[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 12. Conduct or Discipline of Members, Officers, or Employees]
[Appendix]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1757-1765]
 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
                                APPENDIX


       Opinions of the Committee on Standards of Official Conduct

                                                                Advisory
                                                                Opinion
                                                                  No.

Subject:
  Communications with Federal agencies.......................         1
  Clerk-hire allowance.......................................         2
  Travel at expense of foreign governments...................         3
  Acceptance of nonpaid transportation.......................         4


                                     

                         ADVISORY OPINION NO. 1

                       (Issued January 26, 1970)

On the Role of a Member of the House of Representatives in 
    Communicating with Executive and Independent Federal Agencies

    Reason for Issuance.--A number of requests have come to the 
Committee for its advice in connection with actions a Member of 
Congress may properly take in discharging his representative function 
with respect to communications on constituent matters. This advisory 
opinion is written to provide some guidelines in this area in the hope 
they will be of assistance to Members.
    Background.--The first Article in our Bill of Rights provides that 
``Congress shall make no law . . . abridging the . . . right of the 
people . . . to petition the Government for a redress of grievances.'' 
The exercise of this Right involves not only petition by groups of 
citizens with common objectives, but increasingly by individuals with 
problems or complaints involving their personal relationships with the 
Federal Government. As the population has grown and as the Government 
has enlarged in scope and complexity, an increasing number of citizens 
find it more difficult to obtain redress by direct communication with 
administrative agencies. As a result. the individual turns increasingly 
to his most proximate connection with his Government, his 
Representative in the Congress, as evidenced by the fact that 
congressional offices devote more time to constituent requests than to 
any other single duty.
    The reasons individuals sometimes fail to find satisfaction from 
their petitions are varied. At the extremes, some grievances are simply 
imaginary rather than real, and some with merit are denied for lack of 
thorough administrative consideration.
    Sheer numbers impose requirements to standardize responses. Even if 
mechanical systems function properly and timely, the stereotyped 
responses they produce suggest indifference. At best, responses to 
grievances in form letters or by other automated means leave much to be 
desired.
    Another factor which may lead to petitioner dissatisfaction is the 
occasional failure of legislative language, or the administrative 
interpretation of it, to cover adequately all the merits the 
legislation intended. Specific cases arising under these conditions 
test the legislation and

[[Page 1758]]

provide a valuable oversight disclosure to the Congress.
    Further, because of the complexity of our vast Federal structure, 
often a citizen simply does not know the appropriate office to 
petition.
    For these, or similar reasons, it is logical and proper that the 
petitioner seek the assistance of his Congressman for an early and 
equitable resolution of his problem.
    Representations.--This Committee is of the opinion that a Member of 
the House of Representatives, either on his own initiative or at the 
request of a petitioner, may properly communicate with an Executive or 
Independent Agency on any matter to:
    --Lrequest information or a status report;
    --Lurge prompt consideration;
    --Larrange for interviews or appointments;
    --Lexpress judgment;
    --Lcall for reconsideration of an administrative response which he 
believes is not supported by established law, Federal regulation or 
legislative intent;
    --Lperform any other service of a similar nature in this area 
compatible with the criteria hereinafter expressed in this Advisory 
Opinion.
    Principles To Be Observed.--The overall public interest, naturally, 
is primary to any individual matter and should be so considered. There 
are also other self-evident standards of official conduct which Members 
should uphold with regard to these communications. The Committee 
believes the following to be basic:
        1. A Member's responsibility in this area is to all his 
    constituents equally and should be pursued with diligence 
    irrespective of political or other considerations.
        2. Direct or implied suggestion of either favoritism or 
    reprisal in advance of, or subsequent to, action taken by the 
    agency contacted is unwarranted abuse of the representative role.
        3. A Member should make every effort to assure that 
    representations made in his name by any staff employee conform to 
    his instruction.
    Clear Limitations.--Attention is invited to United States Code, 
Title 18, Sec. 203(a) which states in part: ``Whoever . . . directly or 
indirectly receives or agrees to receive, or asks, demands, solicits, 
or seeks, any compensation for any services rendered or to be rendered 
either by himself or another
        (1) at a time when he is a Member of Congress . . .; or
        (2) at a time when he is an officer or employee of the United 
    States in the . . . legislative . . . branch of the government . . 
    .
in relation to any proceeding, application, request for a ruling or 
other determination, contract, claim, controversy, charge, 
accusation, arrest, or other particular matter in which the United 
States is a party or has a direct and substantial interest, before 
any department, agency, court-martial, officer, or any civil, 
military, or naval commission . . .
    Shall be fined not more than $10,000 or imprisoned for not more 
than two years or both; and shall be incapable of holding any office of 
honor, trust, or profit under the United States.''
    The Committee emphasizes that it is not herein interpreting this 
statute but notes that the law does refer to any compensation, directly 
or indirectly, for services by himself or another. In this connec

[[Page 1759]]

tion, the Committee suggests the need for caution to prevent the 
accrual to a Member of any compensation for any such services which may 
be performed by a law firm in which the Member retains a residual 
interest.
    It should be noted that the above statute applies to officers and 
employees of the House of Representatives as well as to Members.

                         ADVISORY OPINION NO. 2

                         (Issued July 11, 1973)

On the Subject of a Member's Clerk Hire

    Reason for issuance.--A number of requests have come to the 
Committee for advice on specific situations which, to some degree, 
involve consideration of whether moneys appropriated for Members' clerk 
hire are being properly utilized.
    A summary of the responses to these requests forms the basis for 
this Advisory Opinion which, it is hoped, will provide some guidelines 
and assistance to all Members.
    Background.--The Committee requested the Congressional Research 
Service to examine in depth the full scope of the laws and the 
legislative history surrounding Members' clerk hire. The search 
produced little in the way of specific parameters in either case law or 
congressional intent, concluding that ``. . . no definitive definition 
was found . . .''. It is out of this absence of other guidance the 
Committee feels constrained to express its views.
    Clerk hire allowance for Representatives was initiated in 1893 (27 
Stat. 757). The law providing it spoke of providing clerical assistance 
to a Representative ``in the discharge of his official and 
representative duties . . .''. The same phraseology is used today in 
each Legislative Appropriations bill and by the Clerk of the House in 
his testimony before the Subcommittee on Legislative Appropriations. An 
exact definition of ``official and representative duties'' was not 
found in the extensive materials researched. Remarks concerning various 
bills, however, usually refer to ``clerical service'' or terms of 
similar import, thus implying a consistent perception of the term as 
payment for personal services.
    Summary Opinion.--This Committee is of the opinion that the funds 
appropriated for Members' clerk hire should result only in payment for 
personal services of individuals, in accordance with the law relating 
to the employment of relatives, employed on a regular basis, in places 
as provided by law, for the purpose of performing the duties a Member 
requires in carrying out his representational functions.
    The Committee emphasizes that this opinion in no way seeks to 
encourage the establishment of uniform job descriptions or imposition 
of any rigid work standards on a Member's clerical staff. It does 
suggest, however, that it is improper to levy, as a condition of 
employment, any responsibility on any clerk to incur personal 
expenditures for the primary benefit of the Member or of the Member's 
congressional office operations, such as subscriptions to publications, 
or purchase of services, goods or products intended for other than the 
clerk's own personal use.
    The opinion clearly would prohibit any Member from retaining any 
person from his clerk hire allowance under either an express or tacit 
agreement that the sal

[[Page 1760]]

ary to be paid him is in lieu of any present or future indebtedness of 
the Member, any portion of which may be allocable to goods, products, 
printing costs, campaign obligations, or any other nonrepresentational 
service.
    In a related regard, the Committee feels a statement it made 
earlier, in responding to a complaint, may be of interest. It states: 
``As to the allegation regarding campaign activity by an individual on 
the clerk hire rolls of the House, it should be noted that, due to the 
irregular time frames in which the Congress operates, it is unrealistic 
to impose conventional work hours and rules on congressional employees. 
At some times, these employees may work more than double the usual 
workweek--at others, some less. Thus employees are expected to fulfill 
the clerical work the Member requires during the hours he requires and 
generally are free at other periods. If, during the periods he is free, 
he voluntarily engages in campaign activity, there is no bar to this. 
There will, of course, be differing views as to whether the spirit of 
this principle is violated, but this Committee expects Members of the 
House to abide by the general proposition.''

                         ADVISORY OPINION NO. 3

                         (Issued June 26, 1974)

On the Subject of Foreign Travel by Members and Employees of the House 
    of Representatives at the Expense of Foreign Governments

    Reason for Issuance.--The Committee has received a number of 
requests from Members and employees of the House for guidance and 
advice regarding acceptance of trips to foreign countries, the expenses 
of which are borne by the host country or some agent or instrumentality 
of it.
    The Committee is advised that similar inquiries recently have been 
put to the Department of State with respect to other Federal employees.
    In order to provide widest possible dissemination to views 
expressed in response to the requests, and to coordinate with 
statements likely to be forthcoming from other areas of the Federal 
government in this regard, this general advisory opinion is 
respectfully offered.
    Background.--The United States Constitution, at Article I, Section 
9, Clause 8, holds that:
    No Title of Nobility shall be granted by the United States: And no 
Person holding any Office of Profit or Trust under them, shall without 
the Consent of the Congress, accept of any present, Emolument, Office, 
or Title, of any kind whatever, from any King, Prince, or foreign 
State.
    This provision, described as stemming from a ``just jealousy of 
foreign influence of every sort,'' is extremely broad as to whom it 
covers, as well as to the ``presents'' or ``emoluments'' it prohibits--
speaking of the latter as of any kind whatever. (emphasis provided)
    It is narrow only in the sense that the framers, aware that social 
or diplomatic protocols could compel some less than absolute observance 
of a prohibition on the receipt or exchange of gifts, provided for 
specific exceptions with ``the consent of the Congress.''
    Congress dealt from time to time with these exceptions through 
public and private bills addressed to specific situations, and dealt 
generally, commencing in 1881,

[[Page 1761]]

with the overall question of management of foreign gifts.
    In 1966 Congress passed the latest and the existing Public Law 89-
673, ``an Act to grant the consent of Congress to the acceptance of 
certain gifts and decorations from foreign governments.'' That law is 
presently codified at Title 5, United States Code, Section 7342, a copy 
of which is attached.
    The law is quite explicit in virtually all particulars, save 
whether the expense of a trip paid for by a foreign government is a ``. 
. . present or thing, other than a decoration, tendered by or received 
from a foreign government; . . .''
    It is on this point that this Opinion lies.
    Basis of Authority for Opinion.--Since this matter impinges equally 
on all Federal employees, the Committee sought advice from the 
Comptroller General as legal adviser to the Congress, and from the 
Secretary of State as the implementing authority over 5 U.S.C. 7342.
    Copies of their official responses are attached to this Opinion.
    Summary Opinion.--It is the opinion of this Committee, on its own 
initiative and with the advice of the Comptroller General and the 
Assistant Secretary of State, that acceptance of travel or living 
expenses in specie or in kind by a Member or employee of the House of 
Representatives from any foreign government, official agent or 
representative thereof is not consented to in 5 U.S.C. 7342, and is, 
therefore, prohibited. This prohibition applies also to the family and 
household of Members and employees of the House of Representatives.
Sec. L 7342. Receipt and disposition of foreign gifts and 
decorations

    (a) For the purpose of this section--
        (1) ``employee'' means--
            (A) an employee as defined by section 2105 of this title;
            (B) an individual employed by, or occupying an office or 
        position in, the government of a territory or possession of the 
        United States or of the District of Columbia;
            (C) a member of a uniformed service;
            (D) the President;
            (E) a Member of Congress as defined by section 2106 of this 
        title; and
            (F) a member of the family and household of an individual 
        described in subparagraphs (A)-(E) of this paragraph;
        (2) ``foreign government'' means a foreign government and an 
    official agent, or representative thereof;
        (3) ``gift'' means a present or thing, other than a decoration, 
    tendered by or received from a foreign government; and
        (4) ``decoration'' means an order, device, medal, badge, 
    insignia, or emblem tendered by or received from a foreign 
    government.
    (b) An employee may not request or otherwise encourage the tender 
of a gift or decoration.
    (c) Congress consents to--
        (1) the accepting and retaining by an employee of a gift of 
    minimal value tendered or received as a souvenir or mark of 
    courtesy; and
        (2) the accepting by an employee of a gift of more than minimal 
    value when it appears that to refuse the gift would be likely to 
    cause offense or embarrassment or otherwise adversely affect the 
    foreign relations of the United States.
However, a gift of more than minimal value is deemed to have been 
accepted on

[[Page 1762]]

behalf of the United States and shall be deposited by the donee for 
use and disposal as the property of the United States under 
regulations prescribed under this section.
    (d) Congress consents to the accepting, retaining, and wearing by 
an employee of a decoration tendered in recognition of active field 
service in time of combat operations or awarded for other outstanding 
or unusually meritorious performance, subject to the approval of the 
agency, office or other entity in which the employee is employed and 
the concurrence of the Secretary of State. Without this approval and 
concurrence, the decoration shall be deposited by the donee for use and 
disposal as the property of the United States under regulations 
prescribed under this section.
    (e) The President may prescribe regulations to carry out the 
purpose of this section. Added Pub. L. 90-83 Sec. 1(45)(C), Sept. 11, 
1967, 81 Stat. 208.

                                  ----
                                              Department of State,
                                      Washington, D.C., May 9, 1974.

Hon. melvin Price,
Chairman, Committee on Standards of Official Conduct, House of 
Representatives.

    Dear Mr. Chairman: I am replying to your letter of April 17 to Mr. 
Hampton Davis, of the Office of the Chief of Protocol, requesting 
comment on Congressman Kemp's suggestion that your Committee issue a 
briefing paper on the propriety of acceptance by Congressional Members 
and staff of trips offered them at the expense of foreign governments.
    Various Federal agencies have put similar questions to the 
Department of State on a number of occasions in behalf of their 
employees who have received but not yet acted on offers of such trips. 
It has been the Department's consistent position that the offer of an 
expenses-paid trip is an offer of a gift and that, therefore, if 
tendered by a foreign government or any representative thereof to a 
Federal employee, the Foreign Gifts and Decorations Act of 1966 would 
require its refusal. A trip cannot qualify under the special provision 
permitting acceptance of a gift of more than minimal value on the 
ground that to refuse it would appear likely to ``cause offense or 
embarrassment or otherwise adversely affect the foreign relations of 
the United States''. This follows from the requirement that the donee, 
being deemed to have accepted such a gift on behalf of the United 
States, deposit it for use and disposal as property of the United 
States in accordance with the implementing regulations, since the 
recipient of a trip could not fulfill that requirement.
    Precisely because of the impossibility of surrendering the gift of 
a trip once it has been accepted and taken, we believe it would be 
highly advisable for your Committee to issue the briefing paper on the 
subject which Congressman Kemp has suggested. In this connection the 
Committee may be interested to know that the Department is planning a 
new informational program designed to improve understanding and 
compliance with the Foreign Gifts and Decorations Act and the 
implementing regulations. The program will be aimed not only at those 
within the Federal establishment who might become donees or who may 
have responsibility for briefing potential donees, but also at the 
foreign governments that appear to be less than fully aware of the 
stringent legal restrictions

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that we operate under in this area. We shall be happy to see that the 
Committee is included in the distribution of the material being 
developed.
    I hope that we have been helpful in this matter and that you will 
feel free to call upon us at any time you think we can be of 
assistance.

        Sincerely yours,

                                               Linwood Holton,
                                         Assistant Secretary for
                                          Congressional Relations.

                                           Comptroller General
                                           of The United States,
                                    Washington, D.C., May 9, 1974.
B-180472.
Hon. Melvin Price,
Chairman, Committee on Standards of Official Conduct, House of 
Representatives.
    Dear Mr. Chairman: Your letter of April 17, 1974, with attachments, 
requests our comments on the advisability of issuing a briefing paper 
on the legal ramifications of the acceptance by Members of Congress, or 
staff, of trips abroad that are paid for by foreign governments.
    We are not aware of any decision by any forum as to the legality of 
such trips. The question arises because of the prohibition contained in 
article I, section 9, clause 8, of the United States Constitution, 
which reads as follows:
    ``No Title of Nobility shall be granted by the United States: And 
no Person holding any Office of Profit or Trust under them, shall, 
without the Consent of the Congress, accept of any present, Emolument, 
Office, or Title of any kind whatever, from any King, Prince, or 
foreign State.''
    In connection with this provision, we have viewed the term 
``present'' as ``synonymous with the term `gift','' denoting 
``something voluntarily given, free from legal compulsion or 
obligation.'' 34 Comp. Gen. 331, 334 (1955); 37 Comp. Gen. 138, 140 
(1957). ``Emolument'' has been defined as profit, gain, or compensation 
received for services rendered. 49 Comp. Gen. 819, 820 (1970); B-
180472, March 4, 1974. Accordingly, and in view of the emphatic 
language of the Constitution (i.e., present or emolument ``of any kind 
whatever''), we see no basis whereby trips paid for by foreign 
governments may be accepted by Members of Congress or members of their 
staffs without the consent of the Congress. If payment of the cost of a 
trip in a particular case be considered as an emolument for services to 
be rendered acceptance thereof would be categorically prohibited by the 
above-cited constitutional provision unless consented to by the 
Congress.
    If on the other hand the payment of travel costs in a particular 
circumstance constitutes a gift, by enactment of section 7342 of title 
5, United States Code, entitled ``Receipt and disposition of foreign 
gifts and decorations,'' the Congress has given its consent to (quoting 
the Code provision in part)--
        ``(1) the accepting and retaining by an employee of a gift of 
    minimal value tendered or received as a souvenir or mark of 
    courtesy; and
        ``(2) the accepting by an employee of a gift of more than 
    minimal value when it appears that to refuse the gift would be 
    ]ikely to cause offense or embarrassment or otherwise adversely 
    affect the foreign relations of the United States.
        ``However, a gift of more than minimal value is deemed to have 
    been accepted on behalf of the United States and shall be deposited 
    by the donee for

[[Page 1764]]

    use and disposal as the property of the United States under 
    regulations prescribed under this section.''
    The term ``employee'' is defined in section 7342 as including 
members of Congress.
    By Executive Order 11320, the President delegated to the Secretary 
of State the authority to issue regulations implementing this statute. 
These regulations are contained in part 3 of title 22, Code of Federal 
Regulations (CFR). A ``gift of minimal value'' is defined as ``any 
present or other thing, other than a decoration, which has a retail 
value not in excess of $50 in the United States.'' 22 CFR Sec. 3.3(e). 
The statute and regulations do not specifically cover trips, and the 
legislative history of the Foreign Gifts and Decorations Act of 1966, 
of which section 7342 is a part, indicates that the statute 
contemplated gifts of tangible items. In any event, the intent seems 
clear that, although a gift of more than minimal value may be 
``accepted'' in the limited situations indicated, the value of such 
gift is not to inure to the benefit of the individual recipient. 
Accordingly, it is our view that section 7342 would not permit the 
acceptance of gifts of trips abroad by Members of Congress or members 
of their staffs that are paid for by foreign governments.
    We see no objection to the issuance of a briefing paper, setting 
forth the above views of our Office, in order to provide guidance to 
Members of the Congress regarding this matter.

        Sincerely yours,
                                                 R. F. Keller,
                                      Acting Comptroller General
                                             of the United States.

                         ADVISORY OPINION NO. 4

                         (Issued May 14, 1975)
On the Propriety of Accepting Certain Non-paid Transportation
    Reason for Issuance.--The Committee has been requested in writing 
to express an opinion on the propriety of Members and staff of the U.S. 
House of Representatives accepting non-paid transportation provided 
under a number of circumstances. In order that all may be on notice, 
the response to that request is made in this Committee Advisory 
Opinion.
    Background.--It is necessary and desirable that Members and 
employees of the U.S. House of Representatives, being public officials, 
maintain maximum contact with the public at large to provide 
information on the work of the House and to gain citizen input into the 
legislative process. To accomplish this, considerable travel is 
required. Under some circumstances, such travel may be appropriately 
provided by other than commercial means. Conversely, in some 
circumstances non-paid transportation offers should be declined. It is 
the intent of this Advisory Opinion to address both situations.
    The distinction turns on the purpose of the transportation. At 
times, it will be clear that there is a single identifiable purpose. At 
other times there may be more than one purpose involved. The Committee 
stresses that the opinions hereafter stated deal with the principal 
purpose for taking the trip, such purpose to be fairly determined by 
the person involved, before acceptance of any nonpaid transportation.
    Non-Paid Transportation Offers To Be Declined.--If the principal 
purpose of the trip is political campaign activity, and the host 
carrier is one who would be prohibited by law from making a campaign 
contribution, such non-paid transportation would amount to a political 
contribution in kind, and should not be accepted.

[[Page 1765]]

    If the trip is principally for noncampaign purposes, and the person 
involved were to request the host carrier to schedule transportation 
expressly for the convenience of the congressional passenger, such 
request could be interpreted as abuse of one's public position and 
should be avoided.
    Non-Paid Transportation Offers Which may be Accepted.--If the 
purpose of the trip is principally representational or even personal, 
and if the host carrier's purpose in scheduling the transportation is 
solely for the general benefit of the host, and the transportation is 
furnished on a space-available basis with no additional costs incurred 
in providing the accommodation, it would not be improper to accept such 
transportation.
    If the purpose of the transportation is to enable the congressional 
passenger, in his role as a public official, to be present at an event 
for the general benefit of an audience, the accommodation should be 
construed as accruing to the benefit of the audience--not the 
passenger--and it would not be improper to accept such transportation.
    The above principle can be similarly applied to situations in which 
a congressional passenger is transported in connection with the receipt 
of an honorarium. Under such circumstances, the transportation may be 
accepted in lieu of monetary reimbursement for travel to which the 
passenger would otherwise be entitled.
    Congressional officials, like other public officials and private 
persons, are on occasion invited as guests on scheduled airlines' 
inaugural flights. Specific authority to provide such non-paid 
transportation is contained in 14 CFR 223.8 and 399.34. Assuming that 
the conditions of these sections are strictly met, the Committee finds 
that there would be nothing improper in the acceptance of such 
inaugural flights.
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