Report at 6.

Response:

1.

Introduction.

On December 26, 1995, Representative Shuster traveled to Puerto Rico for nine days on a
fact-finding trip. During the trip, Representative Shuster had official meetings relating to
transportation and infrastructure projects in Puerto Rico directly related to his
responsibilities as Chairman of the Transportation and Infrastructure Committees As
explicitly permitted by House Rules, Representative Shuster’s travel expenses were paid in
part by two private sponsors of the trip (DMJM and OAAA), who had an interest in
educating Representative Shuster about the status of transportation projects and activities in
Puerto Rico. Representative Shuster properly reported the trip and its sponsors on his 1995
and 1996 financial disclosure reports and appropriately allocated and paid for a portion of
the trip expenses as personal. In sum, the Subcommittee’s assertion that Representative
Shuster’s trip was recreational, and that his acceptance of any travel expenses from DMJM.
and OAAA therefore violated House Rules, is incorrect.

Representative Shuster was accompanied on the trip by not only his wife, but also other
family members. The Subcommittee also alleges that it was improper for Representative
Shuster to allow these other family members to stay in the accommodations DMJM and
OAAA provided for him. However, Representative Shuster’s sponsors did not incur any
significant additional expense as a result of these family members sharing his
accommodations, and the cost of the accommodations in which Representative Shuster and
his family stayed was comparable to the cost of a hotel room at one of the area resorts.
Accordingly, this sharing of accommodations did not constitute a material violation of the

gift rules.

The Gift Rules Permit Members To Accept Up To Seven Nights’ Reimbursement
For Travel Expenses Related To Fact-Finding Trips.

Representative Shuster was in Puerto Rico from December 26, 1995 to January 3, 1996.
Because the House "gift rules” changed effective January 1, 1996, it is necessary to analyze
Representative Shuster’s conduct under both the 1995 rules and the 1996 rules.

a, 1995 Rules.

The gift rule in effect through December 31, 1995, provided that a "Member... .
shall not accept gifts (other than personal hospitality of an individual or with a fair
market value of less than $100 or less) . . . in any calendar year aggregating more than
. .. $250" without a written waiver from the Committee on Standards. Former
House Rule 43(4). However, the rule was by its terms inapplicable to acceptance of
travel expenses from private sources for a "fact-finding" trip taken for "educational
purposes directly related to official duties." House Ethics Manual (April 1992), at
38. The House Ethics Manual provided that "the responsibility rests with the


House Ethics Manual at 296 (quoting Statement of Representative Frenzel during debate on H. Res. 287, 95th
Cong., 123 Cong. Rec. 5900 (1977)). The Committee on Standards cited this statement of Representative Frenzel in
support of its conclusion in Advisory Opinion No. 6 that "Members should make the determination as to whether
gray area expenditures are to be classified as political or official." Id

3. The Report Does Not Even Attempt To Establish That The Cited Expenditures Were For Improper
Purposes.

Strikingly, the Report does not contain a single specific allegation demonstrating that a particular expense charged to
the campaign was not for legitimate political or campaign purposes. Rather than rely on direct evidence, the
Investigative Subcommittee has adopted a "shotgun" approach and alleged that the number of disbursements of the
BSCC indicates that at some point during the six-year period at issue the campaign may have expended funds for
personal use. Such an unsupported allegation entirely disregards the presumption of innocence or any notion of
fairness inherent in a legitimate adjudicative proceeding.

For instance, the Report claims that Representative Shuster engaged in a "pattern" of using chartered flights to his
congressional district on holidays and weekends during which it claims that "no verifiable BSCC activities” were
listed on Representative Shuster’s schedule, yet cites a mere three examples of such flights during the six year
period. The Report also questions a political meal that took place on Christmas Eve. Report at 69-71. The
Investigative Subcommittee speculates that no political or campaign-related purpose justified these expenditures
simply because no specific events were listed on Representative Shuster’s calendar. In fact, Representative Shuster
routinely met with constituents and political supporters in his district around the holidays, like many politicians.
Although the BSCC’s Treasurer, Ann Eppard, testified in the investigation, the Investigative Subcommittee
apparently failed to question Mrs. Eppard about these allegedly improper expenditures, choosing instead to rest its
findings on conjecture and innuendo.

‘The Subcommittee’s approach has made it nearly impossible for Representative Shuster to defend himself. In
essence, the Report unfairly seeks to shift the burden of proof to Representative Shuster to establish the bona fides of
nearly every political and travel expense incurred by the BSCC over six years. Such an approach is unrealistic and
unfair. Members are given significant discretion to make their own determinations as to what expenses are
"political" and may charge such expenses to their campaign committees as long as they are properly reported to the
FEC. As the Report acknowledges, each of the expenditures at issue was disclosed to the FEC in publicly-filed
reports. Under the theory of liability advanced by the Subcommittee, any Member could be charged with ethical
wrongdoing if the Member cannot reconstruct the precise details of every expenditure of the Member’s campaign
committee over a six-year period.

4, Campaign Committees Are Not Required To Maintain The Documentation Suggested By The
Subcommittee.

Count I(¢) further suggests that BSCC’s records improperly failed to list the individuals associated with, and the
specific campaign or political purpose of, each disbursement for meals and travel. Report at 66-67. The Report,
however, fails to cite any House Rule or FEC regulation that required a campaign committee to maintain such
detailed documentation, and does not specify what "records" would be sufficient to satisfy this purported.
"requirement." In retrospect, had the BSCC kept the documentation described by the Investigative Subcommittee,
it would have avoided the "appearance" problem at issue. However, Representative Shuster cannot be faulted for
failure to maintain records that he and the BSCC were under no obligation to maintain.


607 makes it unlawful to “solicit or receive" contributions in any building where
federal employees work. See 18 U'S.C. § 607. Section 607 concems are simply not at
issue here. The evidence that the Subcommittee relies on consists in its entirety on
the testimony of a single witness, who claims that he or she "performed services for
Representative Shuster’s campaign in the Rayburn House Office Building" and that
these services "included completing FEC expenditure and contribution reports and
signing campaign checks." Report at 62. These types of campaign services are
separate and distinct from fundraising. Further, it is well-settled by this Committee
that Sections 602 and 607 "are intended to protect federal employees from coercion
vis-a-vis political contributions and insulate the workplace from such solicitations."
See Investigation of A lleged Improper Political Solicitation, at 18. For this reason, the
Committee has clarified that "for § 607 to be invoked, it must be established that a
solicitation in a Federal building involves the intimidation of Federal employees
from whom political contributions are sought." See id at 17-18 (emphasis added).
The Subcommittee makes no finding, nor could it, that any coercive fundraising

occurred at any time.

. In the face of evidence of significantly more egregious conduct, the

Committee has declined to pursue similar allegations in other investigations.

It is evident from a review of numerous prior investigations that the Committee has
been presented previously with substantial evidence that Members either directed or
were aware of campaign work being done in their Federal Offices. Yet the
Committee declined to allege ethical violations of any prohibition against the mere
use of offices in those cases. Reversing this trend when dealing with employees of
Representative Shuster singles him out unfairly.

For example, in its investigation of Barbara Rose-Collins, the Committee noted that
there was significant corroborated testimony from more than one witness that
Representative Collins "personally gave instructions” to her employees that they
perform campaign check logging and cashing activities in her federal office. See
Callins Report at 10. The Committee also had testimony from witnesses that
Representative Collins directed her employees to "routinely write] campaign checks
in the Congressional Office.” Jd at 1. Based on this evidence, the Committee alleged
a violation (Count I) that Representative Collins directed her employees to perform
work for the campaign on official time in dereliction of their official duties.
Conspicuously absent from the Committee’s Report concerning Representative
Collins was any allegation that her conduct constituted a misuse of official property,
or violation of 18 U.S.C. § 607. This absence is even more glaring given the broad
scope of the Committee’s investigation in that case. The Committee’s Report in the
Representative Collins matter included no less than eleven counts of alleged
violations, encompassing diverse activity that spanned many years and several
continents. Had the Committee believed that the facts before it would support a
claim for the misuse of a House office by virtue of Representative Collins directing
her employees to perform campaign work in that office, it would have included that
Report along with the numerous other claims brought in that case. For the
Subcommittee to concem itself with such an allegation in this case, when the


(Nov. 5 1996) (herein, "11/5/96 OGE Letter"). It is this "intent to influence" requirement that limits Section 207’s
prohibition to advocacy, ze, the kind of "representational activity" that involves advocating a specific outcome on a
discretionary or disputed matter under government consideration.

OGE has made clear that "[a]n intent to influence is an essential element of the criminal statute.” Id. OGE has said
that: .

[An intent to influence may be found if the communication or appearance is made
for the purpose of seeking a discretionary Government ruling, benefit, approval or
other action, or is made for the purpose of influencing Government action in
connection with a matter which the former employee knows involves an appreciable
element of dispute concerning the Government action to be taken.

Id,1n other words, unless the former staffer is pleading for a discretionary government ruling (dispositive action) or
for discretionary government benefits (beneficial action), or for favorable resolution of a dispute, the interaction is
not lobbying and is not prohibited.

Members of Congress make hundreds of decisions every day, but not all of them involve dispositive action,
beneficial action or taking a position on a dispute through a vote, bill sponsorship or the like. For example,
Members decide whether they need facts from, or want to provide facts to, constituents, the public or special
interests in order to perform their official functions. When not focused on work, Members decide whether to
socialize, and with whom. Naturally, Members also make decisions that affect their political role as incumbent
candidates for re-election. Former staff may permissibly communicate with their employer-Member in connection
with any of these activities during their cooling off period, and such communications do not amount to prohibited
advocacy regarding government decision-making.

Under longstanding interpretations of Section 207 ~ at least one of which had been issued when Mrs. Eppard
retired from government service - former staff may:

Provide advice and counsel to clients on how to lobby Congress;
Have factual communications with the former employer-Member, whether asking for factual information
relevant to pending legislation, or providing such information - even when directly requested to do so by
the Member;

¢ Have social contact with the Member, including at fundraisers.

Memorandum from OGE to Designated Agency Ethics Officials, General Counsels, and Inspector General
Regarding Revised Post-Employment Restrictions of 18 U.S.C. § 207, 1990 WL 485695 ...goto tact (Oct. 26, 1990);
Merprandum from Committee on Standards of Official Conduct to All Congressional Employees (Oct. 22, 1998) ("10/22/98
Memo"); 11/5/96 OGE Letter, at ...go to text4.

b. OGE Regulations.

OGE’s formal regulations concerning comparable Executive Branch provisions of Section 207 further corroborate
that Section 207(e)(2) prohibits only advocacy in support of dispositive or beneficial discretionary government
action, or favorable resolution of disputes. Like Section 207(e)(2), Section 207(c) prohibits advocacy
communications "in connection with any matter" on which the relevant official can take “action.” 18 U.S.C. §
207(c). OGE regulations make clear, however, that "any matter" does not mean everything that a government


increased dramatically, and necessarily increased the volume of work in his personal office to
manage appointments, correspondence and telephone calls.” Report at 49. Fundamentally, Mrs.
Eppard offered assistance at the request of Representative Shuster’s staff who were struggling with a
difficult transition, and because many of the scheduling issues involved campaign or political issues
on which her advice was both proper and valuable.

The Subcommittee nonetheless found old House Rule 45 relevant in large part because of the 1995
investigation of former Speaker Newt Gingrich’s practice of permitting Joseph Gaylord, a political
advisor to Representative Gingrich, to have a regular presence in the Speaker’s congressional
office.» The Committee concluded in that investigation that the "routine presence of

Mr. Gaylord in congressional offices creates the appearance of the improper commingling of
political and official resources and is in appropriate. The Committee concluded that these actions
taken together violate House Rule 45.” Jd. at 50.

The Subcommittee Report, however, overlooks the significantly different conclusion in the Fortson-
Gingrich matter, an investigation into the participation by Jane Fortson in Representative Gingrich’s
official activities. Despite (1) Mrs. Fortson’s position as an unofficial policy advisor, attending
official meetings; (2) providing substantive advice on urban issues to Representative Gingrich and
his staff; and (3) Representative Gingrich and his staff specifically soliciting Mrs. Fortson’s views
with "respect to official matters," “the Subcommittee did not find that Mrs. Fortson’s individual
activities violated House Rules . . . ." In the Matter of Representative Newt Gingrich, H.R. Rep.
No. 105-1, at 97 (1997). According to the Subcommittee’s findings, Mrs. Fortson, who had
experience in urban and housing issues, moved from Atlanta to Washington in January, 1995 and
became a Senior Fellow at The Progress and Freedom Foundation("PFF") in April, 1995. "The
Subcommittee determined that Mr. Gingrich sought Mrs. Fortson’s advice on urban and housing
issues on an ongoing and meaningful basis." Jd at 96 (emphasis added). During an interview with
Special Counsel, Speaker Gingrich admitted that he often requested Mrs. Fortson’s "assistance in
connection with urban issues in general and issues pertaining to the District of Columbia in
particular." Id, at 97.

The Subcommittee also found that as an unofficial policy advisor to Gingrich, Mrs. Fortson
provided ongoing advice to Gingrich and his staff to assist Gingrich in conducting official duties
related to urban issues. Jd Mrs. Fortson frequently attended meetings pertaining to the D.C. Task
Force. Jd During these meetings, Ms Fortson met with members of Congress, District of Columbia
Officials, and members of their staff. The Subcommittee discovered that Gingrich and members of
his staff specifically solicited Mrs. Fortson’s views and assistance regarding official matters. Id At the
conclusion of its investigation, despite these findings, the Subcommittee did not find that Mrs.
Fortson’s individual activities violated House Rules... ." In the Matter of Representative Newt
Gingrich, H.R. Rep. No. 105-1, at 97.5 ‘The Committee concluded that "Members may properly
solicit information from outside individuals" and although the activity could create the appearance
of improper commingling of unofficial and official resources, the Subcommittee determined "that
these activities did not warrant inclusion as a count in the Statement of Alleged Violation." Id.

The Subcommittee has alleged significantly less "meaningful" advice given by Mrs. Eppard. At most,
she gave advice on Representative Shuster’s schedule during the difficult transition to a new chief of
staff, without benefit to herself or her clients. Requesting an appointment with a Member does not


The FEC requires political committees to itemize disbursements in . publicly-filed forms setting forth the purpose of
each disbursement. Under the regulations, "purpose" is defined as "a brief statement or description of why the
disbursement was made." 11 CF.R. § 104.3(b)(4)())(A). The FEC regulations provide the following examples of
permissible statements of purpose under this regulation: "dinner expenses, media, salary, polling, travel, party fees,
phone banks, travel expenses, travel expense reimbursement, and catering costs." Jd. FEC regulations do not require
political committees to report the identities of all individuals attending political dinners, or the particular political or
campaign issues discussed during political meetings.

In accordance with FEC requirements, the descriptions in the BSCC’s FEC reports consisted of terms such as
"political meetings,” “political meetings and meals," "lodging," "meals," "campaign meeting,” "fundraising planning
meeting," and “transportation.” Report at 65 0.57. The descriptions of disbursements in BSCC’s reports were fully
in compliance with FEC regulations.

5. The Number Of Disbursements At Issue Is Not Excessive.

The Investigative Subcommittee’s claim of an "appearance" violation is based on the fact that the BSCC made a
large number of disbursements during the six-year period at issue. However, House Rule 42(6) does not provide a
maximum number of political expenditures that are permissible. The BSCC made approximately 675 disbursements
for political meals and meetings during a six-year period, as well as several disbursements for political and campaign
related travel. These disbursements break down to only one political or campaign expense every three to four days
during the six-year period. This level of political activity bya Member of the House of Representatives is far from
excessive.

The Report’s innuendo ignores political reality. A typical Representative must devote a significant portion of his or
her time to fundraising and political activities associated with re-election. The Report suggests that the number of
the BSCC’s political disbursements was excessive in light of Representative Shuster’s electoral success. See Report at
67-69. As several witnesses testified before the Investigative Subcommittee, however, Representative Shuster is a
14-term Member of Congress in part because he devotes a great deal of time, energy and resources to fundraising
and campaigning. Jd at 77. Given the effort required to be elected and re-elected to Congress, it was not
unreasonable for the BSCC to pay for an average of two expenses associated with political meetings and meals per
week.

6. The Political Meeting And Travel Expenses Incurred By The BSCC Are Legitimate On Their Face.

Almost all of the disbursements for political meals and meetings set forth in the Report occurred in locations in or
around Representative Shuster’s Congressional District or Washington, D.C. -- precisely the locations where one
would expect Representative Shuster to conduct campaign-related events or meetings with political supporters and
constituents. All of the listed transportation expenses were paid to charter aircraft carriers operating in
Pennsylvania. On their face, therefore, these disbursements appear to be entirely legitimate, and the Report contains
no evidence to the contrary.

‘The overwhelming majority (approximately 92%) of the BSCC disbursements that the Investigative Subcommittee
claims "may have" been improper occurred in Representative Shuster’s congressional district, the Washington area,
or stops somewhere in between.» Similarly, the challenged transportation expenses consist almost entirely of
chartered flights in the Pennsylvania area operated by the Bun Air Corporation of Bedford, Pennsylvania. These are
precisely the types of expenditures and locations at which Representative Shuster and the BSCC would be expected
to incur expenses for political and campaign-related meetings.


paying a penny for any expense that could just as properly be paid from campaign funds. Fundamentally, the fact
that both Representative Shuster and the Subcommittee believe that they could debate these issues endlessly shows
- perhaps better than any legal argument - why respect for the House, for history, and for the ethics process is best
served bya negotiated armistice.

Of greater concern to Representative Shuster than the debate over the past is whether other Members can truly
leam from the Subcommittee’s Report how not to fall into a future charge that their own conduct did not reflect
creditably on the House. The subjective standards by which Representative Shuster’s past conduct have been
criticized in the Report cannot be distilled into any clear and objective formulation for future guidance of Members.

Indeed, the Subcommittee Report repeatedly acknowledges that Members may continue, without violating any rule,
to:

« Seek political advice from former senior staff, get information from them, and attend social functions with
them.

e Make fact-finding trips that are reimbursed by the private sector, rather than at taxpayer expense.

« Allow official staff to use their free time to volunteer in Members’ re-election campaigns.

« Expend campaign funds for a wide range of political purposes, within the broad discretion of the Members
or their campaign officials.

Unclear, however, is when the limits of those principles are reached - other than by subjective assessment. If
anything of lasting use is to emerge from this lengthy and costly process, then the rules going forward deserve clear
articulation.

Until this investigation, charges that a Member’s conduct did not reflect "creditably" on the House were reserved
primarily for the type of personal misbehavior that unquestionably is not involved here. See, eg, In the Matter of
Representative Gus Savage, H.R. Rep. No. 101-307, at 14 (1990) (using Rule 43(1) to sanction a Member’s
sexual harassment of a Peace Corps volunteer); In the Matter of James C. Howarth, H.-R. Rep. No. 98-548, at 4
(1983) (sanctioning sexual relationship with female page and narcotics-related misconduct); In the Matter of
Representative Gerry E. Studds, H.R. Rep. No. 98-295, at 1 (1983) (sanctioning sexual advances towards and a
relationship with various male pages); In the Matter of Representative Daniel B. Crane, H.R. Rep. No. 98-296,
at 1 (1983) (sanctioning sexual relationship with female page).

If the House now intends to use that rule more broadly to regulate a Member's official and political actions, then
Members deserve the benefit of clear standards for compliance. Given the rule’s current lack of objective - or even
articulable — standards, we can respond to the Subcommittee Report only by explaining why ~ on the facts -
Representative Shuster believed his conduct met the standards of the House and of governing law. In doing so,
moreover, we can only speak to the facts as we understand them, given that the Subcommittee consistently has
denied our repeated requests for access to the documents and testimony it has gathered over the last four years.
Representative Shuster was never, at any point during this lengthy investigation, afforded the opportunity to view
the evidence, if any, against him. Nor was he allowed to confront the witnesses, if any, against him. If he had chosen
to put his family, friends, and the House through the ordeal of adjudicatory proceedings, Representative Shuster
believes the allegations aired throughout this process would be seen as misunderstandings and misapprehension.

In accepting a letter of reproval as a negotiated settlement, Representative Shuster believes that the specific actions
at issue here should be placed in the context of his full career of service to the public and to the House. By any
benchmark, Representative Shuster’s career of service in the House has been one that has brought credit to the
House, and that has benefited the public. In the 14 terms that Representative Shuster has been in Congress, he has


11.

her job.” Id. A second witness, who was a legislative assistant to the Congressman, testified
that when she was making fundraising phone calls, she received "specific[] instruct{ions]"
from the Representative regarding how to conduct the calls. See id at 4. The testimony of
these witnesses regarding the direct knowledge and participation of the Congressman was
also corroborated by the testimony of three other individuals. One additional witness
testified that she "remembered that [the first witness] had performed campaign work in the
back of the office. Jd. at 6. A second additional witness recalled a time in which the entire
office had closed early so that campaign work could be done. See id And a third additional
witness remembered the Congressman telling her that the first witness had been hired to
perform campaign work. See id at 7. In short, in that investigation, as in Barbara Rose-
Collins, the Committee had direct and corroborated evidence of the Congressman’s intent
with regard to having his staff perform campaign work on official time.

Conspicuously absent from the Subcommittee’s Report and SAV here is any evidence that
would have support a similar allegation against Representative Shuster. Indeed, there is not
so much as the testimony of one single witness that Representative Shuster ever
directed his employees to perform campaign work on official time. There is not so
much as the testimony of a single witness that Representative Shuster even had knowledge
of any such activities ever having taken place in his office. Instead, the uniform and
uncontroverted testimony of every witness before the Subcommittee is that he did not have
any knowledge of his campaign staff having ever performed campaign work to the detriment
of their official duties. See Report at 53-61.

Unlike Representative Shuster, neither Representative Bates nor Representative Collins ever
told their employees to use administrative leave when performing campaign tasks, nor did
either office have in place an official administrative leave policy so that their employees
could do so without violating their ethical obligations. Throughout the time that
eyewitnesses claim that Representative Collins directed her employees to engage in campaign
tasks on official time, there was testimony from at least two witnesses that "[a]t no point. . .
did Representative Collins indicate to [the witnesses] that [they] should take leave time to
perform such duties or perform them on her own time." Collins Report; see also In the Matter
of Representative Jim Bates, H.R. Rep. No. 101-293, at 10 (1989) (containing no
testimony that the Congressman told his employees to take leave when performing campaign
work), This stands in stark contrast to this investigation, in which at least five witnesses -
Hugo, Leibensperger, Giansante, Eppard, and Mosebey — all uniformly testified that they
knew and understood the office policy that official duties could not suffer as a result of
volunteer campaign activities.

The Subcommittee’s Characterization that Representative Shuster Permitted
Campaign Work to be Done in his Federal Office Is Unfair.

In its SAV, the Subcommittee states that while working for Representative Shuster,
"employees .. . performed services for the BSCC in his Congressional offices." Report at 6-
7. Yet in its ensuing Report, the Subcommittee complains that Representative Shuster
"permitted" his employees to perform services for the BSCC in his congressional office - a
phrase which implies that Representative Shuster was aware that such work was being done
in his offices. The Subcommittee explains that "[a]lthough there was no direct evidence that


Member . . . to determine whether a particular event or activity is directly related to
official duties" such that it can be considered a fact-finding mission. Id.

Rule 43(4) allowed Members to accept travel expenses for up to seven consecutive
days, excluding travel days, for fact-finding trips. Id. at 40-41. In addition, the House
Ethics Manual provided that a Member could accept reimbursement from two
private sources if the Member attended two independent events in the same
geographical location. Jd. at 42. Finally, the Committee on Standards explicitly
permitted Members to extend fact-finding trips at their own expense and still accept
retum transportation from a private source. Jd.

b. 1996 Rules.

Effective January 1, 1996, the House gift rule was amended and renumbered as House Rule
52. As the Committee on Standards noted shortly before this rule became effective, "[tJhe
new rule continues to allow Members . . . to travel at the expense of private sources to...
fact-finding trips and similar events in connections with their official duties." Memorandum
from Committee on Standards of Official Conduct to House of Representatives re "New
Gift Rule," (Dec. 7, 1995). The new rule maintained the same limits on the number of days
of travel expenses that a Member could accept. In addition, the Committee on Standards
recently reconfirmed that "the rule places on individual Members and officers -- and not on
[the Ethics] Committee -- the burden of making the determination that a particular trip is in
connection with official duties.” Gifts and Travel Booklet, Committee on Standards of
Official Conduct, at 72 (April 2000)"

. The Puerto Rico Trip Was A Legitimate Fact-Finding Mission Connected To
Representative Shuster’s Official Duties.

As Chairman of the Transportation and Infrastructure Committee, Representative Shuster’s
official duties involve issues relating to highways, transit, railroads, aviation, water resources,
economic development, and public buildings and grounds. Representative Shuster traveled
to Puerto Rico to meet with a Puerto Rican government official and representatives of two
private organizations to leam about two projects in Puerto Rico directly related to
Representative Shuster’s official duties.

The Tren Urbano light rail project, for example, was within the jurisdiction of the
Committee on Transportation & Infrastructure. The project involved the construction of a
light rail transit system to serve San Juan, Puerto Rico and surrounding areas, and was
designed and managed, in part, by DMJM. It was an innovative electric train system that
would connect major commercial and residential areas in San Juan where population density
and traffic congestion were high. Tren Urbano was eligible to receive federal funding, and its
designers and representatives of the Puerto Rico Department of Transportation and Public
Works wanted to introduce the project to Representative Shuster in an attempt to convince
him that the project was worthy of such funding.» On December 29, 1995, Representative
Shuster met with a DMJM architect, Janos Hegede, and Carlos Pasquera, Secretary of the
Department of Transportation. These individuals made a presentation to Representative
Shuster regarding the project and provided him with written materials that Representative


understands that some employees occasionally performed campaign work during what
would otherwise be considered normal business hours. However, such a practice is entirely
consistent with the existing ethics rules, Precedent from the Committee on Standards of
Official Conduct acknowledges the fact that “as a practical matter, it may be impossible to
have an absolute separation of [official and political] duties.” House Ethics Manual at 284.
As one advisory opinion explains, due to the sporadic time frames in which congressional
work is done:

[I]t is unrealistic to impose conventional work hours and rules on congressional employees.
At some times, these employees may work more than double the usual work week - at
others, some less. Thus employees are expected to fulfill the clerical work the Member
requires during the hours he requires and generally are free at other periods. If, during the
petiods he is free, he voluntarily engages in campaign activity, there is no bar to this. There
will, of course, be differing views as to whether the spirit of this principle is violated, but this
Committee expects Members of the House to abide by the general proposition.

Committee Advisory Opinion 2, Ona Menter’s Clerk Hire (July 11, 1973). What constitutes
an employee’s "free time” is unclear. The Committee has stated that “what constitutes a staff
member’s ‘own time” is "determined by the personnel policies that are in place in the
employing office." Committee on Standards of Official Conduct, Redes and Standards of
Conduct Relating to Campaign A aitity, at 3 (March 2, 2000). "Time that is available to a staff
member, under those policies, to engage in personal or other outside activities may instead
be used to do campaign work." Id. The Committee has expressly acknowledged that
employees may engage in campaign activities while on annual leave, by going on leave
without pay, or by working part time. See id

The Subcommittee’s conclusion that there was an "inconsistent understanding among [the
office] staff of the office policy regarding employee leave," Report at 52, is plainly wrong
under any examination of the Subcommittee’s own summary of its evidence. Reviewing that
evidence, the sole "inconsistency" that can be found between the testimony of the witnesses
relates not to the office’s administrative leave policy, which was used at all times when
employees were performing campaign work, but instead to whether or not there was a limit
on the number of vacation and sick days an employee could take each year - a matter
entirely irrelevant to the issue of campaign work. See Report at 54-56. On the issue of
administrative leave, these individuals’ testimony is consistent with that of every other
witness. As far as we are aware, every witness’s testimony before the Subcommittee was
completely consistent with the principle that an employee may perform work for a political
campaign during whatever free time they have under the policy in place in their employer’s
office. It is our understanding that no witness before the Subcommittee testified that they
ever, even ona single occasion, performed campaign work during time that would be
deemed "official time" under the leave policies in place in Representative Shuster’s office.
Rather, each and every witness uniformly testified that they performed campaign work only
while taking administrative leave, which was properly taken pursuant to the office’s leave
policy.

As a result, any "apparent" detriment to official duties, or "apparent" payment by the
campaign for work on performed "official time,” is just that - an appearance that its


trip); Former Rule 52(2)(d)(4) (necessary travel expenses include expenses incurred on behalf
of either the spouse or a child of the Member). Representative Shuster now recognizes that
permitting more than one family member to stay with him in the accommodations provided
by his private sponsors could be viewed as improperly permitting the private sponsor to pay
for the expenses of more than one family member. At the time, however, Representative
Shuster believed in good faith that there was no significant "marginal cost" to the sponsors
by allowing his family members to share the accommodations. Moreover, the rent paid for
the accommodations for the week ($4,228) was comparable to the amount that his private
sponsors would have had to pay for him and his wife to stay at one of the area resorts.»
Accordingly, Representative Shuster believed at the time that permitting his family members
to share the rental property complied with the spirit of the gift rules.»

6. Conclusion.

Representative Shuster’s acceptance of travel expenses from DMJM and OAAA for his and his
wife’s trip to Puerto Rico did not violate the gift rules, because the Puerto Rico trip was a legitimate
fact-finding mission directly related to Representative Shuster’s official duties. Nevertheless
Representative Shuster agreed to this portion of the SAV because he acknowledges, in retrospect,
that the sharing of accommodations with other family members was an unintentional, de minimis
violation of the gift rule.

C. SAV 44(c)
The Subcommittee’s Allegation:
SAV {4(¢) alleges in its entirety that:

Representative Shuster violated former House Rule 45 by authorizing and/or accepting the
scheduling services of Ann M. Eppard on matters that were official in nature for approximately 18
months after she resigned from his congressional office

Report at 6.
Response:

The Subcommittee Report states that former House Rule 45 seeks to prevent a private party from
potentially advancing "his or her own agenda" by providing volunteer service to a Member. Report
at 45. Here, of course, the Subcommittee Report itself eliminates any basis for such a concern. The
Report is emphatic that Mrs. Eppard did not improperly secure legislative benefits for her clients by
responding to requests from Representative Shuster’s staff for advice concerning the scheduling of
appointments.

The Subcommittee acknowledges that Mrs. Eppard served as Representative Shuster’s Chief of Staff
for nearly 22 years and that, when she retired, she was "succeeded as chief of staff by an individual
who had far more limited experience in managing a congressional office." Report at 49. The
Subcommittee further acknowledged "that once Representative Shuster commenced duties as
Chairman of the Committee on Transportation and Infrastructure ... demands for his attention


Representative Shuster was aware that this activity [campaign work done in his office] was
taking place, the Investigative Subcommittee determined that he was responsible for
permitting this practice to occur for a protracted period of time." Report at 64. This
sentence speaks for itself. Notwithstanding the absence of evidence that links him to any
misfeasance, the Subcommittee has nonetheless determined, without explanation, that
Representative Shuster is responsible for an act of apparent misconduct committed by one
of his many employees. Representative Shuster understands that at some point one of his
employees stored, and may even have filled out, certain FEC campaign reports in a House
office. But the Subcommittee’s characterization of this action is unfair for several reasons.

a. There is no clearly-phrased prohibition against the activity at issue.

Neither the statutes nor regulations referenced by the Subcommittee prohibit
employees from performing campaign work in a federal office, so long as the
campaign work is done on the employee’s free time and no office resources (ie fax
machines, long distance phone calls, etc.) are used, At the time of the alleged
conduct, using a federal office did not transform otherwise permissible campaign
work into prohibited activity. Though performed in the office, the Subcommittee
does not suggest that office resources were used by the staff. Nor as we have
previously addressed is there any real concern that office staff performed campaign
tasks on official time.

Near the conclusion of this investigation, the Committee did issue a memorandum
specifying that the "official resources" that may not be used for campaign activity
"include official staff time, House offices and rooms, the computers, fax machines
and other office equipment, and office supplies.” See Committee on Standards of
Official Conduct, Rules and Standards of Conduct Relation to Campaign A aiuty (March 2,
2000) (emphasis added). Though that Memorandum cites to the House Ethics
Manual in support of this proposition, neither the Manual nor the Advisory
Opinions cited therein expressly stated that the Committee had interpreted 31 US.C.
§ 1301 as barring the performance of campaign work in federal offices, assuming
that no official resources were used. At most, such a proposition was an unstated
assumption, see House Ethics Manual at 283 ("[E]mployees are free to engage in
campaign activities... so long as they do not do so in congressional offices or
otherwise use official resources"), or was directed only at activities covered by 18
USC. § 607, see id. at 303; Investigation of Alleged Improper Political
Solicitation, H.R. Rep. No. 99-277, at 17-18 (1985). Confusion over this issue no
doubt prompted the Committee to issue the clarifying Memorandum. Of course,
Representative Shuster cannot be faulted for failing to anticipate the direction in
which the Committee would move its understanding of the law. See In the Matter of a
Conplaine Against Robert L.F. Sikes, at 6.

Even in light of it most recent Memorandum, the Committee still needs to clarify the
statutory basis for, and the extent of, this prohibition against the use of office space.
The Committee’s assumption relating to the use of office space for political activity
seems to stem from concems over fundraising and the prohibition against
fundraising in 18 U.S.C. § 607. See In the Matter of Representative Jim Bates, at 11. Section


‘The trips aboard Federal Express jets involved campaign activities paid for by the BSCC and attended by Mrs.
Eppard in her role as a campaign official, a capacity in which Mrs. Eppard was allowed to communicate with.
Representative Shuster even during the cooling-off period. Federal Express explained to the Subcommittee that it
had a no-lobbying rule on its aircraft. Federal Express had representatives on board solely because of their internal
policy that company officials had to be present when company aircraft was used. Federal Express testified that their
objective was relationship-building, on which there is no prohibition. Report at 26.

Scenario 4: Mrs. Eppard scheduled meetings involving her clients and Representative Shuster. Report at 21-25
(Meetings on behalf of Amtrak, Pennsylvania Tumpike Commission and Carmen Group). As we understand the
evidence — even though our requests for the transcript of her testimony before the Subcommittee were rejected -
Mrs. Eppard vigorously denies that any of her clients ever discussed its legislative objectives with Representative
Shuster in her presence, as confirmed even by the evidence before the Subcommittee. Had one of her clients done
so, however, Mrs. Eppard’s presence during her clients’ advocacy would not amount to prohibited advocacy on her
part. Ultimately, her scheduling of appointments for clients amounts to nothing more than her "open association"
with her client’s legislative cause - something that the Committee did not advise against until 1998. The requirement
that lobbyists register and publicly disclose their clients and their client’s objectives in any event makes “open
association” with a client’s legislative cause inevitable.

Congress itself expressly recognized in the Lobbying Disclosure Act of 1995 that "a request fora meeting" does not
constitute lobbying unless additionally there is evidence of an "intent to influence” the outcome of legislation. The
Report contains no allegation that Mrs. Eppard - or, indeed, her clients - did anything more than request a meeting.
‘That mere request - as a matter of law - is not evidence of an intent to influence the outcome of legislation.

Scenario 5: Mrs. Eppard introduced certain of her clients to Representative Shuster, in his office, and then excused
herself from the meeting that took place. Report at 24-25. Here, too, the Report does not allege that, after Mrs.
Eppard introduced her clients to Representative Shuster, those clients advocated for any legislative outcome.
Moreover, Mrs. Eppard absented herself from the ensuing discussions. Although her clients’ own direct advocacy
would not amount to advocacy on her part, Mrs. Eppard nonetheless took the step approved by OGE guidance,
and declined to participate further in the part of the meeting that might have involved advocacy. Years after the
events alleged in the Report, this Committee issued a memorandum advising - for the first time - that former staff
"must not permit their name to be openly associated with such [lobbying] contact by other person." 10/22/98 Meno
at 4. As of 1994-1995, however, no Committee guidance or OGE interpretation had prohibited mere public
association of former staffer’s name with the direct lobbying contact of their clients. Indeed, the Committee stated
that the "purpose" of its 1998 Memo was "to acquaint" recipients "with key issues of concem to departing staff." Id
ati.

4. Considerable Evidence Shows that Both Representative Shuster and Mrs. Eppard Sought to Understand
and to Comply with Cooling-off Restrictions.

Beyond the individual episodes identified by the Subcommittee is the broader context - the evidence that
Representative Shuster and Mrs. Eppard sought to understand and to comply fully with Mrs. Eppard’s post-
employment restrictions. Specifically, the evidence shows not only their knowledge of and attempt to comply with
cooling-off restrictions, but also: (1) that Representative Shuster’s office used a “firewall” to prevent lobbying
contact by Mrs. Eppard during the cooling-off period; (2) that the language in Mrs. Eppard’s contracts and other
documents clearly limited her services to advice, not advocacy; and (3) that Mrs. Eppard refused to take clients from
Shuster’s district in order to avoid any appearance of impropriety.


« That Representative Shuster had violated a federal gratuity statute. See id at 10-12.
* That Representative Shuster improperly intervened with federal agencies on behalf of a private individual.
Seid

The Subcommittee Report now rejects all of these allegations.

Despite House Rule 10’s prohibition against accepting unswom complaints, or complaints filed by non-Members
prior to submission to, and a written refusal signed by, three Members for transfer to the Committee, the
Committee pursued the complaint. On November 9, 1997, the Committee formed an Investigative Subcommittee,
which later expanded its investigation into areas not mentioned in the original Complaint. By letter dated February
17, 1998, the Subcommittee notified Representative Shuster that it was authorizing the issuance of subpoenas.
During the course of the investigation, the Subcommittee issued no less than 150 subpoenas, which were extremely
broad and burdensome. The Subcommittee issued subpoenas to members of Representative Shuster’s family, to his
political supporters and to the clients of Mrs. Eppard. In all, the Subcommittee interviewed 75 individuals, and
deposed 33 of these individuals. The Subcommittee also deposed Mrs. Eppard over the course of two days. In
order to avoid inflicting on his colleagues, family, and the House of Representative what would no doubt have been
a contentious hearing process, Representative Shuster accepted the invitation to have settlement negotiations with
the Subcommittee. On July 26, 2000, Representative Shuster agreed to accept the single-count SAV involving the
subjective standard of old House Rule 43(1). The nucleus of the negotiated settlement was the Subcommittee’s
agreement that a letter of reproval would be the sanction for the infraction charged in the SAV.

The Subcommittee found no credible evidence that any of Mrs. Eppard’s clients ever received inappropriate
legislative benefits. Report at 120-29, 133-38. The Subcommittee found no credible evidence that Representative
Shuster received illegal gratuities or gifts from Mrs. Eppard. Report at 129-32, 138-39. And finally, the
Subcommittee found no credible evidence that Representative Shuster improperly intervened with federal agencies
on behalf of certain citizens. Report at 139-42. In short, the Subcommittee confirmed that the principal allegations
of the original complaint were entirely baseless.

In November 1999, while the Subcommittee continued this investigation, federal prosecutors in Boston dropped all
charges of an indictment against Mrs. Eppard and accepted in its place a plea to a single misdemeanor. The
prosecutors also insisted on Mrs. Eppard’s agreement not to sue the federal government for malicious prosecution.
Earlier on, it had been made clear that Representative Shuster was neither a subject nor a target of the grand jury
investigation. With the misdemeanor plea and the dismissal of the indictment against Mrs. Eppard, federal
prosecutors also publicly announced that their investigation was at an end and would not involve Representative
Shuster in any way.

IV. RESPONSE TO THE SUBCOMMITTEE’S STATEMENT OF ALLEGED VIOLATIONS AND
ACCOMPANYING REPORT

After more than six weeks of preparation, on September 14, 2000, the Subcommittee delivered to Representative
Shuster its final draft Report summarizing its views. In order to assure that this process was brought to its
negotiated conclusion at the earliest possible time, Representative Shuster agreed to submit this response by
September 25, 2000. Because the document that Representative Shuster received from the Subcommittee was styled
a draft report, this response must be understood as a draft as well. Should the Subcommittee’s final Report be
altered from the draft, it is only fair that Representative Shuster be afforded the opportunity to respond to such
alterations.


10.

abuse, he would have responded accordingly. In this regard, the Subcommittee’s description
of its evidence coincides our understanding of the evidence.

It is our understanding that Tim Hugo, Representative Shuster’s former Chief of Staff,
testified that he never asked any staff members to perform campaign work. We understand
he made clear to the Subcommittee that while many people volunteered to work on
campaign events, this was due to enthusiasm generated by Ann Eppard, and that there was
no requirement that anyone in the office work on campaign events. We understand that Ann
Eppard’s testimony confirmed that of Tim Hugo. Mrs. Eppard explained to the
Subcommittee that the staff were honest and hardworking, and that many people helped on
the campaign because there was considerable support for Representative Shuster throughout
the office. She also testified that there was no requirement that staff work at campaign
events and that she never asked anyone to perform campaign related work. When Tracy
Mosebey testified before the Subcommittee, it is our understanding that she also told the
Subcommittee that there was never a requirement that staff volunteer, and that there was no
punishment if a staff member did not volunteer. As far as we are aware, these three
witnesses were the only persons who gave testimony relating to this issue. It is our
understanding that Hugo, Eppard, and Mosebey are all in agreement that Representative
Shuster was unaware of the hours any particular employee spent working on the campaign
or in the office. It is our understanding that this testimony is also corroborated by that of
Leibensperger, who stated that he did not know if Representative Shuster was aware that
staff members were working on the campaign and taking administrative leave. As Ann
Eppard explained, it was the responsibility of office staff, not the Representative, to ensure
that office work was completed in a timely fashion. We understand Tim Hugo agreed that
Representative Shuster was unaware of whether or not his employees were keeping track of
the exact amount of time that staff members were taking to perform campaign work. All of
the witnesses testified that they were unaware of any instance in which Representative
Shuster had directed or encouraged an employee to perform campaign work at all, much less
to do so to the detriment of the employee’s official tasks.

For his part, Representative Shuster can assure both the Committee and the public that he
has no knowledge of any of his employees having ever failed to complete their official
duties. Representative Shuster can also assure the public that, as all of his employees
testified, he never directed or encouraged any of his employees to perform campaign work.
To the contrary, Representative Shuster stressed to each employee that every employee
should fulfill their official job duties. Representative Shuster is a devoted public servant
whose offices have run smoothly and efficiently for almost three decades. Representative
Shuster feels that his office’s policies and practices are similar in pertinent respects to those
polices and practices in place in a large number of other House offices. Unwritten
administrative leave policies are utilized in a number of other House offices, if not

commonplace. ."

The Committee Has Never Before Brought Allegations Regarding the Use of Office
Staff to Perform Campaign Tasks Unless There Was Direct Participation in, or at
Least Knowledge of, the Staff Member’s Misconduct on the Part of the
Representative.


office, as it best accounted for the long and irregular hours worked by his staffers (a fact that
has been long recognized by the Committee) and because, due to the fact that his offices
were small, more formal procedures were simply unnecessary.

As the Subcommittee concedes, "all [campaign volunteer] employees took ‘administrative
leave’ during which they received their full congressional salaries" when they "performed
campaign services." Report at 54. The Subcommittee cannot have it both ways; if the office
"did not have in place any established . . . policy regarding employee leave,” then how exactly
did each and every employee miraculously manage to independently come to the same
conclusion regarding the way in which to account for their campaign work? How did each
worker simultaneously understand that when working on campaigns, they should deem all
time to be administrative leave, continue to collect their official salary, and ensure that their
official work was completed on time? Surely, if the office had indeed lacked an official leave
policy regarding campaign work, then some employee, somewhere, at some time would have
accidentally taken vacation days, or sick days, or used some other method for accounting for
their time spent working on the campaign. As the Subcommittee explains, none did.

We believe that this inconsistency in the Subcommittee’s interpretation of the evidence has a
simple and straightforward explanation: the office did in fact have a well-known and
understood oral leave policy. As far as we are aware, each witness who testified before the
Subcommittee explained that the office had an administrative leave policy that was always
used to account for campaign work, agreed to the precise contours and details of that policy,
and agreed that both they themselves and all other staffers of whom they were aware had
followed that policy at all times during the years in question. It is our understanding that
‘Tom Leibensperger, Representative Shuster’s liaison to the district, testified that while there
was no written policy regarding administrative leave, it had been explained to him and he
understood that every staff person, regardless of seniority, was entitled to three weeks
vacation plus the week between Christmas and New Year’s. Time spent campaigning was
designated as administrative leave, which was taken with pay so long as the hours were made
up at another time. He explained that the office policy applied to all employees. Mr.
Leibensperger told the Subcommittee that the Office Manager and the Chief of Staff
processed requests for specific vacation days. Leibensperger explained that Office policy was
to allow an employee to volunteer at any time, as long as that person’s office work was
completed on time. If Representative Shuster’s office had in place no established policy
regarding employee leave, one is left to wonder how exactly Mr. Leibensperger was able to
recall the existence of such a policy and describe its exact contours in such detail.

Other employees described the policy to the Subcommittee in great detail, and their
descriptions matched that given by Mr. Leibensperger in all material respects. When Tim
Hugo, Representative Shuster’s former Chief of Staff, testified before the Subcommittee, we
understand that he told the Subcommittee that the official policy was that staff members
could take administrative leave to work on political events, so long as all official work was
completed on time. We understand Hugo told the Subcommittee that he did not personally
keep track of each employee’s hours in order to make sure that all official time had been
made up, but that Tracy Mosebey was responsible for keeping track of whether or not office
work was being done. When Subcommittee members asked how he could be sure that no


the federal budget, emphasizing that the key fuel behind a growing economy is a modem, efficient transportation
system that moves goods quickly, cheaply and safely.

Representative Shuster’s legislative accomplishments lay alongside his truly unique political achievements. He is the
only Pennsylvanian in history to win both Republican and Democratic Congressional nominations nine times. He
has authored an award winning book, "Believing in America" (Morrow, 1983), a first novel, "Double Buckeyes"
(White Mane Books, 1999) and a forthcoming novel, "Secret Harvest," the royalties of which are being donated to
Children’s Miracle Network. He has received numerous awards, including: "Watchdog of the Treasury Award" for
his efforts to control government spending; "Guardian of Small Business Award" for his efforts on behalf of the
free enterprise economy; the "Golden Age Hall of Fame Award" for his efforts on behalf of senior citizens; the
"National Security Leadership Award" for his support of a strong national defense; and special awards from the
Pennsylvania Academy of Science and the American Society of Highway Engineers. In short, Representative
Shuster is a man whose legislative work for almost three decades has been the building of the American
infrastructure, the protection of the weak and the wronged, and the development of America’s resources for the
betterment of all its people.

Il. EXECUTIVE SUMMARY

Representative Shuster has agreed to accept a letter of reproval from the Committee on Standards that fully resolves
the single allegation against him and closes the investigation. The Statement of Alleged Violation ("SAV") to which
Representative Shuster agreed states that he engaged in conduct that did not reflect creditably on the House of
Representatives in violation of former House Rule 43, Clause 1. This charge is based on the "appearance of
impropriety” created by apparent failures to closely supervise employees, maintain detailed campaign expense
records, and de minims violations of two House Rules. While the brief SAV accurately states the minor violation at
issue, the accompanying Subcommittee Report ("Report") overstates the facts and law on which the Subcommittee
relies, Representative Shuster will take this opportunity to clarify the law and the facts relevant to the
Subcommittee’s Report. It is also Representative Shuster’s hope that the Committee will take note of the areas
where ethical requirements are not well defined. By clarifying the ethical obligations of each Member, the
Committee can ensure that no other Member can similarly be criticized based on largely subjective standards,
applied after-the-fact.

The single charge in the SAV raises five different issues. Count I(a) states that Representative Shuster engaged in a
pattern and practice of knowingly allowing Ann M. Eppard to appear before or communicate with him in his
official capacity, during the 12-month period following her resignation as his chief of staff, on occasions and ina
manner that could create an appearance that his official decisions may have been affected. However, the
Investigative Subcommittee expressly disavowed any finding that 18 U.S.C. § 207 was violated, meaning that Mrs.
Eppard did not in fact communicate with or appear before Representative Shuster with the intent to influence his
official action on any matter during a twelve month cooling-off period following the end of her government service.
The Investigative Subcommittee further concluded that Representative Shuster did not provide any improper
legislative benefits to any of Mrs. Eppard’s clients. Consequently, this part of the SAV rests on only the misguided
conclusions drawn by observers of Mrs. Eppard’s access to Representative Shuster during the twelve months after
she left his office — access that was primarily based on her ongoing role as his chief campaign advisor, and the need
for her knowledge and expertise during the difficult transition to her replacement as Chief of Staff. These are
common events on Capitol Hill. The Report finds no evidence that Mrs. Eppard attempted to influence or "lobby"
Representative Shuster on any official matter during the cooling-off period. To the contrary, the evidence received
by the Subcommittee revealed that Mrs. Eppard and Representative Shuster sought to understand the restrictions
imposed during Mrs. Eppard’s cooling-off period, and to comply in good faith with their ethical requirements.


served his country in every capacity that he could find. He has served on the Committee on the Budget and its
Defense Task Force, the Committee on Education and the Workforce and its Subcommittee on Higher Education,
as Chairman of the Republican Policy Committee, and as a delegate to NATO’s North Atlantic Assembly. Using the
knowledge that he gained during Army service, he has also been Ranking Member of the Select Intelligence
Committee. During this time, Congressman Shuster served on the Subcommittees on Human Intelligence, Analysis
& Counterintelligence, and Technical 8& Tactical Intelligence, where he supported and authored several important
pieces of intelligence legislation, including a highly classified project which was credited with making a significant
contribution to America’s success in the Gulf War.

Currently, Representative Shuster serves as the Chairman of the Committee on Transportation & Infrastructure,
which includes jurisdiction over highways, transit, railroads, aviation, water resources, economic development,
Merchant Marine, Coast Guard, and public buildings and grounds. The largest Committee in Congress, it is this
Committee which builds America; this Committee which oversees our nation’s great highway, aviation, rail and
maritime transportation systems; this Committee which constructs our environmental infrastructure, which oversees
our Coast Guard, the Smithsonian Museum and all of our nation’s public buildings. The Committee’s role extends
across the entire spectrum of American life, from coastal lighthouses to towering river dams, from the building of
rural post offices to erection of the monumental John F. Kennedy Center for the Performing Arts that stands on
the Potomac shore. The Committee’s concerns embrace seashore erosion, rural and urban watershed, disaster relief,
and the economic development of depressed areas around the country, where Federal help must be provided to
bring jobs to American citizens, and new life to their communities.

In his capacity as Chairman, Representative Shuster has worked tirelessly, and has been a principal author of most
of America’s transportation legislation during the past two decades. Representative Shuster helped author the
Surface Transportation Act of 1982, the Surface Transportation and Uniform Relocation Assistance Act of 1987,
and the landmark Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), an historic, six-year, $157
billion transportation law that affirmed the interstate legacy of transportation as the lifeblood of the American
economy, and personal mobility as an American ethos. Representative Shuster’s work for the American people did
not stop, or even slow, during the course of the Subcommittee’s wide-ranging inquiry. Rather, Representative
Shuster oversaw passage of the Transportation Equity Act for the Twenty-First Century of 1998 (TEA-21), an
historic $218 billion law to unlock transportation trust funds so that those funds could be spent as they were
intended, and without increases in taxes. This year Representative Shuster is credited with being the driving force
behind The Aviation Investment Reform Act of the 21* Century ("AIR-21"), an historic $40 billion law that unlocks
the aviation trust fund and reforms the air-traffic control system to deal with the growing demands on America’s air
transportation network, without raising taxes.

With each bill that Representative Shuster has authored, supported, and helped pass through Congress, he has
endeavored to keep faith with the American people by improving roads, bridges, and transit systems, protecting the
environment and national landmarks. It is no exaggeration to say that most of the highways on which more than
200 million Americans drive their cars every day owe their continued existence in significant part to the efforts of
Representative Shuster.

Sponsoring legislation is, of course, onlya fraction of the work that Representative Shuster has performed in his
tenure as a Congressman. Representative Shuster has tirelessly traveled to visit numerous cities, in an effort to see
firsthand America’s tremendous transportation needs. Representative Shuster’s tours have shined a spotlight on
some of the nation’s major infrastructure needs, and focused attention on the Federal, state, and Jocal partnerships
required to meet those needs. Representative Shuster has worked to give a higher profile to transportation issues in


Although we have been denied access to transcripts of the testimony before the Subcommittee, we understand that
the witnesses support these conclusions. We believe that Carol Wood testified Mrs. Eppard was aware of the rules
and ensured that she did not discuss legislation with Representative Shuster during the cooling-off period. We
understand that Ms. Wood testified that Mrs. Eppard would leave meetings when the subjects of her clients or their
legislative objectives arose.

We understand that Tim Hugo testified to the following: Mr. Hugo saw Mrs. Eppard simultaneously in the
company of both her clients and Shuster only in social settings. Moreover, Mrs. Eppard left the area if official
business was raised in Representative Shuster’s presence. Finally, we also understand that Mr. Hugo testified that
Mrs. Eppard specifically discussed with Mr. Hugo the fact that she was prohibited from lobbying Representative
Shuster during the cooling-off period.

We understand that this testimony was corroborated by numerous other witnesses. We understand that when Tom
Leibensperger was interviewed by the Subcommittee, he testified that he was certain that Mrs. Eppard knew of the
cooling-off period restrictions and abided by them. We also understand that Ed Hamberger testified that he never
witnessed Representative Shuster and Mrs. Eppard discuss her transportation clients during the cooling-off period,
and that she excused herself from conversations that began to approach legislative topics. We believe that Jack
Schenendorf testified before the Subcommittee that Mrs. Eppard did not exert any improper influence over
Representative Shuster, and that he never saw Mrs. Eppard try to influence legislation during this cooling-off
period.

The testimony of these individuals is also corroborated by our understanding of the testimony of Ann Eppard
herself. We understand that Mrs. Eppard testified that she had several conversations with Committee counsel, Ed
Hoskens, in which she received advice that she could contact Representative Shuster for any purpose except
lobbying during the cooling-off period. When asked by the Subcommittee her definition of lobbying, we understand
Mrs. Eppard explained that lobbying occurs when a person provides information to a Member of Congress with the
intent to affect or originate legislation. It is our understanding that the Subcommittee chose not to ask Mrs. Eppard
whether she had ever communicated with Representative Shuster during the cooling-off period with the intent to
influence legislation. It is our understanding that, had she been asked, Mrs. Eppard would have replied that she had
not done so. Likewise, we understand that Mrs. Eppard specifically testified that she did not think that the
prohibition included seeing Representative Shuster and her clients in a social settings

In sum, as we understand it, the testimony of the witnesses before the Subcommittee is that Mrs. Eppard and
Representative Shuster sought to understand the cooling-off period restrictions and made good faith efforts to fully
comply with their legal and ethical obligations. Nevertheless, Representative Shuster acknowledges that his contact
with Mrs. Eppard during the cooling-off period could have created the appearance of impropriety.

A. SAV {4(b)
The Subcommittee’s Allegation:
SAV 44(b) alleges in its entirety that:
Representative Shuster violated House Gift Rules [former Rule 43(3) for 1995 and Rule 52 for 1996]
by accepting expenses from the Outdoor Advertising Association of America ("OAAA") and

Daniel, Mann, Johnson and Mendenhall ("DMJM") related to a trip with his family to Puerto Rico in
December 1995 and January 1996,


volunteer for the BSCC so long as they completed their official duties on schedule, using evenings and weekends
when necessary. The Committee on Standards has recognized that such a policy is appropriate given the
unconventional nature of congressional work hours. Representative Shuster acknowledges that the lack of detailed
documentation made it impossible to conclusively demonstrate that his congressional employees completed all of
their official duties on schedule while volunteering for the BSCC. Despite any "appearance" of impropriety,
however, the SAV does not charge that any of Representative Shuster’s employees in fact worked for the BSCC to
the detriment of their official duties.

Count I() states that the number and dollar amount of expenditures by the BSCC contained in Federal Election
Commission ("FEC") reports for meals designated as political meetings, and for transportation on chartered
airplane flights, combined with inadequate record-keeping by the campaign, created the appearance that certain
expenditures may not have been attributable to bona fide campaign or political purposes. Juxtaposed with this
“appearance” finding, however, the Subcommittee found no evidence that Representative Shuster made improper
personal use of campaign funds. Seemingly, the Subcommittee instead required Representative Shuster to "prove his
innocence" with respect to more than 675 expenses over a six year period. While the Report faults Representative
Shuster for "inadequate" record-keeping, it cites no House Rule or FEC regulation that required members to
maintain the detailed documentation apparently desired by the Investigative Subcommittee. In fact, the BSCC
expenditures were legitimate and reported to the FEC as required. Nonetheless, Representative Shuster
acknowledges that the BSCC could have eliminated any mistaken appearance of impropriety by maintaining more
detailed documentation concerning its expenditures, had it been aware of the heightened standards that would be
applied after-the-fact.

The charges contained in the Subcommittee’s SAV bear no resemblance to the overblown allegations conveyed to
the Committee under questionable circumstances in order to initiate this investigation. Consequently, the decision
to conclude this investigation was not an easy one for Representative Shuster to make. But with this four-year long
ordeal finally at an end, and with the Subcommittee rejecting the many wild accusations that have been made against
him by political detractors and reprinted in the media, Representative Shuster is pleased to continue the work of the
American people, and to stand for re-election before the constituents he has served and the people who know him
best.

HISTORY OF PROCEEDINGS

The investigation into Representative Shuster’s conduct began on September 5, 1996, the last hour of the last day
that complaints could be filed before the pre-election moratorium of the second session of the 104" Congress,
when the Ralph Nader-led Congressional Accountability Project filed its complaint ("Complaint"). Despite the fact
that the Complaint was both procedurally and substantively deficient, the Committee decided against its dismissal.

‘The Complaint repeated almost verbatim fanciful stories that had been told in the press regarding the actions of
Mrs. Eppard, following her tenure working for the Congressman. Among the most spurious of these allegations was
the insinuation that Mrs. Eppard, while working as a lobbyist, had sought to obtain "special favors" for her clients
that were not available to members of the public. See Letter from Gary Ruskin to Honorable Nancy Johnson,
Chairwoman, House Committee on Standards of Official Conduct, Re Ethics Complaint A gainst Representative Bud
Shuster, September 5, 1996. The complaint also made several other baseless allegations:

¢ That Mrs. Eppard had provided improper gifts to the Congressman, Se id, at 6-7.
¢ That Mrs. Eppard’s clients had received significant legislative benefits from Chairman Shuster and the
House Transportation and Infrastructure Committee. See id at 7-10.


qualify as "lobbying contact"« under the 1995 Lobbying Disclosure Act. Supra at 17. Therefore,
gathering information to properly respond to a request for an appointment could not qualify as
lobbying contact either. In fact, asking Mrs. Eppard who is "Mr. ABC and why does he want to
meet with Congressman Shuster?" is barely different than asking a former employee (1) "Where did
you leave the file on XYZ?"; or (2) "Who should we contact to cater the office Christmas party?"
Mrs. Eppard, for twenty-two years, was chiefly responsible for scheduling appointments for
Representative Shuster. During the transition to a new chief of staff, it was only natural that
Representative Shuster’s staff would turn to Mrs. Eppard for guidance.

The Report acknowledges that "a limited amount of involvement by a departing congressional
employee with .. . her former employing office following resignation might be reasonable under
certain circumstances to ensure a smooth transition before . . . her successor becomes familiar with
job responsibilities." Report at 49. The Subcommittee does not explain when continuing contact
might not be reasonable. Those standards must be made clear for the future benefit of Members.

Reliance of former staff for occasional advice is a widespread and longstanding practice in the
Congress. In Interpretive Ruling No. 385, the Senate’s Select Committee on Ethics, had to decide
under what circumstances maya Senator utilize the services of a former employee who is currently
employed in the private sector and who would continue that employment while simultaneously
acting as a volunteer , uncompensated consultant to the Senator. Under the proposed arrangement,
the former employee would work one day per week in the Senator’s office, providing advice on the
administrative operation of the office; future hiring decisions; and on legislative issues in which the
Senator might be interested. Interpretive Ruling No. 385, Select Committee on Ethics, United States
Senate, 99" Cong,, S. Prt. 99-193 (July 31, 1984).

In that situation, the Senate Committee opined that potential problems could be minimized by the
Senator’s active monitoring of the situation. The Select Committee concluded that as long as the
Senator monitored the situation to avoid conflicts of interests, the proposal could be undertaken.
‘That being said, the Senate Select Committee on Ethics recognized that "in certain circumstances, an
appearance of a conflict of interest arising from a consultant arrangement might be offset bya
Senate Committee’s need to obtain specific expertise in a given area." Interpretive Ruling No. 213,
Select Committee on Ethics, United States Senate, 99" Cong,, S. Prt. 99-193 (December 22, 1978).

In the case of Representative Shuster and Mrs. Eppard, the particular expertise sought was her
twenty-plus years of institutional knowledge - information that could not come from anywhere else.
She gave her advice, moreover, at a time when Representative Shuster had just succeeded to the
chairmanship of the Transportation and Infrastructure Committee, and thus needed to leave the
details of his schedule as much as possible to others so that he could focus on legislation. His

schedule, moreover, involved political activities for which he counted on Mrs. Eppard’s input.
Nevertheless, because these circumstances involve a technical and de minimis infraction of former
Rule 45, Representative Shuster agreed to this portion of the SAV.

D. SAV {4(d)

The Subconunittee’s Allegation:

SAV 4(d) alleges in its entirety that:


UNITED STATES HOUSE OF REPRESENTATIVES

COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT

IN THE MATTER OF REPRESENTATIVE

E.G. "BUD" SHUSTER

REPRESENTATIVE BUD SHUSTER’S VIE WS REGARDING

THE INVESTIGATIVE SUBCOMITTEE’S FINAL DRAFT REPORT

TABLE OF CONTENTS
I INTRODUCTION
II. EXECUTIVE SUMMARY
Ill. HISTORY OF PROCEEDINGS

IV. RESPONSE TO THE SUBCOMMITTEE’S STATEMENT OF ALLEGED VIOLATIONS AND
ACCOMPANYING REPORT

A. SAV Q)

1. Because Section 207 Prohibits Only Advocacy, the Evidence Before the Subcommittee
Makes Clear that No Violation of Section 207 Occurred.

a. OGE Interpretations.
b. OGE Regulations.

c. Statutory Exceptions.


Subcommittee concluded that Representative Shuster did not violate Section 207, but that he acted
inconsistently with the Subcommittee’s view of Section 207’s supposed underlying policy, in such a way as
to create an appearance of impropriety. The Subcommittee never explains how Representative Shuster
could violate the underlying policy without violating the law. Members of Congress know that their
legislative work is to draft clear laws, and that legislative policy is expressed in the plain language of those
laws.

The “underlying policy" of Section 207, therefore, must be determined in the first instance by reference to
the plain language of the statute, as it has been enforced by the agencies with jurisdiction over it. Under the
plain language of Section 207(e)(2) and longstanding Office of Government Ethics ("OGE") interpretive
guidance, all of the interaction between Representative Shuster and Mrs. Eppard fell outside the scope of
"lobbying," and thus did not violate either the letter or the spirit of Section 207. Indeed, the Subcommittee
Report itself takes pains — as it should - to disavow any suggestion that either Representative Shuster or
Mrs. Eppard violated the law. Report at 11-12, 30-31.

As the Subcommittee is aware, both Representative Shuster and Mrs. Eppard repeatedly sought and
obtained guidance from the Committee’s own counsel regarding the scope of their permissible
communications following her retirement from government service. At base, the advice was that Mrs.
Eppard was free to communicate with and appear before Representative Shuster in the political and social
spheres, but could not "lobby" him. The central question, then, is: What is lobbying? In his guidance to
them, Committee counsel did not provide Representative Shuster or Mrs. Eppard any definition of
lobbying, leaving them to believe that lobbying meant what they - correctly - knew it to mean based on
each of their nearly quarter century of experience in the House as of 1994, and based on their common
sense,

Committee counsel specifically advised Representative Shuster that, because Mrs. Eppard was a personal
friend, as defined by the Committee, and also served as his re-election campaign’s Assistant Treasurer, it was
permissible for Mrs. Eppard to attend political dinners, discuss campaign information, and to charge those
expenses to the campaign committees Response Exhibit 1. Additionally, according to Committee counsel,
social dinners with Mrs. Eppard, despite her status as a lobbyist, were permissible under House Rules. Jd.
Committee counsel never advised Representative Shuster that this type of conduct, although lawful, could
nevertheless violate old House Rule 43, Clause 1 by creating an appearance of misconduct. Id
Representative Shuster understood, therefore, based on Committee counsel’s advice, that so long as Mrs.
Eppard did not lobby him, he would not be in violation of any rule.

Historically "lobbying" has generally meant advocacy for a particular legislative outcome. "Lobbying" has
never encompassed every interaction between a lobbyist and a Member. In the Lobbying Disclosure Act of
1995, for example, Congress defined "lobbying contact” to mean "any oral or written communication ... on
behalf of a client" concerning legislation or resulting government programs and policies. 2USC.§
1602(8)(A) (repealed) Congress excluded from the definition of “lobbying contact" any "communication
that is - (B)(v) a request for a meeting, a request for the status of an action, or any other similar
administrative request, if the request does not include an attempt to influence . . . a covered legislative
branch official." 2 U.S.C. § 1602(8)(B)(v). The Lobbying Disclosure Act of 1995 is particularly compelling
evidence of what Congress itself thought was necessary for a communication to constitute lobbying at the
precise time of Mrs. Eppard’s 12-month cooling-off period. Under this standard, Mrs. Eppard did not lobby
Representative Shuster at any point during the cooling-off period. The Subcommittee has not alleged, and
the contacts did not encompass, any discussion of "the formulation, modification, or adoption," of Federal


A. SAV 44(a)
The Subcommittee’s Allegation:

‘The first allegation of the SAV charges that Representative Shuster’s conduct did not reflect creditably on
the House of Representatives, in violation of former Rule 43, Clause 1 when he:*

engaged in a pattern and practice of knowingly allowing Ann. M. Eppard to appear before or communicate
with him in his official capacity, during the 12-month period following her resignation as his chief of staff,
on occasions and in a manner that created the appearance that his official decisions might have been
improperly affected,

SAV HQ).
Response:

The Report identifies several instances where the Subcommittee believes Representative Shuster’s and Mrs.
Eppard’s contacts constituted activities that, while not in violation of 18 U.S.C. § 207(¢)(2), nevertheless
appeared to the Subcommittee to run afoul of a previously unidentified "underlying policy" of Section 207.
Although the Subcommittee made reference to some 40 events (Report 10-31), they easily fall into no more
than five commonplace scenarios, none of which violates Section 207, its spirit, or its underlying policy:

Scenario 1: Mrs. Eppard helped to organize and participated in factual briefings for Representative Shuster
concerning a government funded transportation project managed in part by of one of her clients, DMJM.
(Report at 14-18, Trip to Puerto Rico).

Scenario 2: Mrs. Eppard organized and/or attended meals involving her clients and Representative Shuster,
at two of which clients of Mrs. Eppard, in her presence, did nothing more than "discuss[] issues of interest"
or "problems" with Representative Shuster. (Report at 14-18, Puerto Rico; 18, Amtrak Lunch; 18-19,
Conrail Dinner, 19-21, Other Dinners; and 29-30, Dinners in Rayburn).

Scenario 3: Mrs. Eppard traveled with Representative Shuster and others at a time when she was retained
by clients interested in legislative issues within the general jurisdiction of the Committee on Transportation
and Infrastructure. (Report at 14-18, Trip to Puerto Rico; 25-29, travel on Federal Express Corporate Jet).

Scenario 4: Mrs. Eppard scheduled meetings involving her clients and Representative Shuster. (Report 21-
24, Meetings on behalf of Amtrak, Pennsylvania Turnpike Commission and Carmen Group).

Scenario 5: Mrs. Eppard introduced certain of her clients to Representative Shuster, in his office, and then
excused herself from the meeting that took place. (Report at 24-25, Introduction of Clients).

Each scenario is discussed below, after a review of the applicable legal guidelines.

The Subcommittee invokes the "underlying policy" of 18 U.S.C. Section 207(e)(2) as the fulcrum for finding
a violation of Rule 43, Clause 1. Report at 31. By importing Section 207 and its "underlying policy" into the
House nules, however, the Subcommittee is constrained to interpret Section 207 consistent with its plain
language and with the longstanding interpretive guidance issued by the agencies that administer it. The


while reporting that he paid for three nights. Id. In fact, Representative Shuster’s 1995 report accurately stated that he spent three
"days" in Puerto Rico that were not at his sponsors' expense. See Exhibit 32.

* The disclosure requirements instituted by the Ethics in Government Act were designed primarily to allow public scrutiny of any
potential conflict of interest facing a government official. See United States v. Oakar, 111 F.3d 146, 148 (D.C. Cir. 1997) ("These
requirements were designed to increase public confidence in the federal government, demonstrate the integrity of government
officials, deter conflicts of interest, . . . and enhance the ability of the public to judge the performance of public officials.”) (citing S.
R. No. 95-170, 21-22 (1978), reprinted in 1978 U.S.C.C.A.N. 4216, 4237-38). By disclosing the Puerto Rico trip in his financial
disclosure statements, Representative Shuster satisfied the purpose of the statute and allowed the public to evaluate his performance
and any possible conflict of interest arising out of the receipt of travel expenses from these private sources,

"Tn fact, when Representative Shuster traveled to Puerto Rico in February 1995, the cost of his hotel room was $501.50 per night. The
cost to rent the private residence during the December 1995/January 1996 trip, during the peak holiday season, was a comparable
$528.50 per night.

® The Report also asserts that members of Representative Shuster’s family inappropriately charged certain expenses to a club
membership card owned by an employee of DMJM. Report at 35-37. Although the Report fails to demonstrate that Representative
Shuster knew of the use of the card by his family members, Representative Shuster regrets that his family members may have
inappropriately taken advantage of this hospitality,.

“The Committee found that "Mr. Gaylord's alleged activities included attending leadership meetings, interviewing prospective
employees, and making salary recommendations in the transition period during which Representative Gingrich was reorganizing his
office to assume the responsibility of Speaker." Report at 49-50 (internal citations omitted).

*The only mitigating factor cited by the Committee was the fact that sometime prior to the conclusion of the investigation,
Representative Gingrich had stopped seeking her advice.

‘Congress excluded from the definition of "lobbying contact" any "communication that is - (v) a request for a meeting, a request for
the status of an action, or any other similar administrative request, if the request does not include an attempt to influence . . . a covered
legislative branch official. 2 U.S.C. § 1602(8)(B)(v).

‘7 Unfortunately, due to the passage of a considerable amount of time, she had discarded all but the most recent of these calendars.

' This administrative leave policy functioned in effect almost identically to "flex-time" policies that are commonplace in numerous
corporations throughout America.

'° These two witnesses were Karen Dryden and Dorena Bertussi.

” The Committee also declined to bring a Statement of Alleged Violations against Representative Feighan, when one of his employees
misused "inside mail” for purposes of furthering a fundraising effort. See Investigation of Improper Political Solicitation, at 20-21.
Instead, the Committee deferred to the judgment of the Committee on House Administration, which oversaw administration of the
inside mail system (and which aiso oversees the use of House offices at issue in this case). See id. The Committee noted that the
practice of the House Administration Committee "when appraised of misuse, [is] to inform the wrongdoer of the impropriety and to
instruct them to no longer engage in such activity." Id. Such action on the part of the Committee would also have been appropriate for
the alleged violations of Representative Shuster's employee in this instance if, despite the evidence, the Subcommittee had believed
that any violation of House Rules occurred here. Similarly, when Representative Robert Torricelli violated 31 U.S.C. § 1301 by
personally using his own office fax machine to send a four page fax containing a political message, the Committee took no action on
the complaint after the Representative reimbursed the reasonable cost of the official resources used. See Summary of Activities - One
Hundred Fourth Congress, H.R. Rep. No. 104-886, at 22 (1997).

2 The Investigative Subcommittee's claim that the Committee on Standards “has interpreted these provisions strictly," Report at 66, is
contradicted by the Committee on Standard's own guidance in the widely disseminated House Ethics Manual.

” The Investigative Subcommittee did question Mrs. Eppard about certain political meetings between Representative Shuster and Mrs.
Eppard at Washington, D.C. restaurants such as the Capitol Grille. However, the Investigative Subcommittee did not dispute that the
meals had a political purpose, and focused instead on whether holding political meetings at "expensive" restaurants was a "good use of
campaign funds." Report at 71-72 (during deposition of Mrs. Eppard, the Member stated "[y]es, you talked about the campaign," but
questioned why they did so at an "expensive" restaurant). Whether such expenses were a "good use of campaign funds" is wholly
irrelevant to the issue of whether campaign funds were spent improperly. Once again, the Report contains no direct evidence that the
BSCC improperly paid for these political expenditures,

® During the testimony of Mrs. Eppard, the Investigative Subcommittee also suggested that the BSCC should have "builft] up a war
chest" instead of expending campaign funds on political events and constituent activities designed to help ensure Representative
Shuster's re-election, Report at 76-78. This irrelevant line of inquiry has no bearing on whether campaign funds were spent for
legitimate purposes. Representative Shuster is the only Member from Pennsylvania who has won both the Republican and Democratic
party nominations in his district on nine occasions -- each requiring a time consuming and expensive write-in campaign. Given
Representative Shuster’s "established [] record of proven success at the polls," Id. at 78, the Investigative Subcommittee's attempt to
challenge Representative Shuster's campaign strategy rings hollow.

» For instance, approximately 300 (or 44%) of the expenses occurred in Representative Shuster's congressional district in


[Representative Shuster] as long as your work was done,” this quote appears to relate to the
office’s sick leave policies, not administrative leave policies. Report at 55. Each witness
agreed, and office policy in fact was, that there was no limit on the amount of administrative
leave an individual could take so long as official work was completed. In sum, we understand
that each of the witnesses testified before the Subcommittee that they had been informed of
the office leave policy, and each stated that they were unaware of any confusion over, or
abuse of, that policy.

It is true that the Committee on Standards has advised Members that, in order to ensure that
no employee spends official time performing campaign tasks, "it is advisable that office
policies on such matters as the work day, lunch hour and leave time be in writing and
distributed to all employees." See House Ethics Manual at 201. However, it is evident from
the use of the word "advisable" in regard to the Commission’s statements on written office
leave policies that the use of a written leave policy is only a recommendation, not an ethical
requirement. So, too, when the Committee discusses the practice of having employees
carefully document time spent working on campaign-related activities, the Committee only
"recommends" that they keep careful records of the amount of time they spend performing
campaign work and their official duties. See House Ethics Manual at 201. The Committee’s
"recommendations" are not stated as ethical obligations. The Subcommittee itself seems to
recognize that a well-understood oral leave policy would suffice; the Subcommittee’s alleged
violation claims the absence of a "written or oral" policy regarding leave, and under any
other interpretation the phrase “or oral" would be superfluous. See Report at 54. As he
understood them, Representative Shuster’s administrative leave policy was permissible under
all House ethics rules cast in mandatory terms. He knew of no requirement that a Member
maintain "verifiable records" or other such special "safeguards" tracking the time that his
staff spent of out the office. See Report at 54.

If the Subcommittee believes that Members should be required to keep such records, then
the full Committee should promulgate rules to make this clear. By implementing clear rules
cast in mandatory terms, the Committee could assist other Members in avoiding the criticism
leveled at Representative Shuster. As the rules are currently phrased, it appears that if a
Member believes that, due to the small and close-knit nature of his offices and the inherently
sporadic and unpredictable official hours that they worked, a flexible, unwritten leave policy
was best-suited to the realities of his office’s situation, then he or she is free to make that
decision. However, with the benefit of hindsight, Representative Shuster readily concedes
that electing to follow the Committee’s recommendation that office leave policies be written,
and that employees keep meticulous records regarding their campaign work, would have
avoided any “appearance of impropriety."

. Representative Shuster Neither Permitted Nor Encouraged Any of His Employees to

Neglect Their Official Duties.

‘The evidence detailed by the Subcommittee in its Report shows that Representative Shuster
neither permitted nor encouraged anyone to forsake their official duties. Representative
Shuster never enticed employees to work on the campaign, believing that employees should
be free to spend their free time however they choose. Had employees ever abused his
administrative leave policy, and had Representative Shuster ever become aware of such


one was abusing the leave policy, we understand Hugo made clear that the office was small
enough so that if any work was not being completed, he would know about it.

When another witness who worked as Chief of Staff in Representative Shuster’s office
appeared before the Subcommittee, we understand that she again explained the nature of
this leave policy to the Subcommittee, in exactly the same terms as Hugo had done, and
further explained that the policy had been well-disseminated to the employees. We
understand this witness explained to the Subcommittee that she did not herself keep records
of the hours the staff took off for administrative leave. However, in accord with the
testimony from Hugo, she explained to the Subcommittee that she had instructed Tracy
Mosebey to do so. Tracy Mosebey, in turn, also explained to the Subcommittee that staffers
had been instructed to note their time spent campaigning as administrative leave. She
informed the Subcommittee that this policy was in place at all relevant times, and even
contrasted the existence of this well-disseminated oral office leave policy during the time
period from 1993-present with the time prior to 1993, when an official office leave policy
regarding employee work on campaigns was not as fully developed.

It is our understanding that the testimony of Judy Giansante, Representative Shuster’s
Altoona Office Manager, and Mrs. Eppard, both support the testimony of Hugo, Mosebey,
Leibensperger, and other witnesses. We understand Giansante explained to the
Subcommittee that there was an office policy regarding leave for employees to work on
campaigns, that the office policy was that an employee could volunteer as long as time
missed from official work hours was made up later, and that this policy had consistently
been in place under the Chief of Staff leadership of Ann Eppard, Carol Wood, and Tim
Hugo. Giansante even kept records of her campaign hours on her calendars, though these
have since been discarded in the intervening years. We understand that Ann Eppard stated
to the Committee that she had informed the entire staff that everyone was to perform forty
hours a week of congressional service. While Ann Eppard did not maintain formal written
records, in an office as small as Representative Shuster’s, she explained that she would be
aware if an employee were to fail to fulfill his or her official duties.

The Subcommittee asserts that it heard the testimony of several current and former
employees “all of whom testified that the office did not have in place any established written
or oral standards rules (sic) regarding office vacation policy." See Report at 54. Of course,
since each employee uniformly testified that campaign work was done on administrative
leave, rather than vacation, the lack of a vacation policy would be irrelevant to the matters
before the Subcommittee. But even assuming the Subcommittee intends to reference
"administrative leave" when it says "vacation" policies, the Subcommittee’s own ensuing
summary of the evidence does not support its claim. With a solitary exception, none of the
witnesses whose testimony is summarized by the Subcommittee, see Report at 54-58, says
anything other that (1) they performed some volunteer work for the campaign, (2) following
the offices leave policies, they continued to collect their regular salary while performing
campaign work, and completed their official work during other hours, and (3) the office did
not keep written records of the time employees spent on administrative leave. While
according to the Subcommittee one witness did testify that the office’s policy was that "[ylou
took time if you needed it. If someone was ill, you could take as much time as you needed
for that. If you wanted to do volunteer work on the campaign, that was fine with


Representative Shuster’s official decisions were not improperly affected as a result of Mrs. Eppard’s “access.” But
Representative Shuster acknowledges that his contact with Mrs. Eppard during the cooling-off period could have
created an appearance of impropriety.

Count I(b) concerns House Gift Rules implicated by Representative Shuster allowing the Outdoor Advertising
Association of America ("OAAA") and Daniel, Mann, Johnson and Mendenhall ("DMJM") to defray certain
expenses related to a trip with his family to Puerto Rico in late December 1995 and early January 1996. Although
the Report suggests that Representative Shuster should not have accepted any expenses from private sponsors
because the trip was "recreational," it acknowledges that Representative Shuster had fact-finding meetings relating
to transportation and infrastructure needs and projects in Puerto Rico. The Puerto Rico trip was a legitimate fact-
finding trip directly related to Representative Shuster’s official duties, and he believed in good faith that his
acceptance of his and his wife’s travel expenses from the two private sponsors that arranged the trip was
permissible. Contrary to any insinuation that Representative Shuster believed the trip was an impermissible gift,
Representative Shuster reported the trip and its sponsors on his 1995 and 1996 financial disclosure reports. While
Representative Shuster was also accompanied on the trip by other family members who stayed in the
accommodations provided by his sponsors, the cost of the accommodations provided was comparable to the cost
of a hotel room at an area resort, and thus Representative Shuster’s sponsors did not incur any significant additional
expense as a result of these family members sharing his accommodations. Representative Shuster chose to agree to
this portion of the SAV because he acknowledges, in retrospect, that the sharing of accommodations with other
family members constituted an unintentional, de nanimis violation of the gift rule.

Count I() alleges a de minimis violation of former House Rule 45, because Representative Shuster supposedly
authorized or accepted the scheduling and advisory services of Ann M. Eppard on matters that were official in
nature for several months after she resigned from his congressional office. Mrs. Eppard resigned as Representative
Shuster’s chief of staff after twenty-two years of service, in September 1994, before the 1994 elections, as did many
Federal employees who had a one-time chance to receive a pay-out of their retirement funds. After the elections
placed Representative Shuster as Chairman of the Transportation and Infrastructure Committee, there were vastly
increased demands on Representative Shuster’s time, occurring simultaneously with the transition to a new chief of
staff in his office. Representative Shuster’s office staff sought out the advice and assistance of Mrs. Eppard on
scheduling matters during this transitional period because of Mrs. Eppard’s experience and familiarity with the
vastly increased number of individuals and organizations that requested appointments with Representative Shuster.
In addition, Mrs. Eppard remained Representative Shuster’s political advisor and legitimately offered her advice on
the scheduling of appointments with political or campaign-related ramifications. Although the Report alleges that
appointment requests from Mrs. Eppard’s clients were among the many requests she reviewed, the Subcommittee
elsewhere concluded that neither Mrs. Eppard nor her clients received any improper legislative benefits from
Representative Shuster. The Report also contains no evidence that Mrs. Eppard sought to give her scheduling
advice in order to advance her clients’ interests. Thus, at no point did any of this scheduling activity improperly
influence the outcome of Representative Shuster’s official duties. These circumstances amount to no more than a
minimis infraction of House Rule 45, involving conduct considerably less noteworthy than conduct that has passed
prior scrutiny by House and Senate ethics committees.

Count I(d) relates to Representative Shuster’s role as an office manager, and concems whether the employee
absence procedures in his office allowed for an appearance that congressional employees worked for his political
campaign, the "Bud Shuster for Congress Committee" ("BSCC’), to the apparent detriment of the time they were
required to spend on official duties. However, any "appearance" that congressional employees were paid official
salaries for time spent volunteering for the BSCC is directly contradicted even by the testimony set forth in the
Report. Representative Shuster’s employees consistently testified that office policy permitted employees to


Shuster studied during the remainder of his trip, including a lengthy and complex
Environmental Impact Statement on the Tren Urbano project that was prepared in
November 1995 ~ well after Representative Shuster’s initial trip to Puerto Rico. This briefing
was directly related to Representative Shuster’s official duties.

Likewise, the OAAA arranged for Representative Shuster to meet with Marc Voigt, a
representative of an RJ. Reynolds manufacturing facility, to discuss billboard advertising in
the San Juan area. The RJ. Reynolds company was the second largest advertiser on
billboards in the United States and Mr. Voigt provided Representative Shuster with
important information about billboard advertising in Puerto Rico. Once again, this meeting
was directly related to Representative Shuster’s duties as Chairman of the Transportation and
Infrastructure Committee.

In sum, given the significance of the Tren Urbano project and the operations of the RJ.
Reynolds company, and the direct relationship between these activities and Representative
Shuster’s official duties, Representative Shuster appropriately determined that the Puerto
Rico trip was a worthwhile fact-finding mission’

. Representative Shuster Appropriately Permitted DMJM and OAAA to Pay Certain
Expenses and Allocated Other Expenses as Personal.

As set forth above, the House Rules allowed Members to accept up to seven days of travel
expenses in connection with a fact-finding mission outside of the continental United States.
House Ethics Manual (April 1992), at 40-41. As such, Representative Shuster was
permitted to accept reimbursement from the two sponsoring private organizations for his
and his wife’s traveling expenses. Representative Shuster personally paid the cost of
accommodations for the two nights during the trip that constituted personal vacation.

The fact that Representative Shuster carefully apportioned three of the nights to each of the
organizations with which he was meeting, and paid the accommodation expenses for the
remaining nights as a personal expense, demonstrates that Representative Shuster was
attempting in good faith to comply with the requirements of the gift rules. Moreover,
Representative Shuster’s financial disclosure forms for 1995 and 1996 openly reported the
Puerto Rico trip and the identities of the organizations that had provided funding.» ‘This
open disclosure belies any suggestion that Representative Shuster believed the trip was an

impermissible "gift."

. Representative Shuster’s Sharing Accommodations With Family Members Did Not
Constitute a Material Violation of the Gift Rules.

Representative Shuster’s wife and several other family members accompanied him on the
trip. Representative Shuster paid for his own and his family members’ air fare, and allowed
his family members to stay in the accommodations provided for him and Mrs. Shuster.

The gift rules permitted a spouse or one family member to travel with the Member on a fact-
finding mission at the expense of the private sponsors of the event. House Ethics Manual
(April 1992), at 43 (Member may bring one relative at sponsor’s expense on fact-finding


‘The Report unequivocally states that "[t]he Investigative Subcommittee did not find substantial reason to believe
that Representative Shuster converted campaign funds to personal use." Report at 66. Indeed, the Investigative
Subcommittee received direct evidence that "Representative Shuster played no role in determining the propriety of
campaign expenditures.” Jd at 75. Count I(e) is thus solely an “appearance” violation based on allegedly
"inadequate record-keeping practices." Id at 64.

Count I(e)’s charge of an "appearance" of impropriety is based entirely upon inferences from the following
allegations:

« Representative Shuster and the BSCC used campaign funds to pay for more than 675 disbursements totaling
approximately $300,000 for political meetings and meals during the six year period between January 1993
and December 1998.

+ Representative Shuster and the BSCC used campaign funds to pay for approximately $400,000 in
transportation expenses during this six year period,

¢ The BSCC did not maintain documentation of the identity of individuals who attended these political
meetings or the specific political or campaign purpose for the disbursements.

Report at 64-66. The Report concludes that the "number and dollar amount” of political expenditures, combined
with "inadequate" record-keeping, "created the appearance" that "certain" expenditures over a six-year period "may
not have been" attributable to political purposes. Id at 64-65.

‘This astonishingly unsupported allegation does not identify a single specific instance in which campaign funds were
improperly used. Nor does the Report offer any direct evidence or testimony supporting its claim that campaign
expenditures "may not" have been attributable to bona fide campaign or political purposes. Instead, the Report
points to every political and transportation expense incurred by BSCC during the six-year period at issue, and alleges
that the "high number and dollar amount" of these disbursements, coupled with the failure to meticulously
document the participants and political purposes of such expenditures, "created the appearance" that "certain"
expenditures may have been improper. Jd at 79.

The Subcommittee’s allegations are also defective in several other respects. First, notwithstanding that House Rules
give Members broad discretion to determine what constitutes a political or campaign-related expense, the Report
improperly attempts to shift the burden to Representative Shuster to "prove his innocence" on every campaign
expenditure. Second, the Report ignores the political reality that, given the short two-year election cycle in the
House of Representatives, Members must devote significant time on an ongoing basis campaigning for re-election
and meeting with constituents. The making of approximately two political expenditures a week is far from excessive
and does not support the Subcommittee’s speculation that campaign funds may have been converted to personal
use. Finally, while Count I(e) faults Representative Shuster for failing to maintain detailed documentation regarding
each political expense, neither House Rules nor FEC regulations required political committees to maintain such
documentation. Notwithstanding the lack of any evidence of a violation, the Subcommittee stretches to suggest that
the lack of documentation permits an appearance of impropriety.

The Report at 67-69 appears to imply, quite mistakenly, that the propriety of campaign expenditures by the BSCC
may somehow be determined by reference to the low level of opposition to Representative Shuster in his recent
primary and general elections. See Report at 67-69. We understand that the Subcommittee does not intend to act as a
super-campaign manager, second-guessing the wisdom of political expenditures that Representative Shuster's
campaign advisors have considered necessary. But the Report's reference to the low level of Representative
Shuster's election opposition misses the fundamental point that it was through meticulous, ongoing and expensive


relationship- building in his district that Representative Shuster has achieved such unprecedented electoral success. It
is not an accident, nor even a tribute to the power of personality, that Representative Shuster has won the
Republican and Democratic nomination for re-election an historic nine times. Only by his campaign advisors’
deployment of campaign funds for voter outreach, for complex county-by-county write-in campaigns, and to
achieve constant in-district visibility of Representative Shuster, has he established such an enviable record of
bipartisan political success. The level of Representative Shuster's ultimate election-day opposition is the result of
campaign and political expenditures -- not a reason to question them.

2. A Member Has Broad Discretion To Determine What Constitutes A Campaign Or Political
Expenditure.

Under the House Rules and interpretive guidance provided by the Committee on Standards, Members have
significant discretion in determining those expenses that may be paid for with campaign funds. Former House Rule
43, clause 6 (in effect during the period at issue) provided:

A Member shall convert no campaign funds to personal use in excess of reimbursement for legitimate and verifiable
campaign expenditures and shall expend no funds from his campaign account not attributable to bona fide
campaign or political purposes.

Rule 43(6).

Originally, the rule had stated that campaign funds could only be used for "campaign purposes.” House Ethics
Manual at 271. However, in 1989, the rule was expanded to cover expenditures attributable to "bona fide campaign
or political purposes.” Jd (emphasis added). According to the Committee on Standards, this amendment was
enacted "to reflect the longstanding interpretation that campaign funds need not be exclusively applied towards an
immediate reelection campaign.” Jd The guidance provided by the Committee on Standards acknowledges that a
broad variety of activities may be considered "political" within the meaning of Rule 43, clause 6. For instance:

travel to a Member’s home district might be considered a political expense for which private campaign funds could
be used if the purpose of the trip was political. Similarly, taking certain individuals to dinner, if it is determined to be
a political meeting rather than one relating to official duties, could be paid from campaign accounts.

House Ethics Manual at 219. In sum, the Committee on Standards has long interpreted "political expenditures"
for which campaign funds may be used "broadly to encompass the traditional politically-related activities of
Members of Congress." Jd at 271.

The Committee on Standards has also stated that Members "have wide discretion as to what constitutes a bona fide
political purpose” for which campaign funds may be expended. Jd. The drafters of revised House Rule 43(6)
explicitly recognized that it was up to the Members to decide whether expenses are "political" and can be paid for
with campaign funds:

What is political is a matter of fact rather than of definition . . .
(What we have tried to do is confine expenses from political accounts or volunteer committee accounts to

expenses that are political. By and large, that definition will be left up to the Member and to his volunteer
committee, and as it is broadly defined under the election law.


directly contradicted bya close examination of the substantial evidence before the
Subcommittee. For example, it is our understanding that when Judy Giansante,
Representative Shuster’s Altoona Office Manager, testified before the Subcommittee, she
explained to the Subcommittee that she had, in fact, volunteered and performed fundraising
work for the campaign every two years. But Giansante also explained to the Subcommittee
that she informed the Washington office that she was taking administrative leave whenever
she performed this volunteer work. Following the Committee’s advice directed to employees
who elect to perform campaign work, and acting as a meticulous employee, Giansante made
careful records of her campaign work on her calendars.» Giansante made quite clear to the
Subcommittee that she had never been absent from the office in order to perform her
campaign work.

Any “appearance” that staff failed to fulfill their official duties is further belied by the
testimony of Tom Leibensperger, Representative Shuster’s liaison to the district. It is our
understanding that Leibensperger explained to the Subcommittee that he sometimes
performed driving or other work for the campaign during normal office hours.
Leibensperger explained that he took administrative leave anytime he performed driving for
the campaign, and anytime he performed work during normal business hours. It is our
understanding that Leibensperger plainly told the Subcommittee that he always made up
any time that he spent working on a campaign, as required by the office administrative leave
policy. It is our understanding that Leibensperger further told the Subcommittee that he had
always taken less than his allotted three weeks worth of vacation time a year. Consequently,
far from failing to fulfill his official duties, the Subcommittee’s evidence shows that
Leibensperger surpassed his official duties each and every year he was employed in
Representative Shuster’s office.

It is our understanding that Tim Hugo, Representative Shuster’s former Chief of Staff, also
testified that he performed campaign work for the BSCC, but explained that he only did so
pursuant to the office administrative leave policy. Hugo testified that while he did continue
to receive his official salary during the time he was engaging in fundraising activity for the
campaign, he made up any official work and hours that he missed. It is our understanding
that at one point Members of the Subcommittee asked Hugo about documents showing that
Leibensperger performed extensive campaign work on portions of 56 days. In agreement
with Leibensperger’s testimony, Hugo stated that he believed most of Leibensperger’s
campaign work was probably performed before or after business hours. Hugo also stated
that he was unaware of Leibensperger having ever failed to satisfy his official duties, and
that, as far as he was aware, no one had ever made any such complaint.

Finally, when Tracy Mosebey testified before the Subcommittee, it is our understanding that
she told that Subcommittee that she, too, had performed volunteer work for the BSCC. She
explained thar, after 1992 and the adoption of new office rules regarding employee leave for
time spent campaigning, she had noted all of the time she spent campaigning as
administrative leave. Mosebey clarified that she had never failed to fully perform her
required official duties. Mosebey also told the Subcommittee that while she still possessed a
regular office calendar with notations reflecting when she was not in the office, she no
longer had any records specifically reflecting the time she spent working on the campaigns as
opposed to other activities.


UNITED STATES HOUSE OF REPRESENTATIVES

COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT

IN THE MATTER OF REPRESENTATIVE

E.G. "BUD" SHUSTER.

REPRESENTATIVE BUD SHUSTER’S VIEWS REGARDING
I IGATI *S FINAL DRAFT REPORT*

[*Committee note: Notwithstanding use of the term "Draft" in this document, these Views of Representative Shuster
incorporate changes made by counsel to Representative Shuster in response to the Investigative Subcommittee's fina/Report.]

I, INTRODUCTION

After a four-year investigation involving 150 subpoenas, 75 witness interviews, and 33 depositions, the Investigative
Subcommittee and Representative Shuster have agreed to put this controversy to rest with a negotiated settlement
fundamentally involving an “appearance of impropriety." Sparing all concerned the destructive ordeal of lengthy
hearings to debate allegations involving his conduct back to 1993, Representative Shuster agreed to a single count
charging essentially that public perception of his conduct did not reflect creditably on the United States House of
Representatives. The charge bears no relationship to the broad and sensational allegations of a Ralph Nader group
complaint that initiated this process. More fundamentally, the Investigative Subcommittee ("Subcommittee")
acknowledges that there was no merit to those sensational allegations, and that there is not a single instance when
Representative Shuster took legislative action to benefit private interests instead of the public good.

Representative Shuster has served in the House for a quarter of a century, and he is devoted to it as an institution
that serves the public good. Out of respect for the House and for his colleagues, Representative Shuster has put
aside his natural inclination to protest the injustice and untruth of so much that has been said against him, and to
accept a letter of reproval to end this lengthy process. Having given his pledge that he would accept a letter of
reproval — for the good of the House, of his colleagues and of his family - Representative Shuster was disappointed
that the Subcommittee Report chose to digress into whether such a letter was a satisfactory resolution. After all,
Representative Shuster could just as easily explain here why a letter of reproval is, in his judgment, overkill for the
charge of causing misguided public perceptions - particularly when those subjective perceptions were contrary to
the objective truth. The truth is that - under every statute Congress has adopted to regulate contacts between
lobbyists and Members - Representative Shuster’s interaction with Ann M. Eppard (his former Chief of Staff and
chief campaign advisor) complied with the law, and with his understanding of what was right. The truth is that
Representative Shuster made every effort to properly account for the expenses of his fact-finding trips, and to
publicly disclose his accounting, in keeping with the conduct of his colleagues. The truth is that Representative
Shuster always welcomed the fact that his staff chose to volunteer in his re-election campaigns, and made sure
official work came first and was never sacrificed for campaign work. The truth is that Representative Shuster’s
campaign successfully raised substantial funds, used them for proper purposes, and protected the taxpayer from


Pennsylvania, at locations such as Bruno's Diner in Chambersburg, Denny's in Selinsgrove, and Jethro's in Altoona. Approximately
207 (or 30%) of the expenses occurred in the Washington, D.C. metropolitan area, at locations such as the Capitol Hill Club or the
Hyatt Hotel. Approximately 124 (or 18%) of the expenses occurred either in other towns in Pennsylvania or in towns on the route
between Washington, D.C. and Representative Shuster's congressional district.



official may think about or do during the day. In interpreting language found in Section.207(c) - and repeated in
subsection (€)(2) - OGE regulations state, "the restriction does not encompass every kind of matter, but only a
particular one similar to those cited in the statutory language, ie., any judicial or other proceeding, application,
request for a ruling or determination, contract, claim, controversy, investigation, charge, accusation, or arrest." 5
CER. § 2637.204(d).

Further, in delineating the spheres of permissible and impermissible interaction between the former staff and the
employer-Member during the cooling-off period, OGE has recognized that any given conversation might leave the
realm of the permissible and head toward the impermissible. When that occurs, however, OGE makes clear that the
former employee can remain in compliance with the statute simply by "avoid[ing] further participation in the
meeting or communication." 11/5/96 OGE Letter at ...go wo texe4 (cating 5 CER. § 2637.201(b)(5)).

c. Statutory Exceptions.

The scope of Section 207(e)(2) is still further confined by the carve-outs from prohibited conduct, which are found
in Section 207(}). Recognizing that lobbyists may have co-existing political responsibilities, Section 207(})(7) allows
former staff who are officials of the Member’s campaign committee to communicate with the Member in that
capacity.

d. The Committee’s Issuance of Guidance in 10/98 Regarding the Cooling-Off Period Restrictions.

For the first time, in October 1998, the Committee issued guidance concerning Section 207, which vastly expanded
the potential reach of the statute’s prohibitions. 10/22/98 Mem. From October 1998 forward, the Committee
expressed the view that — although it had no jurisdiction to enforce Section 207 - the statute should be read to
prohibit a former House employee from "openly associat[ing]" with a lobbying client before the former-employer
Member during the 12-month cooling-off period. Of course, by the time this advice was given in October 1998, the
events described in the Report had long since occurred.

Although the 10/22/98 Memo was an expansion of prior interpretive guidance conceming Section 207, the
Subcommittee apparently has applied those after-the-fact standards to the 1995 actions described in the Report,
These new standards should not be applied retroactively to conduct that took place years before the interpretive
memorandum. See In the Matter of Representative Robert L.F. Sikes, H. Rep. No. 94-1364, 94" Cong., 2d
Sess. 6-7 (1976) ("Conduct which was not improper at the time must not be made to appear improper by retroactive
application of standards which were not then in existence."); see also Wilson u Layne, 526 USS. 603, 617 (1999)
(holding police officers not liable for violation of 42 U.S.C. §1983 where they followed internal police policies and
the state of the law "was at best underdeveloped").

e. The Subcommittee Report’s Standards,

The Subcommittee Report appears to be expanding the scope of the prohibition even beyond the full Committee’s
October 1998 interpretation. According to the Report, even those former staff who avoid "open association" with
clients now may run afoul of the rules if their former employer "is made aware" of the involvement of the former
staff in providing advice on legislation. Report at 11-12. This newly articulated "made aware" standard is broad and
amorphous, and contradicts the longstanding OGE guidance that former staff may provide advice and counsel to
clients on legislative issues before their former employers even during the cooling-off period. Indeed, given the
requirement that lobbyists register and publicly disclose their clients and their client’s objectives, it is hardly possible
to keep the fact of association with a client’s legislative cause a secret.


‘To the extent that any lobbying took place during the trip, it was done by the Puerto Rican Government. A letter
sent to the Puerto Rican Government by DMJM officers during that time period, however, confirm that no one
thought Mrs. Eppard was a lobbyist for the Puerto Rican Government. Response Exhibit 3. As we understand it,
the Tren Urbano project was fully authorized and funded even before Mrs. Eppard left Representative Shuster’s
staff, and as far as we know, no one tried to alter the funding formula thereafter.

Scenario 2: Mrs. Eppard organized and/or attended meals involving her clients and Representative Shuster, and at
two such events clients of Mrs. Eppard did nothing more than "discuss[] issues of interest" or "problems" with
Representative Shuster. Report at 14-18 (Puerto Rico); 18 (Amtrak Lunch); 18-19 (Conrail Dinner); 19-21 (Other
Dinners); and 29-30 (Dinners in Raybum). The Report contains no allegation that Mrs. Eppard - or, indeed, her
clients - advocated for any legislative outcome during these meals, or otherwise intended to influence government
action. Indeed, the meals would not have been "lobbying" if they involved only an exchange of factual information,
or just a social occasion. Supra at 20-21. In any event, the clients remained free to lobby directly themselves, so long
as Mrs. Eppard did not serve as the advocate during the cooling-off period.

Regarding the Amtrak Lunch, the Report states only that problems” were discussed with Representative Shuster
in the presence of Mrs. Eppard. Jd at 18. The Report specifically states that the Amtrak representative, not Mrs.
Eppard, spoke with Representative Shuster. No allegation is made that Mrs. Eppard participated in the discussion.
Id. Nor is there any suggestion that any specific legislation was discussed.

Regarding the Conrail Dinner, the Report concedes that, prior to the dinner, the Conrail representative met with
Representative Shuster out of Mrs. Eppard’s presence. During the dinner, the Subcommittee alleges that the Conrail
representative discussed issues of interest to Conrail. See id The Report offers no explanation as to why
Representative Shuster would need to meet privately, out of Mrs. Eppard’s presence, if "lobbying contact” was
going to continue when the three people ate dinner. Clearly Representative Shuster and the Conrail representative
met privately so as to avoid even an appearance of a problem under Section 207.

Regarding the "other dinners," the Report concedes that, at a BSCC fundraiser, Mrs. Fletcher specifically recalled
that “no legislation was discussed with Representative Shuster at the dinner." Report at 20. Beyond that the
Subcommittee does not allege what, if anything was discussed. At base, nothing more was involved than a political
fundraiser, appropriately attended by all concerned. At another dinner, Mr. Hamberger specifically recalled that
"Mrs. Eppard left the room for about twenty minutes when business was mentioned.” Report at 20. Similarly, Mr.
Schenendorf confirmed that, at the same dinner, Mrs. Eppard "excused herself when the topic of conversation
tumed to business relevant to" her clients. Jd. at 21. The Report does not specify what "business" was discussed. In
any event, the Report confirms that Mrs. Eppard properly followed OGE guidance to recuse or excuse herself from
discussions that might involve topics prohibited during the cooling-off period. The Report tells us nothing more
about the remaining dinners other than that some of Mrs. Eppard’s clients attended what apparently were social
functions.

Scenario 3: Mrs. Eppard traveled with Representative Shuster and others at a time when she was retained by clients
interested in legislative issues within the general jurisdiction of the Committee on Transportation and Infrastructure.
Report at 14 (Trip to Puerto Rico); 25-29 (travel on Federal Express corporate jet). The Report contains no
allegation that Mrs. Eppard advocated for any legislative outcome when she and others traveled with Representative
Shuster. Absent advocacy on her part, there is no intent to influence government action merely by being aboard an
aircraft with Representative Shuster.


3. Representative Shuster Neither Permitted Nor Encouraged Any of His Employees to
Neglect Their Official Duties.

4. The Committee Has Never Before Brought Allegations Regarding the Use of Office Staff
to Perform Campaign Tasks Unless There Was Direct Participation in, or at Least
Knowledge of, the Staff Member’s Misconduct on the Part of the Representative.

5. The Subcommittee’s Characterization that Representative Shuster Permitted Campaign
Work to be Done in his Federal Office Is Unfair.

a. There is no clearly-phrased prohibition against the activity at issue.

b. In the face of evidence of significantly more egregious conduct, the
Committee has declined to pursue similar allegations in other investigations.

c. It is unfair to hold Representative Shuster responsible for the activities of
this particular employee.

E. SAV 4@)
1. Introduction.

2, A Member Has Broad Discretion To Determine What Constitutes A Campaign Or
Political Expenditure.

3. The Report Does Not Even Attempt To Establish That The Cited Expenditures Were
For Improper Purposes.

4, Campaign Committees Are Not Required To Maintain The Documentation Suggested By
The Subcommittee.

5. The Number Of Disbursements At Issue Is Not Excessive.

6. The Political Meeting And Travel Expenses Incurred By The BSCC Are Legitimate On
Their Face.

7. Conclusion.



Subcommittee has no evidence whatsoever that Representative Shuster was aware of
campaign work being performed bya single employee, unfairly singles out
Representative Shuster»

c. Itis unfair to hold Representative Shuster responsible for the activities of this
particular employee.

The Subcommittee’s concerns implicate the activity of a single employee. Yet the Subcommittee
provides no evidence that Representative Shuster had knowledge of this particular employee’s
activities. See Report at 62-63. There is no evidence that Representative Shuster directed,
encouraged, permitted or condoned this activity. On these facts, it is unfair to place the blame for
this employee’s actions, which may well have been innocent and unguided, on Representative
Shuster.

Representative Shuster has numerous duties both as a Member of the House of Representatives and
as the Chairman of a large Committee. It is not practical for him to simultaneously act as a office
manager over cach and every one of his employees, especially where the conduct at issue was not at
the time clearly prohibited by federal law. Without clear standards from the Committee, the office
management practices of few, if any, Members of the House of Representatives could withstand
similarly exacting scrutiny. Nor has the Committee applied such an extended form of "strict liability”
in the past. Representative Shuster takes his ethical commitments very seriously, and had he been
aware of any employee performing campaign work in an improper location, he would have taken
steps to prevent the employee from continuing her mistake. He simply never had an opportunity to
do so. Nevertheless, Representative Shuster acknowledges that the lack of detailed documentation
retained by his office contributed to an erroneous appearance that did not reflect creditably on the
House.

E. SAV 44(e)

The Subcommittee’s Allegation:

SAV 44() alleges in its entirety that:

The number and dollar amount of expenditures by the Bud Shuster for Congress Committee
("BSCC’) for meals designated as “political meetings" and for transportation on chartered airplane
flights, as reported in Federal Election Commission reports filed by the BSCC between 1993 and
1998, combined with the record-keeping practices followed by the BSCC inadequate to verify the
legitimate campaign purposes of these expenditures, created the appearance that certain
expenditures may not have been attributable to bona fide campaign or political purposes.

Report at 7.

Response:

12. Introduction.


While under the supervision and control of Representative Shuster as their employing Member,
employees in Representative Shuster’s.congressional office worked for the Bud Shuster for Congress
Committee ("BSCC’) to the apparent detriment of the time they were required to spend in the
congressional office and perfomed services for the SCC in his congressional offices.

Report at 6-7.
Response:

The Subcommittee expressed concerned with the appearance that Representative Shuster may have
violated statutory provisions governing the use of office personnel from 1993-98. See Report at 51-
52. The Subcommittee briefly alludes to 2 US.C. § 57(b) and 31 U'S.C. § 1301, which taken
together, as construed by the Subcommittee, forbid the use of office staff to perform campaign
work to the detriment of their official tasks. The Subcommittee also notes that House employees
"must fulfill their official Congressional duties and those duties cannot be neglected to pursue
campaign activities." Report at 52. The Subcommittee acknowledges that, under the plain text of the
House Ethics Manual, House employees may engage in campaign activities in their free time so
long as official duties are completed. Jd The Subcommittee observes that the Committee has
recommended to such employees that when they elect to do so they "should keep careful records
documenting that campaign work was not done on official time.” Jd. (quoting House Ethics Manual
at 200-01),

7. The Evidence Shows that Employees of Representative Shuster Never Failed to
Perform Their Official Duties.

While Representative Shuster’s office did not maintain written documentation regarding the
amount of time his employees spent working on the campaign during Congressional office
hours, the Subcommittee is wrong in insinuating that his employees ever received payment
from the campaign for hours that should have been devoted to official duties. At all times,
each of his employees fulfilled all of their official duties, and most spent significant
additional time performing official work beyond the minimum required by law. It was, and
continues to be, the case that many of Representative Shuster’s employees perform sixty and
seventy hours or more of official work each week. Like the employees of virtually every
Member of the House of Representatives, some employees of Representative Shuster’s
office also chose to serve as volunteers for his campaign. Such volunteer work does not
constitute any grounds for an allegation of misconduct. Under the Hatch Act, 5 US.C. §
7324, House employees are permitted to perform work for political campaigns.
Consequently, so long as employees fulfill their official duties, they are free to engage in
campaign activities without violating any statutory or ethical prohibition. ‘The Committee has
recognized this fact on numerous occasions, including in the Committee on Standards of
Official Conduct, House Ethics Manual, 102 Cong., 2 Sess., at 200-201 (April 1992)
("House Ethics Manual") and, most recently, in the current Report at 51-52.

‘The Subcommittee alleges that employees of Representative Shuster engaged in campaign
work to the apparent detriment of their official duties. Even the evidence described by the
Subcommittee in the Report at 53-63, however, provides no factual basis to conclude that
there was any actual detrimental impact on official work. Representative Shuster


B. SAV %4()

C SAVHO
D. SAV 4)

d. The Committee’s Issuance of Guidance in 10/98 Regarding the Cooling-
Off Period Restrictions.

e. The Subcommittee Report’s Standards.

2. The Subcommittee’s Rejection of a "Legislative Benefits" Charge Proves That There Was
No Substance to Any Appearance of Impropriety.

3. An Analysis of Each of the Report’s Five Scenarios Demonstrates That Mrs. Eppard’s
Contact with Representative Shuster Did Not Involve Intent to Influence Legislation.

4. Considerable Evidence Shows that Both Representative Shuster and Mrs. Eppard Sought
to Understand and to Comply with Cooling-off Restrictions.

1. Introduction.

2. The Gift Rules Permit Members To Accept Up To Seven Nights’ Reimbursement For
Travel Expenses Related To Fact-Finding Trips.

a. 1995 Rules.
b. 1996 Rules.

3. The Puerto Rico Trip Was A Legitimate Fact-Finding Mission Connected To
Representative Shuster’s Official Duties.

4, Representative Shuster Appropriately Permitted DMJM and OAAA to Pay Certain
Expenses and Allocated Other Expenses as Personal.

5, Representative Shuster’s Sharing Accommodations With Family Members Did Not
Constitute a Material Violation of the Gift Rules.

6, Conclusion.

1. The Evidence Shows that Employees of Representative Shuster Never Failed to Perform
Their Official Duties.

2, Representative Shuster’s Office Had in Place at all Relevant Times an Established and
Universally Understood Oral Policy Regarding Employee Leave.


On previous occasions, the Committee has alleged violations against certain House members
for using their office staff to perform various personal and campaign tasks to the detriment
of their official duties. In those investigations, the Committee always had evidence before it
that proved a Representative’s direct participation in, or at least knowledge of, the fact that
the staff was performing work on official time. In this and other ways, the behavior that
formed the basis of the allegations in those investigations went far beyond any behavior that
the Subcommittee alleges to have been committed by Representative Shuster.

In both prior investigations of a Member’s use of office staff to perform campaign work, the
Committee had before it direct evidence of knowledge or action on the part of the accused
Congressman. Most recently, in the investigation of Representative Barbara-Rose Collins,
the Committee made allegations of violations of the identical statutory and ethical rules
regarding the use of official staff to perform campaign tasks as those alleged in this case. See
In the Matter of Representative Barbara-Rose Collins, H.R. Rep. No. 104-876, passim
(1997) ("Collins Report"). However, unlike the instant investigation, the Committee there had
credible evidence, including direct and corroborated eyewitness testimony, that
Representative Collins was aware of, directed, and supervised her employees in conducting
campaign work during official hours. See id Specifically, one employee-witness who had.
served as Representative Collins’ office manager testified that "Representative Collins
sometimes personally directed her to sign campaign checks at times when she would
otherwise have been performing official duties." Id at 7. The witness further stated that
"Representative Collins personally made clear that [the witness] was responsible for
performing bookkeeping functions for the campaign account." Jd The office manager’s
testimony in this regard was corroborated by the accounts of at least two other witnesses,
including Representative Collins’ former Chief of Staff. Jd at 8-11. The former Chief of Staff
explained that during her tenure in Representative Collins’ office, she was responsible for
“logging” incoming campaign checks, listing and depositing those checks, and forward
copies to the campaign. See id The former Chief of Staff "testified that Representative
Collins personally gave her instructions on how to make the deposits and what follow-up
actions to take." Idat 7. The statements by both of these witnesses were corroborated by
other witnesses, bank documents, and signatures. As a result, the Committee had before it
credible evidence that the fact that campaign work was being done by official staff on official
time “occurred with the firsthand knowledge and approval of Representative Collins."

The Committee also had direct evidence of "knowledge" and "direction" on the part of the
Congressman in its investigation of Representative Jim Bates -- the only other major
investigation of a Member’s alleged use of office staff to perform campaign work on official
time. In that case, two witnesses» directly testified that they made phone calls to Political
Action Committees and stuffed envelopes relating to fundraisers at a time when they would
otherwise have been performing official tasks, and on time that was unquestionably official
(rather than leave) time. Ser In the Matter of Representative Jim Bates, H.R. Rep. No.
101-293, at 4-5 (1989). Both employees’ testimony corroborated each other, and both
employee’s testified to the Congressman’s knowledge and direction of these activities. One
employee testified that she made phone calls "during office time on office phones at the
direction of Representative Bates’ administrative assistant acting pursuant to the
congressman’s desires." Id at 4. She explained that the Congressman’s participation was so
direct that she felt "that her attendance at [a] fundraiser amounted to an implied condition of


7. Conclusion.

Representative Shuster’s political and campaign expenditures were legitimate and documented and reported as
required. The Subcommittee does not attempt to prove that any particular expense was improper, and rests its
findings of an "appearance of impropriety” solely upon the number and amount of expenditures. Nevertheless,
Representative Shuster agreed to this portion of the SAV because he acknowledges that the BSCC could have
eliminated any mistaken appearance of impropriety by maintaining more detailed records.

‘In appreciation for his efforts, American soldiers presented Representative Shuster with an Iraqui battle flag captured during the war.
"In order to be sure his conduct was proper, Representative Shuster took the additional step of reducing his understanding of his
conversations with Committee counsel to writing, which Committee counsel (Mr. Hoskens) approved. By letter dated February 16,
1996, Representative Shuster wrote to Mr. Hoskens and enclosed a transcript of their December 19, 1995, conversation regarding
post-employment cooling off periods. Response Exhibit 1.

*Specifically, the Act defines “lobbying contact" to communications regarding "(i) the formulation, modification, or adoption, of
Federal legislation . . . (ii) the formulation, modification, or adoption of a Federal rule, regulation, Executive order, or any other
program, policy, or position of the United States government; (iii) the administration or execution of a Federal program or policy . . .;
or (iv) the nomination or confirmation of a person for a position subject to confirmation by the senate." 2 U.S.C. § 1602(8)(A)
(repealed).

‘In any event the "Railfest" event discussed by the Subcommittee was nothing more than an event hosted by the Altoona community,
providing Representative Shuster a perfectly permissible opportunity to socialize with his constituents. The groundbreaking ceremony
involving the Pennsylvania Turnpike Commission was a similar opportunity for Representative Shuster, although the Subcommittee
never concluded that he attended the event. Report at 23.

5In addition to the testimony heard by the Subcommittee, we believe that documentation reviewed by the Subcommittee negates any
notion that Mrs. Eppard intentionally violated the cooling-off period prohibition. In a letter, Edward R. Hamberger explained to Nancy
Butler of DMJM that working with Mrs. Eppard would be advantageous because she is "intimately familiar with the workings of the
Public Works Committee and can provide insight and strategy on how to achieve authorization of the Tren Urbano Project." Report
Exhibit 9, at 3. In addition, in Mrs. Eppard's consulting agreement with DMJM, the services to be performed were explicitly described
as “Advice and counsel on policy and funding decisions regarding transportation projects nationwide.” Advisory services rendered by
former staff during the cooling-off period were and are entirely appropriate. Report Exhibit 7, at 2.

° Representative Shuster met with Carlos Pasquera, Secretary of the Department of Transportation of Puerto Rico, and Janos Hegede,
an architect with Daniel, Mann, Johnson and Mendenhall ("DMJM"), to discuss the Tren Urbano light rail project in Puerto Rico.
Representative Shuster also met with Marc Voigt, an employee of an R.J. Reynolds manufacturing facility in Puerto Rico, at the
request of the Outdoor Advertising Association of America ("OAAA").

7 The Report's unsupported assertion that "{t]he term ‘fact-finding event’ was intended to be interpreted narrowly," Report at 42, is
contradicted by the Committee on Standards' consistent interpretive guidance that Members have discretion to determine whether a
trip is in connection with official duties.

* Representative Shuster had previously visited the Tren Urbano project in Puerto Rico in February 1995, to receive an initial briefing
regarding the project and conduct a site inspection. The Report makes clear that this trip was a legitimate fact-finding mission directly
related to Representative Shuster's official duties. See Report at 16 (DMJM representative testified that "the purpose of the trip was to
educate Representative Shuster on the Tren Urbano project and to seek Representative Shuster's support for the project"; Puerto Rico
government official testified that purpose of trip was "to demonstrate to Representative Shuster that the Tren Urbano project was
worthy of federal investment"). Representative Shuster returned to Puerto Rico in December 1995, at the invitation of DMJM, to
receive a more detailed briefing about the Tren Urbano project and the benefits it would provide for the community in San Juan.

° In addition, Representative Shuster met separately with two agents from the Drug Enforcement Agency during his trip to Puerto
Rico. Representative Shuster has been a Ranking Member of the Select Intelligence Committee and had a practice of arranging such
meetings during fact-finding travel to keep himself informed on issues relating to his official duties. Although these meetings do not
directly bear on the propriety of Representative Shuster’s receipt of expenses from DMJM and the OAAA, the meetings contradict the
Investigative Subcommittee's claim that the “primary purpose" of the trip was recreational.

‘ The Report states that Representative Shuster incorrectly reported on his 1995 disclosure report that R.J. Reynolds paid for a portion
of his expenses. Report at 34 n.30. In fact, the OAAA asked Representative Shuster to meet with R.J. Reynolds, an important billboard
company, and paid for a portion of his expenses. This technical error in the 1995 disclosure report was corrected in Representative
Shuster's 1996 report, in which he disclosed that he received expenses to meet with R.J. Reynolds "through OAAA," demonstrating
that any error in the 1995 report was inadvertent. The Report also suggests that Representative Shuster paid for two nights lodgings


Despite this extensive testimony from Mosebey, the Subcommittee appears to have selected.
from her testimony in a way to insinuate that she neglected her official duties at one point.
The Subcommittee’s report makes reference to "[o]ne congressional employee from
Representative Shuster’s Washington, D.C., office [who] worked for the BSCC for three
consecutive weeks in Representative Shuster’s congressional district, devoted approximately
90% of her time during this three-week interval to campaign activity and received her full
congressional salary during the entire three-week period." See Report at 56. This reference is
apparently to Tracy Mosebey who, during one election cycle, traveled to Altoona for
approximately three weeks to perform campaign work. However, it is our understanding that
Ms. Mosebey made clear to the Subcommittee that she was able to keep up with her official
responsibilities during this period, The hotel where she stayed during this trip was located
directly across the street from Representative Shuster’s district office. Therefore she could
easily and often return to the district office to conduct official work. During that time
period, Ms. Mosebey confirmed that she specifically remembered discussing case work with
Doris Allen, an IRS agent in its regional office. In addition, Ms. Mosebey returned to
Washington on weekends to perform official work. We understand that Ms. Mosebey does
not know how the Subcommittee arrived at the conclusion that she spent 90% of her time in
Altoona doing campaign work, but that she did not testify to that fact. On the whole, Ms.
Moseby was one of the hardest working government employees. While her hours in the
office while in Washington were normally from 8:30am - 5:00pm, when major issues such as
guns or abortion came up, it was not uncommon for her to work late into the night (ce
12:00 a.m.) and through weekends.

As far as we are aware, there is no evidence that any employee ever failed to fully perform
their official duties, even in a single instance. To the contrary, as we understand the uniform
evidence before the Subcommittee, each and every employee of Representative Shuster’s
office performed all of their official duties on every occasion to the best of their abilities.
The public record should reflect that in many, if not most instances, employees of
Representative Shuster’s office far surpassed the amount of official time required by their

salary.

. Representative Shuster’s Office Had in Place at all Relevant Times an Established
and Universally Understood Oral Policy Regarding Employee Leave.

The Subcommittee alleges that "Representative Shuster failed to establish any fixed policy,
written or otherwise, or to maintain any records to reflect the number of days his
congressional employees were away from the congressional office for vacation, sick leave or
to perform services for the Bud Shuster for Congress Committee." Report at 51. Again, we
respectfully disagree with the conclusion drawn by the Subcommittee from the evidence that
it summarizes in its Report.

It is our understanding of the testimony before the Subcommittee that each employee
questioned in regard to the office leave policy explained that the office had in place a well-
isnown and understood policy regarding work on campaigns. Each employee explained that
employees were permitted to work on campaigns, so long as they did so by taking
administrative leave with pay, and made up the hours so taken at another time. This
particular form of "flexible" administrative leave policy well-suited Representative Shuster’s


legislation, rules, regulations or orders; or the administration of federal programs; or executive
appointments.

The Supreme Coutt itself has interpreted the word lobbying only in its "commonly accepted sense - to
direct communication with members of congress on pending or proposed federal legislation." United States u
Harriss, 347 US. 612, 620 (1954) (internal citations omitted); see also Zuideler u Koota, 290 F. Supp. 244, 256
(EDNY. 1968) (recognizing that the Supreme Court had restricted the definition of lobbying to direct
communications with members of Congress, designed to influence, directly or indirectly the passage or
defeat of any legislation by the Congress).

1. Because Section 207 Prohibits Only Advocacy, the Evidence Before the Subcommittee Makes
Clear that No Violation of Section 207 Occurred.

By its plain language, Section 207(e)(2) prohibits only those cooling-off period communications or
appearances by a Member’s former staff that are knowingly made with "intent to influence . . . action" on a
"matter" within the "official capacity" of the former employer-Member:

(2) Personal staff. - (A) Any person who is an employee of a... Member of the House of Representative
and who, within 1 year after the termination of that employment, knowingly makes, with the intent to
influence, any communication to or appearance before any of the persons described in subparagraph (B), on
behalf of any other person (except the United States) in connection with any matter on which such former
employee seeks action bya Member, officer, or employee of either House of Congress, in his or her official
capacity, shall be punished as provided in section 216 of this title.

(B) The persons referred to in subparagraph (A) with respect to appearance or communications bya person
who is a former employee are the following:

(i) the Senator or Member of the House of Representatives for whom that person was an employee; and

(ii) any employee of that Senator or Member of the House of Representatives.

18 US.C. § 207(¢)(2).

In short, Section 207()(2) prohibits only knowing and intentional advocacy concerning the outcome of a
legislative matter. Even then, former staff remain free to engage in such advocacy immediately after retirement in
communications and appearances before any Member (and all Committees) other than the former employer. And,
even then, former staff remain free to engage in such advocacy in communications and appearances before the
former employer once the cooling off period expires.

a. OGE Interpretations.

The limited scope of Section 207(e)(2) is well established by OGE interpretations of comparable Executive Branch
provisions of Section 207. As OGE has summarized the scope of Section 207, "the statute only prohibits
representational activity, ie, communications or appearances made to a Government employee with the intent to
influence." Letter from OGE, to A Division Chief of a Departmental Component, 1996 WL 931730 ...go to text4


Elsewhere in the Report, the Subcommittee expresses concern that certain social events "were held in almost
immediate proximity to, indeed in conjunction with, events at which, outside of her presence, Mrs. Eppard’s clients
did discuss matters of official interest to them with Representative Shuster." Report at 13. What are Members to
make of this observation in guiding their own future conduct? Longstanding OGE and Committee guidance has
exempted social contact from the reach of Section 207. A new rule that condemns social events with former staff
held in “immediate proximity” to lobbying contact not involving former staff calls the whole social contact
exception into question. The Report does not indicate how much of a time interval must occur, before or after
social events, to avoid criticism. The only clarity that the Report does provide is the certainty that - no matter what
the nature and the extent of Mrs. Eppard’s cooling-off period activities - they had no improper effect on the
outcome of legislation.

2. The Subcommittee’s Rejection of a " Legislative Benefits" Charge Proves That There Was No
Substance to Any Appearance of Impropriety.

The Subcommittee Report comprehensively rejects all allegations that Mrs. Eppard improperly secured legislative
benefits for her clients. See, eg, Report at 120-29, 133-38. The Subcommittee’s conclusion necessarily means that -
whatever the nature of Mrs. Eppard’s communications with or appearances before Representative Shuster - they
did not steer the legislative process away from the public good to serve private interests. If anything, that conclusion
means that the "underlying policy" of Section 207 has been vindicated. It is also clear that the letter of the law has
been upheld. Section 207 addresses only lobbying contact ~ that is, contact with an intent to influence official
action. The Report alleges no contact with an intent to influence official action.

3. An Analysis of Each of the Report’s Five Scenarios Demonstrates That Mrs. Eppard’s Contact with
Representative Shuster Did Not Involve Intent to Influence Legislation.

Absent proof that a lobbyist secured "legislative benefits" because of contacts with a Member, the requisite "intent
to influence" must be established by other circumstances. In general, the plainest way of determining intent to
influence is to consider the content of the communications between a lobbyist and a Member. None of the Report's
five basic scenarios involving cooling-off period contact between Representative Shuster and Mrs. Eppard
evidences any intent to influence official action.

Scenario 1: Mrs. Eppard helped to organize, and participated in, factual briefings for Representative Shuster in
February 1995 conceming a government funded transportation project partially managed by one of her clients,
DMJM. Report at 14-18 (Trip to Puerto Rico). Factual briefings - whether given to Members, or received from
Members - are not lobbying. Supra at 20. Because the briefings at issue here were permitted, there was also nothing
wrong in helping to organize them.

The evidence cited by the Report concerning this trip confirms that it was a proper fact-finding event. That
evidence includes: Representative Shuster’s trip itinerary, showing Representative Shuster attended an official dinner
hosted by the Puerto Rican Government, Report Exhibit 13; the dinner guest list (Report Exhibit 14), showing
eight of the twelve dinner guests were Puerto Rican government officials; a 2:00 pm Tren Urbano Alignment
briefing, a 3:30 pm Tren Urbano aerial tour, and a 5:00 pm meeting with the Governor of Puerto Rico, immediately
followed by a 7:00 return flight to Washington, D.C. Response Exhibit 2. Coupled with this evidence is the
Subcommittee’s own recognition that DMJM employee Nancy Butler testified that the “purpose of the trip was to
educate Representative Shuster on the Tren Urban project.” Report at 16.