[Senate Hearing 112-218]
[From the U.S. Government Publishing Office]
S. Hrg. 112-218
NOMINATION OF CAROLYN N. LERNER
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
of the
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
NOMINATION OF CAROLYN N. LERNER TO BE SPECIAL COUNSEL, OFFICE OF
SPECIAL COUNSEL
MARCH 10, 2011
__________
Available via the World Wide Web: http://www.fdsys.gov/
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Committee on Homeland Security and Governmental Affairs
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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 TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana ROB PORTMAN, Ohio
MARK BEGICH, Alaska RAND PAUL, Kentucky
Michael L. Alexander, Staff Director
Beth M. Grossman, Deputy Staff Director and Chief Counsel
Kristine V. Lam, Professional Staff Member
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government
Management,
the Federal Workforce, and the District of Columbia
Nicholas A. Rossi, Minority Staff Director
Molly A. Wilkinson, Minority General Counsel
Jennifer L. Tarr, Minority Counsel
Alan B. Elias, Legislative Assistant, Office of Senator Ron Johnson
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
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Opening statements:
Page
Senator Akaka................................................ 1
Senator Johnson.............................................. 2
Prepared statements:
Senator Akaka................................................ 15
Senator Johnson.............................................. 16
WITNESS
Thursday, March 10, 2011
Carolyn N. Lerner to be Special Counsel, Office of Special
Counsel:
Testimony.................................................... 4
Prepared statement........................................... 17
Biographical and financial information....................... 19
Responses to pre-hearing questions........................... 28
Letter from the Office of Government Ethics.................. 43
Responses to post-hearing questions for the Record........... 46
NOMINATION OF CAROLYN N. LERNER
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THURSDAY, MARCH 10, 2011
U.S. Senate,
Committee on Homeland Security and
Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
Akaka, presiding.
Present: Senators Akaka and Johnson.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. This hearing will come to order.
Aloha and good morning, everyone. This hearing is full of
smiling faces, and we are delighted to be here today.
The Committee on Homeland Security and Governmental Affairs
meets to consider the nomination of Carolyn Lerner to serve as
Special Counsel.
I would like to extend a warm welcome to Ms. Lerner and
also welcome her family and her friends who have joined us
today for this nomination hearing.
Ms. Lerner attended the University of Michigan, where she
was selected to be a Truman Scholar, and studied at the London
School of Economics. She received her law degree from New York
University, where she was awarded a Root-Tilden-Snow
Scholarship. After law school, Ms. Lerner clerked for a Federal
judge and then began to practice law. In 1997, she became a
founding partner in her law firm here in Washington, DC, where
she represents individuals, including Federal employees, in
employment matters. Ms. Lerner is also a visiting professor at
George Washington University Law School.
Ms. Lerner, I would like to congratulate you on your
nomination. It is a pleasure to have such a well-qualified
nominee before us today.
I understand that your husband, Dwight, your son, Ben, and
daughter, Anna, are here today, and I would like to give you
the opportunity to introduce them and any other family members
or friends who are here for this hearing. Would you please
introduce them to the Committee, Ms. Lerner?
Ms. Lerner. Thank you, Senator. My husband, Dwight
Bostwick, is here, and my daughter, Anna, and my son, Ben. My
family in Michigan, unfortunately, could not be with me today,
but I believe they are watching on the Committee's remote
access. My law partners are here, Rick Salzman, Steve Chertkof,
and Doug Heron, and I have many other friends here, as well.
Senator Akaka. Well, thank you, and all of you are welcome.
We are delighted to have you and look forward to this
hearing. But again, I want to say aloha to everyone. I can see
that Ms. Lerner has a strong network of supporters here today.
The Office of Special Counsel (OSC) was created in 1978 as
part of the Civil Service Reform Act. Although it may not be
the most well known Federal agency, the Office of Special
Counsel serves a very important purpose, which is to safeguard
the merit system by protecting Federal employees and applicants
from prohibited personnel practices.
Our dedicated Federal employees are among this country's
greatest assets. I believe that civil servants must be able to
serve their country without undue influence or fear of
discrimination or retaliation. For almost a decade, I have
worked to reform the protections for Federal whistleblowers,
enacting the Whistleblower Protection Enhancement Act so that
Federal employees may report waste, fraud, abuse, or illegal
activity without fear of retaliation, and it is one of my top
priorities in this Congress. Having a Special Counsel in office
who understands the critical importance of Federal employee
whistleblowers is a key aspect of restoring faith in
whistleblower protections.
In addition, the Office of Special Counsel protects the
employment rights of our veterans by enforcing the Uniformed
Services Employment and Reemployment Rights Act (USERRA). As a
member of the Veterans Affairs and Armed Services Committees
and as a veteran of World War II myself, I feel strongly that
our service members' rights must be protected as they prepare
to enter or return to the civilian workforce. This issue has
become even more important in recent years with large numbers
of veterans returning from overseas who want to continue their
service in a civilian capacity. I understand that this
essential office at the OSC is understaffed. I hope you will
focus attention on veterans' protections when you are
confirmed.
Finally, the Office of Special Counsel is responsible for
enforcing and providing advisory opinions on the Hatch Act.
Because the presumptive penalty for violating the Hatch Act is
removal from Federal employment, the OSC's advisory function is
vital to helping employees understand what activity is
permitted under the law.
I want to tell you that I am happy that my new partner on
the Oversight of Government Management, the Federal Workforce,
and the District of Columbia Subcommittee, Senator Johnson, is
here today for his first hearing serving as Ranking Member. I
would like to take this opportunity to welcome him and to say
that I look forward to working with him on these important
issues here in the U.S. Senate.
Senator Johnson, would you like to make any statement at
this time?
OPENING STATEMENT OF SENATOR JOHNSON
Senator Johnson. Yes, and thank you, Senator Akaka. Aloha.
Senator Akaka. Aloha.
Senator Johnson. I would imagine I will be saying that
quite a few times, and I will enjoy that. I would rather be
doing it in Hawaii, though, I think.
Senator Akaka. Yes.
Senator Johnson. But again, thank you, sir, for your kind
introduction. I am really looking forward to working with you
over the next couple of years. It is going to be an honor
serving with you on this Committee and also on our Subcommittee
on Oversight of Government Management, the Federal Workforce,
and the District of Columbia.
I guess I would like to begin by also welcoming you, Ms.
Lerner, and your family and your friends and people who have
come here to support you in this hearing. We share rookie
status here. This is my first time as a Ranking Member and your
first time testifying, so welcome.
Rather than repeating what Senator Akaka talked about in
terms of the importance of this office, I will second what he
said. It is an extremely important office. I guess I would like
to just give a brief opening remark, focus on the waste, fraud,
abuse, mismanagement, duplication of service aspects, of how
important it is to protect whistleblowers.
I really do not want to turn this into a budget hearing,
but as we discussed in my office a week ago, our Federal
Government is facing a $1.65 trillion budget deficit this year.
Our national debt exceeds $14 trillion. The President's budget
lays out another $13 trillion of debt over the next 10 years.
My concern is that at some point in time, we are going to face
a debt crisis.
So the financial pressure we put on agencies is going to be
tremendous, and our Federal Government simply cannot afford to
operate ineffectively and inefficiently, and I think the Office
of Special Counsel will play a key role in allowing people to
come forward--now, I agree with Senator Akaka. I think our
Federal workforce is comprised of fine individuals who want to
do the right thing, and the Office of Special Counsel gives
them that outlet, gives them that assurance that they can step
forward, report mismanagement, waste, fraud, and abuse, and I
cannot imagine a time in our Nation's history where that is
going to be more critical.
As we talked in my office about a very cooperative
relationship here, and the same thing that Senator Akaka and I
talked about in our committee and subcommittee work, we want to
cooperate with the agencies. I do not think negative works. I
am not into ``gotcha'' politics. I want everybody in the
Federal Government, at least from this Senator's perspective,
to understand that I want to work with the agencies to help
them become more effective and more efficient. I want to work
with the Federal workforce, with the fine men and women who
serve our Federal Government and who want to come forward and
say, we can make things a little more effective. We can make
things a little more efficient. I think it is just absolutely
critical.
So again, I want to thank you for stepping up to the plate.
As we discussed earlier, there are going to be long hours. This
is going to be hard work. It is a difficult challenge. This
office has gone without a leader now for 2 years. So I am
really pleased that we are holding this hearing because it is a
very important office, and I am looking forward to your
testimony.
Senator Akaka. Thank you very much, Senator Johnson, for
your statement.
The nominee has filed responses to a biographical and
financial questionnaire, answered prehearing questions
submitted by this Committee, and had her 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 nominee to please stand and raise your right hand to
take this oath.
Do you swear that the testimony you are about to give this
Committee is the truth, the whole truth, and nothing but the
truth, so help you, God?
Ms. Lerner. I do.
Senator Akaka. Thank you very much. Let it be noted in the
record that the witness answered in the affirmative.
Ms. Lerner, will you please proceed with your statement?
TESTIMONY OF CAROLYN N. LERNER \1\ TO BE SPECIAL COUNSEL,
OFFICE OF SPECIAL COUNSEL
Ms. Lerner. Yes. Chairman Akaka and Ranking Member Johnson,
thank you for the opportunity to appear before you today. It is
a privilege to be considered for confirmation by this
Committee. I am honored and humbled that the President has
nominated me to serve as Special Counsel.
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\1\ The prepared statement of Ms. Lerner appears in the Appendix on
page 17.
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I briefly introduced my family before. My husband, Dwight
Bostwick, and our two children, Anna and Ben. I am very
grateful to them for their unwavering love and support. A
number of my friends and colleagues are also in the audience
today, and I would like to thank them, as well, for being here.
I also want to acknowledge my family in Michigan, who could
not be here today, but who have encouraged me throughout my
life. I would not be here but for the two people whose
influence led me to pursue a career in the law. My mother and
my father would have treasured this day. They were the children
of immigrants who came to this country seeking a better life.
My grandfather had been jailed in his country for speaking out
against the government, and my parents taught me to appreciate
the freedoms that we enjoy in the United States. They also
impressed upon me the importance of standing up for those who
cannot protect themselves.
I began my career in Michigan, where I grew up, as a law
clerk to U.S. District Court Chief Judge Julian Abele Cook, Jr.
Judge Cook treats all those who appear before him with
kindness, dignity, and respect. His approach set the standard I
have tried to emulate as I have practiced law in the 20 years
since my clerkship.
Since 1991, I have represented both private sector and
Federal employees, primarily in employment-related cases. I
have advised employers about best workplace practices and
employment issues. As a Federal court-appointed independent
monitor, I managed and implemented a reform program for a large
government agency. I have also served as both a mediator and a
professor of mediation.
These experiences have given me a broad perspective on how
workplaces function and how best to protect employees from
discrimination and retaliation. If confirmed, I would bring
this expertise to the Office of Special Counsel.
There are several employees from the Office of Special
Counsel who are here today, and they deserve our appreciation
for their ongoing commitment to the OSC.
The Office of Special Counsel was created to protect
Federal employees who report abuses in government. Employees
need to have the courage to blow the whistle on waste, fraud,
and abuse, and we need to provide them with the assurance that
if they do, their careers and their livelihoods will not be at
risk.
Whistleblowers are essential to a well-functioning
government. Federal employees have been described as the foot
soldiers in the war on waste, fraud, and abuse. They not only
protect public health and safety, they are guardians of
taxpayer dollars, a role that has become more important than
ever.
Whistleblower disclosures under the False Claims Act have
accounted for billions of dollars in recoveries for the U.S.
Treasury. A recent private sector study found that employee
disclosures detected more fraud than auditors, internal
compliance officers, and law enforcement officials combined.
To effectively protect the Federal Merit System, the Office
of Special Counsel must be a highly functioning agency. I
believe that the OSC can best succeed if its own employees are
treated fairly and with respect.
It will also take a strong partnership with all of the
OSC's stakeholders to move the agency forward in a positive
way. If confirmed, I am committed to building collaborative and
constructive relationships with the Congress, Federal employee
and agency management groups, and good government advocates. In
particular, I look forward to working very closely with this
Committee as you continue your important efforts to increase
effectiveness and efficiency in the government.
Thank you, and I would be very pleased to answer any
questions that you may have.
Senator Akaka. Thank you very much, Ms. Lerner.
I will begin with the standard questions that the 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. Lerner. No, there is not.
Senator Akaka. 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. Lerner. No, I do not.
Senator Akaka. 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. Lerner. Yes, I do.
Senator Akaka. Thank you very much.
Ms. Lerner, the Special Counsel position has been vacant
for over 2 years. In light of the extended vacancy, what do you
believe are the major challenges facing the OSC and what will
you do to address them if you are confirmed?
Ms. Lerner. This agency, as you know, has been without
permanent leadership for 2 years, and I do want to recognize
the fact that the career employees of this agency have very
honorably taken over the roles that are usually filled by
people who are in the office of the immediate Special Counsel,
and so they have been doing double-duty and they deserve our
appreciation for having done that.
In terms of the challenges facing the agency, obviously, if
I am confirmed and I am in the agency, I will have a much
better sense. But as of now, we know that without leadership,
some long-term planning probably needs to be done. We need to
look at the bottom line and how the agency is using its
resources and whether it is using resources in the most
efficient and effective way.
I also think a challenge is going to be increasing
communication. As you mentioned, I think it is very important
that the Office of Special Counsel have good communication with
the Senate and in particular with this Committee.
Communications should not be limited to hearings, but there
should be an ongoing dialogue. There also needs to be
communication with all of the other stakeholders of the agency,
including agencies and the good government advocates. So I
think that those would certainly be priorities for me if I am
confirmed.
Senator Akaka. Thank you. Ms. Lerner, you have spent your
career working in the private sector representing individuals,
including Federal employees. How do you believe your experience
has prepared you for this position, both in terms of managing
the OSC and its employees and enforcing Federal Merit System
principles?
Ms. Lerner. In the 22 years since I graduated from law
school, I have been privileged to have a very wide range of
experiences. In addition to representing individuals in
employment cases, I have also worked with organizations and
small businesses on best employment practices and developing
policies and procedures for them. I have represented
organizations who were the subject of complaints from
employees, both in mediation and in litigation.
I have served as a court-appointed Special Inspector for
the D.C. Department of Corrections, an agency with over 1,000
employees, and managed a program there where I was responsible
for recruiting, hiring, training, and supervising a team of
lawyers, trainers, and mediators. I set up systems within the
Department of Corrections, such as an Employee Advisory
Committee, an ombudsman, and certainly representing individuals
in employment cases has given me a lot of insight into what
good management can do and the effect of both good and bad
management.
So I would bring those collective experiences to the Office
of Special Counsel if I were confirmed.
Senator Akaka. Ms. Lerner, I understand that employee
morale in the OSC is low and that some employees complained of
possible illegal retaliation in the past. If confirmed, what
are your plans to improve the workplace environment?
Ms. Lerner. As I mentioned, I do have experience with
troubled workplaces, large and small, and I have counseled
businesses on how to deal with troubled workplaces.
The first thing that I think would be really important to
do is to meet with people myself and determine if steps need to
be taken to improve morale, and if so, what are they. I would
like to learn by talking to people. I think I am a good
listener. And that would be the first thing I would do if I am
confirmed, is to listen to the people who are working there at
the Office of Special Counsel.
I also have a lot of experience doing mediation, and those
skills as a mediator, I think, would stand me in good stead in
trying to bring the agency forward, and I would assure you that
I will take whatever steps are appropriate, including things
like setting up or reinvigorating an Employee Advisory
Committee, which I believe this agency may have had in the
past. I am not sure what the status is now of that committee.
But I think all those steps are things that can really help
morale, and I would be prepared to do those things.
Senator Akaka. Thank you, Ms. Lerner. Federal employees may
lack confidence in the whistleblower protections because of
weak enforcement of the Whistleblower Protection Act. Federal
whistleblowers have told this Committee that they feel that
they have no place to turn to disclose information without
suffering retaliation. What steps will you take to restore
confidence in the Office of Special Counsel and specifically to
protect Federal whistleblowers?
Ms. Lerner. Thank you for that question. I think you raise
a really important issue, and I am very happy to be able to
address it. I, too, have heard that advice is often given to
people that the last place you want to go is the Office of
Special Counsel. If I am confirmed, I would like to find out
why that is and if that actually is the case.
My goal, if I am confirmed as Special Counsel, is to have
it be an agency where you feel comfortable referring your
constituents. If they come to your offices with a problem,
someone has a whistleblower complaint or a USERRA complaint or
a disclosure or feels that they are being discriminated against
because of a prohibited personnel practice, I want you to feel
very confident in referring them to the Office of Special
Counsel. I want the good government advocates and groups to
feel like the Office of Special Counsel is the first place they
would recommend that people come. And restoring the reputation,
improving the reputation of the office will be a very important
goal for me, if I am confirmed.
Senator Akaka. Thank you very much. We will continue with
questions. I would like to now call on my partner, Senator
Johnson, for his questions.
Senator Johnson. Thank you, Mr. Chairman.
Let us continue that one vein of questioning. There was a
study in 2010, an Office of Personnel Management Federal
Employee Viewpoint Survey. It says 63 percent of the
respondents felt they could disclose a suspected violation of
law, which means that 37 percent thought they would not. What
would be your theory in terms of your understanding of the
office? Why would it be that low?
Ms. Lerner. Well, first of all, I think it is very common
for people to feel hesitant about coming forward. In my
experience as a lawyer representing individuals with claims,
and certainly as a Special Inspector for the D.C. Department of
Corrections, I can tell you, it takes a lot of courage to come
forward. If people are going to come forward, there has to be a
safe and secure place for them to go where they feel like they
will be listened to, respected, taken seriously, and if they
request confidentiality, that confidentiality will be respected
to the extent possible.
So improving the perception of the Office of Special
Counsel is going to be really important so that people feel
comfortable coming there with a claim.
Senator Johnson. Can you walk me through--again, I am new
in town--the process of a whistleblower approaching the office
and exactly what steps are taken for the four different areas
that the office has responsibility for?
Ms. Lerner. Sure. There are four different areas. There are
people who have actual disclosures that they want to make of
waste, fraud, and abuse or a health and safety problem, and
those complaints would go to the Disclosure Unit.
For individuals who have a complaint about a prohibited
personnel practice, which includes retaliation for having been
a whistleblower as well as any other prohibited personnel
practice, their complaint would first go to the Complaint
Examining Unit, and that unit does an initial screen to
determine if there is enough there to have it referred to the
Investigation and Prosecution Unit.
For USERRA complaints, generally those come from the
Department of Labor initially, and the Office of Special
Counsel has the ability to bring a USERRA case to the Merit
Systems Protection Board (MSPB) for prosecution.
And the last category or last bucket of cases that the
Office of Special Counsel gets are Hatch Act claims, and those
claims or those complaints come in either directly from
individuals who have a complaint to make about something or
through an agency. Also, individuals may send an email or leave
a voice mail message on the hotline with a question for
clarification about how the Hatch Act actually works.
So that gives you a little bit of an overview.
Senator Johnson. So those are the complaints coming in.
When a complaint comes into the Disclosure Office, what does
the Disclosure Office do with that and how does the process
continue?
Ms. Lerner. I would like to be able to give you a full and
complete answer to that question, and until I am actually in
the agency, I am not sure I have all the right information to
provide to you at this point.
Senator Johnson. Fair enough. Do not worry about it.
Ms. Lerner. I just do not want to misspeak on that issue.
Senator Johnson. Sure. Let me ask you, how much time have
you been able to spend inside the office talking to some of the
managers who are there currently?
Ms. Lerner. I have actually not been inside the agency yet.
I have talked to the heads of some of the various units of the
Office of Special Counsel to try to get a sense of what they
are doing, what they think is working well, where improvements
may need to be made. But these have just been introductory
meetings.
If confirmed, I would anticipate having much longer and
more thorough conversations about the workings of each of those
units.
Senator Johnson. Do you have any sense right now, and this
is not derogatory to any individual in the office, of some
weaknesses there that need to be filled and do you have any
game plan in terms of what you may want to do in terms of first
actions?
Ms. Lerner. I think that is going to be a tough question to
answer until I am actually confirmed.
One area that I do have some concerns about kind of
prospectively is in the USERRA Unit because this unit is
getting a second demonstration project. There was a
demonstration project a few years ago where cases were divided
between the Department of Labor and the Office of Special
Counsel from the very beginning of a case so that odd-numbered
cases go to the Department of Labor, or vice-versa, and even-
numbered go to one of the agencies. And the expectation is that
there are going to be between 400 and 500 new matters for the
USERRA Unit, and right now, that unit only has three full-time
employees. So I am not exactly sure how that is going to work
at this point.
That is an area that I want to look at and figure out how
we can effectively service those complaints because as you
mentioned, Senator Akaka, under USERRA, we really need to
protect our returning service members. It is a law that was
enacted to make sure that there was not discrimination against
people who want to serve in the military or who have served in
the military, so that needs to be a very high priority.
Senator Johnson. You bring up the issue of resourcing, and
again, going back to a $1.65 trillion a year deficit, there is
certainly talk of some fixes where you do across-the-board cuts
in agencies. If presented with that situation, how would you
handle something like that?
Ms. Lerner. Obviously, every agency in the government right
now is being asked to do more with less. This particular agency
right now has an $18.5 million budget, which is kind of a speck
of dust on the overall budget, and my view is that I think this
is an agency that can save the government money. Just like you
would not fire Internal Revenue Service auditors to do fewer
audits of tax returns, I think cutting back on this particular
agency would be ill-advised.
There are studies that have been done, and I mentioned a
couple briefly in my opening statement that show that
whistleblowers can save the government money. I would like to
pursue that a little bit more and perhaps have the Government
Accountability Office (GAO) do a study about whether OSC
whistleblowers are saving the government money, as well.
So I think it is an investment that is well worth it for
this government. If there have to be cutbacks, we will deal
with them, and I am prepared to make the tough choices that may
need to be made. But without actually being there, it is hard
for me to tell you exactly how.
Senator Johnson. Thanks.
Senator Akaka. Thank you very much, Senator Johnson.
Ms. Lerner, as you know, I have fought for veterans'
protections, and I believe that enforcing the Uniformed
Services Employment and Reemployment Rights Act is one of the
OSC's most important responsibilities. I understand that this
office in the OSC has only three full-time staff members. Under
a three-year demonstration project, as you mentioned, the OSC
will investigate most USERRA claims from the outset, as well as
prosecuting them before the MSPB. How will you handle this
heavy load with only three staff members at this time?
Ms. Lerner. I believe the plan under this demonstration
project is to have half of the cases still initially looked at
by the Department of Labor and half of them will go to the
Office of Special Counsel. But it is going to be a massive
increase in workload for this unit.
I understand that there is a request to increase the
resources for this unit so that they can hire additional
lawyers and investigators, as they were able to do with the
last demonstration project, I believe. So I think,
realistically, it is going to be really tough for three people
to handle the expected number of claims--between 400 and 500.
Now, it may be less than that, but we need to be prepared, and
so as I mentioned earlier, that is going to be a very high
priority for me if I am confirmed. I think protecting our
service members is a vital responsibility of the Office of
Special Counsel.
Senator Akaka. The OSC also has an important responsibility
to train Federal agencies on their responsibilities under this
statute. Investing in this training may ultimately reduce the
number of USERRA claims that are filed, we hope. How will you
make sure agencies receive adequate training so they understand
their responsibilities under the law?
Ms. Lerner. I completely agree that training is a crucial
part of getting enforcement of the law. My view is agencies
want to be in compliance with the law, but they also need the
training to know how to be in compliance. They need to be
familiar with their responsibilities under USERRA.
There are a few ways that the Office of Special Counsel can
support the agencies in that effort. One is through the
certification program. Right now, the Office of Special Counsel
has a certification program that helps the agencies know what
their responsibilities are. It is a very minor or limited
process that the agencies need to go through to become
certified, but my understanding is that not a lot of agencies
have gone through it and are certified. But if they are, I
think that will be one mechanism to increase outreach, and
certainly USERRA would be an important part of that outreach.
The other way to do it is to do online computer programs.
That is a technology that exists that I think could be very
useful. Increasing the access to information through written
materials that go out, training materials, improving--I have
not actually looked in detail at the Web site for USERRA, but
the Office of Special Counsel could certainly provide a lot of
information on its Web site for both employees and managers on
USERRA.
So I think that there are a wide range of avenues that are
available, and I would be very interested in exploring it and
also hearing from this Committee about any ideas that you may
have to improve awareness about USERRA.
Senator Akaka. Ms. Lerner, the Hatch Act was last amended
by Congress in 1993. Since that time, there have been many
changes in the workplace, including significant technological
advances. Do you believe the Hatch Act should be reviewed in
light of these developments?
Ms. Lerner. Yes, Senator, I do believe it should be
reviewed, just like the Whistleblower Protection Act has gone
through reviews since it was initially enacted. Now that the
Whistleblower Protection Enhancement Act is hopefully on its
way to being enacted at some point, there should be changes, or
at least a review of how effective the Hatch Act is or if
changes need to be made given recent technologies. Things like
BlackBerrys and laptop computers, telecommuting, and
teleworking from home were not very common when the Hatch Act
was first enacted. So while I do not know right now what
recommendations I might want to make, I think it is worth a
review, and I would again want to work with this Committee on
that.
Senator Akaka. Thank you. As you know, the Office of
Special Counsel must work closely with the Merit Systems
Protection Board, the Office of Personnel Management, and the
Equal Employment Opportunity Commission (EEOC) to protect
Federal employees' rights and ensure that the Federal civil
service is free of prohibited personnel practices. What will
you do to ensure cooperation between the OSC and these
agencies?
Ms. Lerner. I think communication and collaboration with
these agencies will be very important. Starting with the MSPB,
the relationship of the Office of Special Counsel to the MSPB
is a little bit like a prosecutor to a judge because the OSC
brings cases to the MSPB. So there is a limit to how much
collaboration there can be, certainly on individual cases, with
the MSPB. However, the MSPB does have the ability to do studies
and outreach and education, and that is an area of overlap with
the OSC, and that would be an area that I would be very
interested in exploring.
Similarly, the Office of Personnel Management has the
ability to do outreach and education for the Federal workforce
and develop policies and procedures, and so I think that there
should be collaboration in those areas with the Office of
Personnel Management.
The EEOC handles prohibited personnel practices as well as
the OSC, and generally, the types of prohibited personnel
practices that go to the EEOC are things like race, sex, age,
and national origin discrimination. And the Office of Special
Counsel has to make sure that there is clear communication with
both complainants and with the EEOC because those cases have to
go to the EEOC, and there is no tolling arrangement so that the
time that Federal employees have to bring a case does not stop
if they come to the OSC first. So there needs to be
communication in that area.
Also, in terms of outreach and education, I think that the
OSC and the EEOC should collaborate in terms of educating the
workforce and trying to do whatever they can to make sure that
agencies are in compliance with the law.
Senator Akaka. Thank you very much for your responses.
Let me call on Senator Johnson for his further questions.
Senator Johnson. Well, Senator Akaka, you did a great job
asking questions. I have been ticking off the same ones I was
going to ask, but let me go back a little bit and talk about
how tight the budget is. My follow-up was really going to be,
so what case would you make in terms of securing your budget or
possibly even increasing it, because this is an important area,
and you answered that very well, quite honestly.
Ms. Lerner. Thank you.
Senator Johnson. You did mention studies that had been
made.
Ms. Lerner. Yes.
Senator Johnson. Have you seen any dollar estimates of
savings from whistleblowing?
Ms. Lerner. The only studies I have been able to find that
specifically address the dollar, bottom-line numbers are in the
private sector and with the Federal False Claims Act. There
have not been any studies that look at the OSC and what savings
there might be. I would very much like to pursue that, and
perhaps in partnership with the GAO, which does those types of
studies. The MSPB also has a way to do those types of studies,
and I am not sure right now which is the appropriate agency,
but certainly GAO, I think, would be one possibility.
We know that in the private sector, whistleblowers save a
lot of money. As I mentioned in my opening statement, they save
more than internal compliance officers, Federal law
enforcement, and inspector generals combined. So I think the
potential is really there.
There is also a preventative effect. By having an agency
like the Office of Special Counsel, it is hard to quantify how
much we are saving just having an enforcement body there to
prevent these kinds of things from happening. I think if we did
not have this agency for enforcement and for whistleblowers to
come to with waste, fraud, and abuse, there would not be any
check on it. And that will be hard to quantify, but it is
something to keep in mind.
Senator Johnson. Let me just add, I would be happy to work
with you in terms of developing that case and trying to get
those studies out of GAO. I think that is extremely important.
This is not a ``gotcha'' question, but in your answer to
question 10 in the pre-hearing questionnaire, you were talking
about respect for the OSC. Can you tell me what you were
talking about, what you sensed, or what you know about respect
or lack of respect for the OSC currently?
Ms. Lerner. The kinds of things that I have heard are the
sorts of things that Senator Akaka referred to in his opening
statement, or perhaps it was one of your questions, Senator,
that people are very hesitant to come to the Office of Special
Counsel right now. And as I mentioned, there is often a
hesitancy to come forward with a complaint anyway. People do
not want to be viewed as complainers or whiners, and they know
that if they do, there is often retaliation in the workplace.
It is just a fact of life. And so we have to do everything we
can to make sure that the Office of Special Counsel is a safe
and secure place for people to come with whistleblower
complaints, disclosures, and prohibited personnel practice
complaints.
Outreach to the agencies, outreach to the good government
groups, outreach to the unions, all of those things, I think,
will be important. I think strong leadership will help. If
people see that the agency is willing to bring cases to the
MSPB, if they feel like it is a vigorous law enforcement
agency, I think that will certainly help its reputation. I am
sure there are other steps, as well.
Senator Johnson. You are kind of swerving into my next
question here because when you were answering Senator Akaka's
question on awareness for USERRA, what was going through my
mind again is proactive versus reactive.
Ms. Lerner. Yes.
Senator Johnson. My guess is this agency is generally
reactive. People come and they lodge a complaint and then they
start acting on it. What steps could we take to make this
office far more proactive? You were kind of addressing some of
those, but do you have further comments on that?
Ms. Lerner. One mechanism that is in place right now is the
certification program, and I do not know how active it is right
now. My sense is that--certainly not all the agencies are part
of it. We might want to think about whether it makes sense to
make that certification program mandatory because right now, it
is a voluntary program. Agencies can choose to participate or
not. And it is not really a very cumbersome program. I mean, it
is really just about making sure that the agencies are getting
the word out to their employees, that they are providing
materials on the rights, how to file a complaint, doing
education, and I think that is an area that would very easily
lend itself to being proactive.
I am sure that there are others, as well. More
communication with the Federal employees. We send information
out to Federal employees about the Thrift Savings Plan by mail.
When people are hired, they get, I am sure, a packet of
material about personnel issues. We should probably think about
including in the packet of materials that employees get
information on the Office of Special Counsel. I do not think a
lot of employees know that the Office of Special Counsel even
exists right now. So education and communication are going to
be really important.
Senator Johnson. Well, I am sure both Senator Akaka and I
would love to work with you on that, which brings me, I guess,
to my last question, which is you certainly expressed a desire
to work with us cooperatively. Do you have some concept in your
mind what type of regimen that would be, what that type of
cooperation would look like?
Ms. Lerner. Well, informal cooperation is always good. I do
not think it should necessarily have to be through a hearing. I
am happy to come back and testify if you feel the need to have
hearings. That is certainly an important role for this
Committee. But I would like there to be a more informal back
and forth, and I am happy to communicate with the staff. I am
happy to communicate directly with the Members of this
Committee in any form or in any way that you believe would be
appropriate.
Senator Johnson. I appreciate that.
Senator Akaka. Thank you very much, Senator Johnson, for
your questions. I thank you for being so thorough with your
questions.
And thank you for your responses, Ms. Lerner. At this time,
there are no further questions. There may be additional
questions, however, from Members for the record, and we will
submit them to you in writing.
Ms. Lerner. Thank you.
Senator Akaka. The hearing record will remain open until
noon tomorrow for Members of this Committee to submit
additional statements or questions.
I want to thank you very much, and your family and your
friends, Ms. Lerner, for being here. I am very pleased to be
able to hold a hearing for such a well-qualified nominee.
Ms. Lerner. Thank you.
Senator Akaka. It is my hope that the Committee will vote
soon and that your nomination will be considered by the full
Senate very shortly. So thank you very much. I want to wish you
well in your future work.
This hearing is adjourned.
[Whereupon, at 10:52 a.m., the Committee was adjourned.]
A P P E N D I X
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