Compliance Office Detente?

Agency, Hill Relations Thaw as GAO Readies Report

Posted January 28, 2004 at 6:27pm

About a year and a half ago, long after the memory of the “Republican Revolution” that created it had faded, the Office of Compliance had a near-death experience.

Few on Capitol Hill would have noticed its absence, at least initially. Even fewer would have likely cared.

The independent enforcement agency has never quite fit in with Congress’ culture of “I’ll scratch your back if you scratch mine.”

And because the 1995 law that inspired it was the first plank in the much-ballyhooed “Contract with America,” death would have come quietly if it came at all.

Then, according to knowledgeable sources, the office’s top enforcer retired and key players on the Hill who had questioned whether the office would be better off eliminated suddenly backed off.

Yet the detente may just be temporary. Almost a decade after the Congressional Accountability Act created the office to oversee the application — for the first time — of federal workplace laws in the legislative branch, a silent war still rages over its implementation. The Office of Compliance is surrounded by a small demilitarized zone, always with the potential to go hot.

A General Accounting Office report on the office expected to be released soon is largely a product of that conflict. Rep. Charles Taylor (R-N.C.), who then chaired the Appropriations subcommittee on the legislative branch, ordered the report last year.

The GAO report — combined with language in the 2003 spending bill that alleged “management deficiency,” froze the agency’s funding and included requirements (later removed) that would have undermined the authority of the office’s reports and decisions — combined to form “a perfect storm,” as one source put it.

“They really tried to prime the pump,” said another Congressional insider.

Several staffers with sway over the office began discussing how the agency could be eliminated, or at a minimum emasculated, according to sources privy to the conversations.

“The whole thing was just teetering right on the edge,” said the source.

Meanwhile, the office’s five-member board of directors — practicing labor lawyers who govern the office — was trying to forge better relations with the institution in response to the mistrust and bitterness that had developed years before, in the office’s early days.

‘Policy by Press Release’

Although a certain level of acrimony was inevitable with an agency charged with imposing federal labor laws on a reluctant Congress, and the office’s history in the mid- to late 1990s was one of outright turmoil, those close to the office say it was the last general counsel’s volatile relations with the Hill that almost pushed the office over the edge.

The general counsel enforces the Occupational Safety and Health Act portion of the CAA, which requires him to conduct “periodic” inspections of all legislative branch facilities and report violations to Congress.

Almost without exception, and regardless of how they feel about the office generally, those familiar with Gary Green’s 1999-2003 tenure say it was particularly confrontational.

“People were fed up enough, if it continued and if Members kept feeling that this guy was leaving [these reports] out there, that it was not a tenable position and that something might have to be done,” the source said.

Although Green’s emergency preparedness report in December 2002 revealed virtually nothing more alarming than had past reports — indeed, as early as 1996 then-General Counsel Dennis Duffy warned that Congress had a “fragmented, largely uncoordinated and insufficient” emergency plan — heightened tension about security helped it create a quasi-frenzy.

While acknowledging significant progress since 1996, the report cited deficiencies in communications and preparations for handling a chemical or biological attack. Such deficiencies were apparent to most Members on Sept. 11, 2001, when they couldn’t contact each other or find out whether to evacuate the Capitol.

But it wasn’t just what the report said that irked key Members and staff. It was the way it was released. Stories appeared in daily papers around the country before Congressional officials even knew about it.

House Administration Chairman Bob Ney (R-Ohio), whose committee oversees the agency, blasted Green’s report as “misleading” and based on “incomplete information.” But his strongest indictment was against what he deemed the report’s intention, “which appears to be to grab newspaper headlines, rather than the advancement of what should be a shared goal — the safety and security of the Capitol complex.”

Looking back on that period, which he acknowledged was a low point in relations, Ney said recently: “I think for a while it was just a gotcha game. A couple of things caught us off guard. There are certain times when some of these reports they have done have frankly compromised security.”

For his part, Green acknowledged in an interview last year that his relationship with the Hill was often acrimonious.

“I don’t want to do a job that’s a sham,” he said. “In my office it was for real. [The CAA] means what it says, and we were going to do the best we can to follow it.”

Green’s report on the safety of irradiated mail further infuriated interested parties. Members and staffers heard about it for the first time on local news radio station WTOP. It essentially determined that staffer complaints of illness after the mail was irradiated following anthrax were due to volatile organic compounds created by the radiation. But a study done by the National Institutes of Occupational Safety and Health concluded that none of the contaminants was detected at sufficient levels to cause health problems.

The fight over Green’s report raged for months. Congressional staffers familiar with the NIOSH study said at the time that the Office of Compliance report was unscientific and unreliable. Green maintained he wasn’t given enough access by NIOSH and Congress to properly complete his investigation.

“When they would do a report, nobody would even know that it was coming out,” one staffer said. “They wouldn’t alert anybody that that’s what they were doing. Then you’d hear Gary Green on WTOP. It was kind of like policy by press release. It made Approps mad, it made leadership mad, it made [the oversight] committees mad.”

Regardless, Green said the language Taylor inserted in the appropriations bill “seemed to be a vivid demonstration that we had committed an offense and we’d pay a price.”

As critical as his reports were at times, however, Green often didn’t push as hard as the law allows. He frequently warned Congress about infractions without officially issuing citations.

But part of the problem was that the OSHA reports are “disproportionately noticeable work,” as Green put it. Much of what the office does — counsel employees, mitigate workplace disputes and educate offices — is either confidential or done quietly.

‘Collegial Style’

The disconnect between the office and Congress began long before Green began issuing controversial reports.

The early years were rocked by much-publicized and highly charged confrontations between the board and then-House Oversight Chairman Bill Thomas (R-Calif.) over the proposed unionization of legislative employees, which the law allowed for the first time. (House Oversight later became House Administration.) The issue died because the office and Congress couldn’t agree on exemptions for personal and committee staff, and the resulting bitterness lingered for years. The issue has never been revived.

While fighting with Congress, the first board was also engaged in intramural disputes. Many decisions were made 3-2, and board members openly feuded.

Acutely aware of this fractious history, current Chairwoman Susan Robfogel said the board members who took over in 1999 “work very hard to find solutions that all of us can buy into. It’s quite rare that we can’t reach a consensus. We are remarkably collegial.”

She credits much of that collegiality with the selection process. While many boards in Washington — including the Federal Election Commission, the Securities and Exchange Commission and the Federal Communications Commission — are comprised of partisan appointments, all five members of the Office of Compliance’s board are chosen by the bipartisan, bicameral Congressional leadership. Board candidates are thus more likely to compromise rather than dividing into Democratic and Republican camps.

The current board also has a dearth of Washington “insiders.” Three of the five previous board members were partners at prominent D.C. law firms; only one of the current crop even lives in D.C.

“All five of us came to this job, none of us having any Beltway experience, any Congressional experience,” Robfogel said. “We needed to take someone with us to find offices in the Capitol.”

Robfogel believes that the office cannot successfully carry out its responsibilities without a degree of trust from the Hill.

“I think Congress has to become more comfortable with what we’re doing — that the board and the office are prepared to act responsibly and, in fact, do act responsibly. And that’s a slow process to build that kind of confidence,” she said. “I do believe that [Executive Director] Bill Thompson and now [new General Counsel] Pete Eveleth are committed to doing that. We are trying to change the image that at least certain legislative branch personnel have of us.”

Echoing that sentiment, Thompson said he is “determined to improve the quality and extent of our interactions with Congress.”

“I think that over the past year, there has been significant progress. The general counsel, Pete Eveleth, is equally committed to a collegial style and interacting with the regulated community,” Thompson added. “At this point, I would say that while it’s still a work in progress, we have undergone a sea change in the tenor of our relations with Congress.”

Ney agreed. “I think things have gotten better. It’s not that we just want to hear all good news. For a while I just felt they were embarking out of their bailiwick,” he said, adding, “I believe there’s more communication now, instead of a report that turns into a witch hunt and a blame game.”

But there’s potential for that newfound goodwill to evaporate within a year. With the exception of Eveleth, who began his term a few months ago, the tenures of the entire board, as well as Thompson, will expire in late 2004 and early 2005.

Term limits were in vogue when the CAA was written, and while they certainly afford a degree of independence, they also create a situation where board members and officers spend years mastering the learning curve of Capitol Hill and forging essential personal relationships, only to have that institutional understanding evaporate.

“If these five people had a little bit longer, we’d have a better chance of creating this trust relationship,” Robfogel acknowledged.

Term limits are not the only structural challenge the office faces. In nearly a decade, the law that created it has remained static. The Congressional Accountability Act retroactively applied 11 workplace laws to Congress.

Every two years the office issues statutorily-mandated suggestions on how Congress can better implement the spirit of the act. Four reports and 16 recommendations later, Congress has acted on none of them.

The most significant of those recommendations would modify the statute to include requirements that Congressional Web sites be accessible to persons with disabilities; access guarantees of the 1964 Civil Rights Act; and whistleblower protections.

“Our objective is certainly to take this law to its logical extensions,” Robfogel said.

Some progress has been made. The 1998 Veterans Employment Opportunities Act stipulates Congress itself must obey its provisions, and a genetic nondiscrimination bill written by Sen. Olympia Snowe (R-Maine) currently pending covers legislative employees.

But far and away the biggest challenge the office faces is compatibility with Congress’ mores.

“I’m always struck by the way the Office of Compliance fails to fit into the culture. Congress runs on seniority, loyalty and favors for one another,” Green said. “We’re an anomaly. Part of the problem is we’re so different. We’re sort of an antagonist. We get paid for suing our boss. That’s not a way to make friends. It is a very uneasy fit.”

How the Office of Compliance Works

The 1995 Congressional Accountability Act established the Office of Compliance as an independent agency within the legislative branch to educate employees and employing offices about their rights and responsibilities under the law. It also provides an impartial dispute resolution process, investigates violations and enforces compliance with the statute.

The OOC replaced the House and Senate Offices of Fair Employment Practices, created in the late 1980s but widely criticized because they reported directly to the Congressional leadership in their respective chambers.

The CAA, the first plank in the so-called “GOP Revolution,” applied 11 federal workplace and anti-discrimination laws to the legislative branch for the first time.

An employee with a complaint under one of the covered statutes first seeks counseling and then mediation through the office. If the issue is still unresolved, the employee can either take the case to U.S. District Court or to binding arbitration. Decisions rendered in the latter process can be appealed to the office’s board of directors.

The agency has an executive director, who oversees the dispute resolution process and manages the office, as well as a general counsel, who enforces Occupational Safety and Health Administration provisions and certain portions of the Americans with Disabilities Act requirements and represents the office in court. Both are appointed to unrenewable five-year terms by and report directly to the board.