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Push to Put Police Counsel on USCP Payroll Continues

The new head of the Senate Appropriations subcommittee on the legislative branch plans to continue efforts begun last year to make the Capitol Police’s top lawyer an employee of the department rather than of the House of Representatives.

Currently, all other sworn and civilian Capitol Police positions, including those reporting directly to the department’s oversight board, are on the agency’s payroll and have been since the department established its own budget separate from the House and Senate.

A spokeswoman for newly appointed subcommittee Chairwoman Mary Landrieu (D-La.) said that an administrative provision shifting the general counsel’s employing office likely would be introduced as the fiscal 2008 budget process moves forward.

Acting General Counsel Gretchen DeMarr is currently providing the department with legal advice after John Caulfield, who had served in the post for more than 20 years, retired in December.

Before he left, Caulfield raised concerns about the idea of placing the position on the department’s budget because doing so would require the general counsel to undergo a background check and obtain a security clearance.

Caulfield, who said last year that he planned to retire before the Senate began considering the provision, said he disagreed with the move because it was “clearly unnecessary” and added a new requirement “without any demonstrated need.”

Reached for comment this week, Caulfield added that he also sees a “fundamental” separation of powers concern with requiring the Capitol Police general counsel to obtain a security clearance.

“It limits what you can see [based on what] the executive branch has declared classified. … It should be the Congress’ prerogative to determine who … should be able to view information that inherently relates to the security of the Congress, as opposed to information that the executive branch classifies.”

As The Examiner first reported, Caulfield landed a job in the House Sergeant-at-Arms Office in January, working on a contract basis. That job does not require him to undergo a background check.

According to House Sergeant-at-Arms spokeswoman Kerri Hanley, Caulfield is working on a six-month renewable contract to provide legal advice to the office.

“This is only one contract for a private practice,” Caulfield said of his new job with the House Sergeant-at-Arms. “My job is as a private lawyer, this is one client.

Senate Sergeant-at-Arms Terrance Gainer, who serves as chairman of the Capitol Police Board that oversees the agency, said the process to find a permanent replacement for Caulfield would likely be slowed until a final decision is made on who would serve as the general counsel’s employer.

“It strikes me that the potential candidates would want to know for who they are going to work,” Gainer said.

Gainer, who previously served as chief of Capitol Police, said the current arrangement of having the department’s general counsel employed by the House is an “imperfect solution” and that moving that position under the police department simply makes more sense because without proper security clearance the Capitol Police’s lawyer may at times be forced to leave a room when security sensitive information is discussed, which might put the chief at a disadvantage when seeking legal advice.

“We all work for somebody, and in the case of the general counsel, his client is the chief and the chief decides when he wants his layers counsel,” Gainer said. “And if the lawyer has to recuse himself because he doesn’t have security clearance, then that’s depriving the chief of having the best information.

“The board agrees with [Capitol Police Chief Phillip Morse] that the position ought to lie with the Capitol Police,” Gainer added. “An organization of that size demands to have its own legal counsel.”

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