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27–756 PDF 2006

S. Hrg. 109–681

FULFILLING THE PROMISE? A REVIEW OF

VETERANS’ PREFERENCE IN THE

FEDERAL GOVERNMENT

HEARING

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT, 

THE FEDERAL WORKFORCE AND THE DISTRICT 

OF COLUMBIA SUBCOMMITTEE

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 30, 2006

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

MICHAEL D. BOPP, Staff Director and Chief Counsel 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Chief Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL 

WORKFORCE AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE 

GEORGE V. VOINOVICH, Ohio, Chairman 

TED STEVENS, Alaska 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

DANIEL K. AKAKA, Hawaii 

CARL LEVIN, Michigan 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

ANDREW RICHARDSON, Staff Director 

RICHARD J. KESSLER, Minority Staff Director 

NANCI E. LANGLEY, Minority Deputy Staff Director 

EMILY MARTHALER, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Voinovich ............................................................................................. 1

Senator Akaka .................................................................................................. 3

WITNESSES 

THURSDAY, MARCH 30, 2006

Hon. Dan G. Blair, Deputy Director, Office of Personnel Management ............. 5

Hon. Charles S. Ciccolella, Assistant Secretary for Veterans’ Employment 

and Training, U.S. Department of Labor ........................................................... 6

James McVay, Deputy Special Counsel, U.S. Office of Special Counsel ............. 8

Richard Weidman, Director of Government Relations, Vietnam Veterans of 

America ................................................................................................................. 22

Joseph C. Sharpe, Jr., Deputy Director, National Economic Commission, The 

American Legion .................................................................................................. 25

Brian E. Lawrence, Assistant National Legislative Director, Disabled American Veterans ........................................................................................................ 26

ALPHABETICAL LIST OF WITNESSES

Blair, Hon. Dan G.: 

Testimony .......................................................................................................... 5

Prepared statement .......................................................................................... 33

Ciccolella, Hon. Charles S.: 

Testimony .......................................................................................................... 6

Prepared statement .......................................................................................... 44

Lawrence, Brian E.: 

Testimony .......................................................................................................... 26

Prepared statement .......................................................................................... 78

McVay, James: 

Testimony .......................................................................................................... 8

Prepared statement .......................................................................................... 49

Sharpe, Joseph C., Jr.: 

Testimony .......................................................................................................... 25

Prepared statement .......................................................................................... 71

Weidman, Richard: 

Testimony .......................................................................................................... 22

Prepared statement .......................................................................................... 60

APPENDIX 

Questions and answers submitted for the Record from: 

Mr. Blair ............................................................................................................ 80

Mr. Ciccolella .................................................................................................... 88

Mr. McVay ......................................................................................................... 91

Mr. Weidman .................................................................................................... 95

Mr. Sharpe ........................................................................................................ 100

Mr. Lawrence .................................................................................................... 104

(1)

FULFILLING THE PROMISE? A REVIEW OF 

VETERANS’ PREFERENCE IN THE FEDERAL 

GOVERNMENT 

THURSDAY, MARCH 30, 2006

U.S. SENATE,

OVERSIGHT OF GOVERNMENT MANAGEMENT,

THE FEDERAL WORKFORCE AND THE

DISTRICT OF COLUMBIA SUBCOMMITTEE,

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:37 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. George V. Voinovich, 

Chairman of the Subcommittee, presiding. 

Present: Senators Voinovich and Akaka. 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. The Subcommittee will please come to order. 

Thank you for coming. Today’s hearing, ‘‘Fulfilling the Promise? A 

Review of Veterans’ Preference in the Federal Government’’ continues this Subcommittee’s commitment to oversight of the Federal 

workforce. The purpose of today’s hearing is to evaluate one of the 

most important civil service protections, veterans’ preference. 

I would first like to thank my good friend, Senator Akaka, who 

has served as my partner in many civil service reform initiatives. 

I would also like to thank him for requesting today’s hearing. As 

a veteran himself and the ranking member of the Senate Committee on Veterans’ Affairs, our Nation’s commitment to veterans 

holds a very personal interest to him. 

Since its inception, this country has recognized the special sacrifice of veterans. To this end, our Nation has taken the necessary 

steps to provide for their health and well-being due to service-related injuries. We have also established safeguards and mechanisms to ensure that our veterans are afforded professional, vocational, or technical opportunities upon completion of their military 

service. 

Near the conclusion of the Civil War, Congress passed the first 

veterans’ preference legislation for qualified disabled veterans for 

a position in the Federal Government. Although not a veteran myself, I understand the importance of honoring veterans, and particularly in my case our Ohio veterans and their families. As Governor of Ohio, one of my first actions was to create the Governor’s 

Office of Veterans’ Affairs. This office was the first of its kind in 

2

Ohio to provide services for veterans seeking Federal benefits and 

overseeing State laws pertaining to veterans. 

I brought the office to the 30th floor, which is where the Governor’s office is situated, and gave it a high profile so everybody 

knew that we meant business. The first man to serve as director 

of this office was my good friend, the late Dave Alstead, a Vietnam 

veteran, who did an absolutely fantastic job in that office. 

I also lobbied for legislation during my first term establishing a 

special task force during times when the National Guard and Reserves were activated. The Ohio Military Activation Task Force assisted the dependent families, employers and employees of Guard 

and Reserve members with needs that may arise in their absence, 

and that task force continues today. 

We didn’t have to set up a special task force when we got involved in Afghanistan and Iraq because the group is ongoing. I 

strongly believe we must take care of those who serve when they 

return from duty. Furthermore, in Ohio, we facilitated private sector job fairs for veterans and declared several periods, Veteran 

Week periods. 

In other words, the government has to get the private sector to 

try and help our veterans. I also developed the Veterans’ Bill of 

Rights, and a 1–800 number with the Ohio Bureau of Employment 

Services to assist veterans in finding employment. 

As Governor, Commander-in-Chief of the Ohio National Guard, 

I felt duty-bound to honor our veterans. I had the distinct privilege 

of dedicating the Congressional Medal Grove at Valley Forge, 

Pennsylvania. How many have been to the Congressional Medal 

Grove? It is an unbelievable way to honor our National Medal of 

Honor recipients. 

They couldn’t get a governor to go to Valley Forge to dedicate it. 

They have a provision that says, ‘‘If your governor won’t come, we 

won’t dedicate it.’’ I will never forget that day, and Ray Allman was 

one of our Congressional Medal of Honor winners who is still alive 

and was over there. It was a very emotional experience I had that 

day. 

When I became Governor, I was also surprised to learn that the 

only veterans’ memorial on the grounds of the State House were to 

commemorate veterans from the Civil War and one from the First 

World War. There was nothing to honor our veterans from the Second World War, Korea, Vietnam, or Desert Storm. 

So when we undertook the renovation of the State House, a site 

was reserved to build the Ohio Veterans’ Plaza. We now have a 

very fine memorial to our veterans. It will be there for other veterans who served us. 

In 1992, Ohio established the Nation’s first Veterans’ Hall of 

Fame, which is run by the Governor’s Office of Veterans’ Affairs. 

Again, we wanted to honor veterans at that Hall of Fame, and 

those annual events are something that I will always remember. 

We, in Congress, continue to recognize the service, sacrifice, and 

dedication our veterans have made to our Nation. As a result, Congress continues to evaluate and improve upon the opportunities for 

veterans to continue their service by facilitating their entry into 

the Federal service. 

3

Congress most recently clarified veterans’ preference laws in the 

2006 Defense Authorization Act, which ensures preference for veterans which have served in operations in response to September 11 

through the conclusion of the Operation Iraqi Freedom. As the 

number of our veterans grows, it is imperative for us, in Congress, 

to evaluate new laws and consider their implementation by the 

government to ensure veterans are afforded the opportunities 

promised. 

While it is impossible for us to adequately express our gratitude 

to the brave men and women who have served our Nation in the 

Armed Forces, and their families, the government must do all it 

can to care for these brave individuals. And I share their commitment. 

I am really anxious to hear the testimony of our witnesses. No 

one should refrain from being critical. One of the reasons why we 

are having this hearing today is to find out how are we doing. And 

what are we doing that we could improve upon? 

I would like to turn this over to Senator Akaka for his opening 

statement. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Mr. Chairman. It is a 

pleasure to work with you on the Subcommittee on Government 

Management, Federal Workforce, and the District of Columbia. 

I sincerely appreciate your willingness to hold today’s hearing on 

veterans’ preference. I know you share my commitment to helping 

our Nation’s veterans. Through our discussions this afternoon, we 

will have the opportunity to review veterans’ preference which, as 

you mentioned, has been in effect since the Civil War. 

I also wish to thank you for your continued leadership in making 

the government an employer of choice. I enjoy being your partner 

in this joint endeavor, and look forward to the days ahead as we 

work together on this Subcommittee. 

As a veteran and the ranking member of the Senate Committee 

on Veterans’ Affairs, I understand the importance of ensuring that 

the Federal Government fulfills its promise to our veterans. I firmly believe that young men and women will serve in this Nation’s 

all-volunteer military only if they see that the veterans who have 

come before them are treated with the respect that they have 

earned through selfless service. 

One area where this is especially true is veterans’ preference in 

Federal employment. We know all too well the sacrifices our veterans made for their country. While we must do much more to keep 

our promise to provide health care to our veterans, the Federal 

Government also has an obligation to support returning members 

of the Armed Forces in finding employment and guaranteeing that 

their time in the military does not count against them. 

Although many modifications and enhancements have been made 

to veterans’ preference, the basic premise is the same, ensuring 

that America’s veterans are not disadvantaged because of military 

service. Veterans’ preference recognizes the economic loss suffered 

by those who have served their country in uniform and acknowledges the larger obligation owed to disabled veterans. 

4

The good news is that the Federal Government is a leader in hiring veterans. According to the Office of Personnel Management, 

there were nearly 454,000 veterans employed by the Federal Government in fiscal year 2004, representing 25 percent of the Federal 

workforce. According to the most recent data on the civilian labor 

force, veterans comprise only 9.4 percent of the private sector work 

force. 

However, once you subtract the roughly 231,000 veterans hired 

by the Department of Defense from the total number of veterans 

in the government, it is clear that the Federal Government as a 

whole has room for improvement. To ensure that the government 

retains its role as a leader in hiring veterans, we must work to improve recruiting and placing veterans in professional positions, as 

only 4,200 of the 43,000 veterans hired in 2004 received such jobs. 

This number pales in comparison to the 24.8 percent of veterans 

hired for administrative positions, the 23.2 percent hired for clerical positions, and the 21.9 percent hired for blue collar positions. 

Currently, veterans are provided a preference in hiring and a 

protection in a reduction in force. However, I have heard from concerned veterans that, one, the system to ensure veterans’ preference is not working as intended. Two, agencies are trying to 

avoid hiring veterans, and are using surrogate systems for RIFs. 

And, three, the new personnel regulations at the Department of 

Defense will adversely impact veterans’ preference. For example, I 

have heard from employees at the U.S. Forest Service and a management association at the U.S. Postal Service that their agencies 

appear to use involuntary reassignments to circumvent applying 

veterans’ preference in a RIF. 

I look forward to discussing some of these issues with our witnesses today and exploring ways to address these concerns. With 

over 1.2 million members of the Armed Services having been deployed to fight the wars in Iraq and Afghanistan, this hearing is 

timely. 

Again, I appreciate Chairman Voinovich calling today’s hearing 

to review how well veterans’ preference is working, both in theory 

and in practice. If problems need to be addressed, let’s do it now 

before more of our troops come home. Our veterans deserve no less. 

In closing, Mr. Chairman, I want to thank our witnesses. I appreciate the work of our Federal partners, the Office of Personnel 

Management, the Department of Labor, and the Office of Special 

Counsel. Together, they provide the framework to put veterans’ 

preference into practice. I am especially pleased that we are also 

joined by representatives of the veterans’ service organizations, 

who have a long and proud tradition of working on behalf of those 

who put themselves into harm’s way to protect us all. 

I thank you again, Mr. Chairman, for this hearing, and look forward to hearing the testimony of the witnesses. 

Senator VOINOVICH. Thank you, Senator Akaka. 

We have a tradition here of swearing in the witnesses. 

[Witnesses sworn.] 

Senator VOINOVICH. Time is always at a premium in the Senate. 

One of the things Senator Akaka and I don’t know is when they 

call votes to the floor, so we like to move things along so everybody 

has a chance to at least be heard. I would ask the witnesses to 

5

1The prepared statement of Mr. Blair appears in the Appendix on page 33. 

limit your oral statements to 5 minutes, and I am going to be really 

tough today about it, 5 minutes, and you know that your complete 

written testimony will be put into the record. 

Our first panel, we have Hon. Dan Blair, the Deputy Director of 

the Office of Personnel Management; the Hon. Charles Ciccolella, 

the Assistant Secretary of Labor for Veterans’ Employment and 

Training of the Department of Labor; and James McVay, Deputy 

Special Counsel, Office of the Special Counsel. We are very happy 

that you gentlemen are here today. 

Mr. Blair, will you proceed? 

TESTIMONY OF HON. DAN G. BLAIR,1 DEPUTY DIRECTOR, 

OFFICE OF PERSONNEL MANAGEMENT 

Mr. BLAIR. I would be happy to. 

Our mission at the Office of Personnel Management (OPM) is to 

ensure that the Federal Government has an effective civilian workforce. To accomplish this, we are dedicated to assuring compliance 

with Merit System principles, including veterans’ preference laws 

and regulations. This Administration and OPM are committed to 

ensuring veterans receive all rights and benefits to which they are 

entitled under Federal employment laws. 

The Federal Government serves as the Nation’s largest employer 

of veterans. According to our recent statistics, the government employs more than 456,000 veterans out of our work force of more 

than 1.8 million. Internally at OPM, we have one of the highest 

veterans’ employment representations among independent agencies. 

While the numbers appear good, we have worked hard over the 

last 5 years to invigorate compliance with veterans’ preference laws 

and regulations. To do this, we conduct audits of agencies’ practices, as well as auditing agencies’ human resources authorizations. 

Enforcement and compliance are key aspects of our program. We 

also have focused on building strong relationships with the veterans’ service organizations (VSOs). To this end, I meet on a quarterly basis with the VSOs to address important veterans’ issues 

and to provide an opportunity for the VSOs to share their concerns. 

We also are proud of our efforts directed at the agencies in support of veterans. For example, we worked closely with the Department of Defense (DOD) to preserve veterans’ preference rights in 

workforce shaping and reductions in force in the new National Security Personnel System (NSPS). Further, we coordinated with the 

Department of Veterans’ Affairs to reduce the paperwork burden 

placed on veterans in determining eligibility for employment preferences. Critical to the enforcement and compliance partnership is 

our partnership with the Department of Labor to resolve veterans’ 

preference complaints and veterans’ reemployment issues. 

Federal agencies today have seen an increasing number of their 

employees continuing to serve in the military through their Reserve service. In an effort to encourage agencies to assist these employees when activated, OPM initiated a program in which we 

asked agencies to pay both the employee and government shares of 

the Federal Employee Health Benefits premium during this period 

6

1The prepared statement of Mr. Ciccolella appears in the Appendix on page 44. 

of activation. I am pleased to report that all 114 Federal agencies 

and departments have heeded this call. 

My written statement goes into great detail about OPM’s specific 

actions in support of veterans. For example, our outreach efforts at 

the military’s Transition Assistance Program Centers and our staffing of an office at the Walter Reed Army Medical Center to serve 

as a point of contact to provide employment information and counseling to veterans. We also have worked to make our USAJOBS 

web site more veteran-friendly, by providing prominent links to 

veterans’ employment information and web resources at agencies 

and elsewhere. 

These are just a few of the efforts that are covered in detail in 

my testimony. We are very proud of the work that we have done 

in this area, and will continue to make our efforts even greater 

throughout our government, in order to make the Federal Government the Nation’s leader in veterans’ employment. Thank you for 

this opportunity to testify. I will be happy to answer any questions. 

Senator VOINOVICH. Thanks, Mr. Blair. Mr. Ciccolella. 

TESTIMONY OF HON. CHARLES S. CICCOLELLA,1 ASSISTANT 

SECRETARY FOR VETERANS’ EMPLOYMENT AND TRAINING, 

U.S. DEPARTMENT OF LABOR 

Mr. CICCOLELLA. Thank you, Mr. Chairman. And let me say before I begin that I appreciated your opening comments. I believe 

the Senate has no finer advocates for veterans than Senator Akaka 

and yourself. 

Having been to Ohio a number of times, I can tell you that the 

traditions that you have started have carried on. In fact, from my 

recent visit, you might be interested to know that your workforce 

system actually runs a transition program, in addition to the transition program that we run for returning veterans. So it is a very 

good program. 

Thank you for the opportunity to appear, sir. I want to say, first 

of all, that we are absolutely committed to veterans’ preference in 

the Federal Government. We believe the government does have a 

good record on veterans’ preference and, as Senator Akaka mentioned, one in four employees, about 25 percent of our Federal Government are veterans. 

It is the job of our organization, the Veterans’ Employment and 

Training Service, to work collaboratively with OPM and the Office 

of Special Counsel and all of the Federal agencies, and we are 

champions of veterans’ preference. We are also committed to ensuring that veterans receive all their rights and benefits to which they 

are entitled under the Federal employment laws. 

At Veterans’ Training and Employment Service (VETS), which is 

our organization, we regularly communicate that to all Federal 

agencies in our outreach efforts, and in our primary responsibility 

for investigating and attempting to resolve veterans’ preference 

complaints against the Federal Government that are filed under 

the Veterans’ Employment Opportunity Act. 

The VEOA or Veterans’ Employment Opportunity Act provides 

that a veteran or any preference-eligible person who believes that 

7

their rights have been violated under law or regulation may file a 

written complaint to us. We then investigate that complaint. I can 

assure you we have very highly trained investigators who do that, 

and the investigations are through. 

I have discussed the investigative process in my testimony, and 

so what I would like to do is just talk a little bit about veterans’ 

preference trends. I think that is where the Subcommittee wants 

to go. 

There are many complaints that are filed with our Department 

that are determined to have no merit. There is actually good news 

to that, and there is also bad news. The good news is that we think 

the Federal agencies, from our outreach to these Federal agencies, 

are actually observing and applying veterans’ preference. But there 

is also some bad news, and the bad news is that there is still some 

confusion about who is eligible for veterans’ preference and the details about veterans’ preference. That is particularly true of our recently separated veterans. 

One reason for that is because veterans don’t understand, in 

many cases, that veterans’ preference doesn’t apply to the in-house 

promotions, the merit promotions. It applies primarily to the open 

competitive promotions. The other thing is that sometimes agencies 

don’t respond to veterans in a timely manner with regard to whether they were or were not selected, and so we get complaints in that 

regard. Then sometimes a veteran is not qualified for the position, 

and when that is the case, then there is not much that we can do. 

What we are trying to do in working with OPM, because they 

have a major effort in this regard, is to improve the Federal agencies’ knowledge of veterans’ preference and, just as importantly, the 

use of special hiring authorities for bringing veterans in noncompetitively. And we think we are making big progress in this 

area. 

We have improved our outreach to veterans themselves with regard to the veterans’ preference through the military transition 

points at the TAP employment workshops. We have very good online resources, and veterans preferences is also covered in the Federal application process. 

Thus, we are not only visiting the transition points and talking 

directly to our separating service members, but both OPM and 

DOL also have electronic tools or advisors that actually coach an 

individual through those programs so they know whether they 

have a veterans’ preference complaint or not. 

In many agencies, especially at DOL and OPM, the secretary or 

director of the agency has encouraged the use of special hiring authorities. That has resulted, I believe, in significant increases in 

the number of veterans, and particularly disabled veterans and 

special disabled veterans, in the Federal Government. 

I would conclude by saying that I cannot stress enough how important our collaboration is with OPM, the Office of Special Counsel, and with the Federal agencies. It is the only way that things 

get done in the government. But, more importantly, I think all 

agencies, and particularly DOL, OPM, and I know the Special 

Counsel as well, are dedicated to ensuring that all Federal agencies 

do apply veterans’ preference and they do make use of the special 

hiring authorities. 

8

1The prepared statement of Mr. McVay appears in the Appendix on page 49. 

That concludes my statement. 

Senator VOINOVICH. Thank you very much. Mr. McVay. 

TESTIMONY OF JAMES McVAY,1 DEPUTY SPECIAL COUNSEL, 

U.S. OFFICE OF SPECIAL COUNSEL 

Mr. MCVAY. Thank you, Mr. Chairman, for the opportunity to 

discuss how the Office of Special Counsel, OSC, promotes veterans’ 

preference under Titles 5 and 38 of the United States Code. The 

Special Counsel extends his respect and gratitude to this Subcommittee for providing OSC with such an incredible responsibility. 

At OSC we honor the commitment and sacrifice of these noble 

Americans. One cannot spend 5 minutes at Walter Reed or Bethesda Naval Hospital without an overwhelming sense of gratitude, 

awe, and an understanding of our clear commitment to these 

American warriors. 

It is my goal to leave you today with an understanding of our 

commitment to these laws and the people they are designed to affect. We, at OSC, perform our mission by enforcing the Uniformed 

Services Employment and Reemployment Rights Act, USERRA, to 

ensure that they are not discriminated against because of their status as service members. We also protect our veterans under Title 

5, the Civil Service Reform Act, relating to veterans’ preference 

laws during the job application process. Allow me to explain how 

we have improved our enforcement of these important laws. 

With the passage of USERRA in October of 1994, Congress expanded OSC’s role as protector of the Federal merit system and the 

Federal workforce. In cases where we are satisfied that the service 

member is entitled to relief, we may exercise our prosecutorial authority and represent the claimant before the Merit System Protection Board. 

When the Special Counsel took office, he made it a high priority 

to champion service members’ rights. We were startled to learn 

that not a single USERRA case had ever been filed for corrective 

action before the Merit System Protection Board by OSC. Several 

of these cases had been in OSC for years. Within a few short 

months we had filed three cases before the Merit System Protection 

Board and obtained full corrective action for the aggrieved service 

members. 

Let me tell you about one. The preference in this case, the claimant, a full time staff nurse serving under a temporary appointment, 

alleged that her agency had violated USERRA by terminating her 

employment because she was excessively absent from the workplace due to her military obligations. The agency argued that term 

employees were not covered by USERRA. OSC filed an action before the MSPB and successfully obtained full corrective action for 

the claimant, namely, back pay, and expunging her record of any 

derogatory comment in her official personnel file. The agency also 

agreed to USERRA training for their managers. 

As you know, in late 2004 Congress further expanded OSC’s role 

in enforcing USERRA. Pursuant to a demonstration project established under the Veterans Benefits Improvement Act of 2004, OSC 

now has the exclusive authority to investigate Federal sector 

9

USERRA claims brought by persons whose social security number 

ends in an odd-numbered digit. 

Given these additional investigate responsibilities, OSC has established a USERRA unit as part of the organization of our agency. 

The USERRA unit is the investigative and prosecutorial unit for all 

matters pertaining to USERRA and veteran-related employment 

issues. 

We have also stepped up our technical assistance and outreach 

through modification of our web site. We have created a new electronic filing form and a new web-based help line for answering 

USERRA-related questions. We have also conducted educational 

outreach to several agencies and Federal employment seminars. 

The Federal Counsel’s goal is to improve the awareness of Federal 

managers of these important laws. 

Here is just one of the examples of the 26 cases where our 

USERRA unit has obtained full corrective action. In this case the 

claimant was a member of the U.s. Air Force Reserve. She applied 

for two jobs with an agency. During her job interview, the selecting 

official noted that she was a member of the Air Force Reserve and 

asked her if she could be activated. She was honest. The claimant 

was not selected for either job. However, she did accept another job 

outside of that agency. 

Our investigation indicated the claimant would likely have been 

selected for the jobs, and the selecting official’s comments and 

question suggested that the claimant’s Reservist duties were the 

reason for her non-selection. The agency paid a lump sum settlement amount reflecting her loss of pay from the time the claimant 

would have been selected until the time the claimant began her 

current employment. 

As I commented earlier, OSC also provides relief under Title 5 

of the United States Code to veterans under our authority granted 

in the Civil Service Reform Act, again noted as prohibited personnel practices. Section 2302(b)(11) forbids managers from taking, 

or failing to take, a personnel action if it would violate a veterans’ 

preference law. However, OSC’s role with respect to these allegations is limited to seeking disciplinary action against offending 

managers in appropriate cases. By statute, the Office of Special 

Counsel has no authority to help service members obtain corrective 

action. 

In closing, I want to thank the Subcommittee for allowing me to 

testify today. I truly believe the issues we are focusing on today cut 

to the core of our values as a Nation. According to Congress in enacting USERRA, Federal employers should be model employers in 

this regard. OSC strives to hold agencies to that high standard. 

Thank you. 

Senator VOINOVICH. Thank you, Mr. McVay. 

We will begin the questioning with 5-minute rounds. 

I think Senator Akaka mentioned this new National Security 

Personnel System has raised concerns that it would be used to 

avoid veterans’ preference. One of the things that I was concerned 

about when we went from the rule of three to the categorical hiring 

was that it would be used to circumvent veterans’ preference. Mr. 

Blair, how many agencies are using it? I know the last time I 

looked, it wasn’t very many. 

10

Mr. BLAIR. I can not tell you how many agencies are but I do 

know that is in our strategic plan. We are going to get all agencies 

up and running on category ratings. 

Senator VOINOVICH. At the time there was some concern that 

somehow we were going to diminish the effort to uphold veterans’ 

preference. To my knowledge, we haven’t had a complaint on that, 

but maybe we will in the testimony later this morning. 

Mr. BLAIR. With category rating and ranking, it is a simplified 

form, as opposed to the rule of three. And, under category rating, 

ratings go to the highest division in their respective category. For 

instance, if you have categories of minimally qualified, qualified, 

and then best qualified, veterans would float to the top of each of 

those respective categories, depending on how their qualifications 

are determined. If you are a disabled veteran, you would float to 

the very top of the highest quality category. In other words, you 

float to the top of that best quality category. 

The preliminary data that we have seen or evidence that we 

have seen is that veterans fare better under category rating and 

ranking than they do under the rule of three. Veterans service organizations expressed some trepidation at first about moving to 

this area. They voiced that quite clearly to us and we heard those 

concerns. So we are watching to make sure that it is not being used 

as a subterfuge to get around veterans’ preference. We believe at 

this point, that it is probably better for veterans than under the 

old rule of three. 

Senator VOINOVICH. I would like to get an update on the status 

of implementation of categorial hiring in the government. I think 

the law has been in effect for a couple of years. 

Mr. BLAIR. It has been. 

Senator VOINOVICH. I know it was very controversial and they 

said we would never get it done, and we did. 

Mr. BLAIR. Yes we did. 

Senator VOINOVICH. I think that has helped a great deal. 

Mr. BLAIR. It has. I would like to say that at our recent workforce conference we had one session devoted specifically to category 

rating and ranking. This session was held to ensure that agencies 

know how to use it and what not to do when using it. We also emphasized the application of veterans’ preference during that breakout session. So the information is out there, and we will be holding 

agencies’ feet to the fire to make sure that they are using that 

flexibility correctly. 

Senator VOINOVICH. One of the things that is always of concern 

to me, is how frequent is the contact with veterans’ organizations? 

In other words, there are benefits that accrue to veterans in the 

Federal Government, all kinds of them. But how often do you make 

sure that you get that information to the veterans’ organizations? 

For example, I constantly hear web site, web site, web site. I 

don’t know how many veterans have computers. How much communication is there throughout the country? Do you have a regular, formalized program to make sure that veterans, in all three 

of your cases, are familiar with what is available in terms of jobs 

and so on, so that they can take advantage of the system? 

Mr. BLAIR. At OPM we have quite regular contact on multiple 

levels. For instance, I chair our veterans’ service organization quarVerDate 0ct 09 2002 09:54 Dec 01, 2006 Jkt 027756 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\DOCS\27756.TXT SAFFAIRS PsN: PAT
11

terly meetings. We have between 15 and 20 of the VSOs come in. 

We have an established agenda that we talk about, that is worked 

out beforehand, and go through that. For instance, we briefed the 

VSOs on the new personnel systems at the Department of Homeland Security and the Department of Defense. Our next meeting 

will be in April. We have not set that date yet, but it is done on 

a quarterly basis. 

Although that is at a higher level, that is my contact with the 

VSO representatives. We also have a dedicated staff member at 

OPM who serves as a liaison with the veterans’ service community 

as well. He is in constant contact, on a daily basis, with the VSOs 

to act as a pulse-taker, to ensure that we have an open line of communications. 

If we have briefings on matters of mutual concern, we will call 

them in for situations like that. We also have gone beyond the 

Washington, DC area. When we did our job fairs, we placed special 

emphasis on veterans’ hiring. We even had a veterans’ hiring symposium a couple of years ago, in which we brought in the agencies 

to make sure that they understood how to use category rating and 

ranking, and to understand the meaning behind veterans’ preference and how important it is. I remember a couple of years ago, 

we had one of our first meetings at Walter Reed Medical Center. 

The purpose behind that was to emphasize the commitment that 

the Federal Government has to returning veterans. 

So, it is a multi-layer process that we have. I am quite proud of 

the progress we have made over the last 5 years. I know that when 

I went into OPM, I was struck by the level of suspicion and ill-will 

that was expressed towards OPM, because there was a great level 

of distrust. I think the VSOs can speak better to that, but I hope 

that we have done a good job at displacing that. Are we always 

going to agree on every issue? That’s why we have these meetings—to express those comments and try to work through those 

disagreements. 

Senator VOINOVICH. My time is up. Senator Akaka, I understand 

that we have a vote going on. Would it be OK if I went to vote? 

And you just take as much time with the questioning as you want, 

and then you can go vote. Is that all right for you? 

Senator AKAKA. Yes. Thank you very much, Mr. Chairman. 

Mr. McVay, current law provides that OSC may take action 

against an agency only when the agency knowingly—and I stress 

knowingly—violates preference laws. Acording to the VSOs the 

term knowingly undermines the effectiveness of this law. My question is, how many disciplinary action cases has OSC brought 

against agencies for violating veterans’ preference? What was the 

final outcome of these cases? 

Mr. MCVAY. Thank you, Senator, for that question. I will tell you 

I can only answer in the last year and a half since I have been 

there. I didn’t know I would be asked this, but I can certainly get 

some of that information to you. 

I will tell you that in the last year and a half there has been one 

case filed for disciplinary action for violation of a veterans’ preference. And before that, frankly, it had been quite some time. But 

since the current Special Counsel took office, there has been one. 

Before that, it has been quite some time. That case was filed and 

12

actually settled before it went to trial with that manager, and that 

manager took discipline and actually took quite a bit of time off as 

part of the discipline. 

Senator AKAKA. So that was one case that was filed? 

Mr. MCVAY. That is correct. 

Senator AKAKA. How has the word ‘‘knowingly’’ impacted enforcement of veterans’ preference? 

Mr. MCVAY. Keep in mind, Senator, that we only have authority 

to discipline managers, which can be anything from suspension all 

the way up to debarment from Federal service. And when we are 

talking about debarring somebody with Title 75 protections, they 

have a lot of due process rights. And so with that understanding, 

I believe the statute was written to make sure that they could only 

be disciplined when there was a knowing violation, an intentional 

violation, if you will, of veterans’ preference laws. 

Now, if we had authority to get corrective action for complainants, there would probably be a different standard, just like in 

whistle-blower reprisal cases, where the standard is somewhat 

lower. When we are simply getting corrective action, such as back 

pay, expungement of the official personnel file for disciplinary actions taken in reprisal, for example, it would probably be a lower 

standard. 

But, considering the fact that we are talking about debarment, 

there is probably a necessity for us to show that the manager really 

had an ill mind, if you will, mens rea almost in the criminal sense, 

when they made the decision to not use the veterans’ preference 

law. Otherwise, frankly, would you be disciplining managers for 

making mistakes. 

Senator AKAKA. Thank you. 

Director Blair, you mentioned that OPM has quarterly meetings 

with veterans’ service organizations to discuss issues important to 

veterans. What are three recurring issues that the VSOs bring up 

at these meetings? And what steps has OPM taken to address 

these issues? 

Mr. BLAIR. I have our January agenda with me, and it was an 

update on the NSPS. As you know, the regulations at that point 

were about to be finalized. So, we wanted to give the VSOs an update. 

Another issue is compliance issues, to make sure that the VSOs 

understand our role in the compliance process where complaints—

if there are complaints, who handles such complaints, if it is us or 

if it is the Department of Labor, what our roles are in auditing 

agencies, when we are looking at what we call the Delegated Examining Unit of the authorities—that is the authority for an office 

within an agency to hire without having to go through OPM—or if 

it was a full-blown audit of an agency’s resources operations. We 

talked about our recent report to Congress that we issued on the 

employment of veterans. 

I think this is fairly representative of the issues that we have 

discussed with VSOs over the course of the last 3 years that I have 

been doing this. These are issues that come to the forefront, whether they are core issues or hiring issues. I think we have had several 

sessions on category rating, exactly what it is and what it is not. 

13

1The information appears in a letter dated November 20, 2006, on page 105. 

But the bottom line is this is a great opportunity for both sides. 

For OPM to bring in the program folks who are charged with directing these programs, to let the VSOs know who the faces are behind these names, and also for them to have one-on-one interaction 

with VSOs. These can be quite lively meetings, as they should be. 

I think over the course of the last few years we have elicited very 

good will between the organizations, knowing that we can not 

agree on everything but knowing that there will not be surprises, 

and they will always know who to call in case there are situations 

which demand immediate attention. 

Senator AKAKA. You mentioned the VSOs and we have here 

three VSOs on the next panel. 

Mr. BLAIR. Yes. 

Senator AKAKA. What are the issues raised regularly by VSOs as 

common problems? 

Mr. BLAIR. An update on the NSPS was done in January. We 

have done updates on the Department of Homeland Security. We 

did a presentation on the draft ‘‘Working For America Act.’’

What are we doing in terms of our audit? A few years ago we 

did a complete audit report. We did a briefing on that as well. We 

did an overview on our 2004 report to Congress on our hiring of 

veterans. Those are just examples of things that have come up during the VSO meetings. 

Senator AKAKA. Mr. McVay, I reviewed the OPM report on the 

employment of veterans in the Federal workforce but did not see 

the OSC listed. Can you tell me how many veterans currently work 

at OSC? 

Mr. MCVAY. No, I can not. I will tell you that recent hirings have 

included multiple veterans, and frankly I have been on several of 

the boards where there have been a lot of veterans hired in the Office of Special Counsel. But if you want me to, I will be glad to get 

that information to you.1

Senator AKAKA. Will you please have it for the record? 

Mr. Ciccolella, you testified that VETS entered into an MOU 

with OSC in the year 2000, requiring that any meritorious veterans’ preference cases be automatically referred to VETS for review as a potential prohibited personnel practice. Mr. McVay states 

that VETS refers cases to OSC involving egregious violations of 

veterans’ preference rights. As a point of clarification, are all violations sent to OSC, or only the egregious ones? And if the latter, 

what criteria does VETS use to determine if the case is serious 

enough to warrant disciplinary action? 

Mr. CICCOLELLA. Senator Akaka, if during the process of our investigation, and in looking at the hiring process, which is what our 

responsibility is, to determine whether a veterans’ preference has 

been applied, if we make a merit determination, we obviously try 

to resolve the case right there. Sometimes we can, sometimes we 

can not. If we can not resolve the issue, we will then take the other 

route of working with the client, the complainant, to buck it up to 

the Merit System Protection Board and beyond that. 

It doesn’t matter what the violation of veterans’ preference is. If 

we make a merit determination, whether the agency complies with 

14

our request for them to resolve it in favor of the veteran or not, 

we inform the Special Counsel’s office and provide the case to them 

to review. The Special Counsel’s office reviews it for prohibited personnel practices, i.e., any violation of the 12 very clearly codified 

prohibited practices. At that point we continue on, obviously, with 

the settlement of the case if we can. 

With regard to the kinds of egregious violations, we don’t find a 

significant number of egregious, willful violations. But it is very 

clear when an agency has violated veterans’ preferences. 

Senator AKAKA. Thank you for that. 

Mr. Blair, employees at the Forest Service and the Postal Service 

have contacted me about involuntary reassignments that appear to 

be directed at veterans as a way of circumventing the prohibition 

on designer reduction in force (RIFs). I raised this issue with OPM 

Director Springer, who advised that this practice does not violate 

veterans’ preference laws. However, I believe that even if it does 

not violate the law technically, it still violates the spirit of the law. 

Have you heard of this happening at other agencies? And what 

can be done to ensure that this process does not turn into a designer RIF? 

Mr. BLAIR. I do remember seeing the letter that you sent to Director Springer and the response that she sent back to you. At this 

time I am not aware of any practices like that at other agencies, 

and I would say that any effort to target veterans as a subterfuge 

to veterans’ preference, if it is intentional, would likely be a prohibited personnel practice. However, if these are done as an effort to 

mitigate the effects of a reduction in force, I think that you need 

to be careful to make sure that the efforts you are doing do not exacerbate the impact of a reduction in force. 

While we have not seen it at other agencies, you mentioned the 

U.S. Postal Service and the Forest Service. I am not aware of any 

other instances where that has occurred. I also would say that you 

need to look at the totality of the circumstances in which the situation occurs and make sure that if any actions are taken, that you 

are not doing anything to give greater impact to the disruptive effect that a reduction in force has. 

Senator AKAKA. I would tell you that I would appreciate a meeting of the chief human capital officers on this issue of veterans’ 

preference, and look forward to that. 

Mr. Blair, I have also heard from veterans that agencies will 

often cancel vacancy announcements once it is determined that a 

veteran will get the position, and then reopen the announcement 

after the job description and requirements have been tailored to a 

particular person who is not a veteran. 

To the best of your knowledge, how many times has an agency 

returned a certificate unfilled? And how many of those were withdrawn for a valid business reason? 

Mr. BLAIR. We look at those things when we do our audits of 

agencies, and particularly, when we do what we call our Delegated 

Examining Unit (DEU) audits. That is one piece of evidence that 

we look for if we are looking for violations of veterans’ preference. 

If we can see a pattern developing where an agency or an office 

in an agency is returning certificates unused because a veteran 

topped the certificate, or any other evidence indicating an intent to 

15

violate veterans’ preference, that is something that we would turn 

over to the Special Counsel’s office, as well as looking at withdrawing their DEU authority or other corrective actions. I can not 

tell you for certain how many agencies have done that, but those 

are things that we do look at. We do about 120 to 130 Delegated 

Examining Unit audits a year. So, those are things that we look 

for and would pick up on as evidence of violations of veterans’ preference. 

Senator AKAKA. Mr. Blair, last year the Merit System Protection 

Board ruled that the hiring of an individual under the Outstanding 

Scholar Program violated the veterans’ preference rights of qualified veterans. I understand that OPM has asked the MSPB to reconsider that decision. Can you tell me why OPM is asking MSPB 

to reconsider the case? And how many individuals are hired under 

the Outstanding Scholar Program each year? 

Mr. BLAIR. In Fiscal Year 2004 there were approximately 1,000 

appointments under the outstanding scholar authority, as opposed 

to 43,000 veterans that were hired in Federal service. So overwhelmingly, for every one outstanding scholar appointment there 

are 43 veterans hired. I think that gives you a perspective in which 

you can evaluate this. 

As far as OPM’s intervention with the Merit System Protection 

Board and our request for reconsideration, I can tell you that Outstanding Scholar is the product of a consent decree that is approximately 25 years old. I am kind of limited as to what I can say 

about this because it is the subject of current litigation—but we 

have always used Outstanding Scholar as a supplement to the hiring process, and it should not supplant veterans’ preference. We 

see the two as coexisting within the same framework, although 

there are some natural tensions between the two. 

Senator AKAKA. Mr. Ciccolella, can you walk us through the process of reviewing a veteran’s claim that an agency has violated veterans’ preference laws? For example, do you always talk to the veteran, review the veteran’s performance files, and review the personnel file of the individuals who were hired instead of the veteran? 

Mr. CICCOLELLA. Certainly, Senator Akaka. 

First of all, VETS does not make a determination of the job 

qualifications of the veteran. That is not within our jurisdiction. 

With regard to the process, the complaints can come to us in a 

number of ways. They can come on our toll-free help line. They can 

come through the veteran employment representatives, the DVOP 

or LVER, for example, in Hawaii. An individual can also file a veterans’ preference complaint electronically. They can come through 

our State directors. 

We do talk personally with the veteran at that point in time because you have to verify the individual’s eligibility. Have they filed 

a complaint within 60 days? If not, how do we sort that out? And 

you can get a little bit of information with regard to whether the 

veteran may have veterans’ preference. Some do and some don’t. 

Then we immediately start gathering information, the selection 

certificate, for example. It doesn’t take a lot of time. If there is a 

denial letter, or the information from the job announcement, or 

16

how the agency has informed the individual, we will get all of that 

information. 

Then we will formally notify the hiring authority, and we will 

tell them what our authority is. We may visit with them. We may 

ask them who was selected, why that individual was selected. Did 

they bypass veterans’ preference? Was veterans’ preference applied? Did they use categorical rating criteria? Or did they use the 

rule of three? Did they pass over a preference-eligible? Our investigators are pretty good at determining that. 

It becomes very clear when you’re looking at the process whether 

or not there is an anomaly or a problem. If we find merit, then we 

will immediately try to resolve the situation with the employer, the 

agency, and the veteran. Sometimes we can, sometimes we can not. 

If we can not, we will then help the veteran refer their case to the 

Merit System Protection Board. If it does have merit, and we can 

work it out, then we will seek whatever remedy there is, including 

any back wages or placement. 

Senator AKAKA. Thank you very much, Mr. Ciccolella. I have to 

run and vote now, but I will return. 

Mr. CICCOLELLA. I apologize. It’s sort of a long process. 

Senator VOINOVICH. One of the questions that I am going to ask 

the second panel is, how would they characterize their organization’s relationship with Federal agencies, the Office of Personnel 

Management, Department of Labor, and the Office of Special Counsel? I got into that a bit before, but I would like all of you to clarify 

just exactly how do you think they are going to answer that question? 

Mr. BLAIR. I would hope they would characterize their relationship with OPM as one of being a straight shooter. We are not always on agreement on things. However, they will get accurate and 

timely information from us. I think that is the best that you can 

ask from an agency like ours—that we understand the importance 

of that constituency. 

We have worked hard to build trust that was not there before, 

and I am pleased with the relationship that I, individually, have 

with a number of the representatives of the VSOs. So, I think that 

we have done a good job. We can always do a better job, but I think 

the most important thing is to keep the lines of communication 

open and make sure that communication is fair, accurate, and 

timely. 

Senator VOINOVICH. Mr. Ciccolella. 

Mr. CICCOLELLA. We have a pretty good relationship with the 

veterans’ organizations. We try to get the VSOs together. 

Senator VOINOVICH. What does ‘‘pretty good’’ mean? 

Mr. CICCOLELLA. I would say they would rate 8 or 9. We have 

a very open line of communication. We have regular communications with them. We try to meet monthly or every 2 months. They 

get part of the agenda. We get part of the agenda. We not only 

meet with them, but we also try to make sure that we address 

their legislative conferences, their service officers conferences, and 

we try to get the Secretary or a very high level official out to their 

national conferences. 

So we are in regular dialogue with them. But, frankly, Mr. 

Chairman, it would be very difficult to do my job if we didn’t have 

17

an open dialogue with the veterans’ service organizations. They are 

enormously helpful to us. 

We have a program called REALifelines, which seeks to employ 

the most seriously wounded an injured service members. Veterans’ 

service organizations are very helpful in that regard. 

They are extraordinarily helpful because they have good outreach 

to homeless veterans. And the veterans’ service organizations actually have homeless veteran task forces. They are very well organized. So they complement our Homeless Veteran Reintegration 

Program. 

Senator VOINOVICH. What is that called, again? 

Mr. CICCOLELLA. The Homeless Veteran Reintegration Program. 

Senator VOINOVICH. The one before that. 

Mr. CICCOLELLA. The REALifelines program. It is a program we 

started about 2 years ago out at Walter Reed. We have stationed 

veteran employment representatives at Walter Reed and Bethesda, 

Madigan, Brooke Army Hospital, Balboa, and now we are putting 

them into the medical holding companies, so that as these folks 

come back and they are seriously wounded, while they are waiting 

for discharge or their evaluation boards, we can get them interested in employment, especially if they are going to leave the service. 

We have a network of veteran employment representatives 

around the country. Many of those veteran employment representatives are members of the DAV, the American Legion, and the VFW. 

So that is a network that we can actually refer those individuals 

to get jobs. So far we have put a little fewer than 100 of the most 

seriously wounded—I am talking multiple amputees, even brain-injured service members—and their spouses into employment. 

So the veterans’ service organizations are instrumental, in that 

effort, and they are very instrumental in the compliance area. They 

are very interested in veterans’ preference. I think their view of 

veterans’ preference is that it is not broad enough. So we have a 

regular dialogue with them about that. 

An area that is just as important for me is the USERRA area, 

the Uniformed Services Employment and Reemployment Rights 

Act, because as you know we have had half a million Guard and 

Reservists in particular being mobilized. A lot of those are young 

people, and they come back, and some are not employed. But if 

they are employed, they get their jobs back when they come back. 

The veterans’ service organizations also can be very helpful in 

terms of when and if an individual comes back and they have 

issues or problems. If they know about what the reemployment 

regs are, they can connect that veteran to us, and it is very helpful. 

Senator VOINOVICH. First of all, I want to say that this 

REALifeline is wonderful. I don’t get out there often enough. I get 

out there maybe once a month to Walter Reed. I go down and meet 

men and women recovering there. They have that fantastic rehab 

center. It is amazing what they are doing. 

But you meet them and they say, ‘‘I wanted to have a career in 

military service. I’m not going to be able to have one.’’ And the first 

thing in their mind is, ‘‘I need a job.’’ They have to know that there 

is somebody out there that cares about them. I think that the 

stress level is reduced substantially if they can talk to somebody 

18

and they know somebody is going to look out for them because they 

appreciate what they have done for our country. 

Mr. CICCOLELLA. Sometimes we can not get them employed right 

away, but it is very important that we are there for them. One of 

the things they may need is funding. So we may be able to help 

their spouse get employed until they are ready to get employed. So 

it is a good program. 

Senator VOINOVICH. The other thing is the National Guard people that are coming back and the Reservists. Are they familiar with 

their rights? Are you hearing any complaints such as, ‘‘I’m getting 

hassled about my job.’’ Would that be brought to their Adjutant 

General or do they bring that to you? 

Mr. CICCOLELLA. Yes. They can certainly take it to the unit—the 

National Guard has a good structure for receiving those complaints. If it is going to require an investigation, it comes to us. The 

Defense Department has a national committee of volunteers 

around the country. In Ohio, you have General Hartley up there, 

who really has a very good program for this. You have about 6,000 

National Guard who are deployed from Ohio at any given time. 

Senator VOINOVICH. The point is, that if I come back and I am 

having a hard time with my employer, most of the time that is 

going to be handled on the State level and it won’t usually get 

kicked up to you? 

Mr. CICCOLELLA. No, actually, not so. We have a network of Federal staff in every one of the States. We make sure that prior to 

mobilization, all National Guard and Reserve are briefed on their 

employment and reemployment rights. When they return, during 

the demobilization process, we also provide them at least a onehour presentation on what their employment and reemployment 

rights are and how to find assistance. If they need assistance, then 

either us or the ESGR people will open a case on them. ESGR does 

informal case work. We do formal Federal investigations. 

You asked about what the trends are. Before September 11, we 

were doing 900 investigations every year. During the Gulf War, the 

first Gulf War, we were doing 2,500 for those 2 years, 1991 and 

1992. After September 11 we had a very significant mobilization. 

And so about April 2003, when the first of the Guard started coming back, we found that the investigation numbers went up. They 

went up to almost 1,500 cases a year in 2004. And then in 2005 

they went down to about 1,250. 

During the first Gulf War we had one complaint and one investigation for every 54 returning Guardsmen and Reservists. Now, I 

am not talking about the guys who do their weekend drills. I am 

talking about the people who are actually deployed. Now we are at 

1 in 81, so we are doing better. We put new rules out about 

USERRA that are extremely good and easy to understand. We have 

got a tremendous outreach effort to the employer community and 

the service members. 

Senator VOINOVICH. When they get called up, do they get a letter 

that they give their employer that explains what they are doing 

and what their rights are? 

Mr. CICCOLELLA. The law, the way that works is that an individual who is called up, is supposed to provide advance notice to 

the employer. Most of the time that is possible. There are a few 

19

cases where it is not possible, and if that is the case, then the employer can get whatever proof he or she needs from the military, 

a set of orders or whatever. 

But the point is, if the individual is called up and mobilized, 

there is no penalty to that individual. So it doesn’t require a letter. 

We encourage the advance notice unless the individual can not do 

that, and DOD does the same thing. 

Senator VOINOVICH. It is helpful for reservists and employers to 

have a call up letter. Everyone is better able to understand what 

is happening. 

Mr. McVay, what about you? On a scale of 1 to 10, how would 

the veterans organizations rate you? 

Mr. MCVAY. Let me make sure you understand. Our position in 

the process has always, historically, been at the back end, so we 

have little if any relationship with veterans’ service organizations, 

because when we got the cases, it was time to either prosecute or 

not prosecute. It was with the individual. 

However, since the demonstration project we have been given in 

essence half, or the odd-numbered social security numbers of 

USERRA cases, we have, if you will, contacted some of these organizations, let them know that we are out there, that we are now 

in the game and that we are interested. If they want to, they can 

come directly to us. This is something that we have actually discussed with Mr. Ciccolella. They know what we are doing, and 

hopefully we are building relationships as we go. That has been the 

first effort ever for OSC in that regard. 

I will also say that every time somebody has gone through those 

mobilizations as an enlisted man, you do get the letter. You get it 

from your division. And if you are paying attention when you get 

demobilized, if you are not sleeping, you get an education on what 

your rights are, too. 

And so they do get education when they get back. They are told 

what their rights are. The military does a very good of making sure 

of that because they are an advocate for these people. The First 

Sergeant of each company, I assure you, looks at each one and 

says, ‘‘You’re going to a class and you’re going to learn about your 

USERRA rights.’’

Senator VOINOVICH. Thank you. 

Mr. Blair, if I asked you what Federal facility in the United 

States is not doing the job they are supposed to be doing, could you 

answer the question? 

Mr. BLAIR. With regard to? 

Senator VOINOVICH. There are so many Federal facilities—we 

have DFAS in Cleveland, we have DFAS in Columbus, we have a 

tremendous number of employees down at Wright-Patterson. Are 

you able to communicate to the Department of Defense the record 

of some of these various facilities if they do not honor veterans’ 

preference? In other words, you get statistics specific enough so 

that you can tell if somewhere around the country isn’t adhering 

to the law. 

Mr. BLAIR. We can focus in on it if we hear a number or a series 

of complaints. As I was telling Senator Akaka earlier, we do about 

between 120 and 130 Delegated Examining Unit (DEU) audits of 

various agencies and departments, of offices that do the hiring. We 

20

look at things such as returned certificates to see if veterans have 

topped the certificate, to see if there is a pattern emerging, or to 

see if they have cancelled vacancy announcements. 

Those are what set off our alarm bells and cause us to say, ‘‘Are 

you doing the right job? Are you applying veterans’ preference as 

appropriate?’’ In the past there have been some cases where we 

have had to go and say, ‘‘Look, we have some serious problems 

here,’’ or we are finding some egregious violations, and we have 

had to lift the Delegated Examining Unit authority, which basically 

means they have to go through others to hire until you remedy 

their situation. 

Senator VOINOVICH. What you are saying is, that you could tell 

me, if I asked you, how the DFAS operation is doing in Columbus? 

Mr. BLAIR. If we had done a DEU review for that operation, 

which I would have to go back and check. 

Senator VOINOVICH. What you are telling me, and I would like 

to have it on paper, is if a location has a pattern of violations, that 

the penalty is to pull out the hiring authority? So they loose the 

control of hiring and firing personnel? 

Mr. BLAIR. That is one of the penalties. We can order some corrective action to be taken, and if we find that there was a violation, 

OPM would refer it to the Office of Special Counsel to prosecute. 

Senator VOINOVICH. We should be, in fact we are, looking at the 

agencies and how many do performance evaluations on senior executives. We are moving towards pay-for-performance. But, I just 

wonder, is one of the things that they are taking into consideration, 

when a manager is being evaluated, is whether or not they are 

complying with veterans’ preference? 

Mr. BLAIR. I have to go back and see if it is that specific or if 

it is more generic, but I would be happy to provide that for the 

record. 

Senator VOINOVICH. I would like to find that out, because one of 

the best ways that you can get people to do what they are supposed 

to do is include it in their performance evaluation. That is what I 

did when I was governor and I was mayor. If managers are being 

judged on that, then they will start paying more attention to it. 

But if they don’t think it is a high priority, and it is just something 

that is nice to do, then I don’t think you get the kind of response 

that you should. 

I will say this, and I would be interested to hear what the veterans’ organizations have to say. The numbers that you have given 

me are very impressive. I would be interested to know, what were 

the numbers before? You’ve been there now, Dan, almost 4 years? 

What was the record under the previous administration? 

Mr. BLAIR. I think that it has been relatively steady at about 25 

percent of the work force. If you remember, we downsized during 

the 1990s. So, the total number of veterans in the work force, since 

most of them were World War II VETS or Korea-era veterans, went 

down. But the representation in the work force has stayed relatively steady. 

Last year we did see a blip upward. I think you are going to continue to start seeing higher representation of full-time hires. We 

are seeing that a third of the new hires are veterans. So, I think 

21

you are going to start seeing those numbers increase again as veterans return from the Middle East. 

That is on the good side. The flip side is that just because you 

have increasing numbers does not mean that the violations do not 

exist. We are going to keep the heat up at OPM on agencies to 

make sure that they are following the letter of the law as intended 

by Congress. 

Senator VOINOVICH. As you know, we have probably done more 

to change Title 5 of the Civil Service Act since 1978, a lot of 

changes. I have been very much involved in that, along with Senator Akaka. All through this process we have been concerned that 

we maintain the merit system, including veterans’ preference. 

The Federal Government has an Outstanding Scholar Program. 

We have given more of the agencies the opportunity to go to college 

campuses and identify individuals that are really outstanding and 

hire them on the spot because we don’t want to lose them to the 

private sector. We have a real crisis today in the Federal Government. We have an unbelievable number of employees who could retire. We are trying, as Senator Akaka likes to say, to be the employer of choice. 

But, we have the Outstanding Scholar Program, and the purpose 

of it was to increase representation of African Americans and Hispanics in non-clerical entry level GS–5 and GS–7 positions. 

Through the program, agencies can noncompetitively appoint college graduates to an entry-level Federal job if they receive a grade 

point average of 3.5 or higher from accredited schools. 

However, some suggest that this Outstanding Scholar Program is 

being misapplied. Would you please share with the Subcommittee 

what steps are being taken to ensure that Federal agencies correctly apply veterans’ preferences to all hiring decisions for competitive and exempted service positions? 

Mr. BLAIR. It is a kind of affirmative action, trying to have a 

well-balanced work force and at the same time make sure that we 

maintain our veterans’ preference. Specifically, just a couple of 

points I want to make because this is a product of litigation right 

now before the Merit System Protection Board. 

Outstanding Scholars is a product of a consent decree that was 

entered into in 1980, in an effort to remedy under-representation. 

At OPM we said to agencies that you can use this Outstanding 

Scholars appointment authority as a supplement to your regular 

hiring. So, if your regular hiring does not work right, then you can 

go out and use an Outstanding Scholar. 

We have never intended agencies to use it as a subterfuge or to 

supplant veterans’ preference. Veterans’ preference and Outstanding Scholar have been able to coexisted. 

Senator VOINOVICH. What you are saying is that this program 

came about because of a court decision mandating a prospective 

remedy for past discrimination. Is that correct? 

Mr. BLAIR. This is an old thing. This has been going on for about 

25 years, the Outstanding Scholars appointment authority. 

Senator VOINOVICH. And today you are trying to make sure that 

it doesn’t interfere with the application of veterans’ preference? 

Mr. BLAIR. We want to make sure that it doesn’t supplant veterans preference or be used as a subterfuge to it. There is a court 

22

1The prepared statement of Mr. Weidman appears in the Appendix on page 60. 

case going on right now before the Merit System Protection Board, 

in which MSPB made some rulings. I just want to limit my comments on this point, given the litigation that is going on. But the 

points I did want to make were that, they have coexisted within 

this universe for the last 25 years. There is tension between the 

two. However, we think that there is room for both. 

Senator VOINOVICH. I can understand that, because I had a similar situation in Cleveland, Ohio, with the police and fire departments, the Vanguard case. 

Mr. BLAIR. The other thing we were pointing this out with Senator Akaka, he had asked earlier how many Outstanding Scholar 

appointments were made. For 2004, we made about 1,000 government-wide Outstanding Scholar appointments. During that same 

time, we hired over 43,000 veterans. So for every Outstanding 

Scholars appointment, there were 43 veterans hired under different 

authorities. 

What that is intended to show, is the context in which we should 

consider these two programs. 

Senator VOINOVICH. Well, as I have stated to you before, these 

reforms that we have made are very significant, and they have 

caused some anxiety. As you know, some of the unions have even 

taken us to court. 

But, we will be going through this whole period, and I would 

hope that a year from now or 2 years from now through oversight, 

we will have testimony to the effect that the new personnel system 

have not interfered with veterans’ preference, and that we have the 

same kind of report for categorical hiring, that veterans are doing 

better under the categorical hiring than they did under the old system. 

Senator Akaka, I had about 16 minutes, you had about 15. Do 

you have any more questions? I don’t know when the next vote is, 

but I would like to hear our second panel of witnesses. 

Thanks very much for your appearance here today. I appreciate 

it. 

Our second panel is Richard Weidman. Mr. Weidman is speaking 

on behalf of the Vietnam Veterans of America. Joseph Sharpe is 

here on behalf of the American Legion, and Brian Lawrence is here 

for the Disabled American Veterans. 

I would like to thank all of you for being here today. You had 

the benefit of hearing the testimony from folks of the other agencies, so as we begin the question and answer period, if you have 

any comments about some of the things that they have said, we 

welcome that. 

Mr. Weidman, we are going to start with you. 

TESTIMONY OF RICHARD WEIDMAN,1 DIRECTOR OF 

GOVERNMENT RELATIONS, VIETNAM VETERANS OF AMERICA 

Mr. WEIDMAN. Thank you very much, Mr. Chairman, and thank 

you Senator Akaka, for holding this oversight hearing as a comprehensive review of the Veterans’ Employment Opportunities Act 

passed by Congress and enacted in 1998. We were grateful back 

then for the bipartisan effort of Senator Hagel, Senator Specter, 

23

Senator Cleland, and others to get that landmark legislation 

through, to try to put some reality back into veterans’ preference. 

Subsequent to the Civil Service Reform Act of 1978, veterans organizations won the battle to keep veterans’ preference on the 

books, which was a heck of a battle here in Congress. 

Senator VOINOVICH. When was that? 

Mr. WEIDMAN. In 1978, under President Carter. But that’s when 

we started to lose the ball game, when the corporate culture started to grow up, which is the HR sections of each of the Federal departments and agencies. There was also discrimination allegations 

that led to the court order that created the Outstanding Scholar 

Program referred to before. 

There was a perception at that time that veterans’ preference 

was primarily a white male benefit, when in fact it is a veterans’ 

benefit. Veterans look like America. We are every race, we are 

every creed, we are every national origin, we are both genders, increasingly so, including in combat theaters of operation. 

And, therefore, to think that there is a dichotomy between affirmative action and veterans’ preference is simply a false dichotomy altogether, sir. You can accomplish both goals, both afford the 

individual earned right of veterans’ preference and meet every single affirmative action goal that an agency might have. 

I would challenge my good friend, Dan Blair, to name me one 

Outstanding Scholar who is veterans’ preference eligible, because I 

certainly have never heard of them. Customarily, it has been 

abused to circumvent veterans’ preference in the last 25 years, unfortunately so because these should not be things that are equivocal, whatsoever. 

Our problem with the way in which it is and is not happening 

at this point is, the accountability for actions does not seem to be 

there for Federal managers who violate individual veterans’ preference, and there is not accountability for agencies that consistently, such as the Forest Service and Fish and Wildlife, appear to 

have a terrible record when it comes to hiring veterans and disabled veterans. 

We also worked very hard, and with the assistance of your colleagues in this body, we are grateful that we were able to hold off 

designer RIFs. But now there is a new wrinkle that is known as 

the involuntary repositioning rules that will accomplish the same 

thing by, as an example, taking someone who has family ties for 

four generations in the State of Idaho and repositioning them in 

the State of Mississippi, knowing that they will not take that 

transfer in order to keep that job, but rather it was a run-off drill 

so that person would quit. Or taking someone from Hawaii and 

repositioning them in Montana, when there are strong family ties, 

that they know they will not leave the State of Hawaii. 

We have great concerns as well——

Senator VOINOVICH. Are you basically saying, if I understand 

this, that through repositioning an employee, who is a veteran, 

they can be forced out of his or her job by moving him or her someplace else, knowing that they will quit their job? 

Mr. WEIDMAN. Well, yes. Essentially, it is a run-off drill about 

people they don’t care about. It is not so much anti-veteran, as the 

favorites of the agencies are herded into one area, into essentially 

24

a no-fire zone, which is exactly what used to happen under designer RIFs, those they want to keep, and those who they don’t 

care one way or the other about are put into a free-fire zone. 

Senator VOINOVICH. But wouldn’t that apply to anybody that 

they are not really happy with? 

Mr. WEIDMAN. That is correct. 

Senator VOINOVICH. So, in other words, what you are saying is 

in the process of doing that, with positions they would like to eliminate, veterans are included? 

Mr. WEIDMAN. The veterans are part of the pool, but in many 

cases, it is a service-connected disabled veteran. They have to keep 

those people first if they go to a formal RIF. Then the service-connected disabled veteran would probably stay, the same thing with 

your veterans. 

Senator VOINOVICH. So if there is a formal RIF, you still have 

veterans’ preference applies? 

Mr. WEIDMAN. That is correct, sir. 

Senator VOINOVICH. In using repositioning, it does not apply? 

Mr. WEIDMAN. That is correct, sir. There is no waiting whatsoever. 

There had been previous talk on making agencies accountable 

and I was smiling at that. It was right dead on point, Mr. Chairman, about why isn’t there a computer program to be able to monitor what is going on in each agency at each locality around the 

country? Everything is already computed. It is just a matter of setting up the system to monitor, to hold agencies accountable, and 

we would encourage the Subcommittee to mandate OPM to do just 

that. The audits are too much hit-and-miss, and therefore what is 

indicative of that is, unfortunately OPM can not tell you the results 

of a single one of those audits because they make so little impact, 

unless they dig down and go back and dig it out. 

In terms of need of legislation to go further at this time, to build 

off of the base of the Veterans’ Employment Opportunities Act, we 

would ask that you consider, sir, the elimination of the word 

‘‘knowingly’’ from the statute altogether, and to clarify the lines of 

authority between OSC, the Office of Personnel Management, 

OPM, and the Veterans’ Employment and Training Service. 

There is great confusion on that, even amongst the three of 

them, as to who is responsible for what. When we approach them 

with an individual case, that is clearly an egregious violation of 

veterans’ preference, Labor says it is OPM’s job, OPM says it is Labor’s job. 

The reporting, for a true picture about what is going on, the 2004 

report to which Mr. Blair alluded, while this report was being prepared, we pointed out that they were listing all veterans and not 

veterans’ preference eligibles, and they still didn’t make a distinction in the final report. The gentleman who was in charge of it was 

on detail from another office, which highlights a significant weakness of that. Historically, unfortunately, that is what OPM has always done, because there are more veterans than there are veterans’ preference eligibles in the population, and it is very specifically awarded to wartime veterans only. 

Senator VOINOVICH. Mr. Weidman, can you wrap up? I have 

given you a little extra time. 

25

1The prepared statement of Mr. Sharpe appears in the Appendix on page 71. 

Mr. WEIDMAN. Should I stop? 

Senator VOINOVICH. If you could wrap it up, yes. 

Mr. WEIDMAN. So we need reporting and data by grade, by age, 

per agency, because those are the key things to get a picture of 

what is happening, and whether or not the younger veterans, who 

have extraordinary unemployment at the moment of 60 percent or 

greater, in fact are being picked up and will be able to move up 

within the Federal agencies in the future. 

There are a number of other things that we would have to say 

about that that have to do with making veterans’ preference apply 

to all pay grades and wage grades in the future, and every agency 

being put under measurable performance outcomes for applying the 

law. 

Thank you very much, Mr. Chairman, for holding the hearing 

and for allowing us to present our views here today. 

Senator VOINOVICH. Thank you. Mr. Sharpe. 

TESTIMONY OF JOSEPH C. SHARPE, JR.,1 DEPUTY DIRECTOR, 

NATIONAL ECONOMIC COMMISSION, THE AMERICAN LEGION 

Mr. SHARPE. Mr. Chairman and Members of the Subcommittee, 

the American Legion appreciates this opportunity to share its 

views on veterans’ preference in the Federal Government. 

Congress enacted the Veterans’ Preference Act of 1944 to address 

the readjustment needs of the men and women who served their 

country during the time of war. 

The law was designed to assist veterans in regaining the lost 

ground suffered in their civilian careers as a result of military service. 

When the American Legion was founded in 1919, one of the first 

mandates was to convert the existing patchwork of veterans’ preference laws, administrative rules, and executive orders into one national policy that would be protected by law. That goal was realized 

25 years later when President Roosevelt signed the Veterans’ Preference Act of 1944 into law. 

With the closing of World War II, the Federal Government enthusiastically complied with the provisions of the new veterans’ 

preference law. Unfortunately, as time passed and the memory of 

war faded, so did America’s concern for fulfilling its obligations to 

its citizen-soldiers. Today, provisions of the original legislation and 

its amendments as codified in Title 5, United States Code—USC—

seem almost nonexistent to many veterans across the country. 

The American Legion believes there are several reasons for this. 

A large number of Federal managers do not understand, or agree, 

with the reasoning for granting veterans’ preference to those who 

fought to keep this country free, nor do they understand or care 

how this process works. 

Veterans’ preference laws are intended to give veterans an advantage over other applicants for Federal positions and during a 

reduction in force, RIF. Veterans are disadvantaged while serving 

their country. For many years, veterans’ preference laws successfully provided significant advantages, as intended. However, over 

many years, agencies have gradually gained access to appointment 

26

1The prepared statement of Mr. Lawrence appears in the Appendix on page 78. 

methods that do not require providing preference. Other weaknesses in the current system relate to enforcement of veterans’ 

preferences, accountability and disciplinary action for veterans’ 

preference violations, and the limited appeal rights for violations of 

veterans’ preference. 

The American Legion would like to reiterate how important veterans’ preference in Federal hiring is to returning service members 

and veterans. It is equally important that OPM maintain enforcement power over Federal agencies. 

In a time of rapid change, and with the pending departure of 

400,000 service members within the next 2 years, the American Legion believes that the current structure within OPM, which is designed to monitor, inform, promote, and enforce veterans’ preference laws, is clearly inadequate. The American Legion recommends that Congress provide additional funding for an Office of 

Veterans’ Affairs within OPM, so that it is adequately staffed and 

funded. Such an office would better exercise OPM’s mandate to protect veterans’ preference. 

Mr. Chairman, a grateful Nation created the concept of veterans’ 

preference for those citizens who served this country in our Armed 

Forces. Due to the current war on terror, thousands of service 

members of the Reserve component, who make up 40 percent of the 

current fighting force in Iraq and Afghanistan, will now qualify for 

veterans’ preference due to their extraordinary contribution to the 

freedoms we all enjoy as Americans. The American Legion urges 

the Subcommittee to send a strong message to Congress to do more 

to preserve and protect veterans’ preference. 

Mr. Chairman, this concludes my statement. 

Senator VOINOVICH. Thank you. Mr. Lawrence. 

TESTIMONY OF BRIAN E. LAWRENCE,1 ASSISTANT NATIONAL 

LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS 

Mr. LAWRENCE. Thank you, Chairman Voinovich. Good afternoon, Senator Akaka. On behalf of the 1.3 million members of the 

Disabled American Veterans, thank you for the opportunity to 

present our views on the state of veterans’ preference in Federal 

employment. 

Our country has recognized that members of the Armed Forces 

deserve special consideration regarding appointments to Federal 

positions since the Revolutionary War. Along with rewarding benefits for their patriotic duties and sacrifices, our government realized the value in harnessing veterans’ inherent leadership qualities 

and skills, which are essential to any successful business or government agency. 

Despite statutory requirements providing Federal employment 

preferences, we occasionally receive complaints from disabled veterans who believe their preference rights were ignored or intentionally circumvented by the agencies, to which they had applied. 

Most often such complaints are in reference to the Outstanding 

Scholar Program. Many Federal agencies use the OSP to hire new 

employees that have maintained college grade point averages of 3.5 

27

or higher. The program should never take priority over veterans’ 

preference. 

Senator VOINOVICH. Excuse me just a minute. We have heard 

this now, and what I would like to know from you, whether this 

is anecdotal or can you show us specific cases where this has occurred? That is very important to us. In other words, so often witnesses come here and say this is that. But for us to really investigate, I need some examples. 

Mr. LAWRENCE. It is anecdotal, largely, but there has been a lot 

of it. So many instances of it that we have had resolutions actually 

introduced to ban the Outstanding Scholar Program. There wasn’t 

a resolution that was adopted by our membership included with 

our legislative agenda, but it has risen to that level. 

Again, we feel that the Outstanding Scholar Program should 

never trump veterans’ preference. It lacks the statutory preference. 

And, additionally, I don’t think maintaining a 3.5 grade point average indicates that somebody would be a better worker than somebody that served their country in the military. 

In my testimony I refer to the Merit System Protection Board, 

the MSPB case. We were disheartened that OPM asked for a reconsideration of that case, and we feel that it sends the wrong message to the men and women serving in the military. 

The Outstanding Scholar Program is probably the foremost example of ways that veterans’ preference has been voided. But 

again, I am going largely by anecdotal information here. I don’t 

have a specific case to mention to you right away. 

We appreciate the Subcommittee’s interest on these issues, and 

we will do whatever we can to help enforce veterans’ preference 

and see that there is a better upholding in the future. That will 

conclude my statement. 

Senator VOINOVICH. Thanks very much. 

Would you all agree that Federal managers do not understand 

veterans’ preference, and why we have it? 

Mr. WEIDMAN. No. Many managers do, and God bless them. The 

problem is that there is no repercussions for those who either do 

not, or those who understand the purposes, but disagree with the 

purposes and do not act accordingly with the law. 

Senator VOINOVICH. Do you know whether or not OPM, in terms 

of orientation for managers, gives them information through their 

chief human capital officers or human resource people? Has there 

been a training program so they understand why we have veterans’ 

preference? 

Mr. WEIDMAN. I think most of their training program focused on 

that, but it is not a competency based program, number one. And, 

number two, at the Department of Labor, some of their staff—most 

of their staff I guess has been trained now. But, none of them have 

taken any competency based tests about how to investigate a complaint as to whether someone has a veterans’ preference right, if 

there is a legitimate case in an agency, and where there have been 

repeated complaints from the same locality, the same agency, 

whether or not there is pattern and practice happening at that locality. That means that it is the given norm there and needs to 

have significant action. 

28

Senator VOINOVICH. So you would like to see a follow-up on 

this—that gets back to the statistical analysis that I talked about—

so that there would be some coordination between the Department 

of Labor and OPM? Maybe Senator Akaka and I can ask for a report every 6 months or a year that basically talks about how people 

are performing? 

Mr. WEIDMAN. We are sensitive to the lack of performance, and 

we are sensitive to the fact that we are all, to some degree, flying 

blind. It is not an affirmative action program. So the question is, 

how do you pinpoint the specific cases? Now, we do get individual 

complaints, and quite often get a real run-around, and I can show 

you some war stories. 

Senator VOINOVICH. I can tell you this. Talking to some managers that I talk to, they will say to you, ‘‘Veterans’ preference 

doesn’t make any sense. It’s not the best way to manage.’’ So there 

has got to be some education that this is a policy Congress has decided to do. 

I think you heard my comments to Mr. Blair, that as we, the government, moves into strong employee performance evaluations, we 

should include understanding of veterans’ preferences, along with 

other things they should be measured on. 

Mr. WEIDMAN. If I may just say, one thing I would like to do publicly is commend Secretary Nicholson. In this coming year, for the 

first time ever it is a specific, stated goal of the Veterans’ Administration to hire more veterans, overcoming, I might add, the objections of Office of Management and Budget of those being included. 

Office of Management and Budget has less than 10 veterans working for it, in the entire agency, and no disabled veterans, so that 

is where their mind set is at. They are already putting it into managers’ job descriptions because Secretary Nicholson is serious about 

it. 

It takes that kind of commitment from the top of each agency, 

doing what it is supposed to do. But there is no centralized reporting mechanism on things like the disabled veterans and affirmative 

action program. They state what the goals are, but nobody comes 

back and says, ‘‘What did you do?’’

Senator VOINOVICH. You would support Senator Akaka and I in 

requesting OPM Director Linda Springer to provide the good examples, role models, among agnecies? 

Mr. WEIDMAN. I would say that, yes, sir. 

Senator VOINOVICH. Mr. Sharpe. 

Mr. SHARPE. You mentioned earlier about the Outstanding Scholar Program, if we had any evidence. We are currently involved in 

a case now, and one of our assistant directors, Juan Latta, has 

brought some hard copies of it, of our involvement, so we can give 

that to you after this session. 

Senator VOINOVICH. We would like to have it. If I ask the 

NAACP or the Urban League, or other national organizations that 

represent minorites, what do you think would they say about it? 

Mr. SHARPE. I have spent 22 years in the military, and I recently 

returned from Iraq, so I am still in that military mind-set, so I 

have no idea what the NAACP or any other group would say. 

Senator VOINOVICH. This consent decree is prospective relief for 

past discrimination. The courts decided that there was discriminaVerDate 0ct 09 2002 09:54 Dec 01, 2006 Jkt 027756 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 C:\DOCS\27756.TXT SAFFAIRS PsN: PAT
29

tion in the Federal Government. You feel the program is being 

abused. I would be interested in knowing what other organizations 

think. 

Mr. SHARPE. My unit is on its way back to Iraq, and so as far 

as I am concerned, I am against the Outstanding Scholar Program. 

I don’t care who it is for. But I really thing veterans deserve that. 

Twenty percent of the Army is made up of African Americans, 

and that is where my loyalty goes. I consider myself an Army Sergeant, and I am still that. And I feel that this goes against the 

grain of veterans’ preference. 

I have seen too much, and I believe that when these veterans 

come back—I have too many people in my unit that are currently 

unemployed. I have people that are homeless. I know too many 

military folks that are trying to get into the Federal Government. 

I have met people in Walter Reed, severely injured, and they are 

upset because they have to wait a year to try and get their applications through to the Federal Government. 

Senator VOINOVICH. So do you have concerns with the REALifeline program? 

Mr. SHARPE. I think it is an excellent program. 

Senator VOINOVICH. But you don’t think it is doing enough? 

Mr. SHARPE. The problem is that there seems to be a funding 

issue with everything. There is a funding issue with OPM. We feel 

that there ought to be an Office of Veterans’ Affairs. There is one 

full-time person. I can not see how one full-time person can monitor veterans’ preference in all the agencies, even though OPM has 

made a great effort in trying to do outreach. The same thing with 

the Department of Labor. I think that they are understaffed. The 

Amerian Legion and other organizations have been fighting for 

years for more funding. 

I think with more funding, and a greater willingness, on certain 

individuals in the government, to ensure that veterans are ensured 

of their rights, I think we can solve the problem. But, I think they 

are doing a good job with what they have. 

Senator VOINOVICH. I am over my time, Senator Akaka. 

Senator AKAKA. Thank you, Mr. Chairman. 

This is a question to all of you. I asked this question of Mr. Blair 

earlier about three reoccurring issues at OPM’s quarterly meetings. 

I know there are many issues, but what are three reoccurring 

issues that you have at these meetings, and how would you rate 

OPM’s responsiveness to your concerns? Mr. Weidman. 

Mr. WEIDMAN. One issue that occurs almost every meeting, is the 

lack of measured performance outcomes. Most of us in veterans’ 

service organizations feel strongly that, if you have these glowing 

generalities, how do you know if you are making any progress towards it? That is number one. 

Mr. Blair has challenged us to come back exactly with what you 

asked, Mr. Chairman, and that is with specific cases. We are trying 

to do that through surveys of our own membership, to the point 

where, this past month, I ran an ad in the Federal Times, Army 

Times, Navy Times, Air Force Times, and Marine Times, with a 

special e-mail address, vetpref@vva.org. We are going to continue 

to do that, but, in the meantime, each agency has to come from the 

other end. 

30

Their 1984 report makes certain recommendations. To our 

knowledge, there has been no look-back to see whether any of these 

has been implemented. And, second, none of them were quantitative in any manner, shape, or form. And there is no redress 

mechanism in the form of an 800 number or a specific e-mail address that somebody can send an e-mail to and say, ‘‘This is my 

case,’’ and leap over the agency at hand or whatever the problem 

may be at the local level to seek redress. 

So it is a question of measurable performance outcomes, lack of 

redress, and the last, but by no means least, is concern in regard 

to trying to get a grip on the specific scenarios with the new categorical rankings. They have brought in, to their credit, George 

Nesterchuck, who is somebody who worked for Congressman John 

Mica when we fashioned the veterans’ peference—actually it was 

first fashioned in 1995 and finally enacted in the 106th Congress. 

Mr. Nesterchuck is somebody who we value, and he is working at 

OPM now, trying to make sure that there is veterans’ preference 

in the new DOD system. 

Senator AKAKA. Mr. Sharpe. 

Mr. SHARPE. For the American Legion, we are very concerned 

again with accountability: OPM’s ability to oversee and enforce. We 

are concerned, with their staffing levels, if they are able to conduct 

what they need to do. We feel that they have made an effort, a 

huge effort, under Kay Coles James and the current administrator, 

to do what they could, but we just feel that this is not enough. 

They really don’t have the funding, the personnel, or the statutes 

in place to allow them to be more effective. I think they are doing 

the best they can, with what they have, but I don’t think they have 

enough to work with. And neither does the Department of Labor. 

Senator AKAKA. Yes, and in your testimony you did use the word 

‘‘inadequate,’’ and you are saying it again. Mr. Lawrence. 

Mr. LAWRENCE. I don’t think I can add anything to what my colleagues have said on that issue, so rather than reiterate, I will just 

defer to what they have said. 

Senator AKAKA. Let me ask the three of you again another question. You heard Director Blair’s response to Senator Voinovich’s 

question about the impact of category ratings on veterans’ preference. In your view, what has been the impact of this personnel 

flexibility on veterans’ preference? Mr. Weidman. 

Mr. WEIDMAN. It is unclear. The jury is very much still out on 

it. In terms of the initial switchover, if we were asked, the veterans’ service organizations, ‘‘Why are you so paranoid about that?’’ 

we would have replied, ‘‘If we couldn’t trust you with the rule of 

one in three, why in the world would we trust you with the rule 

of one in three hundred?’’

And, until they put into place the performance measures and 

ways of monitoring station-by-station to pick up patterns and practice, to go in and discover where there appears to be statistical 

anomalies, then to go in and see if rights of individual veterans’ 

preference eligibles are being violated, until they put that in place, 

we remain even more skeptical about the categorical rankings. 

Senator AKAKA. Mr. Sharpe. 

Mr. SHARPE. From our viewpoint, the jury, again, is still out. But 

we are not sure OPM has enough to be able to adequately tell us 

31

if preference is being violated or not, or if this is a better system 

or not. I just think certain things are not in place to be able to definitely let us know how the Federal agencies are carrying out their 

mandates. 

Senator AKAKA. Mr. Lawrence. 

Mr. LAWRENCE. The DAV hasn’t had a specific position on that 

issue, so I don’t have any comments in that regard. 

Senator AKAKA. Mr. Chairman, my time has expired, but if I can 

ask one more question——

Senator VOINOVICH. I have a suggestion. I have a commitment at 

4:30, and what I would like to do is continue the hearing and then 

you can adjourn it. Is that all right? 

Senator AKAKA. I will submit questions for the record, so you 

may adjourn the hearing. 

Senator VOINOVICH. I want to say I appreciate your testimony 

here today. What I would like to do, with Senator Akaka, is to sit 

down and get a letter summarizing some of the issues that were 

brought here. 

One of the things that bothers me about these hearings is, you 

guys come in and testify. Then, maybe, we are going to come back 

a year from now and do the same thing. I hate to have hearings 

without a follow-up. 

So I would like to sit down with Senator Akaka. We will try to 

draft a letter, it may not include everything that you want, but, we 

would be glad to even run it past you to see what you think about 

it, and then we will have to decide whether it is going to be included or not included. Then we will see if we can get some action 

on some of these things, particularly with OPM. 

But I want you to know this, that OPM, the Department of 

Labor, and some Federal agencies do not have the budget they 

need. 

One of the things that we have to do here is to figure out how 

people can get things done with the budget they have. We are asking them to do jobs and we don’t give them the resources to do the 

job. What I found from my experience as a mayor and a governor, 

when you say to somebody, ‘‘I want you to do the job,’’ and you 

don’t give them the tools to do it, then basically what you are telling them is you don’t think much of the job you are asking them 

to do. 

We have got to address this. Director Springer is coming in next 

week to see me, and I am going to try to ask her to identify areas 

that we are asking her to take care of and talk about the real resources. This Administration wants us to get involved in a lot of 

reforms that are controversial, and I am unsure if they have the 

capacity to implement further reforms well. If they want us to cooperate with them, then I want them to show me the money. 

When we consider the issues of today, and halting illegal immigration, including more drones, and helicopters. But at the same 

that we are talking about doing these things, never have I heard 

a Member of the Senate or Congress by the same token say, ‘‘And, 

by the way, folks, it’s going to cost us X number of dollars.’’ So the 

public doesn’t get it. 

I learned we are spending $154 million protecting the oil lines 

in Saudi Arabia. It just drives me crazy. I call it the silo effect. 

32

There is a silo and there is a silo and there is a silo. Nobody ever 

looks at the big picture to see how do all the silos fit together. 

If we don’t start looking at the big picture, we are going to have 

more trouble. We don’t have the right people with the right knowledge and skills at the right place at the right time. We have underestimated how important it is to have those people in place. The 

most important resource we have in this government are good 

workers, management that pays attention to what they are doing, 

and the resources to get the job done. 

I will adjourn this hearing now, but I want you to know we are 

going to work on this. Six months from now we know it is not going 

to be one of those deals where you came in to say, ‘‘Well, you saw 

those guys, and they’ll forget about it for a year.’’ We are going to 

do something. OK? 

Senator AKAKA. Mr. Chairman, let me just say that your statement was eloquent, and I can tell it comes out of your experiences 

as a mayor and governor, and knowing what happens in the 

trenches. Unless we have the personnel and an office that can handle veterans’ preference, then veterans are left without recourse. 

Using the words of Mr. Sharpe, agencies efforts are inadequate. 

I know the frustration the Chairman goes through, that we have 

these hearings and there is no appropriate answer. I am so glad, 

Mr. Chairman, that you are pushing this, and I am with you on 

putting a letter together to try to get answers on this. 

Senator VOINOVICH. The hearing is adjourned. 

[Whereupon, at 4:35 p.m., the Subcommittee was adjourned.] 

(33)

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Æ


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