<DOC>
[108th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:87869.wais]
INSTILLING AGILITY, FLEXIBILITY AND A CULTURE OF ACHIEVEMENT IN
CRITICAL FEDERAL AGENCIES: A REVIEW OF H.R. 1836, THE CIVIL SERVICE AND
NATIONAL SECURITY PERSONNEL IMPROVEMENT ACT OF 2003
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
H.R. 1836
TO MAKE CHANGES TO CERTAIN AREAS OF THE FEDERAL CIVIL SERVICE IN ORDER
TO IMPROVE THE FLEXIBILITY AND COMPETITIVENESS OF FEDERAL HUMAN
RESOURCES MANAGEMENT
__________
MAY 6, 2003
__________
Serial No. 108-25
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
87-869 PDF
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California
JOHN SULLIVAN, Oklahoma C.A. ``DUTCH'' RUPPERSBERGER,
NATHAN DEAL, Georgia Maryland
CANDICE S. MILLER, Michigan ELEANOR HOLMES NORTON, District of
TIM MURPHY, Pennsylvania Columbia
MICHAEL R. TURNER, Ohio JIM COOPER, Tennessee
JOHN R. CARTER, Texas CHRIS BELL, Texas
WILLIAM J. JANKLOW, South Dakota ------
MARSHA BLACKBURN, Tennessee BERNARD SANDERS, Vermont
(Independent)
Peter Sirh, Staff Director
Melissa Wojciak, Deputy Staff Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Philip M. Schiliro, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on May 6, 2003...................................... 1
Text of H.R. 1836................................................ 6
Statement of:
Light, Paul, director, Center for Public Services, the
Brookings Institution; Bobby Harnage, Sr., national
president, American Federation of Government Employees;
Colleen Kelley, president, National Treasury Employees
Union; and Mildred L. Turner, member, U.S. Department of
Agriculture Federal Managers Association................... 222
O'Keefe, Sean, Administrator, National Aeronautics and Space
Administration; and William H. Donaldson, chairman,
Securities and Exchange Commission......................... 188
Wolfowitz, Paul, Deputy Secretary, Department of Defense;
General Peter Pace, vice chairman of the Joint Chiefs of
Staff, Department of Defense; David Chu, Undersecretary of
Defense; Admiral Vern Clark, Chief of Naval Operations,
USN; and Kay Coles James, Director, Office of Personnel
Management................................................. 100
Letters, statements, etc., submitted for the record by:
Davis, Chairman Tom, a Representative in Congress from the
State of Virginia, prepared statement of................... 4
Davis, Hon. Danny K., a Representative in Congress from the
State of Illinois, prepared statement of................... 183
Donaldson, William H., chairman, Securities and Exchange
Commission, prepared statement of.......................... 208
Harnage, Bobby, Sr., national president, American Federation
of Government Employees, prepared statement of............. 239
Hoyer, Hon. Steny, a Representative in Congress from the
State of Maryland, prepared statement of................... 118
James, Kay Coles, Director, Office of Personnel Management,
prepared statement of...................................... 111
Kelley, Colleen, president, National Treasury Employees
Union, prepared statement of............................... 264
Light, Paul, director, Center for Public Services, the
Brookings Institution, prepared statement of............... 225
Maloney, Hon. Carolyn B., a Representative in Congress from
the State of Maryland:
Article dated May 6, 2003................................ 162
Followup questions and responses......................... 169
Prepared statement of.................................... 166
O'Keefe, Sean, Administrator, National Aeronautics and Space
Administration, prepared statement of...................... 191
Ruppersberger, Hon. C.A. Dutch, a Representative in Congress
from the State of Maryland, prepared statement of.......... 314
Turner, Mildred L., member, U.S. Department of Agriculture
Federal Managers Association, prepared statement of........ 282
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 95
Wolfowitz, Paul, Deputy Secretary, Department of Defense:
Followup questions and responses............ 127, 134, 140, 149
Prepared statement of.................................... 104
INSTILLING AGILITY, FLEXIBILITY AND A CULTURE OF ACHIEVEMENT IN
CRITICAL FEDERAL AGENCIES: A REVIEW OF H.R. 1836, THE CIVIL SERVICE AND
NATIONAL SECURITY PERSONNEL IMPROVEMENT ACT OF 2003
----------
TUESDAY, MAY 6, 2003
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room
2154, Rayburn House Office Building, Hon. Tom Davis (chairman
of the committee) presiding.
Present: Representatives Tom Davis of Virginia, Jo Ann
Davis of Virginia, Platts, Miller of Michigan, Murphy, Turner
of Ohio, Janklow, Blackburn, Waxman, Kanjorski, Maloney,
Kucinich, Davis of Illinois, Tierney, Clay, Watson, Van Hollen,
Ruppersberger, Norton, and Cooper.
Also present: Representative Hoyer.
Staff present: Peter Sirh, staff director; Melissa Wojciak,
deputy staff director; Keith Ausbrook, chief counsel; Ellen
Brown, legislative director and senior policy counsel; Robert
Borden, counsel/parliamentarian; David Marin, director of
communications; Scott Kopple, deputy director of
communications; Mason Alinger, Drew Crockett, and Edward Kidd,
professional staff members; Teresa Austin, chief clerk; Joshua
E. Gillespie, deputy clerk; Jason Chung, legislative assistant;
Brien Beattie, staff assistant; Phil Barnett, minority chief
counsel; Christopher Lu, minority deputy chief counsel; Tania
Shand and Denise Wilson, minority professional staff members;
Earley Green, minority chief clerk; Jean Gosa, minority
assistant clerk; and Cecelia Morton, minority office manager.
Chairman Tom Davis. The committee will come to order. Good
morning, and thank you for coming.
The purpose of today's hearing is to discuss H.R. 1836, the
Civil Service and National Security Personnel Improvement Act,
which includes civil service reform proposals that have been
put forward by the Department of Defense, the National
Aeronautics and Space Administration, and the Securities and
Exchange Commission, several governmentwide civil service
provisions and language authorizing the creation of a human
capital performance fund.
Last month, Armed Services Committee Chairman Duncan Hunter
and I introduced H.R. 1836, the Civil Service and National
Security Personnel Improvement Act, which pulls together these
personnel flexibility proposals that have been circulating for
some time into one comprehensive civil service reform package.
The purpose of today's discussion is to evaluate this
legislation and identify possible areas of concern that we can
address in moving forward with this legislation in committee.
As you know, the committee is scheduled to meet again
tomorrow morning to consider this legislation, so it is
particularly important that Members address their questions and
concerns at this time.
One of the most significant elements of this legislation is
the National Security Personnel System proposal for the
Department of Defense. This proposal authorizes the Secretary
of Defense, jointly with the Director of the Office of
Personnel Management to establish a human resources management
system that is flexible, contemporary, and in conformance with
the public employment principles of merit and fitness set forth
in Title 5 of the United States Code.
However, the legislation would provide the Secretary of
Defense the flexibility to create a system that is not confined
by some of the more prescriptive provisions of Federal
personnel policy that have been built up over the years. Last
year's debate on the creation of a Department of Homeland
Security made it clear that the decades old system of hiring,
firing, evaluating, promoting, paying and retiring employees
was not appropriate for the new Department of 170,000 civilian
personnel.
To name just a few examples, it takes an average of 5
months to hire a new Federal employee, 18 months to fire a
Federal employee. Pay raises are based on longevity rather than
performance, and the protracted collective bargaining process
set up in Title 5 can delay crucial action for months, and in
some cases years.
On top of all of that, the vast majority of Federal
employees themselves recognize that dealing with poor
performers is a serious problem in their agencies. If this
decades old civil service system is inadequate for a department
of 170,000 employees, whose mission is to protect the Nation
against attacks, it hardly makes sense to confine a Department
of over 600,000 civilian employees, whose mission is to protect
the national security of this country, to a civil service
system that was put in place in the 1950's.
To make matters worse, it appears that the Department of
Defense has determined it's military and contract work forces
are more agile, effective and reliable than its 600,000-strong
civilian work force. In fact, as of a week ago, there were
8,700 contractor employees supporting Operation Iraqi Freedom,
as opposed to 1,700 Federal civilian employees. In other words,
contractors represented 83 percent of the work force in Iraq.
To me, that is unacceptable.
The legislative proposal that was put forth by the
administration to establish a new civil service system for the
DOD is mirrored closely on the language that Congress provided
to the Department of Homeland Security in establishing its
human resources management system. I believe it is ambitious,
it is a reasonable proposal for DOD, a Department that has
decades worth of experience in personnel and work force policy,
and has had a number of trial policies that they have put in
place.
In addition to the almost year-long debate in Congress over
the same human resources management system proposal during
Homeland Security debate last year, this legislation has been
the subject of hearings over the past 2 weeks, and Members have
raised a number of important issues that we hope to address in
today's hearing.
H.R. 1836 also includes several governmentwide civil
service reforms, ranging from a modification of the student
loan repayment authority to a change in the frequency of
cabinet secretary pay periods. The most significant provision
in this section, in my opinion, is language from the
administration that would correct a long-standing issue
regarding overtime pay for Federal employees.
In addition, the legislation includes language that the
Financial Services Committee marked up earlier this year and
would streamline the hiring process for accountants,
economists, and examiners at the Commission.
Hiring has been a longstanding problem at the Commission.
And with the growth of the SEC that is mandated by the
Sarbanes-Oxley Act, the SEC is faced with hiring close to 1,000
new staffers in the coming years. Both the SEC and the National
Treasury Employees Union support this provision. I have asked
them both to come before us today to discuss this issue.
The bill also provides a number of personnel flexibilities
for National Aeronautics and Space Administration, provided
that OPM approves the work force plan developed by the NASA
Administrator.
This language would provide the flexibility to NASA in
recruiting and retaining a top-notch work force that will help
shape the future of space exploration; coordinating with the
private sector in advancing new technology and ideas, and in
attracting the best and brightest in crafting its Federal work
force.
Finally, the legislation includes an authorization of a
``human capital performance fund,'' which is based on the
proposal by the President in his fiscal year 2004 budget
submission to Congress. The purpose of the funds is to offer
Federal managers a tool to ``incentivize'' agencies' highest
performing and most valuable employees. Coming up with new and
innovative ways with which to motivate employees will forever
be a challenge for a bureaucracy as large as the Federal
Government, and I applaud the administration's efforts to
attempt to address the issue.
I look forward to a meaningful and substantive debate on
the civil service issue that is raised by the proposed
legislation. We have assembled before us today an excellent
panel of witnesses. I look forward to working with them and the
Members of this committee, from both sides as we move forward
with this legislation. I welcome all of the witnesses to
today's hearing. I look forward to their testimony.
[The prepared statement of Chairman Tom Davis and the text
of H.R. 1836 folows:]
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Chairman Tom Davis. I would now recognize the distinguished
ranking member, Mr. Waxman, for his opening statement.
Mr. Waxman. Thank you very much, Mr. Chairman. I would like
to thank you for holding this hearing. And I too am looking
forward to the testimony of our witnesses.
The Bush administration's proposal to rewrite the rules for
civilian employees at the Department of Defense is breathtaking
in its scope and implications.
We have delayed the markup of the proposal twice, and that
has been helpful for Members, staff and outside groups to try
to understand this proposal.
Nevertheless, we are working at a breakneck pace on a bill
that will directly affect almost 700,000 civilian employees at
the Defense Department.
Now, why, you might ask, are we doing this? No one seems to
know. At a subcommittee hearing last week, I asked
Undersecretary of Defense, David Chu, how the current personnel
system had hindered DOD's war efforts in Iraq. He wasn't able
to give me any examples.
When Dr. Chu was asked whether Secretary Rumsfeld would
consider delaying consideration of the bill, Dr. Chu pointed
to, ``the 3 weeks it took our troops to get from the Kuwait
border to Baghdad.''
Dr. Chu added that the Secretary, ``is not someone who is
patient with a long indecisive process.''
In other words, now that the Defense Department has marched
through Iraq in 3 weeks, it intends to do the same with
Congress.
I might understand this better if we at least knew what DOD
was going to do with the enormous flexibilities that it is
seeking, but we have virtually no idea.
Basically, the DOD proposal is nothing more than a blank
check. DOD is asking to be exempted from 100 years of civil
service law, laws enacted specifically to prevent a patronage
system. Yet, the Department isn't telling us how it is going to
replace these laws. That is not the right way to deal with one
of the most sweeping civil service reforms in history.
When David Walker, the Comptroller General, testified last
week, he said he had serious concerns about giving DOD this
broad authority. He explained, ``unfortunately based on GAO's
past work, most existing Federal performance appraisal systems,
including a vast majority of DOD's systems are not currently
designed to support a meaningful perform-based based pay
system.'' That hardly inspires confidence for what DOD might do
if we give them this authority.
At the last hearing, I read a quote from Tom Freidman, a
columnist with the New York Times. And Mr. Friedman said, ``Our
Federal bureaucrats are to capitalism what the New York Police
and Fire Departments were to 9/11, the unsung guardians of
America's civic religion, the religion that says if you work
hard and play by the rules, you get rewarded and you won't get
ripped off. . . So much of America's moral authority to lead
the world derives from the decency of our government and its
bureaucrats, and the example we set for others. . . They are
things to be cherished, strengthened, and praised every single
day.''
Mr. Friedman is right. We should be praising Federal civil
servants, not attacking them. But, from day 1, this
administration has sought to characterize loyal Federal
employees as inept and inefficient bureaucrats. Federal jobs
have been given to private contractors. Attempts have been made
to slash annual pay increases. Financial bonuses have been
given to political appointees instead of career employees.
It is incredible that the group of employees who the
administration has chosen to target this time, are Defense
Department employees. These are the same employees who saw
terrorists crash an airplane into their headquarters. These are
the same employees who made enormous sacrifices to support the
military effort in Iraq.
I am willing to work on a bipartisan basis to make changes
to the civil service laws where there is a need for new
authorities or new flexibility. But we shouldn't destroy 100
years of civil service laws with a sledge hammer.
I urge my colleagues to slow down this runaway legislative
train.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Chairman Tom Davis. Thank you very much. Mrs. Davis, do you
have an opening statement? We have our Civil Service
Subcommittee chairwoman and ranking member. All of their
statements will be put in the record.
Mrs. Davis.
Mrs. Davis of Virginia. Thank you, Mr. Chairman. I want to
thank you for holding this hearing and continuing the
discussion on this important piece of legislation.
And I thank our witnesses for being here today,
particularly those representing the executive branch. It is a
distinguished group, and their presence here today illustrates
the administration's commitment to meaningful and significant
civil service reform.
This legislation is before us because a growing number of
agencies are seeking relief from the rigidity of the General
Schedule. This is not surprising. The General Schedule, adopted
decades ago, has evolved into a tool for rewarding longevity
and finding ways to reward performance and encourage our most
talented employees is clearly the direction the Federal
Government is heading.
Many observers, most recently and most notably the Volker
Commission, have recognized the General Schedule as out of date
and in need of major overhaul. But that is a long-term issue.
In the hearing now, we have some personnel problems that must
be addressed.
The Defense Department, NASA and the Securities and
Exchange Commission are seeking to work within the constraints
of Title 5 of the U.S. Code, which covers civil service law, to
gain some of these flexibilities. Collectively and
individually, these agencies are responsible for some of the
most important, and in some cases, dangerous work of the
Federal Government.
The National Security Personnel System sought by the
Defense Department has received the most attention. And it is
by far the largest of the proposals, both in terms of size and
scope. My Civil Service Subcommittee held a hearing last week
on the legislation, as did the Armed Services Committee.
It is evident that the Defense Department needs a more
agile civilian work force to work side by side with the men and
women in uniform. There have been concerns about the
legislation raised at both hearings. But, Mr. Chairman, I am
confident that with working with you, Chairman Duncan Hunter of
Armed Services, our friends on the minority side, and the White
House, we will be able to produce a good bill, one that
advances the meaningful personnel reforms sought by the
Pentagon, while also maintaining the important safeguards and
protections that are an integral part of the civil service
employment.
Thank you again, Mr. Chairman, for holding this hearing.
Chairman Tom Davis. Thank you very much.
We will put all of the other statements in the record at
this point. We have moved to our first panel. We have the
Honorable Paul Wolfowitz, Deputy Secretary of the Department of
Defense, accompanied by General Peter Pace, from USMC, vice
chairman of the Joint Chiefs of Staff, and Admiral Vern Clark,
Chief of Naval Operations, and the Honorable Kay Coles James,
the Director of the Office of Personnel Management.
It is the policy of the committee that all witnesses be
sworn before their testimony. If you would rise with me and
raise your right hands.
[Witnesses sworn.]
Chairman Tom Davis. Your total statement will be put in the
record. Admiral Clark, are you testifying or is just Secretary
Wolfowitz going to testify, and are you here for questions and
answers?
Mr. Wolfowitz. I have an opening statement. I think Admiral
Clark has a brief additional statement. And I think he and
General Pace will then answer questions. And Director James, I
think, has an opening statement.
Chairman Tom Davis. We have a clock. We try to be fairly
loose with the first panel. But, you have a green light. After
4 minutes, it turns yellow. At the end of 5, it is red. If you
can move to try to sum up, your whole statement is in the
record. I think we have questions based on the total statement.
So just in the interests of time and making sure we can get
questions.
Also, Mr. Hoyer is going to drop by. At that point, we will
allow him to speak and leave. He has other business as well,
but he has an interest in this. And Mr. Waxman and I have
agreed to let him speak as well.
We will start with you, Mr. Secretary, and then go to
Admiral Clark and General Pace and then to Ms. James.
STATEMENTS OF PAUL WOLFOWITZ, DEPUTY SECRETARY, DEPARTMENT OF
DEFENSE; GENERAL PETER PACE, VICE CHAIRMAN OF THE JOINT CHIEFS
OF STAFF, DEPARTMENT OF DEFENSE; DAVID CHU, UNDERSECRETARY OF
DEFENSE; ADMIRAL VERN CLARK, CHIEF OF NAVAL OPERATIONS, USN;
AND KAY COLES JAMES, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT
Mr. Wolfowitz. Thank you, Mr. Chairman, and thank you for
holding this hearing on what is an extremely important subject
for our national security.
I will try to briefly go through since you have the
prepared statement. I will put it all in the record.
We witnessed in Iraq another magnificent effort by our men
and women in uniform. They can claim a great achievement on
behalf of freedom for America, and for Iraqis who were victims
of a vicious regime. They performed their missions with
incredible courage and skill, and the whole country is
enormously proud of them and grateful to them.
Along with those qualities, much of the success we
witnessed came from some transformational changes that are the
product of extraordinary work in recent years. Our unparalleled
ability to conduct night operations has allowed us to virtually
own the night. The close integration of our forces has resulted
in an order of magnitude change in how precise we are in
finding and hitting targets from just a decade ago, to name
just two dramatic examples.
But, as we continue to wage the war against terrorism, it
is imperative that we continue to take stock of how we can
further transform the Department of Defense to deal with a
world that changed so dramatically on September 11th. As we
have seen so vividly in recent days, lives depend not just on
technology, but on a culture that fosters leadership,
flexibility, agility and adaptability.
One of the key areas in which we need Congress's help is in
transforming our system of personnel management so that we can
gain more flexibility and agility in how we utilize the more
than 700,000 civilians that provide the Department such vital
support, or to deal efficiently with those few who don't.
And let me, if I might, depart from the prepared text. This
is not an attack on our civil service employees. To the
contrary, they are a critical and extremely valuable part of
our defense establishment. I speak as someone who was a career
civil servant at one point in my career, and someone who has
worked with literally hundreds of career civil servants. We
could not do what we do without them. We believe that the
reforms we are proposing are actually going to make more
opportunities for people to join that civil service work force,
and for those who are in it to be rewarded for performance,
which everyone I know wants to be able to do.
But, it is also a national security requirement, because it
goes straight to how well we are able to defend our country in
the years to come. This is not a new issue. It is not a
partisan issue. No fewer than three administrations have tried
to fix a system that is by almost all accounts seriously
outmoded. In an age when terrorists move information at the
speed of an e-mail, the Defense Department is still bogged down
in bureaucratic processes of the industrial age.
The Defense Information Systems Agency, for example, finds
it difficult to recruit candidates so critical to this
information age. The telecommunications, IT and professional
engineering and science candidates who are so attracted to
industry are critical to our performance, but because of
inflexible and time-consuming laws that govern recruiting, we
are at a big competitive disadvantage. When industry can offer
the best and brightest jobs on the spot at job fairs, we have
to compete for these same individuals using a hiring process
that can take months. If this system is slow in bringing
promising talent on board, it is sometimes equally slow to
separate people with proven problems. In one case at the
Defense Logistics Agency, it took 9 months to fire an employee
with previous suspensions and corrective actions who had
repeatedly been found sleeping on the job. That kind of
practice is demoralizing to the great majority of the work
force who are getting the job done.
Our legislative proposal, the Defense Transformation Act
for the 21st Century, would be a big step forward in addressing
such obvious shortfalls in the current system. The bill before
you will also give the Armed Forces the flexibility to more
efficiently react to changing events by moving resources,
shifting people and bringing new weapons systems on line.
We have proposed a process for moving a number of
nonmilitary functions to more appropriate departments. We have
proposed more flexible rules for the flow of money through the
Department.
We have proposed elimination of onerous regulations that
make it difficult or virtually impossible for many small
businesses to do business with the Department of Defense.
And, we have proposed measures that would protect our
military training ranges so that our men and woman will be able
to continue to train as they fight while honoring our steadfast
commitment to protecting the environment.
As you work through the details of this bill, you will
inevitably find that almost every regulation had some plausible
rationale behind it. But it is important to keep in mind what
the sum total of these industrial age bureaucratic processes
does to our ability to develop an information age military. The
cumulative effect of the old processes impacts not just on
small details, but on our ability to defend our Nation and to
provide the brave men and women who perform that task with the
absolutely best support they deserve.
First, the inability to put civilians in hundreds of
thousands of jobs, by our estimate over 300,000, that do not
need to be performed by men and women in uniform puts
unnecessary strain on our most precious resource, our uniformed
personnel. Today we have uniformed military personnel doing
essentially nonmilitary jobs, and yet we are calling up
Reserves to help deal with the global war on terror.
Second, the overall inefficiency of our management system
means that taxpayers are not getting the value that they could
get from their defense dollars. And perhaps more important, the
men and women whose lives depend on the support that those
dollars deliver are also being shortchanged. Despite 128
different acquisition reform studies, we still have a system in
the Defense Department that, since 1975 has doubled the time
that it takes to produce a new weapons system, in an era when
technologies in the private sector arrive in years and months,
not in decades.
Third, the encroachment on our ability to train adequately
in an era when training increasingly represents the most
qualitative edge that the U.S. military enjoys, threatens a
collision that could endanger the lives of our servicemen and
women.
Fourth, our limited flexibility to manage our civilian work
force will make it increasingly difficult to compete with the
private sector for the specialized skills that an information
age military needs for its support, but that will be in
increasingly high demand throughout our economy.
And finally, and perhaps most important, our slowness in
moving new ideas through that cumbersome process to the
battlefield means that our remarkable men and women are making
use of systems and processes that are still a generation or two
behind where they ought to be. As we have seen in both
Afghanistan and Iraq, we want to have every bit of qualitative
superiority that we can achieve because that saves lives and
allows us to more rapidly and precisely defeat the people who
threaten the security of the United States. Our objective is
not merely to achieve victories, but to have the kind of
decisive superiority that can help us to prevent wars in the
first place, or, if they must be fought, that can enable us to
win as quickly as possible with as little loss of life as
possible.
Mr. Chairman, the Department has already engaged in
substantial transformation. We have reduced management and
headquarters staffs by 11 percent. We have streamlined the
acquisition process by eliminating hundreds of pages of
unnecessary rules and self-imposed red tape. And we have
implemented a new financial structure.
But these internal changes are not enough. DOD needs
legislative relief to achieve authentic transformation. The
bill before you represents many months, indeed years of work
inside and outside the Department of Defense. Congress, over
the years, has authorized us some flexibility in small
experimental projects to implement the kinds of personnel
reform that we would now like to introduce for the whole
Department.
More than 30,000 DOD employees have participated in
demonstration projects that other congressional committees
helped to pioneer. It is a fact, in other U.S. Government
agencies, major portions of the national work force have
already been freed from archaic rules and regulations. We need
similar relief.
Mr. Chairman and members of the committee, the Department
of Defense must transform for the 21st century, not just the
way we fight, but also the way we conduct our daily business.
And we need to get this done right now.
The world changed dramatically on September 11th. The laws
and regulations governing the Department of Defense must keep
pace. Thank you very much.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Wolfowitz follows:]
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Chairman Tom Davis. Admiral Clark, thanks for being with
us.
Admiral Clark. Thank you.
Mr. Chairman, Mr. Waxman, Mrs. Davis, members of the
committee. I appreciate the opportunity to appear before this
committee.
I have been on the Hill frequently this spring talking
about transformation. This year we introduced Sea Power 21, our
vision for the future, about transforming our Navy and creating
the Navy for the 21st century. I have said repeatedly on the
Hill that transformation is more than just buying new and
different ships and airplanes and submarines and weapons.
Transformation is also about transforming our
organizational processes in a way that maintains our total and
qualitative advantage. Another thing I talk about
transformation is it starts with people. People are our
asymmetric advantage. They are wonderful. They are doing a
great job. It starts in the hearts and minds of our people.
Our people are doing a great job in OIF and OEF. As a
Service Chief, it is clear to me that we have to be able to
continue to attract the very best people that we can get to
build the military of the 21st century. I have a sense of
urgency about this, and I look forward to talking to you today
about the specific challenges that I face in trying to create
that future.
In my mind, what is required is an agile, flexible
personnel and business process that can recruit and train and
reward the kind of dedicated men and women, men and women who
can speed innovation. And the 21st century capability that this
Nation requires, men and women who can improve the way we
manage resources for the Nation, and to ensure that the
taxpayers of the United States of America are getting a fair
shake.
If we do that, we will be able to attract and retain the
right people with the right capabilities and the right
management skills to the benefit of our Nation. Now, some
people see this legislation in the light of negatives. I
believe that there is great goodness in this bill. I believe
that the goodness is about, and points out the importance of,
our civilian work force. I want to be on record that we can't
make it without them. They are a key part of our Navy team.
This bill will strengthen our human resource force, and I
support wholly the principles that are embodied in this
legislation.
Mr. Chairman, I look forward to your questions, thank you.
Chairman Tom Davis. Thank you very much.
General Pace.
General Pace. Mr. Chairman, Mr. Waxman, members of the
committee, thank you very much for this opportunity. It is my
distinct honor to be able to thank you on behalf of all of the
men and women in the Armed Forces, Active, Reserve, Guard and
civilian, for your sustained bipartisan support.
And I would say that the tremendous accomplishments of our
forces in battle recently is directly attributable to the
reforms that started with the enactment of Goldwater-Nichols
Act back in 1986. Our forces now are able to adapt very quickly
in battle, and we need that same adaptability and flexibility
in our DOD civilian personnel system. We also need to be able
to recruit effectively.
About one-third of our civilian force, and in my service we
call them civilian Marines, because they are such an integral
and important part. About one-third of our civilian military
members are over the age of 50. That means over a short period
of time, we are going to have to replace this enormously
talented force. To sustain the current quality and to be able
to replace in those kinds of numbers, we are going to need a
recruiting system that is able to go out, market, be funded and
find the quality folks that we need.
Second, we need to be able to hire them very quickly. We
must be able to go to the same counter, to the same job fair,
as civilian corporations, and be able to hire on the spot if
necessary, rather than hand someone a form and say, ``We will
talk to you in about 3 months once we process it.''
Last, we need to be able to pay our dedicated professionals
based on merit. We should not make them wait some defined
period of time before they become eligible to be considered for
the kind of pay raises they deserve based on their own
performance.
I am very enthusiastic about the opportunity that this
proposed legislation has for expanding the number of available
jobs to our civilian Armed Forces members. Each of us, Admiral
Clark, myself and the rest of the Joint Chiefs have been deeply
embedded in the discussions that have led to this proposed
legislation. We all strongly support it. We believe it will
help us successfully benefit to our civilian force, it will be
a benefit to the Department, and, over time, we will be able to
sustain the very superior civilian members of our Armed Forces
that we have now.
Thank you, sir.
Chairman Tom Davis. Thank you very much.
Ms. James, thanks for being with us.
Ms. James. Thank you, Mr. Chairman. Good morning. Chairman
Davis, Congressman Waxman, I want to thank you for the
opportunity to testify today on these very important pieces of
legislation.
I will summarize my statement and ask that it would be
entered into the record, and look forward to answering
questions.
Chairman Tom Davis. Without objection.
Ms. James. On October 15, 2001, President Bush spoke to
members of the Senior Executive Service and said, ``I hope you
will never take the honor of public service for granted. Some
of us will serve in government for a season, others will spend
an entire career here. But all of us should dedicate ourselves
to great goals. We are not here to mark time but to make
progress, to achieve results, and to lead a record of
excellence.''
After that speech, I went back to my office and thought
about what is it that we could do at the Office of Personnel
Management to leave a record of excellence as this President
had challenged us to do. I think it is important to note that
our discussions today are happening against the backdrop of
National Public Service Recognition Week, where public servants
at the Federal, State and local level are all being recognized
for their contribution to our country.
The American civil service comes out of a proud tradition
of 120 years, coming out of the Pendleton Act, and then the
Civil Service Commission, and now OPM.
That proud tradition embodies the Merit System Principles,
the Prohibited Personal Practices, Whistle Blower Protections
and Veterans Preference.
I think that while we look at the legislation that is
before us today, that we need to understand and recognize that
all of us, everyone who is here at this table and who will
testify later today, recognizes the value and the importance of
these particular principles and the extraordinary service that
we have.
However, within that service, within the American civil
service, our antiquated, outdated, overly bureaucratic systems
have challenged and stifled managers and workers for years. I
don't think by attacking some of the systems that are in place
that managers have to work with, one needs to believe that we
are here to attack Federal workers, be they managers or
lineworkers. All of us recognize the value of the American
civil service and the work that those important citizens do.
Having said that, we will hear from, as we have already and
we will later today, some absolutely extraordinary leaders.
Leaders that have been asked to raise to extraordinary crises
and challenges.
And those leaders, working within the overly burdensome and
bureaucratic systems that they have, have been challenged
beyond all measure. I certainly recognize their impatience and
the desire to correct a system that is woefully inadequate and
wrong. And so I am delighted to be here today to offer support
for the Department of Defense and the changes that they seek as
they look to transform their institution.
The challenge for America is to attract the best and
brightest to Federal service. Our challenge is to reward
America's best and brightest once we hire them, so that they
can be rewarded for the profound and the absolutely
extraordinary work that they do.
We have, in working with the Department of Defense, been
assured that those things that are very dear to the American
civil service are and will be protected as we look at how we
change the systems, the American civil servants deserve better
systems within which to operate.
So with that, I would like to close and be available for
any questions that you may have.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Ms. James follows:]
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Chairman Tom Davis. We also, I see our distinguished
Minority Whip has come into the room. And I would invite Mr.
Hoyer to come up at this point and testify at this point.
Steny, thank you very much for making yourself available,
and welcome.
Mr. Hoyer. Thank you very much, Mr. Chairman. Admiral,
Clark and General Pace, Secretary Wolfowitz, Kay Coles James, I
was not here to hear the testimony of the first three, or are
you first?
Ms. James. No, I am last.
Mr. Hoyer. In my book, she is first. She covers most of the
people that--a lot of the people that live in my district.
Mr. Chairman, I thank you for this opportunity to present
to you my views on the Civil Service and National Security
Personnel Improvement Act.
I appreciate your decision to schedule an additional
hearing prior to marking up this measure. I am dismayed,
however, by the manner in which a civil service reform of this
magnitude is being rushed through the legislative process.
It is shameful, in my opinion, that we will give no more
than cursory consideration to legislation that will strip from
more than a third of our Federal civilian employees their most
basic worker protections.
Mr. Chairman, as you know, when the Clinton administration
pursued similar proposals, I opposed rushing to judgment on
those. I was not convinced either by party or partisanship to
move too quickly. I share Mrs. Davis' views on that expressed
last week.
The last piece of legislation to affect this many Federal
employees was the 1978 Civil Service Reform Act, and the
process by which it was developed and considered could not be
more different than that which is proposed today.
Months prior to submitting his proposal to the Congress,
President Carter established a working group to study personnel
policies. The group heard from more than 7,000 individuals,
held 17 public hearings, and scores of meetings and issued a
three-volume report.
Upon subsequent introduction of the legislation, House and
Senate committees held 25 days of hearings, receiving testimony
from 289 witnesses. And a written statement from more than 90
organizations.
When the House committee marked up the legislation, it took
10 days and 42 roll call votes to consider 77 amendments. This
thorough, open, and fair process resulted in civil service
reform legislation that garnered near unanimous bipartisan
support from both Chambers.
The contrast to the current process could not be more
clear. This measure was conceived, as I understand it, by a
handful of the President's closest advisors in the Defense
Department, and perhaps in the White House as well, without any
public input. Without any public input.
Regrettably, not a single Federal employee group was
consulted, not one. Since introduction of the legislation last
week, the House has scheduled a couple of hearings. A handful
of witnesses will provide testimony, and will likely be
attached to the Defense Authorization Bill and approved by the
full House prior to the Memorial Day recess. At least that is
what I am told. I don't know it. But that is the schedule that
I understand this legislation has been put on.
Why the urgency to enact such sweeping reforms in such
haste? Just 5 days ago aboard the aircraft carrier USS Abraham
Lincoln, President Bush said, correctly, ``I have a special
word for Secretary Rumsfeld, for General Franks, and for all of
the men and women who wear the uniform of the United States.
America is grateful for a job well done.''
The President was right. The Admiral, the General, the
Secretary, and all of us are extraordinarily proud of what they
have done. The military campaign in Iraq was a tremendous
achievement made possible not only by the planning of our
military leaders and the bravery and skill of our soldiers,
sailors, airmen and marines, but also by the active support,
the critical involvement, the expertise, and the talent of the
commitment of nearly 700,000 Department of Defense civilian
employees.
How can it be? My colleagues, how can it be that just days
after the completion of such an immensely successful endeavor,
that the Pentagon's personnel system is so fundamentally flawed
that it needs such immediate and drastic overhaul? How can it
be?
To be sure there are problems in the Federal personnel
system, including inadequate performance appraisal systems and
inflexibilities in hiring. Director James and I have discussed
these. We need to make reforms in this area. I agree with that.
And I am sure those of us who advocate on behalf of Federal
employees would also agree.
Paying and disciplining employees needs to be reviewed, but
it seems clear that there is time for the administration,
Congress, and the affected employees to review the current
system and explore solutions to these and any other problems
that exist in a fashion that gives all parties affected,
including the American people, the opportunity to participate
in this process.
Not only that, we have an opportunity to learn from the
experience of the Secretary of Homeland Security and Gordon
England, Deputy Secretary, an extraordinary administrator, our
former Secretary of the Navy, my friend and an outstanding
individual, he and Secretary Ridge are going to pursue adopting
policies that work.
We have 170,000. This is not a small sample. This is not
China Lake. This is 170,000 people. A third--excuse me, 10
percent of our Federal civilian work force are going to be
affected. Wouldn't it make sense to see how they do it and what
successes they have and what problems they confront? Wouldn't
that be rationale to do, rather than to rush to judgment?
But this bill is even more objectionable for what it does
than how it is being processed. This proposal will have the
chilling effect of undoing decades of some of the most
important worker protections enacted by Congress and signed by
President. Among its most egregious provisions the legislation
grants the Secretary of Defense the authority to strip Federal
workers of their collective bargaining rights, deny employees
their right to appeal unfair treatment, grants supervisors
complete discretion in setting salaries and determining raises,
and abolishes rules that require that reductions in force be
based on seniority and job performance.
Let me state as emphatically as I can, I believe in pay for
performance, period. We ought not be giving raises to, and, in
fact, we ought not to be paying employees who do not perform at
acceptable levels for the American taxpayer, and for our
government, period.
I think all of us agree on that. Let me close, Mr.
Chairman, by saying that I believe that this proposal is the
last example, frankly, of this administration's hostility
toward the right of American workers to organize and bargain
collectively.
It also sends a terrible message to the Federal employees
who help protect our Nation every day, the protections adopted
by Congress and the President over the years will be abandoned.
I acknowledge the fact that this is a substantive proposal. It
has meritorious suggestions contained in it. The people
proposing it are good people. But if it is a substantive
proposal, I suggest to them it is worthy of substantive
consideration, not 10 days between introduction and inclusion
in the Defense Authorization Bill that doesn't have
jurisdiction over this subject, this committee does, which is
why you are having your hearing.
Mr. Chairman, shock and awe, that was a successful
stratagem adopted, one which I think we can all respect. We
acted with great force and we acted quickly. We got the enemy
off balance. As a result, they did not have their defenses in
order, and we had a victory of very substantial proportion.
What outstanding planning. Mr. Secretary, I congratulate you.
Admiral Clark, I congratulate you. I congratulate Secretary
Rumsfeld as well, and the President who endorsed the plan.
But, ladies and gentlemen of this committee, we ought not
adopt a strategy of shock and awe dealing with the 700,000
civilian employees at the Pentagon. We ought not to act
massively, we ought not to act massively in a very substantial
bill and then move extraordinary quickly so that we keep them
off balance and unable to effectively respond.
Mr. Chairman, I would hope that you would exercise your
leadership, as an advocate of Federal employees, not to prevent
reform, because we need reform. Not because this bill is bad,
per se, although there are things in it which I will oppose,
and there are things in it that I will support, but because
they deserve, and America deserves an opportunity to
thoughtfully and completely consider this very substantial
significant change in existing law passed by Congress, signed
by Presidents, protecting our employees and promoting their
best interests and the best interests of the American taxpayer.
Thank you very much for this opportunity.
Chairman Tom Davis. Thank you, Steny.
[The prepared statement of Mr. Hoyer follows:]
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Chairman Tom Davis. The Chair is not going to allow the
audience to applaud or boo or hiss. I know this went on in the
Civil Service Subcommittee. If you want to do that, you can go
outside, and we welcome you going out into the hall and doing
that, but we are trying to conduct a hearing today to allow
Members to have an exchange, a substantive exchange on issues.
So if you would obey these rules, we would be happy to have
you here as our guests today.
Ms. James.
Ms. Watson. Can you yield a second for an inquiry?
Chairman Tom Davis. I would be happy to.
Ms. Watson. Is the bill ready? Could we get a copy of the
bill?
Chairman Tom Davis. The bill has been printed. And I would
be happy to get you a copy of it.
This is, as you know, it is a draft bill. This bill is--
there are going to be a number of amendments. And we will try
to get you, in fact, some of what are now being considered as
manager's amendments. There will be more.
Ms. Watson. We would like to have it in front of us.
Chairman Tom Davis. We will see if we can get an original
to everybody. Thank you.
Let me start the questioning, and then I will go to Mr.
Waxman. We will try to do in 5-minute increments to get around.
Mr. Wolfowitz, let me just ask you, you just heard Mr.
Hoyer talk about, this came in without any public input and the
like. How would you react to that?
Mr. Wolfowitz. First of all, we have had, I think by our
count, some hundred briefings with Members of Congress, both
House and Senate and staff, in developing this proposal.
One of the reasons it came to you in April instead of in
February, is because we, in fact, wanted the benefit of that
consultation.
Chairman Tom Davis. How about with employees and managers
in DOD?
Mr. Wolfowitz. With respect to the American Federation of
Government Employees, AFGE was briefed on a number of occasions
about our demonstration project best practices and our plan to
use the result of those experiments in a new personnel system
for the Department. Those briefings started in January. Eight
out of the nine demonstration projects that are the basis of
this proposal, have union participation. So the unions have
helped to shape the personnel practices currently employed that
were reviewed under the best practices study.
And, as in the Department of Homeland Security, the unions
with national consultation rights will be asked to participate
in the establishment of the policies that implement the new
personnel system. We value our employees. We value the unions.
We are working closely with the unions.
Chairman Tom Davis. Let me ask you, you noted in your
comments that there were now 300,000 uniformed personnel that,
in some cases, were not doing active-duty status, but were
behind desks and like. I take it they are there because you
have flexibilities over uniformed personnel you don't have with
some civilian personnel. And what I noted is that the
Department, in some cases, has gone to contractors who you have
flexibility to move and deal with, as opposed to employees who
sometimes have limitations on what you can do with them?
If this legislation were to pass, roughly as written and as
proposed, would you see an increase, do you think, in the
number of civilian personnel that would be hired by Department
of Defense as a result of that, by being able to move around
and having greater flexibility?
Mr. Wolfowitz. I think so, Mr. Chairman. I think under any
given system, this flexibility in hiring and management will
allow us to have a larger relative percent of civilian
personnel and to use the uniformed people for uniform tasks.
And as you said also, it will allow us to bring our
civilian personnel into the regular civil service system,
instead of all of the kinds of work-arounds that you rightly
noted have been the product of all of the years of the
inflexibility we have dealt with.
And so, rather than this being an attack on the civilian
work force, I think it is basically an opportunity to increase
it, to make it more competitive, to make conditions in the
civilian work force more attractive to people in general.
So, I very much hope that this will not be presented as
something that does not appreciate the enormous value we
already get from our civilian work force. We would like to have
the flexibility to expand it.
Chairman Tom Davis. One of the arguments against the
proposal that the Defense Department has come forward with, is
that you are going to be taking away collective bargaining
rights of civilian employees through this legislation.
That, in point of fact, you will continue to meet with
them, you will continue to confer with them, they will continue
to be part of the solution, but if an impasse is reached
between management and the bargaining unit, the resolution
would be on the part of the employer. That is my understanding,
and my reading on that, which is more a meet and confer than a
collective bargaining type of approach to this.
Can you clarify the intent of your proposal for collective
bargaining? How you would resolve these impasses, and how
elected union officials and shops that have elected to go union
would be involved in this process, and how impasses would be
involved? Can you clarify this a little bit?
Mr. Wolfowitz. My understanding is that collective
bargaining will still be an essential part of the process. We
are trying to make it somewhat more efficient, and as you say
ultimately, the managers have certain authority. The unions
would not have a veto.
But, the unions are a crucial part of managing this. In
fact, Director James, do you want to comment further on that?
Ms. James. No.
Chairman Tom Davis. Let me ask you. Right now, if there is
an impasse between--you have an arbitrator, you have a dispute
resolution, which in any opinion, you know it, is a very
lengthy, very bureaucratic and probably hinders the flow. If
there were a way of getting a quicker decision out of this, I
think I can feel a lot more comfortable. But to get a decision,
I think, right now, the shift on the part of some of the
unions, understandably, they are concerned, because they see a
marked shift in terms of the bargaining authority if management
can sit there and listen, and at the end of the day not have to
budge or give.
You understand what I am saying.
Ms. James. Yes, sir. I think the bane of the existence of
some managers in the Federal Government is so many duplicative
appeals processes that are often times very lengthy and, go on,
on dual tracks at many times. And it will sometimes even
discourage a manager from disciplining an employee because they
don't want to get involved in that process, and so they
tolerate poor performance as a result of that.
And I think what you see in the Defense Department is a
desire to build a system where you can take action, you can
take action quickly, but without getting rid of due process. I
am sure that there will be due processes in place, and I am
sure that they have a plan for doing that. So I feel confident
and----
Mr. Wolfowitz. The way I understand the collective
bargaining provisions is that it would be done at a national
level, that there would be 30 days on issues of consultations
with unions. Where there are differences, those differences
would be reported to Congress. There would then be 30 days to
resolve the problems, and the Federal Mediation Service could
be called in to do that.
And I guess ultimately the decision would be with the
managers. But, that decision would be reported to Congress. So
it seems to me it is a process that allows multiple points for
the unions to have their voices heard, and for Congress for
that matter to intervene. Someone has to make a decision at the
end of day.
There is 20 years of inability to move in areas that almost
everyone agrees we should be able to move.
Chairman Tom Davis. Well, my time is up. I see Mr. Hoyer
chomping at the bit. If the committee would indulge me just a
minute, Steny.
Mr. Hoyer. Thank you, Mr. Chairman. And I don't want to--I
have not read the bill. Let me make it clear that I have not
had the time to read the bill.
But, my understanding of the legislation, and having read
some of the comments of some of the members of this committee,
that Secretary Wolfowitz is correct. In the final analysis, it
is at the manager's discretion. So that while there may well be
a noblesse oblige willingness to talk to people, which is very
nice, there seems to be no requirement to do that, because
ultimately management has total flexibility, as I understand
the thrust of the bill.
Again, let me stress, and then I have to leave, Mr.
Chairman, let me stress that I believe we ought to take action
to facilitate a number of the things that the military is
concerned about, that you and I have discussed, Mr. Chairman,
that--and Ms. James, Director James and I have discussed,
clearly we need to facilitate management's ability to run an
effective, efficient shop, whether it is 10 people or 100,000
people.
But, my point is, that we need to do that in a considered
way. And very frankly, I want to tell Secretary Wolfowitz, Mr.
Secretary, I don't obviously know who you have talked to. I can
say that as I think I am correct in saying, that I am perceived
as one of the principal Federal employee advocates in the
Congress of the United States. Nobody has talked to me about
this legislation, except in the most general terms when we met
with Secretary Rumsfeld about Iraq, with the Speaker and the
leadership in very general terms, no specifics, nor was the
timing of this ever discussed with me.
So while--and obviously you don't have to discuss it with
me, but I will tell you that in my discussions, Mr. Chairman,
with Federal employee unions and representatives, they do not
believe that they were consulted on this piece of legislation.
I think the Secretary is accurate in saying that there were
discussions, preliminary in terms of some of the samples of
practices that you referred to.
However, there certainly was not the consultation that I
referenced that occurred in 1978 when we passed, by very heavy
margins in both parties, substantial civil service reforms.
Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you. I'm sure we can arrange that
briefing for you.
Mr. Wolfowitz. I will be delighted to go through it. I
think you will find it is quite reassuring in important
respects that concern you.
Mr. Hoyer. I will look forward to that. It would be my
understanding that it is approximately 36 hours before it would
be included in the bill.
Chairman Tom Davis. Steny, you are a quick thinker. You are
good on your feet.
Mr. Hoyer. I appreciate that analysis.
Chairman Tom Davis. Thank you for being with us, Mr. Hoyer.
Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman. I just want to point
out, Mr. Wolfowitz, that you said that the hundreds of meetings
with Members of Congress and their staffs--on the Democratic
side of the aisle of this committee, which has primary
jurisdiction over the civil service issues, we never had any
consultation with anyone until the proposal was laid out before
us and certainly no input into the development of the proposal.
We also heard last week from the unions that they were not
consulted about it, either. The Comptroller General, David
Walker, testified that DOD does not have a good track record in
reaching out to key stakeholders. So I just put out there as a
contrary view.
But I do want to get into some of the specifics. Because,
from my point of view, I think we ought to be as constructive
and bipartisan as we can be and give you the tools that you
will need but not do it at the expense of over 100 years of
civil service protections.
Now, our civil service laws as I see it in this bill are
thrown out the windows. You pointed out that you don't think
you are eliminating collective bargaining rights, but Chapter
71 of Title 5 provides that DOD could waive the right of
Federal employees to join unions, protection against
discrimination in hiring and promotion due to union membership,
the protection from agency retaliation for filing complaints.
These are such basic rights that I have a hard time
understanding why anyone would want to revoke them.
When Undersecretary Chu testified last week before the
subcommittee, he said the Department was only seeking
flexibility to conduct collective bargaining at the national
level instead of the local level. He said that, because of the
large number of local unions involved, national level
bargaining is viewed by DOD as more efficient. You just made
reference to that fact as well.
But the provision in the legislation goes well beyond
fixing that narrow problem. Instead, it completely strips
Federal employees of their collective bargaining rights. If DOD
is simply interested in national level bargaining, why wouldn't
Congress just permit this type of bargaining without waiving
all of Chapter 71?
Mr. Wolfowitz. My understanding, Congressman Waxman, is
that the powers we are seeking in that regard are basically the
same as those that have already been granted to the Department
of Homeland Security and I think in fact less extensive than I
believe have been granted to the Transportation Security
Agency. So we are not talking about stripping all of those
basic protections of civil service. In fact, we are very much
keeping the basic prohibitions on prohibitive personnel
practices. We are keeping appeals processes in place. We are
simply making it easier to hire people that ought to be hired,
easier to reward people that ought to be rewarded.
Mr. Waxman. I want us to do that, Mr. Wolfowitz, but I am
concerned about this broad, sledgehammer approach. The
Department of Homeland Security had some provisions that we
wanted to try out on an experimental basis. Now you are coming
in and saying, whatever they have, we want the same. I think
every other agency of government is going to want the same
thing, as well.
Dr. Chu testified that, and I am quoting from page 55 of
the hearing transcript, ``There is no proposal here for anyone
to lose his or her collective bargaining rights. The proposal
is designed to facilitate bargaining at the national level.
That is the proposal.''
If that is the proposal, and I assume you believe
collective bargaining is an important right for Federal
employees, the problem I have with your bill is it does away
with these important rights. It specifically states that if the
Secretary disagrees with any suggestion made by any union, the
Secretary may do whatever he wants in the Secretary's sole and
unreviewable discretion.
If you give the Secretary sole and unreviewable discretion,
that is not collective bargaining, it is a formulation that
gives all power to the Secretary. If what you are trying to do
is have collective bargaining at the national level, why don't
we spell that out and still keep all the protections that are
in the existing law that have been in the law for 100 years or
so in place, so you can do what you feel you need to do without
going beyond that?
Mr. Wolfowitz. I believe those recommendations of the
Secretary will end up being reviewable by the Congress,
ultimately.
Mr. Waxman. Everything is reviewable by Congress, but if
the Secretary has power to make all the decisions, that is not
collective bargaining. Congress cannot step in in every
situation.
We find under existing law where there is collective
bargaining or an individual employee has a grievance they can
take it to a third party, for example, somebody accused of
making an accusation of sexual harassment or racial
discrimination. The Secretary does not decide these things. It
goes to an impartial panel to review it. Those are all now out.
Mr. Wolfowitz. But I believe, Congressman, that the
reference to ``the Secretary's sole discretion'' was just sole
discretion with respect to administrative procedures, not with
respect to the collective bargaining. It is a different part of
the act that you are reading from. I would check that on the
record, but I believe that is it.
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Mr. Waxman. Then you agree with what we are trying to
accomplish, then. If I am wrong, I apologize, but I read it
differently, and maybe we should restore it to what we think it
ought to provide. The law says, ``If the Secretary determines
that in the Secretary's sole and unreviewable discretion that
further consultation and mediation is unlikely to produce
agreement, the Secretary may implement any or all of such
parts, including any modifications made in response to the
recommendations, as the Secretary determines advisable.''
If I had to negotiate and bargaining with someone who had
the power to say no and mean it, that is not collective
bargaining. Perhaps we could work on the language to make sure
we don't have such broad discretion.
Mr. Wolfowitz. OK. I appreciate the opportunity to do that.
But, if I might say, we are talking about personnel reforms
that are not, for us, something that we are going to try out.
We have been around longer than the Department of Homeland
Security. Congress has given us an opportunity to experiment
with some of these procedures.
I might note, for example, that the results we are getting
back from the experiment that was done at Redstone Arsenal had
a union leader saying, ``By far the majority of the employees
have indicated to me, both privately and in called meetings at
Redstone Arsenal, that they wanted the experiment renewed. I am
talking about 98 percent of them did. Only 1 out of 50 opposed
it.''
So we are dealing with a process, with procedures that are
not completely new, procedures that we have tested in some
important experiments and where I think the reaction of the
workers has been a very positive one. That is the spirit in
which we are approaching this.
Mr. Waxman. We disagree about what your bill in fact says.
Chairman Tom Davis. Thank you. The gentleman's time has
expired.
Mrs. Davis of Virginia. Thank you, Mr. Chairman. I would
like to thank our distinguished witnesses for being here today.
Admiral, let me just say that you stated that you agreed
with the principles embodied in the legislation, and I would
like to make it very clear that I agree with the principles. It
is the details that I am concerned with.
Mr. Secretary, I think it was you that said that you have
roughly about 300,000 military personnel doing jobs now that
you would like to put nonmilitary personnel in. Do you feel you
need all the flexibility that is embodied in this legislation
in order to fill those jobs with civilian personnel, or
wouldn't what we gave the Department of Homeland Security do
the trick?
Mr. Wolfowitz. Well, some of what we are asking for is not
that different from what you did give the Department of
Homeland Security. But, basically, what we are seeking with
respect to the issue you just raised is the ability to hire
people more flexibly and not to be in a position where we are
competing for skilled workers with private industry that can
offer them jobs on the spot and all we can say to them is, give
us an application, we will get back to you in 90 days. You
don't hire people that way. You don't compete that way.
Our procedures are from a different era when hiring
practices were different, private industry was slower, and we
were still competitive. There is a real danger now that we are
not going to be competitive in precisely those areas that are
most important for keeping up with a very rapidly changing
world that we live in.
Mrs. Davis of Virginia. Director James, if we gave the
Department of Defense the same flexibility we gave the
Department of Homeland Security, would they be able to do what
the Secretary wants to do?
Ms. James. They certainly would.
I just want to say for the record that, given what we have
seen from the military side of the Department of Defense, we
want the civilian side to have the tools so they can be
flexible and nimble. There is nothing more that I want than for
the Secretary to go to a college campus, find a bright,
aspiring civil servant and have the opportunity to offer them a
job on the spot. We want them to have the direct hire authority
and the flexibility. Our government needs to attract those
kinds of individuals, so we are very supportive of the
Department of Defense having that kind of authority to do the
job they have been asked to do.
Mrs. Davis of Virginia. Thank you.
Mr. Secretary, I sit on the Committee on Armed Services as
well, and there is nothing that I have been more of an advocate
for than our defense and our men and women in uniform. I want
to be able to give the Department of Defense what they need,
but we need to do it in a way that we do not harm our civilian
work force.
I know you all have brought it out very clearly, that our
civilian work force is very important to you. I know you feel
that way. I just don't want us to rush into something, because
I think every other agency in the Federal Government will be
lining up at our door for us to give them whatever we give the
Department of Defense to do.
A couple of quick questions about reemployment of retirees.
The current law allows you to reemploy retirees and, if
justified, in special cases to get approval from OPM to waive
the usual requirement that their salary be reduced by the
amount of their annuity.
First, does the Department need the ability to employ
retirees and to pay them their full salary along with their
full annuity without seeking prior OPM approval because getting
OPM's approval takes too long or because OPM is overly strict
or what?
Second, don't you think we should have some sort of
limitation that would show NASA, for example--and I have NASA
Langley in my district--and other agencies that DOD would not
use its special authority to attract the best and brightest
people who are eligible for retirement and working in those
other agencies?
If you would prefer to defer to Director James, that is OK
with me.
Mr. Wolfowitz. I would certainly like to hear what she
says.
Let me say that it seems to me--I cannot comment on the
situation in NASA or other agencies, but I can comment on DOD
as part of the Federal Government, that we are losing people to
the private sector because they get their full retirement and
probably a better salary working in the private sector. A lot
of them are public-spirited and would be happy to continue
working for the Federal Government if it did not cost them so
much. We are trying to address that for DOD, and I certainly
could not object to addressing it for other agencies, but that
is outside my purview.
Chairman Tom Davis. Excuse me, Mr. Secretary. What you are
trying to do in the legislation is bypass OPM, if I read it
correctly, in bringing back these retirees. My question is, are
you doing it because you think OPM takes too long in
responding, or what?
Mr. Wolfowitz. I am not aware of trying to bypass OPM. What
I am aware of is trying to be able to give people their full
retirement instead of having them basically work for 25 cents
on the dollar if they choose to stay working for the Federal
Government now.
Chairman Tom Davis. I think you have the right to do that
now with OPM's approval. That is what I am asking. You are
trying to waive getting OPM's approval, is that not correct?
Mr. Wolfowitz. Since September 11th, we have had a
provision, an emergency provision, that allows us to bring back
civil service people to do specific tasks without sacrificing
their retirement pay. What we are seeking is a continuation of
that provision.
I don't know what OPM's role is, to be honest, in the
emergency provision. I know that we have found that provision
very useful and want to continue it.
Ms. James. We did grant that authority to the Department of
Defense; and I feel confident that, given that authority on a
permanent basis, that they would oversee that program in a
responsible manner and would use it to attract employees that
may have retired to come back and work for the Department.
I feel confident that they would, in implementing that, put
appropriate safeguards in place so that it would be a useful
tool in their tool belt for the strategic management of human
capital.
Chairman Tom Davis. The gentlewoman's time has expired.
Let me just follow quickly. You have a lot of people
retiring now, getting their full retirement and coming back as
contractors and really cleaning up. This could actually save
money if you could keep them on as Federal employees.
Mr. Wolfowitz. That is absolutely right.
Chairman Tom Davis. Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. I want to thank
all the witnesses for being here, and their testimony. A number
of you, including Dr. Chu when he testified before the
subcommittee last night, made a point in saying that our
civilian employees of the Department of Defense worked as one,
as a team with the military, and that support that our
civilians provided was absolutely critical to our success in
Iraq, a success of which we are all very proud of our military,
including the civilian support they were given.
I do, as Mr. Hoyer and Mr. Waxman say, find it
extraordinary that just a short time after that great success
we take an action which really will deprive many civil servants
within the Department of Defense of some of their very basic
rights and protections.
We talk about the importance of flexibility and agility.
Those are great buzzwords and we all want it, but we could get
rid of the ethics code in the Congress. It would make it all
more flexible around here. It would not be a good thing. A lot
of the provisions that have been built into law over time were
to provide basic protections. We could get rid of restrictions
on sex or racial discrimination. Those are all things that
restrain the exercise of power and management under certain
circumstances. That would make it more flexible, but I think we
would all agree that does not make it better.
You, Mr. Secretary, have raised a number of good points
about changes we need to make that would allow us to hire
people more quickly, maybe to retain and make more permanent
some authority to bring back people. But we don't need to make
these sweeping changes in order to address those very concrete
things that you have raised today.
We had before the subcommittee last week the head of the
GAO, David Walker, who said, and I want to say, ``There is very
serious concerns about this problem.'' He said that the DOD
system, like many in the government today, is currently not
designed to support a meaningful performance-based system at
this time.
You have raised some of the small programs where you have
experimented with this at DOD, but my question is, and this
seemed to be the sense we got from Mr. Walker, why not take the
time within DOD--there is nothing in the current law that
prohibits DOD right now from developing a good performance-
based system, put it into practice, look at the standards now,
before we move and take away the merit pay system we have in
effect.
So my first question is, why not just wait until you get it
right, until the GAO and other independent groups that have
looked at these things say that you get it right before we move
ahead with this particular proposal?
Mr. Wolfowitz. I'm sorry, I don't believe the current law
does allow us to make or do pay banding of the kind that we are
talking about here or of the kind we have successfully
implemented in some of our experiments. And we are not talking
about stripping people of fundamental protections or removing
the basic provisions of civil service, but there is something
wrong, I think, with a grievance procedure that--excuse me, a
separation procedure that requires that you have three strikes
on exactly the same item before you can terminate someone, like
that employee I mentioned who was found sleeping on the job not
once but finally three times. It is demoralizing to the other
employees.
I believe, and the experiments we have had at China Lake
and Redstone Arsenal and other places bear it out, that these
changes will be positive for the great, great majority of our
civilian work force. It will make them better motivated, better
compensated, and they will not have to deal with that 1 percent
of poor performers that should not be so difficult to separate.
So we are not talking about removing the basic rights.
There are grievance procedures throughout.
Mr. Van Hollen. I think what Mr. Walker was saying with
respect to the pay for performance was that you don't have in
place now the kind of standards upon which you could base a
fair pay for performance. He didn't say you don't have the
authority, but he said the DOD has not laid the groundwork in
terms of its personnel evaluation system that would allow us to
do it in a meaningful way.
And this is true of Republican and Democratic
administrations. There is always the danger of political
favoritism within the system. I think we all know that is a
real danger; and it is important, again, regardless of the
party in power, that we have those protections.
One thing I think we should all look at is whether it
doesn't make sense to wait until we have a good performance
evaluation system in place across the board before we move
quickly with that.
Just to followup on the point you raised with respect to
retaining the basic protections of rights, as part as this
proposal DOD is seeking a waiver from Chapter 77, which ensures
that there is an objective third party, like the Merit Systems
Protection Board or the Equal Employment Opportunity
Commission, to review agency disciplinary actions. Those I
think are especially important, to have an independent
evaluation in the case of racial discrimination actions or
sexual harassment actions.
My question is, why do you want to waive Chapter 77 with
respect to those protections?
Mr. Wolfowitz. My understanding is that all those basic
things that you mentioned--that certainly we are not trying to
eliminate any prohibitions on racial discrimination. I think it
has to do with the fact that some of those provisions appear at
multiple places in the statute.
If I can go back to pay for performance, we have a best
practices model. It has been implemented in these experiments.
In fact, it was published in the April 2nd Federal Register. I
think it is a couple of hundred pages in length. That is the
system we would like to institute more broadly. It has been
tried; it works; it is reviewable. It is not something that
leaves everything arbitrarily to the kind of manipulation that
you are rightly concerned about. We would be concerned about it
ourselves.
I think if we look at what happened at China Lake, at what
happened at Redstone, we have been able to get some of the best
people in this country working for the Federal Government in
conditions where they might very well have gone off to the
private sector if we didn't have that flexibility.
Mr. Van Hollen. One last followup.
Chairman Tom Davis. The gentleman's time has expired. I'll
give you a quick followup.
Mr. Van Hollen. Thank you.
Just on the issue of having the pay-for-performance
evaluation system in place, we also asked the Deputy Director
of OPM a short time ago in a hearing to name some of the
Federal agencies that had a basis for that kind of system in
place, and DOD was not among them.
The last point I would like to make is that, with respect
to--I am trying to understand your response with respect to the
rights of employees. Are you saying you would not oppose having
an agency outside of DOD like the Merit System Review Board or
the Equal Employment Opportunity Commission review decisions,
claims that are based on racial discrimination or sexual
discrimination?
Mr. Wolfowitz. Certainly I don't think so. I would like to
confirm that for the record. Those are fundamental protections.
We are certainly not trying to change anything in the way that
people are protected against that kind of discrimination. If we
are doing so,
we would fix that. But I believe all the basic provisions of
EEO review remain in place. I would be unhappy if they did not.
I will try to confirm that for the record. I agree with you
emphatically on that.
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Chairman Tom Davis. I thank the gentleman for the question.
I tried to raise it in a little different angle at the same
time. I think it is something we need to ensure is protected as
we move through this.
One other thing before I recognize Mr. Murphy.
A lot has been said about we just won this war under the
current system, but the fact is that about 80 percent of your
people on the ground were contractors, not employees, in Iraq?
Mr. Wolfowitz. I think that is about the right number.
Chairman Tom Davis. There is something wrong with that.
Mr. Wolfowitz. We didn't sort of come up with the idea--the
notion is that somehow we won the war and now we are sweeping
in with this. I think it was more correctly observed by
Congressman Hoyer earlier that some of these provisions have
been proposed for years.
I wish he had said yes to some of the things the Clinton
administration had proposed in this area. They are long
overdue, and the fact that we did so well in Iraq should not be
a reason for saying, therefore, we are perfect.
Chairman Tom Davis. I think you said earlier that there are
more opportunities for Federal employees for this, because a
lot of the things that are being outsourced now and done by
uniformed personnel could be done by Federal civilian
employees. You have said that under oath and on the record, and
that needs to be reiterated. That is one of the purposes of
doing this.
Mr. Wolfowitz. It is one of the main purposes of doing
this.
Chairman Tom Davis. Mr. Murphy.
Mr. Murphy. I thank the chairman, and I thank the
distinguished panel.
I'm thinking when one reviews the biographies of Theodore
Roosevelt--I believe at one time he was head of the Civil
Service Commission and spoke about the headaches he had and the
problems he saw with what proceeded him with regard to hiring
of people based upon political rather than personal merits, and
relatives.
Certainly the issues you are bringing up here are ones the
government has tried to deal with for a long time. Some are
quite commendable. Any mayor in any town has recognized they
could put a lot more police uniforms on the street by taking
them out from behind desks, just as you said with the military.
I think everyone here is in favor of that.
There are a couple of things that I go back to and some
concerns that have to do with some of the due process
procedures and who has ultimate authority here.
Let me read here from a page of the bill. The printed
version I have is on page 11. It talks about, for any
bargaining unit, ``the Secretary at his sole and exclusive
discretion may bargain at an organizational level above the
level of exclusive recognition. It is binding on all
subordinate bargaining units. It supercedes all other
collective bargaining agreements, including collective
bargaining agreements negotiated with an exclusive
representative. It is not subject to further negotiations for
any purpose, including bargaining at the level of recognition
except as provided by the Secretary; and any bargaining
completed pursuant to this subsection with labor organizations
not otherwise having national consultation rights shall not
create any obligation on the Department of Defense or
subcomponents to confer,'' and it goes on and on.
It sounds to me like it is putting a lot of power in the
Secretary of Defense that would supercede other negotiations
and discussions. Am I reading that correctly?
Mr. Wolfowitz. I believe what it is designed to do is to
consolidate what could otherwise be an enormous and cumbersome
proliferation of individual, inconsistent bargaining procedures
with bargaining at the national level. I think that is the
intent of it. I think that ultimate discretion, according to
the Secretary, I think is the same discretion that is accorded
to the Secretary of the Department of Homeland Security.
But the intent of that provision, and I think it is
particularly important in a department as large as ours, is to
enable us to come to consistent decisions across the Department
and do so with some degree of expedition.
Mr. Murphy. Again, that makes sense, that you don't want to
be negotiating on hundreds of little agreements if you can
expedite that and deal with it on a higher level. I just
wonder, does that mean that the Secretary has the authority to
strike out a lot of things that had been negotiated that may be
good procedures as well?
Let me jump to another point here. There is another section
preceding that in the bill which talks about provisions to
collaboration with employee representatives. I am reading here
from page 9. Essentially a number of recommendations are made
from this group.
It says, ``Any part of the proposal as to which the
representatives do not make a recommendation or as to which the
recommendations are accepted by the Secretary and the Director
may be implemented immediately.'' So in other words, if they
recommend it and you like it, the Secretary can go along with
it. If nobody says anything, he or she can still come up with
some guidelines or binding issues.
Does that seem to also perhaps bypass a lot of the
negotiations which we have been hearing about that would be
taking place with some of the labor?
Mr. Wolfowitz. I didn't read it that way. I read it as,
again, making it possible to move more quickly on something
where a consensus has been reached.
Mr. Murphy. We will go back over that.
I want to just say something here, too. This is some
testimony which will come later, but I thought that you won't
have an opportunity to respond to it otherwise, so I thought I
would quote from this. This is from Bobby Harnage, Sr.,
national president of the American Federation of Government
Employees, in a document they passed on to us.
It says that ``One of the most shocking authorities DOD is
seeking for the Defense Secretary is the power to waive
Chapters 31 and 33 of Title 5. This effectively grants the
authority to hire relatives.''
Is that true?
Mr. Wolfowitz. My understanding is that all the
prohibitions on nepotism that are in current civil service law
remain in this bill. It may be that it is not repeated as many
times as it was in the original chapter, but it is there.
Believe me, this is a proposal to have a more effective
civilian work force, not to open it to that kind of destructive
practice at all.
Mr. Murphy. Thank you. I'll just close by commending you
not only for the job all of you have done with the situation in
Iraq and Afghanistan but your continued work and incredible
dedication to make sure that not only our fighting force but
our civilian force remains the best in the world.
Mr. Wolfowitz. Thank you, and I thank other Members of
Congress for the great support you have given our Armed Forces.
It is magnificent.
Chairman Tom Davis. Thank you. Mr. Ruppersberger.
Mr. Ruppersberger. I, too, want to congratulate the
Department of Defense. You have made us all proud and I think
also not only with respect to the wars that we have been
involved with but also working very closely with the other
agencies in the war against terrorism.
Sitting here listening to the questions and the answers, it
seems to me that the issue here before us is, No. 1, the speed
in which this bill is moving forward through Congress.
I think Congressman Hoyer made the comment that we are in
favor of accountability. We are in favor of giving flexibility
to do the right thing. We are in favor of managing and being
able to set the goals and hold the work force accountable for
performance. But when you are dealing with a large government,
as we have, there needs to be a rule, a guideline for
employees. The reason unions were created years ago was because
management was abusive. It seems to me we have to keep seeking
that balance between management and unions.
I want to ask this question. Rather than asking Congress to
approve the details of a new civilian personnel system, you are
asking for sweeping authority, in my opinion, at least, to
waive existing laws and create a new system by the
administration. I think right now that the work force does not
have the confidence at this point, based on a long-established
system, that this is anything more than a move to be extremely
arbitrary and controlling as it relates to their issues of
security within their job employment.
Mr. Wolfowitz. I think maybe part of what is involved,
then, is a lack of understanding of how much work has gone on
over the course of actually a couple of decades with
experiments like the China Lake experiment and, more recently,
Redstone Arsenal to develop more flexible practices that are
better for the Department as a whole and better for the work
force and that we are not talking about stripping away
everything that has ever been done. In fact, we are basing it
on that experience, as I think I mentioned earlier.
I think the new regulations that have been published in the
Federal Register for expanding that authority to the 170,000
positions that Congress has given us the opportunity to do
constitutes some 200-plus pages.
So it is not a good thing if people are trying to--I don't
mean trying to, but I think people should be careful not to
start scaring people that suddenly this means that all jobs are
arbitrarily at the discretion of unchecked management. The
basic practices we talked about on prohibitions of
discrimination of various kinds have not changed at all. The
due process people would have if their jobs were in question
are not changed fundamentally.
I think the most important provisions are provisions that
will allow us to hire more people in the civilian work force.
As Chairman Davis has said and I have said now a couple of
times, I think it is an opportunity to expand the Federal work
force over what it would otherwise be. It is definitely
something we are proposing out of a sense of how important that
work force is to us.
Mr. Ruppersberger. I think it is a matter of how we get
there. I don't think anyone disagrees that we need to do
better. A lot of individuals are concerned about change. But as
I read the bill, and this is the concern, Chapter 71 seeks a
complete waiver of collective bargaining. Do you read it that
way?
Mr. Wolfowitz. I don't read it that way. I read it as
consolidating collective bargaining at the national level.
Collective bargaining will still be very much a part of the
process. I believe it has been a part of China Lake. It has
definitely been part of the experiments we are referring to,
including, as I say, China Lake.
Let me say a word. China Lake is this amazing research and
development facility the Navy operates out in the desert in
California. It has produced some of the most spectacular
weapons systems we have. It was recognized some years ago that
if we were going to retain that kind of a work force in those
conditions that you had to be able to institute a different
kind of management practice. It has been operated over many
years. It includes collective bargaining. It includes basic
protections.
As I said, when some of those same experimental procedures
were instituted at Redstone, I was quoting earlier the union
leader at Redstone was saying that 98 percent of the work force
wanted it continued.
Mr. Ruppersberger. It is with the protections in place. The
issue that I see here today is that we are pushing through this
bill in a rapid manner, and I think there is a lot of agreement
that we could all come together and maybe get the same goal.
The perception of this bill is that--because it is being
pushed through quickly, the perception is that, because we are
at war, because of the fact that right now the Department of
Defense needs the resources--and, believe me, in my opinion you
are getting the resources--that the timing is not correct.
China Lake is a good experiment. There is a need for you to
be able to hire and compete with the private sector. There is
no question. But we still have a lot of employees that have a
basic system that they rely on. You are only as good as the
people that work with you. You have said that here today, and
you know that is the case.
I just think we could probably pull this together and get
what both sides want if in fact we could have the time to do
it. Because from our perspective on this side we have not
received much information or had the ability to really sit down
and negotiate some of these issues.
Mr. Wolfowitz. If I might, for the record, Mr. Chairman,
submit what I believe is a very substantial body of protections
that the Federal work force, the DOD work force would continue
to enjoy under this bill, maybe in part we are dealing with a
lack of understanding.
Chairman Tom Davis. Without objection, that will be put in
the record.
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Chairman Tom Davis. Mr. Secretary, I understand you need to
be out of here at 10 after 12. I want to move through and give
everyone their 5 minutes.
Mrs. Blackburn.
Mrs. Blackburn. Thank you very much, and I thank the
committee and those of you here to testify to us also for being
here and providing an explanation. I certainly feel like I have
a better understanding of what is before us. Thank you for your
time and explanations today. I did not realize until today that
basically you all have been working toward this for 20 years. I
think that is noteworthy.
Ms. James, if you will address for the record the number of
people that are in the pilot project that has been at DOD?
Ms. James. Are you referring to the pilot projects within
the Department of Defense?
Mrs. Blackburn. Yes.
Ms. James. I think about 30,000.
Mrs. Blackburn. The total work force is 700,000, am I
correct on that?
Ms. James. That's correct.
Mrs. Blackburn. If you run pilot projects in other parts of
the Federal Government, what percentage of the work force is
generally in that project?
Ms. James. It can vary, but that is fairly typical, what
you see in the Department of Defense.
Mrs. Blackburn. That is a pretty typical sampling of the
ones that are there.
In the pilot project, Mr. Wolfowitz, and this may come to
you, what kind of buy-in have you had from the employees that
have been in those pilot projects and what type of buy-in would
you anticipate from the work force in general?
Mr. Wolfowitz. I would like to ask Admiral Clark to address
China Lake, because he has dealt with that for many years.
I would just go back again and quote what the president of
the AFGE local at Redstone said after that experiment had been
under way, ``by far, the majority of employees have indicated
to me, both privately and in called meetings at Redstone
Arsenal, that they had wanted it renewed. I am talking about 98
percent of them did. Only 1 out of 50 opposed it.''
A majority of the AFGE employees at Local 1904 voted last
month to be involved with the civilian personnel demonstration
project at Fort Monmouth, NJ. I would say that the record is
one of strong satisfaction, but I would like Admiral Clark, who
knows the China Lake project much better than I do, to address
it.
Admiral Clark. Thank you, Mr. Secretary.
The China Lake program has--and one of the reasons, Mrs.
Blackburn, I talked about the principles of this--the China
Lake program has brought out the principles that we have seen
best motivate and stimulate our work force. They greatly
appreciate being rewarded for their performance.
I was in Panama City, FL, yesterday. They went to this
program in 1999, exactly the same response. I met with a number
of the employees yesterday and talked about how this works for
them. So the response we are getting from our people has been
overwhelmingly supportive.
To be sure, when you step out in something new, people have
some uncertainty about how it is going to work. The China Lake
process is our best example of why we believe so strongly that
these principles are correct.
Mrs. Blackburn. So the employees like being rewarded on
their performance, and they have moved toward requesting that
from you.
Admiral Clark. Let me just say there is a tendency to paint
this kind of discussion in terms of a government employee who
may perhaps not be measuring up and the effect of that. They
also greatly appreciate the fact that the system is dealing in
an accountable way with regard to remuneration. So it cuts both
ways.
Mrs. Blackburn. OK.
Mr. Wolfowitz, quickly, a couple of questions. Speaking to
the process, how long do you anticipate this change to take
place where you would completely change your program in the
Department of Defense?
Mr. Wolfowitz. Our estimate is it would take about 2 years
to fully implement what we are talking about, which is another
reason--I understand it always sounds good to take more time to
study something, but this has been studied for a long time. It
is going to take a long time even if we get it at the end of
this year to implement it.
Admiral Clark, do you want to speak to this issue of
urgency? You have been around this block longer than I have.
Mrs. Blackburn. If I may add one more thing to that, during
this process of 2 years, what is going to be your process for
employee input during that? Admiral Clark, if you would address
that in with your response.
Admiral Clark. This gets back to the whole issue of the
bargaining process and what things are going to be national and
what things are going to be local and the development of the
processes and procedures for review. That has been done in a
very collaborative way in the China Lake model and also in what
I saw yesterday in Panama City. That is the way it is done. It
is done in a collaborative way.
Here is the part--several people have said, why now? We
have not gotten to this part of the discussion. I very much, if
I could, I would like to, Mr. Chairman, speak to this point for
a moment.
In my view, I am the guy that by Title 10 I am given the
responsibility to recommend up the chain to the Secretary the
proposals to organize and train and equip this force. We have
just completed a fantastic operation. No doubt about it. I want
to tell you, we are not resting on our laurels. We are working
5, 8, 10 years out how it is going to be even better.
But from the position of the civilian personnel structure,
I am in a sense of extremis. When I go to the field, here is
what I'm getting. When I go to the non-China Lakes and with
this business of over half of the employees are going to be
retirement-eligible in 5 years--and, as Ms. James said, the
issue about the bureaucracy that has grown over time in
government, the layers of bureaucracy--one of you mentioned
Gordon England. He was my boss when he went to homeland
defense. Our task was to figure out how to improve the
effectiveness and efficiency of this organization so we can
redirect dollars--I am spending 60 percent of my budget paying
salaries--so that I have the resources to transform the
military.
The point is this: in effect, we have a set of laws that
precludes me from being efficient and creating efficiencies
inside my structure and replacing these employees that are
going to retire.
If I go in someplace and seek to create new hires while I
am trying to create efficiencies under the current set of
rules, the people I have to let go are the ones that we just
hired. I am in a position that the law--the way it really works
in real practice is: Vern, you can't make the Navy more
efficient. Vern, you can't hire more people in these places
where you have all kinds of people retirement-eligible in the
next few years.
I want the committee to understand that I have a set of
circumstances here that are keeping me from doing my job. I
have a sense of urgency about this because this civilian work
force is vital to equipping and enabling the young men and
women of my Navy that are going to have to go out and do the
next one and the next one and the next one.
Chairman Tom Davis. Admiral Clark, let me ask quickly, what
about the employee who has worked there doing, at least in
their mind, a great job, is a couple of years from retirement,
there is a RIF----
Admiral Clark. Thank you for that. Mr. Waxman used a quote,
and I couldn't agree with him more, Tom Freedman's quote: The
guardians that work hard, those people who are productive and
effective, efficient, they are not going to be in question.
That is not what anybody is talking about.
Chairman Tom Davis. But if someone is close to retirement,
shouldn't their years of service be given some consideration if
you are doing a RIF? You don't want to get someone 2 years
short and, all of a sudden, everything they have worked hard
for, their retirement--maybe they have given up other jobs--
shouldn't that be a factor?
Admiral Clark. There is a process that includes all of the
variables that should be in a performance system; and it should
not be slanted the way it is now, which is almost predominantly
the other way.
Mr. Wolfowitz. But it would be a factor. I think it is the
third in order.
Chairman Tom Davis. Thank you.
Mr. Cooper.
Mr. Cooper. Thank you, Mr. Chairman.
I think we all appreciate the terrific leadership of the
Pentagon in Iraq and Afghanistan. I think we want to work on a
bipartisan basis to make these reforms work. But I am deeply
worried, and I have been to all the hearings, that we are
talking past each other.
For example, it was my understanding from Dr. Chu's prior
testimony that the Pentagon has current legal authority to have
demonstration programs or other flexibility for up to about
120,000 of its current employees. But we just heard a few
moments ago that the Pentagon is unclear on that, at least from
some of the other witnesses.
I would like to know for the record whether the Pentagon
has that current authority to experiment with up to 120,000
employees. Because that was prior testimony.
Second, even though this is the third of the hearings, we
have asked written questions from the Pentagon and at least as
of 10 a.m. no one has received answers to those questions, not
even folks far more important than I am, folks like your
chairman and ranking members of the committees. This is a
problem we need to overcome, especially if the markup is
tomorrow.
Chairman Tom Davis. Excuse me. I'd just like to ask the
gentleman, were these questions at the Hask hearing? They
weren't to us, right?
Mr. Cooper. At the Hask hearing, I know they weren't
answered. But I know these go back to the first Civil Service
Subcommittee hearing.
When we are asked to repeal broad sections of law, such as
the law that currently requires DOD to bargain in good faith,
that causes us some concern. I think while many of us trust the
current leadership of the Pentagon, we are also being asked to
repeal this requirement for all future Secretaries of Defense
and all future Undersecretaries and Deputy Secretaries. So that
should be of great concern.
To avoid this continuing problem of us talking past each
other, would it be possible for us to agree today to go ahead
and amend the Pentagon proposal in a way satisfactory to both
sides of the aisle here, to preserve the obligation to bargain
in good faith, to preserve the obligation to endorse collective
bargaining rights, to preserve the obligation to prevent
discrimination or harassment of employees, things that I think
people of good will should be able to agree on easily?
But those, as currently drafted--and maybe your lawyers got
the best of you--those safeguards are not part of the
Pentagon's proposal. That is a concern, because, while we might
trust current management, this law could apply forever.
Could we have agreement from the witnesses that those
safeguards should be preserved?
Mr. Wolfowitz. Certainly the safeguards against harassing--
harassment--against discrimination, against mistreatment of
whistleblowers I am assured are in there. If they are not in
there, we would be happy to look at the explanation of where
what is there is inadequate.
On the issue of collective bargaining, I think we are
asking for changes; we are not asking for dismantling the whole
system. Most importantly, what I do understand is we are asking
to do things at a national level so we can move more quickly.
When there is an agreement, that we can move that agreement
forward more quickly.
I would be hesitant to say right away that--we think that
what we have come up with, which is in fact the product of a
lot of consultation, is a pretty good outcome. If there is a
different proposal, obviously, we would look at it. It is an
important issue. But it is a little different from these very
basic protections, about which there can be no doubt
whatsoever.
Mr. Cooper. There has even been massive disagreement on the
subject of consultation. I don't want to belabor this too much,
but Dr. Chu testified that earlier organized labor was not part
of the design phase of these regulations.
I want to give the Pentagon the benefit of the doubt, but,
according to the study which summarizes your eight or nine
demonstration programs today, they say that a key part of the
success of pay for performance at China Lake, at Redstone, all
these other facilities you have been bragging about, is
involvement of organized labor early on in the process.
So how can you have consultation if the other side doesn't
even know they were consulted? There is some disconnect here
that the committee after three hearings has not been able to
overcome--a couple of hearings by this committee, Government
Reform, and by the Committee on Armed Forces.
So we are not improving our information here. Questions
have not been answered by the Pentagon that were posed in
writing. We have to get to a common agreement on the facts
before we can possibly mark up a bill intelligently. Otherwise,
we are just giving you a blank check. Maybe some folks want to
do that, but our job as a Congress is to try and do our job in
a responsible and fair fashion that is strong on national
defense and also preserves basic rights for our citizens.
Mr. Wolfowitz. I appreciate that spirit very much. I will
do everything that I can to make sure that we answer the
questions fast.
I am told that the questions for the record that we got
from the House Committee on Armed Services were sent over to
that committee this morning; and I am told, Chairman Davis,
that the ones for the Subcommittee on Civil Service and Agency
Reorganization are on the way. Now, ``on the way'' is a magic
three words in government.
Chairman Tom Davis. Thank you.
Mr. Waxman.
Mr. Waxman. I want to point out, Mr. Secretary, if you feel
you need flexibility in a certain area, we are happy to look at
it. We want to accommodate you.
On these other areas where you think you have protections,
we read it; and our lawyers say the protections aren't there.
It shouldn't be that we submit to you why it's not there
and you look at it. We're the committee of Congress. Give us
what you want us to look at and let us collaboratively work on
this problem. We feel that this bill, maybe inadvertently,
repeals huge sections of the law and protections for workers.
Maybe it was not intended, but it is nevertheless the law, if
we pass your proposal.
So please consider this an invitation not just for us to
give you our ideas but for you to give us what you need. We
will try to accommodate what you need without going beyond
that.
Over and over again, you have said, well, you want what the
homeland security agency has. What they have is an experiment.
We ought to see how that works before we start applying it all
across the government. I don't think we are prepared to do
that. I hope not, because we went pretty far in that with a lot
of theories that have not been tested, based on the idea we are
going to test those theories.
I just make this not as a question but a statement that I
hope we will collaborate and find out from you what
recommendations you really feel you need, not just this bill
modeled on Homeland Security but what you really need. For that
we ought to accommodate you.
Chairman Tom Davis. Thank you.
Mr. Wolfowitz. Thank you. I will be very happy--it is not a
question. I will submit for the record a very clear statement
of where we feel that basic protections that people on both
sides of the table agree are essential are covered. Some of
them may be in redundant provisions in the bill so it may look
as though you are taking something out, but it remains
somewhere else.
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Mr. Waxman. If we think they are not covered, you wouldn't
mind our making sure they're covered?
Mr. Wolfowitz. Right, with the important provision that we
have some disagreement about the extent of the collective
bargaining.
Chairman Tom Davis. Clearly, there are some issues. You
want more flexibility. Right now, there are too many things
bargained that are really minutiae that you think don't belong
under the formal procedures you have today that ought to be
resolved in a faster, more efficient way.
Mr. Wolfowitz. Absolutely.
Chairman Tom Davis. We understand that. But there are some
basic rights that, Mr. Waxman, you feel should be protected,
and I take it that on those issues there ought to be some
protections, and the question is, where do we draw the line? We
may have some philosophical disagreement on that.
I am trying to narrow the issues. We will work with them
this afternoon and this morning to see if we can resolve it.
Mr. Wolfowitz. Thank you, sir.
Chairman Tom Davis. Mr. Platts.
Mr. Platts. Thank you, Mr. Chairman. I appreciate all of
the witnesses here today. My apologies for being late.
General Pace, you will be glad to know I am coming from
Parris Island. I was up at 5:30 a.m. at the Crucible seeing
your recruits get great training.
I wanted to touch on two issues here, if I can, in my time.
One is that the concern from some of my union Federal employees
back home and here in the Washington area that this legislation
is going to result in more outsourcing of defense work, so a
smaller civilian work force.
Dr. Chu, I think, has referenced in previous testimony
before us that a significant number of uniformed jobs that are
currently done by uniformed personnel could be civilian, which
I would think would mean we would need more employees.
The chairman referenced in his opening statement the
difficulty of dealing with the complex labor-management
regulations we have now which often causes more outsourcing
instead of using civilian employees.
So I guess what I am looking for, Mr. Secretary, is your
best assessment of where you see the Federal civilian work
force in numbers, if this so happens. Is it greater because you
don't have to outsource more? Is it going to result in more
outsourcing than we already are seeing?
Mr. Wolfowitz. That is a fair question. This bill does not
address the issue of outsourcing. It is a major concern. There
is obviously--in separate actions in legislation we are seeking
authority to outsource those things that are not appropriate
for Federal employees, either uniformed or nonmilitary.
I have learned over the past years it is an incredibly
complicated issue. I think there are efficiencies that can be
achieved for the government, for the taxpayer by outsourcing.
There are clearly important functions that have to be done by
people who are permanent employees of the Federal Government. I
think the flexibility this bill will give us is the ability to
put much more of that into regular members of the civilian work
force, instead of either going to contractors, which is a work-
around we engage in too often because we don't have the
flexibility, or in having uniformed military perform those
functions, when in fact we have an enormous stress on our
manpower as it is today.
Admiral, do you want to add to that?
Admiral Clark. We are across every front. I look at my
whole human resource, the whole force structure as the active
duty military, the Reserves. I have 381,000 in the first group
and 85,000 in the second group, 200,000 civilians in the GS
area, and a couple hundred thousand contractors.
Across this whole front, the challenge that we are laying
on our whole Navy, every aspect of it, is, help us be more
effective. Help us be more efficient. That is for every element
of this structure.
It is my conviction--and having observed the way we have to
work around--that one of the things we need to do is reclaim
work for government civilians that we have now out in the
contractor world.
We have living proof that we are unable to do that with the
inflexibility of the system. The inflexibility gets to the time
factor, first and foremost. While this is being discussed, I
have people calling me: Hey, boss, if you get a chance to
testify there, tell them it took me a year and a half to get my
person hired. These are real-world cases. They are not
mythology. That is the issue.
With the number that has been used about how many people we
have that are wearing uniforms that are doing things that are
fundamentally nonmilitary in terms of having to--they are
associated to defense, it is very clear to us that we need to
move part of the work force into another segment, our four-
element segment of our whole human resource pool. I am
convinced that this legislation will allow us to do that in a
much more effective way.
At the end of the day, no bones about it, what I am looking
for, I want to send proposals up through the Secretary of
Defense and to the President to come to the Congress to allow
me to transform the military.
Yes, we won big. We want, in every fight with a potential
enemy in the future--we are not looking for fair fights. We
want to apply the technology. We want the blinding speed that
we saw in the last one. We want them to see it again.
We want our kids to have the tools. To do that, we have to
have the very best people we can bring to bear to provide for
the national defense.
General Pace. Sir, if I may--I realize we are over time,
Mr. Chairman--there is nothing more important than the
obligation that I and each of the Joint Chiefs has than taking
care of those in the Armed Forces. That is our sacred trust, to
ensure we do the right thing by our people as we accomplish our
mission.
My personal background is one where my father came to this
country as a young man. He grew up in New York City. He joined
the International Brotherhood of Electrical Workers, Local No.
3 in New York City. Everything my family has, and my mom's
current quality of life, has to do with things that my family
got through collective bargaining.
When I looked at the proposals that were coming over here,
one of the main things I looked at was to ensure that we were
doing right by our civilian force while we were doing right by
our mission.
The specific words may be wordsmithed to make sure that we
have not inadvertently done damage to someone that we did not
mean to. But, clearly, the intent of this legislation is to
take a superb civilian work force and to ensure that we can
recruit it, that we can hire it, and that we can pay for it
properly in the future so that they are treated properly as
essential members of the team, just like everybody else in the
Department of Defense. Thank you, sir.
Chairman Tom Davis. The gentleman's time has expired.
Thank you very much.
Ms. Norton. Thanks for bearing with us.
Ms. Norton. Thank you very much, Mr. Chairman. I appreciate
that you have afforded us at least one further hearing on the
most complicated proposal, I think, that has ever been
presented to this committee with respect to the civil service
system.
Before I ask my question, I would like to say to all of you
at the table, I am a former chair of the Equal Employment
Opportunity Commission. I could not be more outraged at the
kind of discrimination that could arise from this proposal. You
have high-profile sexual harassment in the Air Force Academy as
I speak. Racial discrimination is the ugly scar still present
in our country, and you have a proposal here that would deprive
Federal employees who already don't have the same equal
employment rights that civilian employees have already--you
would deprive them of any third-party review, which would mean
they would be reviewed by their own agency for discrimination
by their own agency. You would even eliminate or make waivable
the right to file a complaint of discrimination before the
Equal Employment Opportunity Commission.
Sir and Lady, the Equal Employment Opportunity Commission
is the only expert agency on discrimination in the Federal
Government. The notion that a third of the work force can't
even file anymore at the instance of the agency head is
disgraceful.
Now, let me go on to ask another question, having put that
on the table and others having raised it. I appreciate that the
witnesses have come forward. I want to congratulate the
Department on the way in which it is carrying out its military
mission.
I want to say to you that you are carrying out that mission
from the way you have done the bombing to the compassionate way
in which you are now carrying out the renewal in a way that
makes me proud. But employees have approached us such that one
would think that you were trying to imitate aspects of the
regime you have just defeated in the way this proposal reads.
And I just want to tell you why that is the impression that
you have given. OPM has been neutered, just as well bowed out,
genuflected, not in it, pay for performance. But, according to
GAO, no performance appraisal system is in place, so employees
don't know what in the world is going to happen.
Imagine yourself one of the one-third of the work force
that is reading what is proposed to happen to them. Imagine how
you would feel: no consultation with representatives of the
employees who, by the way, have to make this system work if
human capital means anything in your department; abolition or
waivers of almost the entire civil service system.
And, finally, the part that outrages me most, to the
general public we say to you, no notice and comment. All of
this can be internal to us. That is why I think my comments
about imitating aspects of the regime you have just eliminated
were appropriate.
Now, I am concerned that if you are going to do this, there
ought to be some real emergency that makes us rush to the
table, to discard all that we have done as wrong and perceived
quickly without scrutiny or the kind of review we give even
lesser proposals.
As I understand it, Secretary Rumsfeld wants to transform
the entire Defense Department. I commend him for that. It
needed to be done before September 11th. Since September 11th
it is imperative and indispensable. But if that is to be done,
as I recognize the Department, there are three parts of it that
are major.
There is the military part, and I thought the whole point
was to match the civilian and the contractors to the military
part so that it all runs smoothly. But as I read what the GAO
said, there is a criticism that goes to the heart of what is
proposed here, because according to the GAO, in order to
improve human capital strategic planning for the DOD civilian
work force, GAO recommended that the Secretary of Defense
direct the Under Secretary of Defense, Personnel and Readiness,
to assign a high priority to and set a target date for
developing a department-wide human capital strategic plan that
integrates both military and civilian work forces and takes
into account contractor roles and sourcing initiatives.
We are given no plan for integrating anything. In fact, the
Department's response was simply not to concur that kind of
integration was necessary. So how are we to know that we are
putting the cart before the horse? How are we to know that
whatever you do to the civilian side is really going to match
up with the military side and the contractor side?
Chairman Tom Davis. Thank you.
Mr. Wolfowitz. Mr. Chairman, I have said I would like to
submit something for the record. But I think it is important to
state clearly that this legislation leaves completely intact,
as I understand it, merit system protections, it leaves
completely intact prohibitions on prohibited personnel
practices, it leaves intact equal employment opportunity
provisions, it leaves intact veterans' preferences.
Ms. Norton. Excuse me. I want to read to you what in fact
the bill says.
Relating to the sense of the Congress, the sense--what you
downgrade, you downgrade the rights of these employees because
you make it a sense of the Congress that employees are entitled
to fair treatment in any appeals.
You do not in fact make it enforceable as it now is, but in
fact it is waivable.
Chairman Tom Davis. The gentlelady's time has expired.
Ms. Watson.
Mr. Wolfowitz. If I might respond, we have worked closely
with Kay Coles James and her people in OPM to try to make sure
that in fact those protections are included in the bill. I
think we achieved it.
I would like to ask Director James if that is her view.
Ms. James. That is, in fact, my view. I would also like to
say for the record that OPM does not feel neutered through this
process. As a matter of fact, the legislation states clearly
that the Secretary, working in conjunction with the Director,
will implement the new systems within the Department. And we
know, in close consultation with the Department of Defense,
that it is not their intention in any way to water down those
civil service protections.
Chairman Tom Davis. Thank you.
Ms. Watson.
Ms. Watson. I want to thank the Chair and the witnesses. We
appreciate your bringing those issues to us.
Can I get a yes or no answer, Mr. Wolfowitz, to these
questions?
As I understand the bill in front of us--and I asked for it
so I can read the wording. I am not used to working in the
dark; I am used to looking at each word of a legislative
document, because that then will become the law.
Yes or no, are you eliminating employees' collective
bargaining rights which are set forth in Chapter 71 of Title 5,
yes or no?
Mr. Wolfowitz. My understanding is, we are amending those,
we are not eliminating them.
Ms. Watson. Amending or eliminating. I will ask staff to
check the language to see if you amend or you eliminate.
As I understand, this bill completely strips Federal
employees of their collective bargaining rights. Yes or no?
Mr. Wolfowitz. I believe that is wrong. It changes the way
in which it is done. It consolidates collective bargaining at
the national level. I do not believe it is correct to describe
it as stripping them of their collective bargaining rights.
Ms. Watson. Does the bill waive Chapters 75 and 77? Does it
waive?
Mr. Wolfowitz. It gives the Secretary authority to waive
those chapters.
Ms. Watson. All right. The Secretary is part of the
executive branch?
Mr. Wolfowitz. Yes.
Ms. Watson. The Congress is the legislative branch. So do
we have a constitutional issue here? If the Secretary then
makes those decisions, we make policy. So if I understand,
Chapters 75 and 77 are waived by the Secretary if he or she
chooses; therefore the policy will be made with the Secretary
and not with the Congress?
Mr. Wolfowitz. Obviously that waiver would require
legislation. But I think, more importantly, if the Secretary
would waive some of those provisions, that would be something
that is reviewable by the Congress. And if----
Ms. Watson. After the fact, as I understand from the bill;
is that correct? I am reading the words of the bill itself. So
we can prepare pertinent and relevant amendments. But from the
way I read the bill, the decision would be in the hands of the
Secretary to change policy.
Mr. Wolfowitz. Mr. Chairman, could I ask Mr. Chu to address
that?
Chairman Tom Davis. You may.
[Witness sworn.]
Mr. Chu. The proposal, which parallels what was given to
Homeland Security, does put the power to waive in the
Secretary's hands.
I think you need to look, in my judgment, at the
relationship between the Department of Defense and the Congress
on matters of this sort. It is a close and collaborative
relationship. The Congress gives extensive direction, both in
statute and its report language, as to how it expects the
Department to carry out provisions of the law.
Ms. Watson. But am I correct that by reading the
legislation--you see, you should not let us see the legislation
if you are going to give those kinds of answers.
But am I correct that the Secretary can make the policy and
then inform the Congress after it is made, confer with the
Congress?
Mr. Chu. I think that is typical of the grants of authority
Congress has given to the Secretary of Defense.
Ms. Watson. No, no, no. I am talking about the legal
language in the bill. Would you agree?
Mr. Chu. The proposed bill does give the Secretary power to
waive those chapters in order to reach the results Dr.
Wolfowitz described.
Ms. Watson. Thank you.
I understand that when national security is involved,
already currently law specifically allows the Department to
fire someone immediately. I have listened intently to the
witnesses. And I agree you need to have the flexibility,
particularly in hiring. Particularly in hiring we need experts.
We need people with the information, we need people who are
trained for the 21st century. I couldn't agree with you more.
What I am having problems with is the way we are going to
get rid of a lot of people who have been working within
government under some protections. So I understand that in
terms of the Department, DOD, there are already provisions
within the law to let that person who has been sleeping on the
job three different times go immediately. Is that correct?
Mr. Wolfowitz. No. My understanding in that specific case,
because you had to wait until it was three different times, you
couldn't just do it once. Even though that particular employee
already had been counseled on other aspects of misbehavior, it
took a year to get rid of that particular employee. So my
understanding is, you do not have that kind of flexibility.
The goal here is not to have large-scale RIFs of Federal
employees. As Admiral Clark has said, we face a problem that
large, very large numbers of our work force are going to be
eligible for retirement in the next few years, and we need the
ability to hire the right people in the right places to replace
them. If we don't have that, we are going to end up with more
of these contractor work-arounds and more people who are not in
the regular civil service when they should be, and more people
who are not in unions when they should be, a less motivated
work force and a less protected work force.
Chairman Tom Davis. The gentlelady's time has expired. If
you have additional questions, if you can get them----
Ms. Watson. I will put them in writing.
Thank you, Mr. Wolfowitz.
Chairman Tom Davis. Mr. Wolfowitz, I will try to get Mr.
Kucinich very quickly. I know that he has a question. Then I
will dismiss the panel.
Mr. Kucinich. I want to thank the Chair, and thank Mr.
Wolfowitz for remaining for this.
Every fair analysis indicates that this legislation would
have very serious negative effects on whistleblowers. The
transformation plan would eliminate the statutes that
established due process and appeal rights for disciplinary
actions; 75 and 77 of Title 5, which would provide that an
employee against whom a disciplinary action is proposed is
entitled to advance written notice of the disciplinary action,
reasonable time to respond, to be represented by an attorney,
and a written decision by the agency listing the specific
reasons for the disciplinary action.
The transformation plan really doesn't offer a replacement
for Chapters 75 and 77. It basically allows DOD to rewrite
those chapters to the satisfaction of management.
Let me tell you why this becomes very significant. We have
a case that on or about April 28, 2003, investigators from the
Office of Inspector General disclosed the identity of a key
civilian informant to his superiors at the Defense Finance
Administration in Cleveland.
Mr. Dan Drost, who is a financial systems specialist in the
Active Duty Navy pay division of DFAS, has been a key informant
in the Department of Defense's Inspector General's
investigation, into the causes of an erroneous privatization
that resulted in the waste of $31 million in taxpayers' money.
And as you may know, the Department of Defense Inspector
General has reported that the privatization of military retired
and annuitant pay functions were erroneously awarded to a
private contractor, whose bid exceeded the in-house bid.
The Department of Defense Inspector General's investigation
was significantly aided by the information given by this
whistleblower. Over the past 2 years, when the IG's
investigators desired face-to-face discussions with the
whistleblower, they made arrangements directly with him. They
met outside of the office. Their contact with him was
confidential.
For some reason this time, the IG investigators approached
upper management to schedule an interview with the
whistleblower at the recent visit. Upper management informed
Mr. Drost that they had scheduled a meeting with him to be
interviewed by the IG at the IG's request. Indeed, the IG
investigator went so far as to ask the whistleblower if he
would allow a representative from the DFAS headquarters to be
present at the interview.
The IG identified this whistleblower to his upper
management. The same whistleblower has been in contact with my
office in my capacity as the ranking Democrat on the oversight
subcommittee that has jurisdiction over the Department of
Defense. He has been in contact with my office for over 2 years
about this erroneous privatization of the military retired and
annuitant pay functions. He brought this case of abuse of
taxpayers' funds to my attention, was very helpful in providing
our office with materials that I used to press the Inspector
General for the above-mentioned investigation.
So, Mr. Secretary, this Mr. Drost provided information that
led to the identification of $31 million in abuse and waste of
taxpayers' funds. Now, because of the malfeasance of the IG's
office, this whistleblower has been exposed, and I am asking
you to give your assurance to this committee, notwithstanding
this matter of Chapter 75 and 77, that Mr. Drost will face no
retaliation, direct or indirect, that there will be no
reprisals, that you will be watching to see what happens and
there will be harsh consequences for anyone who tries to
retaliate against him, and that he should be thanked for
serving his nation.
Mr. Wolfowitz. Congressman, I agree that he should be
thanked. Whistleblower protections are not to protect the
whistleblower, but also the taxpayer so that we can get that
kind of information.
I am going to try to find out whether we have the wrong
regulations or the regulations that we have weren't followed
properly. But we have contacted the whistleblower in question.
We have given him both office and cell phone numbers of two
senior managers within the DOD-IG.
I will hold those people responsible to make sure that
there is no retaliation against him, and we owe you an answer
to your letter, which I think we got yesterday.
This is an important case, but as I have said over and over
again, there is nothing in this bill that is intended to reduce
protection for whistleblowers. I think it is an important part
of functioning effectively.
Mr. Kucinich. I appreciate the Secretary's responsiveness.
But there are provisions in this bill that would make
whistleblowers much weaker. And this case in Cleveland is a
graphic example of what happens, Mr. Chairman, if Federal
employees who are conscientiously doing their job to protect
the taxpayers are put at risk and are exposed. So I am asking
this case to be in the consideration of your Department when
you are looking at what happens to whistleblowers, because the
whistleblowers are the ones that save the taxpayers money.
We must protect them. And, frankly, Mr. Secretary, this
rewrite of these chapters does not accomplish that.
And I appreciate the Secretary's, Mr. Chairman, going on
record and stating that Mr. Drost will not only be appreciated,
but will be protected from any kind of reprisals by his
superiors.
Chairman Tom Davis. The gentleman's time has expired.
The whistleblower protections are not waived under this
act, to my knowledge. If the gentleman can cite me a section, I
will be happy to look at it and correct it. But we have
checked; I don't think they are not waived, but I appreciate
the gentleman bringing this up to our attention.
Mr. Kucinich. I thank the Chair.
I just want to respond that this transformation plan
doesn't offer replacement for Chapters 75 and 77. It would
allow DOD to rewrite those chapters to the satisfaction of
management. That is really going to be little comfort to
whistleblowers, because their right to protect the public and
blow the whistle might be protected, but their due process and
appeal rights, which are necessary to defend whistleblowers
against retaliatory actions will be eliminated in favor of
whatever replacement process that they want to come up with.
So that is the point I am making. I appreciate the kindness
of the Chair in making sure I had the chance to make that
point. Thank you.
Chairman Tom Davis. Thank you very much. I think I can
assuage the gentleman's concerns.
Secretary Wolfowitz, thank you very much. I think what I
would like to do is--I know other Members have questions of the
panel. I know you have to leave. I don't know if the Admiral
and General have to leave as well. But if we have Dr. Chu up
here, he can answer some additional questions on this panel, if
that is all right with you, Mr. Secretary?
Mr. Wolfowitz. Yes, it is. And if I might just, before
leaving, first of all, thank you, Mr. Chairman and the members
of this committee for helping us to look at this very important
legislation in an expeditious manner.
I would also like to affirm that we have worked closely
with Kay James and OPM, will continue to do so to ensure that
the protections that this committee and the Department of
Defense hold dear are fully protected and preserved.
I want to thank Director James for her partnership in that.
And I will make sure myself that these issues that have been
raised here with respect to whistleblower protection and EEO
protection are properly taken care of in this bill. I have been
assured that they are. I will make doubly sure.
Chairman Tom Davis. Thank you very much.
Dr. Chu, you have been sworn so you can get up here and--we
are going to move with Mr. Janklow for questions. Then I have
Mrs. Maloney next, Mr. Clay after that, and then Mr. Davis.
Mr. Janklow. Thank you very much, Mr. Chairman.
If I could, and I would like to ask you, Ms. James, if I
could--first of all, just a comment. Many of us in America have
felt that the Department of Defense's primary function is to
defend this country and, when necessary, deal with offensive
actions on behalf of this country and, when necessary, deal
with defensive actions on behalf of this country. And the best
team to put together to do that isn't always known in advance
all of the time.
If I could ask you--and, first, let me ask you, General, if
I could--in the Armed Forces, when you decide to make a change
in somebody running an operation on the military side, how long
does it take you to do it?
General Pace. Usually a commander takes his time to make
the proper leadership decision. Once he has decided on a course
of action, he directs it immediately, sir.
Mr. Janklow. When the defense--sometimes maybe even the
survival of this country or some of its people are at stake,
you can move very quickly, because you have to move very
quickly.
What is the difference between the civilian side and the
military side, if there is one, when it comes to the real
defense of this country? I realize some rare--they carry
weapons and, you know, engage in combat operations.
But why should the civilian side--you don't have any reason
why the civilian side should be any different in the Defense
Department?
General Pace. Sir, from my perspective, the civilian side
is very much an embedded part of the Defense Department, and is
very much a part of our team. They provided invaluable support
to our Armed Forces during recent combat operations. We should
have the same rights for all members of the Armed Forces,
whether they are wearing uniforms or not.
Mr. Janklow. Ms. James, if I could ask you, ma'am, one of
the statements made, if somebody were to sleep three times on
the job, then they could be fired. I don't know what the rules
are in the Defense Department right now. Can you sleep three
times before you get fired?
Ms. James. Well, there may be managers out there who would
hesitate to take action because of the burdensome processes
that are in place. But those processes are there to protect
employees from what may be overly zealous managers or for
retaliation or those sorts of things.
Our desire is to improve and shorten the appeals processes,
not to strip them away. So we are not implying that person
should have no rights or no rights of appeal or process. But
certainly the ones that are in place are overly burdensome and
cumbersome.
Mr. Janklow. I realize this has grown up over a long period
of time. We start out everything, like we do in America, small;
and then we never subtract, we just keep adding all of the
time. So things become cumulative.
But recognizing that they become cumulative--and I also
recognize that there would be very significant changes in the
Department of Defense--one, could you give me an example of any
administration, be it my party or the other party, that would
not want the best possible people at the moment being employed
in the Department of Defense at any level, in any capacity?
Ms. James. I can't give you an example of anyone in any
administration, this or previous, that does not feel the same
level of frustration with the outdated and antiquated systems
in which they have to operate.
I have often said that if you take America's most creative
and innovative CEO, that is known as a ``turnaround artist,''
that can go in and make a company turn a profit and produce
results, hire that person and put them in a Federal agency and
say, you must operate within the confines of these systems,
they would be very frustrated in a very short period of time.
And so our challenge is to try to figure out how to save
the best of the American civil service, all of those
protections that we talked about, but at the same time reform
the systems that are in place under that service.
There has been a huge cry in this country for civil service
reform for a very long time.
Mr. Janklow. Ma'am, before this committee we had Paul
Volcker, Mr. Carlucci and Ms. Shalala testify on behalf of a
commission that they are all members of, all expressing the
frustration that they have had in trying to administer the
Federal agencies.
Using the Department of Defense, the Securities and
Exchange Commission and NASA as really a pilot project, really
three crucial agencies, all three of which have had unique
trauma over the last 3 years--clearly within NASA, clearly
within the SEC in terms of protecting shareholder and investors
in America, and the Department of Defense upon which this
country's absolute survival, within which it rests--this is
just a comment, Mr. Chairman, but I can't imagine any place
that is more ripe for pilot project restructuring than these
particular agencies.
Thank you.
Mrs. Davis of Virginia [presiding]. Thank you, Mr. Janklow.
Mrs. Maloney.
Mrs. Maloney. Thank you very much.
And thank you all for your service. Mr. Wolfowitz in his
opening comments said that one of the reasons that we need this
massive change is September 11th; and as one who represents New
York City--I lost 300 constituents on that fatal day--September
11th changed many things.
But, certainly, the professional employees on the city,
State and Federal levels, by all accounts, were heros and
heroines, many of whom gave their lives volunteering, they
weren't even supposed to be in the office, rushing in to be
part of the bucket brigade in the effort to save others.
And I would say the military's success that we have seen in
Iraq is again testimony of the flexible, responsive, hard-
working civilian forces that were there supporting them.
So my question is, where is the problem? And when you talk
to the head of the General Accounting Office, Comptroller
Walker in his testimony, he urges against these massive,
sweeping changes, and urges us to go forward statutorily with
the changes that we need. And I would like to put in the record
an article that was in the Washington Post today, entitled,
``Hill Should Heed GAO's Chief's Cautions on Civil Service
Changes at the Pentagon.''
[The information referred to follows:]
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Mrs. Maloney. Likewise, the GAO, the independent body, came
out with a list of violations, challenges, questions, whatever
you want to call it, questioning DOD's strategic plan. So
before we go in and throw out a system that worked tremendously
well on September 11th, tremendously well in the current
challenge that we just went through, to put in what?
And we don't even know what we are going to put in, because
you haven't come out with it; and I find that tremendously
troubling. If there is a problem, let's fix it. I don't think
anyone thinks that someone should have a Federal job and sleep
on it. If that is the problem, fire the person or create a
system where you can fire the person. But don't go in with a
sweeping change that we don't even know what it means.
And GAO serves a purpose. One of the arguments that was
made is that the elected officials come and go, the appointed
officials come and go--the appointed officials are here roughly
18 months--but that it serves a purpose to have a professional
work force that is there through many administrations, who
knows how to get things done, and whose sole purpose is to
serve the citizens of this country and not necessarily a
particular party. They are supposed to be independent and
serving whoever is there.
Now, GAO came out with a recent history of DOD. And in it,
the Comptroller General gave the Department a D-plus, as being
poorly managed. And they then cited that DOD had over $1
trillion worth of transactions that were unaccounted for last
year.
So before we turn over sweeping changes that we seem to
disagree on what they are, I would like to know what happened
to that $1 trillion? I think that is a good first start to find
what happened to $1 trillion the DOD says is missing. And they
further say that DOD is responsible for 9 of the 25 highest
risk areas in Federal Government, including decades-old
financial problems.
Now, why should we change this? Many of my colleagues have
pointed out questions, and you--the panel seem to disagree.
They say that certain protections are not there, and they cite
from the law that they are not there. You say that they are
there.
I think at the very least, before we move forward in 10
days, which is what is planned to pass this, we agree on what
is in it. And if it is such a good bill, then why are you
rushing so quickly to push it through before we have a clear
understanding of what is in there?
My colleague raised sexual harassment, that in the law that
you are changing, that you then appeal to your supervisor. To
the contrary, you have to have an independent person supervise,
look at this. It could be the supervisor that is causing that
problem; and if it is, if you say you are going to manage it so
well indeed. DOD is saying that you are not, that there is $1
trillion missing, you have no plan in place--you are changing
everything. And my question is, why--if it is such a great
plan, why can't we work through what is exactly in this bill
and understand it in a bipartisan way?
One of my colleagues said we are talking past each other;
people are reading lines of the bill, and you are saying it is
not true. And I go back also to the comment of Comptroller
General Walker. If there is a problem, we all want to correct
it. Let's correct it statutorily.
But to take everything that has been put in basically to
protect taxpayers' dollars, to protect a work force that is not
political cronyism, but is hired on merit to perform work
through whatever party is in power, that all of these
safeguards shouldn't be removed.
So my question is, if it is such a great bill, why are we
moving so quickly before we decide together what is in it? The
testimony has really, quoting line by line, been refuted back
and forth today.
And second, why not follow what the Comptroller suggested.
If there is something wrong, then let's statutorily correct it,
but not give sweeping control of a massive area of government
to an agency, by professional accounts, in its financial
management--I would consider losing $1 trillion a serious
situation.
I would consider getting a D-plus on your management
serious. I would consider having a--GAO called it nine of the
highest risk areas in the whole Federal Government for
mismanagement are in DOD. Why in the world should we then turn
around and give you sweeping powers to totally change
everything when you haven't run it well to begin with,
according to DOD and management--excuse me, according to GAO.
[The prepared statement of Hon. Carolyn B. Maloney
follows:]
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Chairman Tom Davis. The gentlelady's time has expired. I
think that is why they are asking for changes so they can bring
that D-plus up.
Dr. Chu, do you want to respond to that?
Mr. Chu. Absolutely. Let me try to respond very briefly to
your question and to your concern with the sense of urgency
here.
First of all, we, like you, greatly admire the performance
of the civilian employees of the Federal Government. Especially
those at the Department of Defense, and likewise at the
Pentagon, September 11th, performed heroically. In many
instances, I fear, it is our conclusion that they performed so
well despite, not because of, the rules under which we must
operate. It is those rules that we seek to modify.
Mrs. Maloney. Excuse me, sir. What specific rules made it
impossible for our civil servants, those that ran to--September
11th to save lives, those that worked so brilliantly to support
our military, what specific rules made it impossible for them
to perform their job?
Chairman Tom Davis. Mrs. Maloney, your time has expired. He
is trying to answer the last question. But we have got to stop
it, so we can move on.
Mrs. Maloney. Mr. Chairman, I have a few written questions,
and I would like to put them before the panel and have them
answered before you move forward.
And I would like to know where that missing $1 trillion is.
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Mr. Chu. If I can just briefly address your concern with
urgency.
Dr. Wolfowitz testified to our need to move post's from
military to civil status. We also are in the process, as the
military leadership would say, of resetting the force.
You have heard General Jones in Europe talk to a different
position there, units coming out of Europe. We have announced
that the operations are coming out of Saudi Arabia. We are
moving our forces in Korea to a better position. A great deal
is changing right here and now in the months immediately ahead
of us.
We would like to be able, in many instances, to use civil
servants for some of the new positions being created. That is
the essence of the urgency in front of this department.
Mr. Janklow pointed to the long history of other experts
who have likewise urged that we modernize these rules. We are
seeking to do so in a way that is timely to the immediate needs
of the Department of Defense in the future--the near future
security--of the United States.
Mrs. Maloney. Well, the GAO says you don't have a plan in
place. They are calling for you to move statutorily and not to
go forward until you have a plan in place. That is the
independent GAO talking.
Chairman Tom Davis. The gentlelady's time has expired.
They also support the concept of doing this. They have
asked for the same powers for their own agency.
Mr. Turner.
Mr. Turner. Thank you, Mr. Chairman.
Well, first off, I want to congratulate our chairman on his
leadership in addressing this issue. We have all known that
this has for a long time been a significant issue for the
Department of Defense, an issue that has impacted our military
on the issue of flexibility.
It has also been an issue that has been a considerable
amount of frustration for the employees that will be affected
by this as they have seen others who are working with them that
have not been able to--where management has not been able to
have the flexibility that is needed in order to get a project
done or to achieve team goals.
I have a couple of questions concerning the language that--
as to what is before us, though. In looking on page 22 of the
bill, we have the goal that is stated in subsection 9904 of the
Employment of Older Americans; and this, of course, is intended
to give you an ability to have the full market of potential
employees available to you as you look to fill positions. A
provision in that section talks about individuals who take
these positions would not be penalized in current pensions,
annuity, Social Security or other similar payments they receive
as a result of prior employment in conjunction with this
employment.
Can you talk a bit about the problem that is associated
with this and how this language will help?
Mr. Chu. Yes, sir.
As Dr. Wolfowitz testified, we have in front of us a wave
of retirements over the next 5 to 10 years. We are very eager
to bring back some of those with expertise to serve as mentors,
to help with the transition.
We recognize that to do so now they face a significant
financial penalty. We would like to remove that penalty. I
believe the specific provision you talked to would have a term
limit on it of 2 years, with an option to renew for 2 years. So
it is intended to help us move through the human capital
replacement--some call it a crisis, I know that has been GAO's
phrase--in a manner that allows us to benefit from the
experience of, as you might put it, the ``old hands.''
Mr. Turner. Many times when people implement these types of
provisions where someone can retire and then return in another
position, they have a waiting period to avoid people day 1
retiring, day 2, immediately being back on the payroll again,
and causing therefore an incentive for increased costs, not a
reduction in costs.
I notice that you don't appear to have a waiting period. Is
that something that you considered? And, if so, why is it not
included?
Mr. Chu. I think our approach to this, and I think you are
specifically speaking to the provision affecting Federal
annuitants, our approach in that regard is to recognize that
many of those people are going to go out and work,
alternatively, for the private sector. So it is not as if they
are not going to collect their annuities.
The issue is, if they are the best person for us, and it
may be someone who has retired from another agency, maybe
someone who has retired from our own agency, should we have
authority to take advantage of their talent? That is the import
of this provision.
We are very sensitive. We monitor this issue, particularly
with high-grade employees. I look at those numbers myself in
terms of what we do. We want to be very careful not to go where
I think you are warning we have to be cautious about. We don't
want to give people the opportunity just to switch titles and
take advantage of the system, but we want to be realistic.
These people are going to retire anyway.
The issue is, can we continue in specific cases to
advantage ourselves with their experience?
Mr. Turner. The language, that many people on the committee
have focused on, that is of concern--which is unusual language
in a statute--is when the Secretary receives sole, absolute and
unreviewable discretion. That language is certainly incredibly
broad, and is one that is not commonly found in a statute that
is empowering someone in the Federal Government.
My concern with the unreviewable discretion is that we have
the issue of Congress providing that authority. And the fact
that Congress, of course, would want to retain its oversight
authority throughout this process.
Obviously, since we would be enacting this, we would want
to monitor it to make certain that it is being implemented
effectively and that if there are any changes that need to be
made, that those changes be made. I have not seen anything that
would ensure that there wouldn't subsequently be an argument
made that Congress, by giving unreviewable discretion, was
somehow pushing aside its oversight authority.
Mr. Chu. It is my understanding, sir, that this does not
override the powers of Congress to review and conduct
oversight, to come back and take whatever action it thinks in
its best judgment is necessary in the instant case. This does
not affect the powers of the Congress.
Mr. Turner. I think that is the part that is the most
important, because this is an experiment. We are looking to see
the benefits occur; and as we monitor it to determine whether
or not those benefits are being realized, we can know if we are
going in the right direction or if it needs to be modified.
Mr. Chu. Absolutely, sir.
Chairman Tom Davis. The gentleman's time has expired. Thank
you very much.
Mr. Davis, the ranking member on the subcommittee, thanks
for being with us.
Mr. Davis of Illinois. Thank you very much, Mr. Chairman. I
want to thank the witnesses for testifying and for their
patience.
Dr. Chu, let me just ask you, from 1883 when the civil
service system first began, it has been undergoing change; and,
I think, the changes are designed basically to make the system
more effective and to protect the rights of workers and to give
them a voice in decisions.
And now we are proposing, in one action, to take away or
seriously diminish, undercut, many of those provisions which it
has taken us years to arrive at.
We have just gone through a rather successful military
action; and we have had other activity in which the Department
of Defense has been greatly involved without any serious
impediment, to my knowledge, to its ability to do its job, to
carry out its functions.
Can you tell me what is so threatening at the moment or
what great need exists for us to move with so much haste and
dispatch to put a new system in place--and I might add, a new
system which takes away all of those years of struggle and
progress that have resulted in a better work force and greater
protection for our civilians? Could you share with me what this
great need is?
Mr. Chu. Would be delighted to, sir, but first let me speak
to this issue of protections.
I think some of the quotations this morning or this
afternoon have been to the sections that could be waived. I
think it is important to look at the provisions in the proposed
legislation that list the nonwaivable sections. It is there, in
particular, Section 2302, for example, 2302(b), where much of
the employee protections that I believe are your sincere
concern can be found.
As to the urgency, as Dr. Wolfowitz testified, we are about
to undertake a major review of military slots where, in our
judgment, the same positions could be filled equally well by
civilians, perhaps as many as 320,000. We would like to have
civil servants considered for those opportunities. It would be
very difficult in many cases to do that under the present
structure, and hence the urgency to seek new powers from the
Congress.
Likewise, as I indicated, we are in the process of, as the
military leadership would say, resetting this force,
repositioning this force. It is affecting our forward-stationed
forces around the globe. That is going to have an effect on the
civilian positions we will need. Again, we would like civil
servants to be considered as one option for some of the changes
that are under way or soon to be undertaken.
Mr. Davis of Illinois. OK. So you are going to say that you
are going to be able to shift some of the work from military to
civilians, and that is one of the reasons. Then let me just
move on, because my time is going to end up expiring.
Director James, let me ask you, I mean, you have made it a
point during your tenure--I must add, with high marks of
seriously reaching out and involving stakeholders, unions,
professional societies, associations and other groups in
proposed changes or decisions that have to be made--this
legislation, unfortunately, shows no such action on the part of
the Department of Defense. And so my question is, how do we
reconcile your approach to that which has been taken by the
Department of Defense with these proposed changes and with this
legislation?
Ms. James. I have spoken to Dr. Chu as well as to Secretary
Wolfowitz. And as we look at this important legislation that
DOD certainly needs and needs now, it is my understanding that
as they move forward, it is absolutely their intention to be
inclusive, to involve stakeholders, to have the appropriate
people at the table as we move forward and develop the systems
that will--are so necessary and so important for the civilian
employees in the Department of Defense right now.
Mr. Davis of Illinois. So you would expect also to be
involved, as the Director of OPM, in further development of the
implementation of this activity?
Ms. James. Absolutely.
Mr. Davis of Illinois. Mr. Chairman, if I may--Admiral,
there has been some discussion about restrictive civil service
laws and how they might prevent contracting out, or the ability
to move that. Isn't it true that there is an administrative
mandate, that 15 percent of the work of DOD has to be
contracted out this year and 30 percent next year? And if there
are any difficulties, could it not be coming from the
administrative mandate rather than any civil service
restrictions?
Mr. Chu. No. I believe what you are speaking to is a
requirement that we review various areas in the Department to
determine what is the best source of the work.
What we are going to do here is make it possible for civil
servants to benefit from the shifts from military to civil
positions, from the shifts coming out from our forces overseas.
The alternative, in too many cases with the current rules of
the game, which are the rules we are seeking to amend, the
alternative is, it goes to a contractor because it is easier,
it is more flexible, it is more responsive.
We would like to make the civil service competitive in that
regard.
Mr. Davis of Illinois. But we have no mandates that we
contract out at least 15 percent?
Mr. Chu. No. We have a mandate to review.
Chairman Tom Davis. It is a competitive sourcing. It is a
15 percent competitive sourcing mandate, one which myself and
Mr. Davis and the House voted against, but survived the
conference.
But competitive sourcing doesn't mean it goes out, it just
means that work that is currently within government is then
reviewed to see if it should go out. In more than half of the
situations the government wins, as a matter of fact.
Mr. Chu. Yes, sir.
Chairman Tom Davis. The A-76 circular on which this is
based is being revised. We are watching it very, very
carefully, Mr. Davis. I look forward to working with you on
that. But there is no quote on work that should be outsourced.
I think one of the purposes of this legislation, and we
have heard Mr. Wolfowitz, Secretary Wolfowitz, today under oath
say that there would be more Federal--civilian Federal
employees as a result of this, because of the 300,000 personnel
that are uniformed that are behind desks, and the contractors
that are being used to get around some of the rules. So we have
that on the record.
But I appreciate the thought.
Mr. Davis of Illinois. Thank you, Mr. Chairman. And I
appreciate your position relative to this issue.
[The prepared statement of Hon. Danny K. Davis follows:]
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Chairman Tom Davis. The gentleman's time has expired.
This panel has been great. You have drawn a lot of fire. We
have our panel who has been waiting patiently in the back. I
want to thank all of you for being here today. I think there is
some supplemental work.
Dr. Chu, we are going to want to work with you. Today, I
have talked to Mr. Waxman about getting us together and
addressing some of the issues that we can answer and maybe
write some amendments too. But we appreciate everybody--General
Pace, Admiral Clark, Ms. James, thank you all very much for
your patience. I call our next panel, give just a brief recess,
because they are on a time schedule. They have been sitting
waiting in the back.
We are just pleased to have the Honorable Sean O'Keefe, the
Administrator of the National Aeronautics and Space
Administration, and the Honorable William Donaldson, the
chairman of the Securities and Exchange Commission.
The good news is, I think the first panel drew most of the
fire. So maybe this panel will not be as lengthy and we can
move quickly.
Gentlemen, if you would just raise your right hands, I can
swear you in.
[Witnesses sworn.]
Chairman Tom Davis. I understand you are each under some
time restrictions. So I will let you get comfortable.
Mr. O'Keefe, when you are ready, you can start. We have a
red light in front. It will turn orange after 4 minutes, red
after 5. You can sum up there.
The same with you, Mr. Donaldson. We will go to questions
and try to get you out of here in a timely manner.
Thank you both. I apologize. Obviously, the proposal here
has drawn a lot of support and concern among Members, a lot of
clarifications; and I think the first panel answered most of
that. Both of the proposals on your agency have been vetted,
too, through their authorizing committees as well. And why
don't we go ahead and testify when you are ready?
STATEMENTS OF SEAN O'KEEFE, ADMINISTRATOR, NATIONAL AERONAUTICS
AND SPACE ADMINISTRATION; AND WILLIAM H. DONALDSON, CHAIRMAN,
SECURITIES AND EXCHANGE COMMISSION
Mr. O'Keefe. Thank you, Mr. Chairman. I appreciate your
introductions and certainly your willingness to be patient to
hear from us. I have just returned last night from Russia,
where we witnessed the landing of the Soyez capsule with two
American astronauts and one cosmonaut aboard. They were safely
recovered after a considerable search-and-rescue operation that
had us all rather tense.
But all of the folks who were associated with that, both in
Moscow at the NASA facilities there, as well as at the Johnson
Space Center in Houston, and across the agency who were engaged
in that activity, are engineers and technical folks who fit the
composite sketch that very much is agency-wide; that is, in all
likelihood, of all of the people helping in that recovery
operation, there were three times as many folks engaged in this
activity who were over 60 as under 30. They were all with
experience levels of 25 to 30 years in large measure.
They are, most of them--a good quarter of them are facing
or are eligible to retire within the next 3 to 5 years, and at
present, a good 20 percent of them are eligible immediately.
So, as a consequence, the efforts and the extraordinary
diligence that was expressed and demonstrated over the course
of that harrowing few days, and certainly a harrowing few
hours, was exerted by a number of folks, who in all likelihood,
will not be part of the agency in the next few years.
There is very little likelihood we are going to have a
strong prospect of recruiting comparable competent
professionals of their caliber unless the kind of authorities
and the opportunities that we have requested as part of this
particular package are made available.
The challenge that we face is again probably not
substantially unlike what we see across most Federal agencies
and departments. Nonetheless, there are some rather unique and
peculiar circumstances that require our attention now before it
becomes of crisis proportion.
There are 19 separate reports and studies over the course
of the last 2 years alone that have reported to this committee,
and others of oversight across the Congress, identifying this
peculiar set of circumstances in which the better part of two-
thirds of our work force are in the science and engineering
communities and, as a consequence, are of higher rates of
eligibility for retirement in the course of that time, to be
capstoned, I guess, by the observation of the Comptroller
General that this is the No. 1 challenge that we face in the
strategic management of human capital.
This is not a crisis today, no question about that. We are
not alerting this as a specific red flag at the moment. It will
be, though, in fairly short order. It is right on the horizon.
The President's proposal was submitted just a year ago to
the Congress, is largely embodied in the language that is part
of your bill, Mr. Chairman. And we thank you again for the
diligence that you, your colleague, Mr. Boehlert, on the
Science Committee, and the colleague on the other side, Senator
Voinovich, have demonstrated to initiate the action on this
particular effort, following the legislative proposal that the
President advanced just last June.
So the action and the movement on the part of both the
House and the Senate at this particular time is not only
welcome, we are most impressed and pleased to see that there is
specific attention to this set of concerns that again shows a
diligence and responsibility to get ahead of this particular
challenge at this time, rather than waiting until it becomes a
crisis circumstance.
Our problem, and I would suggest this simply in closing,
is, again, in forecasting the likelihood of where we are in
terms of overall work force composition in the years ahead is
not only the age variable--and that, again, is attenuated by
the fact that there are more folks eligible for retirement
today, and growing, than what we have seen in the recent past.
So our challenge is not only recruitment for those now in
order to make sure there is some experience base that will be
trained and mentored by those folks during the course of their
experience, but also to retain as many of the really
extraordinary, skilled folks that may be confronting or
weighing the alternatives of retirement in the years ahead.
Moreover, we have a very limited pool of cohorts to choose
from and to recruit from, given the fact that the number of
science- and engineering-related kinds of graduate degrees has
declined in the last decade by the better part of 20 to 25
percent in very selective fields. As a consequence, there are
fewer folks who are eligible and interested in this range of
activity. So we need to get ahead of that to recruit, retain,
and to look at mid-level entry from a variety of different
opportunities. And this bill covers all of those fronts.
We thank you again for your leadership in moving this
forward, sir. Thank you.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. O'Keefe follows:]
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Chairman Tom Davis. Mr. Donaldson, thanks for being with
us.
Mr. Donaldson. Chairman Davis, Ranking Member Waxman,
members of the committee, thank you very much for holding this
very timely hearing on civil service issues facing several
agencies. You have my written statement for the record, so I
will briefly outline the very specific problem we are facing at
the SEC and how the chairman's bill offers a solution to that
problem.
You may be aware that dramatic changes have occurred in the
Commission's personnel environment during the past year. Thanks
in part to the efforts of this committee, the Commission has
been granted the authority to pay higher salaries and provide
additional benefits and has received increased appropriations
to fill over 800 new positions this fiscal year.
However, while the new pay authority and increased
appropriations have eased the Commission's crisis in hiring and
retaining attorneys, substantial difficulties remain in our
ability to hire accountants, economists and securities
compliance examiners.
The reason for this distinction between attorney hiring and
the hiring of other securities industry professionals is clear.
Attorney hiring is excepted from civil service posting and
competitive requirements, whereas the hiring of Commission
accountants and economists and security compliance examiners is
not.
When we are filling a vacancy under the competitive
service, the process can take months to complete. Under
excepted service authority, the hiring process can be completed
in a few weeks. The procedures required for hiring under the
competitive service system have proven unduly time-consuming
and inefficient. Let me just elaborate a little on that.
A position is usually posted for 2 weeks, and then several
days are allowed to elapse in order to be certain that all
applications have arrived in our Office of Administrative and
Personnel Management. After OAPM sifts out the obvious
incomplete and unqualified applications, a rating panel comes
in from the division or office that is seeking to hire and must
first review and rate qualified applicants based solely on
their written applications.
The rating panel in the division is made up of three or
more professional staff who are at or above the grade level of
the position being filled. These professional staff, often
managers, must set aside the regular duties of their jobs and
spend up to 2 days at a time rating applicants' resumes.
After the division's work in this phase, the file of the
applicants goes back to the OAPM where, based on the ratings
given by the division staff members, they check the work and
then send the top three to five candidates back. Then yet
another panel of selecting officials in the division or office
may begin the process of setting up interviews of these
candidates.
Beyond the cumbersomeness of the process, managers hiring
for these positions have found that the rating process often
favors not the best candidates, but those most familiar with
how to fill out the relevant application with key words and
phrases used by the various panels in rating the candidates
against specific criteria.
Also, because the hiring panel only sees the three to five
candidates identified by the rating panel, they may never see
candidates who are otherwise highly qualified and perhaps
better suited for the job, but who were not rated among the top
candidates under the ground rules of the competitive service
process.
This process, even when it works well, can take several
months to complete. But, if none of the top-ranked candidates
proves satisfactory, the position is often reposted and the
selection process starts all over again. Given our task of
implementing the Sarbanes-Oxley Act, our mission in overseeing
the financial markets and our role in restoring investor
confidence during these very difficult times, putting
additional cops on the beat more quickly to accomplish our
goals is absolutely vital.
Mr. Chairman, your bill, H.R. 1836, will do just that. The
provisions of your bill are substantially similar to H.R. 658,
which was introduced in February by Congressman Richard Baker
of the Financial Services Committee. On March 26th, Congressman
Baker's bill passed out of the Financial Services Committee
with bipartisan support.
I would like to take a brief moment to thank Mr. Kanjorski,
the ranking member of our authorizing subcommittee, for his
work and support in that process. At the urging of both Mr.
Baker and Mr. Kanjorski at their subcommittee hearing, we went
back and worked diligently with our union, the National
Treasury Employees Union, as well as with the Financial
Services Committee staff from both sides of the aisle, until we
reached a compromise that accomplishes the Commission's hiring
objectives without loss of any civil service protection of the
employees in the competitive service.
I want to stress my deep appreciation that the SEC
provisions of your bill respect this compromise and keep intact
those provisions we worked hard to craft in a way that all
parties now support. The bottom line is that the Commission
strongly supports the SEC provisions of your bill and hopes
that they will be adopted at the soonest possible time and
signed into law by the President.
Without expedited hiring authority, the Commission will not
be able to hire these additional staff it desperately needs,
and which Sarbanes-Oxley contemplates, in any responsive
timeframe.
Thanks very much for your consideration of these issues
and, again, for respecting the compromise we reached with our
union and our authorizing committee members.
I, of course, would be happy to answer any questions you
may have.
Chairman Tom Davis. Thank you.
[The prepared statement of Mr. Donaldson follows:]
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Chairman Tom Davis. Thank you both.
Mr. O'Keefe, thank you for flying all of the way back. You
probably have some jet lag in coming back. I appreciate this.
You were lumped in with DOD, simply because that was the
vehicle.
In a perfect world, we would examine all of government and
try to do this in a very systematic way. But sometimes the
clock and other legislative vehicles get the better. That is
why the clock--it is not driven by this committee; it is driven
by others and leadership, and we are trying our best to take a
deep breath and make sure that there is a level of
understanding.
I think the fact that, Mr. Donaldson, in your case, you
were able to go back with the NTEU and work those issues out--I
think that gives us a higher level of confidence, even if it
comes back before our committee.
SEC is a very attractive place for a young lawyer. You come
in there. You hire people. The difficulty is retaining them,
isn't it? After a while, they spend 2 or 3 years of experience,
they are pretty hot commodities out there in the market. That
is a pretty hot space for a young attorney to be working, at
the SEC, and the difficulty is retaining some of the talent,
isn't it?
Mr. Donaldson. Well, we do have a lot of very talented
people. We have a lot of demand out there in private industry
for those people who have gained the experience of working at
the SEC. So there is a turnover rate there.
Chairman Tom Davis. I mean, they go work for you for 2 or 3
years, they can go out in the private market and double, triple
their salaries with what they have gotten.
Mr. Donaldson. We have attended to that with the recent
authorization in terms of pay parity and so forth.
Chairman Tom Davis. Never be parity; you won't be really
close. But it is--and you found that you made additional
concessions when you sat down with the NTEU?
Mr. Donaldson. No, we basically have provided all of the
guarantees under----
Chairman Tom Davis. But you were flexible when you sat down
with them, and were able to satisfy each others' concerns?
Mr. Donaldson. Right, we were, very much so.
Chairman Tom Davis. Why is hiring accountants and
economists different from attorneys?
Mr. Donaldson. Well, the role of an accountant at the SEC
is considerably different from that at most other agencies.
Most agencies hiring accountants are hiring them to operate
within the agency in an accounting capacity, a managerial
capacity, as opposed to our accountants who are investigative
and analytical accountants out in corporate America.
Chairman Tom Davis. Mr. O'Keefe, let me ask you, in your
testimony you note that NASA has not historically suffered from
high attrition rates, but now retention is a much more relevant
issue. Is that the aging work force to some extent?
Mr. O'Keefe. Yes, sir, that is precisely it.
Chairman Tom Davis. NASA's legacy for space exploration and
aeronautical innovation is unmatched. In recruiting, hiring and
keeping top talent, it seems that NASA's name speaks for
itself.
So why do you need additional changes in the way you hire
and fire?
Mr. O'Keefe. Sure. Well, it is a draw card to be sure.
There is no doubt that the attractiveness to a range of
engineering and scientific disciplines coming out of
undergraduate and, principally, graduate and doctoral levels is
very attractive to go to a place like NASA.
But there are two challenges that we are dealing with. The
first one is that there are fewer and fewer folks who have the
kind of skill qualification mix that we are seeking.
Various universities and colleges around the country in
these disciplines have graduated about 20 percent fewer folks
with these skills in the last decade than we have seen before.
So, as a consequence, there is a smaller, diminishing cohort.
At the same time, we are seeing the same kind of phenomenon
that the Commission on Aerospace, for example, that Mr. Walker
chaired, is observing, that there is going to be a hiring
surge. At the same time, we are experiencing a challenge in
that direction.
The second problem is that the kinds of tools that we have
available, that are extant today, while they are competitive
for the purpose of bringing in graduate students, doctoral
students, or those with some degree of experience from
industry, it nonetheless turns sometimes on the very smaller
intangibles, like the capacity to provide moving expenses,
forgiveness of loans for graduate education programs that most
companies would otherwise provide. Those are the kinds of
things that we don't have or we have the capacity to get only
after a long period of time, in which case they have made a
decision to go somewhere else.
So we have got a very attractive high-end kind of first,
initial response from many folks with the kind of skill mix
that we are looking for. They eventually weary of the length of
the process that it takes, or our inability to come even
vaguely close to matching the kinds of opportunities they may
see elsewhere.
Chairman Tom Davis. OK. Thank you.
Mr. Davis.
Mr. Davis of Illinois. Thank you very much, Mr. Chairman.
Let me thank you gentlemen for coming and for testifying and
sharing with us.
Mr. O'Keefe, I understand that the Columbia space shuttle
accident is currently being investigated by a panel headed by
Retired Admiral Harold Gehman. One of the issues being
investigated is whether work force issues at NASA may have
contributed to the accident. It seems to me that it might be
premature to give NASA additional flexibilities at the same
time that an independent commission is studying the same
issues.
Is there a reason why Congress shouldn't wait until after
the Gehman Commission releases its report before we consider
this proposal for additional flexibility?
Mr. O'Keefe. I don't believe that your statement of the
facts is exactly right. Admiral Gehman and the board are
examining--among many, many aspects or factors that may have
contributed to the accident, looking at the overall management
process, the work force competencies, as well as our
organizational procedures in terms of how this process goes.
And inasmuch as I think all of those issues will be covered
as part of their final review here in the next couple of
months, nonetheless, I don't think there will be a specific
focus to this area that will be any more comprehensive than the
19 separate studies that have been released in the last 2 years
alone. Pointing to what is an actuarial fact, we are going to
see a higher rate of retirements in the years ahead; we are
already seeing at least a growing attrition rate among the kind
of skilled mixes that are most important for the purpose of
launch services, space science kinds of activities.
I am not sure those findings are going to be materially
different in this report than they have been in the last
succession of repetitive observations made, that are exactly
the same, by every other commission, by the General Accounting
Office, by our inspector general, by external commissions.
Everyone has noted the work force phenomenon that has been
occurring very, very uniquely at NASA just by dint of the way
the numbers have been running.
So I suspect that there will be a further reinforcement of
that view, at least by Admiral Gehman's group, as well as, I
suspect, at least an endorsement of looking at how to get ahead
of that curve now in order to have an experience base that will
be not just new entrants coming in at the same time that you
have a very experienced cohort leaving. How do you find an
opportunity for them to learn and to be mentored during the
course of this time?
The second observation that I get, a sense from Admiral
Gehman and his board members in their public statements, is
that there will be and should be an opportunity for more
attractiveness of mid-level entry from other comparable kinds
of engineering experiences that would really add to the way
that we view the nature of our challenge that we confront at
NASA every day.
So my bet is, and it could be wrong, but my bet is, it is
going to be a reaffirmation of what we have seen repetitively
stated in the last couple of years.
Mr. Davis of Illinois. Is it possible that we might reach
the point, though, where the critical need does not continue to
exist? And if such, would the flexibilities continue to be
required?
Mr. O'Keefe. If anything, the bow wave we are about to see
will begin in the next 3 years. we are looking at about a 15
percent eligibility for retirement right now. That will grow to
25 in the next 3 years. It becomes superannuated, really
exacerbated, in certain career fields. In astronomy and
astrophysics, in nuclear engineering, in space physics and
remote sensing technologies it approaches as high as half.
Now, that is not going to get any better as time progresses
along. And, if anything, it simply then shifts to other
competencies that become more dramatically affected by the
capacity of individuals who may decide they want to do
something else with the rest of their lives after having
dedicated 30 to 40 years of it having worked for NASA.
So, if anything, what we will see is--the scenery will
shift, if you will, to different kinds of skill competencies,
to different professional series over the course of the next 10
years. But the trend is irrefutable. Unless we find some way to
arrest aging in the next couple of years, it is going to be an
actuarial fact.
Mr. Davis of Illinois. Mr. Donaldson, I understand that the
SEC is seeking flexibility in order to implement the Sarbanes-
Oxley Act. Could it be then that those flexibilities might be
required up to a point, but then after that point would not be
required further?
Mr. Donaldson. Well, I think that the job of hiring the 800
professionals within this fiscal year is going to be very
difficult to accomplish; and I think that it will extend beyond
this fiscal year even if we get the increased flexibility that
we are seeking. So I see it as a multiyear problem here.
Beyond that, you know, only time will tell.
Mr. Davis of Illinois. Let me also then just compliment you
on your ability to work, or the decision to work cooperatively
with the National Treasury Employees Union. That seemed to be a
model that worked for you in order to arrive at some good
legislation.
Would you recommend it for other agencies?
Mr. Donaldson. Well, I thank you for your nice words. I
think that the credit goes to a number of people in our
organization who have tried very hard to work positively with
the union. The union has been terrifically cooperative. I think
they recognize the problem that we have, and they have been
very, very helpful.
Mr. Davis of Illinois. Thank you very much.
I thank you, Mr. Chairman.
Chairman Tom Davis. Thank you much.
Mrs. Davis.
Mrs. Davis of Virginia. Thank you, Mr. Chairman, and thank
you, gentlemen, both for being so patient in waiting.
And, Administrator, if you find a way to arrest aging, I
want to be the first to try it out.
Administrator O'Keefe, NASA has come to Congress to bolster
its scientific and engineering work force, yet some of the
flexibilities that you are requesting could be extended to
managerial and administrative personnel as well.
Suggestions have been made that the amount of money that
NASA could use to pay or reward administrative employees should
be capped so that the bulk of the funds could be spent on
attracting high-quality scientists and engineers. Could NASA
benefit from its new flexibilities if such a cap were put in
place?
Mr. O'Keefe. To be sure, the flexibilities would address
the specific science and engineering challenges we have right
now. Having said that, I think by trying to force a caste
system, if you will, which is what such a proposal would do,
that would really motivate folks who are very, very good
engineers, who could manage lots of things and lots of
programs, to think in terms of not being engaged in that
activity and moving away from it, because it would mean
administrative and management-level kind of activities would
then become capped as a result of that and not attractive.
So we would create more and more of a stovepiping
philosophy in which certain skills, or professional or
technical skills, would be accented, emphasized, and valued
greater than that of management.
And management is one of our challenges as well. We have
the constant issue of wrestling with resources, costs, the
extraordinary effort that has gone into developing a human
resources strategic plan, which our Assistant Administrator for
Human Resources has done to the astonishment of OPM and OMB, to
develop this kind of an approach.
Those are the kinds of fields that are going to be equally
challenged in the years ahead. And if we were to do something
like a cap on the science and engineering side at the expense
of administration and management, we would eventually pay the
price for that in time, in a very short time.
Mrs. Davis of Virginia. Administrator O'Keefe, I asked you
earlier, and I wanted to ask you again to have it on record,
having NASA Langley in my district and hearing from them how
important it is to be able to attract workers, because they are
struggling, as a lot of our Federal work force is, for
attracting our really good, expert types.
In the civil service portion of this bill, it allows DOD to
offer retirement-eligible staff an opportunity to retire with
their full pension and come to work with DOD with full salary
in addition to their pension.
Are you concerned that you may lose valuable employees
under this bill?
Mr. O'Keefe. I don't believe so. I think the challenge that
both the Defense Department and we at NASA confront is more of
a generational issue that is occurring right now. I think it is
a more a phenomenon of this generation that has recently come
out of graduate and undergraduate schools.
In the last 5 years, for example, we have seen folks
leaving in much larger numbers in the fields of aerospace
engineering, electronics engineering, electrical engineering,
in all of those sectors, because mobility is a key factor among
this age corps, more than anything else.
So, as a consequence, they are experiencing the same
challenges that we are. If anything, there is a zero-sum kind
of opportunity between the Defense Department activities that
are very close to the centers that we operate and NASA in terms
of exchanging ideas as well as different approaches to things.
It is not any more or less of an attenuation in that regard.
Mrs. Davis of Virginia. You understand what I am asking?
They can get their full retirement plus salary?
Mr. O'Keefe. I just don't see that as being a real
challenge.
Mrs. Davis of Virginia. Would you favor including a
provision in the legislation that would give employees an
opportunity to submit comments and suggestions on the work
force plan before it is presented to OPM for approval?
Mr. O'Keefe. Sure.
Mrs. Davis of Virginia. We have heard a lot here about how
employees are not being brought into the particular bill for
the civil service workers over in DOD.
Mr. O'Keefe. I would be more than happy. It just confirms
what it is we are already doing.
Our largest employee union is the International Federation
of Professional and Technical Engineers. Greg Junemann, the
president of that union, and I have met, as well as all of the
individual center representatives of that union, with each
center director of the 10 centers that we have.
Similarly, I have met with Bobby Harnage, my friend who is
here today. He is part of the next panel. He and I have chatted
and talked about this proposal as well. And all of his
respective union leadership folks at each of the centers have
been contacted by our center director, too. So the opportunity
to have the employees comment on this and look at how we would
implement various elements of this before OPM, as requested, is
not an unreasonable proposition at all, and one we follow
independent of the question of whether it is law or not.
Mrs. Davis of Virginia. Thank you, Administrator O'Keefe.
And thank you, Chairman Donaldson.
Chairman Tom Davis. Thank you.
Mr. Janklow.
Mr. Janklow. Thank you very much, Mr. Chairman.
If I could, Mr. McDonald, could you tell us--or excuse me,
Mr. Donaldson, I apologize. Who do you know that is against
this proposal with respect to your agency? Who is against it?
Mr. Donaldson. I don't think that anybody is opposed to it.
Mr. Janklow. You haven't heard of anybody at this point in
time?
Mr. Donaldson. Not really.
Mr. Janklow. Mr. O'Keefe, who is against it, at least with
respect to your agency?
Mr. O'Keefe. None that I am aware of. There have been
concerns voiced. I think at the earliest point when the
President submitted last June's legislation, certainly the AFGE
representatives testified as well, but again most of those
concerns in the course of this past year have been worked on
and discussed and so forth, the various bills that Mr. Davis
has introduced, as well as Mr. Boehlert and Senator Voinovich.
Mr. Janklow. As far as you both know, we are not dealing
with a bill that is very controversial, but terribly
substantive for each of your agencies?
Mr. O'Keefe. I don't think so. But I would certainly defer
to those who might otherwise express a contrary view.
Mr. Janklow. Do you agree, Mr. Donaldson?
Mr. Donaldson. Yes.
Mr. Janklow. Mr. O'Keefe, in your testimony earlier you
said that--and also in your written testimony you talk about
the fact that about 15 percent of your staff are eligible--your
employees are eligible for retirement, that it grows to 25
percent. I believe you used the words ``50 percent within 5
years.'' And then you said, it doesn't get any better after
that.
How can you have an employee labor force that you know now
is going to be 50 percent retire-eligible every year from now
on after 5 years from now? That just doesn't make sense to me.
Mr. O'Keefe. I apologize. I was inarticulate in using the
term 50 percent. It was applied to very specific areas.
You may recall, I precursed with the statement that in
astronomy and astrophysics, in space science, and nuclear
engineering, in those particular fields, it grows as high as,
if you just look at those particular professions----
Mr. Janklow. Up to 50. But then depending on how many
retire and don't, that number changes.
Mr. O'Keefe. Then that changes. So, as a consequence, then
the scene shifts to other competency fields that get serious;
and so, as a result, it is on average in that 15 to 20 percent
range in the next few years. But in certain areas it is very,
very serious, and then simply moves along into different venues
over the course of that time.
Mr. Janklow. Mr. Donaldson, with respect to the SEC--and I
am not talking about the top-level managerial folks; now I am
talking about your line economists and accountants, especially
those, and your lawyers--how often do you find that the people
that have very successful, good positions in the private sector
in the accounting field, in the economic field as an economist,
or in the legal field are willing to quit those to come to work
for the SEC with all of your rules, all of your regulations,
all of your policies and your pay structure?
Mr. Donaldson. Well, I think, to a degree this depends upon
the opportunities that are available in the economy, and the
general condition of the economy. Certainly, in the years of
the 1990's when markets were booming and so forth, the
opportunities in the private sector were considerable.
I think we are seeing----
Mr. Janklow. It didn't hurt the SEC at all, did it?
Mr. Donaldson. No. But I think you are seeing a reverse of
that now. I think you are seeing, in terms of the opportunities
we now have, they are considerable. We have a lot of
applicants. I think people are anxious to come to work for the
SEC.
Mr. Janklow. And then when the economy gets better again,
which it will at some point, then they will leave you again.
Mr. Donaldson. Well, we are constantly working at keeping
the environment in the SEC and, thanks to legislation, keeping
our salaries and compensation as competitive as they can be.
And, you know, we like to see lower turnover. And, in fact,
with the pay comparability, early observations are that our
turnover is slowing down. It's hard to differentiate whether
that comes from a reduction in opportunities out in the private
sector or better pay with us.
Mr. Janklow. Mr. Chairman, given the fact that there
doesn't appear to be any opposition, I'm not going to waste any
time with questions.
Chairman Tom Davis. That is fine with me. The good news is
that you had to wait. But I notice Mr. Janklow did not ask Mr.
Wolfowitz if anybody opposed his proposal. We would still be
waiting for the list as it works its way through. But thank you
both very much.
Mr. Janklow. I only had 5 minutes.
Chairman Tom Davis. Thank you both very much. I appreciate
you working with the employees involved. We're going to hear
from our next panel in terms of if they have any views on this
as well, but we appreciate it.
I'm going to take about a 6- or 7-minute recess, come back
at 1:30, where we will convene our next panel if that is OK
with everybody. We will be in recess for about 7 minutes.
[Recess.]
Chairman Tom Davis. Thank you very much. We have saved the
best for last here, just for the record. Thank you all very
much for your patience through this. I think we had a lot of
questions and a lot of concerns, and I think a lot of us still
have some confusion as we go back and forth. But you heard the
testimony, and hopefully it will help you be crisper, and we
have some questions. We appreciate you being with us and
staying to the end.
We have a very distinguished panel. Dr. Paul Light, the
Director for the Center for Public Services at Brookings
Institution; Bobby Harnage, Sr., the National Federation of
Government Employees; Colleen Kelley, National Treasury
Employees Union; and Mildred Turner, Federal Managers
Association of the Department of Agriculture.
Thank you for your patience. It is our policy that we swear
you in, if you would rise with me.
[Witnesses sworn.]
Chairman Tom Davis. We got the cameras going. We have to
keep people here now as we go through. Focus in. Thank you
again. Thanks for staying with us.
Dr. Light, we will start with you and move straight
through.
STATEMENTS OF PAUL LIGHT, DIRECTOR, CENTER FOR PUBLIC SERVICES,
THE BROOKINGS INSTITUTION; BOBBY HARNAGE, SR., NATIONAL
PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; COLLEEN
KELLEY, PRESIDENT, NATIONAL TREASURY EMPLOYEES UNION; AND
MILDRED L. TURNER, MEMBER, U.S. DEPARTMENT OF AGRICULTURE
FEDERAL MANAGERS ASSOCIATION
Mr. Light. Great. Terrific. It is a pleasure to be here. I
should say to Governor Janklow that I was a former resident,
born and raised in South Dakota.
Mr. Janklow. A great place to be from, isn't it?
Mr. Light. I'm afraid so, but I do get back from time to
time.
I think my job in testifying here today is to look at the
empirical evidence on behalf of reform. I've read the bill.
I've tried to penetrate it. I'm not a lawyer, so I can't
comment on the ``notwithstandings'' and ``wherewithals,'' but I
can comment on the desperate need for reform of the Civil
Service as it currently exists, and I can speak to you from the
perspective of people who want to serve their country, who want
to be in Federal jobs, and who are in Federal jobs and find it
extraordinarily frustrating to be waiting for jobs to be filled
for 4 to 6 months, to be trapped in the system and unable to
get the resources they need to do their jobs.
We survey all levels of the Federal work force, look at the
conditions or the health of the Federal work force, and there
isn't a single level of the Federal work force that is not
currently in distress. At the entry level our surveys of
college seniors show low interest, perceptions of significant
delay. There is even a sense that the Federal Government is
arrogant in its attitude toward potential employees; that it's
up to you to wait for us to make a job offer, and if you can't
wait for 4 to 6 months, then basically go someplace else.
At the middle level we see crowding, we see overlayering.
We see extraordinary perceptions of distance between the top
and the bottom of government. I recommend in my testimony that
the DOD bill, in terms of improving it, might well tackle the
issue of the overlayering at the middle and higher levels of
the defense bureaucracy. Between the period before September
11th and after September 11th, the number of DOD employees who
perceived more layers in their agencies than necessary actually
went up. The perception of layering, the perception of
bureaucracy at DOD have increased post-September 11th because
the pressure on the agency is so great and the embrace of
mission is so great.
I don't need to review the problems of the Presidential
appointee level. We've been through that.
There is legislation pending in the Senate that started 2
years ago that would be nice to have as part of any reform.
My particular concern here today is with the frontline.
Looking at the frontline of the DOD work force, or look at the
frontline of the Federal work force, what you see is that the
frontline employees are the most dissatisfied with the current
system. They are the most likely to report, for example, that
there are too many layers between themselves and top
management. That makes perfect sense. They are the most likely
to complain that the hiring process is slow and confusing
rather than fast and simple. They are also surprisingly likely
to say that the hiring process is not fair as opposed to fair,
although the vast majority of Federal employees think the
current system is fair.
I think the reason why we find high pride and hard work on
the frontlines is that Federal frontline employees are deeply
committed to the mission of their agencies, and that's
obviously the case at Defense. We asked Defense employees in
the spring of 2002 whether there was a greater sense of mission
in their agencies because of the events of September 11th.
Sixty-five percent of DOD employees said there was more of a
sense of mission in 2002 than there had been compared to just
35 percent of Federal employees in other agencies.
But what we also see on the frontlines of the Federal
Government is the impact of vacancies, the impact of turnover,
the impact of hiring delays. It is the worst thing we can do
for a frontline employee to hold positions open for 4 to 6
months before you fill them. That just increases the burden on
all employees.
It's also at the frontline where you see the most concerns
about the problems in disciplining poor performers, because
poor performance has its greatest impacts on the frontline. I
talk in my testimony about DOD in specific.
I'd like to wrap up here about the issue of reform. The
Civil Service Reform Act is about to celebrate its 25th
anniversary, and embedded in that act were many of the calls
for experimentation that we see now coming to fruition in this
bill. I view this particular proposal as the logical
consequence of the 1978 act, not as a conflict with the act,
but as the outgrowth of many of the reforms that were put in
place under the Carter-Mondale administration.
I look forward to your questions. I appreciate your
interest in this issue. The opportunity for reform rolls around
on its own timetable. My experience has been that we ought to
take advantage of it when it appears. Thank you very much.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Light follows:]
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Chairman Tom Davis. Mr. Harnage, thanks for being with us.
Mr. Harnage. Thank you, Mr. Chairman and members of the
committee, for the opportunity to testify today on DOD's
sweeping legislative request. This bill rips out the heart of
the Civil Service and virtually guarantees a Department of
Defense that will be corrupted by politics and cronyism.
There is one phrase in DOD's legislation that appears over
and over again. That phrase is ``the Secretary determines in
the Secretary's sole and unreviewable discretion.'' That's it.
Each Secretary of Defense will have sole and unreviewable
discretion to do whatever he wants, whether it is hiring and
firing the civilian work force, listening to Congress, or
recognizing the elected representatives of the employees.
AFG represents over 200,000 civilian DOD employees who have
worked around the clock in a huge number of support and
maintenance jobs to ready our uniform troops, their equipment,
and their weapons, for combat in the Iraq war. They have barely
come up for air, and they found out that the Pentagon has now
declared war on them. We secured our military installations
after September 11th, prepared to do battle with anyone that
threatened our security and freedom, and we have gone to war
with Iraq. The President just thanked all of our troops,
military and civilians alike, for a very successful operation.
What did not work? What is it that posed a problem that now
suggests that we must throw all of these laws of employees's
protection and merits out? What is so broken that requires you
to abrogate your responsibilities? Have you been given one
example; and if so, what did it have to do with national
security?
When you consider this legislation, I urge you to please
make note that it does not ask Congress to vote on a new
personnel system for the Department. It does not ask Congress
to vote on a new pay system, new RIF rules, new overtime rules,
new hazard pay standards, whether unions can operate, or
whether anyone can go to the MSPB. It asks you to hand over
your authority for protecting and approving laws and
regulations in all those areas and more to each and every
Secretary of Defense.
The rhetoric is that this is some kind of modernization,
but there is nothing modern about cronyism or patronage systems
in government. When they ask for the authority to waiver the
heart and soul of Title 5, what they are doing is waiving all
the progress made in the 20th century. Whatever their
intentions, they will be moving the Civil Service backward
about 100 years; not forward, but back to the 19th century when
to the victor went the spoils, and there were no rules to
prevent government corruption.
DOD is not asking for authority so they won't have to
contract out and privatize everything. Their privatization
agenda and their agenda to dismantle the Federal service are
two sides of the same coin. It is all about cronyism and moving
money to political favorites, in some cases possibly their own
pockets.
It is also not true that the pay system we have now has no
link between pay and performance. High performers get their
due, but at same time there are protections that keep the
system honest so that corrupt officials cannot hide behind
rhetoric about performance to get away with discrimination and
political favoritism. DOD's proposal allows every Secretary of
Defense, without congressional input to impose a new flavor of
the week pay and personnel system of his own design, and
employees will have nothing whatsoever to say about it, and
neither will you.
DOD's own survey of its workers, both in and out of pay-
for-performance demonstrations, tells the story. They say they
know what the employees want. If they do, they are ignoring it.
They ask workers whether they thought their performance rating
was an accurate picture of their actual performance. The news
is that confidence in the accuracy of these evaluations has
gone down fast for both whites and minorities who are in the
demos, while at the same time it has gone up for those in the
GS system. Less than one-half of the minorities thought their
evaluation in the demo was fair, and less than 60 percent of
the whites thought so. In the GS pay system, the confidence
went up in both categories.
In a survey by OPM, more than 50 percent of the employees
did not trust their supervisors, yet DOD says it is ready to
impose its flawed system on everyone. Remember also that the
new plan that this administration wants to impose has only been
tried on about 4 percent of the DOD work force, and that 4
percent mostly is in scientific labs, hardly a cross-section of
the DOD civilian work force.
Everyone, even the Secretary of Defense, needs to be held
accountable and have his power in balance. No Secretary should
be above the law. They shouldn't be allowed to decide which
laws and which regulations they'd rather do without. I urge you
in the strongest possible terms to think twice before you vote
to hand over this power.
Government agencies operate under laws and regulations set
by Congress to specifically make sure that taxpayers and
government employees are guaranteed freedom from coercion and
corruption. DOD's proposal takes away that freedom. Most of
these issues are negotiable in the private sector, but in the
Federal sector we have laws passed by Congress, so most of
these issues are not negotiable. Take away the laws, abrogate
your responsibilities, and leave these issues still not
negotiable, and you put Federal employees in a category that no
other employee in the Nation has experienced. You will truly
create a two-class system where Federal employees, the ones
just bragged about, are second-class citizens, less rights,
less protections, less merit, less due process, second-class in
every way. Please slow down and do this right.
This concludes my testimony.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Harnage follows:]
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Chairman Tom Davis. Ms. Kelley, thanks for staying and
being with us.
Ms. Kelley. Thank you, Chairman Davis and Members. I very
much appreciate the opportunity to appear before you on behalf
of the more than 150,000 Federal employees who are represented
by NTEU.
NTEU is very concerned by the scope of the legislation
before the committee and as well as by its timing. We're at a
loss as to exactly what the problem is in the Defense
Department that they are attempting to fix.
The Department is coming off a stunning victory in the war
with Iraq. The Secretary as well as both military and civilian
Defense Department employees who engaged in that battle deserve
nothing but praise for their quick and skilled response. Yet it
seems the thanks that both the soldiers and the civilians are
about to get is to have their jobs contracted out and their
Civil Service rights and protections eliminated.
The pay-for-performance scheme this legislation would
permit the Defense Secretary to implement would be based on a
performance appraisal system which has come under intense
criticism by employees as well as by independent experts like
the GAO. NTEU questions where in the Federal Government or for
that matter in the private sector pay for performance is
working.
The proposed legislation also seeks authority for the
Secretary of Defense to reclassify, discipline, suspend, demote
or dismiss employees outside the tested and constitutionally
sound procedures that are set up under current law. Defense
employees would be stripped of their most important Civil
Service rights and protections.
The legislation also limits the Department's obligations to
collectively bargain with its unions. This unprecedented
proposal goes far beyond even the flexibilities included in the
recent Department of Homeland Security legislation.
It is particularly important to point out that the
flexibilities the Secretary of Defense seeks would not be
constant or set. Each new Secretary could change them. In the
last decade our Nation has had five Secretaries of Defense.
Does this committee think it is appropriate that every one of
them should have been able to change the human capital
management system for employees of the Department? Regardless
of the reasons the current Defense Secretary may espouse for
requiring this unprecedented level of flexibility, there is
absolutely no justification for giving the current or future
Defense Secretaries the ability to constantly change the rules
under which their employees operate.
NTEU also has serious concerns with several provisions in
the legislation that are aimed at privatizing thousands of
Federal jobs. The bill seeks to privatize firefighting and
security jobs at military facilities and to open up to
contractors thousands of other civilian and military uniformed
positions. And perhaps the most dangerous contracting out
change in the bill is aimed at promoting the departmentwide use
of an untested procurement process known as best value.
As a member of the commercial activities panel charged with
developing recommendations for improving government procurement
policies, one of the issues that divided the panel was the best
value contracting issue. Under best value, contracts are
subjectively awarded based on arbitrary criteria. If the
prohibition on the use of best value at the Department of
Defense is repealed, billions of taxpayer dollars will be sent
out the door to unaccountable contractors for gold-plated
services that the government doesn't need.
Before privatizing more Federal jobs, Congress should act
to clean up the waste, fraud and abuse in government
contracting by requiring more accountability in oversight of
contractors and requiring fair public-private competitions
before government work is privatized.
NTEU has concerns about the inclusion in this legislation
of the administration's proposal to create a $500 million human
capital performance fund. It is hard not to view funding for
this new gimmick coming at the expense of an appropriate 2004
pay raise. The administration would give managers broad
discretion to give incentive pay to a fraction of the Federal
work force. The only thing this is likely to accomplish is a
further decline in employee morale.
As this committee knows, the Securities and Exchange
Commission provisions included in the DOD legislation are the
product of NTEU working with representatives of the SEC along
with the appropriate congressional representatives to reach an
agreement that no one finds objectionable. There is no reason
why the DOD bill cannot be handled in the same manner, and I
urge this committee to slow this train down and work with both
DOD and the Federal employee unions to determine exactly what
flexibilities the Department needs, why it requires those
flexibilities, and how the agency, Congress, and the unions
involved can best reach agreement on those changes.
I thank you again for the opportunity to testify and look
forward to any questions you might have.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Ms. Kelley follows:]
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Chairman Tom Davis. Ms. Turner.
Ms. Turner. Chairman Davis and members of the committee, my
name is Mildred Turner. On behalf of the 200,000 managers and
supervisors in the Federal Government whose interests are
represented by the Federal Managers Association, I would like
to thank you for inviting us to present our views before the
Committee on Government Reform regarding H.R. 1836.
I am currently a farm loan manager for USDA's Farm Service
Agency. My statements, however, are my own in my capacity as a
member of FMA and do not represent the official views of FSA or
USDA.
As those who are responsible for the daily management and
supervision of government programs and personnel, our members
possess a wide breadth of experience and expertise that we hope
will be helpful as we collectively seek to address the human
capital crisis that Civil Service employees have been forced to
endure with no future plan in place. We at FMA have grave
concerns about the rushed nature in which these potentially
precedent-setting changes to Civil Service statutes are being
moved through what is supposed to be a fair and deliberative
legislative process. While we appreciate the opportunity to
offer our perspective here today, you should be informed, Mr.
Chairman, that FMA has not been afforded the same opportunity
by the Department of Defense before, during or since the
drafting of its bill.
The new Department of Homeland Security was granted broad
authority to develop an alternative personnel system, which is
only in the preliminary stages of design. DHS was supposed to
be used as a potential model for the rest of the Federal
Government. Why, then, is DOD so anxious to do the same when we
have not seen the effects of the DHS system?
We at FMA believe that we need to slow down this runaway
train immediately and instead carefully consider major reform
proposals that will impact the lives of one-third of the
Federal work force--and eventually could affect all remaining
civil servants.
Between 1994 and 2001, the nonpostal executive branch
civilian work force was reduced by 452,000 positions. One of
the side effects of this downsizing is that overtime is
becoming increasingly common. Under current law, overtime pay
for Federal managers, supervisors, and Fair Labor Standards
Act-exempt employees is limited to that of a GS-10, step 1
employee. This means that employees paid at GS-12, step 6 and
above earn less than their normal hourly rate of pay for
overtime work. The overtime cap also causes managers and
supervisors to earn substantially less for overtime than the
employees they supervise.
The first grade-based overtime cap enacted in 1954 set the
base at GS-9, step 1. Twelve years later in 1966, it was
increased to GS-10, step 1. In the 37 years since that time,
however, nothing has been done to keep pace with the changing
work force realities.
Increasing overtime pay would represent an important step
toward addressing overtime problems that increasingly serve as
disincentives to hard-working civil servants contemplating
accepting promotions into the ranks of management. In fact,
some have turned down promotions and even taken downgrades to
be eligible to receive real overtime pay.
Mr. Chairman, I have been personally affected by this
overtime problem. My ordeal has to do with the current
interpretation of rules outlined in section 5 CFR 551.208 with
respect to FLSA-exempt Farm Service Agency personnel assigned
to what the Agency refers to as consent decree action teams
[CDAT]. Since June 1999, FSA has been assigning FLSA-exempt and
nonexempt employees to CDAT and directing those employees,
including myself, to work a large number of overtime hours.
While working on CDAT, FLSA-exempt employees had the same
duties, responsibilities, and authorities as did the FLSA-
nonexempt employees. Exempt and nonexempt employees are working
side by side and are performing identical tasks with the same
amount of authority and responsibility. Many of these employees
have been on 2-week rotations, including Saturdays, while
working on CDAT. Overtime pay for FLSA-exempt employees is
capped at GS-10, step 1, while nonexempt employees receive one
and a half times their normal salary for overtime hours, which
in some cases is twice the rate of FLSA-exempt employees.
To date there have been more than 300 exempt individuals,
many of whom are FMA members, who have worked on the CDAT
project without the benefit of being compensated equally for
overtime earned while performing identical job responsibilities
as FLSA-nonexempt employees.
There continues to be considerable confusion concerning the
implementation of FLSA as related to the USDA FSA employees who
have been detailed to CDAT. It is FMA's belief that the
criteria set forth in 5 CFR 551.208 have been met.
Specifically, we understand it to mean that individuals who
worked for more than a total 30 days on the CDAT project will
be properly designated as nonexempt during the time they spend
on CDAT. This matter continues to affect many employees who
perform a wide range of functions for FSA.
When we at FMA requested OPM's assistance concerning the
classification of the CDAT project and employees' exempt and
nonexempt statuses, the response was that if an employee is
assigned to a series of three or more 2-week periods without an
intervening break, it may be necessary to change the employee's
FLSA status.
Unfortunately, this is not how we interpret the statute, as
there is no specific reference to the 30 days being
consecutive. As a result, to this day I, along with other
affected members on CDAT, have not received equitable pay for
mandatory overtime work.
While private sector employers are not required to pay
overtime to FLSA-exempt employees, private sector managers and
supervisors do not face the same type of pay compression
prevalent in the Federal sector which makes leaving management
to earn uncapped overtime so attractive.
At a bare minimum FMA would like to ensure that Federal
managers, supervisors, and FLSA-exempt employees receive at
least the regular rate of pay for overtime work as supported by
OPM in the past and proposed in H.R. 1836. We would like to
thank you, Mr. Chairman, for including this provision as part
of the legislation we are discussing today. Although we would
prefer to see the overtime cap raised to a fair but reasonable
level, this provision pro-
vides a good first step in addressing overtime pay as we seek
to remove obstacles to our government's ability to recruit and
retain a highly motivated cadre of managers and supervisors.
Thank you very much.
[The prepared statement of Ms. Turner follows:]
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Chairman Tom Davis. This bill is a hodgepodge. It has some
good things and some bad things. That is the way we deal with
it. Taking care of this was something that the previous
administration had wanted to tackle before they left, so we
picked up where they took off and moved from there.
Let me start questioning. First of all, it is my
understanding that this bill--notwithstanding other things that
DOD is doing, but this bill doesn't get to the outsourcing
issue at all. If anything, it is good for employees because by
giving more flexibility--we heard Mr. Wolfowitz under oath
today say that some of the jobs that are currently being
outsourced and performed by uniformed services members could be
done by civilian employees, and I believe that. And if you can
show me something that is otherwise in there, we will change
it. That is our intent here in this case.
There are other outsourcing proposals at DOD that I think
we can join forces on. One is this percentage that they have
for competitive sourcing and the like, and I have never felt
comfortable with that. But this bill doesn't get to the
outsourcing per se. If anything, this will create more Federal
employees.
What it does do, and what our concern is and where we draw
the line, is that things that are currently subject to
collective bargaining are not going to be subject to the same
rules, and therein lies the nub of how we handle this. I happen
to believe that it takes too long to hire somebody right now,
and maybe you agree with that.
Let me ask, Dr. Light, do you think it takes too long to
hire someone in the Federal Government today?
Mr. Light. Absolutely, even in a down economy. It is a
ridiculous situation.
Chairman Tom Davis. Mr. Harnage, do you think it takes too
long to hire somebody?
Mr. Harnage. I agree with that, but I don't necessarily
agree with the cause.
Chairman Tom Davis. I'm not asking you to agree with the
remedy. I'm not trying to trick you. I'm trying to get
agreement on some things, and then we can approach how we get
there.
Ms. Kelley, you agree as well?
Ms. Kelley. I think in general that is true, and
specifically it was true with the SEC. They made a case that
hiring restrictoins were impacting their ability to deliver on
their mission. We agreed with the goal to try to correct that,
and as the language that we agreed to is what you see included
in this bill.
Chairman Tom Davis. NASA, they gave their examples. They
interview people, and they got tired of waiting in the queue
for months and months. Do you agree?
Ms. Turner. Yes.
Chairman Tom Davis. The problem is not that we shouldn't
have safeguards. We need safeguards, and we want to write this
bill so that we have safeguards. But sometimes you have so many
safeguards that you can't get anything done. What is the right
balance? We are trying to wrestle with this. We introduced the
DOD bill because we thought we ought to introduce the bill as
they wanted. That is not going to be the bill that comes out of
here or out of conference, but they had to put their marker
down, and so Mr. Hunter and I put up our names and threw it out
there. We immediately started to try to work with groups to
make changes and find what the right balance is. Reasonable
people will disagree over what that right balance might be.
We looked up some of the litigation on issues like whether
a restroom should be gender-neutral or whether it should be a
men's room. Two years it took to litigate that. That is
ridiculous. There has got to be a way to resolve that issue.
Now, DOD's way of resolving it, they will listen to you, and
they will make the decision. I think from the employees'
standpoint you want a neutral arbitrator to make that decision.
But the current system that calls for 2 years to take this
up is ways too long, and it is stupid and wasting time and
money and everything else. That is what we are wrestling with.
I don't know where I come down. We will keep talking and
keep meeting. This is a dynamic process, but it is something
that I think needs fixing. I think it takes too long in some
cases to terminate people. You can terminate someone without
them losing their rights, because if they litigate it, you can
come back and restore all the pay, but you can get them out of
the work force sometimes where they are a distraction to other
people. And so we don't want them to lose their rights, but at
same time, should they be successful, they can restore. But
that is also something about how do we get to the right balance
on that.
Bottom line is this is a system that has been built up
protection after protection after protection, and sometimes I
think we have more layers than we need. That's my opinion. I've
talked to a lot of employees about this, some union, some
nonunion. But the question is how do you fix it? That is what
this is all about, and that is why we are soliciting your
opinions. We are finding some place where reasonable people can
disagree about.
I don't see the opportunity for the cronyism and the
political favorites in the hiring. That isn't really touched.
You can hire people faster, but it is still Civil Service. You
will still not have Donald Rumsfeld be able to hire anybody
that he couldn't today. If he wants to hire his brother-in-law
or his best friend or his grand uncle or whatever, I don't see
that opportunity opening up here in terms of dropping that as
well.
And, finally, if we were to put a rule in here, and I'm not
advocating we do that--if the rules that the Department of
Defense promulgates were to come back before Congress, a la
BRAC, we would either--if both Houses voted them down, they
would not take effect. Would that give a greater comfort level?
Where we say to DOD, we are not sure exactly what you want to
do, we have given you some criteria, but come back to us, would
you feel more comfortable then? Could you support it under
those circumstances, or is that too much a burden?
Let me start with Dr. Light and ask that last question.
Mr. Light. I have been a strong supporter of reorganization
authority under those conditions. I can take a guess as how the
rest of the panel would go on that.
Chairman Tom Davis. But that would be something that would
be fine?
Mr. Light. Yes.
Chairman Tom Davis. Mr. Harnage.
Mr. Harnage. Well, if I understand the question, you are
saying that DOD would come back to Congress with how they would
to do it.
Chairman Tom Davis. You would have to have both Houses--
under the BRAC, both Houses have to defeat it. If one House
defeated it and the other did not, it would go into effect. You
have to do that to get along with the separation of powers and
Constitutional provision.
Mr. Harnage. In this process, are the employees'
representatives going to play a role?
Chairman Tom Davis. Absolutely play a role. We would hold
hearings and everything else. But, you know, again, we are
still giving them the authority to do this, and you may not
like what they come back with, and you have to beat it again.
Mr. Harnage. Of course, I'm willing to work with anyone
trying to find solutions to what DOD needs and other agencies
need, but I have difficulty in signing any blank checks.
Chairman Tom Davis. I'm not asking--it makes it more
palatable, but it is still----
Mr. Harnage. Look at what we're faced with today. We have a
steamroller we can't even slow down, and I'm being asked if
they come back with the same thing, if either House of Congress
doesn't pass it, it goes into effect. It doesn't take both; it
only takes one. You have cut my odds in half being able to deal
with this. That's not good odds.
Chairman Tom Davis. Cut it worse than that, because we
wouldn't allow it to be filibustered. But you get a bite at it
on the record, and to some extent DOD is saying, give us the
authority; you're asking us to be more effective, and we need
to change the rules to do that if you are going to hold us
accountable. And no one knows what the final rules are going to
look like.
Mr. Harnage. I understand, and I hope you understand my
concern.
Chairman Tom Davis. I do.
Mr. Harnage. We are dealing with an agency that did not
even bother to talk to us in the past.
Chairman Tom Davis. I do, and I respect that.
Ms. Kelley.
Ms. Kelley. I think the same problem still exists. You
know, when you talk about the example of the restroom and the 2
years, I think there are extreme examples out there that we
could cite. But here's what I also believe. I believe at the
core is the question of whether flexibilities and collective
bargaining can coexist in the same arena successfully, and the
answer to that, I believe, is yes from NTEU's perspective.
Chairman Tom Davis. China Lake showed that you can do that.
Ms. Kelley. And the work that we have done with other
agencies outside the DOD, that we are living proof of that. The
IRS, the Securities and Exchange Commission where we negotiated
pay. Their pay is out from under Title 5. We worked with the
SEC to make that happen, and we have full collective bargaining
rights on that issue.
So I think there are a lot of examples as to why a blank
sheet of paper with no rules at the sole discretion of the
Secretary is not the way to go.
Chairman Tom Davis. OK. Thank you.
Ms. Turner.
Ms. Turner. Our preference is that we go through the
legislative process with an overwhelming level of bipartisan
support. We are dealing with 100 years of Civil Service law.
Chairman Tom Davis. Mr. Davis.
Mr. Davis of Illinois. Thank you very much, Mr. Chairman,
and I would just assume either one of you might answer if you
would. In your opinion, are you aware of any instance where DOD
has been limited in a meaningful way by the Civil Service laws
that exist? Anybody?
Mr. Light. Yes. I mean, the employees themselves are
telling us that. I mean, are you--I assume that embedded in the
question is the notion that the law is not the problem, that it
is the implementation at DOD. But I don't think that's the
case. I think this is an encrusted statute that over the years
has just become too dense and too difficult to manage. And I
think that's why we see agencies tunnelling out all over the
Federal Government to get away from it, and they are doing it
in an entirely ad hoc fashion. So you have DOD going out 1 day,
you have SEC going out another, IRS is headed out a different
direction, FAA a few years ago dug out. Now we have the
greatest breakout imagined in history.
The agencies are saying we can't manage under this statute.
It is too difficult to get the people in place and hold on to
them.
Mr. Davis of Illinois. And would you agree that additional
flexibilities then would provide or take away some of the
difficulty that they face?
Mr. Light. All things being equal, I'd like to see Congress
mandate a uniform template to govern the flexibilities of the
kind that we saw developing in the homeland security
legislation so that agencies operate with certain flexibilities
but they are not given carte blanche to invent systems that are
radically different or that subject their employees to
radically different outcomes from other agencies. So I think
it's letting them have flexibilities under certain conditions
so that no employee is punished from having selected a job at
agency X as opposed to agency Y.
Mr. Davis of Illinois. The China Lake demonstration
projects have been mentioned time and time and time again as an
indication of what can happen. Mr. Harnage, have you studied
those very much?
Mr. Harnage. We have, and one that we have yet to look at
is the one at GAO. The Comptroller, David Walker, has agreed
for us to come in there and meet with the employees and talk
about that system, see how satisfied the employees are.
But, you know, there's a significant difference in the
present demonstration projects and what's proposed in this
legislation. The current demonstration projects can be
expanded, providing the union agrees. Under this new proposed
legislation, union wouldn't play any role in that. It would
just be done. There is a significant difference.
Where we have been asked to participate, we've been willing
to do so. But most of the time it's simply, you can't play a
role in deciding how this is going to be done. We just want
your agreement that we can do it, and we don't write blank
checks.
Mr. Davis of Illinois. So, in your opinion, does this
basically undercut the concept of collective bargaining, which
is kind of a give and take, I'm saying a back and forth, as
opposed to here it is?
Mr. Harnage. Sure. And, you know, Mr. Davis, I don't agree
that the current law is all the problem that it's made out to
be. I believe if you asked the Director of OPM point blank:
Does the law or the implementing regulations, is that the
problem? And I believe she would tell you, no, that the problem
is all of the bureaucracy that's involved in it such as filling
a position that takes the approval of OMB rather than the
approval of the supervisor who is charged with the mission that
they've got to perform, that it takes approval all the way up
the line to fill that position, that's the delay. It's not the
law, and it's not the implementing regulation but the
bureaucracy that these people have created.
Now it's like the saying you kill your parents and then you
throw yourself on the mercy of the court because you are an
orphan. That's what DOD has done. They have created this
bureaucracy that causes their problems, and now they are saying
we are not responsible, the law is or the regulation is.
Relieve us from all of this burden, and we'll do it right. They
did not do it right the first time.
Mr. Davis of Illinois. Thank you very much.
Chairman Tom Davis. Thank you very much.
Mrs. Davis.
Mrs. Davis of Virginia. Thank you, Mr. Chairman.
Dr. Light, you know, you said that there is time now for
reform; and I think almost unanimously in this committee
everybody has said there needs to be some reform. I don't think
anyone is objecting to that. It's the way we go about the
reform. And you said that the frontline employees are concerned
about discipline, about poor performance, about filling
positions. But is it necessary to give DOD every flexibility
they've asked for in this bill for them to be able to handle
disciplinary problems, poor performance and filling positions
or could they not take care of those situations simply by
having the flexibilities we gave DHS that we haven't had time
to see how that works yet?
Mr. Light. I think the answer is sort of a qualified yes. I
don't think they need to have everything in that bill in order
to get the job done. It is not the kind of blank check that you
saw in DHS. We had all of two sentences in the original
proposal coming over from the White House. It is a much more
detailed statement. It's almost a ``damned if you do, damned if
you don't.''
Mrs. Davis of Virginia. It's more detailed but much broader
than what left this House and was signed into law.
Mr. Light. Absolutely, and I think passage of this bill
coming on the heels of the homeland security would mark the end
of the Civil Service system as we know it and the beginning of
a new system. Whether you need to go that far on this bill is
something for the committee to consider quite closely, but I
don't think you can tinker your way out of this.
I don't think it's the kind of thing--give the agency
further instruction and go ahead and use those existing
authorities. Those authorities are just not usable, so you have
got to find some way between what we have currently got--and I
don't know if it's the law or the bureaucracy, who knows which
came first, but you have got to go beyond the kind of tinkering
that we have seen over the last 12, 15 years in order to get
the job done. It's just not working at the current level.
Mrs. Davis of Virginia. I think you said a minute ago that
what you would like to see is some sort of a blueprint that is
used for all the agencies without giving them carte blanche to
go out and do what they want to do, and I think that is
probably what a lot of us would like to see. I've said it
before and I'll say it again, once you pass this for DOD and
you have it out there for DHS and you have it for TSA, HHS,
Department of Education, all the other agencies are going to be
lining up at our door; and we will have the same types of
problems if we don't come up with something that is usable for
the entire Federal Government as an outline of some sort.
Mr. Light. Have you only noticed that we only deal with
Civil Service reform for agencies that are in desperate trouble
and that is the only time we help them out? It is an issue of
thinking deliberatively about doing this and laying out a
framework that will help agencies move ahead with the
flexibilities that they do need.
Mrs. Davis of Virginia. If, in fact, our Civil Service
needs reform, then it needs reform throughout not just in
certain agencies.
Mr. Harnage, would you agree--I mean, we've heard--you have
been in all the hearings I've been in here lately. We have
heard the DOD say that they've had trouble with collective
bargaining, with negotiating with the unions; and I think the
example that they have given has been the one on the charge
cards where the credit cards were used where they shouldn't
have been and they had to negotiate with 2,200 local unions and
that is why they want to go to national collective bargaining.
Would that work for you all to give them the right to have
national collective bargaining? Although we would probably
disagree with them on what this bill does on national
collective bargaining, would that be something that would
satisfy the workers if there were national collective
bargaining with the Secretary of Defense having the ability to
negotiate locally if they felt it was something that was
necessary?
Mr. Harnage. If they were so agreeable to collective
bargaining, we wouldn't be here today.
Let's look at what we have really got. We've got collective
bargaining at agency level at DLA, Defense logistics. We have
it at DFAS, at DeCA, the commissaries. We've got it at the
Marine Corps and at the command level in the Air Force, the Air
Materiel Command. So we have experience at negotiating at the
national level.
But let me give you another experience. In Jacksonville,
Florida, with the Navy command there which goes from Key West,
FL, to Pax River, MD to Corpus Christi, TX--28 different
unions, 28 different locals. We negotiated a contract, one
contract, that covers all of those 28 people. In the last
renegotiation we did it in less than 30 days, where previously
all 28 took much longer to do individually.
We are doing that because the admiral down there was
willing to do it, and we agreed to the opportunity. It did not
take national recognition. It did not take the Secretary of
Defense to accomplish that. All it took was for them to stay
out of the business of trying to operate the mission and let
the admirals and the generals do their job.
We can do that everywhere, but they have created an anti-
union environment that causes us to have to work harder in
order to move that recognition up. But when we move it up, it
is the employees's choice, not the Secretary of Defense. And I
think we have to listen very carefully to what he said: We are
going to raise it up to the national level when we choose. We
are going to talk about these things at the national level on
subjects we choose to. And if we don't agree, I will make the
decision.
That's not collective bargaining. That is not even
consultation.
Mrs. Davis of Virginia. Thank you, Mr. Chairman. My time is
up.
Chairman Tom Davis. Thank you very much.
Mr. Janklow.
Mr. Janklow. Thank you very much, Mr. Chairman.
I guess I come from a different part of the world. I'm like
everybody else. We have a lot of good employees where I come
from, a lot of very good employees. But if you ask them,
they'll tell you that, too often, they're held up to public
obloquy and ridicule, that the system is really stifling. The
system is very adversarial. It's very structured. It lacks the
ability to let one be creative. It's almost byzantine in terms
of how people describe it. Yet, in spite of all that, the job
gets done.
What is it--and it isn't to me just a matter of the workers
are right and management is wrong or management is wrong and
the worker is right. Most management comes from the worker
side. The vast majority of them do. Not the political
appointees but the ones that are there day in and day out. And
I just think we've won the most fabulous war activity that any
nation could be engaged in, in spite of the system, not because
it all works so well. I think in spite of the system, and part
of it is the foe we were opposed to, and part of it is a lot of
other things.
And I don't want to minimize in any way shape or form the
effort of anybody, because I don't do that. A lot of people had
their lives on the line, and a lot of people had other people's
lives in their hands every single day.
Having said that, to you, Mr. Harnage, what is it that we
need to do to fix what is broken in the Civil Service system?
Unless you think it's not broke? I don't mean just a little off
kilter, I mean broke. Do you think it's broke?
Mr. Harnage. I think it certainly can use a considerable
amount of improvement; and I would be most happy to work with
any agency in making that improvement, including OPM.
But the problem that I have is the examples that are given
are usually hypothetical or extremes. For example, on the
credit card, I'm scratching my head. The credit card grievance
was used here as an example, national security?
Mr. Janklow. Let me give you an example: promotion. Do you
think it is inordinately long under normal circumstances to
fill a slot by promotion?
Mr. Harnage. No.
Mr. Janklow. You don't?
Mr. Harnage. No.
Mr. Janklow. Do you, Ms. Kelley?
Ms. Kelley. I do not. Under the agreements that we have
negotiated with the agencies.
Mr. Janklow. So where employees tell people like me that
they think that is a real problem, apparently it doesn't fit
the two unions that you two are involved in?
Ms. Kelley. Well, I would suspect that some of those
reports come from two other things. One is from a lack of
funding that the agencies have. They announce promotions and
then end up having to cancel them for budget reasons, and
another is sometimes the lack of authority in the management
chains who have the authority to make the decision on who gets
the promotion. The processes take care of the rest.
Mr. Janklow. Let's take the first one. I think the
likelihood that there is going to be a lot more money or more
money to take care of those problems isn't going to happen. I
don't know what it's like for other Members of Congress, but
every single group that I see that comes to my office, whether
it is nutrition programs for children, prescription drugs for
elderly, whether it is K-12 education, special education,
higher education, whether it is people with Alzheimer's or
muscular dystrophy, these are not screwy things. They are
serious things that we deal with. All of them want more money.
We are $400 billion in the hole this year at least. That is 40
percent of $1 trillion in 1 year. I think the prospect of more
money is not on anybody's radar, even advanced radar. I don't
think it is.
What is it, Mr. Light--the Volcker Commission, if I can
call it that, how many are Democrats and how many are
Republicans?
Mr. Light. I think at the end it was five and five and
Volcker.
Mr. Janklow. That is the way it always is with him. Were
they unanimous in their recommendations? Because these are all
people that represent the broad spectrum of folks that have
been in public life, very high-level, political hack appointees
all of them.
Mr. Light. I think that what they would say to you is that
the report was an ``architectural rendering.'' That is Paul
Volcker's favorite way of talking about it. It is up to you to
put substance to it. That is punting the ball.
Mr. Janklow. But they agree the system is broke.
Mr. Light. Absolutely.
And on pay for performance, pay banding, the Volcker
Commission's position was that it should be the default
position. If you could come up with something better, then
prove it, but the default should be pay banding.
Now I'd say on the China Lake experiment that never has
such a small experiment launched so much enthusiasm. China Lake
was a very small experiment, and I think we are pinning a lot
of hope on it. But the Commission was convinced that the
private sector experience with pay banding is robust enough so
that it could work very well in the Federal Government, GAO
being an example of a much more rigorous experiment.
Mr. Janklow. Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you very much.
Just a couple of comments, and then I will let you all
react to this.
E.J. Dionne in a Washington Post op-ed said former
President Clinton was telling the Post's Dan Balz that he
respected Rumsfeld's effort to modernize and streamline the
military. He even said the Democrats seeking the Presidency
might usefully be more like Rummy. I'd like to see our guys
debate a lot about the structure of the military. I hope when
the smoke clears from the Iraq some more attention would be
give to Rumsfeld's ideas.
Look, the J1 chief of plans for CENTCOM said the reason
contractors are so heavily involved in Operation Iraqi Freedom
were the concerns of getting civilians in a timely manner and
concerns with having to deal with unions and restrictions
unions place on management flexibility and conditions of
employment. As a result, as of April 28th, there were 8,700
contractor employees supporting Operation Iraqi Freedom, as
opposed to 1,700 Federal civilian employees. In other words,
the contractors represented 83 percent of that work force. That
is not a good thing.
We complain a lot about outsourcing, but we have to make
the changes in the Civil Service if we are going to have that
in-house capability as we do in SAIR. We created an in-house
cadre in some of these areas where we could have some of that.
We can't keep doing the same-old same-old. We have to make
changes.
Now we have set down a marker here. We are going to try to
incorporate some of your concerns in this. But I would just
honestly say for the average Federal employee looking for a
future and the rewards and the kind of respect, pay that they
deserve and that are appropriate, a Federal work force which
shouldn't be 17 percent of the Operation Iraqi Freedom, that
some place changes need to be made.
We need to be positive about the things that could happen.
We need to be positive, too, about some changes. Because the
same-old same-old, we keep going straight down. That is the
concern. We need to have an honest dialog.
I will let you respond.
Mr. Harnage. First, I'd say let's first agree on what the
facts are, and then we can certainly deal with it. The example
given by the first panel today on the ratio in the war is
absolutely untrue. It's not true. They may have been that
ratio, but during a time of national emergency, during a time
of national security and during a time of war, there is no
collective bargaining, and there is no collective bargaining
agreement. There was nothing preventing them from using
civilian employees except their own choosing because there was
much more profit to be made by the contractors than there was
by sending the civilians over there.
The only complaint I got----
Chairman Tom Davis. Why would they care about contractors
making money?
Mr. Harnage. I don't know? Why do they privatize so much
without competition? Why do they fight us on accountability to
show that they are not, in fact, making the savings that they
claim they are?
I don't know the answers to all of those questions, but I
can tell you this the only complaint I got during the war in
Iraq was for people not allowed to go. Not because they had to
go, but because they weren't allowed to go. It is a very
patriotic, dedicated civilian work force; and they are not the
problem when it comes to war.
Chairman Tom Davis. The work force is not the problem. The
question is, are the rules the problem?
Ms. Kelley. NTEU is not opposed to the need for change and
to identify what those changes are. A blank piece of paper is
not our idea of change that is going to be good for anybody.
Some of the most, I think, creative things we have done in
the collective bargaining arena we have done with the IRS. Now,
interestingly, that happened I think for two reasons.
Obviously, first, the IRS and NTEU were willing to do this,
but, second, when the President rescinded the Executive order
on partnership, just about every agency head took their lead
from that and walked away from having day-to-day dealings with
the unions.
The IRS did not do that. The IRS Commissioner said, this
makes good business sense; we have a lot of good work to do
together, we are going to keep doing it. So we were working in
partnership on the tough issues facing the agency.
And then we agreed to do parallel bargaining at the same
time and, in some cases, expedited bargaining on a 30-day
schedule, for example, as Bobby had mentioned earlier.
These are issues that we are more than willing to step up
to, when the true problem can be identified, and the agency is
willing to engage us in being a part of that solution. We are
not only more than willing to do that, we want to do that.
NTEU invites that opportunity so that employees can be
involved and so that the solutions can then be embraced and
rolled out and supported by everybody, for the good of the
agency as well as the employees and the taxpayers.
So we are not opposed to change. But I don't describe
change as a blank piece of paper with sole authority.
Mr. Burton. Thank you. Let me just respond.
Staff was just saying that one of problems on the Sikorsky
repairs, is an AFGE unit that they could not reach an agreement
on in terms of repairing the helicopters out of Texas that
needed to go, so they went private on that.
They wanted to do that in-house. We will try to get to the
bottom of that, and maybe you can help us get to the
information. We have conflicting information between DOD and
you. We want to get the facts.
Mr. Harnage. I think we are going to find that there is
very conflicting information on that. There is conflicting
information where it takes--you know, the last hearing we took
18 months to fire someone. Today, it only takes 9. The last
hearing, it took 9 months to hire somebody, today it takes 18
months. They need to get their--first, they need to get the
facts, then they need to keep them straight.
Mr. Burton. But it takes too long to hire people.
Mr. Harnage. It takes too long, but it is not the law or
the regulation. It doesn't take too long to fire somebody if
anybody, easiest case scenario, can be fired in 30 days, not 9
months.
And I have been wondering where this poor performer was
that they keep talking about. The day they identified him that
manager that took 9 months to fire a poor performer is the poor
performer.
Mr. Light. I have got to disagree on this issue. Federal
employees are telling us over and over again that there is some
flaw in the disciplinary process. And it is the hard-working
Federal employee who is being punished by this.
They are looking at this and describing the disciplinary
process as ineffective. Now, is this just an urban legend, or
is there some fact behind it?
And that is part of the issue that I think you see being
debated here, that we have very little knowledge about our work
force. But, I am telling you, it comes up over and over again
in terms of the disparity between the Federal and the private
and nonprofit sectors on ability to discipline or go forward.
It could be a lack of guts among managers. Maybe they are
just terrified to ever take a stand.
Mr. Harnage. Let's get something straight. I realize--I was
wondering what employees Mr. Light is talking to, since I
represent 600,000 of them, and over 200,000 are the ones we are
specifically talking about today.
Now, I understand how he talks to them, through a survey. I
had a problem with that survey too, when it talked about poor
performance.
First of all, it didn't identify who was complaining about
a poor performer. Was it managers complaining about poor
performers? Was it employees complaining about poor managers?
And was it good old boys complaining about the diversity? It
has allowed the potential of legitimizing discrimination.
If I didn't like you, then I could complain about you being
a poor performer. And I can get away with it, putting it in
this survey; that survey had absolutely no credibility.
Mr. Light. I don't think we are talking about the same
survey. But I am telling you, the front-line employees, in
terms of careful survey research, are reporting higher levels
of poor performance than their managers and their supervisors.
It is the supervisors and the higher SES and the higher-grade
civil servants in the system who like the way things are. They
are the ones with the resources. They are the ones with no
vacancies.
It is down at the bottom where you find the greatest
frustration with this current system.
Chairman Tom Davis. Needless to say, I represent a lot of
the Federal employees. Really, attitudes are very split among
civil servants on this issue. There is a fear on the one hand
that things could get worse, but there is a yearning that they
can get better.
How we do split that and do the right thing is going to be
what we are wrestling with over the next few weeks. But you all
have added a lot to the debate. Is there anything else anyone
wants to add before we conclude for the day?
Ms. Turner. I just wanted to mention one thing.
Of course, I am representing on the management side. I
think one of our concerns is that performance appraisals and
the pass-fail system really fail. It doesn't work well for a
manager. It just allows for mediocrity.
So in that respect, as far as having to relieve someone
from duty, if you had a better performance appraisal system, it
would be helpful. And also we all do recognize that there are
barriers when you are having problems with hiring and firing.
What we need to do is to get some flexibility in there before
we overhaul the whole system.
Ms. Kelley. Chairman Davis, I would just ask that this
committee and the Congress think very, very seriously about the
speed with which a change like this should even be considered
or voted on. This is not a definable change. This is a huge,
undefined change, the ramifications of which are unknown. And
until there are results from a place like Homeland Security,
which has not even started to use the flexibilities that they
were given, I would urge that this be taken off of a fast track
to provide adequate time to realize the impact that it could
have.
Chairman Tom Davis. Unfortunately, this committee doesn't
set that agenda. We have a vehicle going through where we can
either be part of it or we can sit back and let another
committee take control of this. We elected not to do that.
But let me assure you that however speed we run here,
whether it is tomorrow or next week or whatever, and whatever
we do on the floor, there is a conference after that. We are in
constant touch with the Senate. I hope we will be in constant
touch with you. And I think we will try to keep this better as
it moves through the process.
I don't want anyone to sit here, at the end of tomorrow if
we should mark this up, thinking it is the end of the world or
that I have lost flexibility of anything else. This is a
dynamic process. We understand--at least my belief, I think the
majority of the committee's belief--we need to make some
changes. We share some of the concerns that you have
articulated.
We are not exactly sure how to get at that, or at what
stage we do that. But I hope that we will continue to stay in
touch as we move through this, because this is a dynamic
process that will change drastically even when it leaves here.
I just want to assure you of that and put that on the record as
well.
You all have added significantly, I think, to the debate on
this and to our deliberations. I am sorry more members weren't
here to hear all of this, but they will get it. We will digest
it for them, and I am sure both sides will make sure that
Members are aware of that.
But you have been articulate spokespeople for your
particular points of view. We appreciate it. I just again want
to thank you for taking the time out of your busy schedules to
appear before us today.
And the committee stands adjourned.
[Whereupon, at 2:40 p.m., the committee was adjourned.]
[The prepared statement of Hon. C.A. Dutch Ruppersberger
and additional information submitted for the hearing record
follows:]
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