Trouble at the board sparks fireworks at congressional hearing.
The chairman of the Chemical Safety Board hit a buzz saw of criticism on Thursday at a House hearing that brought multiple calls for his resignation, with sparks flying over an allegedly dysfunctional investigative agency accused of retaliating against whistleblowers and stifling inspectors general seeking evidence.
Rafael Moure-Eraso, chairman of the independent 43-person accident-investigating agency with an $11 million budget, found himself at the center of a new report from two House committees quoting whistleblowers inside the agency portraying a “toxic work environment.” They also alleged that general counsel Richard Loeb retaliated against them for disclosing management problems to the Office of Special Counsel and blasted Moure-Eraso for invoking attorney-client privilege and declining to hand over certain emails sought by inspectors general.
Rep. Darrell Issa, R-Calif., chairman of the House Oversight and Government Reform Committee, assembled witnesses that included inspectors general and governmentwide Special Counsel Carolyn Lerner, threatened Moure-Eraso with criminal contempt and called upon him to resign.
The Chemical Safety Board chairman’s failure to turn over documents “is a criminal obstruction of this committee’s work,” Issa said. “If my attorney has not received them by the end of the week, I will issue my own subpoena mirroring all the other subpoenas and will seek to hold you in contempt.”
Issa also questioned the chairman over reports that he or his staff had instructed employees not to talk to Congress or respond to IG requests for documents. Moure-Eraso denied he had issued such instructions, but promised to get back to Issa. He disagreed with characterizations of the atmosphere at his agency as “crippling.” He said the agency “is charged with investigating far more accidents than we have the resources to handle” and he said his staff had turned over “thousands of emails” to the IGs, but not 20 involving an outside lawyer retained because of possible conflicts. “Turning the rest over will compromise attorney-client privilege and create future liabilities for the government,” the chairman said, citing advice of counsel. He also denied assertions that he demoted previous general counsel Christopher Warner after they clashed over the agency’s mission. “No one was fired for retaliation, he was transferred from one senior executive position to another position,” Moure-Eraso said.
The Chemical Safety Board in recent years has investigated the deadly fertilizer plant explosion in West, Texas, in 2013 and this January’s water contamination in West Virginia. One key witness against Moure-Eraso was his former Tufts University student and fellow Chemical Safety Board colleague Beth Rosenberg, who served only 17 months of her appointment by President Obama before leaving in frustration.
She cited a “chilled atmosphere” in which criticism was not accepted, governance was ineffective, and there was a “lack of accountability” and transparency. The problems “are partially due to understaffing, but more to lack of planning—no priorities for reducing the backlog of investigations,” Rosenberg said. She complained the board’s votes were taken privately while the public meetings were “choreographed productions for press coverage, largely ceremonial.” She didn’t think “staff should be intimidated for talking to a board member—I had many meetings in the ladies room,” she said.
Moure-Eraso said he had introduced new procedures for transparency, hired a consultant and established a Work Improvement Committee that has been meeting since December.
But Issa wasn’t placated. “You have failed in requirements to be the chief executive, failed in board leadership, failed to deliver the kinds of results from your investigations that the public deserves, and I believe it’s time for you to go," he said. “I don’t believe your last year can undo the damage of your first five.”
Special Counsel Lerner described her office’s efforts to subpoena the Chemical Safety Board after complaints of improper hiring practices, calling it “rare” for an agency to invoke attorney-client privilege.
Arthur Elkins Jr., inspector general of the Environmental Protection Agency, and his associate, Patrick Sullivan, also said they found it highly unusual that they had to issue what’s called a “seven-day letter “ to the agency head to force the Chemical Safety Board to cooperate in turning over documents. “The IG Act does not provide for attorney-client privilege,” he said. His investigation has been “stonewalled,” he said, and is now “dormant.”
The criticism of Moure-Eraso was not all from Republicans. Rep. Gerry Connolly, D-Va., lambasted a February 2014 staff memo that the chairman failed to shoot down. “I’ve never seen a document like this, never a more inappropriate prescriptive -- you are charged with management of agency, but this memo says they manage you!” Connolly said. “It’s a dysfunctional culture, the board is not doing its job, and the staff substitutes itself. It raises serious questions about your fitness to hold your job.”
Rep. Jason Chaffetz, R-Utah., grew impatient with Moure-Eraso changing his answers and promised to continue pursuing the issue if the agency doesn’t resolve document production and reform recommendations from the IG that have not been acted upon. “If you don’t, Congress will step in and legislate, and you won’t like the result,” he said. “The Obama administration should show more leadership and get its fingernails dirty to resolve this problem. The truth is going to surface.”
The issue of attorney-client privilege in withholding documents needs further examination, said University of Minnesota law professor Richard Painter, who has been advising Congress on the issue. “Lawyers make this kind of decision all the time,” he told Government Executive. “If you don’t give them over, they will put up a stink. But if you do, you have waived third-party privileges,” meaning that not only Congress and an inspector general but a plaintiff in a related private case would be entitled to the same documents. “The law is quite clear, it’s a separate issue from what the IG statute requires,” Painter said. He says Congress could fix this by enacting a statute for “selective disclosure.”