Labor Board Member to Senator on Disclosure Request: No Can Do

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By Hassan A. Kanu

A newly confirmed member of the federal labor board responded to a disclosure request about conflicts of interest from Sen. Elizabeth Warren (D-Mass.) Nov. 21, saying he can’t provide a list of his former firm’s clients because it’s a private entity he no longer belongs to.

A California labor attorney and worker rights activist filed a motion with the National Labor Relations Board a day earlier that similarly requested that two of President Donald Trump’s three Republican appointees to the federal labor board sit out cases until the firms they used to work for disclose complete lists of their clients from the past two years.

William Emanuel, a former partner and shareholder at law firm Littler Mendelson, said he is unable to provide such a list because he doesn’t have “access to the current client lists of private firms.”

“He’s created the exact problem we’re concerned about by saying, ‘I can’t go back to Littler and find out who all these clients are to prevent any potential conflict,’” because it’s a private entity. “So he’s basically saying, ‘I’m not going to answer,’” David Rosenfeld, the attorney who filed the motion, told Bloomberg Law Nov. 22. “The new general counsel has the same problem, only it’s a much smaller firm.”

Rosenfeld also made the request directly to General Counsel Peter Robb’s previous employer—Vermont law firm Downs Rachlin & Martin. The firm didn’t respond to a request for comment Nov. 22.

The sort of comparatively far-reaching recusal requests directed at the new members are rare, and it remains unclear what’s actually required under federal conflict-of-interest laws, executive orders, or the ethics agreements that the White House requires appointees to sign.

The request is unprecedented and lacks any legal grounding, Roger King, labor counsel for the HR Policy Association, told Bloomberg Law. HR Policy Association represents some of the nation’s largest employers.

“They’re asking for an overall change in the ethics process and protocols,” he said. Rosenfeld and Warren should raise issues in particular cases when appropriate, “but requiring a wholesale recusal and informational request to a board member who has no authority, as Mr. Emanuel said, to request such a release is not practical and appears to be designed to prevent successful Republican nominees from participating in cases.”

Board representatives told Bloomberg Law last month that they have the New York law firm’s motion “under consideration.” They declined to respond to a request for comment on Rosenfeld’s request.

‘Thousands’ of Undisclosed Former Clients

The issue of conflicts of interest and recusal regarding the new board appointees has also been raised by a New York law firm.

Board members generally examine a case and determine for themselves whether it presents a sufficient conflict of interest to require their recusal, much like judges do. Those decisions are somewhat cumbersome for the public or even board litigants to scrutinize.

The Office of Government Ethics requires that members provide a list of clients that may present a conflict. However, the requirement generally doesn’t apply to clients that compensated a member with less than $5,000, those who didn’t pay for the member’s services, or clients of the member’s firm that the member didn’t personally represent.

The “problem Emanuel has is he was at a big law firm and he was a partner and they derive income from thousands of clients, many of whom are undisclosed,” Rosenfeld said.

Warren said she’s concerned Emanuel’s current disclosures lack enough information for the public to adequately evaluate whether he’s facing a conflict in a particular case, noting that Littler Mendelson has maybe the largest employment law practice in the country.

“Emanuel has failed to comply with the Senator’s request,” Rosenfeld said in his motion.

Motion Aimed at Increased Transparency

The attorney told Bloomberg Law that he wants increased transparency with regard to board members’ conflicts of interest, or at least increased awareness of the issue. He has employed creative and unusual tactics to advocate for workers’ rights since the 1970s, and he filed the motion on behalf of an advocacy group he created himself.

Emanuel is entirely conflicted and “can’t effectively serve,” Rosenfeld said.“I can’t say Marvin Kaplan is conflicted,” he said of Trump’s third Republican nominee. Kaplan was a staffer at another federal agency before his appointment and doesn’t have an extensive law firm background.“I may not agree with his politics, but at least he’s not conflicted,” Rosenfeld said.

The board appointees or their firms should disclose their entire client list so the public can check it against the incoming case flow to evaluate whether his recusal from a particular case is necessary, he said.

“Without that client list, no charging party, respondent or other party to a Board case can properly evaluate when recusal is required,” Rosenfeld added in the letter to Downs Rachlin.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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