Monday, January 16, 2017

Is House Leadership Breaking Federal Law?

Is House Leadership Breaking Federal Law?

While discussing the secretive investigating committee formed by House Leadership over on a Facebook group called Sooner Politics we must have touched a sore nerve as the Vice Chairman of the committee showed up and politely tried to tell us that things were fine, that secrecy was demanded by federal and state law, and that the dirty old Democrats were making political hay out of the situation.

The Vice Chair, Kevin West,  assured all of us that everything was fine and as above board as possible.  In return we asked him to reply specifically, point by point, to Rep. Perryman's list of objections.  The discussion which you can read at this link,  went on for the better part of a day and even Floor Leader Rep. Jon Echols was kind enough to reply to questions.

Rep. West first brought up the EEOC, Equal Employment Opportunity Commission and it was his opinion as well as House Leadership that they were bound by confidentiality rules and laws through the EEOC.  But both are wrong, House Leadership cannot hide behind this law.   Here is what the EEOC says about privacy in investigations:

"An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.

A conflict between an employee's desire for confidentiality and the employer's duty to investigate may arise if an employee informs a supervisor about alleged harassment, but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment. One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line which employees can use to discuss questions or concerns about harassment on an anonymous basis."

As you can see the employee that makes allegations has zero control as the employers 'responsibility is to prevent such acts from occurring in the future by promptly dealing with any case that comes up.

Next we were told that the EEOC did prevent any of the information from being released accompanied by a link to the EEOC website policy on privacy.  Which once followed and read provided the facts above and this to boot:

"The EEOC takes privacy seriously, but this does not mean that your information will stay private as this often depends on the employee and the choices made during the EEOC process.

If the employee decides to take part in a lawsuit either individually or within a class-action lawsuit, personal information could be made publicly available either within news stories or within the written judgement of the court.  Even if an employees name is not made public, many people post sensitive and personal details on social media to family and friends which can easily be made public online either on purpose or by mistake.

Once public, its difficult to remove the information from the internet. As with all online communication, only post information you don't mind sharing with a current or future employer."

The point being that while the EEOC would not release info, meaning the House itself might not be able to release info in an official EEOC case, once a legal case was filed everything became Open Records.  Not only that but we had also been told that this was not an EEOC investigation, that it was House members disciplining other House members.   Game, set, match…

But I had laid an Easter egg for Rep. West, remarking about the NLRB decisions and sure enough House Leadership came back with the very case I had hinted at, the Banner Decision which is summarized here and Rep. West said their privacy rulings followed his understanding of the Banner Decision.  

The major issue is that House Leadership, represented by Rep. West and Rep. Cockcroft, are demanding secrecy and forced the other representatives to sign contracts stating they will keep things confidential.   Both West and Echols were in our opinion, mistaken in thinking that they could demand confidentiality statements to be signed but in fact they violated a NLRB ruling called the Banner Decision, which delineated earlier NLRB decisions that prohibited employers from muzzling their employees.

The National Labor Relations Board covers both union and non union workers and  private workers.  Whether state, and federal workers are covered depends upon their organization meeting the requirements of this court decision   Smith v. Regional Transit Authority, __ F. Supp. 2d __ (E.D. La. May 10, 2013) [PDF] (whether the entity was created directly by the state, so as to constitute a department or "administrative arm" of the government, or whether it was merely administered by individuals responsible to public officials or the general electorate).

There is the legal basis for House Leadership to follow the Banner Decision.  Is this committee an "administrative arm of the state or is it administered by individuals responsible to the general electorate?  We all know the answer to that question, the committee is administered by individuals responsible to the general electorate.  And it was created by public officials, the Speaker of the House and the Majority leader who are themselves responsible to the general electorate.

But putting the legalese aside House Leadership responded that their secrecy meets the NLRB standards which it should even if the legislature was exempt.  If they are to meet this good standard they
are going to have to prove "objectively reasonable grounds for believing that the integrity of the investigation will be compromised without confidentiality" and that "feared consequences would likely occur without confidentiality." Too meet those goals there are five elements that MUST be met on objectively reasonable grounds:

• Witnesses need protection;
• Evidence is in danger of being destroyed;
• Testimony is in danger of being fabricated;
• There is a need to prevent a cover up; and
• A corruption of the investigation would likely occur without confidentiality.

So in effect neither the EEOC or any other state or federal law is going to prevent the release of the details of the investigation and House Leadership has almost certainly broken federal law by demanding secrecy where the NLRB has said no secrecy is allowed, or even to be suggested.  No one is advocating the release of the name of the young female page but Holly Bishop outed herself by hiring a lawyer and coercing money from House Leadership.

The investigation had better open to the public or the stench will never go away and Speaker Charles McCall will have impaled himself upon the stake of cronyism and cover up.