Ethics experts: Trump's pick for safety commission has conflict

A Boston lawyer poised to become a crucial Republican vote on the federal commission that acts as a safety watchdog for consumers is married to an attorney who has defended Ikea against claims its dressers are dangerous and responsible for children’s deaths.

Legal observers say the nomination of attorney Dana Baiocco to the U.S. Consumer Product Safety Commission could pose a conflict of interest as the agency continues to monitor last year’s recall of 29 million Ikea dressers and investigates the death of another toddler revealed this week.

The agency also could consider a financial penalty against Ikea over the company’s handling of dangers involving its dressers, a decision that would hinge on a vote by the commission.

“She’s got to recuse herself” from actions regarding Ikea, said Richard Painter, who served as chief ethics officer under President George W. Bush. “She can go on the commission, but she ought to stay out of that.”

In a letter sent to the safety agency’s chief counsel last month, Baiocco said she would recuse herself from issues in which she or her husband, Andrew Susko, has a direct financial interest and from any matter that has a “direct and predictable” effect on the financial interests of her husband’s firm, White & Williams. She did not specifically mention her husband’s work for Ikea.

She and Susko did not respond to requests for comment. Nor did a spokesman for Jones Day, Baiocco’s firm.

Her nomination is one of several shifts at the agency some worry are a sign of a new pro-business culture being ushered in.

Commissioner Joe Mohorovic announced Wednesday he would end his term early, opening the door for the Trump administration to potentially nominate another person with an industry background. President Trump’s pick to chair the commission, Commissioner Ann Marie Buerkle, has a history of voting against increased regulations on businesses or imposing high fines on those who fail to report unsafe products in a timely manner.

At a hearing of the Senate commerce committee where Buerkle’s nomination was approved and sent to the full Senate, Sen. Bill Nelson (D., Fla.) revealed that Buerkle’s pick for the agency’s general counsel is vice president of the national association for portable generators. Buerkle last year was the lone vote on the commission against moving toward mandatory regulations on that industry.

“The Trump administration is filling the nation’s chief consumer product safety agency with friends of big business whose main aim is to weaken health and safety standards and increase profits,” said attorney Remington A. Gregg of Public Citizen, a national consumer advocacy group.

Commissioner Marietta Robinson, whom Baiocco has been nominated to replace, echoed concerns about the agency’s future, saying it has been immune from some of the dramatic changes seen in other federal agencies since Trump’s inauguration, such as the Environmental Protection Agency, only because it has retained a Democratic majority.

“That will soon change,” Robinson said. “And consumer products, the safety of consumer products, will steadily deteriorate.”

A spokesman for the White House did not respond to a request for comment.

Joseph Martyak, spokesman for the safety agency, declined to comment specifically on Baiocco’s nomination but said it is routine for conflicts of interest to be “thoroughly vetted and appropriate recusals put in place.”

The Ikea recall, involving dressers now linked to eight deaths, was announced in June 2016 but is not a closed case.

As of January, the most recent data available, about 3 percent of the products had been returned or repaired. Within the agency, according to sources familiar with the matter, there are ongoing conversations about whether Ikea should be doing more to raise awareness with consumers and whether the agreement with Ikea should be amended.

Camera icon Dudek family
Jozef Dudek, a 2-year-old boy from Buena Park, Calif., died in May when a three-drawer Malm dresser in his bedroom fell on him after he was put down for an afternoon nap, according to a lawyer for the family.

Pressure for more action mounted Wednesday with the news that a 2-year-old California boy had died in May beneath a tipped dresser from Ikea’s Malm line.

Baiocco, a 30-year veteran of Jones Day, a firm with strong ties to the Trump administration, has a history of representing industries regulated by the safety agency. In a notable case, she defended Yamaha in product-liability litigation rising from its Rhino recreational vehicles. When the vehicles were recalled in 2009, they had been linked to nearly 50 deaths.

Baiocco also was part of the Jones Day team that represented Mattel when the toy giant faced dozens of lawsuits and regulatory cases stemming from lead in its products, according to the firm’s website.

Susko also has a background in representing companies against product-liability claims. His work for Ikea, first reported by the National Law Journal, involved defending the company against three lawsuits filed by the families of children killed in Ikea dresser tip-overs, including 2-year-old Curren Collas of West Chester.

His firm previously defended Ikea against a suit filed by the parents of a 3-year-old from Huntingdon Valley who was crushed by an Ikea wardrobe in 2004. Ikea paid $2.3 million to the parents to settle the case, according to court documents.

Rachel Weintraub, legislative director for the Consumer Federation of America, said Baiocco should consider recusing herself on any matters related to an industry she’s represented. On Ikea, she said, there is no question.

“She certainly has benefited from her husband’s work,” Weintraub said. “I think it’s very important she, at a minimum, recuses herself from all matters related to Ikea.”

Kathleen Clark, a government ethics lawyer and professor at Washington University, agreed, adding that recusal means more than not voting on an issue but not taking part in any conversations about it.

“For all we know, their kids were educated on litigation against Ikea or they might have built a swimming pool based on the money they earned from Ikea,” she said. “I think it’s likely that a government ethics official would conclude she shouldn’t participate.”

There is precedent suggesting the same. Ann Northup, who served on the CPSC from 2009 to 2012, recused herself from votes on matters involving all-terrain vehicles because her husband worked in the industry.

Baiocco’s confirmation hearing before the Senate commerce committee has not been scheduled.