[Senate Hearing 110-140]
[From the U.S. Government Publishing Office]
S. Hrg. 110-140
SAFEGUARDING THE MERIT SYSTEMS PRINCIPLES:
A REVIEW OF THE MERIT SYSTEMS PROTECTION
BOARD AND THE OFFICE OF SPECIAL COUNSEL
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HEARING
before the
OVERSIGHT OF GOVERNMENT MANAGEMENT,
THE FEDERAL WORKFORCE, AND THE DISTRICT
OF COLUMBIA SUBCOMMITTEE
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 22, 2007
__________
Available via http://www.access.gpo.gov/congress/senate
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
U.S. GOVERNMENT PRINTING OFFICE
34-414 PDF WASHINGTON DC: 2007
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Trina Driessnack Tyrer, Chief Clerk
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA
DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan GEORGE V. VOINOVICH, Ohio
THOMAS R. CARPER, Delaware TED STEVENS, Alaska
MARK L. PRYOR, Arkansas TOM COBURN, Oklahoma
MARY L. LANDRIEU, Louisiana JOHN WARNER, Virginia
Richard J. Kessler, Staff Director
Jennifer Tyree, Counsel
Jennifer A. Hemingway, Minority Staff Director
Theresa Manthripragada, Minority Professional Staff Member
Emily Marthaler, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Akaka................................................ 1
Senator Voinovich............................................ 3
WITNESSES
Thursday, March 22, 2007
Hon. Neil McPhie, Chairman, U.S. Merit Systems Protection Board.. 4
Hon. Scott Bloch, Special Counsel, U.S. Office of Special Counsel 6
Alphabetical List of Witnesses
Bloch, Hon. Scott:
Testimony.................................................... 6
Prepared statement........................................... 34
McPhie, Hon. Neil:
Testimony.................................................... 4
Prepared statement........................................... 27
APPENDIX
Charts submitted for the Record from OSC......................... 42
Background....................................................... 49
Letter to Leroy A. Smith, dated March 23, 2005, from Maria
Garabis with Memorandum attached............................... 62
Tom Devine, Legal Director and Adam Miles, Legislative Dirctor,
Government Accountability Project, prepared statement.......... 66
Colleen M. Kelley, National President of National Treasury
Employees Union, prepared statement............................ 78
Jeff Ruch, Executive Director, PEER, prepared statement.......... 81
Responses to questions for the Record from:
Mr. McPhie................................................... 91
Mr. Bloch with attachments................................... 114
SAFEGUARDING THE MERIT SYSTEMS PRINCIPLES: A REVIEW OF THE MERIT
SYSTEMS PROTECTION BOARD AND THE OFFICE OF SPECIAL COUNSEL
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THURSDAY, MARCH 22, 2007
U.S. Senate,
Subcommittee on Oversight of Government
Management, the Federal Workforce,
and the District of Columbia,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room 342, Dirksen Senate Office Building, Hon. Daniel Akaka,
Chairman of the Subcommittee, presiding.
Present: Senators Akaka and Voinovich.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. With the consent of my friend and Ranking
Member of this Subcommittee, Senator Voinovich, I call the
Subcommittee on Oversight of Government Management, the Federal
Workforce, and the District of Columbia to order.
I am very pleased to welcome Neil McPhie, Chairman of the
Merit Systems Protection Board, and Scott Bloch, Special
Counsel at the Office of Special Counsel, to this Subcommittee
today to review how both agencies are meeting their statutory
missions as Congress begins consideration of their
reauthorization requests.
Both the MSPB and OSC were created by the Civil Service
Reform Act of 1978 to safeguard the merit system principles and
to help ensure that the Federal employees are free from
discriminatory, arbitrary, and retaliatory actions, especially
against those who step forward to disclose government waste,
fraud, and abuse. These protections are essential so that
employees can perform their duties in the best interests of the
American public. The enforcement of the merit system principles
by MSPB and OSC helps ensure that the Federal Government is an
employer of choice.
The MSPB is charged with monitoring the Federal
Government's merit-based system of employment by hearing and
deciding appeals from Federal employees regarding job removal
and other major personnel actions. The Board also reviews
regulations of the Office of Personnel Management and conducts
studies of the merit system.
OSC is charged with protecting Federal employees and job
applicants from reprisal for whistleblowing and other
prohibited personnel practices. OSC serves as a safe and secure
channel for Federal workers who wish to disclose violations of
law, gross mismanagement or waste of funds, abuse of authority,
or a specific danger to public health and safety. In addition,
the OSC enforces and provides advisory opinions regarding the
Hatch Act, which restricts the political activities of Federal
employees and protects the rights of Federal employees,
military veterans and reservists under the Uniformed Services
Employment and Reemployment Rights Act of 1994.
Congress intended OSC and MSPB to be the stalwarts of the
merit system. However, both agencies have been criticized for
failing to live up to their mission. For example, the most
recent employee satisfaction survey conducted by OSC shows that
less than 5 percent of the respondents reported any degree of
satisfaction with the results obtained by OSC, while over 92
percent were dissatisfied.
Since the year 2000, I have been pushing legislation to
reform the Whistleblower Protection Act to address judicial
decisions that have been inconsistent with Congressional intent
and provide structural reform to the process for protecting
Federal whistleblowers. The need for this legislation is very
clear. No Federal whistleblower has won on the merits of their
claim before the Board since the year 2003. At the Federal
Circuit Court, whistleblowers have won on the merits twice out
of 178 cases since 1994, when Congress last strengthened the
Act.
For OSC, organizations that help whistleblowers claim that
OSC has gone from being their first option for relief to their
last choice, since OSC no longer works with agencies to achieve
informal relief and the percentage of corrective actions and
stays has been cut in half since 2002.
As the Administration pushes for changes to Federal
personnel laws that decrease the ability of employees to engage
in collective bargaining and bring grievances, it becomes even
more important for employees to have full confidence in MSPB
and OSC.
Two years ago, the Subcommittee held a hearing on how OSC
was meeting its statutory mission. At that time, employees,
good government groups, and employee unions, alleged that OSC
was abandoning its mission to protect employees, especially
whistleblowers, from prohibited personnel practices and to act
in the interest of employees who seek its assistance and
instead had been ignoring whistleblower complaints, had been
failing to protect employees subjected to sexual orientation
discrimination, and had been retaliating against whistleblowers
at OSC. If true, these practices would directly counter OSC's
legal responsibility to be the protector of civil service
employees.
Given the fact that OSC employees could not make their
disclosure to the Special Counsel, the alleged individual who
engaged in the wrongdoing and retaliated against them, the
employees and stakeholders filed a complaint with the
President's Council on Integrity and Efficiency. The OPM
Inspector General was then charged with investigating the
matter. Unfortunately, the OPM IG is still investigating these
allegations, but new evidence suggests that things have not
changed. OSC has interfered with the ability of employees to
talk to the OPM IG by requiring employees to arrange interviews
through the Special Counsel's Office. While OSC has since
rescinded this policy, this action, combined with the numerous
other allegations against the agency, does not instill
confidence.
The lead agency charged with protecting Federal employees
cannot ignore its responsibility and violate the merit
principles or even give the appearance of doing so or else the
trust of Federal employees and the American people in the
Federal workforce will be compromised. OSC must be a safe haven
and a place of hope for employees. As such, OSC must be held to
a higher standard and be beyond reproach. Unfortunately, it
does not appear that OSC is measuring up.
I hope that today's hearing will allow us to address these
concerns and allegations and ensure that MSPB and OSC are
meeting their missions.
Now, I would like to turn to my good friend, Senator
Voinovich, for any opening statement that he may have. Senator
Voinovich.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. Thank you, Senator Akaka. Thank you for
having this hearing this afternoon. I am anxious to hear from
the witnesses. As you said, it was a couple of years ago that
we had a hearing on this topic and I am interested to see what
progress, if any, has been made.
I would like to extend a warm welcome to our witnesses, the
Hon. Neil McPhie, Chairman of the Merit Systems Protection
Board, and the Hon. Scott Bloch, Special Counsel.
The United States is well served by professional civil
servants hired and promoted based on a series of merit
principles. Apart from political parties and disagreements in
Congress or the White House, the dedicated individuals of the
Federal service ensure that the needs of the American people
are met, whether it is guarding our borders or processing
Social Security checks. Mr. McPhie, I am proud to say that I
believe our system is admired around the world.
Guarding the merit principles that preserve the integrity
of the civil service are two important agencies, the Merit
Systems Protection Board and the Office of Special Counsel.
These responsibilities require that these agencies lead by
example and that their personnel management policies reflect
the merit principles they are told to uphold.
As an independent investigative and prosecutorial agency,
OSC protects current and former Federal employees and
applicants for Federal employment from prohibited personnel
practices, promotes and enforces compliance of the Hatch Act,
and facilitates disclosures by Federal whistleblowers about
government wrongdoing.
As an independent quasi-judicial agency, MSPB adjudicates
cases brought by the Office of Special Counsel as well as
appeals over improper suspensions, removals, retirement
benefits, and veterans' preference claims. Furthermore, the
MSPB has the authority to conduct studies of the civil service.
Authorization for both of these agencies expires at the end
of this fiscal year. Mr. Chairman, I believe it is important
for us to act promptly to advance legislation to reauthorize
these agencies and I look forward to a continued bipartisan
collaboration with you on introducing and advancing this
legislation. Thank you.
Senator Akaka. Thank you very much, Senator Voinovich.
I again want to welcome our witnesses, Mr. McPhie and
Special Counsel Bloch, to this hearing.
As you know, it is the custom of this Subcommittee to swear
in all witnesses, and so I ask you to stand and raise your
right hand?
Do you swear that the testimony you are about to give this
Subcommittee is the truth, the whole truth, and nothing but the
truth, so help you, God?
Mr. McPhie. I do.
Mr. Bloch. I do.
Senator Akaka. Thank you very much.
Although statements are limited to 5 minutes, I want our
witnesses to know that their entire statement will be included
in the record. Mr. McPhie, please proceed with your statement.
TESTIMONY OF NEIL McPHIE,\1\ CHAIRMAN, U.S. MERIT SYSTEMS
PROTECTION BOARD
Mr. McPhie. Thank you, Mr. Chairman and Ranking Member
Voinovich. Let me say first that the MSPB welcomes oversight. I
am happy to be here to discuss MSPB's role in safeguarding the
merit system principles. I am proud and honored to serve as the
seventh Chairman of the Board, and today, what I plan to do is
highlight some of the Board's accomplishments since the last
reauthorization and some legislative proposals we have
submitted. Finally, I will discuss some of the challenges that
I foresee in the Board's future.
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\1\ The prepared statement of Mr. McPhie appears in the Appendix on
page 27.
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From fiscal year 2002 to 2006, the Board adjudicated 42,145
cases for an average of 8,429 per year. During this period, we
reduced the average processing time for initial decisions from
99 days to 92 days. We 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.
There has been no sacrifice in quality. The Court of Appeals
for the Federal Circuit has affirmed 93 percent of the Board
decisions that came before them during that period.
We have embraced technology to help us 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 to file an
initial appeal using the Internet. Currently, approximately 25
percent of initial appeals are filed electronically.
Our mediation program was implemented nationwide in 2004
and has resulted in the successful settlement of more than 100
appeals.
As you know, the Board conducts independent, nonpartisan,
objective research and produces reports that promote the merit
system principles that are embodied in Title 5. Between fiscal
year 2002 and 2006, the Board issued over 20 reports and Board
employees conducted more than 400 outreach presentations.
With respect to general management issues, I am pleased to
report that the Board has earned a clean audit in each of the 4
years that Federal agencies have been required to submit a
financial audit.
We have submitted for the Subcommittee's consideration six
legislative proposals. 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. It
is also worth noting that MSPB will have that summary judgment
authority under the new employee appeals processes for the
Departments of Homeland Security and Defense.
Pursuant to 5 U.S.C. Section 1203, the chairman of the
Board serves as the chief executive and administrative officer
of the agency. As such, the Board historically has followed a
practice of leaving budget and administrative responsibilities
to the chairman. Two of the proposed technical amendments
merely reconcile the language of Section 1204 to the plain
intent expressed in Section 1203.
The further amendment emphasizes the chairman's authority
to delegate certain responsibilities to the employee or
employees he or she appoints. As a quasi-judicial agency, the
Board functions similar to a court when it deliberates and
decides cases. The proposed exemption from the requirements in
the Sunshine Act will enable Board members to freely discuss
and deliberate cases.
The Board faces several potential challenges in the near
future. Several factors could result in an increase in the
Board's caseload, including the anticipated increase in
retirement throughout the Federal Government and the resultant
wave of hiring to fill those vacancies. Also, changes in
judicial precedent and new legislation, such as the proposed
amendment for the Whistleblower Protection Act now pending
before Congress may also result in an increase to the Board's
caseload.
Additionally, we will be working with DHS on the
implementation of its new expedited employee appeals system,
and in the context of the Board's studies, we anticipate that
DHS and DOD personnel systems will require greater study as
they are implemented. That is why we are currently collecting
baseline data.
My red light is on. I have a small paragraph which I would
like to finish, with your permission.
Senator Akaka. Please complete it.
Mr. McPhie. Thank you, sir. As the Board prepares for the
impact of increased retirements throughout government, we have
recognized that the Board itself will be affected. In fact,
within 5 years, 40 percent of the MSPB's workforce will be
eligible to retire. Almost 20 percent are eligible at this
time. To prepare for this wave, 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 developmental training
programs throughout the agency.
In short, Board members, officials, staff have successfully
fulfilled the agency's statutory missions. We have been careful
stewards of the public funds entrusted to us. We continue to
explore ways to achieve new levels of efficiency and to better
serve the American public. We believe that the proposed
amendments described during this hearing will help the agency
meet these goals.
In these times of great changes in Federal human resources
management, a strong, vibrant, and independent MSPB is
critical. We look forward to continuing to work with you and
with the Subcommittee as we fulfill these important
responsibilities. Thank you for your patience.
Senator Akaka. Thank you very much, Mr. McPhie. Special
Counsel Bloch, please proceed with your statement.
TESTIMONY OF SCOTT BLOCH,\1\ SPECIAL COUNSEL, U.S. OFFICE OF
SPECIAL COUNSEL
Mr. Bloch. Thank you, Mr. Chairman and Ranking Member
Voinovich. It is an honor to be before this Subcommittee. John
Adams said, ``Good Government is an empire of laws.'' I have
quoted this often in my tenure and I believe in its emphasis of
the rule of law holding government officials to high standards
and holding ourselves accountable to the public trust.
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\1\ The prepared statement of Mr. Bloch with attachments appears in
the Appendix on page 34.
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As the Special Counsel of the U.S. Office of Special
Counsel, I am requesting reauthorization because upholding
OSC's laws keeps our government accountable and just.
I am pleased to tell you our agency is functioning better
than ever, while still continuing to improve. Morale is high.
We have very qualified employees who are doing a great job for
the merit system.
I have brought preview copies of our fiscal year 2006
annual report and charts showing some of our numbers.\1\ The
annual report will soon be up on our website.
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\2\ The charts referred to appears in the Appendix on page 42.
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I have previously submitted written testimony that contains
most of what I want to say to the Subcommittee, but let me give
you an overview of how we are functioning better in four areas:
Whistleblower disclosures, investigation and prosecution of
prohibited personnel practices, the Hatch Act, and then the
Uniformed Services Employment and Reemployment Rights Act, or
USERRA.
Now, I brought charts here to show how we are doing with
our Whistleblower Disclosure Unit and this shows how many were
pending at the end of each fiscal year. We see a steep drop-off
in the number of cases we roll over from year to year. It kind
of has that ski jump look to it which I like to see because it
shows that the unit is doing its job.
Next, we have another chart, again regarding our Disclosure
Unit, that shows the number of cases rising since I started in
the position since the full Committee kindly had me confirmed.
It shows an increase in the whistleblower referrals to agencies
more than double what was going on before. Now, this translates
into a safer, more efficient America, whether it is in
resolving of aircraft near misses at Dallas-Fort Worth Airport,
or uncovering and fixing environmental hazards at Federal
prison facilities, or in greater health and safety at Veterans
Affairs or Health and Human Services health facilities,
military aircraft maintenance safety, Border Patrol and Customs
safety, or rooting out fraud and waste in procurement and in
travel reimbursements.
The next chart we have is about our prohibited personnel
practices results, showing a decrease in the processing times
in our Screening Unit of the PPPs from fiscal year 2002 to less
than half of what it was, in 2006, which means more time for
the IPD to get results. The IPD is our Investigation and
Prosecution Division.
Now, the next chart shows a decrease in the average age of
cases in the IPD, which I am very happy because you had many
cases that were in the division for 2, 3, 4, and sometimes even
5 years and we have tried to implement new procedures and
standard operating procedures so that cases don't spend more
than a year there, whether they are filed with the Board or
they are mediated or they are resolved in another fashion.
One higher-profile case last year was the forced
resignation of an Agriculture Department State Director in
Alaska for multiple abuses of a whistleblower. We got her her
job back and he left service. We just filed a petition for
corrective action before MSPB on a case in which we had already
obtained a stay of transfer for a DEA agent who reported
illegal and unconstitutional interrogation of his superiors.
Turning to the Hatch Act, we have a chart that shows a
decrease, again, in the average processing time for complaints,
again, that same kind of steep slope. The next chart shows you
an increase in the number of disciplinary and corrective
actions corresponding in that same time with a drop in 2005
after the 2004 elections, and then it spiked back up for the
2006 mid-terms.
We have had a variety of interesting cases lately, some
high-profile and Hatch Act, but none more important than four
Board cases that have come down fairly recently that
affirmatively declare that political activity through the use
of government e-mail is inappropriate and can result in the
loss of Federal jobs.
The final chart shows our USERRA Unit is achieving great
results. Starting in February 2005, you see we have taken on
several hundred cases there and we have achieved a remarkable
corrective action rate for service members who are Federal
employees of over 25 percent, which is very high for Federal
enforcement agencies. And it wasn't until 2004 that we filed
OSC's first-ever USERRA cases at the Board in the 13 years of
the statute's history.
One notable case recently was someone, a service member
injured in Iraq and he was denied his job back. When he came to
us, we got him his job back and restoration of his benefits,
and we have many other stories like that.
OSC has partial jurisdiction over initial investigation of
these USERRA cases in a demonstration project with the
Department of Labor. The project expires at the end of this
fiscal year and I know, Mr. Chairman, that you and your staff
at the Committee on Veterans Affairs will be looking at that.
We have also included in our request for reauthorization
some legislative proposals, some of which have already been
proposed by the Chairman in legislation he has sponsored. I
would emphasize one provision to take away a chilling effect on
filing of disciplinary actions by assessing attorneys fees
against OSC if we lose the case.
OSC is doing a good job for Federal employees and the merit
system and should be authorized. Now, I welcome any questions
you may have. Thank you.
Senator Akaka. Thank you very much for your testimony, Mr.
Bloch.
I have a series of questions about the issue of
discrimination related to sexual orientation that I would like
to discuss with you to gain clarity on the scope of protection.
You have taken the position that Section 2302 does not make it
illegal for the Federal Government to deny an applicant a job
solely on the basis of his sexual orientation. Is that correct?
Mr. Bloch. Thank you, Senator. As you may recall from my
2005 testimony before this Subcommittee, I reflected to the
Subcommittee that we stand firm on the proposition that we do
not believe it is appropriate to discriminate against Federal
employees for any reason. I don't believe in it. I have so
stated many times throughout my tenure. Sometimes it is
printed, sometimes it isn't. And I also explained that we do
not have any experience or any knowledge of any experience of
such discrimination or of failing to provide all of the
remedies that the law provides to Federal executive employees
to give them full due process, full consideration, and I have
so instructed my staff many times.
I also reflected to the Committee the 12 PPPs that we have
in Title 5 U.S.C. 2302(b) and they are not exhaustive of
potential rights that people may have, but we are limited, of
course, in what we can do to bring a corrective action or a
disciplinary action to debar a Federal manager based on the
language of the statute as well as the case law that MSPB has
used to interpret the statute.
And so when I did the legal review that I explained, we
looked to see what the basis for the extension of our statute
was by my predecessor. We could not find any reason that was
given. We then looked to the language of the statute, which
doesn't mention sexual orientation. Then we looked to the case
law in the MSPB and we found that it had been rejected by the
MSPB in 1998 in a case titled Morales v. Department of Justice.
So faced with that, had I then said, well, I don't care what
the MSPB says, I don't care what the statute says, I am going
to extend protections for a class of people, a special class,
and provide them a specific protection that may not be in the
statute that has come before the Senate and has been rejected
specifically.
There was an Executive Order that makes it clear in the
Federal Government that agencies are not to discriminate on
that basis and I fully support that and that is true of my
agency as well as other agencies. But the question for me as a
Federal enforcer of laws is do I have the statutory power to
enforce a statute and debar Federal employees based on status,
and the status protections that we have, which everyone is
familiar with, the general ones of Title 7 which are race,
color, creed, religion, and so on, and sex and a number of
other categories, disability and so on, that these are
contained in Section (b)(1) of our statute. Sexual orientation
is not contained there.
We do have an anti-discrimination provision in Section
(b)(10) which we do enforce and that does subsume into itself
some cases that people might colloquially describe as sexual
orientation discrimination cases, but the language of the
statute and the way in which we enforce it, as I have explained
in the policy that I put out in April 2004, states that one may
not discriminate against an employee based upon private conduct
or adverse action that the employee may take.
Section (b)(10) basically says, no discrimination based on
conduct that occurs outside the workplace, as long as it
doesn't adversely affect that employee and their performance or
the performance of other employees, and that is something we
have enforced. That is something we go after aggressively when
we have the evidence and the basis upon which to do that.
Senator Akaka. Mr. Bloch, if a manager signs a written
statement that he or she did not hire an applicant because the
applicant is gay, would the manager be admitting to
discrimination based on sexual orientation or discrimination
based on sexual conduct?
Mr. Bloch. Thank you, Senator. Well, each case obviously
would depend on the facts of each case. What we do and what we
would do if someone submitted a claim such as that to us is
they would fill out a Form 11. They would explain what they had
done or what had happened to them and we would then engage in a
dialogue with them and find out what the facts of the case
were.
So if the facts were to reveal that the manager was taking
into account sexual conduct or, to make up facts here, if that
is all right, such as someone had an affair with somebody or
somebody was seeing and holding hands with somebody or whatever
it might be, this clearly would fall within the protections of
our statute and so we would just simply go down the line with
the employee, asking questions and asking them to comb their
memory for any reasons or discussions or what have you that
would be able to either present evidence that would fit within
the statute or not.
Senator Akaka. Please identify the facts that OSC would
have to investigate to determine which of the two forms of
discrimination has occurred, discrimination based on sexual
orientation or discrimination based on homosexual conduct.
Mr. Bloch. As I said, Senator, I think that we would have
to ask the employee about that, and if it got further than
that, we could ask the manager or other people who might have
witnessed what had happened or why the person was not hired or
promoted or whatever the case may be, and we would look for
evidence by which we could prove at the Board that there was
discrimination under the statute and seek corrective action. So
the various kinds of conduct, it could vary from anything from
what I described and being seen somewhere, being seen with
somebody, anything of that nature.
I have also in my policy explained that sometimes you don't
have the luxury as a lawyer or as an enforcer of law when you
are trying to prove a case to have direct evidence. Sometimes
you have to rely on what we call circumstantial evidence or
implied or imputed conduct, and so there would be cases where
you wouldn't have direct witnessing of anything, but it might
be related by someone, and that would be sufficient.
Senator Akaka. In this context, aren't sexual orientation
and sexual conduct essentially the same thing? In other words,
when a manager does not hire an applicant because of his or her
sexual orientation, doesn't it follow that the manager is not
hiring the applicant because of the kind of sexual or other
conduct he or she believes that the employee engages in as a
gay person?
Mr. Bloch. Well, I certainly can see the point that a
manager might be basing their decision on conduct, and if you
ask them the question, well, what do you mean when you say, ``I
didn't hire that person because they were gay,'' or they didn't
hire them because they were homosexual, what do you mean by
that, and if you peel back the layers very far, you may indeed
find conduct. But it may also not be that.
One thing I can't do as a law enforcer is get into social
policy and determining the philosophy behind the notion of
conduct versus orientation. I am not sure what the answer is
and I think a lot of people have tried to grapple with that. I
don't make policy. I think that is for the Congress to do and
you do a good job of that. But what I do is I simply look at
the statute and the case law. If the case law says, you can't
go there, I don't go there. I don't go asking philosophic
questions. I mean, I do like philosophy, but that is not my
job.
Senator Akaka. OSC's fiscal year 2005 annual report, Mr.
Bloch, shows that the number of favorable prohibited personnel
practice--or PPP--actions decreased from 126 in fiscal year
2002 to 45 in 2005. According to the report, fiscal year 2005
was the year OSC's Investigation and Prosecution Division,
which processes PPP cases, reduced its backlog, that many of
the backlogged cases had been in the IPD for 2 or more years,
and the majority of these older cases were not strong cases.
The report also said that fiscal year 2006 would be the first
year the IPD would be able to focus primarily on case received
during fiscal year 2006 and expected a higher number of
favorable actions.
However, the 2006 annual report shows that only 52
favorable PPP actions. Can you explain why there wasn't a
greater improvement in PPP favorable actions?
Mr. Bloch. Thank you, Senator. There was an improvement,
and that much we do know. The numbers were better. They were
decreasing since 2002 and 2003, before I took office. They were
down to 115, and then in 2004 to 80. And I have talked about
this with my senior staff and asked, what is going on here?
What is the problem, or is there a problem, and the answer that
I have gotten back--obviously, I don't work all these cases,
the career staff does--the answer that I have gotten back is
two-fold.
One is you can't determine how many favorable actions you
have at a given snapshot of time. If maybe you went back to the
inception of OSC, you would see a different pattern back to
1979. But statistically, you can't really tell what is going on
there. But they have suggested some possible explanations if,
indeed, there is any significance statistically to that drop in
numbers.
One is that the CEU, or this Complaints Examining Unit, has
reported to superiors as well as to me that the quality of
cases that they were seeing in the last 2 years had decreased
or dropped off, and I asked, well, what is going on? What do
you think is the issue? And they said they don't know, but just
the quality was just not as good. And we have struggled and
scratched our head to figure out, well, what can we do?
One thing we have implemented is simpler filing procedures
on the Internet. We have tried to encourage the CEU examiners
to speak with the complainants and find the good that is within
their case. It might not be 100 percent good, but maybe there
is a PPP in there. I have even sat in on the sort of round-
robin sessions of the CEU where they brainstorm and try to
figure out, where is the PPP? I have kidded with them that it
is kind of like ``Where is Waldo?'' Where is the hidden PPP?
Because sometimes when a Federal executive employee comes
to you, they have a problem and it is a bundle of things. They
are not really sure what to call it. They explain the problem,
but they don't know what slot to necessarily fit it into. And
so what we try to do is try to find a PPP that may not be
obvious from the facts, and I think the CEU is to be credited
for being very good at that, as well as the Investigation and
Prosecution Division. We have expert attorneys and
investigators who are always thinking creatively.
One of the things that I emphasized when I arrived at OSC
was we do not exist to get rid of cases. We exist to find the
good that is there. We exist to improve the merit system. We
need to make better case law. We need to be aggressive. We need
to file more before MSPB, when appropriate. So we are really
trying to locate those good cases, and it is quite earnest and
we have the staff to do it. It is just they report that the
quality of the PPPs may not be quite as good.
So then there is one final possible speculative reason, is
there has been a slight shift in philosophy within the
directorate of the IPD/CEU. New management is in place that
believes it is not appropriate to go for corrective action if
the law does not permit it. In other words, to essentially go
to an agency and say, hey, give us corrective action and we
won't burden you with 2 years of bothersome investigation and
possible prosecution for an MSPB, a kind of implied threat.
This was something that was fairly common before, according to
what has been reported to me.
I did not tell anyone to stop that per se. I have said
nothing really particularly. I have just been informed that the
IPD does not permit that anymore, and so there may be a shift
of philosophy to we are going after stronger, bigger things and
more litigation when possible rather than perhaps something
that might be a little more insubstantial and not based on law
and authority to do so, and those are the only possible reasons
I can explain, Senator.
I wish those numbers were tripled. Anyone in the agency
will tell you that I love good numbers. You can see from those
charts. And I love to get corrective action for people and I
love to go after cases. It is just in my blood, and everybody
knows that and I preach that constantly. So we are really
trying to find those.
We have found some very positive cases in the USERRA area
which we consider another PPP. I mean, you have got a service
member who is a Federal executive employee and they are not
being given their job back, and so we consider that essentially
an unwritten PPP as part of USERRA and we are getting a lot of
corrective actions there. If you add that number in here, it is
certainly up to about 100. So we are really proud of the work
we are doing for the Federal employees. It is just we can't
make up the evidence. We can't make the cases good when they
come in. We have to follow the law.
Senator Akaka. Thank you. Thank you very much, Mr. Bloch,
for your responses. Now I would like to ask Senator Voinovich
for his questions.
Senator Voinovich. How many cases have you had where people
complained that they weren't hired because of sexual
orientation?
Mr. Bloch. Well, the CEU, Complaints Examining Unit,
doesn't track that specifically because it is not mentioned in
our statute. But in asking them that question, there are
approximately 2 percent of the Section (b)(10) cases that come
in that may be fairly described as having to do with sexual
conduct or sexual orientation.
That is the statute concerning nondiscrimination on the
basis of conduct that doesn't adversely affect the job.
Senator Voinovich. So it is 2 percent, you think, about----
Mr. Bloch. Two percent of the 100--of those PPPs, which
would be about two. I would have said if you asked me last year
or the year before, I would have said a handful of about five
percent, maybe ten percent in certain years. And so it is
really a very small percentage.
Senator Voinovich. OK. This is a question for both of you.
Your agencies share responsibility for enforcing laws
protecting veterans' rights in the Federal workplace, is that
right?
Mr. McPhie. That is correct, sir.
Mr. Bloch. Yes, sir.
Senator Voinovich. And as a practical matter, your
respective caseloads are likely to increase given the returning
veterans from Iraq and Afghanistan?
Mr. McPhie. Yes, sir.
Senator Voinovich. Have you seen that kind of an increase
at all yet?
Mr. McPhie. I tell you, we have had more veterans types of
cases even before the Iraq and Afghanistan issues. It was when
the Court of Appeals changed existing precedent regarding the
way the government would allocate or track military leave. The
government was doing it one way for many years and the Circuit
Court said that was wrong. We have seen a whole lot of those
cases. I believe the case is McCormick. I could be wrong.
Butterbaugh.
Senator Voinovich. Butterbaugh?
Mr. McPhie. Yes, the Butterbaugh lines of cases.
Senator Voinovich. When was that precedent----
Mr. McPhie. In 2003.
Senator Voinovich. OK. So after 2003, you have had more
cases brought because of the court case?
Mr. McPhie. Because of the court case. We anticipate, and
we say it in our comments that we have submitted, that the
returning veterans could indeed push up our caseload.
Senator Voinovich. OK. So the question I have, then, is
what are your respective agencies doing to prepare, in terms of
the people that you need to get the job done, with the growing
expectations that you are going to have?
Mr. McPhie. If I may take the first shot, as you can tell,
we are becoming more productive and more efficient. We have
been forced to. We have a really good cadre of administrative
judges throughout the regions who currently are averaging 89
days to do a case from start to finish. They are the persons
that would be getting these cases. I believe some of them can
come directly to the Board. I don't want to get into a
discussion of jurisdiction.
We are familiar with the statute. We have been issuing more
opinions under USERRA and VEOAA, the statutes that you are
referring to. My Chief Counsel on my staff is a person who has
developed a particular expertise in that area and the AJs that
work for the Board are up to snuff on that particular area of
the law, and I feel very certain that they are up to issuing
decisions at the same rate at which we are doing it now.
Now, mind you, if we get a whole bunch of cases at the same
time, I may be coming to a committee of Congress saying, help.
But absent that, we will triage it. We have had those kind of
issues before----
Senator Voinovich. In other words, you are working harder
and smarter and doing more with less.
Mr. McPhie. Yes. We have a legal conference coming up real
soon. USERRA and VEOAA are front and center at that conference.
Senator Voinovich. How about you, Mr. Bloch?
Mr. Bloch. Thank you, Senator. USERRA is a growth area for
us, has been since I started in the job. We went looking for
it, if you will, and with the demonstration project we have
established a USERRA Unit with specialized individuals, some of
whom are reservists, to attack the growing number of veterans'
types of claims due to the historic mobilization of troops and
demobilization that constantly is occurring and a greater
awareness about it because of news and the experience of some
veterans who have been discriminated against, and it happens,
unfortunately, more often than we would like to see in the
Federal Government.
So we have really ramped up. We have this wonderful USERRA
Unit headed by a GS-15 who is an expert in USERRA, does a lot
of outreach, does a lot of litigation. I really wanted to send
a message that this is an important area that I think had
been----
Senator Voinovich. What I understand is that you are being
proactive and getting the word out to the various agencies
saying that they have got veterans coming back. You want to
remind them of this, so that you can nip it in the bud before
it happens.
Mr. Bloch. That is correct, Senator, and we are finding a
great deal of cooperation in that area, and I do some outreach
myself. I just spoke to the Reserve Officers Association here
on the Hill a couple of weeks back. So it is something we do--
--
Senator Voinovich. This is important, I think you ought to
redouble your efforts and make sure these agencies understand
what rights veterans have and make sure that we don't have a
big front-page article in the Washington Post or the New York
Times saying that these people coming back are not being
treated the way they ought to be treated, OK?
Mr. Bloch. Yes, sir.
Senator Voinovich. OK. The other thing I would like to do
is, Mr. McPhie and Mr. Bloch, Congress continues to debate the
personnel system for the TSAs. My colleagues have expressed
concern that TSOs do not have appeal rights to MSPB and that
the OSC does not have full statutory authority to investigate
complaints. Mr. Bloch, OSC has a Memorandum of Understanding
with TSA receiving whistleblower complaints, and how would
OSC's authority be enhanced if TSA was covered by the same
statute as other Federal agencies?
And Mr. McPhie, do you believe TSOs are lacking a fair
appeal process without OSC appeal rights?
Mr. McPhie. Senator, since I am the chairman of an
adjudicatory agency, I try not to engage in giving opinions as
to what I believe the law should be--whether it is a good law,
a bad law, and that type of thing. My job really is to
interpret the law and to enforce the law as the law is written.
I can tell you, I have been a lawyer in employment law for
quite a while. I believe that third-party appeal systems work.
I have seen them work. The Board is a third-party appeal
system. By that, I mean the parties to the dispute don't decide
the dispute. That has been my general observation over time,
but I don't want to comment on regulations that would emerge in
some form of which I don't know and then have to sit in
judgment on cases.
Senator Voinovich. Could you give me the number of
complaints that have come before MSPB from TSA?
Mr. McPhie. No. We don't have jurisdiction at this point in
time over TSA. The new statute--the statutes that are currently
up here, the whistleblower statutes, would, in fact, give those
folks MSPB appeal rights.
Senator Voinovich. OK.
Mr. McPhie. And if that occurs, yes, we have them. But at
this point in time, we don't.
Senator Voinovich. So you don't get them. Mr. Bloch, you
have got a Memorandum of Understanding. How is that working?
How many whistleblower complaints have you gotten out of TSA?
Mr. Bloch. We have had--when I first arrived, we had about
45 in the pipeline, and overnight they kind of dried up because
a decision came out that said there was no jurisdiction. Now, I
have great respect for Mr. McPhie and so I don't want to tread
on their ground, but we did advocate that we felt that the
Homeland Security Act did cover TSA screeners owing to the
provision, I think it was Section 803, that said,
notwithstanding anything else in the Act, these employees will
have (b)(8), (b)(9) rights, which are whistleblower reprisal
rights and if they filed an appeal, rights if they were
retaliated against for filing an appeal.
So we operated from the premise that that actually was
already there in the law, but it was a complex, interwoven----
Senator Voinovich. Do you have a Memorandum of
Understanding with TSA regarding whistleblower complaints?
Mr. Bloch. Yes, we do, and we have had since 2003. That has
worked fairly well, but we don't have powers to demand
corrective action. We can't send a corrective action report. We
can simply say, here is what we found out. It is up to you to
do what you want to do. When you lack the teeth that comes with
the power to come before the Board to seek a stay, to seek
corrective action, to seek disciplinary action, our experience
has been the results aren't going to be quite as good. However,
I will say that we have found in favor of whistleblowers at the
TSA and those matters have been taken up by TSA, and to the
best of my knowledge, some corrective action has occurred.
I am assured that it is true, yes. Some corrective action
has occurred on behalf of the employees due to our MOU. But
again, I am going to defer to my colleague from the MSPB as to
what the state of the law is there.
Senator Voinovich. Well, I guess the bottom line is that
what both of you would like to see these rights granted to
TSO's. If this ends up going to conference, I would like to see
these rights provided to the individuals. Do you think that
would provide added benefits to the TSO's, if your jurisdiction
was clear?
Mr. McPhie. Yes, sir.
Mr. Bloch. Absolutely.
Senator Voinovich. OK. Senator Akaka, would you allow me a
few more minutes, or do you want to take over?
Senator Akaka. You may.
Senator Voinovich. Mr. McPhie, the Board is seeking an
exemption from the requirements under the Sunshine Act when it
exercises its adjudicatory function. The Sunshine Act already
allows adjudicatory meetings to be closed. What makes the
Board's operational procedures different from similar appellate
agencies, such as the Equal Employment Opportunity Commission?
Mr. McPhie. Well, I can't speak for other agencies, but I
can tell you how the Board operates in its case deliberations.
Here is what happens. I have a chief counsel. He understands my
position in a case, so he goes off and he talks to another
Board member's chief counsel and they sort of talk about
different positions. And then a third chief counsel gets
involved, and then these things are communicated back to Board
members. Terribly cumbersome, and it doesn't really----
Senator Voinovich. The purpose of doing that is to avoid
the Sunshine Act?
Mr. McPhie. Well, the purpose of doing that is if you can't
decide these cases in the flow of business. I mean, we have a
lot of cases and time pressures in getting cases and getting
them out right the first time. I told you 93 percent of our
cases have been affirmed by the Court of Appeals, so we do a
good job on that. And my Board members are here. They know that
we all work very hard. We try to get positions clarified. We
try to meet to reach consensus. And we really like it when we
are 3-0 opinions. It is clear. It sends the right message----
Senator Voinovich. How would this help?
Mr. McPhie. It would permit, I believe, Board members to
respond to each other the way judges do all of the time. You
have a really robust deliberative discussion and you cut
through a lot of the bureaucracy and you end up with a well-
informed decision perhaps in a shorter time frame. And you have
to understand also, whatever the Board's decision, it is
published. It is not like this is some secret society that
never sees the light of day. It is published, and people take
appeals from the Board decisions, and if the Board is wrong,
the Court of Appeals will tell us we are wrong and then we
conform.
Senator Voinovich. OK, the fact is that you are under the
Sunshine Law, and if you all got together in a room and started
talking about a case, then the Sunshine Law would apply?
Mr. McPhie. Would apply, and the Sunshine Law has
requirements. You have to give notice. You have to give time
and place, agenda, and you have to invite the public. We have
no--the issue for us is not transparency.
Senator Voinovich. Yes. I just thought the Sunshine Act,
according to what I have been told from my staff, already
allows that adjudicatory meetings be closed, and that you can
do that right now.
Mr. McPhie. It gives some relief, but not the kind of
relief that would facilitate a free exchange. We haven't had a
Sunshine Act meeting since 2001 and the reason for that really
is you have a meeting, you start off talking about something.
When has a meeting matriculated into a discussion of cases? We
have to be real careful about that.
We may be at lunch. We may be in a conference someplace and
we have lunch together. We have to always remind ourselves that
even if the case has been in the office for a long time and we
all want to get that case out, we dare not talk about it. And
we don't. We reserve it for when we get back to the office and
we explain to our surrogates what our positions are and they
sort of are the front persons to get consensus, and then it is
shown to us and then we sign off if we have reached consensus.
I am not suggesting the MSPB is going to stop functioning
if we don't get this exemption. All I am suggesting to you is,
look, we are quasi-judicial. The Court of Appeals expects us to
act like they do. And I can tell you, their practice is right
after an argument is made, they sit down and immerse themselves
and get the sense of whether this case is going to be a
difficult one to decide or whether it is going to be an easy
one.
Senator Voinovich. And you are saying you can't do that
because of the law?
Mr. McPhie. We can't do that.
Senator Voinovich. So you think that the Sunshine Act does
apply to adjudicatory meetings being closed and that is why you
want to change it?
Mr. McPhie. Well, you can do it if you--you can do it under
(b)(10), but you still have to do everything that the Sunshine
Act requires of you. You have got to give the notice. You have
got to have an agenda, I mean, say what the agenda is. And you
can close that portion of the meeting and engage in a
discussion. But suppose that discussion of one case leads to,
well, what do we do with cases like it on which we have----
Senator Voinovich. OK, and you are saying that because the
requirement of the Sunshine Law, you have to lay out what you
will be discussing, even though it is not going to be open to
the public, if you move into something, another area--you don't
have the same kind of freedom of discussion that you might have
with a court where maybe they are talking about one case and
they get into another case.
Mr. McPhie. Another case.
Senator Voinovich. OK, I understand. Thank you.
Senator Akaka. Thank you. We will move into a second round
here of questions.
Mr. McPhie, you noted that six meetings covered by the
Sunshine Act were held in the year 2001 and that some of those
meetings discussed particular cases. Were those cases closed or
open to the public, and if they were closed, how did MSPB avoid
crossing the line between policy discussions and case
deliberations?
Mr. McPhie. Senator, I wasn't there. I don't know. I came
to the Board in 2003. In 2001, I was still in Richmond,
Virginia. So I don't know. I could only assume that my
predecessors in office followed the law, but I just don't know.
Senator Akaka. Mr. McPhie, the Board's legislative proposal
would permit the MSPB to grant motions for summary judgment or
rule on a matter when there are no disputes of the facts in the
case. However, I am concerned with the impact this change could
have on employees who represent themselves before the Board.
How would the Board handle summary judgment cases for employees
who do not have attorneys, and would the Board assist or give
guidance to those employees?
Mr. McPhie. Senator, the Board has a long history of
deciding cases brought by pro se individuals. We understand it
is a ``David and Goliath'' story a lot of times when these
cases are brought. Summary judgment is a tool, and that is all
it is. It comes into play only when there are no disputed
facts, no material facts in dispute, only when--so it is not
appropriate for all cases. If, in fact, an issue will turn on,
say, credibility of witnesses, you can't, without having the
person in front of you, you cannot render a judgment on--decide
a case based on summary judgment.
But let me say this. I have used that tool myself. In all
my years of practice, I have seen it used. I think in this
country, we have--I know the Supreme Court of the United States
has frequently laid out the rules for summary judgment. One of
the things a summary judgment does and does quite well, it
focuses a case.
A lot of times, people come to the Board, they don't know
what their case is. They have got a bunch of facts and they
throw the facts up. What summary judgment can do for people is
really focus the case and help not just the party bringing the
case recognize when they have a strong or a weak case, but help
the agency recognize when it has a strong or weak case. And if
you can get people to focus and be realistic with what is going
to happen based on the quality of their case, you may get, for
example, an agency saying, this is not one we want to fight. So
you can get a settlement. Conversely, an employee can recognize
weaknesses in his or her case and decide, this is not one I
want to fight. I mean, it cuts both ways.
The thing that I believe is important to recognize, there
are checks and balances. If the Board doesn't follow the rules,
I can assure you the Federal Circuit is going to reverse it and
send it right back to the Board.
I mean, some of it spreads fear. I have heard that over
time. But I have seen summary judgment work and work quite
well. It is a tool, and we operate in a time when the Board has
been forced to decide cases under time constraints. In the DHS-
DOD bills, that time is 90 days per case. In the proposed
whistleblower legislation, I believe on the House side, that
time is 180 days. We are in a new environment. We can't hold
onto cases for months and years and so on. It is not right, in
any event. The person deserves an answer. It is a tool to get
to that point efficiently, with a full-blown explanation.
Senator Akaka. Mr. McPhie, talking about summary judgment,
the Board's justification of this proposal noted that, if
granted, the summary judgment authority would rarely be used.
So in how many cases in the past year would summary judgment
have been helpful?
Mr. McPhie. I don't know because our Court of Appeals said
we don't have that authority. That is why we have to ask for
it. I am reminded that the new statutes under the DOJ and DOD
personnel changes clearly give the Board summary judgment
authority. Now, one of the things that is going to be somewhat
incongruous is to have a system where you have summary judgment
for some cases but not for other cases. The development of
jurisprudence that governs the workplace in an orderly and
effective manner ought to be as uniform as we can make it with
respect to the rules around bringing these cases to conclusion.
But I couldn't tell you. I just couldn't tell you which
cases. I have read many cases where you go on and on and
sometimes in the end, the employee loses. For goodness sake, if
you told an employee up front, maybe they wouldn't have spent
the money. Maybe they won't have hired the lawyer. Maybe they
won't have to travel and spent money in depositions and
discovery and that kind of thing. It is a tool that can work, I
believe, if handled well, to bring some sense of order in those
cases that it applies.
Senator Akaka. Thank you, Mr. McPhie.
Let me ask the next question to Special Counsel Bloch.
Under a demonstration project, OSC shares the responsibility
with the Department of Labor to receive and investigate claims
from Federal service members under the Uniformed Services
Employment and Reemployment Rights Act. As Chairman of the
Senate Veterans Committee and the Federal Workforce
Subcommittee, I am very interested in how the demonstration
project is working. How has the addition of the USERRA Unit
affected OSC's ability to adequately staff and process cases in
other OSC divisions and units?
Mr. Bloch. Thank you, Senator. The demonstration project
has given us half the cases that normally go to the Department
of Labor Veterans' Employment and Training Service Office,
which amounts to about 200 cases a year extra. Now, if you look
at our overall picture, we get about 2,000 PPPs a year. We get
about 250 to 300 Hatch Act cases and about 2,000 requests for
advisory opinions for Hatch Act in an off year, that is to say,
a non-Presidential election year. In a Presidential election
year, we went up in the last one to 4,000 advisory opinions. In
the Whistleblower Disclosure Unit, we have approximately 500
claims, disclosures, filed with us per year.
So the 200 that have been filed with USERRA in addition to
what we normally would get from the Veterans' Employment and
Training Service that works its way through their investigatory
process then ends up at our door to prosecute potentially, it
has not in any way really affected our ability to process
claims, to deliver justice in a timely way, and I think the
charts have shown that, that you would expect in 2005 to have
seen an increase in time of cases spent in divisions, but we
haven't seen that. I think we are doing--people are doing an
excellent job, as Senator Voinovich put it, doing more with
less.
What we did, Senator, and the way I would explain how could
we do that and not have the USERRA project affect our overall
efficiency with the other areas without additional FTEs and
additional budget is that we became more efficient through the
way in which we looked at our processes and procedures and
reorganized the agency, so that before when I arrived, there
were many procedures in place that caused memos to be written
that were three, four times as long as they needed to be and
that they were reviewed by three or four people and it would
get bounced back and forth and sit on desks for a month at a
time.
So we looked at those kinds of procedures and said, what is
the net benefit to the merit system? What is the net benefit to
the Federal employee? We did away with anything that wasn't
benefitting the process, wasn't benefitting justice, wasn't
benefitting the Federal merit system or the employee, and we
stripped it down to what it takes to deliver justice to an
employee without a lot of internal bureaucratic frills, and
without sacrificing any quality, we really did remove those
impediments and those bottlenecks and those excess procedures
that didn't really go to benefit the system.
By doing that, we really freed up the ability of employees
to look at these USERRA claims that had been taking a back
burner, and I don't think we want our veterans, whether it is a
USERRA claim or a veterans' preference claim, to take any back
seat to anybody. They have the same rights that other Federal
employees have, and indeed, when you go off to fight for your
country, you would hope that your Federal Government agencies
would welcome you back rather than turn you away. So this is
the kind of philosophy that we have developed.
And I would add that we have also seen an increase in the
number of PPPs that accompany USERRA claims. We call these
mixed cases and they also come to us in the demonstration
project, when a PPP accompanies a USERRA claim. And so, really,
there is a complementarity between USERRA and PPP and we often
have a great deal of interaction between those people that do
PPPs and those who do USERRA and it is very complementary to
our entire operation, I think, and we are very happy with the
demonstration project and certainly would like to see it made
permanent for the benefit of the veterans who are getting more
timely and a greater percentage of corrective action, we
believe.
Senator Akaka. Thank you for your response, Senator
Voinovich.
Senator Voinovich. Thank you. In 2004, GAO recommended that
the OSC present a strategy to Congress to allow more consistent
processing of cases within the existing statutory time limits.
The expectation was that the strategy would provide details on
what, if any, staffing, organizational, or legislative changes
could help reduce the backlog.
Has OSC ever developed and submitted to Congress the
comprehensive strategy recommended by GAO. If GAO were to
conduct a follow-up review, do you think the recommendations
would be different?
Mr. Bloch. Thank you, Senator. I have retired from
prognosticating on what would happen with GAO, but----
Senator Voinovich. But have you ever submitted a
comprehensive strategy recommended by GAO?
Mr. Bloch. Yes, we have. In 2005, I believe it was prior to
the hearing in May 2005 before your Subcommittee, and we
submitted the response. It was a, I am guessing, 25, 30-page
response to GAO's initial investigation that came out very
shortly after I arrived, maybe 2 months after I arrived. And we
welcomed that report and we welcomed the opportunity to report
on what we had done. If I recall correctly, Senator, we
submitted that to the Subcommittee as part of the record of
that hearing, our response to GAO, and we also had supplied a
copy of our reorganization memorandum, which was about 15 pages
long, and it also outlined the methodologies that we used to
put in place, standard operating procedures to make it
essentially next to impossible for these backlogs to occur
again.
And so we believe that problem is a thing of the past and
we are very proud of the work of the career staff to take
personal responsibility for the caseload and for the timeliness
of decisions and weigh that in the balance to make sure quality
is also assured for all Federal applicants.
Senator Voinovich. At your last hearing we discussed the
creation of the Detroit Field Office. At the time, affected
employees felt that you were moving them to Detroit because of
a personality conflict. How has the creation of the Detroit
Field Office played out?
Mr. Bloch. Thank you, Senator. I was just there, actually,
2 weeks ago.
Senator Voinovich. How many of the people that were
initially assigned left OSC?
Mr. Bloch. I think we supplied the numbers to you there. We
had one physically actually go there and then decided he wanted
to live where his fiance was in Ohio, and so moved from there.
We had two or three others plan to go, but then before they
could actually make the transition, they got other jobs in
town. And then I think we had two or three, maybe four--I
honestly can't give you the exact numbers--who just decided
they didn't want to go and told us so up front and got other
Federal jobs.
Senator Voinovich. So basically, most of them that were
assigned to Detroit did not transfer?
Mr. Bloch. Most did not choose to go to Detroit.
Senator Voinovich. Did anyone go?
Mr. Bloch. Yes, two, one that I described who went and was
actually working there and then decided to go to Ohio, from
your wonderful State, and then another who is the chief of the
office, and he is there still and doing a wonderful job. I was
really pleased with the progress of the office. It is
functioning very well. The people there are very happy. Morale
is high. They are a real contributor to the overall team.
So the overall reasoning and rationale for the
reorganization and how I had hoped things would work out has
come true. In other words, nothing has worked out badly. It has
worked out extremely well. All the field offices are very
strong functioning parts of the OSC. They have independence, in
a sense. They are very competitive. They have teamwork. So it
is working out very well. And I had a number of employees tell
me in Detroit how happy they were to have their jobs and how
glad they were that we established an office there. I was just
delighted by the morale and the level of achievement that we
are seeing there, as well as with our other field offices.
Senator Voinovich. But these were new people that you
brought on?
Mr. Bloch. No, the chief of the office was from Washington.
Senator Voinovich. Yes, but the other people were mostly
from the Detroit area?
Mr. Bloch. Well, one was in the honors program at the DOJ
here in Washington, DC and decided they wanted to move back to
where they were from, which was Detroit, and they joined us in
Washington, DC and then went to Detroit.
Senator Voinovich. How many are there now?
Mr. Bloch. Six, I believe, maybe seven.
Senator Voinovich. How many regional offices do you have?
Mr. Bloch. We have four field offices. We call Washington,
DC, a field office. The IPD is the Washington Field Office. And
then we have three outlying field offices, Detroit, Dallas, and
we call San Francisco a field office but it is actually in
Oakland. And so you can see we have four corners of the
country, if you will, covered, and that has helped in terms of
investigations and travel and those sorts of things.
Senator Voinovich. All the complaints come in to the
Washington office and then you farm them out to the regional
offices based on the geography, is that it?
Mr. Bloch. Well, that is one consideration. Caseload might
be another. Expertise might be another. But yes, generally.
Senator Voinovich. Senator Akaka, I have no more questions.
Senator Akaka. Thank you very much, Senator Voinovich.
Special Counsel Bloch, the OSC annual reports for fiscal
years 2003 through 2006 failed to report the survey results
related to the Disclosure Unit. As you know, Title 5 requires
the OSC to conduct an annual survey of all individuals who
contact OSC for assistance. Can you tell me why OSC is no
longer reporting survey results related to the Disclosure Unit?
Mr. Bloch. Thank you, Senator. The legal counsel and Policy
Division of my agency looked at that question and interpreted
the statute and informed me of their interpretation that we
need to put out a survey to those who are seeking relief,
actual relief for their particular problem and that can get
corrective action of their particular employment situation,
discipline, retaliation, whatever it might be, under USERRA and
the Hatch Act, as well. What did you do to somebody? Did you
take discipline? Did you correct something?
With regard to the Disclosure Unit, we don't have
investigative powers. We have only the power to review under
the statute and then to declare to the agency we have found a
substantial likelihood that the condition, whether it be a
health, safety, gross mismanagement, an illegality, or abuse of
authority, whatever it might be in the area of whistleblower
disclosure, that we find a substantial likelihood that is true
based upon simply talking to the whistleblower and looking at
whatever materials that person may send us. Then we can tell
the agency under Title 5 U.S.C. 1213 that they are required to
do an investigation, and they usually will send it to their
Inspector General.
We don't have any power over the results. We can't tell
them what to do with their agency or how to correct the
situation or not correct it, what to do to an employee to
discipline them, and so on, and so consequently, as I recall,
and we are going back 3 years now, the legal counsel and Policy
Division did a legal analysis of the obligation there in order
to streamline and make it more timely to get the survey
results, and then we also put them into an electronic form so
we could get them out by e-mail to people and so we have been
able to get them more timely.
That is the explanation that I would give you. I can't, as
I sit here, give you all of the legal ins and outs because I
don't remember them, but we could certainly supply that to your
staff if you would wish.
Senator Akaka. I hope you will start including summary
survey data related to the Disclosure Unit.
Mr. Bloch, you mentioned in your testimony the case
involving Leroy Smith, who disclosed environmental hazards at
Federal prisons, and noted that he was awarded the Public
Servant Award last year. I was troubled to find out, however,
that OSC dismissed Mr. Smith's retaliation complaint and he had
to hire his own lawyer to address the agency's retaliation and
he has since said that the problems he identified as part of
the whistleblower's complaint still have not been resolved. So
I am deeply disturbed to learn that the Federal employee
honored by OSC as being a whistleblower received so little
help. What is your response to this allegation?
Mr. Bloch. Thank you, Senator. Mr. Smith did a very
important and brave thing. Conditions have changed because of
his disclosure and we honor him and continue to honor him. I
have so spoken in recent news articles in the last few months.
There are other Federal prisons that are still being
investigated and cleaned up. I think what he did is a very
important thing, and it is deplorable when any individual is
retaliated against and we go after that with a great deal of
aggressiveness when we have jurisdiction.
Now, in the case of Mr. Smith, the allegations you are
talking about are reckless and slanderous. My career staff did
not throw out his claim, and I will supply to your staff the
proof of what happened. I will tell you what happened. Mr.
Smith got an attorney in California. The attorney got him full
relief, got him a transfer that he asked for, and then entered
into a settlement agreement which required him in the
settlement agreement that he and his lawyer signed to have OSC
dismiss its retaliation complaint.
We then received that request along with the settlement
agreement. We will supply you with the documents. We have them.
We will fax them to your office today, if you like. And then we
sent him a letter that said, ``Dear Mr. Smith, Because you have
asked us to withdraw your complaint and because your settlement
agreement requires that, we are now dismissing or withdrawing
your complaint and it is closed.'' And that is the beginning,
middle, and end of it, Senator.
Senator Akaka. Well, as I said, I was disturbed to learn
about that. Please relay copies of those letters to my office.
Mr. McPhie, although DHS is implementing its new appeals
system, the U.S. District Court for Washington, DC ruled in
2005 that the litigation standard to be applied by the Board is
unfair to employees. While the Court of Appeals reversed this
decision on the grounds that the matter was not properly before
the court at that time, can you tell me how MSPB will ensure
that DHS employees receive a fair hearing?
Mr. McPhie. Senator, we don't have them yet. It hasn't been
implemented. We don't have the first case yet. I know what you
are referring to. It says the matter was premature because the
Board hadn't passed on the matter, and the mitigation language
is different language from what the Board has utilized in the
past. We use the Douglas standard. The DHS mitigation standard
is brand new.
We don't have a case yet. I am sure my fellow Board members
would take those cases very seriously and try to come up with
some sort of standard, some sort of rule, some sort of
interpretive guideline. What that interpretation may be, I just
can't speculate. It is going to have to be in the context of a
case and we don't have the first case yet.
Senator Akaka. Mr. McPhie, Title 5 currently provides MSPB
with the authority to delegate the performance of any of its
administrative functions to any employee of the Board. Given
this authority, why is the Board seeking a statutory change for
succession purposes instead of simply delegating certain
authorities to address possible vacancies?
Mr. McPhie. I think we are talking about two different
things. The legal advice I have been provided by not only the
current general counsel, but the one before the current general
counsel, who worked many years at the Board, we were confronted
in the Board with a most unusual and unprecedented
circumstance. My colleague and I, Member Sapin and I, were not
confirmed. There was one Board member confirmed and she was at
the end of a holdover term. We had to ask the question, what
would happen in terms of succession, who is going to run the
Board if there is no quorum, or there is no Board member? Now,
we have staggered terms so theoretically it shouldn't happen.
But it did.
So the general counsel might have been the one who began
the conversation. We have got to come up with some kind of
succession so if we are in that situation, we know, the public
knows, and the Board's operation continues. What they tried to
do was to recommend to me, and different people had a say in
all of that, what in their view would be a plausible way for
the Board to continue in the circumstance that I described. And
that is the reason.
Now, I don't know that the Board has authority to delegate
its functions, and I am told the Board does not have
authorization to delegate anything to anybody with respect to
running the agency.
Senator Akaka. Thank you very much for your responses.
Let me ask my final question to Special Counsel Bloch. Once
again, OSC's survey results showed dissatisfaction with OSC's
handling of prohibited personnel practices. My question to you
is, what steps has OSC taken to determine reasons behind those
responses and address any identified problems associated with
them?
Mr. Bloch. Thank you, Senator. We would note that a very
small percentage of those who are surveyed respond to our
survey, and so if you look at the numbers, out of the small
percentage of those surveyed who actually respond to the
survey, the vast majority are those who did not get any relief.
In other words, they were the people who did not have
meritorious cases or there was no jurisdiction or they weren't
a Federal executive employee, whatever it might have been.
And as a result of that, we can certainly understand people
who don't get the relief they wish for or see justice a
different way than the law sees it perhaps would be
dissatisfied. I would be if I were them. But we can't really do
much about that part of it.
The part that obviously does concern me are those who
respond negatively and also would say they didn't feel that
they were treated right or they didn't feel that the service
provided was timely or courteous or professional, something of
that nature. Now that, I take very seriously, and we have
trained our people and retrained them about how to deal with
Federal executive employees to help them even if we don't have
jurisdiction.
In other words, we have employees that will call us and
they are worried about their veterans' checks, their disability
checks, or their Social Security disability checks. We don't
handle that, but we don't turn them away, either. We have
instructed our employees to help them out any way they can,
give them the right number, give them the right direction, try
to find out what their problem is. So that is something we are
very keen about.
The other thing I would note is that while you can read
these numbers any way you like, I suppose, one way to look at
them is that looking at the 2006, for instance, there are 5
percent of PPP complainants who took the survey and received
the result they desired. So 95 percent did not receive the
result they desired. But an average of 37 percent were not
dissatisfied with the service provided. And so even though they
didn't get the result they wanted, they described their
experience as not unsatisfactory or positive.
Now, I think for an enforcement agency where your life may
be topsy-turvy, you are not getting treated well at work, there
are difficulties and problems and friction, and you can come
away from an experience where you don't get the results you
want but you are still not dissatisfied with how you were
treated, I think that is a good thing. So we have to try to
mine some positives out of this and not simply look at the
negativity here.
Frankly, one could, if one had the money, design a survey
that would be a lot more adaptive to the positives as well as
the negatives and give us some material and some ability to
make changes that would actually improve the system, improve
the customer service. But I don't think the survey as it now
stands really is that helpful.
Senator Akaka. Special Counsel Bloch, do you know if those
who responded negatively were the ones whose cases you had
jurisdiction over or not?
Mr. Bloch. There is no way of telling from the survey.
Senator Akaka. Well, I want to thank both of you so much
for your responses. Thank you, Mr. McPhie.
Mr. McPhie. Thank you, Senator.
Senator Akaka. Thank you, Special Counsel Bloch, for being
here today.
Mr. Bloch. Thank you.
Senator Akaka. Because of my belief in the merit system and
its principles, I want to work with you to make sure that MSPB
and OSC are complying with these principles and are working to
make sure other agencies are complying, as well. As this
Subcommittee considers your agencies' reauthorization requests,
be assured that this will be the standard by which your
proposals will be measured.
The Federal Government must be free of retaliation for
disclosing wrongdoing and discrimination, which is why I plan
to introduce legislation to restore protections for employees
who are discriminated against based on their sexual
orientation. It does not make sense to me to protect employees
from discrimination based on their conduct but not on their
status, which is established by the very same protected
conduct.
With that, again, I want to thank you so much and look
forward to continuing to work with you.
The hearing record will be open for 1 week for additional
statements or questions other Members may have.
The hearing is adjourned.
[Whereupon, at 4:12 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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