Culture Wars Cart before Horse

New Bush appointee Scott J. Bloch, the head of the Office of Special Counsel, whose mission it is to protect federal whistleblowers and government workers from retributions in the workplace, recently updated his Office's website. The updates removed references about sexual orientation discrimination from a complaint form and an educational pamphlet for federal employees.

Four senators from the Committee that oversees Bloch's office are none too pleased. In a letter to him they write:

"During the confirmation process, you assured us that you were committed to protecting federal employees against unlawful discrimination related to their sexual orientation," the senators wrote. "We are concerned that the recent changes to OSC publications might give federal employees the opposite impression and we ask that you reaffirm your previously stated commitment and advise us of steps you will take to inform federal employees of their rights and remedies under the law."

The letter, dated Feb. 19, was organized by Sens. Carl M. Levin (D-Mich.) and Daniel K. Akaka (D-Hawaii), members of the Governmental Affairs Committee, and also signed by Sen. Susan Collins (R-Maine), the committee chairman, and Sen. Joseph I. Lieberman (D-Conn.), the panel's ranking Democrat.

Bloch insists his action was "not inconsistent" with his statements last year to the committee.

"I remain committed to enforcement of the statutes," he said in a telephone interview Friday.

He said he removed references to sexual orientation discrimination because he is uncertain whether a provision of civil service law applies to federal workers who claim unfair treatment because they are gay, bisexual or heterosexual. He said the review is intended to determine whether the agency has correctly interpreted the law.

Now, I don't mind saying that I consider Bloch's defense duplicitous. He's defending his statements to the Committee via a virtually microscopic hairsplitting and seems to "contradict the Office of Personnel Management’s guidance to agencies and employees regarding workplace discrimination based on sexual orientation. OPM has held since 1980 that discrimination based on sexual orientation is covered as a prohibited personnel practice under the 1978 reform act and can be appealed to OSC. The act covers all conduct “which does not adversely affect” performance, although it doesn’t specifically list sexual orientation." (from OSC to study whether bias law covers gays in the Federal Times, a publication for government employees).

What strikes me as particularly obnoxious, however, is his chronology. He says his review into whether the 1978 Act should be interpreted the way it has been since 1980 won't begin until next month, when Bloch’s senior legal adviser begins work. Considering he admits he may amend his position after that review, his edits on the Web site (before that review) reveal a clear bias that he hid from the Senate Committee.

Some Congressmen have questioned the legality of his actions (from same Washington Post link above):

Some Democrats took issue with Bloch's suggestion that the law needed to be revisited. Reps. John Conyers Jr. (D-Mich.) and Jerrold Nadler (D-N.Y.), members of the House Judiciary Committee, told Bloch in a Feb. 19 letter: "Your position is directly at odds with established practice, the plain meaning of the law, and how that law has been interpreted for decades. . . . From all appearances, you seem to have taken it upon yourself to withdraw legal protections for federal employees without any legal authority."

The Senate was particularly careful in asking Bloch how he would interpret the OSC's practices regarding gays (perhaps because Bloch had been deputy director of the Justice Department’s Task Force for Faith-based and Community Initiatives). Until the review is complete it behooves folks to stop short of calling Bloch a liar (yes, I know, it's a "when did you stop beating your wife" type caveat), but I will note that I consider this just another example of the faithlessness exhibited constantly by the Bush Administration. It's another example of why the lot of them really need to go.

Comments

[Thorley Winston]

Just so we’re all clear.

The civil service law in question does not list “sexual orientation” but instead says "on the basis of conduct which does not adversely affect the performance of the employee or applicant."

The OCS has changed the language on their website to reflect the actual language of the statute by saying "on the basis of conduct which does not adversely affect the performance of the employee or applicant" rather than “sexual orientation” which does not appear anywhere in the statute.

Shocking.

Oh and BTW, what the stories Edward links to doesn’t tell you is that the previous director of OCS made their interpretation of the law based on an executive order (13087) which was later amended by a new executive order (13152) which amends it to read “this Executive Order does not confer any right or benefit enforceable in law or equity against the United States or its representatives.”

Whoops.

In which case Director Bloch seems to have taken the correct action in having his office’s website reflect the actual statutory language and the current boundaries of their authority as defined by executive order. People who disagree with this should take it up with Congress who wrote the statute or former President Clinton who decided to amend his previous executive order on sexual orientation to state that it “does not confer any right or benefit enforceable in law or equity against the United States or its representatives.”

[Jesurgislac]

The civil service law in question does not list “sexual orientation” but instead says "on the basis of conduct which does not adversely affect the performance of the employee or applicant."

...which, as Edward pointed out, has been agreed since 1980 to include sexual orientation. So for 24 years it has been agreed that sexual orientation does not constitute conduct which adversely affects the performance of employee or applicant.

former President Clintonwho decided to amend his previous executive order on sexual orientation to state that it “does not confer any right or benefit enforceable in law or equity against the United States or its representatives.”

(a) So?

(b) Gosh, you rightists really seem to be confused about who's President right now. Hint: it's not Clinton.

[Edward]

Thorley writes:

The OCS has changed the language on their website to reflect the actual language of the statute by saying "on the basis of conduct which does not adversely affect the performance of the employee or applicant" rather than “sexual orientation” which does not appear anywhere in the statute.

What he neglects to point out is Bloch's controversial reading of "conduct" (on which he bases his actions) is widely disputed.

Bloch’s predecessor, Washington attorney Kaplan, called his reading of the law “dead wrong.”

“The legal position that he is taking, that there is some distinction between discrimination based on sexual orientation and discrimination based on conduct, is absurd,” Kaplan said. “It is a distinction that has not been made by OPM, the Justice Department or anybody else in the executive branch.”

Essentially, before the review, and against promises to the Senate, he's re-interpreting (mis-interpreting) the law. But that's not the real issue of my post, which Thorley either missed or is ignoring (although it's clear in the title): Bloch edited the website prior to the review of the law. He jumped the gun in a clearly biased action.

Thorley also suggests:

People who disagree with this should take it up with Congress who wrote the statute

To which I fully agree. Take it up with the Senators including a Republican from Maine who insist Bloch misrepresented himself to them. Who feel they had been assured he would not pull a stunt like this.

[Gary Farber]

Good post, though it would have been more timely a month ago, which is when I blogged the news. :-)

[Edward]

Good post, though it would have been more timely a month ago, which is when I blogged the news. :-)

I agree Gary...and thanks for the link to your site. I was also embarrassed to see that Andrew Sullivan cites this today as well...my timing's off all the way around.

[Thorley Winston]

Edward wrote:

What he neglects to point out is Bloch's controversial reading of "conduct" (on which he bases his actions) is widely disputed.

It seems rather novel to classify reading a statute as written as being “controversial” and “widely disputed” when it only warrants questions from a whopping 4 out of 100 Senators, 2 out of 435 Representatives, and one ex-Clinton official.

Bloch’s predecessor, Washington attorney Kaplan, called his reading of the law “dead wrong.”

“The legal position that he is taking, that there is some distinction between discrimination based on sexual orientation and discrimination based on conduct, is absurd,” Kaplan said. “It is a distinction that has not been made by OPM, the Justice Department or anybody else in the executive branch.”

Which is irrelevant as the issue is what does the actual statute say and what does the executive branch (via executive order) authorize the OCS to do regarding it. If Kaplan has a way of rectifying her opinion with her former boss’ order (which is still in force IIRC) that his Executive Order regarding sexual orientation “does not confer any right or benefit enforceable in law or equity against the United States or its representatives,” she hasn’t done so. In which case her opinion is not actually supported by what the law actually says.

Essentially, before the review, and against promises to the Senate, he's re-interpreting (mis-interpreting) the law.

No he isn’t and I defy you to provide any evidence (by which I mean actual quotes of a promise made) in which he has reneged on any promise he made to the Senate.

But that's not the real issue of my post, which Thorley either missed or is ignoring (although it's clear in the title): Bloch edited the website prior to the review of the law. He jumped the gun in a clearly biased action.

No the OCS modified their website to reflect the actual language of the statute and the authority they have under the current executive orders until they have determined whether the law gives the OCS the authority to go beyond them. Which is the proper thing to do when interpreting the law correctly as written rather than what some of the critics may wish the law says but does not.

[Thorley Winston]

Jesurgislac wrote:

Gosh, you rightists really seem to be confused about who's President right now. Hint: it's not Clinton.

Gosh you leftists seems to be really confused about little things like the law and how a previous administration’s executive orders are still legally binding unless or until they are changed or struck down. Since Clinton's were the applicable executive orders and they are still in force, it makes sense when discussing the law, to refer to those.

[Edward]

Thorley writes:

It seems rather novel to classify reading a statute as written as being “controversial” and “widely disputed” when it only warrants questions from a whopping 4 out of 100 Senators

Those 4 senators are on the committee that oversees Mr. Bloch's office...their opinion is highly significant here.

I defy you to provide any evidence (by which I mean actual quotes of a promise made) in which he has reneged on any promise he made to the Senate.

You ask, and I deliver (from the Washington Post):

During his confirmation, Bloch was asked to respond in writing to a series of questions from Akaka.

At one point, Bloch said that "sexual conduct can clearly fall within the definition of conduct that is not adverse to the on-the-job performance of an employee, applicant or performance of others. I will not be selective in enforcement based on the orientation of an individual whose personal sexual conduct is at issue, and assure you that I will enforce the law as passed by Congress and interpreted by the Courts with complete impartiality."

Akaka asked, "Do you agree with the advice provided by OSC that, if 'Supervisor Joe fires Employee Jack because he saw Employee Jack at a local Gay Pride Day event,' such firing constitutes an example of discrimination against the employee that is unlawful?"

Bloch said cases must be judged on specific facts, but added that he agreed such a firing would be prohibited by the law.

"Conduct such as being at a Gay Pride event, by itself, would not, in my view, affect job performance, and employers would not be able to say that being at such an event will discredit the agency or established a basis to discriminate because it makes other people uncomfortable. The federal workforce is not a place for selective discrimination," he wrote.

Now it's your turn, I defy you to justify his actions as not being a broken promise without a sneaky hair-splitting defense.

[sidereal]

And now I eagerly await the part where someone explains how calling out sexual orientation explicitly is harmful, rather than being (at worst) redundant or (at best) an essential clarification supported by 20 years of precedent.

[Thorley Winston]

Edward wrote:

Those 4 senators are on the committee that oversees Mr. Bloch's office...their opinion is highly significant here.

They still merely constitute a minority opinion out of seventeen members. It is also hardly “widely disputed” when the critics are pretty much on one side of the ideological spectrum.

Edward then proceeds to provide with an object lesson in the importance of reading an entire passage in context rather than just trying to selectively bold a sentence or phrase here in there in order to change its meaning to fit your argument:

At one point, Bloch said that "sexual conduct can clearly fall within the definition of conduct that is not adverse to the on-the-job performance of an employee, applicant or performance of others. I will not be selective in enforcement based on the orientation of an individual whose personal sexual conduct is at issue, and assure you that I will enforce the law as passed by Congress and interpreted by the Courts with complete impartiality."

Here Bloch is saying two things. First that sexual conduct can (as opposed to always does) fall within the statutory language. Adhering to the statutory language of “conduct which does not adversely affect the performance of the employee or applicant" as he has done, is consistent with this.

Second, the only promise he makes is to not to enforce the law selectively bur rather as it was “passed by Congress” (you know the actual text of the statute) and as “interpreted by the Courts.” Since he is clearly going by the statute language (“passed by Congress”) and no one has argued that he is not following how it has been “interpreted by the Courts,” there is nothing here to support the charge that he somehow reneged on a promise.

Akaka asked, "Do you agree with the advice provided by OSC that, if 'Supervisor Joe fires Employee Jack because he saw Employee Jack at a local Gay Pride Day event,' such firing constitutes an example of discrimination against the employee that is unlawful?"

Bloch said cases must be judged on specific facts, but added that he agreed such a firing would be prohibited by the law.

"Conduct such as being at a Gay Pride event, by itself, would not, in my view, affect job performance, and employers would not be able to say that being at such an event will discredit the agency or established a basis to discriminate because it makes other people uncomfortable. The federal workforce is not a place for selective discrimination," he wrote.

Bloch’s answer is narrowly tailored to the specific example of an employee being fired for appearing at a Gay Pride Parade in so far as it would “affect job performance” or “discredit the agency” which falls in line with the actual statutory language of "on the basis of conduct which does not adversely affect the performance of the employee or applicant" which he posted on the Office website. He reiterated the same opinion in his response to the Democratic House Members so it is clear that he has not changed his views from what he articulated pre-confirmation much less reneged on any promises.

Based on what Edward has presented so far, not only has Director Bloch not reneged on a promise he made, by not enforcing the law selectively but instead going by the statute language which was “passed by Congress” and taking his queue from the executive order, Bloch is in fact doing precisely what he promised.

[Edward]

Bloch is in fact doing precisely what he promised.

Hair-splitting is precisely what Bloch is doing, but it's a clear break from the spirit of what the senators (including the Republican Chairman) of the overseeing committee believed he promised.

To defend him on the technicality of his decision is actually to suggest his pending review is an unnecessary waste of taxpayers' money.

[Thorley Winston]

Edward wrote:

Hair-splitting is precisely what Bloch is doing,

What Bloch is doing is precisely what he said he would do before he was confirmed namely he is going by the statute as passed by Congress. So far, even your own “evidence” confirms that.

but it's a clear break from the spirit of what the senators (including the Republican Chairman) of the overseeing committee believed he promised.

More like “what they’re claiming now after the fact” sort of like Kerry saying he thought that the resolution authorizing the use of force of Iraq was just for the threat of force.

To defend him on the technicality of his decision

In this case, the “technicality of his decision” means “what the law actually says and what Bloch actually said he would do.”

is actually to suggest his pending review is an unnecessary waste of taxpayers' money.

An accurate description of much of the federal budget.

[Edward]

What Bloch is doing is precisely what he said he would do before he was confirmed

Bloch precisely told the committee he was going to edit "sexual orientation" out of the Office's documents? I've read up and down this subject across the web, but I missed that bit of news. More important, how did the committee miss it?

More like “what they’re claiming now after the fact”

doesn't pass the laugh test, that one.

Bloch lied his way through the confirmation, Thorley...face it.

[Edward]

Bloch lied his way through the confirmation, Thorley...face it.

Damn...disregarded my own advice.

Oh well, Thorley's convinced me Bloch lied.

[Jesurgislac]

sort of like Kerry saying he thought that the resolution authorizing the use of force of Iraq was just for the threat of force.

Which is precisely what Bush claimed he wanted, at that time: back then, Bush was claiming he didn't want war with Iraq. Do you think that Kerry ought to have known that Bush was lying?