By Charles S. Clark
May 3, 2012
Recent reports by the inspector general for the National Labor Relations Board have stepped up calls for Congress to investigate the legality of a board member’s decision to share internal documents with a former colleague who advised Mitt Romney’s presidential campaign.
Recently appointed NLRB member Terrence Flynn, according to a March inspector general report based on internal emails, released “deliberative, predecisional information” to Romney labor adviser Peter Schaumber, a former NLRB chairman whom Flynn served as counsel, and another former board member, Peter Kirsanow.
The disclosures took place in 2010 and 2011, before Flynn joined the board but while he was serving as NLRB counsel to another board member. The email exchanges between Flynn and former colleagues in 2010 and 2011 discussed the processing of cases, including a draft of a board majority decision and four dissents that had not been issued.
On May 2, NLRB Inspector General David Berry issued a supplemental report providing additional emails on the document disclosure after noting Flynn “made certain public statements that caused us concern and we determined it was necessary to continue our investigative efforts.”
The IG said Flynn violated the standards of conduct for the executive branch and “lacked candor” during the probe. His disclosures threatened the board’s due process and the IG found “that Mr. Flynn violated federal regulations.” Berry asked NLRB to review the facts and sent his report to the Office of Special Counsel to determine whether there were Hatch Act violations.
Flynn, whom President Obama named as a recess appointment in January and who spent the previous seven years on the NLRB staff, has maintained that that his actions constitute “legitimate outreach,” and, when interviewed by the IG, “implied that he has inherent authority to release deliberative information.”
Flynn’s attorney on May 2 wrote to the IG saying there was no evidence that board deliberations were compromised and the emails were simply a dialogue between former colleagues.
“We strenuously object to the `renewed’ investigation of Mr. Flynn and to the purported findings set forth in the supplemental report,” the attorney wrote. “Indeed, the entire course and conduct of this investigation, much of which is unprecedented, raises serious questions as to its objectivity, impartiality, independence and intended purpose. Mr. Flynn is a dedicated public servant with an outstanding record of performance at the National Labor Relations Board . . He has cooperated voluntarily with both of your interviews.”
The IG suggested that Flynn’s motive in releasing the documents was to help his own long-term prospects for appointment to the board.
“Giving information to any individual outside the board that would be withheld from a congressional oversight process is not appropriate,” Berry wrote. “We are not aware of any legitimate federal purpose that is served by giving former member Schaumber advance notice of how a case is going to be decided, when a vote is going to take place, or the priorities of the board.”
NLRB Chairman Mark Gaston Pearce said in a statement, “We take the findings in these reports very seriously. They raise questions of ethics and trust that go to the heart of the values shared by all of us at the NLRB. Those concerns are paramount in our minds as we consider the necessary response.”
Rep. George Miller, D-Calif., ranking member on the House Education and the Workforce Committee, has asked the Justice Department to look at the case and sent Flynn a letter Wednesday asking him to resign, as did Sen. Tom Harkin, D-Iowa.“Disclosing judges’ deliberations in pending cases to outside parties . . . is repugnant to the American justice system. Such behavior cannot be allowed to continue,” Miller wrote.
“The board is the only agency where workers and employers may go to have their rights under the National Labor Relations Act vindicated,” he said. “The public’s faith in this agency and its fair administration of the law matters. Your continued presence at the board rattles that faith and potentially infringes upon the due process rights of those with business before the board.”
Rep. Elijah Cummings, D-Md., ranking member on the House Oversight and Government Reform Committee, called for Republicans who run his committee to open an investigation. The IG’s reports raise “serious concerns,” he said in a statement. But “even more troubling is that House Republicans refuse to investigate these leaks, bury their heads in the sand and continue to ignore documented wrongdoing by Republican NLRB officials. This is not the even-handed and rigorous congressional oversight the American people expect and deserve.”
Jon Ross, an attorney who retired from NLRB last fall, said Flynn should have known better. “I'm very surprised by this whole episode, because Terry is a smart guy - smart enough, I would have thought, to have known better than either (1) to do what the IG's reports say he did or (2) to have used his office email to do it,” he said.
The Romney campaign did not respond to queries, but The Wall Street Journal on Thursday reported that Schaumber ended his role with the campaign in December 2011.
By Charles S. Clark
May 3, 2012