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Sexual Harassment and the Office of Congressional Ethics

As you are no doubt aware, there has been a great deal of controversy in the past few months about Congress’s handling of internal employment issues, most notably sexual harassment claims. It is less likely you are aware that Congress has actually moved rather expeditiously to address the problem. Last week a bill to do just that was introduced in the House by Representatives Gregg Harper and Robert Brady, respectively the chair and ranking member of the Committee on House Administration. The bill is titled the “Congressional Accountability Act of 1995 Reform Act,” H.R. 4822. (Someone could have put more effort into this “short title,” but we will refer to it simply as “CARA.”).

The Committee on House Administration has jurisdiction over House labor and employment issues, including the application of labor and employment laws to Congress through the Congressional Accountability Act of 1995 (CAA). In the wake of widespread publicity about the handling of sexual harassment claims in Congress, the committee held hearings (November 14 and December 7, 2017) to address perceived weaknesses in the CAA and the need to prevent sexual harassment in the congressional workplace. The committee heard from various witnesses, including representatives of the Office of Compliance (OOC), the congressional agency responsible for administering and enforcing the CAA.

CARA addresses the problems identified in these hearings through various measures to better protect congressional employees from sexual harassment and other employment violations, including (1) establishing an Office of Employee Advocacy in the House to advise and assist employees with regard to rights and claims under the CAA; (2) authorizing the OOC General Counsel to conduct investigations of sexual harassment and other employment claims; (3) holding representatives and senators personally liable for awards and settlements arising from employment discrimination (including sexual harassment) or retaliation where their individual misconduct was involved; and (4) requiring the OOC to publish more detailed information about awards and settlements under the CAA.

My purpose here is not to analyze CARA’s proposed reforms or take a position on the bill. I merely observe that, on its face, CARA seems to be a textbook example of how “regular order” is supposed to work. Congress identifies a problem, holds hearings, and proposes a legislative solution, preferably reflecting a broad consensus within the committee of jurisdiction. CARA in fact is cosponsored by every member of the Committee on House Administration. It also very bipartisan, with 14 Republicans and 20 Democrats listed as sponsors or co-sponsors. Among them are the chair and ranking member of the House Ethics Committee and two of the most outspoken House members on the issue of sexual harassment, Representatives Jackie Speier (D-CA) and Barbara Comstock (R-VA).

(Note: I have known Comstock since we both worked on the Hill in the 1990s and have supported her in races for state legislature and Congress).

Of course, the introduction of CARA is far from the end of the legislative process. The bill is now referred back to the Committee on House Administration and three other committees with some jurisdiction over its provisions (Ethics, Oversight and Government Reform and Ways & Means) where it can be further studied, amended and eventually marked up for consideration by the full House. There will be plenty of opportunities for further deliberation and changes in committee, not to mention (if it gets that far) on the House floor and in the Senate.

All of which makes it a little odd that the immediate reaction in the ethics/reform community to CARA was not applause (though my understanding is that it is generally supportive of the bill), but outrage directed at a single provision, Section 407, which is deemed to represent an insidious effort by the “House leadership” (though what the House leadership has to do with this, I am not sure) “to purposefully defang the Office of Congressional Ethics (OCE) and undermine its role in upholding high ethical standards in the House of Representatives.”

So what exactly does Section 407 do?

Section 407

Section 407 of CARA provides in its entirety:

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 recommendations regarding the disposition of such a claim, if a covered employee files a claim with respect to the alleged violation under title IV of the Act.

It should be noted that this section does not prohibit the Office of Congressional Ethics (OCE) from reviewing all matters involving sexual harassment or employment discrimination. It merely provides that OCE may not investigate a claimed violation of the CAA after that same claim has been presented to the OOC. In other words, a claim of sexual harassment or employment discrimination cannot be pursued in two different forums. And if that should happen, it is OCE that must give way.

On its face, this provision does not seem unreasonable. The OOC, after all, was created under the CAA for the sole and specific purpose of implementing that law and applying its employment and workplace protections to Congress. OCE, established more than 10 years later, was not intended to focus on such matters and has rarely had occasion to address them.

Although OCE’s jurisdiction is broad enough to overlap at least somewhat with that of OOC, there seems to be a tacit understanding that matters falling under the CAA are ordinarily handled by the latter. Rule 13 of the OCE’s Rules on Investigations, originally promulgated in 2009, provides that OCE may refer to OOC “allegations related to” any of the employment or workplace laws made applicable to Congress through the CAA. This rule does not seem to have attracted any controversy or objection at the time it was proposed. While it does not require OCE to refer the specified matters to the OOC, neither does it limit OCE’s discretion to do so. One could reasonably infer from this rule that, in OCE’s view, such matters should ordinarily be handled by OOC.

In any event, there seem to me to be strong arguments in support of the policy underlying Section 407. For example, because OOC has greater expertise in handling employment and workplace protection issues, it makes sense to channel CAA claims to that venue. The OOC process is also more suited to protect the interests of complainants, particularly sexual harassment victims, than is the OCE. While an employee can bring a matter to the OCE’s attention, she is not a party to the proceeding and has no official status or right to be informed of developments. Thus, Representative Speier, in explaining Section 407’s preference for the OOC, describes OCE as a “dead letterbox for complaints.”

Even if a complainant wants to pursue remedies at both OOC and OCE, moreover, there are good reasons to prohibit this. Concurrent investigations by the OOC General Counsel and the OCE would be disruptive, result in unnecessary duplication of effort, and raise the possibility of conflicting results. One could also imagine that lawyers representing complainants at OOC would use the OCE process, or the threat of filing a complaint with OCE, as a means of enhancing their leverage in settlement negotiations.

It should also be noted that CARA would establish a new process for automatic referral to the House or Senate ethics committees upon the final disposition of a CAA claim involving an award or settlement for an act committed personally by a representative or senator (i.e., the same category of claim for which members of Congress would be held personally liable under the provision mentioned earlier). Since OCE acts primarily as a screening mechanism to ensure that potentially meritorious ethics cases are presented to the House Ethics Committee, CARA arguably obviates the need for OCE involvement in CAA matters.

The Hastings Matter

While the policy arguments noted above support Section 407, I suspect that this section is also informed by the experience of the congressional ethics/employment/legal community in a specific sexual harassment case several years ago. The case in question involved a claim by a congressional staffer (she is not named in the relevant reports, though her identity can easily be ascertained by the attachments—we will use her initials “WP”) that she was sexually harassed by Representative Alcee Hastings. For our purposes, the details of the harassment claim matter less than the procedural history.

WP was a congressional staffer dealing with national security issues in the House (note: I knew her slightly when I worked on the Hill), who subsequently obtained a staff position with the U.S. Commission on Security and Cooperation in Europe, aka the “Helsinki Commission.” The commission is an independent agency of the federal government composed of three executive branch members and 18 congressional members (equally divided between representatives and senators).

Representative Hastings, who was a member of the Helsinki Commission, helped WP get the job and worked with her on commission business. In January 2010, WP spoke with the chief of staff to Senator Cardin, who served as chair of the Helsinki Commission, and told the chief of staff that Hastings had made unwanted sexual advances toward her. The chief of staff discussed the matter with Senate employment counsel and the House Office of Employment Counsel (OHEC). It was decided that OHEC should handle the matter (presumably because Hastings was a member of the House). OCE Rep. at 35. The matter was also discussed with the Helsinki Commission General Counsel.

In August 2010, WP filed a request for counseling with the OOC, asserting claims of sexual harassment and retaliation against the Helsinki Commission as an “employing office” under the CAA. These claims were based on the alleged acts of Hastings while serving as a member of the commission.

WP’s claims proceeded through the mandatory counseling and mediation phases at the OOC, although there was uncertainty whether the Helsinki Commission qualified as an “employing office” under the CAA. House Counsel/OHEC letter of 2-15-11, at 3-4 & n.4. During this period, OHEC acted as the representative of the Commission and conducted its own investigation of WP’s claims, which it concluded were false and were likely invented for the purpose of publicizing a book WP had written. Id. at 6-8.

Following the counseling and mediation phases at OOC, WP decided to file a complaint in federal court against the Helsinki Commission under the CAA and against Hastings and another individual for alleged constitutional torts. The individual defendants were likely named because of uncertainty as to whether the CAA applied. On February 15, 2011, the House General Counsel and OHEC sent this joint letter to the Department of Justice, divulging the results of OHEC’s investigation and requesting that DOJ provide representation to the individual defendants in the federal lawsuit. On March 7, 2011, WP filed her lawsuit in the U.S. District Court for the District of Columbia.

OCE then commenced a preliminary review of WP’s allegations on May 3, 2011. It is unclear what prompted OCE’s review, but it may have been publicity about WP’s lawsuit rather than any request from WP herself. Although both WP and Hastings largely (though not entirely) cooperated with OCE’s inquiry, many others did not. In particular, key witnesses associated with the Helsinki Commission refused to cooperate with OCE’s investigation. OCE Rep. at 3-4, 5-7. OCE particularly pointed to lack of cooperation and withholding of documents by Helsinki Commission counsel as hindering its investigation. OCE Rep. at 5-7 & n.4. OCE also noted it had requested information from the OOC regarding WP’s case but that OOC had declined due to the CAA’s confidentiality provisions. OCE Rep. at 37 n.307.

Because of these difficulties, OCE was unable to fully assess WP’s allegations against Hastings. Its board therefore decided to assess the allegations based on a “probable cause” standard, rather than its normal (and higher) standard of “substantial reason to believe” that a violation occurred. Using the lower evidentiary standard, the board by a vote of 5-1 determined that the matter should be referred to the House Ethics Committee for further investigation. OCE Rep. at 1. The Ethics Committee received the referral on October 13, 2011.

On November 16, 2011, Hastings sent a letter to the Ethics Committee in which he complained bitterly about the OCE referral and the process by which its inquiry had been conducted. He accused OCE of conducting a “shoddy investigation,” of failing to contact available witnesses, of improperly drawing negative inferences against him based on non-cooperation of witnesses over whom he had no control, of ignoring the fact that its parallel investigation would conflict with the federal court litigation, of using the wrong evidentiary standard to assess the evidence and of improperly referring the matter even under the lower evidentiary standard. He commented that “I do not know whether OCE’s recommendation of further review results from an uncritical investigative and review process, OCE’s lack of experience with issues of harassment and retaliation, or a desire to pass the buck to the Committee.” Hastings letter at 11. He urged the Ethics Committee to dismiss the matter or, failing that, to delay consideration until the federal court case was resolved. Id. at 11-12.

Meanwhile, WP’s federal court case proceeded. On February 14, 2012, Hastings and the other individual defendant were dismissed as parties, but the lawsuit continued against the Helsinki Commission. Ultimately, a settlement was reached, apparently negotiated by Senate employment counsel (why, I have no idea) on behalf of the commission, in which WP received $220,000 in taxpayer funds. The lawsuit was dismissed on June 5, 2014.

Finally, on December 11, 2014, the Ethics Committee issued its own report on the matter. On the merits, the committee found WP’s allegations largely unsubstantiated or contradicted by other evidence and it therefore closed the matter without taking any action against Hastings, although it did chide him for a couple of instances in which his behavior was deemed less than professional. Ethics Rep. at 16.

Although the Ethics Committee avoided direct criticism of OCE, one can read between the lines that the committee agreed to some extent with the criticisms Hastings had made regarding the process. The committee notes right off the bat that “OCE’s referral in this matter was unique” because it recommended further review even though the evidence was insufficient to meet OCE’s “typical standard” for referral. Ethics Rep. at 1. The committee also makes a point of noting that the parallel civil litigation was ongoing during the entirety of OCE’s investigation. Ethics Rep. at 4, 10. In contrast, the committee itself “recognized the importance of not interfering with parallel proceedings” and was able to conduct a “thorough and complete” investigation by so doing. Id. at 5, 10. While the committee does not challenge OCE’s (or its own) jurisdiction over the subject matter, it implies that this jurisdiction is best exercised after OOC and/or civil proceedings are complete.

Regardless of one’s views of the merits of WP’s claims, it is apparent that the process in the Hastings case was convoluted, duplicative and rather unfair to all involved. At one time or another the claims involved the House and Senate employment counsels, the House General Counsel, the OOC, the OCE, and the House Ethics Committee, not to mention the federal court, the Department of Justice and the Helsinki Commission counsel’s office. (Even Senate Legal Counsel had a cameo appearance representing witnesses in the OCE investigation). It seems safe to say that no one involved was very happy with the experience.

It is fairly apparent that CARA directly incorporates lessons learned in the Hastings case. This is most obvious with respect to Section 303, which both clarifies that the Helsinki Commission and several other similar commissions are to be considered “employing offices” under the CAA and provides that representation of these commissions in CAA matters will be by either the House or Senate employment counsels, depending on whether the chair of the commission at the time is a representative or senator.

Other changes may be less obvious, but still are likely informed by the Hastings case. For one thing, the OOC General Counsel is charged with conducting independent investigations, rather than have OHEC serve the dual role of representing the Commission and conducting an investigation, as occurred in the Hastings case. CARA also attempts to avoid the problem of parallel proceedings by providing that matters are referred to the ethics committees after OOC or federal court proceedings have terminated. And, of course, Section 407 prohibits OCE from investigating once proceedings have been initiated at OOC.

Finally, it should be noted that two of the co-sponsors of CARA, Ethics Chair Susan Brooks and Ranking Member Ted Deutch, served on the Ethics Committee at the time that the Hastings report was issued. One other CARA co-sponsor was even more likely to have had the Hastings case in mind—Representative Hastings himself is one of the co-sponsors.

Conclusion

None of this is to suggest that Section 407 of CARA cannot be criticized or that someone could not make an argument for modifying or eliminating it (though, to be honest, I would be more inclined to broaden it). But there is no reason to construe it as an attack on or attempt to undermine OCE. It is a sensible provision which should be considered on its merits, with particular attention to Congress’s experience in the Hastings matter.

 

 

 

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