(The following story by John D. Boyd appeared on The Journal of Commerce Online website on September 2, 2009.)
WASHINGTON, D.C. — The new chairman of the Surface Transportation Board opted out of a regulatory ruling this week for what would have been his first controversial case, under a policy of recusal from issues involving his former employer, the United Transportation Union.
Daniel R. Elliott had been associate general counsel at UTU for 16 years before he took office in mid-August under a July appointment by President Obama. He is the first labor official to head the board that regulates economic issues involving railroads.
The case was a hot-button challenge to a set of trackage right notices filed Aug. 4 and 5 by Canadian National Railway, so it could better link up operations of its rail units in and around Chicago. But when the UTU jumped into the fray, its action meant Elliott would watch the case from the sidelines.
Those CN properties include its newly acquired suburban short line Elgin, Joliet & Eastern Railway, subject of a Dec. 24, 2008, STB merger decision that was sharply contested by area suburbs. Last month those opponents asked the board to stay a normal 30-day countdown for the track rights, and begin a new impact review that might even reopen the underlying merger case.
UTU separately sought its own stay, saying some members might be hurt by track-use arrangements since EJ&E had not yet negotiated implementing agreements with the union that could affect seniority rights.
But when the board Sept. 1 brushed away the stay requests, its ruling noted that “Chairman Elliott is not participating.” (See also “STB Rebuffs Challenge to CN-EJE Track Rights” http://www.joc.com/node/413215)
An STB spokesman later said “the chairman recused himself because UTU filed in the (trackage rights) cases.”
The spokesman noted that this tied into a basic policy stance by the president. The day after Obama took office he issued an executive order laying down ethics rules for his appointees, to avoid conflicts of interest with or lobbying from groups they previously worked for.
Those include requiring appointees to sign a pledge saying “I will not for a period of two years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.” (http://www.whitehouse.gov/the_press_office/Ethics-Commitments-By-Executive-Branch-Personnel)
At the STB, that means when the UTU gets into a case, the chairman of that three-person regulatory board is out of it. “Per the Obama pledge,” the spokesman said, “the chairman is recused for two years from cases involving UTU – his former employer.”
In this week’s decision, it meant that the two people left to rule on the CN issue were two of the three board members who had already OK’d the EJ&E acquisition — Vice Chairman Charles D. Nottingham and board member Francis P. Mulvey.