In early December, we shared our recommendations on how Congress should address harassment. Since then, the Committee on House Administration has published a draft reform bill — the Congressional Accountability Act of 1995 Reform Act — and today we are publishing our recommendations on how that bill should be further strengthened. We expect the underlying legislation will be shortly enacted into law.
Members of Congress and their staff are making a serious effort to grapple with the immediate issue of reforming how these claims are handled. Perhaps future legislation will address some of the problems in the House Ethics Committee itself, and also look at how Congress can proactively prevent these problems from arising instead of dealing with them one-at-a-time or after-the-fact.
The following are recommendations for resolving potential issues with the Congressional Accountability Act of 1995 Reform Act. They are organized by (1) big picture concerns, (2) substantive issues, (3) issues relating specifically to the Office of Congressional Ethics, (4) technical or small detail issues, (5) open questions, and (6) other recommendations.
The line item changes pertain to the CAA bill draft published on CHA’s website, which is available here.
I. BIG PICTURE CONCERNS
(1) Employees should not be able to contract or otherwise negotiate away their rights via NDAs or employment agreements, nor should offices be able to impose arbitration agreements as a condition of employment. Some offices routinely require additional agreements. (See, for example, the Senate Select Intelligence Committee rules, which require staff to get the Chair’s permission before disclosing any committee substance or process, and requires staff to sign a NDA that incorporates committee rules.) The bill should declare NDA term inapplicable in this context, and the rules should specifically prohibit offices of demand them of employees in the context of the employment issues contemplated by the bill. In addition, should the context of harassment include classified information, reviewing staff should be able to obtain clearance if necessary so they can intake claims.
(2) This bill makes the most sense in the context of employees of a personal office, but it’s not clear that it works as well for committee and leadership offices. Circumstances where this arises are noted below.
(3) How broadly should the CAA apply throughout the legislative branch? All legislative support agencies? All legislative commissions? All legislative offices? Scope seems to vary at different points in the bill.
(4) See the handling of OCE, discussed below.
II. SUBSTANTIVE ISSUES
(1) Page 7–8, line 18, section (e): What are the consequences (if any) for lawyers who violate standards for counsel providing representation? None are spelled out in the bill text. Perhaps referral to the bar for discipline or debarment from further representation before the House and Senate on these issues?
(2) Page 10, line 23: Why is there only 180 days to file the initial claim with the General Counsel once notice has been given that it’s appropriate to do so, otherwise the claim is apparently extinguished? Often times, a victim may wait to file for a number of reasons. In addition, if there’s a new instance of misconduct, can the employee bring in older claims of misconduct as part of a pattern, or is it extinguished? Is there tolling possible?
(3) Page 12, line 8: In addition to issuing subpoenas, should the general counsel be able to place people under oath?
(4) Page 13, lines 4–19, i.e. section (2); also page 16 lines 4–18: For the findings from the general counsel that can be considered by the Director/Office, they only include claims alleged by an employee. But there are likely to be circumstances where other misconduct is uncovered. For example, if employee A was harassed, an investigation may also identify harassment of employee B. Yet that finding by the General Counsel cannot be referred onward. In addition, an employee may mis-state the claim: employee claims that X is the issue, but further investigation reveals that it was actually Y (e.g., a case of age discrimination was misunderstood as sexual harassment, or was actually both). A filing error or misjudgement of the cause shouldn’t preclude a favorable referral.
(5) Page 33, line 15 (section 202): Is it worth writing out the goal of the workplace climate surveys (i.e, identifying the organizational culture of congressional offices and survey attitudes and feelings about equality in the workplace) into the law? Will it employ scientific survey methods? Will there be a public report (page 18, line 20–22) of the results of the survey? Will there be efforts to proactively identify offices that need help prior to reporting — whether drawing from the employee survey or some other technique (such as reviewing staff turnover data?) Will demographic data be gathered?
(6) Page 49, lines 20–24: As part of the legal advice and consultation, the office of employee advocacy should disclose that there’s limits to what they will say to an employee, including identifying when some actions may be criminal and referral to the police may be appropriate, and also that they will not advise on bringing a civil action (see page 50 lines 21–24) and the employee should see a private attorney for advice on that, and must do so within a limited time frame (30 days initially, then 180 days after a finding).
(7) Page 53, lines 1–3: The director should have a long but renewal term, say 10 years, just like many other legislative branch officers (like the Librarian of Congress), for circumstances when it is politically difficult to remove for cause but the quality of the office work has diminished or a new approach would be useful.
(8) Page 55, lines 3–15: While it is helpful that an employing office must certify that salary adjustments/title change is not in connection with prohibited conduct, there is no penalty identified for doing so. Is there a consequence that could be included? A warning?
(9) Page 56, line 16: For prohibited sexual relationships, the bill should identify what constitutes supervision of a Member, Delegate, etc. For example, is a staffer on a committee employed only by the chair (or ranking member); both; or any member of the committee? Who does a leadership staffer work for? It makes sense to embrace a broader definition of what constitutes supervision — it should be more than the ability to hire and fire. At a minimum, a definition of supervision would be helpful.
III. OFFICE OF CONGRESSIONAL ETHICS
(1) Page 11, lines 10–16: Why does this specifically say nothing in this section may be construed to limit the ability of a covered employee to refer info to the Ethics committees, but not extend similar protection to referring matters to OCE? It seems that OCE should be treated equally here.
(2) Page 14, lines 18–23: In addition to the Ethics committees, general counsel findings that a House member acted unethically should also be shared with the OCE (in case they are investigating a similar matter or because that information may be helpful for other work they are performing).
(3) Page 26, lines 17–24: If the Director refers a claim to the Ethics Committees, OCE should be informed as well (in case they are investigating a claim).
(4) Page 51, lines 1–6: This provision grants free legal counsel for OCE proceedings (as well as Ethics proceedings and other bodies). This legislation grants the general counsel subpoena power, the ethics committees already have it, and so accordingly similar power should be extended to OCE to compel testimony, especially in light of the likely circumstance that counsel advises employees not to voluntarily talk to OCE.
(5) Page 57, lines 9–16: The limitations on OCE are too broad here. Section 407 should be reformulated to empower harassment survivors to determine whether the want OCE to investigate. In addition, because OoC’s ambit is much smaller than OCEs, there may be value in having OCE have information for its non-OoC related investigation. Here is a suggested reformulation:
The Office of Congressional Ethics may not initiate or continue any investigation of a claim alleging a violation of law made applicable to employing offices of the House of Representatives under Part A of Title II of the Congressional Accountability Act of 1995, or make any recommendation regarding the disposition of such a claim, if a covered employee files a claim with respect to the alleged violation under Title IV of such Act, unless a covered employee makes a submission to the Office of Congressional Ethics alleging a violation or grants permission for it to continue its investigation of such a claim. In addition, with the permission of the covered employee, records obtained in the course of the Office of Compliance investigation shall be forwarded to the Office of Congressional Ethics at the termination of the Office of Compliance investigation, and those records may serve as the basis for an Office of Congressional Ethics investigation of non-Title IV matters.
Any statutory reporting requirements of the ethics committees, including the Office of Congressional Ethics, must remove all personally identifiable information or information that could lead to conclude the identity of a covered employee who sought relief under title IV of the Act, subject to waiver by the covered employee.
IV. TECHNICAL OR SMALL DETAIL ISSUES
(1) Page 6, line 5: Remove “No,” as the special rule concerns employees receiving a finding of reasonable cause.
(2) Page 10, line 3–4: Among the relevant information provided with respect to the rights of the employee should be that free legal counsel is available as well as the timing by which employees must file a civil case or lose their right to file.
(3) Page 13–14, line 21: Notice should include the time available to file a civil claim before it expires.
(4) Page 37, lines 6–16: It may be worth saying staff designees as also covered (i.e., staff who work for a member of Congress but sit in a committee office).
(5) Page 37, line 23: An intern might be compensated at a de minimumsamount, such as metro fare, which doesn’t constitute employment; or receive an honoraria (that doesn’t count as pay). This should be included in the definitions.
(6) Page 49, line 3–9: Add requirement that regulations will be published online, as this will aid public understand and be useful to private counsel, should they be employed.
V. OPEN QUESTIONS
(1) Page 7, line 16: I cannot determine what is section 415(d)(7) that is being referred to.
(2) Page 37, line 23: Do current workplace employment protections apply to contractors?
(3) Page 45, lines 7–9: Why are offices of congress excluded from training and education program requirements? (Do they exist under other rules?)
VI. OTHER RECOMMENDATIONS
(1) Having some sort of method whereby offices at risk for likely bad behavior — identified by high turnover, scuttlebutt, or other means — are proactively contacted by the OoC or others to help improve their operations and address any possible problems.
— Written by Daniel Schuman
