Following the NLRB Office of Inspector General’s report on General Counsel Lafe Solomon’s conflict of interest in a matter before the board, Cause of Action is providing the following legal analysis for public education.
Cause of Action Memo on NLRB OIG Report Re: Lafe Solomon Conflict of Interest
The Office of Special Counsel reported findings today that Health and Human Services Secretary Kathleen Sebelius violated the Hatch Act in February when she called for re-electing President Obama during an official department appearance. Cause of Action is calling on President Obama to fire Kathleen Sebelius for this clear violation of federal law.
Statement from Cause of Action Executive Director Dan Epstein:
“This is the most high profile example of a Hatch Act violation since the Act was passed in 1939. Never before has a member of the President’s Cabinet been found to have committed a Hatch Act violation. President Obama should immediately fire HHS Secretary Sebelius for her violation of federal law. Additionally, the Justice Department should begin an investigation into any potential election crimes the Secretary may have committed through her then-taxpayer funded comments on February 25, 2012. The American public deserves a President committed to the law and committed to a Cabinet that understands the difference between politics and public service.”
Inspector General at NLRB May Have Ignored Evidence Against Lafe Solomon and Wilma Liebman
WASHINGTON – Cause of Action (CoA), a government accountability group, sent a letter on Monday to National Labor Relations Board (NLRB) Inspector General David Berry (IG Berry) requesting documents and communications about alleged ex parte communications by NLRB Acting General Counsel Lafe Solomon and former NLRB Chair Wilma Liebman first revealed by CoA in November of 2011.
On November 22, 2011, CoA requested that IG Berry open an investigation to determine whether Wilma Liebman engaged in ex parte communications with Lafe Solomon. CoA submitted several emails evidencing communications between Solomon and Liebman concerning strategies surrounding the pending litigation by the NLRB against the Boeing company. Despite this evidence, deposition transcripts from March 15, 2012 related to the NLRB’s investigation into Terence Flynn reveal that IG Berry denied any other instances of ex parte communications, stating “If I have evidence other people are engaging in this type of conduct, we would look at other individuals.” While Inspector General Berry has not confirmed whether an investigation has begun, CoA is concerned that Berry may have delayed investigating CoA’s allegations until after the OIG’s two investigations into two Republicans at the NLRB: Board member Brian Hayes and then-Chief Counsel Terence Flynn.
CoA’s Executive Director, Dan Epstein, is concerned about IG Berry’s apparent failure to promptly investigate allegations of improper communications:
“In November 2011, Cause of Action provided IG Berry with internal NLRB emails evidencing potential ex parte communications between Lafe Solomon and Wilma Liebman during Lafe Solomon’s litigation against Boeing in 2011. These alleged ex parte communications were shown to have occurred even after Lafe Solomon filed the complaint against Boeing in April 20, 2011. The allegedly improper communications by Terence Flynn occurred starting in September 2011; the alleged improper communications from Member Hayes occurred between September and November 30, 2011. And yet investigations of Hayes and Flynn occurred even though the alleged improper activities by Wilma Liebman and Lafe Solomon occurred months before. As CoA states in its letter to IG Berry, ‘we are particularly troubled that a decision, if any, to investigate the allegations of ex parte communications by Wilma Liebman and Lafe Solomon after substantial delay may be arbitrary and capricious, if not politically charged.’ This is why we are requesting any documents from the NLRB that would verify that IG Berry is in fact investigating based upon the evidence Cause of Action submitted to him nearly 10 months ago.”
CoA’s letter, a Freedom of Information Act request, asks for the following:
1) All records, including e-mails, referring or relating to Cause of Action’s November 22, 2011 request for an NLRB OIG investigation.
2) All records referring to or related to Congressman Kline’s letter of April 13, 2012.
3) Any and all investigative reports or documents submitted to Congress regarding the substance of Chairman Kline’s April 13, 2012 letter.
4) All records referring to or related to allegations of ex parte communications from officials of the NLRB pertaining to the Boeing matter referenced above.
5) All records pertaining to concluded investigations or determinations made regarding Cause of Action’s November 22, 2011 request for investigation.
6) All records of any concluded investigations, both criminal and administrative, into NLRB ex parte communications regarding the Boeing matter referenced above.
7) All records referring or relating to why investigative reports such as Reports concerning OIG-I-467 and OIG-I-468 are not publicly posted by the NLRB OIG.
8) All documents referring or relating to the procedures used by the NLRB OIG to determine whether information or allegations are sufficiently “credible” to warrant the launching of an investigation.
9) Any and all records concerning referrals by the NLRB OIG to the U.S. Department of Justice.
The full letter can be found here.
Previous requests and findings by CoA concerning ex parte communications at the NLRB can be found here.
About Cause of Action:
Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit www.causeofaction.org.
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