Broadcasting Board of Governors staff failed to inform board about dropping EEO policy amendment to protect union members

BBG Watch Commentary

BBG Deputy GC Paul Kollmer-Dorsey

BBG Deputy GC Paul Kollmer-Dorsey

The Broadcasting Board of Governors (BBG) executive staff dropped an amendment protecting union members and union activities from the Equal Employment Opportunity Policy Statement agreed to by presidentially-appointed and Senate-confirmed members of the Governance Committee of the U.S. federal agency in charge of U.S. international broadcasting. The staff failed to inform BBG member Ambassador Victor Ashe, the author of the amendment, about their action.

The executive staff most likely also failed to inform other BBG member about dropping the union activity protection amendment from the final version of the EEO policy statement presented for approval by the entire board last Thursday. Ambassador Ashe first introduced the amendment at the BBG Governance Committee meeting in March 2012.

During the open meeting of the BBG board in Washington, DC last Thursday, Sept. 13, 2012, Ambassador Ashe questioned the BBG’s Deputy General Counsel Paul Kollmer-Dorsey as to why his amendment on equal employment opportunity protections for union members should not be included and why he had not been informed earlier that is was removed. The agency’s top lawyer objected to including the amendment in the EEO policy statement. The statement was finally adopted without the amendment, which was referred back to the Governance Committee for further discussion at their next meeting scheduled for October 11.

This is not the first time the BBG’s Deputy General Counsel Mr. Kollmer-Dorsey objected to motions that would offer stronger protections for the rights of BBG employees. At an earlier BBG open meeting in June 2012, during which the board discussed a resolution limiting employees right to disclose some types of internal information, Mr. Kollmer-Dorsey made a public assertion that “whistleblowing has a very specific meaning” and applies to “reporting wrongdoing to a law enforcement body,” but “it doesn’t mean disclosing something to the press.” It appears, however, from reading the Whistleblower Protection Act of 1989, subsequent court cases, and official government statements that Mr. Kollmer-Dorsey was wrong when he said that whistleblowing in the federal government does not mean “disclosing something to the press.”

The Whistleblower Protection Act of 1989 includes the following language:

Sec. 1213. Provisions relating to disclosures of violations of law, gross mismanagement, and certain other matters

(a) This section applies with respect to–

(1)

any

[emphasis added] disclosure of information by an employee, former employee, or applicant for employment which the employee, former employee, or applicant reasonably believes evidences–

(A) a violation of any law, rule, or regulation; or

(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; and

(2) any disclosure by an employee, former employee, or applicant for employment to the Special Counsel or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures of information which the employee, former employee, or applicant reasonably believes evidences–

(A) a violation of any law, rule, or regulation; or

(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

In June, despite Mr. Kollmer-Dorsey’s objections, BBG members decided to include whistleblower protection language, also proposed by Ambassador Ashe, in their earlier controversial resolution on nondisclosure of deliberative information. Even with his amendment, Ashe ultimately opposed the resolution as being too restrictive with regard to First Amendment rights.

The exchange between Ashe and Kollmer-Dorsey at last Thursday’s BBG meeting was a reply of their earlier exchange last June, with the BBG’s lawyer resisting BBG Governor’s suggestions and requests at almost every turn.

The following video recording was made at the open BBG board meeting in Washington, DC on September 13, 2012.

MULHAUPT: I’d just like to finish up on the Governance Committee. We have important issues with regard to equal opportunity and sexual harassment. The committee considered the texts of policy statements regarding equal employment opportunity and sexual harassment. The committee recommends unanimously that the plenary board adopt the revised EEO and sexual harassment policy statements, which are set forth in the draft record of decisions. Is there any discussion on this matter?

ASHE: Yes, well, I asked in the meeting this morning. May be Mr. Kollmer has the answer now. He said that this statement reflects the vast majority of the recommendations that were contained in the discussion that we had at the Governance Committee meeting back in March. Have you had time to check the record and see whether all of them were or what was left out because we’ve discussed that about 20 minutes this morning, earlier?

KOLLMER-DORSEY: Yes, Governor, I actually did go back and checked the record and spoke with people who had been at the meeting and transcribing the discussion and all of your changes were incorporated. The only thing that was not incorporated that was the subject of the discussion there was your suggestion that something about, that union activity should be included in the equal employment opportunity statement, and that was not included. But other than that, all of your changes were included.

ASHE: Well, why don’t we go to that. We agree on the first, well, actually two of them. Mr. Chairman, I would make a motion that we adopt the draft policy, that we adopt the statement on the sexual harassment policy, and then the equal employment opportunity issue is a separate question.

MULHAUPT: All right. Is there a second? The sexual policy statement. All those in favor.

ASHE: And let me say, Mr. Chairman, under your leadership the time that the committee spent, as opposed to rubber stamp pro forma approval, resulted in an improvement to an important issue that the Congress and, I think, most of Americans would agree is a serious issue. We now have a better policy that we had previously. So I’m happy to see us move forward. And I think we can take pride in this.

MULHAUPT: All those in favor say aye. Opposed? Motion is agreed to.

ASHE: The next one deals with equal opportunity.

MULHAUPT: Right. Is there a discussion on this subject?

ASHE: Well, my question would be, my question on the unions was to protect people who are blogging to a union or engaging in union activities so that they wouldn’t be penalized. Why would that not be in here? Why wouldn’t we let people? Well, why would we even remotely suggest that being a member of the union was, could, penalize you?

KOLLMER-DORSEY: I guess the short answer is that no one, that being a member of the union subjects anyone to a penalty. It’s just that equal employment opportunity is governed by a different section of the United States Code and there is a separate body of law dealing with union activity, so the labor and employment experts who are on our staff, others that we’ve consulted, kind of unanimously agreed that it’s just different. it’s oranges, and we’re talking about apples here. It’s not. This, this policy statement is just about equal opportunity.

ASHE: But is does no harm to include, to say you won’t be penalized because you belong to a union. No harm is done. And I can assure you there are some of AFGE who are concerned about it. They may be wrongly concerned and not be valid. But if you have a concern, you have. If you put it in there, what damage is done other than some lawyers have come up with a reason not to do it? I’m asking you.

KORN (RFE/RL President): I was going to support your position.

ASHE: All right, fine.

KORN: I think you could easily add in here, nothing in here shall be deemed to conflict with the protections afforded to individuals and unions under the National Labor Relations Act.

ASHE: Well, Mr. Chairman, for purposes of getting this before you, I would move that the Board make a motion that we adopt the equal opportunity statement — hopefully, there would be a generous second — and that I would move that it’d amended. First of all, we have to have a motion to adopt it.

UNIDENTIFIED VOICE: Second.

ASHE: Now I would move to take Mr. Korn’s. You know, the news out of this meeting may be the Korn-Ashe alliance, which would shock the hell out of everybody.

KORN: At least.

ASHE, Well, but I would add a sentence that membership, if I’m phrasing it right, in the union would not result in any penalty.

MULHAUPT, Yes, Paul.

ASHE: And I make that as a motion.

KOLLMER-DORSEY: Quite frankly, I don’t know if it’s OK. And I don’t feel it makes sense for this Board or even myself to suggest any change to this policy to talk about unions or union activity. I would suggest that rather than adopt this as part, that the Board. My recommendation for the Board is to adopt this policy as it is and may be for the Governance Committee to take up that issue separately and, if necessary, with the input from experts in the field, and if it makes sense under those circumstances, propose an amendment to this policy. Quite frankly, I just don’t know the implications of what you are saying, so it’s hard for me to know if it’s OK or not.

UNIDENTIFIED VOICE: So we have adopted it.

ASHE: We haven’t adopted it. In Committee we adopted it and the staff, for whatever reason, didn’t include it.

UNIDENTIFIED VOICE: Not the amendment.

ASHE: What I’m saying is if that is put in.

MULHAUPT: Is there an objection, Victor, Governor Ashe, to referring this matter, the amendment, to the Governance Committee for further review? Do you object to that?

ASHE: Well, when would the Governance Committee consider it?

MULHAUPT: At the next meeting. I hope it would be in October. I hope so. That would be my intention.

ASHE: I’m trying to figure out what’s wrong with this.

MULHAUPT: I think what he’s saying. There may be implications here. I think. No one wants to penalize anybody for union activity. So the question is how is the appropriate way to reflect that in our policies. I would suggest that this come to the Governance Committee and we will consider either creating a new policy or revising this policy in that respect after it’s been looked at by advisors and experts.

ASHE: Well, let me ask you this. If we do that, Mr. Kollmer, you have a busy workload coming up. Are you able to get back with a thoughtful answer in the next 30 days or will you need two months? In other words.

KOLLMER-DORSEY: No problem, Governor.

ASHE: In other words, you’re not necessarily opposed to it, you just want further research?

KOLLMER-DORSEY: I’m not opposed to the concept. I think just it’s prudent for us to bring this, that, up as a separate matter, adopt this policy and then bring that up as a separate matter if it would make sense to make those revisions at that time.

ASHE: What I don’t understand is, and I hope in the future, as I’ve said this morning, I was the main person who talked about all this and no one ever came back to me and shared with me that the attorneys had a problem on the union issue until right now. We could have saved ourselves about an hour of discussion had several weeks ago you called. But that’s water over the dam. I can’t undo it. What I’m saying is –and this is new, this is attorneys who deal with labor law — come up with some reason why this statement should not occur, will they be here to give us their views? Or how will we be able to explore their reasons? Obviously, they’ve taken an initial stand against it, because we’ve agreed to it at the Governance Committee in March, and due to these unknown attorneys, it’s now out. So now, we’re suggesting to put it back in and now we need more time to get back to these people.

KOLLMER-DORSEY: Governor Ashe, sorry, but Betsy ?, who is the head of out labor and employment practice issues, was at the March meeting and voiced an objection to that, and. The short question. The short answer to your question, yes, we will have labor and employment at the next Governance Committee in force to answer all questions, and we’ll prepare any briefing materials that may be helpful.

ASHE: Let me tell you this, and Mr. Chairman, I would suggest the amendment that I offered be referred to the Governance Committee, and I hope the minutes will reflect this, and be considered at, I guess, October 11 meeting.

A SHORT PORTION OF THE RECORDING IS INAUDIBLE.

MULHAUPT: …Equal employment opportunity be approved say aye. Opposed? The motion is approved. The policy is approved.

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