OFFICE OF SENATE LEGAL COUNSEL STATEMENT OF MICHAEL DAVIDSON, SENATE LEGAL COUNSEL STATEMENT OF DR. HARRIETT G. JENKINS, DIRECTOR INTRODUCTION OF ASSOCIATES Senator MACK. We are pleased to have on our next panel Mr. Michael Davidson, Senate Legal Counsel, and Dr. Harriett Jenkins, Director of the Office of Senate Fair Employment Practices, and Mr. Thomas Griffith, Deputy Legal Counsel. We have asked the Office of Senate Legal Counsel and the Office of Senate Fair Employment Practices to give the committee an idea of the legal representational needs of the Senate and Congress and associated costs, especially in light of the passage of the Congressional Accountability Act. Mr. Davidson, I note that you are, as I indicated, accompanied by Mr. Griffith. And, Dr. Jenkins, before I begin with questions, would you please introduce any colleagues that you would like to the committee? Dr. JENKINS. Would you like me to do that now? Senator MACK. Yes; and why don't you introduce yourself, even though I have indicated your names because we do not have name plates in front of you, so that the audience may know who you are. Dr. JENKINS. Thank you, Mr. Chairman. I am Harriett Jenkins, the Director of the Office of Senate Fair Employment Practices, and I would like very much to introduce my Deputy Director, Carl Moore. Also in the room is Raj Gupta right behind me. He is on detail to us from the Equal Employment Opportunity Commission. You may remember that Carl Moore was the General Counsel for the Personnel Appeals Board for the GAO before coming to our of fice. Senator MACK. Welcome. Mr. DAVIDSON. My name is Michael Davidson, Senate Legal Counsel. If I could begin by augmenting slightly the introduction of Tom Griffith. I have had the terrific privilege of representing the Senate for 16 years now, since the opening of our office in 1979, and have now had the additional privilege of working with Tom as a colleague. Tom is now the Deputy Counsel; he will be appointed the Senate Legal Counsel. I can tell you from our experience together that the Senate will be gaining a counsel who brings scholarship and distinction to his work, and it has been a pleasure to work with him. We have also here Morgan Frankel and Claire Sylvia, our Assistant Counsel, and I would like to introduce them as well. Senator MACK. Thank you; would any of you like to make an opening statement? Mr. DAVIDSON. I have a prepared statement which I will be happy to submit for the record and then engage the committee in a colloquy on the issues that are before us. Senator MACK. I might suggest again, rather than going through the full testimony, that you might want to highlight it for us. Because, again, I think there has got to be some confusion, not only with those who might be observing for the first time but, frankly, within the Senate itself, as to the different functions, how they work or do not work together, what recommendations you have for the future. And at one point I think you all were here when Senator Murray raised her questions, and you may want to address some comments with respect to that, and then we can get into a little back and forth. STATEMENT OF MICHAEL DAVIDSON Mr. DAVIDSON. I would be very happy to do that if you would like. Let me begin by describing the Office of Senate Legal Counsel briefly. The Office was created by public law in 1978; it came into being in 1979. It had been the product of consideration over a decade prior to that. It was the strong desire of the Senate to create an office which would be nonpartisan, that would have as its principal responsibility the representation of the Senate, its committees, its members, and officers and employees, in a number of matters. An important component is the representation of the Senate community whenever any part of it becomes a defendant in civil actions relating to official responsibilities. We also appear on behalf of Senate parties whenever they are subpoenaed in any proceeding, civil or criminal. We represent Senate committees in the course of investigations to, among other things, enforce Senate subpoenas. A very significant branch of our jurisdiction is that whenever the Senate determines that there is a controversy that concerns the constitutional powers of the Congress-a controversy pending in the U.S. courts-the Senate may authorize us to appear as either an amicus, a friend of the court, or as an intervener to defend the constitutional powers of the Congress. In the Ethics Act of 1978, the Congress, at the Senate's request, established a system that is very important in the administration of that act, namely, a system of accountability and authorization. We only appear in cases when we are authorized by the Senate or, in some circumstances, by a leadership group to appear on behalf of a Senate party. These are not decisions that we make by ourselves. We submit them to the leadership, and in nearly all cases there is a Senate resolution which authorizes an appearance in a case. That allows the Senate to determine whether representation is a proper undertaking for the Senate. PREPARED STATEMENT Also, we are accountable to the joint leadership group, which is a bipartisan group. The overwhelming purpose of the Office is to serve the entire institution and its values, and to do so at all times in an accountable manner. Perhaps you would like to introduce your Office now, Harriett? [The statement follows:] PREPARED STATEMENT OF MICHAEL DAVIDSON Mr. Chairman: I appreciate the opportunity to testify before the Subcommittee on Legislative Branch on the appropriation for the Office of Senate Legal Counsel, and to provide information that may assist the Subcommittee with regard to appropriations under the Congressional Accountability Act of 1995. The Office of Senate Legal Counsel was created by Title VII of the Ethics in Government Act of 1978, 2 U.S.C. §§ 288, et seq. (1994), and was the product of legislative consideration that began a decade earlier. We are a nonpartisan office that has both litigation responsibilities, in appearing on behalf of Senate parties before the courts, and advisory responsibilities within the Senate. Our authorizing legislation prescribes several major categories of litigation responsibilities. We are charged with defending the Senate, its committees and offices, and its members, officers, and employees when they are defendants in civil actions relating to official responsibilities. We represent the Senate's interests when subpoenas are issued for Senate testimony or records in either civil or criminal proceedings. We appear on behalf of Senate committees in court proceedings relating to investigations, such as to enforce Senate subpoenas. We represent the Senate when it appears as a friend of the court or as an intervenor in cases in which the constitutional powers of the Senate are at issue. To provide additional information about the litigation responsibilities of our office, I have provided to the Subcommittee a list of reported decisions by the courts of the United States, including decisions by the United States Supreme Court and the federal courts of appeals and district courts, in cases in which we have been directed by the Senate to represent its interests in court. Within the Senate we provide advice on a range of legal issues. These include advising Senate committees on questions concerning investigatory rules and procedures. From time to time, in establishing special investigatory committees, to inquire into such matters as Billy Carter's relationship to Libya, the FBI's investigation of Abscam, and the Iran-Contra affair, the Senate has specifically directed our office to provide assistance. We have also assisted Senate committees in carrying out the constitutionally committed judicial functions of the Senate, such as in the impeachment trials of Judges Claiborne, Hastings, and Nixon. On a daily basis we respond to inquiries from committee staff, personal office staff, and state office staff, on a great variety of legal questions. In the last several years we have assisted in the development of the congressional fair employment system. We took part in formulating the procedures established by the Civil Rights Act of 1991 for adjudicating Senate fair employment disputes, and participated in the joint House and Senate efforts to produce a draft of the Accountability Act that could secure early passage this year in both Houses. Two important features of the Office of Senate Legal Counsel's work are accountability and authorization. The office is accountable to a bipartisan Joint Leadership Group, consisting of the two Leaders, the President pro tempore, and the chairmen and ranking members of the Committees on the Judiciary and Rules and Administration. All our appearances in court are either authorized by the full Senate by resolution, or, in the case of the defense of a Senate defendant or subpoenaed party, by a two-thirds vote of the Joint Leadership Group when a resolution cannot be obtained because the Senate is in recess. This system assures that in all cases there is bipartisan approval for an appearance by our office in court. Since the opening of the office in 1979, we have sought to adhere to several personnel and budgetary principles. First, we have maintained a small office. Our work is accomplished by a sevenperson staff that is no larger than the staff that we first put together in 1979. We have, in addition to a Counsel and Deputy Counsel, two superb Assistant Counsel, and a three-person supporting staff that provides high quality paralegal, computer, library, and general secretarial assistance. A small office allows us to share and critically evaluate our work, so that when we communicate within the Senate or t We ha ant Col. Sena openir Mr. happy a co1 S the ca wi W oranch our legal documents and analyy subject. continuity, in part by attention to apening to bear on current problems an accuIn that regard, we have been mindful in creating the Office of Senate Legal experience in the Senate with detailed # * ܂ precedent that may be applicable to recurhat preserved and protected the often unique office with the tools, including library and would facilitate good scholarship in the course ponsibilities. Our research often includes an s at shed light on the constitutional and other representing the Senate's interests. in each year's budget a reserve for unanticipated heur in a case requiring extensive depositions ve has been to enable us to respond to a Member's, ems, with, of course, the approval of the Senate hout seeking a special appropriation for any parhe reserves as just that, as a set aside for unusual nificant amounts to the Treasury as shown by the the Subcommittee of annual appropriations, ex asual appropriation might be noted, namely, that we butions for employee benefits. Thus, approximately racua is an expense over which we have no control. con about the appropriation for the Office of Senate 1996. I would like to describe features of the Congresecent enactment of which marks a potentially signifi ocities of the office beginning in fiscal year 1996. w be described in greater detail by Dr. Jenkins. year, beginning on January 23, 1996, the rights estabe the Act, and the remedies established to enforce those are or employees of the House, the Senate, the Architect, Conal Budget Office, the Office of Technology Assesscian. The rights that become applicable next January get to be free of employment discrimination on the a national origin, age, and disability, the right to family murimum wage and maximum hours protections, and Amation or reprisal in the exercise of rights under the for exhausting counseling and mediation, will be able to seek 6 som strative proceeding under the Office of Compliance estabde av dy dek, subject to review by the U.S. Court of Appeals for A une des à Na complaint, with a right in most cases to a jury Que argenes so bave the right to nondiscriminatory employment and to Nave through a system administered by the Office of Senate A Sauman arany alleged act of discrimination or denial of family and are we or before January 22, 1996, an aggrieved employee must be the presente fair employment system. Thus, perhaps into fiscal year to the Nose system and the new Congressional Accountability Act system will aust Agender and each will require appropriations. Three provisions of the Accountability Act will not create enforceable rights until fiscal year 1980 The labor management relations section of the Act will take effect an October 1, 1996 Prwwwdings to enforce the occupational safety and health provistons of the Act, and provisions for enforcing the requirement that the facilities and services of the Congress be available to persons with disabilities, will take effect on January 1, 1997 With respect to occupational safety and health, and disabilities ac cess matters, the period prior to January 1, 1997 is to be used for the voluntary Attachment A to this testimony sets forth the effective dates of key provisions of identification and correction of violations. the Accountability Act. There will be four major categories of expenditures under the Accountability Act for which consideration by this Committee is required. First, to be discussed by Dr. Jenkins, there will need to be an appropriation for the operations of the Office of Compliance. Second, there will need to be an appropriation for the payment of se tements and awards. Attachment B to this testimony presents an analysis of the settlements and awards question, in support of a suggestion that consideration be given to a permanent indefinite appropriation as is done for the judgment fund of the United States. Third, appropriations may be needed for the voluntary correction of potential occupational safety and health and disabilities access violations. As I have indicated, the Accountability Act provides an opportunity throughout fiscal year 1996, and through the first quarter of fiscal year 1997, to identify and voluntarily correct OSHA and Disabilities Act public services and access violations. Fourth, there should be consideration of the legal expenses involved in defending Senate offices under the Act, as well as the expenses that may be incurred elsewhere in the legislative branch, for defense against claims of violation of the Accountability Act. Significant economies may be achieved through the integration and coordination of legal representational functions. Under the existing, but soon to be phased out Senate fair employment system, there was a need, which we brought to the attention of the Leadership, to provide through a counsel separate from our office, representation of Senate offices in proceedings before hearing boards and on appeals from hearing boards to the Ethics Committee. Our office represents the Ethics Committee in litigation from time to time. It was my opinion, and also the opinion of the leadership of the Ethics Committee, that designating a separate counsel to appear before the Ethics Committee would avoid a conflict that we might have in being both counsel for, and counsel in front of, the Committee. Under the existing Senate fair employment system our representational work has begun after a final decision within the Senate has been reached and an employee has petitioned for review in the U.S. Court of Appeals for the Federal Circuit. Under the Accountability Act the appellate functions of the Ethics Committee will be performed by the Board of the new Office of Compliance, which will be a Congress-wide, and not Senate, entity. It should be possible, therefore, to integrate, under the statutory framework for accountability and case-by-case authorization established by the Ethics in Government Act, the functions of our office and the employment law unit that now appears before hearing boards and the Ethics Committee under the Senate fair employment system. The integration of functions will result in considerable fiscal savings, assure that the Senate speaks before outside bodies with a single voice, and assure control by the Joint Leadership Group of Senate litigation decisions. Full integration cannot be completed while proceedings, including appearances before the Ethics Committee, continue under the present Senate fair employment system, but a goal for fiscal year 1996 should be, I believe, to make significant progress toward that objective. Another area in which significant savings may be achieved, or new expenses avoided, is in the representation of the Office of the Architect and the Capitol Police Board under the Act. The Architect has had to retain private counsel for a number of fair employment matters under the legislation that has preceded the Accountability Act. Under the new Act, all officers and employees of the Capitol Police, irrespective of whether they are paid by the Senate or the House, will be treated as employees of the Capitol Police Board rather than of the individual Sergeants at Arms of the two Houses. To reduce the Architect's need for private counsel, and to avoid or minimize the need for the Capitol Police Board to retain outside counsel, I recommend that consideration be given in the House and Senate to providing the services of their counsels' offices in representing entities of the legislative branch that operate in close proximity to the Congress, such as the Architect, the Attending Physician, the Capitol Police, the Congressional Budget Office, and the Office of Technology Assessment. In a sense this idea would implement, to a small but important degree, the concept which the Senate initially proposed during consideration of the Ethics in Government Act of 1978 of establishing a unitary Congress-wide legal office. The appropriation for the Office of Senate Legal Counsel for the current fiscal year is $936,000, a level that was established after a several year freeze at $833,000. The request submitted for inclusion in the President's budget for fiscal year 1996 is $985,000. My recommendation is that the fiscal year 1996 appropriation be held to the fiscal year 1995 level of $936,000, and that the consideration of any increase or reduction be deferred until the appropriation for fiscal year 1997, to permit an assessment of the budgetary impact of the Congress's initial experiences under the Accountability Act. |