[Senate Hearing 106-]
[From the U.S. Government Publishing Office]
S. HRG 106-1012
USDA CIVIL RIGHTS
=======================================================================
HEARING
before the
COMMITTEE ON AGRICULTURE,
NUTRITION, AND FORESTRY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 12, 2000
__________
Printed for the use of the
Committee on Agriculture, Nutrition, and Forestry
Available via the World Wide Web: http://www.agriculture.senate.gov
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COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY
RICHARD G. LUGAR, Indiana, Chairman
JESSE HELMS, North Carolina TOM HARKIN, Iowa,
THAD COCHRAN, Mississippi PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky KENT CONRAD, North Dakota
PAT ROBERTS, Kansas THOMAS A. DASCHLE, South Dakota
PETER G. FITZGERALD, Illinois MAX BAUCUS, Montana
CHARLES E. GRASSELEY, Iowa J. ROBERT KERREY, Nebraska
LARRY E. CRAIG, Idaho TIM JOHNSON, South Dakota
RICK SANTORIUM, Pennsylvania BLANCHE L. LINCOLN, Arkansas
GORDON SMITH, Oregon ZELL MILLER, Georgia
Keith Luse, Staff Director/Chief Counsel
David L. Johnson, Chief Counsel for the Minority
Robert E. Sturm, Chief Clerk for the Minority
Mark Halverson, Staff Director
(ii)
C O N T E N T S
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Page
Hearing(s):
USDA Civil Rights................................................ 01
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Tuesday, September 12, 2000
STATEMENTS PRESENTED BY SENATORS
Lugar, Hon. Richard G., a U.S. Senator from Indiana, Chairman,
Committee on Agriculture, Nutrition, and Forestry.............. 01
Harkin, Hon. Tom, a U.S. Senator from Iowa, Ranking Member,
Committee on Agriculture, Nutrition, and Forestry.............. 29
Baucus, Hon. Max, a U.S. Senator from Montana.................... 09
Cochran, Hon. Thad, a U.S. Senator from Mississippi.............. 03
Conrad, Hon. Kent, a U.S. Senator from North Dakota.............. 05
Lincoln, Hon. Blanche L., a U.S. Senator from Arkansas........... 26
Miller, Hon. Zell, a U.S. Senator from Georgia................... 02
Smith, Hon. Gordon, a U.S. Senator from Oregon................... 04
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WITNESSES
Panel I
Robertson, Bob, Associate Director, General Accounting
Office, Washington, DC, accompanied by Jerilynn B. Hoy,
Assistant
Director, Resources, Community, and Economic Development
Division,
General Accounting Office...................................... 07
Viadero, Richard, Inspector General, USDA, Washington, DC,
accompanied by James R. Ebbitt, Assistant Inspector General,
USDA........................................................... 05
Panel II
Fiddick, Paul, USDA Assistant Secretary for Administration,
Washington, DC, accompanied by Rosalind Gray, Director, Office
of Civil Rights, and David Winningham, Chief Operating Officer,
Office of Civil Rights......................................... 19
Rawls, Charles R., General Counsel, USDA, Washington, DC........ 20
Panel III
Boyd, John, President, National Black Farmers Association,
Baskerville,
Virginia....................................................... 34
Carranza, Juanita, Lambert, Montana.............................. 41
Connor, Harold, Upper Marlboro, Maryland, accompanied by Joseph
D. Gebhardt, Esq............................................... 44
Lucas, Lawrence, USDA Coalition of Minority Employees,
Washington, DC................................................. 39
Pires, Alexander, Esq., Conlon, Frantz, Phelan and Pires,
Washington, DC................................................. 48
Zippert, John, Director of Operations, Federation of Southern
Cooperatives, and Chairman of the Board, the Rural Coalition,
Epes, Alabama.................................................. 37
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APPENDIX
Prepared Statements:
Lugar, Hon. Richard, G....................................... 62
Harkin, Hon. Tom............................................. 64
Baucus, Hon. Max............................................. 68
Smith, Hon. Gordon, H........................................ 66
Boyd, John................................................... 138
Carranza, Juanita............................................ 212
Connor, Harold............................................... 216
Fiddick, Paul................................................ 124
Lucas, Lawrence.............................................. 188
Pires, Alexander............................................. 229
Robertson, Bob............................................... 114
Viadero, Roger C............................................. 072
Zippert, John................................................ 141
Document(s) Submitted for the Record:
Robb, Hon. Charles........................................... 234
Letters, Affidavits, and Complaints.......................... 236
Questions and Answers:
From Sen. Charles Robb to Mr. Fiddick and Mr. Rawls.......... 540
USDA CIVIL RIGHTS
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TUESDAY, SEPTEMBER 12, 2000
U.S. Senate,
Committee on Agriculture, Nutrition, and Forestry,
Washington, DC.
The committee met, pursuant to notice, at 9 a.m., in room
SR-328A, Russell Senate Office Building, Hon. Richard G. Lugar,
chairman of the committee, presiding.
Present or submitting a statement: Senators Lugar, Cochran,
Smith, Harkin, Conrad, Baucus, Lincoln, and Miller.
STATEMENT OF HON. RICHARD LUGAR, A U.S. SENATOR FROM INDIANA
The Chairman. This hearing of the Senate Agriculture
Committee is called to order. The committee strives to continue
its work this morning to help solve the problem of
discrimination at the United States Department of Agriculture.
We have held meetings with USDA officials and we have enlisted
the help of the General Accounting Office. When I met with
Secretary Glickman in October last year, I told him that this
issue was of the utmost importance to me personally and I
received his word that he was doing all he could to address the
situation.
As part of this committee's oversight responsibility, we
have consistently looked at the management of USDA programs and
made suggestions on how to better manage the department's
resources. The problem of systemic discrimination, however,
does not lend itself easily to a management critique. The
troubles at the USDA require more than a new computer system or
a business process.
Many of these problems will be discussed today and they
stem from personal behavior that is difficult to eliminate in a
department of more than 100,000 employees. However, it is the
duty of this committee to ensure that all laws and policies are
strictly followed and that those who believe that they have
been discriminated against receive appropriate and speedy
resolution of their grievances.
In recent years, there has been an increasing number of
class action lawsuits and administrative complaints against
USDA alleging discrimination. These lawsuits and complaints are
of two types: program complaints and employment discrimination
complaints. The program complaints are those involving members
of the public who are the participants in USDA programs. The
second type involve employees of the department who believe
they have been victims of some type of discrimination.
Today's hearing includes witnesses with information related
to both of these types of discrimination. We will hear from Mr.
John Boyd, President of the National Black Farmers Association;
Mr. John Zippert, the Director of Operations for the Federation
of Southern Cooperatives and chairman of the board of the Rural
Coalition; Mr. Lawrence Lucas representing the USDA Coalition
of Minority Employees; Mr. Harold Connor of Upper Marlboro,
Maryland; Mr. Alexander Pires, an attorney in Washington, DC;
and Ms. Juanita Carranza of Lambert, Montana.
Our second panel will include Mr. Paul Fiddick, the
Assistant Secretary for Administration, USDA; Mr. Charlie
Rawls, the USDA General Counsel; Ms. Rosalind Gray, the
director at the USDA Office of Civil Rights.
On our first panel we will hear testimony from Mr. Roger
Viadero, the USDA Inspector General, and from Mr. Bob Robertson
of the U.S. General Accounting Office. As their testimony will
indicate, this is a problem that has been thoroughly studied,
and since 1997, the USDA Inspector General has performed at
least eight reviews evaluating the department's efforts to
solve the complex civil rights problems at the department.
The General Accounting Office has also studied the issue
and both OIG and GAO made numerous recommendations to help
solve the problems. The most troubling aspect of these reports
is how few of these deficiencies identified by either OIG or
GAO in previous reports are ever corrected. Despite these
reports and repeated efforts by USDA officials, the problems
persist. Effective managers are not being hired to solve the
problems and employees are merely being shuffled from agency to
agency in an appearance of problem solving and management
revamping.
This missing link here seems to be one of accountability
from the highest level of management to the county supervisor
in the field who fails to adequately service an African
American farmer's loan. Respect for the civil rights of all
Americans is of paramount importance to me and all members of
our committee. We are committed to doing all that we can to
solve these problems at USDA. With this in mind, I would like
our witnesses to focus on solutions to the problems and
solutions that can bring accountability into the equation.
[The prepared statement of Senator Lugar can be found in
the appendix on page 62.]
I want to before asking for the testimony of our witnesses
to recognize that a new member of the committee is with us this
morning, Governor Zell Miller of Georgia, now Senator Zell
Miller of Georgia. He has been recently sworn in and has chosen
to be a part of our group and we welcome him and are delighted
that he is here at this hearing. Senator Miller, do you have
any opening comment this morning?
STATEMENT OF HON. ZELL MILLER, A U.S. SENATOR FROM GEORGIA
Senator Miller. I will be very brief, Mr. Chairman, but I
do want to say how very appreciative I am for your courtesy in
allowing me to participate on this very important hearing even
before becoming officially a member of this committee.
According to the leadership staff, they should ratify that on
the senate floor later today.
I do not have to tell you, of course, of the long history
of Georgia members on this committee, going all the way back to
the 1870's with Senator John Gordon and, of course, Chairman
Herman Talmadge whose portrait hangs in this room. Of course,
my predecessor, Senator Coverdell.
Agriculture is a huge industry in our state. It is the
largest industry in our state. It accounts for one out of every
six jobs and I am anxious to get started. This was my first
choice of any committee to serve on. Senator Coverdell, I
realize, had some big shoes that I will have to fill and
although he was not from an agricultural area, he became a
great student of agriculture and a real friend to the Georgia
farmer and he will not soon be forgotten. I know that many
members of this committee will miss his presence and I will try
my best to fill those big shoes if I possibly can.
I appreciate the chairman's willingness to address this
issue. It is a very timely issue in Georgia and I look forward
to learning more about it. I look forward to serving on this
committee with you.
The Chairman. Well, thank you very much, Senator Miller. We
are really delighted that you are here and look forward to
working with you. Let us recognize now Senator Thad Cochran for
an opening committee.
STATEMENT OF HON. THAD COCHRAN, A U.S. SENATOR FROM MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much for
organizing this hearing. It is appropriate that we hear from
those who have looked into some of these charges and
allegations and complaints to give us an overview of what kind
of situation exists at the department on this very important
subject. Some of us have been concerned that we are seeing
additional complaints brought now on this same subject, not
only for minority farmers, African American farmers, but also
those who claim to be discriminated against because of their
economic class or their lack of understanding of the
sophisticated rules and laws that govern farm programs.
To the extent that they have been disadvantaged, and that
is an interesting point of view to be asserted in a court of
law as a basis for a claim for damages, but a suit has been
filed or is being filed in my state on that basis now and it
will be interesting to hear from some of our witnesses on that
subject, too. Are the rules and the laws being administered in
a way or are they per se discriminatory for those who have a
lack of understanding or sophistication no matter what their
color is or race? This is an interesting thing that has arisen
in our state now.
We have tried to make available through the Appropriations
Committee funds for the department to administer the settlement
of claims that have been brought. It will be interesting to
hear if there are additional funds needed for those purposes.
At this point, we are trying to resolve differences between the
House and Senate agriculture appropriations bills. We are
meeting with administration officials and I am not personally
aware of any special need at this point for additional funds
above and beyond what is in the Senate passed bill, but that
would be something that we would like to have in this record as
well, if a witness could make that available to us.
Mr. Chairman, thank you very much for recognizing me and
let me also congratulate the senator from Georgia on his
selection of the Agriculture Committee. When I came to this
committee, I remember Herman Talmadge was sitting in the chair
Senator Lugar occupies now and he said and this is a unique
committee. It is not a partisan committee. We do not have votes
in this committee that are based on partisan considerations,
but he had just been elected chairman on the basis of a
partisan vote. He said it in a very convincing way and I
believed him.
[Laughter.]
Senator Cochran. We welcome you, Senator.
The Chairman. Well, I believed him, too.
[Laughter.]
The Chairman. Without carrying this on unduly, Senator
Talmadge sat about here. Senator Leahy and I sat close to where
the camera is at the back door and the table was that long and
one of your predecessors, Senator Cochran, Senator Eastland of
Mississippi, sat just to the right of Senator Talmadge and both
were enveloped in smoke so that they were not easily seen by
those of us nor could they see us apparently.
[Laughter.]
The Chairman. Times have changed and one of the nice
changes has just entered the room likewise and that is Senator
Gordon Smith of Oregon. He has selected this committee and we
are grateful that is the case and he will be joining us today
for this hearing. As Senator Miller has pointed out, there has
not been official confirmation of these appointments, but it
will occur later in the day and there is important work to be
done. Senator Smith, we welcome you to the committee. Do you
have any opening comment this morning?
STATEMENT OF HON. GORDON SMITH, A U.S. SENATOR FROM OREGON
Senator Smith. Just, Mr. Chairman, I will have a statement
I would like to enter in the record and I would also just want
to say what a privilege it is to be on your committee, the
Agriculture Committee, and I can think of few industries closer
to my own heart than agriculture and it remains a cornerstone
of my state's economy and so if I can help those who make their
living from the land by serving on this committee, if I can do
that better, then I am thrilled to be here. I also express the
concern of others here that when it comes to civil rights, that
is another issue laid on top of a great industry. We got to
make sure that it is enforced and people's rights are protected
regardless of their race or their gender and so I am very
pleased to be here this morning, sir.
[The prepared statement of Senator Smith can be found in
the appendix on page 66.]
The Chairman. Thank you very much, Senator. Senator Conrad,
do you have an opening comment?
STATEMENT OF HON. KENT CONRAD, A U.S. SENATOR FROM NORTH DAKOTA
Senator Conrad. Just very briefly, Mr. Chairman. Thank you
for holding this hearing. Obviously, the cases that involve
American Indians have a major impact in my state and I also
want to thank the chairman for accommodating my request that we
have as a witness somebody who is deeply involved in the filing
of that litigation. I appreciate that accommodation very much
and I also want to welcome Senator Miller and Senator Smith to
this committee. You will find that this is a collegial
committee and one where members do seek to work together.
Obviously, there are regional differences. There are at
times, although we hope not frequently, partisan differences,
but most of all, this is a committee that does work together in
a very productive way and we welcome you. We are glad you are
here.
The Chairman. Thank you very much, Senator Conrad.
The Chairman. Now we would like to hear from the witnesses.
Let me ask each of our witnesses in each of the three panels to
attempt to summarize your comments in a 5-minute period, and I
know this is difficult and the chair will try to be lenient so
that you are not cutoff in mid-flight, but this will
accommodate the possibility of raising questions by senators
who are here and those that will be coming.
We will have to take a break at ten o'clock for a roll call
vote which has been declared and we know that a hiatus will
occur at that point. We will proceed as far as we can until
then and then we will not be interrupted after that first roll
call vote. I would like to call now upon Mr. Viadero first and
then Mr. Robertson second for your testimony. Mr. Viadero.
STATEMENT OF ROGER VIADERO, INSPECTOR GENERAL, USDA,
WASHINGTON, DC
ACCOMPANIED BY JAMES R. EBBITT, ASSISTANT INSPECTOR
GENERAL, USDA
Mr. Viadero. Good morning, Mr. Chairman, and members of the
committee. I appreciate the opportunity to be here today to
testify about our work on the department's processing of
complaints of discrimination. With me today is Mr. James R.
Ebbitt, Assistant Inspector General for Audit.
Mr. Chairman, I have prepared a statement which I would
like to submit for the record and summarize here this morning.
The Chairman. It will be published in full in the record.
Mr. Viadero. Thank you, sir. Over the past three and a half
years, the Office of Inspector General has performed eight
reviews of the department's processing of civil rights
complaints, all at the direction of Secretary Dan Glickman. Our
reviews were completed over seven phases and resulted in eight
reports and two internal memoranda, all of which contained a
total of 119 recommendations.
Our most recent reviews which constituted Phase VII of our
report resulted in two reports issued simultaneously in March
of this year. Both concerned the that Office of Civil Rights.
One reported on the office's processing of complaints of
discrimination in program benefits and the other on its
processing of complaints in employment. The story these reports
tell is one of a staff that is demoralized and inefficient and
of a management that never got a firm hold on a system it
inherited but that resisted recommendations for improvement.
For the Office of Civil Rights, this has been a continuing
story throughout all seven phases of our work. Complaints were
not adequately tracked, case files were poorly maintained, and
managers were not held accountable for deadline overruns.
Open cases we reviewed dated back several years. Many of
the problems we noted at the Office of Civil Rights during our
most recent efforts were evident during the first review
completed in February 1997. At that time, the Secretary had
raised concerns about the integrity of the department's process
for resolving discrimination complaints in farm programs. We
found that the complaints system was in total disarray.
Complaints were backlogged within the department and their
status could not be determined. There were no controls to
monitor and track complaints, no current regulations to
standardize policy and operations, no effective leadership, and
most of all no accountability.
Our foremost recommendation to the Secretary at that time
was to centralize control over the complaints process so that
no agency was allowed to resolve complaints against itself. In
response, the Secretary created the Office of Civil Rights.
This office took control of the Farm Service Agency's program
complaint system as well as its backlog of 530 complaints.
Because there was no immediate action to clear this
backlog, it continued to grow throughout 1997 and peaked at
1,088 complaints. This number came to be known as the original
backlog of program complaints. While the office concentrated on
reducing this backlog, it simultaneously created another volume
of cases that exceeded the department's 180 day deadline for
case resolution.
By March of 2000, the office had reduced the original
backlog to 35 cases, but faced a new backlog of an additional
454 cases.
During our reviews of the Office of Civil Rights, it became
clear that the office was not implementing critical
recommendations we made. By our Phase V review, the office had
not gained in efficiency and could not ensure that all
complaints were being handled with due care. We concluded the
office needed to transform its processing system completely and
abandon component processing for case management processing.
Assigning staff to processing components such as intake or
adjudication resulted in fragmented workloads. Assigning staff
to the entire processing cycle for each case promised a more
cohesive system. Managers at the Office of Civil Rights agreed
with this assessment, but by the time of our Phase VII review,
they had yet to implement the case management processing
system. Our concerns about the unreliability of the office's
data base also continued through Phase VII. By then the office
was providing the Secretary with statistics we found inaccurate
as well as misleading.
For example, these statistics suggested that the office
processed a substantial number of complaints of employment
discrimination made in the last three years. We found out these
numbers--and that is shown on chart one, we found that these
numbers included cases that other USDA agencies had processed.
[Chart.]
Mr. Viadero. The numbers allowed the office to assume
credit in 1999 for cases it did not work as well as cases that
were backlogged from previous years. Its own performance was
even more erratic. Chart two.
[Chart.]
Mr. Viadero. Using the same flawed methodology, the office
showed it had shortened its average processing time for
employment complaints to 87 days. We found it actually took the
office 222 days on average to process the complaints it
accepted in 1999. We should also note that the so-called
completion time of 222 days is based on only three cases. These
three cases, the only ones the office both accepted and
processed in 1999, were finally closed due to pending
litigation and were never adjudicated by the Office of Civil
Rights.
Our Phase VII review showed little progress by the Office
of Civil Rights in achieving the efficiency it needs to ensure
the integrity of the complaints processing system. Unless the
office implements a management plan that addresses effective
leadership, customer focus and process reengineering, we
question whether future complaints of discrimination will
receive due care.
In conclusion, Mr. Chairman, I would like to submit for the
record a summary of the actions taken on the recommendations we
made during our seven phases of reviews. I would like that
submitted for the record, sir. Thank you, Mr. Chairman, for the
opportunity to present these issues. I would be happy to answer
any questions you or other members of the committee may have at
this time.
The Chairman. Thank you very much, sir. The summary you
have entered will be accepted in the record and published in
full.
Mr. Viadero. Thank you, sir.
[The prepared statement of Mr. Viadero can be found in the
appendix on page 72.]
The Chairman. Mr. Robertson.
STATEMENT OF BOB ROBERTSON, ASSOCIATE DIRECTOR, GENERAL
ACCOUNTING OFFICE, WASHINGTON, DC
ACCOMPANIED BY JERILYNN B. HOY, ASSISTANT DIRECTOR,
RESOURCES, COMMUNITY AND ECONOMIC DEVELOPMENT
DIVISION, GENERAL ACCOUNTING OFFICE
Mr. Robertson. Good morning, Mr. Chairman, members of the
committee. Thank you for inviting us to be part of these
important hearings on USDA's civil rights program. Our
statement today is based on a report that we issued last year
and I am very fortunate to have with me today Jeri Hoy, who was
responsible for leading the work that supported that particular
report. I better put these on. Who knows what words will come
out of my mouth if I do not.
In fact, we reported that USDA was not processing civil
rights complaints in a timely manner. We found that USDA had
one of the worst records of the Federal agencies that we
examined as far as the timely processing of employment
complaints.
We identified four long-standing problems that were
impeding USDA's efforts to improve timeliness. First, USDA's
Office of Civil Rights had experienced constant management
turnover and reorganizations. We pointed out that between
October 1990 and January 1999, the Office of Civil Rights had
eight different directors. That is almost averaging one new
director each year. To add to this instability, the
department's civil rights program had been reorganized three
times between 1993 and 1999 resulting in numerous changes at
the division and staff levels.
Second major problem we noted related to inadequate staff
and managerial expertise. In 1997, the Civil Rights Action
Team, which was a team of agency officials appointed by the
Secretary to review civil rights issues, reported that USDA
employees generally viewed the department's civil rights
offices as a dumping ground for many staff who had settled
their Equal Employment Opportunity complaints. This issue of
inadequate staff expertise surfaced throughout the review and
this is something we may want to come back to later.
The third problem cited in our report was the Office of
Civil Rights lacked clear, up-to-date guidance and procedures
to govern the receipt, handling and resolution of its program
and employment complaints. Those types of procedures are
particularly important in the type of environment that USDA's
Office of Civil Rights was working in at that time which was
constant change of management.
The guidance is fundamental to promoting department wide
compliance with and standardization and effective enforcement
of civil rights statutes.
Finally our report noted that poor working relationships
and communications within the Office of Civil Rights and
between that office and other USDA entities also hindered the
timely processing of civil rights complaints. Now in addition
to these four problems which tended to stall efforts to process
complaints quickly, we also pointed out that the department was
not consistently using alternative dispute resolution
techniques such as mediation to address workplace and other
disputes. Federal law and regulations encourage the use of
these techniques in resolving Federal workplace disputes and it
is a way of heading off disputes before they become formal
complaints.
We made four recommendations to the Secretary of
Agriculture to address the problems identified in our report.
In commenting on the draft of the report, the Director of the
Office of Civil Rights stated that the management weaknesses we
cited were real and that our recommended changes were
necessary. Further, she said that USDA was actively moving
toward full adoption and implementation of these
recommendations.
In preparation for this hearing, we reviewed the status of
USDA's implementation of our recommendations. Although more
than 19 months have passed since our report was issued, USDA
has not fully implemented any of the four recommendations. USDA
officials noted, however, that the agency has drafted a long-
term improvement plan that is intended to systematically
address the problems in the program. They expect to begin
implementing the plan next month.
In conclusion, Mr. Chairman, our 1999 report found that
USDA's civil rights program had a long way to go before it
achieved the Secretary's stated goal of making USDA the civil
rights leader in the Federal Government. In recent months, USDA
has taken some initial steps to address the department's
chronic problems. Unfortunately, these plans will require long-
term implementation including additional funding for hiring and
training personnel. As a result, it appears as if the
Secretary's goal, at least in the short term, remains illusive.
That concludes my statement, Mr. Chairman, and I will be happy
to take any questions.
The Chairman. Thank you very much, Mr. Robertson. Your
statement, of course, will be published in full as the case of
Mr. Viadero.
[The prepared statement of Mr. Robertson can be found in
the appendix on page 114.]
Senator Baucus. Mr. Chairman.
The Chairman. Yes, Senator Baucus.
Senator Baucus. Might I just have a statement introduced in
the record at this point?
The Chairman. Yes.
Senator Baucus. I have a hearing that starts at 9:30.
The Chairman. Please proceed.
STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR FROM MONTANA
Senator Baucus. I have a fairly long statement and it is
pretty tough. It is tough because in my state in Montana there
have been a lot of civil rights complaints and none of them
have been resolved, none. I in my testimony, am going to give
some of the same data that has already been given, but I just
would like the department, those relevant in the department, to
read my statement and to take it very seriously because in that
statement I also ask that certain actions be taken including
dates by when they believe some of these cases can be resolved.
I am also going to give the department a weekly report of
discrimination charges that I receive and I tell you it is
many. There are many on that list. I apologize to a Montana
witness that I will be unable to hear her testimony, but she
has traveled by train to come here to plead her case and I hope
she does not have to come to Washington, DC again because the
record is just abysmal. I hope we can get it resolved. Thank
you.
The Chairman. Thank you, Senator Baucus. Your statement
will be published in full at the beginning of the hearing with
the opening comments of senators.
[The prepared statement of Senator Baucus can be found in
the appendix on page 68.]
The Chairman. Now, I would like to ask all senators to
restrain themselves likewise to five minutes in the question
rounds. If there is need for a second round, we will do that,
but the first time around, all of us try to stay within five
minutes.
Mr. Robertson, clearly you and Mr. Viadero have painted a
very bleak picture of the reorganization of USDA's efforts. I
am just curious. In your agency you take a look at various
other agencies of government from time to time, I suspect, with
regard to civil rights matters. Why is the USDA situation such
a difficult one, both in terms of the numbers of cases that are
currently being filed and the lack of resolution of the cases
or the retention of personnel to do this work or to follow
though by the management?
In other words, is this a fair to middling situation in the
Federal Government? Is it the bottom of the heap? What seemed
to be the peculiar characteristics of this situation that we
have not been able to grapple with?
Mr. Robertson. Let me answer that question in two parts.
Let us talk about some comparisons of USDA's record with other
Federal agencies. We made those types of comparisons in our
1999 report and we have some preliminary information to update
that. In that 1999 report, we looked at data from EEOC in terms
of various performance indicators of processing employment
complaints in a timely process.
We looked at the percentage of cases that USDA or OCR
investigated that were done within the stated 180 day EEOC
timeframe. We found that USDA had one of the worst if not the
worst records of the agencies that we looked at in regard to
meeting that particular timeframe. That was by the way for 1997
statistics which were the most current available at the time we
did our work. We updated that 1999 information in preparation
for the hearings with some preliminary information from EEOC
and basically found that in regard to that particular measure,
the situation has not changed. They are still missing the mark,
I believe, in about 99 percent of the--almost 100 percent of
the cases in terms of conducting investigations within the 180
day timeframe.
We also in the older report, in the 1999 report, looked at
another performance measure again for processing employment
complaints. That measure was basically the time it took to
resolve complaints that did not involve EEOC hearings. Again
USDA, based on 1997, EEOC data was on the bottom of the pile.
The preliminary information for 1999 indicates that there has
been some improvement, but USDA is still far above the EEOC set
standards and far above the government wide averages. That is
the first part of the question on how the USDA is doing in
regard to other agencies as far as employment complaints go.
In regard to the why what makes USDA different, why are
they where they are--that is much more difficult question to
answer. We have had, as you have pointed out, several years of
people going in and looking at this program and finding all
sorts of problems, having all sorts of suggested fixes,
including the CRAT report came out in early 1997, I believe,
with 90 some odd recommendations. Roger and his crew have come
up with a number of reports with recommendations for fixes. We
have come up with a report with recommendations for fixes.
Obviously this program is not lacking for fixes or
suggested fixes for these problems. If I were king for the day
and I were to say this is what you need to focus on, I would
focus on something that both the OIG and GAO and the CRAT
report have highlighted--that is upgrading the level and
quality of the skills and experience and expertise in the
Office of Civil Rights. If you get the right people in the
right positions with the right skills, they are going to
identify the problems and take the appropriate actions to
mitigate them.
The Chairman. Let me just ask in other agencies where
similar problems have occurred, is this the way they solve it?
In other words, they found new people, upgraded the whole
status of the movement and proceeded on as opposed to us
hearing testimony that we are not getting very good people in
this agency? In fact, there seems to be a deterioration in
morale, a turnover of people.
You know we have committee oversight hearings on this
situation annually. I can remember almost one a year each time
that I have been chairman and we come up with many of the same
problems, maybe compounded in terms of greater numbers. We are
oversight people. We cannot reach in as philosopher kings any
more than you can to wrench out the agency. I am frustrated as
to how to be effective. Given these annual hearings, the
expositions, they are terrible. Why the embarrassment I would
think to the Secretary, the people managing the department,
would be profound. The changes have not occurred.
This is why I wonder if there is something extraordinarily
different about USDA? Simply overwhelmed by the nature of the
work that occurs in agriculture or some other factor that we
have not examined?
Mr. Robertson. I believe that there are lessons that can be
learned by looking at how other Federal agencies do their
business and, in fact, sometime this fall the EEOC is coming
out or one of its task forces is coming out with a report that
basically is a lessons learned, a best practices type report.
That could be a starting point for USDA to look at to see how
it could address some of its problems.
Ms. Hoy. Can I add something? Actually the Postal Service
is one agency that we have heard cited as a turnaround agency,
where they had a lot of serious problems, and what they did was
to start using alternative dispute resolution in a very
consistent way and what that allowed them to do was to resolve
workplace disputes before they became formal complaints. They
have been using outside mediators, mediators from outside of
the Postal Service, for the last four or five years apparently
and the program has been very successful in reducing the number
of formal EEO complaints.
The Chairman. There is constructive relief if you move in
those directions?
Ms. Hoy. Yes.
The Chairman. Senator Conrad.
Senator Conrad. Thank you, Mr. Chairman. How many staff are
there in the Office of Civil Rights in USDA?
Mr. Robertson. I can give you ball park. When we did our
report, there are roughly 120 people. That has increased
slightly since that time and the budget was somewhere in the
neighborhood of 13 million.
Senator Conrad. How many cases do they have annually? Is
that fairly reflective up here? Looks to be roughly in the
range 750 to 950 a year?
Mr. Robertson. In terms of the caseload for employment
complaints, I can talk about the number that they had on hand
at the end of fiscal year 1999, which was 1,680, roughly 1,700.
Senator Conrad. That would be the current backlog?
Mr. Robertson. That would be the number that were----
Senator Conrad. Were pending?
Mr. Robertson. Right.
Senator Conrad. 1,700 at the end of 1999?
Mr. Robertson. Right.
Senator Conrad. I am interested in how many cases are
brought a year? It looks to me up on your own chart here that
you are looking on a yearly basis between 750 and 950. Would
that be a correct conclusion from that chart?
Mr. Viadero. Senator, that is not GAO's chart. That is the
IG's chart and Mr. Ebbitt would be happy to answer that for
you. Thanks.
Mr. Ebbitt. Senator, that was the status for those years.
The flaw in that particular chart on the left was what the
Office of Civil Rights reported.
Senator Conrad. Right.
Mr. Ebbitt. What that reflects is cases essentially filed,
not necessarily accepted. You have to draw that distinction
because a filed case is not always accepted. Sometimes there is
not enough information provided. The cases on the chart on the
right is what we believe is what really happened in those
particular years.
Senator Conrad. I see. I see. Something less than?
Mr. Ebbitt. That is correct.
Senator Conrad. OK.
Mr. Ebbitt. Also, Senator, this reflects program cases, not
employee cases.
Senator Conrad. Now, that is the next question I have. How
many of these cases--how many of these----
Mr. Ebbitt. I need to correct that. That is employee cases.
Senator Conrad. Oh, that is employee cases.
Mr. Ebbitt. Yes.
Senator Conrad. That was my next question. How many of
these, what percentage of these cases are employee cases? How
much of these cases are program cases?
Mr. Ebbitt. Again, Senator, I have just been corrected.
These are all employee cases that are reflected here.
Senator Conrad. That does not tell us program cases?
Mr. Ebbitt. Those charts do not.
Senator Conrad. When you gave me the number of 1,700
pending at the end of 1999, did that include employee cases and
cases that involved programs?
Mr. Ebbitt. No, that was a figure that I gave----
Senator Conrad. That is just employee?
Mr. Ebbitt. That was a figure that I gave and that was for
employees.
Senator Conrad. Employees. Can you tell me how many of
those are within the department itself? Are these all within
the department itself?
Mr. Ebbitt. Yes, these are USDA employment complaints,
according to CR data that is.
Senator Conrad. This is truly extraordinary and they cannot
resolve those with 180 days. All of these cases that are
reflected on these charts involve employees within USDA itself.
Has anybody got what the number of program cases are?
Mr. Ebbitt. As of December 1, 1999, Senator, we counted 897
on the program side.
Senator Conrad. That were pending?
Mr. Ebbitt. That is correct.
Senator Conrad. That was in addition to 35 that were still
left over?
Mr. Ebbitt. Thirty-three of the 35 have also been cleaned
up as of March.
Senator Conrad. Mr. Chairman, could I just offer I read
something interesting in the paper this morning about what has
been done within the District of Columbia by the new mayor. He
has reached an agreement with about 90 percent, 80 or 90
percent of the middle managers, that they would get a pay raise
in exchange for giving up their appeal rights in terms of
termination. Anybody could be removed for cause or because they
were not performing in some way on two weeks notice, and I tell
you I know this is controversial and some will consider it
something that threatens employees.
I tell you, part of the problem here is it is very hard
within the Federal Government to remove people who are not
performing, to change managers when people are not performing.
I wonder if this is not a case where it would be a good
experiment to see if we could not in USDA in this office do
something along the lines of what the mayor and this city has
done? You know my experience as a manager has been when things
are not working well, there is one reason. It is the people
involved.
Every time I had a management problem when I ran a large
state agency I found it was because I had the wrong person in
the wrong slot. It did not mean they were not a good person.
Sometimes it just meant they just were not prepared for the job
that they had. Phase VII, Phase VII, the Inspector General has
told us here and nothing much is happening. I personally
believe we are going to have to go to some new approach if we
are going to solve this problem.
The Chairman. I thank the senator. Senator Cochran.
Senator Cochran. Mr. Chairman, my questions are going to go
to the program discrimination issue and I wonder in the
testimony from our first two witnesses, have the program
discrimination cases not been resolved just like the employment
cases have not been resolved? Are those numbers about the same?
Mr. Ebbitt. Senator, as I was indicating, our last count of
program cases is around 897. In our testimony, when we started
this process in November 1997, the backlog at that time was
1,088. That is the so-called original backlog. Now that has
been essentially worked down. They are very close to resolving
or having dealt with most of those cases. Part of the problem
in handling those cases then was the fact that you have more
coming in and so the new ones as they were coming in, they were
not being handled in a timely fashion because all the energies
were being directed toward all those old ones. Roughly right
now 897 is the number on the program side.
Senator Cochran. Was there any effort made in your review
of the GAO review to determine the adequacy of the remedy that
is available for a program discrimination? What is your
assessment of that?
Mr. Ebbitt. Senator, we in--let me see which phase, I get
my phases mixed up. In one of our reports we looked
specifically at settlements, and was one of the charges made
against the department is that once the settlement has been
agreed to by the department and the complainant, then the
settlement action was not always carried out. We found a mixed
bag, if you will, in that particular arena. We did find
evidence that settlements had been achieved and that actions
were being carried forward. We did find some delays in carrying
that agreed to process to fruition in some instances, but the
real issue there was there were not that many settlement cases.
A lot of cases just hadn't reached the end of the process.
Senator Cochran. What about GAO? Did you undertake an
assessment of that?
Mr. Robertson. Yes. Our work looked primarily at the
timeliness of the process itself, but I would like to go back
to your earlier part of your question and some of your
questions on the statistics and just make a comment. In
preparing for this hearing, we tried to get some statistics
that would give us an indication, a flavor of whether the
timeliness of processing the program complaints, in particular
the program complaints, had improved or, just exactly what the
status was. While it seems that OCR has statistics, I am not
comfortable in using those statistics right now to give you a
flavor of what the progress has been and the OIG would be in
the same boat.
Again, it is an important thing to remember that the
statistics that we are talking about here are kind of iffy at
best and that is unfortunate.
Senator Cochran. Was any conclusion reached by either
investigative agency about whether the law ought to be changed
or improved in any way that governs the handling of these
cases? Is there something that we as a legislative committee
should consider in terms of amendment to current law on this
subject, the program complaint side I am addressing again?
Mr. Viadero. Senator Cochran, I would like to answer your
question and also get back to what Senator Conrad mentioned.
You know as a manager, it is accountability. It is timeliness.
It is not only doing the right things but doing things that are
right and we find an absence of all of this in the operation of
this office.
Senator Cochran. What about the GAO on that subject?
Mr. Robertson. We have no recommendations directed to
legislative changes.
Senator Cochran. One thing I have heard just from people
who have reported to me some personal experiences in dealing
with the department is the complexity of the complaint process.
Is this something that in your view ought to be considered or
addressed by the Congress or is there an adequate process, it
is just the administration of the process that has broken down?
Ms. Hoy. My thoughts are that it is primarily the
administration of the process. I was thinking of the question
that Chairman Lugar asked earlier about why are things so bad
at USDA and it just strikes me that there are some agencies
have poor personnel, others have poor systems, others have poor
data, but with USDA it is across the board and that is why.
That is the problem. It is just pervasive problems in almost
every single area and it is hard to know where to start.
Senator Cochran. My last question is provision for payment
of attorney's fees; is this taken care of in the law
adequately? Do attorneys get their fee from the settlement
itself or is this paid over and above the reimbursement to a
successful complainant? I wonder what the contingent fee basis.
You know we had a lawyer down home and we said what is his
contingent fee? What does that mean? He said, well, if he
loses, he does not get anything. If he wins, you do not get
anything.
[Laughter.]
Senator Cochran. I am just curious. I want to be sure that
is not the situation here with these cases.
Mr. Viadero. It is my understanding, Senator, that it is
both ways. We have instances of both the contingent fee basis
and a fixed fee basis.
Senator Cochran. Thank you.
The Chairman. Thank you very much. Senator Miller.
Senator Miller. I do not have any questions.
The Chairman. Senator Smith.
Senator Smith. Mr. Chairman, I in preparation of this
hearing, we contacted our staff in Oregon to find out what
complaints they are having and talked to the local chapter of
the NAACP, and if there is a positive note, at least in Oregon
this is not a glaring problem, but as I contrast that with Mr.
Viadero's statement, and I want to read it for emphasis:
Throughout the seven phases of review the Office of Civil
Rights has been a portrait of a dysfunctional agency. Its staff
has remained demoralized through three major reorganizations.
Management's attempts to improve the working environment have
been perfunctory and its attitude toward accountability have
been unenthusiastic. The case files were in no better condition
in March 2000 than they were in February 1997.
I guess do we need to start over? It sounds like you have
got the wrong people and maybe also the wrong systems. That is
what I am reading, Mr. Viadero.
Mr. Viadero. We are not taking exception to any of that,
Senator. We also would like to add we have all of this on our
web site, all seven phases which would include Phase III which
is 18 linear inches and is county by county throughout the
United States on their civil rights statistics. I would like to
add, though, when we walked in the first time, we found, by
chance some files that were laying in a file drawer for years.
Nobody ever looked at them. We actually had to construct an
inventory of case files. There were files and there were papers
in these files from Mr. Smith, Mr. Cochran, Mr. Lugar, Mr.
Conrad, Mr. Miller right across the board in one file. The
files had never been properly maintained.
We have a picture of their automated filing system. It was
a mobile filing system. They had a push cart from a Safeway
store. The files were in total disarray. Now this is not a
civil rights function. This is a basic management function of
an office. I know that Mr. Conrad is a kindred spirit in
accounting and you just do not run books and records this way.
It is not a way to run a business and this is a business like
anything else and it has to be accountable or we find bad
business practices, if you will, and lack of accountability.
Senator Smith. Can you correct me if I am wrong if I am
misunderstanding the condition in the Pacific Northwest. Is
there a problem there?
Mr. Viadero. Not that we are aware of.
Senator Smith. Have you located where the problems are most
egregious? Is there an area of the country? Have you pinpointed
it? Is it in Washington, DC? Is it in the Northeast? Is it the
Midwest? Where are the problems the most egregious?
Mr. Viadero. When I got back to our sampling in Phase II,
and we did four certain areas, geographic areas of the country,
such as Oklahoma because of its Native American concentration,
such as San Joaquin County, California for having the only
county with Asian farmer concentration. We did the greater
Southwest basically from California right into your state,
Senator Cochran, Mississippi, looking for Hispanics, of course,
the Old Dominion, the greater South with its on the
historically black farms.
Senator Smith. Are you finding that where there are
problems are they more personnel or are they more systems? Are
they systemic problems or are they personnel problems?
Mr. Viadero. We found no examples of systemic
discrimination in any of our reviews.
Senator Smith. Is it just personnel who just do not give a
rip about civil rights?
Mr. Viadero. Well, it is important to note that the county
system, the county executive who is hired by thr county
committee who in turn is elected by local farmers, how are you
going to have discrimination if the farmers in the country are
voting for the leader of the county. That is why we say it is
not systemic. By the way, these people are not federal
employees. They are quasi-government employees and they are
outside the normal books and records of the department, if you
will, and not subject to the merit systems that we have within
the civil service.
Senator Smith. Ms. Hoy mentioned that the Postal Service
was an agency in difficulty and is the model you are pursuing
to fix USDA; is that accurate or are there other agencies in
the government that are really good examples of the enforcement
of civil rights laws that we ought to be looking at here for
USDA?
Mr. Robertson. I think Jeri was alluding to the fact that
there are some other Federal agencies that had some success
particularly with alternative dispute resolution and Veterans
Administration was one of those. I believe the Air Force is
another.
Senator Smith. Thank you, Mr. Chairman.
The Chairman. Let me just followup a little bit on Senator
Smith's question, and that is in the testimony that I see down
here on county committees, problems and elections, a suggestion
is that in the spirit of the Voting Rights Act, county
committee procedures are seriously flawed. Voting participation
averaged ten to 15 percent of eligible voters, only 5 percent
participating in one South Carolina county. Up to 25 percent of
the ballots disqualified because they were not filled out
correctly and so forth.
Now, Mr. Viadero, you are saying many of these
discrimination complaints arise from decisions of these county
committees; is that correct?
Mr. Viadero. That is my understanding, sir, yes.
The Chairman. That in trying to parse this situation a
little bit, we have USDA down here in Washington with civil
service people, merit and so forth, and we have USDA out in the
field in various ways. As you point out, you have sort of a
democratic system here which county committees are elected and,
therefore, the voting procedures or how people come on to those
committees or how people are kept out of the committees comes
into play, I suspect. This may be a more complex situation then
in trying to evaluate, getting back to Senator Conrad's
suggestion that as in the case of the mayor of Washington, DC,
you take some stringent action so that people can be fired and
removed and move out of the picture.
What we are seeing here, I suspect, is the question at the
grassroots in many cases in which people have been elected
quite apart from these folks down at USDA in the civil service
or many of us around this table. Now how do you begin to deal
with all of that?
Mr. Viadero. Well, this will reference now back to Senator
Smith's question so far as what we see on a systemic basis. Let
me give you an example of how this system works. Mr. Lugar,
since you are the chairman here, we are going to make you the
CED, and Mr. Cochran is his outreach coordinator, and Mr.
Cochran--I am sorry--Mr. Conrad as a farmer. Well, the chairman
likes Mr. Conrad. OK. Mr. Cochran, the outreach----
Senator Conrad. You got a good start.
[Laughter.]
Mr. Viadero. I need help wherever I can get it. Mr.
Cochran, the outreach coordinator, will call Mr. Conrad up and
say, Mr. Conrad, the final date for filing these applications
is a week from today. Now, Mr. Smith, Mr. Lugar is sort of
neutral on you. Mr. Cochran just does not call you. You have
been given your packet with the dates on it. That is the type
of impetus that we see. Now can you say that that is systemic,
that that is intentional? I dare say you could not. We have not
been able to find it.
That is probably the most egregious thing/example of what
we found and that is very simplistic. Again, to quote a great
guy, my son, ``it ain't rocket science,'' and he is a rocket
scientist. It is the best I can give you.
The Chairman. Senator Conrad.
Senator Conrad. Mr. Chairman and those who are here as
witnesses, I go back to every time as an administrator I
encountered a problem like this, it went right to the question
of the people that I had in the positions of responsibility. I
found systemic problems. It is amazing how they get resolved
when you have the right people in the right positions because
they figure out how to change the system to make it work. You
know I have been told we heard this morning that this office
has been used as a dumping ground. That is the reputation of
this office. That disgruntled employees have been moved into
these positions and now we got a situation where the job is not
getting done.
Now the evidence is overwhelming. The job is not being
performed. I do not want to be harsh, but, when you have gone
through seven phases of review and nothing is happening to fix
it, somebody has got to be held accountable. As a manager, I
would hold the people who are in positions of responsibility
accountable. They are the ones who have the obligation to
produce results and they have failed, and they have failed
miserably and there can no longer be any question about it. I
would advocate that we get new leadership and they have the
power to get people in positions of responsibility who do the
job. That is, an obligation we have as an oversight committee.
We cannot be the administrators obviously. We should send a
clear message that this is it.
Now we have all the reviews that we need to have. There is
a failure. The people who are there in positions of
responsibility ought to be held accountable. That is not being
unfair. That is not being harsh. That is setting standards and
setting goals and holding people accountable.
Could I just close with a question to Mr. Viadero? What
would you do in this circumstance? If you had the power to try
to clean up this mess, what would you do? What are the two or
three steps that you would take immediately?
Mr. Viadero. Well, some of the steps have been taken in the
very recent past by Assistant Secretary for Administration
Fiddick whom you are going to hear from on the next panel. He
appointed a fellow by the name of David Winningham as Deputy
Director for Civil Rights, as the title is called, in the
Office of Civil Rights, and Mr. Winningham, much to his credit,
has gone in and established some basic management controls and
met with people and is getting this backlog down. I do not
think we can say scrap the system, scrap the people. Again, it
is a people issue. OK. Mr. Winningham appears to have the right
mix, if you will, of people skills and management skills and
also the support of the Assistant Secretary.
Senator Conrad. Does he have the ability to move out people
who just are not performing? You know sometimes you just have
people who are not performing and does he have the ability to
remove people who are not performing?
Mr. Viadero. I am assuming that Mr. Fiddick would support
him if that is the final decision that they make.
The Chairman. Thank you very much. Are there other
questions of this panel by senators? If not, we thank you very
much for your testimony and we hope that the next panel will
have some satisfying answers and then we will have a third
panel of witnesses that we have already mentioned. The chair
would like to mention also that there will not be vote at 10
a.m., and so that is gratuitous so that we can proceed without
interruption.
The Chairman. We now have Mr. Paul Fiddick, the USDA
Assistant Secretary for Administration, accompanied by Ms.
Rosalind Gray, Director of the Office of Civil Rights, and Mr.
David Winningham, Chief Operating Office of the Office of Civil
Rights; and Mr. Charles R. Rawls, USDA General Counsel.
We welcome the next panel and I will ask you to testify in
the order that I introduced you, first of all, Mr. Fiddick and
Mr. Rawls. Please try to summarize your comments in five
minutes more or less, and then we will have more extended
conversation as questions come from senators. Mr. Fiddick.
STATEMENT OF PAUL FIDDICK, USDA ASSISTANT SECRETARY FOR
ADMINISTRATION, WASHINGTON, DC
ACCOMPANIED BY ROSALIND GRAY, DIRECTOR, OFFICE OF CIVIL RIGHTS,
AND DAVID WINNINGHAM, CHIEF OPERATING OFFICER, OFFICE OF
CIVIL RIGHTS
Mr. Fiddick. Thank you, Chairman Lugar. We have a longer
consolidated statement for Ms. Gray, Mr. Rawls and myself that
I would like to have entered into the record.
The Chairman. It will be made part of the record in full.
Mr. Fiddick. Thank you, sir. Good morning, Mr. Chairman,
members of the committee. Thank you for inviting me before your
committee today. It was almost exactly a year ago that I
appeared before this committee for my confirmation hearing. I
was sworn in as Assistant Secretary for Administration on
November 16 of last year. Although new to the department, I
have become well acquainted with USDA's troubled civil rights
history. The Secretary and I believe that we are making some
progress addressing the circumstances that give rise to
complaints, on the one hand, and in processing the complaints
we receive, on the other.
Nevertheless, we are humbled by the task that remains.
Beginning with our Secretary, we strive to hear the message
that employees and customers are sending us. The Secretary,
those of us here, and administrators of our USDA agencies have
maintained an ongoing dialog with groups and individuals
representing employees, customers and other stakeholders. We
have honestly endeavored to maintain an open door policy.
Last year, we received 1,261 program discrimination
complaints. We are projecting about 650 complaints in fiscal
year 2000. In fact, we will receive fewer program and
employment complaints this year than any year since 1997. Let
me be clear. Acts of discrimination and the complaints they
represent are an anathema and unacceptable to USDA in any
number.
Over the past five years, USDA has closed an average of
about 750 EEO complaints a year. Those are employment
complaints. This is more than all but three other cabinet
agencies. Unfortunately, we have been receiving an average of
about 850 EEO complaints a year for the same period. The time
it takes us to process complaints is inexcusably long. If
justice delayed is justice denied, then we are not doing
justice by our customers and employees. Now here is what we are
doing about it.
Mr. Chairman, as you may remember from my confirmation
hearing, I am new to government. I spent more than 25 years of
my career in private industry, most of that time in top
management. When I arrived at USDA, Secretary Glickman
instructed me to use my business experience to develop an
enduring solution to the operational end of our civil rights
problems. I approached this assignment as I would a business
problem, one where an operating unit was not performing up to
expectations. I recommended and the Secretary approved a plan
to create a new position in the Office of Civil Rights that I
borrowed from the private sector, that of chief operating
officer.
This divides Civil Rights into two distinct areas. One,
complaints processing and administration headed by the COO, a
career senior executive; and two, the policy, regulatory and
legislative functions led by the senior political official. The
latter role is filled by our Civil Rights Director, seated on
my left, Rosalind Gray. In April I named David Winningham, a 28
year USDA employee with an extensive management background, to
the new COO position. He is seated on my right. Both of these
positions report directly to me as Assistant Secretary.
The past five months, we have set about developing a long-
term improvement plan, a zero-based approach to determining the
staff and time resources necessary to fundamentally and
permanently improve our civil rights operations. The plan is a
comprehensive collaborative work that includes efficiency
studies and benchmarking to the best practices of other Federal
agencies.
The draft management plan was delivered in August and to
the extent of our resources the finished plan will be rolled
out in the next 30 days. Secretary Glickman has made it
abundantly clear that in the area of civil rights, the status
quo is simply unacceptable. We are using all of our intellect
and our energies to solve these historic problems in a way that
will survive beyond this administration and that will provide
responsible social justice for USDA employees and the public
today and in the future. Thank you, sir.
[The prepared statement of Mr. Fiddick can be found in the
appendix on page 124.]
The Chairman. Thank you very much, Mr. Fiddick. Mr. Rawls.
STATEMENT OF CHARLES R. RAWLS, GENERAL COUNSEL, USDA,
WASHINGTON, DC
Mr. Rawls. Good morning, Mr. Chairman. I am pleased to be
here this morning. During the 2-years since this committee
recommended my confirmation as general counsel, I have spent a
considerable amount of my time, probably the majority of my
time, working on civil rights issues, helping the Secretary
carry out his mission, his vision to address and improve civil
rights at the department. I certainly share his strong
commitment to civil rights for all employees and program
participants and I believe as the Secretary does that USDA can
and should become the civil rights leader in the Federal
Government. Obviously, from what you have heard this morning,
we have a long way to go.
My office acts as the Secretary's legal staff. We advise
the Secretary and agency personnel on the full range of legal
issues. Our lawyers provide assistance on everything from
procurement to regulatory process, a statutory interpretation,
any number of things. We do represent the Secretary in some
legal proceedings, provide legal opinions for the department,
that sort of thing, but USDA is represented in the Federal
courts, of course, by the Department of Justice.
Of note to the committee, as recommended by the Civil
Rights Action Team, the CRAT report, our office did establish a
special division devoted to Civil Rights. It is staffed with a
small but experienced and talented group of lawyers who are
working very hard on a broad range of legal matters associated
with civil rights. This effort was greatly supported by the
Secretary and, of course, the Congress. Senator Cochran did
provide some additional funding to staff the office which is
very difficult, as this committee knows in this time of tight
discretionary budgets, but I would want all of you to know that
the Civil Rights Division is staffed by individuals with
outstanding records, excellent credentials and impressive
experience.
They are working very hard to see that our civil rights
laws and policies are carried out in an effective and efficient
manner at USDA. We accept our responsibility seriously and with
enthusiasm with respect to civil rights, but our duties are not
easy. We often must raise difficult questions. We take
unpopular positions. We make hard decisions which quite often
put us at odds with someone, either within the department or
outside of USDA, but the requirements of the law, fundamental
elements of fairness and a concern for the due process rights
of all concerned will continue to guide our every action.
Our statement discusses briefly the settlement of the
Pigford class action and I will just touch on that for a
moment. This was a class action brought on behalf of African
American farmers throughout the country. It is indeed an
historic settlement because it offers the promise of resolution
and closure to so many who have felt that they were wronged for
so long.
As a staff member in the House of Representatives during
the 1980's, I became keenly aware of many of the complaints of
discrimination at USDA by African American farmers. These
complaints were deeply felt but difficult to prove. Many of the
complaints were not meaningfully addressed or were certainly
not addressed in a manner that reassured the complainant that
his or her case had really been heard or decided on the merits.
In conjunction with efforts by the Congress to waive the
statute of limitations, it did make a settlement of this case
possible. I believe that on balance the settlement provides a
workable solution to some very difficult problems which had to
be resolved in a legal forum which presents its own
difficulties.
It will provide an opportunity that many felt that they
never had to be fairly heard. Under Track A of the settlement,
some 20,000 individuals will have their claim reviewed by an
objective neutral third party. Far about 18,000 claims have
been adjudicated. 11,000 or a little better than 60 percent
have been successful for the claimants. The Track B
arbitrations handled under this settlement are under the
exclusive jurisdiction of the Department of Justice and they
are handling those cases.
We are now working very hard with the court, the court
appointed monitor, the Department of Justice, the plaintiff
lawyers, to see that the settlement is implemented in a fair,
efficient and timely manner. It has been a challenge, I will
tell you. The number of class members turned out to be much,
much greater than expected. Simply establishing the process and
dealing with the class of this size has been a monumental
effort for everyone.
We will continue to see this as a challenge. We will rise
to meet that challenge and find ways to implement the
settlement in a fair way and in a way that is helpful and fair
to the claimants to the maximum extent possible. Mr. Chairman,
many employees and managers at USDA do share the Secretary's
commitment to civil rights, as I do. Some are still insensitive
to what improving civil rights means and that remains one of
the challenges for the future. Some very good things are
happening as discussed in our statement.
In the last five years, the Farm Service Agency has
increased its lending to African American farmers by 67
percent. It has also worked hard to improve the diversity
composition of its county committees. The department has
focused new attention on small farms, farm workers and the
disabled. Our food safety message, for example, is going out in
four languages now besides English, to 183 African American
newspapers. After much give and take, the Forest Service
working with the Department of Justice and USDA lawyers has
settled a class action brought by a group of women in one of
its regions. A number of agencies are doing much better
outreach and undertaking cooperative efforts with minority
groups including Native Americans.
Does USDA yet have a long way to go with improving civil
rights? The answer is yes. One thing we have learned is that
civil rights, which many times translates into the more easily
understood concepts of good customer service and good employee
relations, requires constant attention and improvement. Mr.
Chairman, I am happy to answer any questions at the appropriate
time.
The Chairman. Thank you very much. Mr. Fiddick, let me just
ask for the benefit of all of us trying to understand the kinds
of cases that are here--we have heard the statistics about the
numbers and in the last panel I suggested some of the problems
may come at the county committee level. Even Mr. Rawls has
suggested that the diversity of county committees has been one
of the objectives, but are there any typical groups of cases?
Are largely these cases employees who have been discharged who
feel that they have been unfairly treated or employees who did
not receive promotions who felt that they had been unfairly
treated? I am just trying to get some idea of who is filing
these hundreds of cases and why there seems to be such an
incidence of this at USDA in comparison with other agencies?
Mr. Fiddick. Well, with your permission, sir, I would like
to ask Ms. Gray to answer that question as the director of our
Office of Civil Rights since early in 1998. She has had a great
deal more experience with that firsthand than I have.
The Chairman. Right.
Ms. Gray. Thank you. On the program side, the majority of
the complaints are filed by minority persons, African American
males, women, some Hispanic, some couples and also couples
because the woman was handling the business at the time. The
complaints usually are against--most of them are against Farm
Service Agency, and what they are about are generally the
denial of an application for an operating loan or for ownership
loan or for the denial of restructuring of financing, when the
person thought he or she were eligible for it, and in the case
of disaster payments, frequently the essence of the complaint
relates to the refusal to provide an application. On the
program side, that would include the majority of our cases.
On the employee side----
The Chairman. Let me just ask here, Ms. Gray, these would
appear to be fairly open and shut cases, would they not, in
terms of fact? Either you got the application or you did not
get the application or you qualified for the loan and their
criteria or you did not? In other words, what we are hearing is
these cases take months, maybe even a year, to resolve, which,
of course, does mean justice denied if it was an emergency loan
or a disaster payment at the time, but maybe I am
mischaracterizing and making too simple what is much more
complex.
Ms. Gray. It is relatively simple, but we do not process in
the short or reasonable period of time quite frankly. There is
no other way to say that. It is not simple because usually
there are two sides of the story and then there is also the
truth, which involves not only doing a field investigation and
talking to the complainant, but it also requires a very
extensive review of the record and the application for the
particular benefit.
Part of our problem in the Office of Civil Rights is that
we do not always have the skills to review the farm application
package to process in a timely fashion so, yes, it is simple,
but it is not quite simple and there are many programs in the
Farm Service Agency, and we are not always quick in our review
and we do try to be careful.
We also have a number of housing complaints and generally
the housing complaints are about the denial of the loan for
purchase of a house or some housing facility. That is the easy
side. The difficult side is certainly the employee side. We
have every range of complaint that you can imagine would happen
in the workplace. We have sexual harassment complaints. We have
certainly racial discrimination, Hispanic, African American,
some Native American. We have complaints about discrimination
and promotions and training. You name it. If it is an aspect of
the employee relationship, there is a complaint about it.
The Chairman. Once again why so much of this at USDA as
opposed to other agencies?
Ms. Gray. Well, the number of complaints at USDA based on
the number of employees is not that much different than many
agencies. USDA is slower in processing its employee complaints
than most agencies. Our agency that has the largest number of
complaints is certainly the Forest Service and the working
situation for the employees in the Forest Service, some of them
in isolated camp, certainly give rise to the complaints. That,
then again, makes it more complicated for us to bring about the
appropriate investigation because some of the employees are in
isolated camps.
I think that for Farm Service where we have county
employees, again, the local culture contributes very heavily to
the workplace and what goes on in a county community is
reflected in the workplace and that gives rise to a number of
complaints. We are because we are so large and spread
throughout the country a department that very much reflects our
customers and to the extent that there is discrimination, and
there is discrimination in these counties and in these
workplaces, we get complaints about them.
The Chairman. Mr. Fiddick, is one possible alleviation of
your problem a group of skilled personnel who are conversant
with complex agricultural programs or those who can go to the
site and say this person is qualified for the loan or this
person is not? In other words, just trying to break through the
clutter of all this, what sort of people do you need, what type
of authority for them to go to the site and get on with it?
Mr. Fiddick. No, I believe you are entirely right, Senator,
that there is a certain skills deficit that has been documented
in the Office of Civil Rights. We did not know exactly how many
persons that represented, whether those persons were incapable
or whether they were simply playing out a position. As a part
of the long-term improvement plan, the management plan that has
been drafted, one essential element of that is to take a skills
inventory of the personnel we have on board currently and what
the organization needs to meet its requirements. We will
conform one to the other in an appropriate way.
The Chairman. Let me mention that Senator Charles Robb of
Virginia has given a statement that I will make a part of the
record. He has been deeply interested in this issue for a long
time, and Senator Robb has asked two questions, one to Mr.
Fiddick and one to Mr. Rawls, that I will submit to you so that
you might give written responses for our record if you would.
He has been in contact, as I understand with both of you or
your offices as recently as July 11, and so I mention that as
background for his inquiry in terms of followup.
[The prepared statement of Senator Robb can be found in the
appendix on page 234.]
The Chairman. Senator Conrad.
Senator Conrad. Thank you, Mr. Chairman. Thank the
witnesses as well. Mr. Fiddick, we certainly have high regard
for you and your background and it sounds to me as though you
have got a plan to improve things. I have certainly heard very
good things about Mr. Winningham and your background and the
level of intensity you bring to trying to fix these problems.
Mr. Fiddick. Thank you, sir.
Senator Conrad. Can you tell us what you see as the major
hurdles to be jumped here? You know as I was saying earlier,
every time I have had a management problem, and this sounds to
me like a management problem, I have generally found it is
people. I have got the wrong people in the wrong slots. It does
not mean they are not good people. Just sometimes you got the
wrong people in the wrong slots. Sometimes you got people who
just do not have the right attitude. They are not can-do
people. You know they got a million reasons why something
cannot be done.
I remember very well one time I had a serious problem in a
major part of my department and after listening for about eight
months to all the reasons things could not be done, I realized
I just had a guy with the wrong attitude. I got him out of
there and I got somebody with the right attitude and it is
amazing how all the problems got cleaned up very quickly.
As you diagnose it, Mr. Fiddick, what is the primary
problem or problems and how soon can they be resolved? Is there
something that we can do that would help you and then I would
have the same question for Mr. Winningham?
Mr. Fiddick. I agree with your premise that there are few
things in business or government that cannot be solved with the
right management put in the right position empowered to act. I
agree to some degree with what the previous witness from the
GAO said that the problems in the Civil Rights Office have been
systems and process and people and more or less all of the
above. The hurdle that we have, the height of the hurdle is all
of the work that needs to be done. That is the bad news. The
good news is that it can be done with the right management in
the right place and I believe that we have begun to make those
strides. You fix the problem a day at a time and a hire at a
time and the new structure we have in the Civil Rights Office
with Rosalind handling policy and regulatory and David handling
operations is a good one.
We will bring on board before the end of the month a Deputy
Director for Employment, which is an important position in our
operation, and the person that we have hired is a career civil
rights professional in that job. As the IG and the GAO has
correctly reported, there has been a tremendous amount of
turnover in this office since it was reconstituted in 1997. I
do not know that anyone is to blame for that, but it certainly
has been to the detriment of the efficiency of the office and
the customers of the office. We can begin to fix that with each
new hire and are.
Senator Conrad. Mr. Winningham, what would be your response
to that?
Mr. Winningham. My response is that the Office of Civil
Rights came together very fast under a great number of
adversities. The staff has never been pulled together in a
coherent manner. The skills are lacking in certain areas such
as programs which when you are looking at farm loan programs or
rural housing or the various programs which complaints are
filed against, having the rights skills and knowledge to be
able to evaluate the issues that are associated with those
complaints, we just do not have that.
We have a system where the files are not well put together
and so we all have to look at our processes, we have to look at
our skills mix, we have to look at the levels of authority and
we have to look at the amount of resources. We also did a time
study to take a look at how long it takes for each process of
the complaint process to perform and we found that we are
lacking in several areas. It is a comprehensive amount of
things that must be done if we are to get out of this and the
one that is big on top of all of this is the inventory of
complaints that we have. My view is that we have to put
together a project that would eliminate the inventory of
complaints that we have right now as well as the new complaints
coming through the system during that period. That when we get
through it, we would be even. In my mind, that is significant
if we are ever going to get our arms around this.
Senator Conrad. You know it sounds to me as if you have got
a backlog here that has got to be addressed and obviously you
got the program side, you got the employee side. Is part of the
solution here using alternative dispute resolution, to use
mediation to try to get through these cases more quickly?
Mr. Winningham. That is not going to be the solution for
what we have except by the time it gets to us, we are under the
180 day clock that is ticking where we have to take it through
the due process. ADR is best before you ever get to that point.
There are cases when you are getting into the resolution
initiative that would lend themselves to ADR while it is in the
formal complaint process.
Senator Conrad. Can I ask Mr. Rawls just a question? That
is you have got now class action suit that involved the black
farmers, the Pigford case. You have got resolution there. You
have got the Keepseagle case that involves Native Americans.
Are these cases largely the same kind of cases in your view?
Are they different kinds of cases? Are you treating them the
same or are you treating them differently? If you are treating
them differently, why?
Mr. Rawls. Senator, I am going to disappoint you and give
you a very bureaucratic answer, but it is really the only one I
can give you, which is that Keepseagle is in active litigation
being handled by the Department of Justice. You know motions
have been filed. I really cannot discuss that case beyond that.
I would offer to talk with the Department of Justice and visit
with you or your staff about it, but I really do not think it
is appropriate to try to make comparisons or otherwise talk
about the case in this forum.
Senator Conrad. I would like the opportunity to talk to you
about it and Justice Department as well on those fundamental
questions that I have asked here. How are they viewed? Are they
viewed as largely similar or in some way different? I can just
tell you that within the Native American community, there is a
perception at least that there is differential treatment going
on here and that is a great concern within the Native American
community. I thank the chairman.
The Chairman. Thank you, Senator Conrad. Senator Lincoln.
Senator Lincoln. Thank you, Mr. Chairman, certainly for
holding this hearing which is very important to my constituents
in Arkansas and, if I may, I would just like to make a few
comments before I ask questions since I was tardy, and I
apologize for that.
The Chairman. Please do.
STATEMENT OF HON. BLANCHE LINCOLN, A U.S. SENATOR FROM ARKANSAS
Senator Lincoln. As the youngest woman in the history of
our country to serve in the U.S. Senate, I certainly understand
how important it is that the principles of equality and
opportunity apply to all Americans. I found myself in the same
position that many of the complainants have in your cases.
I feel that Congress definitely has a duty to ensure that
discrimination does not prevent anyone from realizing their
full potential or their dream and I believe that is why we are
here today. I also believe that government assistance should be
equally available to all citizens of this country and it is
unbelievably disturbing to me that we even have a reason to
hold this hearing, but I appreciate the previous panel of
witnesses and certainly your willingness to be here.
There are certainly several allegations, as Senator Conrad
brings up other issues and other cases, problems that we all be
discussing today and in further discussions, but there is one
in particular, the Pigford v. Glickman case, the class action
suit, otherwise known as the black farmers case, that has
caused great frustration to a number of my constituents in
Arkansas. In 1998, I contacted by letter Secretary Glickman and
President Clinton and the administration to handle this case as
expeditiously and as fairly as possible.
I could certainly foresee the problems that were brewing. I
was very delighted when Ms. Gray came to my office to visit
with me during this year's session to talk about some of the
frustrations that had escalated in Arkansas and the concerns
that we had. However, I am extremely concerned about the claims
approval process that was established by the consent decree
that was signed by USDA and the lawyers representing the black
farmers. I certainly recognize that some of that is out of your
hands at this point. I also find that to be a bureaucratic
answer as well in many ways.
I understand that that decree the Department of Justice is
the official government entity presiding over that case. They
have also been required to contract all claims reviews out to
private organizations, which I have had a difficult time in
understanding and in getting in contact with. The private
entity reviews data that is collected by USDA to determine
whether a claim is potentially valid. These private entities
have control over that. Once a black farmer's claim has been
designated as potentially valid, it is then referred to a
second private entity which approves or dismisses this claim. I
am assuming that I am representing the process correctly.
I have kind of filtered through as much of it as I can. The
system was immediately overwhelmed by an unexpected number of
claims, as you all have mentioned earlier. Attorneys for the
black farmers had estimated that around 400 claims would be
filed and instead more than 20,000 black farmers have logged
discrimination claims with the court established claims
evaluator. As a result, I am hearing that claims have been
delayed and often handled without proper consideration, a lot
of what everyone else in this room has been hearing and
certainly you have as well.
I have heard from many farmers who feel their valid claims
have been denied while others have been approved even though
the two complainants' histories are very similar, side by side
individuals living next door to one another, who have almost
identical situations.
The court appointed monitor in this case, Randi Roth,
opened an office in Memphis, Tennessee, which we were pleased
because it would be in close proximity to the many cases that
we had in Arkansas and to allow easier access to the black
farmers. Yet I am still receiving complaints that many farmers
cannot even get someone with authority over their claims to
return their phone calls. To me that is inexcusable. Arkansas
farmers often refer to USDA as a bureaucrat's endless
bureaucracy and that is why it is so disheartening for us to
get a bureaucratic answer. I certainly look forward to working
with you all, but I do have a great deal of questions in terms
of how my constituents are being handled.
Perhaps you can give me some idea or indication the
approved number of 1,152 claims in this particular case, in the
Track A claims, how many of those have been paid? I am also
getting the reaction that they are getting a judgment but they
are not getting paid. In your opinion, what can be done to
expedite the review process for these claims approvals or their
dismissals? Do you have recommendations for those independent
entities that are out there handling this? From your management
standpoint, is there a better way that the private entities
could be handling this and a better way for you all to work
with them?
Mr. Fiddick. I think that General Counsel Rawls probably
can best field this question.
Mr. Rawls. Well, I will say a few things. Pieces of the
process are working quite well, but I would reiterate what I
said earlier, which you alluded to, with 20,000 claims this has
been a monumental undertaking. Specifically, to some of your
questions, the third party adjudications, the review of the
actual claim on its merits, under the settlement, was a very
important aspect of the settlement, to move that out of the
government, out of the department.
Senator Lincoln. Right.
Mr. Rawls. Hopefully instill some confidence in the
claimants that, as I said earlier, they got heard one time.
Maybe they do not prevail, but they got heard. Those
adjudications, while they took quite awhile to set up this
whole system, they have gone pretty well. In fact, they have
done about 18,000 of those adjudications. Now where some of
the----
Senator Lincoln. How much of the approved ones have been
paid?
Mr. Rawls. Well, that is where I am getting to. That is
where some of the frustration is. We have had about 11,000
cases approved. 7,000 of those have actually been paid. There
is a group of claims that are in the process that are in the
queue at the Department of Justice to be paid from the judgment
fund.
Senator Lincoln. A little over half. Because you are almost
at 1,200 there in terms of the approved. These are just in
Arkansas for me, my numbers.
Mr. Rawls. OK. Obviously I do not have the Arkansas numbers
in front of me, but class wide, 11,000 have been approved and
7,000 have been paid.
Senator Lincoln. OK. I am sorry. The nationwide numbers are
so close to Arkansas, I thought you were referring directly to
Arkansas because ours are 1,100. Thank you.
Mr. Rawls. Right. I can see why that is confusing. The
payment system itself took a while to set up. The judgment fund
apparently normally deals with very large, a small number of
very large payments. This is a very large number of payments
and frankly they were overwhelmed at the beginning of this, but
that seems to be getting straightened out and those payments
are being made now within 90 days.
Senator Lincoln. Within 90 days?
Mr. Rawls. Yes.
Senator Lincoln. The backlog, do you anticipate within 90
days that backlog would be taken care of?
Mr. Rawls. Well----
[Laughter.]
Mr. Rawls. I cannot say that. What I am saying is that they
are endeavoring to make 90 days from the date of the
adjudication.
Senator Lincoln. You feel confident that the system that is
now in place is equipped to deal with both the backlog and
those that are being adjudicated at this point?
Mr. Rawls. I do. I believe the system is working. I am
frustrated that----
Senator Lincoln. Can I write my constituents and say in 90
days they can see it?
Mr. Rawls. From the date of their decision, yes.
Senator Lincoln. Mr. Chairman, may I ask one last question?
Ms. Gray, you made the point in terms of percentages. Do we
know where the agency, the Department of Agriculture ranks in
terms of percentage of minorities in that agency?
Ms. Gray. We certainly have the statistics for each of the
protected classes. We would have statistics for African
Americans, for Hispanics, and I would say that for most
categories, the department is pretty close to--for African
Americans, it is pretty close to if not slightly above civilian
labor work force--for African Americans--below on Hispanic,
below on Native Americans, and below on Asian Americans,
slightly above on women in terms of the civilian labor force
numbers, which is the way we track that.
Senator Lincoln. You did make the comment that in terms of
the number of cases that you had that it was not outrageous in
terms of the percentage of minorities----
Ms. Gray. Right.
Senator Lincoln [continuing]. That you have in the agency.
Ms. Gray. The employment complaints themselves----
Senator Lincoln. Right.
Ms. Gray [continuing]. We are about fourth or fifth in
terms of the percentages. We are about at one percent and there
are about four or five agencies that are below us and the rest
are certainly above that, but about one percent of the total
employee population.
Senator Lincoln. Of USDA?
Ms. Gray. Of USDA.
Senator Lincoln. OK. Thank you. Thank you, Mr. Chairman. I
apologize for running over.
The Chairman. Well, thank you very much, Senator Lincoln.
Thank you for the historical note that you are the youngest
woman elected to the Senate. That is an important point.
I would like to recognize now the distinguished ranking
member of our committee, Senator Harkin of Iowa. He has been
deeply interested in this issue and in a bipartisan way we have
held these hearings, and as I pointed out almost annually,
trying to come to some benchmarks and some solutions. I would
like to recognize the senator for his opening comment or
questions he may have of the witnesses.
STATEMENT OF HON. TOM HARKIN, A U.S. SENATOR FROM IOWA, RANKING
MEMBER, COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY.
Senator Harkin. Thank you very much, Mr. Chairman. I
apologize for being late and I hope none of you take that as
any indication of a lack of interest in this issue by me. As
our chairman said, he and I both have had a long-standing not
only interest but working bipartisanly to try to get this
department moved and changed around so that we can not only
handle the cases but try to find out why we got so many of
them. Mr. Chairman, I thank you for holding this important
hearing.
For far too long a positive record at USDA has been marred
by a deep-rooted and far-reaching tolerance of racism, hostile
work environments and discriminatory treatment of minority
farmers. I do want to give credit to this administration and
particularly to Secretary Glickman for the action he has taken.
In December 1996, he appointed the Civil Rights Action Team. In
March 1997, the Office of Civil Rights was created to address
the employment and program complaints at USDA. He has taken
some positive steps.
The administration also, as we know, reached a settlement
in the class action suit by African American farmers concerning
discrimination in lending and benefit programs. There has been
some increased lending to minority farmers and a higher
percentage of minority employees at USDA, all good indications
of moving in the right direction.
That is the good news--despite those improvements, USDA's
Inspector General and GAO have found continuing problems in the
operation of USDA's Office of Civil Rights and even more
troubling a failure to address the IG and GAO recommendations.
The IG noted that no significant changes in processing
complaints had been made since the last review. I do not know
if you have covered that in my absence or not, but I would like
to ask you about that.
I believe this is unacceptable, totally unacceptable. It is
essential that USDA improve the process of handling complaints
as called for by both the USDA Inspector General and the GAO.
Even beyond that, what I just said, USDA must get to the root
of the problem. The message has to come through loud and clear
at USDA discrimination is unacceptable in any form, place or
time. Now what I keep hearing is that the number of complaints
at USDA completely overwhelms the system for investigating
them. The Secretary has called for more outside help to come in
to handle the complaints.
The question ought to be why are you getting so many
complaints in the first place, not do we need to hire more
people to process the complaints? What is the root of the
problem, my friends? The answer is not just to hire more people
to process more complaints. Why are you getting so many? That
is the root of the problem and I do not see you getting to
that. I do not see USDA getting to the root of that problem.
The bad actors have to be held accountable at the root of
this thing, not just at the end of it, but at the root of it.
Again, I do not know. I look in vain. I do not know. Can you
fire anybody? Does anybody ever get fired at the Department of
Agriculture?
[Laughter and applause.]
Senator Harkin. You know? This goes on and on and on and
on. You get more and more complaints and the system sort of
bogs down. Then when the IG and the GAO make their
recommendations, we come back a year or so later and we find
out that no process changes have been made. That is what they
say. Now maybe you have got a different story, but that is what
they are telling me.
Now, last--I do not want to lay all the blame on the
Department of Agriculture--Congress must also do its part. Mr.
Chairman, I believe we can start by fully funding the Outreach
for Socially Disadvantaged Farmers Program, which provides
grants to eligible community-based organizations to provide
education and other agriculturally related services to socially
disadvantaged farmers and ranchers. Congress authorized $10
million for this program in the 1990 farm bill, but has refused
year after year to fund the administration's request for that
amount.
For 2001, both the House and Senate have approved only $3
million for this valuable program. It should be fully funded
before this session of Congress ends and we should fund it
through the Ag appropriations bill. It is not in your
bailiwick, Mr. Chairman. It is in the appropriations bill, but
it ought to be fully funded. It ought to be funded at the $10
million level. It is called the Outreach for Socially
Disadvantaged Farmers Program. Congress has got to do its part
on this also. Mr. Chairman, thank you again for having this
very vitally important hearing.
[The prepared statement of Senator Harkin can be found in
the appendix on page 64.]
Again, if I had one question I would ask of Mr. Fiddick, I
would just ask the question that I just alluded to and that is
the IG office and the GAO recommendations have noted that no
significant changes in processing complaints have been made
since the last review. Now have you already addressed before I
got here?
Mr. Fiddick. I hope we have.
Senator Harkin. Well, try it again.
[Laughter and applause.]
Mr. Fiddick. I will be happy to. The IG's field work ended
coincident with the end of fiscal year 1999. All of the figures
that you saw in the report were more or less current as of
September 30 of last year. Since that time, well, I arrived on
the scene in November of last year, and since that time we have
made some organizational changes in the office of Civil Rights.
We do that, we understand, at our peril because there have been
a number of organizational changes, persistent organizational
changes in that office, that have not worked to the benefit of
the office. We think that we have arrived at a solution in this
case that will work because we have divided the policy
functions from the operational functions, invested the
operational functions in a career executive, which has been the
exception and not the rule, and will be particularly important
in the coming months as one administration goes out and another
administration goes in.
If I could give you one individual answer to that question
that would give you some encouragement going forward, it is the
effect of instituting and inserting a career officer at a high
level in the process at this particular time.
Senator Harkin. That person is there?
Mr. Fiddick. David Winningham.
Senator Harkin. That is you, Mr. Winningham, chief
operating officer. How long have you been on board?
Mr. Winningham. I have been over there since April.
Senator Harkin. Where did you come from?
Mr. Winningham. I came from FSA.
[Laughter.]
Senator Harkin. Well, I do not know what that outburst was
about.
Mr. Winningham. I am sorry. I apologize to you. Farm
Service Agency. I was civil rights director in the Farm Service
Agency since 1997.
Senator Harkin. Since 1997?
Mr. Winningham. Right.
Senator Harkin. Are you saying to me that the fact that
there has been no significant changes in processing complaints,
that only goes back to last September? That is what you are
telling me. We are looking at less than a year. Is that what
you are saying to me?
Ms. Gray. Let us take it back----
Senator Harkin. When was the last review?
Mr. Fiddick. In March of this year.
Ms. Gray. The last review in March was the employment
review. The reviews actually started much earlier, that going
back to 1996 when they identified the backlog of complaints,
which had the 1,088 cases for program, and, in fact, all of
those cases have been resolved except for three. In September
1998, Secretary Glickman convened an Early Resolution Task
Force which was able to resolve all but 35 of those cases so
that was an initiative that was conducted. It certainly was
recommended by the IG and it certainly was part of one of the
management decisions that the IG has accepted.
There have been through the various phases of
investigations for program complaints--keeping in mind that the
first IG investigation on employment only happened last year--
certainly the resolution of more than 50 percent of the
management decisions that they have made. You certainly will be
getting copies of those for your record, I am sure. I do not
think it is accurate. I have a letter from the IG's office as
of August 31, which certainly records by number the
recommendations and the management decisions that have been
reached as a result of the investigations into the Civil Rights
Office. To say that nothing has been done is not accurate.
On the employment investigation that was just completed
this spring, we have reached management decision on more than
half of the 21 recommendations in that report and the
recommendations that have not been accepted, it is because the
things were put on hold as the department completed the
management plan. The management plan will certainly change the
responses that were submitted. To say that there has been no
progress or to say that there has not been agreement with the
Office of Inspector General on the recommendations that they
made is not correct. We will certainly be happy to submit the
letters from that office to you for your consideration.
Senator Harkin. Thank you. I may have some followup later,
Mr. Chairman, but I see my time has run out.
The Chairman. Thank you very much, Senator Harkin. We
appreciate very much your responses today. Obviously, you have
heard the Inspector General and GAO to begin with. You have
attempted to give at least as much optimism to the situation as
you could, but clearly the underlying problems--Senator Harkin
has mentioned them again--as we talked about them earlier, the
high number of these cases, the reason for this number of
disputes, is still not clear to any of us, perhaps not to you.
Maybe it is something that you will never have an answer to.
You do the best you can to institute procedures so that justice
occurs in a fairly short period of time.
We will continue to be in touch with you. We would like to
have, Ms. Gray, the comments that you just made or at least the
findings from the attempt to meet with the OIG recommendations
or the reasons why these have not been instituted. Certainly
his charges were very severe, namely the 119 recommendations
and no progress. You are saying, in essence, management plans
are about to be instituted incorporating some of these or you
put some things on hold institutionally. This may be
understandable, but, on the other hand, what appears to be the
case is not much movement even given the critiques that seem to
come annually and that is disturbing to most of us in this
panel. Yes.
Ms. Gray. It is disturbing, but we have resolved thousands
of cases and the fact of the matter is that a thousand new ones
have been filed.
The Chairman. This begs the question of why?
Ms. Gray. Why? Because there is some discrimination and
certainly the perception of discrimination at USDA. That is the
situation. To address that, the Secretary certainly made
several new initiatives in June. One was the accountability
policy, to hold employees and managers responsible for
discrimination, not only where there was an official finding of
discrimination but also where there was a settlement of a case,
because there was the perception that some managers were
settling cases to avoid being disciplined. We have set up
procedures to track the settlements as well as the findings and
the settlement agreements are automatically forwarded to the
Office of Personnel for them to take appropriate disciplinary
action.
Senator Harkin. Mr. Chairman, if I might just ask--I do not
know the answer to this question. How does this number of
complaints at USDA, civil rights complaints, compare with
complaints say at HUD or at VA or at HHS? I would to know how
this--is there any kind of comparison on this?
Mr. Fiddick. There is as a matter of fact, Senator, and I
believe that we can find that information for you. The source
is the Equal Employment Opportunity Commission Report in 1998,
which tracks employment complaints which is in their
jurisdiction.
Senator Harkin. Employment complaints.
Mr. Fiddick. In that year, Agriculture had a number of
complaints equal to 1.0 percent of its total work force and I
have how the other cabinet offices ranked. Those which have a
rate that would be more than Agriculture are Labor, Education,
HUD and Transportation. Those that have a rate less than
Agriculture would be all the rest. The 1-percent incidence----
Senator Harkin. Excuse me. What did you say?
Senator Lincoln. There is five that had more.
Mr. Fiddick. There are four that had more.
Senator Harkin. Four had more.
Mr. Fiddick. Agriculture would rank five of the 14 other
cabinet agencies.
Senator Harkin. This is employment discrimination.
Mr. Fiddick. That is correct.
Senator Harkin. That is internally. We are talking about
program.
Mr. Fiddick. Right.
Senator Harkin. These are not just employment cases you are
getting. These are program complaints; right?
Ms. Gray. That is correct.
Mr. Fiddick. Yes.
Senator Harkin. That is what I am interested in. Let us
talk about the apples and apples. I am saying how does this
compare? HUD has programs. HHS has programs that reach out to
communities. What kind of complaints are they getting on civil
rights complaints on their program applications and their
program outreach programs compared to USDA, not employment, not
employment?
Mr. Fiddick. We do not have those figures.
Senator Harkin. I do not either.
Mr. Fiddick. We will try to find them for you.
Senator Harkin. I do not either. That is why I asked you.
Mr. Fiddick. It is much easier with EEOC because you have a
central reporting agency. I would say, though, that there are
many opportunities for USDA to discriminate because we have
millions of transactions with customers. Our current loan
portfolio is 214,000 farm loans. We originated 38,000 farm
loans last year. We had 60,000 rural housing transactions. The
denominator in the equation we are talking about is very large
both for employment and for program activity.
Senator Harkin. Well, I got to believe under HUD with all
the Section 8 vouchers they have got and things out there, they
are going to have about as many as you. I would just off the
top of my head think it.
Mr. Fiddick. We will look into it.
The Chairman. Just adding to that, Senator Harkin, it was
also mentioned that the Forest Service has a good number of
complaints and this, of course, is totally outside the loan
business, an interesting part, and shows the far-flung aspect
of USDA's activities. Well, we thank you very much for coming.
Senator Harkin. Thank you.
The Chairman. We would like to recognize now a panel
composed of Mr. John Boyd, President of the National Black
Farmers Association; Mr. John Zippert, Director of Operations,
Federation of Southern Cooperatives, and chairman of the board
of the Rural Coalition; Mr. Lawrence Lucas, USDA Coalition of
Minority Employees; Mr. Harold Connor, Upper Marlboro,
Maryland; Ms. Juanita Carranza, Lambert, Montana; and Mr.
Alexander Pires, Conlon, Frantz, Phelan & Pires, Washington, DC
Gentlemen, we thank you for coming this morning. I will ask
each one of you, as we have the other panelists, to try to
summarize your comments in a 5-minute period, more or less, and
then that will offer opportunities for senators to engage in
questions and colloquy with you. I will ask you to testify in
the order that I introduced you and that, first of all, would
be Mr. Boyd.
STATEMENT OF JOHN BOYD, PRESIDENT, NATIONAL BLACK FARMERS
ASSOCIATION, BASKERVILLE, VIRGINIA
Mr. Boyd. Good morning, Mr. Chairman. I would like to thank
you for hosting this hearing, this long overdue hearing, I
might add, and also I would like to thank Senator Harkin and my
good friend, Senator Charles Robb from Virginia, who worked
long and hard on this issue, who introduced the statute of
limitations waiver for African American farmers.
Again, my name is John Boyd, president and founder of the
National Black Farmers Association, and it gives me good
pleasure to be here this morning to talk to you for a few
minutes about the problems that have existed for decades. It is
our belief that our actions taken or not taken by the U.S.
Government over the past century have systemically deteriorated
rural America and African American farmers and other socially
disadvantaged farmers across the country.
At critical times when our farmers needed government the
most, they failed to come through for them. For that reason, I
wish to thank this committee for taking a look at this issue
this morning and I hope that my statements here today will be
beneficial to everyone here as it relates to the plight of the
black farmers.
The National Black Farmers Association has been working
hard and long on the issue of black farmers from protesting,
using our historic mule struggle, to gain the attention of the
media over this issue, and again I would like to acknowledge
the Clinton administration for at least taking a look at this
issue and meeting with us on December 17, 1997, so we would
like to thank the Clinton administration. To me, USDA is still
known as the last plantation. I have personally named it an
overflowing cesspool of filth that needs pumping and cleaning
and disinfecting.
In the early 1900's, there were more than one million black
farmers in this country. Today that number has declined to less
than 18,000 black farmers. The National Black Farmers
Association believes that must of this decline is directly
attributed to the actions and inactions of the United States
Department of Agriculture officials.
As I listened to the Inspector General this morning, it
turned my stomach to hear our very own Inspector General admit
to such egregious acts, numbers and boxes of unprocessed files
that lingered in the Office of Civil Rights for decades. I
remind you of the legal example such as loaded handguns in the
United States Department of Agriculture office where African
American farmers came in and was greeted by a loaded handgun,
only to no prevail when no one was fired for this egregious
act.
These are some things that we hope that this committee will
take a strong look at and deal with, Mr. Chairman. In an
atmosphere in many parts of the country where USDA officials
gave millions of dollars in gifts to their friends and farming
families while thousands of African American farmers was left
without help, seven years ago, I personally faced some
discriminatory acts by the United States Department of
Agriculture. As I sat in my farm house by candlelight during
the dead of winter, it became very clear to me. My lights had
been turned off. Federal officers were knocking at my door
threatening to confiscate my equipment. Foreclosure signs were
being posted on my property. Stress had destroyed my family.
There was no money. All of this at no fault of my own.
Through these type of actions and others has wiped out
thousands of black farmers across this country, and we have to
do something to deal with this kind of issues. I realize that I
was not alone. Many other black farmers had lost their farms
through egregious discrimination acts, mostly by the United
States Department of Agriculture, and this has been the worst
nightmare for a lot of people across this country.
As these acts of discrimination continue with the United
States Department of Agriculture, our government distances
itself from cores and values on which this country had been
founded. During the Reagan administration, America's top
decisionmakers dismantled the Office of Civil Rights within the
United States Department of Agriculture. This resulted in
thousands of discrimination claims simply being thrown away or
stored in boxes standing as high as ten cubic square feet per
the Civil Rights Action Team report that was listed in 1997.
Black and other economic disadvantaged farmers have been
and continue to be denied access through financial and
programmatic resources readily available to others throughout
our society. Mr. Chairman, I report to you today that our
American dream is still being denied. Too many African American
and socially disadvantaged farmers have just not received
justice and it is still just a dream for them.
One of our first leaders to recognize this problem was
Congresswoman Maxine Waters on the House side and she worked
long and hard along with other Members of Congress to address
this issue. With thousands and thousands of farmers yet to be
compensated from this settlement, this appears to be an example
of a hollow promise and again America failing black Americans
like it did in the 1800's promising the 40 acres and a mule to
those who had been wronged.
Again we are here today to say that we have to make that
promise fulfilled. The class action did not provide any
injunctive relief--a court appointed monitor who simply does
not have the power to overturn decisions for farmers who
supposedly prevailed in the class action lawsuit, lawyers who
refuse to continue to represent them because they have not been
paid either through the consent decree. Mr. Chairman, we have
some serious problems with the class action lawsuit. There is a
number--I see my time has run out--but there is a number of
recommendations that I would like to submit for the record and
I hope that this committee will take a long, hard look at those
issues.
I would just like to close by talking about the county
committee system. This county committee system, Mr. Chairman,
makes up a racial makeup of 8,000 white males, 28 blacks and
two females, which promotes racial disparity, sexism, and there
has to be something--there is a law within the department that
they can terminate people that are on a county committee. It is
just simply not being done. Again I hope that this committee
will take a long, hard look at a issue that has plagued this
country for decades. Let this not be another listening session,
but let this be a hearing that will be a long and fruitful
harvest. Thank you very much.
The Chairman. Thank you very much, Mr. Boyd.
[The prepared statement of Mr. Boyd can be found in the
appendix on page 138.]
The Chairman. Mr. Zippert.
STATEMENT OF JOHN ZIPPERT, DIRECTOR OF OPERATIONS, FEDERATION
OF SOUTHERN COOPERATIVES, AND
CHAIRMAN OF THE BOARD, THE RURAL COALITION, EPES, ALABAMA
Mr. Zippert. Yes. My name is John Zippert and I am the
Director of Program Operations for the Federation of Southern
Cooperatives in Epes, Alabama, and I am also the chair of the
board of the Rural Coalition, which is a national organization
of community-based groups dealing with these issues, including
the Inter-Tribal Agriculture Council, Hmong farmers in
California, Latino farmers across the Southwest. I am here in
both capacities and personally I have been working on this
problem for 35 years, starting in 1965 as a worker/volunteer
worker for the Congress of Racial Equality in St. Landry
Parish, Louisiana, where I participated with the farmers there
in an ASCS election and these were farmers who had not yet
voted in a real election because of the passage of the 1965
Civil Rights Act.
I have a long history of working on this problem and it is
a serious problem; and it is a problem, as you have heard this
morning, that USDA has not fully addressed and we submitted 40
pages of testimony. We have been working on this for years. We
will submit more. I am going to talk about the Pigford part for
the end, but let me say that we are very concerned that top
managers and people within the agencies of USDA are not being
held accountable for the behavior of their subordinates.
There is a people problem there. As Senator Harkin asked,
they have great difficulty in firing people who want to do the
wrong thing; they appear to be more successful in getting rid
of people and reorganizing people who want to do the right
thing, and this is something that Congress ought to take
another closer look at. I also support your statement and we
have been strong supporters of the Section 2501 program of
outreach for the socially disadvantaged farmers. Really if you
look at the $10 million that should have gone into that
problem, we have a deficit now since 1990 of 60 or $70 million
that was never appropriated for a program that could do
something about these problems and could reach out to people
and give them information about all the programs of USDA, not
just the loan program, the forestry programs, the crop
insurance programs, the export programs and so on.
Let me also say on a very particular thing that we have
been working on for years which is CRAT Recommendation No. 28.
This was to create a registry of minority farmers so we could
tell where they were and make sure assistance was given to them
so that the disastrous reduction and loss of black-owned land
would not continue. Here was a simple recommendation. FSA/USDA
agencies agreed this would be done. We went through all kind of
hurdles with OMB. I have a letter from Mr. Fiddick six months
ago saying this is his top priority and yet today there still
is no registry and there seems to be a dispute between the
agencies of USDA on what funds can be used to actually
implement and do this program. Something is wrong. Even the
best intentions go awry and we have heard of records and so on
here. They just do not seem to really put their mind on things
and get it together and carry it out.
Now let me say about Pigford v. Glickman, and I had to tear
myself away from my office. We have lines of farmers at all of
the Federation's offices in the South today waiting to make
sure that they can be included because there is a September 15
deadline for late filing. Because there was not adequate
outreach and information at the beginning of this case, that
not everybody who should have been in it knew about it and is
in it. On page eight, nine and ten of the statement that we
have given, we have some detailed concerns about this suit, and
of the 20,488 Track A people--this is as of August 15--there
may be a few more now--18,000 have been adjudicated. 10,931
have been approved, but only 6,600 of them have been paid, 60
percent. Here we are a year and a half since the settlement,
two farming seasons and only a third of the people in the class
have actually received a check and been paid.
Now of some of the people who have been determined by third
party people that they were discriminated against, the
government intends to ask the monitor to reconsider some of
those people and I really think Congress ought to ask the
Department of Justice to drop those reconsiderations. That if a
third party found discrimination, all the things you have heard
here, the government ought not challenge those third-party
decisions.
In addition, we have 7,000 people out there who are seeking
our help and the help of some of the other people you will hear
from on this panel to make a reconsideration of their case, and
some thought ought to be given that everybody who is in this
class ought to get this settlement and we are going to work
hard to see that those 7,000 people get their reconsideration.
Now, there is a lot that can be said here. One other thing
is that although you have heard that third parties have dealt
with this, FSA has had a flying task force of people to get
evidence and information to challenge people's complaints of
discrimination. They have had time and people to do that, but
they have not had the people to send people a check. I have one
farmer--I am going to finish with this. I have one farmer who
gave me a letter which he received after waiting for his check
for 90 days in which he is written by the settlement people
that it is going to take longer because they have had too many
people to participate in the case. I just feel if we can have a
flying task force of FSA to find reason not to pay people, we
ought to have a flying task force or somebody to help pay the
people who have been judged to have been discriminated against
and the farmer told me that this was the strangest, and he said
that this letter--he described this letter as chicken
excrement. He said this was the most chicken excrement letter
he had ever got from the government.
[Laughter.]
Senator Harkin. Do we have a copy of that? Did you put that
in here?
Mr. Zippert. I will put it in. I want to probably cross the
person's name, but I will put it in.
The Chairman. Thank you very much, Mr. Zippert.
[The prepared statement of Mr. Zippert can be found in the
appendix on page 141.]
The Chairman. Mr. Lucas.
STATEMENT OF LAWRENCE LUCAS, USDA COALITION OF MINORITY
EMPLOYEES, WASHINGTON, DC
Mr. Lucas. Thank you, Mr. Chair, and this honorable
committee for taking the time out of your busy schedule to deal
with the issue of not only the farmer but for the first time
one of the things that has been missing in this whole dialog
about the Department of Agriculture, which only a few of the
media have addressed, and that is the problem of the racism and
sexism and the hostile work environment that is not only
perpetrated against farmers but against its own employees.
I would like to enter into the record my prepared statement
as well as some attachments in support of that.
The Chairman. It will be published in full as will all of
the statements of the witnesses.
Mr. Lucas. Thank you. This organization, the Coalition of
Minority Employees, started in 1994, but it does not represent
just the concerns of African Americans. It just so happened
that its president is black, but we represent the concerns of
Asians, Hispanics, people of color, persons of disability, and
all those people that fall under Title VI as well as Title VII.
I would also like to say that the Honorable Chuck Robb and
Albert Wynn have been in the forefront of not only dealing with
the issues of the discrimination and the dysfunctional civil
rights system in USDA, but he also deals with the systemic and
the in-depth problem and used Mr. Harkin's aides to get to the
breadth of the problem as it relates to employees.
You are not going to be able, as I said at the fairness
hearing on behalf of the black farmers, you are not going to
settle the problem of the U.S. Department of Agriculture unless
you do what you have said and many of your colleagues--I think
Mr. Harkin said it--that the one problem that they have not
done, they have not fired people and not held those managers
accountable for all the pain and suffering that is inflicted
not only on employees but on customers throughout this United
States.
In the Forest Service, in Montana, for example, we have
examples, and the Forest Service will tell you that there was
not a woman thrown down the steps. They will tell you that
there was not a woman who lost her fetus because of hostile
work environment. They will also tell you that there are no
acts of nooses being held and portrayed on government
buildings. They will say that the ``N'' word is not being used.
They will say they treat all people of all religions, Jews,
Asians, Arabs fairly.
They do not deal with those issues fairly on a broad base
at USDA. The problem, Mr. Chair, is the problem that the
Department of Agriculture and their recommendations that I
heard even from the Office of General Counsel laying the
problem on only on civil rights employees is wrong. The initial
complaint that comes from discrimination does not come from the
employee in the Civil Rights office. It is because of that
culture, all those isms, the bigotry that is perpetrated at the
ground level. It is wrong for OIG and anyone else who comes to
you to say that the problem in Agriculture is the problem of
the employees in Civil Rights. That is just one of the problems
and believe me it is dismal.
However, what is very important that the problem starts at
the ground level by employees who do not treat their employees
with dignity and respect and they feel the same way about its
customers. Now let me say one thing about the Office of General
Counsel that made recommendations to you today. That same
Office of General Counsel tells you that we have got a problem
and we are straightening it out, but it was that same general
counsel that told the American public, this president and this
committee that there was no discrimination against black
farmers. There is a contradiction here.
Now they also tell you that the Office of Civil Rights
under Mr. Winningham is going to be correct. Senator Harkin
kind of touched it. How can the individual that has been
overseeing civil rights and the demise of employees in FSA, the
Farm Service Agency, and farmers now going to take on the
responsibility of seeing that employees and farmers are treated
fairly? That is a hypocrisy and they lay that at your feet and
want you to believe it.
The employees of the U.S. Department of Agriculture and the
people I represent, the Hispanics, the Asians, now they will
say why is it that we have a 10-percent increase in complaints
if everything is being fixed? They will say, OK, we have
resolved 13 complaints and fired people, but not one of those
complaints of persons being fired have discriminated against a
black farmer and we are paying over a billion dollars and no
one being held accountable for farmer complaints and they tell
you that the situation is fixed. They do not hold anybody
accountable for discrimination against black farmers, but they
also do not hold anybody accountable for discriminating against
employees.
Now they will tell you now that gives me a great deal of
pain. They tell you that all the fixes are in place and I tell
you that they are not. Until we get to the problem and make
sure that people who are around the Secretary, who tells the
Secretary that everything is all right, and has advised him
poorly including the Office of General Counsel, we need to do
something about firing people. You have people at the U.S.
Department of Agriculture running the Office of Administration
and Civil Rights, but you also have the real problem at the
ground. Until you begin to make sure those individuals who are
the ones who are discriminating found guilty of discrimination
are punished is the problem.
I will close by saying this. There is a structural problem
at USDA. They will tell you that everything is fine. You cannot
have the Assistant Secretary for Administration overseeing
civil rights and overseeing the Office of Human Resources. That
has been proven a no-no by the Civil Rights Commission. They
have been advised by the EEOC, but yet and still they will come
to you and say we have got the fix. I say to you that the
structure of civil rights, you need an assistant secretary
responsible for civil rights who answers directly to the
Secretary or the Deputy Secretary.
Those people in civil rights cannot answer to the same
person who handles the office of human resources that is
supposed to hold people accountable because it does not work in
government. I am saying that there is a structure in USDA which
they tell you, Mr. Chair, that is fine. I am saying the
structure is fixed and I say what they are saying to you is
that the problem is in the Civil Rights Office. I say the
problem is all the sexism and racism, bigotry and hostility
that the employees at the Department of Agriculture that
administrator after administrator, president after president,
secretary after secretary has allowed to go on, and I would
hope that this committee would not be fooled by the program
that they offer for you. You have got to hold people
accountable at every level and fire those people for
discriminating against the American citizens as well as very
competent and hardworking employees at the U.S. Department of
Agriculture. Thank you.
The Chairman. Thank you very much, Mr. Lucas.
[Applause.]
[The prepared statement of Mr. Lucas can be found in the
appendix on page 188.]
The Chairman. Ms. Carranza, we welcome you. As Senator
Baucus mentioned earlier today, you have spent two days on a
train to get here.
Ms. Carranza. Yes, I did.
The Chairman. We appreciate that perseverance and we look
forward to your testimony.
STATEMENT OF JUANITA CARRANZA, LAMBERT, MONTANA
Ms. Carranza. Thank you, Senator. As you said, I did spend
two days on the train and so you might as well shut your little
light off because I am going to read my written testimony.
[Laughter.]
Ms. Carranza. My 89-year old mother made that trip with me
and it was 48 hours. Thanks to Amtrak. First of all, I would
like to thank you for the opportunity to appear before you and
address the civil rights resolution process at the United
States Department of Agriculture. I will have no statistics to
testify about because numerical figures do not tell what the
reality is about. The fact is that in the delivery of its
federally mandated farm programs, the United States Department
of Agriculture has like the Bridgestone/Firestone Corporation a
broken, defective and deadly product that must be recalled.
If a recall is not in order at USDA, what other reason can
one give why certain farmers and ranchers are selectively
chosen to be denied services at the FmHA/FSA county office
level when Federal law states that no one, and I quote, ``shall
be treated differently''?
If a recall is not in order at USDA, why is the pattern of
discrimination that begins at the county office level continued
and enforced by entrenched FmHA/FSA state office officials
regardless of what Congress mandates?
If a recall is not in order at USDA, why is the mandatory
in-house appeals system, one that ultimately reiterates the
original death sentence, begun at the county office for the
targeted family farmers and ranchers foolish enough to believe
that there can be justice in that mortally flawed charade?
If a recall is not in order at USDA, why do regional USDA
Offices of General Counsel combine forces with the Department
of Justice not just to remove farmers and ranchers from their
land but go for the jugular effect? Then the selected farmers
and ranch families are left penniless, humiliated and beaten
with not one shred of human dignity left and in some cases
self-inflicted death is an easier solution than the tortuous
process delivered from those two government entities.
If a recall is not in order at USDA, why has the civil
rights resolution process been such a dismal bumbling farce? On
November 13, 1998, Secretary of Agriculture Glickman spoke of
resolving the discrimination fiasco as USDA. He quoted Dr.
Martin Luther King, and I quote: ``An unaddressed injustice at
any time is an injustice for all time.'' The Secretary should
be reminded of what Dr. King instinctively knew, that it is the
speaker's actions that validate the spoken word, not just the
pacifying rhetoric.
Let the Secretary and his civil rights team tell Joann
Martens of Wolf Point, Montana, who filed a civil rights
complaint in 1993 because she was denied the same servicing
actions that were only given to her ex-husband and was then
told by the county office supervisor, that women do not belong
in farming and is still waiting for her case to be resolved,
that USDA really does believe in justice.
Let the Secretary and his civil rights team tell Sharon
Mavity of Sidney, Montana, who filed a civil rights complaint
in 1997 when she tried and failed to save her fourth generation
family ranch for her and her sons because she was denied the
loan servicing that was instead given to a selected young white
male and is still waiting for her case to be resolved, that
USDA really does believe in justice.
Let the Secretary and his civil rights team tell Rosemary
Love of Harlem, Montana, who filed a civil rights complaint in
1997 and whose 36 year marriage ended 3 months ago because of
the strain of fighting FmHA/FSA for 17 years and is still
waiting for her case to be resolved, that USDA really does
believe in justice.
Let the Secretary and his civil rights team tell Jacky
Shiplet of Livingston, Montana, who filed a civil rights
complaint in 1996 after she was denied loan servicing by FmHA/
FSA, but young white males did receive loan servicing, and who
has had to choose between food or medicine for her disabled
husband, that USDA really does believe in justice.
Let the Secretary and his civil rights team tell Dolly
Stone of Browning, Montana, who last week had to stare down a
sheriff's foreclosure sale on her ranch despite USDA's own
moratorium on foreclosures for class members of the Keepseagle
v. Glickman class action, that USDA really does believe in
justice.
Let the Secretary and his civil rights team tell Margaret
Carranza, my 89-year old mother, who experienced the deliberate
pattern of insufficient and repeated late funding from FmHA/FSA
that is meant to drive certain farmers and ranchers into
insolvency and bankruptcy, that the USDA really does believe in
justice. The USDA in-house appeals process deliberately failed
her by failing to make FmHA/FSA adhere to the regulations and
rules that are supposed to regulate farm programs.
The USDA civil rights process failed her at the time of the
discrimination complaint partly because it had been dismantled
by the Reagan/Bush administrations.
I have to tell you that I am missing part of my testimony.
Do you have it? Thank you. I apologize. I will begin again the
last paragraph. Let the Secretary and his civil rights team
tell Margaret Carranza, my 89-year old mother, who experienced
the deliberate pattern of insufficient and repeated late
funding from FmHA/FSA meant to drive certain farmers and
ranchers into insolvency and bankruptcy, that USDA really does
believe in justice.
The USDA in-house appeals process deliberately failed her
by failing to make FmHA/FSA adhere to the regulations and rules
that are supposed to regulate farm programs. The USDA civil
rights process failed her at the time of the discrimination
complaint because it had been dismantled by the Reagan/Bush
administrations in 1993.
The Chapter 12 bankruptcy process failed her because the
tentacles of FSA reached into that system as well. The state
FSA office furious that a discrimination complaint had been
filed refused to let the family operation into the Chapter 12
protection unless they signed a drop dead agreement that signed
away the discrimination complaint and all of their rights under
due process guaranteed to them by law.
Our congressional delegation failed her because when
letters were written asking for their intervention, FmHA/FSA
state and national officials responded denouncing her operation
as the guilty party. Even elected representatives, like the
general public, can also be guilty of believing that only
government knows best and that the government is always right
until it is too late, too late to stop an overzealous Assistant
U.S. Attorney from declaring that she is aware of Secretary
Glickman's moratorium against foreclosures on open USDA civil
rights complaints, but she is going to bring the full force of
the Federal Government down upon the Carranza women and make an
example of them, and she did.
The personal property was seized by the U.S. marshals and
sold at public auction even though Dr. Jeremy Wu of USDA's
Office of Civil Rights kept assuring the Carranza's that the
sale would be stopped. When it was not, he would not return
repeated phone calls.
Personal family effects, baptismal records, family ranch
records, family heirlooms are still on their former property
because the same Assistant U.S. Attorney said, and I quote, she
would ``have the FBI on their heads so fast it will make their
heads spin'' if they attempted to retrieve their possessions
from their former property now owned by FSA's predetermined
buyer.
The USDA Office of Civil Rights has failed Margaret
Carranza miserably as well because they not only failed to
protect her rights in the foreclosure process, but they have
failed to honor her rights as a human being, the same rights
that our country was founded upon, and I quote, ``that all men
are created equal, that they are endowed by their creator with
certain inalienable rights, and that among these are life,
liberty and the pursuit of happiness.''
I ask you today is seven years long enough for Margaret
Carranza to wait for the justice that the Secretary
pontificated about in 1998? What about the other women from
Montana that I mentioned earlier? What about all the other
farmers and ranchers, men and women, that this out of control
FSA system has been allowed to selectively remove from farming
and ranching? Senators, this is not an exaggerated
unsubstantiated testimony that a Federal system you are
responsible for is defective and that it must be fixed.
What you have heard is the reality of our lived experience
and no buck passing, denials, or stonewalling is going to make
it go away because we the people upon whom the injustice was
committed are not going to go away until the system is fixed.
Change not just for us but for all of those who will be a
target the next time someone walks into a USDA office and wants
their land, too. Thank you.
The Chairman. Thank you very much, Ms. Carranza.
[The prepared statement of Ms. Carranza can be found in the
appendix on page 212.]
The Chairman. Mr. Connor.
STATEMENT OF HAROLD CONNOR, UPPER MARLBORO, MARYLAND
ACCOMPANIED BY JOSEPH D. GEBHARDT, ESQ.
Mr. Connor. Good morning. My name is Harold Connor and I
would like to thank the committee for giving me an opportunity
to appear this morning. I have a longer statement, a longer
written statement, and I would like to request that it be
included in the record.
The Chairman. It will be published in full.
Mr. Connor. Thank you very much, and I will try to make my
comments brief. As I said, my name is Harold Connor. I am an
employee of the Farm Service Agency. I am currently the Deputy
Director of the FSA Price Support Division here in Washington,
DC, and we handle a number of programs including the Market
Assistance Loan Program, the Loan Deficiency Payment Program,
Small Hog Operation Payment Operation Program, and our programs
provided more than $15 worth of financial assistance to the
nation's farmers on 1999 crops.
I began my career with FSA in 1971 while still in college
and graduated from the University of Missouri and was hired as
the first black county executive director for FSA in the state
of Missouri, came to Washington in 1983, and within a few years
after I got to Washington, I encountered my first significant
racial discrimination within FSA. I filed a complaint but then
after talking with some of my colleagues, both black and white
colleagues, they mentioned that most people who filed
complaints are marked, and in the future they have a very
difficult time either obtaining promotions or they also would
face some retaliation. I dropped that complaint.
Things did not get any better on the job and within a
couple of years I filed another complaint, carried that through
to a settlement, and once I did finally come to settlement, but
before I did reach a settlement, I had had severe and permanent
damage to my health and my marriage. In 1976, I applied for a
position as Director of the Audits and Investigations Group
with the Farm Service Agency, and I thought I was well
qualified for the position, had 12 years of experience, some
seven and a half years as a county executive director, and I
had also handled audits as a program specialist in Washington,
DC
The white selecting official selected a lesser qualified
white for the position so I filed an EEO complaint under the
Herron v. Glickman class action complaint that was brought
against FSA by middle managers, grades 12, 13 and 14, African
American managers in Washington. On December 14, 1999, I
received a finding of discrimination from an EEOC judge and
within a couple days after that, a representative of USDA
falsely told The Washington Post that even though I received a
favorable determination that I had already been promoted, which
really kind of irritated me pretty much because we had not even
come to any kind of decision.
The EEOC judge recommended that because I had been
discriminated against, that I be promoted to a grade 15
position that was either in my current position or a position
that was similar to the position that I had applied for. The
position that I had applied for and been unfairly denied has
since been abolished so that was not available. They also
determined that I should receive back pay, back to June 9th of
1996, and $10,000 in compensatory damages.
The Office of Civil Rights turned the enforcement of these
provisions back over to the Farm Service Agency, and they even
gave Farm Service Agency the option of offering me whatever
position they wanted to offer. What FSA offered me was a
position that was especially created as assistant to a Schedule
C political appointee and with no supervisory responsibility
and no management responsibility and no major program
responsibility.
This did not fall in line with what the EEOC judge had
decided that I should have because it was not substantially
equivalent to the position I had applied for or the position
that I was in. I turned that offer down and filed a
noncompliance complaint with the USDA Office of Civil Rights.
They did not bother to respond to my complaints, so I filed a
complaint through my attorneys with the Office of Federal
Operations with EEOC. I am confident that I am going to win my
appeal there, but the problem with that is that it normally
takes about two years for that complaint process to carry out
so in the next two years I am going to have additional damage
to my health waiting for a determination to be made.
I do not believe that the Office of Civil Rights should
ever have turned the enforcement of its rules over to FSA
because they were the agency that had discriminated against me.
The Office of Civil Rights takes a stance that seems to be
trying to favor the agency that is involved in the
discriminatory activity.
They either take action or inaction depending on what is
going to support management's position. For instance, a friend
of mine, who is also in the Herron v. Glickman complaint, had a
complaint of reprisal that was never investigated and there was
no record, and yet the Office of Civil Rights decided to
dismiss that case because it would be advantageous to
management. By the Office of Civil Rights pro-management
stance, it encourages those within the agency who are
interested in retaliation.
I have a particular case that or particular situation that
I wanted to mention. We, within the Price Support Division,
were trying to get some automated functions out to allow
producers to request loan deficiency payments from home without
making a trip to the office, and it would be totally automated
to where they did not just have to key it in and print off an
application and then send it in. Rather, it would be automated
to the point where they could key it in, it can be processed,
and we can issue the payment to them through electronic funds
transfer.
However, the division that we had to go through to get
these processes put in place has just completely stymied us
from day one. As a matter of fact, at one time the director of
that division, acting director, informed his key people not to
talk to myself, my immediate supervisor, who is also an African
American, or the chief of our Automation Branch, Mr. George
Stickels, who served up here as a congressional fellow for a
period of time. This same person whom we have to go through to
get automated functions put out raised a question at a
manager's meeting as to what can be done about people who file
multiple EEO complaints, and there are some more things that
are in the record that we submitted.
The main issue that I had today is that even though a
representative of the Department said that I had already been
promoted, I have not been promoted. This is some nine months
after the determination was made. I have not been promoted. I
also have not even received any back pay. As a matter of fact,
the agency has not even begun to process my back pay. When I
submitted an e-mail to the Human Resources Division asking
about the status of my back pay, I was referred to an OGC
attorney and that attorney said that they would not answer any
of my questions. If I had any questions about this particular
case, I would have to contact them through my attorney.
With this hearing today, I would just like leave some
recommendations of what the Department could do to help the
Office of Civil Rights to kind of take a more active role and a
more positive role in solving some of these employee
complaints. The Office of Civil Rights should be more involved
in the negotiation process when we are trying to negotiate
settlements. They should have full power and authority to see
that any orders that it sends down to agencies are fully
carried out and properly carried out, and the Office of Civil
Rights should also take a more active role in keeping the
statistics on race and promotion in a format that could be
useable in EEOC cases.
As a matter of fact, the EEOC judge who heard our
particular case said that the documentated statistics on race
and promotion that were submitted by FSA were very unreliable
and left much to be desired. Again, I would like to thank the
committee for allowing me to have a few minutes and if possible
I would like to have my attorney maybe say a couple of things.
[The prepared statement of Mr. Connor can be found in the
appendix on page 216.]
The Chairman. Well, Mr. Connor, let me just ask--I will
grant your wish, but it will need to be a brief comment because
we need to proceed on to the next witness and to questions as I
announced earlier.
Mr. Connor. Yes, sir.
The Chairman. We have permitted you and other witnesses to
speak much more than the 5-minutes because you have a very
important case to make, but please I will allow your attorney
to make a comment, but be very brief if you can.
Mr. Gebhardt. Thank you, Senator, and Senator Harkin. My
name is Joseph D. Gebhardt, and I have been Mr. Connor's
attorney for several years now, and I was the lead attorney and
still am in the Herron v. Glickman class action on behalf of
the middle management black employees at FSA.
One thing that we have found in the case that really you
should know about is that the Office of Civil Rights is sending
its staff people to depositions in EEOC cases to defend
management. They are acting as pseudo lawyers. Some of them are
lawyers, and OCR is actually sending staff people to represent
and defend managers at their depositions in these EEOC cases.
When you wonder what those 120 employees are really doing, that
is something that is going on.
Now, Charles Rawls also told you that the OGC attorneys who
are in the Civil Rights Division, he said it is a small and
experienced group of people, that they work on a variety of
civil rights issues and they give civil rights advice. What
they really do is they defend management in the EEOC hearings.
That is what the OGC civil rights lawyers do probably 90
percent or 100 percent of their time. Every time we have a case
at the EEOC, they are there representing management. In fact,
the OGC lawyer told the EEOC judge that Harold Connor was not
discriminated against.
Well, the judge saw through the smoke and all that and
ruled that there was discrimination, but that is what OGC's
Civil Rights Division lawyers are doing. Mr. Rawls told you
that they are experienced--they are a small group and they are
not experienced. One of the lawyers we worked against in the
Herron case had graduated from law school one year before.
You have heard about this mismatch of skills in the Office
of Civil Rights today. I will give you a good example. The
former Environmental Justice Coordinator for USDA Central
Office, Dr. Velma Charles-Shannon, they competed their
position. They just put it up for bid because they transferred
it out of departmental administration and the civil rights
arena over to the Forest Service area. She had to compete for
her job. Fair enough. She had a doctorate in toxicology and had
some civil rights familiarity. She is a black woman, very high
stature, had held a lot of responsible jobs in government
before.
They gave her job to a white woman who did not have any
qualifications like that and who had applied for the job and
had been interviewed over the phone; they just gave her job to
a white person. Well, what did they do with Dr. Velma Charles-
Shannon? They made her an employment complaints specialist in
Civil Rights. It is not that they are putting garbage employees
in there. They are creating the skills mismatch in order to
promote discrimination.
Mr. Connor just told you about the back pay issue, that
they have had nine months to get ready to pay his back pay. We
gave them the calculations--what--about six months ago for him
and Dr. Cliff Herron, who is in the audience, another
discriminated against FSA employee, as found by EEOC and USDA.
They have not paid Cliff Herron's back pay either. We have
asked them to send us the calculations when they get the
calculations done. They are not doing it. There is no interest
in civil rights enforcement at USDA.
Secretary Glickman's spokesman, Andy Solomon, lied in The
Washington Post and said Harold Connor and Cliff Herron had
already been promoted. We have let Secretary Glickman know
that. We let the USDA/OGC lawyers know it. They have not taken
any corrective steps. This goes to the top and that is all I
have to say.
The Chairman. Thank you very much. Mr. Pires.
STATEMENT OF ALEXANDER PIRES, CONLON, FRANTZ, PHELAN & PIRES,
WASHINGTON, DC
Mr. Pires. Thank you very much. My name is Alex Pires. I
represent farmers for a living and I wanted to talk about three
things: the black farmers, the Native American farmers, and the
Hispanic, women and Asian farmers. I started the black farmers
case. I wrote the complaint. I started with the three original
black farmers, Tim Pigford, Lloyd Shaffer and George Hall.
The black farmers case was just a modest attempt to make
changes at USDA. It was not intended to do anything more than
that. My hope when we started was to get two or 3,000 black
farmers hearings. You have heard today everybody testify about
it. In the end there will be maybe 25,000. I need to tell you
how crazy it is out there. Last week the Poorman Douglas
Company, which handles the phone calls, got 127,000 phone
calls. Yesterday, they got over 20,000 phone calls from black
farmers complaining. My office everyday my phone system
completely overloads--everyday. I have 13 lawyers. We are
getting four to 500 pieces of mail and faxes a day on the black
farmers case. The case is actually getting bigger.
I did not come here to talk about that. I came here to talk
about the problem. USDA, you are complaining to the wrong
people. It is not the people in Washington that are the cause
of the problem, in my opinion. It is at the local and state
level. It is a very racist organization. It is white men
running everything. All the local county committees are white
males. How do they stay in power? You can only vote if you are
a farmer in the program. You only get in the program if you get
a loan. You only get a loan if you get approved. You only get
approved if the people in power decide to give you a loan. It
is self-perpetuating.
In the history of this country, there has never been a
black dominated county committee even in black counties. There
has never been a Hispanic dominated committee even in Hispanic
counties. Women are even more powerless. White males run the
show. In the South, the local county offices fill out the forms
for white people. Minorities do not get services. It is very
simple. I have been doing this for 20 years. I have represented
more farmers than anybody in the country. I see it everyday. I
have been to more county hearings than anyone. That is what I
do. The racism exists at the local level.
Native Americans it is even worse. They get no services. It
is a national disgrace. I am in the middle of that case I filed
also called Keepseagle. The government is fighting the case. It
is worse than the black farmers case. The Native Americans have
been treated worse, if that is possible. They never get
servicing. They never get attention. They never get loans. They
will not settle with us. I understand that. They will not talk
to you. Senator Conrad asked questions about it, as did others.
I understand that. I am a big boy. It is litigation. In the
end, we will prevail, but it will be bigger. We will be back in
front of you and you will find out the Native American case
will probably have 40 to 50,000 claims.
The third problem is Hispanics, women and Asians. They are
totally powerless. They are out of the program. When a woman
walks in to a local county office, she has very little chance
of getting good servicing. It is not these people in
Washington. It is people at the local level. You do need to
think about changing the system. The election process does not
work well. White men will always be in power. You need to have
a different system to get minorities in power at the local
level. The state system, it does not work either.
On the positive side, we have learned two things in the
Pigford case. You can have private enterprise process cases.
You can take the best part of the government, which is its
money, and match it with the best part of the private sector,
which is its processing, and we have done almost 20,000 cases
in a year and a half. We can do a lot better job. What we have
learned is that black farmers had a lot to say about the system
and it has been good for everybody.
It is very easy to complain about a lot of things. Have
there been delays in getting checks? Yes. The judgment fund
where the money comes from is overworked. The people in
Washington have been intellectually honest about the settlement
of the case. They have worked hard. We meet constantly about
it. I do not think it is a case of bad faith there. Could we do
better? Sure. We now have 46 retired judges writing decisions,
11 arbitrators issuing arbitration decisions. The monitor's
office has ten people. Like I said, I have 13, 14 full-time
people working on it. I have another hundred lawyers that I
brought in. The vast majority, by the way, are black.
I could do a better job in the American Indian case if I
could get it resolved. I need help from Congress. They need to
help us get the government to the table and get started on all
these cases. Native Americans have 25 years of stories to tell.
We might as well get started and start telling them. There is
no sense in acting like it is not there. It is almost
impossible as a Native American to get a loan. I do not care
whether you are in North Dakota, South Dakota, Montana.
I spend all my time on the road. It is very, very hard
because if Mr. Harkin comes into my office and sits down, I
have two choices. I can sit down and help him fill out the
forms and work with you, ask you questions, help you help me
help you by asking you to fill out the form with me together.
You and I work together. I can qualify you. If I do not want to
qualify you because you are a Native American or I do not
particularly care for you because you are a woman, you are
never ever going to get approved. That is how the system works
at the local level. If I do not want Mr. Harkin to get a loan,
you, sir, will never get a loan. If I want you to get a loan, I
do not care how many problems you have had, I can qualify you.
That is basically how it works.
Finally, these people here, all of them who I know, have
worked very hard. These are very controversial cases. I am in
the middle now with a whole mess of people trying to work on
the reparations matter and I find that it is not my fault, for
example, that I am a white person. I would prefer actually for
what I do for a living if I was a black person, but I am not. I
cannot say anything more about that other than it makes it more
difficult.
The black farmer is a wonderful and loving person. They
have persevered through what no human being would normally do,
much like a war. Because of John and others, they are making
progress. It is difficult. There are fights constantly
everyday, everyday. The Native American case, though, is
actually worse, and I would ask you in your hearts to think
about that. It is a national disgrace, not the problem these
people behind me, at the local levels, and we need to do
something about it.
It is just money. It is just money that is needed to
process these. Yes, there will be a billion dollars in the
black farmers case. My gosh, that is nothing. We have given out
over $100 billion in subsidies in the farm program in the last
15 years. What is a billion dollars? It is not that much money.
Finally, when you help us solve the Native American case,
think about the women and the Asians and the Hispanics. We have
until October 20 something to file the last case. We are
working on the last case to file which involves them. It is
very complicated. I know people do not like lawyers. I do not
much like them myself. We have no other choice right now. I do
not see the legislative solution for what we are doing and I do
not see anyone else coming forward so we have these cases. I do
thank you very much, though, for taking the time, and I will
answer whatever questions about any of the three cases. Thank
you.
The Chairman. Thank you very much, Mr. Pires.
[The prepared statment of Mr. Pires can be found in the
appendix on page 229.]
The Chairman. Let me begin by asking you a question. If I
heard you right, one solution, and this oversimplifies it, but
sort of work with me, you would literally contract out the
process that is now occurring in the civil rights function in
USDA perhaps to private lawyers? Is that a possibility?
Mr. Pires. No. You have the right thought. In the black
farmers case, the way we got 20,000 cases processed was to give
it to private enterprise, retired judges and give them very
short deadlines. In the Native American case, you are going to
need that. You are never going to be able to go back to the
government system and get it done. It is also wrong. You are
not going to be able to get people to rule upon someone that
they discriminated against. It is naturally inconsistent.
You are going to have to do that with Hispanics, women and
Asians also. In the bigger picture, the best thing that you
could do to help farmers, to help American farmers, is to
change the election system at the local level, to take the
white male and take his power from him. I can give you two
thoughts for what it is worth and you are far smarter than I.
One is let people put their name in to be nominated in any
county. 15 people come forward and then select, give the power
to who you want to select so they can pick women, they can pick
Asians, they can pick Hispanics. If it is a black county, in
Green County, Alabama, and it is 71 percent black, why do we
have five white people? Makes no sense to me.
My gosh, what are we doing? Why could you not set up a new
system, a new system for elections to take the power away from
the white males. That would overnight make everybody's job up
here better. We are yelling at the wrong people. By the time
the problems get here, they are completely out of control,
Senator.
The Chairman. Well, just following through that idea,
clearly in the 71 percent black county you mentioned, if
everyone was eligible to vote and did vote----
Mr. Pires. They are not, sir, because they do not have
loans. That is the key. There are 71 percent of the people who
are black, but the farmers who are in the program, the black
farmers are probably only 30 percent, the white folks get all
the loans. White folks have 70 percent of the votes. They vote
the white people in and they just perpetuate the system. The
election system does not work. It is self-perpetuating.
You know how they give out loans in the South? White people
get it first who are members of the committee. Their sons get
it next. The seed guy, the implement dealer, the John Deere
dealer, the white structure, all owned by white people first.
After the money has been pretty much taken care of, they look
to blacks next and they look to women last. Hispanics, if there
are some. Now in the big four out West, in Texas, Colorado,
California where Hispanics have more of a stick, they do a
little bit better. Essentially white people take care of white
males first. The election system does not remedy it.
The Chairman. All right. Let us say we change the franchise
so that everybody voted, not just those who have loans, for
example, now then what happens?
Mr. Pires. It would be great. It would be great. It would
be wonderful.
The Chairman. This is, without trying to force at least a
conclusion, this is a legislative recommendation that you would
make?
Mr. Pires. Well, me--these people know more about it--that
is what I would do. I would love to get the white male and put
him in his place. I am getting to hate white men.
The Chairman. Mr. Boyd.
Mr. Boyd. Mr. Chairman, to reiterate on some of the things
that Mr. Pires is talking about, half the problem is there are
African Americans on these committees, but they cannot vote. In
other words, they are sitting in the county. They are minority
advisors to the committee that have no voting privileges and I
cannot believe that we are sitting here in the year 2000 that
we have committees, Federal committees that exist that deprive
certain groups of people the ability to vote. That is one
aspect of it.
The county committee system was designed to steal land. It
was a legal way to steal land from poor African American
farmers and other socially disadvantaged farmers where the
county committee people, and these are--Mr. Pires, you are
right--the most powerful people, powerful white farmers in the
communities that get together and say, OK, I am going to get
Mr. Boyd's farm at a third of what it costs, and what they done
was I had a county committee person come by my house. It was
not advertised in the newspaper. He said, Mr. Boyd, I know you
are in trouble, I am going to give you a chance to get out,
come live on my farm if you sign these documents.
He had my paperwork coming to my farm talking about selling
my farm out. I had a few choice words for him, but I am running
for office and I cannot say them today.
The Chairman. I understand. Mr. Zippert.
Mr. Zippert. There are a number of things, some of which
Mr. Pires has pointed out, but actually technically everyone in
the county who has a farm interest can vote in this election.
However, the procedure under which you register to vote is not
clear and the procedures under which people get ballots and the
procedures on which ballots are counted, all of this has been,
is really a scandal that needs to be looked at, and that is the
problem.
For instance, in some counties, the husband and wife each
get a ballot if they are white, but black people, only the
husband gets a ballot. This is based upon this whole cultural
process that has been described here or racist process,
depending on what you want to call it, and this is what goes on
and then we have a chart, a detailed chart, in the report we
submitted to you following page 32 which goes into some of the
statistics that the Rural Coalition was able to get from FSA
about these elections. We have a FOIA that they have yet to
respond to. You might want to ask them about responding to
that.
The Chairman. What is your request?
Mr. Zippert. Well, we requested information about the
results of these elections and participation in these
elections, number of ballots that were invalidated and reasons
for it, and we have not gotten a response, and it sort of
comes--Mr. Pires has described in simpler terms, but there are
complexities in this and specifics in this and if you know the
system, there are ways in which you can manipulate it to have
the result that Mr. Pires describes and we have tried--the
Rural Coalition suggested a voter registration form. It was
initially adopted and then it was dropped. We have been talking
to them for years about some kind of a proportional
representation system. If we cannot get people elected, then
the people who are appointed ought to have the right to vote.
We have the situation where when the community nominates a
black candidate that they want, the committee puts three other
blacks on the ballot to dilute the black vote. There are all
kinds of ways they have manipulated this system and it really
deserves a hearing of its own with the people in USDA who are
in charge of this because they have allowed this to go on.
The Chairman. Let me ask for just a pause. Unfortunately a
roll call vote has been called. I did not realize that was
occurring and we are in the final minutes of it. I will return
if you can stay and I would like to continue the hearing at
that point. If you want to continue, Senator Harkin, please
proceed.
Senator Harkin. I just want to say I have got another thing
I have got to go to right after this vote and I do not know how
much longer we are going to be on this vote, but I just want to
thank you all for being here and I will try to return, but I
really do think we are going to have to look at the selection
process that you are talking about and try to restructure this.
It almost seems like we need almost like a voting rights act
for agriculture, a modern-day voting rights act that will be
not just sit back but actually will be proactive, actually go
out and do some things like that. I hope I can get back, but if
not I want to thank you all very much and you have made great
suggestions. We will followup on that.
[Recess.]
The Chairman. The hearing is resumed. Did you have further
comments, Mr. Lucas, with regard to we were discussing the
voting situation with regard to county committees, and I do not
know whether Senator Harkin pursued that further or whether you
have a comment on that?
Mr. Lucas. I agree with my colleagues on the panel,
especially with John Boyd saying that we have gone through a
civil rights struggle and you still have people, African
Americans, who supposedly are on a committee, that cannot vote.
That is appalling as we move into the 21st century. That the
comments and the breadth of my colleague to my left talking
about the whole voting process. I would have to add that the
problem does not just rest with the county committees. We have
people in Washington and political people in Washington, some
of them, some of your former colleagues who are now working at
the Department of Agriculture, who are beginning to act like
the culture, the plantation mentality that has existed in the
department so long has now come to the Department of
Agriculture and they are beginning to act just like those
people who are doing all this harm.
I think that if the programs were still administered
properly, once the complaints rise up and those that do get
through the system, They are people in Washington in some of
these offices, and by the way some of those people look like
me. It is not just a situation where we are putting it on all
white males. We have Hispanics and blacks in very high
positions in the USDA and they are in some of these offices
around the country who are also taking part in that
discrimination. I do not want to make it seem like you let the
political appointees around the Secretary and some of the
assistant secretaries in the administration, administrators and
managers off the hook.
I think the problem is you cannot put a band-aid on a
cancer and that is what you are doing if you only deal with one
piece of it. You have got to hold these people accountable and
fire these people for discriminating and ruin the lives of so
many American citizens, both in the Department of Agriculture
and outside.
The Chairman. All right. Now, we have discussed at least
the three parts of the program, and there may be more in the
class action suits--Mr. Pires had discussed and offered some
counsel on that--the problems of discrimination in the field
with regard to program discrimination, and you are now raising
an important point that you raised in your testimony originally
that the problem may lie with the management of the department.
You know let us just take a look at that for a moment. Sort
of start with the Secretary, the assistant secretaries, other
people. Many of these persons are appointed by the president of
the United States depending upon which administration comes and
is confirmed by this committee. Is the problem at that level or
is the problem at levels below the political appointees, that
is persons who have some status through the civil service who
proceed on really through several administrations, or how can
you give us advice as to where we look?
Mr. Lucas. To be very short, I notice that Mr. Boyd will
probably have some comments on that, too. What you have is the
Office of General Counsel who told the American public that
there was no discrimination of black farmers are also saying in
the case of the employees, and you got over 15, almost 18 class
actions of employees. They, too, are saying the same thing they
said about the black farmer case. This committee should order
the Office of General Counsel, i.e., Charlie Rawls, to cease
quoting from Rule 23 and being a barrier to settlement of these
complaints.
I think we could have settled the black farmer complaint at
a much lower level than $1 billion if the U.S. Department of
Agriculture Office of General Counsel would have listened to
the attorneys and to the farmers. These cases were brought to
them early on, but they would not listen--Mr. Pires, John Boyd,
Pigford--and what you have is a culture within the Department
of Agriculture and some of these people are political
appointees, i.e., the Office of General Counsel, or i.e., the
Director of Civil Rights, and now you have Mr. Winningham
overseeing some of the same cases that he was reviewing when he
was at Farm Service Agency. That is also a conflict of interest
but they will tell you that he is the best person qualified.
I would say to you that you have got to get to the problem
holistically and you have got to order the Office of General
Counsel to stop interfering with the policy of this Secretary
who says he wants the complaint settled, but once it leaves his
lips, it goes into a deep hole and the Office of General
Counsel and the Office of Civil Rights and certain people who
work there are seeing to it that these class actions of women,
Hispanics and Asians are not resolved. You should demand and
the American taxpayer demand that they come to the table and
settle these complaints and not have a similar situation that
we had with the case of the black farmers. It is arrogance. It
is indifference and Mr. Chair, you have the power to change it.
The Chairman. Well, perhaps, but let me just try to
delineate what these powers are. We have oversight hearings. We
are having one now and we have the ability to offer
legislation. That is our prerogative here in the Congress if it
is signed by the president and if we have it through two
houses. Ultimately there are people appointed by the president
and members of the cabinet, subcabinet, they are confirmed by
our committee and we try to ask questions of them, and the
gentleman now who is handling the thing, Mr. Fiddick, came
before the committee, as he pointed out, a year ago and seemed
to us, at least at that point, to be a person that might make
some headway in the system. That may or may not be the case.
At least that is the sort of judgment that we have an
opportunity to make. We do not manage the department. We try to
help the department by illuminating these problems and you have
been helpful in that respect today. I am just trying to come to
grips with the levels. Is the Secretary empowered to change the
council or at what level really is somebody in charge at the
department?
Mr. Lucas. Let me say this. The effort of former Secretary
Espy to change the department and get to the culture with the
employees and the farmers was admirable. The effort of this
Secretary and the effort of this president who sent people down
to the Department of Agriculture to solve this problem, and
some of them are political appointees, have not served this
president and this Secretary and this nation well. It is time--
--
The Chairman. Then perhaps they should remove them. Is that
their----
Mr. Lucas. I think it is time to make some changes at the
very top. You need to not have Mr. Fiddick overseeing civil
rights because there is a conflict of interest. The Office of
General Counsel should cease to be a barrier and all the
reports that you had before this settlement, OGC was considered
hostile to civil rights, especially to the black farmer
situation. I do not see any change in that to this day. That is
why you have increase of class actions by Hispanics, Asians,
disabled, because you have an indifferent management that
spends all its time and its effort supporting people in the
courts and at these hearings with the taxpayers' money by
sending OGC lawyers to protect them against us. They have made
in so many words, Mr. Chair, turned good, decent American
citizens into advocates and that should not be.
The Chairman. Mr. Boyd.
Mr. Boyd. Mr. Chairman, that if you look at Secretary
Glickman as the overall view, he has tried. I agree with
Lawrence that he had some inside people that are ill advising
him on a lot of issues, Lawrence, as well, but where we really
need to take a strong look at, Mr. Chairman, is the leadership
within the Farm Service Agency as it relates to farmers, all
farmers, whether you are talking about Hispanic farmers, Mr.
Pires or the Indians or the black farmers. The gut and the root
of the problem lies within Farm Service Agency. Why do we have
a settlement of a billion dollars where we have not taken a
strong look at the leadership of the agency that basically
caused this discrimination?
That is Farm Service Agency and if this committee would
take a strong look at the leadership, possibly bring us some
new leadership in Farm Service Agency, and then take a strong
look at the local leadership just like Mr. Pires talked about,
if someone has 15 or 20 complaints on them down in Mecklenburg
or Brunswick County, Virginia, where a man was found sleeping
when he was supposed to take application. He said the
atmospheric pressure made him go to sleep on CBS 60 Minutes,
this kind of nonsense, if we take a look at those people and
hold those kind of people accountable, Mr. Chairman, I do not
think it will take long for that information to trickle down
through the system.
You know bad news travels fast. If we made a few heads
roll--I am going to go ahead and say the right terminology--I
think that you will see a big difference in Farm Service
Agency.
The Chairman. Ms. Carranza.
Ms. Carranza. I would like to reiterate the same thing. I
would be the last person to defend Rosalind Gray. I have to say
that I do not believe Ms. Gray caused the discrimination nor
anybody in the Office of Civil Rights. They have been faulty in
resolving this, but the big stumbling block from what I have
seen in the Montana cases is the Regional Office of General
Counsel and Mr. Rawls himself and the focus cannot be lost here
that it is FSA from not the county committee but the county
supervisor is the person who establishes what is going to
happen and he is FSA.
The county committee is just a bunch of dumb farmers in my
county, like myself, but they take their direction from that
person and that person, the county supervisor, takes his
direction from the state office, and those two entities are
protecting their ass. There is no other way of saying it, and
there is a regulation that was passed by the Secretary's Office
on June 30 of this year that said that when a USDA employee was
found guilty of discrimination after a settlement had been
reached, that those persons would be punished and that is what
is stopping our cases from being resolved because once those
settlements are finalized, those people's heads are going to
roll and they are protecting themselves.
The Chairman. Mr. Zippert.
Mr. Zippert. I would just support the idea that some close
look needs to be taken at the middle management levels, the
state office level and the county level of the Farm Services
Agency, because that is where a lot of the problem is and a lot
of the decisions about credit and acreage and in relation to
these committees. I would mention to you that this morning we
had a presentation from the Inspector General and he was not
aware of the things that we have brought out here about the
problems in the democratic--he called it a democratic system
and he was very proud of it. We need to go back and talk with
the Inspector General about the standards on which he is
judging this and maybe bring to his attention--I do not know if
he stayed for the rest of the hearing--but we need to bring to
his attention some of the other things that was said in this
hearing.
I think there is blame to go around here, that there are
other people. You know if the person who oversees the process
like that does not understand that they are in a lot of places
in the South and probably places in Indian country, that there
are problems with the way these committees work, then the whole
premise on which he is examining the program may be wrong. I
would say that we need to look at that. We need to look at FSA.
We might need to look at FSA in comparison to some other groups
like NRCS, maybe Foreign Agriculture Service, some others, who
may be doing better and see where the problems are in that
regard.
If they really want to do an intensive internal look, I am
not saying--there are probably complaints everywhere, but there
are probably more complaints in FSA than anywhere else.
The Chairman. Mr. Zippert, I just want to express
appreciation to you. You have made reference to it and I would
acknowledge the statistical data with regard to the elections,
the procedures and what have you, which are very important
illumination of this hearing and we will make certain that the
Secretary, the Inspector General, and others have all of that
testimony so that everyone at least is instructed as we have
been by your testimony. Mr. Pires.
Mr. Pires. Just a couple of things. I am trying to put
myself in your shoes, if I may, to see what would be most
helpful to you. There are just a couple of things that are very
interesting about USDA and it is pure power. It is the second
biggest Federal agency, but it is bigger in a different way. It
is not raw dollars. It has a presence everywhere like the post
office. We had until very recently 3,000 county offices. There
is less now, maybe 2,500, but in agricultural America, USDA has
a big presence everywhere. It has sometimes in some counties
two offices, let alone one.
There is a mind-set, and the mind-set that has been
established, as I mentioned earlier, is that white males rule,
but there is another mind-set, and that is when you go into the
office, the mind-set that should be present is this is my
government, I am coming in, I need a loan to farm. Farming is
based upon borrowing in the spring, paying back after harvest
in the fall unless you have a winter crop. This is still very
much an agricultural country. USDA has tremendous lending
ability. It is really one of the largest lenders in the world,
but it is even deeper than that, Senator, because they give
disaster programs, disaster loans. You are constantly trying to
reach in there and look around the country, find out who is in
trouble, come up with a disaster program, whether it is
Indiana, this year, or Georgia. You know what you have to do
every year.
What about everybody else who is not a white male? Women--
you need to understand women are completely out of the system.
To be a woman and go into a county office and think you are
going to be serviced is a pipe dream. You are not going to get
serviced because they are not attune to that. Hispanics, who
are becoming an ever-increasing part of our population,
particularly in the big four, California, Texas, Colorado, New
Mexico, and they get very, very poor service. They are
conditioned to be careful to go in to not to be as aggressive
as the white male is.
I can tell you in most parts of the South and the Midwest,
white people are so used to service, they come in and they say
how are you doing on my application? Their applications are
filled out by the staff. How am I doing? How is my application
coming? How am I doing this year? They expect the white
structure to service them. It is very rare that a Hispanic
person or a woman or a Native American ever walk into an office
and say how is my application? Know what he would get or she
would get? They would get an answer have a seat and I will get
to you, and maybe they will and maybe they will not.
I think for you, Mr. Chairman, the election process is one
area and the second is if there was a little bit more of an
oversight process where the Senate knew this year--for example,
you asked a very good question, in terms of programs, how does
USDA do against other programs as a percentage of complaints?
Nobody knows. They only know EEOC. Nobody knows about programs.
Second, nobody knows what happens to Hispanics, Native
Americans, white women when they walk in. Nobody pays attention
to it. It is not a statistic that is--yet Hispanics are going
to end up being 20 percent of our population. We need help
statistically. We need help.
The Chairman. Yes, Mr. Boyd.
Mr. Boyd. Mr. Chairman, I am going to have to leave in a
minute. I wanted to make these last closing statements. Down in
the same county I was talking about, the individual was
sleeping in the office, there were certain days that African
American farmers only could come in the office and get service.
Mr. Pires. Black Thursday.
Mr. Boyd. That was on--that is right.
Mr. Pires. It is called Black Thursdays.
Mr. Boyd. On Thursday, that was the only day you can come
into the office. If a white farmer came in before you, he would
see you and speak with him first. He would open the door while
he discussed my personal business very loudly. Overall if we
can bring some dignity and respect to the United States
Department of Agriculture where it can treat its customers with
dignity and respect, I do not think that would be asking too
much.
Certainly we found a way to disburse $8 billion in disaster
relief last year, that we can find a way to disburse one or
$1.5 billion to a group of needy people that desperately need
that money. They are sitting at home right now waiting. They
are sitting here now watching this hearing, wondering what is
going to come out of this hearing. Will I get some results?
Will I receive my check? A lot of these farmers have letters
that say you will receive your check in 90 days. 90 days has
come and gone twice and they have not received their checks.
If the committee could look into it and ask the Justice
Department to look into it as well, to find out what can be
done to speed up the payment process for these much needed
farmers, these are some things that we can do now and I hope
that this committee will take those things into consideration
and I hope that they will listen to the other distinguished
members of this panel and come out of this hearing with some
resolutions. Thank you, Mr. Chairman, for giving me the
opportunity to speak with you this afternoon. Thank you very
much.
The Chairman. Thank you for your testimony. We will raise
the payment question with the department.
Mr. Boyd. OK.
The Chairman. As well as many other questions.
Mr. Boyd. Sure.
The Chairman. In specific answer to your request.
Mr. Boyd. Thank you.
The Chairman. Mr. Lucas.
Mr. Lucas. Senator Lugar, as I heard the Office of
Inspector General rave about how well things are going under
the new leadership, I bring to mind three individual incidents
which falls in the house of the Assistant Secretary for
Administration and under Mr. Winningham. Very recently I was
told before coming to these hearings that a woman in the state
of Delaware filed a complaint of a housing complaint and was
processed--was supposed to be processed under the
administration, under new leadership of Mr. Winningham. This
lady lost her property last week because the U.S. Department of
Agriculture in this administration that you heard people raving
about did not process her complaint as they do farmers.
Let me give you two examples which falls in the house of
the Assistant Secretary for Administration. I am questioning
the accountability at the top and that is what you were asking.
Here we have people, an Assistant Secretary for Administration,
who you know and have worked with, called a jungle bunny and a
wonder monkey by a group of white employees after the work
hour, but yet and still the Office of Administration is not
going to hold those individuals accountable. Under the same
house when it comes to accountability, just recently a high
level official told an Asian at an Asian meeting that if you
suffer the glass ceiling, and Asians suffer from the glass
ceiling at USDA at the GS-13 level, that person was told go and
find another job.
Now what I am saying to you is that we have a problem with
leadership as it relates to civil rights and this, what you
heard this morning, trying to put it all on the employee, it is
a cultural and systemic problem and some of the people that
have been given the job recently to do that job has not done it
well. If we are going to hold the people in the Office of Civil
Rights accountable, we need to hold Mr. Fiddick, we need to
hold Mr. Winningham and we need to hold Mr. Rawls equally
accountable for the mess that is going on at USDA and not doing
something about the problem and not settling these class
actions and not settling these employee complaints. That is
where the problem is and we need to do something about that,
too. Thank you.
The Chairman. Thank you. Yes, Mr. Connor.
Mr. Connor. What I would like to say is that before we
filed our class action complaint, we actually had gone
informally to upper level people. Actually, there was Mr.
Roemiger, Mr. Rawls in a different position at that time, Mr.
Dallis Smith, and these were people at the Secretary's level,
deputy secretaries, and under secretaries. We discussed the
issues we had with the Farm Service Agency on an informal basis
and offered our services to help them to solve these problems.
Basically, we just got the old wink and OK and everything
is fine, but basically they did not listen to us. They just
kept pushing us down and wanted to do a study and finally when
we got the impression that we were being put off, we just went
ahead and filed a complaint because we were not getting
anywhere internally. That gets back to what we were talking
about before. It is throughout the agency. The people up above
want to put that nice face on it, but they had the opportunity
right there to, as a matter of fact, that would have prevented
us probably from filing our class complaint had they just
listened to us and tried to do some things informally, and you
have that culture inside the agency starting from top to
bottom.
The Chairman. I thank each one of you. Ms. Carranza, do you
have a final comment?
Ms. Carranza. Thank you. I would like a final comment.
The Chairman. Yes.
Ms. Carranza. For those of us that are not in a class
action or part of any lawsuit, we have wanted our cases to be
settled in the administrative process. There is a Senate bill
in the Senate. It is called the USDA Civil Rights Resolution
Act of 2000, Senate bill 2079. We would like you to consider
that as an avenue for us to have our cases resolved. I would
also like to ask for the record if the testimony submitted by
the other Montana women could also be included in the record?
The Chairman. Yes, it will be included in full.
Ms. Carranza. Thank you.
The Chairman. I thank each one of you. You have been
illuminating, articulate and patient in a hearing that has been
the better part of four hours but time very well spent. We are
grateful to you. We will try to follow through on the
suggestions you have made. The hearing is adjourned.
[Whereupon, at 12:40 p.m., the committee was adjourned.]
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A P P E N D I X
September 12, 2000
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September 12, 2000
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QUESTIONS AND ANSWERS
September 12, 2000
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