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October 6, 2004

TheHonorable Tom DeLay

MajorityLeader

U.S. House of Representatives

SuiteH-107,The Capitol

Washington,D.C.20515

DearColleague:

           Asyou are aware, the Committee has made a number of decisions regarding the allegationsmade in the complaint that was filed against you by Representative Bell onJune 15, 2004. This letterimplements determinations made by the Committee that you be admonished for yourconduct in two respects:

­         your participation in and facilitation of an energy companygolf fundraiser at The Homestead resort for your leadership PACs onJune 2-3, 2002. Those actionswere objectionable under House standards of conduct because, at a minimum, theycreated an appearance that donors were being provided special access to youregarding the then-pending energy legislation.

­         your intervention in a partisan conflict in the TexasHouse of Representatives using the resources of a Federal agency, the FederalAviation Administration. This actionraises serious concerns under House standards of conduct that preclude use ofgovernmental resources for a political undertaking.

The bases of these Committee determinations are asfollows.

           Your actions regarding the energycompany golf fundraiser at TheHomestead resort on June 2-3, 2002. With regard to thesolicitation and receipt of campaign contributions, the Committee has clearlystated that a Member may not make any solicitation that may create even anappearance that, because of a contribution, a contributor will receive or isentitled to either special treatment or special access to the Member in his orher official capacity. This point ismade on p. 34 of theCampaign Activitybooklet that the Committee issued in December 2001.[1] In the same vein, a Member should not participatein a fundraising event that gives even an appearance that donors will receiveor are entitled to either special treatment or special access.

On the basis of theinformation before the Committee, the Committee concluded that yourparticipation in and facilitation of the energy company golf fundraiser at TheHomestead resort on June 2-3, 2002 is objectionable in that those actions, at aminimum, created such an improper appearance. As a general matter, fundraisersdirected to a particular industry or to others sharing a particular federalinterest are permissible, and at such events Members are free to talk abouttheir record and positions on issues of interest to the attendees. In addition, of course, a Member has nocontrol over what the donors at a fundraising event spontaneously say to orask of the Member with regard to their legislativeinterests. Nevertheless, there are anumber of considerations regarding this particular fundraiser that make yourparticipation in and facilitation of the fundraiser objectionable under the above-statedstandards of conduct.

In particular, there was the timing of the fundraiser,i.e., it took place just as theHouse-Senate conference on major energy legislation, H.R. 4, was about to getunderway. Indeed, one of thecommunications between organizers of the fundraiser that you provided to us –an e-mail ofMay 30, 2002 from Mr. Maloney to Mr. Perkins that notes the legislative interestsof each of the attendees – includes a specific reference to theconference. That legislation was ofcritical importance to the attendees. Inaddition, there was the fact that you were in a position to significantlyinfluence the conference, both as a member of the House leadership and, byaction taken about a week and a half after the fundraiser, your appointment asone of the conferees.

           In view of these considerations,other aspects of the fundraiser that would have been unobjectionable otherwisehad the effect, in these specific circumstances, of furthering the appearancethat the contributors were receiving impermissible special treatment oraccess. One of these aspects was thepresence at the fundraiser of two of your key staff members from yourleadership office: Jack Victory, who handled energy issues, and your officecounsel, Carl Thorsen. In addition,there were the limited number of attendees, and the fact that the fundraiserincluded several events at a resort over a two-day period, both of whichfacilitated direct contact with you and your congressional staff members.  

           We also note the description of theevent that was provided to the Committee by counsel for the attendees of one ofthe contributors, Westar Energy, Inc. That description includes the following:

           OnSunday, June 2, 2002 DouglasSterbenz and Doug Lawrence [Westar executives] attended areception and dinner with fifteen to twenty others at theHomestead. Representative Tom DeLay was present for the reception and dinner. Mr. DeLay asked the group to advise him ofany interest we had in Federal Energy Legislation. Mr. Lawrence advised Mr. DeLay that Westarsupported repeal of the P.U.C.H.A. [sic] provision in the Energy Bill, providedthat Westar’s restructuring wouldn’t be harmed by the [r]epeal. Lawrence advised that Westar needed a grandfather clause tocontinue as a safe harbor if P.U.C.H.A. was to be repealed. The following day, Mr. Lawrence provided astaff aide to Rep. DeLay a bound briefing book that Westar had put together onthis issue. [emphasisadded]

           OnJune 3^rd, 2002, Mr. Lawrence attended agolf outing at theHomestead where he played golf with the attendees. Mr. Lawrence shared a cart with an aide toCongressman Delay and advised the aide he would give him the materials in thebriefing book and later did. At lunchthat day, Mr.Sterbenz, Mr. Lawrence and othersparticipating in the golf outing had lunch. During the lunch Mr. Lawrence restated to Rep. DeLay Westar’s positionregarding the need for a grandfather clause if P.U.H.C.A. was to be repealed. 

           When we brought the above-quotedstatement to your attention and requested your response to it, you stated that yougave a general briefing on energy issues at that event, but that you have norecollection of your specific remarks. Youalso stated that “it would not be typical” for you to have made such astatement at a fundraiser, and that this is not at all consistent with themanner in which you “normally would interact with attendees at such anevent.” In view of your response, theCommittee’s determination on this matter is not based on Mr. Lawrence’scharacterization of your remarks. Rather, the other circumstances of the event, as set forth above, aremore than sufficient to support the Committee’s determination.

In addition, while the views of any one donor are notdispositive on whether a fundraising activity creates anappearance of impropriety, the documents we obtained indicate that theindividuals who were active on Westar’s behalf were of the view that thecompany’s participation in the fundraiser provided special access to you. In this regard, later in June 2002, when Mr.Lawrence was proposing that Westar executives make additional contributions, hestated that Westar had made “significant progress” with you and RepresentativeBarton, and that, “The contributions made in the first round were successful inopening the appropriate dialogue.” When we asked Mr. Lawrence about thatstatement, he said he was referring to the presentations he was able to make atthe fundraiser earlier that month. Inaddition, the following month, when Westar’s lobbyist, Mr. Richard Bornemann,sent a memorandum to your staff seeking an appointment with you for thecompany’s CEO, he noted Westar’s participation in The Homestead fundraiser.

           Your use of governmentalresources for a political undertaking. The Committee has longtaken the position that House standards of conduct prohibit Members from taking(or withholding) any official action on the basis of the partisan affiliation(or the campaign support) of the individuals involved. This is the point made in an advisorymemorandum that the Committee issued to House Members, officers and employeesonMay 11, 1999. In addition, a provision of the Code ofEthics for Government Service, which the Committee deems to be fully applicableto House Members and staff, requires that federal officials “[u]phold the Constitution, laws, and legal regulations of theUnited States and of all governments therein and never be a party to theirevasion.” These laws include, of course,those that generally prohibit the use of governmental resources for politicalpurposes – particularly 31 U.S.C. § 1301, which provides that official fundsare to be used only for the purposes for which appropriated, and, with regardto executive branch personnel, the Hatch Act, which prohibits those employeesfrom engaging in political activity while on duty or in a government building.

           Yourintervention in a partisan conflict in the Texas House of Representatives usingthe resources of a Federal agency, the Federal Aviation Administration, raisesserious concerns under these standards of conduct. Your contacts with the FAA were in connectionwith the dispute over congressional redistricting in the Texas House ofRepresentatives that occurred in May 2003. The purpose of these contacts was to obtain information on thewhereabouts of Democratic Members of the Texas House who had absentedthemselves fromAustin for the purpose of denyingthe House a quorum. You have stated tous that you made these contacts at the request of the Speaker of the TexasHouse of Representatives, who was seeking information on the location of anairplane that was shuttling the absent legislators, and that you relayed theinformation you had obtained on the location of the airplane solely to theTexas House Speaker.

Thesubmissions that you made to the Committee argue that those contacts with theFAA were proper, but those arguments are not persuasive.

First, yoursubmissions assert that the Inspector General of the U.S Department ofTransportation (DOT IG) found no wrongdoing in this matter. It is correct that the statement that the DOTIG submitted to the House Transportation and Infrastructure Committee states,“We did not find that actions [taken by the FAA official whom your officecontacted] in this matter to have violated any rules or regulations.” However, the assertion made in yoursubmissions disregards a number of important considerations. To begin with, the DOTIG’sstatement raises specific concern about the FAA official’s failure to inquireof your staff member as to why she was requesting information on the locationof the particular airplane, “[W]e do not understand why he did not ask thestaffer about the purpose of her request – particularly since he told us hethought it might involve a safety issue.” In addition, there are the statements made by the FAA official to theDOT IG regarding his views of the requests of your office and his handling ofthem after he learned about the absentTexaslegislators on May 13^th:

I figured out why theywere calling. . . I just felt like I had been used. . . I don’t do anything forpoliticalpurposes. . . and I just did not like. . .somebody calling me for political reasons. . . I would never use my office tohelp somebody politically, for any political reasons, period.  

He also stated that inhindsight, “he would have handled the staffer’s request differently, bycoordinating with the FAA Chief Counsel’s Office and senior agency officials,along with asking the requestor for background about the request.” In short, without being apprised of thereason for the request, the FAA was denied the opportunity to make a prior,reasoned determination on whether collecting and providing the requestedinformation would be both permissible and appropriate under the laws, rules andpolicies governing the FAA at the time.        

           Yet another pertinent point here is that onJuly 15, 2003, upon therecommendation of the DOT IG, the FAA issued an order setting out a specificpolicy regarding disclosure of aircraft and flight data from FAA informationsystems. That policy includes thefollowing basic provision:

No request for FlightTrack Data shall be granted unless it is first determined that the request isbeing made in the interest of aviation safety or efficiency, or for an officialpurpose by a United States Government agency or law enforcement organizationwith respect to an ongoing investigation.

In sum, thestatements made by the FAA official regarding his views of his actions after hehad learned the purpose of the requests, and the FAA’s later establishment of arestrictive policy on responding to such requests, indicate a larger concernabout the propriety of the FAA’s response to your requests for information,regardless of whether, in the specific circumstances, the actions of the FAAofficial did not violate the FAA rules or regulations that were in effect atthe time.

Second, itis asserted that the House Committee on Transportation and Infrastructure foundno wrongdoing in this matter. In thisregard, the report that the Transportation Committee issued on this matterstates with regard to the DOTIG’s report, “[T]herewere no findings that federal resources were misused or that agency personnelviolated any departmental rules or regulations.” Because the Transportation Committee reportmerely characterizes the findings of the DOT IG, the materials set out aboveregarding the DOTIG’s report respond to thisassertion as well. It should also benoted that it is the Committee on Standards of Official Conduct, and not theTransportation Committee, that has the jurisdiction to make determinationsregarding the official conduct of House Members and staff.           

           Third, your submissions assert thatthe information that you sought and that was provided to you is publiclyavailable over the Internet. Indeed,according to the statement of the DOT IG, “[C]omparableinformation – including near real-time aircraft locator data – is currentlyavailable to the general public through commercial databases accessible via theinternet.” However, the issues discussedhere have arisen because you did not obtain the information on the location ofthe particular aircraft from one of the commercial databases, but instead youobtained it from FAA databases using the services of FAA personnel.

           Finally, your submissions assert that these contacts wereproper because they were made in the context of a “legitimate law enforcementissue.” While acknowledging that this matter arose out of a political dispute,one of your submissions states that it “was a proper matter for the lawenforcement authorities ofTexas,”citing certain letters of the Sergeant-at-Arms and the Texas Attorney General onthe matter. However, review of thosedocuments establishes that to the extent that there was any “enforcement” issuehere, it was solely a matter of enforcement of rules of the Texas House ofRepresentatives that govern its Members.

Indeed,this consideration highlights a separate basis on which the contacts with theFAA were objectionable, and that is that such use of federal executive branchresources to resolve an issue before a state legislative body raises seriousconcerns under the fundamental concepts of separation of powers and federalism. The enforcement of the rules of the TexasHouse – like enforcement of the rules of the U.S. House of Representatives orany other legislative body – is the responsibility of the Members, officers andemployees of that body. 

Insofar asenforcing the rules of the Texas House on Member attendance is concerned, therules of that body provide that this is the responsibility of “thesergeant-at-arms or an officer appointed by the sergeant-at-arms.” Whether it is permissible and appropriate forthe Texas House Sergeant-at-Arms to appoint every official of the TexasDepartment of Public Safety as such an officer, as occurred here, is a matterto be resolved byTexasauthorities underTexas law. However, the invocation of Federal executivebranch resources in a partisan dispute before a state legislative body is adifferent matter entirely, and such action raises the serious concerns that areset out here.

*  *  *

           Wenote that your response to the Committee’s decision of last week included thestatement, “During my entire career I have worked to advance my party’slegislative agenda.” Your actions thatare addressed in this letter, as well as those addressed in the Committee’sdecision of last week and in prior Committee actions, are all ones that, in abroad sense, were directed to the advancement of your legislative agenda. Those actions are also ones that your peerswho sit on this Committee determined, after careful consideration, went beyondthe bounds of acceptable conduct. 

As you are aware, it doesnot suffice for any House Member to assert that his or her actions violated nolaw, or violated no specific prohibition or requirement of the HouseRules. The House Code of OfficialConduct broadly requires that every House Member, officer and employee “conducthimself at all times in a manner that shall reflect creditably on the House.” It is particularly important that members ofthe House leadership, who are the most publicly visible Members, adhere to thisrequirement scrupulously. The fact thata violation results from the overaggressive pursuit of one’s legislative agendasimply does not constitute a mitigating factor.

In addition, a state criminalinvestigation of the 2002 election activities of the Texans for a RepublicanMajority PAC, with which you were involved during the period in question, isunderway. While Committee action onCount II of the complaint regarding those activities has been deferred pendingfurther action in the state cases and investigation, the Committee will act onthe underlying allegations at an appropriate time. 

In view of the number ofinstances to date in which the Committee has found it necessary to comment onconduct in which you have engaged,[2]it is clearly necessary for you to temper your future actions to assure thatyou are in full compliance at all times with the applicable House Rules andstandards of conduct. We remind you thatthe House Code of Official Conduct provides the Committee with authority “todeal with any given actor accumulation of acts which, in the judgmentof the committee, are severe enough to reflect discredit on the Congress.”[3]              

Sincerely,

                       Joel Hefley                                          AlanB. Mollohan

                        Chairman                                      RankingMinority Member