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ENSURING A MERIT–BASED EMPLOYMENT SYSTEM:

AN EXAMINATION OF THE MERIT SYSTEMS

PROTECTION BOARD AND THE OFFICE OF SPECIAL COUNSEL

HEARING

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE,

POSTAL SERVICE, AND THE DISTRICT

OF COLUMBIA

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JULY 12, 2007

Serial No. 110–197

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

DAVID MARIN, Minority Staff Director

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL SERVICE, AND THE DISTRICT OF

COLUMBIA

DANNY K. DAVIS, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JOHN P. SARBANES, Maryland

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio, Chairman

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

KENNY MARCHANT, Texas

JOHN M. MCHUGH, NEW YORK

JOHN L. MICA, Florida

DARRELL E. ISSA, California

JIM JORDAN, Ohio

TANIA SHAND, Staff Director

(III)

C O N T E N T S

Page

Hearing held on July 12, 2007 ............................................................................... 1

Statement of:

Bloch, Scott J., special counsel, U.S. Office of Special Counsel; and Neil

McPhie, chairman, Merit Systems Protection Board ................................. 4

Bloch, Scott J. ............................................................................................ 4

McPhie, Neil .............................................................................................. 13

Miles, Adam, legal representative, Government Accountability Project;

Natresha Dawson, former Office of Special Counsel employee and whistleblower; Lara Schwartz, chief legislative counsel, Human Rights Campaign; and Beth Daley, director of investigations, the Project on Government Oversight ........................................................................................ 111

Daley, Beth ................................................................................................ 159

Dawson, Natresha ..................................................................................... 136

Miles, Adam ............................................................................................... 111

Schwartz, Lara .......................................................................................... 149

Rosenberg, Morton, Senior Analyst, Congressional Research Service, accompanied by Thomas J. Nicola, Legislative Attorney, American Law

Division, Congressional Research Service; and Henry B. Hogue, Analyst, American National Government, Government and Finance Division, Congressional Research Service ......................................................... 58

Letters, statements, etc., submitted for the record by:

Bloch, Scott J., special counsel, U.S. Office of Special Counsel, prepared

statement of ................................................................................................... 6

Daley, Beth, director of investigations, the Project on Government Oversight, prepared statement of ........................................................................ 161

Davis, Hon. Danny K., a Representative in Congress from the State

of Illinois, prepared statement of ................................................................ 175

Dawson, Natresha, former Office of Special Counsel employee and whistleblower, prepared statement of ................................................................. 137

McPhie, Neil, chairman, Merit Systems Protection Board, prepared statement of ........................................................................................................... 15

Miles, Adam, legal representative, Government Accountability Project,

prepared statement of ................................................................................... 113

Rosenberg, Morton, Senior Analyst, Congressional Research Service, prepared statement of ........................................................................................ 62

Schwartz, Lara, chief legislative counsel, Human Rights Campaign, prepared statement of ........................................................................................ 151

(1)

ENSURING A MERIT-BASED EMPLOYMENT

SYSTEM: AN EXAMINATION OF THE MERIT

SYSTEMS PROTECTION BOARD AND THE

OFFICE OF SPECIAL COUNSEL

THURSDAY, JULY 12, 2007

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL

SERVICE, AND THE DISTRICT OF COLUMBIA,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m. in room

2154, Rayburn House Office Building, Hon. Danny K. Davis (chairman of the subcommittee) presiding.

Present: Representatives Davis of Illinois, Cummings, Clay, Norton, Davis of Virginia, Mica, Issa, Marchant, and Jordan.

Staff present: Tania Shand, staff director; Caleb Gilchrist, professional staff member; Lori Hayman, counsel; Cecelia Morton, clerk;

Ashley Buxton, intern; David Marin, minority staff director; Keith

Ausbrook, minority general counsel; Ellen Brown, minority legislative director and senior policy counsel; Jim Moore, Steve Castor

and Charles Phillips, minority counsels; Howie Denis, minority

senior professional staff member; Alex Cooper, minority professional staff member; Patrick Lyden, minority parliamentarian and

Member services coordinator; and Brian McNicoll, minority communications director.

Mr. DAVIS OF ILLINOIS. The subcommittee will come to order.

Let me first of all welcome Ranking Member Marchant, who is

on his way. Members of the subcommittee, hearing witnesses, and

all of those in attendance, welcome to the Federal Workforce, Postal Service, and the District of Columbia Subcommittee hearing entitled, ‘‘Ensuring a Merit-Based Employment System: an Examination of the Merit Systems Protection Board and the Office of Special Counsel.’’

The purpose of the hearing is to examine how the Office of Special Counsel and the Merit Systems Protection Board are meeting

their statutory mission and safeguarding the Federal Government’s

merit-based system of employment. The hearing will examine each

agency’s reauthorization request.

Hearing no objection, the Chair, ranking member, and subcommittee members will each have 5 minutes to make opening

statements, and all Members will have 3 days to submit statements for the record.

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I will note that the ranking member is not here, but the ranking

member of the full committee, Representative Tom Davis, is, in

fact, here. We are delighted that he is present.

As I indicated, Members will have 5 minutes to make opening

statements, and all Members will have 3 days to submit statements for the record.

I will begin with an opening statement and then proceed.

Welcome to today’s hearing on the Office of Special Counsel

[OSC], and the Merit Systems Protection Board [MSPB]. The OSC

and MSPB, which were established in 1978 by the Civil Service Reform Act, are responsible for safeguarding the Federal Government’s merit-based system of employment. On October 13, 1978,

when President Jimmy Carter signed the Civil Service Act into

law, he said, ‘‘This legislation will bring fundamental improvements to the Federal personnel system. It puts merit principles

into statute and defines prohibited personnel practices. It provides

better protection for employees against arbitrary actions and

abuses and contains safeguards against political intrusion. The act

assures that whistleblowers will be heard and that they will be

protected from reprisal.’’

President Carter said, ‘‘Now this bill is law, but this is just the

start of a continuing effort to improve the Federal Government’s

services to the people. By itself, the law will not ensure improvement in the system. It provides the tools; the will and determination must come from those who manage the Government.’’

Those who manage the Government must have the will and determination to ensure, in the case of OSC and MSPB, that Federal

employees who disclose information of Government waste, fraud,

and abuse are not retaliated against; that Government employees

comply with legal restrictions on political activity; and that employee appeal cases are adjudicated in a fair and timely fashion.

Unfortunately, there is some indication that the will and determination is not there. Stakeholders such as the Government Accountability Project, the Project on Government Oversight, and the

Public Employees for Environmental Responsibility claim that OSC

is not giving badly needed attention to Federal whistleblower cases.

For this reason I am pleased to have joined Chairman Waxman

and Ranking Member Davis in co-sponsoring H.R. 986, The Whistleblower Protection Act of 2007. This legislation, which has passed

the House and is waiting consideration in the Senate, would grant

whistleblowers the right to challenge reprisals in Federal District

Court and clarifies that any protected disclosure applies to all lawful communication of misconduct.

OSC and MSPB were last reauthorized in 2002 for 5 years. Both

agencies are seeking reauthorization through fiscal year 2012 and

additional legislative changes. These additional legislative changes

have to be reviewed carefully.

I am sure that Ms. Norton will share her thoughts on OSC’s reauthorization request to be allowed to relocate out of the District

of Columbia.

The Congressional Research Service has indicated that provisions in MSPB’s reauthorization request, which the MSPB has

characterized as technical corrections, would substantively enhance

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the power and authority of the Office of the chairman, which is

counter to current congressional intent.

I ask unanimous consent to submit for the record the statements

of the National Treasury Employees Union and the American Federation of Government Employees. Both groups are opposed to

MSPB’s reauthorization request to approve motions for summary

judgment. They argue that this would lead to the loss of crucial

employee rights, including employees’ ability to defend themselves

from unjust adverse actions.

I look forward to hearing the witnesses address these and other

issues pertaining to the statutory mission of OSC and the MSPB.

Now I would yield to the ranking member of the full committee

for any opening remarks that he would have.

Mr. DAVIS OF VIRGINIA. Mr. Chairman, I think to move things

along I ask that my statement be put in the record. We have a fairly lengthy statement.

Mr. DAVIS OF ILLINOIS. Thank you very much, without objection.

I will introduce the first panel. The Honorable Scott J. Bloch

brings over 17 years of experience to the Office of Special Counsel,

including litigation of employment, lawyer ethics, and complex

cases before State courts, Federal courts, and administrative tribunals.

On June 26, 2003, President George W. Bush appointed Mr.

Bloch for the position of special counsel. The U.S. Senate unanimously confirmed him.

We welcome you, sir.

The Honorable Neil McPhie was confirmed as chairman of the

U.S. Merit Systems Protection Board on November 21, 2004. He

had served as acting chairman since December 10, 2003, when

President Bush designated him to be vice chairman.

Prior to joining the Board, he was senior assistant attorney general in the Office of the Attorney General of Virginia. Among other

responsibilities, he defended employment discrimination claims

brought under the Federal law and wrongful discharge claims

brought under State law.

I want to thank both of you gentlemen for being here.

As is customary, if you gentlemen would stand and raise your

right hands, we will swear in the witnesses.

[Witnesses sworn.]

Mr. DAVIS OF ILLINOIS. The record will show that each witness

answered in the affirmative.

Thank you, gentlemen, very much. You may be seated.

The green light, of course, indicates that you have 5 minutes to

summarize your statement. The yellow light means that your time

is running down, that you have 1 minute left. Of course, the red

light means that your time has expired.

We will begin with Mr. Bloch. After we have heard from both

witnesses, we will begin the questioning.

Thank you very much, sir. You may proceed.

4

STATEMENTS OF SCOTT J. BLOCH, SPECIAL COUNSEL, U.S. OFFICE OF SPECIAL COUNSEL; AND NEIL MCPHIE, CHAIRMAN,

MERIT SYSTEMS PROTECTION BOARD

STATEMENT OF SCOTT J. BLOCH

Mr. BLOCH. Chairman Davis, Ranking Member Davis, Member

Mica, distinguished members of the committee, John Adams said,

‘‘Good government is an empire of laws.’’ As the special counsel of

the U.S. Office of Special Counsel, I am requesting reauthorization

because upholding USC’s laws keeps Government accountable and

lawful.

I am pleased to tell you OSC is functioning better than ever,

while continuing to improve. Morale is high, and I am proud of the

very qualified employees who uphold the laws every day to provide

a needed, independent watchdog over the executive branch. Our

independance is our bulwark. Your support of this independence

fosters greater public trust in Government and combats the negative image of Government as catering to special interests.

I have submitted written testimony that goes into greater detail,

but let me give an overview of how we are functioning in four important areas: whistleblower disclosures; prohibited personnel practices—especially whistleblower reprisal; Hatch Act limiting political

activity of Government employees; and Uniformed Services Employment and Reemployment Rights Account [USERRA], protecting

job rights of military service members.

These charts I have brought show our progress. The first is our

whistleblower disclosure unit. It shows a steep dropoff in numbers

of pending cases from year to year during my tenure.

The next chart shows the number of cases rising and increased

referrals of substantiated whistleblower claims that go to agencies

for full investigation. We doubled the number of those over prior

years.

This translates into a safer and more efficient America, in cases

ranging from better border patrol enforcement to combating procurement waste.

One significant case you may remember is Anne Whiteman,

whom we awarded our Public Servant of the Year Award in 2005

for her disclosures of FAA’s 7-year cover-up of near misses and

operational errors at Dallas-Fort Worth International Airport.

Based on new disclosures of Ms. Whiteman and an additional whistleblower, we wrote this week to the Secretary of Transportation

demanding a full investigation of cover-ups and a possible nationwide policy to improperly reduce reporting of operational errors

and to hold to account those involved in the cover-up and those

who are retaliating against Ms. Whiteman.

The next chart is prohibited personnel practices, showing a decrease in processing times by half from 2004 to 2006.

The next chart shows a decrease in average age of cases in our

IPD, or prosecution unit. Prominent cases in this area include a

finding of retaliation by the Inspector General of the Department

of Commerce against a subordinate who reported possible travel

fraud. After reporting out to the President, the IG is no longer with

the Department of Commerce.

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Monday we got a permanent stay for a DEA whistleblower, Mr.

Waddell, who reported unconstitutional witness interrogation and

was retaliated against. After opening statements, the DEA settled

and gave full corrective action.

Our next chart shows our Hatch Act unit and how it is bringing

down processing times in the cases in the years that I have been

here, and then the chart after that shows an increase of disciplinary and corrective actions in the same period.

We have had several higher-profile rulings from the Board in the

last year that emphasized the reach of the Hatch Act in areas such

as Government e-mail use, and we are looking into the appropriateness of presentations throughout the executive branch on political

races.

Regarding USERRA, the final chart, it shows that we are achieving results in protecting the rights of military service members.

This is a distinct priority for me, not only as head of OSC but as

the father of a veteran Marine who has served three tours of duty

in Iraq. I filed the first three USERRA prosecutions in our agency’s

history in my first year. We created a USERRA unit, and the demonstration project begun at OSC in 2004 expires at the end of this

fiscal year, but we ask that it be made permanent.

We have achieved a 25 percent corrective action rate. Such is the

case of a service member injured in Iraq who was denied his postal

job on his return. We got his job back, and back pay for him.

We were criticized by outside groups after fixing the chronic

backlogs at OSC, so at our request in May 2005 bipartisan staff

from this committee did an onsite review of OSC’s work. They

pored over our files and interviewed numerous career attorneys

over 3 weeks. Committee staff on both sides expressed satisfaction

that OSC did nothing wrong, and OSC received a kind letter from

then committee Chairman Tom Davis praising OSC’s hard work

and protection of whistleblowers. Here is a blow-up of that letter.

My written statement includes details of our legislative reauthorization request.

I look forward to answering any questions you may have, and

thank you.

[The prepared statement of Mr. Bloch follows:]

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Mr. DAVIS OF ILLINOIS. Thank you, Mr. Bloch.

Mr. McPhie.

STATEMENT OF NEIL MCPHIE

Mr. MCPHIE. Thank you, Chairman Davis and other Members,

for giving me the opportunity to come before you and tell you what

we have done to safeguard the merit system principles.

I serve as the chairman of the MSPB. I will ask that my official

statement be submitted for the record.

I am pleased to support that the Board has been voted one of the

best places to work in the Federal Government for 2007. Today I

will highlight some of the Board’s accomplishments since the last

reauthorization and summarize the legislative proposals we have

submitted. Finally, I will discuss some of the challenges that I foresee in the Board’s future.

From fiscal year 2002 to 2007, the Board adjudicated 42,145

cases, for an average of 8,429 cases per year. The average processing time for initial decisions at the beginning of the last reauthorization period was 99 days. We have reduced processing time significantly, with an average of 89 days for fiscal year 2006. We have

also made significant progress in reducing the average case processing time at headquarters from 265 days in fiscal year 2005 to

154 days in fiscal year 2006; yet, there has been no sacrifice in the

quality of our decisions. During this period, a Court of Appeals for

the Federal Circuit affirmed 93 percent of the Board cases that

were appealed to that court.

The Board has embraced technology to expedite case processing.

For example, since 2002 we have increased the use of video conferencing. In fiscal year 2003, MSPB implemented an electronic appeals process that allows appellants and other parties to file initial

appeal using the Internet. Currently, approximately 25 percent of

all initial appeals are filed electronically.

In addition to the Board’s successful adjudication settlement program, the Board has implemented its mediation appeal program

nationwide in 2004. Although only a few years old, MAP has resulted in the successful settlement of more than 100 appeals.

The Board also conducts independence, nonpartisan, objective research and produces reports that promote the merit system values

embodied in title 5. Between 2002 and 2006, the Board issued over

20 reports. Board employees also conducted more than 400 outreach presentations to generate awareness of Board activities and

responsibilities.

With respect to general management issues, I am pleased to report that the Board has earned a clean audit for each of the 4-years

that Federal agencies have been required to submit a financial

audit.

During this reauthorization period, we are requesting the enactment of six legislative proposals in an effort to improve the efficiency and effectiveness of the Board. One proposal seeks to provide for an order of succession for the Board when, one, the Board

membership is comprised of two or more Board members but no

member has been designated chairman or vice chairman; or, two,

all three board positions are vacant.

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This proposed legislation recognizes the President’s prerogative

to control key executive branch appointments while preserving the

continuity of agency operations.

In another proposal, the Board requests summary judgment authority, as other agencies such as the EEOC already have. We believe that such authority would greatly enhance the efficiency of

the Board’s adjudicatory process, without adversely affecting the

rights of appellants.

The Board also requests three technical corrections. Pursuant to

statute, the chairman of the Board serves as the chief executive

and administrative officer of the agency. As such, the chairman has

historically exercised chief executive responsibilities for the agency.

Two other proposed technical amendments merely reconcile inconsistent provisions. The third amendment emphasizes the chairman’s authority to delegate certain responsibilities to the employees he or she appoints.

Finally, the Board requests unlimited exemption from requirements in the Sunshine Act. In accordance with the responsibility

of a quasi-judicial agency, the three-member board functions similar to a court when it deliberates and decides cases. The proposed

exemption from requirements of the Sunshine Act will enable the

Board members to freely discuss and deliberate cases.

As a Federal agency, the Board faces several potential challenges

in the near future. Factors that could result in increase in the

Board’s caseload include the anticipated increase in retirement and

the resultant increase in hiring, changes in traditional, present,

and new legislation may also result in an increase in the Board’s

caseload.

Additionally, we have been working to prepare for the implementation of the new employee appeal system for DHS. We recognize

that the MSPB, itself, will be directly affected by the increase in

Federal Government retirements. Within 5 years, 40 percent of the

MSPB’s work force will be eligible to retire. Only 20 percent are

eligible at this moment. To prepare for these retirements, my administration has looked for creative ways to attract, develop, and

retain employees. For example, I have directed each office to develop a succession plan. I have also instituted and developed a new

training program throughout the agency.

My time is up. I have one final point. May I finish, Mr. Chairman?

In short, Board members, officials, and staff have successfully

fulfilled the agency’s statutory missions. In addition, we will continue to be careful stewards of the public’s funds. We believe that

the proposed amendments described during this hearing will help

the agency meet its goals. In these times of great change in Federal

human resource management, a strong, vibrant, and independent

MSPB is critical.

We look forward to the opportunity to continue our important

work in the next 5 years, and I would be happy to answer any

question any Member may have.

Thank you very much, sir.

[The prepared statement of Mr. McPhie follows:]

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Mr. DAVIS OF ILLINOIS. I thank the gentleman very much.

We will move right into the question period.

Mr. Bloch, let me ask if you could comment on the Office of Personnel Management Inspector General’s investigation of allegations

by current and former OSC employees that you retaliated against

underlings who disagreed with your policies by transferring them

out of State and tossing out legitimate whistleblower cases to reduce backlog?

Mr. BLOCH. Thank you, Mr. Chairman.

We have, of course, not done any of the things that have been

alleged by the outside pressure groups. They have their own interest in why they are saying those things. They are reckless and

false and slanderous.

We have had five investigations that have exonerated me over

the same allegations. The final one that has been hanging over my

head for 2 years at the Office of Personnel Management Inspector

General is doing what I just said, hanging fire. I haven’t seen anything. I haven’t heard from anybody. So as soon as that is over, it

is over, but it has been there for 2 years. Enough is enough.

The allegations, the absolutely hilarious and scandalously slanderous allegations that my staff would throw out whistleblower

claims was proved to be utterly false by bipartisan staff members,

12 of them who came to our agency at our request to dispel these

utterly absurd notions that my career staff would ever do such illegal things and violate not only the law of our statutes but also put

their bar licenses at risk.

So the bipartisan staff looked at evidence. They aren’t outside

pressure groups. They are qualified staff investigators. They looked

at all the evidence and they went through the files, and they also

looked at specific cases where allegations have been made that they

were improperly dismissed or told the whistleblower they didn’t

have a close or the Hatch Act complainant or the PPP complainant

or whoever it was. They went through all four enforcement areas,

and it was very detailed, and they interrogated our staff, not me,

our staff, the people who actually work these cases. It is really insulting and absolutely unhelpful to the merit system to accuse the

people who do this fine work every day and have achieved incredible results for the American people and for the Federal Government of absolutely heinous acts they never committed.

Mr. DAVIS OF ILLINOIS. Are you cooperating fully with the OPM’s

Inspector General’s investigation into those allegations?

Mr. BLOCH. Well, if you consider waiting around for 2 years for

them to finish cooperating, yes. I don’t have anything to cooperate

in. Nobody has talked to me. But I am doing nothing with regard

to that investigation. I am fully willing to cooperate and ready and

anxious to get it over with, because it is unfair to the staff, it is

unfair to me, and it is unfair to the Government to have this sort

of thing, these political attacks hanging over the head of an agency.

Mr. DAVIS OF ILLINOIS. Has the Office of Personnel Management

asked you to provide any information or documents that you have

not provided?

Mr. BLOCH. No. I was given a document request back in the fall

of 2005. I gave up a stack of about 400 pages, I think, plus a whole

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notebook of documents, another 250 or 300 pages, was a part of a

Senate record from May 2005.

I never heard any request for documents again until last month,

and I gave up another stack about yay high, which is about a foot

deep. I don’t know how many pages it was.

But yes, everything that I have been asked for I have provided

and held nothing back. There were, I think, four or five documents

that were withheld originally attachment were attorney/client protected, but they really were just notes from an attorney to me

about unrelated matters, and so that was the only thing that I

withheld.

Mr. DAVIS OF ILLINOIS. On panel three we have a witness who

will testify that, based on less than 1 year active service working

under your jurisdiction, that she has filed two EEO complaints,

three Whistleblower Protection Act claims, two Office of Workmen’s

Compensation claims, and a Federal Tort Claims Act lawsuit. Are

you familiar with any of that? How would you reconcile this kind

of activity in terms of what may be happening in this person’s

case?

Mr. BLOCH. Well, Mr. Chairman, I don’t want to talk about something I don’t know anything about, but I can tell you that I have

been informed there was an employee that I had no contact with

except for saying hello to in the hallways who was with our agency

a short time. More than that I don’t know. I understand it was a

routine personnel matter. It is being handled by the head of our

EEO. I had no involvement in the underlying facts of whatever it

is that is being claimed. And I really don’t know a lot about what

those cases or claims, you know, contain, and I don’t want to denigrate anybody, you know. People have a right to file before different tribunals and to exercise their rights, and we believe that is

appropriate and we honor that, so I am not going to sit here and

say anything about that person. I don’t know what that person’s

situation really is.

Mr. DAVIS OF ILLINOIS. Thank you very much.

Mr. McPhie, in your testimony you mentioned that the mission

of the Merit Systems Protection Board is to protection Federal

merit systems and the rights of individuals within those systems.

Could you provide clarification on the specific types of claims that

would not fall under your jurisdiction? And what are the rights of

an individual who has a mixed case complaint?

Mr. MCPHIE. The rights of an individual who has a mixed case

complaint is to have that, like any other case, to have that case adjudicated promptly. It comes through the same process. It starts off

with a board AJ somewhere in the regions. He or she writes an

opinion. The personnel then tries to appeal it forward. If the person

takes that choice on to the Board, the Board then either affirms

what the AJ has done or issues a new decision. And if the person

is dissatisfied, the person has a choice. It is an appellant-driven

kind of system. If they don’t like what the Board has done, it has

choices. It can take it on to the EEOC and get another further administrative review, and beyond EEOC can keep on going. It can

go to Federal District Court. I mean, those cases are treated just

about the same way except they have more legs than other cases

which would traverse a path that would take it only from the

26

Board to the Federal Circuit Court and end there unless some opportunity for review to the Supreme Court of the United States is

sought by the appellant.

Mr. DAVIS OF ILLINOIS. An employee who files a mixed case complaint who does not like the MSPB decision may appeal to the

EEOC, and if the EEOC disagrees with the MSPB the MSPB is

given an opportunity to adopt the EEOC’s decision?

Mr. MCPHIE. That is correct.

Mr. DAVIS OF ILLINOIS. What percentage of the time does the

MSPB adopt the EEOC’s decision?

Mr. MCPHIE. Let me say this. EEOC has accepted the vast majority of Board decisions in the area of discrimination law. I mean,

that is a given. Those few cases that would be sent back to the

Board—in fact, I am being reminded it is almost 100 percent of our

decisions bearing on discrimination is affirmed by the EEOC, for

starters, so very few cases would ever come back. But if they do,

then we are required to follow what the EEOC says the law is, and

if we disagree we can seek a special panel. This is very rarely done.

The special panel then makes the call along some established lines.

Mr. DAVIS OF ILLINOIS. During the interval while resolution is

being sought between the MSPB and the EEOC, is the employee’s

adverse action stayed during the interval?

Mr. MCPHIE. A mixed case is a case that is primarily an adverse

action case that has elements of a discrimination case, where somebody is being fired, let’s say, and the adverse action is I am appealing my removal. And that person then says, you know, the reason

why I was removed was really retaliation, so you have a mixed

case, retaliation based on race, sex, and what not, so you have a

mixed case.

When the MSPB’s AJ decides that case, that MSPB AJ is going

to decide the entire case, so the adverse action part could be finished by that point. It is done at that point in time. The person

may not like the adverse action decision as well as the discrimination piece.

In terms of the discrimination aspect of the case, they may appeal that forward to EEOC, but the adverse action case is finished.

Mr. DAVIS OF ILLINOIS. Finally, how long does it take for cases

to be decided by the Board? And what is the Board doing to speed

up the processing?

Mr. MCPHIE. Well, I tell you, as I said in my statement, in the

regions where we have approximately 60 agents, we decide 7,164

cases in fiscal year 2006, an average time of 89 days per case—that

is 8–9—in the field. In headquarters we did 1,367 cases in fiscal

year 2006 for an average time of 153 days. So the field is more efficient than it is in headquarters.

In terms of making sure that we maintain some level of efficiency—which, by the way, we have to. We know it. Every new system that comes down requires us to do it more quickly. DOD and

DHS, as well as the new whistleblower legislation, require us to

start and finish cases in a very short timeframe.

So what we have been doing is we have really fully implemented

our alternative dispute resolution techniques. I mean, we are doing

mediations, we are looking at settlement potential. We are really

trying to figure out those cases that ought not to hang around for

27

a long time and really cost people a lot of money and time and that

kind of thing.

We are continuing to train our personnel. We have been looking

to new technology. As a small agency, we have been very proactive

in using technology. And we are looking at such things as altering

the way we manage our work force. For example, we have reorganized attorneys who draft recommended decisions into smaller

teams. Smaller teams mean that folks can get closer supervision

and more vigorous mentoring for the younger folks.

Those are the kinds of proactive things we are doing.

Mr. DAVIS OF ILLINOIS. Thank you very much, Mr. McPhie. I

thank both of you gentlemen.

I now yield 10 minutes to the ranking member, Mr. Marchant.

Mr. MARCHANT. Thank you, Mr. Chairman. I am going to concede

my time to the ranking member of the full committee, Mr. Davis.

Mr. DAVIS OF VIRGINIA. Thank you very much.

Let me say to both of you I appreciate your commitment to public

service. Mr. Bloch, I appreciate your putting my letter up there. I

think we did investigate that, as you noted, in a bipartisan way

and found, at least for this purpose, that there was no problem

with it. And I appreciate your clearing the backlog, and I think we

praised you for that. When I think you are right, we will say so.

You have done some good things.

But you also are under investigation on a number of issues. I

think that you should be accorded a presumption of innocence on

these issues, but I have some specific questions.

I would like to ask if you would be willing to respond in writing

to any questions that we don’t get a chance to ask today from me

or the other Members.

Mr. BLOCH. Absolutely.

Mr. DAVIS OF VIRGINIA. OK. We have a number of questions.

On April 27th you were on C–SPAN. Ironically, you said, ‘‘We

will not compromise the justice system by speaking about the facts

of the case before our investigation is complete.’’ I think you know

where I am going. We have talked about this. The day before, however, your staff briefed our staffs, both Mr. Waxman’s and mine,

and during that briefing your staff openly disparaged the GSA Administrator. This was in the middle of your investigation. Your

agency hadn’t even wrapped up its interviews yet.

During the April 26th staff briefing, your staff disclosed confidential aspects of the investigation, namely that there was an issue

with the version of the transcript used by your investigators. As

the deposition transcript shows, the first interview with Mrs. Doan

was called off for these reasons and rescheduled. This confidential

fact of the investigators was shared with our staffs.

Your staff made comments about her having amnesia. Similar

comments were overheard by our staff at a social gathering, a Kentucky Derby party, 2 weeks before the report was issued.

Your staff has also alluded to the need for Chairman Waxman’s

help with its reauthorization, presumably the more administration

officials who broil in Hatch Act problems, the happier the Democrats will be.

Our staff was told the Hatch Act inquiry provides an opportunity

for OSC to show they are willing to be aggressive.

28

Now, my first question is: did you know that officials from your

Agency were on the Hill disparaging the Administrator on April

26th?

Mr. BLOCH. Thank you, Mr. Davis. No, I did not know that until

we discussed this yesterday.

Mr. DAVIS OF VIRGINIA. OK.

Mr. BLOCH. I expressed to you then and I will express to you now

that I disapprove of any such disparagement. I believe at that time

we had not completed our report and the Administrator was entitled to the presumption of innocence, as you said, and I agree with

that entirely. I meant what I said on C–SPAN. I do not agree with

trying people in the press or doing things to people to try to suggest they are guilty in the press. I have had it happen enough to

me that I realize it is not fair and it is not right, and it is too often

the case, I think, that we denigrate the justice system and we give

people a kind of cynicism about whether there is such a thing as

justice when we do thing like that.

So I heartily agree with you that is wrong and I disapprove of

it, and I have already had words, but will continue——

Mr. DAVIS OF VIRGINIA. With the individuals involved. I just

want you to take care of it and just make sure it doesn’t happen

again.

Mr. BLOCH. Absolutely. I take it very seriously. Also, I want to

make it clear for the record that I am unaware of any of the staff

members who actually did any of the investigating in any cases, including the Administrator, who had any involvement in the things

that you are discussing. I think we need to make a distinction

there. But I still don’t excuse it. Don’t get me wrong.

Mr. DAVIS OF VIRGINIA. I will be happy to give you the names.

A draft report on Doan was released to the news media before

it was shown to her and before she had a chance to respond. Now,

the GSA Administrator had told us she received media inquiries

quoting at length from your report before she received her copy,

and the Washington Post published a correction stating that it

wrongly quoted from a draft report that would not have been available to her.

The only OSC, to my knowledge, had drafts dated to May 18th,

and the Washington Post posted a PDF of a May 17th draft. The

Post correction reads, ‘‘On May 24th, a section article about U.S.

General Services Administration Administrator Chief Lurita Alexis

Doan incorrectly reported that the U.S. Office of Special Counsel

report sent to Doan had stated that we recommend that the President take disciplinary action against Administrator Doan because

her disregard for such protections and safeguards is serious and

warrants punishment.’’

Those passages appeared in an earlier version of the report, but

not in the final version sent to Doan. The final version included a

cover letter from you containing ‘‘his recommendation that the

President take appropriate disciplinary action against you for your

serious violation of the Hatch Act.’’

Leaking the damaging but inaccurate information report before

she had a chance to respond you would agree would be prejudicial?

Mr. BLOCH. Congressman, let me correct the record here. First

of all, I do not agree with releasing the report before the AdminisVerDate 11-MAY-2000 15:42 Nov 02, 2009 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 U:\DOCS\52629.TXT KATIE PsN: KATIE
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trator had the chance to respond and to submit it to the President.

I believe I made that clear to any reporters who asked, and I have

certainly made it clear to my staff.

Mr. DAVIS OF VIRGINIA. And you made it clear to me yesterday.

Mr. BLOCH. Yes. And we gave the report to Ms. Doan by hand

delivery to her attorney on May 18th.

Mr. DAVIS OF VIRGINIA. But the May 17th draft she would not

have had.

Mr. BLOCH. I don’t think so. I doubt that very seriously.

Mr. DAVIS OF VIRGINIA. That was what was leaked to the paper.

Mr. BLOCH. But let me just try to explain the dates here. So May

18th we had that sent over to Ms. Doan through her attorney, and

also I believe electronically transmitted that to Mr. Nardotti.

Then the following Monday was the first I or anyone on my staff

that relayed anything to me indicated that the media was starting

to make noise about a report that had been sent to Ms. Doan.

I asked my staff what happened here, what do we know. We

didn’t give out the report, did we? No. So we started to make inquiries at the places where they were making some noise. When I

say making noise, I am referring to Government Executive and

Federal Times putting out reports that——

Mr. DAVIS OF VIRGINIA. The media.

Mr. BLOCH. Yes. Putting out reports, not specific reports, but just

indicating that there had been a report, or that sources had indicated a report had been sent and then intimated but never said

that there was specific content.

So I was concerned that somehow, either through Mr. Nardotti

or Ms. Doan or someone else accidentally somebody had let the report out, so I asked my staff to inquire of the reporters what is

going on or do you actually have the report.

They hemmed and hawed and they could produce no evidence

they had the report, and they could not quote anything from it. So

then we met again and realized, OK, they don’t really have it, they

are just hearing rumors.

Then on, I think, Tuesday or Wednesday, the 23rd is what I am

coming up with in my memory, of May, we got word from Government Executive and, I believe, the Federal Times, but for sure Government Executive that they had the report. We didn’t believe

them because we didn’t give it to them, and so we queried them

as to what was in there, and they started to tell us quotes. So we

said send us some actual quotes from the report, and they sent us

an e-mail. In that e-mail there are quotes from the report that I

sent over to Mr. Nardotti on behalf of Ms. Doan.

So we asked the reporter where did you get that, because we

knew we hadn’t given it out. I don’t know if it is a he or a she,

but the reporter said that it had come from GSA and that it had

a fax cover at the top of the page from the GSA number, but did

not indicate who it was. They weren’t going to give up any source.

Mr. DAVIS OF VIRGINIA. But my question is a simple one. The

correction in the Post said those passages appeared in an earlier

version of the report but not in the final version sent to Doan, so

they had a version that was not sent to GSA that they had to correct later, so she couldn’t have had it, if that is correct.

30

Mr. BLOCH. Well, if you tell me that is so, I mean, I have heard

that. I have never seen it.

Mr. DAVIS OF VIRGINIA. I gave you a copy. We have given you

a copy of the report that is blown up right there from the Washington post.

Mr. BLOCH. I understand. I——

Mr. DAVIS OF VIRGINIA. What I would ask you, I mean, you

would agree that leaking damaging and inaccurate information before somebody has a chance would be prejudicial, obviously.

Mr. BLOCH. Well, I want to address that question this way, Congressman. We have the power legally, and it is published in the

Federal Register, to release anything we deem to be in the public

interest, and there are several categories of——

Mr. DAVIS OF VIRGINIA. Let me ask you this.

Mr. BLOCH. And so that is not necessarily prejudicial.

Mr. DAVIS OF VIRGINIA. Well, if it printed the report before the

final and before she had a chance to see it—but let me just ask you

this. Did you authorize your staff to leak a draft to the newspaper?

Mr. BLOCH. No, I did not authorize them to leak a draft. This

was put out by someone at GSA. That is all I know.

Mr. DAVIS OF VIRGINIA. Well, if GSA didn’t have it——

Mr. BLOCH. I don’t know who had it. All I am telling you is that

I know——

Mr. DAVIS OF VIRGINIA. You didn’t authorize it.

Mr. BLOCH [continuing]. We got information from a reporter that

GSA had sent them the report.

Mr. DAVIS OF VIRGINIA. So your staff never explained to you that

the leak could only have come from OSC?

Mr. BLOCH. Who?

Mr. DAVIS OF VIRGINIA. Your staff never explained that the leak

could only have come from the Office of Special Counsel?

Mr. BLOCH. Well, I——

Mr. DAVIS OF VIRGINIA. Let me just say this. In a telephone conversation with my staff shortly after the leak, they acknowledged

that the draft report, which was not sent to the Administrator,

posted on the Web by the Washington Post could only have come

from inside the agency, because only people inside the agency had

it. It was a draft report.

Your staff also told us that this fact had been communicated to

you and that there was no plan to investigate the leak. And you

are saying that is incorrect?

Mr. BLOCH. There is a lot that you put in that question. Let

me——

Mr. DAVIS OF VIRGINIA. That was pretty simple. It is pretty simple.

Mr. BLOCH. Well, there are different things you are putting in

there. First of all, you are asking me to assume a fact I don’t know,

which is that it came from my office. And I have been advised, by

the way, for many years now not to use the word leak because that

is disparaging. But we say——

Mr. DAVIS OF VIRGINIA. Released.

Mr. BLOCH [continuing]. Released, because it is lawful.

Mr. DAVIS OF VIRGINIA. It was early released.

31

Mr. BLOCH. I don’t know about prematurely. All I know is

that——

Mr. DAVIS OF VIRGINIA. It was a draft report.

Mr. BLOCH. Congressman, I am not arguing with you, I am just

telling you I don’t know what someone had or didn’t have or why

they had it.

Mr. DAVIS OF VIRGINIA. This last question. You are telling me

then, to the best of your knowledge under oath, that not only didn’t

you authorize it in any way, shape, or form, but you don’t have any

idea that this came from OSC; that the best of your information,

nothing came out of your office prematurely?

Mr. BLOCH. I am telling you that I did not authorize it, and I

understand the logic of what you are saying about it had to come

from OSC, but I don’t know that, that it had to. It could have——

Mr. DAVIS OF VIRGINIA. And you did ask——

Mr. BLOCH [continuing]. Been out there before that.

Mr. DAVIS OF VIRGINIA. You did ask your staff and they said that

it did not come from OSC?

Mr. BLOCH. I have not done an investigation because I have been

warned away from impinging and infringing employee rights and

attacking—it has been alleged that I have attacked people for socalled——

Mr. DAVIS OF VIRGINIA. I am not saying attack. I am just asking

to do an inquiry. OK. I will get——

Mr. BLOCH. I have not instituted an investigation. I don’t intend

to. I have gotten severely criticized for impliedly doing that which

I have never done, but I really don’t want to attack people. If someone saw fit to give out an earlier draft I don’t approve of it but I

am not going to get into—I think it is a red herring. I think it has

nothing to do with the facts. I think my understanding is the only

difference in the reports had to do with the last couple of pages in

terms of the recommendation.

Mr. DAVIS OF VIRGINIA. It has to do with the leak. It has to do

with where the leak came from, because a draft report could only

have been released. I am just going back to what you said on April

27th on C–SPAN that you don’t leak information on ongoing investigations. That is all. I think the point is pretty clear. I just ask

that you take a look at that and go back and talk to your staff. I

will have more questions on it later.

Mr. BLOCH. Congressman, I will not refuse your request. I will

go back and talk to my staff. But I want to be careful not to institute investigations of staff for doing things that they feel are appropriate expressions of their first amendment rights.

Mr. DAVIS OF ILLINOIS. Ms. Norton.

Ms. NORTON. Thank you, Mr. Chairman.

Mr. Bloch, it is a red herring. It is a red herring. There may have

been mistakes made, and if you discover who leaked your report

you ought to have a medal, because the fact is that the leaks that

come out of the Government for time immemorial, almost no one

has been able to decipher. It is a red herring, and I want to commend you on having the courage to issue a report that involved

your own White House with all the repercussions. It is these side

issues that have been used by the other side to detract from the

serious violation of the Hatch Act and from the fact that somebody

32

within the administration was willing to go at the Hatch Act. If

anything, we want more of that, particularly from this Government, than we have seen in the past.

May I ask you, sir, where do you live?

Mr. BLOCH. Ma’am, I live in Alexandria, Fairfax County.

Ms. NORTON. Why do you want to take an office that serves

250,000 Federal employees that come to the District of Columbia

every day and move it outside of the District of Columbia?

Mr. BLOCH. Thank you, Congresswoman Norton. I appreciate

your commitment to the District and to the merit system that we

are talking about here today. I don’t propose to move it outside the

District. We had submitted a series of legislative requests with our

reauthorization to get the flexibility, if we have to, based upon need

and cost, because we have a very, very small budget.

Ms. NORTON. Mr. Bloch, if cost, particularly, not to mention need

were the case, there wouldn’t be a single Federal agency located in

the District of Columbia. This is the capital of the United States,

and you will need more than to reduce your rent or lease to move

out of this city. Have you spoken with the General Services Administration about available leases in the District of Columbia at this

time?

Mr. BLOCH. Well, Congresswoman, I am not sure of the answer

to that question. We will supply you with it after I talk to my staff.

Ms. NORTON. I want you not only to supply me with that, but,

since I am chair of the subcommittee that has jurisdiction over

GSA, I wish to help you find low rent accommodations in the District of Columbia. I feel I can do that, sir, so I would say to you

that it will be over my dead body at several times that you take

an agency of this importance to Federal employees out of the District of Columbia against—because you will require a statutory

change, and I will do all in my power to see that no such statutory

change unnecessarily occurs, and I am willing not only to tell you

that to your face, but to say to you that I will help you find in the

District of Columbia space. I might even be able to help you find

space less than what you are paying in the middle of town now,

space close to the Capitol of the United States, sir.

Mr. BLOCH. Well, Congresswoman, I thank you for that and I

really appreciate that help. We like our quarters very much.

Ms. NORTON. Well, I know you are located where everybody

wants to be located. See, everybody wants to be located in a strip

near K Street where the restaurants are, where the theaters are.

Now, you take them even close to the Capitol and they say oh, my

god. Well, I am saying oh, my god, for moving out of the District

of Columbia.

Let me ask you something about a very serious allegation involving you, sir. Are you aware that the Congress of the United States

has just passed hate crimes legislation?

Mr. BLOCH. I am aware that there is a bill pending and——

Ms. NORTON. No, sir. Are you aware that the House of Representatives, shall I put it that way, has passed hate crimes legislation?

Mr. BLOCH. Yes, ma’am.

Ms. NORTON. Are you aware that uses the term sexual orientation to describe what is barred and barred as to whom?

33

Mr. BLOCH. I believe I have seen that, yes.

Ms. NORTON. Why would you make a distinction nowhere found

in law in changing what had been existing protected class guidance? Would you explain the distinction you have made up—I have

to say you have made up, because I can’t Google it and find such

a distinction anywhere—between sexual orientation and sexual

conduct? Should we have put in the statute sexual conduct? I am

asking your advice now. Did we do something wrong in putting sexual orientation as the basis for the hate crimes act in the statute?

Would you have preferred us to put sexual conduct? If so, why?

Mr. BLOCH. Well, thank you, Congresswoman. Let me clear

up——

Ms. NORTON. And what in the world do you know about anybody’s sexual conduct, anyway?

Mr. BLOCH. I don’t know anybody’s sexual conduct other than my

own, and——

Ms. NORTON. So how could the Congress of the United States

base it on what somebody does in his bedroom, his conduct? How

many people do their conduct in the workplace when it comes to

sex?

Mr. BLOCH. Well, not very many, I hope, but we do have a case

we just investigated where that was alleged. But let me answer

your question.

Ms. NORTON. Well that, of course, is punishable on other

grounds, sir.

Mr. BLOCH. And I would like to stay away from those sorts of

things.

Well, Congresswoman, this really is an area of the question of

what is in our law and what was passed by Congress.

Ms. NORTON. I just told you what the law says. There is no law

existing. The hate crimes law has passed the Senate more than

once. Now we passed it in the House. The distinction you have

made is not made in law.

Let me tell you why, because if you make a distinction based on

conduct it implies that the employer has to find out something

about the conduct, and I don’t want to find out anything about your

conduct and I don’t want you finding out anything about somebody

else’s conduct. So if we were to put the burden in the statute on

conduct, that would require an investigation of somebody’s sexual

conduct. Do you really mean for that to be what the guidance for

OPM should be?

Mr. BLOCH. Well, let me just read our law, and then maybe we

can clear this up. Our prohibited personnel practices appear at

2302.B of title 5 of the U.S. Code, and the protections for people

who allege discrimination on the basis of who they are, such as

race, color, creed, etc., are found in B.1, and that includes all of the

normal what we consider the title 7 categories that have been in

the law.

Ms. NORTON. They are not the normal categories. They are the

categories you have gotten to so far.

Mr. BLOCH. That is right.

Ms. NORTON. This is not a category in the statute.

Mr. BLOCH. No, and it is not in that statute, and so sexual orientation doesn’t appear there. And then the only other section that

34

potentially pertains to anything to do with a person’s sexuality or

their conduct is in——

Ms. NORTON. But it did appear in guidance, OPM guidance.

Mr. BLOCH. Well, the OPM guidance is incorrect.

Ms. NORTON. Sorry?

Mr. BLOCH. The OPM guidance is incorrect legally. They have

mis-stated our laws.

Ms. NORTON. In other words, the fact that sexual orientation had

been a part of OPM guidelines before was illegal?

Mr. BLOCH. Well, it was put in there in 1998 with the help of

my predecessor and it never had appeared there before.

Ms. NORTON. And does that make it illegal? Do you recognize,

sir, that guidelines have the force and effect of law?

Mr. BLOCH. Well, Congresswoman, that is not necessarily correct.

It depends on the issue that is being guided. They don’t have jurisdiction over these. The enforcement——

Ms. NORTON. Who is they?

Mr. BLOCH. OPM does not have jurisdiction to enforce——

Ms. NORTON. Has any court of law said that?

Mr. BLOCH. Yes.

Ms. NORTON. Would you please cite to me that case?

Mr. BLOCH. Sure.

Ms. NORTON. In other words, you changed the law because the

court said that change had to be made?

Mr. BLOCH. Yes, and I didn’t change the law; I put it back to

where the agency had enforced it for 20 years before my predecessor. Let me read you the cases. There are two cases from the

MSPB, one in 1998 and one this year, Morales v. Department of

Justice, 77 MSPR 482, and also Mahaffey v. Department of Agriculture, 2007 MSPB 93, a March 30, 2007, ruling.

Ms. NORTON. Holding, of course, those are not exactly——

Mr. BLOCH. I am sorry?

Ms. NORTON. That is not the District Court or the Court of Appeals. What did those MSPB judges hold?

Mr. BLOCH. Well, those holdings bind our office and they do bind

Federal employees, unless overturned by the Federal Circuit, and

they haven’t been. So there are both cases, 1998 and 2007 both

hold that section B.1, which contains our status protections that

title 7 contains, as well as political affiliation and marital status,

do not protect the status of sexual orientation.

Ms. NORTON. Mr. McPhie, he is now speaking about the MSPB.

Do you concur with what he now says, as you have overturned—

it is because of you, the MSPB, that Mr. Bloch was forced to

change the OPM guidelines.

Mr. MCPHIE. With all due respect for my friend, Mr. Bloch, I respectfully disagree. Morales is a title 7 case, and title 7 cases are

governed clearly by the precedent established by the U.S. Supreme

Court some time ago that sexual orientation is not prohibited.

Mahaffey is a more recent case. In Mahaffey the Board left open

the question as to whether or not discrimination based on sexual

orientation is a prohibited personnel practice.

The case went off on whether or not it was conduct on the job

or conduct—the person was terminated, I believe, fired because of

off-the-job conduct. I mean, that was the distinction. The Board exVerDate 11-MAY-2000 15:42 Nov 02, 2009 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 U:\DOCS\52629.TXT KATIE PsN: KATIE
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pressly left open any decision on whether or not sexual orientation

is a prohibited personnel practice.

At some point we are going to have that case and we will have

to decide that case square on, but until that case is decided I want

to stay away from the discussion on cases that may come to us.

Ms. NORTON. But you certainly don’t want those cases cited for

a change in the law or in the guidelines for separating orientation

and conduct——

Mr. MCPHIE. No, ma’am.

Ms. NORTON [continuing]. As based on your cases.

Mr. MCPHIE. No, ma’am. That is not the way I think a reasonable reading of MSPB law at this point.

Ms. NORTON. Did you change the guidelines before or after those

cases, Mr. Bloch?

Mr. BLOCH. Well, I didn’t change any guidelines; I applied the

law——

Ms. NORTON. You just said your it was your predecessor who had

the wrong interpretation and you had to change it, sir.

Mr. BLOCH. I had to correct, yes, I had to correct something that

was put into our Web site materials as well as our educational materials.

Ms. NORTON. Otherwise known as guidelines with the force and

effect of law.

Mr. BLOCH. Ma’am, I respectfully disagree. They are not the

force and effect of law.

Ms. NORTON. If I may say so finally, Mr. Bloch, you have just

heard repudiated and refuted entirely your basis, your legal basis.

In light of that, would you return to the OPM guidelines as they

were? And if not, why not? You no longer have the legal authority

you relied upon. I am asking you to return to the guidelines as they

were, and especially in light of the fact that we have now passed

in the House, at least—I expect to have in the Senate—a hate

crimes law that has sexual orientation in it. I now ask you to return the guidelines to what they were, ask you if you are willing

to do that, and if you are not to indicate why not.

Mr. BLOCH. I am not willing to do anything illegal that is contrary to our statute and also to the case law. I respectfully disagree

with my esteemed colleague, the chairman of the Board, because

the Mahaffey case does affirm Morales, which says the B.1 protections—that is title 7 protections——

Ms. NORTON. The title 7 cases——

Mr. BLOCH [continuing]. Does not include protection——

Ms. NORTON. We are talking about cases brought under the

guidelines, the former OPM guidelines.

Mr. BLOCH. And I am getting there. So it affirmed Morales, saying there is no sexual orientation status protection, and the only

other section that was argued in Mahaffey was B.10, which is conduct protection, and the claimant in that case, the petitioner, argued that B.10 covers status, sexual orientation, not conduct of a

sexual nature, but just orientation.

Ms. NORTON. Mr. McPhie just said that matter was left open.

Mr. Chairman, I think that, in light of the fact that this witness

has determined the law into and unto himself, quoting decisions

that have been specifically refuted under oath, that we have an obVerDate 11-MAY-2000 15:42 Nov 02, 2009 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 U:\DOCS\52629.TXT KATIE PsN: KATIE
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ligation by law to change, to bring the guidelines back to where

they were, sir, if I may say so.

Mr. DAVIS OF ILLINOIS. Thank you very much, Ms. Norton.

Mr. Davis.

Mr. DAVIS OF VIRGINIA. Mr. Bloch, is the Doan matter closed and

off your desk at this point?

Mr. BLOCH. The Doan matter, as defined by the allegations that

Ms. Doan’s comments following a political presentation violated the

Hatch Act, has been closed and was closed when we sent the matter to the President. I forget the date of that, but it was some time

at the end of May.

Mr. DAVIS OF VIRGINIA. Is it possible that the White House could

ask you some followup questions or ask you to help them understand the relevant case law, evidentiary standard, or other pertinent legal questions not addressed in your papers?

Mr. BLOCH. It would be my pleasure.

Mr. DAVIS OF VIRGINIA. OK. Is there ever a point where you can

then disparage Mrs. Doan?

Mr. BLOCH. I am sorry? What?

Mr. DAVIS OF VIRGINIA. Is there ever a point where it becomes

acceptable for you to disparage Mrs. Doan?

Mr. BLOCH. Well, it would depend on your definition of disparage. I don’t agree with the idea of personal attacks, but if you mean

that, I don’t agree with disparaging Ms. Doan personally.

Mr. DAVIS OF VIRGINIA. Is it appropriate for officials at your

agency to comment about agency business to family, friends, on

personal e-mail accounts?

Mr. BLOCH. Again, we are back to the first amendment issues.

I am not going to attack employees for their free exercise of expression if they want to talk about their reactions to——

Mr. DAVIS OF VIRGINIA. Let me get more specific. What if an

agency official was offering personal commentary, sending news

clips via mass e-mail about agency business on their person accounts during business hours? Would that be a concern or not?

Mr. BLOCH. News clips?

Mr. DAVIS OF VIRGINIA. And personal commentary.

Mr. BLOCH. You know, again, it is a free country. First

amendment——

Mr. DAVIS OF VIRGINIA. All right. Let me move ahead. Have you

ever used your personal e-mail account to send e-mails about official agency business?

Mr. BLOCH. I don’t know what you mean by official agency business. Have I ever sent news clips of what is going on in my office

to my family and friends? Of course.

Mr. DAVIS OF VIRGINIA. Well, let me put it this way. We have

been conducting oversight in this committee, as you are aware, into

the use of personal e-mail accounts to discuss official business with

the White House. We have an e-mail that you sent out at 11:52

a.m. on Tuesday, June 19th. It is from your private AOL account.

It was sent to a large number of people, some of whom, by the way,

were kind enough to forward it to us. In an e-mail which I will

read you begin by making disparaging remarks about Mrs. Doan.

You compare some of Mrs. Doan’s testimony to the testimony of

former President Clinton, then you move into some disparaging reVerDate 11-MAY-2000 15:42 Nov 02, 2009 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 U:\DOCS\52629.TXT KATIE PsN: KATIE
37

marks about me and my colleague, the ranking member of the

Committee on Transportation and Infrastructure, Mr. Mica.

Let me read it. First, ‘‘Is hilarious piece riffing on Doan’s hortatory, subjective, and I didn’t think anyone could improve on Clinton’s ‘depends on what the meaning of is is.’ ’’

Second is ‘‘Doan, apparently encouraging her people to move on,

suggesting President Bush is not going to do anything about her.’’

Third is from the hearing where Doan said, ‘‘hortatory, subjective. It is Congressman Tom Davis who has been acting like Doan’s

defense counsel, saying reckless things about OSC’s report and calling for my resignation. Mere Kabuki Theater, all of this. I am

going up for my reauthorization hearing on July 12th and Davis

will either show up as ranking member or have Congressman Mica

do his dirty work of raking me over the coals. We may have something to say about that.’’

Mr. Bloch, I would like to ask you if you could produce all the

e-mails sent on your AOL e-mail account between January 26,

2007, and today where you discuss official business, including anything related to Hatch Act violations and Hatch investigations and

that discuss Mrs. Doan, me, the chairman, Mr. Mica, other members of this committee, and any other Government official. Do you

have any problem with that request?

Mr. BLOCH. Congressman, I think this is inappropriate. It is an

invasion of my privacy. It is an invasion of my first amendment

rights. This is my personal life you are talking about. It is not official business. I have every right, just like you do, to talk to my

friends and family——

Mr. DAVIS OF VIRGINIA. During business hours?

Mr. BLOCH [continuing]. And tell them of the sort of things that

are going on, and it is not going to happen. Let’s move on to something real.

Mr. DAVIS OF VIRGINIA. You know, this is exactly what we have

been talking about in terms of the White House utilizing—these

are Government computers, I assume, and you are not bringing

your personal computer in the office during Government time?

Mr. BLOCH. Congressman, I don’t know if it as at home. I don’t

know what——

Mr. DAVIS OF VIRGINIA. Well, it is 11:52 a.m. Were you home

that day on Tuesday at 11:52?

Mr. BLOCH. I could have been. I could have been. Let me just say

that it has nothing to do with the issue that——

Mr. DAVIS OF VIRGINIA. You state that I have called for your resignation. When?

Mr. BLOCH. Congressman, I don’t want to get into a personal argument with you.

Mr. DAVIS OF VIRGINIA. Well, you said I had. Can you recall

when?

Mr. BLOCH. Yes.

Mr. DAVIS OF VIRGINIA. When?

Mr. BLOCH. It was in a hearing after we closed the file and I believe you said this man has produced a worthless report, no——

Mr. DAVIS OF VIRGINIA. Well, I did say that.

Mr. BLOCH [continuing]. Evidence, and he should have to resign,

and the President should fire him.

38

Mr. DAVIS OF VIRGINIA. No, I didn’t.

Mr. BLOCH. Yes, you did. You said that. And it was inappropriate

for you to say that, and it is inappropriate for us to argue about

that.

Mr. DAVIS OF VIRGINIA. I think Mr. Mica said it, but that is OK.

Mr. BLOCH. Doesn’t sound like you to me.

Mr. DAVIS OF VIRGINIA. Why are you sending news clips on your

AOL account in the form of a mass mailing?

Mr. BLOCH. I don’t agree with your characterization of mass

mailing. I have friends who take an interest in the business of our

office as reported in the public press, which is all I did. I didn’t give

anything out that is from our office. I am simply——

Mr. DAVIS OF VIRGINIA. Well, we don’t know that. What I have

asked is if we could look at the documents and understand if you

did or didn’t——

Mr. BLOCH. Well, anyway, that is——

Mr. DAVIS OF VIRGINIA [continuing]. And basically you are saying

that, without subpoena, you are unwilling to give that information

up.

Mr. BLOCH. Congressman, I don’t agree in personal attacks. If

you want to engage in personal attacks——

Mr. DAVIS OF VIRGINIA. I just asked for the information.

Mr. BLOCH [continuing]. If you want to exchange personal attacks, maybe we should go outside, but I think it is inappropriate.

Government business. Let’s talk about the merit system. That is

not a threat. We can discuss it outside if you like, but I think in

here we ought to talk about the business of our office, what we are

doing for the country, and what we are doing for whistleblower.

Mr. DAVIS OF VIRGINIA. I would yield to my friend.

Mr. ISSA. This is getting awfully personal, and I would like to

raise it above that, but I have to followup on the questioning because I think it is extremely important.

Where you e-mail, whose resources you use, and what you say

about Members of Congress related to an oversight, when you meet

with the majority about your upcoming oversight and an ongoing

investigation, these are all on-the-clock events that we do have an

obligation to look at. This is the Committee on Government Oversight and Reform, and we have an obligation to decide, to a great

extent, whether or not your very office continues to exist.

So whether or not the controls are in place for you and people

like you to do the job you think is so important is part of what we

are dealing with here today, so please, I would ask that you first

of all rethink your question of your first amendment rights when

you distribute something. This wasn’t stolen off your computer.

This was sent out the same as if you threw it in the garbage can

in the front of your house and somebody picked it up and posted

it on the side of a bus. This was made publicly available and

passed on by somebody who exercised their first amendment rights

to leak something that they thought you did that was inappropriate.

Now, I am not your attacker. I wasn’t in any of your e-mails. But

I would like you to reconsider your statement on the first amendment, and then I would like you to re-answer the question that the

ranking member asked, and asked very civilly, because it is a fair

39

question as to this e-mail and other things and your conduct, both

publicly and now publicly again.

So I would ask you to rethink it and re-answer the question

without talking about the first amendment right. You gave up your

first amendment rights when you put this out on a Government

computer and put it out and made it available. This leak from

some friend of a friend of a friend of yours is something that you

have to look at. So would you please reconsider it?

I would return the time to the gentleman.

Mr. BLOCH. Do you want me to answer that? Thank you, Congressman Issa. I believe that these questions are inappropriate and

are directed at an attempt to suppress our investigation of the

White House and of the e-mails that we are looking at that were,

in fact, discussing actual Government business, and I am not going

to be intimidated by this committee and I am not going to be

swayed away from doing actual investigations that we have to do,

and I believe the commentary that was made about me and my office and the threats that were made about my office that are in the

public news stories that I forwarded to friends on my private email account——

Mr. DAVIS OF VIRGINIA. During business hours on Government

computers.

Mr. BLOCH. Do I have a right to answer fully or do I get interrupted all the time?

Mr. DAVIS OF VIRGINIA. It is our time.

Mr. BLOCH. Will you let me answer it?

Mr. DAVIS OF VIRGINIA. Fine with me. Go ahead.

Mr. BLOCH. Thank you.

I believe that these threats that were made in these hearings

and these accusations about our office were an attempt to intimidate us about official investigations and of our ongoing work with

regard to the GSA and the White House, and I will not be intimidated, and we will do our job, and I will not answer any further

questions concerning e-mail accounts.

Mr. DAVIS OF VIRGINIA. Let me just note for the record, Mr.

Chairman, that I asked him before I went into the inquiry if his

investigation was complete. For the record, he said that it was. So

there is no intimidation. I think we are showing appropriate bias,

and I think the facts speak for themselves.

Thank you.

Mr. DAVIS OF ILLINOIS. Thank you very much.

Mr. Clayton.

Mr. CLAYTON. I will yield to Ms. Norton.

Ms. NORTON. I thank the gentleman for yielding.

Actually, I have a question for Mr. McPhie, but I do want to say

for the record myself, Mr. Chairman, that I think it is inappropriate to disparage special counsel; that if special counsel can be

hauled up here for the underlying basis for his decision, I think you

will have special counsels not willing to do their job.

I think you were perfectly correct not to answer questions concerning your decisions. You are an independent officer. Many expected you not to act independently, given where you sit. I think

you are within your rights and I think you would do a disservice

40

to the Office of Special Counsel if you believed you could be subject

to this kind of cross-examination on your findings.

Now, as to disparaging or leaking concerning someone under investigation, that is criticism that you and any other officer of the

Government must take, but beyond that it seems to me there is no

other criticism, and the reason you are getting so much criticism

on that score, Mr. Bloch, is the following: when people continue to

attack somebody on something like leaks, it is often because they

have no attack to make on the underlying issue. The issue here

was whether Lurita Doan was in violation of the Hatch Act, and

I have yet to hear a valid defense to what she did at the instance

of the White House. It was one of the most naked violations of the

Hatch Act I have ever seen.

Mr. McPhie, I am not referring with regard to existing law. I am

just trying to ask everybody to kind of step back. Mr. Bloch, I

would be anxious to hear your answer to this, as well. Do you believe that employees of the Federal Government should have the

right to file complaints before an objective body that does not include your own employer?

Mr. MCPHIE. You mean whether or not they should have an

outside——

Ms. NORTON. Someone other than——

Mr. MCPHIE. Some third party?

Ms. NORTON. Yes, a third party other than the agency of the Federal employee involved in the decisionmaking on the complaint

filed against the agency. In our system of law, would that not be

the usual course?

Mr. MCPHIE. I have seen it work both ways.

Ms. NORTON. Well, I see it work both ways now, Mr. McPhie. I

am asking, given our system of law, isn’t it normal for some third

party, not including the party accused, to decide issues against the

party accused?

Mr. MCPHIE. Are you asking me as a business practice or are you

asking me if we——

Ms. NORTON. I am asking if the system of American law, as a

system of American law, in our system of law is not the notion of

an objective third party routine? Isn’t that what distinguishes us,

the distinction between us and other societies, that some objective

person, not the accused? That the accused is in no way involved

who hears complaints that are brought? Is that not central to our

system of justice?

Mr. MCPHIE. With respect to Federal employment, that is the

customary layout. You tend to have a third party appeal system.

I haven’t——

Ms. NORTON. You have a third party appeal system.

Mr. MCPHIE. Right.

Ms. NORTON. But what do you have in the first instance, Mr.

McPhie?

Mr. MCPHIE. In the Federal system that is customary. Anything

different from that is——

Ms. NORTON. Well, in the Federal system the complaint is filed

where first?

Mr. MCPHIE. In the Federal system the complaint is filed in the

agency, but——

41

Ms. NORTON. That is what I am speaking of. You then look at

what the agency says.

Mr. MCPHIE. Right. In the Federal EEO system it starts with the

agency.

Ms. NORTON. All right.

Mr. MCPHIE. And then the agency, itself, looks at it, itself.

Ms. NORTON. Look, I was a chair of the Equal Employment Opportunity. I am aware of how it goes. I am trying to get to it before

my time runs out. You start with the agency. You then look, in

part, at what the agency found, do you not?

Mr. MCPHIE. The Board?

Ms. NORTON. Yes. You don’t discard what the agency found, do

you?

Mr. MCPHIE. Not really. The Board proceeds de novo.

Ms. NORTON. Then why do you need the agency to find anything

in the first instance?

Mr. MCPHIE. I don’t need the agency to do anything. All I am

saying is, let me tell you, I think if you look at the way the different complaint processes are structured, the one agency whose

structure approximates more closely a judicial structure is the

MSPB.

Ms. NORTON. No question about it. But you don’t file with the

MSPB initially; is that not true?

Mr. MCPHIE. I am sorry?

Ms. NORTON. You file with the agency that you are accusing; is

that not true?

Mr. MCPHIE. What kind of case? I mean——

Ms. NORTON. You are an appeal board; therefore, somebody

below must have made a decision, Mr. McPhie.

Mr. MCPHIE. You have to have a final agency decision.

Ms. NORTON. I am asking you whether or not you find that outside of the normal course of American law.

Mr. MCPHIE. Not really. No. No.

Ms. NORTON. I don’t know anybody at AT&T who files there before they go to the EEOC, for example.

Mr. MCPHIE. I have had a lot of experience with non-Federal

public employee situations, and, as far as I can tell, in every instance the agency takes an action and the employee disagrees with

the action. The employee has the right——

Ms. NORTON. In the Federal Government, of course?

Mr. MCPHIE. I beg your pardon?

Ms. NORTON. In the Federal Government, of course? All I am trying to establish, Mr. McPhie, is that we have a unique system here,

and it is part of the controversial nature of that system. It is not

easy to figure out because you have peer agencies, but the one principle it seems to me we ought to establish is one that you uphold,

which is the MSPB, is certainly not the agency, and yet so you

make the decision, albeit it sometimes with the EEOC in mixed

cases. You make the decision apart from the agency, except there

has already been an agency finding, sir.

Mr. MCPHIE. And I do believe that is part of the reason. If you

look at the structure of these complaint processes, I think that is

part of the reason why the MSPB process——

Ms. NORTON. No, it isn’t, because——

42

Mr. MCPHIE [continuing]. Is efficient.

Ms. NORTON. That is not the reason because if, in fact, I work

for Microsoft, I get the same right to appeal to an objective body,

but I get to file before an objective body in the first place, and that

happens to be the EEOC in the case of private employment. So

there is a great distinction. You must have been ensconced in the

MSPB for so long that it has all melted away.

Mr. Bloch, do you see the distinction at least that I am making?

I don’t hold you accountable for it. It is set up by the Congress of

the United States, but do you see the distinction I am making?

Mr. BLOCH. I do, Congresswoman, and it is analogous to me, having come from the private sector where every right and remedy

that I was aware of came outside of one’s own employer or company or even public employment. However, in the area of Government employment, I was familiar with a grievance system, I think,

that existed in the States, and I knew there was something in the

Federal Government of a similar nature.

What is the best system is really something that Congress debates best, but I do understand your distinction.

Ms. NORTON. I am not trying to involve you in the decisions that

you didn’t make; I just want to establish for the record how unique

it is and, frankly, how unjustifiable it is. I am not suggesting that

there is an easy way out, but it bespeaks some other country to say

you have to go before the accused first and then you can come to

Mr. McPhie and find out what the real deal is, particularly since

Mr. McPhie doesn’t disregard what the agency has found but obviously builds on it.

Finally, you said, Mr. McPhie, that you believe that there has

been satisfaction with the way you handled EEOC complaints. I

hope that is the case. I am not saying I heard anything different,

but on what basis do you say that?

Mr. MCPHIE. Based on EEOC’s own records, their statistics, their

surveys.

Ms. NORTON. Because, in fact, they have agreed with what you

have found?

Mr. MCPHIE. Yes.

Ms. NORTON. And since they normally find for themselves, I am

sure they love you. Remember, the agency makes the decision in

the first place, and when you bless the agency I am sure they are

not going to have many differences.

Mr. MCPHIE. I am not so sure. The presumption here is something I can’t buy into, that I bless the agency.

Ms. NORTON. Strike that. I am sure you do your own. Look,

moreover I can tell you, as the former chair of the agency, most

complaints filed before such an agency are not probable cause complaints that should be sustained, so I am not here criticizing your

work. I am trying to get at the nature of the system and to ask

whether or not such a system can be justified in the year of our

Lord 2007 as we bounce around the world telling people to set up

objective third-party systems or be condemned by the United States

of America when right here every Federal employee who has a

complaint of discrimination against her agency must file with her

agency first, get the guts to file against your agency and then hope

43

that somehow or the other some objective review will be found after

you look at what the agency has found in the first place, sir.

Mr. MCPHIE. Again, you sort of conflict in what I do with what

the agency has done. I don’t have a dog in the agency’s fight. Look,

we have a system——

Ms. NORTON. You have quite a dog there because you don’t take

the agency’s decision and say that is null and void, I don’t even

want to know about it.

Mr. MCPHIE. But ours isn’t——

Ms. NORTON. You say, Let me look at what the agency has found

and then let me see what the appeal from the agency should be.

This agency’s decision is as much the first-line decision as the decision of a district court is a first-line decision. The court of appeals

looks at what the district court did, finds whether it was in error,

changes it or not. You look at what the agency did, look at the

agency decision, find whether it was in error, and change it or not.

There has been no third-party adjudication before it gets to you.

Mr. DAVIS OF ILLINOIS. The gentlelady’s time has expired.

Mr. Mica.

Mr. MICA. Thank you.

Well, Mr. Bloch, I don’t know quite where to start. I have a copy

of the e-mail which came from your office. Maybe I could ask you

if you would supply for the record of the committee if you were at

work at 11:52 Tuesday, June 19th, in your office. That would be

the first question. Do you know?

Mr. BLOCH. Congressman——

Mr. MICA. You don’t know?

Mr. BLOCH. I am an independent agency with a charge that we

are discharging effectively for whistleblowers.

Mr. MICA. Were you in your office——

Mr. BLOCH. That is what I am here to discuss. I am not going

to get into personal attacks here.

Mr. MICA. This is not a personal attack.

Mr. BLOCH. Well, we are done talking about this.

Mr. MICA. You were in——

Mr. BLOCH. I am not going to answer that.

Mr. MICA. Well, I want you to supply or I will ask our staff investigators to find out if you were in the office on that date. I have

an e-mail that I just received a copy of which has disparaging remarks about me in it, and I just want to know if you used Government resources to distribute this particular personal e-mail.

Again, I do want to know that. I will find that out. OK?

And the second part of the question is whether you used Government resources to distribute this e-mail.

Now, some comments have been made about calling for your resignation, and you accused Mr. Davis of saying that. I don’t recall

ever—and then you said you thought it might be some attempt to

intimidate your investigation. Was that what you intimated?

Mr. BLOCH. I didn’t intimate it; I said it.

Mr. MICA. OK. You said it.

First of all, let’s review what we did here. The committee undertook an investigation of the GSA Administrator, and it started with

the matter of a contract. That was all, I guess, the end of last year.

All of those events took place last year.

44

In the course of that investigation it looked like that folks were

going after Ms. Doan, and maybe they should have. When I first

heard about it, I thought if she was giving some sweetheart contract to somebody who she received money from, let’s go after her

and take her out. As it turned out, she had actually employed

somebody to produce those diversity reports, paid them money, and

I think the contract was some $20,000 to avoid her agency being

disparaged with another poor performance on diversity, herself

being an African American executive, a woman, successful background.

So there was nothing there. And then it turns out that someone

found out about the presentation. The presentation, the political

briefing, was that initiated by Ms. Doan? Do you know?

Mr. BLOCH. What do you mean by initiated?

Mr. MICA. Initiated. Did she initiate the political briefing, from

your investigation?

Mr. BLOCH. My understanding of the facts is that she, as the

head of the agency, hosted it, but that the actual mechanics of the

presentation on January 26th of this year——

Mr. MICA. Right, was by the White House political office.

Mr. BLOCH. Well, working with the White House liaison, as I understand it.

Mr. MICA. OK. Now, at the end of that she did ask a question,

and I have heard several comments about the question, and I believe she asked a legitimate question, How can we help our candidates or how can we help our guys. I have heard several people

who you, your investigators talked to. I did not view that as a serious violation of the Hatch Act. If she said how could we use GSA

resources, blah, blah, blah, but we won’t get into that.

But I thought it ought to be investigated, and I thought we

should send it to the Office of Special Counsel, your office. I hadn’t

really known much about you. I heard your name, may have seen

you, but had every confidence that you would investigate that.

I never called for your resignation until I picked up this newspaper—I saved the newspaper—and read about a leaked report,

and then the next day or thereafter read that the Washington Post

had to do a correction on the leaked report.

Now, Mr. Davis indicated and the draft report you said was developed on the 17th or available on May 17th. Then it went to her

attorney on the 18th. But it had to be your office that leaked that

draft report. It had to be your office. And you said you had the

power to leak?

Mr. BLOCH. Well, Congressman——

Mr. MICA. You have the power to leak or to——

Mr. BLOCH. I don’t use that term.

Mr. MICA. To disseminate information.

Mr. BLOCH. I have the power to release documents or reports or

any information I deem in the public interest——

Mr. MICA. Let me tell you I have the power to ask for your resignation, because when I see us asking you to investigate something and I pick up in the paper, as a member of the Government

Reform and Oversight Committee—I have been on this 15 years—

and read in the damned newspaper information, and then a retraction and a correction of what your agency had leaked, I am not a

45

happy camper. It doesn’t give me a lot of confidence in what you

have done.

Then I thought well, maybe Mica has just got his shorts bound

up, or something, but then I started reading about what people

have said about you. Did you know what Representative Eliot

Engel said on March 31, 2004? ‘‘Mr. Bloch ought to find a new job.

He ought to get fired. President Bush should not tolerate this from

someone he appointed.’’

I have Mr. Waxman’s quote. I didn’t know you were in trouble

until I read it in the paper, and your office, itself, was under investigation. ‘‘The Doan investigation, one of the most highly profile undertaken by the Office of Special Counsel, Scott J. Bloch, who, himself, is under investigation by the Office of Personnel Management

for allegedly retaliating against his employees who disagreed with

his policies.’’

I have more. I won’t read them all into the record.

Have you read what the executive director of employees for Environmental Responsibility has said about you?

Mr. BLOCH. I don’t read slander.

Mr. MICA. OK. Well, let me just say what he said about you. ‘‘It

is only when a probe serves his political agenda that Bloch latches

onto it as if it were the last helicopter leaving Saigon.’’

This isn’t what I have said. I have more quotes, and I will ask

unanimous consent that they be put in. I have a page of them, of

what they have said about how you operate.

I didn’t know how you operated, but I felt that you were coming

after Doan, or at least you appeared you were coming after her to

take the heat off of you, and that is what it appears like.

Mr. BLOCH. Congressman, do you believe those statements are

truth that the pressure groups put out because they disagree with

one interpretation of the law?

Mr. MICA. This isn’t where I get questioned. This is where you

get questioned.

Mr. BLOCH. Well, you have thrown them at me——

Mr. MICA. I am concerned about the leak that——

Mr. BLOCH. You have thrown them at me like arrows.

Mr. MICA [continuing]. That appeared, the leak that had to appear from your office in an important investigation that was given

to you and a responsibility given to you, and then I read—the ultimate insult is to read your personal e-mail, whether it was sent on

your personal computer or whatever, that Davis will either show

up as ranking member of the larger committee or have Congressman Mica do his dirty work of raking me over the coals.

Mr. BLOCH. You have done a good job.

Mr. MICA. I never intended to rake you over the coals. I intended

to conduct an investigation of Ms. Doan and then have a proper investigation by your office of her conduct relating to the Hatch Act.

I don’t think I got that. I think I got, unfortunately, your latching

on to her situation and misusing, again, the resources of your office

to cover up what appears to be an office in disarray.

So I did ask for your resignation when I heard that if, in fact,

it was true. And if it is not true that your office did not leak that

information, then I am not interested in your resignation.

46

Mr. BLOCH. Fair enough. Do you want to hear the evidence we

have against Ms. Doan to rebut what you are saying?

Mr. MICA. No.

Mr. BLOCH. Not interested?

Mr. MICA. I have read the report.

Mr. BLOCH. You don’t know all the evidence, Congressman. Do

you want to hear it?

Mr. MICA. First of all, I don’t need you to tell me what I know.

Mr. BLOCH. You don’t have all the evidence. We have all the evidence.

Mr. MICA. I believe that——

Mr. BLOCH. You don’t want to hear it. That is fine.

Mr. DAVIS OF ILLINOIS. The gentleman’s time has expired.

Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman. I will followup on that.

What evidence do you have that you didn’t put in your report?

Mr. BLOCH. We put all of our conclusions——

[Inaudible comment from audience member.]

Mr. ISSA. No, no, no. Please. You were not sworn in. Unless you

want to stand and be recognized and be sworn in, let’s limit what

happens.

Mr. Chairman, were the people behind Mr. Bloch sworn in? Mr.

Chairman, I apologize, but were the people behind Mr. Bloch sworn

in? The policy of the committee is either the person or anyone who

will convey information with him is to be sworn in. I would just

like to get that done before I begin my process.

Mr. DAVIS OF ILLINOIS. Those were not.

Mr. ISSA. OK, then, sir, would you please just answer the question.

Mr. BLOCH. All right. I will answer it.

Mr. ISSA. Do you have evidence not in your report?

Mr. BLOCH. We have all of the evidence, which is transcripts of

witness testimony. It is hundreds, if not thousands, of pages.

Mr. ISSA. OK. Let’s——

Mr. BLOCH. Which you have not read.

Mr. ISSA. Thank you.

Mr. BLOCH. You don’t have.

Mr. ISSA. OK. I appreciate that, and I would ask the chairman

to please have those made available to us so we could read the actual transcripts.

Mr. BLOCH. We have not made them available because they

are——

Mr. ISSA. You haven’t chosen to leak those yet?

Mr. BLOCH. More personal attacks, Congressman. Thank you.

Mr. ISSA. No, no, no. See, you don’t use leak, but I have to ask

a question very straightforward. Congress is reviewing itself with

a critical eye about earmarks. Do you know what an earmark is

around here? It is either something you do in front of everyone and

go back home on the 4th of July and brag about trying to bring

something to your District that is needed, or it is something you

slip into a bill in the late of night and then try not to have your

fingerprints on.

Now, you came before this committee and you say you don’t do

leaks, but then when we ask you who released the information,

47

which is your term, you tell me you are not going to go check on

it. Well, quite frankly, if you are in charge of it and it was released,

which we know to be true, who released it and why is it you don’t

know who released it?

Mr. BLOCH. Congressman, this is a red herring. It has nothing

to do with the——

Mr. ISSA. No, no, no. Excuse me. This is my time and you do not

characterize red herring. This is not a red herring. The question,

very straightforward, is your office released it, we have had confirmation your office released it. Let me ask it straightforward. Do

you know who leaked it or do you have a strong suspicion who

leaked it?

Mr. BLOCH. I have stated very clearly—I will state it again—that

I believe the person that put the report out to the public was from

GSA. Whether it was with the Administrator’s knowledge or not,

I don’t know that.

Mr. ISSA. OK. So who in the GSA——

Mr. BLOCH. But I didn’t authorize it.

Mr. ISSA. Who in the GSA——

Mr. BLOCH. I did not authorize it.

Mr. ISSA. Right. Who in the GSA ever received the draft that was

released to the Post? Who ever received the draft? The Administrator did not receive the draft. Who received the draft?

Mr. BLOCH. I don’t know anything about the draft because I

haven’t seen that on the Washington Post Web site. I am taking

it on faith that you are right, that this was on there, but I didn’t

put it there.

Mr. ISSA. So let me understand something.

Mr. BLOCH. I don’t know that.

Mr. ISSA. They had to print a redaction. The final report contained names of individuals which, if it had been leaked, would

have been a separate crime to release covered individuals because

that disclosure is not allowed. So a draft was released that did not

have those names, thus getting around any question of that release, but you don’t know anything about it and you are the head

of special counsel? You are the investigator that is supposed to

keep Government clean and you don’t know and you are not willing

to check?

Mr. BLOCH. Congressman, I think your recitation of facts is incorrect concerning what was——

Mr. ISSA. No. I am asking the question.

Mr. BLOCH [continuing]. In the report.

Mr. ISSA. Do you know?

Mr. BLOCH. I have stated what I am going to state on this,

and——

Mr. ISSA. OK. You are refusing to answer.

Mr. BLOCH [continuing]. I stand by it. And I stand by it.

Mr. ISSA. Now that you are refusing to answer that, we will go

on to a——

Mr. BLOCH. I have answered it several times.

Mr. ISSA [continuing]. Couple of other things.

Mr. BLOCH. I stand by it. Do you want me to continue——

Mr. ISSA. You may be the special counsel——

Mr. BLOCH [continuing]. To repeat the same answer?

48

Mr. ISSA [continuing]. Who ends the Office of Special Counsel. I

just want you to understand that here today. When your agency

conducts interviews, is it in a deposition-like fashion? Yes or no?

Mr. BLOCH. Is what?

Mr. ISSA. Is a transcript-like document or a transcript prepared?

You mentioned transcript.

Mr. BLOCH. Not always. Sometimes.

Mr. ISSA. OK. Under what circumstances is a transcript not prepared?

Mr. BLOCH. When the investigators and attorneys deem it unnecessary or too costly a use of resources or impracticable.

Mr. ISSA. If a court reporter is present at the time of a deposition

and is taking annotations, as we are doing here today, does that

mean a transcript is being prepared?

Mr. BLOCH. Not necessarily, but I don’t think we use court reporters.

Mr. ISSA. OK. Well, court-like reporters. Somebody like the lady

next to you.

Mr. BLOCH. That would be correct, yes, but with a tape recorder.

Yes.

Mr. ISSA. OK. In the case of Administrator Doan, you did, in fact,

take records, there was a transcript created. Could you please explain to me the rationale for denying under those investigations,

when a transcript is prepared, the transcript to the individual who,

in fact, you are taking their deposition?

Mr. BLOCH. You are talking about the subject of the investigation?

Mr. ISSA. Yes. Why would you not give them the transcript of

their own interrogation?

Mr. BLOCH. We do. We give them a CD with them doing exactly

what they did, which is testifying to every word that they testified

to, and then they can have a court reporter transcribe it for them

if they like.

Mr. ISSA. So what you are saying is you will not supply a transcript, even if you have it transcribed? You just give them a raw

CD?

Mr. BLOCH. Well, we——

Mr. ISSA. Is that professional to do? Is that what would be done

in a Federal court? If a U.S. attorney replaced you, is that what

would be done?

Mr. BLOCH. If the U.S. attorney did not change our written policies, yes.

Mr. ISSA. OK. So I will take that as an answer that no, a U.S.

attorney does not operate that way, the Federal courts do not operate that way, but you operate that way.

Mr. BLOCH. That is what our policies provide, Congressman.

Mr. ISSA. OK. Well, that is one of the things we are, as oversight

for policies that are inconsistent with the normal fair play in investigations, something that is bipartisan in this committee. So you

don’t see that procedure of withholding until actually after you

have not only had a transcript but you have already begun leaking—sorry, releasing—to other people the output of that transcript,

and then and only then do you provide a CD to somebody and say

go get it transcribed? You don’t see anything unfair about that?

49

Mr. BLOCH. Well, everything you said is incorrect, so I don’t

know what I am considering fair or unfair.

Mr. ISSA. Well, you know, it is amazing how many things you

think are incorrect that——

Mr. BLOCH. Well, I am happy to visit with you about what I consider incorrect.

Mr. ISSA. You have already said you are going to take the ranking member outside, so I think that is quite enough for today.

Mr. BLOCH. I said I was happy to take a discussion outside of

personal attacks, taking it off the record, where it belongs.

Mr. ISSA. OK. Now, as special counsel you are probably aware

that huge amounts of documents in the past and present by the Office of Special Counsel and, in fact, by this very committee, have

been subpoenaed over the years and presently for private accounts,

including accounts that are presently in the possession of the RNC.

It is quite a topic du jour here on the dias that we are, in fact, getting AOL accounts that are in the possession of the RNC and accounts like that. In light of the fact that, in fact, the Office of the

President and Vice President have been subpoenaed and the Republican National Committee, a partisan group only represented by

less than half the people on the dias here, has been subpoenaed

and is being required and is in the process, at their own expense,

of delivering personal e-mail accounts, do you still stand by the fact

that you think that an e-mail produced on an AOL account in the

middle of a work day is, in fact, off limits?

Mr. BLOCH. Well, Congressman, I wouldn’t categorize it that

way.

Mr. ISSA. No, no. I categorized it. We are not talking about your

e-mail. I am just talking about e-mail in general.

Mr. BLOCH. That is what I mean. I would agree that I wouldn’t

say that wholesale and, in fact, we are, ourselves, engaged in an

investigation of the matters you are talking about, and I would

draw this distinction for you——

Mr. ISSA. You mean the RNC versus you?

Mr. BLOCH. I hope there is a distinction between the RNC and

me.

Mr. ISSA. I suspect there is a large one.

Mr. BLOCH. The distinction is very simple. When one is using

one’s accounts for conducting Government business, then it is the

business of the Government. When one is engaged in private discussions using private accounts having nothing to do with Government business and the conduct of Government business——

Mr. ISSA. What part of Government is the RNC?

Mr. BLOCH. No, it is the people communicating through their

RNC accounts who may—I am not pre-judging, because we are investigating that. It is kind of inappropriate to really get into a big

discussion.

Mr. ISSA. Yes, I remember it is inappropriate to release information until it is concluded. I have seen you on C–SPAN on that.

Mr. BLOCH. You are good at sarcasm, Congressman. I will give

you that.

Mr. ISSA. And you are good at evading the answer to the question. You are perfectly willing to demand that the RNC turn over

a document that was produced on an AOL account, perhaps in the

50

middle of the day from a Government computer. It is fair game to

demand that and go through it, but it is not fair game to even ask

you about what appeared to me to be a disparaging remark about

the ranking member of the full committee here done by you in the

middle of a work day on an AOL account. You feel you have no responsibility to answer, and yet you are perfectly willing to grill

other agencies about it.

Now, I have to ask you, don’t you think there is a little hypocrisy

there that you are exempt but the Republican National Committee

isn’t exempt and others aren’t exempt?

Mr. BLOCH. I wasn’t conducting Government business. I was

talking about my private opinion about some news stories.

Mr. ISSA. OK. And what is Government business, if you are talking to the RNC about your friend Louie or about a fundraiser you

are going to do on your own time that night, what is Government

business there?

Mr. BLOCH. Well, you are trying to push me into pre-judging a

case that we are looking into, but let me just——

Mr. ISSA. No, no.

Mr. BLOCH. We are not doing that.

Mr. ISSA. Sir, I am trying to get you to take a cold, hard look

at your own indiscretions and your refusal to answer questions

here today, and I simply want you to at least begin to come to grips

with the fact that the Office of Special Counsel does not act like

a normal U.S. attorney or anybody else in the Justice Department

or in the Judiciary, and we are concerned because we have to consider whether or not there should continue to be an Office of Special Counsel on an ongoing basis.

Mr. MICA. Would you yield a second?

Mr. BLOCH. May I answer?

Mr. MICA. For a second yielded to me.

Mr. BLOCH. All right.

Mr. MICA. This is a part about what he was asking about

Mr.——

Mr. ISSA. There has been extra time on the other side. Just go

ahead.

Mr. MICA. What he was asking about was actually a specific reauthorization hearing for his agency. He was commenting that he

was going to——

Mr. CLAY. Mr. Chairman, could we have regular order, please?

Mr. MICA. I would like that in the record.

Mr. DAVIS OF ILLINOIS. The gentleman’s time has expired.

Mr. CLAY. Thank you, Mr. Chairman.

Mr. DAVIS OF ILLINOIS. The Chair is going to yield 10 additional

minutes to himself, myself, and to the ranking member, and I am

going to yield 6 of those minutes to Mr. Clay.

Mr. CLAY. Thank you, Mr. Chairman, for yielding.

Mr. Bloch, let me try to clarify some of the confusion that my

friends on the other side of the aisle of this committee have

brought to us today. I am sure that the viewing public and the people in this room are somewhat confused, and some of us are artists

in confusion.

The OSC has found that Administrator Doan committed a Hatch

Act violation and that you sent a recommendation to the President

51

to punish her on June 8th. The President has not acted or given

a timeframe for his actions. Do you believe this was a serious violation?

Mr. BLOCH. Thank you, Congressman Clay. The report that we

sent to the President outlines how we do believe it is very serious

and the reason why is that you have an agency that has $50 billion

in contracts and $500 billion approximately in real estate holdings,

with an ability certainly, if there is a will to do so, to target congressional districts with resources and help for candidates and for

parties if there is a will to do that, and so any suggestion or hint

or implication that someone at the head of that kind of agency

would offer it up as something that we can brainstorm about how

to use those resources of getting people to various openings and

highlighting people on a particular party is a very, very serious

matter.

Not only that, but you have 30 political appointees present who

are not allowed to engage in such a brainstorming session in a Federal building, and yet they are being, in a sense, forced to.

I know that others disagree with our report, but we had all the

evidence. And I didn’t do the investigating. I did ratify the report.

I do believe it was correct. But we have Hatch Act experts who

have been doing this for many years. If you look at all the people

that worked on this file, very experienced litigators, very experienced attorneys who really, really know the Hatch Act, and we are

the only agency in the Federal Government that is authorized to

investigate and prosecute Hatch Act violations, as well as to give

advisory opinions about what is and what isn’t acceptable behavior.

Then, finally, I would note that the level of authority that an employee has weighs into what should happen to them if they violate

the Hatch Act. The higher up you go the higher the standards are,

and that is in the case law. We have tried to be clear about that

and tried to be fair.

If you read the transcript of the interview of Ms. Doan, as I have,

you see investigators who are really trying to give her a fair shake

to let her tell whatever evidence she has, whatever information she

needs to put forth that would help us to make our decision.

Unfortunately, Congressman, she was not very forthcoming. I believe that there was a great deal of misleading evidence provided,

and that also weighs into an aggravating factor under the case law

as to whether the individual cooperated and took responsibility for

their action, and so on. This is a serious aggravating factor in this

case.

Mr. CLAY. And I couldn’t agree more with you. We also on this

committee experienced that kind of behavior from Ms. Doan, where

she was very recalcitrant about answering the questions and being

forthcoming.

Do you know when the President will make a decision on your

recommendation?

Mr. BLOCH. No, I do not, Congressman. I think, you know, that

is certainly within the President’s domain and appropriate moment. I don’t know exactly when that would be, and I will ask my

Hatch unit to advise me on this, but maybe we will make an inquiry at the appropriate time if, you know, there is no decision

52

made within a reasonable period. But there is no statutory timeframe.

Mr. CLAY. Sure.

Mr. BLOCH. And so I don’t know exactly how to answer that.

Mr. CLAY. What do you think he should decide?

Mr. BLOCH. Well, far be it from me to tell the President what to

do. We have made our recommendations. If I were in that position,

I would want to make a decision in a timely and reasonable fashion

so that people would have a sense of there being a process that is

reasonable and fair, and that some decisionmaking takes place, and

I think everybody does believe that is the right thing to do. So I

would certainly encourage the White House to do what they believe

is appropriate and reasonable in terms of time to make the decision.

Mr. CLAY. This case has been pretty high profile, and I just hope

it is not symptomatic of a recurring theme throughout this administration that you use an agency, that you use Federal largesse to

help in political campaigns. We all know that is wrong. We know

it is a violation of the Hatch Act when you involved Federal employees in that kind of activity. I couldn’t agree more with you, and

thank you for your service.

Mr. BLOCH. Thank you, Congressman.

Mr. CLAY. I appreciate that very much.

Let me go to Mr. McPhie.

Mr. McPhie, welcome. Historically, Congress has not received

many requests to exempt agencies from the Sunshine Act. Tell me

what makes the Board so special?

Mr. MCPHIE. It is the nature of the Board’s work. It is not the

Board being special. The Board has the obligation to decide cases,

an adjudicative responsibility. There are three members, three

Board members. The Board has been identified by the court as a

quasi-judicial agency.

The Board has not had a meeting under the Sunshine Act since

I think the last one was in November 2001. There are multiple reasons for that. One of the reasons is the unwillingness to talk freely

because you can’t really talk freely between Board members about

cases. What we do, what is common practice is we send our surrogates, you know, chief counsels, and they expound your position,

and so on and so forth. And in a case that is complex or ticklish,

tough to decide, those discussions back and forth happen frequently.

Mr. CLAY. You mean you can’t even hold a meeting, a regular

business meeting?

Mr. MCPHIE. Well, you can hold a regular business meeting and

you can hold a Sunshine Act meeting, but there are predicates. You

have to give the notice, and the notice has to state the time and

place, and so on and so forth, and the subject matter of the discussion. But you may give a notice, for example, about a case, and you

get into a discussion about that case, you have to be real careful

that discussion doesn’t morph into a discussion about other cases

in the pipeline.

Mr. CLAY. That goes to my next question. Will this exemption

occur at the adjudicatory function or apply to any meeting of the

Board——

53

Mr. MCPHIE. No.

Mr. CLAY [continuing]. At the discretion of the chairman?

Mr. MCPHIE. No, no. Adjudicatory. Adjudicatory. The issue comes

up when we are discussing cases. The issue does not come up in

other areas. We are not trying to evade or run from the Sunshine

Act. Government and Sunshine is good, is sound policy. That is not

the issue.

I want to point out also that the Board is required, when it renders a decision, to give the reasons for its decision, the law upon

which it applied, and so forth. So it is not a situation where what

the Board does in darkness doesn’t see the light of day.

The only purpose of it really is to make the Board more efficient

as adjudicators. I don’t believe it would happen very often, because

not all Board cases are that complex. Some are fairly routine cases.

But it is an effort by us, especially in today’s climate, where the

demands upon us are to be efficient. DOD requires us to do cases

in the field in 90 days, headquarters in 90 days. DHS requires the

same sort of time line. The proposed whistleblower legislation requires us to do it in 180 days. The time when an agency like the

Board to take a case and take its good time to decide those cases,

those days are gone.

Mr. DAVIS OF ILLINOIS. The gentleman’s time has expired.

Mr. CLAY. I thank you. I thank the chairman. Thank you, Mr.

McPhie.

Mr. DAVIS OF ILLINOIS. Mr. Marchant.

Mr. MARCHANT. Thank you, Mr. Chairman. I am going to give

my time to Mr. Mica and Mr. Issa, 5 minutes each.

Mr. MICA. Thank you.

Again, Mr. Bloch, I have never had any reason to rake you over

the coals, as you intimated in this June 19, 2007, 11:52 a.m. e-mail.

I told you the context in which all of my interest occurred, and that

was when we started investigating Ms. Doan. Turned out to be sort

of a reckless attack on her, on the issue of the contract which was

never let, which she was not giving the contract to anyone which

she had received financial gain. In fact, she had given between

$400,000 and $500,000 worth of business to that individual.

They went on a fishing expedition afterwards and found this Jennings political briefing, and I really thought that it would be appropriate for the Office of Special Counsel to objectively investigate

that report.

Mr. BLOCH. And that is what we did, Congressman.

Mr. MICA. Well, I don’t know that to be the case, based again on

your particular situation and what I have seen. I quoted for the

record here, and you have heard, normally, too, in these situations

Mr. Issa and I, Mr. Davis, we do the best. You are an administration appointee, I believe, and we do our best to try to defend or to

assist presenting as much information as we can to offer into the

record to support those in our administration. I gave quotes of others who had concern about your tactics. I did not note that you and

your office were under investigation in matters. I have quotes from

Mr. Waxman. Mr. Waxman said, ‘‘Mr. Bloch’s actions are part of

a larger attack on the Federal Service system by the Bush administration. Over the past 31⁄2 years Federal employees lost collective

bargaining and appeals rights and they have seen their jobs

54

outsourced, and now they face discrimination based on their sexual

orientation.’’

I am now being critical of you, and I know that quote by Mr.

Waxman is taken out of context, but people have had differences

of agreement with both your approach and some of your findings.

I find that to be the case in the Doan case.

I go back again to having sat on this panel for 15 years, investigated Republican appointees, Democrat employees, and I have

never had an instance—I saved that newspaper. Where is it? I

threw it down here a while ago. I don’t want to lose it because the

morning I read it I became unglued to know that an important

matter that we had put in your trust and confidence to investigate,

I found a leak.

Again, you told Mr. Davis yesterday morning that the leak was

from inside GSA, and you have repeated that several times here

today.

Mr. BLOCH. That is what I believe to be the truth.

Mr. MICA. That is impossible. The Washington Post had access

to a version of the draft of the report that was never provided to

GSA.

When did you find out about the Washington Post clarification?

I had a copy of that I held up earlier. When did you find out about

the Washington Post clarification?

Mr. BLOCH. Well, I can only answer that I wrote to Mr. Nardotti

on May 25th indicating what the information I had from my office

as to how the report got out, and I would like to submit it for the

record, if I could.

Mr. MICA. I would like that as part of the record, Mr. Chairman,

without objection.

Mr. DAVIS OF ILLINOIS. Without objection.

Mr. MICA. Again, the point is that we are involved in investigations and oversight, and I find the draft report with conclusions

that they have to do a correction on. Did anyone on your staff call

this to your attention, your communications director or——

Mr. BLOCH. Yes. I was told about it. I didn’t read the Washington

Post.

Mr. MICA. OK. Do you recall——

Mr. BLOCH. I didn’t see it on the Post’s Web site.

Mr. MICA. Someone said it may have been a communications director. Do you recall who the individual——

Mr. BLOCH. I honestly don’t remember if it was one of the communications staff or my chief of staff or a combination. I don’t remember exactly, but yes, it was communicated to me that there

was something. This was after we had confirmed that somebody at

GSA had sent it by fax to the Government Executive and maybe

also the Federal Times. Then there was, some time later, maybe

the next day, I don’t know, I was informed another version was on

the Washington Post Web site and then was taken down. I don’t

know if that is true, but I accept your representation that it was.

I never saw it, myself.

Mr. MICA. Again, I will just conclude. You ran an investigative

agency, an important one, and it is important that we have confidence in that. I think it is important that you investigate this

leak, because this goes to the very heart of this whole investigative

55

process. Do you intend to go back and pursue how this leak occurred?

Mr. BLOCH. Congressman, I believe that it was inconsequential.

It had nothing to do with the facts of the case. What GSA had sent

to Government Executive was already out there, which was the

sum and substance of the report. The only thing that was in this

other edition of it, I guess—again, I didn’t see it on the Web site—

was something added in at the end about recommendations of punishment, but that was something that was put in the letter that

I signed to go to the President, and so that is all I can say.

But if there were some prejudice to Ms. Doan I would think it

was important, but there was no prejudice because the report was

already out there in the public domain and we had already completed the report, so the President was not going to be swayed by

something that was put on a Government Executive or Washington

Post Web site.

The President was the decisionmaker always. Always has been

and is now. I don’t think that is a matter, and I talked about this

with Mr. Fielding, White House counsel, and explained to him that

I didn’t do that and that we found out that somebody at GSA had

faxed over this report to Government Executive, and I told him I

didn’t believe in putting out these reports before the President had

a chance to make a decision and I didn’t believe in putting our reports before Ms. Doan had a chance to respond.

I have said that all along, but I don’t think that it is appropriate

for me now to engage in an investigation of my staff to get into

these matters. I don’t think that is appropriate.

Mr. DAVIS OF ILLINOIS. Mr. Issa, you have only got about 4 minutes.

Mr. ISSA. OK. I will hurry.

Mr. Bloch, the gentleman, Jimmy Mitchell, behind you, would he

know whether that leak came from your organization?

Mr. BLOCH. Jimmy Mitchell sitting behind you?

Mr. ISSA. No, the gentleman in the white shirt and tie.

Mr. BLOCH. Mr. Mitchell, the communications director?

Mr. ISSA. Yes. Mr. Mitchell, would you know whether that could

have come from your organization or not and would you have a

suspicion?

Mr. BLOCH. Congressman, I am the one here speaking on behalf

of the Office of Special Counsel. I am under oath. I would appreciate the questions being addressed——

Mr. ISSA. I appreciate the fact that you don’t want to ask, you

have a don’t ask/don’t tell policy. It is clear that your organization

knows that it came from within. It may be inconsequential, as you

say, and, in fact, it may be that we often don’t find out where the

leaks come from. I can accept some of that. What I can’t accept is

the fact that you are gagging the very ability to correct a statement

you are making repeatedly that it came from GSA when your own

organization knows it came from your organization.

Mr. BLOCH. Well, the gagging that you are referring to I could

be accused of if I instituted any kind of investigation internally.

Whether someone——

Mr. ISSA. No, you just gagged Mr. Mitchell right now.

Let’s move on.

56

Who did you send this e-mail to?

Mr. BLOCH. Which e-mail?

Mr. ISSA. The one that we have been talking about from June

19th.

Mr. BLOCH. I am not talking about that any more. It is a private

e-mail. It is not——

Mr. ISSA. OK. It is a private e-mail that, in fact, isn’t it true that

something you released characterizing this investigation, characterizing Mr. Davis as trying to defend Doan, characterizing what Ms.

Doan has said before this committee, and characterizing and actually speaking of your own reauthorization in your e-mails, isn’t it

true that could have a chilling effect on the ability for Ms. Doan

to survive your report? Isn’t that true? Isn’t it true you could—wait

a second. I am going to ask the question and ask it completely one

time. Isn’t it true and pretty obvious that this e-mail sent by you

to others and then sent by others and others could, in fact, very

well affect the outcome, the public opinion outcome that could lead

to and affect by the President just at a time in which your investigation has been completed but the President has not made a ruling? Isn’t it true that you could have done that by sending this out?

Mr. BLOCH. I think that is probably very speculative and not

anything——

Mr. ISSA. But you sent it out in reckless disregard for what the

effect it might have if it were widely viewed?

Mr. BLOCH. It was a private e-mail on a private account to

friends and family and some news reports——

Mr. ISSA. What is amazing is everything is private to you. You

won’t tell us where you sent it to.

Mr. BLOCH. I don’t know. I mean, I honestly don’t know.

Mr. ISSA. Your wife.

Mr. BLOCH. I told my wife about it. I remember that.

Mr. ISSA. Right. In the e-mail you talk about showing up of the

ranking member of the larger committee, Congressman Mica, but

you are also talking about I am going up for my reauthorization

on July 12th. The fact is you are talking official business and not

official business. You are mixing and matching things in e-mails on

AOL, and then you want to say that they are not.

On top of that, you are trying to submit information here when

your own flawed report that is at the President’s desk doesn’t cite

transcript references, talks about interviewing 20 people but

doesn’t cite that, and you didn’t cite case law. You sent something

up with a conclusion, a recommendation for the President, and

today you say you have evidence and transcripts which you haven’t

released, and you are telling us that, in fact, you could give it to

us today, but you did not give the President citings of the very

things you are talking about here today. I am ashamed you sent

us——

Mr. BLOCH. May I——

Mr. ISSA [continuing]. That piece of work product.

Mr. BLOCH. May I answer?

Mr. ISSA. You can certainly answer on the——

Mr. BLOCH. I am going to answer now, if I may. May I, Mr.

Chairman? All right.

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The answer to your question is we did cite case law. We cited Supreme Court case law, we cited regulations, and we cited the statute. The statute under which we operate, 5 U.S.C. 1214, requires

only that we set forth the facts upon which we base our decision

and the statute that was violated. That is all that is required to

be sent to the President. We did a lot more than that, and we cited

the record, we cited a great deal of evidence, but there were things

that we didn’t believe were appropriate to put in because of individuals who did not want their identities revealed, and that is why

this committee does not have their transcripts.

Mr. ISSA. Thank you.

Mr. Chairman, for the record, for the reauthorization which is

upcoming, I would hope that we look at that statute and the fact

that it does not have to cite with specificity enough, in fact, for

somebody to defend themselves when they are being accused of

something by unnamed people and egregious acts that are unsubstantiated.

I yield back.

Mr. DAVIS OF ILLINOIS. Thank you.

Let me thank both of you gentlemen for your testimony and let

me just state, Mr. McPhie, I think I am going to probably have

some difficulty with the Sunshine notions. I am a firm believer in

what I call the Open Meetings Act, so I am going to probably have

to have some more discussion relative to that request.

Mr. MCPHIE. I would be more than happy to answer questions

or try to explain a little bit more fully at your pleasure.

Mr. DAVIS OF ILLINOIS. I thank the gentlemen very much. We appreciate you. You are excused.

Mr. BLOCH. Thank you, Mr. Chairman.

Mr. MCPHIE. Thank you, sir.

Mr. DAVIS OF ILLINOIS. We will now move to our second panel,

Mr. Rosenberg, Mr. Nicola, and Mr. Hogue.

Since you are standing, we will go ahead, and then I will introduce the witness.

Mr. ROSENBERG. I explained to the chief of staff that with me

today are two of my colleagues who collaborated in my testimony,

and I will be the prime spokesman, but there are questions that

you may have that they are expert in.

Mr. DAVIS OF ILLINOIS. And they can certainly join you at the

table. There is room.

Our witness is Mr. Morton Rosenberg. He is a specialist in the

American Law Division of the Congressional Research Service, Library of Congress. He has been with the Library since 1972. Mr.

Rosenberg specializes in the areas of Constitutional law, administrative law and process, congressional practice and procedure, and

labor law. He is the author of a number of journal articles on separation of powers and administrative law issues.

He is joined and accompanied by Mr. Thomas J. Nicola, the Legislative Attorney in the American Law Division of CRS, and Henry

B. Hogue, Analyst in American National Government in the Government and Finance Division of CRS.

Mr. Rosenberg, as is our custom, if you would stand and raise

your right hand.

[Witness sworn.]

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Mr. DAVIS OF ILLINOIS. The record will show that the witness answered in the affirmative.

Your entire statement is in the record. Of course, the green light

indicates that you have 5 minutes. The yellow light indicates that

1 minute is left, and the red light means that you have ended and

we will then proceed with the questions.

Thank you so much for your patience. Thank you for being here.

You may proceed.

STATEMENT OF MORTON ROSENBERG, SENIOR ANALYST,

CONGRESSIONAL RESEARCH SERVICE, ACCOMPANIED BY

THOMAS J. NICOLA, LEGISLATIVE ATTORNEY, AMERICAN

LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE; AND

HENRY B. HOGUE, ANALYST, AMERICAN NATIONAL GOVERNMENT, GOVERNMENT AND FINANCE DIVISION, CONGRESSIONAL RESEARCH SERVICE

Mr. ROSENBERG. Thank you for inviting me, Mr. Chairman and

Congresswoman Norton. I appreciate your calling me here.

What I would like to highlight in my remarks today is a notable

theme that appears to underlie MSPB’s proposed legislation. Although described as technical corrections, the language in those

proposals dealing with the authority to prepare and submit annual

budget requests and the authority to delegate various Board functions would have the effect of concentrating substantive policymaking in the Office of the Chairman. This would be a significant

change from current specific statutory directions that such decisionmaking authority is reserved for members of the Board acting

as a body.

On the record, statements by Chairman McPhie appear to corroborate this intent and indicate that his management of the agency has been unilateral rather than collegial in nature, an apparent

variance from the MSPB statute and the expectations of Congress.

We understand that Congress may elect to endorse this arrangement. Our purpose today, however, is solely to identify these apparent departures from the original, congressionally established

scheme and the potential consequences.

MSPB, as you are aware, is an independent Executive agency

whose essential mission is to discourage subversions of merit principles from partisan, political, and other statutorily prohibited personnel practices, principally by hearing and deciding appeals for

Federal employees of removals and other major adverse personnel

actions, as well as other types of Civil Service cases.

In nature and function, it is primarily an adjudicatory body. In

establishing the Board, Congress structured it in a manner to assure both a high degree of independence and insulation from Presidential intervention, and to provide avenues for congressional oversight and public access to its decisional and operational processes.

It also intended that substantive decisionmaking was to be collegial

in nature.

The independence and collegiality goals are reflected in the enabling legislation. Members serve for 7-year terms. Those terms are

staggered so that a President can’t appoint all of them at one time.

Members cannot be removed except for stated cause. Members

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tions of the Board. The Board, as a body, has independent litigation authority to enforce subpoenas and to appear in civil actions

in connection with Board functions apart from the Justice Department.

Its annual budget request prepared by the Board is to be simultaneously presented to the President and to the appropriate congressional committees, thereby bypassing OMB review, and the

Board as a body is directed to submit its legislative recommendations simultaneously to the appropriate legislative committees,

once again bypassing OMB clearance requirements.

The Board as a body may delegate the performance of its administrative functions under the act to any employee of the Board.

These and other combinations of such political insulation and

collegiality features are to be found in numerous single-headed and

multi-member independent agencies. The choice of which agencies

and functions are to be so specially treated is that of Congress

alone to make.

The scheme and structure and organization established by Congress for MSPB was intended to allow it to carry out its adjudicatory function freer from the influence of short-term political considerations and influences that might otherwise be.

The importance of each structural element of the independence

of a Governmental agency intended by Congress was recognized in

the 2002 decision by the Court of Appeals for the District of Columbia Circuit. The court held that the requirement of staggered terms

was so integral to the congressional scheme of independence designed for the U.S. Commission on Civil Rights in 1983 that its

omission in the subsequent 1994 reauthorization measure could not

be deemed an implied repeal of that provision.

That court’s opinion suggests that a successful scheme of independence at times may be undermined by either the elimination,

diminution, or avoidance of one or more parts of that scheme. This

implies that the proposed changes at MSPB’s organizational arrangements should be assessed both individually and collectively

for the impact that they could have on the continued level of independence of the Board.

Let me turn to the proposals that are in question. Under current

law, the full Board may delegate performance of any of its administration functions under the act to any employee of the Board. That

subsection would be amended to allow such delegations in the sole

discretion of the chairman.

Under current law, the chairman is authorized to appoint such

personnel as may be necessary to perform the functions of the

Board. A proposed amendment would allow the chairman to delegate officers and employees under this subsection authority to perform such duties and make such expenditures as may be necessary.

Under current law, finally, the full Board is to prepare and submit simultaneously the Board’s annual budget to the President and

to appropriate congressional committees. A proposed amendment

would vest the preparation of the annual budget submission solely

in the chairman.

We believe that, rather than being technical corrections, as characterized by the MSPB, these amendments may be viewed as substantive enhancements of the power and authority of the Office of

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the chairman. Indeed, the MSPB chairman, in his written responses to member queries following the Senate’s March 2007, reauthorization hearing, candidly expressed his view that, as chairman, he occupies ‘‘a position of responsibility that is superior and

not co-equal to that of the other two Board members,’’ and that he

is, ‘‘the head of the agency.’’

He asserted that, since the statute makes the chairman the chief

executive administrative officer of the Board, the vesting of budget

preparation and submission to the President and Congress by the

MSPB’s statute to the full Board is inconsistent with the chairman’s statutory authority to be CEO and creates an ambiguity in

the relative roles and responsibilities of the three-member Board

and chairman of the Board.

The proposal to vest budget preparation and submission authority in the chairman is asserted not to be a ratification or approval,

sanctioning, or endorsement of the chairman’s views, but merely to

clarify an apparent ambiguity and to reflect past agency practice,

as well.

Although the statute provides that the Board is required to simultaneously submit to the President and each House of Congress

any legislative recommendations related to title 5 functions, Chairman McPhie stated that, pursuant to his authority as chief executive administrative officer, he ‘‘develops and submits legislative recommendations with input from the individual Board members and

program managers.’’ Just input.

With respect to the promulgation of regulations, the chairman

stated that he ‘‘consults with Board members and other program

managers as appropriate in developing and prescribing regulations

that govern the general operation and management of the agencies.’’

Again, current law provides that the full Board should have the

authority to prescribe such regulations as may be necessary for the

performance of its functions.

The rationale that is proffered as the basis of these proposals,

that congressional designation of the chairman of MSPB as the

chief executive officer and administrative officer of the Board, encompasses sole authority over such matters as budget formulation

and delegation of substantive Board functions, is contrary to the

history of the development of the position of Chairperson of multimember agencies and the law that has evolved in relationship to

that development.

It is well established that chairpersons are not the heads of Federal collegial bodies such as MSPB in a legal sense. It is important

and interesting to note that a consistent and unbroken series of

Department of Justice Office of Legal Counsel decisions has held

that, even when legislation provides that a collegial body’s chairperson ‘‘shall be the chief executive officer of the board and shall

exercise executive and administrative functions of the board,’’ that

such language does not encompass the substantive and policymaking functions of the body as prescribed by enabling statutes.

The OOC says the chairperson, in other words, superintends and

carries on the day-to-day activities necessary to effectuate the

board’s substantive decisions. He does not, absent some board approval such as an expression of expressed delegation by the board

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or the board’s acquiescence of the chairperson’s actions, make those

decisions by himself.

We have found no basis in law or practice for deeming the chair

of a collegial regulatory body as either a superior officer or the

head of the body in a legal sense. A commission like the MSPB

substantively acts only as a collegial body, with each member exercising one vote. A chairman’s exercise of the executive and administrative functions of such a body may be defined and limited by a

majority of such body.

Let me conclude then. It is arguable that the alterations suggested by these technical corrections would affect substantively the

overall scheme of the independence of the MSPB. By vesting budget preparation and submission authority solely in the chairman, together with the assertions by the chairman of the exclusive control

of MSPB powers vested in the Board by law, the collegial nature

of the Board and its political balance would be jeopardized.

With less need to negotiate with fellow Board members, the

Chair might be more aligned with the viewpoint of the President

who selected him or her. The ability to delegate substantive agency

functions to persons appointed by the chairman, including expenditure authority, may be seen as diminishing the heretofore presumed equality of the other members. Such authorities would appear to affect a significant change in the independent nature of the

Board.

Thank you.

[The prepared statement of Mr. Rosenberg follows:]

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Mr. DAVIS OF ILLINOIS. Thank you very much. We appreciate

your testimony.

Let me ask you, Mr. Rosenberg, are you saying a dual role for

the chairman may not be in the best interest of the Board or the

independence of the Board?

Mr. ROSENBERG. I wouldn’t characterize it as a dual role. I would

characterize it as a supervening role. If, in fact, what is happening

is that he consults with the members and then makes the decisions—and they are policy decisions—with respect to the budget

preparation and the budget submissions, that is a huge amount of

control that he has. As I read the legislative history and the reason

for creating it in 1978, this was supposed to be a collegial body that

was supposed to work together, and not setting up a single-person

agency.

Mr. DAVIS OF ILLINOIS. And so the Board should have their three

members then, and then they have somebody else processing their

work rather than the decisionmaking?

Mr. ROSENBERG. Well, it would be interesting to know if there is

acquiescence by the other two members. The statements of the

chairman appear to be that he has their acquiescence. One of the

difficulties is this problem, if it is a problem, has been addressed

by the Senate. It is before you. If nothing is done about it, there

is a possibility of an argument that Congress has acquiesced in this

subtle change in the nature of the Board.

Mr. DAVIS OF ILLINOIS. What should Congress be concerned

about when considering exempting the MSPB from compliance with

the Sunshine Act?

Mr. ROSENBERG. We have addressed that in the paper, and I will

defer to Mr. Hogue, who has studied this program question.

Mr. HOGUE. The act requires that collegial bodies, when they are

holding substantive meetings, comply with certain processes and

procedures, and MSPB, in their justification, indicated that they

would like exemption from this at the discretion of the Chair for

the purposes of their adjudicatory functions. But in a legislative

language that we were given to review, the section would allow the

chairman, in his or her sole discretion, to call a meeting of the

members of the Board without regard to Section 522.B, at which

members may jointly conducted or dispose of agency business. It

does not specify in that context the adjudicatory functions only.

In line with that, the act allows an exemption for adjudicatory

type meetings, and the agency has acknowledged that they would

be exempt under this.

I think that the difficulty that the agency has identified has to

do with moving between discussion of specific cases, which arguably would be covered under the exemption, and moving into

broader policy discussions that may be related to those cases. That

is one of the difficulties that they cite. And other agencies have

identified this as a difficulty when they are moving backward and

forward.

Some of the literature that I reviewed in the process of looking

at their proposal indicates that, based on case law, it could be argued that there is enough flexibility in the law, in the way it has

been interpreted, to allow an agency or a board like MSPB to occasionally venture into discussion of broader areas, as long as they

109

are not establishing new policy. So perhaps that would be a solution as an alternative to giving them an exemption.

They also argue that the Sunshine Act, having open meetings inhibits candid discussion, and this is also a common complaint that

comes from other agencies that are subject to the Sunshine Act.

There is some evidence that has been cited in the literature that

I have reviewed that indicates that candor perhaps has decreased

under the Sunshine Act; however, there also have been counter-arguments made that having open meetings might encourage members to be better prepared for meetings and also that it should be

incumbent on members, when they are serving in the public interest, to shed reluctance to speak candidly in open sessions.

That is what the literature that I have reviewed has said about

that.

As the chairman indicated earlier, as a practical matter the

Board is not holding the Sunshine meetings. Their decisionmaking

is through members’ staffs meeting to discuss and decide on these

issues.

I guess what I would say in conclusion in my analysis is that

there are difficulties with the Sunshine Act, but they are broader

than just the MSPB, and other agencies have found ways to adapt.

They may not be perfect, but that is how people have responded

to it.

Perhaps Congress will want to come back to it at some point to

resolve some of these issues.

Mr. DAVIS OF ILLINOIS. Although the flexibility may be present,

is it unwieldy in any kind of way for the Board to transition into

what might be called executive session when there is a need to

make decisions or when there is need to discuss sensitive issues?

Mr. HOGUE. Well, it may be. I don’t have examples to cite on how

other agencies have done that and whether it would be unwieldy.

The flexibility argument that I referred to before suggests that they

might be able to remain in closed session and discuss wider issues

as long as they are not making fresh policy, in which case they

would want to reopen the meeting.

I am merely saying this is an avenue that may merit further exploration by the agency.

Mr. ROSENBERG. In my youth I worked at the National Labor Relations Board on a member’s staff. That is an adjudicatory body,

you know, just like the MSPB. In discussions of cases, it was often

true and seemed natural at the time that the decision in a particular case might have an effect or might be moving toward one direction or another, and the members’ discussions of those possibilities

seemed a normal part of the discussion of an individual case, particularly an important one.

The five members of the board took part in it, seemed very comfortable. These were closed meetings, of course, under the exemption.

So my own personal experience is that what happens in those

meetings, you know, allows for a formative discussion, an informative discussion, too.

The real problem here is the proposed legislative language is so

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tion there, it might be used in the future much more broadly. It

is part of the problem of the centralization of control in the Chair.

Mr. DAVIS OF ILLINOIS. Bottom line, you really don’t see any particular reason why they should be exempt?

Mr. ROSENBERG. That is for the committee’s judgment, sir.

Mr. DAVIS OF ILLINOIS. Thank you, gentlemen. I don’t have any

further questions. I think Mr. Cummings was out, but thank you

very much. We certainly appreciate your testimony, appreciate

your being here, and the patience that you have displayed with us.

Mr. ROSENBERG. Thank you. It is a pleasure to be here.

Mr. HOGUE. Thank you very much.

Mr. DAVIS OF ILLINOIS. We will now hear from our third panel.

I want to thank all of them for their patience and willingness to

remain.

Our third panel is going to consist of Adam Miles, who is the

Legislative Representative for the Government Accountability

Project [GAP], a nonprofit, nonpartisan organization that supports

Government and corporate whistleblowers. Mr. Miles coordinates

GAP’s legislative campaign to restore genuine free speech protections for Government whistleblowers and is GAP’s primarily client

liaison with the U.S. Office of Special Counsel.

Ms. Natresha Dawson began her public service career at the age

of 17 as a stay-in-schooler. From June 25, 2005, until October 13,

2006, Ms. Dawson was employed by the Office of Special Counsel

as one of two paralegal specialists initially hired for the OSC’s

newly created customer service unit [CSU].

Welcome, and thank you.

Ms. Lara Schwartz, is the chief legislative counsel at the Human

Rights Campaign. She advocates against discriminatory practices

and policy initiatives that affect the everyday lives of gay, lesbian,

bisexual, and trans-gender people and their families. Prior to joining the Human Rights Campaign, Ms. Schwartz was associated

with the law firm of Gilbert Heintz and Randolph, LLP, where she

focused on legislative redistricting, voting rights, insurance litigation, and fair housing.

Thank you.

Ms. Beth Daley is the director of investigations at the Project on

Government Oversight [POGO]. She has worked for public policy

organizations in Washington, DC, for 15 years. She has conducted

POGO’s investigation into protections for homeland and national

security whistleblowers.

Thank you all so very much.

[Witnesses sworn.]

Mr. DAVIS OF ILLINOIS. The record will show that each witness

answered in the affirmative. Thank you very much.

Your statements are in the record and, of course, the green light

indicates that you have 5 minutes in which to summarize your

statement. The yellow light, 1 minute left. Red light, stop. We will

begin with Mr. Miles.

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STATEMENTS OF ADAM MILES, LEGAL REPRESENTATIVE,

GOVERNMENT ACCOUNTABILITY PROJECT; NATRESHA DAWSON, FORMER OFFICE OF SPECIAL COUNSEL EMPLOYEE

AND WHISTLEBLOWER; LARA SCHWARTZ, CHIEF LEGISLATIVE COUNSEL, HUMAN RIGHTS CAMPAIGN; AND BETH

DALEY, DIRECTOR OF INVESTIGATIONS, THE PROJECT ON

GOVERNMENT OVERSIGHT

STATEMENT OF ADAM MILES

Mr. MILES. Chairman Davis, thank you for inviting testimony

from GAP today.

GAP is a nonprofit, nonpartisan organization that supports whistleblowers, and a significant component of that work is oversight

of the U.S. Office of Special Counsel. From our perspective, this

hearing is long overdue. The Office of Special Counsel is in a crisis

of credibility and legitimacy from nearly every perspective, and

much more than what we heard in the first panel, I think. We will

get into some of that, and there is a lot more detail in the written

testimony.

Over the years, GAP has been one of OSC’s biggest cheerleaders,

as well as one of its harshest critics. Our testimony today provides

numerous specific examples of both positive and negative contributions that OSC has made to the merit system during Special Counsel Bloch’s tenure.

Despite a few notable exceptions, our underlying assessment has

to be that OSC is currently undermining, not promoting, its vital

merit system role.

Special Counsel Bloch’s track record of merit system violations

provides the most telling example for OSC’s decline under his tenure. Rather than promote free speech and other whistleblower protections within his agency, he has consistently demonstrated intolerance for the same rights that he is charged with enforcing in the

rest of the Government. Morale there is down, and many of the

seasoned professionals with proven track records of helping employees have left or been forced out. Mr. Bloch has politicized the

office to such an extent that even the good work being done there

is vulnerable to charges that OSC’s mission only comes into play

when that means serving the special counsel’s needs.

Having said all this, we have no doubt that the agency, and especially the remaining dedicated career staff, are fully capable of advancing the agency’s mission when they are given the opportunity.

The problem is not the professional career staff; it is a question of

priorities and leadership.

I want to be perfectly clear about that. The charges that have

been made against OSC relate specifically to Mr. Bloch and his

leadership, his mismanagement, and his retaliatory tendencies, not

to the career staff.

There remain a few important illustrations of the role OSC can

and should always play on behalf of concerned Government employees. Just recently, GAP client Richard Conrad, a Vietnam veteran and civilian mechanic with 25 years experience at the North

Island Depot, brought to OSC allegations about maintenance

breakdowns on fighter aircraft at North Island. The allegations

were serious, and OSC took them seriously. They demanded that

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the Navy Department investigate, and they did. They substantiated Mr. Conrad’s allegations, and now they are following

through on a reprisal complaint from Mr. Conrad, who is eligible

for retirement, to make sure that he gets some relief for 16 months

that he was harassed, isolated from the work force, and denied

overtime pay because of his whistleblowing.

Unfortunately, Mr. Conrad is the exception, or one of the few exceptions, and his experience should be the experience for all good

faith employees who have turned to OSC. Unfortunately, this level

of service has been practically unheard of under Mr. Bloch’s tenure.

The number of favorable actions that OSC has produced for whistleblowers—in other words, how many people is the agency actually

helping—those numbers dropped 60 percent since Mr. Bloch took

over the agency. And, despite claims that this number would increase in fiscal year 2006, the percentage of employees helped by

OSC that year for all whistleblower and other complaints dropped

to what is probably an all-time low of 21⁄2 percent.

The explanations put forth by OSC for this lack of productivity

continue to shift. Just recently, in response to questions at the Senate reauthorization hearing, Special Counsel Bloch stated that the

quality of whistleblower and other complaints was not as good, and

we struggled and scratch our heads to figure out, well, what can

we do given the low quality of complaints.

But this effort to scapegoat the reprisal victims after he has

abandoned them cannot withstand scrutiny. The truth is that for

every success story like Mr. Conrad’s, there are many more employees that were systematically turned away with inadequate explanation of their rights, who were not allowed to communicate with

the attorney assigned to their case, or were shifted internally and

then dismissed in order to cushion misleading claims about backlog

clearing measures.

Our written testimony adds much more detail on the process

OSC complainants are experiencing. To put it simply, the process

needs to change.

We have a number of recommendations that constitute a bill of

rights for the level of service, transparency, and accountability

every whistleblower should receive from OSC when they file a complaint there. GAP would be pleased to work with the subcommittee

staff to provide further bases and follow through on these recommendations.

I am happy to answer any questions along these lines. Thank

you very much.

[The prepared statement of Mr. Miles follows:]

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Mr. DAVIS OF ILLINOIS. Thank you very much for that testimony.

Ms. Dawson.

STATEMENT OF NATRESHA DAWSON

Ms. DAWSON. Good afternoon. Thank you.

I am not sure if Mr. Bloch purposely presented under oath an

untruth that he was unaware of my complaints. Mr. Bloch was

fully aware of my complaints. In fact, we submitted several documents to Mr. Bloch regarding the several complaints that I have

filed against the agency as an employee there.

One of the complaints detailed violations of the merit systems, as

well as violations of whistleblowers, and subsequent to that I was

given a gag order that specifically stated that I could not contact

Mr. Bloch at all or file any complaints, and if I did I would be removed from public services. That was in a detailed letter submitted

to me, which was also submitted.

I was hired into the Office of Special Counsel to staff the new

customer service unit that Mr. Bloch created to answer congressional critics over 2 years ago. As a staff there, I witnessed, although the agency was supposed to protect Federal employees, I

witnessed the outright hostility and contempt against people who

alleged prohibited personnel practices, and especially retaliation for

whistleblowing. These employees were not calling to make trouble,

they were not troublemaking, seeking attention; these were honest

employees seeking help from an agency who was supposed to help

them, but did not receive the help they deserved.

On top of the complainants being violated, their rights being violated, them being referred to as crazies, there were extensive violations to the merit systems, and that included downgrading positions without any type of adverse action or any type of performance

application, hiring employees without vacancy announcements, including a FOIA specialist with no prior Government experience of

FOIA experience.

In conclusion, with all of that we talked to Mr. Bloch about these

internal repressions within the OSC. Mr. Bloch became extremely

upset, and his all-out attack against me through his management

was to have me removed not only from the Office of Special Counsel but as well as from public services, period.

Thank you.

[The prepared statement of Ms. Dawson follows:]

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Mr. DAVIS OF ILLINOIS. Thank you very much.

Ms. Schwartz.

STATEMENT OF LARA SCHWARTZ

Ms. SCHWARTZ. Chairman Davis, thank you for giving me the opportunity to speak on behalf of the Human Rights Campaign and

our grassroots force of more than 700,000 members and supporters.

Merit-based employment is a core American value, yet discrimination based upon sexual orientation continues to be pervasive in

this country, where gay and lesbian workers can be fired in 31

States because of who they are and not their job performance.

The Federal Government is our Nation’s largest employer and

ought to set an example of fairness and take a stand against discrimination. In fact, Federal workers are protected from sexual orientation discrimination by 5 U.S.C. section 2302.B.10. For decades

this law has protected gay and lesbian civilian employees. In fact,

until recently the Office of Special Counsel has consistently enforced this law, even providing Web site and written materials to

inform Federal employees of their rights.

Every prior OSC had, OPM has, and even Reagan administration

Assistant Attorney General Theodore Olson have concluded in interpreting this law that sexual orientation is covered. However, the

current special counsel, Scott Bloch, has not only ceased to enforce

this statute, but he has actually contradicted its previously undisputed interpretation and claimed without basis that the law does

not apply. As a result, Federal civilian employees are being denied

employment protections. Mr. Bloch’s actions are legally groundless

and contrary to well-settled law. In fact, as recently as today

Chairman McPhie stated that Mr. Bloch’s justifications and legal

analysis surrounding this law is completely groundless, and Mr.

Bloch’s analysis of the MSPB’s decisions was inaccurate.

The Government has explicitly recognized that the statute covers

sexual orientation since 1980, when then Director of the OPM,

Alan Campbell, wrote a memorandum advising that applicants and

employees are to be protected against inquiries into or actions

based upon non-job-related conduct, such as religious, community,

or social affiliations or sexual orientation.

As I have stated, this position has since been reaffirmed by subsequent OPM Directors under both parties.

Prior to Mr. Bloch’s tenure as special counsel, OSC also interpreted this provision similarly. In fact, in a well-publicized case

settled by OSC in 2003, OSC’s investigation revealed that a manager had declined his selected best qualified applicant for a position

because the manager was overheard to have said he was a—derogatory comment. In that case, OSC obtained monetary damages for

the job applicant and the manager was removed from her supervisory position.

Within weeks of his taking office in January 2004, Mr. Bloch

abruptly ordered the removal of references to OSC’s jurisdiction to

enforce sexual orientation discrimination protection from OSC’s

Web site, including information about the recently settled case. He

did so without conducing a legal analysis, consulting OPM or any

other executive agency, or providing an explanation. He stated that

his office would conduct a legal review of jurisdiction to enforce

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these claims, even though this legal issue had been clearly settled

for over 20 years.

When Members of Congress objected, even the White House

issued a statement that Federal policy prohibits discrimination, but

still Mr. Bloch remained determined to roll back civil rights. He

has attempted to justify his actions citing cases that are inapposite.

I refer to the testimony of Chairman McPhie and also to my written testimony submitted into the record explaining why his legal

analysis is inaccurate.

Mr. Bloch’s refusal to enforce the law has had real-world consequences. For instance, he refused to investigate the complaint of

Michael Levine, a 32-year veteran of the Forest Service who alleged that he was subjected to a 14-day suspension in retaliation

for engaging in whistleblowing and based on sexual orientation discrimination. In spite of compelling evidence, the OSC wrote a letter

dismissing his claim, stating that there was no evidence of discrimination for conduct, and therefore no basis for an investigation.

The Human Rights Campaign is gravely concerned that Mr.

Bloch has single-handedly stripped thousands of Federal workers of

protections that Congress conferred upon them decades ago. Although it is clear that his actions lack any legal justification, the

real-world consequences are huge. They also point to the need for

every American to have a law addressing workplace discrimination.

Fortunately, many employers have come to recognize that basing

employment decisions on merit rather than sexual orientation is a

wise business policy, enabling them to attract the best talent and

to demonstrate a commitment to fairness. That is why nearly 90

percent of the Fortune 500 corporations have non-discrimination

policies covering sexual orientation. The Federal Government

should not lag behind the top employers in its policies and practices, and it should certainly not fail to enforce laws that have been

in force for decades.

I thank you for the opportunity to present our concerns with Mr.

Bloch’s performance. It is imperative that Federal nondiscrimination protections be restored.

On behalf of the Human Rights Campaign, I strongly urge this

subcommittee either to compel Mr. Bloch and the OSC to follow the

law, or to ensure that Mr. Bloch is replaced with a special counsel

who will do so.

[The prepared statement of Ms. Schwartz follows:]

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Mr. DAVIS OF ILLINOIS. Thank you very much.

We will go to Ms. Daley.

STATEMENT OF BETH DALEY

Ms. DALEY. Chairman Davis, thank you for inviting me here to

testify.

My name is Beth Daley, and I am director of investigations at

the Project on Government Oversight [POGO]. POGO is an independent nonprofit that has for more than 25 years investigated, exposed, and helped to remedy corruption and other misconduct in

the Federal Government. Because of POGO’s role as a watchdog,

I hear from many whistleblowers who are seeking justice from the

Office of Special Counsel and the Merit Systems Protection Board.

I am sad to report that very few of these whistleblowers that I hear

from find the help that they are seeking.

Although the House of Representatives recently passed the Whistleblower Protection Act of 2007 as an effort to remedy the situation, I fear that OSC and MSPB will continue to fail because they

are small, weak agencies inside of an executive branch which has

been perpetually hostile to whistleblowers.

As we approach the 30th anniversary of these institutions, it is

time for Congress to consider if it is time to end this experiment

and if it has failed.

Since 1980, numerous reports have documented the failures of

the OSC and MSPB. For instance, the GAO reported in 1985 that

in its first 5 years the OSC and MSPB had gained corrective or disciplinary action in only 16 of the estimated 1,500 whistleblower

cases which had been closed. In other words, just 1 percent.

A Senate report later noted that in its first 10 years OSC had

not brought a single correction action case on behalf of the a whistleblower to the MSPB. That is in 10 years.

In 1989 and 1994 the Congress attempted to remedy the situation by strengthening whistleblower protections, but those reforms

ultimately failed again.

In the past 10 years, favorable actions obtained by the OSC for

whistleblowers and others has declined. In 2005 and 2006, only

about 21⁄2 percent of OSC cases resulted in a favorable action for

the employee.

The total number of favorable actions obtained for whistleblowers

declines considerably from 120 in 1995 to just 40 in 2006.

Finally, the OSC continues to issue a minuscule number of enforcement actions against managers who engage in retaliation, on

average between just zero to five total annually.

So with odds like these, it is easy to see why whistleblower retaliation continues to be a deeply entrenched practice throughout the

Federal Government. Current leaders at the OSC have brought the

agency to a point where it has, itself, become mired in a series of

scandals that have undermined its credibility as the Federal Government’s protector of whistleblowers.

In early 2004, OSC insiders blew the whistle on Mr. Bloch’s refusal to enforce anti-discrimination statutes. Shortly thereafter,

Mr. Bloch was quoted in a Federal Times article saying, ‘‘It is unfortunate we have a leaker or leakers in our office who went to the

press rather than coming to me.’’

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On the heels of this interview, Mr. Bloch sent an e-mail to his

staff directing that any official comment on or discussion of confidential or sensitive internal agency matters with anyone outside

of OSC must be approved in advance by an official in his immediate Office of Special Counsel.

The e-mail wasn’t a legal gag order and exemplified the kind of

communication which Congress has annually determined cannot be

issued by executive branch officials using Federal funds.

A complaint filed against OSC by anonymous employees and

public interest groups, including mine, resulted in an investigation

assigned to the OPM Inspector General, which has not yet been

completed, yet OSC managers have inappropriately attempted to

interfere with this investigation and have conducted themselves in

a manner that is intimidating to employees. Mr. Bloch has even

contemplated requiring employees interviewed in the investigation

to submit affidavits reporting on their discussions with investigators.

It is time for Congress to conduct a series of vigorous oversight

activities aimed at evaluating the OSC’s and the MSPB’s performance, determining why these agencies have failed, and analyzing

whether their activities could be better performed by other Government bodies.

As a start, it would be appropriate for this committee to commission a series of GAO and Congressional Research Service studies,

something that has not been done on a large basis since the mid1990’s. In conducting this analysis, I would encourage the committee to consider what role the legislative branch could play in assisting whistleblowers. Congress should consider whether taking the

OSC’s budget and moving it into a congressional agency tasked

with conducting investigations into whistleblower allegations might

be a more effective expenditure of funds. Half of the whistleblowers’ battle against retaliation is gaining a fair review of his or

her concerns, and a congressional agency would be better suited to

this task, given its independence from the political constraints inherent in the executive branch.

My other recommendations are in my written testimony.

Again, thank you for inviting me to testify here today.

[The prepared statement of Ms. Daley follows:]

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Mr. DAVIS OF ILLINOIS. Thank you very much.

Neither one of you has expressed much confidence in OSC. Of

course, Ms. Daley, you had a number of recommendations relative

to what you think would be helpful to change the effectiveness of

the agency, but let me ask the other three of you what would you

recommend that we do or attempt to do to change the effectiveness

of OSC? We will just begin with you, Mr. Miles.

Mr. MILES. We have spent a lot of time thinking about this, you

know. It is sort of what we do. You know, we scratch our heads,

too. The thing is that the statutes are pretty good. I mean, if there

was somebody there who was able to implement them as they are

written, it would work pretty well. So it really is a question of leadership and priorities.

Having said that, there are, you know, certain basic levels of

service that we feel everyone deserves that goes to OSC, and sort

of a level of transparency and a level of sort of investigative procedure that everyone should get, and that is in more detail in our testimony. I could go through it a little bit more if you would like, or

I can stop.

Mr. DAVIS OF ILLINOIS. Well, we will get it.

Mr. MILES. OK.

Mr. DAVIS OF ILLINOIS. Ms. Dawson.

Ms. DAWSON. From my experience within the agency, I believe

that there should be a special counsel who would respect not only

the laws of our country but the employees of this country, as well.

I believe that, just from observing the activities inside the OSC,

that Mr. Bloch just doesn’t have a respect for the Federal work

force, period. I don’t know where that lack of respect comes from,

but, as I witnessed today, it is not only against the Federal work

force employees, but it is also against his own management. So I

just believe that we need a special counsel who is going to respect

the laws of this country, respect the employees of this country, as

well as respect its own management.

Mr. DAVIS OF ILLINOIS. Ms. Schwartz.

Ms. SCHWARTZ. Yes. Thank you. In a sense I would say that the

laws on the books are good. At least we saw in the preceding couple

of decades that section B.10 was adequate. However, when one individual can single-handedly play fast and loose with the civil

rights of the entire Federal work force, as Mr. Bloch has done, it

shows the fragility of that law.

So I would say, first and foremost, our concerns are with Mr.

Bloch’s intentional rolling back of civil rights without legal basis or

justification, and that he be either forced to apply the law, which

has been attempted in the past and failed, or be replaced.

Second, I do believe that the fragility of these workplace protections points yet again to the importance of Federal workplace nondiscrimination protections for all Americans.

Mr. DAVIS OF ILLINOIS. Ms. Daley, let me ask you, what is it that

OSC does well?

Ms. DALEY. Well, I have to say it appears that they are doing a

great job on the USERRA cases. You know, Mr. Bloch was claiming

that 25 percent or so of those cases are gaining a favorable action.

In my mind it makes me wonder why he can’t have such a high

rate of favorable actions for whistleblowers.

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Mr. DAVIS OF ILLINOIS. If the leadership is as bad as you all suggest, how do you think he has managed to remain? I don’t think

I have ever heard as much indictment of an agency that focused

so directly on the leadership as what I am hearing, and I am just

wondering why do you think he is still there.

Ms. DALEY. Well, I think the White House is waiting for this

OPM IG investigation to be completed to determine, you know, to

get some verification of some of the concerns that have been raised.

Unfortunately, Mr. Bloch in the interim has inserted himself into

a variety of other investigations which, in many ways, have compromised the White House’s ability to act aggressively to root him

out, if that is what they choose to do.

Mr. DAVIS OF ILLINOIS. Anyone else?

Ms. SCHWARTZ. He is an executive appointee who serves at the

pleasure of the President, so, you know, he keeps his job at the will

of the person who appointed him.

Mr. MILES. And he actually can’t be removed at will, he has to

be removed for cause, for neglect of duty or malfeasance, which we

believe there is plenty of evidence of. But Beth is probably right

that they are waiting for the results of the PCIE investigation, and

even then, you know, there has been some, again, like our testimony suggests, that even the good work that is being done is so

politically suspect at this point, because opening up an investigation of the White House as you are being investigated by the White

House smells.

Mr. DAVIS OF ILLINOIS. Let me just ask you, Ms. Dawson, in your

particular instance, what were your cases about?

Ms. DAWSON. They were discriminatory on the basis of sex, as far

as gender, as well as illness. When I was sick they spoke with my

doctor and they understood that I was out under doctor’s care.

They retroactively AWOLed me. In other words, I was in a paid

status. They went back in time and took me out of the paid status

and AWOLed me. They never gave me a minimum due process of

law to the AWOL and they never changed the AWOL after speaking with my doctor and my doctor giving them a medical report

stating that she had me out.

This came as a result of the internal disclosures of mistreating

and abusing employees’ rights, as well as the whistleblowers who

called in to talk with me to have complaints filed and to be helped,

and they were not receiving help.

Mr. DAVIS OF ILLINOIS. In the reauthorization process, as we go

through the request to reauthorize, are there changes that any of

you perhaps can think of relative to how the agencies, either one,

are structured that might have some positive impact on the way in

which they function?

Ms. DALEY. I think there are two things that we would love to

see. The first one is to clarify that investigations into the special

counsel and the deputy special counsel, that the President’s Council on Integrity and Efficiency be authorized to undertake those investigations. The reason why is that OSC is a member of the PCIE

and the Integrity Committee of the PCIE has a process already established for conducting similar investigations of IG offices. So

there is already a well-developed channel, and there was a lot of

confusion about where the complaint that was filed by employees

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and Human Rights Campaign and GAP and POGO, there was a lot

of confusion about who should undertake that investigation. It took

6 months of the ball being thrown around before PCIE finally commissioned the OPM IG. That seems like a very simple thing that

should be done.

Adam in his testimony made an excellent suggestion, which is

that perhaps there should be some qualifications that are required

for the special counsel to try and get a higher quality type of leader

running the agency. I think that is an excellent suggestion and I

commend Adam Miles for making it.

Mr. MILES. Thanks. There are a couple of others that may make

a difference, and one of them was in OSC’s regulations they are allowed to put some regulations down and not others. It is discretion

on their part. Maybe it would be a little bit to authoritarian on

Congress’ part, but to mandate them to put down in their regulations how they conduct investigations would be a good idea. Then

the whistleblower could look at what the regulations say and decide whether or not that was actually followed through on. That

could really help.

And the other may be a little bit more of a stretch, but one that

could really make a difference would be to relax the standards a

little bit, but allow people who sought relief in some capacity with

the Office of Special Counsel to be able to challenge in district

courts whether or not the office met its mandatory duties during

that process, and relaxed standards, because there has been some

case law on this, but mandamus actions have been too difficult, and

so reducing the standards would allow people to make sure that

the OSC is following through on its duties could help.

Mr. DAVIS OF ILLINOIS. Thank you very much. I don’t have any

further questions.

Ms. Norton, do you have any questions?

Ms. NORTON. Yes, I just have a couple of questions, Mr. Chairman.

I would be interested in your views about Mr. Bloch, the

wholesalely negative view of this office, if one looks objectively at

the record. Then we look at the Lurita Doan case. How do you account for the fact that investigation seems to—leave aside the

issues which nobody can condone for which he deserves to be

sharply criticized should there have been a leak at his hand or

with his knowledge, or, for that matter, disparaging remarks that

were inappropriate. Leaving aside those notions, if you look at the

strong way in which he went at a case which many people consider

to be politically risk and particularly so, how do you account for the

difference between the handling of that matter and the apparent

record going the opposite way rather consistently otherwise?

Mr. MILES. Unfortunately, the answer to that, I mean, it sounds

bad, but it is the 2006 elections. I mean, his whole track record

prior to that, he has been charged with politicized enforcement of

the Hatch Act the other way, but then Congress changed hands,

and he has been under a lot of scrutiny since he has been in office,

and so to appease, ingratiate himself to a Democratically controlled

Congress, there was an excellent investigation that was done by

the Hatch Act unit. He gave them the authority to do that.

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The problem is—and this has been consistent behavior by Mr.

Bloch—that he undermines the good work that his career people

are doing by leaving himself vulnerable to charges of political activity. Nobody can defend the actions that Lurita Doan did. I don’t

have any expertise to challenge the investigation that the Hatch

Act unit did. I mean, I am sure it was a quality investigation. But

he undermined that investigation by leaking it to the press and everything else that has happened today.

Ms. NORTON. If he did leak it to the press.

Mr. MILES. If he did. Correct. Yes. I mean, that is a tough one,

too, because if it was somebody in his office who felt like that results of that investigation were going to be suppressed or something, then that would be a whistleblower, right? And then that

person——

Ms. NORTON. The results of that investigation could hardly have

been suppressed.

Mr. MILES. No, that is what I am saying. But if it had to be

somebody in the office that would have leaked it——

Ms. NORTON. If they did make those kind of findings, then he

would have to leak them that he had made those kind of findings

and keep them in house?

Mr. MILES. I don’t know. You know, maybe so. That is what I am

saying. It is very speculative, but——

Ms. NORTON. That is the first explanation made. In other words,

you have seen the what you are saying the regime change may

have brought a change in conduct on the part of Mr. Bloch?

Mr. MILES. Unfortunately.

Ms. NORTON. The rest of you think that there have been changes

subsequent to the change in control of Congress?

Ms. SCHWARTZ. Well, there has been no change with regard to

the sexual orientation discrimination.

Ms. NORTON. Say that again.

Ms. SCHWARTZ. There has been no change with regard to enforcing sexual——

Ms. NORTON. Not only that; he under oath, under oath, stood

there and allowed as how-to decision said exactly what they did not

say, and was refuted on the spot by the MSPB witness.

Ms. SCHWARTZ. And I don’t think that undermines what Mr.

Miles said at all. I think that he is so entrenched in his position,

has remained entrenched in this position for 3 years, and, you

know, he feels that he has a safety zone or not to take this position. I can’t speculate on that, but he has remained entrenched further and further, as you saw, even contradicting the chairman

whose decisions he was citing for his own position.

Ms. NORTON. It really goes to what we fear most by fact finders;

that is, ideological fact finding here was not even fact finding, it

was changing the law single-handedly in ways that counsel could

not possibly have suggested, and now continuing to justify that and

saying, as he did here today, that he did not intend to change law.

In light of that, I note that the former ranking member, now

chairman of the committee, did, in fact, file a bill—and all of us

were on it—in 2005, not long after this change was made. We could

not have expected that to be brought to the House. Would you suggest that the appropriate thing to do now would be to come forward

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with that bill in order to return to the interpretation that stood for

years?

Ms. SCHWARTZ. This committee, if this subcommittee determines

that is what is necessary to have the law enforced correctly, then

that is what it takes.

Ms. NORTON. What are you suggesting might be our alternatives?

Ms. SCHWARTZ. A possible alternative, you know, I know that

pending the OPM investigation that is going very slowly of Mr.

Bloch, if he is removed for cause and a more worthy successor replaces him, but yes, a clarification of the law would certainly leave

no shadow of doubt.

Ms. NORTON. I appreciate what you are saying, but it is a bit

more radical. You think that perhaps a more radical remedy may

be forthcoming, but may I advise you that we would then have

nothing to say about who would be appointed unless there was a

new President.

Ms. SCHWARTZ. Yes. We would suggest a Federal nondiscrimination law applying to all employees, but yes, clarifying the civil service laws to make sure that there is no way any special counsel, regardless of his ideology or her ideology, can flout the laws is certainly preferable to allowing one person to play fast and loose.

Ms. NORTON. Well, having him removed wouldn’t do a thing

about the law for the moment. I mean, I can understand your need

for retaliation here, given the kind of retaliation that has taken

place with Federal employees and others, but may I remind you

this is the Congress of the United States, and there are three

branches of Government, and we don’t have to get somebody kicked

out of office in order to get the law returned to what it has been

for a long time. Maybe that is your concern, but we are going to

kick this administration out of office, as far as I am concerned, in

2008, and one wonders whether the gay/lesbian/trans-sexual community should have to wait to see whether he is penalized, No. 1,

and, No. 2, whether we should just sit here and say that is the only

remedy.

Ms. SCHWARTZ. No, that wasn’t my intention to state that.

Ms. NORTON. I am sure it wasn’t.

Ms. SCHWARTZ. But that the law, you know, that a remedy come,

you know, soon so that——

Ms. NORTON. Look, you have every reason to say what you said.

Ms. SCHWARTZ [continuing]. Everyone is protected.

Ms. NORTON. In your position, if I had had an administrative official to single-handedly deprive me of my rights, I would want

more than a law changed; I would want him changed. So it is perfectly understandable what you said, but we have an obligation to

move forward to protect every Federal employee, including employees who need protection based on their sexual orientation.

I thank you for your testimony and I thank all of you for really

important testimony as we look at the record of the Office of Special Counsel.

If I may, on behalf of myself and the chairman and other members of the committee, I want to thank you for waiting so long to

testify to this important testimony to get on the record, and because the chairman may want to sign off on his own, I now defer

to the distinguished Chair of the subcommittee, Mr. Davis.

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Mr. DAVIS OF ILLINOIS. Well, thank you very much.

Let me thank each one of you for your testimony and for the insight that you have displayed, the recommendations and suggestions that you have given to us. I think that your testimony is

going to be very helpful as we try and evaluate and re-evaluate the

situation, so I thank you very much.

It has been a long afternoon, but a very productive one, and we

will adjourn the meeting.

Mr. MILES. Thank you.

Ms. DAWSON. Thank you.

Ms. SCHWARTZ. Thank you.

Ms. DALEY. Thanks.

[Whereupon, at 5:20 p.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Danny K. Davis follows:]

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