Another Split Between House Ethics and the OCE Board

See update below.

This post is to flag an obscure dispute which popped up a few weeks ago between the House Ethics Committee and the Office of Congressional Ethics (hat tip: Bryson Morgan). The issue involves public disclosure of OCE referrals when (a) the referral recommends further review of allegations against a House member, officer or employee (the subject); (b) the ethics committee establishes an investigative subcommittee to review the allegations; and (c) the subject resigns from the House after the establishment of the investigative subcommittee but less than a year after OCE’s referral.

The relevant facts are as follows. On April 16, 2018, OCE transmitted a referral to the ethics committee recommending it further investigate Oliver Schwab, then the chief of staff to Representative David Schweikert, for certain alleged financial improprieties in violation of House rules, standards and federal law. On the same day OCE transmitted a separate referral regarding related allegations against Representative Schweikert. (Note: the merits of the allegations against Schweikert or Schwab are not pertinent to our discussion here).

On June 28, 2018, the ethics committee announced it was establishing an investigative subcommittee to inquire into the allegations against Schweikert and Schwab based on the OCE referrals. On July 9, 2018, however, Schwab resigned as chief of staff and left the House’s employ. Based on longstanding House interpretation and practice, this caused the committee to lose jurisdiction over Schwab.

The House rules provide that generally the ethics committee must make public the OCE’s report and findings within 45 days of receiving them, although the chair and ranking member may jointly decide to delay this action for up to another 45 days. House Rule XI(3)(b)(8)(B). Thus, the Schwab report and findings would normally have been required to be made public no later than July 16, 2018.

However, there are certain exceptions to this disclosure requirement, including the following:

[I]f the committee establishes an investigative subcommittee regarding [a matter referred by the OCE board], then the report and findings of the board shall not be made public until the conclusion of the investigative subcommittee process and the committee shall issue a public statement of the establishment of an investigative subcommittee . . . . If any such investigative subcommittee does not conclude its review within one year after the board transmits a report respecting any matter, then the committee shall make public the report and upon the expiration of the Congress in which the report is made public, the committee shall make public any findings.

House Rule XI (3)(b)(8)(B)(iii) [yeah, seriously you can spend 20 minutes trying to find this subparagraph in the House Rules].

One might think that Schwab’s departure from the House would represent the “conclusion of the investigative subcommittee process” with respect to him, thereby releasing the committee from the hold period and requiring it to make public the OCE’s report and findings under the general disclosure rule. The committee, however, did not make public the OCE’s report and findings regarding Schwab at any time during 2018.

On April 16, 2019, one year after the Schwab and Schweikert referrals were received, the ethics committee made public the Schweikert report and findings based on the fact that the investigative subcommittee was still conducting its investigation into the allegations against Schweikert and public release was therefore required due to the fact the subcommittee “d[id] not conclude its review within one year” of the OCE referral. The ethics committee, however, made no public disclosure with respect to Schwab.

The committee’s failure to make disclosure here was not an isolated action or based on any consideration peculiar to Schwab’s case. Instead, it appears the committee has followed a general practice of not disclosing the OCE report and findings for individuals no longer subject to its jurisdiction (it followed the same practice in the case of former Representative Jim Renacci, for example). The basis for this practice is unclear as the rules do not seem to contain an exception to public disclosure requirements for subjects who resign from the House prior to the time disclosure is required. The closest I can come up with is that the rules require the committee to provide one-day prior notice of disclosure to “the applicable Member, officer, or employee.” Rule XI (3)(b)(8)(A).  If one interprets this to require notice to a current member, officer or employee, one could conclude (I suppose) that disclosure cannot be made once the subject resigns.

Regardless, the OCE board apparently does not agree with the ethics committee’s interpretation of the rules. On June 7, 2019, the board “voted unanimously to release the OCE’s report and findings concerning former House employee Mr. Oliver Schwab, as the Board determined that release was mandated by the Resolution and House rules.” The board has followed the same course in earlier cases (including Renacci’s) where the committee failed to make public disclosure.

The problem is that even if one believes OCE’s interpretation of the governing rules is more persuasive than that of the ethics committee (a view to which I am inclined), nothing in either the House rules or OCE’s charter resolution (H.Res. 895) appears to require or authorize OCE to make public disclosures if the ethics committee fails to do so. [Update: Bryson Morgan points to Section 1(f)(1)(B) of H.Res. 895 as potentially authorizing OCE’s disclosure. This section generally prohibits any disclosure by OCE of testimony or other information, and states “[a]ny communication to any person or entity outside the Office may occur only as authorized by the board as necessary to conduct official business or pursuant to its rules.” This provision acknowledges that the board has the power to authorize disclosures “as necessary to conduct official business.” Whether this authorizes the board to make disclosures on the grounds that the ethics committee failed to do so is a question we will leave for another day.]  Thus far, however, the committee has been disinclined to make an issue of OCE’s actions, nor has any former member or staffer sought to challenge OCE’s authority in this regard.

All of which is pretty inside baseball, but if something should blow up in the future, you will be prepared.