Application of Laws: Comments on the Congressional Accountability Act--S.
2071 (Testimony, 06/29/94, GAO/T-OGC-94-2).
Several bills before Congress would extend employee protection laws to
Congress and other legislative branch agencies, such as the General
Accounting Office. This testimony focuses on the most comprehensive
bill, S. 2071, which would provide aggrieved employees the right to seek
remedial action under a system analogous to the one now available to GAO
employees. For GAO, the law's provisions have worked well. One essential
part of GAO's system is an independent administrative body--the
Personnel Appeals Board--that serves as an effective forum for personnel
and equal employment oversight and for resolving disputes. This system
avoids conflicts that would exist between GAO's legislative branch role
and enforcement by executive branch agencies. To avoid similar
conflicts, GAO recommends administration and enforcement of legislative
branch employees protection measures by authorities in the legislative
branch. GAO also recommends that Congress preserve existing enforcement
mechanisms in the legislative branch that work effectively, such as
GAO's Personnel Appeals Board and equal employment program. GAO believes
that clear guidance, qualified decisionmakers, employee education,
periodic self-evaluation, and independent oversight are key to
successful employee protection programs.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: T-OGC-94-2
TITLE: Application of Laws: Comments on the Congressional
Accountability Act--S. 2071
DATE: 06/29/94
SUBJECT: Fair employment programs
Personnel management
Federal personnel law
Proposed legislation
Administrative hearings
Labor-management relations
Legislative bodies
Congressional employees
Employment discrimination
IDENTIFIER: GAO Equal Employment Opportunity Program
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Cover
================================================================ COVER
Before the Committee on Governmental Affairs
United States Senate
For Release on Delivery
Expected at
9:30 a.m., EDT,
Wednesday,
June 29, 1994
APPLICATION OF LAWS - COMMENTS ON
THE CONGRESSIONAL ACCOUNTABILITY
ACT--S.2071
Statement of Robert P. Murphy
Acting General Counsel
GAO/T-OGC-94-2
GAO/OGC-94-2t
Abbreviations
=============================================================== ABBREV
============================================================ Chapter 0
Mr. Chairman, Senator Roth, and Members of the Committee:
I am pleased to be here today to discuss the proposed application of
certain employee protection laws to the Congress and other
legislative branch organizations, including the General Accounting
Office. Bills before the Committee vary substantially in the laws to
be applied, the breadth of coverage, and administrative and
enforcement mechanisms. These bills include S. 29, S. 103, S.
579, S. 2071, and S. 2194. I will focus on the most comprehensive
bill, S. 2071, which would apply to the Congress and congressional
instrumentalities 10 employee protection laws, as well as the Freedom
of Information Act and the Privacy Act. That bill would provide
aggrieved employees the right to seek remedial action under a system
analogous to the one currently available to GAO employees.
As the Final Report of the Joint Committee on the Organization of
Congress described last December, application of employee protection
measures to the legislative branch is a patchwork. There is more
consistent application of these laws to the three major support
agencies--GAO, the Government Printing Office, and the Library of
Congress--than to organizations closer to the core of the legislative
branch's constitutional roles of oversight and enacting legislation.
We at GAO are subject to most of the laws addressed in S. 2071
either directly or by incorporation through the GAO Personnel Act of
1980, or with respect to a few, through GAO regulation or policy.
Appended to this testimony is a fact sheet describing the application
of these provisions to GAO. The enforcement mechanisms for GAO are
largely analogous to those described in S. 2071. For us, these laws
have worked well, contributing to a safe, fair, and equitable work
environment, and helping to attract a highly qualified and motivated
workforce.
Based on our experience with GAO's employee protection provisions, on
the operation of an independent enforcement mechanism at GAO--our
Personnel Appeals Board, and on our evaluation of personnel
management practices at other agencies, we suggest several issues for
the Committee to consider with respect to S. 2071 and related bills.
LEGISLATIVE BRANCH ENFORCEMENT
---------------------------------------------------------- Chapter 0:1
First, for many legislative branch organizations, enforcement of
employee protection laws by the executive branch, as several bills
provide, presents the potential for the same conflicts which caused
the Congress to remove GAO's personnel system from executive branch
regulation in 1980. As a consequence, we recommend that legislative
branch authorities administer and enforce the laws.
The GAO Personnel Act of 1980 ended any possibility of compromise of
GAO's audit and investigative responsibilities with respect to the
Office of Personnel Management, which then had the power to determine
grade levels for GAO staff, and with respect to other executive
branch personnel agencies with power over GAO.
As we testified at the time, the potential for compromise when such a
conflict exists is subtle and unlikely to be a public matter, but its
very potential raised questions about the objectivity of GAO's work.
For that reason, the GAO Personnel Act of 1980 established a
Personnel Appeals Board to perform the functions that the Office of
Personnel Management, the Merits Systems Protection Board, the
Federal Labor Relations Authority, and the Equal Employment
Opportunity Commission perform for executive branch agencies.
Appeals from our Personnel Appeals Board originally went to the
United States Court of Appeals for the D.C. Circuit, and now go to
the Federal Circuit, where the Board's decisions are accorded the
same deference accorded to executive branch administrative bodies.
The Act also established a General Counsel to the Personnel Appeals
Board to investigate and prosecute allegations of prohibited
personnel practices and to investigate labor-management and
employment discrimination cases.
EXISTING PROGRAMS
---------------------------------------------------------- Chapter 0:2
The second issue concerns existing agency enforcement systems which
would be replaced under S. 2071. We have not examined the personnel
and equal employment protection systems at GPO or the Library of
Congress; but at GAO, our equal employment program and the employee
appeals system through our Personnel Appeals Board have taken years
to develop and play key roles in positive employee/management
relations and employee expectations of a fair and equitable
workplace. For that reason, we recommend that the Committee maintain
enforcement systems now in place which are working satisfactorily.
The Personnel Appeals Board at GAO plays two roles. It resolves
matters brought by aggrieved employees, and in that role it is truly
an independent body favoring neither the employee nor the agency. In
addition to civil rights and related laws, GAO employees are covered
by many of the other substantive provisions of law governing
executive branch employees. These include the merit systems
principles and performance appraisal principles, which are
incorporated in the GAO Personnel Act of 1980. The GAO Personnel
Appeals Board hears, and under S. 2071 would continue to hear,
allegations of prohibited personnel practices such as violations of
merit system principles. In deciding these disputes, the Board is
commonly viewed at GAO as fair and impartial, contributing to an
atmosphere that promotes effective employer/employee relations.
The Board also performs oversight of GAO's equal employment program.
The Board has examined and issued reports on GAO's employment of
persons with disabilities, GAO's affirmative action planning process,
and GAO's affirmative action activities concerning women and
minorities. An oversight report concerning an alternative dispute
resolution process for resolving workplace grievances is currently
being prepared.
The Board's organization and procedures and our internal equal
employment processes--including our mediation and our counseling
programs--have developed substantially during the years since the
1980 GAO Personnel Act. This has been a collaborative process
including the Board, agency employees and employee organizations, and
GAO management. While we cannot speak to the effectiveness of other
agencies' systems, we recommend that the Committee preserve those,
such as our Personnel Appeals Board and equal employment program,
that operate effectively.
IMPLEMENTATION ISSUES
---------------------------------------------------------- Chapter 0:3
Our third suggestion, really a group of suggestions, concerns
implementation and derives from our reviews of personnel management
practices in the legislative branch, most recently of operations of
the Architect of the Capitol on the Senate side, and last year on the
operations of the House of Representatives Office of Fair Employment
Practices. Those reviews highlight the importance of establishing
specific objectives for management operations, such as would occur
under S. 2071. I will briefly list implementation issues that
emerged from this work which the Committee might take into
consideration with respect to the bills before it:
-- For management systems to operate predictably and effectively,
clear regulations and guidance must be issued and kept current.
-- The laws in question are in many cases complex, and adjudicating
complaints or disputes that arise under them may require
considerable expertise. Whatever mechanism is selected for
adjudicating these disputes, qualifications should be
established to ensure that deciding officials have appropriate
knowledge and experience.
-- Issuance of regulations is not sufficient to ensure that covered
employees are informed about the procedures to follow and the
rights afforded them under the laws. Officials responsible for
implementation of the laws need to establish education and
outreach efforts to periodically inform management and covered
employees about the protections afforded by these laws. Such
efforts might include periodic direct communication with
employees or posters or other displays prominently and
continuously available in workplaces. Efforts such as these are
particularly important in some legislative branch organizations
where employee turnover is relatively high.
-- Once policies and procedures are established, periodic
self-evaluation or review of the implementation of the laws, as
well as oversight by an independent organization, are important
to ensure that they are being implemented as intended, and that
no unexpected problems have emerged. Self-evaluation procedures
and oversight by our Personnel Appeals Board help us at GAO to
identify areas for continuous improvement and to obtain early
indications that problems are emerging.
CONCLUSION
---------------------------------------------------------- Chapter 0:4
Based on our experience with most of the laws addressed in the bills
now before the Committee, we believe that they have worked well at
GAO. One essential part of our employee protection program is an
independent administrative body, our Personnel Appeals Board, serving
as an effective forum for personnel and equal employment oversight
and dispute resolution. This system avoids conflicts that would
exist between GAO's legislative branch role and enforcement by
executive branch organizations. To avoid similar conflicts, we
recommend administration and enforcement of legislative branch
employee protection measures by authorities in the legislative
branch. We also recommend that the Committee preserve existing
enforcement mechanisms in the legislative branch that work
effectively, such as GAO's Personnel Appeals Board and equal
employment program. Also, we believe that clear guidance, qualified
decisionmakers, employee education, periodic self-evaluation, and
independent oversight are key to successful implementation of any
employee protection program.
(See figure in printed edition.)Attachment
FACT SHEET OF EMPLOYMENT LAWS
APPLICABLE TO THE GAO
============================================================ Chapter 0
(See figure in printed edition.)
(See figure in printed edition.)
*** End of document. ***