US Senate Committee on Health, Education, Labor, & Pensions

Harkin Calls for NLRB Member Facing Ethics Violations to Release Documents

Monday, April 02, 2012

WASHINGTON—Today, Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor and Pensions Committee, sent a letter to National Labor Relations Board (NLRB) Member Terence Flynn, asking him to release information and documents relating to findings by the NLRB Inspector General that Flynn committed ethics misconduct.

“With all of the external political attacks that the NLRB has faced during this Congress, I am troubled to hear reports of internal ethical misconduct by a Board Member.  Mr. Flynn’s disclosure of confidential information relating to cases pending before the Board while serving as Chief Counsel to a Republican Board Member not only undermines the impartiality of the Board’s adjudication process, but also raises the alarming possibility that the recent political attacks on the Board could have been aided and abetted by his unethical activity. To shed more light on this deeply troubling situation, I am asking Mr. Flynn to provide the Committee with additional communications and documents,” Harkin said.

The full text of the letter is below:

Dear Member Flynn:

On March 19, 2012, the National Labor Relations Board Inspector General issued a report detailing the results of his investigation of improper conduct you were alleged to have committed while you were a chief counsel on the Board’s staff.  His findings of ethics misconduct, including violations of the Standards of Ethical Conduct for Employees of the Executive Branch, raise serious questions about your nomination to serve as a Board Member, which is currently pending before this Committee.  I found especially troubling the findings of your repeated disclosures of confidential information to outside parties, and your failure to acknowledge any wrongdoing following the investigation in spite of compelling evidence. 

The findings of the Inspector General raise concerns about your ability to distinguish and appropriately handle confidential Board information.  As you are aware, e-mail communications between you and outside parties show that you released non-public deliberative information, privileged legal advice, and other confidential information. The Board bears the important responsibility of enforcing workers’ rights contained in the National Labor Relations Act.  The selective release of internal deliberative information to outside parties demonstrates a manifest disregard for that mission, undermining the Board’s decision-making process and potentially prejudicing the rights of parties with cases before the Board.

The Inspector General’s memorandum is primarily based on e-mail records from a short period during your tenure as Chief Counsel for Member Hayes.  In order to carefully evaluate all of your actions during your employment with the federal government, including the period since you were appointed to the Board, I ask that you provide to my Committee office the following information and documents. 

Unless otherwise specified, please provide the following information for the five-year period beginning in 2007 till the present.           

a)      In light of e-mail communications showing that you disclosed to former Member Schaumber:  1) confidential legal advice from the General Counsel; 2) internal deliberations among Board Members regarding specific Board decisions; 3) Member and attorney assignments of cases pending before the Board; and 4) case analysis of other NLRB counsels, please provide any written or electronic communications with former Member Schaumber since his term on the Board ended.

b)      Provide written or electronic communications in which you discuss any matter related to the Board with any former Member after his or her term as a Board Member ended.

c)      In light of e-mail communications showing that you disclosed information regarding the recusal of a Member and the deliberations of other Members regarding a pending case to a former Chief Counsel, provide any written or electronic communications with this former Chief Counsel after he left the NLRB.

d)     Provide any written or electronic communications with former chief counsels after they left the NLRB in which you discuss any matter related to the NLRB.

e)      Provide a list of all meetings whether formal or informal, including in person or by telephone, with former Member Kirsanow, former Member Schaumber, or any other former Board Members after their terms as NLRB Members ended.  Include the dates and items discussed in each meeting.

f)       Provide any written or electronic communications with current or former attorneys or other employees at Crowell & Moring, Reid & Priest, or David, Hagner, Kuney & Krupin, regarding: 1) internal deliberations among Board Members about NLRB cases or rules; or 2) prospective votes of Board Members on NLRB cases or rules.  Include any such communications since your appointment to the Board.

g)      Provide any written or electronic communications with Congressional staff regarding internal deliberations among Board Members about: 1)NLRB cases or rules; or 2) prospective votes of Board Members on NLRB cases or rules.

h)      Please describe any outside earnings, if any, you received while you were an employee of the NLRB or since your appointment as a Board Member, including any contracting fees.  Include the source and amount of any such earnings, as well as the service you rendered.

Along with this information, please feel free to submit any additional information that you deem relevant to the findings against you.  In addition, to better understand your actions, please answer the following questions. 

a)      Can you describe any circumstances in which the disclosure of Board Member and counsel case assignments and previews of Board Member views would not be a violation of the ethics standards for NLRB employees?

b)      Do you agree that the disclosure of legal advice from a government lawyer to agency officials violates both ethics rules for NLRB employees and general rules of legal ethics concerning attorney-client privilege, as found in most jurisdictions’ rules of professional conduct?  Can you describe any circumstances in which such a disclosure would not violate these standards?

c)      What would be the typical sanctions for career or SES employees at the Board who have violated Standards of Ethical Conduct for Employees of the Executive Branch?  What sanction would you recommend for a member of your staff who violated these Standards?

In order to fully inform this Committee about your conduct, I ask that you respond to this request by April 9, 2012.

                                          Sincerely,

                                          Senator Tom Harkin

                                          Chairman, Committee on Health, Education, Labor and Pensions

cc:  Hon. Michael Enzi, Ranking Member

      Barry Coburn, Esq.

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