105th Congress 1st Session COMMITTEE PRINT _______________________________________________________________________ REPORT OF THE ETHICS REFORM TASK FORCE ON H. RES. 168 ---------- RECOMMENDING REVISIONS TO THE RULES OF THE HOUSE AND THE RULES OF THE COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT WITH ADDITIONAL VIEWS June 17, 1997.--Printed for the use of the Committee on Rules 105th Congress 1st Session COMMITTEE PRINT _______________________________________________________________________ REPORT OF THE ETHICS REFORM TASK FORCE ON H. RES. 168 __________ RECOMMENDING REVISIONS TO THE RULES OF THE HOUSE AND THE RULES OF THE COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT WITH ADDITIONAL VIEWS June 17, 1997.--Printed for the use of the Committee on Rules UNITED STATES HOUSE OF REPRESENTATIVES ETHICS REFORM TASK FORCE Robert L. Livingston, Louisiana, Co-Chairman Benjamin L. Cardin, Maryland, Co-Chairman GERALD B.H. SOLOMON, New York LOUIS STOKES, Ohio WILLIAM M. THOMAS, California JOHN JOSEPH MOAKLEY, Massachusetts PORTER J. GOSS, Florida MARTIN FROST, Texas MICHAEL N. CASTLE, Delaware NANCY PELOSI, California ------ ------ JAMES V. HANSEN, Utah, Ex Officio HOWARD L. BERMAN, California, Ex Officio Richard J. Leon, Special Counsel David H. Laufman, Assistant to the Special Counsel C O N T E N T S ---------- Page I. Introduction.....................................................1 II. Method of Operation..............................................2 III. Summary of Recommendations.......................................3 IV. Section-by-Section Analysis......................................6 Section 1. Use of Non-Committee Members.................. 6 Section 2. Duration of Service on the Committee on Standards of Official Conduct........................ 7 Section 3. Committee Agendas............................. 8 Section 4. Committee Staff............................... 8 Section 5. Meetings and Hearings......................... 10 Section 6. Confidentiality Oaths......................... 10 Section 7. Public Disclosure............................. 11 Section 8. Confidentiality of Committee Votes............ 12 Section 9. Filings By Non-Members of Information Offered as a Complaint....................................... 12 Section 10. Requirements to Constitute a Complaint....... 13 Section 11. Duties of Chairman and Ranking Minority Member Regarding Properly Filed Complaints........... 15 Section 12. Duties of Chairman and Ranking Minority Member Regarding Information Not Constituting a Complaint............................................ 19 Section 13. Investigative and Adjudicatory Subcommittees. 20 Section 14. Standard of Proof for Adoption of Statement of Alleged Violation................................. 21 Section 15. Subcommittee Powers.......................... 22 Section 16. Due Process Rights of Respondents............ 24 Section 17. Committee Reporting Requirements............. 27 Section 18. Referrals to Federal or State Authorities.... 29 Section 19. Frivolous Filings............................ 29 Section 20. Technical Amendments......................... 30 V. Conclusion......................................................30 VI. Additional Views................................................31 VII. Appendix........................................................52 Resolution............................................... 52 Relevant House Rules..................................... 78 Rules of the Committee on Standards of Official Conduct.. 87 I. Introduction Under the U.S. Constitution, the House of Representatives is responsible for establishing rules to govern the conduct of its Members, as well as judging Members alleged to have violated those rules.1 The perceived success with which the House administers this system of peer review plays an important part in influencing both internal and public confidence in the work of the Committee on Standards of Official Conduct (``Standards Committee'' or ``the Committee''). --------------------------------------------------------------------------- \1\ Article I, Section 5, Clause 2 of the U.S. Constitution states that ``[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.'' --------------------------------------------------------------------------- While House Members generally regarded the existing standards process 2 as fundamentally sound, no reassessment of the standards process in its entirety had occurred since 1989, and by the end of the 104th Congress, a consensus had developed within the House that such a reassessment was appropriate. In particular, interest had grown in reexamining ways to better ensure that the standards process in the House functions in a manner that is nonpartisan, efficient, and fair. --------------------------------------------------------------------------- \2\ Hereafter, the term ``standards process'' shall at all times throughout this report relate to the process by which Members, officers, and employees of the House of Representatives are investigated and adjudged following the receipt of information questioning whether such Member, officer, or employee violated the ethical standards of the House. --------------------------------------------------------------------------- On February 12, 1997, the House established, by unanimous consent, a bipartisan Task Force to review the existing House standards process and recommend reforms of that process. The House also approved, by unanimous consent, a 65-day moratorium on the filing of new ethics complaints to enable the Task Force to conduct its work ``in a climate free from specific questions of ethical propriety.'' 3 --------------------------------------------------------------------------- \3\ 143 Cong. Rec. H456 (daily ed. Feb. 12, 1997) (statement of Rep. Armey). --------------------------------------------------------------------------- Representatives Robert L. Livingston and Benjamin L. Cardin were appointed by House Majority Leader Richard Armey and House Minority Leader Richard Gephardt, respectively, to co-chair the Task Force. Representative Livingston had served as a member of the Bipartisan Task Force on Ethics which reviewed the House standards process in 1989. Representative Cardin had recently completed six years as a member of the Standards Committee. Other Republican members of the Task Force were Representatives Gerald B.H. Solomon, William M. Thomas, Porter J. Goss, Michael N. Castle, and James V. Hansen (ex officio). Other Democratic members of the Task Force were Representatives Louis Stokes, John Joseph Moakley, Martin Frost, Nancy Pelosi, and Howard L. Berman (ex officio). II. Method of Operation The Task Force began its work by holding hearings to solicit the views and ideas of House Members and interested members of the public regarding possible reforms of the House standards process. Most of the hearings occurred in executive session in order to encourage candor on the part of witnesses and members of the Task Force. On February 27, 1997, the Task Force received testimony in executive session from Representatives James V. Hansen, Nancy L. Johnson, Steven Schiff, Lee Hamilton, David Dreier, Curt Weldon, and Sue Myrick. On March 4, 1997, the Task Force held a public hearing at which it received testimony from Jack Maskell, a Legislative Attorney at the Congressional Research Service; Norman Ornstein, Resident Scholar at the American Enterprise Institute for Public Policy Research; Gary Ruskin, Director of the Congressional Accountability Project; Meredith McGehee, Vice President of Legislative Policy at Common Cause; and David Mason, Senior Fellow at the Heritage Foundation. On March 5, 1997, the Task Force reconvened in executive session to receive testimony from Representatives Julian Dixon, Jim Bunning, Stephen Buyer, Lamar Smith, Christopher Shays, and Paul McHale. The Task Force also heard testimony from Jonathan S. Feld, a Washington, D.C. attorney who represented a respondent before the Committee during the 104th Congress. On March 6, 1997, the Task Force held its final hearing, at which it received testimony in executive session from James M. Cole, Special Counsel to the Standards Committee during the 104th Congress; J. Randolph Evans, counsel to a respondent before the Committee during the 104th Congress; and Edward Bethune, a former House Member who served as co-counsel with Mr. Evans to the same respondent. Following the completion of the hearings, the co-chairmen presented to the Task Force an outline of issues relating to the existing standards process to serve as a guide to the Task Force's deliberations.4 Task Force members supplemented the outline with additional issues throughout the deliberative process. --------------------------------------------------------------------------- \4\ The outline was organized into six topics: (1) structural reform; (2) access to the ethics process and the disposition of complaints; (3) grounds for initiating investigations and charging members with violations; (4) conduct of the investigation; (5) due process for respondents; and (6) the final disposition of ethics cases. --------------------------------------------------------------------------- Between March 12 and March 21, 1997, the Task Force met five times to discuss the various issues set forth in the outline presented to them by the co-chairmen. In order to facilitate a more candid exchange of views and proposals, the Task Force's deliberations occurred in executive session and were not recorded or transcribed. On April 8, 1997, the co-chairmen presented the Task Force with a draft Resolution for discussion. Based on the consensus reached during the Task Force's deliberations, the draft Resolution recommended several changes to the House rules regarding the existing House standards process, as well as significant changes to the rules of the Standards Committee. During the period of April 8 to April 23, 1997, the Task Force met seven times to consider and debate the draft Resolution.5 Task Force members offered numerous amendments to the draft Resolution. --------------------------------------------------------------------------- \5\ On April 11, 1997, the original moratorium on the filing of ethics complaints was extended by unanimous consent of the House until April 14, 1997. On April 14, 1997, the House again extended the moratorium by unanimous consent to May 2, 1997. These extensions were followed by further extensions to enable the Task Force to complete its debate of the draft Resolution and prepare a report to the House. --------------------------------------------------------------------------- On May 7, 1997, the co-chairmen presented Task Force members with a revised draft Resolution for their review. After further discussion, the Task Force voted unanimously to close the amendment process and schedule a final vote on the draft Resolution and its accompanying Report. The Task Force also agreed that any further amendment to the draft Resolution could occur only by a joint amendment offered by both co-chairmen. Thereafter, a draft Report to the House explaining the recommendations contained in the Resolution was prepared under the direction of the co-chairmen. On the evening of June 12, 1997, the staff began distributing the draft Report to Task Force members for their review. On June 17, 1997, the Task Force reconvened in executive session and voted to adopt the Resolution and accompanying Report. III. Summary of Recommendations The Task Force recommends the following changes to the Rules of the House and the Rules of the Standards Committee. It has grouped the description of these recommended changes under various objectives, the accomplishment of which it believes will ultimately improve the trust and confidence that the Members, and the American people, have in the House standards process. NonPartisan Operation of the Standards Committee The Standards Committee staff shall be nonpartisan, professional, and available as a resource to all Members of the Committee (Section 4). The ranking minority member shall have an equal opportunity to place matters on the Committee's agenda (Section 3). Confidentiality of the Standards Committee's Workings All Standards Committee meetings and proceedings (except adjudicatory and sanction hearings) shall occur in closed session, unless otherwise voted open by a majority of the Committee (Section 5). Members, as well as staff, shall take a confidentiality oath regarding matters learned while serving on the Standards Committee (Section 6). Roll call votes of the Standards Committee, or any subcommittee thereof, may be released only by a majority vote of the full Committee (Section 8). Respondent, and his counsel, shall execute a non- disclosure agreement regarding the content of any discovery material provided to them prior to the vote to adopt a Statement of Alleged Violation (``SAV'') (Section 16). The Standards Committee, by a two-thirds vote, may directly report any substantial evidence of a violation of the law to the appropriate state or federal authorities (Section 18). Improved System for Filing Information Offered As a Complaint The three-Member refusal rule shall be abolished as a prerequisite to ``direct'' filing by non-Members (Section 9). Non-Members shall be able to directly file information offered as a complaint upon the satisfaction of a ``personal knowledge'' requirement (Section 10). Non-Member filers who base information offered as a complaint exclusively upon newspaper articles shall not have the requisite ``personal knowledge'' (Section 10). Members who sponsor a non-Member's filing of information offered as a complaint shall certify that the complainant is acting in ``good faith'' and that the matter described in the filing warrants the attention of the Committee (Section 9). Efficient Administration of the Standards Committee Only the chairman and ranking minority member may conduct initial fact-gathering (Section 11). Subpoenas issued by an investigative subcommittee may be authorized and issued only by a majority vote of the members of the subcommittee (Section 15). The scope of a subcommittee's investigation may be expanded by a majority vote of the members of that subcommittee (Section 15). An investigative subcommittee may amend its SAV anytime prior to transmitting the SAV to the full Committee (Section 15). When an adjudicatory hearing is waived, the members of the Committee shall have at least 72 hours to review an SAV and the related subcommittee report, prior to voting to adopt sanctions or to adopt the subcommittee's report (Section 17). Due Process for Members, Officers, and Employees Respondents shall be provided a draft of the SAV, and all of the evidence the investigative subcommittee intends to introduce to prove it, prior to the subcommittee's vote to adopt the SAV (Section 16). Written notice shall be provided to the respondent of an unsuccessful vote to establish an investigative subcommittee (Section 16). Written notice shall be provided to the respondent that an investigative subcommittee has voted to authorize its first subpoena or take testimony under oath, whichever occurs first (Section 16). Statements or information derived solely from a respondent or his counsel during settlement discussions shall be treated as confidential, unless waived by the respondent (Section 16). Settlement agreements shall be in writing, unless the respondent requests otherwise (Section 16). The investigative subcommittee shall provide the respondent a draft of its report at least 15 days prior to its adoption and the opportunity to submit views for attachment or inclusion therewith to the full Committee (Section 17). Written notice shall be given to the respondent of any expansion of the scope of the investigation by an investigative subcommittee (Section 16). The evidentiary standard to vote an SAV against a respondent shall be increased from ``reason to believe'' to a ``substantial reason to believe'' a violation has occurred (Section 16). Greater Involvement by Members in the Process A twenty-person ``pool'' of members (ten Republicans and ten Democrats) shall be created to supplement the Standards Committee membership as potential appointees to investigative subcommittees (Section 1). The maximum service on the Committee shall be decreased from six years to four years during any period of three successive Congresses (Section 2). No fewer than four members shall be rotated off of the Committee at the end of each Congress (Section 2). Timely Resolution of Matters Before the Standards Committee The chairman and ranking minority member shall determine whether information offered as a complaint constitutes a complaint within 14 calendar days or 5 legislative days (Section 11). The time for informal fact-gathering by the chairman and ranking minority member shall be limited (Section 11). The chairman and ranking minority member may recommend the resolution of a matter to the full Committee in any manner that does not require action by the House (Section 11). IV. Section-by-Section Analysis section 1. use of non-committee members The first issue the Task Force considered was whether the current standards process should be restructured by utilizing persons other than members of the Standards Committee to comprise investigative and adjudicatory subcommittees. The Task Force heard testimony from several witnesses who proposed that distinguished private citizens--such as retired judges and former House members--should supplement or replace House Members in the fact-finding and other functions currently performed only by members of the Standards Committee. Alternatively, the Task Force considered proposals to augment the limited resources of Committee members with non-Committee Members of the House. Witnesses favoring the inclusion of private citizens to investigate and judge ethics cases commented that the participation of such ``outsiders'' would enhance public trust and confidence in the standards process by mitigating the perception that House Members face an inherent conflict of interest when they judge their fellow Members. Others maintained that reliance on private citizens would minimize the possibility that political partisanship might affect the disposition of ethics cases. The Task Force opted to forego the recommendations that non-House Members participate in disposing of misconduct allegations. Task Force Members were concerned with the explicit Constitutional responsibility of the House. They expressed the view that House Members better understand the rules, customs, and practices of the House, and they expressed the strong preference that House Members accused of misconduct be judged by their peers. However, the Task Force recognized the need to broaden the group of potential investigators beyond the Standards Committee membership. Therefore, the Task Force adopted the recommendation that a bipartisan reserve ``pool'' of House Members be established to serve on investigative subcommittees as designated. Section 1 of the Task Force Resolution amends current House Rules to establish procedures for the designation of non- Committee House Members to perform investigative functions currently performed only by Committee members. At the beginning of each Congress, the Speaker and minority leader (or their designees) each will designate 10 members from their respective parties, who are not currently members of the Standards Committee for potential service on an investigative subcommittee. Whether such non-Committee Members actually will be designated to serve will depend on the investigative demands confronting the Committee and the workload of Committee members. Whenever the Committee chairman and ranking minority member jointly determine that designated ``pool'' Members should be assigned to serve on an investigative subcommittee of the Committee, an equal number of members from the respective political parties will be designated from the ``pool'' to serve on the subcommittee. Service on the subcommittee by ``pool'' Members will not count against the limitation on subcommittee service contained in clause 6(b)(2)(A) of House Rule X, which prohibits Members from serving simultaneously on more than four subcommittees of the standing committees of the House. Under this new process, an investigative subcommittee could consist exclusively of designated non-Committee Members. Because Committee members may be expected to have greater familiarity with applicable rules and precedent, however, the Task Force recommends that subcommittees to which non-Committee Members are appointed be divided evenly between Committee members and designated non-Committee Members. Preserving thisbalance will help to ensure consistency and predictability in the application of House and Committee rules and precedent. Designated House Members selected for service in the ``pool'' will serve only on one investigative subcommittee during each Congress, and that assignment may continue into a successive Congress. In order to ensure consistency between and within Congresses as to Standards Committee rulings and judgements, adjudicatory proceedings and sanction hearings will continue to be conducted solely by Committee members. The Task Force believes that establishing a reserve pool of Members to assist in ethics investigations will improve the current system in two ways. First, the onerous time burdens shouldered by Committee members will be alleviated, particularly in the event that several investigations are occurring simultaneously. Second, the inclusion of non- Committee Members in the investigative process may help to educate Members at large about applicable rules and laws governing the conduct of Members, and facilitate greater understanding within the House of the unique challenges confronted by members of the Standards Committee. The Task Force reiterates its support for the continuation of the bifurcation system 6 based on the importance of avoiding prejudgment of information filed as a complaint. Bifurcation creates a ``firewall'' between the Committee functions of investigation and adjudication, ensuring that Committee members who charge a respondent with a violation do not also participate in a judgment of whether liability has been established. It also allocates responsibility within the Committee so that the review of information offered as a complaint is less time-consuming for members of the Committee and is consistent with the confidentiality imposed on the complaint process. For these reasons, the Task Force encourages Committee members to protect the integrity of the ``firewall'' to the greatest degree possible. --------------------------------------------------------------------------- \6\ The Ethics Reform Act of 1989 established a ``bifurcation'' of the investigation and adjudication of ethics complaints before the Standards Committee. --------------------------------------------------------------------------- section 2. duration of service on the committee on standards of official conduct The Task Force Resolution shortens the duration of service for members of the Standards Committee. Under current House Rules,7 House Members may serve up to six years on the Committee in any period of five successive Congresses (i.e., during a ten-year period). In recent years, Committee members regularly served terms of six consecutive years. As time demands and other unique pressures confronting Committee members grew, service on the Committee became more burdensome, often at the expense of Committee members' work on legislative matters. --------------------------------------------------------------------------- \7\ House Rule X, clause 6(a)(2). --------------------------------------------------------------------------- Section 2 reduces from six to four years the maximum amount of service on the Committee during any period of three successive Congresses (i.e., during a six-year period). In order to take advantage of the experience gained by Committee members after service for four years, the Task Force concluded that Committee members who already have served four years may extend their service by a maximum of two additional years to serve as chairman or ranking minority member. Section 2 also specifies that not less than four members of the Committee--two from each political party--must rotate off the Committee at the end of each Congress. Current House rules impose only a six-year limitation on Committee service, without requiring rotations off the Committee at the end of each Congress. The new rule will ensure the orderly, systematic turnover on the Committee, while ensuring that the Committee retains experienced Members. section 3. committee agendas One of the principal goals of the Task Force was to identify ways to enhance the bipartisan nature of the Committee. One way to promote this goal is by ensuring that the majority and minority are provided with equal opportunity to place matters on the Committee's agenda. Under current House and Committee rules, the authority of the chairman to set the agenda of the Committee is implicit in his authority to call meetings of the Committee. Although the administration of the Committee historically has been characterized by bipartisan collegiality, the rules have not assured the right of the ranking minority member to place items on the agenda. Section 3 institutionalizes a bipartisan approach to setting the Committee's agenda. While it requires the Committee to establish rules providing that the chairman establish the agenda for Committee meetings, it allows the ranking minority member to place any item on the agenda. section 4. committee staff In order for the Standards Committee to function effectively, its professional staff must operate in a completely nonpartisan manner, and each member of the staff must have the trust and confidence of all Committee members. A nonpartisan staff is also essential to engendering confidence, both within and outside the House, in the impartiality of the Committee as a whole. Unlike the rules of the Senate Select Committee on Ethics, current Standards Committee rules are silent on the subject of hiring Committee staff and the importance of a nonpartisan staff. Clause 6(a)(1) of House Rule XI provides only that each standing committee of the House may appoint professional staff members by a majority vote of the committee (i.e., a majority of a quorum). In addition, House and Committee rules are silent concerning the hiring of outside counsel. Section 4 of the Task Force Resolution requires the Committee to adopt rules governing the hiring and conduct of professional staff. Modeled on rules of the Senate Select Committee on Ethics, Section 4 requires that the Committee staff be assembled and retained as a professional, nonpartisan staff, and that all staff members must be appointed by an affirmative vote of a majority of the members of the Committee, thereby ensuring that each hiring decision has bipartisan support. In what constitutes a grant of new authority, Section 4 of the Task Force Resolution permits the Committee chairman and ranking minority member to each appoint one individual as a shared staff member from his personal staff to perform service for the Committee. Such shared staff may work on an investigative subcommittee only if the chairman or ranking minority member for whom the shared staffer works has assigned himself to that subcommittee. To afford the Committee additional flexibility in circumstances where work demands may exceed current staff capacity, Section 4 also authorizes the Committee to retain staff members for the purpose of a particular investigation or other proceeding, provided that such staff is retained only for the duration of that particular investigation or other proceeding. The rules to be adopted by the Committee must state explicitly that each member of the professional staff, including shared staff, shall perform all official duties in a nonpartisan manner. To enhance the appearance of impartiality, the rules also prohibit Committee staff (but not shared staff) from engaging in any partisan political activity that directly affects any congressional or presidential election. Thus, Committee staff (in contrast to other House employees) would be prohibited from working on a Federal election campaign, even on a volunteer basis. In addition, Committee staff (but not shared staff) would be prohibited from making financial contributions to campaign committees, political action committees, and national party organizations (i.e., ``soft money'' contributions). Section 4 establishes a clear and flexible framework for the hiring of outside counsel. It provides that the Committee (subject to funding approval by the Committee on House Oversight) may retain counsel not employed by the House of Representatives whenever the Committee determines, by an affirmative vote of a majority of its members, that the retention of such counsel is ``necessary and appropriate.'' Thus, the hiring of any outside counsel may occur only by means of a bipartisan vote of the Committee. Similarly, outside counsel may be dismissed only by an affirmative vote of a majority of the members of the Committee. Section 4 also imposes new restrictions on professional Committee staff, shared staff, and outside counsel to enhance the confidentiality of the Committee's work. It provides that no member of the staff or outside counsel may accept public speaking engagements or write for any publication on any subject that is in any way related to his employment or duties with the Committee without specific prior approval from the chairman and ranking minority member. In addition, no member of the staff or outside counsel may make public, without Committee approval, any information, document, or other material that is confidential, derived from executive session, classified, or that is obtained during the course of employment with the Committee. Section 5. Meetings and Hearings Another important goal of the Task Force was to enhance the confidentiality of sensitive Committee operations and deliberations. One area where the Task Force was able to achieve this objective concerns Committee meetings and hearings. Under clause 2(g)(1) of current House Rule XI, each Committee or subcommittee meeting to transact business must be open to the public unless the Committee or subcommittee, in open session, votes to close the meeting to the public. Under clause 2(g)(2) of House Rule XI, each hearing conducted by a House Committee or subcommittee must be open to the public unless the Committee or subcommittee, in open session and with a majority present, votes to close all or part of the hearing to the public. Consequently, under current House Rules, meetings of the Standards Committee at which sensitive matters may be discussed, as well as meetings of investigative subcommittees, are open unless voted closed. Motions to close an otherwise open meeting or hearing may prevail on the basis of a simple majority vote, a quorum being present. The Task Force determined that existing rules should be changed to provide for greater confidentiality, while ensuring that the Standards Committee or a subcommittee thereof retains the necessary flexibility to close or open meetings or hearings. Section 5 of the Task Force Resolution amends clause 4(e)(3) of House Rule X to require that any meeting of the Standards Committee or any subcommittee thereof, must occur in executive session unless the Committee or subcommittee, by an affirmative vote of a majority of its members, opens the meeting to the public. Conversely, any hearing held by an adjudicatory subcommittee, or any sanction hearing conducted by the full Committee, must be open to the public unless the Committee, by an affirmative vote of a majority of its members, closes the hearing to the public. In both cases, the votes required under Section 5 of the Resolution are more demanding than under current rules, which require only a majority of a quorum to reverse the standard procedure. section 6. confidentiality oaths Ensuring the confidentiality of Standards Committee deliberations and matters pending before the Committee is essential to protect the rights of individuals accused of misconduct, preserve the integrity of the investigative process, and cultivate collegiality among Committee members. Section 6 of the Task Force Resolution amends Clause 4(e) of House Rule X to require Committee members and staff--including shared staff and House Members designated as a ``pool'' of members--to execute a confidentiality oath before they have access to information that is confidential under Committee rules. The text of the proposed oath is as follows: ``I do solemnly swear (or affirm) that I will not disclose, to any person or entity outside the Committee on Standards of Official Conduct, any information received in the course of my service with the committee, except as authorized by the Committee or in accordance with its rules.'' To underscore the seriousness with which the Task Force views this confidentiality oath, Section 6 of the Resolution states that the requirement of the oath ``establishes a standard of conduct'' within the meaning of clause 4(e)(1)(B) of House Rule X. Section 6 also provides that breaches of confidentiality shall be investigated by the Standards Committee, and that appropriate action shall be taken. Thus, a proven violation of the confidentiality oath by a member or employee of the Committee would be a violation of House rules. Section 7. Public Disclosure Circumstances may develop when it is necessary and appropriate for the chairman or ranking minority member of the Standards Committee to comment publicly on matters before the Committee. It may be appropriate, for example, to respond to misinformation about actions taken by the Committee, the status of matters before the Committee, or unauthorized press accounts of investigations. Current Standards Committee rules prohibit the chairman and ranking minority member from making public statements about matters before the Committee, unless authorized by the Committee. Committee Rule 10(b) states that Members and staff of the Committee shall not disclose to any person or organization outside the Committee, unless authorized by the Committee, any information regarding the Committee's or a subcommittee's investigative, adjudicatory or other proceedings, including, but not limited to: (i) the fact or nature of any complaints; (ii) executive session proceedings; (iii) information pertaining to or copies of any Committee or subcommittee report, study, or other document which purports to express the views, findings, conclusions, or recommendations of the Committee or subcommittee in connection with any of its activities or proceedings; or (iv) the conduct of a Member, officer, or employee. (Emphasis added.) Similarly, Committee Rule 9 prohibits Committee members and staff from disclosing ``any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee * * * .'' Section 7 of the Task Force Resolution requires the Standards Committee to modify its rules to accord discretion to the chairman and ranking minority member to make public statements, while preserving the authority of the full Committee to limit or prohibit such statements. Under the rule change required by this section, either the Committee chairman or ranking minority member may make public statements regarding matters before the Committee or any subcommittee thereof, provided that the chairman or ranking minority member seeking to make a public statement first consults the other. The recommended rule change does not require prior agreement between the Committee chairman and ranking minority member before one or the other makes a public statement. Rather, the proposed rule requires only prior consultation. In addition, joint public statements or appearances are not required, although they are strongly encouraged. Either the chairman or ranking minority member is free to issue his own public statement, provided the requirement of prior consultation has been satisfied. The Task Force stresses that the chairman and ranking minority member, in exercising this authority, shall use caution so as not to compromise the confidentiality of matters pending before the Committee. The Task Force recognizes than an investigative subcommittee may desire to issue a public statement concerning a matter under investigation. In that event, the subcommittee may not issue a public statement unilaterally. Rather, it must transmit a proposed public statement in writing to the full Committee chairman and ranking minority member, who, in their discretion, may release the statement under the procedures discussed above. However, in that circumstance, the Task Force recommends that such statements only be made jointly by the chairman and ranking minority member. Section 8. Confidentiality of Committee Votes The Task Force concluded that the confidentiality of Committee proceedings also could be enhanced by amendments to House rules governing public access to information concerning roll call votes of standing committees. Under clause 2(e)(1) of House Rule XI, each committee must make available for public inspection the records of any roll call vote. Information available for public inspection pursuant to clause 2(e)(1) must include ``a description of the amendment, motion, order, other proposition and the name of each Member voting for and each Member voting against such amendment, motion, order orproposition, and the names of those Members present but not voting.'' Similarly, clause 2(l)(2)(B) of House Rule XI provides that ``with respect to each roll call vote on a motion to report any measure or matter of a public character, and on any amendment offered to the measure or matter, the total number of votes cast for and against, and the names of those members voting for and against, shall be included in the Committee report on the measure or matter.'' Neither clause of House Rule XI contains any exemption for votes occurring in executive session. Section 8 of the Task Force Resolution exempts the Committee on Standards of Official Conduct from the reporting requirement contained in clause 2(l)(2)(B) of House Rule XI. It also prohibits the Committee from providing public access to the results of roll call votes, as otherwise required by clause 2(e)(1) of House Rule XI, without an affirmative vote of a majority of the members of the Committee. Section 9. Filings By Non-Members of Information Offered As a Complaint Among the issues most extensively debated by the Task Force were possible amendments to the current House Rules regarding the filing by non-Members of information offered as a complaint with the Standards Committee. The current House rule provides two methods by which a non-Member can file information offered as a complaint. Under clause 4(e)(2)(B) of House Rule X, an individual who is not a Member of the House may submit information offered as a complaint ``directly'' with the Standards Committee only if at least three House Members previously have refused in writing to transmit the complaint to the Committee. A non-Member may also file information offered as a complaint indirectly if a Member of the House transmits information from the non-Member to the Committee. The rules regarding such a transmittal, however, do not presently require the Member to certify either the ``good faith'' of the complainant or the Member's assessment that the allegations warrant the Committee's attention. The Task Force concluded that the two present methods for non-Member filing needed modification in order to enhance public confidence in the House standards process and increase Member accountability in the situation where a Member sponsors a non-Member's information offered as a complaint. With regard to ``direct'' filing by non-Members, the Task Force recommends the elimination of the ``three-refusal'' rule as a precondition to ``direct'' filing. The Task Force found that conditioning access by non-Members to the complaint procedures of the Standards Committee on the refusal of Members to transmit a complaint to the Committee has not worked as intended. The refusal of three Members to transmit to the Committee information offered as a complaint by a non-Member should indicate that the information does not merit serious examination by the Committee. The Task Force also concluded that, in recent years, the ``three-refusal'' rule has been used increasingly by Members as a device to support complaints originated by non-Members. The Task Force accordingly recommends that the ``three- refusal'' rule be abolished. In its place, the Task Force recommends a system of actual direct filing by non-Members who can satisfy requirements (the ``personal knowledge test'') which are specified in Section 10 of the Resolution, as well as those requirements presently required for filing a complaint under current rules. By ``opening up'' the procedures for submitting information offered as a complaint to the Committee, the Task Force believes it will engender greater public confidence in the standards process and ameliorate the perception that the standards process is designed to insulate House Members from legitimate allegations of misconduct by outsiders. With regard to indirect filing, the Task Force recommends strengthening the current transmittal method by proposing a new ``sponsorship'' system, whereby the Member certifies to the Standards Committee his belief that the complainant is acting in ``good faith'' and that the allegations the non-Member is transmitting warrant the review and consideration of the Committee. In this situation, however, the information offered as a complaint by the non-Member need not meet the new ``personal knowledge'' test for non-Members seeking to file directly with the Standards Committee.8 --------------------------------------------------------------------------- \8\ In order to constitute a properly filed complaint, the information transmitted must be under oath and meet other threshold requirements specified in Committee rules. --------------------------------------------------------------------------- Section 10. Requirements to Constitute a Complaint In recommending the elimination of the ``three-refusal'' rule, the Task Force recognizes the need to set different standards to protect the system against potential abuse by those over whom the Standards Committee has no jurisdiction. Section 10 of the Task Force Resolution sets forth new requirements that non-Members filing directly with the Committee must satisfy in order for information offered as a complaint to be accorded the status of a properly filed complaint. These requirements, representing the Task Force's best effort to achieve a consensus with regard to direct non- Member filing, are embodied in a ``personal knowledge'' requirement which excludes filings based exclusively on newspaper stories. A non-Member directly filing information offered as a complaint with the Standards Committee must satisfy one of two requirements in order to meet the requirements of a properly filed complaint. The individual must either have ``personal knowledge'' of the conduct which is the basis of the violation alleged in the information, or base the information offered as a complaint upon information received from another individual whom the complainant has ``a good faith reason to believe has personal knowledge of such conduct.'' Alternatively, the complainant may base the information offered as a complaint on his personal review of documents, photographs, films, videotapes, or recordings that contain information regarding the conduct which is the basis of a violation alleged in the information offered as a complaint. Any documents relied on by the complainant must be documents kept in the ordinary course of business, government, or personal affairs. Such documents may include documents obtained from Federal, State, or local governments, records kept in the course of a regularly conducted business activity,9 or regularly maintained personal records such as a checkbook or diary. --------------------------------------------------------------------------- \9\ The Task Force intends that the type of business records referred to in the Resolution be similar to the type admissible as hearsay pursuant to Rule 803(6) of the Federal Rules of Evidence. Items admissible under Rule 803(6) consist of ``[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation * * *. The term `business' as used in this [rule] includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.'' For purposes of determining whether the information offered as complaint meets the requirements of Committee rules for what constitutes a complaint, the Committee would not be required to authenticate business records on which the allegations were based by means of testimony of the record custodian or other qualified witness, as would be required of the party offering such evidence in a Federal judicial proceeding. --------------------------------------------------------------------------- As defined by the Task Force, the ``personal knowledge'' test will impose a significant, but reasonable, threshold requirement upon non-Member complainants. Under Section 10 of the Resolution, a complainant or an individual from whom the complainant obtains information will be found to have personal knowledge of conduct which is the basis of the alleged violation if the complainant or that individual ``witnessed or was a participant in such conduct * * *.'' Thus, the non-Member filer may base information offered as a complaint either upon his own personal knowledge or upon first-degree hearsay, provided that the filer has a good faith reason to believe that the source of his information actually witnessed or was a participant in the conduct which is the basis of the alleged violation. Second-degree hearsay--where the complainant's source received the information in question from a third party--would not suffice. Moreover, Section 10 specifically provides that a non- Member lacks the requisite ``personal knowledge'' if the information he offers as a complaint consists solely of information contained in a news or opinion source or publication, even if the filer believes it to be true. Such information, however, can still be an exclusive basis for information offered as a complaint by a non-Member if it is sponsored by a Member who certifies in writing that he believes the information is submitted in good faith and warrants the review and consideration of the Standards Committee. As under current rules, a Member may personally file information offered as a complaint based exclusively upon a newspaper article, and the Committee may self-initiate an investigation based on news reports or similar matter. Finally, one of the leading concerns about the standards process expressed by Task Force members, and others, is the length of time used to resolve allegations of misconduct. There is a perception, both within and outside of the House, that the Standards Committee is sometimes faced with endless delays or periods of unexplained, noninvestigatory, inaction. To minimize such delay and inactivity in assessing whether there is initial compliance with the requirements for constituting a complaint, the Task Force recommends the establishment of a deadline for that determination. Subsection (b) of Section 10 of the Task Force Resolution directs the Standards Committee to amend its rules regarding complaints to provide that whenever information offered as a complaint is submitted to the Committee, the chairman and ranking minority member shall have 14 calendar days or 5 legislative days,whichever occurs first, to determine whether the information meets the requirements of what constitutes a complaint under the Committee's rules. The Task Force intends that the determination of whether information submitted to the Standards Committee constitutes a properly filed complaint will be made jointly by the chairman and ranking minority member. If the chairman and ranking minority member agree that it does not meet the requirements for a complaint, they are not obligated to take any further action on the matter except to notify the appropriate parties pursuant to current Committee rules.10 If they disagree over whether information offered as a complaint meets the requirements to constitute a complaint, either may submit the matter to the full Committee for resolution. In that situation, if the Committee, by an affirmative vote by a majority of its members, finds that the information submitted to the Committee meets the requirements of a properly filed complaint, the Committee may proceed to exercise any of the options available for the disposition of a complaint. If the Committee is deadlocked on the threshold procedural issue, the information submitted to the Committee as a complaint may not be accorded the status of a complaint. --------------------------------------------------------------------------- \10\ The process which occurs when the chairman and ranking minority member agree that the information submitted does constitute a complaint is described in Section 11 below. --------------------------------------------------------------------------- Section 11. Duties of Chairman and Ranking Minority Member Regarding Properly Filed Complaints Task Force members agreed that information deemed to constitute a proper complaint, whether by the chairman and ranking member, acting jointly, or by a majority vote of the full Standards Committee, should not remain pending before the full Standards Committee for an indeterminate period of time. For reasons similar to those explained above regarding the establishment of a deadline in which to determine whether information offered as a complaint meets the procedural requirements under the rules, the Task Force decided it would be appropriate to assign a deadline either for disposing of a properly filed complaint or submitting it to an investigative subcommittee. Task Force members also agreed that the chairman and ranking minority member, but not the full Committee, should have the discretion to engage in informal fact-gathering in order to make an informed judgment about how to dispose of a complaint. Under current Standards Committee rules, the scope of informal fact-gathering is limited. The chairman and ranking minority member may direct staff only to ``request information from the respondent prior to the consideration of a Resolution of Preliminary Inquiry.'' 11 Despite this limitation, the full Committee often has conducted fact- gathering. The Task Force decided to codify rules regarding fact gathering at the full Committee level to ensure that the chairman and ranking minority member have sufficient information to make a recommendation. In addition, the Task Force believes that such clarification will help to ensure that the bifurcation system is not compromised. --------------------------------------------------------------------------- \11\ See Standards Committee Rule 15(d). --------------------------------------------------------------------------- As discussed earlier in Section 1, the bifurcation system was created to ensure that the investigatory phase and the adjudicatory phase of the standards process are kept completely separate, much like a grand jury is kept separate from the trial jury. Therefore, it is imperative that those Committee members sitting on an adjudicatory subcommittee not participate in the investigation of a complaint, including initial fact- gathering. Although the chairman and the ranking minority member may sit on an adjudicatory subcommittee, by limiting the initial fact-gathering to only those two Members and by limiting the initial fact gathering only to information that is necessary to determine how to initially dispose of the complaint, the Task Force believes that the bifurcation system can be preserved. Therefore, under Section 11, whenever the chairman and ranking minority member of the Standards Committee jointly determine that information offered as a complaint meets the requirements of the Committee's rules for what constitutes a complaint, they must take action regarding the complaint within 45 calendar days or 5 legislative days, whichever is later. During that period, the chairman and ranking minority member may jointly gather additional information concerning the alleged conduct which is the basis of the complaint. Fact- gathering by the chairman and ranking minority member would be informal and limited during this preliminary period to information necessary for them to ascertain whether to make a recommendation to the Committee that the complaint be disposed of in a manner that does not require action by the House, or that an investigative subcommittee be established to investigate counts within the complaint. The Task Force intends that the chairman and ranking minority member will not seek to issue subpoenas, and that any fact-gathering will be limited to unsworn witness interviews and requests for the voluntary production of documents. The Task Force also intends that such fact-gathering will be carried out only by the chairman and ranking minority member and such Committee staff as they may assign to the matter, rather than by the full Committee. By the end of the requisite time period, the chairman and ranking minority member must take one of three actions, unless the Committee, by an affirmative vote of a majority of its members, votes otherwise. First, the chairman and ranking minority member may recommend to the Committee that it dispose of the complaint (or any portion thereof) in any manner that does not require action by the House. For example, they may recommend that the Committee dismiss the complaint or resolve it by means of a letter to the respondent.The ultimate decision regarding how to dispose of the complaint would remain vested in the full Committee. Second, if the chairman and ranking minority member agree that the complaint (or any portion thereof) should be forwarded to an investigative subcommittee, they may jointly establish an investigative subcommittee without submitting that question to a vote by the full Committee. In that regard, the Task Force recommends the elimination of the current threshold for the establishment of an investigative subcommittee, whereby the full Committee, by an affirmative vote of a majority of its members, must first determine that allegations ``merit further inquiry.'' In addition, the full Committee no longer would be required to adopt a ``Resolution of Preliminary Inquiry,'' as presently required by Committee rules, 12 to specify the scope of an investigative subcommittee's investigation. By eliminating the standard of ``merits further inquiry'' and the need to adopt a Resolution of Preliminary Inquiry, the Task Force intends that no undue inference be drawn from the establishment of an investigative subcommittee. The Task Force intends, additionally, that the chairman and ranking minority member specify in writing to the chairman and ranking minority member of the investigative subcommittee those counts or allegations within the complaint that should be investigated. --------------------------------------------------------------------------- \12\ See Standards Committee Rule 15(f). --------------------------------------------------------------------------- Third, because the Task Force recognizes that it may prove difficult in some cases to complete informal fact-gathering within the specified period of 45 calendar days or 5 legislative days, particularly if the chairman and ranking minority member are awaiting the production of documents, Section 11 also authorizes the chairman and ranking minority member to request that the Committee extend the original time period by one additional period of 45 calendar days if the chairman and ranking minority member determine that more time is necessary in order to make a recommendation to the Committee about how to dispose of the complaint. To minimize delay, only one such extension is permitted under the proposed rules. Subsections (c) and (d) of Section 11 address the circumstance in which the chairman and ranking minority member have jointly determined that information submitted to the Standards Committee meets the requirements for what constitutes a complaint, but the complaint is not disposed of within the requisite period of 45 calendar days or 5 legislative days (or an extension of that period) and an investigative subcommittee has not been established. In that event, the chairman and ranking minority member must establish an investigative subcommittee and forward the complaint, or any portion thereof, to that subcommittee for its consideration. 13 As indicated above, neither the chairman and ranking minority member, nor the full Committee, would be required to make a threshold determination that the complaint ``merits further inquiry,'' or adopt a Resolution of Preliminary Inquiry. --------------------------------------------------------------------------- \13\ The Task Force notes that this procedure and its related timetables apply only in the situation where a properly filed complaint is before the Committee. Neither the chairman nor ranking minority member, nor the Committee, would be required to take any particular action, or be prohibited from taking any particular action, in the situation where the Committee was determining whether to self-initiate an investigation. Even in that instance, however, the Task Force recommends that any preliminary fact-gathering be conducted by the chairman and ranking minority member (rather than by the full Committee), and that more formal investigative activity (e.g., subpoenas, depositions, and affidavits) be undertaken only by an investigative subcommittee. --------------------------------------------------------------------------- Automatic transmittal of the complaint to a subcommittee could not occur, however, if either the chairman or ranking minority member, at any time during the above-specified time period, placed on the Committee's agenda the issue of whether to establish aninvestigative subcommittee concerning the complaint. Such action would be taken if, for example, the chairman or ranking minority member disagreed about whether a given complaint should be forwarded to an investigative subcommittee and one of them desired a vote on that question by the full Committee. Once that issue is placed on the Committee's agenda, the ``45-day period'' stops, and an investigative subcommittee may be established only by an affirmative vote of a majority of the members of the Committee. In addition, any fact-finding by the chairman and ranking minority member also must cease upon the placing of that issue on the agenda, and no further fact-gathering may occur, unless the Committee, by an affirmative vote of a majority of its members, establishes an investigative subcommittee.14 --------------------------------------------------------------------------- \14\ When voting to establish an investigative subcommittee the Committee will not have to determine whether the complaint (or any portion thereof) ``merits further inquiry'' or adopt a Resolution of Preliminary Inquiry. --------------------------------------------------------------------------- The Task Force stresses that merely placing the complaint on the Committee's agenda for the purpose of general discussion or debate will not impede the transmittal of the complaint to an investigative subcommittee. For example, a complaint may be placed on the agenda to dismiss one of the counts contained in the complaint. Rather, the chairman or ranking minority member will have to place on the agenda the specific issue of whether to establish an investigative subcommittee regarding the complaint in order to stop the progression of the ``45-day period.'' The Task Force expects that in the vast majority of cases, the chairman and ranking minority member will agree on how to dispose of a complaint, and will make a joint recommendation to the full Committee. Because of the procedural consequences that result from placement on the Committee agenda of the issue of whether to establish an investigative subcommittee, the Task Force expects that such action by the chairman or ranking minority member will be viewed as the option of last resort. The Task Force includes this provision in the Resolution to avoid the possibility that a complaint against a House Member may be sent to an investigative subcommittee in the absence of a consensus between the chairman and ranking minority member, or a majority of the members of the full Committee, that such an investigation is necessary and appropriate. The Committee has never been faced with a situation in which a complaint was sent to an investigative subcommittee and the subcommittee was unable to dispose of the complaint because of any deadlock. Subcommittees, by virtue of their size, tend to find collegial methods to resolve any differences. Nevertheless, the Task Force reviewed the deadlock issue because of its desire to avoid such an occurrence. The Task Force considered a number of proposals to address a potential subcommittee deadlock, including: time limits, hiring special counsel, and full Committee review. The Task Force rejected placing time limits on the subcommittee, believing that they could encourage deadlock. In addition, the Task Force determined that automatically triggering the hiring of special counsel would encourage deadlock. Furthermore, the Task Force rejected full Committee review of the complaint for fear that such a review would compromise the bifurcated process. The Task Force has a strong desire to have all complaints dealt with fairly yet expeditiously. The Task Force stresses that the subcommittee should make all possible efforts to resolve any differences and move the complaint towards disposal. However, if an investigative subcommittee determines that it is unable to dispose of a complaint referred to it, the Task Force recommends that the subcommittee report its inability to do so to the full Committee. The Task Force further recommends that the Committee take whatever action itdeems appropriate in that circumstance, including the establishment of a new investigative subcommittee or the appointment of a special counsel. Should the Committee appoint a new subcommittee to consider the complaint, those members of the original subcommittee would be prohibited from serving on an adjudicatory committee for that same complaint. Section 12. Duties of Chairman and Ranking Minority Member Regarding Information Not Constituting a Complaint Although the Task Force focused predominantly on how the Committee should dispose of information deemed to meet the requirements of a complaint, it also addressed what steps should be taken if such information is determined not to constitute a complaint. The Task Force reviewed the issue of submissions of information either offered as a complaint or offered merely for informational purposes. Section 12 states that if the chairman and ranking minority member jointly determine that information offered as a complaint does not meet the requirements of what constitutes a complaint, as set forth in the Committee's rules, they may return the information to the complainant with a statement that it fails to meet the requirements of what constitutes a complaint. Although not mandatory, the Task Force expects that most filings offered as a complaint which are procedurally deficient will result in letters from the Committee to the complainant advising the complainant that the filing did not meet the requirements of a complaint consistent with current Standards Committee rules.15 Alternatively, the chairman and ranking minority member may recommend to the Committee that it authorize the establishment of an investigative subcommittee, consistent with the Committee's long-standing discretionary authority to self-initiate investigations. --------------------------------------------------------------------------- \15\ Under Standards Committee Rule 15(b), if a complaint filed with the Standards Committee is deemed to be procedurally deficient, the Committee must return the complaint to the complainant with a copy of House and Committee rules ``and a statement specifying why the complaint is not in compliance. The respondent shall be notified when a complaint is returned and provided the reasons therefor.'' (Emphasis added.) --------------------------------------------------------------------------- Any determination by the chairman and ranking minority member that information offered to the Committee as a complaint did not meet the requirements for what constitutes a complaint would be without prejudice to whether the information later could be resubmitted to the Committee for consideration as a complaint. With regard to submissions of information offered merely for informational purposes, the Task Force intends for the Committee to accept such information even though the Committee is not obligated to act on that information. The Task Force understands that there are situations where a Member or non- Member purposely forwards information to the Committee in a less formal manner than those required in the House and Committee rules. The Task Force recognizes the desire of some individuals to forward information to the Committee without imposing requirements on the Committee to act, and recommends that the Committee consider such information on its merits. The Task Force acknowledges that the Committee will retain discretion as to whether investigative action is warranted. Section 13. Investigative and Adjudicatory Subcommittees There was consensus among Task Force members that the Standards Committee functions more effectively and efficiently with fewer members. The Task Force therefore recommends that the Committee henceforth be comprised of ten Members, rather than the fourteen Members as required by Section 803(b) of the Ethics Reform Act of 1989.16 The Task Force concluded that a smaller Committee will help to facilitate consensus and decision-making within the Committee. --------------------------------------------------------------------------- \16\ Pub. L. No. 101-194, Nov. 30, 1989. --------------------------------------------------------------------------- Based on the conclusion that the full Committee will consist of ten members, Section 13 of the Task Force Resolution directs the Committee to amend its rules concerning the size of investigative and adjudicatory subcommittees. Under current Committee rules, an investigative subcommittee may consist of four or six members. Consistent with the objective of creating smaller working groups, and of reducing the workload of Members, Section 13 specifically limits investigative subcommittees to four Members (with equal representation from the majority and minority parties). Investigative subcommittees may consist of four full Committee members, four non-Committee House Members selected from the ``pool'' provided for in Section 1 of the Task Force Resolution, or they may contain a combination of two full Committee members and two ``pool'' Members. Section 13 also provides that adjudicatory subcommittees shall consist of the remaining members of the Committee who did not serve on the investigative subcommittee (i.e., six to ten members). In order to promote greater flexibility, and to accommodate any unexpected assignment issues arising out of the newly created Member ``pool'' system, the Task Force recommends that Committee rules be amended regarding the selection of a chairman and ranking minority member appointed to investigative and adjudicatory subcommittees. Under current Committee rules,17 the senior majority and minority members of an investigative subcommittee must serve as the chairman and ranking minority member of the subcommittee. Committee rules also currently provide that the chairman and ranking minority member of the full Committee must serve as the chairman and ranking minority member of an adjudicatory subcommittee.18 --------------------------------------------------------------------------- \17\ See Standards Committee Rule 6(a). \18\ See Standards Committee Rule 19(a). --------------------------------------------------------------------------- Section 13 vests discretion in the full Committee chairman and ranking minority member regarding the designation of a chairman and ranking minority member for investigative and adjudicatory subcommittees. It provides that at the time of appointment, the chairman of the full Committee must designate one member of the subcommittee to serve as chairman, and the ranking minority member of the full Committee must designate one member of the subcommittee to serve as the ranking minority member, of investigative and adjudicatory subcommittees. Thus, the appointment of a subcommittee chairman and ranking minority member no longer would be based on seniority. To preserve the integrity of the bifurcation system, the Task Force also recommends changes to the Standards Committee rules regarding the role of the full Committee chairman and ranking minority member when they serve on investigative subcommittees. Under current Committee Rule 6(a), the full Committee chairman and ranking minority member may serve on an investigative subcommittee as non-voting, ex officio, members. The Task Force believes that the adjudicatory phase of the bifurcation system might be compromised in that situation, as the full Committee chairman and ranking minority member could learn information during the investigation that could affect their ability to render an impartial judgment during the subsequent adjudication. Thus, in Section 13, the Task Force recommends that the current Committee rule be amended to authorize the full Committee chairman and ranking minority member to appoint themselves to an investigative subcommittee, but not as non-voting, ex officio members of the subcommittee. Section 14. Standard of Proof for Adoption of Statement of Alleged Violation Throughout its deliberations, the Task Force was mindful of the adverse consequences of an ethics investigation for a House Member accused of misconduct, particularly if aninvestigative subcommittee adopts an SAV. Under current Standards Committee rules, an investigative subcommittee may adopt an SAV if it determines that there is ``reason to believe'' that a violation occurred. It was the Task Force's belief that past subcommittees frequently adopted an SAV upon belief that the evidence of a violation was substantial in nature. Therefore, in Section 14 of the Resolution, the Task Force directs the Standards Committee to amend its rules regarding the standard of proof for adopting an SAV. Under the Task Force's recommendation, an investigative subcommittee may adopt an SAV only if it determines, by an affirmative vote of a majority of the members of the subcommittee, that there is ``substantial reason to believe'' that a violation has occurred. Section 15. Subcommittee Powers The Task Force examined the powers of investigative and adjudicatory subcommittees of the Standards Committee with the goal of more clearly defining certain powers and ensuring that the exercise of those powers is accompanied by appropriate and adequate due process for respondents. The Task Force determined that current Committee rules concerning the expansion of the scope of an investigation by an investigative subcommittee are unclear. Those rules provide only that ``[a] Statement of Alleged Violation may include offenses beyond those referenced in the Resolution of Preliminary Inquiry.'' 19 The rules do not expressly authorize the subcommittee to expand the scope of an investigation, impose any procedural requirements for expanding the scope of an investigation, or expressly address whether the subcommittee should first consult with, or obtain the approval of, the full Committee. In Section 15 of the Resolution, the Task Force, in order to maximize the discretion of the subcommittee and to avoid compromising the bifurcation system, recommends that the Committee adopt rules specifically authorizing an investigative subcommittee to expand the scope of an investigation upon an affirmative vote of a majority of its members. The subcommittee would not be required to obtain the approval of the full Committee prior to expanding the scope of an investigation. --------------------------------------------------------------------------- \19\ Standards Committee Rule 17(d). --------------------------------------------------------------------------- Section 15 also addresses the subject of amendments to an SAV, which current Committee rules do not address. Under the Task Force proposal, an investigative subcommittee may, upon an affirmative vote of a majority of its members, amend an SAV anytime before it is transmitted to the full Committee. For example, if the subcommittee obtains new evidence warranting an additional charge not contained in the original SAV, it may amend the SAV. In the event of such an amendment, however, the respondent must be notified in writing and must be given 30 calendar days from the date of notification to file an answer to the amended SAV. In addition, as set forth in Section 16 of the Resolution, the subcommittee must provide the respondent the amended SAV and any new evidence it intends to introduce against the respondent to prove the additional counts prior to adopting the amended SAV. The Task Force recommends tightening the requirements for the issuance of subpoenas by the full Committee and by investigative and adjudicatory subcommittees. With regard to subpoenas issued by the full Committee, clause 2(m)(2)(A) of House Rule XI provides that the members of the Committee, by a majority vote, may authorize and issue subpoenas, but may delegate that authority to the chairman of the Committee. Authorized subpoenas must be signed by the chairman of the Committee or any member designated by the Committee. The Task Force Resolution amends that House rule by providing anexception for the Standards Committee. That exception eliminates the delegation authority in the House rule and provides that subpoenas may be issued by the full Committee only when authorized by a majority of the members voting, a majority being present. The Task Force, however, discourages the use of subpoenas by the full Committee and recommends that the use of this formal investigative tool be reserved, except in unusual circumstances, for investigative subcommittees. With regard to subpoenas issued by investigative and adjudicatory subcommittees, current Committee rules provide that a subcommittee may, by a simple majority of its members, vote to issue a subpoena,20 and that, in the case of an investigative subcommittee, the issuance of a subpoena requires the prior approval of the full Committee chairman and ranking minority member.21 Thus, in an investigative subcommittee of four members, for example, a subpoena could be issued upon the affirmative vote of only two members of the same political party, if only three subcommittee members were present. In addition, the full Committee chairman and ranking minority member must review and sign each subpoena sought by an investigative subcommittee, thereby learning the identity of the person being subpoenaed. --------------------------------------------------------------------------- \20\ Standards Committee Rules 8(b) and 17(a)(5). \21\ Standards Committee Rule 17(a)(5) states: ``Unless the Committee otherwise provides, the [investigative] subcommittee subpoena power shall rest in the Chairman and Ranking Minority Member of the Committee * * * '' --------------------------------------------------------------------------- The Task Force sought to ensure that there is bipartisan support for each subpoena issued, and that the bifurcation system be preserved. Accordingly, the Task Force Resolution provides that subcommittee subpoenas may now be issued only by an affirmative vote of a majority of subcommittee members. In addition, investigative subcommittees no longer must obtain the approval of the full Committee to issue a subpoena. This change further ensures the preservation of the bifurcation system, which is intended to segregate the investigative subcommittee members from the Committee members not serving on that subcommittee. If the subcommittee were required to approach the full Committee chairman and ranking minority member for authorization and issuance of a subpoena, even the identification of the names of the parties subpoenaed would constitute a partial breach of the bifurcation that is intended to exist for the duration of the subcommittee's investigation. That breach could be widened if the full Committee chairman and ranking minority member sought justification for the issuance of the subpoena. Therefore, granting the subcommittee the ability to issue subpoenas independently, but only by a vote of the majority of its members, will keep the subcommittee process confidential and maintain the integrity of the bifurcation system. section 16. due process rights of respondents The Task Force reevaluated the balance between the need to preserve the integrity and confidentiality of the investigative and adjudicatory processes and the need to enhance the respondent's ability to work with the Committee to resolve the complaint in a way which would reflect creditably on the House. Section 16 sets forth a package of due process rights for future respondents which the Task Force believes maintains a balance between preserving the integrity of the process and the rights of the respondent to defend himself and, when appropriate, enter into a fair resolution of the matter. Under existing Committee rules, a respondent is not entitled to review any evidence in support of allegations against him prior to the issuance of an SAV. In carrying outcurrent Standards Committee rules,22 past investigative subcommittees have made information available to respondents in order for them to be able to present their views to the subcommittees. However, under current Committee rules, not until fifteen days before the beginning of an adjudicatory proceeding is a respondent entitled to see any evidence intended to be used against him, and even then his right to evidence is extremely limited.23 Therefore, Subsection 1 of Section 16 establishes a respondent's right to review both the SAV which the subcommittee intends to adopt (at least 10 days prior to the subcommittee vote on the SAV), together with all evidence the subcommittee intends to introduce against him regarding the charges contained in the SAV.24 By providing this information to the respondent and his counsel, the respondent will have a more comprehensive knowledge of the evidence the subcommittee intends to use to prove the SAV, and a clear indication that there are at least three Members of the subcommittee prepared to vote in favor of the SAV. --------------------------------------------------------------------------- \22\ Standards Committee Rule 17(a)(3) states that an ``[investigative] subcommittee shall provide the respondent an opportunity to present, orally or in writing, a statement, which must be under oath or affirmation, regarding the allegations and any other relevant questions arising out of the Preliminary Inquiry.'' \23\ Under Standards Committee Rule 19(f)(1), a respondent and his counsel are entitled only ``to inspect, review, copy or photograph books, papers, documents, photographs, or other tangible objects that the adjudicatory subcommittee counsel intends to use as evidence against the respondent in a Disciplinary Hearing.'' The respondent is also entitled only to receive the names of witnesses the subcommittee intends to call, and a ``summary of their expected testimony'' (rather than transcripts of depositions or memoranda of witness interviews). \24\ An amendment to an intended SAV, either agreed to during settlement discussions or which does not add counts or materially change the substantive count(s), which were previously provided to the respondent, should not require an additional 10-day review period prior to its adoption. However, an amendment to an SAV, either prior to or after its adoption, which either adds count(s) or materially changes existing count(s), should require an additional 10-day review period and the immediate presentation to the respondent of whatever new evidence the subcommittee intends to introduce to prove the amended count(s). --------------------------------------------------------------------------- Since there have not been any adjudicatory hearings to date under the current rules, there is no precedent with regard to respondents receiving this evidence in such circumstances. The Task Force determined that the Standards Committee must provide this evidence to respondents regardless of whether there is an adjudicatory hearing. Furthermore, the Task Force anticipates that providing such information will strongly encourage realistic and productive settlement negotiations between the parties. The Task Force is mindful that circumstances could arise where the subcommittee would be compelled to protect the identity of a witness prior to publicly disclosing the SAV. Consequently, the Task Force specifically recommends that the subcommittee be empowered, by a majority vote of its members, to withhold certain evidence to protect the identity of a witness. In that event, however, the subcommittee must inform the respondent that evidence is being withheld for that reason and inform him of the charge(s) to which such evidence relates. Subsection 2 of Section 16 additionally provides that neither the respondent, nor his counsel, shall directly or indirectly, contact the members of the investigative subcommittee during the disclosure period prior to the SAV vote, except for the sole purpose of settlement discussions where counsels for the respondent and the subcommittee are present. The Task Force believes this is necessary to avoid any ex parte communications with subcommittee members by the respondent or his counsel. While the Task Force wants to encourage candid settlement discussions, it does not want the ten-day period to become a strategic device by which the respondent, or his counsel, try to engage in either legal (e.g. motions) or nonlegal tactics (e.g., lobbying, unauthorized press accounts, etc.) calculated to prolong, influence, impede or frustrate the SAV vote. Subsection 4 of Section 16 was added to guard against any premature leaks of the evidence provided to the respondent and his counsel. Under Subsection 4, both the respondent and his counsel would be required to agree, in writing, that no document, information, or other materials received from the subcommittee would be revealed publicly until the SAV is made public (if the respondent has waived his adjudicatory hearing), or at the commencement of an adjudicatory hearing (if the respondent does not waive such a hearing). The Task Force has further provided that a failure of the respondent or his counsel to so agree in writing, and therefore not receive the evidence, shall not preclude the issuance of the SAV at the end of the ten-day period. As a corollary to these new rights, the Task Force recommends in Subsection 3 of Section 16 that the respondent be immediately provided, after an SAV has been adopted, with any evidence the Standards Committee or a subcommittee thereof later decides it intends to use in support of its case. The Task Force added this provision to accommodate two particular situations: (1) the situation where new evidence comes to the attention of the subcommittee after its adoption of an SAV; and (2) the situation where evidence possessed prior to the adoption of an SAV assumes a new significance after the SAV is voted and thereby warrants introduction at the hearing. The existence of this remedial provision to deal with a possible change of status regarding preexisting evidence is not intended to encourage or permit the Committee, subcommittee, or their respective counsel to take an overly conservative view of the evidence that should be provided to the respondent in the discovery period prior to the investigative subcommittee's adoption of an SAV. Subsections 5 and 8 of Section 16 institute requirements for the Standards Committee or an investigative subcommittee to notify the respondent of certain developments in the investigative process or the Committee's consideration of a complaint. Under Subsection 5, the respondent must be provided written notice whenever: (1) the chairman and ranking member determine that information the Committee has received constitutes a complaint; (2) a complaint or allegation is transmitted to an investigative subcommittee; (3) an investigative subcommittee votes to issue its first subpoena or take testimony under oath, whichever occurs first; and (4) an investigative subcommittee votes to expand the scope of its investigation. Each of these events represents a new development in the investigative process that a respondent should be advised of immediately, so that he can consult with, or retain, counsel. Subsection 8 of Section 16 requires that notice be given to a respondent when a motion to establish an investigative subcommittee does not prevail at the full Committee level. As described previously with respect to Section 11 of the Task Force Resolution, the placing of this issue on the agenda of the full Committee would automatically conclude the time period established in that section for disposition of complaints by the full Committee. The Task Force anticipates that placing on the agenda of the full Committee the issue of whether to proceed to an investigative subcommittee will be rare, and that deadlock votes will be even less frequent. Recognizing the possibility that such deadlocks could occur, however, particularly in a situation where a complaint is viewed as partisan, the Task Force seeks to ensure that the respondent will receive immediate notice of an unsuccessful vote to establish an investigative subcommittee. While such notice would not constitute a dismissal, however, no further fact- gathering would occur without a majority vote of the members of the full Committee. The Task Force agreed that the respondent receive such notice in the form of the following letter: Dear Respondent: Pursuant to Committee Rule ____, we are writing to advise you of a Committee vote taken concerning a complaint filed against you on __________, 199__. On ____________, 199__, a motion to establish an investigative subcommittee concerning that complaint was placed on the agenda of the Committee for a vote of the full Committee. On ____________, 199__, the motion referred to above was voted on by the full Committee and did not prevail. Sincerely, Chairman Ranking Minority Member Subsections 6 and 7 of Section 16 concern settlement discussions and agreements. In Subsection 7, the Task Force recognized that settlement discussions between a respondent and an investigative subcommittee should be confidential. Accordingly, statements or information derived solely from a respondent or his counsel during settlement discussions shall not be included without the respondent's permission in any report of the Committee or a subcommittee thereof, or otherwise publicly disclosed (e.g., at an adjudicatory or sanction hearing) without the consent of the respondent. Thus, to the extent the subcommittee, or the full Committee, wishes to disclose any statement made, or information provided, by a respondent or his counsel during a settlement discussion, it must have obtained that statement or information from a source independent of the settlement discussion prior to, or after, that settlement discussion. In addition, without the consent of the respondent, the Committee or subcommittee cannot acknowledge that the statement or information which it obtained from an independent source was also made during, or derived from, a settlement discussion. The Task Force recommends that respondents receive this due process right so that they possess similar protection that litigants have in a civil or criminal case. The Task Force believes that ensuring the confidentiality of settlement discussions could promote successful settlement negotiations. In Subsection 6 of Section 16, the Task Force recommends that all future settlement agreements between investigative subcommittees and respondents be in writing and signed by both sides and their respective counsels, unless the respondent requests otherwise. This provision is viewed as a mutual form of protection against misunderstandings or mischaracterizations of the agreement by either party to the settlement agreement. The Task Force appreciates that in most cases a respondent's counsel would want this protection, and includes this requirement to ensure the respondent's ability to obtain a written agreement whenever requested. Section 17. Committee Reporting Requirements The Task Force reevaluated current Standards Committee rules regarding reports adopted by the full Committee or an investigative subcommittee. Section 17 proposes changes to the rules designed to: (1) enhance the flexibility of the full Committee regarding its reporting to the House; (2) ensure that sufficient information is reported to the full Committee before the full Committee recommends a sanction in a situation where the adjudicatory hearing was waived; (3) provide the respondent with an adequate opportunity to present his views for inclusion in any full Committee or subcommittee report; and (4) provide Committee members with a sufficient amount of time to review such a report prior to either a sanction hearing or a vote to adopt a subcommittee report. Under current Standards Committee rules, an investigative subcommittee must submit a report to the full Committee if it does not adopt an SAV, and the full Committee is required to transmit that report to the House thereby making it public. The Task Force is mindful that such reports could contain certain sensitive investigative material. Accordingly, Subsection 1 of Section 17 changes this requirement by giving the full Committee discretion, by a majority vote of its members, to refrain from sending to the House the subcommittee report issued to the full Committee in the situation where no SAV was ultimately brought. Under current Standards Committee rules, an investigative subcommittee is not required to prepare a report when it adopts an SAV. The Task Force Resolution addresses this omission by requiring that when the respondent has waived an adjudicatory hearing 25 the subcommittee is required to prepare a report and transmit it to the full Committee. --------------------------------------------------------------------------- \25\ Rule 22(b) of the rules of the Standards Committee states: ``A respondent may seek to waive any procedural rights or steps in the disciplinary process. A request for [a] waiver must be in writing, signed by the respondent, and must detail what procedural stops respondent seeks to waive. Any such request shall be subject to the acceptance of the Committee or subcommittee, as appropriate.'' --------------------------------------------------------------------------- Further, Subsection 2(A) of Section 17 provides each respondent who has admitted to alleged violations and has waived his right to an adjudicatory hearing, a right to review the final draft of the subcommittee's report not less than 15 days prior to a subcommittee vote on whether to adopt the report. Thereafter, within seven days of receiving the draft, the respondent has a right to submit written views regarding the subcommittee's draft report for attachment to, or inclusion in, the final subcommittee report. The subcommittee must submit those views together with its report to the full Committee, and the Committee must make its views and the respondent's views available to the public prior to any sanction hearing. 26 --------------------------------------------------------------------------- \26\ See Standards Committee Rule 17(e). The Task Force does not intend for this provision to require an additional seven days for further review by the respondent if the subcommittee alters its report after the submission of the respondent's views. But the respondent should receive notice of any and all changes within a reasonable amount of time prior to the release of the report. --------------------------------------------------------------------------- The subcommittee is not required to issue a report in the circumstance where it adopts an SAV but the respondent does not waive his right to an adjudicatory hearing. In that situation, the Task Force believes that the full Committee would possess sufficientinformation to make a sanction determination in light of the complete record of the adjudicatory hearing. Subsection 2(D) of Section 17 addresses the requirements relating to a full Committee report to the House after a sanction hearing has been held. The Task Force provides for the respondent to file views and have them attached to the full Committee's final report. The Task Force, however, does not provide the respondent an additional 15 day pre-review period. The Task Force concludes that at this stage of the proceedings, the respondent is sufficiently likely to anticipate the contents of the final report, having attended the sanction hearing and having already extensively commented on the subcommittee report. Under Subsection 2(D), the respondent is provided an opportunity to submit additional views for attachment to the final report. The Task Force expects that the respondent will be given reasonable notice prior to the submission of the Committee's final report to the House to be able to prepare and transmit those additional views for their attachment. Finally, in Subsection 3 of Section 17, the Task Force recommends, when an adjudicatory hearing is waived, a minimum period of not less than 72 hours to be provided for members of the full Committee to review an investigative subcommittee's report prior to either a sanction hearing, or a vote to adopt a report. The Task Force believes that full Committee members who did not serve on the investigative subcommittee need a minimum amount of time to become familiar with the facts of an investigation and have an adequate opportunity to raise questions about the report. Section 18. Referrals to Federal or State Authorities The Task Force considered whether the Standards Committee should have greater flexibility to disclose information to Federal or State authorities that may be evidence of a violation of law applicable to the performance of a Member's duties or to the discharge of his responsibilities. Under current House Rules,27 the Committee may report ``substantial evidence'' of such a violation to Federal or State authorities only with the approval of the House. --------------------------------------------------------------------------- \27\ House Rule X, Clause 4(e)(1)(B). --------------------------------------------------------------------------- The Task Force determined that there may be situations when the Committee would prefer to transmit information confidentially to Federal or State authorities, rather than transmit such information to the House, where it would be publicly disclosed.28 Consequently, the Task Force recommends that House Rules be revised to permit the Committee to report substantial evidence of a violation either with the approval of the House or by a two-thirds vote of the members of the Committee. The ``supermajority'' vote of the Committee would, in effect, prevent the Committee from making direct referrals except in cases where there was strong bipartisan support on the Committee for a referral. --------------------------------------------------------------------------- \28\ According to the House Parliamentarian, the Committee has never utilized the ``substantial evidence'' standard for referrals since the provision was added to House Rules in 1978. --------------------------------------------------------------------------- The Task Force wishes to make it clear that the rules and recommendation discussed above relate only to referrals where the Committee, in essence, is accusing a Member, officer, or employee of the House of a violation of law. The Committee would retain its current discretion to make information and records available to Federal or State authorities in response to a specific request by such authorities, subject to the necessary Committee approval. section 19. frivolous filings Although the Standards Committee always has possessed the discretion to self-initiate action against filers subject to its jurisdiction, the Task Force wishes to underscore its concern about the potential filing of frivolous complaints, as well as its desire to deter such filings. The Task Force, therefore, recommends that House rules be amended to clarify that if a complaint, or information offered as a complaint, is deemed frivolous by an affirmative vote of a majority of the members of the Committee, the Committee may take such action as it, by an affirmative vote of a majority vote of its members, deems appropriate. Two votes would be required under the Task Force's recommendation: the first, a majority vote to determine whether a filing is frivolous; and second, a subsequent vote to determine what, if any, sanction should be recommended. Complaints filed before the One Hundred and Fifth Congress, however, may not be deemed frivolous by the Standards Committee. The Task Force refrained from defining the term ``frivolous'' in order to afford maximum flexibility to the Standards Committee. The Task Force also wishes to emphasize that in the event the Committee determines that a filer over whom the Committee has jurisdiction has submitted a frivolous filing, and that sanctions are appropriate, the Committee still must afford all appropriate due process to the Member, officer, or employee of the House whose filing is in question, including the rights to an adjudicatory and sanction hearing. section 20. technical amendments The Task Force Resolution requires the Standards Committee to make three additional changes to its rules of a minor or technical nature. First, the Committee is required to clarify its rules to provide that whenever the Committee votes to authorize an investigation on its own initiative, the chairman and ranking minority member must establish an investigative subcommittee to undertake the investigation. Current Committee rules do not explicitly require the establishment of an investigative subcommittee when an investigation is self-initiated. Second, the Committee must revise its rules to refer to hearings held by an adjudicatory subcommittee as ``adjudicatory'' hearings. Current Committee rules refer to such hearings as ``disciplinary'' hearings. The Task Force believes that the term ``disciplinary'' suggests that the Committee already has found the respondent liable for the alleged violation, and thus the term is unfairly prejudicial to the respondent. Finally, the Resolution requires the Committee to make whatever additional changes to its rules are necessary in order to conform Committee rules to the Task Force Resolution. V. Conclusion Reform of the standards process in the House has always been conducted in a bipartisan manner. After four months of extensive review and effort, the Task Force has concluded that the recommendations in the Resolution constitute the most comprehensive reform of the process upon which it can reach a bipartisan consensus. The Task Force believes that the evolving standards process will be improved by the adoption of these changes, which were designed to: enhance the nonpartisan operation of the Committee; increase the confidentiality of the Committee's workings; improve the system for filing information offered as a complaint; promote the efficient administration of the Committee; improve the due process rights of Members, officers and employees; foster greater involvement by Members in the process; and ensure a more timely resolution of matters before the Committee. The Task Force hopes that the Members and public will view each of these changes, not in microscopic isolation, but as a part of a new system to accomplish the above-stated objectives. Regardless of these changes, however, the Task Force believes that ultimately the success of the standards process will be determined by the willingness of Members to serve in judgment of their colleagues in a fair and impartial manner. Only then can the House achieve its ultimate goal: a nonpartisan peer review system which has the trust and confidence of both the Members and the American people. VI. Additional Views VII. Appendix