May 2, 2012
The Second Flynn IG Report: More Ethical Violations
[Post had been updated with regard to possible removal of Board Member]
The IG's second report on Member Flynn has been released and it's significant. According to the report, some of Flynn's comments after the initial report prompted them to request more of his emails that went back to approximately Schaumber's departure from the Board. Based on those emails, the IG found multiple violations of the Executive Branch Ethical rules, including releasing to former Member Schaumber four unissued dissents, a draft majority decision, and non-public information on the NLRB processing of cases. For some news summaries of the report see here, here, and here.
On a slightly humorous note, Flynn help write/edit an op-ed with Schaumber that appeared under Schaumber's name. Then-Chair Liebman sent Flynn a link to the op-ed with the message: "Trust you saw this. . . . Perhaps even wrote it." On a less humorous note, Flynn responded that he wasn't aware of the blog in which the op-ed appeared (The Hill's Congress Blog). This isn't funny because only three hours earlier, Schaumber had sent Flynn a link to the op-ed as it appeared in the blog, and Flynn has responded to Schaumber that maybe the op-ed would get picked up in other outlets.
There's also some interesting discussion between Flynn and Schaumber regarding Flynn's nomination, which was apparently largely Schaumber's doing. The raised concern with the IG about the appearance of a quid pro quo involving the confidential information.
Flynn, via his attorney has responded that, while not always "reflecting perfect judgment" he hasn't violated any ethics rules. The attorney also objects to the manner in which the IG has released his reports and information about the case.
Belying Flynn's current arguments that he didn't do anything wrong was the fact that he specifically asked Scahumber about the ethical restraints on discussing non-public information about the pending elections rules, which he said seemed different than discussing pending cases. That last clause appears to be an admission, albeit an unintentional one, that his release of information about unissued cases was unethical.
This report only magnifies my early concerns about Flynn's impact on the Board's operations. Flynn is saying that his disclosures weren't unethical; as a result, if I were a Board member, I would have to assume that any correspondence can't be regarded as confidential. Although Flynn's attorney suggests that this isn't a big deal in most cases, that's certainly not always, if ever, true. Moreover, if the Board considers more rulemaking, such as additional election procedures, this disclosure issue is a huge problem. It's the exact sort of issue that Flynn was sharing, and it's also the type of issue that needs a thorough consideration and discussion among the Board members and their staffs. That can't happen is Flynn is still there. The IG's report discusses this and other related problems at length in its analysis.
This leads to a question about how long Flynn can stay on the Board. Assuming that he doesn't voluntarily step down, as Rep. Miller has called on him to do, things could get interesting. Under Section 3(a), "[a]ny member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." However, these allegations do not relate to Flynn's time in office. Therefore, it appears that the White House could not try to remove Flynn unless something comes out about more recent misconduct (the White House says that it's currently looking at its options; the ties to Romney's campaign and the weird distortion the campaign is making to distance itself could give some incentive to press on this.) If that doesn't happen, it's not like Congress would impeach him--especially without criminal convictions which, even if charges were brought, would take a long time. In short, either he's going to step down or he'll remain at the Board until his recess appointment expires at the end of 2013.
Hat Tip: Patrick Kavanagh
As an aside: The report noted a motion to recuse Liebman from the NYU case because she allegedly sought empirical evidence to bolster her opinion in an early case on graduate students, Brown. I never thought Congress's prohibition against the Board conducting economic research extended to the use of outside research, but this shows how nuts the prohibition is. The Board makes makes so many presumptions, often in different directions, that it screams for more empirical evidence not less.
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I was under the impression that Board Members serve at the pleasure of the President. Am I correct? Is this situation any different because Flynn has a Recess Appointment?
Posted by: Mitchell Rubinstein | May 3, 2012 6:52:42 PM
Jeff -- Can you say more about why the White House "cannot" force him out? The President has the clear statutory authority to remove him for "malfeasance in office," 29 USC 153(a), so what's the impediment?
I understand that he's one of the controversial recess appointments and all, so it might looks kind of bad if Obama has to give him the boot. But, honestly, is that the better option than letting the guy stay on the Board when it now appears that he's just feeding the Board's confidential deliberations to his management buddies who are, in turn, using that information for personal gain?
Posted by: jason | May 3, 2012 6:56:42 PM
I think I'm going to need to split the baby between Jason and Mitch's comments. Mitch, the info I got from one of my Con Law colleagues was that appointees whose positions are subject to Senate confirmation (even with recess appointments), do not serve at the President's pleasure. You'd have to impeach them. That principle led to my comment.
However, the rule in 153(a) changes things (thanks a lot for making me look stupid, Jason--or at least stupider than usual). I'm going to confess to the obvious, that I never noticed that provision before. When I checked back in with my colleague, the sense was that the provision definitely changed things and allowed the President to remove a Board member under its terms. My colleague also guessed that "malfeasance" would probably cover ethical breaches. So mea culpa on that one--thanks for the catch.
Posted by: Jeff Hirsch | May 3, 2012 8:27:57 PM
One catch, Jason. As I note in the updated post--the allegations don't relate to his time in office.
Posted by: Jeff Hirsch | May 3, 2012 9:10:57 PM
RE: removal of presidential appointees: Presidential appointees to so-called independent agencies, like the NLRB, can only be removed for misconduct -- otherwise they serve fixed terms and do not serve at the pleasure of the President. Appointees to so-called executive agencies, like cabinet heads and heads of agencies within cabinet departments do serve at the will of the President and can be removed for any reason (e.g. Bush dumping Rumsefeld) even though they are confirmed by the Senate.
-- Michael Goldberg
Posted by: Michael Goldberg | May 4, 2012 8:07:12 AM
Thanks Michael, very helpful.
Posted by: Jeff Hirsch | May 4, 2012 8:25:38 AM
President's power to remove members of independent agencies exercising quasi-judicial or quasi-legislative functions limited by conditions set by Congress. Humphrey's Executor v. U.S., 295 U.S. 602 (1935).
Posted by: Michael Murphy | May 4, 2012 2:31:11 PM
The Humphrey's Executor case applies only to a nominee to an independent agency who has been confirmed by the Senate. Flynn received only a presidential recess appointment. Even if the President's power to remove Flynn for malfeasance and such may be a bit iffy, what happens if the President withdraws Flynn's nomination from the Senate? Surely he has the power to do that; Presidential nominations are not writ in stone; Presidents frequently withdraw nominations for varying reasons. Finally, if the Senate rejects Flynn's nomination for Board membership, he's surely out as of that moment.
Posted by: George Alexander | May 8, 2012 6:42:00 PM
Upon re-reading the May 3 blog, I note that it states that unless Flynn steps down...."he'll remain...until his recess appointment expires at the end of 2013." Quite aside that there are other possibilities, as I have pointed out in my previous comment, Flynn's recess appointment will expire at the end of the Congress' current session, which I believe takes place in January 2013. Recess appointments do not outlast a session of Congress.
Posted by: George Alexander | May 9, 2012 11:14:26 AM
The end of 2013 is correct. Because the nominations occurred during the second session of this congressional term, the appointments last until the end of the "next session," which starts at the beginning of 2013.
Posted by: Jeff Hirsch | May 10, 2012 7:32:23 PM