[Senate Hearing 111-452]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-452
 
       NOMINATIONS OF SUSAN TSUI GRUNDMANN AND ANNE MARIE WAGNER

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

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                                 of the

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

NOMINATIONS OF SUSAN TSUI GRUNDMANN TO BE A MEMBER AND CHAIRMAN, MERIT 
 SYSTEMS PROTECTION BOARD, AND ANNE MARIE WAGNER TO BE A MEMBER, MERIT 
                        SYSTEMS PROTECTION BOARD

                            OCTOBER 20, 2009

                               __________

       Available via http://www.gpoaccess.gov/congress/index.html

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs




                  U.S. GOVERNMENT PRINTING OFFICE
53-849                    WASHINGTON : 2010
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina
JON TESTER, Montana                  ROBERT F. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, JR., Massachusetts

                  Michael L. Alexander, Staff Director
               Kristine V. Lam, Professional Staff Member
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                   Jennifer L. Tarr, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk
         Patricia R. Hogan, Publications Clerk and GPO Detailee
                    Laura W. Kilbride, Hearing Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Akaka................................................     1
    Senator Voinovich............................................     2
Prepared statements:
    Senator Akaka................................................    13
    Senator Voinovich............................................    14

                               WITNESSES
                       Tuesday, October 20, 2009

Susan Tsui Grundmann to be a Member and Chairman, Merit Systems 
  Protection Board...............................................     5
Anne Marie Wagner to be a Member, Merit Systems Protection Board.     6

                     Alphabetical List of Witnesses

Grundmann, Susan Tsui:
    Testimony....................................................     5
    Prepared statement...........................................    16
    Biographical and financial information.......................    18
    Letter from the Office of Government Ethics..................    26
    Responses to pre-hearing questions...........................    27
    Responses to post-hearing questions..........................    43
    Letter of support from AFGE..................................    81
Wagner, Anne Marie:
    Testimony....................................................     6
    Prepared statement...........................................    52
    Biographical and financial information.......................    53
    Letter from the Office of Government Ethics..................    61
    Responses to pre-hearing questions...........................    62
    Responses to post-hearing questions..........................    76
    Letter of support from AFGE..................................    81


       NOMINATIONS OF SUSAN TSUI GRUNDMANN AND ANNE MARIE WAGNER

                              ----------                              


                       TUESDAY, OCTOBER 20, 2009

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Daniel K. 
Akaka presiding.
    Present: Senators Akaka and Voinovich.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. This hearing will come to order. Good 
afternoon, everyone. This seems to be like a family affair 
today, and I am glad to note that.
    Today the Committee on Homeland Security and Governmental 
Affairs meets to consider the nominations of Susan Tsui 
Grundmann--and her family is here--to be Chairman of the Merit 
Systems Protection Board, and Anne Wagner to be Vice Chairman, 
and your lovely family is here, too. I would like to extend a 
warm welcome to both of these well-qualified nominees.
    Ms. Grundmann has been an advocate for Federal workers for 
20 years. Since 2002, Ms. Grundmann has served as General 
Counsel to the National Federation of Federal Employees, a 
union which represents approximately 100,000 Federal employees 
throughout the country. Prior to that, she served as General 
Counsel to the National Association of Air Traffic Controllers. 
Ms. Grundmann attended the American University and received her 
law degree from Georgetown University.
    Ms. Wagner likewise has strong experience with the Federal 
workforce. She currently serves as the General Counsel to the 
Personnel Appeals Board, which decides personnel disputes 
within the U.S. Government Accountability Office. Prior to 
that, she served as a member of that Board for 6 years. Before 
joining GAO, Ms. Wagner worked for 20 years as Assistant 
General Counsel to the American Federation of Government 
Employees, the largest Federal employee union, which represents 
many employees in my home State of Hawaii. Ms. Wagner graduated 
from the University of Notre Dame and received her law degree 
from the George Washington University.
    I want to congratulate both of you on your nominations to 
these important positions. I know you both have some family and 
friends in the audience, and I want to give you the opportunity 
to introduce them to the Committee. Ms. Grundmann, I have met 
your husband, Karl, and daughter Milla, who are both with us 
today. It is great to know that Milla is very studious. She has 
her note pad here. She is in the third grade and got the day 
off from school to be with us today. We hope that this hearing 
is something of a civics lesson for Milla. I also want to 
welcome your Mom, Min Lan, who is here also today.
    Ms. Grundmann, please--well, before we move to the 
introductions, I want to say that we are so fortunate to have 
our friend here, Senator Voinovich. He is a very busy man, and 
he took time away from the Senate floor to be here at this 
hearing. He was on the floor managing an appropriations bill, 
so I will ask him for his statement, and then he will have to 
leave and go back to the floor. So if you want to see him after 
this, turn on the TV. [Laughter.]
    He is on TV on the floor.
    Senator Voinovich. Watch me just sitting there.
    Senator Akaka. Senator Voinovich.

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. Thank you, Senator Akaka. I am pleased 
to be here, and I want the nominees to know that I have 
reviewed your qualifications, and you are both very impressive.
    With the passage of the Civil Service Reform Act of 1978, 
Congress established the Merit Systems Protection Board (MSPB) 
to serve as a guardian of merit principles across the Federal 
workforce. Both of you are familiar with that. You will be 
charged with providing a fair and efficient forum for 
employees, retirees, candidates for Federal employment, and 
agency management alike when reviewing personnel decisions and 
agency policy. Properly fulfilling this role is necessary to 
sustain a top-notch workforce, and I think the reputation of 
that operation is important.
    In light of the coming demographic transition in the 
Federal workforce, it is vital that agencies are seen as 
attractive to today's best and brightest. The next generation 
of Federal employees, many of whom will be joining the 
workforce directly from undergraduate or graduate study, are 
accustomed to competitive and intellectually rewarding 
environments. To be an attractive alternative to the private 
sector, prospective Federal employees must be assured that in 
the Federal sector they will succeed or fail according to the 
quality of their work, not by the arbitrary will of an agency 
manager or the transient initiatives of Presidential 
Administrations. Today's best and brightest expect nothing 
less.
    At the same time, though, we must be sure that our concern 
for protecting individual employees does not grant de facto 
tenure for Federal workers. Front-line managers need the 
training, tools, flexibility, and leadership support to 
discipline poorly performing employees. When an employee's 
shortcomings seriously affect the quality of government 
services provided to the public, the option to terminate 
employment must be a practical remedy. In today's difficult 
economic environment, thousands of Americans are losing their 
jobs despite outstanding performance. We must ensure that 
Federal employees are held to similar standards. On both 
counts, the nominees will play a pivotal role, if confirmed.
    I was going to look forward to hearing from both of you 
about your plans for leading this important agency, but I must 
return to the floor. But, I am interested in how you intend to 
respond to the demographic, statutory, and administrative 
changes that are expected to increase the Board's caseload. You 
are going to have a lot more things to do. I am also curious to 
learn what tools the nominees feel would help reduce the time 
required to adjudicate appeals and improve the quality of 
decisions issued by the MSPB. Finally, I am interested in 
hearing about the plans to help inform Federal workforce policy 
through the Board's ``special studies'' function. I think it is 
really important that people understand the tools and 
opportunities available to them and how the civil service 
system operates.
    So I commend you for willingness to step forward and to 
serve your country, and I want to thank the members of your 
family that are here today for the sacrifice that they have 
made over the years so that you both could get to where you are 
at and, quite frankly, for the sacrifice that will have to be 
made so that they can do the job that they have to do. So often 
we forget the contribution that spouses make to this whole 
operation, their willingness to have us work long hours. I 
think about Janet, my wife, she has something called the 
``Honey Do list.'' Did you ever hear about the Honey Do list? I 
have not been as faithful to the Honey Do list as I should be. 
But that is part of the fact that I am kind of busy with what I 
am doing here, and I thank God that she is so understanding.
    So thank you very much, and, again, I apologize for having 
to go back to the floor. Thank you.
    Senator Akaka. Thank you very much, Senator Voinovich.
    I know his heart is here, but he will have to be on the 
Senate floor managing the bill. Thank you very much.
    Ms. Grundmann, I introduced your family. Are there any 
others that you want to introduce this morning?
    Ms. Grundmann. I do. Thank you very much.
    Joining me today is the staff from the National Federation 
of Federal Employees and friends from the National Air Traffic 
Controllers Association, along with some colleagues from the 
United Defense Workers Coalition.
    I also want to give special thanks to the staff of the 
MSPB, particularly the General Counsel's Office, Chad Bungard, 
and Michael Carney, who is not here today; and my special 
shepherd through this process, Rosalyn Coates.
    Senator Akaka. Well, welcome all of you.
    Now I would like to turn to Ms. Wagner. I met your husband, 
and I want to welcome Allynn here, and also your children, 
Katie, Nora, and Carlin. Do you have anyone else you wish to 
introduce to the Committee?
    Ms. Wagner. Yes, thank you, Senator. I would like to 
recognize my cousin, Erin Clinard, who made the trek out from 
Waterford, Virginia, for this hearing.
    I would also like to acknowledge my colleagues at the 
Personnel Appeals Board who are attending the hearing today and 
other friends from AFGE.
    And I would also simply like to reiterate Ms. Grundmann's 
recognition of the assistance that the MSPB General Counsel's 
office has provided me in preparation for this hearing. They 
have been terrific.
    Senator Akaka. Well, thank you very much, and let me again 
welcome all of you here and, coming from Hawaii, with much 
aloha to all of you.
    These positions are among the most important to Federal 
employees. Our dedicated Federal employees are among this 
country's greatest assets. Civil servants must be able to serve 
their country without undue influence or fear of discrimination 
at the workplace.
    The MSPB was created to safeguard the merit system 
principles and to help ensure that Federal employees are free 
from discrimination and retaliation at the workplace. If 
confirmed, I expect these nominees to be strong advocates for 
the merit system and the Federal workforce.
    One of the most important responsibilities of the Board is 
to adjudicate claims brought by Federal employee 
whistleblowers. For almost a decade, I have worked to reform 
the process for protecting Federal whistleblowers. As the 
sponsor of the Whistleblower Protection Enhancement Act of 
2009, I believe that one of the key tenets of the Federal merit 
systems is the ability of Federal employees to report waste, 
fraud, and abuse without fear of retaliation.
    For too long, Federal whistleblowers have not received the 
protection they need. Since the year 2000, the Board has 
repeatedly misapplied congressional intent with respect to 
whistleblower protection. I am hopeful that with new statutory 
protections--and additional Board members who understand the 
important role of whistleblower protections--Federal employees 
will feel confident again that they can report waste, fraud, 
abuse, or illegal activity without risking their professional 
and financial futures.
    I am very happy to conduct this hearing today. For many 
years, I should tell you, Senator Voinovich and I have worked 
together to improve all aspects of the Federal workforce.
    The nominees have filed responses to a biographical and 
financial questionnaire, answered pre-hearing questions 
submitted by the Committee, and had their financial statements 
reviewed by the Office of Government Ethics. Without objection, 
this information will be made a part of the hearing record, 
with the exception of the financial data. It is on file and 
available for public inspection at the Committee offices.
    Our Committee rules require that all witnesses at 
nomination hearings give their testimony under oath. Therefore, 
I ask the nominees to please stand and raise your right hands.
    Do you solemnly swear that the testimony you are about to 
give the Subcommittee is the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Ms. Grundmann. I do.
    Ms. Wagner. I do.
    Senator Akaka. Thank you. Let it be noted for the record 
that the witnesses answered in the affirmative.
    Ms. Grundmann, would you please proceed with your 
statement?

   TESTIMONY OF SUSAN TSUI GRUNDMANN \1\ TO BE A MEMBER AND 
            CHAIRMAN, MERIT SYSTEMS PROTECTION BOARD

    Ms. Grundmann. Thank you. Good afternoon, Chairman Akaka. I 
want to thank you for this opportunity to appear before you 
today as you consider my nomination to be a Member and the 
Chairman of the U.S. Merit Systems Protection Board. I am 
honored by the confidence that President Obama has placed in me 
by nominating me to this important position of public trust. I 
pledge that, if confirmed, I will discharge my responsibilities 
with integrity and in accordance with law, rule, and 
regulation. I also want to thank you for your consistent 
efforts to ensure that the American public is well served by a 
civil service system that operates effectively and efficiently.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Grundmann appears in the Appendix 
on page 16.
---------------------------------------------------------------------------
    Mr. Chairman, for most of my practice, I have served as an 
advocate for Federal employees. During that time, I have also 
worked with Federal managers at all levels. I have worked in 
the private sector and with State courts. I have represented 
the interests of both management and line employees. I have 
become intimately familiar with the myriad of issues that give 
rise to workplace disputes. My cumulative experience has 
provided me with a well-grounded perspective of how the merit 
systems process works to ensure fairness in the Federal 
workplace.
    To serve as a Member and Chairman of the Merit Systems 
Protection Board is the opportunity to once again return to the 
practice of law in a neutral capacity. At the beginning of my 
legal career, I clerked for the judges of the Nineteenth 
Judicial Circuit of Virginia, an experience that laid the 
foundation for my commitment to public service.
    As Congress explores avenues for improving certain aspects 
of the civil service system, the Board's role as an independent 
and a neutral arbiter of fairness and adherence to merit 
principles remains vital to the effective and efficient 
operations of the Federal Government. In fiscal year 2009, the 
average case processing time for the initial decision was 83 
days. The average case processing time on petitions for review 
to the full Board was 94 days. These statistics provide a solid 
basis for confidence in the MSPB appeals process. If confirmed, 
I will work to build upon the Board's impressive record for 
timely and balanced adjudication of challenges to adverse 
personnel actions and other matters under its jurisdiction.
    It is crucial that both employees and managers perceive 
that they have equal access to the process and that the process 
provides them with a fair opportunity to present their 
respective positions. I am committed to ensure transparency of 
the process through a focus on issuing clear, understandable 
decisions that provide workable guidelines for the parties and 
the Board's stakeholders. This objective is particularly 
important in a venue such as the MSPB where a large percentage 
of the appeals are filed by pro se appellants. If confirmed, I 
commit to these fundamental principles from the outset.
    The Board's statutory studies function is also a 
significant part of the agency's responsibility. Study reports 
issued by the MSPB are highly regarded by the Federal human 
resources management community and other stakeholders of the 
Board. If confirmed, I plan to work with my fellow Board 
members as well as the Office of Policy and Evaluation to 
continue this record of excellence. And, in particular, I 
pledge to you to report to the President and the Congress as to 
whether the public interest in a civil service free of 
prohibited personnel practices is being adequately protected.
    Thank you for allowing me to give my statement, and I look 
forward to any questions you have to offer.
    Senator Akaka. Thank you very much, Ms. Grundmann, and 
thank you for your commitment. We certainly look forward to 
working with you.
    Ms. Wagner, will you please proceed with your statement?

   TESTIMONY OF ANNE MARIE WAGNER \1\ TO BE A MEMBER, MERIT 
                    SYSTEMS PROTECTION BOARD

    Ms. Wagner. Good afternoon, Chairman Akaka. I, too, would 
like to thank you for this opportunity to appear before you 
today. I would also like to express my appreciation to my 
family, friends, and colleagues for their support and 
encouragement throughout this process.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Wagner appears in the Appendix on 
page 52.
---------------------------------------------------------------------------
    I was and continue to be honored by President Obama's 
nomination of me to serve as a member of the Merit Systems 
Protection Board, and it is a privilege to appear before you 
today seeking Senate confirmation of my nomination. I 
wholeheartedly support the MSPB's statutory mission to protect 
Federal merit systems and the rights of individuals within 
those systems; and, if confirmed, I will commit myself fully to 
carrying out that mission.
    In 1978, when Congress enacted the Civil Service Reform 
Act, it did so to establish a comprehensive system governing 
Federal employment. It created the MSPB to have a central role 
as the impartial adjudicator of claims arising from personnel 
actions. In carrying out that duty, the Board must examine 
personnel actions to determine if they are consistent with law 
and merit principles and to provide meaningful redress when 
violations occur.
    In my 20 years of practicing Federal employment law, I have 
been particularly mindful of the continued importance that the 
MSPB plays today to the communities that it serves as well as 
to the American public. Much has changed in the 30 years since 
the MSPB's inception, but the need to ensure that the Federal 
workplace operates fairly and effectively has not. Congress 
entrusted the MSPB with that job, and I am both humbled and 
excited at the prospect of playing a part in carrying out the 
Board's mission.
    If confirmed, I look forward to working closely with Susan 
Grundmann, whose nomination as Chairman of MSPB I fully 
support, and Board Member Mary Rose, to meet the challenges 
facing the MSPB now and in the future.
    I thank you again for this opportunity to appear before you 
and would be happy to answer whatever questions you have. Thank 
you.
    Senator Akaka. Thank you very much, Ms. Wagner.
    I will begin with the standard questions this Committee 
asks of all nominees. First, is there anything you are aware of 
in your background that might present a conflict of interest 
with the duties of the office to which you have been nominated?
    Ms. Grundmann. I realize that the Board members must not 
only uphold but promote independence, integrity, and 
impartiality, and in preparation for the confirmations process, 
I have consulted with the Office of Government Ethics (OGE) and 
the designated ethics official at MSPB. No conflicts were 
found. Any future conflicts will be resolved consistent with 
the agreement that I have signed with the MSPB.
    Senator Akaka. Thank you.
    Ms. Wagner. Mr. Chairman, there are no conflicts in my 
background that would prevent me from carrying out the duties 
of a member of the MSPB.
    Senator Akaka. Thank you. Second, do you know of anything, 
personal or otherwise, that would in any way prevent you from 
fully and honorably discharging the responsibilities of the 
office to which you have been nominated?
    Ms. Grundmann. I intend to fully discharge my 
responsibilities with integrity and in accordance with the law.
    Senator Akaka. Thank you, Ms. Grundmann. Ms. Wagner.
    Ms. Wagner. Mr. Chairman, there is nothing in my background 
that would impede my ability to carry out my duties as a member 
with integrity and effectiveness.
    Senator Akaka. Thank you. Third, do you agree without 
reservation to respond to any reasonable summons to appear and 
testify before any duly constituted committee of Congress if 
you are confirmed?
    Ms. Grundmann. I agree without reservation.
    Ms. Wagner. I agree.
    Senator Akaka. Well, thank you very much for your 
responses, and I will begin with the questions.
    As the sponsor of S. 372, the Whistleblower Protection 
Enhancement Act of 2009, I believe that Federal employees 
provide a valuable service to our country when they expose 
waste, fraud, and abuse in the government. What is your view of 
the role whistleblowers play in strengthening the merit system 
and improving the effectiveness of the Federal Government?
    Ms. Grundmann, we will begin with you.
    Ms. Grundmann. Thank you, Mr. Chairman.
    The role that Federal employees play is absolutely vital in 
the sense of exposing fraud, waste, abuse, dangers to health 
and safety, from a position that is closest to the source. They 
are in essence the guardians of good government. They lead and 
they in turn should be provided protection against reprisal for 
such disclosures. I wholly support that principle.
    Senator Akaka. Thank you. Ms. Wagner.
    Ms. Wagner. Mr. Chairman, I believe that whistleblowers 
perform an essential function to ensure the accountability of 
the Federal Government to the citizens of this country, and as 
Ms. Grundmann has stated, I agree wholeheartedly with the idea 
that whistleblowers must be protected from retaliation for 
exposing waste, fraud, and abuse.
    Senator Akaka. Thank you. Ms. Wagner, in your answers to 
the Committee's pre-hearing questions, you state that you 
expect a rise in the number of claims filed with the Board 
under the Uniformed Services Employment and Reemployment Rights 
Act and the Veterans Employment Opportunity Act. As the 
Chairman of the Senate Veterans' Affairs Committee, I am 
strongly committed to promoting the employment of veterans. 
What will you do to familiarize yourself with these laws and 
ensure that veterans' rights are protected in the Federal 
workforce?
    Ms. Wagner. Mr. Chairman, I have a long history in my 
career of dealing with claims that arise within various 
statutory contexts, both complex statutory systems and 
otherwise. I am quite familiar with the approaches to statutory 
construction that are required when you are dealing with 
statutory claims such as claims arising under the Uniformed 
Services Employment and Reemployment Rights Act (USERRA) and 
the Veterans Employment Opportunity Act (VEOA). I would do 
everything that is necessary to come to a full understanding of 
the elements of causes of action and claims that arise under 
each of those statutes. I would engage in extensive research 
and analysis with regard to those claims.
    In answering that question, I was anticipating that because 
of the current increase in military deployments, there was a 
potential for an increase in such claims. I cannot predict for 
certain that it is what will occur, but if it does occur, I 
believe that the MSPB will be ready to handle any increased 
workload, according veterans the full rights that they are 
provided under each of those statutes.
    Senator Akaka. As you know, in 2002 the Department of 
Homeland Security (DHS) was given the authority to establish a 
new human resources system. A new appeals system was supposed 
to address concerns over timeliness, but DHS regulations 
implementing the process were controversial and raised concerns 
from both employee groups and Members of Congress regarding 
fairness.
    Last year, MSPB issued regulations to implement the system, 
but later rescinded them in light of Congress' decision to deny 
funding for their implementation.
    What are your thoughts regarding the timeliness of 
adjudications before the MSPB and the regulations issued for 
the DHS appeals system?
    Ms. Grundmann. Thank you, Mr. Chairman. My understanding 
with respect to the timeliness of decisions, as I indicated in 
my opening statement, is that not only initial decisions but 
petitions for review are moving at a very rapid pace. The 
regulations that DHS proposed, along with MSPB's subsequent 
follow-up, expedited the system--not to the point that it is 
unmanageable, but certainly those time frames can be met.
    In the event that the DHS regulations are implemented, the 
Board will be ready, the administrative judges will be ready to 
process those cases in the fashion as designated by statute and 
regulation.
    Senator Akaka. Thank you. Ms. Wagner.
    Ms. Wagner. Mr. Chairman, I believe that the Board has over 
the last couple of years demonstrated an increased efficiency 
with regard to decisionmaking, both at the regional level as 
well as at the Board level, and I would hope, if confirmed, we 
would continue on that road of improving the efficiency of the 
decisionmaking process at both the evidentiary phase as well as 
the appellate process.
    With the current status of the DHS personnel systems and 
DOD personnel systems certainly--not so much in flux, but in 
light of recent statutory enactment--it does not appear that 
the regulations that the MSPB has issued concerning those 
systems would necessarily be implemented in any context. 
However, I believe that the Board will continue to look at ways 
to improve its processes for all Federal employees across the 
board.
    Senator Akaka. Ms. Grundmann, I was pleased that in your 
answers to the Committee's pre-hearing questions, you stated 
that, if confirmed, you will focus on recruiting a new 
generation of employees to work at the Board. Recent college 
graduates and young professionals may not be aware of the Board 
as a potential employer. Would you please elaborate on your 
plans to improve your recruitment?
    Ms. Grundmann. Absolutely. When I began my career, Federal 
service, public service, was something that I aspired to, we 
all aspired to. Agencies periodically recruited at law schools, 
not only to educate future lawyers on their respective 
missions, but to offer them another means of using their legal 
talent.
    I see no reason why that same recruitment effort cannot 
begin again, beginning within law schools and certainly in 
colleges. It is the unique opportunity to make an impact in a 
neutral capacity and to protect the Federal merit principles in 
government.
    Senator Akaka. As you know, one of the Board's 
responsibilities is to conduct studies relating to the civil 
service and report to the President and the Congress. What 
issues should the Board focus on in future studies? Ms. 
Grundmann.
    Ms. Grundmann. Thank you, Mr. Chairman. As I indicate in my 
policy answers, I understand that OPM is embarking on a draft 
strategic plan. If confirmed, I would look for a definite Board 
role with my fellow Board members to be part of this new 
strategic plan for the Federal workforce.
    In addition, we know that there are currently four 
generations in the Federal workforce. The impact of technology 
is tremendous on all four generations. If confirmed, I would 
look to study the impact of that technology, the accelerated 
implementation of that technology, as well as what happens to 
employees who cannot adapt to that technology.
    And, finally, as I mentioned in my opening statement, there 
is a need and a statutory responsibility to report to the 
President and the Congress with regard to whether prohibited 
personnel actions are being used and the public interest is 
being served by protecting employees from prohibited personnel 
actions.
    Senator Akaka. Thank you. Ms. Wagner.
    Ms. Wagner. Thank you, Mr. Chairman. The MSPB, of course, 
has a division that is devoted to this aspect of the Board's 
mission, and I am sure that they have a system of identifying 
issues that are of importance to the various communities within 
the Federal workforce.
    That said, I believe that there are a number of issues that 
I would be interested in seeing examined. One would be 
something that you alluded to, which is this ongoing need to 
develop new recruitment and retention initiatives, especially 
in light of the changing approach to the workforce that studies 
have demonstrated that newer employees bring to the work 
experience.
    I would look also at the impact of Federal retirement on 
institutional knowledge within agencies and the impact that the 
increase in Federal retirement will have on the Federal 
workforce and the mission of the agencies.
    And, finally, I would potentially look at the linkage 
between performance appraisal systems and pay-for-performance 
systems to see the extent to which changes in performance 
appraisal systems are needed in order to engender trust in any 
potential pay-for-performance system that the Federal 
Government would undertake.
    Senator Akaka. Ms. Grundmann, as you know, the chairman of 
MSPB serves as the chief executive and administrative officer 
of the Board. What is your understanding of this role? And how 
do you feel that your experiences as General Counsel of the 
National Federation of Federal Employees will help you fulfill 
that role?
    Ms. Grundmann. Thank you, Mr. Chairman. It is a good 
question.
    The statute mandates that the chairman of MSPB serve not 
only as the CEO but the administrative officer on behalf of the 
agency and tasks the chairman with certain statutory 
responsibilities, such as supervising staff, distributing work, 
appointing people, and vesting within the chairman the sole 
ability to initiate litigation.
    In my experience at both NFFE and NATCA, I served on the 
management team. People often forget that although unions 
represent Federal employees, they are themselves employers. And 
in that role, I had the unique experience of representing 
management of the employees of the union, and I hope that 
experience, if confirmed, will enhance my ability to lead the 
MSPB.
    Senator Akaka. Ms. Wagner, I would like to hear from you as 
well. What is your understanding of your role as Vice Chairman? 
And how do you believe your experience as a member of the GAO 
Personnel Appeals Board will assist you in serving as Vice 
Chairman?
    Ms. Wagner. Mr. Chairman, I believe that the role of vice 
chairman is one that is set out under the statute, and very 
clearly so, and the role is to assume the duties of the 
chairman in the absence of the chairman. Those additional 
duties that the chairman has under the statute, as Ms. 
Grundmann has alluded to, involve the administrative and 
executive functions of the agency, so that if there is ever a 
situation where Ms. Grundmann is not in a situation to be able 
to carry out her duties as chairman, the vice chairman would 
be, under law, obligated to step up to do that.
    Should that occur, I believe that my experience as a 
General Counsel in the Personnel Appeals Board will stand me in 
good stead in that there is a lot of management of resources, 
assessment of allocation of resources that is involved in 
carrying out my duties as General Counsel. And I believe that 
it is a sensitivity to those types of issues that would be 
particularly helpful in carrying out the executive functions at 
the MSPB, should that occur.
    Senator Akaka. Ms. Grundmann, as the sponsor of S. 674, the 
Federal Supervisor Training Act of 2009, I believe investing in 
better training for supervisors could help prevent many 
workplace disputes. I was pleased to see in your answers to the 
Committee's pre-hearing questions that you support training 
supervisors on the importance of following agency procedures 
when taking personnel actions against employees.
    How can the Board promote improved training for Federal 
managers on merit systems principles and the Board's appeals 
process?
    Ms. Grundmann. The MSPB is a vast storehouse of experiences 
on good management and bad management, good employees as well 
as bad employees. In my experience, I have seen that sometimes 
personnel actions will be taken for the right reasons, but 
agency procedures, collective bargaining agreement procedures, 
may have been violated, which in turn compels the employee and/
or his or her advocate to react. In training supervisors on 
following the procedures and taking personnel actions for the 
proper reasons, I believe that is a good step toward the 
understanding of management.
    I understand your question to be one of outreach by the 
Board to managers, perhaps even lessons learned. Everybody 
loves top-ten lists. I do not see any reason why we cannot 
develop a list of experiences that are commonly seen as common 
mistakes for why personnel actions are overturned.
    Senator Akaka. Thank you. This will be my final question, 
and it is addressed to both of you on the panel. We have 
discussed the many important issues the Board faces. If 
confirmed, what will be your long-term priorities while a Board 
member? Ms. Grundmann.
    Ms. Grundmann. Thank you, Mr. Chairman. Like many of the 
Federal agencies, the Board faces the same issues: Recruiting 
and retaining highly trained and qualified employees to carry 
on the Board's mission into the next generation. We have 
already talked about a number of ways to conduct outreach to 
the next generation, to enhance the Board's effectiveness and 
to bring new ideas to light.
    These challenges, I think, are in terms of outreach and 
education. If confirmed, I would like to take an active role 
with my fellow Board members and determine what is the next 
step, where is the next phase, what is the next chapter for the 
MSPB.
    Senator Akaka. Ms. Wagner.
    Ms. Wagner. My long-term priority, if confirmed as a member 
of the MSPB, would be to engender trust in the MSPB by all the 
stakeholders--employees and managers alike--in carrying out the 
adjudicating function of the agency, that they can trust that 
this process will be fair and an effective one. And along with 
the other managerial long-term priorities that Ms. Grundmann 
has already alluded to, I believe that this would be my top 
priority.
    Senator Akaka. I want to thank both of you for your 
responses. This will be helpful to the Committee for what we 
are trying to do to help the Federal employees of our country.
    At this time there are no further questions for Ms. 
Grundmann or Ms. Wagner. There may be, however, additional 
questions for the record, which will be submitted to you in 
writing from Members who are not present.
    The hearing record will remain open until the close of 
business tomorrow for Members of this Committee to submit 
additional statements or questions.
    Again, I want to say thank you very much to Ms. Grundmann 
and Ms. Wagner, your families, and your supporters who are 
here, too, and others for attending. I am pleased to be able to 
hold a hearing for such well-qualified nominees. It is my hope 
that the Committee will vote soon on your nominations and that 
your nominations will be considered by the full Senate very 
shortly.
    Thank you very much. This hearing is adjourned.
    [Whereupon, at 3:15 p.m., the Committee was adjourned.]


                            A P P E N D I X

                              ----------                              

[GRAPHIC] [TIFF OMITTED] T3849.001

[GRAPHIC] [TIFF OMITTED] T3849.002

[GRAPHIC] [TIFF OMITTED] T3849.003

[GRAPHIC] [TIFF OMITTED] T3849.004

[GRAPHIC] [TIFF OMITTED] T3849.005

[GRAPHIC] [TIFF OMITTED] T3849.006

[GRAPHIC] [TIFF OMITTED] T3849.007

[GRAPHIC] [TIFF OMITTED] T3849.008

[GRAPHIC] [TIFF OMITTED] T3849.009

[GRAPHIC] [TIFF OMITTED] T3849.010

[GRAPHIC] [TIFF OMITTED] T3849.011

[GRAPHIC] [TIFF OMITTED] T3849.012

[GRAPHIC] [TIFF OMITTED] T3849.013

[GRAPHIC] [TIFF OMITTED] T3849.014

[GRAPHIC] [TIFF OMITTED] T3849.015

[GRAPHIC] [TIFF OMITTED] T3849.016

[GRAPHIC] [TIFF OMITTED] T3849.017

[GRAPHIC] [TIFF OMITTED] T3849.018

[GRAPHIC] [TIFF OMITTED] T3849.019

[GRAPHIC] [TIFF OMITTED] T3849.020

[GRAPHIC] [TIFF OMITTED] T3849.021

[GRAPHIC] [TIFF OMITTED] T3849.022

[GRAPHIC] [TIFF OMITTED] T3849.023

[GRAPHIC] [TIFF OMITTED] T3849.024

[GRAPHIC] [TIFF OMITTED] T3849.025

[GRAPHIC] [TIFF OMITTED] T3849.026

[GRAPHIC] [TIFF OMITTED] T3849.027

[GRAPHIC] [TIFF OMITTED] T3849.028

[GRAPHIC] [TIFF OMITTED] T3849.029

[GRAPHIC] [TIFF OMITTED] T3849.030

[GRAPHIC] [TIFF OMITTED] T3849.031

[GRAPHIC] [TIFF OMITTED] T3849.032

[GRAPHIC] [TIFF OMITTED] T3849.033

[GRAPHIC] [TIFF OMITTED] T3849.034

[GRAPHIC] [TIFF OMITTED] T3849.035

[GRAPHIC] [TIFF OMITTED] T3849.036

[GRAPHIC] [TIFF OMITTED] T3849.037

[GRAPHIC] [TIFF OMITTED] T3849.038

[GRAPHIC] [TIFF OMITTED] T3849.039

[GRAPHIC] [TIFF OMITTED] T3849.040

[GRAPHIC] [TIFF OMITTED] T3849.041

[GRAPHIC] [TIFF OMITTED] T3849.042

[GRAPHIC] [TIFF OMITTED] T3849.043

[GRAPHIC] [TIFF OMITTED] T3849.044

[GRAPHIC] [TIFF OMITTED] T3849.045

[GRAPHIC] [TIFF OMITTED] T3849.046

[GRAPHIC] [TIFF OMITTED] T3849.047

[GRAPHIC] [TIFF OMITTED] T3849.048

[GRAPHIC] [TIFF OMITTED] T3849.049

[GRAPHIC] [TIFF OMITTED] T3849.050

[GRAPHIC] [TIFF OMITTED] T3849.051

[GRAPHIC] [TIFF OMITTED] T3849.052

[GRAPHIC] [TIFF OMITTED] T3849.053

[GRAPHIC] [TIFF OMITTED] T3849.054

[GRAPHIC] [TIFF OMITTED] T3849.055

[GRAPHIC] [TIFF OMITTED] T3849.056

[GRAPHIC] [TIFF OMITTED] T3849.057

[GRAPHIC] [TIFF OMITTED] T3849.058

[GRAPHIC] [TIFF OMITTED] T3849.059

[GRAPHIC] [TIFF OMITTED] T3849.060

[GRAPHIC] [TIFF OMITTED] T3849.061

[GRAPHIC] [TIFF OMITTED] T3849.062

[GRAPHIC] [TIFF OMITTED] T3849.063

[GRAPHIC] [TIFF OMITTED] T3849.078

[GRAPHIC] [TIFF OMITTED] T3849.079

[GRAPHIC] [TIFF OMITTED] T3849.080

[GRAPHIC] [TIFF OMITTED] T3849.081

[GRAPHIC] [TIFF OMITTED] T3849.082

[GRAPHIC] [TIFF OMITTED] T3849.083

                                 
