By Wilson Abney, an attorney and consultant who has advised federal agencies and Congress on government ethics, including as chief counsel to the Senate Ethics Committee and as an attorney for the U.S. Commerce Department and the Consumer Financial Protection Bureau.
The National Labor Relations Board has jurisdiction over union organizing drives, elections, and labor-management relations in the private sector. NLRB members are appointed by the President and confirmed by the Senate. On January 9, 2012, pursuant to a recess appointment by President Obama, Terrence Flynn was sworn in as a Member of the NLRB. On May 25, Mr. Flynn submitted his letter of resignation effective July 24. Mr. Flynn’s resignation follows two reports issued by the NLRB’s Inspector General (IG) criticizing conduct he engaged in as an attorney on the staff of NLRB member Brian Hayes.
Mr. Flynn began working at the NLRB in 2003 as Chief Counsel to Republican NLRB member Peter Schaumber. When Mr. Schaumber left the NLRB, Mr. Flynn joined the staff of Republican NLRB member Brian Hayes.
According to the IG’s reports, in 2010 and 2011, during his tenure with Mr. Hayes, Mr. Flynn leaked to Mr. Schaumber (who at the time was co-chair of presidential candidate Mitt Romney’s labor advisory committee) and Peter Kirsanow, another former Republican NLRB member (who was serving as outside counsel to the National Association of Manufacturers) confidential information including drafts of NLRB decisions as well as materials constituting NLRB internal deliberations. In addition to Mr. Flynn’s unauthorized disclosure of confidential information received in the course of his official duties, the IG concluded that Mr. Flynn had secretly helped Mr. Schaumber prepare a newspaper opinion piece attacking an NLRB decision characterized as pro union.The IG declared that Mr. Flynn’s assistance in preparing the article was “an abuse of his discretion.”
As for the unauthorized disclosures of confidential NLRB information, the IG stated that such disclosures violated specific provisions of the Standards of Ethical Conduct for Employees of the Executive Branch which prohibit Federal employees from using nonpublic information to further their own interest or that of another (5 CFR § 2635.703(a) and 5 CFR § 2635.703(b)). \The IG also declared that Mr. Flynn’s conduct violated 29 CFR § 102.118 which prohibits NLRB employees from releasing Agency documents without written consent given by the NLRB Chair, the Board, or General Counsel. Additionally the IG concluded that Mr. Flynn had violated the fundamental principle applicable to every Federal employee: “public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain” and “[e]mployees shall endeavor to avoid any actions creating the appearance that they are violating the law or ethical standards….” 5 CFR § 2635.101(b)(1) and (14).
The IG’s report has been referred to both the Justice Department and the Office of Special Counsel, which will determine if Mr. Flynn’s activities violated the Hatch Act’s prohibitions on federal employees participating in partisan politics. Mr. Flynn’s attorney has acknowledged that his client’s actions demonstrated less than “perfect judgment in every instance,” but has also asserted that “they were not undertaken for any improper purpose.” The IG has responded that “Mr. Flynn’s public statement that he has engaged in no wrongdoing strikes at the very heart of the board and all but eviscerates the due process procedures that the board has established.” Senator Tom Harkin (D-Iowa), Chair of the Senate Labor Committee, agreeing with the IG, has stated that Mr. Flynn’s actions in cases where Mr. Flynn disclosed confidential internal NLRB information, “potentially violated the due process rights of the parties [to NLRB proceedings], undermined the enforcement of laws enacted by Congress and demonstrated a fundamental lack of integrity and the professional judgment required of a public servant.”
Like many independent federal agencies, the NLRB has both Democratic and Republican members who are responsible for the agency’s decision making process. The basic question raised by Mr. Flynn’s conduct is whether individuals appointed to governmental positions reserved for those affiliated with a particular political party use their positions to further the public interest and the common good through intellectual acumen, curiosity, honesty, and impartiality or seek political advantage, propagation of partisan ideology, and payoffs for those who provide financial support to their party’s electoral campaigns.
Our founding generation fought for independence from Britain because they no longer trusted that government to make decisions on their behalf and to take into consideration their needs and interests. Mr. Flynn’s conduct exemplifies the perpetual partisan struggle that for too long has infected our political climate and diminished the public’s confidence in our government’s ability to address effectively fundamental policy issues. Use of public office for partisan advantage destroys trust in our government institutions. It is incompatible with the anti-corruption principles inherent in the Declaration of Independenceand the Constitution. It is inconsistent with the continuing commitment to those values renewed by each generation across our 225-year history. These core values form the very heart and soul of the ethics codes adopted by every branch of the federal government.
Mr. Flynn will be leaving Federal employment on July 24. For him, the ethical imperative to put aside personal or partisan advantage to protect the ability of the American people to have faith in the integrity of our public institutions is a lesson too late for the learning. For federal employees who work on our behalf every day, Mr. Flynn’s failure is a cautionary tale. For the sake of our republic, may those employees learn this lesson quickly. Our future as a functioning republic hangs in the balance.