[Senate Hearing 108-318]
[From the U.S. Government Publishing Office]
S. Hrg. 108-318
NOMINATION OF SCOTT J. BLOCH
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON THE
NOMINATION OF SCOTT J. BLOCH TO BE SPECIAL COUNSEL, OFFICE OF SPECIAL
COUNSEL
__________
NOVEMBER 12, 2003
__________
Printed for the use of the Committee on Governmental Affairs
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COMMITTEE ON GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Deleware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Counsel
Johanna L. Hardy, Senior Counsel
Michael J. Russell, Staff Director, Financial Management,
The Budget, and International Security Subcommittee
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Lawrence B. Novey, Minority Counsel
Jennifer E. Hamilton, Minority Research Assistant
Nanci E. Langley, Minority Deputy Staff Director, Financial Management,
The Budget, and International Security Subcommittee
Jennifer Tyree, Minority Counsel, Financial Management,
The Budget, and International Security Subcommittee
Amy B. Newhouse, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Fitzgerald........................................... 1
Senator Akaka................................................ 7
WITNESSES
Wednesday, November 12, 2003
Hon. Sam Brownback, a U.S. Senator from the State of Kansas...... 2
Scott J. Bloch to be Special Counsel, Office of Special Counsel.. 4
Alphabetical List of Witnesses
Bloch, Scott J.:
Testimony.................................................... 4
Prepared statement........................................... 13
Biographical and professional information requested of
nominees................................................... 14
Pre-hearing questionnaire and responses for the Record....... 20
Post-hearing questions and responses for the Record from:
Senator Akaka.............................................. 46
Senator Akaka, questions and revised responses............. 50
Post-hearing questions and responses for the Record from:
Senator Levin.............................................. 54
Senator Levin, additional question and response............ 57
Brownback, Hon. Sam:
Testimony.................................................... 2
NOMINATION OF SCOTT J. BLOCH
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WEDNESDAY, NOVEMBER 12, 2003
U.S. Senate,
Committee on Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:07 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Peter G.
Fitzgerald presiding.
Present: Senators Fitzgerald and Akaka.
OPENING STATEMENT OF SENATOR FITZGERALD
Senator Fitzgerald. I am going to call this meeting to
order. Senator Akaka is on his way but he has asked for us to
begin.
This afternoon the Governmental Affairs Committee will hold
two hearings. The first hearing will be on the President's
nominee to be Special Counsel. Upon conclusion of the
nomination hearing, the Committee will immediately hold a
legislative hearing on S. 1358, the Federal Employee Protection
of Disclosures Act, the so-called whistleblower bill. I am
chairing both hearings since the nomination and the bill are
within the subject matter jurisdiction of the Subcommittee on
Financial Management, the Budget, and International Security
which I Chair. I am pleased to have this opportunity today, and
I look forward to hearing from all of the witnesses.
I will also be pleased to recognize Senator Akaka, when he
arrives. He is not only the Ranking Member of the Subcommittee
on Financial Management, the Budget, and International Security
but he also is the sponsor of S. 1358 which we will address
shortly.
First, we will take up the nomination of Scott J. Bloch to
be Special Counsel of the U.S. Office of Special Counsel. I
would like to welcome Mr. Bloch today as well as Senator
Brownback from Kansas, Mr. Bloch's home State. The President
has selected you for a very important position in our
government, and I congratulate you on your nomination, Mr.
Bloch.
Mr. Bloch has filed responses to the Committee's
biographical and financial questionnaire, answered prehearing
questions submitted by the Committee, and has had his financial
statement reviewed by the Office of Government Ethics. Without
objection, this information will be made part of the hearing
record, with the exception of the financial data which are on
file and available for public inspection in the Committee
offices. In addition, I personally have reviewed the FBI
background investigation report on Mr. Bloch.
President Bush nominated Mr. Bloch to be Special Counsel on
June 26, 2003. Mr. Bloch has a record of 15 years as a
practicing attorney with extensive experience in employment and
contract law. In November 2001, Mr. Bloch was appointed as
Associate Director and Counsel to the Task Force for Faith-
based and Community Initiatives in the U.S. Department of
Justice. In January of this year, Mr. Bloch assumed the
position of Deputy Director and Counsel for the task force.
The Office of Special Counsel is an independent Federal
agency with investigative and prosecutorial responsibilities
regarding three statutes: The Civil Service Reform Act, the
Whistleblower Protection Act, and the Hatch Act. The primary
mission of the Office of Special Counsel is to protect Federal
employees from prohibited personnel practices, especially
reprisals for whistleblowing. As part of its work to protect
Federal Government whistleblowers, the Office of Special
Counsel is authorized to receive, investigate, and prosecute
allegations of prohibited personnel practices. The office also
may file complaints with the Merit Systems Protection Board to
seek disciplinary action against individuals who are found to
have committed a prohibited personnel practice.
The Office of Special Counsel also is responsible for
enforcing the Hatch Act that addresses political activities,
protecting the re-employment rights of veterans and reservists,
and operating a disclosure unit to which Federal employees may
disclose information about government waste, fraud, and abuse.
The Office of Special Counsel is a vital agency in our
Federal Government that impacts Federal employees. The nominee
is being considered for an important position of leadership in
this agency, and we appreciate his presence today before the
Committee.
Before I swear in the witness I would like to call upon my
colleague from Kansas, Senator Brownback, to introduce the
nominee. I want to thank Senator Brownback for coming here
today. I understand that Senator Roberts also wanted to be here
today but he has a scheduling conflict with the Intelligence
Committee. So Senator Brownback, welcome to the Governmental
Affairs Committee, and you may proceed.
OPENING STATEMENT OF SENATOR BROWNBACK, A U.S. SENATOR FROM THE
STATE OF KANSAS
Senator Brownback. Thank you very much, Mr. Chairman. Thank
you very much for holding this hearing today as well. Indeed my
colleague Senator Roberts would like to be here, but for a
scheduling conflict. We both strongly support Mr. Bloch's
nomination.
As you noted in your introduction, he has 15 years of
litigation experience ranging in a wide range, civil rights to
employment law and private practice, in areas quite impressive.
This experience, coupled with his recent work at the Department
of Justice I think makes him really an ideal fit for this
Office of Special Counsel, and as Special Counsel in the Office
of Special Counsel.
I am pleased to say he is a fellow Kansan. He was a partner
in a prominent Kansas law firm for 15 years. He taught at the
University of Kansas School of Law, my alma mater. I believe we
even have a coach from your State now at our alma mater, which
I do not want to bring up a sore point with the starting of
basketball season, but he is doing a very nice job.
He was an honors graduate at the University of Kansas. He
was on the board of editors of the law review, won awards for
his writing in law school. He served on charitable and pro bono
boards including the Douglas County Bar Grievance Committee,
where he oversaw, as chair of the investigation and reporting
on attorneys accused of unethical conduct. He was on the board
of discipline that heard testimony and made findings to the
Kansas Supreme Court for the discipline of attorneys. So he is
used to this role in a whistleblower capacity within his own
profession.
In the practice of law, Mr. Bloch has been a champion of
employee rights, ethics, and protection of whistleblowers. He
has demonstrated a resolve to pursue just results even in the
face of difficult odds. He has served in the Justice Department
for the last 2 years, bringing his wife Catherine and their
seven children to live in Virginia. I have met and talked with
his wife and two of their children are here with him today. I
do not think you would probably mind, Mr. Chairman, if he
introduced his wife and children at this point in time.
Senator Fitzgerald. That would be great, if you could do
that.
Mr. Bloch. Thank you, Senator. My wife Catherine is to my
right. My daughter Mary, whose confirmation ceremony I attended
last Monday at our church and now she is reciprocating.
Senator Fitzgerald. How old is Mary?
Mr. Bloch. Mary is 13. Beatrice is 10 years old.
Senator Fitzgerald. Welcome.
Mr. Bloch. My brother William, who came on the red-eye from
California. He is a plaintiff's employment attorney in
California.
Senator Fitzgerald. Welcome. Thank you for being here. You
have five other kids?
Mr. Bloch. That is correct. My youngest daughter celebrates
her birthday today, her first birthday. I also want to
recognize my son who could not be here, but wanted to be, who
is in the Marines and just returned from a tour in Iraq, but he
had to report back to California for duty.
Senator Fitzgerald. Thank him for his service for us. Thank
you.
Senator Brownback. He has obviously a strong tie with his
family, and when he was telling me about his son and the work
that he was doing in the Marines in Iraq, that shows a lot of
strong character as well in a very difficult battle that we are
involved in.
I would just conclude by saying that the Office of Special
Counsel needs someone with rock solid ethics, leadership and a
passion for justice. I think you find that in Mr. Bloch. That
is why Senator Roberts and myself wholeheartedly support his
nomination into this important position in the Federal
Government. Mr. Chairman, thank you very much.
Senator Fitzgerald. Senator Brownback, thank you very much
for introducing the witness for us, and thank you for being
here today. We appreciate you taking time out of your schedule.
Now, I would like to go ahead and swear in the witness, and
thank Senator Brownback for being here today. All witnesses are
sworn in under this Committee's rules and have to take an oath.
[Witness sworn.]
If you would like, Mr. Bloch, you could proceed now with
your statement and then we will proceed to questions. So you
may begin. Thank you for introducing your family earlier.
TESTIMONY OF SCOTT J. BLOCH,\1\ TO BE SPECIAL COUNSEL IN THE
OFFICE OF SPECIAL COUNSEL
Mr. Bloch. Thank you, Mr. Chairman, and Ranking Member,
Senator Akaka, when he gets here, and the Members of the
Committee. I am grateful and deeply honored by the nomination
of the President of the United States to the Office of Special
Counsel. I am equally honored by the introduction from Senator
Brownback from my great State of Kansas, and his and Senator
Roberts' support of my nomination to this honorable position
within our Federal Government.
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\1\ The prepared statement of Mr. Bloch appears in the Appendix on
page 13.
Biographical and professional information appears in the Appendix
on page 14.
Pre-hearing questionnaire and responses appears in the Appendix
on page 20.
Post-hearing questions and responses appears in the Appendix on
page 50.
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The challenges to the Office of Special Counsel are
daunting, but not insurmountable. If you honor me with
confirmation to this position I will do my utmost to carry on
the high standards of integrity and efficiency of the Office of
Special Counsel.
As I reflect today on my background which has prepared me
for this challenge, I am reminded that I grew up with an
understanding of the importance of the underdog. My father was
a lifelong member of a union, the Writers Guild of America, and
he taught me the need for protections for those who are trying
to earn a living for their families, who stand as a lone voice
against a powerful industry. In my law practice I learned to
champion the small worker and found this work to be the most
rewarding of my legal career. That sense of justice and the
rule of law inspired me to come to Washington for a career in
public service. It continues to inspire me in this new position
for which I have been nominated.
In Plato's Republic, Socrates asks whether justice is
merely the will of the stronger. Socrates was a gadfly of
Athens and may, in a certain sense be considered the first
whistleblower for he exposed official corruption and called for
real justice based on principle, based on each person's due.
OSC stands as a gadfly to those who would impose their will
on the weaker, who would punish whistleblowers for exposing
corruption, waste, and illegality that endanger the public. OSC
stands as a guardian of justice and accountability in the
Executive Branch. Responsible government is vital to the
functioning of our country. The founders of our Nation set up a
system of self-government with checks and balances. From the
important protections of whistleblowers and civil and political
rights of employees, to enforcing the Hatch Act, to protecting
re-employment rights and veterans preferences for those who are
literally putting their lives at risk for our liberty and the
liberty of others throughout the world, I see this office as
being a part of an ethical, self-governing nation.
I look forward to helping protect our country and the
important work of nearly three million civilian employees in
the Executive Branch. I look forward to working with you, Mr.
Chairman, and the Members of this Committee and the
professional staff at OSC to improve the merit system of civil
service. I thank you for this opportunity to appear before this
Committee and to answer your questions.
Senator Fitzgerald. Thank you. That was a very good
statement and I like your reference to Socrates, and your
citing of him as perhaps the first whistleblower is very
apropos. So thank you for that insight.
I am going to ask you a series of questions that our
Committee asks of all nominees. These are standard questions,
and then we will proceed into more specifically tailored
questions regarding the Office of Special Counsel.
First, is there anything that you are aware of in your
background which might present a conflict of interest with the
duties of the office to which you have been nominated?
Mr. Bloch. No.
Senator Fitzgerald. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. Bloch. No.
Senator Fitzgerald. Do you agree without reservation to
respond to any reasonable summons to appear and testify before
any duly constituted committee of Congress if you are
confirmed?
Mr. Bloch. I do.
Senator Fitzgerald. Mr. Bloch, you have extensive private
sector experience in litigation, and most recently you have
been serving as Counsel and Deputy Director for the Task Force
for Faith-based and Community Initiatives at the Department of
Justice. How will you bring these experiences to bear on the
work that you will undertake as a Special Counsel at the Office
of Special Counsel?
Mr. Bloch. Thank, you, Senator. I appreciate this
opportunity to explore how my background can help with the
position of Special Counsel. It is my understanding that the
office requires someone who has a wide background in employment
laws, who has a passion for protecting the rights of workers,
who has an understanding of the interplay between various
statutes and common-law doctrines concerning employment law. I
believe I fit that bill. In my 15 years of practice in my law
firm I was our resident expert in the area of employment law
and quickly developed a specialty in plaintiffs employment
work, which comprised better than a majority of my practice. I
also represented----
Senator Fitzgerald. Did you also represent some defendants
in labor lawsuits against companies? Did you represent some of
the companies being sued?
Mr. Bloch. Yes, I did, Senator. I believe that my
background, which began when I was a law student and I clerked
for a national labor law firm----
Senator Fitzgerald. Is that Seyfarth, Shaw?
Mr. Bloch. Seyfarth, Shaw, from your fine State.
Senator Fitzgerald. But you worked in the Los Angeles
office; is that right?
Mr. Bloch. I did. We had the best of both worlds out there.
In that capacity, that whetted my appetite for the area of
labor law and employment law. When I got into private practice
I began to represent individuals and found that that was both
fascinating and rewarding because you got to develop the facts
from the outset and really see the perspective from the worker.
Senator Fitzgerald. Can you give us some examples of the
types of plaintiffs you represented, the types of aggrieved
workers? What kind of cases would these have been?
Mr. Bloch. They ranged anywhere from civil rights claims,
sexual discrimination, racial discrimination, disability
discrimination, fair labor standards practices cases, Family
Medical Leave Act cases, retaliation cases. Retaliation is a
rather broad topic and it includes a number of things under its
umbrella, such as whistleblowing, retaliation for exercise of a
protected right such as testifying, jury duty, workers
compensation claims, and so on. There is also a subcategory of
discrimination claims that result in a retaliation or a
reprisal against an employee. I represented plaintiffs in all
of those areas. In all of those areas actually I represented
some corporations as well because we would often have--since I
was the resident expert in the firm, all of the firm clients
would come to me for help with any kind of appearance before an
administrative agency or a local agency investigating claims at
the early stages of any kind of discrimination or reprisal
against an employee. So I have been experienced in all of those
areas. And other areas as well, under ERISA, Section 1132
claims, 1983 claims involving constitutional rights, as well as
protected employment rights and property interests.
Senator Fitzgerald. You really have a very broad labor law
background. Did you only do labor law cases when you were in
the private sector or did you do other things?
Mr. Bloch. No, I was in a smaller firm. We had about 14
lawyers so you had to--I was the chair of the litigation
department for the last 5 years of practice, so you had to be
able to think on your feet and do a lot of different areas. I
practiced in securities fraud, some medical malpractice, both
on the plaintiffs and the defense side, as well as complex
commercial litigation, ethics law which included claims against
law firms both regional as well as national. So I had about 60
percent of my practice, 65 percent, in employment and the rest
was a smattering of these other areas, including administrative
law.
Senator Fitzgerald. Now the Special Counsel actually has
several roles. On one hand, they are advocates for
whistleblowers. On the other hand, in certain cases they may be
required to actually prosecute government officials who have
had the whistle blown on them. Where it merits prosecution, the
Office of Special Counsel has to prosecute them; is that right?
What is your understanding of the office based on your
preparation for going into the office?
Mr. Bloch. Thank you, Senator. The office, as I understand
it, is to be a protector or guardian of the merit system of
civil service and the merit system principles as found in Title
5 of the United States Codes, Section 2301, to make certain
that we have an efficient workforce and that employees are not
reprised against, or mistreated or discriminated against on
non-merit related issues, as well as bringing corrective
actions to protect those employees, and when necessary and when
merited, to bring disciplinary complaints against supervisors
or even high level officials. So there is clearly a dual, maybe
even a triple role that the office serves.
Senator Fitzgerald. Have there been any actions brought
against high-level officials of which you are aware?
Mr. Bloch. Yes, there have been a number. Some of them, as
I understand it, have not public record but some are. But, yes,
there have been.
Senator Fitzgerald. Is there not a public record of these
proceedings?
Mr. Bloch. I was limited in what I could get into with the
Office of Special Counsel and the Acting Special Counsel, so
there were certain things I was not allowed to see. Names, for
instance. But I could see expurgated or redacted files, or
redacted letters that had been written to the President or to
high-level officials in agencies concerning other high-level
officials. So, yes, I am aware of some.
Senator Fitzgerald. So there are prosecutions going on and
the public does not know anything about them?
Mr. Bloch. No, I am not saying that it is withheld from the
public. There are some things as I understand it, of a national
security nature that may be protected and I am not able to look
at them at this time.
Senator Fitzgerald. Things that do not have an intelligence
reason or a national security reason for protecting, do they
make public those prosecutions when the Office of Special
Counsel is actually going after a government official for
waste, fraud or abuse that is actionable under the
whistleblowers statute? Do they make that publicly available?
Mr. Bloch. Senator, my understanding is it is a matter of
public record when a disciplinary action is filed or a
corrective action is filed with MSPB. The fact or existence of
an investigation file I cannot honestly tell you as I sit here
that I know that the investigations files are public. I do not
think they are, but I really would have to ask a staff member.
Senator Fitzgerald. But when an action is filed--we have
been joined by our Ranking Member, Senator Akaka. Thank you
very much for being here. Senator, you may have an opening
statement that you wish to give, and we would be happy to allow
you to proceed at this time.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you very much, Mr. Chairman. I want to
thank you for your leadership and I want to tell you that I am
pleased you are having this nomination hearing for Scott Bloch
to be Special Counsel. I want to join you in welcoming his
lovely family, and also any friends who are joining him this
afternoon. So, welcome.
The Office of Special Counsel was created under the Civil
Service Reform Act way back in 1978. It is an independent
Federal investigative and prosecutorial agency whose primary
mission is to safeguard the merit system by protecting Federal
employees and applicants from prohibited personnel practices.
Unfortunately, for many years, OSC was seen as more of an
adversary than an ally to whistleblowers. During congressional
hearings in the 1980's, this Committee was urged to abolish the
OSC. Instead we chose to strengthen the agency and gave it a
new charter. The charter is to protect employees, especially
whistleblowers, from prohibited personnel practices and to act
in the interest of employees who seek its assistance.
Our Committee affirmed that the OSC should not act contrary
to those interests. This requires a Special Counsel to be a
strong and independent advocate for whistleblowers. The Special
Counsel must also be an educator, one who will ensure that
Federal employees understand their rights and protections when
disclosing waste, fraud, and abuse within the government. All
too often workers find out too late that they are not covered
by the Whistleblower Protection Act or are unaware of their
rights and protections.
If confirmed, I urge you to make it a priority to inform
Federal employees of their rights and protections or the lack
thereof. Employees should not be losing their jobs or be
subject to possible civil or criminal penalties because their
agencies failed to educate its workforce of their rights and
protections under the law. Federal civil servants should be
encouraged to come forward with information vital to ensuring
government accountability and a secure Nation.
Mr. Bloch, I want to thank you for being here today, and I
am glad to have your family here as well. Thank you very much,
Mr. Chairman.
Senator Fitzgerald. Mr. Bloch, I was wondering if you would
want to describe what you think may be some of the challenges
the Office of Special Counsel might face in the coming years.
As Special Counsel, how will you address these challenges and
which issues will be your top priorities?
Mr. Bloch. Thank you, Senator. I have thought about this
issue. I think it is very important to go in with an idea of
what it is that you are facing in the way of challenges and
what kind of vision you might have for the future. I look
forward to working with this Committee and with you and with
the staff at OSC to implement a broad vision for the future.
That includes sending a message to the Federal workforce and to
the public that efficiency, expeditious handling of claims is
very important. That whistleblowers are going to be protected
in not only name, and not only in words, but in action. That
with the changing nature of the Federal personnel system as we
see in several different agencies, that we have to fashion a
better system for employee understanding of rights, because it
can become very confusing, or there can be a crossfire of
different avenues and different procedures that employees are
put into and they are not sure what to do and become very
confused. So we have to educate, and I thank the Ranking Member
for bringing that to bear here today, that education is a very
important part of the future of this office.
Senator Fitzgerald. The office has quite a backlog right
now, does it not?
Mr. Bloch. Yes, Senator. I am aware of the backlog. At the
current time there are really three divisions of OSC where a
backlog can become a serious issue or it has become something
of a serious issue. Leaving aside for the moment the Hatch Act
unit, the three areas under the prohibited personnel practices
that we think of when we talk about the backlog are in the CEU,
or Complaints Examining Unit, the IPD, or the Investigation and
Prosecution Division, and then the DU, or the Disclosure Unit.
As you know, the primary mission of OSC is the protection of
employees from prohibited personnel practices, especially
reprisal for whistleblowing. Then secondarily, although not a
far second, is a secure channel for the receipt of disclosures
of wrongdoing in the government, of gross waste, of gross
mismanagement, of illegality, of substantial danger to the
public health or welfare.
Senator Fitzgerald. Do you know how large of a staff you
will have under you?
Mr. Bloch. Currently there are about 103 full-time
equivalents. Special Counsel's office has a number of positions
that have not been refilled; that have become vacant. So that
the budget that exists for OSC has not been fully utilized for
the full-time equivalents now. In the President's budget for
2004, in addition to filling approximately six or seven
positions that have been vacant, there is an additional
opportunity for filling an additional seven, I think, full-time
equivalents to bring it to 113 under the 2004 budget, which I,
of course, support.
Senator Fitzgerald. Do you know how many cases wind up with
the OSC?
Mr. Bloch. The number of matters that come in for
prohibited personnel practices is a little over 2,000.
Senator Fitzgerald. A year?
Mr. Bloch. A little under 2,000 I should say, per year
average.
Senator Fitzgerald. Has that been going up over the years,
do you know?
Mr. Bloch. In reality, in the last 3 years there has been a
little bit of a dip. There has been a year where it went down,
and then went back up to pretty much a level that was
experienced a few years ago.
Senator Fitzgerald. How many of those cases typically get
prosecuted?
Mr. Bloch. That are recommended for actual prosecution,
that are not closed for one reason or another, or settled in an
alternative dispute resolution?
Senator Fitzgerald. Right.
Mr. Bloch. Around 400.
Senator Fitzgerald. Get prosecuted? That is a lot.
Mr. Bloch. That are referred out. Then of those that get
through the Investigation Prosecution Division, I think we are
talking about 150 to 200 that actually go forward with
continuing prosecution. Then if you are asking about the number
of cases that actually go to the Merit Systems Protection
Board, it is a smaller number. What that number is I cannot
tell you, but it is significantly smaller, I believe.
Senator Fitzgerald. Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman. Mr.
Bloch, as you know the OSC is responsible for working with
agencies to ensure that employees know of their rights and
protections when they believe they have been retaliated
against. However, we are finding that employees are still
unaware of their rights. Do you see any deficiencies that exist
in law that prevent employees from knowing their rights and
protections?
Mr. Bloch. Thank you, Senator. I believe this is a very
important area that you have raised, and I thank you for your
leadership in this area. I believe that the current law, the
2302(c) certification program is one area that is being under-
utilized potentially. In addition to that, there is the
education program, the ongoing education program and outreach
program of OSC to the agencies. This is something that I feel
strongly about. It is something that I have enjoyed
tremendously in my current work in the Justice Department, is
going not only to the public and educating and doing outreach,
but actually going in among the agencies in the Federal
Government. So there has been quite a bit of work, we have done
interagency outreach and so on, that has been very helpful in
educating employees and officials. I look forward to doing the
same and on an expanded basis in the Office of Special Counsel.
Senator Akaka. Thank you, Mr. Bloch. Under both the
whistleblower statute and the labor management statute, the
President may exclude agencies from coverage of those laws for
national security reasons. However, in the labor management
context the President is required to issue an Executive Order
when removing agencies. Would you support adding a similar
requirement to the WPA?
Mr. Bloch. Senator, thank you. I do understand that there
are a number of agencies that have been excluded in the past
from certain personnel laws, and even currently we are facing a
bill with the Department of Defense as well as Homeland
Security which already has gone through and there have been
discussions about, to what extent are the personnel laws going
to be applied? Will the Secretary of an agency voluntarily
agree to those provisions to be enforced?
I do know that in the Department of Defense as well as in
certain portions of Homeland Security, for instance, the
prohibited personnel practices, especially whistleblowing
rights, will still apply. So I think it is important that any
bill that comes out spells out and is very clear about the need
for employees to be informed of their rights and to
specifically have this delegated to the agency officials.
Senator Akaka. Thank you. Federal employees are entrusted
to serve the American public by helping the Nation prevent and
recover from terrorist attacks, fighting crime and diseases,
improving our economy, and protecting the environment. As such
we must provide them with adequate protections for coming
forward with information vital to an effective government.
Based on your background and your experience in whistleblower
issues, are there elements of any State or other whistleblower
system that you believe should be included in the WPA?
Mr. Bloch. Thank you, Senator. I have reflected on this and
the thing that concerns me most is that when you look at State
law whistleblower claims, the common law in the majority of
States in the United States, and certainly in the Midwest
region where I was most familiar with, you find a sense in
which the courts and the law that has developed has required
employees to jump through hoops, and to use magic words and
magic procedures, and that if they do not there is a sense of
gotcha. I think the law should not be that way. I think the law
has always been and always needs to be evenhanded, non-
discriminatory, and not tilted in a particular person's
direction or company's direction.
So I think it is important, it is vital that the law
reflect that sense of evenhandedness, and fairness, especially
in the whistleblower area where there seems to have developed a
kind of accretion of requirements that are not in the spirit of
what a whistleblower is, which is someone who believes in
accountability and who is actually trying to help the public or
the company, or the government in this case, and yet they are
retaliated against and punished, and that is wrong.
Senator Akaka. Thank you for that response, and thank you
for your other responses, Mr. Bloch.
Thank you, Mr. Chairman.
Senator Fitzgerald. Thank you, Senator Akaka. I may just
ask one more question before we are going to have to go into
another hearing on actually a revision to the whistleblower
laws. We are going to be considering a bill Senator Akaka is
sponsoring.
I wanted to ask you about veterans. Your responsibilities
will include protecting the rights of veterans. They do get a
preference for government employment. There will be a lot of
reservists and servicemen and women who will be returning from
Iraq and Afghanistan. How do you plan to protect the re-
employment rights of veterans and reservists under the law?
Mr. Bloch. Thank you, Senator. I believe that protecting
the rights of reservists, veterans, is very important to our
country and to our integrity as a government. Just today or
yesterday, I believe, there was an article in the Washington
Post that reflected a problem with enforcement of the Uniformed
Services Employment and Re-employment Rights Act, as well as
veteran preferences. Since approximately a year ago there have
been something in the order of 1,300 returning reservists and
veterans from service to our country who have not been returned
to their jobs or have not been given the employment benefits to
which they are entitled. Very much like the whistleblower
situation, we have people who are being, in a sense, punished
for having served the public good and the country. We cannot do
this.
So I feel committed to this area as well as the other areas
of the office, and we have tools within the Special Counsel's
law office, if I am lucky enough to be confirmed, that I can
utilize such as the prohibited personnel practices concerning
veterans preferences, 2302(b)(11) as well as the USERRA Act. We
have, to my understanding--the staff has told me at OSC that we
have a good relationship with the vets office at the Department
of Labor where they are now currently mounting a campaign to
bring awareness to the public. I think their slogan is, ``They
Did Their Job. Let's Give them Their Jobs Back,'' or something
to that effect. I fully support that. I will enforce the USERRA
laws as well as veterans preferences vigorously.
Senator Fitzgerald. Thank you very much, Mr. Bloch. Very
good answers to our questions. I appreciate your appearance
here today, and congratulate you and your family on your
nomination. Please extend our good wishes to the rest of your
children, all five of them who couldn't be here, and good luck
to you. We appreciate you having come today.
Without objection, the hearing record will remain open for
any additional statements or questions from Senators through 5
p.m. on Tuesday, November 18, 2003.
If there is no further business to come before the
Committee, this nomination hearing is adjourned and we will now
take a 5-minute break while staff prepare for the legislative
hearing on S. 1358.
Thank you very much.
[Whereupon, at 2:47 p.m., the Committee was adjourned.]
A P P E N D I X
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