Burnough: “We are not going to sit back and sing ‘Kumbaya'”

by Robin Kemp

Members of the Clayton County legislative delegation say they are “disappointed” and “insulted” by a proposed nondisclosure agreement that Georgia Department of Labor would require them to sign in exchange for access to constituents’ unemployment insurance information and are calling for a federal investigation into the department.

State Representatives Sandra Scott (D-Rex), Kim Schofield (D-Atlanta), and Rhonda Burnough (D-Riverdale), along with Viola Davis (D-Stone Mountain) and House Minority Leader James Beverly (D-Macon), oppose the Georgia Department of Labor’s (GDOL) user agreement form for its Legislative Portal Access pilot program, which would allow legislators to monitor complaints and requests from their constituents. 

Legislators say the proposed agreement would keep them from using data to create legislation, accessing data during legislative session, limit their ability to help constituents who need help with unemployment claims, and makes legislators responsible for any data breaches. They also say It could prevent legislators and staffers from communicating their findings to government investigators.

In addition, data covered by a proposed nondisclosure agreement would prevent the legislators from communicating their finding to the news media or the general public, including their constituents.

The move comes after GDOL offices shut down all public access during the COVID-19 pandemic. Those offices remain closed more than a year later. During that time, Labor Commissioner Mark Butler has not responded to The Clayton Crescent’s requests for comment. Legislators say many constituents have yet to receive unemployment benefits or status updates on their claims.

Georgia House Rep. Rhonda Burnough (D-Riverdale) outside GDOL office, 2020

The legislators are calling on GDOL to pause the pilot program, in which Scott had taken part.

“I find it insulting that the commissioner, who is an elected official like us, would now want to shift the responsibility for unemployment claims to the legislators,” Burnough said. “Legislators have tried to work with him over the past two years to resolve unemployment claims, and now he wants us to work together. This Legislator Portal would be an insult to all those Georgians who lost their jobs through no fault of their own. We are not going to sit back and sing ‘Kumbaya.’ We are going to continue to push for a federal investigation of the GDOL.”

The agreement would:

  • give elected officials read-only access to screens created especially for their use
  • give the Department of Labor the power to authorize access to those screens
  • exempt the data from the state Open Records Act
  • blocking user IDs after 45 days of non-use
  • terminating the user’s account after 90 days of non-use

The data in question includes personally identifying information (PII), including:

  • claim information
  • individuals’ or employers’ names
  • Social Security numbers
  • applicant or client first name or initial and last name
  • users’ accounts, passwords, or PIN numbers
Georgia House Minority Leader James Beverly (D-Macon)

The proposed agreement also would put the responsibility on state office holders for training staff and enforcing security, and well as any data breaches.

“The labor commissioner and his department are placing the unemployment crisis on legislators,” Beverly said. “By signing the Legislator Portal Access agreement form, legislators will be forced into this unfortunate catastrophe. Instead of dealing with this crisis, the commissioner continues to avoid the necessary steps to support Georgians facing financial hardships. GDOL’s Legislator Portal Access agreement limits what data legislators may disclose to the public and puts Georgians at greater risk with unemployment insurance.”

Schofield placed the blame on Butler’s “latest attempt to shift his responsibility to legislators confirms his inability to effectively govern and lead the Georgia Department of Labor.”

“For over a year and a half, legislators have provided assistance and support to help Georgians recover their GDOL benefits, resolve claims and appeals,” Schofield said. “The lack of transparency and accountability by the GDOL further exacerbated the stress and contributed to grave personal and financial losses due to the COVID-19 pandemic. The dereliction of duties by GDOL leadership and rejection of common sense solutions offered to its commissioner has greatly impacted families and communities across the state of Georgia.”

Since the beginning of the COVID-19 pandemic, which triggered widespread layoffs and business closures, Georgia House Democrats on the Subcommittee on COVID-19 have been documenting constituents’ complaints about GODOL’s unresponsiveness to their concerns about unemployment benefits, collecting data in a spreadsheet, insisting that Butler meet with them, and calling for federal investigations.

(L-R) Rep. Donna McLeod (D-105, Lawrenceville), Rep. Rhonda Burnough (D-77, Riverdale), Rep. Sandra Scott (D-76, Rex), Rep. Kim Schofield (D-60, Atlanta), and Rep. Viola Davis (D-87, Stone Mountain) thanked Georgia’s Congressional Delegation on March 15 for demanding an audit of the Georgia Department of Labor’s unemployment claims processing.

Davis added, “The Georgia Department of Labor continues to fail Georgians. The lack of response to unemployment insurance claims, a failed unemployment insurance system that cost $50 million dollars and silencing legislators by way of the Legislator Portal Access agreement form will limit state legislative oversight. It’s time for the labor commissioner to take the necessary steps to move Georgia forward and tackle the financial hardships Georgians continue to face.”

People who could not get into GDOL’s portal or speak to a person started stuffing notes in the door of Clayton County’s locked unemployment office last year. (Photo: Robin Kemp/The Clayton Crescent)

Scott said, “I am extremely disappointed that Georgia’s labor department would have legislators jump through hoops in order to assist their constituents. If the labor commissioner refuses to work with the elected officials chosen by the people of Georgia, he may want to reconsider his position as the head of this agency.”

In a separate letter, Rep. Sandra Scott told Butler that “this agreement will limit/silence the voice of the legislators and create criminal liability for the legislators and their staff.” She listed a dozen reasons why the proposed agreement was unacceptable:

  • The GHDC subcommittee “has already used data within press releases to justify an investigation and audit of the GDOL” by the U.S. Department of Labor’s Inspector General.
  • The confidentiality agreement would put legislators “in violation of the agreement when giving evidence to the federal agencies and state committees.”
  • With regard to how the agreement defines “data,” Scott said, “The legislators have no need to access this level of information as though they are employees and/or administrators of the GDOL. Due to the overall level of negligence in the delivery of service with GDOL, legislators were forced into participating in the service delivery of unemployment insurance. Legislators want competent service delivery that would completely remove their administrative assistants from having to do intake for the GDOL.” In addition, Scott said, the legislators “simply requested follow up with claimants’ questions, complaints, concerns, etc. GDOL refused to answer…thousands of claimants.” Each legislative office “would require additional financial funding” to comply with the agreement.
  • “GDOL will limit the data legislators may disclose to the public….Section IV is completely missing from the document sent to me.”
  • Any party could terminate the agreement with 10 days’ notice, “without cause, for its convenience.”
  • “Most of the legislators in the Georgia General Assembly would prefer not to perform these tasks and services within GDOL,” including sending staffers’ names and dealing with blocked user IDs.
  • Regarding the security requirements, “We question how such requirements are expected of the legislators when Commissioner Mark Butler with GDOL part of a cooperative was financed with over 50 million dollars to provide a new UI system and failed. Legislators are given $7000 annually to assist with running their office.”
  • Scott questioned whether it was “realistic” to require legislators to “establish and/or maintain” data security measures.
  • The agreement would require legislators to maintain records of authorized users, signed non-disclosure oaths, proof of “security awareness training,” and to make those records available to GDOL’s information security officer within two working days on request. However, Scott said, “GDOL and Commissioner Mark Butler have refused to answer Open Records Request as prescribed by law and when he answered ORR, he invoiced excessive charges and fees to obtain information and/or data.” In addition, “Legislators were denied basic follow up information and continued to make requests for follow up information that date back over one year. Yet, legislators are required to act within two working days.” (The Open Records Act requires a response within three business days.)
  • In March, the Georgia Assembly passed a bipartisan bill, SB 156, which would have appointed a temporary chief labor officer to assist with the unemployment backlog. The CLO would gave reported that data. tothe Georgia Assembly weekly. Gov. Brian Kemp vetoed the bill.
  • The CLO would have been appointed by House Speaker David Ralston and confirmed by the Senate Committee on Government Oversight, would have been tasked with providing “timely reports and responses to any financial audits” at DOL, as well as “any inquiries” from Ralston, Lt. Gov. Geoff Duncan, Senate President Pro Tempore David Shafer, House Appropriations Chair Terry England, and Senate Appropriations Chair Blake Tillery (all Republicans).
  • State legislators and staff created a spreadsheet and took calls to “follow up on claims and complaints from the public,” but Butler’s office “would not give any follow up and neglected to open a call center to address the large number of calls. To this date, the call centers and offices remain closed to the public.” Scott said, “GDOL has already received over 2 million dollars from the federal government for fraud prevention,” and questioned GDOL’s ability to protect its own data and equipment.

If an attorney, court, journalist, or citizen were to seek data (for example, through a subpoena or an Open Records Act request), the proposed agreement would mandate that legislators refer that request “to GDOL’s UI Integrity for instructions in accordance with the terms of the Agreement to which this Exhibit pertains, and no formal or informal response or release of Data shall take place before GDOL has had both a reasonable opportunity to review and to respond to such legal process, as more fully described and proved [sic] for in the Agreement to which this Exhibit pertains.”

The Clayton Crescent has forwarded a copy of the agreement to the Georgia First Amendment Foundation and the UGA Law First Amendment Clinic. We’ll update with their responses.

Two women exchange information outside Clayton County’s shuttered unemployment office. (Photo: Robin Kemp/The Clayton Crescent)
Georgia Commissioner of Labor Mark Butler

The Clayton Crescent has asked Butler to comment on the legislators’ letter. We will update with his response.

Butler did speak with WABE’s Rose Scott in December 2020 about the challenges his office faced as a result of COVID-19. Listen to the interview on “Closer Look with Rose Scott.”

In October, Butler said the subcommittee’s efforts were a political ploy.

“Georgia, like every state in the nation, has worked to process record-setting numbers of unemployment claims over the past six months while also building and implementing four separate programs conceived by Congress and the White House to address millions of individuals that have never been part of the UI program,” Butler said. “Instead of constantly criticizing the work of the men and women of the Georgia Department of Labor, these legislators should be praising the work of these individuals who have been working diligently to issue over $15 billion in benefit payments at great sacrifice to themselves and their families. This agency was given the task of delivering almost 80 percent of all the financial relief that was presented in the CARES Act legislation and has done so successfully operating 7 days a week since the middle of March.”

Read our previous coverage

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