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.
Subordinates told “how to vote if they wanted to keep their job”
WASHINGTON – Cause of Action (CoA) released documents today revealing a potential Hatch Act violation at the Federal Aviation Administration (FAA) involving John J. Hickey, deputy associate administrator for aviation safety at the FAA, and Raymond Towles, deputy director of flight standards field operations. At a May 23, 2012 staff meeting, Hickey told subordinates that “if the Republicans win office [their] jobs may be effected [sic]…if the Democrats win office then [their] jobs would not be effected [sic].” Additionally, Hickey and Towles held mandatory meetings with employees at other regional FAA offices, where similar comments may have been repeated.
Whistleblowers came forward after the May 23 meeting at the Seattle Flight Standards Division Office (Seattle FSDO), alerting a Deputy Regional Counsel in the FAA’s Northwest Mountain Region Office who is now conducting an investigation into both Hickey and Towles for telling employees “how to vote if they wanted to keep their job,” sources tell Cause of Action.
In light of these allegations, Cause of Action sent a request for investigation to Inspector General at the U.S. Department of Transportation Calvin L. Scovel III, urging “a swift investigation, not only into whether the comments made by Mr. Hickey and Mr. Towles at the Seattle FSDO violated the Hatch Act, but also whether their comments violated any other federal laws, as well as if they engaged in any other activities in violation of the Hatch Act or other applicable law.”
“The egregious abuse of power for political gain is exactly what Cause of Action aims to expose,” said Dan Epstein, executive director of Cause of Action. “These career employees were led to believe their jobs were at risk if their political support did not line up with the agenda of the Administration. The Hatch Act is designed to prevent such politicization and we are demanding that IG Scovel investigate any potential violations of federal law and make appropriate referrals to the Justice Department.”
The Hatch Act prohibits Executive agency employees from engaging in political activity intended to affect the result of an election. As CoA’s letter to IG Scovel explains, “Previously, the Office of Special Counsel has indicated that such a standard also prohibits covered Executive agency officials from suggesting to subordinate employees that they undertake any partisan political activity. Mr. Hickey and Mr. Towles’s alleged statements to FAA employees, in their roles as senior FAA management, amounts to illegal political activity under the Hatch Act.”
At the time of this release, CoA has not received a response from the OIG concerning the request for investigation. According to sources familiar with the matter, the Office of Special Counsel (OSC) has begun an investigation.
The letter to DOT OIG can be found here.
Internal emails from the FAA 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.
National Archives Refuses to Grant Records Concerning Financial Crisis Inquiry Commission, Claims Records Are Not Subject to FOIA
WASHINGTON – Government accountability group Cause of Action (CoA) filed a lawsuit on August 14 against the National Archives and Records Administration (NARA) for wrongfully withholding records pertaining to the Financial Crisis Inquiry Commission (FCIC) and claiming that these records are not subject to the Freedom of Information Act.
“The FCIC was created to examine the causes of the financial and economic crisis in the United States, an issue that impacted all Americans,” said Dan Epstein, executive director of Cause of Action. “At a time when the American public is still wondering what or who caused the financial crisis, the National Archives’ refusal to release these records keeps the American public in the dark.”
On October 3, 2011, CoA submitted a FOIA request to NARA for:
“[A]ll documents, including e-mail communications, memoranda, draft reports, and other relevant information and/or data contained in the records transfer of Financial Crisis Inquiry Commission documents stored at NARA to the Committee on Oversight and Government Reform at the U.S. House of Representatives.”
On December 1, 2011, NARA denied CoA’s FOIA request on the grounds that FCIC records are not “agency records” that must be disclosed pursuant to FOIA’s disclosure provisions and that the FCIC established a five-year restriction on public access to FCIC records.
CoA has appealed this FOIA denial, only to be shut out once again by NARA.
“NARA has been in possession of these documents since February of 2011, so to claim that these records are not Agency documents is an obfuscation of the truth,” stated Karen Olea, senior counsel at Cause of Action. “Cause of Action is committed to pursuing these documents so that the American public can know what went into the report that helped shaped the national discussion about the financial crisis.”