Even the Weakest Ethics Committee Disapproves of Tom Davis

By: Andrea Chamblee
Published On: 11/3/2006 2:21:24 PM

This Summer, the Washington Post interviewed Tom Davis (R-VA), about his getting his wife a job at ICG, his friend's consulting business. After the interview, Davis obtained a letter from the Ethics Committee about the arrangement. Although Davis states the letter clears him from wrongdoing, in actuality the letter does not. It cautions him about the arrangement. In response, he covered some of his tracks by removing information from the ICG website. The company had to register as a lobbyist. This is remarkable given the weakness of the Committee. Were the members not recipients of Davis campaign contributions, they might have done more.
The most important point in the Ethics letter is that if the benefits obtained by his household from ICG or its clients are given under circumstances would cause a reasonable person to believe the benefit influences Davis -- and it does -- she should get another job. However, she continues to seek clients who have business before his Committee.
Luckily, Davis is facing a honest and tireless challenger with a positive vision for 2006. Please donate to and volunteer for Andy Hurst today.
Crossposted on Daily Kos
The ethics letter is here

Dear Colleague:

This responds to your letter of July 14, 2006 requesting an advisory opinion
concerning the application of House rules to employment that your wife, Jeanne Marie Devolites, has with ICG Government (GÇ£ICGGÇÖ)- Based on your letter and Committee counselGÇÖs conversation with your staff, the background in this matter is as follows.

Note: This letter is not a report of an investigation. The only information the Ethics Committee relied on was information provided by Davis himself in his own letter, which was not made public and has not been checked for accuracy.  Davis did not provide Information on the clients of ICG and the Committee did not evaluate that information.  Davis did not include information on the benefits they received from him and those he received from them, and the Committee did not evaluate that information.  Furthermore, there are inconsistencies in important facts provided by Davis in the letter and those in the Post article; a significant omission is the number of ICG-sponsored meetings Davis has attended.  There are also several statements by Davis relied upon by the Ethics Committee that have not been verified, such as that ICG need not register as a lobbyist because it spends less than 20% of time lobbying, which seems inconsistent with the company decision to register after work on the Washington Post article began.

ICG provides consulting services to technology companies seeking to do business with the federal and state governments. The principal of ICG, Donald Upson, is a personal friend of yours whom you have known for 20 years. He is not a registered lobbyist- Your wifeGÇÖs responsibilities with ICG include identifying government contracting opportunities for the firm's clients.
Additional facts are relevant here that are not provided by Davis or evaluated by the Committee in this letter.  Davis used his position to champion changes to Federal contracting that had a substantial effect on ICG and other companies that identify government contracting opportunities for clients.  Davis led three major changes to how contacts are awarded, how performance is measured during the course of the contract, and how success or failure is evaluated afterward:
(1) Davis was a co-sponsor and champion of HR1670, the Federal Acquisition Reform Act of 2005, which increased the number of contracts awarded non-competitively.  ICG Government was founded by an author of the FAR Act;
(2) Davis spearheaded GÇ£Share in SavingsGÇ¥ which changed how spending under contracts is monitored.  GSA had awarded a $3 billion blanket purchase agreement to six contractors to help push share-in-savings forward, but never awarded any work through it.
(3) As head of the Government Reform Committee, Davis controlled the agenda and by refusing to review spending and services under contracts, failed to hold contractors responsible for billions in wasteful spending in Iraq and the post-Katrina Gulf Region. GAO agreed with these assessments on both Iraq and Katrina.
These actions made it easier for businesses to obtain contracts against the wishes of the Agency that requires their services by permitting Congressional and other outside interests to manipulate and influence the contracting awards, performance monitoring, and oversight.

Specifically with regard to the federal government, "her job primarily involves seeking appropriate executive branch officials, usually Chief Information Officers, to participate in conferences and seminars attended by private firms regarding contacting opportunities with the federal government-" She is not a registered lobbyist, and her employment with ICG predates your marriage. We also understand that your wife is a Member of the Virginia Senate.
According to the Post article, Davis began as the campaign manager for Jeanne Marie Devolites in 1997. Davis began to direct tens of thousands of dollars from political action committees under his control to her campaign. Over the next decade, as she moved from being a delegate to a leader of the Virginia Senate, Davis's political action committees gave her more than $172,000.  ICG Government was formed in 2003. Davis divorced his first wife between 2003 and 2004, and married Devolites in 2004.

During your tenure as Chairman of the Committee on Government Reform, you have attended approximately 70 federal technology policy and government contracting conferences, including three that were sponsored by ICG. While you attendance at ICG-sponsored conferences predates your marriage, since your marriage you have attended several other conferences sponsored by ICG clients. Your wife, however, did not request that you attend these conferences, and we understand, based on Committee counsel's conversation with your staff, that your attendance at ICG-related conferences does not affect her employment status or compensation.
The Washington Post found that Davis had attended significantly more than 3 meetings.
GÇ£Davis and his current and former staffers have appeared at least 15 times as featured speakers or participants at seminars organized by ICG and affiliated firms at places such as the Ronald Reagan Building in the District or the Tysons Corner Ritz-Carlton. At least two ICG-organized events were held in the Government Reform Committee chambers.GÇ¥
From the start, ICG openly touted its ties to Davis. The firm's Web site prominently featured a photograph of the congressman speaking in front of an ICG banner.
This does not address the occasions when someone associated with OCG other than his wife made a request for his appearance.
These meetings raise substantial amounts for ICG Government at approximately $900 per registration, and Jeanne Marie Devolites Davis is a partner at ICG.  Nevertheless, , this letter does not address that the compensation of partners generally is tied directly to company performance, and events such as these are likely to have a substantial affect her income

In addition, the Government Reform Committee has contacted Mr. Upson regarding the appearance of two of his clients at committee hearings. Your letter states that GÇ£[i]n once instance, [Mr. Upson] suggested a particular client testify. In another, we asked him to assist us in securing the appearance of one of his clients. On other occasions, I have declined Mr. Upson's requests for particular witnesses to testify."
This does not address how many times Mr. Upson or associates at ICG Government made suggestions or recommendations for speakers.  How many occasions were requests made?

Your letter also asks three questions, which are set forth below with the CommitteeGÇÖs responses.
Note that the answers to these questions require additional information to reach a conclusion on whether DavisGÇÖs financial gains are ethical.

(1) Does the employment of my wife by a firm that consults with companies seeking and doing business with the federal government violate any rule of the House or standard of conduct when her job involves helping firms identify contracting opportunities in the executive branch?

This is an incomplete question.  Davis describes his wifeGÇÖs job as one that includes identifying contracting opportunities in government agencies. Davis does not address his role in facilitating government contracting awards, monitoring, and oversight discussed above.  These actions by him made it easier for businesses to obtain contracts against the wishes of the Agency that requires their services by permitting Congressional and other outside interests to manipulate and influence the contracting awards, performance monitoring, and oversight.
Notice the question does not address donations and contributions by any of these clients seeking contracts to the campaign funds of Davis, his Va Victory PAC, his Federal Victory PAC, or any of his wifeGÇÖs campaign funds.
For a complete answer, Davis and his wife would have to release the list to the Ethics Committee of the ICG clients and their contributions.
As the Ethics Committee is controlled by the Republican majority and Davis and his PACs have donated generously to the RNC and specifically to the campaign funds of 3 of the 5 Ethics CommitteeGÇÖs majority members (Biggert, Cole, and Hart), it is reasonable to expect that the Ethics Committee would also not take initiative to request this information. Also the Ethics Committee took years to respond to the   illegal actions of Tom DeLay, no meaningful action against Tom DeLay for a decade, it is reasonable to expect that they Ethics Committee would also not take initiative to request this information. Moreover, in truth, the Ethics Committee is powerless; as punishment for admonishing Tom DelayDennis Hastert fired the Chairman and two members.

Generally, the answer is GÇ£no." The Committee's basic guidance in this area is that the spouse of a Member is free to seek any employment and accept any business opportunities the spouse desires. However, general ethical standards require that any benefits received by a Member from a private source, and the Member's performance of congressional duties, be examined to determine if any impropriety exists. Such an examination is necessary with regard to spousal employment because the income received by a Member's spouse usually accrues to the Member's interest.
The rules and standards applicable to Ms. Devolites' business interests and their relationship to your position as a Member of Congress include the prohibition that Members not use their position with the House for personal gain. In this regard, one provision of the House Code of Official Conduct provides that a Member "may not receive compensation and may not permit compensation to accrue to his beneficial interest from any source, the receipt of which would occur by virtue of influence improperly exerted from his position in Congress."' In addition, under the Code of Ethics for Government Service, a federal official, including a Member of the House, is prohibited from:
GÇó "discriminate[ing] unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not'
This means granting meetings to any client of ICH or agreeing to appear at ICG events is unethical if it is based on DavisGÇÖs friendship with Upson or his relationship with his wife regardless of contribution salary, or other or financial remuneration

GÇó "accept[ing] for himself or his family, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of his governmental duties" (ld.) (emphasis added), or
This may be the most important point made in the letter:  it means the intent of Davis or his wife has nothing to do with whether it is ethical for Davis or his wife to accept gifts or contributions or even salary from ICG, Upson, its clients, or others seeking government contracts.  It means that if the benefits in question GÇö salary or bonuses from ICG, contributions or gifts from ICG or its clients GÇö are presented under circumstances would cause a reasonable ICG employee, partner, client GÇö or an unaffiliated voter GÇö to construe the favor or benefit as influencing the performance of DavisGÇÖs official actions, or questioning the potential for confidential information to be compromised (see below).

GÇó  GÇ£us[ing] any information coming to him confidentially in the performance of governmental duties as a means for making private profitGÇ¥(-¦8).
This means information about pending contracts, other bidders, potential oversight activities (or intent to withhold oversight) that Davis obtains from his agency oversight or any other sources must be used by Davis or his wife.  The letter does not address the use of confidential information implicated by one practice of Davis called GÇ£churningGÇ¥ (seeing what GÇ£floats up from the bottomGÇ¥) by withholding final decisions on legislation, contract awards, and oversight,  so as to influence and extend the period during which contributions, donations, and gifts might be made by potential beneficiaries.  This use of information is unethical even if the final decision is ultimately not in favor of the donor.

Moreover, another provision of the Code of Official Conduct requires Members to adhere to the spirit as well as the letter of the House rules,2 and this Committee routinely advises Members to avoid situations in which even an inference might be drawn suggesting improper conduct [emphasis supplied]. These provisions usually are not triggered by a spouse's employment, unless the Member has improperly exerted influence or performed official acts in order to obtain a financial benefit for, or as a result of a financial benefit conferred upon, his or her spouse.

Since it is reasonable to infer improper influence is likely based on donations by Upson, ICG, or ICG clients to his Va Victory PAC, his Federal Victory PAC, his own campaign fund, or to any of his wifeGÇÖs campaign fund, Davis should not conduct business with ICG or its clients.
Since it is reasonable to infer that the presence of Davis or his staff at ICG conferences will boost attendance and fees at the conference that will have a direct effect on the salary and bonuses of ICG partners, and since DavisGÇÖs wife is a partner, DavisGÇÖs appearance at ICG conferences has a direct effect on the Davis family finances.

In view of these provisions, Ms. Devolites should avoid discussing her relationship to you as a Member of Congress when soliciting either clients for ICG or participants for ICG-sponsored conferences. One or more of the provisions outlined above may be implicated if she were to invoke your name or position in Congress when soliciting clients or conducting other activities on behalf of the firm, whether or not the client was previously known to you or your wife. Thus, as a general matter, Ms. Devolites should not use her relationship to you in connection with any activity in which she is involved on behalf of her business interests, so as to avoid a claim that you are allowing yow official title to be used for private gain.
Both ICG and DavisGÇÖs wife use DavisGÇÖs name and position when soliciting clients. ICG\GÇÖs home page prominently featured a photograph of Davis speaking at the latest ICG conference, beside a photograph of the head of the Department of Homeland Security, n Agency under the oversight of DavisGÇÖs Government Reform Committee and a GÇ£cash cowGÇ¥ for contractors. 
Furthermore, Mrs. Davis uses Congressman Davis when soliciting clients.  She is the only partner at ICG who mentions her marital status at all on the ICG website.  Upson and the other partner, Boyd, do not.  The bio of Mrs. Davis not only states she is married, but lists Davis by name and his Congressional position.

More generally, none of the provisions discussed above would be triggered absent the existence of concrete circumstances indicating that a benefit received by a Member resulted from an improper exertion of influence by the Member, or that official acts have resulted from the prospect of private compensation to the MemberGÇÖs spouse and, thus, indirectly to the Member. Nevertheless, you do need to bear in mind that these provisions may well be implicated with regard to any efforts that you consider undertaking that may benefit your wife's business interests.
Voters should feel obligated to hold Davis to a higher standard.  This establishes that this Ethics Committee would not take action against one of its own unless DavisGÇÖs actions meet a nearly-impossible standard.  After stating in bullet 2 of its answer to question 1 that the appearance of impropriety would be unethical, the Committee now states it would require evidence demonstrating GÇ£concrete circumstances indicating that a benefit received by a Member resulted from an improper exertion of influence by the Member, or that official acts have resulted from the prospect of private compensation to the MemberGÇÖs spouse and, thus, indirectly to the Member.  Absent a GÇ£Duke Cunningham-like bribery shopping list,GÇ¥ it is difficult to imagine such circumstances.

Because of your position as Chairman of the Government Reform Committee, we also note that with respect to your sponsoring legislation or taking other official action that may possibly affect your financial interests, the Committee's guidance is that such actions are subject to the same standards that apply to voting on legislation on the House floor. The rule governing voting on legislation on the House floor provides that a Member has a duty to vote on each question put, unless he has a direct personal or pecuniary interest in the event of such question."  Longstanding House-precedents provide that "where legislation affected a class as distinct from individuals, a Member might vote."4  As explained in the House Ethics Manual, this provision has been interpreted to require a Member to abstain from voting only on a matter that would affect the Member in a direct and distinct manner, rather than merely as a member of a class.

(2) Does my appearance at any conference organized by a firm or a client of a firm where my wife is-employed violate any rule of the House or standard of conduct when my appearance was not solicited by my wife?

This is an incomplete question.  Notice the question does not address appearances at sponsored or co-sponsored conferences, appearances at events that are not conferences, appearances at any of these events by his staff, or his influence on the selection of others to appear.

Generally, the answer is "no." However, based on the circumstances, one or more of the standards discussed above may be implicated if your attendance at a conference sponsored by lCG, or one of its clients, would result in compensation or some other benefit being conferred to your wife and, therefore, indirectly to you. Accordingly, it will be necessary for you to bear these standards in mind when deciding to appear at, or lend your name in support of, a conference or other undertaking associated with ICG. We also recommend that you contact the Committee for particular guidance in connection with requests may receive to appear at such conferences'
GÇ£Davis and his current and former staffers have appeared at least 15 times as featured speakers or participants at seminars organized by ICG and affiliated firms at places such as the Ronald Reagan Building in the District or the Tysons Corner Ritz-Carlton. At least two ICG-organized events were held in the Government Reform Committee chambers.GÇ¥

(3) Does the appearance at a Committee hearing of a qualified witness who is an ICG client we requested through Mr. Upson or whom Mr. Upson requested violate any rule of the House or standard of conduct?

This is an incomplete question.  It does not address the appearance of ICG influence on Davis, on contract awards, and on contract oversight that would influence a potential contractor to select ICG over other firms. This would raise the appearance of impropriety addressed in the Ethics Committee answer to question 2.  The selection of ICG over those other firms thereby would increase Mrs. DavisGÇÖs compensation, raising the unethical benefit discussed in question 1, second bullet.
It does not address that qualified witnesses represented by other consultants would be passed over and unable to provide testimony.  It does not address the potential for the selection of unqualified witnesses because of their association with ICG or Mrs. Davis.

Generally, the answer is "no." Although it would appear to be a remote possibility that scheduling a client of ICG to appear before the Government Reform Committee would result in a benefit being conferred to the client, we recommend that you bear in mind the general ethical considerations discussed in this letter in your interactions with Mr. Upson and clients or potential clients of his firm. Any of the standards discussed above may be implicated by your activities or the actions of the Committee that would be deemed by this Committee as constituting an impermissible GÇ£special favorGÇ¥ to Mr. Upson or your wife, ICG, or one of the firmGÇÖs clients.

If you have any further questions, please contact the Committee's Office of Advice and Education at extension 5-7703.
Sincerely,
Don Hastings, Chairman;  Howard L. Berman, Ranking Minority Member

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