Police Measure Threatens CAA

Posted August 6, 2004 at 6:04pm

Language that gives the Capitol Police Board final say over the release of potentially sensitive security information about the Capitol complex — something now included in both chambers’ versions of the legislative branch appropriations bill — could, intentionally or not, undermine a significant facet of the Congressional Accountability Act.

The section would give the Capitol Police Board the sole and unappealable authority to release information they deem security-sensitive. It was written so as not to inhibit the House and Senate from obtaining such information, but the bills’ language does not exempt the CAA and thus could be used to quash safety and health inspections required under the landmark 1995 law.

The Office of Compliance, which was created to administer the CAA, currently has five outstanding investigations that are awaiting information from the Capitol Police. Two date back to the anthrax contamination of October 2001. Two others deal with alleged repeated failures by the police to either establish or follow appropriate evacuation procedures. The fifth deals with infestation and chemical remediation of red ants in two of the police’s outdoor kiosks, sources say. All five investigations are deadlocked, awaiting cooperation from the Capitol Police to proceed.

While Capitol Police General Counsel John Caulfield would not comment on the agency’s ongoing dispute with the Office of Compliance for access to such information, he said the language was not aimed at the independent legislative branch agency.

“The position in the proposal is no different than the position that has been maintained vis-a-vis the Office of Compliance for many years in this process,” Caulfield said in an interview. “The only difference is the formalization of the recognition that information security is a critical component of any security system.”

On that issue, Office of Compliance Executive Director Bill Thompson agreed with Caulfield.

“The Office of Compliance does not understand this language to be directed at our efforts to obtain information on security-sensitive matters,” Thompson said. “We are working with the Capitol Police to create a protocol to handle [security-sensitive] matters and have every expectation that we will be successful in that regard.”

That protocol, sources said, would be a memorandum of understanding that gives the Office of Compliance relatively unfettered access in exchange for assurances the information will not be released without the Capitol Police’s consent. General Counsel Peter Evelyth and at least one of his deputies have already received top-secret security clearances, the sources said.

In a lengthy interview, however, Caulfield said such clearances alone are not adequate, as “there are no safeguards and protocols per se that are inherently related to security of the Congress by virtue of the fact that someone gets a security clearance,” he said. “There has to be something more.”

Caulfield asserted that the agency requested the provision as “nothing more than a mechanism to provide the Capitol Police Board the authority, based on the assessment by law enforcement and security professionals, to protect information, the release of which could compromise Congressional security.”

He added that executive branch law enforcement entities have had in place for years “a formalized and structured system of safeguards and protocols for protecting” such information. This measure would simply provide the same for the Capitol Police, he said.

Regardless of the intent of the language, however, knowledgeable sources said the Capitol Police could use the broad authority as statutory justification for withholding information from the Office of Compliance if they choose to do so, effectively shutting down any safety and health investigations the police deem security-sensitive.

Because the section in question begins, “Notwithstanding any other provision of law,” the language could trump other statutes, including the Congressional Accountability Act — the first plank in the GOP’s 1995 “Contract with America” and Congress’ first broad attempt to apply federal workplace and anti-discrimination laws to itself.

A key component of the CAA is the ability of the Office of Compliance’s general counsel to investigate claims brought under the Occupational Health and Safety Act, one of 11 laws encompassed in the act.

Even though both the Capitol Police and the Office of Compliance both deny that the language is aimed at the Congressional Accountability Act, unions representing legislative branch employees are alarmed that the language could potentially affect the office’s investigations.

“By putting in this language, it circumvents everything we are trying to do,” said Ron Potter, chairman of the Capitol Police Labor Committee. “I believe they have developed this language so they don’t have to answer to us. There is no accountability for the Capitol Police. My safety and health inspection is [being held up] because management, or at least the attorneys, keep telling them that they don’t have to give [the Office of Compliance] the information.”

Potter filed a request for investigation with the Office of Compliance early this year because he believed the Capitol Police mishandled a cyanide gas warning in January, sending unprotected officers into an area potentially contaminated with a deadly chemical, counter to its own procedures. While the alarm later proved to be false, Potter maintains that poor communication could have led the force to send officers to their deaths without cause.

Under the CAA, requests for investigation are public, but Evelyth said he could not release a copy of Potter’s request, or the four other outstanding requests, because the Capitol Police deemed them security-sensitive.

In an interview, Potter agreed to provide the basic outlines of his compliant, but he said he would withhold details due to their sensitivity. “We need to take those [evacuation] procedures and go with them. They were not followed,” Potter said. “I want to know, and I have a right to know, where it went wrong in the communication.”

He maintains that the Capitol Police did not evacuate the entire Capitol, as the agency should have, and sent officers back into the potentially contaminated area to evacuate it when they should have cleared the building on the way out and not re-entered. Potter said that because the alarm — triggered by a system malfunction, not a drill — went off on a weekend, the situation could have provided the officers with an opportunity to follow their procedures to the fullest without worrying about scaring the Capitol’s occupants — a frequent concern when the police check out a suspicious package or otherwise don hazardous gear.

The outcome of the investigation, should it proceed, would be shared only with the Capitol Police and the requester, in this case Potter, who would likely have to sign a confidentiality agreement due to the nature of the material contained in the report. The CAA does not require confidentiality for OSHA investigations, but in practice the Office of Compliance has tightly guarded reports on investigations’ outcomes.

For example, the investigation into the procedures followed by the Capitol Police in response to the release of anthrax spores in the Hart Senate Office Building in October 2001 led to a citation, but officers were only allowed to view it in a secure room.

According to knowledgeable sources, the force has never furnished proof that the anthrax violations cited have been corrected. Under the CAA, Evelyth may file a complaint against the police for failure to comply. That complaint would then be heard by an independent hearing officer at the Office of Compliance, and could subsequently be appealed to the board of directors and eventually the U.S. Court of Appeals for the Federal Circuit. The general counsel’s office has not taken that route. Instead the case has been awaiting a response for two and a half years.

In fact, in the decade since the CAA was passed, no OSHA citation has ever led to a formal complaint against the employing agency. In most instances, the employing offices — including the Library of Congress and the Architect of the Capitol — prove that abatement has been completed. The pending investigations of the Capitol Police are the exceptions.

Without specifically addressing the investigations, Caulfield said the force has a responsibility to protect the Capitol and its occupants, independent from the prerogative of the Office of Compliance. “The point in that regard, as with other entities that have public-disclosure requirements, is what we always have done, and try to do, and continue to try to do, [which] is balance what may be at times competing interests and to read the statutes compatibly, which is what the Supreme Court has directed. It’s always going to be a balancing question,” he said.

But another Capitol Police officer who filed a request for investigation said he was troubled by the appropriations language because it does not carve out any space for the Office of Compliance.

“They are going to clip the wings of any watchdog that may be in place,” officer Larry Schaefer said. “I think it’s a very interesting move that they have taken to keep their secrets. I am having difficulty with some but not all of Capitol Police management in recognizing our weakness and dealing with our weaknesses in a more proactive manner.”

Schaefer filed a request for an OSHA investigation last year alleging that the Capitol Police failed to implement adequate emergency procedures. It is still pending.

Like Potter, he declined to provide details due to their sensitivity. But he said his request stemmed from a desire for the Office of Compliance to examine the force’s efforts to transform itself. “They have been resistant to major changes,” he said.

Capitol Police officers are not alone in their concern. The American Federation of State, County and Municipal Employees Local 2910, which represents LOC employees, believes the language would inhibit the Office of Compliance’s mission to identify and report threats to the safety and health of those working in the legislative branch.

“Part of the way that failures … get fixed is that employees have to identify them and report them,” said Saul Schniderman, president of the Local 2910. “One of the reasons that the legislative branch … has suffered over the years is that hazards don’t get identified or hazards don’t get reported. Why can’t that information be sent to them and redacted?”