[Congressional Record Volume 142, Number 47 (Monday, April 15, 1996)]
[House]
[Pages H3341-H3343]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




DIRECTING THE OFFICE OF COMPLIANCE TO PROVIDE EDUCATIONAL ASSISTANCE TO 
  EMPLOYING OFFICES OF THE HOUSE IN SAME MANNER AS SUCH ASSISTANCE IS 
     PROVIDED TO THE PRIVATE SECTOR THROUGH THE DEPARTMENT OF LABOR

  Mr. THOMAS. Mr. Speaker, I move to suspend the rules and agree to the 
resolution (H. Res. 401) directing the Office of Compliance to provide 
educational assistance to employing offices of the House of 
Representatives regarding compliance with the Congressional 
Accountability Act of 1995 and requiring employing offices of the House 
of Representatives to obtain the prior approval of the chairman and the 
ranking minority party member of the Committee on House Oversight of 
the House of Representatives of the amount of any settlement payments 
made under such Act.
  The Clerk read as follows:

                              H. Res. 401

       Resolved,

     SECTION 1. INTERPRETATION AND ADVICE BY OFFICE OF COMPLIANCE.

       In carrying out its duties under section 301(h) of the 
     Congressional Accountability Act of 1995, the Office of 
     Compliance shall, through interpretive bulletins, advisory 
     opinions, and other methods, provide educational assistance 
     to employing offices of the House of Representatives in the 
     same manner as, and to no lesser extent than, such assistance 
     is provided to other employers through the Department of 
     Labor with respect to laws made applicable to such offices 
     under that Act, except that any employees of the Office of 
     Compliance who provide such assistance may not participate in 
     deciding complaints filed under section 405 of the Act or in 
     deciding petitions for review filed under section 406 of the 
     Act.

     SEC. 2. APPROVAL OF AMOUNT OF SETTLEMENT PAYMENTS.

       No employing office of the House of Representatives may 
     enter into any settlement of a compliant under the 
     Congressional Accountability Act of 1995 which includes the 
     payment of funds unless the office has obtained the prior 
     approval of the chairman and the ranking minority party 
     member of the Committee on House Oversight of the House of 
     Representatives, acting jointly, regarding the amount of 
     funds to be paid.

  The SPEAKER pro tempore. The gentleman from California [Mr. Thomas] 
and the gentleman from California [Mr. Fazio] each will be recognized 
for 20 minutes.
  The Chair recognizes the gentleman from California [Mr. Thomas].

                              {time}  0000

  Mr. THOMAS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, Section 301(h) of the Congressional Accountability Act--
Public Law 104-1--requires the Office of Compliance to carry out a 
program of education for employing authorities of the legislative 
branch with regard to the laws made applicable to Congress by the act. 
The purpose of this section was to ensure that employing offices have 
the information necessary to comply with the act.
  On March 12, 1996, the Committee on House Oversight agreed to direct 
the Office of Compliance to provide educational assistance through 
interpretive bulletins, advisory opinions, and other methods with 
respect to the regulations adopted by the Office of Compliance. It is 
important to note that this assistance is currently provided to 
employers in the private sector by the Department of Labor.
  The Office of Compliance has publicly claimed that they cannot issue 
advisory opinions. The authority to issue advisory opinions, in the 
committee's opinion, is a necessary function related to the authority 
to issue regulations. It seems a little disingenuous to adopt 
regulations. It seems a little disingenuous to adopt regulations and 
then claim an inability to explain or interpret those regulations. 
Therefore, H.R. 401 expresses the will of the House that the Office of 
Compliance provide educational assistance through various methods. 
Advisory opinions are only one of the many ways such assistance may be 
provided.
  Mr. Speaker, I include for the Record a copy of an analysis on this 
issue from the American Law Division of the Congressional Research 
Service.
  The document referred to is as follows:
                                   Congressional Research Service,


                                      The Library of Congress,

                                   Washington, DC, April 15, 1996.
     To: Committee on House Oversight; attention: Dan Crowley.
     From: American Law Division.
     Subject: Examination of Authority of Office of Compliance to 
       Issue Advisory Opinions.

       This memorandum is submitted in response to the committee's 
     request, as discussed with Dan Crowley of the committee 
     staff, concerning the subject noted above. Specifically, the 
     committee has asked that we examine the position taken by the 
     Office of Compliance that it cannot, consistent with the 
     scheme of the Congressional Accountability Act of 1995 \1\ 
     (CAA or the act), issue advisory opinions.
---------------------------------------------------------------------------
     \1\ Footnotes at end.
---------------------------------------------------------------------------
       On March 12, 1996, the Committee on House Oversight 
     (committee) considered, but did not report, two resolutions 
     to approve regulations adopted by the Board of Directors 
     (Board) of the Office of Compliance (Office) to implement the 
     act.\2\ The first section of

[[Page H3342]]

     each resolution states that specified regulations of the 
     Board ``are hereby approved. . . .'' Section 2 of each 
     resolution provides:
       ``In carrying out its duties under section 301(h) of the 
     Congressional Accountability Act of 1995, the Office of 
     Compliance shall, through interpretive bulletins, advisory 
     opinions, and other methods, provide educational assistance 
     to employing offices of the House of Representatives in the 
     same manner as, and to no lesser extent than, such assistance 
     is provided to other employers through the Department of 
     Labor with respect to laws made applicable to the House of 
     Representatives under that Act.''

     We have been advised by the committee staff that similar 
     language may be included in a resolution to be considered by 
     the House on April 15, 1996, to approve of the Board's 
     regulations.\3\
       The Board maintains that, given its functions and powers 
     under the CAA, it cannot issue advisory opinions.\4\ Two 
     premises provide the foundation for the Board's view. First, 
     the Board argues that, as an administrative entity with 
     adjudicatory functions under the CAA, it ``may not issue 
     binding legal interpretations concerning disputed matters in 
     non-public proceedings and without the benefit of an 
     adversary proceeding that is governed by rules of law and 
     subject to judicial review. . . . [T]o issue such binding 
     interpretations and advisory opinions . . . would . . . 
     compromise the independence and impartiality of the Office. . 
     . .'' \5\ And second, the Board considers the issuance of 
     interpretations and advisory opinions to be incident to an 
     agency's investigative and prosecutorial powers--a means by 
     which an agency informs those subject to its jurisdiction of 
     its prosecutorial policies and its stance with regard to 
     conduct deemed to be violative of the pertinent laws and 
     regulations. Since the Office does not generally exercise 
     investigative and prosecutorial authority under the CAA, the 
     Board believes that it would be inappropriate for it to issue 
     advisory opinions.
       From our review of the CAA, the committee's resolutions, 
     the Board's argument, and sources on administrative law, it 
     appears for several reasons that the Office need not be 
     precluded from issuing advisory opinions of the type 
     seemingly contemplated by the resolutions.
       (2) The resolutions call for educational assistance. The 
     resolutions call upon the Office, in fulfilling its duties 
     under CAA, Sec. 301(h), to ``provide educational assistance 
     to employing offices of the House of Representatives'' 
     by means of ``interpretive bulletins, advisory opinions, 
     and other methods. . . .''\6\ The resolutions are arguably 
     intended to secure education for employers, and advisory 
     opinions are only one of the means contemplated by which 
     this education would be furnished. Although the Office 
     deems it to be inappropriate to issue advisory opinions, 
     it could fulfill the central purpose of this provision of 
     the resolution by affording other types of educational 
     assistance to employing offices. The Office acknowledges 
     that it ``has issued hundreds of pages of educational and 
     informational materials, sponsored numerous educational 
     programs, and established an information hot-line.'' \7\ 
     Additional assistance to employers of the type already 
     provided by the Office, although perhaps more 
     particularized, could satisfy the goal of the resolutions. 
     Furthermore, it seems that the Office could issue advisory 
     opinions, as contemplated by the resolutions, without 
     raising the concerns advanced by the Office in regard to 
     the impact on the ``independence and impartiality of the 
     office.'' \8\ The Office is troubled by the prospect of 
     issuing ``binding legal interpretations . . . in non-
     public proceedings'' on``individual fact-specific cases 
     that may then later come before . . . [the Office] for 
     adjudication.''\9\ However, it is arguable that an 
     advisory opinion could be rendered by the Office, 
     consistent with the purpose of the resolutions, without 
     speaking to the facts of an individual case but addressing 
     instead a fact pattern potentially of interest to a number 
     of employing offices. Additionally, the educational 
     assistance sought by the resolutions could be afforded 
     without providing a binding legal interpretation, but 
     merely further guidance along the lines already made 
     available by the Office in other ways.\10\
       (2) Advisory opinions may be issued pursuant to rulemaking 
     power. Although our research has revealed a dearth of 
     literature on the issuance of advisory opinions by 
     administrative bodies, one study of advice giving by federal 
     agencies observes that ``the most striking characteristic of 
     the advice-giving procedures of the agencies studied is that, 
     except on the question of jurisdiction, agencies view advice-
     giving assistance to the public as part of their rulemaking, 
     rather than their adjudicatory processes.''\11\ From this 
     statement, it seems that an agency with adjudicatory powers 
     may provide advice \12\ and it would further appear that 
     such advice might encompass advisory opinions. \13\ Thus, 
     it might be argued that the adjudicatory powers vested by 
     the CAA in the Office of Compliance need not bar the 
     Office from issuing advisory opinions. Furthermore, the 
     advice giving function has been considered by at least 
     some agencies to be a part of their rulemaking duties, and 
     the Office does have rulemaking responsibilities under the 
     act. \14\ Thus, the Office arguably could issue advisory 
     opinions under its rulemaking powers, without regard to 
     the fact that it lacks prosecutorial authority.


                               conclusion

       It would appear that the scheme of the CAA need not 
     preclude the Office from issuing advisory opinions, as 
     contemplated by the resolutions described above, pursuant to 
     its education function or pursuant to its rulemaking power, 
     notwithstanding the fact that it generally does not exercise 
     investigative or prosecutorial powers. Furthermore, the 
     Office's adjudicatory powers would not seem to bar it from 
     issuing advisory opinions.

                                            Jay R. Shampansky,

                                             Legislative Attorney,
                                            American law Division.


                               FOOTNOTES

     \1\ Pub. L. No. 104-1, 109 Stat. 3.
     \2\ Our analysis is based on discussion drafts of the 
     resolutions, dated March 7, 1996, which were provided to us 
     by the committee staff. One resolution is a simple House 
     resolution which approves of regulations applicable to the 
     House, and the other is a concurrent resolution which 
     approves of regulations applicable to employees covered by 
     the CAA who are not employees of either the House or the 
     Senate.
     \3\ Similar language appears in Sec. 1 of a revised 
     discussion draft of the resolution provided to us by 
     committee staff. However, the revised draft further specifies 
     that ``any employees of the Office of Compliance who provide 
     such [educational] assistance may not participate in, 
     deciding complaints filed under section 405 of the Act or in 
     deciding petitions for review filed under section 405 of the 
     Act. . . .''
     \4\ Letter from Glen Nager, Chair of the Board, to the 
     Honorable William M. Thomas, Chairman of the Committee on 
     House Oversight (Mar. 15, 1996) (hereafter, ``Board's 
     letter''), at pp. 2-4 (A copy of the letter was provided to 
     us by committee staff.) Similar views are set forth in a 
     March 28, 1996, letter from Ricky Silberman, Executive 
     Director, Office of Compliance, to the editor of Roll Call. 
     Our analysis focuses on the reasoning set forth in the 
     Board's letter with regard to the propriety of the issuance 
     of advisory opinions by an administrative body in light of 
     its adjudicatory, prosecutorial, and investigative powers. 
     Our analysis is confined to the question of the Board's 
     authority to issue advisory opinions. We do not address any 
     other issues that might be raised by the resolutions or by 
     the Board's critique of the resolutions in its letter. The 
     Board suggests, without explanation, that ``the additional 
     provisions of the resolution [including the provision 
     concerning advisory opinions] are not legally binding. . . 
     .'' Board's letter, at p. 4. In the absence of elaboration by 
     the Board, we do not explore here the issue of whether the 
     additional provisions of the resolution would be binding. Our 
     analysis is restricted to the question of whether the Board 
     has authority under the CAA, as originally enacted, to issue 
     advisory opinions.
     \5\ Board's letter supra note 4, at p. 2.
     \6\ Section 301(h) mandates that the Office ``carry out a 
     program of education for Members of Congress and other 
     employing authorities . . . respecting the laws made 
     applicable to them . . . .''
     \7\ Board's letter, supra note 4, at p. 3.
     \8\ Id., at p. 2.
     \9\ Id. (emphasis added).
     \10\ The resolutions call upon the Office to provide 
     educational assistance in the same manner as such assistance 
     is provided to other employers through the Department of 
     Labor. The Board contends that, lacking investigative and 
     prosecutorial powers, it cannot meet this standard. Board 
     letter, supra note 4, at pp. 2-3. But such investigative and 
     prosecutorial powers may not be required to issue advisory 
     opinions. See notes 11 14 and accompanying text, infra.
     \11\ Powell, ``Sinners, Supplicants, and Samaritans: Agency 
     Advice Giving in Relation to Section 554(e) of the 
     Administrative Procedure Act,'' 63 N.C.L. Rev. 339, 348-49 
     (1985). The article was based on a study of the following 
     fourteen federal agencies: Consumer Product Safety 
     Commission, Environmental Protection Agency, Federal Aviation 
     Administration, Federal Communications Commission, Federal 
     Election Commission, Federal Energy Regulatory Commission, 
     Federal Maritime Commission, Federal Trade Commission, Food 
     and Drug Administration Interstate Commerce Commission, 
     National Labor Relations Board, Nuclear Regulatory 
     Commission, Occupational Safety and Health Administration, 
     and Securities and Exchange Commission. Id. at 348 n.36.
     \12\ See id. at 355 (adjudication occurs where advice giving 
     by agency has already failed).
     \13\ ``Advice giving'' is considered to be a type of 
     rulemaking, and definitions of rulemaking generally do not 
     attempt to distinguish among ``interpretive rules and various 
     kinds of announcements, interpretations, opinions, releases, 
     rulings, practices, usages, and policies.'' Id. at 350 n.38, 
     citing 1 K, Davis, Administrative Law Treatise, Sec. 5.01 at 
     p. 289 (1958).
     \14\ CAA Sec. Sec. 303, 304.
  Mr. Speaker, H.R. 401 also establishes the process by which a 
settlement may be entered into by any employing office of the House, as 
contemplated in Section 414 of the act. Specifically, this resolution 
safeguards taxpayer funds by requiring the prior approval of the 
chairman and the agreement of the ranking minority member of the 
Committee on House Oversight, acting jointly, regarding the amount of 
funds to be paid.
  This procedure is similar to the current procedure for approval of 
settlement payments sanctioned by the Office of Fair Employment 
Practices under House rule 51. All cash settlements will be approved on 
a strictly bipartisan basis.
  In practice, it will be incumbent upon the employing office or 
defense counsel to ensure that the chairman and ranking minority member 
approve the amount of funds to be paid prior to entering into any 
settlement involving a cash payment. It is important to note that this 
resolution does not affect the authority of the executive director of 
the Office of Compliance to approve settlement. Instead, it imposes a 
restriction on the ability of House employing offices to enter into 
settlement agreements involving cash payments.

[[Page H3343]]

Settlements involving only other forms of relief, including 
reinstatement, promotion, and prospective salary adjustments, are 
beyond the scope of this resolution.
  Mr. Speaker, I reserve the balance of my time.
  Mr. FAZIO of California. Mr. Speaker, I yield myself such time as I 
may consume.
  Mr. Speaker, as with the earlier resolution, my friend, the gentleman 
from California, the chairman, has accurately described the purpose of 
this resolution. It simply expresses the House's desire to be treated 
the same as the private sector with respect to information available to 
Members to comply with the Act.
  Mr. Speaker, I have no further requests for time, and I yield back 
the balance of my time.
  Mr. THOMAS. Mr. Speaker, I have no further request for time, and I 
yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Riggs). The question is on the motion 
offered by the gentleman from California [Mr. Thomas] that the House 
suspend the rules and agree to the resolution, House Resolution 401.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the resolution was agreed to.
  A motion to reconsider was laid on the table.

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