by Phil Wilson
Who Watches the Watchmen?
“Quis custodiet ipsos custodes?”
(Translated: “Who will guard the guards themselves?”)
Juvenal’s Satire IV
One of my favorite graphic novels (what we grownups call comic books to make them sound more serious) is The Watchmen by Alan Moore and Dave Gibbons. Set in a dystopian past, a group of “superheroes” helps the United States win the Vietnam War. The Watergate break-in remains a secret and the 22nd amendment is overturned, allowing Nixon to remain President until 1992 (when he’s succeeded by President Robert Redford). And the world is on the brink of World War III.
The Watchmen turns the typical superhero story on its head. The heroes are not heroic. They’ve been outlawed and either retired, live their lives underground, or work for the government. The entire series struggles with the question of what to do when the powerful can no longer be trusted. Graffiti peppers the book (or the great movie adaptation) with the words, “who watches the watchmen?”
Last week the NLRB issued its final report on its comprehensive 18-month ethics review on recusal decisions, which also focuses on the central question, “who watches the watchmen?” This was the first top-to-bottom ethics review by a federal agency. It was spurred by the controversial recusal decision in Hy-Brand, where the Board ruled and then, after a highly suspect ethics decision held Member Bill Emmanuel should have recused, rescinded its decision.
In the 71-page report the NLRB thoroughly reviews the roles, responsibilities, and procedures involved in ethics and recusal decisions. It concludes its current process and procedures are, “strong, effective, and fully compliant with all applicable government ethics requirements.” You can skip that part unless you’re a real labor nerd.
The Board then adopts a handful of action items intended to codify procedures to increase transparency and clarity of the recusal process. It also adds an important new process for seeking review of ethics decisions where a Board Member may disagree with a finding. In other words, a process to watch the watchmen.
The “must read” section of the report starts on page 40. Here the Board carefully lays out how the outrageous Hy-Brand recusal decision came to be. The timeline of the events – and the political gymnastics – that led to the decision are shocking. It fully explains why the weaponization of the current ethics process demands some procedure to watch the watchmen.
Here are some of the key moments:
- Emmanuel was cleared to participate in the original Hy-Brand This was confirmed by the Designated Agency Ethics Official (DAEO).
- After the Hy-Brand decision issued the NLRB’s Inspector General (IG) received a hotline call raising an ethics concern based on the (never before heard of) theory that two completely separate cases can be combined together – after the fact – for purposes of determining recusals.
- The IG decided that Member Emmanuel should have recused himself from the Hy-Brand decision because it somehow transformed itself into the same “particular matter involving specific parties,” as a prior decision in Browning-Ferris Industries. This decision – while not binding on the Board – put the Board on notice of a significant ethics issues and they sought guidance from the DAEO.
- The DAEO retroactively adopted the finding of the IG decision.
- DAEO instructed the Board that Member Emmanuel must be immediately recused from further consideration or involvement in anything related to Hy-Brand. The remaining Members understood this meant that if Member Emmanuel were allowed to participate in any way (including offering a footnote explaining his objections to the ethics decisions) that they also were subject to ethics violations.
- The Board requested a confirmation that the Office of Government Ethics (OGE) agreed with the decision of the DAEO. The OGE refused to issue a written decision or even discuss with then-Chairman Kaplan the decision or even whether they concurred with the DAEO decision. The DAEO repeatedly stated that the OGE supported the decision.
- Based on their understanding at the time, the Board felt they had no other option than to rescind the Hy-Brand decision and to prohibit Emmanuel’s further participation in any way.
- Over the course of their 18-month ethics review it became clear that the OGE and DAEO’s behavior during the incident were highly suspect. They misstated the legal effect of both the DAEO’s authority to enforce its ethics guidance, and the OGE’s flat refusal to even discuss the situation essentially eliminated any ability for Member Emmanuel to question a completely untested and outrageous legal theory.
Who watches the watchmen, indeed.
The Board’s conclusion is self-evident: any process where legal ethics officers can be pressured into making politically expedient and legally suspect ethics decisions without any hope of appeal or substantive review must change. Member Emmanuel was given no due process, and he and any Board Member who dared object to the outrageous DAEO or OGE interpretation faced potential criminal liability.
One critical action item out of the report is an appeal process (detailed in Appendix 3) for the unique situations where a Board Member disagrees with an ethics determination of the DAEO, OGE or the IG. After a number of collaborative ways to resolve these situations the process includes a method for a Board Member to note disagreement with a recusal decision and preserve that argument so it can receive legal review.
As the ethics report makes clear, this situation is very unique and in the vast majority of cases Board members follow the guidance of ethics officers without any question or concerns. However, this unique situation lays bare the fact that we live in a different (dystopian?) world today. Today somebody must watch the watchmen. Which reminds me of a joke (quoted from the character Rorschach in Watchmen):
“Heard a joke once: Man goes to doctor. Says he’s depressed. Says life seems harsh and cruel. Says he feels all alone in a threatening world where what lies ahead is vague and uncertain. Doctor says, “Treatment is simple. Great clown Pagliacci is in town tonight. Go and see him. That should pick you up.” Man bursts into tears. Says, “But doctor…I am Pagliacci.”
This article ends on a sour note (hey, it’s better than how Watchmen ends with a… nah, I’m not going to spoil it for you, go read it for yourself J!) However, I want to end on a thankful note. This is the season of gratitude, and I hope it reminds us to be grateful all year long. I am grateful for our incredible team here at LRI, our amazing clients, and you dear reader. Thanks for your support and your help spreading the word about our work. We are thankful for you every day of the year. Happy Thanksgiving.