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A Superfluous Federal Agency Is Caught Discriminating — Again!

This latest scandal involving ugly discrimination against a dedicated member of the military is just another outrageous example of why Congress should shut down the U.S. Election Assistance Commission.

by
Hans A. von Spakovsky

Bio

May 24, 2011 - 8:54 am

Rep. Greg Harper (R-Miss.) has introduced a bill to eliminate one of the least known and most useless agencies in Washington: the U.S. Election Assistance Commission (EAC). The fact that this supposedly temporary $18 million-a-year agency is apparently on the hook to pay damages for refusing to hire a military veteran provides another sound reason for shutting it down. This is the second time in less than two years that the EAC has discriminated in hiring a job applicant — and for the very same position no less.

The Office of Special Counsel (OSC) is the independent agency that investigates prohibited political activity by federal employees. On December 2, 2009, it announced that two EAC commissioners had discriminated against a job-seeker applying for the position of General Counsel, a career civil service post. Although OSC did not identify the discriminators, the two commissioners were Gracia Hillman and Rosemary Rodriguez.

After interviewing the applicant, Hillman and Rodriguez, both Democrats, had voted along with the two Republican commissioners to hire him. He was sent an offer letter. However, according to OSC, when Hillman and Rodriguez discovered the lawyer was a Republican, they refused to approve his appointment as General Counsel. The OSC concluded that Hillman and Rodriguez had engaged in a “prohibited personnel practice” — specifically, they discriminated against the prospective EAC employee “because of his political affiliation, in violation of civil service laws.”

The lawyer received a six-figure settlement from the EAC — all of it paid by taxpayers, not those who violated the law. Now the Labor Department has found that the EAC discriminated again. And it’s the behavior of one of the same commissioners, Gracia Hillman, that was the problem. Neither Hillman nor Rodriguez is on the Commission now, but Hillman was still a commissioner last August when the EAC tried again to fill the still-open General Counsel slot. One of the applicants was a lawyer with extensive experience in voting and election law, as well as election administration. He had perfect qualifications for the job with one exception, at least according to Hillman’s point of view — he is a reserve naval officer.

During the interview, Hillman started asking detailed questions about his military service. According to the attorney, Hillman’s questioning showed that she believed “that no military reservist could ever be ‘objectively’ involved with voting issues due to some imaginary legal conflict under attorney bar requirements,” an absurd (and offensive) notion. Hillman’s questions showed that the lawyer’s military service was “a negative in her eyes and [she] sought to convey these negative ramifications to the other Commissioners and staff present.” She even discussed “the potential burdens on the Commission in the event [the lawyer] was out of the office on reserve duty,” despite the fact that his ordinary schedule involves only one weekend a month (when he would not be working at the EAC) and two weeks a year of active duty training. The lawyer said it was clear to him that Hillman believed his military service “was a valid reason not to hire [him] as General Counsel.”

Hillman’s (and the EAC’s) problem is that this kind of discrimination against a military service member is illegal under federal law. The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311, prohibits denying employment to any individual on the basis of membership in the uniformed services. When he wasn’t hired, the lawyer complained to the Department of Labor (DOL), which has responsibility for investigating this type of discrimination against members of the military.

On March 14, 2011, DOL informed the Office of Personnel Management (OPM) that the lawyer’s claim of discrimination was “meritorious and that the claimant is entitled to the position of General Counsel and compensation for lost wages and other benefits.” The DOL letter stated that Hillman asked the lawyer “inappropriate questions regarding his military obligations” during his interview. Even worse, she apparently lied to DOL investigators when she “denied making any comments about [the lawyer’s] military commitments.” Witnesses present during the interview confirmed that Hillman had asked these inappropriate questions.

DOL even has a recording of the closed session at the EAC where the commissioners discussed the two finalists for the General Counsel job, which included the reserve officer. To her credit, Republican Commissioner Gineen Bresso confronted Hillman over her inappropriate questions and the fact that they violated USERRA. In that recording, according to DOL’s letter, “Hillman admitted that she asked questions about [the lawyer’s] reserve duties” — something she later denied to DOL investigators.

DOL’s letter tells OPM that if this is not resolved, the claim will be referred to the Office of Special Counsel, the same office that investigated Hillman and Rodriguez in the earlier case. Once again, it looks like the taxpayers will be saddled with large expenses thanks to the misbehavior of an EAC commissioner.

Rep. Harper has the right idea. He wants to get rid of an agency that has outlived its purpose. After all, its work is done. The Help America Vote Act created the EAC in 2002. Its only purpose: To help implement that law and distribute funds to update voting equipment around the country. These tasks have all been accomplished.

In a recent PJ Media article, Richard Pollock noted that the EAC is an agency without a mission, yet half of its staff earn six-figure incomes. Only one of every three employees works on real programs, and its internal finances are such a mess that it could not be audited. It can’t account for half a million dollars in travel vouchers and wasted $7,000 in taxpayer funds on t-shirts for its employees. The National Association of Secretaries of State, a bipartisan organization that represents the chief election officials of all the states, has twice passed resolutions calling for the EAC to be phased out.

While I was at the Justice Department, I served on the first Board of Advisors of the EAC. I had many interactions with the EAC and its personnel and it was one of the most dysfunctional federal agencies it has ever been my misfortune to encounter. This latest scandal involving ugly discrimination against a dedicated member of the military is just another outrageous example of why Congress should follow the advice of the states’ chief election officials and shut down this unneeded, inept, and discriminatory federal agency.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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