's Referral
recommended that the Committee further review allegations that
Representative Whitfield failed to prohibit lobbying contacts
between his staff and his wife (who was at the time a
registered lobbyist), and that he dispensed special favors or
privileges to either his wife or her employers, the Humane
Society of the United States (HSUS), or its lobbying arm, the
Humane Society Legislative Fund (HSLF).\2\
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\2\A referral from the OCE to the Committee may include a
recommendation that the Committee further review an allegation or
dismiss it and provide the Committee with certain types of information
regarding the allegation, but not the names of any cooperative
witnesses or any conclusions regarding the validity of the allegations
or the guilt or innocence of the individual who is the subject of the
review. See H. Res. 895 1(c)(2)(C).
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The Committee agreed with OCE's recommendation and did
further review the allegations in its Referral. On November 10,
2014, the Committee published OCE's Referral and a response
from Representative Whitfield, and publicly announced that the
Committee would investigate the matter under Committee Rule
18(a). Shortly after the commencement of the 114th Congress, on
March 25, 2015, the Committee unanimously voted to establish an
ISC to continue the Committee's investigation of the
allegations in OCE's referral.
The ISC issued requests for information to Representative
Whitfield, HSUS, and HSLF. In response to those requests, the
ISC obtained and reviewed over 140,000 pages of documents. The
ISC interviewed eleven witnesses, including current and former
House staff, employees of HSUS and HSLF, a Member who was a
witness to the allegations, Ms. Harriman, and Representative
Whitfield. In addition, the ISC reviewed Representative
Whitfield's written submissions regarding the allegations in
this matter.
On April 20, 2016, the ISC voted to adopt its Report,
finding that Representative Whitfield had violated the House
Rule concerning lobbying contacts between a Member's spouse and
his staff, as well as rules regarding the dispensation of
special privileges. The ISC did not believe that a sanction
requiring floor action by the House of Representatives was
warranted in this case. However, the ISC did recommend that the
Committee reprove Representative Whitfield, a sanction which
the Committee is authorized by House Rules to issue on its own
authority.\3\ As the Committee has noted previously, reproval
by the Committee is ``intended to be a clear public statement
of rebuke of a Member's conduct issued by a body of that
Member's peers acting . . . on behalf of the House of
Representatives.''\4\
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\3\House Rule XI, clause 3(a)(2).
\4\House Comm. on Standards of Official Conduct, In the Matter of
Representative E.G. ``Bud'' Shuster, H. Rep. 106-979, 106th Cong., 2d
Sess. (Oct. 16, 2000) at 113.
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Pursuant to House Rule XI, clause 3(a)(2), which provides
that the Committee may report to the House its findings and
conclusions for final disposition of investigative matters
after ``notice and hearing,'' the Committee provided
Representative Whitfield with a copy of the ISC Report on April
29, 2016, and offered him the opportunity to be heard by the
full Committee. Representative Whitfield responded to the ISC's
Report through an extensive written submission and by appearing
before the Committee.
Following Representative Whitfield's appearance before the
Committee, the ISC met again to discuss Representative
Whitfield's remarks and submission. After further consideration
of those views and materials, the ISC unanimously agreed to
make minor revisions to its Report, and transmitted the Report
to the Committee. As described further below, the ISC still
concluded that the violations were significant and numerous
enough to warrant a reproval by the Committee, and the full
Committee unanimously agreed with that recommendation.
III. FINDINGS AND CONCLUSIONS
On July 12, 2016, the Committee voted unanimously to
release this public Report finding that Representative
Whitfield violated House Rules and other standards of conduct.
Specifically, beginning in January 2011 and continuing until at
least 2015, Representative Whitfield permitted Ms. Harriman,
who was at that time registered as a lobbyist for HSLF, to
contact his staff regarding federal legislation in which HSLF
had an interest. This contact took many forms, from Ms.
Harriman's participation in the planning and strategy of
arranging meetings between other Members and outside advocates
for the Prevent All Soring Tactics Act (PAST Act), a bill that
Representative Whitfield sponsored and HSLF supported, to
discussing communications and parliamentary strategy for the
PAST Act and other animal welfare bills, to directly advocating
that Representative Whitfield vote for certain animal welfare
bills or amendments, or that his staff alter the language of
such bills. These contacts, the ISC concluded, illustrated Ms.
Harriman's unique level of access to, and influence on,
Representative Whitfield's staff.
With respect to the conduct described above, Representative
Whitfield violated House Rule XXV, clause 7, which requires
that Members ``prohibit all staff employed by that Member . . .
from making any lobbying contact . . . with that individual's
spouse, if that spouse is a lobbyist . . .'' Representative
Whitfield also violated the Code of Ethics for Government
Service, Section 5, which states that Members shall ``never
discriminate unfairly by the dispensing of special favors or
privileges to anyone, whether for remuneration or not . . .''
Finally, this conduct also violated Clauses 1 and 2 of House
Rule XXIII, which provide that a Member ``shall behave at all
times in a manner that shall reflect creditably on the House,''
and ``shall adhere to the spirit and the letter of the Rules of
the House . . .''
The ISC noted that these violations were not caused by any
corrupt or willful intent to violate House Rules or other
standards of conduct.\5\ However, the ISC recognized that
Representative Whitfield failed to establish clear guidelines
and limits for his staff, which resulted in numerous lobbying
contacts between his staff and Ms. Harriman over an extended
period of time.\6\ The ISC further found that Ms. Harriman's
unique access to and influence on Representative Whitfield's
staff constituted a special privilege to her, which other
lobbyists were not and would not have been granted.\7\ The ISC
concluded that these violations did not require a House
sanction, such as a reprimand or censure, largely because they
were due to Representative Whitfield's negligence, rather any
intent to violate the applicable rules and other standards of
conduct.\8\ However, the ISC observed that, consistent with the
Committee's prior precedents, even unintentional violations, if
significant and sustained over time, can merit a reproval by
the Committee.\9\ Based on the totality of the circumstances,
the ISC concluded that a public reproval was appropriate in
this case.
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\5\ISC Report at 32-33.
\6\Id.
\7\Id. at 30.
\8\Id. at 32-33.
\9\Id. at 33 & n.222.
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After reviewing the ISC's Report, Representative Whitfield
acknowledged that his ``oversights led to unintentional
violations'' of the House Rule regarding lobbying contacts
between a Member's staff and a lobbyist spouse.\10\ However,
Representative Whitfield asserts that his spouse did not have
special access to his staff, and that there was thus no
violation of the rule against providing a ``special privilege''
to any person. Representative Whitfield also contends that his
actions did not fail to ``reflect creditably on the House,''
and that a reproval is not appropriate, given his lack of
intent to violate the rules and other circumstances.
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\10\Representative Whitfield Submission (May 31, 2016) (Appendix D)
at 1.
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The Committee has accepted the ISC's findings regarding the
lack of any intent by Representative Whitfield to violate the
rules. However, the Committee found that Representative
Whitfield failed to take the proper care to avoid violations of
the applicable rules. In particular, the Committee was troubled
by Representative Whitfield's assertions that he was unaware of
both the lobbying contacts rule and his spouse's registration
as a lobbyist until another Member's staff raised questions
about Ms. Harriman in October 2013, nearly three years after
Ms. Harriman registered as a lobbyist.\11\ As the Committee has
previously stated, ``Members have both the duty and
responsibility to be aware of relevant House Rules and to
conform their actions accordingly.''\12\ The Committee has thus
refused to accept claims of mitigation that ``would effectively
result in the condonation of improper action based upon a
defense of ignorance of House Rules,'' stating that ``[s]uch an
approach is clearly untenable on its face.''\13\
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\11\Representative Whitfield characterized his lack of knowledge of
the rule and of Ms. Harriman's lobbying registration as mitigating
circumstances, in response to the ISC Report.
\12\See House Comm. on Standards of Official Conduct, In the Matter
of Representative Richard H. Stallings, H. Rept. 100-382, 100th Cong.
1st Sess. 6 (1987) (hereinafter Stallings).
\13\Id.
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Likewise, and for the same reasons, the Committee believes
that a Member bears some responsibility to be aware of
significant changes in factual circumstances--such as a
spouse's action to register as a lobbyist--that could implicate
House Rules. The Committee also questioned Representative
Whitfield's assertion that he ``did not even know that his wife
had become a registered lobbyist'' until October 2013.\14\ In
fact, Ms. Harriman sent a statement to Representative
Whitfield's House BlackBerry device in December 2012, which
referred to a Washington Post reporter's ``inquiry regarding
the lobbying work of Connie Harriman-Whitfield on behalf of the
Humane Society Legislative Fund (HSLF).''\15\ The email to
Representative Whitfield noted that Ms. Harriman was a
registered lobbyist for HSLF, and was paid ``for her lobbying
work.''\16\ Further, several of Representative Whitfield's
staff, including his chief of staff, testified that they knew
Ms. Harriman was a registered lobbyist for the Humane Society
well before October 2013.\17\ This raises questions about how
Representative Whitfield's staff was aware of Ms. Harriman's
change in status around the time it occurred, yet
Representative Whitfield remained unaware.
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\14\Representative Whitfield Submission (May 31, 2016) (Appendix D)
at 11.
\15\ISC Report at 27 (citing Ex. 56).
\16\Id.
\17\Id. at 5-6.
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Despite Representative Whitfield's claim that he was
unaware of the lobbying contacts rule until late 2013, and his
admission that he did, in fact, violate the rule,
Representative Whitfield argues that there is more than one
reasonable interpretation of the rule, and that his actions
were consistent with one such interpretation. Representative
Whitfield has made this point previously, in written
submissions and in extensive testimony before the ISC. The ISC
considered Representative Whitfield's interpretation of the
rule, along with his characterization of the contacts between
his staff and Ms. Harriman regarding legislation that HSLF
supported or lobbied on, and found them to be without
merit.\18\ The Committee agreed with the ISC's thoughtful and
detailed analysis, and notes that the ISC took care to
highlight and address both exculpatory and inculpatory evidence
in its Report. Given the Committee's confidence in the ISC's
Report, the Committee will not issue an extended response to
Representative Whitfield's most recent submission. However, a
few of Representative Whitfield's legal and factual arguments
merit brief discussion.
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\18\See, e.g., id. at 23-27.
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On the proper interpretation of the lobbying contacts rule,
Representative Whitfield admits that he violated the rule, but
asserts that it would have been reasonable for him to believe
that Ms. Harriman's communications with his staff were only
``lobbying contacts'' if she intended to influence the staff or
Representative Whitfield, and that there was no public guidance
from the House or Committee that would have led him to view the
rule differently.\19\ Putting aside Representative Whitfield's
admission that he did not have any interpretation of the
lobbying contacts rule during the period at issue here--because
he was unaware the rule existed--the Committee disagrees with
Representative Whitfield's contention.\20\
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\19\In October 2013, Ms. Harriman contacted Committee staff after
another Member's staff objected to Ms. Harriman's participation in
legislative meetings arranged by Representative Whitfield's staff.
Representative Whitfield asserts that Ms. Harriman received ``unclear
responses'' from Committee staff, and that Committee staff acknowledged
that the issue was ``complicated.'' See Representative Whitfield
Submission (May 31, 2016) at 9-10 (Appendix D). The ISC considered
these assertions, and found that, at a minimum, Committee staff
informed Ms. Harriman that she should not ``talk about any bill with
[Representative Whitfield's] office that HSUS supports,'' as Ms.
Harriman's own notes of the call state. See ISC Report, Ex. 32. Yet Ms.
Harriman continued to have those conversations long after speaking with
Committee staff.
\20\Representative Whitfield's written response to the ISC report
asserts that he was ``unaware of the lobbying contacts rule.'' The
prohibition in House Rule XXV, clause 7, was created in the 110th
Congress by the Honest Leadership and Open Government Act of 2007
(``HLOGA''), Pub. L. 110-81, Sec. 302, 121 Stat. 735, 121 Stat. 735,
752 (Sept. 14, 2007), which passed the House on a vote of 411-8. It has
been included in House Rules in each of the four successive Congresses.
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As the ISC explained, the definition of a ``lobbying
contact,'' which is included in the Lobbying Disclosure Act of
1995 (LDA) contains no reference to, or requirement for, a
lobbyist's intent to influence anyone.\21\ As a matter of
common sense and practice, lobbyists often work with Members
and their staff on issues where the lobbyist and the Member or
staff already agree; the point of those contacts is not to
influence the Member or staff, but to work together to pass or
modify legislation. These interactions fall squarely within the
statutory definition of a lobbying contact. Further, as the ISC
Report explained, the House has published guidance which makes
clear that if a lobbyist's client would view its lobbyist's
communication with a Member or staff as advancing the client's
interests in legislation, the communication is a lobbying
contact.\22\ As the ISC detailed, Ms. Harriman's client, HSLF,
viewed her as acting on its behalf when she contacted Member
offices--including Representative Whitfield's office.\23\ Thus,
based on the publicly available guidance issued by the House,
Ms. Harriman's contacts with Representative Whitfield's staff
regarding legislation that she and her client, HSLF, were
registered to lobby on would be ``lobbying contacts.''
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\21\ISC Report at 24-25.
\22\Id. at 24 & n.166 (citing Office of the Clerk, Lobbying
Disclosure Act Guidance (Dec. 15, 2014) (section titled ``Is it
Lobbying Contact/Lobbying Activity?'')).
\23\Id. at 24.
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Representative Whitfield acknowledges that by at least
October 2013, he knew that his wife was a registered lobbyist
and knew of the rule regarding lobbying contacts by a Member's
spouse who is a registered lobbyist, but asserts that he lacked
guidance from the Committee about how to interpret the
rule.\24\ Yet, as discussed at greater length in the ISC
Report, the Committee's Chief Counsel spoke to Ms. Harriman
about the rule. In that conversation, the Chief Counsel offered
to speak to Representative Whitfield directly and advised Ms.
Harriman that the best way to obtain a formal opinion from the
Committee would be for Representative Whitfield himself to
request such an opinion. Representative Whitfield never made
that request. Moreover, well after that time, Ms. Harriman
continued to make similar contacts and requests to his office.
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\24\As noted above, the rule regarding a spouse's lobbying contacts
was created by enactment of HLOGA in 2007. The House Ethics Manual
issued in 2008 notes that, ``Special caution must be exercised when the
spouse of a Member or staff person, or any other immediate family
member, is a lobbyist. At a minimum, such an official should not permit
the spouse to lobby either him- or herself or any of his or her
subordinates . . . . Furthermore, a recently enacted provision of the
House rules (House Rule 25, clause 7) requires that the Member prohibit
his or her staff from having any lobbying contacts with that spouse if
such individual is a registered lobbyist or is employed or retained by
a registered lobbyist to influence legislation.'' House Ethics Manual
(2008) at 245-46.
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Representative Whitfield also attempts to characterize his
spouse's interactions with his staff regarding legislation that
HSLF supported as mere ``reminders'' to take actions
Representative Whitfield already intended to take, and
suggests, as he did throughout the ISC's investigation, that he
and Ms. Harriman were completely aligned on all the issues that
Ms. Harriman contacted his staff about. The ISC found that
these claims were based on a mischaracterization or incomplete
presentation of the facts,\25\ and the Committee agreed.
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\25\See, e.g., ISC Report at 25-26.
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With respect to the ISC's finding that Representative
Whitfield granted Ms. Harriman a special privilege of access to
his staff, Representative Whitfield argues that Ms. Harriman's
access to, and influence on, his staff did not change when Ms.
Harriman registered as a lobbyist. This is precisely the point.
Representative Whitfield's staff granted Ms. Harriman unique
access to the office, and treated her in a deferential matter,
because she was the Member's spouse.\26\ When she registered to
lobby for HSLF, and later joined HSLF as a paid lobbyist, her
access to Representative Whitfield's staff, and the staff's
treatment of her, should have changed accordingly. But by all
accounts, nothing changed. To cite just one example, in May
2011, five months after Ms. Harriman registered as a lobbyist
for HSLF, Ms. Harriman's supervisor at HSLF told Ms. Harriman
that an HSUS publication wanted quotes from Representative
Whitfield, supporting a horse racing bill that HSUS wanted
Congress to pass.\27\ The HSLF supervisor asked ``Do you want
me to just go through the office?,'' to which Ms. Harriman
responded, ``I do not need to tell YOU that going through a
spouse is usually more efficient than going through the office!
. . . I will get a couple of quotes from him.''\28\ Ms.
Harriman's supervisor responded 90 minutes later: ``Oh, I know
you're the one to ask! I just think we ask A LOT! And, thank
you, I already heard from [Representative Whitfield's press
secretary]--you work fast!''\29\ As the ISC's Report detailed,
HSLF and HSUS employees regularly followed this practice, using
Ms. Harriman as a go-between to obtain prompt action from
Representative Whitfield on a variety of requests.\30\ Based on
these and other interactions between Ms. Harriman and
Representative Whitfield's office, the ISC found, and the
Committee agreed, that Representative Whitfield granted Ms.
Harriman a ``special privilege'' that was not available to
other lobbyists--not through any decision he made, but due to a
failure to alter the office's policies as the House Rules
required.
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\26\As the ISC explained, it is neither unusual nor inappropriate
for a Member's spouse to have a particularly close relationship with
the Member's staff. See ISC Report at 33. However, the appropriateness
of this relationship changes where the spouse is a registered lobbyist,
and is communicating with the Member's staff concerning legislation the
lobbyist is registered to lobby on. That was the circumstance here, and
explains why the ISC and Committee did not view Ms. Harriman's status
as a Member's spouse to be a mitigating factor.
\27\ISC Report, Ex. 3.
\28\Id.
\29\Id.
\30\See ISC Report at 5 & n.22.
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Finally, Representative Whitfield contends that his
violations were not severe enough to implicate House Rule
XXIII, clause 1, which provides that a Member ``shall behave at
all times in a manner that shall reflect creditably on the
House.'' But Representative Whitfield has acknowledged that his
staff's interactions with Ms. Harriman raised improper
appearances, and that he would handle the change in Ms.
Harriman's status differently today, knowing what he does
now.\31\ In the Committee's view, given the number, duration,
and significance of the violations the ISC found,
Representative Whitfield's actions were not consistent with
House Rule XXIII, clause 1. The Committee also found that,
although Representative Whitfield offered technical defenses to
the allegations in this matter, his actions did not comport
with the spirit of the lobbying contacts and ``special
privileges'' rules.\32\
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\31\Id. at 32.
\32\See House Rule XXIII, clause 2.
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Based on these findings, the Committee found that
Representative Whitfield violated House Rule XXV, clause 7, the
Code of Conduct, section 5, and House Rule XXIII, clauses 1 and
2. While the Committee agreed with the ISC's assessment that
these violations were not intentional, they only occurred
because Representative Whitfield ``failed to comprehend the
importance of setting boundaries and limits on the interactions
between Ms. Harriman and his staff,''\33\ and thus did not take
the proper precautions to avoid either improper interactions or
the appearance of impropriety. Therefore, consistent with prior
precedent, the Committee has adopted the ISC's Report in this
matter, which shall serve as a reproval of Representative
Whitfield. This recommendation is consistent with the
Committee's treatment of prior matters, in which the Committee
issued a reproval even where a Member's violations were
unintentional.\34\ Following the publication of this Report,
the Committee will take no further action in this matter, and
considers it closed.
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\33\ISC Report at 29.
\34\See Gingrey at 25 (finding violations of House Rules, and
issuing a reproval, even though ``the Committee credited Representative
Gingrey's assertion that he believed his actions were consistent with
House Rules.''); Berkley at 10 (reproval was appropriate even though
``[t]he ISC found that Representative Berkley mistakenly believed the
rules governing what assistance her office could provide to her
husband's practice required only that they treat him in the same manner
by which they treated any other constituent.''); see also Stallings at
5-6 (Committee recommended a reprimand where the Member was unaware of
the applicable House Rule and did not intend to violate it).
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IV. STATEMENT UNDER RULE XIII, CLAUSE 3(c) OF THE RULES OF THE HOUSE OF
REPRESENTATIVES
The Committee made no special oversight findings in this
report. No budget statement is submitted. No funding is
authorized by any measure in this report.