WASHINGTON (July 15) -- Litigation and discrimination issues continue to plague the Agriculture Department and one civil rights group has accused the agency's Office of General Counsel of being a major source of the discord. The Coalition of Minority Employees, an advocacy group for USDA workers, recently met with the department's civil rights and OGC staff to press for greater separation between the two.

"I was concerned about the intrusion of the Office of General Counsel into the civil rights process and the need to resolve the class actions," said Lawrence Lucas, coalition president. "And where OGC was involved, not be a barrier to settlement to individual complaints, either at [alternative dispute resolution], mediation or otherwise."

Lucas said his organization has for years urged the department to remove the OGC's influence from the equal employment opportunity process. Lucas argues that OGC's involvement in non-EEO matters creates a conflict of interest and is in violation of Equal Employment Opportunity Commission regulations. "The problem is that Office of General Counsel advises human resources," Lucas told cyberFEDS®. "They also advise cases before the [Merit Systems Protection Board] and the EEOC. And at the same time, if there is an agreement put together, they can review the agreement. So they've got their hands in every piece of the process."

A department official confirmed that attorneys in OGC's Civil Rights Division represent the USDA in civil rights matters before the MSPB and the EEOC, and in federal court. The division also provides legal opinions on civil rights questions involving USDA programs and civil rights training to USDA staff, and prepares and reviews civil rights policies and regulations "for legal sufficiency."

However, EEOC Management Directive 110, the federal sector's EEO guideline, says "legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation and complaints."

An EEOC official told cyberFEDS® that MD-110 does not prohibit the OGC from litigating EEO and non-EEO cases.

The statute does, however, require agencies to avoid conflicts of interest. "For example, the same agency official(s) responsible for executing and advising on personnel actions may not also be responsible for managing, advising or overseeing the EEO pre-complaint or complaint process," according to the directive. "In order to maintain the integrity of the EEO investigative and decision-making process, those functions must be kept separate from the personnel function."

The USDA official said the OGC's Civil Rights Division is not involved in USDA's Office of Civil Rights' investigative of fact-finding functions. The USDA official said that the OGC's CRD attorneys do handle non-EEO matters in federal court and administrative hearings, in accordance with the Omnibus Consolidated and Emergency Supplemental Appropriations Act, P.L. No. 105-277 -- the same statute officials cite for the division's role before the EEOC, the MSPB and the courts.

Occasionally, the division also borrows attorneys from OGC's General Law Division to supplement its small staff, the USDA official said. Lucas said this practice creates additional conflict of interest issues for the coalition.

Concerns about the OGC's relationship with the USDA's Office of Civil Rights have circulated throughout the department for years. In the late 1990s, USDA officials responded by creating a Civil Rights Action Team to investigate the complaints.

CRAT was made up of administrators and civil rights staff and charged with reviewing the OGC's role in the EEO process. Following its review, the CRAT recommended establishing the Civil Rights Division. "It may be difficult for the OGC to be viewed as pro-civil rights when that office is seen principally as the legal defender of agencies charged with discrimination," the CRAT noted.

Although the department created the division, Lucas said, the need to borrow General Law Division attorneys perpetuates the conflict of interest problems the CRD was designed to resolve.

The coalition has recommended that the Civil Rights Division be transferred out of the OGC and placed under the jurisdiction of the new assistant secretary of civil rights. [See related article]

A department spokesman told cyberFEDS® that no decision has been made on the duties or authorities of the new assistant secretary.