[Senate Hearing 118-275]
[From the U.S. Government Publishing Office]
S. Hrg. 118-275
NOMINATIONS OF HON. COLLEEN D. KIKO,
HON. ANNE M. WAGNER, AND DAVID HUITEMA
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
NOMINATIONS OF HON. COLLEEN D. KIKO AND
HON. ANNE M. WAGNER TO BE MEMBERS, FEDERAL LABOR
RELATIONS AUTHORITY, AND DAVID HUITEMA TO BE DIRECTOR, OFFICE OF
GOVERNMENT ETHICS
__________
APRIL 17, 2024
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLISHING OFFICE
55-524 PDF WASHINGTON : 2024
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
LAPHONZA BUTLER, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Claudine J. Brenner, Senior Counsel
Devin M. Parsons, Professional Staff Member
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Laura W. Kilbride, Chief Clerk
Ashley A. Gonzalez, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Blumenthal........................................... 1
Senator Marshall............................................. 2
Senator Peters............................................... 11
Senator Hawley............................................... 13
Senator Rosen................................................ 15
Prepared statements:
Senator Blumenthal........................................... 19
Senator Marshall............................................. 20
WITNESSES
Wednesday, April 17, 2024
Hon. Colleen D. Kiko, to be member, Federal Labor Relations
Authority
Testimony.................................................... 3
Prepared statement........................................... 22
Biographical and professional information.................... 24
Letter from U.S. Office of Government Ethics................. 47
Responses to pre-hearing questions........................... 50
Responses to post-hearing questions.......................... 64
Hon. Anne Wagner, to be member, Federal Labor Relations Authority
Testimony.................................................... 5
Prepared statement........................................... 68
Biographical and professional information.................... 70
Letter from U.S. Office of Government Ethics................. 89
Responses to pre-hearing questions........................... 92
Letter of Support............................................ 104
David Huitema, to be Director, Office of Government Ethics
Testimony.................................................... 6
Prepared statement........................................... 106
Biographical and professional information.................... 108
Letter from U.S. Office of Government Ethics................. 131
Responses to pre-hearing questions........................... 134
Responses to post-hearing questions.......................... 156
NOMINATIONS OF
HON. COLLEEN D. KIKO,
HON. ANNE WAGNER, AND DAVID HUITEMA
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WEDNESDAY, APRIL 17, 2024
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:31 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Gary Peters,
Chair of the Committee, presiding.
Present: Senators Peters [presiding], Hassan, Rosen,
Blumenthal, Ossoff, Scott, Hawley, and Marshall.
OPENING STATEMENT OF SENATOR BLUMENTHAL\1\
Senator Blumenthal. This hearing of the U.S. Senate
Committee on Homeland Security and Governmental Affairs
(HSGAC). We are here to discuss two important agencies within
our government. The Federal Labor Relations Authority (FLRA)
and the Office of Government Ethics (OGE).
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\1\ The prepared statement of Senator Blumenthal appears in the
Appendix on page 19.
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The FLRA is an independent administrative agency, as you
all know, responsible for enforcing Federal employees
collective bargaining rights. The OGE is an independent agency
that leads and oversees the Executive Branch ethics program.
Together, these two bodies ensure that Federal employees'
rights are protected and our government adheres to the highest
standards of ethics. These are vital functions and I look
forward to exploring more with our nominees here today.
I want to welcome our nominees and their families if they
are here with them. Congratulations, thank you, each of you for
your public service, as well as your willingness to serve in
these important positions. I am going to be chairing this
hearing until Senator Peters arrives. We want to move forward
with this hearing right on time because we have another
afterward and I am going to turn to the Ranking Member.
OPENING STATEMENT OF SENATOR MARSHALL\1\
Senator Marshall. Thank you Chairman. Today as Chair
Blumenthal just mentioned, the Homeland Security and
Governmental Affairs Committee will hold a hearing on three
nominations. I am honored to welcome Colleen Kiko, Anne Wagner
and David Huitema.
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\1\ The prepared statement of Senator Marshall appears in the
Appendix on page 20.
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I want to thank the three of you for your intention to
serve our country as public servants. While preparing for this
hearing, I was struck by how many of you drew inspiration to
enter public service from those close to you. Like yourselves,
I was surrounded by individuals who dedicated their lives to
serving their fellow Americans, including my father, who was a
police officer for 30 years, but also a long lineage of people
serving in the military and now continued by my son serving in
the military as well.
Combined with the lessons you have learned from those
individuals, you have also added the experiences of your
professional careers. Together, these have prepared the three
of you for this opportunity to serve the Nation.
Ms. Kiko, and Ms. Wagner, should you be confirmed to these
positions with the advice and consent of the U.S. Senate, you
will be charged with resolving complaints of unfair labor
practices, determining the appropriateness of units for labor,
organization representation, adjudicating exceptions for
arbitrators' awards, adjudicating legal issues relating to the
duty to bargain, and resolving impasses during negotiations.
Both of you have the track records to fulfill these duties.
You, Ms. Kiko, have already served a term as the FLRA
chairwoman and you, Ms. Wagner, have a long career in this
field, with your most recent work being as the Associate
Special Counsel (ASC) with the Office of Special Counsel (OSC).
I look forward to hearing both of your testimonies and asking
you further questions to determine your suitability for these
roles.
Finally, Mr. Huitema, should you be confirmed as Director
of the Office of Government Ethics, you must be able to lead
and oversee the Executive Branch ethics program by making and
interpreting ethics laws and regulations, support and train
Executive Branch ethics officials, administer the Executive
Branch Financial Disclosure Systems, monitor senior leaders
compliance with Ethics Committee, ensure agencies comply with
ethics programs requirements, and make ethics information
available to the public.
Like Ms. Kiko, Ms. Wagner, your resume speaks for itself,
as you have a long history with the State Department (DOS) and
currently manage the department's ethics program. Thank you for
being here. I look forward to hearing your testimony and asking
you questions.
Once again, I would like to thank all the nominees for
their desire and willingness to serve. I look forward to
learning more about your qualifications and hearing your
testimonies. Thank you, Mr. Chairman.
Senator Blumenthal. Thanks, Senator Marshall. I will
introduce the nominees in the order that they are seated.
Colleen Kiko, nominated to serve an additional term as member
of the Federal Labor Relations Authority, has served since 2017
in that capacity and has led the agency's chairman from 2017 to
2021. She holds a Juris Doctor (JD) from Scalia Law School and
a Bachelor of Science (BS) degree from North Dakota State
University.
Anne Wagner, nominated to be a member of the Federal Labor
Relations Authority, currently serves as an Associate Special
Counsel in the Office of Special Counsel. That's a role she's
held since 2015. Ms. Wagner received her bachelor's degree from
the University of Notre Dame and her law degree from George
Washington University (GWU) School of Law.
Mr. David Huitema, nominated to be director of the Office
of Government Ethics, served as the Department of State's
Assistant Legal Advisor for Ethics and Financial Disclosure
since 2016. He holds a JD from Stanford Law School, an a Master
of Arts (MA) from the University of Texas at Austin, and a
Bachelor of Arts (BA) from the University of North Carolina
(UNC) at Chapel Hill.
Our custom, as you may know, is to swear the witnesses. If
you would please stand and raise your right hand. Do you swear
that the testimony you are about to give is the truth, the
whole truth, and nothing but the truth, so help you, God?
Ms. Kiko. I do.
Ms. Wagner. I do.
Mr. Huitema. I do.
Senator Blumenthal. Thank you. If any of you have opening
statements, we would be pleased to hear them. Ms. Kiko.
TESTIMONY OF COLLEEN D. KIKO,\1\ TO BE MEMBER, FEDERAL LABOR
RELATIONS AUTHORITY
Ms. Kiko. Good morning, Chair Blumenthal, Ranking Member
Marshall, Members of the Committee. I thank you and your staff
for all the kindness that you have shown me as I prepared for
this hearing. My daughter Sarah, is with me today. My husband,
Phil Kiko, is tied up on a matter on the other side of the
hill, or he would be here today. I appreciate all the love and
support provided by him and all my family during this process.
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\1\ The prepared statement of Ms. Kiko appears in the Appendix on
page 22.
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I would also like to thank Anna Molpus, Murray Duncan,
David Eddy, and Rebecca Osborne from the FLRA for their kind
assistance throughout this process. I am especially grateful
for Chairman Grundmann, who has been ever so supportive and a
pleasure to work with.
As someone who started their Federal career as a general
service (GS-3) clerk-typist, I am truly honored to have been
re-nominated to serve as a Member of the Federal Labor
Relations Authority.
I thank President Biden for the opportunity to serve in
this capacity, should I be confirmed. My dedication to Federal
service was influenced by my parents. My father, Lawrence E.
Duffy, proudly spent over 49 years, almost a half a century in
the Federal service before retiring. After a stint in the U.S.
Army, he was a railway mail carrier for the U.S. Postal Service
(USPS) in North Dakota and later became a U.S. Customs
Inspector at the North Dakota/Canada border. His work ethic,
extreme pride in his job and impeccable character were examples
for me. To this day, I strive to live up to them.
My mother, Angie Duffy, always encouraged all of us to
strive for careers to broaden our horizons. She pushed all of
us to be strong and independent. I would like to point out a
few areas of my career that make me particularly qualified for
this position. I was an employee of this agency at its
inception when the duties of the Assistant Secretary of Labor
for Labor Management Relations were transferred into the new
FLRA in 1979. I was there when the agency opened its doors, and
I was there celebrating with its first birthday cake.
After joining the newly established FLRA, I worked in
almost every component of the agency. In a regional office, I
investigated unfair labor practice charges, chaired
representational hearings, monitored Federal union elections,
and conducted training for unions and agencies. In the
Authority component, I reviewed representational disputes,
administrative law judge (ALJ) decisions and drafted decisions
for the Authority Members. My last position before I left to
attend law school was a supervisory labor relations specialist
managing procedural motions for the agency. The FLRA has played
an important role in shaping me into a professional employee. I
graduated from Antonin Scalia Law School in Arlington in 1986.
Just 19 years later, I would find myself back at the FLRA
serving as a Senate confirmed General Counsel (GC).
Another 12 years later, I was confirmed to serve as Member
of the Authority and designated by the President to serve as
Chairman. My career keeps taking me back to my FLRA roots. My
time as Chairman of the Agency provided me with unique insights
into the challenges facing the agency. Steering the agency
through the unprecedented Coronavirus Disease 2019 (COVID-19)
public health challenge was one of the greatest challenges and
most significant accomplishments of my career in public
service.
As Chairman, I also partnered with the Federal Mediation
and Conciliation Service (FMCS) to create a successful pilot
program for mediating negotiable disputes. Oversaw many
elements of the agency's ongoing transition from paper to
electronic files, including significant improvements in its e-
filing and case management systems, and involved employees from
all agency components in innovative teams to implement the
FLRA's strategic plan and address opportunities for improvement
from the Federal Employee Viewpoint Survey (FEVS).
As Chairman and Member, I have worked with my colleagues to
resolve unfair labor practice disputes, determine the
appropriateness of units for labor representation, adjudicated
exceptions to arbitrator's awards, and resolve legal issues
relating to the duty to bargain.
I am continually impressed with the FLRA's employees who
are some of the most dedicated public employees I have ever
met. I believe my 35 years in the Federal Government, 20 years
in the labor field, will continue to serve me well in this
agency where we are commissioned to provide leadership relating
to matters under the Federal Service Labor Management Relations
Statute, and to effectively administer the nine specific
mandates of the statute.
I greatly appreciate the opportunity to appear before you,
and I am ready to answer your questions. Thank you.
Senator Blumenthal. Thanks very much Ms. Kiko. Ms. Wagner.
TESTIMONY OF ANNE M. WAGNER,\1\ TO BE MEMBER, FEDERAL LABOR
RELATIONS AUTHORITY
Ms. Wagner. Good morning, Chair Blumenthal, Ranking Member
Marshall. I would like to also thank the Members of the
Committee for the opportunity to speak with you today. It is an
honor to have been nominated by President Biden to serve as a
Member of the Federal Labor Relations Authority and a privilege
to appear before you to seek Senate confirmation of my
nomination.
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\1\ The prepared statement of Ms. Wagner appears in the Appendix on
page 68.
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I would also like to take a moment to express my deep
appreciation to those without whom I would not be here today.
First to my parents, George and Kay Wagner, for their unfailing
love and support during my childhood and throughout my life. To
my sisters, brother and their families, for their friendship,
humor, and encouragement. To my friends and colleagues
throughout my career for their generous guidance and inspiring
dedication to the law. Finally, to my dear family, my husband,
Allynn, and daughters, Katie and Nora, who are here today and
Carlin in Texas, whose love has carried me on this journey
every step of the way.
In 1978, Congress enacted the Federal Service Labor
Management Relations Statute as part of its comprehensive
legislative reform of the Federal civil service. It established
the FLRA as the agency responsible for providing leadership in
Federal sector labor management relations through policies,
guidance, and case law. Although much has changed since its
inception, the FLRA's role remains as vital today as it was
over 45 years ago. The public interest in ensuring that Federal
workers and management fully engage with each other to achieve
the most effective and efficient government remains clear.
I wholeheartedly support the Authority's mission. If
confirmed, will commit myself to ensuring that the FLRA
fulfills the critical purpose that Congress entrusted to it. In
my decades long career, I have represented Federal employees as
a labor union staff attorney. I have worked as a neutral
adjudicator of Federal employee claims and served at the
highest levels of agency management in the Senior Executive
Service (SES).
If confirmed, I believe that my substantial experience in
addressing employment and labor law issues from all sides will
be valuable in carrying out my duties as an FLRA member. If
confirmed, I also very much look forward to working again with
Chairman Susan Grundmann and with Member Colleen Kiko to
fulfill the FLRA's important mission of providing robust
leadership in the Federal Labor Management Relations (FLMR)
sphere.
I am humbled by, and thank you for the opportunity to be
with you today and I am happy to answer any questions that you
may have. Thank you.
Senator Blumenthal. Thanks so much, Ms. Wagner. Mr. Huitema
TESTIMONY OF DAVID HUITEMA,\1\ TO BE DIRECTOR, OFFICE OF
GOVERNMENT ETHICS
Mr. Huitema. Good morning. Thank you, Chair Blumenthal and
Ranking Member Marshall. I thank you for the opportunity to
appear before the Committee today. I would like to acknowledge
Senator Peters, Senator Paul, and the other Members of the
Committee as well. I am honored that President Biden has
nominated me to serve as the Director of the Office of
Government Ethics (OGE).
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\1\ The prepared statement of Mr. Huitema appears in the Appendix
on page 106.
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I would like to recognize the support I have received from
the Office of Government Ethics at the State Department and
throughout the Executive Branch ethics community with regard to
my nomination, but also throughout my career as an ethics
official and in public service. I would also like to recognize
my family, my wife, Carolyn, and my sons Owen and Miles, all of
whom I love so very much, and who are with me this morning.
They motivate and inspire me and fill me with pride every day.
I would also like to acknowledge the love and support I
have always received from my parents, Jim and Mollie Huitema.
They both had careers in public service. My mother as a teacher
and my father working for the Federal Government. Most
importantly, they have always modeled a high degree of
integrity and a commitment to helping others. I am fortunate to
have a wonderful brother, John, and I want to remember my
brother Philip, who is no longer with us, and recognize my
extended family, including my mother-in-law and father-in-law,
Pat and Cy Robbins.
OGE's mission has never been more critical as its work
forms one part of a broader struggle against the growing
cynicism and distrust that can undermine our democratic self-
government. The ethics laws promote integrity in government,
requiring that official's decisions and use of public resources
must not be influenced by their personal financial interests,
their personal connections and relationships or by any desire
to benefit themselves or others rather than the national
interest. Beyond that, the ethics laws recognize the importance
of public trust, and they are designed to bolster public
confidence in the integrity of the Federal workforce.
There is good news. Federal employees do have a strong
sense of mission and a desire to do things the right way. There
are outliers, of course, which is why OGE supports the
Inspectors General (IG), the Department of Justice (DOJ), and
others who investigate and pursue accountability for ethics
breaches. But for the most part, ethics officials are in a
position to support Federal employees in achieving a goal they
already share. There's more good news. Agency ethics programs
are full of ethics officials who are smart, earnest and
committed to this cause.
I know because I have worked with them. I see OGE's role as
providing overall direction, but also partnering with agency
ethics programs and supporting their good work. OGE itself is
full of talented and committed officials.
In my years leading the State Department ethics program, I
have worked with many colleagues at OGE on a wide range of
topics. If I am fortunate enough to be confirmed, I would be
proud to be part of the OGE team. While people are the strength
of the Executive Branch ethics program, I am open-eyed about
the challenges.
The breakdown in trust that I mentioned earlier increases
scrutiny of Federal employees and the Executive Branch ethics
program. This means we must be ever more effective in
supporting employees and deepening the culture of ethics
compliance. We must be clear in explaining what the law
requires both to the Federal workforce and the public. We must
support each other in courageously providing sound ethics
guidance, even when it is unwelcome. In pursuing enforcement of
the ethics laws where necessary. As the pace of change in our
society and economy picks up, we must be nimble in updating
outdated requirements and in providing guidance and an
appropriate regulatory structure to address emerging issues.
Of course, we must do all of this with limited resources.
In his confirmation hearing, the previous director of OGE noted
that OGE finds itself underfunded, understaffed, and over
missioned. That remains the case both for OGE and for many
agency ethics programs. As we consider any changes in the
Executive Branch ethics program, we must keep practicality in
mind and seek to leverage support and adopt efficient
approaches to the greatest degree possible.
I am open-minded about how best to tackle these challenges.
I do believe that my experience in managing a complex ethics
program at the State Department offers a valuable perspective.
If confirmed, I would also rely on the strong foundation and
expertise already in place at OGE. I would seek to cultivate an
even deeper sense of partnership with the broader Executive
Branch ethics community.
I would welcome input from outside government as well. I
know that many in Congress have an interest in ethics reform. I
look forward to answering your questions today, and I pledge to
work with the Congress on these issues if I am confirmed. So,
thank you again for considering my nomination.
Senator Blumenthal. Thank you. Thank you very much to all
of you for your opening statements. I have a couple of
preliminary questions that are standard for all nominees, and I
think they are answerable by yes or no. 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. Kiko. No
Ms. Wagner. No
Mr. Huitema. No
Senator Blumenthal. 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. Kiko. No.
Ms. Wagner. No.
Mr. Huitema. No.
Senator Blumenthal. Finally, do you agree without
reservation to comply with any requests, summons to appear and
testify before any duly constituted Committee of Congress if
you are confirmed?
Ms. Kiko. Yes
Ms. Wagner. Yes.
Mr. Huitema. Yes.
Senator Blumenthal. Thank you. I have a couple more
questions. Maybe I can ask Ms. Kiko and Ms. Wagner. Could you
speak to the challenges that the FLRA experiences when faced
with a flat budget as it has been for many years? Go ahead.
Ms. Kiko. Yes. Thank you for that question. Yes, the
Federal Labor Relations Authority has been flat funded for
quite a few years. When that happens, we have approximately 80
percent of our budget is personnel. When that happens, you have
to look at new ways to try and figure out how to meet the
budgets. Generally, it's difficult.
In the past, what we have had to do is to close some
regional offices down and in an effort to save the people, we
decided to get rid of some of the space. Just recently, the
Federal Labor Relations Authority in the headquarters office
had two floors in their building, and now we have consolidated
to one floor. We are trying to do what we can to live within
our budget, but it's challenging not only to get the cases
done, but also to continue to serve our customers. That should
answer your question.
Senator Blumenthal. Ms. Wagner, and whether do you have any
thoughts on that topic?
Ms. Wagner. Senator Blumenthal, I have not had the
privilege of being at the FLRA. I do not really have an
insider's view in terms of the particular internal challenges
that the authority might be facing. But I think the budget for
a flat line budget is difficult when an agency is responsible
for a producing high-quality efficient adjudication of
caseloads that continue to go up.
If confirmed, I would certainly do whatever I can to
support the efforts that I believe Chairman Grundmann has
already undertaken with the other members of the authority to
pursue an enhanced budget for the future.
Senator Blumenthal. Thank you. Mr. Huitema.
Mr. Huitema. Thank you.
Senator Blumenthal. I know you have had experience at the
Department of State in this kind of ethics review and
enforcement. Would you anticipate the challenges or the issues
are the same now in this present position for which you have
been nominated as they were at the Department of State?
Mr. Huitema. Thank you for the question, Senator. I think
in some ways, one of the nice features of working at the State
Department is the breadth of the agency's mission and the
breadth of the ethics issues we have the opportunity to
encounter. Obviously the work of OGE is at a completely
different scale, and it's important to recognize just how
diverse and varied agencies, their missions, their workforces,
the ethics challenges they face are.
While I think I have solid preparation there will also be
chance to learn and will be important to be open-minded about
how the Executive Branch ethics program as a whole, but also
how specific agencies should target and tailor their efforts to
uphold integrity to the highest degree possible.
Senator Blumenthal. Your service has been nonpartisan over
these years, correct?
Mr. Huitema. Absolutely. Partisanship never enters into my
work. I have been proud to serve in the Federal Government and
as head of the ethics office throughout multiple
administrations of different parties. That would continue to be
my approach.
Senator Blumenthal. Thank you. I will turn to Senator
Marshall.
Senator Marshall. Thank you, Mr. Chair. I am not as
familiar perhaps with the jobs that you all have, and the
departments that you represent as a fairly new senator. I would
like for you to take one or two minutes each and tell me, in
your cases Ms. Wagner and Ms. Kiko, what is the role of the
FLRA? What is your job? What is your purpose? And think it like
you are talking to a high school government class, dumb it down
to that level for me. Ms. Wagner.
Ms. Wagner. Thank you Senator Marshall. The role of the
FLRA is one that Congress established to provide leadership in
the area of Federal labor relations programs throughout the
Executive Branch. It does this by issuing policies, guidance,
but primarily through ruling on cases that come before it. So,
cases such as unfair labor practice cases, negotiability
appeals.
Cases that member Kiko alluded to in her opening statement.
It is through this the development of case law that allows the
sort of predictability to come into the Federal labor relations
programs throughout the government and I do think my experience
has seen that it promotes efficiency and effective government.
Senator Marshall. OK. Ms. Kiko, would you follow up? I know
it's the same department, but you have had some more
experience, so.
Ms. Kiko. I will go backwards just a little bit. Collective
bargaining was something new in the Federal Government. Back
then was an Executive Order (EO) 10988 that was originally
established collective bargaining in the Federal Government.
Then that Executive Order was moved to Executive Order 11491,
which was also allowing collective bargaining in the Federal
Government. It was in 1978 when a statute was finally created
to allow collective bargaining in the Federal Government.
Consistent with Anne Wagner's response, we are providing
leadership and guidance to matters related to the statute.
We issued decisions based on unfair labor practices that
might be occurring in the agencies between unions and agencies
in the Federal Government. We also determined the
appropriateness of units as to who can be consolidated into a
unit to be represented by a union.
We also resolve duty-to-bargain issues. If they are sitting
at the bargaining table trying to figure out is this particular
language negotiable or not, we will make a ruling on that. When
there are grievances that go on in the agencies between the
unions and the agencies as to something that might be wrong
those grievances can be then taken to an arbitrator.
Arbitration awards can come to us on exceptions to
arbitration awards, for example, if the arbitrator's award was
contrary to law or something to that effect. We also, as our
responsibility, we must train the parties to make sure they
understand the statute. The FLRA has been very forefront in
providing training to the parties on what the statute says and
how it acts.
Senator Marshall. OK. Thank you. Mr. Huitema. Kind of the
same question. What is the OGE? What is your purpose?
Mr. Huitema. Thank you for the question, Senator. The OGE's
mission is to help and support Federal employees in avoiding
conflicts of interest in meeting their own obligations under
the Federal ethics laws and regulations, and in general, and in
acting and carrying out their duties as public servants with
the high degree of integrity. By extension, the hope is to
cultivate public trust in the integrity of the Federal
workforce as well.
OGE does this, first by providing overall direction and
leadership for the Executive Branch ethics program, issuing
regulations, issuing interpretive guidance, issuing kind of
program, establishing programs and procedures. It's important
to recognize that much of the Executive Branch ethics work is
decentralized. Each agency has its own ethics program.
It's those agency ethics programs that are closest to and
in most direct contact with Federal workers. OGE provides
guidance and support to those agency ethics programs, tries to
hold them to a high standard as well, monitoring their work
evaluating whether they are complying with programmatic
requirements and generally sort of upholding the importance of
acting with courage when necessary and implementing a sound
program.
Beyond that, OGE has a role in explaining ethics laws to
the public as well. Obviously as director, I personally would
have a role in supporting the team at OGE just as a manager of
the agency.
Senator Marshall. I am convinced that organizations either
get better or worse. They never stay the same, and I think
priorities is so very important, whether it's amount of
financial resources or otherwise. Each of you, take a minute or
less and tell me what your top priorities would be if
confirmed. Mr. Huitema we will start with you this time. Your
priorities please.
Mr. Huitema. Thank you, Senator. The first priority I would
say is, one thing to step back and recognize is that OGE
experiences a surge in its work every four years or so
following a Presidential election.
Because one of its core functions that it has a direct
implementing role in is the vetting of nominees, helping any
administration kind of staff up important leadership positions,
supporting the Senate's work in evaluating those nominees.
I know that OGE already is focused on this as they are
every four years and is undertaking a lot of work to prepare
for that surge in nominee vetting. I would seek to support that
that has to be priority one. Because that will dominate the
next year.
Beyond that, I would seek to spend some time on
relationship building both with agency ethics officials, with
department leadership where that would be useful and with the
constituencies that are relevant for the ethics community and
the work that we do. Those would be my first priorities.
Senator Marshall. Thank you. Ann Wagner, what would be your
priorities?
Ms. Wagner. Senator, my priorities would be to deal with
the increased caseload that the authority is facing with the
limited resources that it has. I think to maximize technology
to the extent possible to achieve efficiencies in productivity
and addressing the caseload in a fair and efficient way.
Beyond that, in my experience at OSC has certainly
instilled in me the idea that training and education with
regard to employee and labor organization, agency management,
rights and responsibilities could be a vital tool to preventing
labor disputes arising in the Federal sector arena.
I think that preventing labor disputes is as important as
resolving them once they occur. I would hope to make that one
of my priorities.
Senator Marshall. Thank you. Ms. Kiko, what would be your
priorities?
Ms. Kiko. Yes, Senator. I think first of all we have a job
to do and that is to issue decisions that come before us. We
want to do that in an efficient way as we can. I would also
want to support the chairman in any activities and priorities
that she might have in attempting to manage our flat budgets.
I would also like to continue the good work of the FLRA in
its training programs as it continues to offer an innumerous
number of training courses and YouTube videos and that sort of
thing to assist the stakeholders in understanding our statute
and learning how to solve some of their disputes on their own
without necessarily having to come to us.
Senator Marshall. Thank you so much.
OPENING STATEMENT OF CHAIRMAN PETERS
Chairman Peters [presiding]. Thank you, Senator Marshall. I
would also like to thank Senator Blumenthal for starting off
this hearing with you, Senator Marshall. Thank you for kicking
it off. It's a busy day today. We are running around which is
why people have been coming and going as we go forward.
But I want to welcome each of our nominees. Thank you for
being here and congratulations to each of you on these
nominations and your willingness to do this important work.
Ms. Kiko, I will start with you. After you became Chairman
of the FLRA in 2017. Employee morale at the agency dropped
significantly, employee engagement and satisfaction scores
based on the annual Federal employee viewpoint survey fell to
their lowest levels in a decade.
During your first two years as Chair, my question is how
did you respond to the drop in morale, and what changes did you
make to your management approach, and how would you see things
moving forward?
Ms. Kiko. Thank you Chair Peters. I appreciate the
question. Certainly, we had some challenges when I first became
chairman and being chairman, you have to make some very
difficult decisions, and a lot of that had to do with our flat
budgeting. We had to close two regional offices, and that was a
very big, difficult time for our agency.
I spent an awful lot of time identifying what some of the
concerns were in the Federal employee viewpoint survey, and
attacked them one by one to make sure that each of the
employees concerns were addressed under the FEVS.
At the same time that the FEVS reports were coming out, we
were in the middle of building a new strategic plan for the
agency. As such, I created teams so that every employee in the
agency was able to be involved in building that strategic plan,
hoping that every aspect of their concerns were addressed in
the strategic plan.
We had many different teams, employee engagement teams,
performance accountability teams, digest teams, health and
wellness teams, everything to attempt to address some of the
concerns that the employees had. Based on a lot of those issues
that we did. The other issue that I recognized is that there
had not been a General Counsel in the general counsel's office
for quite some time. I took the opportunity to fill that
position so that there would be some leadership in the general
counsel's office.
I think as a result of a lot of those efforts our scores
did rise 20 points while I was chairman in 2020. I believe that
the efforts that we made, made a difference in attempting to
raise those scores.
Chairman Peters. Well are you committed to taking the
Federal employee viewpoint survey results into account as you
move forward and prioritizing employee engagement morale at the
FLRA?
Ms. Kiko. Absolutely.
Chairman Peters. Give me a sense of how you will do that?
Ms. Kiko. Yes, absolutely. It's a very important survey of
employees viewpoints. It's really important to understand what
people are feeling and how they are. An engaged employee is an
excellent employee. We want to make sure that that's the
highest priority. Absolutely.
Chairman Peters. Very well. Mr. Huitema, I worked with
Senator Grassley on the Executive Branch Accountability and
Transparency Act, which would make it easier for the public to
access the ethics disclosures of government officials. This
kind of transparency, I think is absolutely vital so the public
can hold folks accountable. My question for you, sir, is if
confirmed, how will you work to make transparency a priority
and increased public access to this important ethics
information?
Mr. Huitema. Thank you, Chair Peters I too believe in the
value of transparency and access to information about our most
senior officials and information that allows the public to
evaluate decisions that the government is making.
In terms of how I would prioritize that issue, I would say
it would be built into kind of everything that we do at OGE.
OGE already has a track record of considering sort of ways it
can use its platform to sort of affirmatively make some
information available to the public in a less onerous way.
We would continually evaluate additional categories of
information in OGE's custody and control. Especially, is there
information about OGE's own decisionmaking priorities, et
cetera, that we could explain our own work better to the
public.
Chairman Peters. Mr. Huitema, as you know, one of OGE's key
responsibility is conducting oversight of agency ethics
programs all across the government. My question for you is, how
are you preparing to make this transition from serving as an
agency ethics official to actually one conducting rigorous
oversight of agency ethics officials across the government?
Mr. Huitema. Thank you. That role in monitoring the work of
agency ethics programs, holding them to a high standard is a
core part of OGE's mission. It's one I am committed to. I think
that having the perspective of coming from an agency and
knowing what it's like to administer an ethics program day in,
day out, will offer some valuable perspective.
I would say there are kind of two aspects. One is that
having open communication and a strong relationship with the
agency ethics programs actually is a tool for effective
monitoring and compliance work as well. OGE needs to understand
the agency ethics programs, the challenges they are facing, the
constraints they operate under, and how they work to evaluate
whether they are doing that work effectively or not.
Beyond that it's important for the director of OGE and OGE
as a whole to hold agencies to a high standard. I need to be in
a position to communicate that. If we want agencies to have the
courage to offer firm ethics guidance, even in unwelcome
circumstances, to sort of make the demand for program support
that they need then they need to know that that's a standard
and an expectation we have and that we are there to support
them as well.
Chairman Peters. Great. Thank you. Senator Hawley, you are
recognized for your questions.
OPENING STATEMENT OF SENATOR HAWLEY
Senator Hawley. Thank you very much, Mr. Chair. Thanks to
the nominees for being here. Mr. Huitema, if I could just start
with you. You just said that you have experience administering
an agency ethics program. You are at the State Department right
now; is that right?
Mr. Huitema. Yes, that's right, Senator.
Senator Hawley. Among other things, you have been the legal
advisor for ethics and financial disclosures?
Mr. Huitema. Yes, I am the assistant legal advisor for
Ethics and Financial Disclosure, which is the ethics office for
the State Department.
Senator Hawley. Right. Very good. Are you familiar we have
been tracking what's going on with the U.S. Department of
Energy (DOE) when it comes to ethics, financial disclosures,
and stock trading. Are you familiar? Do you know what I am
talking about?
Mr. Huitema. I know what you are talking about, Senator. I
obviously have not been involved and do not have a depth of
knowledge.
Senator Hawley. Let me give you just a little flavor of it.
Last year, the Wall Street Journal reported that hundreds of
Energy department officials hold stocks related to the agency's
work, despite repeated warnings, that there were conflicts of
interest here. How does that strike you? Good practice?
Mr. Huitema. Senator, I guess a couple of observations.
Obviously, I cannot speak to the specific facts of any employee
at the Department of Energy or guidance that the energy ethics
program has provided. But this relates to the question Chair
Peters asked.
I would say it's important for OGE to be in a position to
evaluate the work of any agency ethics program and to make
clear that we hold them to a high standard and want them to
hold their employees to a high standard and follow through,
right.
It's not just explaining the rules, it's communicating them
and doing what you can to build a culture of ethics.
Ultimately, it's each employee's responsibility to abide by the
ethics laws. But we have high expectations for our ethics
program as well.
Senator Hawley. You have high expectations, and the public,
frankly, has high expectations for public officials. I just
have to tell you, this is a governmentwide problem. It's a
problem in this Congress. You have elected officials, members
of this Congress who are trading stock and making profits. Like
the public looks at this, and they say, oh my gosh, how do
these people manage to do it? It is unbelievable.
They come, they get elected to Congress, and they become
the most savvy stock market traders in the world. It's amazing.
There are whole websites devoted to tracking Members of
Congress's stock trades. It's incredible. It's absolutely
incredible, which is why I again, call on this Congress as I
have for years now to take action, to ban stock trading and
stock holding by Members of Congress. But it's not just in
Congress, it's in the Executive Branch.
I can just tell you, when you have hundreds of members of
the Energy Department and other Executive Branch agencies who
hold stocks in companies that they supposedly regulate, that is
incredibly destructive of public trust.
Yesterday, I talked to the Secretary of the Department of
Energy. She has held stock, she has violated, she personally
has violated the Stock Act, nine separate times.
That was before she misled the U.S. Senate by saying she no
longer held any individual stocks.
She told us she had sold all of them. Turns out that was
false. She had not sold them. It turns out she still held
individual stocks, including stocks her department regulates in
companies her department regulates. This is outrageous. It's
absolutely outrageous. It's endemic. My message to you is, I
hope that if you are confirmed that you will be absolutely a
bulldog about going after this and telling Executive Branch
officials, listen, you cannot own stocks in companies that you
regulate.
We cannot allow hundreds of government officials to
continue to willfully violate the law and we ought to update
the law by the way, I mean, there's a simple solution to this.
We ought to just ban executive officials at a leadership level
from owning individual stocks. That would do it, but we at
least should be complying with the laws on the books.
I just think it is outrageous. Outrageous, that Executive
Branch officials, and I am sure this goes on by the way, in all
administrations. But it is outrageous that these people are
trading stock in companies that they regulate. It raises the
question, who is running the department? Is it the corporations
whose stock that these officers are so attentive to?
My point in this Mr. Huitema, is I hope that you will be
very firm in this, and I hope that if you are confirmed, you
will work to make sure that Executive Branch officials, No. 1,
understand the law, but No. 2, comply with the law and do not
willfully violate it over and over and over.
All I can say is when you have the head of the department,
the head of an agency, the head of the Energy department
violating the Stock Act nine separate times, and continuing to
frankly lie about it to Congress, that is a big problem. In my
few remaining moments here, let me shift gears. Ms. Wagner, let
me ask you, from a Federal labor relations point of view, when
it comes to labor contracting within the Federal Government,
this Committee recently passed, and I am delighted to say
unanimously passed my legislation along with Senator Booker
that would make it impossible for the Federal Government to
contract with companies that have child labor in their supply
chain.
Does that sound like a good thing to ban to you, I mean, to
stop the use of child labor in Federal contracting?
Ms. Wagner. Yes, Senator, it does.
Senator Hawley. I am glad to hear that. This is a very
serious issue since 2018 that the Labor department has seen a
70 percent increase in children being illegally employed by
companies. The New York Times has published reports about,
well-known brands such as Tyson Foods who have done business in
many States, including mine, that have illegal child labor
running rampant in their facilities.
A lot of these companies get contracts as it relates to
contracts with the Federal Government. They are bidding on
getting Federal contracts, they are getting Federal money, and
yet they have child labor in their supply chain.
I am glad to hear you say that you are opposed to this. I
hope this legislation will soon become law. I hope that you
will support efforts to root out any kind of child labor in
Federal contracting, in Federal Government employment practices
with these independent contractors. Do I have your commitment
that you would do that?
Ms. Wagner. Senator Hawley, I share your outrage at that
practice. I would have to note that the FLRA regulates in the
sphere of labor unions that represent Federal employees, not
Federal contractor employees.
I am not sure the scope of the FLRA's authority to
intercede in that practice to address that. I suspect that's a
Department of Labor.
Senator Hawley. But you support the effort, you support
this legislation. You support the effort to root out child
labor from Federal contracting, Federal Government?
Ms. Wagner. Yes
Senator Hawley. Fantastic. My time's expired, and I know
there are other senators who want to ask questions. Thank you
very much, Mr. Chair.
Chairman Peters. Thank you, Senator Hawley. Senator Rosen,
you are recognized for your questions.
OPENING STATEMENT OF SENATOR ROSEN
Senator Rosen. Thank you, Chair Peters. I really appreciate
you holding this hearing. I want to thank the nominees for
being here for testifying today. Mr. Huitema, we are going to
continue with you because current law allows former Members of
Congress who have committed a felony related to their time in
office to keep their tax payer funded pensions even after a
conviction.
They must forfeit this government benefit only after
exhausting all their appeals, which can drag the process on
clearly for years, and provide a windfall of hundreds of
thousands of dollars to convicted felons. I think it's
unacceptable that corrupt government officials can continue to
benefit off the back of taxpayers.
That's why last year I introduced the No Corruption Act,
it's bipartisan legislation with Senator Scott to close this
loophole by barring Members of Congress who are convicted of
felonies related to their official duties from collecting
taxpayer funded pensions.
After advancing this through Committee, our bill
unanimously passed the Senate. Mr. Huitema could confirm, would
you be supportive of a similar policy for member of the
president's cabinet or other high ranking Executive Branch
officials convicted of felonies related to their time in
office?
Mr. Huitema. Thank you, Senator for the question. The
specifics of that issue are one that I would need to study more
and consider. But I will say that while the Office of
Government Ethics primary role is to support ethics officials
in complying with their ethics obligations in the first place.
There is an important accountability and penalties where
necessary for violations of the ethics obligations are critical
as well. If I am confirmed as director of OGE, I am committed
to supporting accountability efforts, investigations, and so
forth, whether by inspectors general, the Department of
Justice, whoever it may be.
Senator Rosen. Thank you. I am going to continue with you
also because the Office of Government Ethics, it lacks a
statutory authority to enforce sometimes these ethics
violations. Current law only allows OGE to make recommendations
to an agency when one of its employees is alleged to have
violated ethics laws.
Should the agency in question ignore or reject the
recommendation of OGE, OGE are only able to inform the
President of the agency's actions, not overrule them, or make a
further recommendation.
Mr. Huitema, how does this lack of enforcement authority
limit OGE's ability to maintain the integrity of the Executive
Branch? If confirmed, would you like to see OGE receive
additional authority so it could take disciplinary actions
against wrongdoers?
Mr. Huitema. Thank you for that question as well, Senator.
I think that as I mentioned in my previous answer two sides of
the coin are both important. OGE's fundamental role is
supporting compliance upfront, right. Cultivating a culture of
compliance among Federal workforce, including our most senior
officials and supporting them in meeting their ethics
obligations. At the same time, supporting appropriate
accountability is important.
I will say that in my experience, in providing guidance to
cabinet officials, brand new employees, people who are
considering joining the State Department employees at all
levels, it has been effective and helpful to have that role as
advisor. Someone who's there to support them and employees are
genuinely appreciative.
I do think that a distinction between guidance and advice
on the one hand and enforcement on the other in most cases is
helpful and useful.
Whether there are specific authorities that would benefit
OGE in instances where it has identified a violation of the
ethics regulations or something that it considers to pose an
unacceptable risk of a conflict, for example, something like
that. It would need to consider and appreciate the opportunity
to consult further if confirmed.
I do think that in most cases, OGE's work in directing
agencies to take appropriate action is effective. There can be
cases at the highest profile and most often where agencies or
the administration refuses to take action. In those cases, I
think what's important for OGE is to be clear and transparent
about its position, its understanding of the appropriate
application of the law so the public can understand what OGE is
doing and kind of where it stands in those cases.
Senator Rosen. Thank you. I look forward to working with
you on that because advising and guiding, that's great. But if
people know that there's no consequence, then that could lead
to more significant problems. We talk about a culture of
transparency and accountability. Transparency plays that
critical role in increasing public trust in the Federal
Government. That's where I am leading with all of this.
One of the office of government ethics, foremost
responsibility is to ensure that ethics documents, like
disclosure forms are readily available to and accessible for
the general public. How do you plan to ensure that executive
agencies increase visibility of their own ethics documents,
particularly when you can't compel them to do so. Would it be
helpful for you to be able to compel them to do that?
Mr. Huitema. Thank you, Senator. OGE does have authority to
establish programmatic requirements for agency ethics programs.
There are provisions in the ethics regulations for public
access to public financial disclosure reports. In some ways,
this is a space where OGE has current authority already.
I am committed to always considering with regard to any
category of documents either new or existing. Does it serve the
public interest to make information proactively available. How
can we build that into a normal standard operating procedure?
In my mind, it would be information as Director of OGE,
information about OGE's own programs, the guidance that it's
providing, its own activities, and transparency about that
would be critically important.
Beyond that, when we come to information about our public
officials, that too can play an important role in informing the
public and providing confidence that those officials do not
have conflicts of interest.
I would say there's a little bit of a spectrum here. Where
information about our most senior officials, our political
appointees, those who have a broad range of discretion and
authority is most important, while also taking into account
either programmatic limitations or constraints or privacy
interests for other Federal employees.
Senator Rosen. Thank you very much. Thank you, Mr. Chair.
Chairman Peters. Thank you, Senator Rosen. I want to thank
our nominees once again for being with us here today and your
willingness to serve in these very important positions. The
nominees have filed responses to biographical and financial
questionnaires.\1\ Without objection, this information will be
made part of the hearing record\2\ with the exception of
financial data\3\ which is on file and available for public
inspection at the Committee offices.
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\1\ The information on Ms. Kiko appears in the Appendix on page 24.
\2\ The information on Ms. Wagner appears in the Appendix on page
70.
\3\ The information on Mr. Huitema appears in the Appendix on page
108.
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The hearing record will remain open till 12 p.m., tomorrow
April 18th for the submission of statements and questions for
the record (QFRs). This hearing is now adjourned.
[Whereupon, at 10:26 a.m., the hearing was adjourned.]
A P P E N D I X
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