Channah Broyde (DoL)
20171207 - 4:00 PM - Channah Broyde
Department of Labor, Regional Solicitor's Office
Council for Civil Rights
===
[00:00:00]
Okay, it is 3:59 on Thursday, December 7th. I'm expecting a call from Channah Broyde of the Department of Labor's Regional Solicitor's Office. She is the Council for Civil Rights. We had a conversation this morning around 10 a.m. which she thought was uncivilized—I don't think she used the word "aggressive." Instead of brushing me off, she encouraged us to continue at another time, and she proposed today at 4 p.m., which is now a minute away. So I'm going to go ahead and let my... get back to work writing notes and organizing emails, and hopefully she'll call and we'll have a conversation.
[00:01:00]
[Phone rings - caller ID shows DOL Regional Council for Civil Rights]
[00:02:00]
Oh, that's a 401 number. I don't know if that's her or not, but we'll go ahead and accept it.
Logan Isaac: Hello, this is Logan.
Channah Broyde: Hello? Hello, Mr. Isaac?
Isaac: Yes, hi.
Broyde: This is Channah Broyde calling.
Isaac: Hi.
Broyde: Good afternoon.
Isaac: Good afternoon.
[00:03:00]
Isaac: Okay. Anyway, so... glad that we can restart this discussion and hopefully not be in a rush or anything. And I just wanted to state that it's not my intention to be unduly argumentative or disrespectful or anything of that nature.
Broyde: Okay, cool. That's a mutual feeling.
Isaac: Okay, great.
Broyde: So since last time we spoke this morning, I think I may have been a little bit confused. Can you just restate what the idea is—where you're going and what you're trying to ask? And I do understand that you are experiencing frustrations, and I will certainly try to allay any of that. But just tell me, in your words, what exactly you're trying to understand or what you think I can do for you.
[00:04:00]
Isaac: In the event an employee being investigated by OFCCP—in the event they have a recipient contractor-provided legal representation—the FCCM guides or advises the compliance officer to contact the Regional Solicitor, in whose office I imagine you work and from whom I was referred to you. They are advised to contact the Regional Solicitor to ask if that person has waived their confidentiality.
My field office, to my knowledge, has never taken the advice of the Federal Contracts Compliance Manual. They have not responded to me on multiple occasions inquiring as to whether or not that individual who was interviewed on March 24th—whether or not that confidentiality was waived. That's what I'm trying to find out.
Broyde: Okay. I did look up the FCCM to the compliance... I mean, I can't answer as to why they did or they didn't call. I submitted an inquiry. The only thing that I can determine is if they didn't think that there was any kind of reason to contact us. That's really all the information I have.
[00:05:00]
Isaac: Why would... what other reason would compel somebody to contact your office besides being advised by the FCCM and the request of a party to a complaint? What additional obligation would a compliance officer have or a field office?
Broyde: Okay. So typically in any kind of—whether it's a complaint investigation or a review—if the contractor has counsel, they're often present at interviews of management individuals. Sometimes they represent people in their individual capacity, or if it's a non-management person, sometimes they have their own attorneys or they can choose to have their own representative. Most—in those situations, those are usually when counsel is present. The question of whether or not there is a conflict... just because, what I'm trying to say, just because an attorney is present, that doesn't necessarily mean that there's a conflict.
[00:06:00]
If the compliance officer doesn't perceive that there's a conflict, then they wouldn't contact us.
Isaac: My concern is that there is no conflict, and that's precisely the problem. The individual—the interview that I'm trying to find out about—that individual made a threat of reprisal against me. And the university protecting him may be an obstruction, or it may be any number of things. To what extent do the actual specific facts of the case dictate whether or not confidentiality has been waived?
Broyde: Yeah, so this is very much a case-by-case determination, and I can't answer that globally. Usually—
[00:07:00]
Okay, so let's say they're investigating ABC Corporation, and the corporate counsel is in interviews of the CEO and other managers, head of HR or whoever. So those people are speaking for the corporation. So therefore, the confidentiality of that, or the identity of those individuals, is not withheld—at least, and I'll also say I'm usually looking at it from the point of view of litigation rather than the point of view of FOIA. FOIA has exemptions that are similar to, but not identical to, the discovery process in litigation.
Isaac: You mentioned litigation. I'm sorry, go ahead.
Broyde: So I just wanted to make that distinction. There are people in our office and in our national office who are FOIA experts, and they're the ones that handle all the FOIA appeals and FOIA questions and things of that nature.
[00:08:00]
Isaac: In the event of litigation, or just right now, do you represent the interests of the Department of Labor or the OFCCP?
Broyde: You're talking about my office? Oh, me personally?
Isaac: Yes.
Broyde: Okay. That's a fair question, but let me answer by giving you a little bit of a description of just sort of overall processes, and maybe that will help. OFCCP, as they conduct investigations and reviews—they have three laws under their jurisdiction. And my office, which is the Regional Solicitor's Office, we represent, in OFCCP cases... so we represent OFCCP in litigation against those contractors in the event that OFCCP finds that there were violations of one of those laws, or if the contractor is otherwise acting in violation of a law with respect to providing documents and information sought by the agency.
[00:09:00]
So that's the hat that kind of we wear here in this office. That's what we do. In addition, if those cases go on appeal, then the national—it's still within the Solicitor's Office, but our national office would then represent OFCCP on those appeals.
Isaac: The reason I ask this question...
Broyde: Not entirely—
Isaac: It's looking increasingly like the only way to find relief will be through federal lawsuit. The Department of Labor did not give me an investigation. Now, this is apart from my question about confidentiality, but I want to make sure I know what I am wise and unwise to disclose to you, because the Department of Labor, specifically the OFCCP, has not fulfilled their statutory obligations and is not cooperating in me trying to find information that should not be rather contentious.
[00:10:00]
So should I file a lawsuit against the Department of Labor for failing to uphold its statutory obligations? Would that alter anything that you would say to me in this phone call or in the future? Whose interests would you protect, or are you protecting?
Broyde: Okay, so I work for the Department of Labor and entities within the Department. So in the event that you decide to sue the Department of Labor, the Solicitor's Office would then handle the case or take action on behalf of OFCCP. It would not normally be in our office; it would be by our national office. That's just the way things are divided up, if they need to bring in the Justice Department or whatever their procedure is at hand, but it would be representation by the Solicitor's Office of the agency. So I'm just answering your question—it's a legitimate question. That said, I'm not trying to hide anything.
[00:11:00]
I'm just trying to explain what the process is.
[Discussion continues about FOIA request and process]
[00:18:00]
Broyde: And then also you have asked for a reopening of your case—
Isaac: And I know that that's false. I asked for a reconsideration. I didn't ask them—excuse me, a reconsideration.
Broyde: I think the agency viewed them the same way. But I know that Mr. Maiden, the regional director, did respond to that request.
Isaac: Yes, he called it a review as well, which seems to acknowledge that nobody investigated my claim. And they didn't address—
Broyde: I don't read his letter that way. I'm not going to... but I don't want to get into that discussion. But you asked for that, he did review it, and determined that there was no reason to change anything.
[00:19:00]
So I don't—beyond that, there's no... I'm not aware of anything that can take you... you know, anything else that's within those normal processes of the FOIA request. I really can't advise you where to go from there. As far as the confidentiality question, just like I said before, it's a case-by-case decision. And it sounds like you're particularly concerned about one document, and that certainly could be something that you would discuss in a FOIA appeal.
Isaac: The value of the information is real, but the parallel but separate problem is that they did not investigate my claim. And they had evidence—they had multiple interviews in which managers said we did not receive training. And they lied and said that training, which we never received, did include veteran status, and I can establish that is a lie. And they had, in the transcript, where they said, "Look, we didn't get training." And then the senior vice president said, "Oh, all mandatory, all training is mandatory. Everybody attends." So there's conflicting testimony that seems to contradict the finding. And that's going to look bad if the only—if he has to go to court instead of remaining within the DOL, whether that's—
[00:20:00]
I don't know, an Inspector General or something, because clearly they did not investigate. And we can remedy that within the DOL somehow, but I can establish pretty easily that they didn't—they did not investigate. So I'm still waiting for them to actually consider the facts, which they didn't do. They accused me of doing and not doing things that weren't even my responsibility, even though the wording that they cut and pasted from my reconsideration request included the information they accused me of not providing.
My daughter is going to learn to read soon, and that's a pretty important skill if you're going to claim that you're undertaking investigations. It's going to look really bad if this continues to process. And I'm looking as hard as I can to find ways of relief short of a lawsuit. If you're telling me there are none, then that's fine.
[00:21:00]
I understand, and the OFCCP is your client. But I know if I take this to a lawyer, they will be very excited. And I don't really have the patience for a lawsuit, but if that's my only option, then that's my only option. So what happens if I know that an employee or employees within the Department of Labor did not fulfill their professional responsibilities? Whether that's misconduct, I don't know if it would count as misconduct. I know that's what the IG investigates.
Broyde: Look, I can't tell you whether... if you decide to go to the IG, that's certainly within your prerogative. I'm not—I can't advise you as to what to do or not do, nor am I here to pass judgment on the conduct of any particular investigator or not.
Isaac: There were no investigators, but the facts will do that.
[00:22:00]
Broyde: They use the term "compliance officer," but they certainly believe that they conducted an investigation, and they did submit a lot of documents, so I'm not here to quibble about that. I'm really just trying to explain that we started out talking about a FOIA and whether or not the OFCCP personnel... can actually conduct—did their job. I think, maybe you didn't use that term, but—
Isaac: Statutory obligation.
Broyde: That's really, I think, all that I... Like I said, I'm not trying to be argumentative or anything like that. I've given you an overview of what are your options vis-à-vis the FOIA, or... and then, whatever you decide to do. Obviously, whether it's a FOIA appeal or a lawsuit or anything else, you're a citizen and you can—citizens always have a right to try to bring their grievances to the government. That's—we all have that right.
[00:23:00]
Isaac: But what is the obligation of the government to actually do the things they say they're doing? That's a question. They did not investigate. They never called it an investigation other than to defend themselves against my accusation that they didn't. Sam Maiden called it a compliance review; that's not an investigation. My request for reconsideration was sound. I pointed out the places in which they did not investigate, and they continue to abide by an incredibly faulty and unreasonable series of assumptions and subjective assessments that is not supported by fact.
Okay, I'll have to keep looking. Is there any point in asking... was it Sam Keene? Stan Keene? Any of these same questions?
Broyde: Stan—he's a Regional Solicitor. He's the person that I report to. I can't stop you from... you can call anybody you want or contact anybody you want. I'm not—and I don't say that to be disrespectful.
[00:24:00]
I respect people's rights to contact whoever they want within the government. I don't think that Stan will tell you anything different than what I said, but—
Isaac: Would he have knowledge of other avenues of approach other than just going to find a lawyer? I find it hard to believe that the only way is a request for reconsideration and then you're SOL. That sets the DOL up for failure.
Broyde: Look, people do all kinds of things. People sometimes call—they can call anybody within the Department, right? Some people call, or send emails to the whole universe, including the Secretary of Labor himself. So people do all kinds of things. And that's always going to be your right. It's not—I wouldn't call it a normal process. People always, like I said, people have a right to redress their grievances with the government and, at least, what then the Secretary of Labor or anybody else does is way beyond me and they'll do whatever they want to do.
Isaac: I'm just curious if you think Stan would have more information on other options.
Broyde: I don't think so.
Isaac: Okay.
[00:25:00]
Broyde: I don't think so, but I'm not, again, I'm not telling you to call him or telling people like, "Oh, don't do this." That's not—
Isaac: Okay. The same question I'm still not sure we're answering, and maybe you can't answer it: What would establish that this employee's confidentiality remains intact? Like, I guess I'm asking, what would you tell my field office if they were to say, "Hey, this guy is saying he doesn't have confidentiality"? Would you tell them the same thing, like a case-by-case basis?
Broyde: I'm not going to get into specific advice that I give my clients, but I can just—I always look at the specifics on every case, but I'm not going to get into any specific advice that I've given my client because I don't want to intrude on any attorney-client privilege or deliberative process privilege or any other—
[00:26:00]
—privileges that we have. I'm just not going to divulge any privileges.
But I will—all I can say is that generally speaking—
Isaac: [interrupting] The government maintains or withholds is dependent upon it being accountable to its citizenry. And I know that because I fought for that shit for six years. So you don't want to divulge anything that would violate a client privilege, even though your client is a public entity?
Broyde: That's right, but we still have that privilege.
Isaac: Yeah, I—that's, I think that's the right term for it, is privilege. Okay, I appreciate it. Okay, have a good evening.
Broyde: Alright, bye-bye.
Isaac: Bye.
[00:27:00]
[Logan's note: At least it was informative.]
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END OF TRANSCRIPT
