[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) 512�091800
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
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