[Congressional Record Volume 141, Number 165 (Tuesday, October 24, 1995)]
[House]
[Pages H10667-H10670]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        FEDERAL EMPLOYEE REPRESENTATION IMPROVEMENT ACT OF 1995

  The SPEAKER pro tempore. The Clerk called the bill (H.R. 782) to 
amend title 18 of the United States Code to allow members of employee 
associations to represent their views before the United States 
Government.
  The Clerk read the bill, as follows:

                                H.R. 782

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Federal Employee 
     Representation Improvement Act of 1995''.

     SEC. 2. REPRESENTATION BY FEDERAL OFFICERS AND EMPLOYEES.

       (a) Extension of Exemption to Prohibition.--Subsection (d) 
     of section 205 of title 18, United States Code, is amended to 
     read as follows:
       ``(d)(1) Nothing in subsection (a) or (b) prevents an 
     officer or employee, if not inconsistent with the faithful 
     performance of that officer's or employee's duties, from 
     acting without compensation as agent or attorney for, or 
     otherwise representing--
       ``(A) any person who is the subject of disciplinary, 
     loyalty, or other personnel administration proceedings in 
     connection with those proceedings; or
       ``(B) except as provided in paragraph (2), any cooperative, 
     voluntary, professional, recreational, or similar 
     organization or group not established or operated for profit, 
     if a majority of the organization's or group's members are 
     current officers or employees of the United States or of the 
     District of Columbia, or their spouses or dependent children.
       ``(2) Paragraph (1)(B) does not apply with respect to a 
     covered matter that--
       ``(A) is a claim under subsection (a)(1) or (b)(1);
       ``(B) is a judicial or administrative proceeding where the 
     organization or group is a party; or
       ``(C) involves a grant, a contract, or other agreement 
     (including a request for any such grant, contract, or 
     agreement) providing for the disbursement of Federal funds to 
     the organization or group.''.
       (b) Application to Labor-Management Relations.--Section 205 
     of title 18, United States Code, is amended by adding at the 
     end the following:
       ``(i) Nothing in this section prevents an employee from 
     acting pursuant to chapter 71 of title 5 or section 1004 or 
     chapter 12 of title 39.''.


           committee amendment in the nature of a substitute

  The SPEAKER pro tempore. The Clerk will report the committee 
amendment in the nature of a substitute.
  The clerk read as follows:

       Committee amendment in the nature of a substitute:
       Strike out all after the enacting clause and insert in lieu 
     thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Federal Employee 
     Representation Improvement Act of 1995''.

     SEC. 2. REPRESENTATION BY FEDERAL OFFICERS AND EMPLOYEES.

       (a) Extension of Exemption to Prohibition.--Subseciton (d) 
     of section 205 of title 18, United States Code, is amended to 
     read as follows:
       ``(d)(1) Nothing in subsection (a) or (b) prevents an 
     officer or employee, if not inconsistent with the faithful 
     performance of that officer's or employee's duties, from 
     acting without compensation as agent or attorney for, or 
     otherwise representing--
       ``(A) any person who is the subject of disciplinary, 
     loyalty, or other personnel administration proceedings in 
     connection with those proceedings; or
       ``(B) except as provided in paragraph (2), any cooperative, 
     voluntary, professional, recreational, or similar 
     organization or group not established or operated for profit, 
     if a majority of the organization's or group's members are 
     current officers or employees of the Untied States or of the 
     District of Columbia, or their spouses or dependent children.
       ``(2) Paragraph (1)(B) does not apply with respect to a 
     covered matter that--
       ``(A) is a claim under subsection (a)(1) or (b)(1);
       ``(B) is a judicial or administrative proceeding where the 
     organization or group is a party; or
       ``(C) involves a grant, a contract, or other agreement 
     (including a request for any such grant, contract, or 
     agreement) providing for the disbursement of Federal funds to 
     the organization or group.''.
       (b) Application to Labor-Management Relations.--Section 205 
     of title 18, United States Code, is amended by adding at the 
     end the following:
       ``(i) Nothing in this section prevents an employee from 
     acting pursuant to chapter 71 of title 5 or section 1004 or 
     chapter 12 of title 39.''.

  Mr. HOKE (during the reading). Mr. Speaker, I ask unanimous consent 
that the committee amendment in the nature of a substitute be 
considered as read and printed in the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Ohio?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Ohio [Mr. Hoke] will be recognized for 30 minutes, and the gentleman 
from 

[[Page H 10668]]
Massachusetts [Mr. Frank] will be recognized for 30 minutes.
  The Chair recognizes the gentleman from Ohio [Mr. Hoke].

                              {time}  1615

  Mr. HOKE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in support of the bill.
  Mr. Speaker, H.R. 782, the Federal Employee Representation 
Improvement Act of 1995 is good Government measure with broad 
bipartisan support. The act is a remedial measure necessary to protect 
the right of Federal employees as representatives of their employee 
organizations to communicate with Federal departments and agencies in 
appropriate circumstances.
  In an effort to influence the crime bill before the 103d Congress in 
1994, some employees of the Department of Justice, who are also members 
of the National Association of Assistant United States Attorneys, met 
with Justice Department officials to express their views as an employee 
organization.
  Attorney General Reno asked for an official opinion from Assistant 
Attorney General Walter Dellinger in the Office of Legal Counsel 
regarding the propriety of this group's expression of their opinion to 
top Justice Department officials. The Department was concerned that 
communications by the employees on behalf of the employee organization 
was a conflict of interest under section 205 of title 18, a criminal 
statute, which prohibits Federal employees from representing persons in 
matters in which the United States has a direct and substantial 
interest.
  The Justice Department issued an opinion concluding that no general 
exception exists for employee organizations from the restrictions of 
section 205 of title 18. Under that opinion, any representation made by 
a Federal employee on behalf of an employee organization is a criminal 
conflict of interest under section 205. Included among these 
organizations are credit unions, child care centers, health and fitness 
organizations, recreational associations, and professional 
associations. This interpretation of the law has had a chilling effect 
on communications between Federal employees and management on exactly 
those issues where communications should be fostered, not discouraged.
  H.R. 782, introduced by the gentleman from Virginia, Mr. Wolf, will 
correct this situation and protect the right of Federal employees as 
representatives of their employee organizations to communicate with 
Federal agencies in appropriate circumstances.
  The Subcommittee on the Constitution reported an amendment in the 
nature of a substitute to H.R. 782. The substitute differs from the 
introduced bill by providing certain specific limitations on when an 
employee can represent an employee organization. The substitute will 
continue to prohibit employees from representing organizations or 
groups in formal adversarial matters or in competition with the private 
sector for the assistance the Government provides through actual cash 
disbursements, as opposed to services, equipment and facilities.
  Therefore, under the language of the substitute, a Federal employee 
may not represent an organization or group in a claim against the 
Government, in a judicial or administrative proceeding where the 
organization or group is a party, or where the organization or group is 
seeking money from the Government.
  Mr. Speaker, H.R. 782 will restore and protect the rights that 
Federal employees have enjoyed for over 30 years until the Justice 
Department removed those rights through its interpretation of the law. 
I urge my colleagues to support this legislation.
  Mr. Speaker, I reserve balance of my time.
  Mr. FRANK of Massachusetts. Mr. Speaker, I yield myself such time as 
I may consume.
  Mr. Speaker, the gentleman from Ohio [Mr. Hoke] has accurately stated 
both the history that led up to this bill and its purpose. As a member 
of the Committee on the Judiciary conference, I thought the Assistant 
U.S. Attorneys Association was dead wrong in what they were arguing. 
Why they insisted on keeping people locked up for many, many years, 
whose sole crime was the possession of relatively small amounts of 
marijuana, I will never understand. But this institution defends in 
part the right of people to do things that do not make a great deal of 
sense, and certainly to say things that I disagree with. I believe the 
response of the Justice Department was erroneous, in that it did lead 
to a curtailment of the rights of Federal employees.
  We have taken some steps to expand the rights of employees, and we 
certainly should not be going back, so I was glad to cooperate with the 
chairman of the Subcommittee on the Constitution, the gentleman from 
Florida [Mr. Canady], and others, in moving this bill quickly forward.
  As evidence of the importance of this bill, Mr. Speaker, I will 
include into the Record a letter from Leonard Hirsch, president of the 
board of directors of the Gay, Lesbian or Bisexual Employees of the 
Federal Government, who testified in this letter to the importance of 
this kind of right of free expression for the kind of efforts that they 
and other organizations engage in.
  Mr. Speaker, the gentleman from Virginia [Mr. Wolf] was the moving 
force behind this bill, and is entitled to a great deal of credit for 
it.
  Mr. Speaker, I include the letter referred to for the Record.

                                                Federal Globe,

                                 Washington, DC, October 20, 1995.
     Hon. Barney Frank,
     House of Representatives, Washington, DC.
       Dear Congressman Frank: I want to take this opportunity to 
     thank you for your past support for H.R. 782--To amend title 
     18 of the US Code to allow members of employee associations 
     to represent their views before the US Government--and to 
     urge you to continue this support as the bill comes to the 
     floor this week.
       As you know, this law returns basic rights of free 
     association and speech to federal employees. These rights 
     were inadvertently removed during the important process of 
     streamlining the Federal Personnel Manual. This legislation 
     simply returns these rights to federal employees.
       Good business practice, in addition to the base ideals of 
     this country, undergird the need for this small but important 
     piece of legislation. Federal agencies must be able to gather 
     information and advice from the most knowledgeable and useful 
     sources. This often means their own employees who by joining 
     cooperative, voluntary, professional organizations bring 
     together information and wisdom that can, through 
     consultation and discussion, make for better and more 
     efficient workplace policies.
       Absent this bill, all employee groups--senior managers, 
     women, African-Americans, Native Americans, health care 
     professionals, scientists, etc--cannot as a group give 
     advise, or advocate for better policy implementation within 
     their areas of purview. This makes for bad process and bad 
     policy. Employees must feel free to join groups and know that 
     they can speak within the workplace for these groups and the 
     knowledge they bring forward. As the federal workplace 
     strives to make itself free from harassment and 
     discrimination against its lesbian, gay, and bisexual 
     employees (which it sadly is not), it is vital that the GLOBE 
     groups in the agencies are able to work with the department 
     and agency administration in developing workable and useful 
     procedures and programs. This bill will enable such 
     cooperation to continue without fear.
       Thank you for your continued support and we look forward to 
     working closely with you on future issues.
           Sincerely,
                                                Leonard P. Hirsch,
                                     President Board of Directors.

  Mr. HOKE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, we are very proud to be here on the floor today to 
actually get this on Corrections Day corrected. I also think that the 
gentleman from Massachusetts [Mr. Frank] was quite correct in saying 
that the Justice Department's interpretation of this particular portion 
of the code is, in my opinion, completely incorrect. But in any event, 
we have now dealt with that in a way that will not be confused in the 
future.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from Virginia [Mr. Wolf]. The gentleman from Virginia carried the water 
on this and did a good job with it.
  Mr. WOLF. Mr. Speaker, I rise in support of the bill. It is the 
Federal Employee Representation Improvement Act. It is bipartisan. It 
has been supported by the chairman of the Subcommittee on the 
Constitution of the Committee on Justice, the gentleman from Florida 
[Mr. Canady] and the ranking member, the gentleman from Massachusetts 
[Mr. Frank]. It will help Federal employees. Whereby up until this time 
they were able to negotiate and talk about day-care and different 

[[Page H 10669]]
things like that. When the Department of Justice came down with their 
ruling, they were no longer able to do it. This will now permit them to 
do it.
  Mr. Speaker, this is strongly supported by a number of Federal 
employee groups. It will protect the rights of Federal employees that 
they have enjoyed until the Department of Justice removed them through 
its interpretation of section 205. It is a good measure.
  Mr. Speaker, I want to express my gratitude to the gentleman from 
Florida [Mr. Canady], the chairman of the Subcommittee on the 
Constitution, and the gentleman from Massachusetts [Mr. Frank], the 
ranking member of the subcommittee, for quickly moving this, and also 
appreciate the hard work of the Office of Government Ethics and the 
staff of the Subcommittee on the Constitution, all of whom worked with 
my staff to create this bipartisan legislation.
  Mr. Speaker, I also want to commend and thank Will Moschella, who 
works for me, who really did the bulk of the work on this.
  Mr. Speaker, I rise in support of H.R. 782, the Federal Employee 
Representation Improvement Act. This legislation, which has bipartisan 
support, would allow Federal employee management and professional 
organizations to have Federal employees speak on their behalf without 
violating criminal law. This legislation is necessary because the 
Department of Justice [DOJ] issued a legal opinion on November 7, 1994, 
explaining Federal employee speaking on behalf of a nonunion 
association to their superiors could be guilty of violating 18 U.S.C. 
section 205, a criminal provision. It is apropos that H.R. 782 is being 
considered under the correction calendar process because we must 
correct the consequences of the DOJ legal opinion which has had 
negative repercussions throughout the entire Federal Government.
  Federal employees who are members of employee organizations, like 
child care centers, health and fitness organizations, recreation 
associations, and professional associations, have traditionally been 
able to represent the views of the employee organization to the 
employing department or agency. I think all would agree that active 
employee participation in matters of employment should be encouraged.
  Until now, Federal employees' ability to represent to their agencies 
the interests of their employee organization has peacefully coexisted 
with 18 U.S.C. section 205, which prohibits a Government employee, 
except in the performance of official duties, from acting as agent or 
attorney for anyone before any agency or court of the United States in 
connection with a covered matter. A covered matter is described at 18 
U.S.C. sections 205(h) as including ``any judicial or other proceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, investigation, charge, accusation, arrest, or other 
particular matter.'' Until now, issues affecting employees as 
employees, such as pay and benefits issues, have not been viewed as 
covered matters.
  DOJ legal opinions and guidelines state that managers or supervisors 
who are Federal employees and who represent the interests of their 
peers or associations before senior management officials are guilty of 
a violation of 18 U.S.C. sections 205 and could be prosecuted as felons 
and subject to imprisonment and fines. Technically, according to DOJ, 
an employee who asks to use office space on behalf of an employee 
organization may have violated the law and could be subject to criminal 
prosecution or a civil penalty of not more than $50,000 for each 
violation. This is chilling to employee participation and is the wrong 
policy to pursue. During this time of downsizing and cutbacks, we 
should be encouraging more employee participation instead of less.

  18 U.S.C. section 205 was enacted in 1962 and there has not been a 
problem until DOJ issued its opinion. Now, if a Federal employee wishes 
to discuss child care on behalf of his or her employee organization, he 
or she is in violation of the law. This situation is outrageous and 
must be corrected. This legislation, which reverses the Department of 
Justice's interpretation of the law, allows a Federal employee to 
represent an employee association or the interests of its members to 
the executive branch or any agency of the Government.
  For example, this legislation would allow a Federal employee member 
of the Conference of Administrative Law Judges to represent its views 
on changes in the Social Security adjudication process to or before a 
Federal department or agency. Under DOJ's interpretation of current 
law, administrative law judges who have experience in matters involving 
the administrative adjudicatory process, would not be able to share 
that knowhow with the agency. This is an absurd situation and H.R. 782 
will change it.
  This bill will protect the rights that Federal employees have enjoyed 
for years until the Department of Justice removed them through its 
interpretation of section 205. This legislation is a good-government 
measure, is good for Federal employees and maintains the integrity and 
purpose of section 205. I urge unanimous support for this legislation.
  Mr. Speaker, I want to express my gratitude to Congressman Canady, 
chairman of the Constitution Law Subcommittee and Congressman Frank, 
the ranking member of the subcommittee, for quickly moving this 
legislation. I also appreciate the hard work of the staff of the Office 
of Government Ethics and the staffs of the Constitutional Law 
Subcommittee, all of whom worked with my staff to craft this bipartisan 
legislation.
  Mr. Speaker, I ask unanimous consent to include a list of Federal 
employee groups who support H.R. 782.

                         Who Supports H.R. 782?

       American Federation of Federal Employees.
       American Foreign Service Association.
       Asian Pacific American Network in Agriculture.
       Blacks in Government.
       Classification and Compensation Society.
       Coalition for Effective Change (29 Federal Employee 
     Groups).
       Customs National Hispanic Agents Association.
       Federal Investigators' Association.
       Federal Bar Association.
       Federal Bureau of Investigation Agents Association
       Federal Law Enforcement Officers Association.
       Federal Managers Association.
       Federal Physicians Association.
       Federal Asian Pacific American Council.
       Fraternal Order of Police, National Park Ranger Lodge.
       International Personnel Management Association.
       National Association of Assistant United States Attorneys.
       National Association of Black Customs Enforcement Officers.
       National Association of Federal Veterinarians.
       National Association of Retired Federal Employees.
       National Association of Treasury Agents.
       Naval Civilian Managers Association.
       NIST, Child Care Association.
       Organization of Professional Employees of the USDA.
       Professional Managers Association.
       Senior Executives Association.
       Senior Foreign Service Association.
       Social Security Management Associations, Inc.

  Mr. DAVIS. Mr. Speaker, I rise to voice my strong support for this 
important legislation and to thank my friend and neighbor, Mr. Wolf, 
for crafting this solution to what has become a stifling regulatory 
burden on the free speech rights of Federal employees. I would also 
like to thank Mr. Canady, chairman of the Subcommittee on the 
Constitution, for sheparding this bill through the legislative process 
and bringing it to the floor today.
  The Federal Employee Representation Improvement Act corrects a 
Department of Justice [DOJ] legal opinion that promulgated an overly 
broad interpretation of section 205 of the 1962 Government Ethics 
Statute, Public Law 87-849. This controversial legal opinion stated 
that Federal employees would be subject to prosecution if they 
communicated with the U.S. Government in any way on any matter 
currently before a Federal agency. Now, this might make sense in the 
context of Federal employees interfering in a rulemaking that affects 
the general public, but the Department of Justice legal opinion is so 
overbroad that it could be interpreted to forbid Federal employees from 
contacting their employing agency regarding personnel and 
administrative matters.
  I have been contacted by numerous constituents who report that the 
DOJ legal opinion has had a chilling effect on what we all would agree 
are merely routine contacts between employees and management. Federal 
employees are currently afraid to communicate with management regarding 
administrative issues in Federal agencies, such as child care centers, 
health and fitness facilities, credit unions, and professional 
associations. The modern workplace is often the site of many activities 
that are not related to the official duties carried out by the office 
or agency. Employees should be encouraged to get involved in these 
activities and to speak out when necessary. H.R. 782 will correct the 
existing confusion and allow an open dialog on administrative issues 
within government agencies.
  I believe it is especially appropriate that we advance this 
legislation via the new corrections day procedure which was designed by 
the Speaker to resolve poorly written or interpreted regulations and 
laws. H.R. 782 will correct an overbroad legal opinion that has stifled 
the open exchange of views in the Federal workplace on administrative 
and quality of life issues. I urge my colleagues to unanimously support 
this important legislation.

[[Page H 10670]]

  Mrs. MORELLA. Mr. Speaker, I rise in strong support of H.R. 782, a 
commonsense measure aimed at protecting the channels of communication 
between Federal employees and management.
  One of the key factors that is driving the continuous improvement 
initiatives in government and the private sector is employee 
involvement. In fact, employee involvement and employee empowerment are 
cornerstones in the administration's national performance review and 
are essential to an agency's ability to explore new paths in solving 
problems.
  For employees, who speak on behalf of employee associations, having 
an entree to management is vital in the process. For management, having 
this feedback system is essential in staying abreast of emerging 
workplace concerns and in developing solutions that reduce conflict and 
costly potential grievances.
  And for years, no one questioned this beneficial relationship between 
employees and management. However, a Justice Department interpretation 
of title 18, section 205 prohibits employee representatives from 
expressing the views of an employee organization or association before 
a government agency. In fact the employee could be prosecuted if he/she 
does so.
  Mr. Speaker, I ask you to imagine being prosecuted for offering 
suggestions to make a day care facility safer and more enjoyable for 
our children. I ask you to imagine being arrested because as a 
representative of blacks in government or the Professional Managers 
Association you raise concerns about new hiring initiatives in your 
agency, or as a representative of the Coalition for Effective Change 
you had the nerve to comment on suggestions to improve the efficiency 
of the organization.
  The Justice Department was correct in its interpretation of the law, 
but in doing so, it compromised the spirit of the law and the spirit of 
cooperation between employees and management.
  H.R. 782 restores the voice of these employees and the spirit of the 
law, without overextending the rights of employee associations or 
infringing on the responsibilities of executives. I urge my colleagues 
to support H.R. 782.
  Mr. HOYER. Mr. Speaker, I hope that the House will approve this 
legislation that will revise rules for representational activities of 
Federal employees.
  This is commonsense government and, as a cosponsor, I am pleased to 
see H.R. 782 included on today's agenda. The legislation authored by 
Congressman Wolf will resolve existing problems that make it illegal 
for Federal employees to express the view of an employee organization 
or association to a governmental agency.
  This has been a troublesome issue for child care groups, credit 
unions, recreational associations, and other employee organizations. 
This bill will allow members of such groups to discuss all matters 
except judicial proceedings and grant requests.
  In my view, the 1962 ethics provisions, as interpreted by the 
Department of Justice in 1994, were never intended to prohibit such 
communication. It does not make sense to stop the president of a credit 
union from discussing his needs or issues with representatives of the 
agency or Department. In fact, open discussion benefits both the 
organizations, the employees involved, and the employer.
  I thank the Committee on the Judiciary for reporting the legislation 
and I urge its adoption.
  Mr. HOKE. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. Pursuant to the rule, the previous question 
is ordered.
  The question is on the committee amendment in the nature of a 
substitute.
  The committee amendment in the nature of a substitute was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and (three-fifths having voted in favor 
thereof) the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________