<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:20017.wais]
FISCAL AND MANAGEMENT PRACTICES OF
THE U.S. COMMISSION ON CIVIL RIGHTS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 17, 2005
__________
Serial No. 109-22
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
20-017 WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800
Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Texas JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
MARCH 17, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan..................................... 3
WITNESSES
Mr. Russell G. Redenbaugh, Commissioner, U.S. Commission on Civil
Rights
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Michael Yaki, Commissioner, U.S. Commission on Civil Rights
Oral Testimony................................................. 9
Prepared Statement............................................. 10
Mr. Kenneth L. Marcus, Staff Director, U.S. Commission on Civil
Rights
Oral Testimony................................................. 13
Prepared Statement............................................. 15
Mr. George Harbison, Director of Human Resources, and Acting
Chief of Budget and Finance, U.S. Commission on Civil Rights
Oral Testimony................................................. 18
Prepared Statement............................................. 35
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of George Harbison, Director of Human
Resources, and Acting Chief of Budget and Finance, U.S.
Commission on Civil Rights..................................... 35
Response to post-hearing questions submitted by Chairman Steve
Chabot to Michael Yaki, Commissioner, U.S. Commission on Civil
Rights......................................................... 39
Response to post-hearing questions submitted by Chairman Steve
Chabot to Kenneth L. Marcus, Staff Director, U.S. Commission on
Civil Rights................................................... 43
Response to post-hearing questions submitted by Chairman Steve
Chabot to George Harbison, Director of Human Resources, and
Acting Chief of Budget and Finance, U.S. Commission on Civil
Rights......................................................... 68
Letter of Resignation from Russell G. Redenbaugh, Commissioner,
U.S. Commission on Civil Rights, to Majority Leader Bill Frist. 73
Letter to Chairman Steve Chabot from Abigail Thernstrom, Vice
Chairman, and Jennifer C. Braceras, Commissioner, U.S.
Commission on Civil Rights..................................... 74
FISCAL AND MANAGEMENT PRACTICES OF
THE U.S. COMMISSION ON CIVIL RIGHTS
----------
THURSDAY, MARCH 17, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:08 a.m., in
Room 2143, Rayburn House Office Building, Hon. Steve Chabot
(Chair of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order. If somebody
wants to get the door back there. Thank you.
First of all, I want to wish everyone here happy St.
Patrick's Day, one of the big occasions in our country and
world history, and so we appreciate everybody--I even have my
green on here today. I'm sure we'll be seeing a lot of folks
the rest of the day that are so dressed.
We are here today for our Constitution Subcommittee
oversight hearing on the United States Commission on Civil
Rights. While this type of agency oversight hearing typically
occurs every year, we have not held an oversight hearing for
the Civil Rights Commission since 2002. While this gap can be
attributed to a number of reasons, the period was not marked by
a lack of oversight. In fact, during this time the Government
Accounting Office, the GAO, has conducted four investigations
on our behalf, and staff of the House and Senate Committees on
the Judiciary have been actively engaged in a direct
investigation as well. All of these investigations have
included looking into allegations of financial and
administrative mismanagement by Commission leadership.
We are here today to obtain additional information
regarding the current status of the Commission from Commission
representatives. I know you have a monthly Commission meeting
tomorrow and recognize that your time is precious. So we thank
you very much for being here today.
The Civil Rights Act of 1957 established the United States
Commission on Civil Rights as a nonpartisan fact-finding
agency. The Commission is composed of eight members: four
Commissioners are appointed by the President, two by the
Speaker of the House, and two by the President pro tem of the
Senate. Even though the Commission is an independent agency,
its structure was designed to ensure that both Congress and the
executive branch are stakeholders and have continued input into
the Commission. The Commission has no enforcement power. The
Commission fulfills its statutory mission by, first,
investigating discrimination claims on the basis of color,
race, religion, sex, age, disability, or national origin;
second, collecting and studying information; third, appraising
laws and policies of the Federal Government; fourth, serving as
a national clearinghouse for information; and, fifth, preparing
public service announcements and advertising campaigns. As an
agent both of Congress and the executive branch, the Commission
must submit reports of its findings to Congress and the
President.
Since the Commission's inception in 1957, Congress has
extended the life of the Commission nine times. The
Commission's latest authorization expired on September 30,
1996. Despite the lack of authority, Congress continues to
appropriate the Commission roughly $9 million each year.
I have been personally involved in oversight of the
Commission over the last several years in my capacity as
Chairman of this Committee. This is my third term as such. I've
witnessed the decline in the public's confidence in the
Commission's work product under the previous Chair's direction.
Nevertheless, I have high expectations for this Commission and
for the important work of protecting civil rights. I am
concerned, however, with reports that reforms, which were
promised, have not yet been undertaken since new leadership has
taken charge of the Commission.
I believe that protecting civil rights is vital to
protecting all of the rights afforded by the Constitution and
codified in the Civil Rights Act. Thus, civil rights must
continue to play a prominent role in American society.
In my position as Chairman of the Subcommittee, I'm
committed to working to ensure that the Civil Rights Commission
does the best work possible, not just for Congress and the
President but for the American public.
I look back at how many times I and my Republican and
Democratic predecessors were assured that the Commission was
going to implement reforms that would allow the agency to
function in a credible and efficient manner. I'm to date not at
all satisfied with the Commission's reform efforts. Much needs
to be done.
As we sit here today, changes have yet to be made. Let me
be clear: My concern is not just with the financial and
management practices that have been the subject of many
investigations. I am also concerned deeply about the project
process used by the Commission results in substantive material
that does not stand up to academic scrutiny. This means that
reports are being issued under the seal of the Federal
Government that have not been tested for accuracy of bias. I
believe that these practices, along with the financial and
management changes, must be made so that the credibility of the
Commission can be restored.
The mismanagement that has plagued the Commission for years
undermines public confidence in the Commission's work. Unless
the Commission institutes reforms to its operating practices,
including to the methods that it uses to fulfill its statutory
mission, the Commission will not be able to be a serious fact-
finding agency that informs the public about the state of civil
rights in America. In view of these concerns, I know that all
Members look forward to hearing from our witnesses here this
morning, and there will be a time for the issuing of subpoenas
a bit later when we have a reporting and--a working and
reporting quorum, and then there is--on an unrelated matter, on
CIANA, there will be another hearing--actually, not a hearing
but a markup later on in this by the same Committee.
Those are my remarks. Mr. Nadler is not yet here, so I
don't know if Mr. Conyers or Mr. Watt would like to make an
opening statement. Mr. Conyers?
Mr. Conyers. Yes, thank you, Mr. Chairman. Good morning----
Mr. Chabot. Good morning.
Mr. Conyers. --to all of our Committee Members and
witnesses. I'd like to welcome you here and just suggest some
things that we need to try to put in perspective.
First of all, we have a number of Commissioners that at
least I haven't heard from or talked with, and what it suggests
to me, Chairman Chabot, is that we may need another hearing
just to get the lay of the new Commissioners and what their
points of view are and who they are, really. We have missing--
or we haven't met with yet Commissioners Kirsanow, McReynolds,
Taylor, and Meeks, and I think that that would be important for
all of us to begin to get acquainted.
Now, how do we get the Civil Rights Commission on its feet
again? Well, they only get $9 million, so this is not one of
the world's greatest challenges that the Congress faces. It
would seem to me that the unfreezing of the Commission budget
would be incredibly important, and probably the sooner the
better.
We are going to have a meeting on the issuance of
subpoenas, and, of course, the interesting thing is, is it to
end the cycle of blame or is it going to continue the cycle of
blame? I'd like all of you distinguished people here today to
try to make sure I understand what it is--where can we cut it
off at from the past and get moving for the present.
In a more perfect world, I would probably like to see an
independent manager that would relieve the Commissioners of the
responsibility of trying to micromanage and deal with these
large issues as well.
The other thing we have to develop is an agenda, Mr.
Chairman, or the discussion around an agenda, and for that we
probably would need Mr. McReynolds, and we'd like to get ideas
from everybody as to what they see as the goal and role of the
U.S. Commission on Civil Rights.
Now, let's assume that in the august chambers of the
Judiciary Committee we could--we'd come to this wonderful new
agreement that I'm trying to outline here. Without State
advisory commissions being re-energized, it's going to be very
hard to get to the base of your work. So it seems to me that
that could be one of the very important things that maybe the
independent manager, if there were one, or the Commission
itself could quickly take care of.
So that's how I view us starting off, Mr. Chairman, and I
hope that we'll be able to work cooperatively toward that goal.
Mr. Keenan Keller suggests that I ask for permission,
unanimous consent so that if there are additional questions
that we want to send the Commissioners, we'd be able to do
that.
Mr. Chabot. Without objection, so ordered.
Mr. Conyers. Thank you very much.
Mr. Chabot. Thank you very much, and I share many of the
things which you stated in your opening statement, and I would
hope that to the extent possible, although we don't do a lot of
things in this august body in a bipartisan manner, with respect
to civil rights it ought to be done in a bipartisan manner. And
I look forward to working both with Mr. Nadler and yourself and
any other Members that would like to do that.
Mr. Conyers. Thanks so much.
Mr. Chabot. We thank you as well.
Are there any other Members that would like to make opening
statements? If not, we'll proceed with the introduction of the
witnesses.
Our first witness here this morning will be Commissioner
Russell Redenbaugh, and on a personal note, I'd like to
recognize Commissioner Redenbaugh for his contributions to the
Commission over the last 15 years. We were, I think, all
disappointed to learn of his resignation and wish him the best
in his future endeavors.
Mr. Redenbaugh is a financial and economic strategist,
and--excuse me, economic and business adviser in building
wealth and power, executive, author, teacher, and Commissioner
on the U.S. Civil Rights Commission. He is the managing
director of Kairos, Inc., in Philadelphia, PA, which both
invests in and advises companies that are undergoing
fundamental changes, all of which are producing innovations in
either or both their products and business models. He has been
a Commissioner, as I mentioned, of the U.S. Commission on Civil
Rights for 15 years since being appointed on February 8, 1990.
Commissioner Redenbaugh has served as an instructor at the
University of Pennsylvania School of Arts and Sciences where he
designed and taught a graduate course entitled ``Work Process
Redesign Theory and New Practices in the Dynamics of
Organization Program.'' He is currently a director of the
Joseki Group in Menlo Park, CA, Associated Services for the
Blind in Philadelphia, PA, and the Lexington Institute in
Washington, D.C. He is a recipient of the Louis Braille Award
given by Associated Services for the Blind in Philadelphia, PA.
In his spare time, Commissioner Redenbaugh became the 1997
National Jujitsu Federation Champion, the 2003 and 2004 World
Jujitsu Federation World Champion, and participated in running
the torch across America for the U.S. Olympic Committee in
advance of the 2002 Winter Olympics. Finally, Commissioner
Redenbaugh is widely published on topics ranging from
management reforms to financial strategy to civil rights. He is
a chartered financial analyst and a chartered investment
counselor and received his MBA from the Wharton School at the
University of Pennsylvania and his B.S. from the University of
Utah. And we thank you and appreciate your being here this
morning, Mr. Redenbaugh.
The second witness will be Commissioner Michael Yaki.
Commissioner Yaki was appointed to the U.S. Commission on Civil
Rights in February 2005. He is a partner in the San Francisco
law firm of Jeffer, Mangels, Butler & Marmo, and prior to
joining his present firm was a partner in another law firm.
Since 1999, he has been a freelance writer, authoring
editorials for the San Francisco Chronicle on sports, politics,
and international relations. He has contributed to The New York
Times Opinion/Editorial section and has been a commentator on
several radio stations. Commissioner Yaki was a member of the
San Francisco Board of Supervisors from 1996 to 2001. He was
the convener and Chair of the first citywide Summit on Children
and Youth in 1996. He also was the Chair of San Francisco
Transportation Authority, the director of the Golden Gate
Bridge and Highway District, of the California State
Association of Counties, of the Bay Area Air Quality Management
District, and of the San Francisco Employee Retirement System.
He has been a lecturer of political science and urban studies
at San Francisco State University. He also was the district
director for Congresswoman Nancy Pelosi. Commissioner Yaki
received a B.A. from the University of California, Berkeley, a
J.D. from Yale Law School, and was a law clerk to the Honorable
Harry Low in the California Court of Appeals.
In his spare time, Commissioner Yaki is a director of the
San Francisco Zoological Society and was the founder of the
Presidio Day Camp for Underprivileged Children, was an
elementary school volunteer reader, was the host and a
fundraiser for the Tiger Woods Community Foundation Golf
Clinic, and was the fundraising campaign Chair for the Say Yes
Summer Youth Jobs Program. He is the recipient of the San
Francisco Bay Area YMCA Building Strong Kids Award, a two-time
recipient of the FDR Club for Persons with Disabilities
Legislator of the Year Award, and the Organization of Chinese
Americans Community Service Award. And we welcome you here this
morning, Mr. Yaki.
Our third witness is the U.S. Commission on Civil Rights
Staff Director, Kenneth Marcus. Mr. Marcus was appointed to
this position by President George W. Bush with the concurrence
of the Commission on December 6th, so he's actually only been
in this position for several months now. As Staff Director, he
serves as the agency's chief executive officer, responsible for
providing leadership and direction to the agency staff. In this
position, Mr. Marcus continues his long-time work of combating
discrimination and working on behalf of those who have been
denied basic constitutional and civil rights. Mr. Marcus is an
experienced civil rights attorney, litigator, and leader.
Before assuming his current duties, Mr. Marcus was
delegated the authority of Assistant Secretary of Education for
Civil Rights and served as the Deputy Assistant Secretary of
Education for Enforcement. As head of the Education
Department's Office for Civil Rights, Mr. Marcus was the
principal civil rights adviser to the U.S. Secretary of
Education and oversaw the resolution of approximately 5,000
civil rights cases per year through the office's 12 enforcement
offices.
While in this position, he developed and implemented
proactive enforcement initiatives and issued policy guidance in
several areas. Mr. Marcus also served at the time as a
Commissioner on the U.S. Commission on Brown v. Board of
Education.
Prior to joining the Department of Education, Mr. Marcus
served in the U.S. Department of Housing and Urban Development
as the General Deputy Assistant Secretary for Fair Housing and
Equal Opportunity. As head of HUD's Office of Fair Housing and
Equal Opportunity, Mr. Marcus was the principal civil rights
adviser to the U.S. Secretary of Housing and Urban Development
and oversaw the work of the office's 54 offices.
As HUD's civil rights chief, Mr. Marcus developed
initiatives and oversaw HUD's Office of Departmental Equal
Employment Opportunity in its section 3 program office. Before
entering public service, Mr. Marcus served as a litigation
partner in two law firms, where he successfully represented
individuals who had been denied constitutional and civil
rights. Mr. Marcus is a graduate of Williams College and the
University of California at Berkeley School of Law. We welcome
you here this morning, Mr. Marcus.
And our final witness here is George Harbison. Mr. Harbison
is the Acting Director of Budget and Finance and is the
Director of Human Resources for the Civil Rights Commission.
Prior to assuming these positions, he was the Director of
Budget and Finance for the Commission for approximately the
past 14 years, and we welcome you here, Mr. Harbison.
It's the practice of this Committee to swear in all
witnesses appearing before it, so if you would all please stand
and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. All witnesses have answered in the affirmative,
and you can all be seated.
We appreciate, as we said, your presence here this morning.
I know that you have a meeting tomorrow, so we know it is
perhaps inconvenient to do two things of such importance in
such close proximity, so we do appreciate your presence. And as
I know that you're aware, we have a 5-minute rule here where we
would ask each witness to testify for up to 5 minutes. We will
give you a little leeway beyond that if you need to wrap up. We
have a lighting system. It will be green for 4 minutes, turn
yellow when you have 1 minute, and then red when your 5 minutes
is complete, and we'd ask that you please wrap up as close to
that time as possible.
And, Mr. Redenbaugh, you would be our first witness here
this morning, so you are recognized for 5 minutes.
TESTIMONY OF RUSSELL G. REDENBAUGH, COMMISSIONER, U.S.
COMMISSION ON CIVIL RIGHTS
Mr. Redenbaugh. Well, thank you, Chairman Chabot, and
Subcommittee Members and staff. Thank you for holding this
hearing and for inviting me here.
As you all know, I am resigning from the Commission. What I
would like to make clear is I'm resigning not because I object
to the particular projects or programs that have been put
forward, but because I object to us not making reform our
highest and most urgent priority.
In my private life, I advise companies on how to manage
themselves. I've managed a half a dozen companies. And I look
at organizations through the lens of purpose, processes, and
people--the purpose being, you know, that mighty theme or that
mighty objective that unifies us. The processes define how
we're going to work together to accomplish that purpose. It
defines the accountabilities, who will do what by when. And the
people, and the people must work through those processes and
share that purpose. And an organization that gets all three of
those right can do truly remarkable things.
At the Commission we don't have a clear purpose. We have
agendas. As you all know, we don't have processes. We don't
have a process for financial accountability. We don't have a
process for accountability with respect to our projects. And
given that we don't have the purpose or processes, the people
can't possibly work together as a team. And, you know, we have
never been a team.
But there's something about the design of the organization
and of the organization that's even more of a fatal flaw than
any of that, and that is, this agency has defined itself as a
special independent agency, independent of the executive
branch, independent of the Congress, certainly independent of
its oversight Committee, independent from GAO recommendations,
from OMB, and independent from GPRA, in fact, even independent
from some of the civil rights laws that we support. You can see
this by examining some of our EEOC cases.
And this independence, the way we've interpreted it, means
that we can never reform ourselves because we don't have
clients or customers.
Now, I think tomorrow, in tomorrow's meeting, there will be
a new enthusiasm for reform, and I suspect there will be a
great many reform measures adopted, probably unanimously. But I
caution that that which is adopted tomorrow can be ignored next
month or unadopted next year.
So if you're inclined to give this Commission yet another
chance, my recommendation would be that you collateralize those
promises of reform with changes in the statute that give this
Commission the accountability that all organizations need to
have.
My own recommendation, though, is that you close this
Commission and start another one. For far too long, Congress
has felt that having a bad Civil Rights Commission was better
than having no Civil Rights Commission. And I commend this
Subcommittee for not accepting such a low standard. The country
does deserve far better.
And I'd take out a blank sheet of paper, and I'd ask you to
do this as Congressman Conyers suggested, in a nonpartisan way,
and ask the question: What is the purpose of the Civil Rights
Commission today? Because when this Commission was originally
constituents in the 1950's, its purpose was a mighty one. It
was to be the conscience of America, and America needed a
conscience. And through the work of many people and this
Commission in part, that conscience manifest and produced the
civil rights legislation that we have today.
So the situations are very different. We still have
discrimination and too much of it. But those of us who are
discriminated against have many powerful remedies. We don't
need, as one of those remedies, the weak, inconsistent, anemic,
conflicted voice of this Commission. We deserve better. The
country deserves better.
And so to misquote someone who's a far better communicator
than I am, my advice to you would be to ``End it, don't mend
it.''
I'll be happy to answer any of your questions, and I'd like
to submit additional written testimony for the record, if I
may.
Mr. Chabot. Without objection, it will be so submitted.
[The prepared statement of Mr. Redenbaugh follows:]
Prepared Statement of Russell G. Redenbaugh
Mr. Chairman, members of the Subcommittee, thank you for holding
this hearing and for inviting me to testify today. As you know, I have
resigned from the commission. I did this because I became convinced
that the problem with this commission is structural and unfixable. I
used to believe that the problem was political or based on
personalities, but it is neither of those.
Let me say a little bit about my background, I understand
organizations. I've studied them for 35 years. I've written widely on
them. I've managed several companies and have consulted many on
organizational design. I know what it takes to produce remarkable
results. Remarkable results are produced by patters of behavior, and
it's the organization's structure and processes that determine those
patterns of behavior. I know if I want to change the results in a
company, I need to change the structure.
In the organizational design business we use the short hand of the
3 p's: purpose, process, people. To be a high performance organization
you must get all 3 right. From time to time every organization needs to
be reformed, that means a new structure and new processes. In business
strong organizations are built by having many satisfied customers and
in business the incentive to reform comes from defecting customers.
Now let's talk about the civil rights commission. We don't have a
clear purpose, we don't have clear processes, we don't have the minimal
financial controls, and our structure is fatally flawed. Our structure
allows us to cloak ourselves with the myth of our independence. It's
lent some commissioners to believe that we don't have customers. Well
if we don't have customers then we don't have any consequences for not
reforming or any incentive to make those necessary changes.
The commission has no clear purpose. Purpose, the first of the 3
p's, is the glue that unifies and binds an organization together. An
organization's purpose is what we are willing to work hard for in order
to produce remarkable results. This commission doesn't have a clear
purpose. The conditions that existed in this country when the
commission was put in place have changed dramatically. This structure
may have been the right structure for dealing with those conditions,
which were state supported institutional racism, but the structure does
not work for what is needed to combat discrimination and disparities
today. Congress tweaked the structure in 1983 but adopted another
inappropriate model. We still have much discrimination, but the
government now runs a multibillion-dollar apparatus to protect our
rights. Think of all the bulwarks against discrimination in the major
federal and state agencies and all the volumes of antidiscrimination
laws on the books. People who are discriminated against deserve these
remedies. They don't deserve the inarticulate, confused, and conflicted
voice of the civil rights commission.
The commission's processes are fatally flawed and cannot be
reformed. I do not believe that this commission will ever reform
itself. The changes that need to be made are structural. The principle
structural problem is the claim by some commissioners' that
``independence'' means that we don't have customers. Another structural
problem is that commissioners are appointed by the executive branch and
the congress, which leaves the political accountability splintered. The
commission is composed of an even number of commissioners; this makes
for gridlock. Another problem is that commissioners are part-time and
staff is full-time. Given this structure there need to be clear
processes that prevent a staff director from hijacking the
commissioners' agenda. These processes do not exist at the civil rights
commission.
``End it, don't mend it'' I could say much more. The mismanagement,
the corruption, the arrogance, the disregard of the statute, of GPRA,
of OMB, and of GAO recommendations is well documented. This is an
agency that considers itself above the law and above civil rights laws,
just look at our EEOC record. I believed for many years that these were
problems of politics and personalities, but as I said before I am
completely convinced that this is a problem of structure and process.
That we didn't move immediately to correct these institutional problems
convinces me that we never will. I can no longer associate myself with
an organization that is both a national and a personal embarrassment.
To misquote a far better communicator than myself, ``End it don't mend
it''
Mr. Chabot. We appreciate your testimony this morning.
Commissioner Yaki, you are recognized for 5 minutes.
TESTIMONY OF MICHAEL YAKI, COMMISSIONER,
U.S. COMMISSION ON CIVIL RIGHTS
Mr. Yaki. Thank you very much, Mr. Chair, and I want to
thank the Chair and the Ranking Member for inviting me to
testify today. As you know, I'm the newest member of the
Commission, and I am actually deeply honored to have joined the
Commission on Civil Rights last month.
As a first matter of business, I want to thank Commissioner
Redenbaugh for his 15 years of service. Although I disagree
with his conclusion today, no one can deny that the 15 years of
service to the Commission and to this country is beyond
reproach, and I just want to thank him for all the inspiration
that he has provided to people in this country.
But I disagree with his conclusions because during the past
half-century, the Civil Rights Commission has taken its
independent fact-finding and recommendation powers seriously
and substantively. Its 1961 report was the basis for the
landmark 1964 Civil Rights Act. Its hearings on
disenfranchisement of African Americans in the South led to the
Voting Rights Act of 1965. And over time, the Commission has
adapted to the changing face of bias and discrimination in
America. Its 1978 Commission report on domestic violence put
that issue on the national agenda for the first time, and its
1983 Commission report on the challenges that Americans with
disabilities faced led to the adoption of the Americans with
Disabilities Act.
Has it been perfect in how and why it addresses certain
issues? Absolutely not. But has it provoked debate, discussion,
and made policymakers stand up and take notice? Absolutely yes.
And that is why I am here today. I'm here to speak on my own
behalf as a new Commissioner, to say that while the business of
this Committee with respect to ensuring fiscal responsibility
and management is important, it is equally important that the
business of the Commission be allowed to continue.
I am unable because I am new to substantiate or deny the
charges of financial mismanagement at the Commission. I come
basically with a clean slate. But I can tell you as a former
local legislator who bore responsibility for a $4 billion
budget with 25,000 employees, this type of hearing is not
unfamiliar to me. It is a very serious responsibility that we
undertake to ensure that taxpayer funds are not squandered
needlessly, especially during tough budgetary times.
I have read the GAO reports, and I can assure you that as a
former congressional aide and a former local legislator that no
one takes the GAO lightly. But when faced with these
allegations at the local level, it is important to take swift
and corrective action, which this Committee is working to do.
It is important to ascertain whether it is isolated or
systemic. It is important to put in appropriate controls and to
assure the public that we responded on their behalf.
But equally important is to understand that the department,
agency, or bureau in question still has a public mission to
perform. And, therefore, it is important to ensure that any
remedial or corrective action be carefully and narrowly
tailored to ensure that it does not hinder the public function
of that particular agency.
I am not here to understate the GAO or the hearings and
intent of this Committee. But I think it's important to put in
relative scale that it is going to be far easier to treat the
problems of a $9 million Commission than a multi-billion-dollar
department. Mr. Marcus to my left has outlined a response, and
I will be in support of these reasonable reforms that will put
the Commission back on track fiscally and managerial. But
consider that just last year the GAO reported that between 1997
and 2003, the Defense Department lost more than $100 million in
taxpayer money on unused airplane tickets. Now, let me repeat
that. That's $100 million in airplane fares that they could
have cashed in, and that is 10 times more than the entire
budget of the Commission on Civil Rights.
But just as it would not make any sense to stop the DOD
from protecting our homeland simply because they made financial
mistakes, albeit on a possibly mind-boggling scale to a
taxpayer, it does not make any sense to impose actions or
controls on the Commission that hampers its investigative and
fact-finding functions. It is, therefore, my plea to this
Committee that you recognize that not only must the mission of
this Commission go on, but also recognize that the Commission
actually needs additional resources, guarded by appropriate and
adequate fiscal controls to continue its mission.
In fact, it is astonishing that the Commission and staff
have been able to do what they have done over the past few
years, given its very low staffing and fiscal constraints.
As an independent agency, the Commission can venture where
Department Secretaries and administrative heads fear to tread.
It can question the efficacy of existing Government programs,
policies, and enforcement. The targets of discrimination, the
tools used to discriminate have changed and evolved. But the
fact that discrimination remains, as Commissioner Redenbaugh
has said, cannot be seriously disputed. And thus the need for
the Commission remains.
As a watchdog, fact-finder, and policy conscience, there's
much that the Commission can and will do in the future to help
Congress and the executive branch and the general public to
assure that there is true equal protection under the laws. And
while I commend this Committee in protecting the taxpayer
dollar and working to reform this Commission, this Commission
also has its continuing duty to protect civil rights of our
country. These goals are not mutually exclusive, and with
mutual cooperation and assistance, we can achieve both these
goals. And the Commission will continue, as President
Eisenhower's Attorney General said in 1957, to continue to
``chart a course of progress to guide us in the years ahead.''
Thank you for your time and consideration of my views, and
I'm available for your questions.
[The prepared statement of Mr. Yaki follows:]
Prepared Statement of Michael Yaki
I want to thank the Chair and the Ranking Member for inviting me to
testify today. As a preliminary matter, I am deeply honored to have
joined the Commission on Civil Rights last month. The responsibility
first placed upon the Commission by President Eisenhower nearly fifty
years ago is a mantle I will wear with pride. Briefly, my background
includes having recently been a local elected legislator for the City
and County of San Francisco for 5 years, overseeing with my colleagues
an annual budget of over $4 billion with nearly 25,000 employees. I
have also served as a Congressional Staff Director for the Minority
Leader and been a practicing securities attorney after completion of my
legal education at the Yale Law School and clerkship with California
Court of Appeal Judge Harry Low in California. I am now practicing as a
partner at a California-based business law firm.
The United States Commission on Civil Rights has been called the
``watchdog'' of civil rights for this country. Created in the 1957
Civil Rights Act--the first meaningful, if tentative step this country
took towards ending the Jim Crow era--it was envisioned by President
Eisenhower as a bipartisan, fact-finding panel charged with
investigating and making recommendations to the Executive and
Legislative branches on how to end discrimination in this country.
Over the past half-century, the Civil Rights Commission has taken
its fact-finding and recommendation powers seriously and substantively.
Its 1961 Report was considered by the Congress and the Supreme Court as
the intellectual and factual grounding for the provisions of the
landmark 1964 Civil Rights Act. Its hearings on the blatant, deliberate
disenfranchisement of African Americans in southern precincts and
parishes formed the basis of the Voting Rights Act of 1965.
Over time, the Commission has helped America recognize the changing
face of bias and discrimination. In 1978 a Commission Report
challenging law enforcement agencies to recognize domestic violence as
a crime put it on the national agenda, and by the late 1980's Congress
mandated the Law Enforcement Assistance Administration to focus on the
``role of the criminal justice system in preventing and controlling
violence and abusive behavior in the home. And the Congress relied on a
1983 Civil Rights Commission report on the challenges disabled persons
faced in their daily lives in enacting the Americans with Disabilities
Act.
In the 90's and through the dawn of this new century, the
Commission has begun tackling many other challenges, including studying
civil rights matters facing Native Americans and Native Hawaiians and
issuing reports to Congress detailing policy and legislative failures
and loopholes that continue to deny equal protection under the law to
these most ancient Americans. Has it been perfect in how and why it
addresses certain issues? Absolutely not. Has it provoked debate,
discussion, and made policymakers stand up and notice? Absolutely yes.
Herbert Brownell, President Eisenhower's Attorney General, summed
up the scope of the Commission best when he testified before this very
Subcommittee 48 years ago this February in stating that:
``Above and beyond the need for improving the legal remedies
for dealing with specific civil rights violations is the need
for greater knowledge and understanding of all of the complex
problems involved. . . . [T]here is no agency anywhere in the
executive branch of the federal government with authority to
investigate general allegations of civil rights. . . . [T]he
Commission proposed by the President would present the means of
securing this vitally needed information.''
The Jim Crow era may have ended, but anyone who believes that we
have become a nation completely without malice towards people of color,
towards new immigrants, towards those who believe or worship
differently is, with all due respect, deliberately hiding their head in
the proverbial sand. All we need to do is look at the incredible jump
in hate crimes towards Arabs and Muslim Americans since 9/11; but we do
not need to confine ourselves to the most obvious victims to know what
is true. Neo-Nazism and anti-Semitism still exists; there remain school
districts where inequalities remain divided by race; and minority- and
women-owned businesses still encounter substantial hurdles to economic
parity left over from decades of exclusion.
And that is why I am here today. I am here to speak on my own
behalf, as a Commissioner, to say that while the business of this
Committee with respect to ensuring fiscal responsibility is important,
it is equally important that the business of the Commission be allowed
to continue.
I am unable to substantiate or deny the charges of financial
mismanagement at the Commission. I come, if you may, with a clean
slate. As a former local legislator in who bore responsibility for a $4
billion dollar city and county budget, this type of hearing is not
unfamiliar territory. It is a deep and very serious responsibility to
ensure that taxpayer funds are not squandered needlessly at any time,
including and especially in pressing budgetary times.
I have read the GAO reports and I can assure you that as a former
congressional staffer and a former local legislator that I do not take
any GAO report lightly.
I can communicate to you my impression that the present Commission
views its duty to ensure fiscal responsibility very seriously. In my
very first meetings after being told of my appointment, both the
Chairman and the Staff Director were very frank about their intent to
hold the agency accountable in the ways detailed in the GAO reports. In
my conversations with my new colleagues, the manner of fiscal
accountability is very important.
However, it is equally important to separate the past from the
present and the future. Even if there was mismanagement--which I cannot
deny nor confirm--the fact is, that these allegations are associated
with a regime that no longer exists at the Commission. And, in the
interests of full disclosure, I should also state that I am an admirer
of Ms. Berry's lifelong commitment to civil rights and to minority
communities in this country.
But I understand the scope of this hearing. When I was faced at the
local level with allegations of mismanagement of government resources,
it was important to take swift corrective action. It was important to
ascertain whether it was an isolated, or systemic problem. It was
important to put in appropriate controls to ensure that it did not
happen again. It was important to assure the public that we had
responded on their behalf.
But equally important was to understand that the department,
agency, or bureau still had a mission to perform. Missions that were
important to members of the public. And, therefore, it was important to
ensure that any remedial or corrective action be carefully and narrowly
tailored to ensure that it did not hinder the public function that all
government agencies perform.
It is easy to punish an entire agency, especially one as small as
the Commission. In San Francisco, as with many cities and counties of
size in this country, the Commission's $9 million budget would be
dwarfed by health, public safety, and other departments. In comparison
to the trillion dollar federal budget, $9 million may be barely
noticed.
Understanding the scale of the problem--and the scale of the
solution--is paramount in this case. The cure cannot kill the patient.
To be perfectly honest, we may go on about lack of controls. We may
pontificate about waste of taxpayer assets. But can we honestly say
that our concern about misspending in a $9 million dollar agency should
outstrip concern for waste that is in the tens, or hundreds of
millions? It is not to belittle the findings of the GAO or the hearings
of this Committee. It is to put in relative scale, however, that it is
far easier to treat the problems of a $9 million dollar Commission than
a multi-billion dollar Department.
Just last year the GAO reported that between 1997 and 2003 the
Defense Department lost more than $100 million dollars in unused
airplane tickets. Let me repeat that. The DoD forgot to cash in more
than $100 million dollars in plane fares. For the average taxpayer--the
person in whose shoes I stood as a legislator and you stand as Members
of this esteemed House--$100 million dollars is waste on a massive
scale.
But the ultimate mission, the purpose of the organization must go
on. Just as it would not make any sense to stop the Department of
Defense from protecting our homeland, or liberating a foreign country
from the yoke of tyranny, simply because they made financial mistakes--
in the case of airline tickets, on a truly grand and mind-boggling
scale--it does not make any sense to impose actions or controls on the
Civil Rights Commission that hampers its investigative and fact-finding
functions.
It is therefore my heartfelt plea to this Committee that you
recognize that not only must the mission of the Commission go on, but
also recognize that the Commission needs additional resources--guarded
by appropriate and adequate fiscal controls--to continue its mission.
The fact is that as a Commission, we are starved for resources. Let
me elaborate, based again only upon my short tenure with the
Commission.
Our State Advisory Committees are languishing from neglect, neglect
caused by a paucity of funding. The State Advisory Committees are one
of the most important means of obtaining information and insight on
civil rights issues on the ground. With the number of issues
confronting our limited time and agendas, the SACs have produced and
will continue to produce some of the most important civil rights
reports for this country. Yet we have barely staffing for one or two
professional staff responsible for multi-state jurisdictions totaling
tens of millions in population. The SAC's can't meet because we can't
afford to reimburse them for plane, train, and car fares--the least we
could contribute given the volunteer time and commitment of SAC
members. When we consider, as Justice Brandeis did, that the states are
the ``laboratories of democracy,'' the fact that the Commission, and,
therefore, the Executive and Legislative branches of the federal
government are deprived of their information, experience, and input due
to lack of funding is a loss on a truly national scale. Can we truly
say that this programmatic and mission loss is the price we must pay
for any past financial transgressions?
I cannot speak for the entire Commission, but I can also say that
it is already apparent to me that the agenda of the Commission itself
has been affected by the constant demand for documents, the need for
retasking already overworked employees. The fact is that attention must
be paid to answering complaints, preparing reports, and crafting policy
recommendations. But the reality is that critical resources must be
diverted just to keep the bare functionality of the Commission. It is
somewhat astonishing that the Commission and its staff have been able
to accomplish producing reports and conducting hearings given its
recent staffing and fiscal constraints.
As an independent agency, the Commission can venture where
Department Secretaries and Administrative heads fear to tread--it can
question the efficacy of existing government programs and policies. The
targets of discrimination, the tools used to discriminate may have
changed or evolved. But the fact that discrimination remains cannot be
seriously disputed. And thus the need for the Commission remains.
I am hoping the Commission will investigate the collateral damage
to civil rights as a result of the Patriot Act, which is up for
reauthorization this year. The Voting Rights Act comes up for
reauthorization in 2007, and rather than have talking heads trade
insults on its continued vitality, we need to take a fact-based look at
disenfranchisement issues in all communities of our country. And there
are many issues relating to educational and economic equality for
minorities, women and the disabled, and other communities that I
believe still need to be addressed.
There are issues that some Commissioners will agree with, and
others in which we will disagree. Reasonable people can come to
different conclusions from the same set of facts and circumstances, but
it requires resources to access those facts and circumstances.
I close again with the words of Herbert Brownell. In urging the
Senate to pass the Civil Rights Act of 1957, and in specific, to pass
Title I creating the Civil Rights Commission, he stated in a letter to
the Senate:
``[W]e must find out all of the facts--the extent, the methods,
the result. . . . Civil rights are of primary concern to all
our people. To this end, the Commission's membership must be
truly bipartisan. . . . The Commission will have authority to
hold public hearing. Knowledge and understanding of every
element of the problem will give greater clarity and
perspective to one of the most difficult problems facing our
country. . . . Investigation and hearings will bring into
sharper focus the areas of responsibility of the federal
government and of the states under our constitutional system.
Through greater public understanding, therefore, the Commission
may chart a course of progress to guide us in the years
ahead.''
As watchdog, fact-finder, and policy conscience, there is much that
the Commission can and will do in the future to help Congress, the
Executive Branch and the general public ensure that there is true equal
protection under the laws of our country for all Americans. While I
commend the zeal of this Committee in protecting Americans' tax
dollars, this Commission also has a duty to protect the civil rights of
our country. These goals are not mutually exclusive and with mutual
cooperation and assistance, we can achieve both these goals. And the
Commission will continue to chart a course of progress to guide us in
the years ahead.
Thank you for your time and consideration of my views. I am
available for your questions.
Mr. Chabot. Thank you very much, Commissioner Yaki. We
appreciate your testimony.
Mr. Marcus, you are recognized for 5 minutes.
TESTIMONY OF KENNETH L. MARCUS, STAFF DIRECTOR,
U.S. COMMISSION ON CIVIL RIGHTS
Mr. Marcus. Thank you, Mr. Chairman, Mr. Ranking Minority
Member. I am also delighted to have an opportunity to address
you today, and I am also saddened that this will be one of my
last opportunities to work with Commissioner Redenbaugh, whose
departure I am sad to acknowledge. On the other hand, we are
certainly delighted to have Commissioner Yaki now on board to
join us.
Many have found fault with the Commission's management and
finances, and I certainly join in acknowledging that there are
many, many respects in which the Commission requires very
substantial systematic reform. I would like to emphasize,
though, by way of preface that this agency has over a period of
nearly 50 years had extraordinary accomplishments in bringing
public attention to matters which otherwise in many instances
would not have received attention. In all of the 50 States and
at a national level, the U.S. Commission on Civil Rights has
countless times over the decades reminded us of our basic
obligations under the Constitution and laws of the United
States.
At the same time, the present is a very difficult time for
the Commission on Civil Rights. Those of us who are new to the
Commission have inherited an agency in crisis with profound
management and financial challenges as well as challenges
regarding project planning that we must face in short order.
Many of the challenges have been well documented over a period
of years by the Government Accountability Office in the reports
to which the Chairman made reference earlier this morning.
These challenges include weak internal financial and project
planning controls as well as an unsustainable budgetary
situation.
At the same time, we have a committed staff which is
working very hard under difficult circumstances based on their
commitment to civil rights and their belief that it is
important that they work as hard as they can, even under these
uncertainties, to try and protect those who would otherwise
face discrimination, hatred, and injustice.
The GAO reports which have been referenced have described a
lack of good project management and transparency in contracting
procedures and elsewhere, have referred to weaknesses in the
way in which resources have been used, have described a lack of
strategic planning, and have in general painted a portrait of
an agency that has had little financial control, weak
management, and little accountability.
Those reports go to a period of time at which I was, of
course, not present at the agency, and I cannot speak to things
that happened before I was here. What I can say is that it is
clear to me, as to the Commissioners, that fundamental changes
do need to be made, need to be made deliberately, need to be
made thoughtfully, and need to be made quickly.
We have already in a short 3 months begun to tackle the
task of solving the problems that developed over a period of
years and even decades. But it is a process that will take some
time, both because the problems are difficult and also because
the body is, of course, a deliberative one which works as a
panel.
Some of the changes that we have looked at and even
instituted involve implementation of GAO recommendations. For
instance, we have already implemented or issued directives to
implement over 20 of the recommendations that GAO has made,
even within the first couple of months. It is certainly my
highest priority to reform the management and financial
structure of the Commission starting with those challenges
which have been identified by the GAO and the Office of
Personnel Management, and I think that we have at least made a
step forward in addressing those.
Commissioner Redenbaugh also indicated that there are other
reforms which have been discussed and may be raised during the
meeting tomorrow. The Commission, as one of its very first
acts, established a working group on reform to address internal
and external communication matters and project planning.
Commissioner Redenbaugh has chaired the meetings of that body,
and I expect that through the working group on reform there
will be additional substantial reforms that are recommended to
the full Commission, which I hope will address many of the
concerns that have been raised today.
In general, I would say that the challenges that we have in
terms of our internal structure are very serious ones, but
there is a very strong commitment by the Commissioners that I
share to acknowledging those problems, identifying them, and
solving them deliberately but quickly.
In addition to the structural problems, we also, of course,
have very serious budgetary constraints within this fiscal
year. We had been spending money at a pace which is
unsustainable within our current appropriations. In fact, as of
the time that I arrived, we were spending money at a pace which
would exhaust our budget far before the end of the fiscal year.
So our most urgent concern is to establish cost-cutting
constraints to make sure that we live within our budget. Beyond
that, we are very highly focused on establishing reforms to
make sure that we are functioning properly as an agency not
only because it's required by law and by the GAO
recommendations, but also because our commitment is to ensuring
that this agency is able managerially and financially to
achieve its mission.
We all believe that the mission of this agency is vitally
important, and I am dedicated to ensuring that we have the
level of management necessary in order to meet that mission.
I thank you for the opportunity to speak and, of course,
will be available to answer questions.
[The prepared statement of Mr. Marcus follows:]
Prepared Statement of Kenneth L. Marcus
Thank you, Mr. Chairman. I am Kenneth L. Marcus, and I have served
as Staff Director of the United States Commission on Civil Rights since
mid-December 2004. The Commission is an independent bipartisan agency
established by Congress in 1957 to investigate complaints alleging that
citizens are being deprived of their right to vote for reason of their
race, color, religion, sex, age, disability, or national origin, or by
reason of fraudulent practices; to study and collect information
relating to discrimination or a denial of equal protection of the laws
under the Constitution because of the same bases; to appraise federal
laws and policies with respect to discrimination or denial of equal
protection of the laws because of the same bases; to serve as a
national clearinghouse for information in respect to discrimination or
denial of equal protection of the laws because of the same bases; to
submit reports, findings, and recommendations to the President and
Congress; and to issue public service announcements to discourage
discrimination or denial of equal protection of the laws. The
Commission has been called the ``conscience of the Nation'' on civil
rights matters, and our recommendations to Congress have often led to
the enactment of critical legislation.
I would like to preface my remarks today by thanking the Chairman
and the Subcommittee for the opportunity to address today the
challenges we face as an agency and the internal reforms we are
implementing at the Commission. As you are certainly aware, the
Commission has some extraordinary organizational and financial
challenges to address.
CURRENT CHALLENGES
Those of us who are new to the Commission have inherited an agency
in crisis, with profound management and financial challenges that we
must face in short order. Many of these challenges have been well
documented, over a period of years, by the Government Accountability
Office, the Office of Personnel Management, and other entities. The
challenges include weak internal, financial and project planning
controls, as well as an unsustainable budgetary situation. These
challenges pose a need for serious and significant reform. The GAO has
issued three reports on the Commission since 1997 that bring a number
of problem areas into focus--most notably management, financial
accountability, and the quality and integrity of Commission projects.
The July 1997 GAO report, U.S. Commission on Civil Rights: Agency
Lacks Basis Management Controls (GAO/HEHS-97-125), found broad
management problems at the Commission, including limited awareness of
how its resources were used. The GAO used blunt language to describe
the status of this agency announcing, ``the Commission appears to be an
agency in disarray with limited awareness of how its resources are
used.'' At the time, the GAO reported that the Commission could not
provide key cost information for its regional offices, complaints
referral process, clearinghouse, public service announcements, and at
least one project. It also reported that the Commission had not
established accountability for resources and did not maintain
appropriate documentation of agency operations.
An October 2003 GAO report, U.S. Commission on Civil Rights: More
Operational and Financial Oversight Needed (GAO-04-18), found that the
Commission lacked good project management and transparency in its
contracting procedures. This report also found that the Commission had
made a number of management improvements, including establishing
policies that clarify the roles of senior management, preparing more
detailed budget information for better fiscal administration, and
instituting various project management procedures to meet target
deadlines, since the GAO's last report in 1997.
The October 2004 GAO report, U.S. Commission on Civil Rights:
Management Could Benefit From Improved Strategic Planning and Increased
Oversight (GAO-05-77), found that the Commission had not fully complied
with the requirements of the Government Performance and Results Act
(GPRA). For example, the report had found that the Commission had not
updated or revised its strategic plan since 1997. This report
recommended improved strategic planning and increased oversight.
In general, the GAO's reports paint a portrait of an agency that
was run out of control with little financial control, weak management,
and little accountability. They are a wake-up call for this agency that
we must implement substantial change and reform in order to meet our
fiscal responsibilities and to restore public trust and confidence in
us as ``the conscience of the Nation'' on civil rights.
When I arrived at the Commission in December 2004, I found little
that was inconsistent with the GAO's highly critical assessment. The
Treasury Department's Bureau of Public Debt previously provided
accounting services to the Commission, but terminated its relationship
with the Commission effective fiscal year 2004, citing concerns
regarding the agency's financial responsibility.
A September 9, 2003 letter from the Department of Treasury to my
predecessor, the Honorable Leslie Jin, provided to me by the Department
of Treasury, reads in part as follows:
As an accounting service provider, we are assuming a high level
of responsibility for management and control of federal
government resources. To effectively perform our services, we
must rely upon a strong system of internal controls, which
includes prudent oversight and management of budgetary
resources by our customer agencies . . . Based upon our
experience in servicing your agency, we believe there is
inadequate management and control oversight of your agency's
funds.
At the time, the Department of the Treasury was particularly
concerned about the Commission's over obligation of its fiscal year
2003 budget authority and its failure to take adequate corrective
action to avoid violating the Anti-Deficiency Act. In short, the
Commission's financial controls had deteriorated to the point last
fiscal year that another agency of the federal government refused to
continue to service its account.
My predecessor was forced to seek a new accounting services
provider in the midst of these challenges. The agency entered into an
agreement with Booth Management Corporation in the middle of the fiscal
year. That contractor is a small company seriously challenged by the
difficulties of entering into a relationship in the midst of a fiscal
year. Compounding this difficulty is the limited experience that it has
with providing full service accounting to a federal agency and the
difficult relationship that it had developed with Commission staff and
other contractors.
Additionally, the Commission had not had an independent audit of
its books for many years. The agency now finally is currently in the
process of obtaining its first independent audit. The Parker, Whitfield
firm is conducting the limited scope audit of the agency's balance
sheet. Mr. Ernest Parker of the Parker, Whitfield firm has taken charge
of the audit personally. This audit, originally scheduled for
completion within a three to four-week time frame, is now in its fourth
month, and his firm is not able to predict the length of time required
to conclude the audit. Mr. Parker has attributed this difficulty in
completing the audit to the Commission's failure to be forthcoming with
financial records prior to my arrival. He has not leveled this charge
specifically at any employee of the Commission but to at least one
outside firm working on behalf of the Commission. More troubling, this
independent audit informed me that, as of fall 2004, the Commission's
financial records were in such disarray that it had no financial ledger
whatsoever. This has since been remedied, but many other accounting
practices are difficult or impossible to reform during the middle of a
fiscal year.
As a result of the lack of accountability and transparency, the
financial condition of the agency has been a substantial challenge for
quite some time. The Commission's current budget for fiscal year 2005
is $9,023,232. This is essentially unchanged from the prior fiscal year
and has been held flat now for many years. At the same time, our
primary expenses, specifically salaries and benefits, have continued to
rise. Moreover, we are saddled with various expenses incurred during
prior fiscal years but not yet paid. For example, the Commission's
prior management deferred payment of approximately $75,000 for 2004
rent, which we must pay this year. Similarly, we are now obligated this
year to pay approximately $188,000 in equal employment opportunity
claims against the Commission's former management out of $355,000 in
civil rights claims resolved against or settled by prior management
over the last five years. As of my arrival, the spending plans and
assumptions of the Commission placed the agency on course to overspend
its appropriations by a considerable sum. We are now working on cost-
cutting measures to close this gap and provide us with a sufficient
cushion against unexpected costs that we can assure that we are living
within our means.
CURRENT REFORMS
Administrative Instructions Addressing Integrity and Accountability
The Commission has begun to implement many reforms to strengthen
accountability and transparency at the Commission, as well as address
GAO recommendations in those areas. In my short time at the Commission,
I have already issued three administrative instructions (AIs) that
begin the long process of curing the substantial deficiencies at the
Commission.
These administrative instructions--AI's 3-15, 3-16 and 4-21, all
issued on March 11, 2005--implemented 29 GAO recommendations with
respect to financial accounting and expense tracking, with AI 3-16
alone implementing approximately 21 of those 29.
AI 3-15 establishes guidelines to ensure that the Commission
recognizes payroll expenses in the proper period for accounting
purposes. Specifically, AI 3-15:
<bullet> Asks Commissioners to submit timesheets to the
Commission tracking their billable hours, either on a once-per-
pay-period or monthly basis;
<bullet> Provides for submission of the timesheets to the
Office of the Staff Director for signature in a timely fashion
and eventual submission of the signed timesheet to the Human
Resources Division; and
<bullet> Requires the Executive Secretary for the Staff
Director to follow up on Commissioners' timesheets that have
not yet been received by the second Thursday of a pay period.
AI 3-16 embraces a wide variety of reforms to ensure that non-
salary expenditures have proper authorization, approval, and supporting
documentation. Among other things, these reforms direct the Chief of
the Budget and Finance Division to:
<bullet> Periodically review accounts to identify unusual
balances;
<bullet> Keep appropriate documentation in transaction files
to support accounting entries made to adjust or write off
assets and liabilities;
<bullet> Retain sufficient evidence in transaction files to
show that all transactions have been properly approved for
payment;
<bullet> Prepare purchase authorizations in advance of the
expenditure to be approved;
<bullet> Have evidence of receipt of goods and services prior
to approving transactions of payment;
<bullet> Provide travel vouchers and ensure that travelers
provide documentation to indicate the trip was taken; and
<bullet> Require that all financial transactions be properly
approved and supported before being processed.
This particular administrative instruction implements approximately 21
of the GAO's recommendations.
AI 4-21 directs the Chief of the Administrative Services and
Clearinghouse Division to:
<bullet> Prepare and maintain contract files to document the
basis for Commission decisions in acquiring good and services;
<bullet> Ensure that all statements of work contain a
provision on organizational conflict of interest;
<bullet> Provide training to appropriate employees on federal
procurement rules, regulations, procedures, and issues;
<bullet> Require that all aspects of the Commission's
procurement be documented in accordance with Federal
Acquisition Regulations; and
<bullet> Report fiscal year procurement data for fiscal years
2003 through 2005 into the Federal Procurement Data Center and,
going forward, to report such data annually into the Center.
These are the first in what will be a lengthy series of reforms that we
will adopt in order to ensure that the Commission complies with all
legal requirements and that its management is sound. Between now and
February 2006, we plan to implement GAO's pending recommendations and
to establish significantly stronger internal controls and project
planning procedures.
CONCLUSION
The U.S. Commission on Civil Rights has an illustrious history and
a deeply important mission. As we approach the vital task of reform,
our challenge is to establish the controls that are necessary to ensure
the success of our mission. It is important that we carry out this
mission with a high degree of integrity in order to ensure public
confidence and trust in the Commission as ``the conscience of the
Nation'' on civil rights matters.
I would be happy to answer any questions you may have.
Mr. Chabot. Thank you very much. We appreciate your
testimony.
[The Subcommittee proceeded to other business, to reconvene
at the conclusion of that business.]
Mr. Chabot. At this time we will go back into our hearing
relative to the Civil Rights Commission, and Mr. Harbison, you
are recognized for 5 minutes.
TESTIMONY OF GEORGE HARBISON, DIRECTOR OF HUMAN RESOURCES, AND
ACTING CHIEF OF BUDGET AND FINANCE, U.S. COMMISSION ON CIVIL
RIGHTS
Mr. Harbison. Mr. Chairman, honorable Members of the
Subcommittee, good morning. My name is George Harbison, and I
appear here today in acceptance of your invitation to express
my thoughts relative to the fiscal and management practices of
the United States Commission on Civil Rights. I have
approximately 30 years of service in the Federal sector in the
areas of financial management. From 1989 to 2005, I served with
the Commission on Civil Rights as Chief of the Budget and
Finance Division. Since February of 2005, I am currently
serving as the Director of Human Resources and Acting Director
of Budget and Finance.
During this time span, this 30-year time span, I also
served----
Mr. Watt. Mr. Chairman, we are having a little trouble
hearing him, if he could pull his----
Mr. Chabot. Could you pull the mike a little bit closer,
Mr. Harbison? Thank you very much.
Mr. Watt. Thank you so much.
Mr. Harbison. During the 30-year career that I've had so
far, I've also held other positions to include auditor, senior
auditor, audit manager, and acting chief of an area audit
office.
Upon my arrival here at the Commission, the Budget and
Finance Division consisted roughly of four professional staff.
This staff was responsible for managing the day-to-day fiscal
activities of the Commission, and more specifically the
division prepared, presented, justified, and executed the
annual budgets of the Commission. We ensured preparation of
required financial reports. We prepared ad hoc reports
necessary for internal financial management. We implemented
procedures as required by the Office of Management and Budget,
the Department of Treasury, General Services Administration,
and other agencies relative to financial management. We
received certified payment and monitored invoice payments. We
received certified and monitored travel for the Commission on
Civil Rights. We ensured the establishment of a system of
accounts compliant with Federal guidelines to account for all
Commission expenditures.
I also served as security officer to safeguard individual
privacy and agency financial information. At the same time I
was serving as Commission liaison to Federal and private sector
industries in matters related to finance and budget.
During the same period of time, from the period 1989 to
2005, staffing within the division dwindled from four to three
in 1989, from three to two in 2001, and from two to one in
2005, and currently consists of one individual, who is me, in
fact, for 2005.
With regards to the fiscal practices, the Commission on
Civil Rights uses a centralized budgeting concept, meaning that
essentially while budgeting, reporting, and monitoring of
expenditures are done internally at the individual cost center
level, control of the budget has rested with the Office of
Staff Director, where all expenditures are approved,
contractual arrangements negotiated, contractual contracting
officer responsibilities are handled, contractor invoices are
received, and contractor payments certified.
When the Commission changed the accounting service
providers in fiscal year 2004, much of the accounting and
reporting and monitoring functions previously done by the
Budget and Finance Division were accomplished by a new
contractor. This contractor also reported directly to the
Office of the Staff Director. In essence, the Budget and
Finance Division essentially became an instrument for
processing travel documents, agenda payments, and related
documents, and to answer questions related to these various
issues.
Issues related to contractor performance and most liaison
functions were handled by the Office of the Staff Director. As
a result, the historical knowledge base relative to contractor
performance rested with the Office of the Staff Director as
well. The downside to a centralized budget is that it limits
accountability of office heads to be responsible for the
operation of their programs.
May I continue?
Mr. Chabot. Yes. Could you wrap up, though? Because your 5
minutes are up.
Mr. Harbison. In summary, the Commission on Civil Rights is
a viable organization, and while no one has specifically
questioned my professional qualifications, I would say that 30
years' background in fiscal management as well as auditing
multi-billion-dollar contracts and multi-system weapons system
well establishes my qualifications and credentials.
I think that, in summary, the Commission can best move
forward through a systematic process of planning, obtaining
human capital, inclusion of all stakeholders in its
decisionmaking processes, and being provided with sufficient
fiscal resources, i.e., money, to get the job done.
That concludes my testimony, Mr. Chairman.
[The prepared statement of Mr. Harbison was not available
at the time of the hearing but is printed in the Appendix.]
Mr. Chabot. Thank you, Mr. Harbison.
Members of the panel now have 5 minutes each to ask
questions, and I recognize myself for 5 minutes for that
purpose.
Mr. Marcus, if I could start with you, as you know, I had
an opportunity to stop down and visit your headquarters this
past week, and you were kind enough to take me around the
office and introduce me to some folks and see the space that is
occupied. And as you know, a fair amount of the appropriations
that your office receives is for rent, and one of the things
that we had discussed was the three floors that you're on. And
there are a fair number of, a pretty significant number of
empty offices in there because of staff turnover and reductions
of staff and for various reasons. And the actual layout of the
office itself is probably not terribly efficient. And I would
be interested to know what plans you have for maybe formulating
for being more efficient in that area. And would you agree
there's a considerable amount of waste in so much vacancy
within the area?
Mr. Marcus. Yes, Mr. Chairman, I would agree, and let me
say we were delighted to welcome you, and it was very good to
see the Chairman of the Subcommittee actually coming over and
being interested enough to look in detail at the facility and
what's going on at the Commission. So I was delighted by your
interest.
One of the first things that occurred to me as I took the
position, looking around the agency, is that when I looked at
the offices of the Congressional Affairs Unit and saw that we
had offices but no staff, when I looked at the offices of the
Public Affairs Unit, we have offices but no staff; similarly
for many other parts of the organization. Our staffing has
dwindled to the point that some of our divisions or
subdivisions are entirely empty of staff, and yet we are paying
rent both at headquarters and in some of our regions for space
that is not being used or not being used as efficiently as we
could. I think we need to change that.
Now, one of the ironies that we have in terms of fiscal
management is that when we make a move, we have immediate costs
during the current fiscal year; the savings, of course, will be
appreciated in future years. For fiscal year 2005, I don't
believe that we can afford to make any moves right now because
the costs would exceed our ability to pay. But I do think that
at least with headquarters, we will need in the next fiscal
year to seriously look at either consolidation of offices
within our current space or, alternatively, with occupying a
different space which is more appropriate to our staff size.
Mr. Chabot. You also have, for lack of a better term,
satellite offices around the country, and you have five--
actually, six, counting one that's within the same plan here in
Washington.
Mr. Marcus. Yes, Mr. Chairman, that's exactly right.
Mr. Chabot. And do you have any thoughts relative to that,
as to whether that's necessary or is an area that should be
looked into as to the necessity for that many branches and
whether or not it might be easier to occupy the folks in one
location?
Mr. Marcus. The number of offices that we have had has
expanded and contracted over the years. There have been times
where we have had as few as three regional offices and times
where we have had many more offices than we currently have.
The main work of our regional offices is to work closely
with the State advisory committees in each of the States to
enable them to be the eyes and ears of the Commission. They
prepare reports and analyses that are close to the ground, as
it were, in States around the country.
That work is mandated by our statute, and it does have to
be done. There is no legal reason why we need to have field
offices, and certainly no reason why we need to have the number
of offices that we have now.
Mr. Chabot. And you're, for example, paying rent at those
various locations and----
Mr. Marcus. We are paying rent at those locations, and so
as we make difficult decisions regarding how we can live within
our financial means, even in the very short term, of course, we
will have to ask questions about whether we can continue to
afford the number of offices that we have now.
Mr. Chabot. Okay. Thank you.
Mr. Redenbaugh, let me shift over to you, if I can. Again,
I want to say that, you know, we were disappointed to hear
about your resignation, and we're very grateful to the 15 years
that you put in at the Commission. We really appreciate it, and
we've heard many good things about you in particular.
I know you've tried to propose a number of reforms and met
with some opposition. Could you describe for us why you think
there is opposition to some of the common-sense financial and
managerial reforms that you proposed? And what type of reforms
did you propose that were rejected?
Mr. Redenbaugh. Well, the more recent round of reforms were
proposed by Commissioner Kirsanow and myself, and they really
went to the--I think five areas, perhaps four: the need for a
full audit, the need for an Inspector General, a change in the
way we do our program policies is another area. But I think
that what I came to realize--and I'm a little bit embarrassed
to admit it took me 15 years to figure this out--that the
problem of the Commission is not a problem of partisanship or
personalities. It's a problem of accountability, and no
organization will ever reform itself voluntarily. It is just
far too painful to do that. You know, organizations that lose
customers or lose clients are compelled to change. The
structure of incentives works that way. But an agency that has
no customers and is so independent exempts itself from the
necessity of reform. And I think it doesn't matter who the
people are or their ideology. It's the nature of human beings
to resist change.
Mr. Chabot. Thank you. My time has expired.
The gentleman from New York, Mr. Nadler, is recognized for
5 minutes.
Mr. Nadler. Thank you. I'd like to continue this line of
questions to Commissioner Redenbaugh for a couple of minutes.
Yes, people resist change. That's human nature, except for
certain individuals. Most people resist change. But when you
get a Commission even without customers and so forth and
wholesale change in who the Commissioners are, for the new
Commissioners that's not change. They come in. They want to
clean house, et cetera. So why do you think that that can't
happen?
Mr. Redenbaugh. You mean why do I think it hasn't been
happening?
Mr. Nadler. Well, recently there's been a rather wholesale
change in the Commission membership, a change in orientation, a
change in--why do you think that that new Commission membership
is unamenable to the kind of change you think is necessary?
Mr. Redenbaugh. Well, you know, actually I don't know that
the newest Commissioners are not amenable to that, and I
suspect perhaps that they are. It's some of my longer-standing
colleagues that have been reluctant, but I suspect they will
now be more enthusiastic about that.
Mr. Nadler. So why do you think it is impossible to reform
the Commission, as you stated, the new Commission--the current
one is impossible?
Mr. Redenbaugh. Because anything we do to adopt motions
tomorrow, for example, can be ignored next month or, as I said,
unadopted next year. That's a change but not a difference.
Mr. Nadler. But what I don't understand is--yes, that is
possible, obviously. Anybody can do something today and ignore
it next month.
Mr. Redenbaugh. Right.
Mr. Nadler. But you said, I think, in your testimony that
you think it is necessary to have a Civil Rights Commission,
you'd like to start over again.
Mr. Redenbaugh. Yes.
Mr. Nadler. Okay. I don't understand how--let's assume you
abolish this Commission and set up a new one. How do we set it
up differently so it wouldn't have the same problems as opposed
to simply making a change in who the Commissioners are to
change it in any event? I don't understand the difference
there. In other words, what would change? Why would one method
work and not what has just been----
Mr. Redenbaugh. Well, I think you'd want to do three things
differently: have a clear purpose that was really understood,
specify the processes by which people would work and the
accountability, and that then would attract people who shared
that purpose and would work through those processes.
Mr. Nadler. You're saying that the statutory purpose is not
sufficient or is not clear enough?
Mr. Redenbaugh. I think it's not clear enough, and I think
the line of accountability and responsibility is very unclear.
Mr. Nadler. All right. But lines of responsibility and
accountability can be changed without a statutory change. That
can be changed within an existing Commission by the
Commissioners if they want to. What you're really saying is
that what is fundamentally wrong with the current Commission is
that the statutory purpose is not sufficient.
Mr. Redenbaugh. I think the statutory purpose is not
sufficient and the line of authority to Congress is not
sufficient.
Mr. Nadler. Okay. Thank you very much.
Mr. Harbison, there's been a lot of criticism of the
Commission for lack of financial controls, accountability, and
so forth. You've heard all that. You stated that as the person
in charge of the department in charge of finances, your staff
has gone from three to zero, that is, from four to one, you
being the one.
Is that--do you think that it would be fair to say that the
problems with financing are because there's essentially no
financing staff? Or was financing staff reduced because the
financing function was parceled out to somebody else? I mean,
which is first? What do you think is the problem?
Mr. Harbison. I think the problem, or at least a semblance
of the problem, you've hit on both. You can't run a division
without fiscal resources, without the people resources. You
cannot do that. It's just too much. Even with three staff on--
three people on staff, we were working 14-, 15-hour days, and
on Saturdays and Sundays.
Mr. Nadler. Let me ask you a different question because my
time is going to run out. When you had that full staff of four
people prior to whenever you said it changed, would it be fair
to say that there were no--that there were not greatly
expressed concerns about financial accountability and
practices? Did these problems or the perception of these
problems arise after the staff was decimated?
Mr. Harbison. I would say that is correct. However, in the
same breath, I would say that we have always been concerned
with fiscal management.
Mr. Nadler. Physical or fiscal?
Mr. Harbison. Fiscal management. We are very much aware of
the interest that Congress and the various Subcommittees have
taken in the Commission on Civil Rights. So many of the
things----
Mr. Nadler. No, no, but let me just, if I may for one
further moment. I hope and I presume that the department of
fiscal affairs, or whatever the title is, would be very
concerned with fiscal affairs. My question is: Do you think
that--and do you think--do you think that it is true that and
do you think it is perceived from the outside that prior to the
great reduction in staff that you had the fiscal affairs
relatively well in hand and that--and, in effect, what I'm
asking, I suppose, is: Did the problems or the perceived
problems arise because there was no longer an adequate staff to
handle it? Or was there some other problem?
Mr. Harbison. Yes.
Mr. Nadler. Yes to the first?
Mr. Harbison. Yes.
Mr. Nadler. Okay. Thank you very much.
Mr. Chabot. The gentleman's time has expired.
Okay. The gentleman from Arizona, Mr. Franks, is recognized
for 5 minutes.
Mr. Franks. Thank you, Mr. Chairman. And thank you,
gentlemen, for coming before the Committee.
Commissioner Redenbaugh, I know that, you know, this is
kind of a unique day for you in that it perhaps it may be the
last time you will speak before the Congress as the member of
the Commission, and certainly many of us are very disappointed
in your resignation and appreciate your efforts to try to
reform the Commission. And I guess with 15 years of
perspective, sometimes, you know, we like to just say to a
person like that, if you were emperor for a day, what are the
changes that you would make? And I know you've stated in your
testimony that the Commission should be shut down and perhaps
restarted. But if you had the opportunity to rewrite the
statutory mission of this Commission and to rewrite or
restructure it entirely and to be the one to suggest what the
funding of the Commission should be, how would you as emperor
for the day fix this thing?
Mr. Redenbaugh. You know, that is a very large and
important question, and I don't think I can do it justice in
the time we have. I'd be happy to continue the discussion with
you later. I think that's the right question: How would you--if
you didn't have this one, how would you create the right one?
And I'd be happy to continue later with that.
Mr. Franks. All right. Well, perhaps I could try to narrow
it just a little bit. If you could make just one change--
sometimes, you know, we get so caught up in the inertia of an
organization, especially with new members and the changes in
personnel, and, of course, pressures from the outside and the
inside. If you could just make one critical change to the
Commission that you think would give it the best chance of
fulfilling its ostensible purpose, what would that one change
be?
Mr. Redenbaugh. Rethink the purpose and have the purpose be
endorsed and shared by the eight Commissioners.
Mr. Franks. And not to be insistent here, but if you were
to write--or just to say what you think the purpose should be,
how would Commissioner Redenbaugh write that purpose?
Mr. Redenbaugh. Well, rather than what I think it should
be, it needs to be generated by the sitting Commissioners.
Mr. Franks. You think that the sitting Commissioners should
just come together and find some sort of new collective
approach or new collective mission that they could all buy into
and that somehow that would create the continuity and the
commonality among the members that would help it go forward
in----
Mr. Redenbaugh. If you're limiting me to one thing, that's
the one thing, because Staff Director Marcus is a good manager.
He does know how to put those processes in place. But in the
absence of a clear and shared purpose, it'll be difficult.
Mr. Franks. That's always one of the great challenges in
life, is to not know what you want and breaking your neck to
get it. But thank you, Mr. Commissioner, and thank you all.
Mr. Chabot. Does the gentleman yield his time back?
Mr. Franks. Yes, I do.
Mr. Chabot. Okay. Thank you. The gentleman's time has
expired.
It's my understanding that the gentleman from North
Carolina, Mr. Watt, has to go to another Committee, so Mr.
Conyers is okay with calling on Mr. Watt next. So we will do
so. The gentleman is recognized.
Mr. Watt. Thank you, Mr. Chairman. Actually, I just had my
staff person tell me that they're about to shortly take up the
Congressional Black Caucus' budget on the floor, so I would
just say that the questions that have been directed to Mr.
Marcus and Mr. Harbison, while critically important from a
management perspective, I would not even go into the
micromanagement at that level about whether you've got too much
office space or, you know, those kinds of things.
I think the more important questions really are the ones
that have been pursued by my colleague who just got through
asking questions, and that's the important debate--and I'm not
sure it's a debate--between Commissioner Redenbaugh and
Commissioner Yaki, both of whom, it seems to me, agree that
there needs to be something, whether it's the existing Civil
Rights Commission or some successor to the Civil Rights
Commission with a different portfolio structure mechanism.
And I think we probably benefit more from allowing and
asking Commissioner Redenbaugh and Commissioner Yaki to give us
their vision. I'm not sure that we have the luxury of saying to
the Commission you can write your own charter, because the
Commission was a creation of the Congress and the executive
branch at some point. And Commissioners don't sit down and
decide what they are going to do. There is a mission here, and
I think what has happened with this Civil Rights Commission and
predecessor Civil Rights Commissions, whatever their
composition, is much of what has happened in this Congress.
We've got a wonderful purpose. We have some wonderful
people. But the processes have just--you know, and we had--we
could sit here and blame the Commission for that, but we had a
tremendous meltdown in our process just yesterday in this very
Judiciary Committee, where we sat from 10 o'clock in the
morning until 5:30 yesterday afternoon going through a charade.
That doesn't mean that we should do away with the Judiciary
Committee. We have meltdowns in the processes of the House that
deprive us of being able to participate effectively in the
democratic process. It doesn't mean we ought to do away with
the House. The purpose, the democratic purpose of the House is
one that people around the world fight, die, and, you know,
bleed for. But the processes have fallen prey to partisan
divides and philosophical divides that have made it impossible
for us to talk to each other and honor the processes that
should be in place to facilitate our talking to each other.
And so I'm hopeful as a result of this we won't get so tied
up on what document we are subpoenaing and whether we got too
much office space or, you know, whether this comma or that
period fits in the right place. I hope we can spend some time
focusing on this broader debate that Commissioner Yaki and
Commissioner Redenbaugh have opened for us, and if we do a
better job in this Committee of creating a bipartisan
perspective on the mission and purpose of the Civil Rights
Commission, I suspect that the Civil Rights Commission can do a
better job of playing out what that mission is.
And while I'm disappointed that the Commission has reached
this fork in the road, I'm no more disappointed about that and
the $8 million that we have at risk there and at stake there
than I am disappointed about our own failings in our own
institution here, where we have much, much, much more
financially and philosophically and image-wise at risk.
So, with that, Mr. Chairman, I will yield back.
Mr. Chabot. Thank you. The gentleman yields back, and I
think the gentleman makes some very good points, and I would
agree that we should spend time looking at the overall picture.
I do believe that looking at how resources are being
allocated, including office space, and the money that's being
spent there when it could be perhaps better spent toward
working toward improving civil rights in this country is
important as well.
[Whereupon, at 10:31 a.m, the Subcommittee proceeded to
other business, and reconvened at 10:48 a.m.]
Mr. Chabot. Again, we apologize for any inconvenience on
having markups, but we have to do it while we have sufficient
Members here to actually record the vote.
The gentleman from Iowa, Mr. King, is recognized for 5
minutes.
Mr. King. I thank the Chairman and the panel for their
testimony this morning.
Just to make a few remarks to Mr. Redenbaugh with regard to
your testimony, I would tell you, Commissioner, that I was
impressed with your testimony. It was concise, it was emphatic,
it was clear, it showed conviction, and it was without notes.
And all of those things add up to tell me that this is
something, a decision and an opinion that you've come to after
long deliberation and long service to your country. And I
appreciate the brief recommendations that you have made with
regard to how the Commission might be reformed into an
effective body. And I wanted to make sure that that observation
is on the record, but I'd like to direct my questions to Mr.
Marcus, at least in the interim here.
That is, Mr. Marcus, I know you haven't been on task here
very long, just a few months, and yet you walked into an
environment that was a fiscal and policy mess, I think it's
clear from this testimony and much documentation. And we
apparently are not going to have access to the financial
records up to that point that you stepped into this, so I would
ask you: Have you prepared--I'm not going to ask you what steps
you've taken because you said you've taken some of the 20
recommendations, the GAO's recommendations. But have you
prepared a written document that would be a road map or a plan
to get the fiscal and the policy house in order?
Mr. Marcus. Thank you, Congressman. We have developed a
plan with respect to 20-odd recommendations which we are now
implementing. With respect to the other reforms, we are taking
as our road map for at least the beginning phases the
recommendations of the Government Accountability Office
beginning with the most recent reports, including the report
which has not yet been formally issued. Our intent is to start
with those findings that have already been made where we know
what the problem is and where it's been documented and where we
have recommendations which appear to be sound.
That will take some year to accomplish. Those
recommendations incorporate by reference additional
recommendations by the OPM. So our starting point is with the
recommendations that have already been made by the GAO in
roughly reverse chronological order, including the OPM
recommendations. I suspect that we will need substantial
additional changes during what I would call the second year of
reform, but the beginning phase is with the documents that are
already publicly available from the GAO.
Mr. King. Mr. Marcus, if this Congress were to have
sufficient patience and lend itself to the plan that you would
bring forward, what would be a specific date that you would ask
for to present the changes before this Committee and
demonstrate that the entire task of fiscal and policy and
functional organization had been--would you be willing to put
this back before the scrutiny of this Committee? What would be
an appropriate time?
Mr. Marcus. For problems that have built up over a period
of many years, things can't be turned around in a day. I would
think for a complete turnaround of the institution, it's hard
in less than 2 years to do that. But I would say----
Mr. King. That's sufficient. It gives me a sense. And I
didn't want to nail you down to a specific date, but I get a
general idea. The task is large. How many staff now work for
the Commission?
Mr. Marcus. The number fluctuates slightly, but it's
approximately 67, including the 8 Commissioners and their 8
assistants.
Mr. King. Have any been hired since you came on board?
Mr. Marcus. Yes. I have hired one and, in addition, there
is, I believe, one who was hired subsequent to my--excuse me,
was hired prior to my arrival but who arrived subsequent.
Mr. King. So what would be full staffing, then, to fill
those offices, if that's the intent?
Mr. Marcus. Oh.
Mr. King. I mean, I had understood that about 70 maybe was
about full staff, but apparently in this testimony today, it
might be more?
Mr. Marcus. Well, we have some 37 vacant offices. As for
the number of positions that we have that are vacant, I'm not
sure of the number, but it's a substantial number. We certainly
would need to have a larger number of people than we have now.
Whether that number is equal to the number of formal vacancies,
I'm not sure.
Mr. King. More money, more people. And who hired the staff
that's there today?
Mr. Marcus. Some of them have been around for over 30 years
and were hired by the staff directors from the seventies or the
sixties. Most, and in particular, most in headquarters, were
hired during the nineties and in the first few years of--since
2000, so most was my immediate predecessor and his predecessor.
Mr. King. Thank you. I'd ask unanimous consent for one more
minute.
Mr. Chabot. Without objection, so ordered.
Mr. King. I thank the Chairman. I'd just direct the
question to Mr. Harbison. Mr. Harbison, you've been involved in
financial management for 30 years, and you spoke to your
professionalism in your testimony and 14 years there with the
Commission. And I'd ask you, do you believe it was your
fiduciary responsibility to have a general ledger and keep
track of that? And if--you know, yes or no on that one, and
maybe some opinion, but also where is the general ledger?
Mr. Harbison. The first question is yes, I do believe it.
And the second question is that I'm advised that a general
ledger does exist and has existed and has been provided to the
auditors.
Mr. King. But you as the financial officer do not have
access to the general ledger and you've been there 14 years?
Mr. Harbison. I am limiting those--the comments previously
to the last year. Prior to that, yes, I did have access to the
general ledger.
Mr. King. Thank you, Mr. Harbison.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you very much.
Just to be clear, did you say you haven't had it for the
last year?
Mr. Harbison. That is correct, sir.
Mr. Chabot. Where has it been?
Mr. Harbison. It has been with the previous staff director
and the contractor who's doing our accounting systems.
Mr. Chabot. And to your knowledge, it's still with him or
them?
Mr. Harbison. It's with the accounting service provider
that's doing--that's contracted to do our accounting.
Mr. Chabot. Okay. But you haven't seen----
Mr. Harbison. They maintained----
Mr. Chabot. You haven't seen it or had access to it within
the last year; is that correct?
Mr. Harbison. That is correct.
Mr. Chabot. Okay. Thank you very much.
The gentleman from Michigan, the distinguished Ranking
Member of the full Judiciary Committee, Mr. Conyers, is
recognized for 5 minutes.
Mr. Conyers. Thanks, Mr. Chairman.
Let me ask our four witnesses if they have any free advice
they would want to give us. I think I'm probably the last
person that will be asking you questions. Is there--well, maybe
there's only--I am the last.
Let me start with Mr. Yaki. You're the most free of any
past activities with this Committee, so you're considered the
innocent witness.
Mr. Yaki. Thank you. [Laughter.]
Mr. Conyers. What are you--now that you've got the flavor
of here in Congress, nobody got their hides skinned off, and
there was no emotional outbursts, and everybody was pretty
rational, what free advice would you leave the Members of the
Committee and the Chairman and Ranking Member Nadler and the
rest of us to think about as we move forward?
Mr. Yaki. Thank you very much, Congressman Conyers, for
asking that question, and in deference to Congressman King, I
threw away my notes so he'd be more impressed with what I'd
say.
I think it's very important that we recognize that if there
were sins of the past, that they not go toward shackling of the
future of this Commission. I think it's important that the kind
of oversight that this Commission or any agency needs or
requires from the Congress is done in a way that ensures that
our mission must go forward.
I would say this: One of the things that struck me as the
idea that was advanced by Mr. Redenbaugh about the clear
purpose, I would disagree. I believe we have a clear purpose. I
think that purpose is the general investigatory and fact-
finding function in enforcing and examining civil rights in
America. I think that is sufficiently clear. I think what
perhaps is not so clear is that as we move forward, we are
looking at individual agendas. And I would submit--and I am
going to suggest this to the entire Commission tomorrow--that
we should look at a way to try and re-energize the agenda and
the scope of the Civil Rights Commission and have national open
hearings where people can come and talk and discuss and tell us
what is going on out there, what are the new things that are
happening, what things may not have been picked up on, are
being underreported, overreported, not reported at all, so that
we may begin to look at that and from the ground up fashion a
truly national civil rights agenda. I think that is an
important component of what we want to do going forward.
But as for what this Committee does, I would hope that
being someone who comes from Government and from a local
legislature, I would hope that our staff director would work
closely with the Chairman and the Ranking Member to apprise
them of the reforms that are going on so they are comfortable
moving forward to allow us to continue the important mission of
protecting civil rights in this country.
Mr. Conyers. Commissioner Redenbaugh, have you reconsidered
your resignation based on the wonderfully warm reception you've
received here in the Judiciary Committee?
Mr. Redenbaugh. What I have considered is I'd rather come
here than there. [Laughter.]
It's much more collegial here. I was touched, Congressman
Conyers, by what you said and particular thank you, but no, I
have not.
Mr. Conyers. Well, I have the suspicion you're going to try
to help out and when people come to you, even Commissioners,
for counsel that you'll probably give it anyway, even though
you're not on it. And I want to encourage you to continue to
look at it and also feel free to consult with a number of us
here on the Committee, because, you know, let's face it,
there's a certain amount of politicalization of the process
that is unavoidable.
Mr. Redenbaugh. Right.
Mr. Conyers. I wish it weren't. Our votes frequently come
in the floor, they're quite partisan. I mean, the D's vote one
way, the R's vote another way, and yet we say but this issue is
not a matter of Republicans or Democrats, but that's the way
the vote goes.
So I don't feel--I mean, I would like that to be minimized,
the partisanship, but the fact that it exists in a subject as
prickly as civil rights is not shocking to me. The question is
can we all get it together, and this Committee plays a huge
role in helping you facilitate that. And that's what we want to
do.
We're hoping that you'll avoid a lot of--as much partisan
rancor as possible because it does, as everyone here has said
so well, take away from the projects, the goals of the
Commission itself. And we want to make sure that that
continues.
For example, we've got the Cato Institute, the Heritage
Foundation, which now seem to be weighing in, Mr. Marcus, in
big time on the opinions. Now, maybe they were all the time,
anyway. I know there are very few subjects that they decline to
get into. But we've got to make sure that this thing comes off
right. For us to be investigating whether privatizing Social
Security is going to shortchange African Americans, for
example, Chairman Chabot, is a subject that is being gone into
by the Ways and Means Committee and numerous experts.
Mr. Chabot. The gentleman's time has expired, but if I
could just comment. I don't know that anybody's talking about
privatizing Social Security. There are some that are talking
about personal savings accounts.
Mr. Conyers. Personal savings accounts, okay. Same thing.
[Laughter.]
Right?
Mr. Chabot. I thought you might think that, but I think
there's a difference.
Mr. Conyers. Okay. But even so, the President is on a 60-
day tour. Members of Congress have been urged to hold town hall
meetings. But one of the--I haven't heard anybody suggest we
ought to check with the U.S. Civil Rights Commission to see
what they think about this.
So, anyway, let's try to keep it down, ladies and
gentlemen. Let's try to keep this thing on a realistic basis so
that the cries of partisanship won't continue to arise again.
And I want to thank all of you for coming here. I'm hoping that
the Chairman of the Committee will see it in his interest to
get the rest of the Commissioners up here and continue this
kind of dialogue.
Mr. Chabot. We're certainly willing to do everything that
we can to make sure that all the information that this
Committee needs to get adequate oversight of the Civil Rights
Commission is done, and we would consider future hearings, and
we would work with the minority staff to accomplish that, if
it's deemed necessary and appropriate.
We thank the gentleman for his comments, and I would now
recognize the gentleman--is the gentleman from Indiana--did he
leave? Okay.
At this time if there are--we were going to go into a
second panel. This has gone off--let me ask--I recognize myself
for a couple of follow-up questions. If any other Members want
to do that in the short time that we have.
Let me ask, Mr. Marcus, just following up on some of the
comments that Mr. Harbison had made in his testimony, relative
to the ledger and the books and Booth and that sort of thing.
Would you explain the duties of the Commission, the contracts
to Booth Management, and could you explain--you know, you have
the Director of Budget and Finance, and then you have Booth
that apparently has a lot of the books. Would you explain
whether the new director, who would be a GS-15 level Federal
employee, would be responsible for the duties currently being
performed by Booth Management?
Mr. Marcus. Yes, Mr. Chairman. The accounting and financial
functions as well as related administrative and management
functions are within the Office of Management and under the
responsibility of the Director of Management, Tina Louise
Martin. The position of Director of Budget and Finance was
previously held by Mr. Harbison, who is now Director of Human
Resources and Personnel, which creates a vacancy which we will
fill at the GS-15 level.
That person will be responsible for oversight of all budget
and financial matters, including additionally certain strategic
planning responsibilities. That person will be responsible with
dealing with oversight of all accounting practices. Currently
we have a full service accounting provider named Booth. The new
person would either interact with Booth or its successor, which
might be a contractor or a combination of personnel.
I suspect that whatever we do with the new Budget and
Finance Director, we would need a substantial amount of the
work to be outsourced either to Booth or to another entity.
Mr. Chabot. Okay. Let me shift gears. Have you conducted a
human resources evaluation of the Committee staff to get an
accurate understanding of the Commission's staffing strength
and needs? And what do you intend to do relative to making sure
that the staff is as efficient as possible and that civil
rights are being pursued?
Mr. Marcus. I have, of course, done an informal evaluation
of the needs of the staff so as to determine what needs to be
done on a right-away basis in light of the various emergencies
that we have currently. As for a more formal or larger-scale
plan, I know there is discussion among some of the
Commissioners of various sorts of audit or analyses that might
be done, and I think that that is possibly within the rubric of
reforms that they are being considered. Whether it would be
simply an analysis or a form of personnel audit is, I think,
something that they are in the process of considering.
Mr. Chabot. Okay. Thank you.
I have a number of other questions. We've got three votes
on the floor, and I don't want to have the witnesses have to
come back here. So let me just ask one final question, and then
if any other Members have any questions they'd like to ask in
the time we have left, we'd be willing to do that.
Mr. Redenbaugh, let me go back to you. You had mentioned in
your opening statement a number of things, but one thing you
said struck me. You said that we don't have a clear purpose, we
have agendas. And could you explain, expound upon that a bit,
what you meant by that?
Mr. Redenbaugh. Yes. What I mean by that is we don't have--
there's not an overarching theme or mission. To say that we're
for civil rights doesn't--that merely announces we're not in
the Department of Transportation. It doesn't--it isn't any
organizing principle around which we can gather. So in the
absence of that--and we have certain methods, like our fact-
finding that Commissioner Yaki spoke about is one of our
methods, but there isn't a mission that the Commissioners have
even considered or adopted or embraced. Then in the absence of
that, there are agendas put forward by Commissioners for
particular projects, myself included.
Mr. Chabot. All right. Thank you very much. My time hasn't
expired, but I'm going to call it expired.
Mr. King, did you have any final thoughts or comments that
you wanted to make?
Mr. King. Thank you, Mr. Chairman. I do, and I'll try to
keep them brief.
As I sit here and listen to this testimony, I know there's
a mountain of evidence underneath this testimony, and, Mr.
Yaki, I appreciate you throwing away your notes and giving us
your testimony. But I'm happy enough to hear it off the page,
too, and it comes from the heart when it's truthful, and I know
that you're limited in your background being on the Commission,
but you gave us your best presentation today, and I appreciate
that as well.
I will just say that a lot of us here are out of patience
or down to the very last few drops of it, and there have been
some months to take some steps. And even though reaction to a
GAO recommendation, there have been three or four other times
that the GAO has made those recommendations when there hasn't
been a response, and maybe we'll see some response this time.
But I would say that it also is incumbent upon the Commission
to be proactive, to step ahead of the GAO, and to lay out some
solid terms of reform, both in agenda and purpose and also in
financial management. And to have not had access to that
general ledger for over a year in the position that you were
in, Mr. Harbison, I can't express what that means to me. If I
had a financial officer that said, well, I'm sorry, your
finances are in a mess but I couldn't get my hands on the
records, I just don't think that can be excused.
Furthermore, I'd ask the Commission to lay out an agenda of
issues they may want to take up, and some of those that comes
to mind are Adarand, for example. I've spent my life in the
contracting business. I know what that case says. I followed it
from the beginning, and yet it has been circumvented by a thing
called goals rather than quotas. Would that be an appropriate
subject matter for a Commission to take up.
There are a number of others, and rather than go down
through that list, Mr. Chairman, I would just say that, you
know, I've had a bit of a voice here and I would add one more
thing, and that is that most of the staff has been hired by the
predecessor, and that's where their loyalty would be, that's
where their philosophy would be, and that's where the problem
to some degree has been. And I would be--I would suspect that
it would be very difficult to do an overhaul of your Commission
without making changes in staff, to bring in fresh faces, fresh
people, and fresh philosophy so that you could actually truly
get a new start. And I think many of the Commissioners have
voiced a commitment to make a new start, and those are my
recommendations on how to do it.
I thank you, Mr. Chairman.
Mr. Chabot. Thank you very much, Mr. King. We appreciate
your comments.
Mr. Harbison, would you--you had a prepared statement.
Would you be able to submit that for the record? I know most of
your comments were----
Mr. Harbison. I have pretty much marked the one I have up,
Mr. Chairman. I'd be happy to perhaps submit it later.
Mr. Chabot. That would be very good. If you could submit
that, we'd appreciate it.
I want to thank all the witnesses for being here this
afternoon--or, excuse me, this morning, and we have some votes
on the floor that we have to head over to right now. And, Mr.
Redenbaugh, I'm particularly--again, we're sorry to see you go.
We thank you very much for the 15 years that you spent. And I
have to say just personally there have been a number of my
fellow Members of Congress and others that have talked about
doing away with the Civil Rights Commission. I do not
personally share that view. What I would much rather do is
reform the Civil Rights Commission and have it once again stand
for those things that in some years it stood through, as you
mentioned in your testimony, Mr. Yaki, very significant
historical things that it played a role in. And it's had
problems over the years, some of them mismanagement, some of it
financial issues, and there's just so many things that need to
be resolved, and we certainly want the Commission's cooperation
in obtaining these things.
And as I mentioned, I see some of the folks, the new folks,
as really being part of the solution, not part of the problem,
trying to reform this agency so that it can once again be the
great Civil Rights Commission that it was intended to be. So
that's what my hope is. I don't know whether that's going to be
able to be accomplished or not, but that's certainly my goal.
And thank you for being here this morning. If there's no
further business to come before the Committee, we're adjourned.
Thank you.
[Whereupon, at 11:13 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of George Harbison, Director of Human Resources, and
Acting Chief of Budget and Finance, U.S. Commission on Civil Rights
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Response to post-hearing questions submitted by Chairman Steve Chabot
to Michael Yaki, Commissioner, U.S. Commission on Civil Rights
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Response to post-hearing questions submitted by Chairman Steve Chabot
to Kenneth L. Marcus, Staff Director, U.S. Commission on Civil Rights
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Response to post-hearing questions submitted by Chairman Steve Chabot
to George Harbison, Director of Human Resources, and Acting Chief of
Budget and Finance, U.S. Commission on Civil Rights
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Letter of Resignation from Russell G. Redenbaugh, Commissioner,
U.S. Commission on Civil Rights, to Majority Leader Bill Frist
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Letter to Chairman Steve Chabot from Abigail Thernstrom, Vice Chairman,
and Jennifer C. Braceras, Commissioner, U.S. Commission on Civil Rights
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
<all>