[Senate Hearing 115-332]
[From the U.S. Government Publishing Office]
S. Hrg. 115-332
NOMINATIONS OF CLAIRE M. GRADY AND
HENRY KERNER
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOMINATIONS OF CLAIRE M. GRADY TO BE UNDER SECRETARY FOR
MANAGEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY AND
KENRY KERNER TO SPECIAL COUNSEL, OFFICE OF SPECIAL COUNSEL
__________
JUNE 28, 2017
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana KAMALA D. HARRIS, California
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Margaret E. Daum, Minority Staff Director
Anna Laitin, Minority Policy Adviser
Laura W. Kilbride, Chief Clerk
Bonni Dinerstein, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Johnson.............................................. 1
Senator Heitkamp............................................. 2
Senator Carper............................................... 11
Senator McCaskill............................................ 14
Senator Hassan............................................... 16
Senator Daines............................................... 18
Prepared statements:
Senator Johnson.............................................. 25
Senator Heitkamp............................................. 27
WITNESSES
Wednesday, June 28, 2017
Claire M. Grady, to be Under Secretary for Management, U.S.
Department of Homeland Security
Testimony.................................................... 4
Prepared statement........................................... 29
Biographical and financial information....................... 31
Letter from the Office of Government Ethics.................. 50
Responses to pre-hearing questions........................... 53
Responses to post-hearing questions.......................... 73
Letter of support............................................ 85
Henry Kerner to be Special Counsel, Office of Special Counsel
Testimony.................................................... 6
Prepared statement........................................... 86
Biographical and financial information....................... 89
Letter from the Office of Government Ethics.................. 108
Responses to pre-hearing questions........................... 111
Responses to post-hearing questions.......................... 140
NOMINATIONS OF CLAIRE M. GRADY AND HENRY KERNER
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WEDNESDAY, JUNE 28, 2017
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:58 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Ron Johnson,
Chairman of the Committee, presiding.
Present: Senators Johnson, Daines, McCaskill, Carper,
Tester, Heitkamp, Peters, Hassan, and Harris.
OPENING STATEMENT OF CHAIRMAN JOHNSON\1\
Chairman Johnson. Good morning. This hearing will come to
order.
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\1\ The prepared statement of Senator Johnson appears in the
Appendix on page 25.
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This hearing is the nomination hearing to consider Claire
M. Grady to be Under Secretary for Management of the U.S.
Department of Homeland Security (DHS), and Henry Kerner to be
the Special Counsel, Office of Special Counsel (OSC).
Today the Committee will consider two nominations within
its jurisdiction that are integral to ensuring the Department
of Homeland Security is efficient and effective, and that
people who raise issues of waste, fraud, and abuse throughout
the Federal Government are protected.
The Under Secretary for Management for the Department of
Homeland Security is responsible for ensuring that DHS'
workforce has clearly defined responsibilities and the means to
efficiently carry out the Department's mission. The Under
Secretary of Management's office handles a budget of just under
$1 million--I have to admit I am surprised at how small it is
based on the responsibility--with approximately 1,800 full-time
equivalents.
More broadly, the Under Secretary of Management oversees
the Department's budget of almost $66 billion, which is a whole
lot larger, the appropriations associated with that budget,
expenditure of funds, accounting, and finance; procurement
processes; human resources (hr) and personnel of approximately
240,000 employees; information technology (IT) systems,
facilities, property, equipment, and other material resources;
and if that is not quite enough, also performance measurements.
Several programs that fall squarely under the Under
Secretary of Management's responsibilities have been flagged by
nonpartisan government watchdogs as being at high-risk for
abuse, including the Department's management of human capital--
including employee morale and engagement, and cohesion among
component leadership--management of its grant and acquisition
programs, and the Department's cybersecurity.
Let me just say, Ms. Grady, I appreciate your willingness
to step up to the task. It is a big task, and we certainly wish
you well.
The Special Counsel of the Office of Special Counsel--that
is quite the title--is the head of the Office of Special
Counsel, an independent agency created by Congress in 1979. The
Office of Special Counsel has over 100 employees and operates a
budget of almost $25 million each year. The Office of Special
Counsel is charged with: one, providing a safe haven for
Federal employees to make protected disclosures--with the
exception of certain intelligence agencies; and, two,
investigating allegations of whistleblower retaliation or other
prohibited personnel practices. Federal employees are protected
when they disclose allegations of: a violation of law, rule, or
regulation; gross mismanagement or waste; abuse of authority;
or dangers to public health or safety.
If the OSC reviews a protected disclosure and finds there
is a ``substantial likelihood'' of wrongdoing by an agency, it
transfers the matter to the agency for investigation and issues
a report to Congress and the President. It cannot, however,
force the agency to take other action. If the OSC finds that an
individual faced retaliation for the disclosure, it may
negotiate disciplinary action with the agency against the
retaliating employee and prosecute when appropriate.
The OSC also investigates Hatch Act violations and protects
the employment and reemployment rights of civilian military
members. Finally, it plays an important role in training
agencies on how to handle whistleblowers and employees on their
rights through its outreach and 2302(c) Certification Program.
I have been on this Committee now 6\1/2\ years. Both of
these positions, both of these offices, are integral to our
oversight capability and our duty also to protect
whistleblowers. So I take these nominations very seriously, and
I truly do appreciate that the President has nominated two
high-quality individuals to fill these positions, and I really
appreciate your willingness to serve and want to thank you for
your testimony today and coming before the Committee for your
nomination hearing.
With that, I will turn it over to Senator Heitkamp, who has
her own opening statement.
OPENING STATEMENT OF SENATOR HEITKAMP\1\
Senator Heitkamp. Thank you, Mr. Chairman. First, I want to
acknowledge that Ranking Member McCaskill wishes she could be
here today. I know she appreciates the nominees' work with hers
and Chairman Johnson's staff throughout this process. Claire
sits on the Senate Armed Services Committee. One of the great
roles is to do defense authorization. They are in that process
right now, and so it is critical that she be there to make sure
that she is participating in that process. So I expect to see
her a little bit later on.
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\1\ The prepared statement of Senator Heitkamp appears in the
Appendix on page 27.
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I am honored that Ranking Member McCaskill asked me to step
in for her this morning, and I am looking forward to hearing
from both nominees regarding how they can best serve the
American people through their roles in the Office of Special
Counsel and the Department of Homeland Security, if confirmed.
At the heart of the Office of Special Counsel is the
mission to protect Federal employees from prohibited personnel
practices, and specifically from illegal retaliation against
whistleblowers.
As the Ranking Member of the Homeland Security and
Governmental Affairs Subcommittee with oversight over the
Federal workforce, I cannot emphasize enough what a critical
time it is to make sure that our Federal workforce knows that
they have a safe and independent agency to turn to in the
Office of Special Counsel.
In 2016 alone, the Office of Special Counsel received over
6,000 new matters. That was a 53-percent increase from 2010.
That is a tremendous upturn, and it speaks not only to the
large number of prohibited personnel practice complaints in
general, but also to the trust that the Federal employees had
in Special Counsel Lerner during her tenure at the OSC.
At a time when our Federal workforce is undergoing a number
of new challenges such as reorganization at the behest of the
Office of Management and Budget (OMB), it is important that the
Special Counsel remain an independent, just, fair, and unbiased
voice when it comes to protecting Federal employees when they
report any wrongdoing within their respective agencies.
The DHS Under Secretary for Management plays also a
critical role in achieving excellence in all areas of DHS
mission support. While DHS has made considerable progress in
recent years to unify its component agencies, major management
challenges remain in the four key areas of human capital,
acquisitions, fiscal management, and IT.
Failure to address these challenges could have serious
consequences for U.S. national and economic security, and that
is why it is absolutely critical we have a qualified individual
at the helm.
Specifically, we need someone with demonstrated leadership
and experience, a robust understanding of DHS and its various
components, a willingness to engage with various stakeholders,
and the ability to find opportunities to improve the way DHS
functions.
We appreciate the nominees' time today, and I am looking
forward to hearing Ms. Grady's and Mr. Kerner's responses to
the Committee. Welcome. We are grateful when we see candidates
of the caliber that we have in front of us willing to offer
their service to the people of our great country. And so,
again, congratulations to you and your family for putting your
name forward. I look forward to the discussion.
Chairman Johnson. Thank you, Senator Heitkamp.
It is the tradition of this Committee to swear in
witnesses, so if you will both stand and raise your right hand?
Do you swear that the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Ms. Grady. I do.
Mr. Kerner. I do.
Chairman Johnson. Please be seated.
I was remiss, by the way, in not welcoming your families--I
am sure you have some family members here, and I will let you
introduce your family members, but welcome.
Our first nominee, is the President's nominee to be the
Under Secretary for Management of the U.S. Department of
Homeland Security, Ms. Claire M. Grady. Ms. Grady has extensive
experience in acquisitions and procurement. She is currently
the Director of Defense Procurement and Acquisition Policy at
the Department of Defense (DOD) and previously served as the
Deputy Assistant Commandant for Acquisition and Director of
Acquisition Services for the United States Coast Guard (USCG).
Ms. Grady also has previously served at the Department of
Homeland Security as the Director of Strategic Initiatives in
the Office of the Chief Procurement Officer. Ms. Grady has an
MBA degree from the University of Maryland, a Master of Science
degree from the National Defense University's Industrial
College of the Armed Forces, and a Bachelor of Arts degree from
Trinity University. Ms. Grady.
TESTIMONY OF CLAIRE M. GRADY,\1\ TO BE UNDER SECRETARY FOR
MANAGEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY
Ms. Grady. Good morning. Chairman Johnson, Ranking Member
McCaskill, and distinguished Members of this Committee, it is
an honor to appear before you today as the President's nominee
to be the Under Secretary for Management for the Department of
Homeland Security. I am grateful to the President, Secretary
Kelly, and Deputy Secretary Duke for the trust and confidence
they have placed in me.
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\1\ The prepared statement of Ms. Grady appears in the Appendix on
page 29.
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I would like to thank the Members of this Committee and
their staffs for the important work you do. I appreciated the
opportunity to speak with several of you about your thoughts
and priorities regarding management operations of the
Department of Homeland Security. For those of you that I have
not yet had the privilege to meet during this process, if
confirmed, I look forward to the opportunity to do so in the
future.
I would also like to thank the many current and former
employees of the Department who have contacted me throughout
this process to offer their support and encouragement. It is
truly the men and women of DHS who ensure mission success,
frequently working very long hours and overcoming challenging
circumstances to do so. There is no more dedicated or talented
group of professionals anywhere in the world, and their
outreach and expressions of support have been both humbling and
inspiring.
Before I speak further about the important work the
Department of Homeland Security does to safeguard our Nation, I
would like to express my gratitude to the friends and family
who were able to attend in person to support me today,
including: my mother, Mary Grady; my aunt and uncle, Helen and
Vincent Walters; my son-in-law, Lieutenant Michael Berl; my
oldest sister, Kelly Grady, and her husband, Michael Zuckerman;
and Maggie Meisberger, the oldest of my five nieces--each of
whom is amazing in their own right.
I would also like to thank my husband, Colonel Rick
Cornelio. I am so proud of him and his service to the country.
He served our country 34 years in uniform in the Air Force and
continues to serve now as a member of the civil service. His
love and support are a tremendous source of strength for me.
Senator Carper. Mr. Chairman, if I could? Could I ask the
folks you just named just to raise your hand? Is that your mom
over to the right?
Ms. Grady. It is.
Senator Carper. Good work, Mom. [Laughter.]
Ms. Grady. Thank you, sir.
More than 15 years after September 11, 2001, the threats to
our Nation, our people, and our way of life remain. The world
is a dangerous place, and the velocity of threats is ever
changing and accelerating. Round the clock, whether at a
computer, in our communities, at an airport, at a port of entry
(POE), at a desk, in the air, in the classroom, on the border,
in a command center, or in a lab, the professionals of DHS
valiantly serve our Nation and keep us safe. They have
committed themselves to thwarting our Nation's adversaries--
natural or man-made--in an environment where a single incident
can have devastating consequences. And if tragedy were to
befall our Nation, they are prepared to respond and aid in the
recovery. I can think of no greater honor than to be considered
for a position to help those dedicated men and women safeguard
our Nation by strengthening and integrating the Department's
management functions.
Let me share some more information about my professional
background. I am a career Federal civil servant and have had
the privilege of supporting our Nation for more than 25 years.
I started as a GS-7 intern, progressed through positions of
increasing responsibility and scope, and have been a member of
the Senior Executive Service (SES) for over a decade. I served
in senior positions at the component and headquarters levels of
two different agencies--the Departments of Defense and Homeland
Security--leading large, diverse, and geographically dispersed
workforces to deliver results.
My parents raised me to value hard work, discipline, and
perseverance. They instilled in me the expectation that when
things get difficult, it is our obligation to help--to take on
the tough challenges and make things better. I was never more
aware of this responsibility than when approached to consider
this position. I recognize the many challenges that DHS has:
the diverse mission set, myriad stakeholders, complex
oversight, and the urgency and criticality of the work itself.
I know none of this is easy. But I am impressed by the progress
that has been made through the efforts of not just a few, but a
multitude of individuals throughout the Department at all
levels.
If confirmed, I would be committed to building on the great
things that are underway throughout DHS, striving for
excellence in all areas of mission support, and delivering
maximum value for every dollar entrusted to the Department. I
would welcome the opportunity to engage collaboratively with
Members of this Committee and other Members of Congress to
assist and inform their important work of oversight and support
for the Department. Finally, I would be dedicated to ensuring a
culture of respect and professionalism; the men and women of
Homeland Security and our Nation deserve nothing less.
Thank you for your consideration, and I look forward to
answering your questions.
Chairman Johnson. Thank you, Ms. Grady.
Our second nominee is the President's nominee to be the
Special Counsel of the Office of Special Counsel, Henry Kerner.
Mr. Kerner is currently the assistant vice president of
investigations at the Cause of Action Institute. Prior to that,
he was the Deputy Director of Investigations of the House
Oversight and Government Reform Committee and the Staff
Director and Chief Counsel of this Committee's Permanent
Subcommittee on Investigations (PSI) under then-Ranking Member
McCain. Mr. Kerner also has years of litigation experience
working as a deputy district attorney at the Los Angeles County
District Attorney's Office. Mr. Kerner has a law degree from
Harvard University and a master's and bachelor's degree from
UCLA.
Welcome, Mr. Kerner. You may want to introduce your family
as well.
STATEMENT OF HENRY KERNER,\1\ TO BE SPECIAL COUNSEL, OFFICE OF
SPECIAL COUNSEL
Mr. Kerner. Thank you, Mr. Chairman.
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\1\ The prepared statement of Mr. Kerner appears in the Appendix on
page 86.
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Chairman Johnson, Ranking Member McCaskill, and
distinguished Members of this Committee, thank you for the
honor to appear before you today and for the privilege of your
consideration of my nomination. I am humbled and honored to
have been nominated by the President to lead this important
office that protects the whistleblowers so vital to holding our
government accountable.
I would like to start by thanking a few people. First and
foremost, a big thank you to my family who are in California,
so they are watching online. But I wanted to thank my parents
in particular, Mark and Larissa. They have been tremendously
supportive, and I appreciate their frequent encouragement and
unconditional love.
I would also like to thank Katherine and Nick Rossi, who
are sitting behind me, who have been tremendous friends. And I
am terrifically grateful to Senator John McCain, who gave me
the opportunity to serve as his Staff Director on this
Committee's Permanent Subcommittee on Investigations during the
113th Congress, making today something of a homecoming to me--
although I must confess it is different sitting on this side of
the dais.
Additionally, I am heartened and touched by the attendance
of so many current and former colleagues and friends of mine.
They have come to support me, and they are here in the
audience, and I really appreciate that support. I have learned
so much from all of them, and I just appreciate their continued
support and affection.
A special thank you to John Vecchione and Julie Smith of
Cause of Action Institute for being so accommodating with me
during this confirmation process.
Last, I would be remiss if I failed to express my
appreciation to the outgoing OSC leadership. Special Counsel
Carolyn Lerner, Acting Special Counsel Adam Miles, along with
the career staff at OSC should be commended for dramatically
increasing productivity at OSC and significantly advancing
protections for whistleblowers. I am especially grateful that
Mr. Miles, who is currently the Acting Special Counsel, decided
to bring on Mr. Tristan Leavitt, also sitting directly behind
me, as the new Principal Deputy Special Counsel to assist with
the transition process. Mr. Leavitt is an 8-year Hill veteran,
I have worked with him previously, and he is just exceptionally
talented and completely committed to the mission of the agency.
I am absolutely thrilled he chose to join OSC last week, and I
look forward to working with him again, should I be confirmed.
As for my own background, I have been a government lawyer
and counsel for nearly my whole professional life. I served as
a prosecutor in Los Angeles County for nearly two decades, most
of which I spent in the city of Compton, California. That
experience taught me how crucial it is for citizens to have
confidence in the law and the legal system--to trust, and be
given tangible reasons to believe, that government officials
with integrity are striving to apply the law fairly to each and
every person.
Once I transitioned to the Hill, I was one of the primary
congressional investigators of the Fast and Furious scandal,
which involved allegations of ``gunwalking'' made by
whistleblowers to Congress. My work with whistleblowers
continued when I became the minority staff director on PSI and
again when I returned to the House Oversight and Government
Reform Committee in a leadership role. Through my interactions
with whistleblowers, I have learned about what animates people
to speak out when others may not and what a vital impact such
brave civil servants can have on our country's policies.
To that end, I am particularly pleased that this Committee
has done so much to advance legislation to protect
whistleblowers. Just last month, the Senate passed this
Committee's Dr. Chris Kirkpatrick Whistleblower Protection Act.
It was developed in response to the Committee's work with
Department of Veterans Affairs (VA) whistleblowers, but it will
also help Federal employees governmentwide once enacted.
In addition, I know that Chairman Johnson and Ranking
Member McCaskill and their staffs have put an immense amount of
work into the Office of Special Counsel Reauthorization Act,
which was reported to the Senate floor last month. I have
already heard from staff at OSC about how beneficial that
legislation is in clarifying Congress' longstanding intent to
provide OSC with access to all materials necessary to carry out
its responsibilities.
These and other provisions like them, such as the Follow
the Rules Act and S. 1083, which the President signed into law
just yesterday, will greatly strengthen my capacity to protect
whistleblowers should I be confirmed as Special Counsel. For
that I am grateful.
In closing, I would just like to highlight a few of my
goals for OSC, should I be confirmed, based on my discussions
to date with members and staff in Congress, stakeholders, and
OSC employees.
First, as I already mentioned, I want to continue to build
on Ms. Lerner's successes at OSC.
Second, I want to continue to implement the information
technology system upgrades currently in progress, while paying
special attention to cybersecurity and caseload efficiency
gains.
Third, I want to address how best to optimize intake of an
ever-expanding caseload in order to provide appropriate
response times to whistleblowers.
Fourth, I want to increase education and outreach with
agency and congressional staff, especially with regard to the
Hatch Act and whistleblowers' rights.
And, finally, I want to place an increased emphasis on
litigation to promote accountability, deter future violations,
and strengthen OSC's bargaining position when negotiating
settlement agreements for whistleblowers.
If confirmed, I look forward to the opportunity to work
collaboratively with this Committee and other stakeholders to
protect one of the Federal Government's most important assets:
dedicated Federal employees who are willing to ``blow the
whistle'' on misconduct and violations of the public trust.
Thank you, and I would be happy to answer any questions the
Committee may have.
Chairman Johnson. Thank you, Mr. Kerner.
There are three questions the Committee asks every nominee
for the record, and I will ask the questions, and each of you
answer separately in order.
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. Grady.
Ms. Grady. No.
Chairman Johnson. Mr. Kerner.
Mr. Kerner. No.
Chairman Johnson. 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. Grady.
Ms. Grady. No.
Chairman Johnson. Mr. Kerner.
Mr. Kerner. No.
Chairman Johnson. Do you agree without reservation to
comply with any request or summons to appear and testify before
any duly constituted committee of Congress if you are
confirmed? Ms. Grady.
Ms. Grady. Yes.
Chairman Johnson. Mr. Kerner.
Mr. Kerner. Yes.
Chairman Johnson. Thank you. I just want to say I
appreciate the Members' being here, and in the interest and
being respectful of your time, I am going to delay my own
questioning, and I will go right to Senator Heitkamp, if you
are ready.
Senator Heitkamp. I am. Thank you, Mr. Chairman.
Obviously, I know that this role of being Special Counsel
is absolutely critical to making sure that we have a role here
in oversight. So for me, a lot of what you are going to be
looking at is stuff that over the long haul is absolutely
critical to us performing the oversight function and mission.
And so I find it, rewarding and--not rewarding, but I find
it, a very good fit that someone has been nominated with so
much Hill experience, because I think you can appreciate and
understand how critical that role is to the work that this
Committee does, either in the Permanent Subcommittee on
Investigations or certainly just oversight in agencies.
One of the questions that we have been very concerned with
on this Committee is the issue of whether requests from
Committee Members, regardless of whether you sit in that chair
or in any other chair, whether those requests will be
fulfilled. The Office of Legal Counsel has issued an opinion.
Are you both familiar with that opinion? Ms. Grady.
Ms. Grady. Yes, I am.
Senator Heitkamp. Mr. Kerner.
Mr. Kerner. I am as well, yes.
Senator Heitkamp. OK. Obviously, we believe that the
opinion--I think the opinion is shortsighted and probably
wrong, but the opinion does offer an opportunity to exercise
some discretion.
Ms. Grady, if I send you a letter and ask for information,
would you respond to that letter?
Ms. Grady. Absolutely.
Senator Heitkamp. Thank you. Mr. Kerner.
Mr. Kerner. Absolutely.
Senator Heitkamp. Thank you. I will get that out of the
way.
Senator Carper. That was the right answer.
Senator Heitkamp. Yes, that is the right answer.
[Laughter.]
Chairman Johnson. Yes. Thank you.
Senator Heitkamp. Let us get to the personnel and resources
at the Office of Special Counsel. I along with the Chairman are
concerned about resources and whether you have enough resources
to do the important work that you need to do. Can you tell me,
have you looked at the resourcing issues? And what would be
your intention if you believed you needed more resources? How
would you approach getting that allocation or appropriation?
Mr. Kerner. Yes, so Ms. Lerner talked a lot about how she
has been able to manage more with less. There have been over
6,000 cases. That is a huge record. Yet the agency has been
able to get better and better results. The way they have done
it is they have combined certain functions; they have become
more efficient. For example, they have assigned one lawyer to
four different functions as opposed to having four different
people looking at it. So making those efficiencies, they have
been able to utilize their resources better.
I think one of the things that I would look to is in the
OSC Reauthorization Act, it talks about--OSC has a mandate to
investigate all complaints, but some of them are on their face
not going to work. They are not in the right--they should not
even be at OSC. They have passed the statute of limitations.
There are other obvious disqualifiers. In the act, there is an
opportunity for OSC to dispense with those without having even
to conduct an investigation and go through a lot of staffing on
that. So that would be, for example, very helpful.
But in terms of other things, the IT system is going to be
redone at OSC. Hopefully, it will be more efficient. Hopefully,
the case intake is absolutely crucial because once you
determine what cases go through the process, that requires an
investment of resources. So once we have----
Senator Heitkamp. Is the answer you think you are going to
manage with what you have so far? But what happens if you get
there and you get double the amount of complaints? How will you
manage that?
Mr. Kerner. Absolutely. If the resources are not enough and
the work has to be done, we will come to the Congress and ask
for resources, and the appropriation has gone up a little bit,
so to the extent that the Congress funds OSC to a greater
degree, that would obviously be very helpful.
Senator Heitkamp. One of the concerns that I have is
communication back to supervisors. How do you plan to
communicate to supervisors that listening to their employees is
in the best interest of their organization, might be, in fact,
a way that they can see your face by actually encouraging them
to listen, to reach out to employees, to actually use better
management practices? What role can you play in improving that
level of supervision?
Mr. Kerner. Absolutely. One thing you have to set is you
have to set a tone where that challenge process is respected.
You have to allow people to bring concerns to their chains, to
supervisors, and not be punished for it. It would be ultimately
very ironic if an agency whose main task is to protect
whistleblowers and protect the disclosures punishes its own
people for disclosures. We are going to try not to do that.
Senator Heitkamp. Ms. Grady, obviously personnel and
recruitment is going to be a huge issue, especially if we see
the level of plus-up that we are talking about. We have been
doing some legislation here that we think will help streamline
it, but I am deeply concerned about the lack of resources on
the Northern Border and how discouraged staff gets on the
Northern Border when they do not get any additional help.
As Under Secretary for Management, what strategies can you
use to address recruitment, retention, and morale challenges?
How will you advocate for those internally?
Ms. Grady. The human resources are the essential element of
the Department, and filling critical vacancies is absolutely an
essential part of the Department's success. So, if confirmed, I
would work with the Chief Human Capital Officer (CHCO) to look
at what is working and what is not working. Based on actual
data, we would be able to develop and formulate a plan to
better address those gaps, those vacancies as those were to
occur, and look to take advantage of the flexibilities that
this Committee has given to the Department.
Senator Heitkamp. This is a really critical issue, and we
hear the same answer. I think every year that I have been on
this Committee, which has been my entire term in the Senate, we
talk about morale at DHS; we talk about recruitment and
retention; we talk about the lack of consolidated, visionary
mission, understanding. And so, we need to quit talking about
it, and we need to develop strategies that actually achieve the
result.
Ms. Grady. I fully agree, and I believe the Department has
started to make progress and will continue to make progress
because, instead of studying the problem, there are action
plans that are resourced associated with furthering the efforts
of employee engagement. Those action plans are based on
analysis of data at a lower level, not looking at the
Department in aggregate, which significantly masks the actual
problems, because you want to go after the root cause, not the
symptoms.
Senator Heitkamp. Thank you.
Chairman Johnson. Thank you, Senator Heitkamp. Senator
Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Colleagues, this is a woman after my own
heart. These guys up here have heard me talk about root causes
for much of the last--I do not know how many years. It is a
pleasure to hear it out of your lips.
Mr. Kerner, did you say your parents might be tuned in from
the west coast?
Mr. Kerner. Yes. They are in Los Angeles.
Senator Carper. Mark and, what is it, Larissa?
Mr. Kerner. Larissa.
Senator Carper. I do not know if they are watching, but if
they are, just tell them one of the joys of this job is we get
to nominate young men and women to attend the Naval Academy,
West Point, Air Force Academy, and the Merchant Marine Academy.
When our nominees win appointments to those academies, we have
the chance to call them and congratulate them, and I always ask
to talk to the parents of our nominees. I always tell them this
message: ``Thank you for raising this young man or young woman
and preparing them for this opportunity, this responsibility.''
I would say the same to Mark and Larissa.
I would say, Claire, to your mom, ``Thank you for raising
this kid. It looks like she has turned out pretty well.''
I have had the privilege of serving on this Committee, this
is my 17th year, and I have been very much involved, as some of
you may know, in trying to work with my colleagues on making
sure that the Department of Homeland Security has what it needs
in order to be successful. One of those is excellent
leadership, and we worked very closely--Claire and Ron and
myself worked very closely with Jeh Johnson, with Ali Mayorkas,
to make sure that they had top-tier Senate-confirmable
positions filled with excellent people. One of those is
following Russ Deyo, who headed up the management section,
Under Secretary for Management, and I think you probably know
him. Is that right? OK. And Rafael Borras. Did you know Rafael?
One of the things I talked with Mr. Kerner about yesterday
was making sure that he and Carolyn Lerner had a good ongoing
conversation. I got to be Governor of Delaware and had the
blessing in my life of having Mike Castle as my predecessor and
a great colleague, mentor, Pete du Pont before that, others
before that, and they served me as a great source of
inspiration and terrific mentors, and I made good, full use of
them. I would just ask how you might have that kind of
relationship with Russell or Rafael. Could you? Would you?
Ms. Grady. Absolutely. They have valuable insight, having
been in the position and worked at some of the tough challenges
and made progress. Both them, Paul Schneider, and Elaine Duke,
there has been a tremendous source of wisdom from those
predecessors.
I have not yet had an opportunity to talk to either Russ or
Rafael, but I have talked to Chris Cummiskey, Paul Schneider,
and Elaine Duke in preparation for this and would solicit their
advice and input in terms of their thoughts on what they wished
they could have gotten done and what impediments they
encountered.
Senator Carper. What I would do from time to time as
Governor, a new Governor, was invite them to come by the
Governor's house and have lunch together, or breakfast, and
just talk. I would say, ``Give me some good advice.'' And, boy,
they would. I benefited enormously from that. You might want to
keep that in mind.
I first heard the words ``St. Elizabeths,'' I do not know,
maybe 6 or 7 years ago, and I thought, Why would anybody want
to go out there and create a headquarters for the Department of
Homeland Security? That does not make any sense. Then I talked
to Tom Ridge, who is a former Secretary; Judge Chertoff, former
Secretary; Janet Napolitano, former Secretary; and then Jeh
Johnson, and I said, ``Why do we need to spend all this money
on St. Elizabeths? '' And they said, basically to a person,
``This Department is scattered all over Hell's Half Acre. We
have 40 or 50 entities that are spread all over the greater
Washington area, into Virginia and Maryland and across D.C.,
and it is an almost impossible management task for us to get
our hands around.''
Would you speak to that?
Ms. Grady. Certainly. I believe the consolidation of DHS at
St. Elizabeths, creation of a DHS headquarters is absolutely
essential in terms of furthering the unity of effort across the
Department. I believe it will significantly help to strengthen
and integrate the Department and accelerate decisionmaking.
Senator Carper. Thank you. I agree. I am Tom Carper, and I
approve that message.
Does the name Jane Holl Lute mean anything to you.
Ms. Grady. Yes, sir.
Senator Carper. She was Deputy Secretary when Janet was our
Secretary, and do you know what she used to do? She would take
the High-Risk List from the Government Accountability Office
(GAO) that comes out every 2 years, high-risk waste, wasted
money, and the Department of Homeland Security figured most
prominently every 2 years. It was released at the beginning of
every Congress. Jane Holl Lute just started going to meet with
the senior, the top people at GAO, and saying, ``How do we get
off of your list?'' They worked it, they worked it, they worked
it. The Department of Defense, as my colleagues know, is still
looking for their first clean audit, and, lo and behold, the
Department of Homeland Security in less than 10 years has
gotten three, four, five of them. They really set a good
example of how this can be done.
Talk to us about the High-Risk List. I like to describe it
as our--what do I call it, Claire? I call it our ``to-do
list,'' our to-do list in this Committee. What do you think?
Ms. Grady. Certainly. I very much respect GAO's role in
strengthening government and coming up with better ways to
govern and execute the functions across the agencies. The High-
Risk List is a very important look that they take across the
Federal Government, and the work that DHS has done with GAO,
not just in identifying those risks but looking at what
corrective action plans and resources and sustained leadership
commitment are necessary to start to address those. The
Department has made tremendous progress in terms of working
away at that list.
There are still a number of significant challenges, but to
me, what was impressive is the Department's leadership
commitment to work through those, that they have resourced it,
they have action plans to address it, and they are measuring
progress against it to get to that sustained progress necessary
to get off the list.
I also think the continued engagement with GAO is
absolutely essential to continue to work with that, and they
are a very valuable resource to identify opportunities to
improve.
Senator Carper. Good. Sometimes I have heard the key to
people being happy about the jobs that they do is that, first
of all, they know that what they are doing is important, and
the second key ingredient is that they feel like they are
making progress. One of the ways to indicate and show people
that we are making progress is actually through the GAO High-
Risk List and to involve your folks.
You may want to take your new Deputy Secretary with you.
Just take them and go meet with the folks at GAO. Do it on a
regular basis, and they will be happy to help, and you will be
glad you did.
I will close with this: Colleagues, when Mr. Kerner was by
to visit with me yesterday, we talked a bit about what I am
just about to mention--I am almost done--and I reminded him
that about 2,000 years ago, far away in the Middle East, a
bunch of Pharisees confronted a young rabbi, and they said to
him, ``What is the greatest commandment of all?'' And he said,
``There is not one. There are actually two.'' And the second
one was, ``Love thy neighbor as thyself,'' which we know as the
Golden Rule: Treat other people the way we want to be treated.
Very briefly, how might that apply in your job?
Mr. Kerner. I think one of the most important parts is when
you have a Federal workforce, you have to show that they are
appreciated. You have to protect them. You have to safeguard
them and make sure that when they blow the whistle, when they
expose waste, fraud, abuse, and other violations, that they are
going to do so safely, that we appreciate them for doing that,
and that we are going to protect them to the best ability that
we have.
Senator Carper. Mr. Chairman, Ranking Member, to that I
would say, ``Amen.''
Chairman Johnson. Senator McCaskill.
OPENING STATEMENT OF SENATOR MCCASKILL
Senator McCaskill. Thank you, Mr. Chairman.
Mr. Kerner, first of all, I have To tell you--and I know my
colleague Kamala, who was here earlier, from California, would
echo this--anybody who was a real prosecutor for almost 18
years, it would be really hard for me ever not to be for you. I
have particular sensitivity to the job you held for so long.
You are the ones that--it is the local prosecutors, the State
prosecutors, that handle 99 percent of the crime in this
country, not U.S. Attorneys. They do not answer 911 calls. They
get to pick and choose which crimes they go after. State
prosecutors have to go after every crime that is committed, and
so thank you for your years of service there.
I think the most important thing I want to emphasize today
is the independence of your office and the obligation you have
to keep it independent. You spent many years as a local
prosecutors, but you also have close ties to the Republican
Party. I think it is important to point out that Carolyn
Lerner, the previous Special Counsel, was the first Special
Counsel to find sitting Cabinet Secretaries in violation of the
Hatch Act. Both Julian Castro and Kathleen Sebelius were found
in violation of the Hatch Act. That is an example of
independence.
How can you assure the current whistleblower community and
the Members of this oversight Committee that you understand the
independent role that you are stepping into, if you are
confirmed?
Mr. Kerner. Yes, thank you, Senator, and I appreciate the
kind words about my background.
For almost my entire career, I have not been really working
in a partisan environment. When you said I am close to
Republicans, I have worked for Republican office holders, but
not on campaigns, not in the sort rough and tumble----
Senator McCaskill. Right.
Mr. Kerner. The prosecutor's office was obviously
completely nonpartisan. When I was the Staff Director for
Senator McCain on PSI, we had a tremendous relationship with
Carl Levin, the Chairman. Throughout the 2 years, we joined
many of the reports. We did a lot of hearings jointly. We had
such a good relationship that at the end, when I got my picture
with Senator McCain that he signed, I also got one from Senator
Levin, just he and I, and he thanked me for all the hard work.
I think I have shown that I am absolutely capable of working
independently.
As far as enforcement, and you mentioned the Hatch Act, I
believe there are three pillars to the Hatch Act. Number one,
you have to have clear guidelines and communicate those
guidelines, make sure that people know what is required, make
sure they know what the law is. The Hatch Act has some
regulations that have not been updated in, apparently, 22
years, and with the new media and all the new requirements, it
is really important that people know what to do. Then you have
to enforce it, nonpartisan, completely independent. Much like
the prosecutor work I did, you go where the facts are, you go
with what the law shows, and if people violate it and you have
trained them, then you just hold them accountable.
Senator McCaskill. In May, the Department of Health and
Human Services (HHS) issued a memo to staff that any
communication with Congress had to be cleared before it was
made. Now, to me, this is in direct violation of the
whistleblower laws, and I want to know what you are going to do
to communicate to whistleblowers at HHS that the law does not
allow HHS to gag them.
Mr. Kerner. Absolutely. I understand that they have been
called out on that, and I think there was a clarification
issued. It was not as clear as a memo. It was more of an email
that said, ``Of course, we are not imposing on your right.''
But I absolutely agree, whistleblowers must know that they
cannot be chilled; their communications with Congress, with
Inspectors General (IGs), with OSC are absolutely protected.
The whistleblower law requires under Section 13 and 2302(b) to
have language to that effect, and that language was missing. We
would counsel and educate all the agencies, not just HHS, that
they have to have the relevant language in order to comply with
the law.
Senator McCaskill. Will you ask HHS to rescind the memo
with the required language? Because I believe that clarifying
what the law is should be done in the same manner as the
original directive. The fact that the latter--what they did was
informal and through an email, will you direct them to, in
fact, send out a memo correcting the previous memo and laying
out the language that is required by law?
Mr. Kerner. I will speak to them and tell them what is
required by law, and we will have that conversation.
Senator McCaskill. OK. Could you explain--in your policy
questionnaire, you said there are serious flaws with the legal
reasoning of the Department of Justice (DOJ) Office of Legal
Counsel opinion that Executive Branches can ignore the Ranking
Member of the main Senate oversight committee. As Senator
Grassley said, I think he put it as eloquently as you possibly
can, if you are from my part of the world. He called it
``nonsense.''
Could you explain what flaws you find in the OLC's legal
opinion that they issued?
Mr. Kerner. Yes. I believe in the policy questionnaire my
reference was to Senator Grassley, who had criticized it, and I
pointed out that there were issues with it.
I think the biggest problem is that the Privacy Act does
not talk about Chairmen, so it does not actually have that
language. Instead, what it talks about is giving it to
committees, and Ranking Members are as much a part of the
committee as the Chairman is. You are both doing oversight. You
both require information. And OSC I think has actually a long
history of complying with providing information to both sides.
Senator Heitkamp asked Ms. Grady and me as well whether we
would make information available to both sides, and we both
committed to that.
Senator McCaskill. Thank you. Thank you very much.
First of all, I like your name. In the old days there were
not many of us. Now there are lots of Claires. I was the only
Claire growing up, and now there are Claires everywhere.
I would ask you, based on your role in management at DHS,
are there any circumstances in which you would support a
project that went ahead that would spend tens upon millions,
hundreds of millions dollars, potentially, without a cost-
benefit analysis?
Ms. Grady. I believe cost-benefit analyses are essential
for major acquisitions. You need to look at the range of
alternatives in terms of how to achieve the outcomes. So look
at measures of effectiveness and cost of investment before you
make any commitment to a major investment decision.
Senator McCaskill. Do you believe there should be a cost-
benefit analysis done of a wall built for 2,000 miles along the
Southern Border?
Ms. Grady. I believe that there is an analysis that will be
conducted or is being conducted, but I am not familiar with the
details of that.
Senator McCaskill. Well, I would depend on you as the
management person there to exercise the kind of authority that
you should have to make sure that there is a cost-benefit
analysis being done on the proposal for a 2,000-mile wall, sea-
to-shining-sea wall, which the Secretary has said is not going
to happen. Pretty much everybody acknowledges it is not going
to happen except the President. If you would make sure a cost-
benefit analysis is done, I think that would go a long way to
explain to the American public why there are other, more
effective ways to utilize our resources to make sure we secure
the border.
Thank you, Mr. Chairman.
Chairman Johnson. Senator Hassan.
OPENING STATEMENT OF SENATOR HASSAN
Senator Hassan. Thank you very much, and good morning to
you both. It is nice to see you. And thank you, Mr. Chairman
and Ranking Member McCaskill, for the opportunity.
Ms. Grady, it was very nice meeting with you--I think it
was a couple of weeks ago--and I thank you for the time you
took to do that.
Last month, I introduced with Senator Portman the Hack DHS
Act, which calls upon the Department of Homeland Security to
establish a pilot program that would allow ethical and vetted
hackers to probe DHS' network and public-facing website for
potential cyber vulnerabilities. In exchange for this service,
DHS would pay these ethical hackers a small monetary sum for
each previously undiscovered vulnerability that he or she
identifies for DHS. This effort was modeled on programs used by
industry and specifically the Department of Defense's bug
bounty program known as ``Hack the Pentagon.''
If I recall from our meeting in my office, you were quite
familiar with this Pentagon program. If you are confirmed and
our bill becomes law, your office at DHS would likely be
responsible for implementing the program. What are your
thoughts on establishing a bug bounty pilot program at DHS?
Ms. Grady. I think it is a very valuable tool that industry
has found tremendous benefit for a relatively small return in
terms of what is actually paid out for the bug bounties. I
think the Department of Homeland Security can take advantage of
the lessons learned from the Department of Defense, who did
both Hack the Pentagon, Hack the Army, and Hack the Air Force.
And a key element associated with that is working very closely
not just from a procurement perspective but with the Chief
Information Officers (CIOs) to ensure that it is conducted in
an effective way and that we are prepared to respond to the
findings that will result from a bug bounty.
Senator Hassan. Thank you. Two weeks ago, we had a hearing
in this Committee on the ideology of Islamic State of Iraq and
Syria (ISIS) and al-Qaeda. One of the witnesses was the former
Director of the National Counterterrorism Center (NCTC), Mike
Leiter. Mr. Leiter, who is a veteran of both Republican and
Democratic Administrations and an expert on stopping terrorism,
repeatedly called out the work performed by the DHS Office for
Community Partnerships and its Director, George Selim, as the
only office in the government that focuses on trying to prevent
ISIS and al-Qaeda from recruiting Americans into their ranks.
Despite this, the President's budget eliminates the grant
funding that Director Selim's office uses to try to prevent
these homegrown attacks.
What is your position on our government's role in
preventing homegrown terrorist attacks? Do you support cutting
off funding to the only office in the government that is
dedicated to preventing young Americans from falling prey to
these terrorist groups' recruitment propaganda?
Ms. Grady. I believe our government's role and
responsibility is to prevent threats, regardless of source,
against our homeland and our homeland security. I am not
familiar with the particular grant program that you referenced.
I would need to look into that and study it and get back to you
on the status and the future of that program.
Senator Hassan. I thank you for that. I would encourage you
to do that. Among other things, they found a real hunger for
these grant dollars from local and State partners who were
really trying to get at this recruitment issue and trying to
prevent our young people from being recruited. I look forward
to further conversations with you about that.
To Mr. Kerner, I want to thank you for being here as well,
and thank you for all your work as a public servant for many
years. I know that you worked as a prosecutor for almost 20
years, and that is really difficult work, and important, and I
thank you.
After that, you came to D.C. and worked under different
circumstances, this time as a political staff member. As you
know, that is more of a partisan role. While the investigative
committees in Congress have a strong tradition of
bipartisanship, I still think it is safe to say that being a
committee staffer is more of a partisan job than being a
prosecutor is.
But the job you are nominated for now requires a truly
strictly independent, nonpartisan approach, so I would like to
just hear from you how you plan to transition from that more
partisan work to this nonpartisan role and whether you agree
that you will need to be independent of politics at the Office
of Special Counsel.
Mr. Kerner. Thank you, Senator, and thank you for the kind
comments about my background. I appreciate that.
I spent most of my time in a nonpartisan role. I was a
prosecutor, and there is no politics at all. Then when I
transitioned to the Hill, while it is true that I worked for
Republican members, I was not in a campaign. I was not working
out there campaigning for or against candidates. I was in an
oversight role. When I was the Staff Director for Senator
McCain on PSI especially, we were in a particularly bipartisan
role. We worked very closely with our Chairman, who was Senator
Carl Levin. We signed on and joined a number of joint staff
reports. We had joint hearings. We worked so closely together
that at the end of the tenure, I received pictures from both
Senators separately, thanking me for the hard work.
I realize and I recognize the fact that OSC is a
nonpartisan office. It is supposed to safeguard the merit
system. It is supposed to safeguard all Federal employees and
have credibility with them, and I intend to be completely
independent in that job.
Senator Hassan. Thank you very much. And, again, thank you
both for being here.
I yield the remainder of my time, Mr. Chairman.
Chairman Johnson. Senator Daines.
OPENING STATEMENT OF SENATOR DAINES
Senator Daines. Thank you, Mr. Chairman, Ranking Member
McCaskill.
Ms. Grady, Mr. Kerner, thank you both for your testimony
and your willingness to serve. The positions you have been
nominated for are critical to accountability. Without good
people in these roles, the Federal Government is more
susceptible to wasting taxpayer dollars and more susceptible to
internal, unethical, corrupt, or illegal activities.
I want to start with Ms. Grady. DHS spends over $7 billion
annually on acquisition programs. According to a recent GAO
report, last year's DHS acquisitions averaged a 6-month delay
and cost overruns of nearly $1 billion. This is unacceptable to
those on the front line keeping us safe as well as to the
American people.
I very much appreciated in your testimony your commitment
to maximizing the value of every dollar entrusted to DHS. This
is one issue largely devoid of politics, and we have, I think,
some bipartisan solutions. Senator McCaskill and I have been
working closely to develop legislation that would codify best
practices, increase transparency, accountability, and,
importantly, improve technology delivery to the front line.
I have had a short career in politics but a long career in
the private sector, including technology, and I like talking
about accountability and quicker deployments, meeting schedules
at or below cost.
Ms. Grady, you currently serve on the Defense Acquisition
Review Board. One of the bills I authored would codify an
Acquisition Review Board within DHS ensuring uniformity and
synergy across Department component acquisitions.
Would you please expand on your experience on the DOD
Review Board and how you would utilize and take this expertise
to DHS?
Ms. Grady. Certainly. I had the benefit of being part of
the DHS Acquisition Review Board as well as the Defense
Acquisition Board, so I have had the opportunity to see both
systems at play. From a DOD perspective, the one lesson that I
took away was one size does not fit all and that you really
need to tailor both documentation and oversight appropriate to
the investment, and there needs to be metrics and data and
accountability associated with delivering results. That is
definitely what I would take back to DHS from my experience on
the Defense Acquisition Board.
Senator Daines. One of the concerns, I think, for many of
us who observe and work within the bureaucracies in the Federal
Government is the duplicity that can occur when some of these
departments who sit under the same header in terms of an agency
might as well be working in separate countries, it seems, even
though they may be a few feet apart in the same building.
Would you also elaborate how DHS's acquisition is different
than DOD's as well as ideas you might have to improve the
overall efficacy of the DHS process?
Ms. Grady. Certainly. I think one of the big differences
between DHS and DOD is the requirements process. DOD has the
joint staff. They can staff and validate requirements that
cover across the Department. DHS has stood up a Joint
Requirements Council, which I think is a tremendous step,
because acquisitions live and die by getting the requirements
right. By getting the requirements right, I mean meeting the
needs and the mission gaps of the end users who are actually on
the front line. So making that connection of the individuals
who are going to utilize the capability or capacity that needs
to be delivered to keep our homeland safe. I believe the Joint
Requirements Council is a great step that DHS has taken to
strengthen that requirements process. That has been a big
focus, and I think that is really important in terms of
delivering value through acquisition as well as unity of
effort.
Senator Daines. Thank you, Ms. Grady.
Mr. Kerner, I want to shift gears and talk about VA
accountability. One hurdle that we have seen to providing
veterans the medical services that they deserve at the VA has
been a fear of whistleblowing. This has stifled accountability,
stifled internal reforms necessary to better serve those who
served us. I am the son of a Marine. In your testimony, you
touched on legislation that I cosponsored to strengthen the
whistleblower protections.
My question is this: As Special Counsel, how will you not
only protect whistleblowers but get the facts to substantiate
accusations and foster an environment where people feel safe to
speak out against misconduct at the VA?
Mr. Kerner. Yes, thank you, Senator. I think one of the
important things--and, obviously, OSC has had a lot of VA
cases. I think out of the 6,000 or so cases they had recently,
about 35 to 40 percent are VA cases. So OSC has done a
tremendous job of working with whistleblowers to get them
reinstated, to counter that culture.
But to the extent that culture still exists, the most
important thing is you have to get accountability, and OSC is
partly an investigative agency, but it also has a prosecutorial
component. By utilizing prosecutorial tools and going in front
of the board and holding managers who punish people for
whistleblowing, holding managers accountable for their actions
through discipline, I think you send a message that
whistleblowers will be protected; people who bring protected
disclosures forward will not be retaliated against. If you
obtain this kind of accountability and discipline against
managers, I think it is going to serve us well with all other
whistleblowers as well.
Senator Daines. I was struck by Secretary Kelly when he
went through the confirmation process, one of the phrases that
he used was ``the importance of speaking truth to power.'' I am
grateful that we have a four-star Marine on top of the DHS
organization. I think he is an outstanding Secretary.
Mr. Kerner, the thoughts you had there, how can we scale
this up and approve this accountability across the entire
Federal Government? We talk about draining the swamp. This is
about as swamp-like as it gets at times. There is change we
need to make fundamentally within the Federal Government. How
would we expand this?
Mr. Kerner. I think it is important to set the tone and to
let the entire Federal workforce know that we are behind them,
we stand behind them. Congress is going to give us the tools--
and by ``us,'' I mean OSC, should I be confirmed. But it will
give OSC the tools to protect whistleblowers, to make sure that
whistleblowers have a safe place to go to make their
disclosures where two things will happen:
One, they will get the results. Back when I was the
investigator on Fast and Furious, gunwalking, which was a crazy
practice of essentially allowing high-grade weapons to go to
Mexican drug cartels, we stopped that. Once the light was
shined on it, that was going to stop.
The second thing is the whistleblowers will be protected.
And one of the things I am most proud of is that many of the
Fast and Furious whistleblowers were, in fact, not punished.
The leadership was. They were held accountable. But the people
who blew the whistle are now in that leadership.
Senator Daines. Well, that is the desired outcome--right?--
that you just described there. Thank you. Thank you both for
your testimony, your thoughtful answers, your passion for the
role. Very important.
Chairman Johnson, thank you for holding this hearing, and I
respectfully urge--I have some bipartisan acquisition reform
bills--that we may consider those at the next markup.
Chairman Johnson. OK. Thank you, Senator Daines.
Mr. Kerner, as long as you were talking about Fast and
Furious, I know it is somewhat off subject, but I just met with
a delegation of Mexican senators yesterday, and that was their
primary complaint. We have the drugs flowing in because of our
insatiable demand for drugs. We have held multiple hearings on
the lack of our border security. I certainly pointed that out
as one of if not the root cause of our unsecured borders, our
insatiable demand for drugs. And, they talked about, on the
flip side of that, all that money flowing into Mexico is then
used to purchase weapons coming out of America.
Because you were so involved in Fast and Furious, what kind
of information do you have in terms of the reality of the arms
flow in Mexico? I have not really talked to our staff. I think
this would be a good topic for a hearing in the future.
Mr. Kerner. Absolutely, Mr. Chairman. So in Fast and
Furious, of course, we talk about 2,000-plus AK-47 type guns,
or AR-15s, going there because the Federal Government wanted
them to go there.
Chairman Johnson. Again, that was a Federal Government
operation. What about the entire illegal flow? That was an
attempt to really target the kingpins there. Do you have
knowledge of the total illegal flow?
Mr. Kerner. Yes. When we were looking at Fast and Furious,
a lot of the times people would bring up the fact that they are
legal. They call that, I think, ``the iron river.'' A lot of
the guns are going there.
I think that goes really more toward DOJ. They are going to
have to do interdictions. One of the efforts that was attempted
was to stop straw buyers, that that was where you stop it. You
get people who go in and purchase guns for others. You follow
them, and when they turn them over, you arrest the people
higher up. That is obviously a law enforcement solution.
There are various other solutions in terms of--the Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) obviously
does also registration or do they give licenses to federally
licensed firearms dealers. One of the things is close
cooperation with them to make sure that the guns go to legal
American citizens who are buying the guns for their purposes,
legal purposes, and not to be trafficked.
Chairman Johnson. OK. Before I start questioning Ms. Grady,
I just want to again reinforce that this Committee will hold
the Administration accountable. From my standpoint, the best
way to deter wrongdoing or any kind of corruption is to let
people realize we will hold them accountable. I think that is
the strongest message certainly you can send in your new
capacity, that there will be no partisanship here when it comes
to enforcing the law and enforcing ethical standards.
Ms. Grady, you spoke about your strong support for St.
Elizabeths, and certainly as somebody who has managed
operations, I can certainly understand that as well. I do not
expect you to be up to speed in terms of all the specifics, but
you have been so involved in appropriations and the procurement
policies both in DHS and DOD, such a massive undertaking. I do
not have a real strong understanding. What have been the
impediments? What are we going to need to do to complete it?
Can you just in general kind of describe your current
understanding of that and what we need to move forward?
Ms. Grady. My understanding is somewhat dated and primarily
shaped by the fact that I was part of the Coast Guard that
moved over to St. Elizabeths. There were challenges associated
with consistent funding not just for the buildings themselves
but for the infrastructure to accommodate the additional
traffic flow into the area. The desire was not to disrupt the
community but make sure that that happened.
There are also additional challenges in that it is a
historic property, so it is hard enough to do renovations on a
building that is in good repair let alone the restrictions that
are associated with a historic property. Those are challenges
that I believe the Department has encountered as well as
consistent funding streams.
Chairman Johnson. So just a few bullet points: You have not
had a consistent funding stream. Anytime you start doing
construction in the neighborhood, that creates local, I guess,
zoning issues or whatever. And then the historic nature of the
buildings has also been a real impediment.
Ms. Grady. The reference I was making to the local
infrastructure is actually off ramps from the major highways so
that you are not putting a large amount of traffic through
neighborhoods.
Chairman Johnson. OK. We held a hearing from the front
lines, and we had union representatives from the primary people
charged with enforcing immigration laws and securing our
border. I think one of the highlights of that hearing was
really understanding the lack of pay parity, employment policy
parity, and the concern of some of the agencies, probably in
the lower scale in terms of benefits and pay and policies,
afraid that they are just going to lose their workforce to the
other agencies that are doing the hiring.
We have tried to, in, I think, a very bipartisan fashion,
work with Elaine Duke and the Department to try and find out
exactly what those issues are and give the support to the
Department to fix that. Can you talk a little bit about that?
Do you know what I am talking about? Can you give us certainly
from your standpoint how you would be involved in coming to a
rapid conclusion of creating parity or more parity?
Ms. Grady. I am generally aware of the issue but have not
been involved in specific discussions relative to the ongoing
Department's efforts. I understand that the Deputy Secretary is
leading efforts and is working closely with the Chief of Human
Capital to look at harmonizing the pay and benefits across the
Department to ensure that if there are differing pay scales or
differing treatment, that those are commensurate with highly
sought after skills, retention, that they are addressing a
specific challenge and they are looking across the Department.
But I am not aware of specific actions that they are taking in
response to that.
Chairman Johnson. OK. My final question just is a pretty
simple one. As you are entering this new position, what will be
your top priority? I will start with you, Mr. Kerner.
Mr. Kerner. The top priority will be to make sure that the
employees at OSC know that I believe in their mission, that I
believe in what they are doing, and that it is our job to
protect all the Federal employees and that we are going to do
so independently, we are going to do so fairly, and we are
going to do so aggressively. We are going to protect the
workforce to the best of our ability.
Chairman Johnson. That sounds pretty good. Ms. Grady.
Ms. Grady. My top priority would also be workforce. DHS has
tremendous folks who are doing amazing things every day, so
ensuring that they understand just how valued their
contributions are within and external to the Department, and
reinforce the importance of the mission and that they realize
that every single one of them is contributing to our Nation's
safety every day.
Chairman Johnson. OK. Let me just say what I have seen of
Secretary Kelly being just an exceptional leader and the effect
that has had on the workforce is really pretty amazing, quite
honestly. I am glad to hear both of you list it as a top
priority, particularly in an agency that has had problems with
morale and that type of thing. It is good that you are going to
be focusing on that.
I truly appreciate your willingness to serve. The
confirmation process is not particularly fun. The fact that you
are willing to subject yourself to it, I appreciate. I
appreciate your families' willingness to do that. I certainly
want to thank your husband, Ms. Grady, for his service to this
Nation, and both your families for the fact that they are
probably going to be seeing both of you a little bit less,
maybe a lot less. But the fact that you are patriots and you
are willing to serve your Nation in this capacity in such
important roles, this Committee truly appreciates.
With that, the nominees have made financial disclosures and
provided responses to biographical and prehearing questions
submitted by the Committee.\1\ Without objection, this
information will be made part of the hearing record with the
exception of the financial data,\2\ which are on file and
available for public inspection in the Committee offices.
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\1\ The information of Ms. Grady appears in the Appendix on page
31.
\2\ The information of Mr. Kerner appears in the Appendix on page
89.
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Chairman Johnson. This hearing record will remain open
until noon tomorrow, June 29th, for the submission of
statements and questions for the record.
Chairman Johnson. This hearing is adjourned.
[Whereupon, at 11:04 a.m., the Committee was adjourned.]
A P P E N D I X
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