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Compliance Board Asserts Self in CAA Case

With three of the five directors newly reappointed to five-year terms, the Office of Compliance board of directors is beginning its second term with big goals and a perceptible boldness.

One of the first acts of the second-term board was deciding to file a “friend of the court” brief in a case before the D.C. Circuit Court of Appeals.

The lawsuit, originally brought by Beverly Fields against Rep. Eddie Bernice Johnson (D-Texas) for wrongful termination and retaliation, centers on a pivotal issue to the landmark 1995 law the office was set up to oversee. The courts will ultimately determine whether the Speech or Debate Clause of the Constitution shields lawmakers from suits brought under the Congressional Accountability Act.

Although there are currently four CAA cases currently moving through the judiciary in which a Member is claiming Speech or Debate immunity — one of them more than two years old — this is the first time the Office of Compliance has asserted itself in any way, and marks a willingness by the office to take what amounts to a large political risk. The board is taking a dramatically different position on the meaning of the statute within the constraints of the Constitution than are two Senators, a House Member, and now the entire House of Representatives (see story, pg. 1).

“The office has becoming increasingly concerned by the growing pattern of assertion of Speech or Debate immunity in response to cases brought by employees within the House and Senate,” said Executive Director Bill Thompson. “As the agency tasked with administering the CAA, it is important that we act to defend the law.”

Asked whether he believed the board’s decision put the little-known agency in jeopardy, Thompson responded, “No. I think that the Congress understands that this office has a particular role and responsibility.”

In a recent interview with the entire five-member board that held before the office made known its intention to file the amicus, the board expressed a desire to work closely with Congress to improve the work environment of legislative branch employees.

They spoke of a recent Government Accountability Office (then-named the General Accounting Office) report analyzing the agency’s mission and effectiveness as a validating experience.

“The GAO process was very important to our credibility,” Chairwoman Susan Robfogel said. “We’re taking their suggestions very seriously.”

Board member Alan Friedman said perception was key to the office’s effectiveness. “If we have a high credibility … we’re going to be taken more seriously.”

The agency has seen a steady thawing of relations with Congress in recent years. The previous board of directors and their executive staff took a more confrontational approach with the institution, creating tensions that placed the agency’s funding in danger of being slashed in 2003.

The culmination of easing tensions came late last year as Congress, upon GAO’s suggestion, amended the CAA to allow the board members to serve an additional five-year term. Three board members, including Robfogel, were set to be term-limited out last October without the change. The other two, whose terms are up this spring, are expected to be reappointed as well.

GAO also recommended that Congress repeal the term limits for the executive staff, whose terms begin expiring in 2006.

“We are very anxious for Congress to do for the staff what they did for the board,” Robfogel said. “We are not going to forget about that.”

Board member Barbara Childs Wallace said that goal is unanimous. “Our job would be made more difficult” without continuity by the staff, she added.

In terms of other goals for 2005, the board members said they plan to continue suggesting how to improve the CAA. 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 provide whistleblower protections.

Friedman also mentioned the board’s intention to monitor whether the agency’s general counsel has enough resources to carry out the extensive health and safety regulations required by the act. The office currently has one full-time inspector on loan from the Occupational Safety and Health Administration.

During the last Congress, the general counsel’s office undertook the most comprehensive safety inspections of Congress’ facilities since the law was enacted. The CAA requires such inspections every Congress, to be followed by a report to the bicameral, bipartisan leadership on the findings.

The reports are usually released at the end of the second session, although the 108th Congress’ report card will be released early this year. General Counsel Peter Eveleth said the more thorough review took more time. In the past, and prior to his tenure as general counsel, the inspections didn’t commence until the second session, but Eveleth said he intends to start the 109th’s this year rather than waiting until 2006.

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