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67–116 PDF 2012

S. Hrg. 112–218 

NOMINATION OF CAROLYN N. LERNER 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

OF THE

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

NOMINATION OF CAROLYN N. LERNER TO BE SPECIAL COUNSEL, 

OFFICE OF SPECIAL COUNSEL 

MARCH 10, 2011 

Available via the World Wide Web: http://www.fdsys.gov/ 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

MARK BEGICH, Alaska 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

JOHN ENSIGN, Nevada 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

MICHAEL L. ALEXANDER, Staff Director 

BETH M. GROSSMAN, Deputy Staff Director and Chief Counsel 

KRISTINE V. LAM, Professional Staff Member 

LISA M. POWELL, Staff Director, Subcommittee on Oversight of Government Management, 

the Federal Workforce, and the District of Columbia 

NICHOLAS A. ROSSI, Minority Staff Director 

MOLLY A. WILKINSON, Minority General Counsel 

JENNIFER L. TARR, Minority Counsel 

ALAN B. ELIAS, Legislative Assistant, Office of Senator Ron Johnson 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 

(III) 

C O N T E N T S 

Opening statements: Page 

Senator Akaka .................................................................................................. 1 

Senator Johnson ............................................................................................... 2 

Prepared statements: 

Senator Akaka .................................................................................................. 15 

Senator Johnson ............................................................................................... 16 

WITNESS 

THURSDAY, MARCH 10, 2011 

Carolyn N. Lerner to be Special Counsel, Office of Special Counsel: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 17 

Biographical and financial information .......................................................... 19 

Responses to pre-hearing questions ................................................................ 28 

Letter from the Office of Government Ethics ................................................. 43 

Responses to post-hearing questions for the Record ..................................... 46 

(1) 

NOMINATION OF CAROLYN N. LERNER 

THURSDAY, MARCH 10, 2011 

U.S. SENATE, COMMITTEE ON HOMELAND SECURITY AND

GOVERNMENTAL AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Daniel K. Akaka, 

presiding. 

Present: Senators Akaka and Johnson. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. This hearing will come to order. 

Aloha and good morning, everyone. This hearing is full of smiling 

faces, and we are delighted to be here today. 

The Committee on Homeland Security and Governmental Affairs 

meets to consider the nomination of Carolyn Lerner to serve as 

Special Counsel. 

I would like to extend a warm welcome to Ms. Lerner and also 

welcome her family and her friends who have joined us today for 

this nomination hearing. 

Ms. Lerner attended the University of Michigan, where she was 

selected to be a Truman Scholar, and studied at the London School 

of Economics. She received her law degree from New York University, where she was awarded a Root-Tilden-Snow Scholarship. After 

law school, Ms. Lerner clerked for a Federal judge and then began 

to practice law. In 1997, she became a founding partner in her law 

firm here in Washington, DC, where she represents individuals, including Federal employees, in employment matters. Ms. Lerner is 

also a visiting professor at George Washington University Law 

School. 

Ms. Lerner, I would like to congratulate you on your nomination. 

It is a pleasure to have such a well-qualified nominee before us 

today. 

I understand that your husband, Dwight, your son, Ben, and 

daughter, Anna, are here today, and I would like to give you the 

opportunity to introduce them and any other family members or 

friends who are here for this hearing. Would you please introduce 

them to the Committee, Ms. Lerner? 

Ms. LERNER. Thank you, Senator. My husband, Dwight Bostwick, 

is here, and my daughter, Anna, and my son, Ben. My family in 

Michigan, unfortunately, could not be with me today, but I believe 

they are watching on the Committee’s remote access. My law partVerDate Nov 24 2008 10:30 Jan 24, 2012 Jkt 067116 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 P:\DOCS\67116.TXT SAFFAIRS PsN: PAT
2 

ners are here, Rick Salzman, Steve Chertkof, and Doug Heron, and 

I have many other friends here, as well. 

Senator AKAKA. Well, thank you, and all of you are welcome. 

We are delighted to have you and look forward to this hearing. 

But again, I want to say aloha to everyone. I can see that Ms. 

Lerner has a strong network of supporters here today. 

The Office of Special Counsel (OSC) was created in 1978 as part 

of the Civil Service Reform Act. Although it may not be the most 

well known Federal agency, the Office of Special Counsel serves a 

very important purpose, which is to safeguard the merit system by 

protecting Federal employees and applicants from prohibited personnel practices. 

Our dedicated Federal employees are among this country’s greatest assets. I believe that civil servants must be able to serve their 

country without undue influence or fear of discrimination or retaliation. For almost a decade, I have worked to reform the protections for Federal whistleblowers, enacting the Whistleblower Protection Enhancement Act so that Federal employees may report 

waste, fraud, abuse, or illegal activity without fear of retaliation, 

and it is one of my top priorities in this Congress. Having a Special 

Counsel in office who understands the critical importance of Federal employee whistleblowers is a key aspect of restoring faith in 

whistleblower protections. 

In addition, the Office of Special Counsel protects the employment rights of our veterans by enforcing the Uniformed Services 

Employment and Reemployment Rights Act (USERRA). As a member of the Veterans Affairs and Armed Services Committees and as 

a veteran of World War II myself, I feel strongly that our service 

members’ rights must be protected as they prepare to enter or return to the civilian workforce. This issue has become even more important in recent years with large numbers of veterans returning 

from overseas who want to continue their service in a civilian capacity. I understand that this essential office at the OSC is understaffed. I hope you will focus attention on veterans’ protections 

when you are confirmed. 

Finally, the Office of Special Counsel is responsible for enforcing 

and providing advisory opinions on the Hatch Act. Because the presumptive penalty for violating the Hatch Act is removal from Federal employment, the OSC’s advisory function is vital to helping 

employees understand what activity is permitted under the law. 

I want to tell you that I am happy that my new partner on the 

Oversight of Government Management, the Federal Workforce, and 

the District of Columbia Subcommittee, Senator Johnson, is here 

today for his first hearing serving as Ranking Member. I would like 

to take this opportunity to welcome him and to say that I look forward to working with him on these important issues here in the 

U.S. Senate. 

Senator Johnson, would you like to make any statement at this 

time? 

OPENING STATEMENT OF SENATOR JOHNSON 

Senator JOHNSON. Yes, and thank you, Senator Akaka. Aloha. 

Senator AKAKA. Aloha. 

3 

Senator JOHNSON. I would imagine I will be saying that quite a 

few times, and I will enjoy that. I would rather be doing it in Hawaii, though, I think. 

Senator AKAKA. Yes. 

Senator JOHNSON. But again, thank you, sir, for your kind introduction. I am really looking forward to working with you over the 

next couple of years. It is going to be an honor serving with you 

on this Committee and also on our Subcommittee on Oversight of 

Government Management, the Federal Workforce, and the District 

of Columbia. 

I guess I would like to begin by also welcoming you, Ms. Lerner, 

and your family and your friends and people who have come here 

to support you in this hearing. We share rookie status here. This 

is my first time as a Ranking Member and your first time testifying, so welcome. 

Rather than repeating what Senator Akaka talked about in 

terms of the importance of this office, I will second what he said. 

It is an extremely important office. I guess I would like to just give 

a brief opening remark, focus on the waste, fraud, abuse, mismanagement, duplication of service aspects, of how important it is 

to protect whistleblowers. 

I really do not want to turn this into a budget hearing, but as 

we discussed in my office a week ago, our Federal Government is 

facing a $1.65 trillion budget deficit this year. Our national debt 

exceeds $14 trillion. The President’s budget lays out another $13 

trillion of debt over the next 10 years. My concern is that at some 

point in time, we are going to face a debt crisis. 

So the financial pressure we put on agencies is going to be tremendous, and our Federal Government simply cannot afford to operate ineffectively and inefficiently, and I think the Office of Special Counsel will play a key role in allowing people to come forward—now, I agree with Senator Akaka. I think our Federal workforce is comprised of fine individuals who want to do the right 

thing, and the Office of Special Counsel gives them that outlet, 

gives them that assurance that they can step forward, report mismanagement, waste, fraud, and abuse, and I cannot imagine a time 

in our Nation’s history where that is going to be more critical. 

As we talked in my office about a very cooperative relationship 

here, and the same thing that Senator Akaka and I talked about 

in our committee and subcommittee work, we want to cooperate 

with the agencies. I do not think negative works. I am not into 

‘‘gotcha’’ politics. I want everybody in the Federal Government, at 

least from this Senator’s perspective, to understand that I want to 

work with the agencies to help them become more effective and 

more efficient. I want to work with the Federal workforce, with the 

fine men and women who serve our Federal Government and who 

want to come forward and say, we can make things a little more 

effective. We can make things a little more efficient. I think it is 

just absolutely critical. 

So again, I want to thank you for stepping up to the plate. As 

we discussed earlier, there are going to be long hours. This is going 

to be hard work. It is a difficult challenge. This office has gone 

without a leader now for 2 years. So I am really pleased that we 

4 

1The prepared statement of Ms. Lerner appears in the Appendix on page 17. 

are holding this hearing because it is a very important office, and 

I am looking forward to your testimony. 

Senator AKAKA. Thank you very much, Senator Johnson, for your 

statement. 

The nominee has filed responses to a biographical and financial 

questionnaire, answered prehearing questions submitted by this 

Committee, and had her financial statements reviewed by the Office of Government Ethics. Without objection, this information will 

be made a part of the hearing record, with the exception of the financial data. It is on file and available for public inspection at the 

Committee offices. 

Our Committee rules require that all witnesses at nomination 

hearings give their testimony under oath. Therefore, I ask the 

nominee to please stand and raise your right hand to take this 

oath. 

Do you swear that the testimony you are about to give this Committee is the truth, the whole truth, and nothing but the truth, so 

help you, God? 

Ms. LERNER. I do. 

Senator AKAKA. Thank you very much. Let it be noted in the 

record that the witness answered in the affirmative. 

Ms. Lerner, will you please proceed with your statement? 

TESTIMONY OF CAROLYN N. LERNER 1 TO BE SPECIAL 

COUNSEL, OFFICE OF SPECIAL COUNSEL 

Ms. LERNER. Yes. Chairman Akaka and Ranking Member Johnson, thank you for the opportunity to appear before you today. It 

is a privilege to be considered for confirmation by this Committee. 

I am honored and humbled that the President has nominated me 

to serve as Special Counsel. 

I briefly introduced my family before. My husband, Dwight 

Bostwick, and our two children, Anna and Ben. I am very grateful 

to them for their unwavering love and support. A number of my 

friends and colleagues are also in the audience today, and I would 

like to thank them, as well, for being here. 

I also want to acknowledge my family in Michigan, who could not 

be here today, but who have encouraged me throughout my life. I 

would not be here but for the two people whose influence led me 

to pursue a career in the law. My mother and my father would 

have treasured this day. They were the children of immigrants who 

came to this country seeking a better life. My grandfather had been 

jailed in his country for speaking out against the government, and 

my parents taught me to appreciate the freedoms that we enjoy in 

the United States. They also impressed upon me the importance of 

standing up for those who cannot protect themselves. 

I began my career in Michigan, where I grew up, as a law clerk 

to U.S. District Court Chief Judge Julian Abele Cook, Jr. Judge 

Cook treats all those who appear before him with kindness, dignity, 

and respect. His approach set the standard I have tried to emulate 

as I have practiced law in the 20 years since my clerkship. 

Since 1991, I have represented both private sector and Federal 

employees, primarily in employment-related cases. I have advised 

5 

employers about best workplace practices and employment issues. 

As a Federal court-appointed independent monitor, I managed and 

implemented a reform program for a large government agency. I 

have also served as both a mediator and a professor of mediation. 

These experiences have given me a broad perspective on how 

workplaces function and how best to protect employees from discrimination and retaliation. If confirmed, I would bring this expertise to the Office of Special Counsel. 

There are several employees from the Office of Special Counsel 

who are here today, and they deserve our appreciation for their ongoing commitment to the OSC. 

The Office of Special Counsel was created to protect Federal employees who report abuses in government. Employees need to have 

the courage to blow the whistle on waste, fraud, and abuse, and we 

need to provide them with the assurance that if they do, their careers and their livelihoods will not be at risk. 

Whistleblowers are essential to a well-functioning government. 

Federal employees have been described as the foot soldiers in the 

war on waste, fraud, and abuse. They not only protect public health 

and safety, they are guardians of taxpayer dollars, a role that has 

become more important than ever. 

Whistleblower disclosures under the False Claims Act have accounted for billions of dollars in recoveries for the U.S. Treasury. 

A recent private sector study found that employee disclosures detected more fraud than auditors, internal compliance officers, and 

law enforcement officials combined. 

To effectively protect the Federal Merit System, the Office of 

Special Counsel must be a highly functioning agency. I believe that 

the OSC can best succeed if its own employees are treated fairly 

and with respect. 

It will also take a strong partnership with all of the OSC’s stakeholders to move the agency forward in a positive way. If confirmed, 

I am committed to building collaborative and constructive relationships with the Congress, Federal employee and agency management groups, and good government advocates. In particular, I look 

forward to working very closely with this Committee as you continue your important efforts to increase effectiveness and efficiency 

in the government. 

Thank you, and I would be very pleased to answer any questions 

that you may have. 

Senator AKAKA. Thank you very much, Ms. Lerner. 

I will begin with the standard questions that the Committee asks 

of all nominees. 

First, is there anything you are aware of in your background that 

might present a conflict of interest with the duties of the office to 

which you have been nominated? 

Ms. LERNER. No, there is not. 

Senator AKAKA. Second, do you know of anything, personal or 

otherwise, that would in any way prevent you from fully and honorably discharging the responsibilities of the office to which you 

have been nominated? 

Ms. LERNER. No, I do not. 

6 

Senator AKAKA. Third, do you agree, without reservation, to respond to any reasonable summons to appear and testify before any 

duly constituted committee of Congress if you are confirmed? 

Ms. LERNER. Yes, I do. 

Senator AKAKA. Thank you very much. 

Ms. Lerner, the Special Counsel position has been vacant for over 

2 years. In light of the extended vacancy, what do you believe are 

the major challenges facing the OSC and what will you do to address them if you are confirmed? 

Ms. LERNER. This agency, as you know, has been without permanent leadership for 2 years, and I do want to recognize the fact 

that the career employees of this agency have very honorably taken 

over the roles that are usually filled by people who are in the office 

of the immediate Special Counsel, and so they have been doing 

double-duty and they deserve our appreciation for having done 

that. 

In terms of the challenges facing the agency, obviously, if I am 

confirmed and I am in the agency, I will have a much better sense. 

But as of now, we know that without leadership, some long-term 

planning probably needs to be done. We need to look at the bottom 

line and how the agency is using its resources and whether it is 

using resources in the most efficient and effective way. 

I also think a challenge is going to be increasing communication. 

As you mentioned, I think it is very important that the Office of 

Special Counsel have good communication with the Senate and in 

particular with this Committee. Communications should not be 

limited to hearings, but there should be an ongoing dialogue. There 

also needs to be communication with all of the other stakeholders 

of the agency, including agencies and the good government advocates. So I think that those would certainly be priorities for me if 

I am confirmed. 

Senator AKAKA. Thank you. Ms. Lerner, you have spent your career working in the private sector representing individuals, including Federal employees. How do you believe your experience has 

prepared you for this position, both in terms of managing the OSC 

and its employees and enforcing Federal Merit System principles? 

Ms. LERNER. In the 22 years since I graduated from law school, 

I have been privileged to have a very wide range of experiences. In 

addition to representing individuals in employment cases, I have 

also worked with organizations and small businesses on best employment practices and developing policies and procedures for 

them. I have represented organizations who were the subject of 

complaints from employees, both in mediation and in litigation. 

I have served as a court-appointed Special Inspector for the D.C. 

Department of Corrections, an agency with over 1,000 employees, 

and managed a program there where I was responsible for recruiting, hiring, training, and supervising a team of lawyers, trainers, 

and mediators. I set up systems within the Department of Corrections, such as an Employee Advisory Committee, an ombudsman, 

and certainly representing individuals in employment cases has 

given me a lot of insight into what good management can do and 

the effect of both good and bad management. 

So I would bring those collective experiences to the Office of Special Counsel if I were confirmed. 

7 

Senator AKAKA. Ms. Lerner, I understand that employee morale 

in the OSC is low and that some employees complained of possible 

illegal retaliation in the past. If confirmed, what are your plans to 

improve the workplace environment? 

Ms. LERNER. As I mentioned, I do have experience with troubled 

workplaces, large and small, and I have counseled businesses on 

how to deal with troubled workplaces. 

The first thing that I think would be really important to do is 

to meet with people myself and determine if steps need to be taken 

to improve morale, and if so, what are they. I would like to learn 

by talking to people. I think I am a good listener. And that would 

be the first thing I would do if I am confirmed, is to listen to the 

people who are working there at the Office of Special Counsel. 

I also have a lot of experience doing mediation, and those skills 

as a mediator, I think, would stand me in good stead in trying to 

bring the agency forward, and I would assure you that I will take 

whatever steps are appropriate, including things like setting up or 

reinvigorating an Employee Advisory Committee, which I believe 

this agency may have had in the past. I am not sure what the status is now of that committee. 

But I think all those steps are things that can really help morale, 

and I would be prepared to do those things. 

Senator AKAKA. Thank you, Ms. Lerner. Federal employees may 

lack confidence in the whistleblower protections because of weak 

enforcement of the Whistleblower Protection Act. Federal whistleblowers have told this Committee that they feel that they have no 

place to turn to disclose information without suffering retaliation. 

What steps will you take to restore confidence in the Office of Special Counsel and specifically to protect Federal whistleblowers? 

Ms. LERNER. Thank you for that question. I think you raise a 

really important issue, and I am very happy to be able to address 

it. I, too, have heard that advice is often given to people that the 

last place you want to go is the Office of Special Counsel. If I am 

confirmed, I would like to find out why that is and if that actually 

is the case. 

My goal, if I am confirmed as Special Counsel, is to have it be 

an agency where you feel comfortable referring your constituents. 

If they come to your offices with a problem, someone has a whistleblower complaint or a USERRA complaint or a disclosure or feels 

that they are being discriminated against because of a prohibited 

personnel practice, I want you to feel very confident in referring 

them to the Office of Special Counsel. I want the good government 

advocates and groups to feel like the Office of Special Counsel is 

the first place they would recommend that people come. And restoring the reputation, improving the reputation of the office will be a 

very important goal for me, if I am confirmed. 

Senator AKAKA. Thank you very much. We will continue with 

questions. I would like to now call on my partner, Senator Johnson, 

for his questions. 

Senator JOHNSON. Thank you, Mr. Chairman. 

Let us continue that one vein of questioning. There was a study 

in 2010, an Office of Personnel Management Federal Employee 

Viewpoint Survey. It says 63 percent of the respondents felt they 

could disclose a suspected violation of law, which means that 37 

8 

percent thought they would not. What would be your theory in 

terms of your understanding of the office? Why would it be that 

low? 

Ms. LERNER. Well, first of all, I think it is very common for people to feel hesitant about coming forward. In my experience as a 

lawyer representing individuals with claims, and certainly as a 

Special Inspector for the D.C. Department of Corrections, I can tell 

you, it takes a lot of courage to come forward. If people are going 

to come forward, there has to be a safe and secure place for them 

to go where they feel like they will be listened to, respected, taken 

seriously, and if they request confidentiality, that confidentiality 

will be respected to the extent possible. 

So improving the perception of the Office of Special Counsel is 

going to be really important so that people feel comfortable coming 

there with a claim. 

Senator JOHNSON. Can you walk me through—again, I am new 

in town—the process of a whistleblower approaching the office and 

exactly what steps are taken for the four different areas that the 

office has responsibility for? 

Ms. LERNER. Sure. There are four different areas. There are people who have actual disclosures that they want to make of waste, 

fraud, and abuse or a health and safety problem, and those complaints would go to the Disclosure Unit. 

For individuals who have a complaint about a prohibited personnel practice, which includes retaliation for having been a whistleblower as well as any other prohibited personnel practice, their 

complaint would first go to the Complaint Examining Unit, and 

that unit does an initial screen to determine if there is enough 

there to have it referred to the Investigation and Prosecution Unit. 

For USERRA complaints, generally those come from the Department of Labor initially, and the Office of Special Counsel has the 

ability to bring a USERRA case to the Merit Systems Protection 

Board (MSPB) for prosecution. 

And the last category or last bucket of cases that the Office of 

Special Counsel gets are Hatch Act claims, and those claims or 

those complaints come in either directly from individuals who have 

a complaint to make about something or through an agency. Also, 

individuals may send an email or leave a voice mail message on 

the hotline with a question for clarification about how the Hatch 

Act actually works. 

So that gives you a little bit of an overview. 

Senator JOHNSON. So those are the complaints coming in. When 

a complaint comes into the Disclosure Office, what does the Disclosure Office do with that and how does the process continue? 

Ms. LERNER. I would like to be able to give you a full and complete answer to that question, and until I am actually in the agency, I am not sure I have all the right information to provide to you 

at this point. 

Senator JOHNSON. Fair enough. Do not worry about it. 

Ms. LERNER. I just do not want to misspeak on that issue. 

Senator JOHNSON. Sure. Let me ask you, how much time have 

you been able to spend inside the office talking to some of the managers who are there currently? 

9 

Ms. LERNER. I have actually not been inside the agency yet. I 

have talked to the heads of some of the various units of the Office 

of Special Counsel to try to get a sense of what they are doing, 

what they think is working well, where improvements may need to 

be made. But these have just been introductory meetings. 

If confirmed, I would anticipate having much longer and more 

thorough conversations about the workings of each of those units. 

Senator JOHNSON. Do you have any sense right now, and this is 

not derogatory to any individual in the office, of some weaknesses 

there that need to be filled and do you have any game plan in 

terms of what you may want to do in terms of first actions? 

Ms. LERNER. I think that is going to be a tough question to answer until I am actually confirmed. 

One area that I do have some concerns about kind of prospectively is in the USERRA Unit because this unit is getting a second 

demonstration project. There was a demonstration project a few 

years ago where cases were divided between the Department of 

Labor and the Office of Special Counsel from the very beginning of 

a case so that odd-numbered cases go to the Department of Labor, 

or vice-versa, and even-numbered go to one of the agencies. And 

the expectation is that there are going to be between 400 and 500 

new matters for the USERRA Unit, and right now, that unit only 

has three full-time employees. So I am not exactly sure how that 

is going to work at this point. 

That is an area that I want to look at and figure out how we can 

effectively service those complaints because as you mentioned, Senator Akaka, under USERRA, we really need to protect our returning service members. It is a law that was enacted to make sure 

that there was not discrimination against people who want to serve 

in the military or who have served in the military, so that needs 

to be a very high priority. 

Senator JOHNSON. You bring up the issue of resourcing, and 

again, going back to a $1.65 trillion a year deficit, there is certainly 

talk of some fixes where you do across-the-board cuts in agencies. 

If presented with that situation, how would you handle something 

like that? 

Ms. LERNER. Obviously, every agency in the government right 

now is being asked to do more with less. This particular agency 

right now has an $18.5 million budget, which is kind of a speck of 

dust on the overall budget, and my view is that I think this is an 

agency that can save the government money. Just like you would 

not fire Internal Revenue Service auditors to do fewer audits of tax 

returns, I think cutting back on this particular agency would be illadvised. 

There are studies that have been done, and I mentioned a couple 

briefly in my opening statement that show that whistleblowers can 

save the government money. I would like to pursue that a little bit 

more and perhaps have the Government Accountability Office 

(GAO) do a study about whether OSC whistleblowers are saving 

the government money, as well. 

So I think it is an investment that is well worth it for this government. If there have to be cutbacks, we will deal with them, and 

I am prepared to make the tough choices that may need to be 

10 

made. But without actually being there, it is hard for me to tell you 

exactly how. 

Senator JOHNSON. Thanks. 

Senator AKAKA. Thank you very much, Senator Johnson. 

Ms. Lerner, as you know, I have fought for veterans’ protections, 

and I believe that enforcing the Uniformed Services Employment 

and Reemployment Rights Act is one of the OSC’s most important 

responsibilities. I understand that this office in the OSC has only 

three full-time staff members. Under a three-year demonstration 

project, as you mentioned, the OSC will investigate most USERRA 

claims from the outset, as well as prosecuting them before the 

MSPB. How will you handle this heavy load with only three staff 

members at this time? 

Ms. LERNER. I believe the plan under this demonstration project 

is to have half of the cases still initially looked at by the Department of Labor and half of them will go to the Office of Special 

Counsel. But it is going to be a massive increase in workload for 

this unit. 

I understand that there is a request to increase the resources for 

this unit so that they can hire additional lawyers and investigators, 

as they were able to do with the last demonstration project, I believe. So I think, realistically, it is going to be really tough for three 

people to handle the expected number of claims—between 400 and 

500. Now, it may be less than that, but we need to be prepared, 

and so as I mentioned earlier, that is going to be a very high priority for me if I am confirmed. I think protecting our service members is a vital responsibility of the Office of Special Counsel. 

Senator AKAKA. The OSC also has an important responsibility to 

train Federal agencies on their responsibilities under this statute. 

Investing in this training may ultimately reduce the number of 

USERRA claims that are filed, we hope. How will you make sure 

agencies receive adequate training so they understand their responsibilities under the law? 

Ms. LERNER. I completely agree that training is a crucial part of 

getting enforcement of the law. My view is agencies want to be in 

compliance with the law, but they also need the training to know 

how to be in compliance. They need to be familiar with their responsibilities under USERRA. 

There are a few ways that the Office of Special Counsel can support the agencies in that effort. One is through the certification 

program. Right now, the Office of Special Counsel has a certification program that helps the agencies know what their responsibilities are. It is a very minor or limited process that the agencies 

need to go through to become certified, but my understanding is 

that not a lot of agencies have gone through it and are certified. 

But if they are, I think that will be one mechanism to increase outreach, and certainly USERRA would be an important part of that 

outreach. 

The other way to do it is to do online computer programs. That 

is a technology that exists that I think could be very useful. Increasing the access to information through written materials that 

go out, training materials, improving—I have not actually looked in 

detail at the Web site for USERRA, but the Office of Special CounVerDate Nov 24 2008 10:30 Jan 24, 2012 Jkt 067116 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 P:\DOCS\67116.TXT SAFFAIRS PsN: PAT
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sel could certainly provide a lot of information on its Web site for 

both employees and managers on USERRA. 

So I think that there are a wide range of avenues that are available, and I would be very interested in exploring it and also hearing from this Committee about any ideas that you may have to improve awareness about USERRA. 

Senator AKAKA. Ms. Lerner, the Hatch Act was last amended by 

Congress in 1993. Since that time, there have been many changes 

in the workplace, including significant technological advances. Do 

you believe the Hatch Act should be reviewed in light of these developments? 

Ms. LERNER. Yes, Senator, I do believe it should be reviewed, just 

like the Whistleblower Protection Act has gone through reviews 

since it was initially enacted. Now that the Whistleblower Protection Enhancement Act is hopefully on its way to being enacted at 

some point, there should be changes, or at least a review of how 

effective the Hatch Act is or if changes need to be made given recent technologies. Things like BlackBerrys and laptop computers, 

telecommuting, and teleworking from home were not very common 

when the Hatch Act was first enacted. So while I do not know right 

now what recommendations I might want to make, I think it is 

worth a review, and I would again want to work with this Committee on that. 

Senator AKAKA. Thank you. As you know, the Office of Special 

Counsel must work closely with the Merit Systems Protection 

Board, the Office of Personnel Management, and the Equal Employment Opportunity Commission (EEOC) to protect Federal employees’ rights and ensure that the Federal civil service is free of 

prohibited personnel practices. What will you do to ensure cooperation between the OSC and these agencies? 

Ms. LERNER. I think communication and collaboration with these 

agencies will be very important. Starting with the MSPB, the relationship of the Office of Special Counsel to the MSPB is a little bit 

like a prosecutor to a judge because the OSC brings cases to the 

MSPB. So there is a limit to how much collaboration there can be, 

certainly on individual cases, with the MSPB. However, the MSPB 

does have the ability to do studies and outreach and education, and 

that is an area of overlap with the OSC, and that would be an area 

that I would be very interested in exploring. 

Similarly, the Office of Personnel Management has the ability to 

do outreach and education for the Federal workforce and develop 

policies and procedures, and so I think that there should be collaboration in those areas with the Office of Personnel Management. 

The EEOC handles prohibited personnel practices as well as the 

OSC, and generally, the types of prohibited personnel practices 

that go to the EEOC are things like race, sex, age, and national 

origin discrimination. And the Office of Special Counsel has to 

make sure that there is clear communication with both complainants and with the EEOC because those cases have to go to the 

EEOC, and there is no tolling arrangement so that the time that 

Federal employees have to bring a case does not stop if they come 

to the OSC first. So there needs to be communication in that area. 

Also, in terms of outreach and education, I think that the OSC 

and the EEOC should collaborate in terms of educating the workVerDate Nov 24 2008 10:30 Jan 24, 2012 Jkt 067116 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 P:\DOCS\67116.TXT SAFFAIRS PsN: PAT
12 

force and trying to do whatever they can to make sure that agencies are in compliance with the law. 

Senator AKAKA. Thank you very much for your responses. 

Let me call on Senator Johnson for his further questions. 

Senator JOHNSON. Well, Senator Akaka, you did a great job asking questions. I have been ticking off the same ones I was going 

to ask, but let me go back a little bit and talk about how tight the 

budget is. My follow-up was really going to be, so what case would 

you make in terms of securing your budget or possibly even increasing it, because this is an important area, and you answered 

that very well, quite honestly. 

Ms. LERNER. Thank you. 

Senator JOHNSON. You did mention studies that had been made. 

Ms. LERNER. Yes. 

Senator JOHNSON. Have you seen any dollar estimates of savings 

from whistleblowing? 

Ms. LERNER. The only studies I have been able to find that specifically address the dollar, bottom-line numbers are in the private 

sector and with the Federal False Claims Act. There have not been 

any studies that look at the OSC and what savings there might be. 

I would very much like to pursue that, and perhaps in partnership 

with the GAO, which does those types of studies. The MSPB also 

has a way to do those types of studies, and I am not sure right now 

which is the appropriate agency, but certainly GAO, I think, would 

be one possibility. 

We know that in the private sector, whistleblowers save a lot of 

money. As I mentioned in my opening statement, they save more 

than internal compliance officers, Federal law enforcement, and inspector generals combined. So I think the potential is really there. 

There is also a preventative effect. By having an agency like the 

Office of Special Counsel, it is hard to quantify how much we are 

saving just having an enforcement body there to prevent these 

kinds of things from happening. I think if we did not have this 

agency for enforcement and for whistleblowers to come to with 

waste, fraud, and abuse, there would not be any check on it. And 

that will be hard to quantify, but it is something to keep in mind. 

Senator JOHNSON. Let me just add, I would be happy to work 

with you in terms of developing that case and trying to get those 

studies out of GAO. I think that is extremely important. 

This is not a ‘‘gotcha’’ question, but in your answer to question 

10 in the pre-hearing questionnaire, you were talking about respect 

for the OSC. Can you tell me what you were talking about, what 

you sensed, or what you know about respect or lack of respect for 

the OSC currently? 

Ms. LERNER. The kinds of things that I have heard are the sorts 

of things that Senator Akaka referred to in his opening statement, 

or perhaps it was one of your questions, Senator, that people are 

very hesitant to come to the Office of Special Counsel right now. 

And as I mentioned, there is often a hesitancy to come forward 

with a complaint anyway. People do not want to be viewed as complainers or whiners, and they know that if they do, there is often 

retaliation in the workplace. It is just a fact of life. And so we have 

to do everything we can to make sure that the Office of Special 

Counsel is a safe and secure place for people to come with whistleVerDate Nov 24 2008 10:30 Jan 24, 2012 Jkt 067116 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 P:\DOCS\67116.TXT SAFFAIRS PsN: PAT
13 

blower complaints, disclosures, and prohibited personnel practice 

complaints. 

Outreach to the agencies, outreach to the good government 

groups, outreach to the unions, all of those things, I think, will be 

important. I think strong leadership will help. If people see that 

the agency is willing to bring cases to the MSPB, if they feel like 

it is a vigorous law enforcement agency, I think that will certainly 

help its reputation. I am sure there are other steps, as well. 

Senator JOHNSON. You are kind of swerving into my next question here because when you were answering Senator Akaka’s question on awareness for USERRA, what was going through my mind 

again is proactive versus reactive. 

Ms. LERNER. Yes. 

Senator JOHNSON. My guess is this agency is generally reactive. 

People come and they lodge a complaint and then they start acting 

on it. What steps could we take to make this office far more 

proactive? You were kind of addressing some of those, but do you 

have further comments on that? 

Ms. LERNER. One mechanism that is in place right now is the 

certification program, and I do not know how active it is right now. 

My sense is that—certainly not all the agencies are part of it. We 

might want to think about whether it makes sense to make that 

certification program mandatory because right now, it is a voluntary program. Agencies can choose to participate or not. And it 

is not really a very cumbersome program. I mean, it is really just 

about making sure that the agencies are getting the word out to 

their employees, that they are providing materials on the rights, 

how to file a complaint, doing education, and I think that is an 

area that would very easily lend itself to being proactive. 

I am sure that there are others, as well. More communication 

with the Federal employees. We send information out to Federal 

employees about the Thrift Savings Plan by mail. When people are 

hired, they get, I am sure, a packet of material about personnel 

issues. We should probably think about including in the packet of 

materials that employees get information on the Office of Special 

Counsel. I do not think a lot of employees know that the Office of 

Special Counsel even exists right now. So education and communication are going to be really important. 

Senator JOHNSON. Well, I am sure both Senator Akaka and I 

would love to work with you on that, which brings me, I guess, to 

my last question, which is you certainly expressed a desire to work 

with us cooperatively. Do you have some concept in your mind 

what type of regimen that would be, what that type of cooperation 

would look like? 

Ms. LERNER. Well, informal cooperation is always good. I do not 

think it should necessarily have to be through a hearing. I am 

happy to come back and testify if you feel the need to have hearings. That is certainly an important role for this Committee. But 

I would like there to be a more informal back and forth, and I am 

happy to communicate with the staff. I am happy to communicate 

directly with the Members of this Committee in any form or in any 

way that you believe would be appropriate. 

Senator JOHNSON. I appreciate that. 

14 

Senator AKAKA. Thank you very much, Senator Johnson, for your 

questions. I thank you for being so thorough with your questions. 

And thank you for your responses, Ms. Lerner. At this time, 

there are no further questions. There may be additional questions, 

however, from Members for the record, and we will submit them 

to you in writing. 

Ms. LERNER. Thank you. 

Senator AKAKA. The hearing record will remain open until noon 

tomorrow for Members of this Committee to submit additional 

statements or questions. 

I want to thank you very much, and your family and your 

friends, Ms. Lerner, for being here. I am very pleased to be able 

to hold a hearing for such a well-qualified nominee. 

Ms. LERNER. Thank you. 

Senator AKAKA. It is my hope that the Committee will vote soon 

and that your nomination will be considered by the full Senate very 

shortly. So thank you very much. I want to wish you well in your 

future work. 

This hearing is adjourned. 

[Whereupon, at 10:52 a.m., the Committee was adjourned.] 

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