[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]




 ENSURING A MERIT-BASED EMPLOYMENT SYSTEM: AN EXAMINATION OF THE MERIT 
       SYSTEMS PROTECTION BOARD AND THE OFFICE OF SPECIAL COUNSEL

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON FEDERAL WORKFORCE,
                    POSTAL SERVICE, AND THE DISTRICT
                              OF COLUMBIA

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 12, 2007

                               __________

                           Serial No. 110-197

                               __________

Printed for the use of the Committee on Oversight and Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 HENRY A. WAXMAN, California, Chairman
TOM LANTOS, California               TOM DAVIS, Virginia
EDOLPHUS TOWNS, New York             DAN BURTON, Indiana
PAUL E. KANJORSKI, Pennsylvania      CHRISTOPHER SHAYS, Connecticut
CAROLYN B. MALONEY, New York         JOHN M. McHUGH, New York
ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
DANNY K. DAVIS, Illinois             TODD RUSSELL PLATTS, Pennsylvania
JOHN F. TIERNEY, Massachusetts       CHRIS CANNON, Utah
WM. LACY CLAY, Missouri              JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California          MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts      DARRELL E. ISSA, California
BRIAN HIGGINS, New York              KENNY MARCHANT, Texas
JOHN A. YARMUTH, Kentucky            LYNN A. WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa                PATRICK T. McHENRY, North Carolina
ELEANOR HOLMES NORTON, District of   VIRGINIA FOXX, North Carolina
    Columbia                         BRIAN P. BILBRAY, California
BETTY McCOLLUM, Minnesota            BILL SALI, Idaho
JIM COOPER, Tennessee                JIM JORDAN, Ohio
CHRIS VAN HOLLEN, Maryland
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
                  David Marin, Minority Staff Director

Subcommittee on Federal Workforce, Postal Service, and the District of 
                                Columbia

                        DANNY K. DAVIS, Illinois
ELEANOR HOLMES NORTON, District of   KENNY MARCHANT, Texas
    Columbia                         JOHN M. McHUGH, New York
JOHN P. SARBANES, Maryland           JOHN L. MICA, Florida
ELIJAH E. CUMMINGS, Maryland         DARRELL E. ISSA, California
DENNIS J. KUCINICH, Ohio, Chairman   JIM JORDAN, Ohio
WM. LACY CLAY, Missouri
STEPHEN F. LYNCH, Massachusetts
                      Tania Shand, Staff Director









                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 12, 2007....................................     1
Statement of:
    Bloch, Scott J., special counsel, U.S. Office of Special 
      Counsel; and Neil McPhie, chairman, Merit Systems 
      Protection Board...........................................     4
        Bloch, Scott J...........................................     4
        McPhie, Neil.............................................    13
    Miles, Adam, legal representative, Government Accountability 
      Project; Natresha Dawson, former Office of Special Counsel 
      employee and whistleblower; Lara Schwartz, chief 
      legislative counsel, Human Rights Campaign; and Beth Daley, 
      director of investigations, the Project on Government 
      Oversight..................................................   111
        Daley, Beth..............................................   159
        Dawson, Natresha.........................................   136
        Miles, Adam..............................................   111
        Schwartz, Lara...........................................   149
    Rosenberg, Morton, Senior Analyst, Congressional Research 
      Service, accompanied by Thomas J. Nicola, Legislative 
      Attorney, American Law Division, Congressional Research 
      Service; and Henry B. Hogue, Analyst, American National 
      Government, Government and Finance Division, Congressional 
      Research Service...........................................    58
Letters, statements, etc., submitted for the record by:
    Bloch, Scott J., special counsel, U.S. Office of Special 
      Counsel, prepared statement of.............................     6
    Daley, Beth, director of investigations, the Project on 
      Government Oversight, prepared statement of................   161
    Davis, Hon. Danny K., a Representative in Congress from the 
      State of Illinois, prepared statement of...................   175
    Dawson, Natresha, former Office of Special Counsel employee 
      and whistleblower, prepared statement of...................   137
    McPhie, Neil, chairman, Merit Systems Protection Board, 
      prepared statement of......................................    15
    Miles, Adam, legal representative, Government Accountability 
      Project, prepared statement of.............................   113
    Rosenberg, Morton, Senior Analyst, Congressional Research 
      Service, prepared statement of.............................    62
    Schwartz, Lara, chief legislative counsel, Human Rights 
      Campaign, prepared statement of............................   151

 
 ENSURING A MERIT-BASED EMPLOYMENT SYSTEM: AN EXAMINATION OF THE MERIT 
       SYSTEMS PROTECTION BOARD AND THE OFFICE OF SPECIAL COUNSEL

                              ----------                              


                        THURSDAY, JULY 12, 2007

                  House of Representatives,
Subcommittee on Federal Workforce, Postal Service, 
                      and the District of Columbia,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m. in room 
2154, Rayburn House Office Building, Hon. Danny K. Davis 
(chairman of the subcommittee) presiding.
    Present: Representatives Davis of Illinois, Cummings, Clay, 
Norton, Davis of Virginia, Mica, Issa, Marchant, and Jordan.
    Staff present: Tania Shand, staff director; Caleb 
Gilchrist, professional staff member; Lori Hayman, counsel; 
Cecelia Morton, clerk; Ashley Buxton, intern; David Marin, 
minority staff director; Keith Ausbrook, minority general 
counsel; Ellen Brown, minority legislative director and senior 
policy counsel; Jim Moore, Steve Castor and Charles Phillips, 
minority counsels; Howie Denis, minority senior professional 
staff member; Alex Cooper, minority professional staff member; 
Patrick Lyden, minority parliamentarian and Member services 
coordinator; and Brian McNicoll, minority communications 
director.
    Mr. Davis of Illinois. The subcommittee will come to order.
    Let me first of all welcome Ranking Member Marchant, who is 
on his way. Members of the subcommittee, hearing witnesses, and 
all of those in attendance, welcome to the Federal Workforce, 
Postal Service, and the District of Columbia Subcommittee 
hearing entitled, ``Ensuring a Merit-Based Employment System: 
an Examination of the Merit Systems Protection Board and the 
Office of Special Counsel.''
    The purpose of the hearing is to examine how the Office of 
Special Counsel and the Merit Systems Protection Board are 
meeting their statutory mission and safeguarding the Federal 
Government's merit-based system of employment. The hearing will 
examine each agency's reauthorization request.
    Hearing no objection, the Chair, ranking member, and 
subcommittee members will each have 5 minutes to make opening 
statements, and all Members will have 3 days to submit 
statements for the record.
    I will note that the ranking member is not here, but the 
ranking member of the full committee, Representative Tom Davis, 
is, in fact, here. We are delighted that he is present.
    As I indicated, Members will have 5 minutes to make opening 
statements, and all Members will have 3 days to submit 
statements for the record.
    I will begin with an opening statement and then proceed.
    Welcome to today's hearing on the Office of Special Counsel 
[OSC], and the Merit Systems Protection Board [MSPB]. The OSC 
and MSPB, which were established in 1978 by the Civil Service 
Reform Act, are responsible for safeguarding the Federal 
Government's merit-based system of employment. On October 13, 
1978, when President Jimmy Carter signed the Civil Service Act 
into law, he said, ``This legislation will bring fundamental 
improvements to the Federal personnel system. It puts merit 
principles into statute and defines prohibited personnel 
practices. It provides better protection for employees against 
arbitrary actions and abuses and contains safeguards against 
political intrusion. The act assures that whistleblowers will 
be heard and that they will be protected from reprisal.''
    President Carter said, ``Now this bill is law, but this is 
just the start of a continuing effort to improve the Federal 
Government's services to the people. By itself, the law will 
not ensure improvement in the system. It provides the tools; 
the will and determination must come from those who manage the 
Government.''
    Those who manage the Government must have the will and 
determination to ensure, in the case of OSC and MSPB, that 
Federal employees who disclose information of Government waste, 
fraud, and abuse are not retaliated against; that Government 
employees comply with legal restrictions on political activity; 
and that employee appeal cases are adjudicated in a fair and 
timely fashion.
    Unfortunately, there is some indication that the will and 
determination is not there. Stakeholders such as the Government 
Accountability Project, the Project on Government Oversight, 
and the Public Employees for Environmental Responsibility claim 
that OSC is not giving badly needed attention to Federal 
whistleblower cases.
    For this reason I am pleased to have joined Chairman Waxman 
and Ranking Member Davis in co-sponsoring H.R. 986, The 
Whistleblower Protection Act of 2007. This legislation, which 
has passed the House and is waiting consideration in the 
Senate, would grant whistleblowers the right to challenge 
reprisals in Federal District Court and clarifies that any 
protected disclosure applies to all lawful communication of 
misconduct.
    OSC and MSPB were last reauthorized in 2002 for 5 years. 
Both agencies are seeking reauthorization through fiscal year 
2012 and additional legislative changes. These additional 
legislative changes have to be reviewed carefully.
    I am sure that Ms. Norton will share her thoughts on OSC's 
reauthorization request to be allowed to relocate out of the 
District of Columbia.
    The Congressional Research Service has indicated that 
provisions in MSPB's reauthorization request, which the MSPB 
has characterized as technical corrections, would substantively 
enhance the power and authority of the Office of the chairman, 
which is counter to current congressional intent.
    I ask unanimous consent to submit for the record the 
statements of the National Treasury Employees Union and the 
American Federation of Government Employees. Both groups are 
opposed to MSPB's reauthorization request to approve motions 
for summary judgment. They argue that this would lead to the 
loss of crucial employee rights, including employees' ability 
to defend themselves from unjust adverse actions.
    I look forward to hearing the witnesses address these and 
other issues pertaining to the statutory mission of OSC and the 
MSPB.
    Now I would yield to the ranking member of the full 
committee for any opening remarks that he would have.
    Mr. Davis of Virginia. Mr. Chairman, I think to move things 
along I ask that my statement be put in the record. We have a 
fairly lengthy statement.
    Mr. Davis of Illinois. Thank you very much, without 
objection.
    I will introduce the first panel. The Honorable Scott J. 
Bloch brings over 17 years of experience to the Office of 
Special Counsel, including litigation of employment, lawyer 
ethics, and complex cases before State courts, Federal courts, 
and administrative tribunals.
    On June 26, 2003, President George W. Bush appointed Mr. 
Bloch for the position of special counsel. The U.S. Senate 
unanimously confirmed him.
    We welcome you, sir.
    The Honorable Neil McPhie was confirmed as chairman of the 
U.S. Merit Systems Protection Board on November 21, 2004. He 
had served as acting chairman since December 10, 2003, when 
President Bush designated him to be vice chairman.
    Prior to joining the Board, he was senior assistant 
attorney general in the Office of the Attorney General of 
Virginia. Among other responsibilities, he defended employment 
discrimination claims brought under the Federal law and 
wrongful discharge claims brought under State law.
    I want to thank both of you gentlemen for being here.
    As is customary, if you gentlemen would stand and raise 
your right hands, we will swear in the witnesses.
    [Witnesses sworn.]
    Mr. Davis of Illinois. The record will show that each 
witness answered in the affirmative.
    Thank you, gentlemen, very much. You may be seated.
    The green light, of course, indicates that you have 5 
minutes to summarize your statement. The yellow light means 
that your time is running down, that you have 1 minute left. Of 
course, the red light means that your time has expired.
    We will begin with Mr. Bloch. After we have heard from both 
witnesses, we will begin the questioning.
    Thank you very much, sir. You may proceed.

 STATEMENTS OF SCOTT J. BLOCH, SPECIAL COUNSEL, U.S. OFFICE OF 
   SPECIAL COUNSEL; AND NEIL MCPHIE, CHAIRMAN, MERIT SYSTEMS 
                        PROTECTION BOARD

                  STATEMENT OF SCOTT J. BLOCH

    Mr. Bloch. Chairman Davis, Ranking Member Davis, Member 
Mica, distinguished members of the committee, John Adams said, 
``Good government is an empire of laws.'' As the special 
counsel of the U.S. Office of Special Counsel, I am requesting 
reauthorization because upholding USC's laws keeps Government 
accountable and lawful.
    I am pleased to tell you OSC is functioning better than 
ever, while continuing to improve. Morale is high, and I am 
proud of the very qualified employees who uphold the laws every 
day to provide a needed, independent watchdog over the 
executive branch. Our independance is our bulwark. Your support 
of this independence fosters greater public trust in Government 
and combats the negative image of Government as catering to 
special interests.
    I have submitted written testimony that goes into greater 
detail, but let me give an overview of how we are functioning 
in four important areas: whistleblower disclosures; prohibited 
personnel practices--especially whistleblower reprisal; Hatch 
Act limiting political activity of Government employees; and 
Uniformed Services Employment and Reemployment Rights Account 
[USERRA], protecting job rights of military service members.
    These charts I have brought show our progress. The first is 
our whistleblower disclosure unit. It shows a steep dropoff in 
numbers of pending cases from year to year during my tenure.
    The next chart shows the number of cases rising and 
increased referrals of substantiated whistleblower claims that 
go to agencies for full investigation. We doubled the number of 
those over prior years.
    This translates into a safer and more efficient America, in 
cases ranging from better border patrol enforcement to 
combating procurement waste.
    One significant case you may remember is Anne Whiteman, 
whom we awarded our Public Servant of the Year Award in 2005 
for her disclosures of FAA's 7-year cover-up of near misses and 
operational errors at Dallas-Fort Worth International Airport. 
Based on new disclosures of Ms. Whiteman and an additional 
whistleblower, we wrote this week to the Secretary of 
Transportation demanding a full investigation of cover-ups and 
a possible nationwide policy to improperly reduce reporting of 
operational errors and to hold to account those involved in the 
cover-up and those who are retaliating against Ms. Whiteman.
    The next chart is prohibited personnel practices, showing a 
decrease in processing times by half from 2004 to 2006.
    The next chart shows a decrease in average age of cases in 
our IPD, or prosecution unit. Prominent cases in this area 
include a finding of retaliation by the Inspector General of 
the Department of Commerce against a subordinate who reported 
possible travel fraud. After reporting out to the President, 
the IG is no longer with the Department of Commerce.
    Monday we got a permanent stay for a DEA whistleblower, Mr. 
Waddell, who reported unconstitutional witness interrogation 
and was retaliated against. After opening statements, the DEA 
settled and gave full corrective action.
    Our next chart shows our Hatch Act unit and how it is 
bringing down processing times in the cases in the years that I 
have been here, and then the chart after that shows an increase 
of disciplinary and corrective actions in the same period.
    We have had several higher-profile rulings from the Board 
in the last year that emphasized the reach of the Hatch Act in 
areas such as Government e-mail use, and we are looking into 
the appropriateness of presentations throughout the executive 
branch on political races.
    Regarding USERRA, the final chart, it shows that we are 
achieving results in protecting the rights of military service 
members. This is a distinct priority for me, not only as head 
of OSC but as the father of a veteran Marine who has served 
three tours of duty in Iraq. I filed the first three USERRA 
prosecutions in our agency's history in my first year. We 
created a USERRA unit, and the demonstration project begun at 
OSC in 2004 expires at the end of this fiscal year, but we ask 
that it be made permanent.
    We have achieved a 25 percent corrective action rate. Such 
is the case of a service member injured in Iraq who was denied 
his postal job on his return. We got his job back, and back pay 
for him.
    We were criticized by outside groups after fixing the 
chronic backlogs at OSC, so at our request in May 2005 
bipartisan staff from this committee did an onsite review of 
OSC's work. They pored over our files and interviewed numerous 
career attorneys over 3 weeks. Committee staff on both sides 
expressed satisfaction that OSC did nothing wrong, and OSC 
received a kind letter from then committee Chairman Tom Davis 
praising OSC's hard work and protection of whistleblowers. Here 
is a blow-up of that letter.
    My written statement includes details of our legislative 
reauthorization request.
    I look forward to answering any questions you may have, and 
thank you.
    [The prepared statement of Mr. Bloch follows:]



    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    
    Mr. Davis of Illinois. Thank you, Mr. Bloch.
    Mr. McPhie.

                    STATEMENT OF NEIL MCPHIE

    Mr. McPhie. Thank you, Chairman Davis and other Members, 
for giving me the opportunity to come before you and tell you 
what we have done to safeguard the merit system principles.
    I serve as the chairman of the MSPB. I will ask that my 
official statement be submitted for the record.
    I am pleased to support that the Board has been voted one 
of the best places to work in the Federal Government for 2007. 
Today I will highlight some of the Board's accomplishments 
since the last reauthorization and summarize the legislative 
proposals we have submitted. Finally, I will discuss some of 
the challenges that I foresee in the Board's future.
    From fiscal year 2002 to 2007, the Board adjudicated 42,145 
cases, for an average of 8,429 cases per year. The average 
processing time for initial decisions at the beginning of the 
last reauthorization period was 99 days. We have reduced 
processing time significantly, with an average of 89 days for 
fiscal year 2006. We have also made significant progress in 
reducing the average case processing time at headquarters from 
265 days in fiscal year 2005 to 154 days in fiscal year 2006; 
yet, there has been no sacrifice in the quality of our 
decisions. During this period, a Court of Appeals for the 
Federal Circuit affirmed 93 percent of the Board cases that 
were appealed to that court.
    The Board has embraced technology to expedite case 
processing. For example, since 2002 we have increased the use 
of video conferencing. In fiscal year 2003, MSPB implemented an 
electronic appeals process that allows appellants and other 
parties to file initial appeal using the Internet. Currently, 
approximately 25 percent of all initial appeals are filed 
electronically.
    In addition to the Board's successful adjudication 
settlement program, the Board has implemented its mediation 
appeal program nationwide in 2004. Although only a few years 
old, MAP has resulted in the successful settlement of more than 
100 appeals.
    The Board also conducts independence, nonpartisan, 
objective research and produces reports that promote the merit 
system values embodied in title 5. Between 2002 and 2006, the 
Board issued over 20 reports. Board employees also conducted 
more than 400 outreach presentations to generate awareness of 
Board activities and responsibilities.
    With respect to general management issues, I am pleased to 
report that the Board has earned a clean audit for each of the 
4-years that Federal agencies have been required to submit a 
financial audit.
    During this reauthorization period, we are requesting the 
enactment of six legislative proposals in an effort to improve 
the efficiency and effectiveness of the Board. One proposal 
seeks to provide for an order of succession for the Board when, 
one, the Board membership is comprised of two or more Board 
members but no member has been designated chairman or vice 
chairman; or, two, all three board positions are vacant.
    This proposed legislation recognizes the President's 
prerogative to control key executive branch appointments while 
preserving the continuity of agency operations.
    In another proposal, the Board requests summary judgment 
authority, as other agencies such as the EEOC already have. We 
believe that such authority would greatly enhance the 
efficiency of the Board's adjudicatory process, without 
adversely affecting the rights of appellants.
    The Board also requests three technical corrections. 
Pursuant to statute, the chairman of the Board serves as the 
chief executive and administrative officer of the agency. As 
such, the chairman has historically exercised chief executive 
responsibilities for the agency. Two other proposed technical 
amendments merely reconcile inconsistent provisions. The third 
amendment emphasizes the chairman's authority to delegate 
certain responsibilities to the employees he or she appoints.
    Finally, the Board requests unlimited exemption from 
requirements in the Sunshine Act. In accordance with the 
responsibility of a quasi-judicial agency, the three-member 
board functions similar to a court when it deliberates and 
decides cases. The proposed exemption from requirements of the 
Sunshine Act will enable the Board members to freely discuss 
and deliberate cases.
    As a Federal agency, the Board faces several potential 
challenges in the near future. Factors that could result in 
increase in the Board's caseload include the anticipated 
increase in retirement and the resultant increase in hiring, 
changes in traditional, present, and new legislation may also 
result in an increase in the Board's caseload.
    Additionally, we have been working to prepare for the 
implementation of the new employee appeal system for DHS. We 
recognize that the MSPB, itself, will be directly affected by 
the increase in Federal Government retirements. Within 5 years, 
40 percent of the MSPB's work force will be eligible to retire. 
Only 20 percent are eligible at this moment. To prepare for 
these retirements, my administration has looked for creative 
ways to attract, develop, and retain employees. For example, I 
have directed each office to develop a succession plan. I have 
also instituted and developed a new training program throughout 
the agency.
    My time is up. I have one final point. May I finish, Mr. 
Chairman?
    In short, Board members, officials, and staff have 
successfully fulfilled the agency's statutory missions. In 
addition, we will continue to be careful stewards of the 
public's funds. We believe that the proposed amendments 
described during this hearing will help the agency meet its 
goals. In these times of great change in Federal human resource 
management, a strong, vibrant, and independent MSPB is 
critical.
    We look forward to the opportunity to continue our 
important work in the next 5 years, and I would be happy to 
answer any question any Member may have.
    Thank you very much, sir.
    [The prepared statement of Mr. McPhie follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    
    Mr. Davis of Illinois. I thank the gentleman very much.
    We will move right into the question period.
    Mr. Bloch, let me ask if you could comment on the Office of 
Personnel Management Inspector General's investigation of 
allegations by current and former OSC employees that you 
retaliated against underlings who disagreed with your policies 
by transferring them out of State and tossing out legitimate 
whistleblower cases to reduce backlog?
    Mr. Bloch. Thank you, Mr. Chairman.
    We have, of course, not done any of the things that have 
been alleged by the outside pressure groups. They have their 
own interest in why they are saying those things. They are 
reckless and false and slanderous.
    We have had five investigations that have exonerated me 
over the same allegations. The final one that has been hanging 
over my head for 2 years at the Office of Personnel Management 
Inspector General is doing what I just said, hanging fire. I 
haven't seen anything. I haven't heard from anybody. So as soon 
as that is over, it is over, but it has been there for 2 years. 
Enough is enough.
    The allegations, the absolutely hilarious and scandalously 
slanderous allegations that my staff would throw out 
whistleblower claims was proved to be utterly false by 
bipartisan staff members, 12 of them who came to our agency at 
our request to dispel these utterly absurd notions that my 
career staff would ever do such illegal things and violate not 
only the law of our statutes but also put their bar licenses at 
risk.
    So the bipartisan staff looked at evidence. They aren't 
outside pressure groups. They are qualified staff 
investigators. They looked at all the evidence and they went 
through the files, and they also looked at specific cases where 
allegations have been made that they were improperly dismissed 
or told the whistleblower they didn't have a close or the Hatch 
Act complainant or the PPP complainant or whoever it was. They 
went through all four enforcement areas, and it was very 
detailed, and they interrogated our staff, not me, our staff, 
the people who actually work these cases. It is really 
insulting and absolutely unhelpful to the merit system to 
accuse the people who do this fine work every day and have 
achieved incredible results for the American people and for the 
Federal Government of absolutely heinous acts they never 
committed.
    Mr. Davis of Illinois. Are you cooperating fully with the 
OPM's Inspector General's investigation into those allegations?
    Mr. Bloch. Well, if you consider waiting around for 2 years 
for them to finish cooperating, yes. I don't have anything to 
cooperate in. Nobody has talked to me. But I am doing nothing 
with regard to that investigation. I am fully willing to 
cooperate and ready and anxious to get it over with, because it 
is unfair to the staff, it is unfair to me, and it is unfair to 
the Government to have this sort of thing, these political 
attacks hanging over the head of an agency.
    Mr. Davis of Illinois. Has the Office of Personnel 
Management asked you to provide any information or documents 
that you have not provided?
    Mr. Bloch. No. I was given a document request back in the 
fall of 2005. I gave up a stack of about 400 pages, I think, 
plus a whole notebook of documents, another 250 or 300 pages, 
was a part of a Senate record from May 2005.
    I never heard any request for documents again until last 
month, and I gave up another stack about yay high, which is 
about a foot deep. I don't know how many pages it was.
    But yes, everything that I have been asked for I have 
provided and held nothing back. There were, I think, four or 
five documents that were withheld originally attachment were 
attorney/client protected, but they really were just notes from 
an attorney to me about unrelated matters, and so that was the 
only thing that I withheld.
    Mr. Davis of Illinois. On panel three we have a witness who 
will testify that, based on less than 1 year active service 
working under your jurisdiction, that she has filed two EEO 
complaints, three Whistleblower Protection Act claims, two 
Office of Workmen's Compensation claims, and a Federal Tort 
Claims Act lawsuit. Are you familiar with any of that? How 
would you reconcile this kind of activity in terms of what may 
be happening in this person's case?
    Mr. Bloch. Well, Mr. Chairman, I don't want to talk about 
something I don't know anything about, but I can tell you that 
I have been informed there was an employee that I had no 
contact with except for saying hello to in the hallways who was 
with our agency a short time. More than that I don't know. I 
understand it was a routine personnel matter. It is being 
handled by the head of our EEO. I had no involvement in the 
underlying facts of whatever it is that is being claimed. And I 
really don't know a lot about what those cases or claims, you 
know, contain, and I don't want to denigrate anybody, you know. 
People have a right to file before different tribunals and to 
exercise their rights, and we believe that is appropriate and 
we honor that, so I am not going to sit here and say anything 
about that person. I don't know what that person's situation 
really is.
    Mr. Davis of Illinois. Thank you very much.
    Mr. McPhie, in your testimony you mentioned that the 
mission of the Merit Systems Protection Board is to protection 
Federal merit systems and the rights of individuals within 
those systems. Could you provide clarification on the specific 
types of claims that would not fall under your jurisdiction? 
And what are the rights of an individual who has a mixed case 
complaint?
    Mr. McPhie. The rights of an individual who has a mixed 
case complaint is to have that, like any other case, to have 
that case adjudicated promptly. It comes through the same 
process. It starts off with a board AJ somewhere in the 
regions. He or she writes an opinion. The personnel then tries 
to appeal it forward. If the person takes that choice on to the 
Board, the Board then either affirms what the AJ has done or 
issues a new decision. And if the person is dissatisfied, the 
person has a choice. It is an appellant-driven kind of system. 
If they don't like what the Board has done, it has choices. It 
can take it on to the EEOC and get another further 
administrative review, and beyond EEOC can keep on going. It 
can go to Federal District Court. I mean, those cases are 
treated just about the same way except they have more legs than 
other cases which would traverse a path that would take it only 
from the Board to the Federal Circuit Court and end there 
unless some opportunity for review to the Supreme Court of the 
United States is sought by the appellant.
    Mr. Davis of Illinois. An employee who files a mixed case 
complaint who does not like the MSPB decision may appeal to the 
EEOC, and if the EEOC disagrees with the MSPB the MSPB is given 
an opportunity to adopt the EEOC's decision?
    Mr. McPhie. That is correct.
    Mr. Davis of Illinois. What percentage of the time does the 
MSPB adopt the EEOC's decision?
    Mr. McPhie. Let me say this. EEOC has accepted the vast 
majority of Board decisions in the area of discrimination law. 
I mean, that is a given. Those few cases that would be sent 
back to the Board--in fact, I am being reminded it is almost 
100 percent of our decisions bearing on discrimination is 
affirmed by the EEOC, for starters, so very few cases would 
ever come back. But if they do, then we are required to follow 
what the EEOC says the law is, and if we disagree we can seek a 
special panel. This is very rarely done. The special panel then 
makes the call along some established lines.
    Mr. Davis of Illinois. During the interval while resolution 
is being sought between the MSPB and the EEOC, is the 
employee's adverse action stayed during the interval?
    Mr. McPhie. A mixed case is a case that is primarily an 
adverse action case that has elements of a discrimination case, 
where somebody is being fired, let's say, and the adverse 
action is I am appealing my removal. And that person then says, 
you know, the reason why I was removed was really retaliation, 
so you have a mixed case, retaliation based on race, sex, and 
what not, so you have a mixed case.
    When the MSPB's AJ decides that case, that MSPB AJ is going 
to decide the entire case, so the adverse action part could be 
finished by that point. It is done at that point in time. The 
person may not like the adverse action decision as well as the 
discrimination piece.
    In terms of the discrimination aspect of the case, they may 
appeal that forward to EEOC, but the adverse action case is 
finished.
    Mr. Davis of Illinois. Finally, how long does it take for 
cases to be decided by the Board? And what is the Board doing 
to speed up the processing?
    Mr. McPhie. Well, I tell you, as I said in my statement, in 
the regions where we have approximately 60 agents, we decide 
7,164 cases in fiscal year 2006, an average time of 89 days per 
case--that is 8-9--in the field. In headquarters we did 1,367 
cases in fiscal year 2006 for an average time of 153 days. So 
the field is more efficient than it is in headquarters.
    In terms of making sure that we maintain some level of 
efficiency--which, by the way, we have to. We know it. Every 
new system that comes down requires us to do it more quickly. 
DOD and DHS, as well as the new whistleblower legislation, 
require us to start and finish cases in a very short timeframe.
    So what we have been doing is we have really fully 
implemented our alternative dispute resolution techniques. I 
mean, we are doing mediations, we are looking at settlement 
potential. We are really trying to figure out those cases that 
ought not to hang around for a long time and really cost people 
a lot of money and time and that kind of thing.
    We are continuing to train our personnel. We have been 
looking to new technology. As a small agency, we have been very 
proactive in using technology. And we are looking at such 
things as altering the way we manage our work force. For 
example, we have reorganized attorneys who draft recommended 
decisions into smaller teams. Smaller teams mean that folks can 
get closer supervision and more vigorous mentoring for the 
younger folks.
    Those are the kinds of proactive things we are doing.
    Mr. Davis of Illinois. Thank you very much, Mr. McPhie. I 
thank both of you gentlemen.
    I now yield 10 minutes to the ranking member, Mr. Marchant.
    Mr. Marchant. Thank you, Mr. Chairman. I am going to 
concede my time to the ranking member of the full committee, 
Mr. Davis.
    Mr. Davis of Virginia. Thank you very much.
    Let me say to both of you I appreciate your commitment to 
public service. Mr. Bloch, I appreciate your putting my letter 
up there. I think we did investigate that, as you noted, in a 
bipartisan way and found, at least for this purpose, that there 
was no problem with it. And I appreciate your clearing the 
backlog, and I think we praised you for that. When I think you 
are right, we will say so. You have done some good things.
    But you also are under investigation on a number of issues. 
I think that you should be accorded a presumption of innocence 
on these issues, but I have some specific questions.
    I would like to ask if you would be willing to respond in 
writing to any questions that we don't get a chance to ask 
today from me or the other Members.
    Mr. Bloch. Absolutely.
    Mr. Davis of Virginia. OK. We have a number of questions.
    On April 27th you were on C-SPAN. Ironically, you said, 
``We will not compromise the justice system by speaking about 
the facts of the case before our investigation is complete.'' I 
think you know where I am going. We have talked about this. The 
day before, however, your staff briefed our staffs, both Mr. 
Waxman's and mine, and during that briefing your staff openly 
disparaged the GSA Administrator. This was in the middle of 
your investigation. Your agency hadn't even wrapped up its 
interviews yet.
    During the April 26th staff briefing, your staff disclosed 
confidential aspects of the investigation, namely that there 
was an issue with the version of the transcript used by your 
investigators. As the deposition transcript shows, the first 
interview with Mrs. Doan was called off for these reasons and 
rescheduled. This confidential fact of the investigators was 
shared with our staffs.
    Your staff made comments about her having amnesia. Similar 
comments were overheard by our staff at a social gathering, a 
Kentucky Derby party, 2 weeks before the report was issued.
    Your staff has also alluded to the need for Chairman 
Waxman's help with its reauthorization, presumably the more 
administration officials who broil in Hatch Act problems, the 
happier the Democrats will be.
    Our staff was told the Hatch Act inquiry provides an 
opportunity for OSC to show they are willing to be aggressive.
    Now, my first question is: did you know that officials from 
your Agency were on the Hill disparaging the Administrator on 
April 26th?
    Mr. Bloch. Thank you, Mr. Davis. No, I did not know that 
until we discussed this yesterday.
    Mr. Davis of Virginia. OK.
    Mr. Bloch. I expressed to you then and I will express to 
you now that I disapprove of any such disparagement. I believe 
at that time we had not completed our report and the 
Administrator was entitled to the presumption of innocence, as 
you said, and I agree with that entirely. I meant what I said 
on C-SPAN. I do not agree with trying people in the press or 
doing things to people to try to suggest they are guilty in the 
press. I have had it happen enough to me that I realize it is 
not fair and it is not right, and it is too often the case, I 
think, that we denigrate the justice system and we give people 
a kind of cynicism about whether there is such a thing as 
justice when we do thing like that.
    So I heartily agree with you that is wrong and I disapprove 
of it, and I have already had words, but will continue----
    Mr. Davis of Virginia. With the individuals involved. I 
just want you to take care of it and just make sure it doesn't 
happen again.
    Mr. Bloch. Absolutely. I take it very seriously. Also, I 
want to make it clear for the record that I am unaware of any 
of the staff members who actually did any of the investigating 
in any cases, including the Administrator, who had any 
involvement in the things that you are discussing. I think we 
need to make a distinction there. But I still don't excuse it. 
Don't get me wrong.
    Mr. Davis of Virginia. I will be happy to give you the 
names.
    A draft report on Doan was released to the news media 
before it was shown to her and before she had a chance to 
respond. Now, the GSA Administrator had told us she received 
media inquiries quoting at length from your report before she 
received her copy, and the Washington Post published a 
correction stating that it wrongly quoted from a draft report 
that would not have been available to her.
    The only OSC, to my knowledge, had drafts dated to May 
18th, and the Washington Post posted a PDF of a May 17th draft. 
The Post correction reads, ``On May 24th, a section article 
about U.S. General Services Administration Administrator Chief 
Lurita Alexis Doan incorrectly reported that the U.S. Office of 
Special Counsel report sent to Doan had stated that we 
recommend that the President take disciplinary action against 
Administrator Doan because her disregard for such protections 
and safeguards is serious and warrants punishment.''
    Those passages appeared in an earlier version of the 
report, but not in the final version sent to Doan. The final 
version included a cover letter from you containing ``his 
recommendation that the President take appropriate disciplinary 
action against you for your serious violation of the Hatch 
Act.''
    Leaking the damaging but inaccurate information report 
before she had a chance to respond you would agree would be 
prejudicial?
    Mr. Bloch. Congressman, let me correct the record here. 
First of all, I do not agree with releasing the report before 
the Administrator had the chance to respond and to submit it to 
the President. I believe I made that clear to any reporters who 
asked, and I have certainly made it clear to my staff.
    Mr. Davis of Virginia. And you made it clear to me 
yesterday.
    Mr. Bloch. Yes. And we gave the report to Ms. Doan by hand 
delivery to her attorney on May 18th.
    Mr. Davis of Virginia. But the May 17th draft she would not 
have had.
    Mr. Bloch. I don't think so. I doubt that very seriously.
    Mr. Davis of Virginia. That was what was leaked to the 
paper.
    Mr. Bloch. But let me just try to explain the dates here. 
So May 18th we had that sent over to Ms. Doan through her 
attorney, and also I believe electronically transmitted that to 
Mr. Nardotti.
    Then the following Monday was the first I or anyone on my 
staff that relayed anything to me indicated that the media was 
starting to make noise about a report that had been sent to Ms. 
Doan.
    I asked my staff what happened here, what do we know. We 
didn't give out the report, did we? No. So we started to make 
inquiries at the places where they were making some noise. When 
I say making noise, I am referring to Government Executive and 
Federal Times putting out reports that----
    Mr. Davis of Virginia. The media.
    Mr. Bloch. Yes. Putting out reports, not specific reports, 
but just indicating that there had been a report, or that 
sources had indicated a report had been sent and then intimated 
but never said that there was specific content.
    So I was concerned that somehow, either through Mr. 
Nardotti or Ms. Doan or someone else accidentally somebody had 
let the report out, so I asked my staff to inquire of the 
reporters what is going on or do you actually have the report.
    They hemmed and hawed and they could produce no evidence 
they had the report, and they could not quote anything from it. 
So then we met again and realized, OK, they don't really have 
it, they are just hearing rumors.
    Then on, I think, Tuesday or Wednesday, the 23rd is what I 
am coming up with in my memory, of May, we got word from 
Government Executive and, I believe, the Federal Times, but for 
sure Government Executive that they had the report. We didn't 
believe them because we didn't give it to them, and so we 
queried them as to what was in there, and they started to tell 
us quotes. So we said send us some actual quotes from the 
report, and they sent us an e-mail. In that e-mail there are 
quotes from the report that I sent over to Mr. Nardotti on 
behalf of Ms. Doan.
    So we asked the reporter where did you get that, because we 
knew we hadn't given it out. I don't know if it is a he or a 
she, but the reporter said that it had come from GSA and that 
it had a fax cover at the top of the page from the GSA number, 
but did not indicate who it was. They weren't going to give up 
any source.
    Mr. Davis of Virginia. But my question is a simple one. The 
correction in the Post said those passages appeared in an 
earlier version of the report but not in the final version sent 
to Doan, so they had a version that was not sent to GSA that 
they had to correct later, so she couldn't have had it, if that 
is correct.
    Mr. Bloch. Well, if you tell me that is so, I mean, I have 
heard that. I have never seen it.
    Mr. Davis of Virginia. I gave you a copy. We have given you 
a copy of the report that is blown up right there from the 
Washington post.
    Mr. Bloch. I understand. I----
    Mr. Davis of Virginia. What I would ask you, I mean, you 
would agree that leaking damaging and inaccurate information 
before somebody has a chance would be prejudicial, obviously.
    Mr. Bloch. Well, I want to address that question this way, 
Congressman. We have the power legally, and it is published in 
the Federal Register, to release anything we deem to be in the 
public interest, and there are several categories of----
    Mr. Davis of Virginia. Let me ask you this.
    Mr. Bloch. And so that is not necessarily prejudicial.
    Mr. Davis of Virginia. Well, if it printed the report 
before the final and before she had a chance to see it--but let 
me just ask you this. Did you authorize your staff to leak a 
draft to the newspaper?
    Mr. Bloch. No, I did not authorize them to leak a draft. 
This was put out by someone at GSA. That is all I know.
    Mr. Davis of Virginia. Well, if GSA didn't have it----
    Mr. Bloch. I don't know who had it. All I am telling you is 
that I know----
    Mr. Davis of Virginia. You didn't authorize it.
    Mr. Bloch [continuing]. We got information from a reporter 
that GSA had sent them the report.
    Mr. Davis of Virginia. So your staff never explained to you 
that the leak could only have come from OSC?
    Mr. Bloch. Who?
    Mr. Davis of Virginia. Your staff never explained that the 
leak could only have come from the Office of Special Counsel?
    Mr. Bloch. Well, I----
    Mr. Davis of Virginia. Let me just say this. In a telephone 
conversation with my staff shortly after the leak, they 
acknowledged that the draft report, which was not sent to the 
Administrator, posted on the Web by the Washington Post could 
only have come from inside the agency, because only people 
inside the agency had it. It was a draft report.
    Your staff also told us that this fact had been 
communicated to you and that there was no plan to investigate 
the leak. And you are saying that is incorrect?
    Mr. Bloch. There is a lot that you put in that question. 
Let me----
    Mr. Davis of Virginia. That was pretty simple. It is pretty 
simple.
    Mr. Bloch. Well, there are different things you are putting 
in there. First of all, you are asking me to assume a fact I 
don't know, which is that it came from my office. And I have 
been advised, by the way, for many years now not to use the 
word leak because that is disparaging. But we say----
    Mr. Davis of Virginia. Released.
    Mr. Bloch [continuing]. Released, because it is lawful.
    Mr. Davis of Virginia. It was early released.
    Mr. Bloch. I don't know about prematurely. All I know is 
that----
    Mr. Davis of Virginia. It was a draft report.
    Mr. Bloch. Congressman, I am not arguing with you, I am 
just telling you I don't know what someone had or didn't have 
or why they had it.
    Mr. Davis of Virginia. This last question. You are telling 
me then, to the best of your knowledge under oath, that not 
only didn't you authorize it in any way, shape, or form, but 
you don't have any idea that this came from OSC; that the best 
of your information, nothing came out of your office 
prematurely?
    Mr. Bloch. I am telling you that I did not authorize it, 
and I understand the logic of what you are saying about it had 
to come from OSC, but I don't know that, that it had to. It 
could have----
    Mr. Davis of Virginia. And you did ask----
    Mr. Bloch [continuing]. Been out there before that.
    Mr. Davis of Virginia. You did ask your staff and they said 
that it did not come from OSC?
    Mr. Bloch. I have not done an investigation because I have 
been warned away from impinging and infringing employee rights 
and attacking--it has been alleged that I have attacked people 
for so-called----
    Mr. Davis of Virginia. I am not saying attack. I am just 
asking to do an inquiry. OK. I will get----
    Mr. Bloch. I have not instituted an investigation. I don't 
intend to. I have gotten severely criticized for impliedly 
doing that which I have never done, but I really don't want to 
attack people. If someone saw fit to give out an earlier draft 
I don't approve of it but I am not going to get into--I think 
it is a red herring. I think it has nothing to do with the 
facts. I think my understanding is the only difference in the 
reports had to do with the last couple of pages in terms of the 
recommendation.
    Mr. Davis of Virginia. It has to do with the leak. It has 
to do with where the leak came from, because a draft report 
could only have been released. I am just going back to what you 
said on April 27th on C-SPAN that you don't leak information on 
ongoing investigations. That is all. I think the point is 
pretty clear. I just ask that you take a look at that and go 
back and talk to your staff. I will have more questions on it 
later.
    Mr. Bloch. Congressman, I will not refuse your request. I 
will go back and talk to my staff. But I want to be careful not 
to institute investigations of staff for doing things that they 
feel are appropriate expressions of their first amendment 
rights.
    Mr. Davis of Illinois. Ms. Norton.
    Ms. Norton. Thank you, Mr. Chairman.
    Mr. Bloch, it is a red herring. It is a red herring. There 
may have been mistakes made, and if you discover who leaked 
your report you ought to have a medal, because the fact is that 
the leaks that come out of the Government for time immemorial, 
almost no one has been able to decipher. It is a red herring, 
and I want to commend you on having the courage to issue a 
report that involved your own White House with all the 
repercussions. It is these side issues that have been used by 
the other side to detract from the serious violation of the 
Hatch Act and from the fact that somebody within the 
administration was willing to go at the Hatch Act. If anything, 
we want more of that, particularly from this Government, than 
we have seen in the past.
    May I ask you, sir, where do you live?
    Mr. Bloch. Ma'am, I live in Alexandria, Fairfax County.
    Ms. Norton. Why do you want to take an office that serves 
250,000 Federal employees that come to the District of Columbia 
every day and move it outside of the District of Columbia?
    Mr. Bloch. Thank you, Congresswoman Norton. I appreciate 
your commitment to the District and to the merit system that we 
are talking about here today. I don't propose to move it 
outside the District. We had submitted a series of legislative 
requests with our reauthorization to get the flexibility, if we 
have to, based upon need and cost, because we have a very, very 
small budget.
    Ms. Norton. Mr. Bloch, if cost, particularly, not to 
mention need were the case, there wouldn't be a single Federal 
agency located in the District of Columbia. This is the capital 
of the United States, and you will need more than to reduce 
your rent or lease to move out of this city. Have you spoken 
with the General Services Administration about available leases 
in the District of Columbia at this time?
    Mr. Bloch. Well, Congresswoman, I am not sure of the answer 
to that question. We will supply you with it after I talk to my 
staff.
    Ms. Norton. I want you not only to supply me with that, 
but, since I am chair of the subcommittee that has jurisdiction 
over GSA, I wish to help you find low rent accommodations in 
the District of Columbia. I feel I can do that, sir, so I would 
say to you that it will be over my dead body at several times 
that you take an agency of this importance to Federal employees 
out of the District of Columbia against--because you will 
require a statutory change, and I will do all in my power to 
see that no such statutory change unnecessarily occurs, and I 
am willing not only to tell you that to your face, but to say 
to you that I will help you find in the District of Columbia 
space. I might even be able to help you find space less than 
what you are paying in the middle of town now, space close to 
the Capitol of the United States, sir.
    Mr. Bloch. Well, Congresswoman, I thank you for that and I 
really appreciate that help. We like our quarters very much.
    Ms. Norton. Well, I know you are located where everybody 
wants to be located. See, everybody wants to be located in a 
strip near K Street where the restaurants are, where the 
theaters are. Now, you take them even close to the Capitol and 
they say oh, my god. Well, I am saying oh, my god, for moving 
out of the District of Columbia.
    Let me ask you something about a very serious allegation 
involving you, sir. Are you aware that the Congress of the 
United States has just passed hate crimes legislation?
    Mr. Bloch. I am aware that there is a bill pending and----
    Ms. Norton. No, sir. Are you aware that the House of 
Representatives, shall I put it that way, has passed hate 
crimes legislation?
    Mr. Bloch. Yes, ma'am.
    Ms. Norton. Are you aware that uses the term sexual 
orientation to describe what is barred and barred as to whom?
    Mr. Bloch. I believe I have seen that, yes.
    Ms. Norton. Why would you make a distinction nowhere found 
in law in changing what had been existing protected class 
guidance? Would you explain the distinction you have made up--I 
have to say you have made up, because I can't Google it and 
find such a distinction anywhere--between sexual orientation 
and sexual conduct? Should we have put in the statute sexual 
conduct? I am asking your advice now. Did we do something wrong 
in putting sexual orientation as the basis for the hate crimes 
act in the statute? Would you have preferred us to put sexual 
conduct? If so, why?
    Mr. Bloch. Well, thank you, Congresswoman. Let me clear 
up----
    Ms. Norton. And what in the world do you know about 
anybody's sexual conduct, anyway?
    Mr. Bloch. I don't know anybody's sexual conduct other than 
my own, and----
    Ms. Norton. So how could the Congress of the United States 
base it on what somebody does in his bedroom, his conduct? How 
many people do their conduct in the workplace when it comes to 
sex?
    Mr. Bloch. Well, not very many, I hope, but we do have a 
case we just investigated where that was alleged. But let me 
answer your question.
    Ms. Norton. Well that, of course, is punishable on other 
grounds, sir.
    Mr. Bloch. And I would like to stay away from those sorts 
of things.
    Well, Congresswoman, this really is an area of the question 
of what is in our law and what was passed by Congress.
    Ms. Norton. I just told you what the law says. There is no 
law existing. The hate crimes law has passed the Senate more 
than once. Now we passed it in the House. The distinction you 
have made is not made in law.
    Let me tell you why, because if you make a distinction 
based on conduct it implies that the employer has to find out 
something about the conduct, and I don't want to find out 
anything about your conduct and I don't want you finding out 
anything about somebody else's conduct. So if we were to put 
the burden in the statute on conduct, that would require an 
investigation of somebody's sexual conduct. Do you really mean 
for that to be what the guidance for OPM should be?
    Mr. Bloch. Well, let me just read our law, and then maybe 
we can clear this up. Our prohibited personnel practices appear 
at 2302.B of title 5 of the U.S. Code, and the protections for 
people who allege discrimination on the basis of who they are, 
such as race, color, creed, etc., are found in B.1, and that 
includes all of the normal what we consider the title 7 
categories that have been in the law.
    Ms. Norton. They are not the normal categories. They are 
the categories you have gotten to so far.
    Mr. Bloch. That is right.
    Ms. Norton. This is not a category in the statute.
    Mr. Bloch. No, and it is not in that statute, and so sexual 
orientation doesn't appear there. And then the only other 
section that potentially pertains to anything to do with a 
person's sexuality or their conduct is in----
    Ms. Norton. But it did appear in guidance, OPM guidance.
    Mr. Bloch. Well, the OPM guidance is incorrect.
    Ms. Norton. Sorry?
    Mr. Bloch. The OPM guidance is incorrect legally. They have 
mis-stated our laws.
    Ms. Norton. In other words, the fact that sexual 
orientation had been a part of OPM guidelines before was 
illegal?
    Mr. Bloch. Well, it was put in there in 1998 with the help 
of my predecessor and it never had appeared there before.
    Ms. Norton. And does that make it illegal? Do you 
recognize, sir, that guidelines have the force and effect of 
law?
    Mr. Bloch. Well, Congresswoman, that is not necessarily 
correct. It depends on the issue that is being guided. They 
don't have jurisdiction over these. The enforcement----
    Ms. Norton. Who is they?
    Mr. Bloch. OPM does not have jurisdiction to enforce----
    Ms. Norton. Has any court of law said that?
    Mr. Bloch. Yes.
    Ms. Norton. Would you please cite to me that case?
    Mr. Bloch. Sure.
    Ms. Norton. In other words, you changed the law because the 
court said that change had to be made?
    Mr. Bloch. Yes, and I didn't change the law; I put it back 
to where the agency had enforced it for 20 years before my 
predecessor. Let me read you the cases. There are two cases 
from the MSPB, one in 1998 and one this year, Morales v. 
Department of Justice, 77 MSPR 482, and also Mahaffey v. 
Department of Agriculture, 2007 MSPB 93, a March 30, 2007, 
ruling.
    Ms. Norton. Holding, of course, those are not exactly----
    Mr. Bloch. I am sorry?
    Ms. Norton. That is not the District Court or the Court of 
Appeals. What did those MSPB judges hold?
    Mr. Bloch. Well, those holdings bind our office and they do 
bind Federal employees, unless overturned by the Federal 
Circuit, and they haven't been. So there are both cases, 1998 
and 2007 both hold that section B.1, which contains our status 
protections that title 7 contains, as well as political 
affiliation and marital status, do not protect the status of 
sexual orientation.
    Ms. Norton. Mr. McPhie, he is now speaking about the MSPB. 
Do you concur with what he now says, as you have overturned--it 
is because of you, the MSPB, that Mr. Bloch was forced to 
change the OPM guidelines.
    Mr. McPhie. With all due respect for my friend, Mr. Bloch, 
I respectfully disagree. Morales is a title 7 case, and title 7 
cases are governed clearly by the precedent established by the 
U.S. Supreme Court some time ago that sexual orientation is not 
prohibited. Mahaffey is a more recent case. In Mahaffey the 
Board left open the question as to whether or not 
discrimination based on sexual orientation is a prohibited 
personnel practice.
    The case went off on whether or not it was conduct on the 
job or conduct--the person was terminated, I believe, fired 
because of off-the-job conduct. I mean, that was the 
distinction. The Board expressly left open any decision on 
whether or not sexual orientation is a prohibited personnel 
practice.
    At some point we are going to have that case and we will 
have to decide that case square on, but until that case is 
decided I want to stay away from the discussion on cases that 
may come to us.
    Ms. Norton. But you certainly don't want those cases cited 
for a change in the law or in the guidelines for separating 
orientation and conduct----
    Mr. McPhie. No, ma'am.
    Ms. Norton [continuing]. As based on your cases.
    Mr. McPhie. No, ma'am. That is not the way I think a 
reasonable reading of MSPB law at this point.
    Ms. Norton. Did you change the guidelines before or after 
those cases, Mr. Bloch?
    Mr. Bloch. Well, I didn't change any guidelines; I applied 
the law----
    Ms. Norton. You just said your it was your predecessor who 
had the wrong interpretation and you had to change it, sir.
    Mr. Bloch. I had to correct, yes, I had to correct 
something that was put into our Web site materials as well as 
our educational materials.
    Ms. Norton. Otherwise known as guidelines with the force 
and effect of law.
    Mr. Bloch. Ma'am, I respectfully disagree. They are not the 
force and effect of law.
    Ms. Norton. If I may say so finally, Mr. Bloch, you have 
just heard repudiated and refuted entirely your basis, your 
legal basis. In light of that, would you return to the OPM 
guidelines as they were? And if not, why not? You no longer 
have the legal authority you relied upon. I am asking you to 
return to the guidelines as they were, and especially in light 
of the fact that we have now passed in the House, at least--I 
expect to have in the Senate--a hate crimes law that has sexual 
orientation in it. I now ask you to return the guidelines to 
what they were, ask you if you are willing to do that, and if 
you are not to indicate why not.
    Mr. Bloch. I am not willing to do anything illegal that is 
contrary to our statute and also to the case law. I 
respectfully disagree with my esteemed colleague, the chairman 
of the Board, because the Mahaffey case does affirm Morales, 
which says the B.1 protections--that is title 7 protections----
    Ms. Norton. The title 7 cases----
    Mr. Bloch [continuing]. Does not include protection----
    Ms. Norton. We are talking about cases brought under the 
guidelines, the former OPM guidelines.
    Mr. Bloch. And I am getting there. So it affirmed Morales, 
saying there is no sexual orientation status protection, and 
the only other section that was argued in Mahaffey was B.10, 
which is conduct protection, and the claimant in that case, the 
petitioner, argued that B.10 covers status, sexual orientation, 
not conduct of a sexual nature, but just orientation.
    Ms. Norton. Mr. McPhie just said that matter was left open.
    Mr. Chairman, I think that, in light of the fact that this 
witness has determined the law into and unto himself, quoting 
decisions that have been specifically refuted under oath, that 
we have an obligation by law to change, to bring the guidelines 
back to where they were, sir, if I may say so.
    Mr. Davis of Illinois. Thank you very much, Ms. Norton.
    Mr. Davis.
    Mr. Davis of Virginia. Mr. Bloch, is the Doan matter closed 
and off your desk at this point?
    Mr. Bloch. The Doan matter, as defined by the allegations 
that Ms. Doan's comments following a political presentation 
violated the Hatch Act, has been closed and was closed when we 
sent the matter to the President. I forget the date of that, 
but it was some time at the end of May.
    Mr. Davis of Virginia. Is it possible that the White House 
could ask you some followup questions or ask you to help them 
understand the relevant case law, evidentiary standard, or 
other pertinent legal questions not addressed in your papers?
    Mr. Bloch. It would be my pleasure.
    Mr. Davis of Virginia. OK. Is there ever a point where you 
can then disparage Mrs. Doan?
    Mr. Bloch. I am sorry? What?
    Mr. Davis of Virginia. Is there ever a point where it 
becomes acceptable for you to disparage Mrs. Doan?
    Mr. Bloch. Well, it would depend on your definition of 
disparage. I don't agree with the idea of personal attacks, but 
if you mean that, I don't agree with disparaging Ms. Doan 
personally.
    Mr. Davis of Virginia. Is it appropriate for officials at 
your agency to comment about agency business to family, 
friends, on personal e-mail accounts?
    Mr. Bloch. Again, we are back to the first amendment 
issues. I am not going to attack employees for their free 
exercise of expression if they want to talk about their 
reactions to----
    Mr. Davis of Virginia. Let me get more specific. What if an 
agency official was offering personal commentary, sending news 
clips via mass e-mail about agency business on their person 
accounts during business hours? Would that be a concern or not?
    Mr. Bloch. News clips?
    Mr. Davis of Virginia. And personal commentary.
    Mr. Bloch. You know, again, it is a free country. First 
amendment----
    Mr. Davis of Virginia. All right. Let me move ahead. Have 
you ever used your personal e-mail account to send e-mails 
about official agency business?
    Mr. Bloch. I don't know what you mean by official agency 
business. Have I ever sent news clips of what is going on in my 
office to my family and friends? Of course.
    Mr. Davis of Virginia. Well, let me put it this way. We 
have been conducting oversight in this committee, as you are 
aware, into the use of personal e-mail accounts to discuss 
official business with the White House. We have an e-mail that 
you sent out at 11:52 a.m. on Tuesday, June 19th. It is from 
your private AOL account. It was sent to a large number of 
people, some of whom, by the way, were kind enough to forward 
it to us. In an e-mail which I will read you begin by making 
disparaging remarks about Mrs. Doan. You compare some of Mrs. 
Doan's testimony to the testimony of former President Clinton, 
then you move into some disparaging remarks about me and my 
colleague, the ranking member of the Committee on 
Transportation and Infrastructure, Mr. Mica.
    Let me read it. First, ``Is hilarious piece riffing on 
Doan's hortatory, subjective, and I didn't think anyone could 
improve on Clinton's `depends on what the meaning of is is.' ''
    Second is ``Doan, apparently encouraging her people to move 
on, suggesting President Bush is not going to do anything about 
her.''
    Third is from the hearing where Doan said, ``hortatory, 
subjective. It is Congressman Tom Davis who has been acting 
like Doan's defense counsel, saying reckless things about OSC's 
report and calling for my resignation. Mere Kabuki Theater, all 
of this. I am going up for my reauthorization hearing on July 
12th and Davis will either show up as ranking member or have 
Congressman Mica do his dirty work of raking me over the coals. 
We may have something to say about that.''
    Mr. Bloch, I would like to ask you if you could produce all 
the e-mails sent on your AOL e-mail account between January 26, 
2007, and today where you discuss official business, including 
anything related to Hatch Act violations and Hatch 
investigations and that discuss Mrs. Doan, me, the chairman, 
Mr. Mica, other members of this committee, and any other 
Government official. Do you have any problem with that request?
    Mr. Bloch. Congressman, I think this is inappropriate. It 
is an invasion of my privacy. It is an invasion of my first 
amendment rights. This is my personal life you are talking 
about. It is not official business. I have every right, just 
like you do, to talk to my friends and family----
    Mr. Davis of Virginia. During business hours?
    Mr. Bloch [continuing]. And tell them of the sort of things 
that are going on, and it is not going to happen. Let's move on 
to something real.
    Mr. Davis of Virginia. You know, this is exactly what we 
have been talking about in terms of the White House utilizing--
these are Government computers, I assume, and you are not 
bringing your personal computer in the office during Government 
time?
    Mr. Bloch. Congressman, I don't know if it as at home. I 
don't know what----
    Mr. Davis of Virginia. Well, it is 11:52 a.m. Were you home 
that day on Tuesday at 11:52?
    Mr. Bloch. I could have been. I could have been. Let me 
just say that it has nothing to do with the issue that----
    Mr. Davis of Virginia. You state that I have called for 
your resignation. When?
    Mr. Bloch. Congressman, I don't want to get into a personal 
argument with you.
    Mr. Davis of Virginia. Well, you said I had. Can you recall 
when?
    Mr. Bloch. Yes.
    Mr. Davis of Virginia. When?
    Mr. Bloch. It was in a hearing after we closed the file and 
I believe you said this man has produced a worthless report, 
no----
    Mr. Davis of Virginia. Well, I did say that.
    Mr. Bloch [continuing]. Evidence, and he should have to 
resign, and the President should fire him.
    Mr. Davis of Virginia. No, I didn't.
    Mr. Bloch. Yes, you did. You said that. And it was 
inappropriate for you to say that, and it is inappropriate for 
us to argue about that.
    Mr. Davis of Virginia. I think Mr. Mica said it, but that 
is OK.
    Mr. Bloch. Doesn't sound like you to me.
    Mr. Davis of Virginia. Why are you sending news clips on 
your AOL account in the form of a mass mailing?
    Mr. Bloch. I don't agree with your characterization of mass 
mailing. I have friends who take an interest in the business of 
our office as reported in the public press, which is all I did. 
I didn't give anything out that is from our office. I am 
simply----
    Mr. Davis of Virginia. Well, we don't know that. What I 
have asked is if we could look at the documents and understand 
if you did or didn't----
    Mr. Bloch. Well, anyway, that is----
    Mr. Davis of Virginia [continuing]. And basically you are 
saying that, without subpoena, you are unwilling to give that 
information up.
    Mr. Bloch. Congressman, I don't agree in personal attacks. 
If you want to engage in personal attacks----
    Mr. Davis of Virginia. I just asked for the information.
    Mr. Bloch [continuing]. If you want to exchange personal 
attacks, maybe we should go outside, but I think it is 
inappropriate. Government business. Let's talk about the merit 
system. That is not a threat. We can discuss it outside if you 
like, but I think in here we ought to talk about the business 
of our office, what we are doing for the country, and what we 
are doing for whistleblower.
    Mr. Davis of Virginia. I would yield to my friend.
    Mr. Issa. This is getting awfully personal, and I would 
like to raise it above that, but I have to followup on the 
questioning because I think it is extremely important.
    Where you e-mail, whose resources you use, and what you say 
about Members of Congress related to an oversight, when you 
meet with the majority about your upcoming oversight and an 
ongoing investigation, these are all on-the-clock events that 
we do have an obligation to look at. This is the Committee on 
Government Oversight and Reform, and we have an obligation to 
decide, to a great extent, whether or not your very office 
continues to exist.
    So whether or not the controls are in place for you and 
people like you to do the job you think is so important is part 
of what we are dealing with here today, so please, I would ask 
that you first of all rethink your question of your first 
amendment rights when you distribute something. This wasn't 
stolen off your computer. This was sent out the same as if you 
threw it in the garbage can in the front of your house and 
somebody picked it up and posted it on the side of a bus. This 
was made publicly available and passed on by somebody who 
exercised their first amendment rights to leak something that 
they thought you did that was inappropriate.
    Now, I am not your attacker. I wasn't in any of your e-
mails. But I would like you to reconsider your statement on the 
first amendment, and then I would like you to re-answer the 
question that the ranking member asked, and asked very civilly, 
because it is a fair question as to this e-mail and other 
things and your conduct, both publicly and now publicly again.
    So I would ask you to rethink it and re-answer the question 
without talking about the first amendment right. You gave up 
your first amendment rights when you put this out on a 
Government computer and put it out and made it available. This 
leak from some friend of a friend of a friend of yours is 
something that you have to look at. So would you please 
reconsider it?
    I would return the time to the gentleman.
    Mr. Bloch. Do you want me to answer that? Thank you, 
Congressman Issa. I believe that these questions are 
inappropriate and are directed at an attempt to suppress our 
investigation of the White House and of the e-mails that we are 
looking at that were, in fact, discussing actual Government 
business, and I am not going to be intimidated by this 
committee and I am not going to be swayed away from doing 
actual investigations that we have to do, and I believe the 
commentary that was made about me and my office and the threats 
that were made about my office that are in the public news 
stories that I forwarded to friends on my private e-mail 
account----
    Mr. Davis of Virginia. During business hours on Government 
computers.
    Mr. Bloch. Do I have a right to answer fully or do I get 
interrupted all the time?
    Mr. Davis of Virginia. It is our time.
    Mr. Bloch. Will you let me answer it?
    Mr. Davis of Virginia. Fine with me. Go ahead.
    Mr. Bloch. Thank you.
    I believe that these threats that were made in these 
hearings and these accusations about our office were an attempt 
to intimidate us about official investigations and of our 
ongoing work with regard to the GSA and the White House, and I 
will not be intimidated, and we will do our job, and I will not 
answer any further questions concerning e-mail accounts.
    Mr. Davis of Virginia. Let me just note for the record, Mr. 
Chairman, that I asked him before I went into the inquiry if 
his investigation was complete. For the record, he said that it 
was. So there is no intimidation. I think we are showing 
appropriate bias, and I think the facts speak for themselves.
    Thank you.
    Mr. Davis of Illinois. Thank you very much.
    Mr. Clayton.
    Mr. Clayton. I will yield to Ms. Norton.
    Ms. Norton. I thank the gentleman for yielding.
    Actually, I have a question for Mr. McPhie, but I do want 
to say for the record myself, Mr. Chairman, that I think it is 
inappropriate to disparage special counsel; that if special 
counsel can be hauled up here for the underlying basis for his 
decision, I think you will have special counsels not willing to 
do their job.
    I think you were perfectly correct not to answer questions 
concerning your decisions. You are an independent officer. Many 
expected you not to act independently, given where you sit. I 
think you are within your rights and I think you would do a 
disservice to the Office of Special Counsel if you believed you 
could be subject to this kind of cross-examination on your 
findings.
    Now, as to disparaging or leaking concerning someone under 
investigation, that is criticism that you and any other officer 
of the Government must take, but beyond that it seems to me 
there is no other criticism, and the reason you are getting so 
much criticism on that score, Mr. Bloch, is the following: when 
people continue to attack somebody on something like leaks, it 
is often because they have no attack to make on the underlying 
issue. The issue here was whether Lurita Doan was in violation 
of the Hatch Act, and I have yet to hear a valid defense to 
what she did at the instance of the White House. It was one of 
the most naked violations of the Hatch Act I have ever seen.
    Mr. McPhie, I am not referring with regard to existing law. 
I am just trying to ask everybody to kind of step back. Mr. 
Bloch, I would be anxious to hear your answer to this, as well. 
Do you believe that employees of the Federal Government should 
have the right to file complaints before an objective body that 
does not include your own employer?
    Mr. McPhie. You mean whether or not they should have an 
outside----
    Ms. Norton. Someone other than----
    Mr. McPhie. Some third party?
    Ms. Norton. Yes, a third party other than the agency of the 
Federal employee involved in the decisionmaking on the 
complaint filed against the agency. In our system of law, would 
that not be the usual course?
    Mr. McPhie. I have seen it work both ways.
    Ms. Norton. Well, I see it work both ways now, Mr. McPhie. 
I am asking, given our system of law, isn't it normal for some 
third party, not including the party accused, to decide issues 
against the party accused?
    Mr. McPhie. Are you asking me as a business practice or are 
you asking me if we----
    Ms. Norton. I am asking if the system of American law, as a 
system of American law, in our system of law is not the notion 
of an objective third party routine? Isn't that what 
distinguishes us, the distinction between us and other 
societies, that some objective person, not the accused? That 
the accused is in no way involved who hears complaints that are 
brought? Is that not central to our system of justice?
    Mr. McPhie. With respect to Federal employment, that is the 
customary layout. You tend to have a third party appeal system. 
I haven't----
    Ms. Norton. You have a third party appeal system.
    Mr. McPhie. Right.
    Ms. Norton. But what do you have in the first instance, Mr. 
McPhie?
    Mr. McPhie. In the Federal system that is customary. 
Anything different from that is----
    Ms. Norton. Well, in the Federal system the complaint is 
filed where first?
    Mr. McPhie. In the Federal system the complaint is filed in 
the agency, but----
    Ms. Norton. That is what I am speaking of. You then look at 
what the agency says.
    Mr. McPhie. Right. In the Federal EEO system it starts with 
the agency.
    Ms. Norton. All right.
    Mr. McPhie. And then the agency, itself, looks at it, 
itself.
    Ms. Norton. Look, I was a chair of the Equal Employment 
Opportunity. I am aware of how it goes. I am trying to get to 
it before my time runs out. You start with the agency. You then 
look, in part, at what the agency found, do you not?
    Mr. McPhie. The Board?
    Ms. Norton. Yes. You don't discard what the agency found, 
do you?
    Mr. McPhie. Not really. The Board proceeds de novo.
    Ms. Norton. Then why do you need the agency to find 
anything in the first instance?
    Mr. McPhie. I don't need the agency to do anything. All I 
am saying is, let me tell you, I think if you look at the way 
the different complaint processes are structured, the one 
agency whose structure approximates more closely a judicial 
structure is the MSPB.
    Ms. Norton. No question about it. But you don't file with 
the MSPB initially; is that not true?
    Mr. McPhie. I am sorry?
    Ms. Norton. You file with the agency that you are accusing; 
is that not true?
    Mr. McPhie. What kind of case? I mean----
    Ms. Norton. You are an appeal board; therefore, somebody 
below must have made a decision, Mr. McPhie.
    Mr. McPhie. You have to have a final agency decision.
    Ms. Norton. I am asking you whether or not you find that 
outside of the normal course of American law.
    Mr. McPhie. Not really. No. No.
    Ms. Norton. I don't know anybody at AT&T who files there 
before they go to the EEOC, for example.
    Mr. McPhie. I have had a lot of experience with non-Federal 
public employee situations, and, as far as I can tell, in every 
instance the agency takes an action and the employee disagrees 
with the action. The employee has the right----
    Ms. Norton. In the Federal Government, of course?
    Mr. McPhie. I beg your pardon?
    Ms. Norton. In the Federal Government, of course? All I am 
trying to establish, Mr. McPhie, is that we have a unique 
system here, and it is part of the controversial nature of that 
system. It is not easy to figure out because you have peer 
agencies, but the one principle it seems to me we ought to 
establish is one that you uphold, which is the MSPB, is 
certainly not the agency, and yet so you make the decision, 
albeit it sometimes with the EEOC in mixed cases. You make the 
decision apart from the agency, except there has already been 
an agency finding, sir.
    Mr. McPhie. And I do believe that is part of the reason. If 
you look at the structure of these complaint processes, I think 
that is part of the reason why the MSPB process----
    Ms. Norton. No, it isn't, because----
    Mr. McPhie [continuing]. Is efficient.
    Ms. Norton. That is not the reason because if, in fact, I 
work for Microsoft, I get the same right to appeal to an 
objective body, but I get to file before an objective body in 
the first place, and that happens to be the EEOC in the case of 
private employment. So there is a great distinction. You must 
have been ensconced in the MSPB for so long that it has all 
melted away.
    Mr. Bloch, do you see the distinction at least that I am 
making? I don't hold you accountable for it. It is set up by 
the Congress of the United States, but do you see the 
distinction I am making?
    Mr. Bloch. I do, Congresswoman, and it is analogous to me, 
having come from the private sector where every right and 
remedy that I was aware of came outside of one's own employer 
or company or even public employment. However, in the area of 
Government employment, I was familiar with a grievance system, 
I think, that existed in the States, and I knew there was 
something in the Federal Government of a similar nature.
    What is the best system is really something that Congress 
debates best, but I do understand your distinction.
    Ms. Norton. I am not trying to involve you in the decisions 
that you didn't make; I just want to establish for the record 
how unique it is and, frankly, how unjustifiable it is. I am 
not suggesting that there is an easy way out, but it bespeaks 
some other country to say you have to go before the accused 
first and then you can come to Mr. McPhie and find out what the 
real deal is, particularly since Mr. McPhie doesn't disregard 
what the agency has found but obviously builds on it.
    Finally, you said, Mr. McPhie, that you believe that there 
has been satisfaction with the way you handled EEOC complaints. 
I hope that is the case. I am not saying I heard anything 
different, but on what basis do you say that?
    Mr. McPhie. Based on EEOC's own records, their statistics, 
their surveys.
    Ms. Norton. Because, in fact, they have agreed with what 
you have found?
    Mr. McPhie. Yes.
    Ms. Norton. And since they normally find for themselves, I 
am sure they love you. Remember, the agency makes the decision 
in the first place, and when you bless the agency I am sure 
they are not going to have many differences.
    Mr. McPhie. I am not so sure. The presumption here is 
something I can't buy into, that I bless the agency.
    Ms. Norton. Strike that. I am sure you do your own. Look, 
moreover I can tell you, as the former chair of the agency, 
most complaints filed before such an agency are not probable 
cause complaints that should be sustained, so I am not here 
criticizing your work. I am trying to get at the nature of the 
system and to ask whether or not such a system can be justified 
in the year of our Lord 2007 as we bounce around the world 
telling people to set up objective third-party systems or be 
condemned by the United States of America when right here every 
Federal employee who has a complaint of discrimination against 
her agency must file with her agency first, get the guts to 
file against your agency and then hope that somehow or the 
other some objective review will be found after you look at 
what the agency has found in the first place, sir.
    Mr. McPhie. Again, you sort of conflict in what I do with 
what the agency has done. I don't have a dog in the agency's 
fight. Look, we have a system----
    Ms. Norton. You have quite a dog there because you don't 
take the agency's decision and say that is null and void, I 
don't even want to know about it.
    Mr. McPhie. But ours isn't----
    Ms. Norton. You say, Let me look at what the agency has 
found and then let me see what the appeal from the agency 
should be. This agency's decision is as much the first-line 
decision as the decision of a district court is a first-line 
decision. The court of appeals looks at what the district court 
did, finds whether it was in error, changes it or not. You look 
at what the agency did, look at the agency decision, find 
whether it was in error, and change it or not. There has been 
no third-party adjudication before it gets to you.
    Mr. Davis of Illinois. The gentlelady's time has expired.
    Mr. Mica.
    Mr. Mica. Thank you.
    Well, Mr. Bloch, I don't know quite where to start. I have 
a copy of the e-mail which came from your office. Maybe I could 
ask you if you would supply for the record of the committee if 
you were at work at 11:52 Tuesday, June 19th, in your office. 
That would be the first question. Do you know?
    Mr. Bloch. Congressman----
    Mr. Mica. You don't know?
    Mr. Bloch. I am an independent agency with a charge that we 
are discharging effectively for whistleblowers.
    Mr. Mica. Were you in your office----
    Mr. Bloch. That is what I am here to discuss. I am not 
going to get into personal attacks here.
    Mr. Mica. This is not a personal attack.
    Mr. Bloch. Well, we are done talking about this.
    Mr. Mica. You were in----
    Mr. Bloch. I am not going to answer that.
    Mr. Mica. Well, I want you to supply or I will ask our 
staff investigators to find out if you were in the office on 
that date. I have an e-mail that I just received a copy of 
which has disparaging remarks about me in it, and I just want 
to know if you used Government resources to distribute this 
particular personal e-mail.
    Again, I do want to know that. I will find that out. OK?
    And the second part of the question is whether you used 
Government resources to distribute this e-mail.
    Now, some comments have been made about calling for your 
resignation, and you accused Mr. Davis of saying that. I don't 
recall ever--and then you said you thought it might be some 
attempt to intimidate your investigation. Was that what you 
intimated?
    Mr. Bloch. I didn't intimate it; I said it.
    Mr. Mica. OK. You said it.
    First of all, let's review what we did here. The committee 
undertook an investigation of the GSA Administrator, and it 
started with the matter of a contract. That was all, I guess, 
the end of last year. All of those events took place last year.
    In the course of that investigation it looked like that 
folks were going after Ms. Doan, and maybe they should have. 
When I first heard about it, I thought if she was giving some 
sweetheart contract to somebody who she received money from, 
let's go after her and take her out. As it turned out, she had 
actually employed somebody to produce those diversity reports, 
paid them money, and I think the contract was some $20,000 to 
avoid her agency being disparaged with another poor performance 
on diversity, herself being an African American executive, a 
woman, successful background.
    So there was nothing there. And then it turns out that 
someone found out about the presentation. The presentation, the 
political briefing, was that initiated by Ms. Doan? Do you 
know?
    Mr. Bloch. What do you mean by initiated?
    Mr. Mica. Initiated. Did she initiate the political 
briefing, from your investigation?
    Mr. Bloch. My understanding of the facts is that she, as 
the head of the agency, hosted it, but that the actual 
mechanics of the presentation on January 26th of this year----
    Mr. Mica. Right, was by the White House political office.
    Mr. Bloch. Well, working with the White House liaison, as I 
understand it.
    Mr. Mica. OK. Now, at the end of that she did ask a 
question, and I have heard several comments about the question, 
and I believe she asked a legitimate question, How can we help 
our candidates or how can we help our guys. I have heard 
several people who you, your investigators talked to. I did not 
view that as a serious violation of the Hatch Act. If she said 
how could we use GSA resources, blah, blah, blah, but we won't 
get into that.
    But I thought it ought to be investigated, and I thought we 
should send it to the Office of Special Counsel, your office. I 
hadn't really known much about you. I heard your name, may have 
seen you, but had every confidence that you would investigate 
that.
    I never called for your resignation until I picked up this 
newspaper--I saved the newspaper--and read about a leaked 
report, and then the next day or thereafter read that the 
Washington Post had to do a correction on the leaked report.
    Now, Mr. Davis indicated and the draft report you said was 
developed on the 17th or available on May 17th. Then it went to 
her attorney on the 18th. But it had to be your office that 
leaked that draft report. It had to be your office. And you 
said you had the power to leak?
    Mr. Bloch. Well, Congressman----
    Mr. Mica. You have the power to leak or to----
    Mr. Bloch. I don't use that term.
    Mr. Mica. To disseminate information.
    Mr. Bloch. I have the power to release documents or reports 
or any information I deem in the public interest----
    Mr. Mica. Let me tell you I have the power to ask for your 
resignation, because when I see us asking you to investigate 
something and I pick up in the paper, as a member of the 
Government Reform and Oversight Committee--I have been on this 
15 years--and read in the damned newspaper information, and 
then a retraction and a correction of what your agency had 
leaked, I am not a happy camper. It doesn't give me a lot of 
confidence in what you have done.
    Then I thought well, maybe Mica has just got his shorts 
bound up, or something, but then I started reading about what 
people have said about you. Did you know what Representative 
Eliot Engel said on March 31, 2004? ``Mr. Bloch ought to find a 
new job. He ought to get fired. President Bush should not 
tolerate this from someone he appointed.''
    I have Mr. Waxman's quote. I didn't know you were in 
trouble until I read it in the paper, and your office, itself, 
was under investigation. ``The Doan investigation, one of the 
most highly profile undertaken by the Office of Special 
Counsel, Scott J. Bloch, who, himself, is under investigation 
by the Office of Personnel Management for allegedly retaliating 
against his employees who disagreed with his policies.''
    I have more. I won't read them all into the record.
    Have you read what the executive director of employees for 
Environmental Responsibility has said about you?
    Mr. Bloch. I don't read slander.
    Mr. Mica. OK. Well, let me just say what he said about you. 
``It is only when a probe serves his political agenda that 
Bloch latches onto it as if it were the last helicopter leaving 
Saigon.''
    This isn't what I have said. I have more quotes, and I will 
ask unanimous consent that they be put in. I have a page of 
them, of what they have said about how you operate.
    I didn't know how you operated, but I felt that you were 
coming after Doan, or at least you appeared you were coming 
after her to take the heat off of you, and that is what it 
appears like.
    Mr. Bloch. Congressman, do you believe those statements are 
truth that the pressure groups put out because they disagree 
with one interpretation of the law?
    Mr. Mica. This isn't where I get questioned. This is where 
you get questioned.
    Mr. Bloch. Well, you have thrown them at me----
    Mr. Mica. I am concerned about the leak that----
    Mr. Bloch. You have thrown them at me like arrows.
    Mr. Mica [continuing]. That appeared, the leak that had to 
appear from your office in an important investigation that was 
given to you and a responsibility given to you, and then I 
read--the ultimate insult is to read your personal e-mail, 
whether it was sent on your personal computer or whatever, that 
Davis will either show up as ranking member of the larger 
committee or have Congressman Mica do his dirty work of raking 
me over the coals.
    Mr. Bloch. You have done a good job.
    Mr. Mica. I never intended to rake you over the coals. I 
intended to conduct an investigation of Ms. Doan and then have 
a proper investigation by your office of her conduct relating 
to the Hatch Act. I don't think I got that. I think I got, 
unfortunately, your latching on to her situation and misusing, 
again, the resources of your office to cover up what appears to 
be an office in disarray.
    So I did ask for your resignation when I heard that if, in 
fact, it was true. And if it is not true that your office did 
not leak that information, then I am not interested in your 
resignation.
    Mr. Bloch. Fair enough. Do you want to hear the evidence we 
have against Ms. Doan to rebut what you are saying?
    Mr. Mica. No.
    Mr. Bloch. Not interested?
    Mr. Mica. I have read the report.
    Mr. Bloch. You don't know all the evidence, Congressman. Do 
you want to hear it?
    Mr. Mica. First of all, I don't need you to tell me what I 
know.
    Mr. Bloch. You don't have all the evidence. We have all the 
evidence.
    Mr. Mica. I believe that----
    Mr. Bloch. You don't want to hear it. That is fine.
    Mr. Davis of Illinois. The gentleman's time has expired.
    Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman. I will followup on that.
    What evidence do you have that you didn't put in your 
report?
    Mr. Bloch. We put all of our conclusions----
    [Inaudible comment from audience member.]
    Mr. Issa. No, no, no. Please. You were not sworn in. Unless 
you want to stand and be recognized and be sworn in, let's 
limit what happens.
    Mr. Chairman, were the people behind Mr. Bloch sworn in? 
Mr. Chairman, I apologize, but were the people behind Mr. Bloch 
sworn in? The policy of the committee is either the person or 
anyone who will convey information with him is to be sworn in. 
I would just like to get that done before I begin my process.
    Mr. Davis of Illinois. Those were not.
    Mr. Issa. OK, then, sir, would you please just answer the 
question.
    Mr. Bloch. All right. I will answer it.
    Mr. Issa. Do you have evidence not in your report?
    Mr. Bloch. We have all of the evidence, which is 
transcripts of witness testimony. It is hundreds, if not 
thousands, of pages.
    Mr. Issa. OK. Let's----
    Mr. Bloch. Which you have not read.
    Mr. Issa. Thank you.
    Mr. Bloch. You don't have.
    Mr. Issa. OK. I appreciate that, and I would ask the 
chairman to please have those made available to us so we could 
read the actual transcripts.
    Mr. Bloch. We have not made them available because they 
are----
    Mr. Issa. You haven't chosen to leak those yet?
    Mr. Bloch. More personal attacks, Congressman. Thank you.
    Mr. Issa. No, no, no. See, you don't use leak, but I have 
to ask a question very straightforward. Congress is reviewing 
itself with a critical eye about earmarks. Do you know what an 
earmark is around here? It is either something you do in front 
of everyone and go back home on the 4th of July and brag about 
trying to bring something to your District that is needed, or 
it is something you slip into a bill in the late of night and 
then try not to have your fingerprints on.
    Now, you came before this committee and you say you don't 
do leaks, but then when we ask you who released the 
information, which is your term, you tell me you are not going 
to go check on it. Well, quite frankly, if you are in charge of 
it and it was released, which we know to be true, who released 
it and why is it you don't know who released it?
    Mr. Bloch. Congressman, this is a red herring. It has 
nothing to do with the----
    Mr. Issa. No, no, no. Excuse me. This is my time and you do 
not characterize red herring. This is not a red herring. The 
question, very straightforward, is your office released it, we 
have had confirmation your office released it. Let me ask it 
straightforward. Do you know who leaked it or do you have a 
strong suspicion who leaked it?
    Mr. Bloch. I have stated very clearly--I will state it 
again--that I believe the person that put the report out to the 
public was from GSA. Whether it was with the Administrator's 
knowledge or not, I don't know that.
    Mr. Issa. OK. So who in the GSA----
    Mr. Bloch. But I didn't authorize it.
    Mr. Issa. Who in the GSA----
    Mr. Bloch. I did not authorize it.
    Mr. Issa. Right. Who in the GSA ever received the draft 
that was released to the Post? Who ever received the draft? The 
Administrator did not receive the draft. Who received the 
draft?
    Mr. Bloch. I don't know anything about the draft because I 
haven't seen that on the Washington Post Web site. I am taking 
it on faith that you are right, that this was on there, but I 
didn't put it there.
    Mr. Issa. So let me understand something.
    Mr. Bloch. I don't know that.
    Mr. Issa. They had to print a redaction. The final report 
contained names of individuals which, if it had been leaked, 
would have been a separate crime to release covered individuals 
because that disclosure is not allowed. So a draft was released 
that did not have those names, thus getting around any question 
of that release, but you don't know anything about it and you 
are the head of special counsel? You are the investigator that 
is supposed to keep Government clean and you don't know and you 
are not willing to check?
    Mr. Bloch. Congressman, I think your recitation of facts is 
incorrect concerning what was----
    Mr. Issa. No. I am asking the question.
    Mr. Bloch [continuing]. In the report.
    Mr. Issa. Do you know?
    Mr. Bloch. I have stated what I am going to state on this, 
and----
    Mr. Issa. OK. You are refusing to answer.
    Mr. Bloch [continuing]. I stand by it. And I stand by it.
    Mr. Issa. Now that you are refusing to answer that, we will 
go on to a----
    Mr. Bloch. I have answered it several times.
    Mr. Issa [continuing]. Couple of other things.
    Mr. Bloch. I stand by it. Do you want me to continue----
    Mr. Issa. You may be the special counsel----
    Mr. Bloch [continuing]. To repeat the same answer?
    Mr. Issa [continuing]. Who ends the Office of Special 
Counsel. I just want you to understand that here today. When 
your agency conducts interviews, is it in a deposition-like 
fashion? Yes or no?
    Mr. Bloch. Is what?
    Mr. Issa. Is a transcript-like document or a transcript 
prepared? You mentioned transcript.
    Mr. Bloch. Not always. Sometimes.
    Mr. Issa. OK. Under what circumstances is a transcript not 
prepared?
    Mr. Bloch. When the investigators and attorneys deem it 
unnecessary or too costly a use of resources or impracticable.
    Mr. Issa. If a court reporter is present at the time of a 
deposition and is taking annotations, as we are doing here 
today, does that mean a transcript is being prepared?
    Mr. Bloch. Not necessarily, but I don't think we use court 
reporters.
    Mr. Issa. OK. Well, court-like reporters. Somebody like the 
lady next to you.
    Mr. Bloch. That would be correct, yes, but with a tape 
recorder. Yes.
    Mr. Issa. OK. In the case of Administrator Doan, you did, 
in fact, take records, there was a transcript created. Could 
you please explain to me the rationale for denying under those 
investigations, when a transcript is prepared, the transcript 
to the individual who, in fact, you are taking their 
deposition?
    Mr. Bloch. You are talking about the subject of the 
investigation?
    Mr. Issa. Yes. Why would you not give them the transcript 
of their own interrogation?
    Mr. Bloch. We do. We give them a CD with them doing exactly 
what they did, which is testifying to every word that they 
testified to, and then they can have a court reporter 
transcribe it for them if they like.
    Mr. Issa. So what you are saying is you will not supply a 
transcript, even if you have it transcribed? You just give them 
a raw CD?
    Mr. Bloch. Well, we----
    Mr. Issa. Is that professional to do? Is that what would be 
done in a Federal court? If a U.S. attorney replaced you, is 
that what would be done?
    Mr. Bloch. If the U.S. attorney did not change our written 
policies, yes.
    Mr. Issa. OK. So I will take that as an answer that no, a 
U.S. attorney does not operate that way, the Federal courts do 
not operate that way, but you operate that way.
    Mr. Bloch. That is what our policies provide, Congressman.
    Mr. Issa. OK. Well, that is one of the things we are, as 
oversight for policies that are inconsistent with the normal 
fair play in investigations, something that is bipartisan in 
this committee. So you don't see that procedure of withholding 
until actually after you have not only had a transcript but you 
have already begun leaking--sorry, releasing--to other people 
the output of that transcript, and then and only then do you 
provide a CD to somebody and say go get it transcribed? You 
don't see anything unfair about that?
    Mr. Bloch. Well, everything you said is incorrect, so I 
don't know what I am considering fair or unfair.
    Mr. Issa. Well, you know, it is amazing how many things you 
think are incorrect that----
    Mr. Bloch. Well, I am happy to visit with you about what I 
consider incorrect.
    Mr. Issa. You have already said you are going to take the 
ranking member outside, so I think that is quite enough for 
today.
    Mr. Bloch. I said I was happy to take a discussion outside 
of personal attacks, taking it off the record, where it 
belongs.
    Mr. Issa. OK. Now, as special counsel you are probably 
aware that huge amounts of documents in the past and present by 
the Office of Special Counsel and, in fact, by this very 
committee, have been subpoenaed over the years and presently 
for private accounts, including accounts that are presently in 
the possession of the RNC. It is quite a topic du jour here on 
the dias that we are, in fact, getting AOL accounts that are in 
the possession of the RNC and accounts like that. In light of 
the fact that, in fact, the Office of the President and Vice 
President have been subpoenaed and the Republican National 
Committee, a partisan group only represented by less than half 
the people on the dias here, has been subpoenaed and is being 
required and is in the process, at their own expense, of 
delivering personal e-mail accounts, do you still stand by the 
fact that you think that an e-mail produced on an AOL account 
in the middle of a work day is, in fact, off limits?
    Mr. Bloch. Well, Congressman, I wouldn't categorize it that 
way.
    Mr. Issa. No, no. I categorized it. We are not talking 
about your e-mail. I am just talking about e-mail in general.
    Mr. Bloch. That is what I mean. I would agree that I 
wouldn't say that wholesale and, in fact, we are, ourselves, 
engaged in an investigation of the matters you are talking 
about, and I would draw this distinction for you----
    Mr. Issa. You mean the RNC versus you?
    Mr. Bloch. I hope there is a distinction between the RNC 
and me.
    Mr. Issa. I suspect there is a large one.
    Mr. Bloch. The distinction is very simple. When one is 
using one's accounts for conducting Government business, then 
it is the business of the Government. When one is engaged in 
private discussions using private accounts having nothing to do 
with Government business and the conduct of Government 
business----
    Mr. Issa. What part of Government is the RNC?
    Mr. Bloch. No, it is the people communicating through their 
RNC accounts who may--I am not pre-judging, because we are 
investigating that. It is kind of inappropriate to really get 
into a big discussion.
    Mr. Issa. Yes, I remember it is inappropriate to release 
information until it is concluded. I have seen you on C-SPAN on 
that.
    Mr. Bloch. You are good at sarcasm, Congressman. I will 
give you that.
    Mr. Issa. And you are good at evading the answer to the 
question. You are perfectly willing to demand that the RNC turn 
over a document that was produced on an AOL account, perhaps in 
the middle of the day from a Government computer. It is fair 
game to demand that and go through it, but it is not fair game 
to even ask you about what appeared to me to be a disparaging 
remark about the ranking member of the full committee here done 
by you in the middle of a work day on an AOL account. You feel 
you have no responsibility to answer, and yet you are perfectly 
willing to grill other agencies about it.
    Now, I have to ask you, don't you think there is a little 
hypocrisy there that you are exempt but the Republican National 
Committee isn't exempt and others aren't exempt?
    Mr. Bloch. I wasn't conducting Government business. I was 
talking about my private opinion about some news stories.
    Mr. Issa. OK. And what is Government business, if you are 
talking to the RNC about your friend Louie or about a 
fundraiser you are going to do on your own time that night, 
what is Government business there?
    Mr. Bloch. Well, you are trying to push me into pre-judging 
a case that we are looking into, but let me just----
    Mr. Issa. No, no.
    Mr. Bloch. We are not doing that.
    Mr. Issa. Sir, I am trying to get you to take a cold, hard 
look at your own indiscretions and your refusal to answer 
questions here today, and I simply want you to at least begin 
to come to grips with the fact that the Office of Special 
Counsel does not act like a normal U.S. attorney or anybody 
else in the Justice Department or in the Judiciary, and we are 
concerned because we have to consider whether or not there 
should continue to be an Office of Special Counsel on an 
ongoing basis.
    Mr. Mica. Would you yield a second?
    Mr. Bloch. May I answer?
    Mr. Mica. For a second yielded to me.
    Mr. Bloch. All right.
    Mr. Mica. This is a part about what he was asking about 
Mr.----
    Mr. Issa. There has been extra time on the other side. Just 
go ahead.
    Mr. Mica. What he was asking about was actually a specific 
reauthorization hearing for his agency. He was commenting that 
he was going to----
    Mr. Clay. Mr. Chairman, could we have regular order, 
please?
    Mr. Mica. I would like that in the record.
    Mr. Davis of Illinois. The gentleman's time has expired.
    Mr. Clay. Thank you, Mr. Chairman.
    Mr. Davis of Illinois. The Chair is going to yield 10 
additional minutes to himself, myself, and to the ranking 
member, and I am going to yield 6 of those minutes to Mr. Clay.
    Mr. Clay. Thank you, Mr. Chairman, for yielding.
    Mr. Bloch, let me try to clarify some of the confusion that 
my friends on the other side of the aisle of this committee 
have brought to us today. I am sure that the viewing public and 
the people in this room are somewhat confused, and some of us 
are artists in confusion.
    The OSC has found that Administrator Doan committed a Hatch 
Act violation and that you sent a recommendation to the 
President to punish her on June 8th. The President has not 
acted or given a timeframe for his actions. Do you believe this 
was a serious violation?
    Mr. Bloch. Thank you, Congressman Clay. The report that we 
sent to the President outlines how we do believe it is very 
serious and the reason why is that you have an agency that has 
$50 billion in contracts and $500 billion approximately in real 
estate holdings, with an ability certainly, if there is a will 
to do so, to target congressional districts with resources and 
help for candidates and for parties if there is a will to do 
that, and so any suggestion or hint or implication that someone 
at the head of that kind of agency would offer it up as 
something that we can brainstorm about how to use those 
resources of getting people to various openings and 
highlighting people on a particular party is a very, very 
serious matter.
    Not only that, but you have 30 political appointees present 
who are not allowed to engage in such a brainstorming session 
in a Federal building, and yet they are being, in a sense, 
forced to.
    I know that others disagree with our report, but we had all 
the evidence. And I didn't do the investigating. I did ratify 
the report. I do believe it was correct. But we have Hatch Act 
experts who have been doing this for many years. If you look at 
all the people that worked on this file, very experienced 
litigators, very experienced attorneys who really, really know 
the Hatch Act, and we are the only agency in the Federal 
Government that is authorized to investigate and prosecute 
Hatch Act violations, as well as to give advisory opinions 
about what is and what isn't acceptable behavior.
    Then, finally, I would note that the level of authority 
that an employee has weighs into what should happen to them if 
they violate the Hatch Act. The higher up you go the higher the 
standards are, and that is in the case law. We have tried to be 
clear about that and tried to be fair.
    If you read the transcript of the interview of Ms. Doan, as 
I have, you see investigators who are really trying to give her 
a fair shake to let her tell whatever evidence she has, 
whatever information she needs to put forth that would help us 
to make our decision.
    Unfortunately, Congressman, she was not very forthcoming. I 
believe that there was a great deal of misleading evidence 
provided, and that also weighs into an aggravating factor under 
the case law as to whether the individual cooperated and took 
responsibility for their action, and so on. This is a serious 
aggravating factor in this case.
    Mr. Clay. And I couldn't agree more with you. We also on 
this committee experienced that kind of behavior from Ms. Doan, 
where she was very recalcitrant about answering the questions 
and being forthcoming.
    Do you know when the President will make a decision on your 
recommendation?
    Mr. Bloch. No, I do not, Congressman. I think, you know, 
that is certainly within the President's domain and appropriate 
moment. I don't know exactly when that would be, and I will ask 
my Hatch unit to advise me on this, but maybe we will make an 
inquiry at the appropriate time if, you know, there is no 
decision made within a reasonable period. But there is no 
statutory timeframe.
    Mr. Clay. Sure.
    Mr. Bloch. And so I don't know exactly how to answer that.
    Mr. Clay. What do you think he should decide?
    Mr. Bloch. Well, far be it from me to tell the President 
what to do. We have made our recommendations. If I were in that 
position, I would want to make a decision in a timely and 
reasonable fashion so that people would have a sense of there 
being a process that is reasonable and fair, and that some 
decisionmaking takes place, and I think everybody does believe 
that is the right thing to do. So I would certainly encourage 
the White House to do what they believe is appropriate and 
reasonable in terms of time to make the decision.
    Mr. Clay. This case has been pretty high profile, and I 
just hope it is not symptomatic of a recurring theme throughout 
this administration that you use an agency, that you use 
Federal largesse to help in political campaigns. We all know 
that is wrong. We know it is a violation of the Hatch Act when 
you involved Federal employees in that kind of activity. I 
couldn't agree more with you, and thank you for your service.
    Mr. Bloch. Thank you, Congressman.
    Mr. Clay. I appreciate that very much.
    Let me go to Mr. McPhie.
    Mr. McPhie, welcome. Historically, Congress has not 
received many requests to exempt agencies from the Sunshine 
Act. Tell me what makes the Board so special?
    Mr. McPhie. It is the nature of the Board's work. It is not 
the Board being special. The Board has the obligation to decide 
cases, an adjudicative responsibility. There are three members, 
three Board members. The Board has been identified by the court 
as a quasi-judicial agency.
    The Board has not had a meeting under the Sunshine Act 
since I think the last one was in November 2001. There are 
multiple reasons for that. One of the reasons is the 
unwillingness to talk freely because you can't really talk 
freely between Board members about cases. What we do, what is 
common practice is we send our surrogates, you know, chief 
counsels, and they expound your position, and so on and so 
forth. And in a case that is complex or ticklish, tough to 
decide, those discussions back and forth happen frequently.
    Mr. Clay. You mean you can't even hold a meeting, a regular 
business meeting?
    Mr. McPhie. Well, you can hold a regular business meeting 
and you can hold a Sunshine Act meeting, but there are 
predicates. You have to give the notice, and the notice has to 
state the time and place, and so on and so forth, and the 
subject matter of the discussion. But you may give a notice, 
for example, about a case, and you get into a discussion about 
that case, you have to be real careful that discussion doesn't 
morph into a discussion about other cases in the pipeline.
    Mr. Clay. That goes to my next question. Will this 
exemption occur at the adjudicatory function or apply to any 
meeting of the Board----
    Mr. McPhie. No.
    Mr. Clay [continuing]. At the discretion of the chairman?
    Mr. McPhie. No, no. Adjudicatory. Adjudicatory. The issue 
comes up when we are discussing cases. The issue does not come 
up in other areas. We are not trying to evade or run from the 
Sunshine Act. Government and Sunshine is good, is sound policy. 
That is not the issue.
    I want to point out also that the Board is required, when 
it renders a decision, to give the reasons for its decision, 
the law upon which it applied, and so forth. So it is not a 
situation where what the Board does in darkness doesn't see the 
light of day.
    The only purpose of it really is to make the Board more 
efficient as adjudicators. I don't believe it would happen very 
often, because not all Board cases are that complex. Some are 
fairly routine cases. But it is an effort by us, especially in 
today's climate, where the demands upon us are to be efficient. 
DOD requires us to do cases in the field in 90 days, 
headquarters in 90 days. DHS requires the same sort of time 
line. The proposed whistleblower legislation requires us to do 
it in 180 days. The time when an agency like the Board to take 
a case and take its good time to decide those cases, those days 
are gone.
    Mr. Davis of Illinois. The gentleman's time has expired.
    Mr. Clay. I thank you. I thank the chairman. Thank you, Mr. 
McPhie.
    Mr. Davis of Illinois. Mr. Marchant.
    Mr. Marchant. Thank you, Mr. Chairman. I am going to give 
my time to Mr. Mica and Mr. Issa, 5 minutes each.
    Mr. Mica. Thank you.
    Again, Mr. Bloch, I have never had any reason to rake you 
over the coals, as you intimated in this June 19, 2007, 11:52 
a.m. e-mail. I told you the context in which all of my interest 
occurred, and that was when we started investigating Ms. Doan. 
Turned out to be sort of a reckless attack on her, on the issue 
of the contract which was never let, which she was not giving 
the contract to anyone which she had received financial gain. 
In fact, she had given between $400,000 and $500,000 worth of 
business to that individual.
    They went on a fishing expedition afterwards and found this 
Jennings political briefing, and I really thought that it would 
be appropriate for the Office of Special Counsel to objectively 
investigate that report.
    Mr. Bloch. And that is what we did, Congressman.
    Mr. Mica. Well, I don't know that to be the case, based 
again on your particular situation and what I have seen. I 
quoted for the record here, and you have heard, normally, too, 
in these situations Mr. Issa and I, Mr. Davis, we do the best. 
You are an administration appointee, I believe, and we do our 
best to try to defend or to assist presenting as much 
information as we can to offer into the record to support those 
in our administration. I gave quotes of others who had concern 
about your tactics. I did not note that you and your office 
were under investigation in matters. I have quotes from Mr. 
Waxman. Mr. Waxman said, ``Mr. Bloch's actions are part of a 
larger attack on the Federal Service system by the Bush 
administration. Over the past 3\1/2\ years Federal employees 
lost collective bargaining and appeals rights and they have 
seen their jobs outsourced, and now they face discrimination 
based on their sexual orientation.''
    I am now being critical of you, and I know that quote by 
Mr. Waxman is taken out of context, but people have had 
differences of agreement with both your approach and some of 
your findings. I find that to be the case in the Doan case.
    I go back again to having sat on this panel for 15 years, 
investigated Republican appointees, Democrat employees, and I 
have never had an instance--I saved that newspaper. Where is 
it? I threw it down here a while ago. I don't want to lose it 
because the morning I read it I became unglued to know that an 
important matter that we had put in your trust and confidence 
to investigate, I found a leak.
    Again, you told Mr. Davis yesterday morning that the leak 
was from inside GSA, and you have repeated that several times 
here today.
    Mr. Bloch. That is what I believe to be the truth.
    Mr. Mica. That is impossible. The Washington Post had 
access to a version of the draft of the report that was never 
provided to GSA.
    When did you find out about the Washington Post 
clarification? I had a copy of that I held up earlier. When did 
you find out about the Washington Post clarification?
    Mr. Bloch. Well, I can only answer that I wrote to Mr. 
Nardotti on May 25th indicating what the information I had from 
my office as to how the report got out, and I would like to 
submit it for the record, if I could.
    Mr. Mica. I would like that as part of the record, Mr. 
Chairman, without objection.
    Mr. Davis of Illinois. Without objection.
    Mr. Mica. Again, the point is that we are involved in 
investigations and oversight, and I find the draft report with 
conclusions that they have to do a correction on. Did anyone on 
your staff call this to your attention, your communications 
director or----
    Mr. Bloch. Yes. I was told about it. I didn't read the 
Washington Post.
    Mr. Mica. OK. Do you recall----
    Mr. Bloch. I didn't see it on the Post's Web site.
    Mr. Mica. Someone said it may have been a communications 
director. Do you recall who the individual----
    Mr. Bloch. I honestly don't remember if it was one of the 
communications staff or my chief of staff or a combination. I 
don't remember exactly, but yes, it was communicated to me that 
there was something. This was after we had confirmed that 
somebody at GSA had sent it by fax to the Government Executive 
and maybe also the Federal Times. Then there was, some time 
later, maybe the next day, I don't know, I was informed another 
version was on the Washington Post Web site and then was taken 
down. I don't know if that is true, but I accept your 
representation that it was. I never saw it, myself.
    Mr. Mica. Again, I will just conclude. You ran an 
investigative agency, an important one, and it is important 
that we have confidence in that. I think it is important that 
you investigate this leak, because this goes to the very heart 
of this whole investigative process. Do you intend to go back 
and pursue how this leak occurred?
    Mr. Bloch. Congressman, I believe that it was 
inconsequential. It had nothing to do with the facts of the 
case. What GSA had sent to Government Executive was already out 
there, which was the sum and substance of the report. The only 
thing that was in this other edition of it, I guess--again, I 
didn't see it on the Web site--was something added in at the 
end about recommendations of punishment, but that was something 
that was put in the letter that I signed to go to the 
President, and so that is all I can say.
    But if there were some prejudice to Ms. Doan I would think 
it was important, but there was no prejudice because the report 
was already out there in the public domain and we had already 
completed the report, so the President was not going to be 
swayed by something that was put on a Government Executive or 
Washington Post Web site.
    The President was the decisionmaker always. Always has been 
and is now. I don't think that is a matter, and I talked about 
this with Mr. Fielding, White House counsel, and explained to 
him that I didn't do that and that we found out that somebody 
at GSA had faxed over this report to Government Executive, and 
I told him I didn't believe in putting out these reports before 
the President had a chance to make a decision and I didn't 
believe in putting our reports before Ms. Doan had a chance to 
respond.
    I have said that all along, but I don't think that it is 
appropriate for me now to engage in an investigation of my 
staff to get into these matters. I don't think that is 
appropriate.
    Mr. Davis of Illinois. Mr. Issa, you have only got about 4 
minutes.
    Mr. Issa. OK. I will hurry.
    Mr. Bloch, the gentleman, Jimmy Mitchell, behind you, would 
he know whether that leak came from your organization?
    Mr. Bloch. Jimmy Mitchell sitting behind you?
    Mr. Issa. No, the gentleman in the white shirt and tie.
    Mr. Bloch. Mr. Mitchell, the communications director?
    Mr. Issa. Yes. Mr. Mitchell, would you know whether that 
could have come from your organization or not and would you 
have a suspicion?
    Mr. Bloch. Congressman, I am the one here speaking on 
behalf of the Office of Special Counsel. I am under oath. I 
would appreciate the questions being addressed----
    Mr. Issa. I appreciate the fact that you don't want to ask, 
you have a don't ask/don't tell policy. It is clear that your 
organization knows that it came from within. It may be 
inconsequential, as you say, and, in fact, it may be that we 
often don't find out where the leaks come from. I can accept 
some of that. What I can't accept is the fact that you are 
gagging the very ability to correct a statement you are making 
repeatedly that it came from GSA when your own organization 
knows it came from your organization.
    Mr. Bloch. Well, the gagging that you are referring to I 
could be accused of if I instituted any kind of investigation 
internally. Whether someone----
    Mr. Issa. No, you just gagged Mr. Mitchell right now.
    Let's move on.
    Who did you send this e-mail to?
    Mr. Bloch. Which e-mail?
    Mr. Issa. The one that we have been talking about from June 
19th.
    Mr. Bloch. I am not talking about that any more. It is a 
private e-mail. It is not----
    Mr. Issa. OK. It is a private e-mail that, in fact, isn't 
it true that something you released characterizing this 
investigation, characterizing Mr. Davis as trying to defend 
Doan, characterizing what Ms. Doan has said before this 
committee, and characterizing and actually speaking of your own 
reauthorization in your e-mails, isn't it true that could have 
a chilling effect on the ability for Ms. Doan to survive your 
report? Isn't that true? Isn't it true you could--wait a 
second. I am going to ask the question and ask it completely 
one time. Isn't it true and pretty obvious that this e-mail 
sent by you to others and then sent by others and others could, 
in fact, very well affect the outcome, the public opinion 
outcome that could lead to and affect by the President just at 
a time in which your investigation has been completed but the 
President has not made a ruling? Isn't it true that you could 
have done that by sending this out?
    Mr. Bloch. I think that is probably very speculative and 
not anything----
    Mr. Issa. But you sent it out in reckless disregard for 
what the effect it might have if it were widely viewed?
    Mr. Bloch. It was a private e-mail on a private account to 
friends and family and some news reports----
    Mr. Issa. What is amazing is everything is private to you. 
You won't tell us where you sent it to.
    Mr. Bloch. I don't know. I mean, I honestly don't know.
    Mr. Issa. Your wife.
    Mr. Bloch. I told my wife about it. I remember that.
    Mr. Issa. Right. In the e-mail you talk about showing up of 
the ranking member of the larger committee, Congressman Mica, 
but you are also talking about I am going up for my 
reauthorization on July 12th. The fact is you are talking 
official business and not official business. You are mixing and 
matching things in e-mails on AOL, and then you want to say 
that they are not.
    On top of that, you are trying to submit information here 
when your own flawed report that is at the President's desk 
doesn't cite transcript references, talks about interviewing 20 
people but doesn't cite that, and you didn't cite case law. You 
sent something up with a conclusion, a recommendation for the 
President, and today you say you have evidence and transcripts 
which you haven't released, and you are telling us that, in 
fact, you could give it to us today, but you did not give the 
President citings of the very things you are talking about here 
today. I am ashamed you sent us----
    Mr. Bloch. May I----
    Mr. Issa [continuing]. That piece of work product.
    Mr. Bloch. May I answer?
    Mr. Issa. You can certainly answer on the----
    Mr. Bloch. I am going to answer now, if I may. May I, Mr. 
Chairman? All right.
    The answer to your question is we did cite case law. We 
cited Supreme Court case law, we cited regulations, and we 
cited the statute. The statute under which we operate, 5 U.S.C. 
1214, requires only that we set forth the facts upon which we 
base our decision and the statute that was violated. That is 
all that is required to be sent to the President. We did a lot 
more than that, and we cited the record, we cited a great deal 
of evidence, but there were things that we didn't believe were 
appropriate to put in because of individuals who did not want 
their identities revealed, and that is why this committee does 
not have their transcripts.
    Mr. Issa. Thank you.
    Mr. Chairman, for the record, for the reauthorization which 
is upcoming, I would hope that we look at that statute and the 
fact that it does not have to cite with specificity enough, in 
fact, for somebody to defend themselves when they are being 
accused of something by unnamed people and egregious acts that 
are unsubstantiated.
    I yield back.
    Mr. Davis of Illinois. Thank you.
    Let me thank both of you gentlemen for your testimony and 
let me just state, Mr. McPhie, I think I am going to probably 
have some difficulty with the Sunshine notions. I am a firm 
believer in what I call the Open Meetings Act, so I am going to 
probably have to have some more discussion relative to that 
request.
    Mr. McPhie. I would be more than happy to answer questions 
or try to explain a little bit more fully at your pleasure.
    Mr. Davis of Illinois. I thank the gentlemen very much. We 
appreciate you. You are excused.
    Mr. Bloch. Thank you, Mr. Chairman.
    Mr. McPhie. Thank you, sir.
    Mr. Davis of Illinois. We will now move to our second 
panel, Mr. Rosenberg, Mr. Nicola, and Mr. Hogue.
    Since you are standing, we will go ahead, and then I will 
introduce the witness.
    Mr. Rosenberg. I explained to the chief of staff that with 
me today are two of my colleagues who collaborated in my 
testimony, and I will be the prime spokesman, but there are 
questions that you may have that they are expert in.
    Mr. Davis of Illinois. And they can certainly join you at 
the table. There is room.
    Our witness is Mr. Morton Rosenberg. He is a specialist in 
the American Law Division of the Congressional Research 
Service, Library of Congress. He has been with the Library 
since 1972. Mr. Rosenberg specializes in the areas of 
Constitutional law, administrative law and process, 
congressional practice and procedure, and labor law. He is the 
author of a number of journal articles on separation of powers 
and administrative law issues.
    He is joined and accompanied by Mr. Thomas J. Nicola, the 
Legislative Attorney in the American Law Division of CRS, and 
Henry B. Hogue, Analyst in American National Government in the 
Government and Finance Division of CRS.
    Mr. Rosenberg, as is our custom, if you would stand and 
raise your right hand.
    [Witness sworn.]
    Mr. Davis of Illinois. The record will show that the 
witness answered in the affirmative.
    Your entire statement is in the record. Of course, the 
green light indicates that you have 5 minutes. The yellow light 
indicates that 1 minute is left, and the red light means that 
you have ended and we will then proceed with the questions.
    Thank you so much for your patience. Thank you for being 
here. You may proceed.

 STATEMENT OF MORTON ROSENBERG, SENIOR ANALYST, CONGRESSIONAL 
RESEARCH SERVICE, ACCOMPANIED BY THOMAS J. NICOLA, LEGISLATIVE 
    ATTORNEY, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH 
    SERVICE; AND HENRY B. HOGUE, ANALYST, AMERICAN NATIONAL 
  GOVERNMENT, GOVERNMENT AND FINANCE DIVISION, CONGRESSIONAL 
                        RESEARCH SERVICE

    Mr. Rosenberg. Thank you for inviting me, Mr. Chairman and 
Congresswoman Norton. I appreciate your calling me here.
    What I would like to highlight in my remarks today is a 
notable theme that appears to underlie MSPB's proposed 
legislation. Although described as technical corrections, the 
language in those proposals dealing with the authority to 
prepare and submit annual budget requests and the authority to 
delegate various Board functions would have the effect of 
concentrating substantive policymaking in the Office of the 
Chairman. This would be a significant change from current 
specific statutory directions that such decisionmaking 
authority is reserved for members of the Board acting as a 
body.
    On the record, statements by Chairman McPhie appear to 
corroborate this intent and indicate that his management of the 
agency has been unilateral rather than collegial in nature, an 
apparent variance from the MSPB statute and the expectations of 
Congress.
    We understand that Congress may elect to endorse this 
arrangement. Our purpose today, however, is solely to identify 
these apparent departures from the original, congressionally 
established scheme and the potential consequences.
    MSPB, as you are aware, is an independent Executive agency 
whose essential mission is to discourage subversions of merit 
principles from partisan, political, and other statutorily 
prohibited personnel practices, principally by hearing and 
deciding appeals for Federal employees of removals and other 
major adverse personnel actions, as well as other types of 
Civil Service cases.
    In nature and function, it is primarily an adjudicatory 
body. In establishing the Board, Congress structured it in a 
manner to assure both a high degree of independence and 
insulation from Presidential intervention, and to provide 
avenues for congressional oversight and public access to its 
decisional and operational processes. It also intended that 
substantive decisionmaking was to be collegial in nature.
    The independence and collegiality goals are reflected in 
the enabling legislation. Members serve for 7-year terms. Those 
terms are staggered so that a President can't appoint all of 
them at one time. Members cannot be removed except for stated 
cause. Members must be qualified, experienced, and be able to 
carry out the functions of the Board. The Board, as a body, has 
independent litigation authority to enforce subpoenas and to 
appear in civil actions in connection with Board functions 
apart from the Justice Department.
    Its annual budget request prepared by the Board is to be 
simultaneously presented to the President and to the 
appropriate congressional committees, thereby bypassing OMB 
review, and the Board as a body is directed to submit its 
legislative recommendations simultaneously to the appropriate 
legislative committees, once again bypassing OMB clearance 
requirements.
    The Board as a body may delegate the performance of its 
administrative functions under the act to any employee of the 
Board.
    These and other combinations of such political insulation 
and collegiality features are to be found in numerous single-
headed and multi-member independent agencies. The choice of 
which agencies and functions are to be so specially treated is 
that of Congress alone to make.
    The scheme and structure and organization established by 
Congress for MSPB was intended to allow it to carry out its 
adjudicatory function freer from the influence of short-term 
political considerations and influences that might otherwise 
be.
    The importance of each structural element of the 
independence of a Governmental agency intended by Congress was 
recognized in the 2002 decision by the Court of Appeals for the 
District of Columbia Circuit. The court held that the 
requirement of staggered terms was so integral to the 
congressional scheme of independence designed for the U.S. 
Commission on Civil Rights in 1983 that its omission in the 
subsequent 1994 reauthorization measure could not be deemed an 
implied repeal of that provision.
    That court's opinion suggests that a successful scheme of 
independence at times may be undermined by either the 
elimination, diminution, or avoidance of one or more parts of 
that scheme. This implies that the proposed changes at MSPB's 
organizational arrangements should be assessed both 
individually and collectively for the impact that they could 
have on the continued level of independence of the Board.
    Let me turn to the proposals that are in question. Under 
current law, the full Board may delegate performance of any of 
its administration functions under the act to any employee of 
the Board. That subsection would be amended to allow such 
delegations in the sole discretion of the chairman.
    Under current law, the chairman is authorized to appoint 
such personnel as may be necessary to perform the functions of 
the Board. A proposed amendment would allow the chairman to 
delegate officers and employees under this subsection authority 
to perform such duties and make such expenditures as may be 
necessary.
    Under current law, finally, the full Board is to prepare 
and submit simultaneously the Board's annual budget to the 
President and to appropriate congressional committees. A 
proposed amendment would vest the preparation of the annual 
budget submission solely in the chairman.
    We believe that, rather than being technical corrections, 
as characterized by the MSPB, these amendments may be viewed as 
substantive enhancements of the power and authority of the 
Office of the chairman. Indeed, the MSPB chairman, in his 
written responses to member queries following the Senate's 
March 2007, reauthorization hearing, candidly expressed his 
view that, as chairman, he occupies ``a position of 
responsibility that is superior and not co-equal to that of the 
other two Board members,'' and that he is, ``the head of the 
agency.''
    He asserted that, since the statute makes the chairman the 
chief executive administrative officer of the Board, the 
vesting of budget preparation and submission to the President 
and Congress by the MSPB's statute to the full Board is 
inconsistent with the chairman's statutory authority to be CEO 
and creates an ambiguity in the relative roles and 
responsibilities of the three-member Board and chairman of the 
Board.
    The proposal to vest budget preparation and submission 
authority in the chairman is asserted not to be a ratification 
or approval, sanctioning, or endorsement of the chairman's 
views, but merely to clarify an apparent ambiguity and to 
reflect past agency practice, as well.
    Although the statute provides that the Board is required to 
simultaneously submit to the President and each House of 
Congress any legislative recommendations related to title 5 
functions, Chairman McPhie stated that, pursuant to his 
authority as chief executive administrative officer, he 
``develops and submits legislative recommendations with input 
from the individual Board members and program managers.'' Just 
input.
    With respect to the promulgation of regulations, the 
chairman stated that he ``consults with Board members and other 
program managers as appropriate in developing and prescribing 
regulations that govern the general operation and management of 
the agencies.''
    Again, current law provides that the full Board should have 
the authority to prescribe such regulations as may be necessary 
for the performance of its functions.
    The rationale that is proffered as the basis of these 
proposals, that congressional designation of the chairman of 
MSPB as the chief executive officer and administrative officer 
of the Board, encompasses sole authority over such matters as 
budget formulation and delegation of substantive Board 
functions, is contrary to the history of the development of the 
position of Chairperson of multi-member agencies and the law 
that has evolved in relationship to that development.
    It is well established that chairpersons are not the heads 
of Federal collegial bodies such as MSPB in a legal sense. It 
is important and interesting to note that a consistent and 
unbroken series of Department of Justice Office of Legal 
Counsel decisions has held that, even when legislation provides 
that a collegial body's chairperson ``shall be the chief 
executive officer of the board and shall exercise executive and 
administrative functions of the board,'' that such language 
does not encompass the substantive and policymaking functions 
of the body as prescribed by enabling statutes.
    The OOC says the chairperson, in other words, superintends 
and carries on the day-to-day activities necessary to 
effectuate the board's substantive decisions. He does not, 
absent some board approval such as an expression of expressed 
delegation by the board or the board's acquiescence of the 
chairperson's actions, make those decisions by himself.
    We have found no basis in law or practice for deeming the 
chair of a collegial regulatory body as either a superior 
officer or the head of the body in a legal sense. A commission 
like the MSPB substantively acts only as a collegial body, with 
each member exercising one vote. A chairman's exercise of the 
executive and administrative functions of such a body may be 
defined and limited by a majority of such body.
    Let me conclude then. It is arguable that the alterations 
suggested by these technical corrections would affect 
substantively the overall scheme of the independence of the 
MSPB. By vesting budget preparation and submission authority 
solely in the chairman, together with the assertions by the 
chairman of the exclusive control of MSPB powers vested in the 
Board by law, the collegial nature of the Board and its 
political balance would be jeopardized.
    With less need to negotiate with fellow Board members, the 
Chair might be more aligned with the viewpoint of the President 
who selected him or her. The ability to delegate substantive 
agency functions to persons appointed by the chairman, 
including expenditure authority, may be seen as diminishing the 
heretofore presumed equality of the other members. Such 
authorities would appear to affect a significant change in the 
independent nature of the Board.
    Thank you.
    [The prepared statement of Mr. Rosenberg follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    
    Mr. Davis of Illinois. Thank you very much. We appreciate 
your testimony.
    Let me ask you, Mr. Rosenberg, are you saying a dual role 
for the chairman may not be in the best interest of the Board 
or the independence of the Board?
    Mr. Rosenberg. I wouldn't characterize it as a dual role. I 
would characterize it as a supervening role. If, in fact, what 
is happening is that he consults with the members and then 
makes the decisions--and they are policy decisions--with 
respect to the budget preparation and the budget submissions, 
that is a huge amount of control that he has. As I read the 
legislative history and the reason for creating it in 1978, 
this was supposed to be a collegial body that was supposed to 
work together, and not setting up a single-person agency.
    Mr. Davis of Illinois. And so the Board should have their 
three members then, and then they have somebody else processing 
their work rather than the decisionmaking?
    Mr. Rosenberg. Well, it would be interesting to know if 
there is acquiescence by the other two members. The statements 
of the chairman appear to be that he has their acquiescence. 
One of the difficulties is this problem, if it is a problem, 
has been addressed by the Senate. It is before you. If nothing 
is done about it, there is a possibility of an argument that 
Congress has acquiesced in this subtle change in the nature of 
the Board.
    Mr. Davis of Illinois. What should Congress be concerned 
about when considering exempting the MSPB from compliance with 
the Sunshine Act?
    Mr. Rosenberg. We have addressed that in the paper, and I 
will defer to Mr. Hogue, who has studied this program question.
    Mr. Hogue. The act requires that collegial bodies, when 
they are holding substantive meetings, comply with certain 
processes and procedures, and MSPB, in their justification, 
indicated that they would like exemption from this at the 
discretion of the Chair for the purposes of their adjudicatory 
functions. But in a legislative language that we were given to 
review, the section would allow the chairman, in his or her 
sole discretion, to call a meeting of the members of the Board 
without regard to Section 522.B, at which members may jointly 
conducted or dispose of agency business. It does not specify in 
that context the adjudicatory functions only.
    In line with that, the act allows an exemption for 
adjudicatory type meetings, and the agency has acknowledged 
that they would be exempt under this.
    I think that the difficulty that the agency has identified 
has to do with moving between discussion of specific cases, 
which arguably would be covered under the exemption, and moving 
into broader policy discussions that may be related to those 
cases. That is one of the difficulties that they cite. And 
other agencies have identified this as a difficulty when they 
are moving backward and forward.
    Some of the literature that I reviewed in the process of 
looking at their proposal indicates that, based on case law, it 
could be argued that there is enough flexibility in the law, in 
the way it has been interpreted, to allow an agency or a board 
like MSPB to occasionally venture into discussion of broader 
areas, as long as they are not establishing new policy. So 
perhaps that would be a solution as an alternative to giving 
them an exemption.
    They also argue that the Sunshine Act, having open meetings 
inhibits candid discussion, and this is also a common complaint 
that comes from other agencies that are subject to the Sunshine 
Act. There is some evidence that has been cited in the 
literature that I have reviewed that indicates that candor 
perhaps has decreased under the Sunshine Act; however, there 
also have been counter-arguments made that having open meetings 
might encourage members to be better prepared for meetings and 
also that it should be incumbent on members, when they are 
serving in the public interest, to shed reluctance to speak 
candidly in open sessions.
    That is what the literature that I have reviewed has said 
about that.
    As the chairman indicated earlier, as a practical matter 
the Board is not holding the Sunshine meetings. Their 
decisionmaking is through members' staffs meeting to discuss 
and decide on these issues.
    I guess what I would say in conclusion in my analysis is 
that there are difficulties with the Sunshine Act, but they are 
broader than just the MSPB, and other agencies have found ways 
to adapt. They may not be perfect, but that is how people have 
responded to it.
    Perhaps Congress will want to come back to it at some point 
to resolve some of these issues.
    Mr. Davis of Illinois. Although the flexibility may be 
present, is it unwieldy in any kind of way for the Board to 
transition into what might be called executive session when 
there is a need to make decisions or when there is need to 
discuss sensitive issues?
    Mr. Hogue. Well, it may be. I don't have examples to cite 
on how other agencies have done that and whether it would be 
unwieldy. The flexibility argument that I referred to before 
suggests that they might be able to remain in closed session 
and discuss wider issues as long as they are not making fresh 
policy, in which case they would want to reopen the meeting.
    I am merely saying this is an avenue that may merit further 
exploration by the agency.
    Mr. Rosenberg. In my youth I worked at the National Labor 
Relations Board on a member's staff. That is an adjudicatory 
body, you know, just like the MSPB. In discussions of cases, it 
was often true and seemed natural at the time that the decision 
in a particular case might have an effect or might be moving 
toward one direction or another, and the members' discussions 
of those possibilities seemed a normal part of the discussion 
of an individual case, particularly an important one.
    The five members of the board took part in it, seemed very 
comfortable. These were closed meetings, of course, under the 
exemption.
    So my own personal experience is that what happens in those 
meetings, you know, allows for a formative discussion, an 
informative discussion, too.
    The real problem here is the proposed legislative language 
is so broad that, unless it is clearly to enhance the 
adjudicatory exception there, it might be used in the future 
much more broadly. It is part of the problem of the 
centralization of control in the Chair.
    Mr. Davis of Illinois. Bottom line, you really don't see 
any particular reason why they should be exempt?
    Mr. Rosenberg. That is for the committee's judgment, sir.
    Mr. Davis of Illinois. Thank you, gentlemen. I don't have 
any further questions. I think Mr. Cummings was out, but thank 
you very much. We certainly appreciate your testimony, 
appreciate your being here, and the patience that you have 
displayed with us.
    Mr. Rosenberg. Thank you. It is a pleasure to be here.
    Mr. Hogue. Thank you very much.
    Mr. Davis of Illinois. We will now hear from our third 
panel. I want to thank all of them for their patience and 
willingness to remain.
    Our third panel is going to consist of Adam Miles, who is 
the Legislative Representative for the Government 
Accountability Project [GAP], a nonprofit, nonpartisan 
organization that supports Government and corporate 
whistleblowers. Mr. Miles coordinates GAP's legislative 
campaign to restore genuine free speech protections for 
Government whistleblowers and is GAP's primarily client liaison 
with the U.S. Office of Special Counsel.
    Ms. Natresha Dawson began her public service career at the 
age of 17 as a stay-in-schooler. From June 25, 2005, until 
October 13, 2006, Ms. Dawson was employed by the Office of 
Special Counsel as one of two paralegal specialists initially 
hired for the OSC's newly created customer service unit [CSU].
    Welcome, and thank you.
    Ms. Lara Schwartz, is the chief legislative counsel at the 
Human Rights Campaign. She advocates against discriminatory 
practices and policy initiatives that affect the everyday lives 
of gay, lesbian, bisexual, and trans-gender people and their 
families. Prior to joining the Human Rights Campaign, Ms. 
Schwartz was associated with the law firm of Gilbert Heintz and 
Randolph, LLP, where she focused on legislative redistricting, 
voting rights, insurance litigation, and fair housing.
    Thank you.
    Ms. Beth Daley is the director of investigations at the 
Project on Government Oversight [POGO]. She has worked for 
public policy organizations in Washington, DC, for 15 years. 
She has conducted POGO's investigation into protections for 
homeland and national security whistleblowers.
    Thank you all so very much.
    [Witnesses sworn.]
    Mr. Davis of Illinois. The record will show that each 
witness answered in the affirmative. Thank you very much.
    Your statements are in the record and, of course, the green 
light indicates that you have 5 minutes in which to summarize 
your statement. The yellow light, 1 minute left. Red light, 
stop. We will begin with Mr. Miles.

  STATEMENTS OF ADAM MILES, LEGAL REPRESENTATIVE, GOVERNMENT 
   ACCOUNTABILITY PROJECT; NATRESHA DAWSON, FORMER OFFICE OF 
  SPECIAL COUNSEL EMPLOYEE AND WHISTLEBLOWER; LARA SCHWARTZ, 
  CHIEF LEGISLATIVE COUNSEL, HUMAN RIGHTS CAMPAIGN; AND BETH 
 DALEY, DIRECTOR OF INVESTIGATIONS, THE PROJECT ON GOVERNMENT 
                           OVERSIGHT

                    STATEMENT OF ADAM MILES

    Mr. Miles. Chairman Davis, thank you for inviting testimony 
from GAP today.
    GAP is a nonprofit, nonpartisan organization that supports 
whistleblowers, and a significant component of that work is 
oversight of the U.S. Office of Special Counsel. From our 
perspective, this hearing is long overdue. The Office of 
Special Counsel is in a crisis of credibility and legitimacy 
from nearly every perspective, and much more than what we heard 
in the first panel, I think. We will get into some of that, and 
there is a lot more detail in the written testimony.
    Over the years, GAP has been one of OSC's biggest 
cheerleaders, as well as one of its harshest critics. Our 
testimony today provides numerous specific examples of both 
positive and negative contributions that OSC has made to the 
merit system during Special Counsel Bloch's tenure.
    Despite a few notable exceptions, our underlying assessment 
has to be that OSC is currently undermining, not promoting, its 
vital merit system role.
    Special Counsel Bloch's track record of merit system 
violations provides the most telling example for OSC's decline 
under his tenure. Rather than promote free speech and other 
whistleblower protections within his agency, he has 
consistently demonstrated intolerance for the same rights that 
he is charged with enforcing in the rest of the Government. 
Morale there is down, and many of the seasoned professionals 
with proven track records of helping employees have left or 
been forced out. Mr. Bloch has politicized the office to such 
an extent that even the good work being done there is 
vulnerable to charges that OSC's mission only comes into play 
when that means serving the special counsel's needs.
    Having said all this, we have no doubt that the agency, and 
especially the remaining dedicated career staff, are fully 
capable of advancing the agency's mission when they are given 
the opportunity. The problem is not the professional career 
staff; it is a question of priorities and leadership.
    I want to be perfectly clear about that. The charges that 
have been made against OSC relate specifically to Mr. Bloch and 
his leadership, his mismanagement, and his retaliatory 
tendencies, not to the career staff.
    There remain a few important illustrations of the role OSC 
can and should always play on behalf of concerned Government 
employees. Just recently, GAP client Richard Conrad, a Vietnam 
veteran and civilian mechanic with 25 years experience at the 
North Island Depot, brought to OSC allegations about 
maintenance breakdowns on fighter aircraft at North Island. The 
allegations were serious, and OSC took them seriously. They 
demanded that the Navy Department investigate, and they did. 
They substantiated Mr. Conrad's allegations, and now they are 
following through on a reprisal complaint from Mr. Conrad, who 
is eligible for retirement, to make sure that he gets some 
relief for 16 months that he was harassed, isolated from the 
work force, and denied overtime pay because of his 
whistleblowing.
    Unfortunately, Mr. Conrad is the exception, or one of the 
few exceptions, and his experience should be the experience for 
all good faith employees who have turned to OSC. Unfortunately, 
this level of service has been practically unheard of under Mr. 
Bloch's tenure.
    The number of favorable actions that OSC has produced for 
whistleblowers--in other words, how many people is the agency 
actually helping--those numbers dropped 60 percent since Mr. 
Bloch took over the agency. And, despite claims that this 
number would increase in fiscal year 2006, the percentage of 
employees helped by OSC that year for all whistleblower and 
other complaints dropped to what is probably an all-time low of 
2\1/2\ percent.
    The explanations put forth by OSC for this lack of 
productivity continue to shift. Just recently, in response to 
questions at the Senate reauthorization hearing, Special 
Counsel Bloch stated that the quality of whistleblower and 
other complaints was not as good, and we struggled and scratch 
our heads to figure out, well, what can we do given the low 
quality of complaints.
    But this effort to scapegoat the reprisal victims after he 
has abandoned them cannot withstand scrutiny. The truth is that 
for every success story like Mr. Conrad's, there are many more 
employees that were systematically turned away with inadequate 
explanation of their rights, who were not allowed to 
communicate with the attorney assigned to their case, or were 
shifted internally and then dismissed in order to cushion 
misleading claims about backlog clearing measures.
    Our written testimony adds much more detail on the process 
OSC complainants are experiencing. To put it simply, the 
process needs to change.
    We have a number of recommendations that constitute a bill 
of rights for the level of service, transparency, and 
accountability every whistleblower should receive from OSC when 
they file a complaint there. GAP would be pleased to work with 
the subcommittee staff to provide further bases and follow 
through on these recommendations.
    I am happy to answer any questions along these lines. Thank 
you very much.
    [The prepared statement of Mr. Miles follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    
    Mr. Davis of Illinois. Thank you very much for that 
testimony.
    Ms. Dawson.

                  STATEMENT OF NATRESHA DAWSON

    Ms. Dawson. Good afternoon. Thank you.
    I am not sure if Mr. Bloch purposely presented under oath 
an untruth that he was unaware of my complaints. Mr. Bloch was 
fully aware of my complaints. In fact, we submitted several 
documents to Mr. Bloch regarding the several complaints that I 
have filed against the agency as an employee there.
    One of the complaints detailed violations of the merit 
systems, as well as violations of whistleblowers, and 
subsequent to that I was given a gag order that specifically 
stated that I could not contact Mr. Bloch at all or file any 
complaints, and if I did I would be removed from public 
services. That was in a detailed letter submitted to me, which 
was also submitted.
    I was hired into the Office of Special Counsel to staff the 
new customer service unit that Mr. Bloch created to answer 
congressional critics over 2 years ago. As a staff there, I 
witnessed, although the agency was supposed to protect Federal 
employees, I witnessed the outright hostility and contempt 
against people who alleged prohibited personnel practices, and 
especially retaliation for whistleblowing. These employees were 
not calling to make trouble, they were not troublemaking, 
seeking attention; these were honest employees seeking help 
from an agency who was supposed to help them, but did not 
receive the help they deserved.
    On top of the complainants being violated, their rights 
being violated, them being referred to as crazies, there were 
extensive violations to the merit systems, and that included 
downgrading positions without any type of adverse action or any 
type of performance application, hiring employees without 
vacancy announcements, including a FOIA specialist with no 
prior Government experience of FOIA experience.
    In conclusion, with all of that we talked to Mr. Bloch 
about these internal repressions within the OSC. Mr. Bloch 
became extremely upset, and his all-out attack against me 
through his management was to have me removed not only from the 
Office of Special Counsel but as well as from public services, 
period.
    Thank you.
    [The prepared statement of Ms. Dawson follows:]

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    Mr. Davis of Illinois. Thank you very much.
    Ms. Schwartz.

                   STATEMENT OF LARA SCHWARTZ

    Ms. Schwartz. Chairman Davis, thank you for giving me the 
opportunity to speak on behalf of the Human Rights Campaign and 
our grassroots force of more than 700,000 members and 
supporters.
    Merit-based employment is a core American value, yet 
discrimination based upon sexual orientation continues to be 
pervasive in this country, where gay and lesbian workers can be 
fired in 31 States because of who they are and not their job 
performance.
    The Federal Government is our Nation's largest employer and 
ought to set an example of fairness and take a stand against 
discrimination. In fact, Federal workers are protected from 
sexual orientation discrimination by 5 U.S.C. section 
2302.B.10. For decades this law has protected gay and lesbian 
civilian employees. In fact, until recently the Office of 
Special Counsel has consistently enforced this law, even 
providing Web site and written materials to inform Federal 
employees of their rights.
    Every prior OSC had, OPM has, and even Reagan 
administration Assistant Attorney General Theodore Olson have 
concluded in interpreting this law that sexual orientation is 
covered. However, the current special counsel, Scott Bloch, has 
not only ceased to enforce this statute, but he has actually 
contradicted its previously undisputed interpretation and 
claimed without basis that the law does not apply. As a result, 
Federal civilian employees are being denied employment 
protections. Mr. Bloch's actions are legally groundless and 
contrary to well-settled law. In fact, as recently as today 
Chairman McPhie stated that Mr. Bloch's justifications and 
legal analysis surrounding this law is completely groundless, 
and Mr. Bloch's analysis of the MSPB's decisions was 
inaccurate.
    The Government has explicitly recognized that the statute 
covers sexual orientation since 1980, when then Director of the 
OPM, Alan Campbell, wrote a memorandum advising that applicants 
and employees are to be protected against inquiries into or 
actions based upon non-job-related conduct, such as religious, 
community, or social affiliations or sexual orientation.
    As I have stated, this position has since been reaffirmed 
by subsequent OPM Directors under both parties.
    Prior to Mr. Bloch's tenure as special counsel, OSC also 
interpreted this provision similarly. In fact, in a well-
publicized case settled by OSC in 2003, OSC's investigation 
revealed that a manager had declined his selected best 
qualified applicant for a position because the manager was 
overheard to have said he was a--derogatory comment. In that 
case, OSC obtained monetary damages for the job applicant and 
the manager was removed from her supervisory position.
    Within weeks of his taking office in January 2004, Mr. 
Bloch abruptly ordered the removal of references to OSC's 
jurisdiction to enforce sexual orientation discrimination 
protection from OSC's Web site, including information about the 
recently settled case. He did so without conducing a legal 
analysis, consulting OPM or any other executive agency, or 
providing an explanation. He stated that his office would 
conduct a legal review of jurisdiction to enforce these claims, 
even though this legal issue had been clearly settled for over 
20 years.
    When Members of Congress objected, even the White House 
issued a statement that Federal policy prohibits 
discrimination, but still Mr. Bloch remained determined to roll 
back civil rights. He has attempted to justify his actions 
citing cases that are inapposite. I refer to the testimony of 
Chairman McPhie and also to my written testimony submitted into 
the record explaining why his legal analysis is inaccurate.
    Mr. Bloch's refusal to enforce the law has had real-world 
consequences. For instance, he refused to investigate the 
complaint of Michael Levine, a 32-year veteran of the Forest 
Service who alleged that he was subjected to a 14-day 
suspension in retaliation for engaging in whistleblowing and 
based on sexual orientation discrimination. In spite of 
compelling evidence, the OSC wrote a letter dismissing his 
claim, stating that there was no evidence of discrimination for 
conduct, and therefore no basis for an investigation.
    The Human Rights Campaign is gravely concerned that Mr. 
Bloch has single-handedly stripped thousands of Federal workers 
of protections that Congress conferred upon them decades ago. 
Although it is clear that his actions lack any legal 
justification, the real-world consequences are huge. They also 
point to the need for every American to have a law addressing 
workplace discrimination.
    Fortunately, many employers have come to recognize that 
basing employment decisions on merit rather than sexual 
orientation is a wise business policy, enabling them to attract 
the best talent and to demonstrate a commitment to fairness. 
That is why nearly 90 percent of the Fortune 500 corporations 
have non-discrimination policies covering sexual orientation. 
The Federal Government should not lag behind the top employers 
in its policies and practices, and it should certainly not fail 
to enforce laws that have been in force for decades.
    I thank you for the opportunity to present our concerns 
with Mr. Bloch's performance. It is imperative that Federal 
nondiscrimination protections be restored.
    On behalf of the Human Rights Campaign, I strongly urge 
this subcommittee either to compel Mr. Bloch and the OSC to 
follow the law, or to ensure that Mr. Bloch is replaced with a 
special counsel who will do so.
    [The prepared statement of Ms. Schwartz follows:]

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    Mr. Davis of Illinois. Thank you very much.
    We will go to Ms. Daley.

                    STATEMENT OF BETH DALEY

    Ms. Daley. Chairman Davis, thank you for inviting me here 
to testify.
    My name is Beth Daley, and I am director of investigations 
at the Project on Government Oversight [POGO]. POGO is an 
independent nonprofit that has for more than 25 years 
investigated, exposed, and helped to remedy corruption and 
other misconduct in the Federal Government. Because of POGO's 
role as a watchdog, I hear from many whistleblowers who are 
seeking justice from the Office of Special Counsel and the 
Merit Systems Protection Board. I am sad to report that very 
few of these whistleblowers that I hear from find the help that 
they are seeking.
    Although the House of Representatives recently passed the 
Whistleblower Protection Act of 2007 as an effort to remedy the 
situation, I fear that OSC and MSPB will continue to fail 
because they are small, weak agencies inside of an executive 
branch which has been perpetually hostile to whistleblowers.
    As we approach the 30th anniversary of these institutions, 
it is time for Congress to consider if it is time to end this 
experiment and if it has failed.
    Since 1980, numerous reports have documented the failures 
of the OSC and MSPB. For instance, the GAO reported in 1985 
that in its first 5 years the OSC and MSPB had gained 
corrective or disciplinary action in only 16 of the estimated 
1,500 whistleblower cases which had been closed. In other 
words, just 1 percent.
    A Senate report later noted that in its first 10 years OSC 
had not brought a single correction action case on behalf of 
the a whistleblower to the MSPB. That is in 10 years.
    In 1989 and 1994 the Congress attempted to remedy the 
situation by strengthening whistleblower protections, but those 
reforms ultimately failed again.
    In the past 10 years, favorable actions obtained by the OSC 
for whistleblowers and others has declined. In 2005 and 2006, 
only about 2\1/2\ percent of OSC cases resulted in a favorable 
action for the employee.
    The total number of favorable actions obtained for 
whistleblowers declines considerably from 120 in 1995 to just 
40 in 2006.
    Finally, the OSC continues to issue a minuscule number of 
enforcement actions against managers who engage in retaliation, 
on average between just zero to five total annually.
    So with odds like these, it is easy to see why 
whistleblower retaliation continues to be a deeply entrenched 
practice throughout the Federal Government. Current leaders at 
the OSC have brought the agency to a point where it has, 
itself, become mired in a series of scandals that have 
undermined its credibility as the Federal Government's 
protector of whistleblowers.
    In early 2004, OSC insiders blew the whistle on Mr. Bloch's 
refusal to enforce anti-discrimination statutes. Shortly 
thereafter, Mr. Bloch was quoted in a Federal Times article 
saying, ``It is unfortunate we have a leaker or leakers in our 
office who went to the press rather than coming to me.''
    On the heels of this interview, Mr. Bloch sent an e-mail to 
his staff directing that any official comment on or discussion 
of confidential or sensitive internal agency matters with 
anyone outside of OSC must be approved in advance by an 
official in his immediate Office of Special Counsel.
    The e-mail wasn't a legal gag order and exemplified the 
kind of communication which Congress has annually determined 
cannot be issued by executive branch officials using Federal 
funds.
    A complaint filed against OSC by anonymous employees and 
public interest groups, including mine, resulted in an 
investigation assigned to the OPM Inspector General, which has 
not yet been completed, yet OSC managers have inappropriately 
attempted to interfere with this investigation and have 
conducted themselves in a manner that is intimidating to 
employees. Mr. Bloch has even contemplated requiring employees 
interviewed in the investigation to submit affidavits reporting 
on their discussions with investigators.
    It is time for Congress to conduct a series of vigorous 
oversight activities aimed at evaluating the OSC's and the 
MSPB's performance, determining why these agencies have failed, 
and analyzing whether their activities could be better 
performed by other Government bodies.
    As a start, it would be appropriate for this committee to 
commission a series of GAO and Congressional Research Service 
studies, something that has not been done on a large basis 
since the mid-1990's. In conducting this analysis, I would 
encourage the committee to consider what role the legislative 
branch could play in assisting whistleblowers. Congress should 
consider whether taking the OSC's budget and moving it into a 
congressional agency tasked with conducting investigations into 
whistleblower allegations might be a more effective expenditure 
of funds. Half of the whistleblowers' battle against 
retaliation is gaining a fair review of his or her concerns, 
and a congressional agency would be better suited to this task, 
given its independence from the political constraints inherent 
in the executive branch.
    My other recommendations are in my written testimony.
    Again, thank you for inviting me to testify here today.
    [The prepared statement of Ms. Daley follows:]

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    Mr. Davis of Illinois. Thank you very much.
    Neither one of you has expressed much confidence in OSC. Of 
course, Ms. Daley, you had a number of recommendations relative 
to what you think would be helpful to change the effectiveness 
of the agency, but let me ask the other three of you what would 
you recommend that we do or attempt to do to change the 
effectiveness of OSC? We will just begin with you, Mr. Miles.
    Mr. Miles. We have spent a lot of time thinking about this, 
you know. It is sort of what we do. You know, we scratch our 
heads, too. The thing is that the statutes are pretty good. I 
mean, if there was somebody there who was able to implement 
them as they are written, it would work pretty well. So it 
really is a question of leadership and priorities.
    Having said that, there are, you know, certain basic levels 
of service that we feel everyone deserves that goes to OSC, and 
sort of a level of transparency and a level of sort of 
investigative procedure that everyone should get, and that is 
in more detail in our testimony. I could go through it a little 
bit more if you would like, or I can stop.
    Mr. Davis of Illinois. Well, we will get it.
    Mr. Miles. OK.
    Mr. Davis of Illinois. Ms. Dawson.
    Ms. Dawson. From my experience within the agency, I believe 
that there should be a special counsel who would respect not 
only the laws of our country but the employees of this country, 
as well. I believe that, just from observing the activities 
inside the OSC, that Mr. Bloch just doesn't have a respect for 
the Federal work force, period. I don't know where that lack of 
respect comes from, but, as I witnessed today, it is not only 
against the Federal work force employees, but it is also 
against his own management. So I just believe that we need a 
special counsel who is going to respect the laws of this 
country, respect the employees of this country, as well as 
respect its own management.
    Mr. Davis of Illinois. Ms. Schwartz.
    Ms. Schwartz. Yes. Thank you. In a sense I would say that 
the laws on the books are good. At least we saw in the 
preceding couple of decades that section B.10 was adequate. 
However, when one individual can single-handedly play fast and 
loose with the civil rights of the entire Federal work force, 
as Mr. Bloch has done, it shows the fragility of that law.
    So I would say, first and foremost, our concerns are with 
Mr. Bloch's intentional rolling back of civil rights without 
legal basis or justification, and that he be either forced to 
apply the law, which has been attempted in the past and failed, 
or be replaced.
    Second, I do believe that the fragility of these workplace 
protections points yet again to the importance of Federal 
workplace nondiscrimination protections for all Americans.
    Mr. Davis of Illinois. Ms. Daley, let me ask you, what is 
it that OSC does well?
    Ms. Daley. Well, I have to say it appears that they are 
doing a great job on the USERRA cases. You know, Mr. Bloch was 
claiming that 25 percent or so of those cases are gaining a 
favorable action. In my mind it makes me wonder why he can't 
have such a high rate of favorable actions for whistleblowers.
    Mr. Davis of Illinois. If the leadership is as bad as you 
all suggest, how do you think he has managed to remain? I don't 
think I have ever heard as much indictment of an agency that 
focused so directly on the leadership as what I am hearing, and 
I am just wondering why do you think he is still there.
    Ms. Daley. Well, I think the White House is waiting for 
this OPM IG investigation to be completed to determine, you 
know, to get some verification of some of the concerns that 
have been raised. Unfortunately, Mr. Bloch in the interim has 
inserted himself into a variety of other investigations which, 
in many ways, have compromised the White House's ability to act 
aggressively to root him out, if that is what they choose to 
do.
    Mr. Davis of Illinois. Anyone else?
    Ms. Schwartz. He is an executive appointee who serves at 
the pleasure of the President, so, you know, he keeps his job 
at the will of the person who appointed him.
    Mr. Miles. And he actually can't be removed at will, he has 
to be removed for cause, for neglect of duty or malfeasance, 
which we believe there is plenty of evidence of. But Beth is 
probably right that they are waiting for the results of the 
PCIE investigation, and even then, you know, there has been 
some, again, like our testimony suggests, that even the good 
work that is being done is so politically suspect at this 
point, because opening up an investigation of the White House 
as you are being investigated by the White House smells.
    Mr. Davis of Illinois. Let me just ask you, Ms. Dawson, in 
your particular instance, what were your cases about?
    Ms. Dawson. They were discriminatory on the basis of sex, 
as far as gender, as well as illness. When I was sick they 
spoke with my doctor and they understood that I was out under 
doctor's care. They retroactively AWOLed me. In other words, I 
was in a paid status. They went back in time and took me out of 
the paid status and AWOLed me. They never gave me a minimum due 
process of law to the AWOL and they never changed the AWOL 
after speaking with my doctor and my doctor giving them a 
medical report stating that she had me out.
    This came as a result of the internal disclosures of 
mistreating and abusing employees' rights, as well as the 
whistleblowers who called in to talk with me to have complaints 
filed and to be helped, and they were not receiving help.
    Mr. Davis of Illinois. In the reauthorization process, as 
we go through the request to reauthorize, are there changes 
that any of you perhaps can think of relative to how the 
agencies, either one, are structured that might have some 
positive impact on the way in which they function?
    Ms. Daley. I think there are two things that we would love 
to see. The first one is to clarify that investigations into 
the special counsel and the deputy special counsel, that the 
President's Council on Integrity and Efficiency be authorized 
to undertake those investigations. The reason why is that OSC 
is a member of the PCIE and the Integrity Committee of the PCIE 
has a process already established for conducting similar 
investigations of IG offices. So there is already a well-
developed channel, and there was a lot of confusion about where 
the complaint that was filed by employees and Human Rights 
Campaign and GAP and POGO, there was a lot of confusion about 
who should undertake that investigation. It took 6 months of 
the ball being thrown around before PCIE finally commissioned 
the OPM IG. That seems like a very simple thing that should be 
done.
    Adam in his testimony made an excellent suggestion, which 
is that perhaps there should be some qualifications that are 
required for the special counsel to try and get a higher 
quality type of leader running the agency. I think that is an 
excellent suggestion and I commend Adam Miles for making it.
    Mr. Miles. Thanks. There are a couple of others that may 
make a difference, and one of them was in OSC's regulations 
they are allowed to put some regulations down and not others. 
It is discretion on their part. Maybe it would be a little bit 
to authoritarian on Congress' part, but to mandate them to put 
down in their regulations how they conduct investigations would 
be a good idea. Then the whistleblower could look at what the 
regulations say and decide whether or not that was actually 
followed through on. That could really help.
    And the other may be a little bit more of a stretch, but 
one that could really make a difference would be to relax the 
standards a little bit, but allow people who sought relief in 
some capacity with the Office of Special Counsel to be able to 
challenge in district courts whether or not the office met its 
mandatory duties during that process, and relaxed standards, 
because there has been some case law on this, but mandamus 
actions have been too difficult, and so reducing the standards 
would allow people to make sure that the OSC is following 
through on its duties could help.
    Mr. Davis of Illinois. Thank you very much. I don't have 
any further questions.
    Ms. Norton, do you have any questions?
    Ms. Norton. Yes, I just have a couple of questions, Mr. 
Chairman.
    I would be interested in your views about Mr. Bloch, the 
wholesalely negative view of this office, if one looks 
objectively at the record. Then we look at the Lurita Doan 
case. How do you account for the fact that investigation seems 
to--leave aside the issues which nobody can condone for which 
he deserves to be sharply criticized should there have been a 
leak at his hand or with his knowledge, or, for that matter, 
disparaging remarks that were inappropriate. Leaving aside 
those notions, if you look at the strong way in which he went 
at a case which many people consider to be politically risk and 
particularly so, how do you account for the difference between 
the handling of that matter and the apparent record going the 
opposite way rather consistently otherwise?
    Mr. Miles. Unfortunately, the answer to that, I mean, it 
sounds bad, but it is the 2006 elections. I mean, his whole 
track record prior to that, he has been charged with 
politicized enforcement of the Hatch Act the other way, but 
then Congress changed hands, and he has been under a lot of 
scrutiny since he has been in office, and so to appease, 
ingratiate himself to a Democratically controlled Congress, 
there was an excellent investigation that was done by the Hatch 
Act unit. He gave them the authority to do that.
    The problem is--and this has been consistent behavior by 
Mr. Bloch--that he undermines the good work that his career 
people are doing by leaving himself vulnerable to charges of 
political activity. Nobody can defend the actions that Lurita 
Doan did. I don't have any expertise to challenge the 
investigation that the Hatch Act unit did. I mean, I am sure it 
was a quality investigation. But he undermined that 
investigation by leaking it to the press and everything else 
that has happened today.
    Ms. Norton. If he did leak it to the press.
    Mr. Miles. If he did. Correct. Yes. I mean, that is a tough 
one, too, because if it was somebody in his office who felt 
like that results of that investigation were going to be 
suppressed or something, then that would be a whistleblower, 
right? And then that person----
    Ms. Norton. The results of that investigation could hardly 
have been suppressed.
    Mr. Miles. No, that is what I am saying. But if it had to 
be somebody in the office that would have leaked it----
    Ms. Norton. If they did make those kind of findings, then 
he would have to leak them that he had made those kind of 
findings and keep them in house?
    Mr. Miles. I don't know. You know, maybe so. That is what I 
am saying. It is very speculative, but----
    Ms. Norton. That is the first explanation made. In other 
words, you have seen the what you are saying the regime change 
may have brought a change in conduct on the part of Mr. Bloch?
    Mr. Miles. Unfortunately.
    Ms. Norton. The rest of you think that there have been 
changes subsequent to the change in control of Congress?
    Ms. Schwartz. Well, there has been no change with regard to 
the sexual orientation discrimination.
    Ms. Norton. Say that again.
    Ms. Schwartz. There has been no change with regard to 
enforcing sexual----
    Ms. Norton. Not only that; he under oath, under oath, stood 
there and allowed as how-to decision said exactly what they did 
not say, and was refuted on the spot by the MSPB witness.
    Ms. Schwartz. And I don't think that undermines what Mr. 
Miles said at all. I think that he is so entrenched in his 
position, has remained entrenched in this position for 3 years, 
and, you know, he feels that he has a safety zone or not to 
take this position. I can't speculate on that, but he has 
remained entrenched further and further, as you saw, even 
contradicting the chairman whose decisions he was citing for 
his own position.
    Ms. Norton. It really goes to what we fear most by fact 
finders; that is, ideological fact finding here was not even 
fact finding, it was changing the law single-handedly in ways 
that counsel could not possibly have suggested, and now 
continuing to justify that and saying, as he did here today, 
that he did not intend to change law.
    In light of that, I note that the former ranking member, 
now chairman of the committee, did, in fact, file a bill--and 
all of us were on it--in 2005, not long after this change was 
made. We could not have expected that to be brought to the 
House. Would you suggest that the appropriate thing to do now 
would be to come forward with that bill in order to return to 
the interpretation that stood for years?
    Ms. Schwartz. This committee, if this subcommittee 
determines that is what is necessary to have the law enforced 
correctly, then that is what it takes.
    Ms. Norton. What are you suggesting might be our 
alternatives?
    Ms. Schwartz. A possible alternative, you know, I know that 
pending the OPM investigation that is going very slowly of Mr. 
Bloch, if he is removed for cause and a more worthy successor 
replaces him, but yes, a clarification of the law would 
certainly leave no shadow of doubt.
    Ms. Norton. I appreciate what you are saying, but it is a 
bit more radical. You think that perhaps a more radical remedy 
may be forthcoming, but may I advise you that we would then 
have nothing to say about who would be appointed unless there 
was a new President.
    Ms. Schwartz. Yes. We would suggest a Federal 
nondiscrimination law applying to all employees, but yes, 
clarifying the civil service laws to make sure that there is no 
way any special counsel, regardless of his ideology or her 
ideology, can flout the laws is certainly preferable to 
allowing one person to play fast and loose.
    Ms. Norton. Well, having him removed wouldn't do a thing 
about the law for the moment. I mean, I can understand your 
need for retaliation here, given the kind of retaliation that 
has taken place with Federal employees and others, but may I 
remind you this is the Congress of the United States, and there 
are three branches of Government, and we don't have to get 
somebody kicked out of office in order to get the law returned 
to what it has been for a long time. Maybe that is your 
concern, but we are going to kick this administration out of 
office, as far as I am concerned, in 2008, and one wonders 
whether the gay/lesbian/trans-sexual community should have to 
wait to see whether he is penalized, No. 1, and, No. 2, whether 
we should just sit here and say that is the only remedy.
    Ms. Schwartz. No, that wasn't my intention to state that.
    Ms. Norton. I am sure it wasn't.
    Ms. Schwartz. But that the law, you know, that a remedy 
come, you know, soon so that----
    Ms. Norton. Look, you have every reason to say what you 
said.
    Ms. Schwartz [continuing]. Everyone is protected.
    Ms. Norton. In your position, if I had had an 
administrative official to single-handedly deprive me of my 
rights, I would want more than a law changed; I would want him 
changed. So it is perfectly understandable what you said, but 
we have an obligation to move forward to protect every Federal 
employee, including employees who need protection based on 
their sexual orientation.
    I thank you for your testimony and I thank all of you for 
really important testimony as we look at the record of the 
Office of Special Counsel.
    If I may, on behalf of myself and the chairman and other 
members of the committee, I want to thank you for waiting so 
long to testify to this important testimony to get on the 
record, and because the chairman may want to sign off on his 
own, I now defer to the distinguished Chair of the 
subcommittee, Mr. Davis.
    Mr. Davis of Illinois. Well, thank you very much.
    Let me thank each one of you for your testimony and for the 
insight that you have displayed, the recommendations and 
suggestions that you have given to us. I think that your 
testimony is going to be very helpful as we try and evaluate 
and re-evaluate the situation, so I thank you very much.
    It has been a long afternoon, but a very productive one, 
and we will adjourn the meeting.
    Mr. Miles. Thank you.
    Ms. Dawson. Thank you.
    Ms. Schwartz. Thank you.
    Ms. Daley. Thanks.
    [Whereupon, at 5:20 p.m., the subcommittee was adjourned.]
    [The prepared statement of Hon. Danny K. Davis follows:]

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