Compliance Vacancy Raises Concerns

Posted March 26, 2003 at 6:14pm

The office entrusted with investigating workplace safety violations as well as a host of emergency preparedness issues on Capitol Hill has been without a permanent head for months, despite the fact that the previous occupant’s departure date was known long in advance.

The search began for a new general counsel for the Office of Compliance last summer, according to people familiar with the process, but the hunt has yet to yield a successor to Gary Green, who left Dec. 13. Subject to approval of the board, the chairwoman appoints the general counsel, who serves a nonrenewable five-year term.

The board of directors, which consists of five lawyers from around the country appointed by Congressional leaders, installed Cheryl Polydor as acting general counsel a few months ago. And Chairwoman Susan Robfogel said that she hopes the process will be complete “very, very soon,” perhaps by the beginning of April.

But a key lawmaker raised questions about the fact that the office has been left in limbo at a crucial time.

Asked if he was concerned about the vacancy, Sen. Chuck Grassley (R-Iowa) replied: “Of course I am. For a position that important there shouldn’t be a vacancy for a long time. We’re talking about Congress setting a good example for the rest of the country. We need a general counsel to get the job done.”

Grassley co-authored the 1995 Congressional Accountability Act, Congress’ first broad statute to apply federal labor laws and fairness practices to itself. It created the Office of Compliance as an independent office within the legislative branch to enforce the application of 11 civil rights, labor and workplace laws for Congress and its support agencies.

The general counsel is charged with investigating violations of Occupational, Safety and Health Act regulations, the Americans With Disability Act and labor-management relations standards.

But the general counsel is perhaps best known for conducting periodic inspections of all facilities of the House, the Senate and legislative branch support agencies, which it is statutorily obliged to do at least once each Congress.

Last year the general counsel’s report focused on emergency preparedness and pointed to significant deficiencies in planning, including overcrowding in the Capitol, which it said lacks adequate alarms and exits; improper storage of flammable materials; and blocked or nonexistent fire doors, among other serious OSHA violations.

Although the language was no more alarming than previous reports — which have detailed insufficient emergency planning and health hazards facing Congressional employees — a heightened security awareness created a quasi-frenzy following the report’s release. It was covered widely in the media and was criticized by House Administration Chairman Bob Ney (R-Ohio), who has oversight of Capitol safety.

It is precisely for those reasons — the pressures of the position and the degree to which the occupant is often under fire on the Hill — that people familiar with the workings of the Office of Compliance are upset that the board has taken so long to fill the general counsel post.

“Cheryl is doing her best, but when you don’t have a general counsel with a five-year term, you’re vulnerable,” said one observer. “There’s no excuse for the board putting her in this position, the employees of Congress in this position … in the face of an imminent threat.”

Polydor did not return calls seeking comment.

Robfogel noted the board’s authority to appoint an acting general counsel, although she added, “It’s obviously not an ideal situation to have an acting person for any length of time.

“Fortunately, to my knowledge, there have been no problems,” the chairwoman said about any concern from employing agencies about the authority of an acting general counsel.

But sources familiar with the process also said that at least a couple of times agencies on the receiving end of the office’s investigations have questioned the authority of an acting general counsel to issue citations.

Additionally, the office drafted its fiscal 2004 budget request without consult from the permanent general counsel, who also could miss the beginning of the hearings, a crucial moment for an agency with such a small budget.

But one source familiar with the process underscored the difficulty in filling such a unique position.

“This is a very unusual job and it requires a combination of really, really high quality people skills at the same time someone who has the gravitas not to get co-opted by the glory,” the source said, adding that the occupant needs to have “an extremely healthy ego” but also understands that “some of the most effective work is done in the background.”