By Gayle Cinquegrani, Bloomberg BNA
National Labor Relations Board Chairman Philip Miscimarra (R) is likely to have his pick of law firm jobs once his term ends in December, but he is not divulging where he will land.
Miscimarra won’t seek another term on the board when his current term expires, Bloomberg BNA reported.
“I am refraining from giving any consideration to future plans until my term actually ends,” Miscimarra told Bloomberg BNA in an e-mail. “After December 16, I will evaluate appropriate ways that I can have continued involvement in employment, labor-management and human resources issues that have been so important to my service as a Board member, my academic work and my private sector career.”
Ethics rules will limit the services Miscimarra can provide clients once he leaves the NLRB, but law firms probably will find his expertise and name recognition appealing.
“This is someone who is a true insider and who will be attractive to clients as someone in the know,” Jeffrey Lowe, a global practice leader at legal recruiter Major, Lindsey & Africa, told Bloomberg BNA Aug. 8. Lowe said former government officials like Miscimarra “are able to command very substantial compensation.”
Miscimarra, who has three sons approaching college age, came to the NLRB from the Morgan Lewis law firm in Chicago. He also worked at Seyfarth Shaw in Chicago, according to the NLRB website.
Morgan Lewis declined to comment to Bloomberg BNA as to whether it hopes Miscimarra will rejoin the firm.
Restrictions on Work Activities
Wherever Miscimarra eventually goes, his employment activities will be curtailed by restrictions that govern former federal appointees after their government service.
There is a lifetime restriction on a former official communicating with any federal court, department, or agency about a particular matter (such as litigation, grants, and contracts) involving specific parties in which he personally and substantially participated. Former officials are restricted for two years after leaving from representing an entity to any federal court, department, or agency on matters that were under his official responsibility during his final year of government service. Very senior government employees must wait one year before lobbying or appearing before the department or agency in which they served during their final year in government.
Presidents traditionally issue an executive order governing the activities of their appointees, which applies even if the president is no longer in office when the appointee leaves government service. Former President Barack Obama, who appointed Miscimarra to the board as a member in 2013, created a “revolving door ban” that limits appointee’s activities for two years after they leave.
President Donald Trump in January issued an executive order prohibiting former political appointees from lobbying the agency for five years after leaving and from lobbying any covered executive branch official for the remainder of the administration. Even though this executive order doesn’t officially apply to Miscimarra, the Office of Government Ethics has indicated that appointees whose terms overlap administrations ought to follow the restrictions imposed by the current administration.
“The firms are very familiar with the restrictions,” Lowe said. “Generally speaking, the higher the level of the person, the longer the length of the ban.”
Former Officials Add Tremendous Value
Despite the restrictions, “there really is tremendous value” in having a candidate like Miscimarra “in the fold,” Lowe said. A former official’s presence in a firm should help when firm partners “go on pitches for business.”
Former federal officials “can attend meetings with the client and help guide the case,” Lowe said. They can have “significant influence on the strategy you undertake even if they can’t appear before the agency” because “so much of it is taking place in meetings with the clients or meetings with other partners,” he said.
As for Miscimarra’s appeal to prospective law firms, “I would think that any firm that has a lot of traditional labor work would want to have that level of expertise available to them,” a partner in a large Chicago management-side labor law firm told Bloomberg BNA Aug. 8. A firm’s willingness to pay the level of salary presumed to be necessary “would depend on how much traditional labor work the firm has and whether they see value at having somebody at that level available to clients.”