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Perhaps in an effort to provide some institutional reform in the wake of last year’s page scandal, the House of Representatives on Friday voted to expand the membership of the board that oversees its page program and to require regular meetings of that board. These simple reforms seem obvious and are certainly appropriate. They do not, however, go far enough. When the House Ethics Committee began its investigation of then-Rep. Mark Foley’s sordid behavior last fall, cynics predicted that the committee would “do nothing.” When the committee report failed to recommend discipline, critics called it a whitewash and cited it as another example of Congress’ inability to police itself. Public frustration with the lack of accountability for lawmakers and staffers is understandable. But not all of that frustration should be directed at the individuals charged with investigating the Foley affair and imposing discipline. Save some of it for the vague and inadequate congressional rules that failed to guide those who were trying to fix the problem. Save serious criticism for a system that naively hoped everyone would behave well in the absence of real monitoring. The facts set forth in the December 2006 House ethics report clearly demonstrate that many people — both members of Congress and their staffers — knew about Foley’s inordinate interest in young male pages and failed to adequately address it. The committee’s conclusion that the repeated refusals to act constituted “errors in judgment,” rather than violations of any standards of conduct, feels hollow and unsatisfying. But it may be the correct interpretation of the relevant House rules. These rules suffer from an increasingly antiquated vagueness, which encourages results like this in which behavior is criticized but discipline is avoided. What Congress needs to do next is quite clear — and more board meetings aren’t enough. Congress must promulgate specific standards to govern the interaction between lawmakers and the teenagers who work around them. Better rules and specific assignment of responsibility to investigate violations of the rules will increase accountability and perhaps stop a future predatory politician much, much sooner. GETTING FACTS STRAIGHT My perspective on this issue is informed by my representation of a central witness in the page inquiry — Foley’s former chief of staff, Kirk Fordham. The investigative panel established by the Ethics Committee to look into the Foley matter was impressive in its professionalism and its ability to gather the facts. It took testimony from more than 40 witnesses and reviewed voluminous documents. Panel members did their work with an appropriate level of urgency. They asked Fordham thoughtful questions. They operated in an evidently bipartisan fashion. The product of their diligent investigation was a most comprehensive report. The narrative chronology that made up the bulk of the report was very detailed and complete. In its factual recitation, the report resolved conflicts in the testimony and accurately documented the conduct at issue. In its conclusions, the report accurately characterized the conduct at issue. It identified a series of “errors of judgment” that allowed Foley’s conduct to continue unchecked for years. The report was a meticulous accounting of the scandal, generated quickly and reliably. But once the investigation had been completed, the ethics panel had to apply those facts to the rules governing the conduct of those within its jurisdiction — that is, members of Congress and their staffers. That’s exactly where the system came up short. The report noted two specific rules that might apply. The first is found in the Code of Official Conduct governing members and employees of Congress, codified as Rule 23 of the Rules of the House of Representatives. The code provides that “a Member . . . or employee of the House shall conduct himself at all times in a manner that shall reflect creditably on the House.” As the report observed, this clause is purposely vague to preserve “the ability to deal with any given act or accumulation of acts which, in the judgment of the committee, are severe enough to reflect discredit on the Congress.” The second rule is found not in the House rules but in the more broadly applicable Code of Ethics for Government Service. Clause 9 provides that all government employees “should . . . expose corruption wherever discovered.” These rules raise the inevitable question of what conduct rises (or sinks) to the level of bringing discredit upon the House and what one must do to expose corruption within the government. Is failing to confront another member of Congress who has sent a former House page an e-mail message asking the boy for a “pic” a failure to “expose corruption”? Does convening a meeting of House leaders in the hours after the resignation of a member to compare stories on who was made aware of that member’s conduct an act that “reflects creditably on the House”? These are difficult questions to answer, particularly in the vacuum in which the congressional ethics process operates. Consider the closest precedent: Twenty years ago, then-Reps. Gerry Studds (D-Mass.) and Daniel Crane (R-Ill.) were censured for engaging in sexual encounters with underage pages. Their conduct violated not only the Code of Official Conduct but also several criminal statutes governing sexual relations between adults and children. Did that matter provide direction for handling the Foley scandal? Not in any way that would deflect the current criticism. Because Foley had resigned and thus taken himself out of the jurisdiction of the Ethics Committee, the committee was left to evaluate whether other lawmakers and staffers had failed to confront and supervise Foley. Obviously, Studds and Crane had behaved in a much more nefarious fashion than those lawmakers and staffers, and yet they had only been censured. Nothing else in the history of the House involving pages and supervision comes close to a parallel scenario. The vagueness of the House ethics rules stands in stark contrast to the process by which criminal charges are adjudicated. Criminal laws are supposed to state clearly what conduct is prohibited, and criminal defendants must be provided specific notice as to what laws they have allegedly violated. The House ethics rules neither contain nor require any similar statement as to what constitutes sanctionable conduct. The lack of clear standards handicapped everybody (except, perhaps, Foley himself). In determining whether to sanction anyone who had been informed of Foley’s misdeeds yet failed to act, the Ethics Committee was writing on a blank slate, rather than contributing another chapter to an evolving story of House scandal and punishment. The members and staffers whose actions were criticized in the report were also in the dark. They took action or decided against taking action based on their personal best judgment at the time these events were unfolding. They were not able to consult a clearly articulated body of law that set forth their individual responsibilities to supervise or report alleged misconduct. Corporations today are well-advised to have a clear sexual harassment policy setting forth who must report allegations, who must respond to those reports, and what kind of investigations must occur. Employees with clear guidelines are on notice as to what is and is not permissible behavior and to whom any concerns should be directed. They are not left on their own to puzzle through difficult questions of what is improper or where they should go to report a specific incident. Those who were informed of Foley’s “inappropriately friendly” behavior had no such guidance. NO MORE CLOSE ENCOUNTERS In the future, Congress must provide more specific rules governing both the interaction between lawmakers and underage staffers and the obligation of the leadership to more actively supervise members and staff. The new rules need not be overly complex or detailed, but they must be clear enough to provide fair notice of impermissible conduct. They must also establish a definite channel of reporting. It seems rather obvious that sexually charged communication between adults and children anywhere should be prohibited. That basic restriction is even more important within the context of Congress, where powerful lawmakers interact routinely with high-school students who are interested in political careers but are vulnerable to pressure. So why not restrict all unofficial communication between pages and interns and the congressmen they serve? Congress should state clearly that all communication between members and underage employees are to go through official channels. In the case of the House, that would mean House telephone and e-mail accounts. Of course, it would be shortsighted to focus only on the risk of inappropriate e-mails. Unsupervised personal contact between lawmakers and underage pages and interns should also be restricted, and social encounters limited to official events. The military prohibits fraternization between officers and enlisted personnel in the belief that such separation promotes fairness and discipline in the chain of command. Doesn’t the same logic apply in Congress, where the imbalance of power between lawmakers and pages is much more pronounced and ripe for abuse than that between colonel and corporal? In the realm of supervision, Congress should set forth a clear chain of authority to field complaints and resolve issues relating to underage employees. Some nonpartisan entity, such as the clerk of the House or the page board, should be given additional resources to monitor the working conditions of pages and interns and to oversee compliance with the standards restricting fraternization. Jeff Trandahl, the clerk of the House who was made aware of allegations that Foley was trying to visit the pages’ dorm, should have had a strong mandate and a clear road map to confront that problem. If the various officials who might assume this important supervisory function are insufficiently independent, an ombudsman could be appointed. The basic point is that someone should be charged with following up on the smoke of “inappropriately friendly” communications before such communications erupt into the fire of sexual misconduct. The House Ethics Committee did a fine job in uncovering who knew about Foley’s interactions with pages and who did or did not act on that knowledge. But the story must not end there. New rules must strengthen the system to prevent future problems. Taking those simple steps will protect the young people who work on Capitol Hill, restore the public’s faith in the legislature, and “reflect creditably” upon Congress.
Timothy J. Heaphy is a partner at McGuireWoods. He is a member of the firm’s government investigations team, practicing in Washington, D.C., and Richmond, Va.

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