[House Report 114-795]
[From the U.S. Government Publishing Office]


                                                  House Calendar No. 154

114th Congress    }                                         {   Report
                       HOUSE OF REPRESENTATIVES                 
2d Session        }                                         {   114-795
_______________________________________________________________________

                                     

                                                 


                      IN THE MATTER OF ALLEGATIONS

                       RELATING TO REPRESENTATIVE

                             DAVID McKINLEY

                               __________

                              R E P O R T

                                 of the

                          COMMITTEE ON ETHICS
                          
                          






 September 28, 2016.--Referred to the House Calendar and ordered to be 
                                printed
                                
                                
                                
                            _________ 
                                  
                  U.S. GOVERNMENT PUBLISHING OFFICE
 59-006                    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

                     Molly N. McCarty, Investigator
                   Michael Koren, Investigative Clerk
                         LETTER OF TRANSMITTAL

                              ----------                              

                          House of Representatives,
                                       Committee on Ethics,
                                    Washington, September 28, 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 
Relating to Representative David McKinley.''
            Sincerely,
                                   Charles W. Dent,
                                           Chairman.
                                   Linda T. Sanchez,
                                           Ranking Member.
                                           
                                           
                                           
                            C O N T E N T S

                              ----------                              
                                                                   Page
 I. INTRODUCTION......................................................1
II. HOUSE RULES, LAWS, REGULATIONS, AND OTHER STANDARDS OF CONDUCT....3
III.BACKGROUND........................................................4

          A. HISTORY OF McKINLEY & ASSOCIATES....................     4
          B. INITIAL REQUESTS FOR ADVICE AFTER REPRESENTATIVE 
              McKINLEY'S ELECTION................................     7
          C. REPRESENTATIVE McKINLEY'S FORMAL ADVISORY OPINION...     9
          D. FURTHER COMMITTEE ACTION AND INQUIRY................    13
IV. FINDINGS.........................................................15
          A. EIGA SECTION 502 AND HOUSE RULE XXV.................    15
          B. HOUSE RULE XXIII, CLAUSES 1 AND 2...................    18
          C. EIGA SECTION 501....................................    21
 V. CONCLUSION.......................................................22
VI. STATEMENT UNDER HOUSE RULE XIII, CLAUSE 3(c).....................22
APPENDIX A: LETTER OF REPROVAL...................................    23
APPENDIX B: EXHIBITS TO COMMITTEE REPORT.........................    27
APPENDIX C: REPRESENTATIVE McKINLEY'S SUBMISSIONS TO THE 
  COMMITTEE......................................................   146







                                                 House Calendar No. 154
                                                 
114th Congress  }                                             {    Report
                        HOUSE OF REPRESENTATIVES
 2d Session     }                                             {   114-795

======================================================================



 
 IN THE MATTER OF ALLEGATIONS RELATING TO REPRESENTATIVE DAVID MCKINLEY

                                _______
                                

 September 28, 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

    For more than thirty-five years, the Ethics in Government 
Act (EIGA) has prohibited a Member of Congress from (1) 
``receiving compensation for affiliating with or being employed 
by a firm . . . which provides professional services involving 
a fiduciary relationship,'' and (2) ``permit[ing] his name to 
be used by any such firm[.]''\1\ House Rules have included a 
corresponding prohibition for almost twenty-five years.\2\ The 
Committee has consistently applied these restrictions to 
certain firms providing professional services, including but 
not limited to medicine, law, and architecture. Notably, the 
restrictions on the use of a Member's name are absolute and are 
not tied to the receipt of compensation by the Member or any 
other affiliation with the firm. These restrictions can seem 
onerous to new Members, particularly for those who have worked 
hard over many years to build a business and their own 
professional reputation. However, these restrictions are an 
important part of the House's conflicts of interest 
protections, and they are applied equally to all Members.
---------------------------------------------------------------------------
    \1\5 U.S.C. app. Sec. 502(a).
    \2\House Rule XXV, cl. 2.
---------------------------------------------------------------------------
    As a part of its advisory function, the Committee routinely 
provides new Members with confidential guidance on how to 
comply with the fiduciary restrictions. EIGA expressly grants 
the Committee sole authority to administer these restrictions 
for Members of the House.\3\ Thus, every two years the 
Committee instructs newly elected Members who are affiliated 
with firms that implicate the fiduciary restrictions to take 
steps to comply with the statute. This guidance can take the 
form of either informal advice provided by the Committee's 
nonpartisan professional staff or formal advisory opinions 
issued by the Chairman and Ranking Member of the Committee.\4\
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    \3\5 U.S.C. app. Sec. 503(1)(A).
    \4\Formal advisory opinions confer upon the requesting individual 
protection from any ``adverse action [by the Committee] in regard to 
any conduct that has been undertaken in reliance on a written opinion 
if the conduct conforms to the specific facts addressed in the 
opinion.'' Committee Rule 3(k). In addition, the Committee is precluded 
from using information provided to the Committee by a requesting 
individual ``seeking advice regarding prospective conduct . . . as the 
basis for initiating an investigation,'' provided that the requesting 
individual ``acts in good faith in accordance with the written advice 
of the Committee.'' Committee Rule 3(l).
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    The fiduciary restrictions apply immediately upon a 
Member's swearing-in. However, extricating a Member from a 
firm, whether through winding down the firm or a sale of the 
Member's interest along with a concomitant name change, can 
take time.\5\ Thus, the Committee will take no adverse action 
against a Member who continues to be affiliated with a firm 
that provides professional services involving a fiduciary 
relationship, so long as the Member is working with the 
Committee in good faith to comply with the restrictions. If a 
Member fails to work with the Committee in good faith, or 
simply ignores the Committee's guidance, the Committee has no 
choice but to take corrective action.
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    \5\Some new Members attempt to convince the Committee that the 
fiduciary restrictions do not apply to their firm. The Committee 
considers any well-reasoned argument, but such consideration can delay 
the advisory process.
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    In 1981, Representative David McKinley founded the 
engineering firm now known as McKinley & Associates (the Firm), 
where he was a principal and worked as an engineer until his 
election to Congress in 2010. The Firm also provides 
architectural services. From at least November 2010, until June 
2011, the Committee advised Representative McKinley regarding 
the Firm. The Committee's advice, provided both informally and 
in a formal advisory opinion letter dated June 24, 2011, 
instructed Representative McKinley that the Firm, which carries 
his name, would have to change its name, given its fiduciary 
responsibilities.
    Representative McKinley did not follow the Committee's 
advice. Instead, after receiving the Committee's June 24, 2011, 
letter, Representative McKinley ceased communicating with the 
Committee and sold his shares in the Firm to the Firm's 
Employee Stock Option Plan (ESOP), with the Firm's name intact. 
When Representative McKinley filed his calendar year 2011 
Financial Disclosure Statement, on May 15, 2012, that statement 
indicated that the Firm still operated as McKinley & 
Associates. The Committee then contacted Representative 
McKinley, reiterated its guidance, and sought an explanation of 
Representative McKinley's efforts to comply with the fiduciary 
restrictions. Representative McKinley responded that, due to 
the sale of the firm, he was now powerless to change the name 
of the Firm, and absolved from doing so under the law.\6\
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    \6\Representative McKinley also argued that, despite previous 
Committee guidance to the contrary, the Firm should be permitted to 
continue to operate under its current name given the relationship of 
Representative McKinley's family name to the engineering industry in 
West Virginia. As Section III discusses, the Committee considered these 
arguments but concluded that they were either incorrect or insufficient 
to affect the outcome.
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    Given Representative McKinley's actions, the Chairman and 
Ranking Member authorized Committee staff, pursuant to 
Committee Rule 18(a), to investigate potential violations of 
EIGA and House Rules related to the Firm, its name, and its 
operations. Committee staff reviewed documents received from 
Representative McKinley and from the Firm, and interviewed the 
President of the Firm, who also serves as trustee for the ESOP. 
Following its investigation, the Committee concluded that 
Representative McKinley's decision to sell the Firm, with the 
name intact, violated EIGA and the House rules, even though 
Representative McKinley relied on the advice of his attorney 
when making that decision. Therefore the Committee voted to 
issue this Report, along with a Letter of Reproval to 
Representative McKinley for his conduct.

   II. HOUSE RULES, LAWS, REGULATIONS, AND OTHER STANDARDS OF CONDUCT

    EIGA Section 502(a) prohibits a Member from ``receiv[ing] 
compensation for affiliating with or being employed by a firm, 
partnership, association, corporation, or other entity which 
provides professional services involving a fiduciary 
relationship,'' and from ``permit[ting] his name to be used by 
. . . a firm, partnership, association, corporation, or other 
entity [that provides professional services involving a 
fiduciary relationship.]''\7\ For both of these prohibitions, a 
threshold question is whether the entity in question provides 
services involving a fiduciary relationship. The statute does 
not define fiduciary. Generally, however, a fiduciary duty 
implies an obligation to act in another person's best interests 
or for that person's benefit, or a relationship of trust in 
which one relies on the integrity, fidelity, and judgment of 
another.\8\ By statute, the Committee has the sole authority to 
administer these restrictions for Members of the House.\9\
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    \7\5 U.S.C. app. Sec. 502(a). This Section of EIGA has been 
incorporated into the House Rules at House Rule XXV, cl. 2.
    \8\See Black's Law Dictionary 658, 1315 (8th ed. 2004).
    \9\5 U.S.C. app. Sec. 503(1)(A).
---------------------------------------------------------------------------
    The concern posed by these sorts of services is twofold: 
primarily, the House was concerned that a Member who held a 
fiduciary duty to a private client or clients might be 
susceptible to unique problems of conflicts of interest in his 
official duties, but also, the House believed the compensation 
ban was necessary to fully effectuate its ban on honoraria, 
which it worried could reemerge in the form of professional 
fees.\10\ The Ethics Task Force that developed these rules 
advised that ``in order for the underlying purposes to be 
achieved, `the term fiduciary [should] not be applied in a 
narrow, technical sense.'''\11\ The Task Force thus said that 
it ``intend[ed] the ban to reach, for example, services such as 
legal, real estate, consulting and advising, insurance, 
medicine, architecture, or financial.''\12\ The Committee, in 
interpreting the ban, has relied on that list of professions, 
as well as the treatment of the particular industry under state 
agency law with respect to fiduciary duties, and regulations 
issued for the executive branch.\13\
---------------------------------------------------------------------------
    \10\See House Ethics Manual (2008) at 215 (hereinafter Ethics 
Manual) (citing House Bipartisan Task Force on Ethics, Report on H.R. 
3660, 101st Cong., 1st Sess. (1989)).
    \11\Id.
    \12\House Bipartisan Task Force on Ethics, Report on H.R. 3660, 
101st Cong., 1st Sess. at 16 (1989) (emphasis added).
    \13\Ethics Manual at 216.
---------------------------------------------------------------------------
    If indeed a Member has an association with a firm providing 
fiduciary services under this definition, Section 502 bans both 
the receipt of compensation and the use of the Member's name. 
Note that the use of the Member's name is specifically not tied 
to compensation, so a Member cannot avoid that part of the ban 
simply by foregoing any compensation for use of the name. The 
ban, however, does not apply where the use of the Member's name 
in fact reflects a ``family'' name. The Ethics Manual provides 
an illustrative example:

        Member Jane Doe is a certified public accountant. Prior 
        to her election, she was employed by the accounting 
        firm of Doe & Moe, named for its founder and her 
        father, Joe Doe. Since the firm was not actually named 
        for her, it does not have to change its name upon her 
        election.\14\
---------------------------------------------------------------------------
    \14\Id. at 222 (emphasis added).

Based on that advice, and based on the legislative history of 
Section 502,\15\ the ``family name'' exception is fairly 
specific--it refers to situations in which the ``name'' of the 
firm does not actually refer to the Member, but rather to 
someone in his or her family.
---------------------------------------------------------------------------
    \15\See House Bipartisan Task Force on Ethics, Report on H.R. 3660, 
101st Cong., 1st Sess. at 16 (1989) (``the fact that a Member, officer, 
or employee is presently associated with a law firm founded by, and 
still bearing the name of, his father would not require the firm to 
drop the `family' name.'').
---------------------------------------------------------------------------
    Another statute, 5 U.S.C. app. Sec. 501, prohibits firms 
that practice before federal agencies from using the name of a 
Member of Congress in advertising the business.
    As a practical matter, when Members are elected to the 
House and have associations with either of these sorts of 
businesses, the Committee consistently advises them that the 
appropriate course of action is to cease receipt of any 
compensation and to remove their name from the business and its 
materials.
    Finally, House Rule XXIII, clauses 1 and 2, 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.''

                            III. BACKGROUND


                A. HISTORY OF MCKINLEY & ASSOCIATES\16\

      
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    \16\As discussed more fully below at Section III.C-E, the facts 
regarding the nature of the Firm, its predecessors, Representative 
McKinley's ownership of it, and Representative McKinley's father's 
involvement with it have been the subject of much confusion, mostly due 
to incorrect representations made by Representative McKinley's former 
counsel. This section, rather than deal with those ambiguities, 
attempts to compile the facts about the Firm as the Committee currently 
understands them, after its investigation.
---------------------------------------------------------------------------
    Prior to Representative McKinley's election to the House, 
he worked as a licensed professional engineer at the Firm, of 
which Representative McKinley was also an officer and director. 
According to its Web site, the Firm opened its doors in 1981. 
Representative McKinley told the Committee that he left a large 
industrial construction firm and ``struck out to be a sole 
practitioner in architecture and engineering practice.''\17\ 
The Firm has operated as ``McKinley & Associates'' since 1989; 
prior to that, Representative McKinley operated a sole 
practitioner's office focused on engineering services known as 
``McKinley Engineering,'' which he folded into the Firm once it 
began offering architectural services as well.
---------------------------------------------------------------------------
    \17\Representative McKinley Appearance.
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    The Firm ``engages in the businesses of professional 
engineering and architecture through its employed 
professionals.''\18\ West Virginia law deems architecture--the 
primary service provided by the Firm--to be a profession that 
involves fiduciary duties.\19\
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    \18\Exhibit 1.
    \19\See W.V. Code Sec. Sec. 30-12-2(4), 30-12-4. As noted in more 
detail infra, Representative McKinley has disputed and continues to 
dispute the finding that the Firm provides fiduciary services covered 
by EIGA. His dispute is wholly unsupported by the law. See infra n. 70.
---------------------------------------------------------------------------
    The Firm has three offices, located in Wheeling, West 
Virginia; Charleston, West Virginia; and Washington, 
Pennsylvania, and employs more than 40 individuals. The Firm 
provides services in the Pittsburgh Tri-state region and other 
mid-Atlantic states. Its Web site indicates that past clients 
have included many state- and local-level government entities, 
as well as federal entities such as the U.S. Postal Service, 
Department of Defense, the National Aeronautics and Space 
Administration, and the Federal Aviation Administration. With 
respect to the Postal Service contract, according to the 
current President of the Firm, the Postal Service has a 
certification process for eligibility to perform design, 
construction, and renovation services for its buildings located 
within a given region. The firm has historically submitted an 
application for, and received, that certification. There is no 
guarantee that the Firm will receive any work after being 
certified, nor is it required to perform work that arises. The 
certification has a five-year term, during which qualified 
firms are eligible for selection to perform work as the Postal 
Service assigns it. The Firm most recently submitted its 
certification in August 2010, prior to Representative 
McKinley's election, and has removed his name from all 
contracting materials since his election, except for the name 
at the top of the letterhead.
    In January 2007, the Firm established a partial ESOP. In an 
appearance before the Committee, Representative McKinley stated 
that he formed the ESOP after ``my attorney and my financial 
advisor advised me that as we get older . . . we need to think 
about ownership transition . . . because I am not going to 
practice forever.''\20\ Representative McKinley explained that 
he did not want to sell the firm to a larger company, because 
he believed ``they would have picked out the best people, and 
then everyone else would have been gone.''\21\ ``So, what we 
did in respect for our employees, out of the three offices, we 
set up an ESOP.''\22\ The ESOP purchased 30 percent of the 
company at that time and ``they had the right to purchase the 
remaining 70 percent.''\23\
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    \20\Representative McKinley Appearance.
    \21\Id.
    \22\Id.
    \23\Id.
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    Upon his election to Congress, Representative McKinley 
still owned approximately 70 percent of the Firm's common 
stock, with the remaining 30 percent owned by the Firm's 
employees under the ESOP. Currently, the ESOP owns 100 percent 
of the Firm's equity, which it purchased via a loan for which 
Representative McKinley currently holds the note. (On his 
Financial Disclosure Statement for 2015, Representative 
McKinley reported two entries for ``McKinley & Associates ESOP 
Notes Receivable,'' one worth between $1,000,001 and $5,000,000 
and one worth between $100,001 and $250,000.\24\ Representative 
McKinley told the Committee there is ``somewhere around $3 
million probably left, 3.5 maybe'' on the notes.\25\) 
Representative McKinley also owns the building in which the 
Firm leases its office space; the Firm leases space back to 
Representative McKinley for a personal office unrelated to his 
official duties. Representative McKinley's wife serves as 
Secretary of the Firm's Board and is a Vice President of the 
Firm. His daughter-in-law is an employee of the Firm and 
partial owner of the ESOP, and his oldest son is the ESOP's 
financial advisor.
---------------------------------------------------------------------------
    \24\Representative McKinley Financial Disclosure Statement (2015).
    \25\Representative McKinley Appearance.
---------------------------------------------------------------------------
    Representative McKinley's father, Johnson B. McKinley, was 
also a licensed professional engineer. Johnson McKinley 
maintained a one-man office as a consulting engineer in 
Wheeling, West Virginia, from the 1950s until his retirement in 
the 1980s. Johnson McKinley's practice during those years was 
most commonly called ``Johnson B. McKinley, Consulting 
Engineer,'' but Johnson McKinley also appears to have done 
business under the following names:
     Engineer--J.B. McKinley
     Eng'r--J.B. McKinley
     J.B. McKinley, Eng'r
     J.B. McKinley, P.E.
     J.B. McKinley Engineers
     Johnson B. McKinley
     Johnson B. McKinley, P.E.
     Johnson McKinley Consulting Eng'r
     Johnson McKinley Consulting Engineer\26\
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    \26\Exhibit 2. Note that ``Eng'r'' is a common abbreviation for 
``Engineer.'' The abbreviation for ``Engineering'' is ``Eng'g.'' See, 
e.g., The Bluebook: A Uniform System of Citation (20th Ed.), at Table 
6.
---------------------------------------------------------------------------
    Although this list did not include the name ``McKinley 
Engineering,'' Representative McKinley, through his counsel, 
has stated that the name ``Johnson B. McKinley Engineering'' 
was also used at some point. Regardless, it is notable that 
each iteration of Johnson B. McKinley's business appears to 
have used not only his last name, but also either his first 
name or first and middle initials. This fact distinguishes 
Representative McKinley's firm, McKinley & Associates, from 
each of his father's businesses.
    Representative McKinley worked with his father for 
approximately two years prior to establishing the Firm in 1981, 
which ultimately became ``custodian of all of the drawings, 
files, and other assets accumulated'' by Representative 
McKinley's father during his career as an engineer, and also 
currently serves many of the same clients that his father 
did.\27\ Representative McKinley's letters stress that the name 
``McKinley'' has been associated with engineering services in 
the Wheeling area since approximately 1950. Representative 
McKinley, through counsel, has also asserted that the Firm also 
made several payments to Johnson McKinley, acting as a 
consultant to the Firm, in the 1980s.\28\ However, Johnson 
McKinley was never on the payroll of the Firm, and maintained 
his own business when his son started the Firm in 1981.
---------------------------------------------------------------------------
    \27\Exhibit 3.
    \28\This assertion is based solely on Representative McKinley's 
recollections. Representative McKinley's counsel noted that 
Representative McKinley does not have access to any payment records 
from this period, which was over 30 years ago. See Letter from J. Baran 
and R. Walker to Chairman Dent and Ranking Member Sanchez, Apr. 19, 
2016, at 1-2.
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B. INITIAL REQUESTS FOR ADVICE AFTER REPRESENTATIVE MCKINLEY'S ELECTION

    Representative McKinley has told the Committee that on the 
night of his election to the House, November 2, 2010, one of 
his corporate consultants ``surprisingly asked me, he said, are 
you sure you are going to be able to continue your relationship 
with your company?'' To answer this question, Representative 
McKinley turned to Committee staff several days later. On 
November 5, 2010, following a call with Representative 
McKinley, Committee staff provided informal guidance via email, 
which stated staff's opinion that the Firm would need to change 
its name, based on the legal regime discussed at Section 
II.\29\ While Representative McKinley, in his appearance before 
the Committee, characterized this informal advice as a 
``maybe,'' his reaction at the time made clear that he 
understood that the guidance was quite clear. As he wrote to 
associates, ``How absurd is that advice. They expect me to 
change the name of my company!!! . . . I told her that her 
advice was BS.''\30\ Later, when an unnamed Committee staff 
member told Representative McKinley during new Member 
orientation, on or about November 14, 2010, that he may have to 
change the firm's name, he replied that the next time they 
heard from him it would be through his attorney.\31\ At this 
time, Representative McKinley also personally met with the 
then-Chairman of the Committee, Representative Jo Bonner, and 
expressed his concerns. Representative Bonner apparently 
mentioned the possibility of a waiver--although, because there 
is no record of the meeting, it is unclear what he meant by 
that--and suggested that Representative McKinley speak to the 
then-counsel to the Committee Chairman.
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    \29\Exhibit 4 (``The informal opinion of the Committee staff is 
that these [fiduciary services] restrictions would necessitate changing 
the name of your firm.'')
    \30\See id.
    \31\See Exhibit 6 at 7.
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    Almost immediately upon receiving staff's informal advice, 
Representative McKinley sought alternative advice from other 
sources. On November 10, 2010, an official with the National 
Republican Congressional Committee (NRCC) sent an email to 
Representative McKinley, recounting the NRCC official's 
conversation with a former counsel to the Committee, stating 
that ``Mr. McKinley, if he doesn't want to worry about changing 
the name of his firm, should probably think about who he plans 
to divest his interest to. If it happens to be a familial 
relative with the same name, he would most likely not have to 
change the name of the whole firm. If it is to a different 
individual, it likely would not be able to stay with his name 
on it.''\32\
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    \32\Exhibit 7 (emphasis added).
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    This email from the NRCC official was the first of many 
discussions between Representative McKinley and his advisors 
about selling his stake in the Firm to obviate some or all of 
the ethical questions surrounding it. Importantly, as discussed 
more fully below, Representative McKinley did not inform 
Committee staff of those discussions until after he had 
received the Committee's formal opinion that he was required to 
change the Firm's name, and after he had already agreed to sell 
the Firm, with the name intact. Further, based on the 
Committee's investigation, the matter of Representative 
McKinley selling his stake in the Firm is only partially 
related to his election to the House or the requirements of 
EIGA. While it is true that Representative McKinley may have 
mistakenly viewed full divestment as a solution to the ethical 
issues the Firm presented for him, it is not the only reason 
for such a sale. According to statements by the Firm's attorney 
and its current president, Representative McKinley and others 
at the Firm had long intended to convert the Firm to a fully-
employee-owned business, irrespective of Representative 
McKinley's political ambitions.\33\ Moreover, at least this 
initial email from the NRCC official recognized that selling 
the Firm was not likely to remove the requirement to change its 
name.
---------------------------------------------------------------------------
    \33\See Exhibit 8; Interview of Firm President.
---------------------------------------------------------------------------
    Eventually, however, Representative McKinley and his 
advisors developed the incorrect theory that selling the Firm 
would indeed allow it to continue operations as ``McKinley & 
Associates.'' On November 24, 2010, Representative McKinley 
received an email from his attorney, Charles J. Kaiser. Mr. 
Kaiser, a West Virginia attorney who ``focuses his practice on 
corporate law, commercial law and corporate 
reorganizations,''\34\ and who, to the Committee's knowledge, 
had not represented any individual before this Committee, 
advised Representative McKinley that ``If McKinley & Associates 
is considered to be a firm providing professional services 
involving a fiduciary relationship, then it appears that you 
are left with two choices: (1) change the name, or (2) 
completely divest yourself of your interest in the company 
(this appears to include [Mrs. McKinley] as well.)''\35\ Mr. 
Kaiser provided no citation to authority to support his 
assertion that the divestiture would negate the need for a name 
change. Nor did he provide any reasoning for his analysis, 
which was contrary to the assessment provided by the former 
Committee counsel consulted by the NRCC official.
---------------------------------------------------------------------------
    \34\Phillips, Gardill, Kaiser & Altmeyer, PLLC, ``Kaiser, Charles 
J.'' available at http://www.pgka.com/profiles_detail.php?profile_ID=7 
(last accessed May 17, 2016).
    \35\Exhibit 9.
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    Mr. Kaiser repeated his analysis in an email to the NRCC 
official on November 29, 2010.\36\ Again, he failed to provide 
any rationale for why selling the firm to the ESOP would 
resolve the problem of the Firm's name. The next day, Mr. 
Kaiser wrote a letter to the then-Counsel to the Chairman of 
the Committee. Mr. Kaiser was not nearly as certain of his 
position in that letter, noting the Firm's desire to ``explore 
the possibility of retaining the name McKinley & Associates, 
Inc. if Congressman-elect McKinley would sever his other 
relationships with the business.''\37\
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    \36\Exhibit 10.
    \37\Exhibit 1.
---------------------------------------------------------------------------
    A week later, on December 7, 2010, then-Counsel to the 
Chairman and Committee staff responded to Mr. Kaiser's letter 
via telephone; Mr. Kaiser memorialized his recollection of that 
conversation in an email to Representative McKinley, the NRCC 
official, and an employee of the Firm.\38\ Mr. Kaiser explained 
that the staffers had provided their opinion that the Firm 
would have to change its name unless it qualified for the 
``family name exception.''\39\ He noted that staff suggested 
that Representative McKinley request a written advisory 
opinion, but that ``[b]ecause the Committee will have a number 
of similar written advice requests from new Members, it may 
well take some time to work through all of the opinions and the 
name can remain the same until the opinion is rendered.''\40\ 
Finally, Mr. Kaiser's own words demonstrate that he recognized, 
at this early juncture, that the question of the name of the 
Firm was distinct from questions of Representative McKinley's 
compensation or position on the board of the Firm: ``[b]ecause 
the `family name exception' does not eliminate the other two 
prohibitions (i.e. compensation and management affiliation), I 
believe that [Representative McKinley] will have to deal with 
the management structure and ownership of McKinley & 
Associates, Inc. in any event.''\41\
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    \38\Exhibit 11.
    \39\Id.
    \40\Id.
    \41\Id. (emphasis added).
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          C. REPRESENTATIVE MCKINLEY'S FORMAL ADVISORY OPINION

    In early January 2011, Representative McKinley submitted a 
formal request for an advisory opinion regarding the name of 
the Firm. In that request, Representative McKinley's attorney 
provided the following statement regarding Johnson McKinley's 
affiliation with the Firm:

        McKinley & Associates, Inc. and its predecessor 
        McKinley Engineering were the outgrowth of two licensed 
        professional engineers that have worked in the Wheeling 
        Area since approximately 1950. Johnson B. McKinley, 
        [Representative] McKinley's father, was a licensed 
        professional engineer who maintained an office as 
        consulting engineer in Wheeling for nearly 40 years. 
        During most of those years Johnson B. McKinley 
        maintained a one-person office, but David B. McKinley 
        and Johnson B. McKinley worked together for 2 years 
        prior to Johnson B. McKinley's retirement, and McKinley 
        & Associates, Inc. is the custodian of all the 
        drawings, files, and other assets accumulated by 
        Johnson B. McKinley over his career as a licensed 
        professional engineer.\42\
---------------------------------------------------------------------------
    \42\Exhibit 3(emphasis added).

This statement appears to have led Committee staff to believe--
incorrectly--that Johnson McKinley's firm was named McKinley 
Engineering. In fact, the letter's reference to the Firm's 
``predecessor'' was actually a reference to Representative 
McKinley's own prior practice, not that of his father. But, as 
is clear from the excerpted passage, there is no reference to 
this prior practice, only to the businesses operated by Johnson 
McKinley. Staff therefore concluded that, if there was an 
appropriate ``family name'' for the business, it would be 
McKinley Engineering.
    Additionally, Representative McKinley's request did not 
refer to any sale of Representative McKinley's interest in the 
Firm. Rather, the request stated that Representative McKinley 
would continue to hold his equity ``in a blind trust that will 
be held for so long as he remains a Member of the House of 
Representatives or otherwise holds an elected federal 
office.''\43\ Representative McKinley conceded that the trust 
arrangement would not, in fact, be blind: ``Congressman 
McKinley will of course know that the trust holds his stock, 
unless and until sold; however, Congressman McKinley will 
receive no compensation from McKinley & Associates, Inc. and 
will not be entitled to exercise voting rights.''\44\
---------------------------------------------------------------------------
    \43\Id.
    \44\Id.
---------------------------------------------------------------------------
    Representative McKinley's formal request for advice painted 
a much different picture of his strategy than that which was 
actually taking place at the time. As early as November 29, 
2010, the Firm's management was discussing the potential to 
complete a sale of Representative McKinley's stake to the 
ESOP.\45\ And Mr. Kaiser's internal discussions with 
Representative McKinley and his team repeatedly referenced the 
sale as a fully-fleshed alternative pathway to EIGA compliance. 
But for whatever reason, Representative McKinley's letter did 
not reference that plan.
---------------------------------------------------------------------------
    \45\Exhibit 12.
---------------------------------------------------------------------------
    A few weeks after Representative McKinley submitted his 
request for a formal advisory opinion, Mr. Kaiser had a 
teleconference with the Committee's then-Director of Financial 
Disclosure. According to Mr. Kaiser's recollection of the 
conversation, the Director of Financial Disclosure informed him 
that the family name exception would apply to the Firm's name, 
and that a name change would not be required.\46\ The then-
Director of Financial Disclosure does not recall this 
conversation, and the Committee does not have its own record of 
it. Thus, the Committee does not know what Mr. Kaiser told the 
Director of Financial Disclosure regarding the facts of the 
matter on this call, who initiated the call, or for what 
purpose. Without this information, it is difficult for the 
Committee to judge precisely why the then-Director of Financial 
Disclosure may have believed that the Firm would not be 
required to change its name. Regardless, it must be noted that, 
according to Mr. Kaiser's summary of the call, the then-
Director of Financial Disclosure only stated the staff's view 
regarding resolution of the matter; it was clear that only the 
Committee could provide a final and formal opinion on 
Representative McKinley's written request for guidance.
---------------------------------------------------------------------------
    \46\Exhibit 13.
---------------------------------------------------------------------------
    By March 31, 2011, a different Committee counsel had taken 
over the responsibility for the advisory opinion after the 
departure of the Director of Financial Disclosure from the 
Committee's staff. The newly assigned Committee staffer spoke 
with Mr. Kaiser that day and informed him that staff would 
recommend that the Chairman and Ranking Member issue an 
advisory opinion recommending that Representative McKinley 
change the name of the Firm. Representative McKinley approached 
Representative Bonner, who denied knowing about the Director of 
Financial Disclosure's previous recommendation.\47\
---------------------------------------------------------------------------
    \47\Exhibit 14.
---------------------------------------------------------------------------
    Meanwhile, Representative McKinley's plan to sell his 
equity in the Firm continued, independently from his 
interactions with the Committee.\48\ On April 11, 2011, 
Representative McKinley and the ESOP entered into a Memorandum 
of Understanding (MOU) committing to a sale of Representative 
McKinley's stake upon a valuation of the Firm's equity.\49\ At 
this time, both Representative McKinley and executives at the 
Firm understood staff's preliminary guidance that the Firm 
would need to change its name. Neither the Firm nor 
Representative McKinley contacted the Committee to notify them 
of the MOU, the change in plans with respect to the blind 
trust, or any other aspect of the sale. Nor is there any 
indication that Representative McKinley told then-Chairman 
Bonner, when they spoke immediately after Committee staff's 
March 31, 2011 call with Mr. Kaiser, that Representative 
McKinley was proceeding with plans to sell the Firm, with the 
name intact.
---------------------------------------------------------------------------
    \48\Representative McKinley, in a submission to the Committee, 
argues that, in fact, his plan to sell his stake to the ESOP had been 
``abandoned'' based on the Director of Financial Disclosure's informal, 
staff-level advice in January 2011. See Exhibit 6 at 19. But there is 
no other evidence that the sale went on hold, or, even if it did, when 
precisely the process stopped and then started again. For example, 
Representative McKinley's original request for advice contemplated not 
a sale of his stake, but the transfer of that equity into a blind 
trust, and at no point did he correct the record to state that he 
intended to sell the firm. Moreover, Representative McKinley never 
explained to the Committee that, because of its informal, staff-level 
guidance, he was withdrawing any part of his request for formal advice.
    \49\Exhibit 15.
---------------------------------------------------------------------------
    On April 13, 2011, a Committee counsel reminded Mr. Kaiser 
that the Committee was still waiting for a written brief he had 
offered to provide regarding the issue of whether engineers or 
architects were fiduciaries under West Virginia law.\50\ The 
next day, Mr. Kaiser sent a letter to the Committee counsel 
setting out his arguments. Mr. Kaiser began the letter by 
saying, ``I have delayed in responding to check the facts cited 
in this letter.''\51\ Notably, he again did not mention the 
sale, nor did he correct the misimpression the original letter 
gave regarding the name of Johnson McKinley's practice.\52\ Mr. 
Kaiser copied Representative McKinley on the letter.\53\
---------------------------------------------------------------------------
    \50\Exhibit 17.
    \51\Exhibit 16.
    \52\Id.
    \53\Id.
---------------------------------------------------------------------------
    On June 24, 2011, the Chairman and Ranking Member of the 
Committee issued an advisory opinion on these questions to 
Representative McKinley.\54\ It is clear from the letter that 
the Committee, or its then-Chairman and Ranking Member, 
believed that Representative McKinley remained the majority 
owner of the Firm,\55\ and the advisory opinion made no 
reference to Representative McKinley's April 11, 2011, 
agreement to sell the firm. The letter advised Representative 
McKinley that the Firm would need to change its name. The 
letter, in describing the facts upon which the Committee relied 
in coming to this determination, explained:
---------------------------------------------------------------------------
    \54\See Exhibit 21.
    \55\See id. at 1 (``In January 2007, the Firm established a partial 
Employee Stock Ownership Plan (ESOP). You own approximately 70% of the 
Firm's common stock, with the remaining 30% owned by the Firm's 
employees under the ESOP.'') Representative McKinley's counsel 
strenuously argues that the six months during which the Committee 
deliberated before providing its formal advice in response to 
Representative McKinley's request constitutes an unreasonable delay. 
Exhibit 6 at 22. This ignores that at least some of the deliberation 
occurred due to a back-and-forth between Representative McKinley's 
attorneys and the Committee regarding the legal issues in the case. As 
late as April 14, 2011, Mr. Kaiser sent the Committee a letter arguing 
that engineers and architects did not carry fiduciary duties. See 
Exhibit 17. This letter came only after Committee staff reminded Mr. 
Kaiser that the Committee was waiting on such a submission. See id. 
After reading those arguments, the Committee determined them to be 
without merit. See infra at n. 70. But the task of examining such 
arguments requires time. Because the Committee needed to take such time 
as was necessary to address Representative McKinley's arguments in a 
deliberate and thorough manner, the length of time this matter took was 
attributable in large part to Representative McKinley's own part in the 
process. Indeed, it is inherently inconsistent of Representative 
McKinley to first avail himself of the Committee's willingness to hear 
his side of the matter, and then argue afterwards that the considered 
nature of the process took too long.

        In the case of the Firm, the Committee accepts your 
        representation that the current Firm can reasonably be 
        seen as a practical continuation of McKinley 
        Engineering, the business originally established in 
        1954 by your father, Johnson McKinley, for whom it was 
        named. However they are legally and factually distinct 
---------------------------------------------------------------------------
        entities.

    The Committee also advised, however, that the Firm could 
change its name to McKinley Engineering, so long as it made a 
clear association between the Firm and Representative 
McKinley's father, consistent with the family name exception 
contained in the rules. Prior to issuing the formal advisory 
opinion, staff informally explained its recommendation to 
Representative McKinley's counsel, and provided Representative 
McKinley with the opportunity to withdraw the request for an 
advisory opinion.
    As noted above, the conclusion that McKinley Engineering 
was a name that fit within the family name exception was based 
on a factual error--the Committee's belief that Representative 
McKinley's reference to that name as a ``predecessor'' meant 
that Johnson McKinley had used that name for his practice. He 
had not. In an email to his advisers, Representative McKinley 
noted the Committee's mistake: ``This makes no sense. [T]hink 
about it: McKinley Engineering is OK but McKinley & Associates 
is a problem. My father's company was not McKinley Engineering 
and we never represented that it was. That name was the one I 
used as a sole proprietor for the early years of the 
company.''\56\ However, the factual error in the advisory 
opinion appears to be based largely on the vague and confusing 
syntax of Representative McKinley's counsel's introduction to 
the history of the Firm, which described McKinley Engineering 
as a ``predecessor'' of the Firm and discussed his father's 
involvement in it in the same breath, without distinguishing 
between the two. Additionally, when staff contacted 
Representative McKinley's counsel prior to the issuance of the 
letter, in order to explain its content, Representative 
McKinley's counsel did not correct the factual error at that 
time.
---------------------------------------------------------------------------
    \56\Representative McKinley referred to himself as a ``sole 
proprietor.'' This is consistent with his statement in an appearance 
before the Committee that he ``struck out to be a sole practitioner.'' 
See Exhibit 18; Representative McKinley Appearance.
---------------------------------------------------------------------------
    Representative McKinley consulted for a brief period with 
attorney Stefan Passantino, who contacted Committee staff on 
August 12, 2011.\57\ Mr. Passantino explained that Johnson 
McKinley had not practiced at ``McKinley Engineering,'' but 
rather at ``J.B. McKinley Engineering.''\58\ A Committee 
attorney explained that she was unable to change the factual 
record upon which the advisory opinion was based, but that 
Representative McKinley could write to the Committee to explain 
the misunderstanding.\59\ Committee staff further explained 
that the opinion would not likely be changed absent a 
significant change in facts.\60\ Representative McKinley never 
did write in to the Committee to correct the record, although 
he apparently approached Representative Bonner on the floor of 
the House and stated, ``what the [heck] is this,'' and 
explained the factual error.\61\ According to Representative 
McKinley, during that conversation, which was several days 
after the Committee issued its formal advisory opinion, 
Representative McKinley stated that the Committee's 
misunderstanding regarding the origins of the Firm's name did 
not matter anymore ``because he had already sold the 
company.''\62\
---------------------------------------------------------------------------
    \57\See Exhibit 20.
    \58\This contention is consistent with representations by 
Representative McKinley's current counsel, but is not supported by a 
review of corporate records that McKinley & Associates itself 
performed. See Exhibit 2.
    \59\Exhibit 20.
    \60\Id.
    \61\Exhibit 6 at 23.
    \62\Id.; Exhibit 22 at 6.
---------------------------------------------------------------------------
    Six months after receiving the Committee's letter 
explaining the need to change the Firm's name, on December 31, 
2011, Representative McKinley and the ESOP had finally 
formalized their agreement for the ESOP to purchase 
Representative McKinley's shares, via a loan for which 
Representative McKinley held the note. The agreement to sell 
apparently did not include an agreement to change the name, and 
the name has not been changed. Because of legal requirements, 
the sale closed four months later, on April 30, 2012.\63\
---------------------------------------------------------------------------
    \63\Exhibit 19 at 5.
---------------------------------------------------------------------------

                D. FURTHER COMMITTEE ACTION AND INQUIRY

    Representative McKinley filed an annual Financial 
Disclosure Statement for 2011, as required by EIGA, on May 15, 
2012. This Financial Disclosure Statement listed the Firm--
still doing business as McKinley & Associates--as a source of 
interest income based on a note receivable held by 
Representative McKinley. Based on this and other publicly 
available information, the Committee concluded that the Firm 
had not changed its name as advised by the Committee. 
Accordingly, the Chairman and Ranking Member of the Committee 
sent Representative McKinley a letter on August 24, 2012, 
stating:

        The Committee expects you to change the name of the 
        Firm, as directed. Failure to do so may be viewed as a 
        knowing violation of the Ethics in Government Act and 
        House Rule XXV, clause 2, and may result in further 
        proceedings against you by the Committee. The Committee 
        thus requests a detailed explanation of the status of 
        your efforts to change the name of the Firm, and what 
        that name will be. If the Firm intends to use the name 
        McKinley Engineering, please inform the Committee how 
        the Firm will indicate the clear association between 
        the name and your father.\64\
---------------------------------------------------------------------------
    \64\Exhibit 23 (Letter from Chairman Bonner and Ranking Member 
Sanchez to Representative McKinley, Aug. 24, 2012, at 1).

    After receiving the letter, Representative McKinley 
telephoned the then-Committee Staff Director and Chief Counsel, 
and informed him that he believed the issue had been resolved 
because he had sold the Firm to the ESOP. Representative 
McKinley also disagreed with many of the facts as stated in the 
original advisory opinion letter. The Staff Director and Chief 
Counsel responded by requesting that Representative McKinley 
respond to the Committee's second letter with a request that 
the Committee re-examine the issue based on accurate facts. The 
Staff Director and Chief Counsel told Representative McKinley 
that the Committee would ``start from scratch.'' This 
conversation appears to be the first time in which 
Representative McKinley notified the Committee of the sale of 
his interest in the Firm.
    In a letter dated September 14, 2012, Representative 
McKinley responded through counsel to the Committee's August 
24, 2012 letter. Representative McKinley noted that the Firm 
had been sold to the ESOP, and that he no longer functioned as 
an owner, board member, executive, employee, or consultant of 
the Firm. Representative McKinley also noted:

        `McKinley' is a well-known family and historical name 
        in West Virginia. The `McKinley' name in engineering 
        and building design was originally established in West 
        Virginia by Representative McKinley's father, Johnson 
        B. McKinley, and was reinforced by him through his 
        long, public association with McKinley & Associates. 
        Entirely independent of Representative McKinley's 
        status as a Member of Congress, `McKinley & Associates' 
        has long been--and remains--an established brand name 
        in the provision of the highest-quality engineering, 
        architectural, and interior design services.

    However, Representative McKinley admitted that his father's 
practice had operated under business names such as ``Johnson B. 
McKinley, Consulting Engineer,'' ``Johnson B. McKinley 
Engineering,'' and ``Penn Construction.'' McKinley & 
Associates, Inc. was first used in 1989, when Representative 
McKinley changed the name of the Firm (then ``McKinley 
Engineering Company'') to reflect the fact that the Firm had 
begun to offer architectural services. Moreover, while 
Representative McKinley and his father worked together at his 
father's firm from 1971 to 1973, Representative McKinley's 
father ``maintained his own business'' when his son struck out 
on his own in 1981.\65\ Representative McKinley nonetheless 
argued that his father had:
---------------------------------------------------------------------------
    \65\Id. at 4.

        played an instrumental and very public role in 
        solidifying and expanding the reputation of [the Firm]. 
        . . . Particularly during those periods when 
        [Representative] McKinley was required to be absent 
        from the Firm to attend the state legislature, Johnson 
        B. McKinley served as the eyes and ears for the Firm . 
        . . [and] attended many meetings with clients as the 
        representative of McKinley & Associates; he walked many 
        project sites with owners as the representative of 
        McKinley & Associates.\66\
---------------------------------------------------------------------------
    \66\Id.

    The Committee sent separate requests for information to 
Representative McKinley and the Firm on March 18, 2013. 
Representative McKinley responded on May 1, 2013, providing a 
30-page letter and 554 pages of documents. In his response, 
Representative McKinley repeated his assertion that he acted in 
good faith and on the advice of counsel in selling the Firm. He 
argued that the months-long history of his interactions with 
the Committee and its staff left him with the impression that 
he had resolved ethics concerns regarding the Firm. He also 
argued that, while Johnson B. McKinley never worked as an on-
the-payroll employee of the Firm, he assisted his son on two 
projects in 1981, and that ``Johnson B. McKinley's interest and 
activities in assisting his son's business did not depend on 
compensation, so to focus exclusively on records of financial 
compensation in this context is to focus too narrowly.''\67\
---------------------------------------------------------------------------
    \67\Exhibit 6 at 28.
---------------------------------------------------------------------------
    In July 2015, the Committee notified Representative 
McKinley that it was considering the adoption of a public 
Report and Letter of Reproval regarding this matter. Before the 
Committee decided how to resolve this matter, Representative 
McKinley was invited to be heard in writing and/or in person. 
Representative McKinley opted to both provide multiple written 
submissions, via counsel, and to appear in person before the 
Committee. The Committee carefully considered all of 
Representative McKinley's written submissions and his 
appearance before the Committee while deliberating how to 
resolve the matter. Ultimately, the Committee determined that 
the appropriate resolution of this matter was to issue this 
Report, along with a Letter of Reproval to Representative 
McKinley for his conduct.
    House and Committee Rules impose some limitations on public 
disclosure of investigative matters in the period of time 
shortly before an election (the so-called ``blackout rule''). 
In some situations, the Committee is prohibited from making 
certain public statements, while in others the Committee has 
the option of adhering to the rule. In general, the Committee 
adheres to the spirit of these limitations, which are intended 
to provide fairness to respondents and confidence in the ethics 
process. In this matter, the Committee has determined to issue 
this report at this time because of the unique circumstances of 
the matter.
    Representative McKinley has been on notice of the 
Committee's intent to resolve this matter since July 2015. But 
Representative McKinley did not personally review the proposed 
resolution until November 2015, and did not offer a substantive 
written response to the Committee's proposed resolution of the 
matter until February 2016. In June 2016, the Committee invited 
Representative McKinley to appear before the Committee in July 
2016 to be heard in person. Representative McKinley informed 
the Committee that he did not believe that was sufficient time 
for him to prepare and asked if he could appear in September 
2016, instead. The Committee granted that request, subject to a 
clear written caution that if he chose that course the blackout 
rule would not apply to any final resolution of the matter. 
Representative McKinley chose to delay his appearance until 
September 2016. Although he appeared before the Committee prior 
to the start of the blackout period, the Committee's 
deliberations continued into the blackout period, and the 
Committee concluded its deliberations and voted to approve the 
final resolution within the blackout period.

                              IV. FINDINGS


                 A. EIGA SECTION 502 AND HOUSE RULE XXV

    Representative McKinley and his counsel have argued that 
the Committee's initial advisory opinion contained factual 
errors and legal infirmities, and should be revised to permit 
the Firm to continue to operate as ``McKinley & Associates.'' 
His arguments boil down to three points: (1) that the Committee 
made a factual error when it stated that ``McKinley 
Engineering'' was a family name, given that Johnson McKinley 
never used that name in his practice; (2) that the ``McKinley'' 
in ``McKinley & Associates'' should be read to include Johnson 
McKinley, because of the McKinley reputation in the West 
Virginia engineering and design community, and because of 
Johnson McKinley's role in assisting his son's practice; and 
(3) that the statute and House Rules should be read to permit 
the use of the name in this case, where the danger of a 
conflict of interest is low. The Committee has reviewed his 
arguments, and judged them either incorrect in their own right, 
or insufficient to affect the outcome.
    First, Representative McKinley points out that his father 
apparently never used the name ``McKinley Engineering,'' as the 
Committee stated in its advisory opinion. Setting aside the 
fact that the Committee's confusion resulted from the vague and 
confusing syntax of his counsel's request, and setting aside 
the additional fact that his own submissions repeatedly 
misstated the names his father used for his practice, and 
setting aside the third fact that Representative McKinley never 
wrote to the Committee to correct the record until over a year 
later, it is true that the ``family name'' suggested in the 
Committee's advisory opinion is not actually a ``family name.'' 
Representative McKinley argues that, consequently, ``there 
appears to be just as much basis for the Committee to determine 
that `McKinley & Associates' is a family name as there is for 
the Committee to determine that `McKinley Engineering' is a 
family name.'' This is true. However, the correct conclusion is 
the opposite: based on these new facts neither ``McKinley 
Engineering'' nor ``McKinley & Associates'' qualify as a family 
name, because both refer solely to Representative McKinley's 
business and not to any of his father's businesses, all of 
which included his father's first and last name or initials. As 
Representative McKinley told the Committee in September 2016, 
``I struck out to be a sole practitioner in architecture and 
engineering practice.''\68\ The fact that the Committee misread 
Representative McKinley's original statement of facts has no 
bearing on whether the facts at present support the use of the 
exception.
---------------------------------------------------------------------------
    \68\Representative McKinley Appearance (emphasis added).
---------------------------------------------------------------------------
    Second, Representative McKinley argues that, irrespective 
of the factual error, the Committee failed to account for 
certain other facts supporting a finding that ``McKinley & 
Associates'' is a family name. Specifically, Representative 
McKinley argues that, because of his family's historical 
reputation in West Virginia, and particularly his father's 
reputation as an engineer, the ``McKinley'' name is a brand 
upon which the Firm trades, based on not just Representative 
McKinley's work prior to his election, but his family's 
goodwill in the area and in the industry. This argument, while 
internally consistent, is simply not on all fours with the text 
of the statute or the Committee's longstanding guidance. The 
logic behind the concept that businesses with family names are 
not covered by Section 502 is that certain family businesses 
are not actually named for the Member, and therefore do not 
violate Section 502.
    Johnson McKinley's reputation, no matter how sterling, 
cannot retroactively stand in for the ``McKinley'' for whom the 
Firm is actually named. Johnson McKinley was never on the 
Firm's payroll. He kept his own practice when his son started 
the Firm in the 1980s. He did not appear on the Firm's 
letterhead and, to the best of anyone's recollection, never 
served as anything more than an outside advisor or consultant. 
The Firm does not use a family name. It uses Representative 
McKinley's name. EIGA prohibited that use the moment he became 
a Member of Congress.
    Third, Representative McKinley argues that, because the 
Committee has expansively interpreted or applied Section 502 in 
other areas--specifically, medicine--the Committee should 
engage in a flexible reading of the statute in this case, to 
reach the conclusion that the Firm's use of ``McKinley & 
Associates'' does not pose a risk for ``trading on the prestige 
of [a] Member[].''\69\ Representative McKinley believes such a 
risk is low because the McKinley name is associated not only 
with him but with his father and ancestors, and also because 
architectural services do not pose the same hazards in this 
regard as certain other fiduciary industries such as law or 
lobbying.\70\ This argument--which amounts to a request for a 
waiver--fails for at least three reasons. First, the arguments 
about the ``McKinley brand'' simply restate the arguments 
discussed above, and fail for the same reason. Second, while it 
may be true that an architect may not be as susceptible to the 
problems Section 502 was intended to address as some other 
professionals, the risk still exists that a Member will have 
some level of divided loyalty. Further, it is not inconceivable 
that an architecture firm could trade on the prestige of a 
Member of Congress--governments, after all, do build buildings 
from time to time. Finally, with respect to the Committee's 
guidance on the practice of medicine, the Committee has created 
a limited exception to the compensation ban, insofar as Members 
who are doctors accept fees for medical services that do not 
exceed the ``actual and necessary expenses incurred'' by the 
Member in connection with the practice.\71\ The Committee 
created this waiver because doctors must continue to practice 
to keep their licenses intact in some situations, and to 
maintain insurance coverage. Notably, though, the waiver does 
not extend to the ban on using the Member's name, and the 
Committee has historically advised Members who are doctors that 
their practices must remove mention of their name upon their 
election.
---------------------------------------------------------------------------
    \69\Exhibit 19 at 10-11.
    \70\This argument could be considered a descendant of the arguments 
Representative McKinley made prior to the issuance of the Committee's 
advisory opinion, that architects and engineers are not fiduciaries 
under West Virginia law. See Exhibit 17 at 2. This argument is infirm 
for at least two reasons. First, the Committee is not bound by state 
law determinations on the question of who is and is not a fiduciary; 
state law is simply one authority among others to assist in answering 
the question. The fact that another one of these authorities--the 
legislative history of EIGA itself--specifically lists architecture as 
one of the professions with which Congress was concerned is probably 
enough to tilt the scales against Representative McKinley's argument on 
its own. See House Bipartisan Task Force on Ethics, Report on H.R. 
3660, 101st Cong., 1st Sess. at 16 (1989). But even if it were not 
listed, West Virginia state law on architects is actually quite clear--
the licensure of architects requires that they meet the definition of 
``good moral character,'' which is defined as ``such character as will 
enable a person to discharge the fiduciary duties of an architect to 
his client and to the public. ...'' W.V. Code 30-12-2(4) (emphasis 
added). The fact that architects have a concomitant duty to the public 
is of no moment--once state law holds them to a fiduciary standard with 
respect to their individual clients, the question has been answered.
    \71\Ethics Manual at 387.
---------------------------------------------------------------------------
    Based on the foregoing, Representative McKinley violated 
EIGA Section 502 and House Rule XXV by permitting the Firm to 
continue to operate using his name.

                  B. HOUSE RULE XXIII, CLAUSES 1 AND 2

    Normally, matters such as this are handled by the Committee 
as a matter of advice and education, and that is how this 
matter began. Representative McKinley received advice from the 
Committee, in the form of informal staff-level guidance and in 
the form of an official advisory opinion letter. The 
Committee's letter carried with it a ``safe harbor'' for 
actions Representative McKinley might have taken in accordance 
with it.\72\
---------------------------------------------------------------------------
    \72\See Committee Rule 3(k) (``The Committee may take no adverse 
action in regard to any conduct that has been undertaken in reliance on 
a written opinion if the conduct conforms to the specific facts 
addressed in the opinion'').
---------------------------------------------------------------------------
    Representative McKinley also received advice from his 
former counsel, Mr. Kaiser. Mr. Kaiser's letter advised 
Representative McKinley that he could engage in the course of 
action he preferred--keeping the name ``McKinley & Associates'' 
on the Firm's door and selling the Firm, with that name, to the 
ESOP. That is the course of action Representative McKinley 
ultimately took. This course of action resulted in a number of 
consequences that accrued to his benefit: the name ``McKinley & 
Associates'' was a part of the Firm's valuation, increasing the 
Firm's value when he sold it. Moreover, should Representative 
McKinley leave Congress and return to his previous career, the 
Firm still bears his name, easing his transition back to 
practice. What this course of action did not accomplish, 
however, was compliance with relevant statutes and House Rules.
    If Representative McKinley had relied instead on the advice 
provided by the Committee there would be little question of the 
protection such reliance would have afforded him. Such 
protection is, as mentioned above, written into the Committee 
Rules and EIGA.\73\ Indeed, the Committee takes very seriously 
its obligation to provide sound and dispassionate advice to the 
Members of this House. Nothing in this Report should be read to 
discourage Members from coming to the Committee with their 
questions about the ethical ramifications of their conduct, and 
the Committee has historically helped a great many Members 
achieve the goals of their work while keeping within the 
boundaries of the rules and the law.\74\ The disclosure in this 
Report of Representative McKinley's appeals to that process is 
not in any way a repudiation of the Committee's longstanding 
commitment to providing Members with confidential counsel\75\ 
and safe harbor for acting in good faith in response to the 
Committee's advice.\76\ On the contrary, the only way the 
Committee can retain credibility in performing these services 
for Members is to publicly address those rare situations in 
which Members disregard the Committee's advice or fail to 
disclose full and accurate facts during the advisory process. 
Such is the case here.
---------------------------------------------------------------------------
    \73\Committee Rule 3(k); 5 U.S.C. app. Sec. 503(1)(A).
    \74\Comm. on Ethics, In the Matter of Allegations Related to 
Representative Tom Petri, H. Rept. 113-666, 113th Cong. 2d Sess. at 9 
(2014) (hereinafter Petri).
    \75\See Committee Rule 7.
    \76\See Committee Rules 3(k), (l); Petri at 6-9.
---------------------------------------------------------------------------
    However, relying on the advice of one's private counsel, 
while it does not confer the same sort of safe harbor as 
reliance on the Committee, can potentially mitigate the 
seriousness of a violation, insofar as it makes it less likely 
that a Member acted in bad faith. Members of Congress are 
entitled, as all Americans are, to consult with an attorney to 
inform their decision-making about a variety of situations. In 
other contexts, courts have held that where someone ``(1) fully 
disclosed all material facts to his attorney before seeking 
advice, and (2) actually relied on his counsel's advice in the 
good faith belief that his conduct was legal,'' such reliance 
on the advice of counsel might show an absence of wrongful 
intent or bad faith.\77\ The evidence suggests that 
Representative McKinley did indeed disclose all pertinent facts 
to Mr. Kaiser, and Representative McKinley appears to have 
actually relied on the advice Mr. Kaiser gave him. However, 
neither Representative McKinley nor Mr. Kaiser ever disclosed a 
key fact to the Committee when seeking the Committee's guidance 
on the Firm's name: the fact that if Representative McKinley 
did not get the answer he wanted from the Committee, he 
intended to sell the firm, with his name attached, to the ESOP.
---------------------------------------------------------------------------
    \77\See, e.g., See United States v. Rice, 449 F. 3d 887, 897 (8th 
Cir. 2006); see also United States v. West, 392 F. 3d 450, 447 (D.C. 
Cir. 2004) (``A defendant may avail himself of an advice of counsel 
defense only where he makes a complete disclosure to counsel, seeks 
advice as to the legality of the contemplated action, is advised that 
the action is legal, and relies on that advice in good faith.'')
---------------------------------------------------------------------------
    Representative McKinley has asserted that his decision to 
rely on Mr. Kaiser's advice, rather than the Committee's 
guidance, was not made in bad faith. He further states: ``I 
have since come to understand that the advice of my then 
attorney in explaining and interpreting to me House Committee 
on Ethics requirements and guidance, and my reliance on that 
advice were mistaken. I regret relying on that advice.''\78\ 
The Committee appreciates this acknowledgement. But even 
negligent violations of relevant statutes and House rules have 
recently resulted in the issuance of letters of reproval.\79\ 
Further, Representative McKinley failed to take any steps to 
determine whether his own attorney's advice was reasonable. He 
never asked Committee staff whether selling the Firm would 
resolve the problem with the Firm's name, and told the 
Committee he was unaware whether his attorney asked that 
question. (There is no evidence that he did).\80\ Had he asked 
that essential, and obvious, question, the Committee could have 
told him that he could not sell the Firm with his name 
attached. Representative McKinley's failure to ask this 
question is inexplicable in light of the advice he had 
previously solicited and received from a former Committee 
counsel--who was the counsel to two former Committee Chairmen--
that he would likely have to change the Firm's name to sell it.
---------------------------------------------------------------------------
    \78\See Exhibit 22.
    \79\See, e.g., Comm. on Ethics, In the Matter of Representative Don 
Young, H. Rept. 113-487, 113th Cong. 2d Sess (2014); Comm. on Ethics, 
In the Matter of Allegations Relating to Representative Shelley 
Berkley, H. Rept. 112-716, 112th Cong. 2d. Sess. (2012).
    \80\The actions of Representative McKinley's attorney suggest that 
even he may not have believed that selling the Firm would resolve the 
legal prohibition against continuing to provide fiduciary services 
while using the Member's name. On April 14, 2011, just three days after 
Representative McKinley agreed to sell the Firm, Mr. Kaiser sent a 
letter to Committee staff with additional arguments for the claim that 
engineering and architecture are not fiduciary services. If Mr. Kaiser 
believed that selling the Firm resolved these issues--and actually made 
it impossible for Representative McKinley to change the Firm's name--
the natural reaction would have been to inform the Committee of the 
sale and withdraw the request for a formal Advisory Opinion. Instead, 
Mr. Kaiser continued to argue that Representative McKinley was not 
required to change the Firm's name.
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    The Committee has long stated that Members have a ``duty of 
reasonable inquiry,'' which requires them to take ``reasonable 
care'' to avoid violations of applicable standards of 
conduct.\81\ That duty is heightened when a Member is ``placed 
on notice of an ethical problem.''\82\ When a Member has such 
notice of a potential problem, the Member should ask the 
Committee, not a private attorney, for guidance. In these 
circumstances, the Committee has found that a reproval may be 
appropriate even when the Member sought legal advice from other 
sources--but not the Committee--and where any violation of the 
Rules or law was unintentional.\83\
---------------------------------------------------------------------------
    \81\See House Comm. on Standards of Official Conduct, In the Matter 
of Representative Richard H. Stallings, H. Rept. 100-382, 100th Cong. 
1st Sess. 5 (1987) (hereinafter Stallings).
    \82\See id. 
    \83\In Stallings, the Committee found that Representative Stallings 
was unaware of the applicable House Rule and had no intent to violate 
it. Representative Stallings also contacted the Federal Election 
Commission--but not the Committee--before taking the actions at issue, 
and took steps to remedy his violation of House Rules when he was 
informed of it. Based on these mitigating circumstances, the Committee 
did not recommend a sanction, such as reprimand or censure, to be 
issued by the House. However, the Committee still found that a public 
reproval was warranted. See Stallings at 5-6. It is worth noting that 
much of the mitigation found in Stallings--namely the Member's 
ignorance of the applicable rule and his attempt to remedy the 
violations once he learned of them--was not present in this matter. See 
id. 
---------------------------------------------------------------------------
    Here, Representative McKinley was placed on notice in 
November 2010 that there was a problem with the name of his 
company, McKinley & Associates, and that, pursuant to federal 
law, the firm could not continue to operate under that name. 
His attorney advised him that he could remedy this problem by 
selling the company. This advice, which Mr. Kaiser did not 
explain or provide any reasoning for, was contrary to the plain 
meaning of the applicable federal statute, which provides that 
a Member may not ``permit his name to be used by . . . a firm, 
partnership, association, corporation, or other entity [that 
provides professional services involving a fiduciary 
relationship.]''\84\ By selling the Firm, with his name 
attached, Representative McKinley did exactly that. Indeed, 
this was the conclusion that another attorney, who was 
previously a counsel to the Committee, gave to Representative 
McKinley. In these circumstances, the duty of reasonable 
inquiry required Representative McKinley, or his attorney, to 
ask the Committee whether selling the company would resolve the 
issue. Instead, when Representative McKinley was told that 
staff would recommend the Committee issue an Advisory Opinion 
that required the Firm to change its name, he decided to sell 
the Firm quickly, with the name intact.\85\ Representative 
McKinley never notified the Committee of this plan until it was 
completed. Thus, Representative McKinley did not satisfy his 
duty to inquire whether his actions complied with federal law. 
Moreover, even if Representative McKinley believed his actions 
were consistent with what the law required, that belief was 
mistaken, as the Committee would have informed him, had he only 
asked.\86\ In these circumstances, Committee precedent holds 
that a public reproval is appropriate.\87\
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    \84\5 U.S.C. app. Sec. 502(a).
    \85\See Exhibit 6, at 18-19 (explaining that Representative 
McKinley ``abandoned'' the plan to sell the Firm to the ESOP when he 
believed the Firm's name would not have to change, and revived that 
plan after receiving a contrary opinion from Committee staff on March 
31, 2011).
    \86\In his appearance before the Committee, Representative McKinley 
was asked why he sold the Firm, 11 days after being told the Firm would 
have to change its name, ``without waiting for a final opinion from the 
people, the only people, who are entitled to give that opinion, and not 
your attorney.'' Representative McKinley explained ``[m]y fear was 
January 5,'' because he had been told he needed to resolve the issue of 
the Firm's name before he took office. However, Representative McKinley 
did not even submit his request for an Advisory Opinion until January 
3, 2011, and his attorney continued to send legal briefs to Committee 
staff after he entered an agreement on April 11, 2011, to sell the 
Firm. More importantly, when Committee staff suggested that 
Representative McKinley request a formal Advisory Opinion from the 
Committee, they explained that the Committee's response would take some 
time, but ``the [Firm] name can remain the same until the [advisory] 
opinion is rendered.'' See Exhibit 11. The actual timing on the 
transactions required to complete the sale of the Firm also raise 
questions about Representative McKinley's claim that he felt the need 
to act quickly. Representative McKinley told the Committee that the MOU 
committed him to sell the Firm to the ESOP, but did not set a sale 
price; that price could only be determined at the end of the calendar 
year, and thus the sale could not be finalized before then. See Exhibit 
6, at 25. Given this, it does not seem that rushing to sell the Firm--
before receiving the Committee's Advisory Opinion--would remove the 
``January 5'' issue, as the sale could not be finalized until 2012, 
regardless.
    \87\See Comm. on Ethics, In the Matter of Allegations Related to 
Representative Phil Gingrey, H. Rept. 113-664, 113th Cong. 2d Sess. 25 
(2014) (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.''); Comm. on 
Ethics, In the Matter of Allegations Relating to Representative Shelley 
Berkley, H. Rept. 112-716, 112th Cong. 2d Sess. 10 (2012) (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 issued a public reproval where the 
Member was unaware of the applicable House Rule and did not intend to 
violate it).
---------------------------------------------------------------------------
    After considering all of the circumstances in this matter, 
the Committee concluded that a letter of reproval is the 
appropriate action both to express its dissatisfaction with 
Representative McKinley's actions, as well as to encourage 
Members to more properly utilize the Committee's advice 
function.

                          C. EIGA SECTION 501

    In addition to the problems that the Firm's name poses in 
terms of EIGA Section 502 and House Rule XXV, the Firm 
advertises to the public that it has performed work for certain 
federal government clients, including the National Aeronautics 
and Space Administration, United States Postal Service, 
Department of Defense, ``Veterans Administration,'' Economic 
Development Administration, Department of Housing and Urban 
Development, Federal Aviation Administration, and Mine Safety 
and Health Administration.\88\ In the Firm President's 
interview and in the Firm's submission to the Committee, the 
Firm indicated that only the U.S. Postal Service remains as a 
client of the Firm. While the contracting process may not be 
one that would be amenable to influence, the plain language of 
Section 501 prohibits using the name of a Member in advertising 
a business that practices before the United States. Here, that 
name is a part of the Firm's advertising insofar as it is also 
the name of the Firm, notwithstanding the fact that 
Representative McKinley's full name no longer appears anywhere 
else.
---------------------------------------------------------------------------
    \88\See McKinley & Associates, ``McKinley & Associates--Portfolio 
(Government),'' available at http://www.mckinleyassoc.com/
government.htm (last accessed September 27, 2016).
---------------------------------------------------------------------------
    The Firm is not within the Committee's adjudicatory 
jurisdiction. Nevertheless, in order to provide the Firm with 
an opportunity of its own to comply with the law, the Committee 
has authorized the Chairman and Ranking Member to send a letter 
to the Firm informing them of its interpretation of the facts 
and application to the law, and urging them to change the name 
or cease working with the U.S. Postal Service.

                             V. CONCLUSION

    Representative McKinley wanted the Firm to continue to 
operate while he was a Member in the same fashion it had prior 
to his election. It was the view of the Committee, and of the 
Chairman and Ranking Member of the Committee in the 112th 
Congress, that this was impossible under EIGA, at least as far 
as the name of the Firm was concerned. The Committee 
communicated this view to Representative McKinley repeatedly, 
through a variety of channels. Two different staffers with 
years of experience interpreting these rules advised him of 
this interpretation, and the Chairman and Ranking Member of the 
Committee adopted that interpretation formally in an advisory 
letter to him. A former staff member of the Committee, who was 
consulted by an NRCC official on Representative McKinley's 
behalf, independently reached the same conclusion as the 
Committee, and cautioned that the Firm likely could not be sold 
to a non-family member without changing the name.
    Representative McKinley also received advice from a private 
attorney and relied on that attorney's counsel in taking a 
course of action that diverged from the one recommended by the 
Committee. The choice to follow his own counsel's advice, 
rather than the Committee's opinion, ultimately led 
Representative McKinley to sell the Firm with his name still 
attached, which left him powerless to effectuate the 
Committee's advice, and which effectively stymied the 
Committee's oversight of a Member's compliance with EIGA.\89\ 
The Committee disapproves of such tactics.
---------------------------------------------------------------------------
    \89\5 U.S.C. app. Sec. 503(1)(A).
---------------------------------------------------------------------------
    Based on his violations of House Rules and federal law, the 
Committee has sent a letter of reproval to Representative 
McKinley for his conduct in this matter. The Committee has also 
sent a letter to the Firm advising them of the Committee's 
position with respect to the legality of the use of the name 
``McKinley & Associates.'' Upon the issuance of these letters 
and the publication of this Report, the Committee will consider 
this matter closed.

            VI. STATEMENT UNDER HOUSE RULE XIII, CLAUSE 3(C)

    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.


                          House of Representatives,
                                       Committee on Ethics,
                                    Washington, September 28, 2016.
Member's Personal Attention:

Hon. David McKinley,
House of Representatives,
Washington, DC.
    Dear Representative McKinley: On September 27, 2016, the 
Committee on Ethics (Committee) voted to issue you this letter 
of reproval in response to your knowing disregard of the 
Committee's advice regarding the name of your former 
engineering and architecture firm, McKinley & Associates (the 
Firm), in a fashion that resulted in a violation of House Rules 
and the Ethics in Government Act (EIGA), 5 U.S.C. app. 
Sec. 502(a). The Committee has also voted to adopt and publish 
the attached Report to the House of Representatives.
    The conduct for which you are being reproved includes your 
choice to ignore advice provided by this Committee, given from 
at least November 2010 until June 2011, both informally and in 
a formal advisory opinion letter dated June 24, 2011, in which 
the Committee counseled that the Firm should change its name, 
given its fiduciary responsibilities and the consequences that 
such responsibilities triggered under House Rules and EIGA. 
Instead of complying with the advice of the Committee, which 
has the sole authority under EIGA to administer these 
restrictions for Members of the House, you chose not to change 
the name of the Firm, and instead sold your interest in the 
Firm, with the name intact. Further, you did not inform the 
Committee of this action until after you had taken it.
    With respect to this conduct, you violated 5 U.S.C. app. 
Sec. 502, which provides that a Member shall not ``permit [his] 
name to be used by'' firms providing professional services 
involving a fiduciary relationship. Such behavior is also 
prohibited by House Rule XXV, clause 2. In failing to comport 
with this standard, you also violated House Rule XXIII, clauses 
1 and 2, which state 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 Committee found that prior to your election to the 
House, you worked as a licensed professional engineer at the 
Firm, which you established and at which you were also an 
officer and director. The Firm used the name ``McKinley & 
Associates''' since 1989; prior to that, you operated a sole 
practitioner's office in West Virginia, focused solely on 
engineering services, known as ``McKinley Engineering,'' which 
you folded into the Firm once it began offering architectural 
services. Under West Virginia law, architecture is a profession 
that involves fiduciary duties. While your father was also a 
licensed professional engineer, and while you and your father 
had informal professional relationships throughout your career 
until his retirement, your father did not establish or co-found 
the Firm, was never on the payroll of the Firm, and maintained 
his own separate business when you started the Firm.
    After you were elected to the House in 2010, you sought the 
advice of Committee staff regarding the Firm. Staff's original 
advice was that the Firm would need to change its name. You 
disagreed with that advice, and responded to it in two 
independent ways. First, you continued to dispute, through 
counsel, the Committee's advice, in an attempt to change the 
Committee's position. The Committee considered your arguments, 
but you and your counsel were repeatedly advised that the 
Committee would likely require you to the change the name of 
the Firm.\1\ On June 24, 2011, the Committee issued a formal 
advisory opinion to you, informing you that House Rules and 
federal law required the Firm to change its name.\2\ Second, 
based on your own counsel's legal advice, you began the process 
of selling your interest in the Firm to the Firm's Employee 
Stock Option Plan (ESOP), without changing the name. While you 
and the Firm had contemplated the sale prior to your election 
to the House, the process of selling the Firm took some time, 
culminating in a formal agreement of sale on December 31, 2011 
(six months after the Committee's advisory opinion), and a 
closing date of April 30, 2012. Despite the Committee's advice, 
at no point in the process of selling the Firm did you require 
that the Firm change its name, based on the contrary advice of 
your own lawyer, which misconstrued the rules and relevant 
federal law. The Firm still uses the name McKinley & Associates 
today.
---------------------------------------------------------------------------
    \1\You have contended that at some point in early 2011, in one 
telephone conference with one Committee staffer, that staffer informed 
you that you would not need to change the Firm's name. As more fully 
discussed in the accompanying Report, the evidence of precisely what 
transpired during that informal conference is unclear, and in any 
event, cannot override the consistent and contrary opinion of the 
Committee and its staff throughout the advisory process, much less the 
formal advisory opinion issued later that year. On March 31, 2011, your 
attorney was informed by Committee counsel that the staff would 
recommend that the Committee issue a formal advisory opinion concluding 
that you must change the Firm's name. You signed a Memorandum of 
Understanding, in which you agreed to sell the Firm without changing 
its name, 11 days later.
    \2\The Committee's letter advised you that it would be permissible 
to change the name of the Firm to ``McKinley Engineering,'' on the 
basis that your father had operated a business using that name. As 
discussed more fully in the accompanying Report, this was a factual 
error that appears to be based largely on vague and confusing syntax in 
a submission by your own lawyer. That factual error notwithstanding, 
you did not choose to rename the Firm ``McKinley Engineering,'' and you 
did not request that the Committee revise its opinion to accord with 
accurate facts, despite notice and opportunity to do so.
---------------------------------------------------------------------------
    With respect to EIGA Section 502 and House Rule XXV, the 
Firm used and continues to use your name while providing 
fiduciary services. Specifically, architecture is a service 
defined as one involving fiduciary responsibilities--both as a 
matter of West Virginia law and within the legislative history 
of EIGA itself The statute and House Rule were designed to 
prevent conflicts of interest between a Member's duty to the 
public and his fiduciary duties to his client. As a practical 
matter, when Members are elected to the House and have 
associations with these sorts of businesses, the Committee 
consistently advises them that the appropriate course of action 
is to cease receipt of any compensation and to remove their 
name from the business and its materials.\3\ Having disregarded 
this advice, you acted in a manner contrary to House rules and 
federal law.
---------------------------------------------------------------------------
    \3\The Committee is aware of your position, taken repeatedly 
throughout this process, that the Finn's name refers not only to you, 
but to your father. Accordingly, you wish to rely on an exception to 
EIGA and House Rule XXV permitting an entity that provides fiduciary 
services to continue using the name of a Member where that name is 
associated with a family business. The accompanying report provides a 
fulsome view of the Committee's analysis of the family name exception, 
but in short, it does not apply here. Your father's reputation in the 
West Virginia engineering community notwithstanding, the facts of this 
case demonstrate that the Firm is not named for your father. It is 
named for you. EIGA prohibits the use of your name now that you are a 
Member of Congress.
---------------------------------------------------------------------------
    Your disregard for the Committee's advice and processes not 
only led to a substantive violation of these principles, it 
impaired the Committee's function in enforcing the standards 
set by your peers. Thus, your actions failed to comply with the 
spirit and letter of House Rules, and did not reflect 
creditably on the House.
    Accordingly, based on your conduct in this matter, the 
Committee has determined that you should be publicly reproved. 
Now that this letter has issued and the Committee has publicly 
noted its reproval of your conduct, the Committee has 
determined that this matter is closed.
            Sincerely,
                                   Charles W. Dent,
                                           Chairman.
                                   Linda T. Sanchez,
                                           Ranking Member.