NLRB member in ethics trouble has former Justice watchdog’s help

A Republican member of the National Labor Relations Board (NLRB) accused of ethics violations has had the legal expertise of a respected former Justice Department inspector general (IG) on his side.  

Glenn Fine, now a partner at law firm Dechert, was part of NLRB Member Terence Flynn's legal team at a March 15 interview for a NLRB IG investigation that targeted Flynn, according to a transcript of that interview released last week.

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A NLRB IG report released last month said Flynn shared confidential information with people outside the agency, potentially violating attorney-client privilege. 

Fine was the Justice IG for 10 years and attracted notice for his investigations into the 2006 firing of several U.S. attorneys and federal authorities’ expanded surveillance powers after the Sept. 11 attacks. Attorney General Eric Holder and Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, praised Fine when he announced that he was leaving Justice in November 2010. 

According to the interview transcript, Fine and Barry Coburn of Coburn & Greenbaum, who was also representing Flynn, sparred repeatedly with Dave Berry, the NLRB inspector general. They argued they should see Berry’s report before it was made public and that Berry’s investigation should be shut down.

Berry cited Fine’s service as IG during the interview when he was asked to release his report to Flynn’s lawyers.

“And I think probably when you were in IG, you would probably think about stuff before you made your decision,” Berry said.

“I would definitely think about it before I made a decision, yes,” Fine responded. “Although I would have done it as well. That was our standard practice. But I don’t begrudge you an opportunity to think about it.”

Fine did not respond to messages asking for comment for this piece.

The transcript is among the NLRB IG’s report’s 55 investigative exhibits. Those exhibits were released on Wednesday by Rep. George Miller (D-Calif.), ranking member on the House Education and the Workforce Committee.

Flynn — who was recess-appointed in January to the NLRB by President Obama — has denied any wrongdoing in response to the report. Though they did get an advance copy of the report, Flynn’s lawyers complained that they had less than 24 hours to respond before its public release.

Further, Flynn’s attorneys pushed Berry on why Flynn and Flynn alone was being investigated in the first place, according to the interview transcript.

“This came up as the result of another investigation. So this is not we just went and pulled his email account and decided to look at him. It came up in the course of a different investigation. And, actually, it came up because of his — got initiated because of his communications with Peter Kirsanow,” Berry said in response, according to the transcript.

Kirsanow is a former NLRB member who is alleged to have benefited from internal information Flynn passed onto him, according to the report. Kirsanow has denied all wrongdoing.

Like Flynn, another labor board member, Brian Hayes, was recently under investigation by the NLRB IG after questions were raised on whether he was being enticed to resign in order to shut the agency down. Hayes never did resign and an IG report released in January this year cleared Hayes of any wrongdoing.

One of the emails cited in the NLRB IG’s report regarding Flynn is one Flynn forwarded onto Kirsanow that was originally sent to him, Hayes and several other NLRB members and staff. Flynn was an agency chief counsel when he was passing on the NLRB’s internal information, according to the report.

Pressure has mounted for more action since the NLRB IG’s report was released.

Several in labor, such as the AFL-CIO, the Service Employees International Union and the United Food and Commercial Workers International Union, are outraged by Flynn’s actions, with some saying he should step down.

Citizens for Responsibility and Ethics in Washington, a watchdog group, has also asked the FBI and the District of Columbia Bar to open up investigations into Flynn.

Rep. Elijah Cummings (D-Md.), ranking member on the House Oversight and Government Reform Committee, has called on the panel to request documents from and set up interviews with Kirsanow and Peter Schaumber, another former NLRB member that received internal information from Flynn.

GOP presidential candidate Mitt Romney has also come under fire since Schaumber is a campaign adviser to him. The AFL-CIO has said Romney should remove Schaumber from his campaign.

Spokespeople for Romney’s campaign did not respond to messages asking for comment for this piece. Schaumber also did not return messages asking for comment for this piece.

Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, has also begun his own investigation into Flynn’s alleged ethical violations. In a letter sent Monday to Flynn, Harkin asked for copies of his emails, letters and any other documents from 2007 to now that would show Flynn sharing any of the NLRB’s internal deliberations with people outside of the agency.

Harkin gave a deadline of April 9, this coming Monday, for Flynn to comply with the documents request, but that has since been extended.

“Senator Harkin's committee has provided us with additional time to respond to his letter. We are considering our response,” said Coburn, the attorney for Flynn.

Justine Sessions, a spokeswoman for the Senate HELP Committee, said the new deadline for the documents request is April 16.

“We have heard from Mr. Flynn’s attorney and have agreed to their request for more time to respond, given that Mr. Flynn is out of town. Chairman Harkin has no reason to believe that Mr. Flynn will not fully comply with the requests made in the letter,” Sessions said.