<DOC>
[110th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:44179.wais]
H.R. 3268, GOVERNMENT ACCOUNTABILITY OFFICE [GAO] ACT OF 2007
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FEDERAL WORKFORCE,
POSTAL SERVICE, AND THE DISTRICT
OF COLUMBIA
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
H.R. 3268
TO MAKE CERTAIN REFORMS WITH RESPECT TO THE GOVERNMENT ACCOUNTABILITY
OFFICE, AND FOR OTHER PURPOSES
__________
MARCH 13, 2008
__________
Serial No. 110-71
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
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U.S. GOVERNMENT PRINTING OFFICE
44-179 PDF WASHINGTON DC: 2008
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania DAN BURTON, Indiana
CAROLYN B. MALONEY, New York CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri CHRIS CANNON, Utah
DIANE E. WATSON, California JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of PATRICK T. McHENRY, North Carolina
Columbia VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota BRIAN P. BILBRAY, California
JIM COOPER, Tennessee BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
------ ------
Phil Schiliro, Chief of Staff
Phil Barnett, Staff Director
Earley Green, Chief Clerk
Lawrence Halloran, Minority Staff Director
Subcommittee on Federal Workforce, Postal Service, and the District of
Columbia
DANNY K. DAVIS, Illinois
ELEANOR HOLMES NORTON, District of KENNY MARCHANT, Texas
Columbia JOHN M. McHUGH, New York
JOHN P. SARBANES, Maryland JOHN L. MICA, Florida
ELIJAH E. CUMMINGS, Maryland DARRELL E. ISSA, California
DENNIS J. KUCINICH, Ohio, Chairman JIM JORDAN, Ohio
WM. LACY CLAY, Missouri
STEPHEN F. LYNCH, Massachusetts
Tania Shand, Staff Director
C O N T E N T S
----------
Page
Hearing held on March 13, 2008................................... 1
Text of H.R. 3268................................................ 6
Statement of:
Copeland, Curtis, Specialist in American National Government,
Congressional Research Service; Shirley Jones, Employee
Advisory Counsel, U.S. Government Accountability Office;
Janet C. Smith, president, Ivy Planning Group, LLC; and
Jacqueline Harpp, interim council representative,
International Federation of Professional and Technical
Engineers, AFL-CIO......................................... 70
Copeland, Curtis......................................... 70
Harpp, Jacqueline........................................ 122
Jones, Shirley........................................... 88
Smith, Janet C........................................... 99
Coran, Paul, chairman, Personnel Appeals Board, U.S.
Government Accountability Office; and Anne Wagner, General
Counsel, Personnel Appeals Board, U.S. Government
Accountability Office...................................... 49
Coran, Paul.............................................. 49
Wagner, Anne............................................. 60
Dodaro, Gene, Acting Comptroller General, U.S. Government
Accountability Office, accompanied by Gary Keplinger,
General Counsel, U.S. Government Accountability Office..... 25
Letters, statements, etc., submitted for the record by:
Copeland, Curtis, Specialist in American National Government,
Congressional Research Service, prepared statement of...... 73
Coran, Paul, chairman, Personnel Appeals Board, U.S.
Government Accountability Office, prepared statement of.... 51
Davis, Hon. Danny K., a Representative in Congress from the
State of Illinois, prepared statement of................... 4
Dodaro, Gene, Acting Comptroller General, U.S. Government
Accountability Office, accompanied by Gary Keplinger,
General Counsel, U.S. Government Accountability Office,
prepared statement of...................................... 28
Harpp, Jacqueline, interim council representative,
International Federation of Professional and Technical
Engineers, AFL-CIO, prepared statement of.................. 124
Jones, Shirley, Employee Advisory Counsel, U.S. Government
Accountability Office, prepared statement of............... 91
Smith, Janet C., president, Ivy Planning Group, LLC, prepared
statement of............................................... 101
Wagner, Anne, General Counsel, Personnel Appeals Board, U.S.
Government Accountability Office, prepared statement of.... 62
H.R. 3268, GOVERNMENT ACCOUNTABILITY OFFICE [GAO] ACT OF 2007
----------
THURSDAY, MARCH 13, 2008
House of Representatives,
Subcommittee on Federal Workforce, Postal Service,
and the District of Columbia,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:10 p.m., in
room 2154, Rayburn House Office Building, Hon. Danny K. Davis
(chairman of the subcommittee) presiding.
Present: Representatives Davis, Norton, Clay, and Marchant.
Staff present: Tania Shand, staff director; William Miles,
professional staff member; Lori J. Hayman, counsel; LaKeshia N.
Myers, clerk; and Alex Cooper, minority professional staff
member.
Mr. Davis. The subcommittee will come to order.
Welcome, Ranking Member Marchant and members of the
subcommittee and hearing witnesses and all of those in
attendance. Welcome to the Federal Workforce, Postal Service,
and the District of Columbia Subcommittee hearing on H.R. 3268,
the Government Accountability Office [GAO] Act of 2007.
The hearing will examine H.R. 3268, the Government
Accountability Office [GAO] Act of 2007, and various other
legislative proposals that may be introduced before the hearing
that address certain GAO reforms. It will also examine the
results of the survey I requested last May that the Employee
Advisory Council conduct of all GAO employees on the Band II
restructuring and the Watson Wyatt compensation study and the
Ivy Group study.
Hearing no objection, the Chair, ranking member and
subcommittee members will each have 5 minutes to make opening
statements, and all Members will have 3 days to submit
statements for the record.
Today the Government Accountability Office [GAO], has an
opportunity: It has an opportunity to regain its footing as an
agency that not only touts that its employees are the best and
the brightest, but treats them as if they are the best and the
brightest. GAO has an opportunity to hold itself to the same
standards of accountability and forthrightness that it demands
of other agencies. GAO has an opportunity to work with, not
against, the subcommittee when it raises legitimate concerns
about its personnel reforms and other issues pertaining to the
administration of the agency.
It appears that GAO is going to seize this opportunity. I
have met with Mr. Gene Dodaro, the Acting Comptroller General,
and he has indicated that he intends to work collaboratively
with the subcommittee to address any concerns that we have, and
the subcommittee is committed to doing the same. Mr. Dodaro has
over 30 years of service with GAO, and I hope he will restore
GAO's legacy as a model agency.
Mr. Dodaro, welcome to your first hearing as Acting
Comptroller General of the United States.
Mr. Dodaro. Thank you.
Mr. Davis. That said, after 2 years of investigating GAO's
personnel reforms, the subcommittee has unfinished business to
address.
I am pleased to announce that I will be introducing
legislation that restores the 2006 and 2007 across-the-board
increase to all GAO employees who met expectations but did not
receive it. The bill also includes a provision that establishes
an across-the-board full guarantee that will govern how pay
adjustments are to be administered at GAO in the future. The
legislation has the support of GAO and its union, the
International Federation of Professional and Technical
Engineers.
While the subcommittee is pleased that the proposal has the
support of GAO, it is unfortunate that it took 2 years of
employees being demoralized and worrying about their pay before
we received it. Last winter, the best and the brightest at GAO
finally had to vote to unionize to get management's attention.
The compromise legislation which will be discussed today will
be introduced and marked up when Congress returns from the
March recess.
In November 2007, at my request, members of GAO's Employee
Advisory Council surveyed all GAO employees on GAO's personnel
reforms. Seventy-one percent of GAO employees responded to the
survey, and we will hear testimony about the results of that
survey today.
Another troublesome issue that the subcommittee will
continue to address at future hearings is the historic
disparity between the ratings of African Americans and their
Caucasian counterparts at GAO.
At a hearing the subcommittee held in November 2007 on
diversity in legislative branch agencies, Ron Stroman, Managing
Director of GAO's Office of Opportunity and Inclusiveness,
testified that he alerted David Walker that if GAO went through
with its personnel reforms of Band II restructuring that it
would have a negative impact on African Americans. When pressed
as to why GAO would go through with a restructuring that it
knew would adversely impact African Americans, Mr. Stroman
stated it was a decision that the Comptroller General made.
Last August, almost a year and a half after the
restructuring took place, GAO hired the Ivy Group to research
the rating disparities between African American and Caucasian
employees at GAO. The Ivy Group will not complete its final
report until next month. However, what they have learned to
date is troubling and raises serious questions about GAO's
performance management system.
Mr. Walker officially resigned from GAO yesterday.
Therefore, the question of why he moved forward with the
restructuring, given the disparity in ratings, cannot be posed
to him directly. Nevertheless, the subcommittee will continue
its oversight of this issue and is pleased that Mr. Dodaro has
indicated that he is committed to addressing the problem.
I thank you, all of you who have come, and look forward to
hearing from the witnesses.
And now it is my pleasure to yield such time as he would
consume to the ranking member, Mr. Marchant.
[The prepared statement of Hon. Danny K. Davis and the text
of H.R. 3268 follow:]
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Mr. Marchant. Thank you, Mr. Chairman.
The Government Accountability Office is a critical research
arm of the Federal Government which we rely on for unbiased,
high-quality information. This information is frequently
instrumental in our legislative process and can determine the
course of ongoing oversight and legislation.
Last year, the GAO presented a request for legislative
improvements to Congress. That request is currently embodied in
H.R. 3268, the Government Accountability Office Act of 2007,
which was introduced by Chairman Henry Waxman. This bill would
require the Comptroller General to appoint a Deputy Comptroller
General who shall serve at the Comptroller General's pleasure;
establish an Office of Inspector General in the GAO; and
require the Comptroller General's annual report to Congress to
assess the overall degree of Federal agency cooperation with
GAO audits. The bill would also make certain adjustments to
salary rules to increase retention and improve recruitment.
I understand, Mr. Chairman, that you are planning to
introduce a new legislation that would incorporate the changes
described above as well as other changes that are in response
to the subcommittee's oversight hearings last year. I look
forward to seeing a final version of that new legislation.
And as we move forward, I hope that the chairman and
members of the committee will be open to some discussion on
this legislation.
Again, I thank the chairman for holding this hearing and
the witnesses for being before us today. Thank you.
Mr. Davis. Thank you very much, Mr. Marchant.
I see that Mr. Clay has arrived.
Mr. Clay, let me ask, do you have any opening remarks?
Mr. Clay. I will forego opening remarks in the interest of
time.
Mr. Davis. Thank you very much, Mr. Clay.
And we will then proceed with the witnesses.
It is the committee's policy that all witnesses are sworn
in, so if you would rise and raise your right hands.
[Witnesses sworn.]
Mr. Davis. The record will show that the witnesses answered
in the affirmative.
Gentlemen, of course you know the usual drill with these.
The green light indicates that you have 5 minutes in which to
summarize your testimony. The full testimony is in the record.
Of course, the yellow light means that there is a minute left,
and the red light means it is time to stop. So thank you very
much.
Let me, first of all, congratulate you, Mr. Dodaro, and
indicate that not only are we pleased that you are here today,
but I certainly look forward to a solid working relationship
over an extended period of time. And we are delighted to work
with you and to have you here today. So you may proceed.
STATEMENT OF GENE DODARO, ACTING COMPTROLLER GENERAL, U.S.
GOVERNMENT ACCOUNTABILITY OFFICE, ACCOMPANIED BY GARY
KEPLINGER, GENERAL COUNSEL, U.S. GOVERNMENT ACCOUNTABILITY
OFFICE
Mr. Dodaro. Thank you very much, Mr. Chairman. I appreciate
the kind words and introduction. I'm determined to live up to
the commitments that I made to work collaboratively with this
committee.
Mr. Marchant, it is a pleasure to see both of you here
today. I appreciate the opportunity to be here today to discuss
legislative proposals to bolster the ability of GAO to attract
and retain a highly skilled and diverse work force and help
improve our operations.
I also plan to update you on our evolving relationship with
our new union and to also underscore my commitment to making
sure there is equal and fair treatment for all GAO employees.
As backdrop for my remarks, I would like to point out that,
over the past several years, there have been many changes at
GAO. Some of those changes have strengthened the organizations.
Other changes have evoked controversy and, in some cases,
created new challenges. We've addressed some of these
challenges, but many remain. And we're committed to working to
resolve those challenges, in cooperation with our employees and
with this subcommittee and other parts of the Congress.
It is important to note, I think, that during this whole
time period throughout the GAO people have continued to produce
high-quality work for the Congress and generate positive
organizational results. I think this is a real tribute to the
professionalism of our work force and their dedication to GAO's
mission to support the Congress and to improve Government for
the benefit of the American people.
And I'm committed to making sure that GAO not only
maintains the high quality of its work to support the Congress,
but also to confronting and resolving the challenges that are
before us today.
Now, the legislative proposals before the subcommittee can
help us in this regard. We support the adding of the floor
guaranteed provision to govern annual pay increases for GAO by
adding that to our existing authorities. Under this approach,
existing GAO people meeting expectations will at least receive
the annual increase for the GS annual adjustment for their
locality that they're in.
My statement provides details on how this would work. And
the bottom line of this floor guarantee provision, from our
standpoint, is this gives out employees greater certainty and a
link to the executive branch for pay parity while preserving
the incentives and rewards of the GAO performance appraisal
system. So we think it is a solid approach, and we are looking
forward to working with the committee to get this into the
legislation.
I would also seek the subcommittee's support for our
proposal to raise the GS-15 cap to Executive Level III. We
think this is very important. Currently, the agencies that are
the financial institution regulators, such as FDIC, have this
authority to pay higher than the GS-15 cap, as does DOD and
DHS. So we are at a real competitive disadvantage by not having
this authority, and we need it in order to make sure we have
the senior, experienced people in order to best serve the
Congress.
Now, turning to some of the operational improvements, there
are many in the bill. I'll highlight three right now. One is
the creation of a statutory Inspector General to replace our
administrative Inspector General that's been in place for a
number of years. This would put our Inspector General on an
equal footing with the Inspector Generals of other legislative
branch agencies and provide an appropriate level of
independence and autonomy.
Second, we are seeking a requirement where GAO would issue
an annual report card on the cooperation that we received in
executive branch agencies in carrying out our audit work, in
terms of their timely provision of records and access to people
needed to complete our work for the Congress. We think this
would create greater transparency over the level of cooperation
we receive and, ultimately, lead to more efficient GAO
operations and timely services to the Congress.
And last, I would, in the operational area, seek your
approval of the provision by which we would receive
reimbursement for audit costs.
I'd quickly like to touch on two other work force issues.
First, we are committed to working constructively with our
new union to forge a positive labor management relations
environment. Since the union was voted in in September, we have
provided a lot of resources and training to create a good
environment, and we were pleased to negotiate a very prompt
agreement with them on pay decisions for 2008.
Also, we're committed to ensuring fair and equal treatment
for our work force. As was mentioned, we have commissioned the
Ivy Group to come in and do a study. We are looking to them for
insights, best practices and recommendations. We are looking
forward to receiving a final report and have committed to
following up on the recommendations and keeping this
subcommittee apprised of our progress going forward.
In closing, Mr. Chairman, since this is my first day as
Acting Comptroller General, I want to assure this subcommittee
that I'm committed to improving GAO and making sure we have the
highest-quality work possible to support the Congress. And I am
very honored and privileged to lead such a highly skilled and
talented work force at the GAO, and I will be working with
them, as with this committee.
Thank you for your time and attention, and I'd be happy to
take any questions.
[The prepared statement of Mr. Dodaro follows:]
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Mr. Davis. Thank you very much, Mr. Dodaro. And we
certainly look forward to all of our follow-ups and follow-
throughs.
As you know, pay adjustment has been at the top of the
discussion list for a while now. And the subcommittee staff has
been working on a pay adjustment provision for the fiscal year
2006 and 2007 for GAO employees who met expectations but did
not receive them--that is, did not receive an across-the-board
adjustment for those years.
You've expressed some position, but would you reaffirm your
views on the retroactive vision that I have included in the
legislation that I am going to introduce to address this
problem, and also rearticulate for us your views on the across-
the-board floor guarantee?
Mr. Dodaro. I would be happy to, Mr. Chairman.
First, on the 2006 and 2007 payments for those people who
didn't receive the across-the-board adjustment, we believe the
discussions we've had with the subcommittee have been very
fruitful. And we have arrived at a practical and reasonable
approach for addressing that issue, should the Congress decide
to legislate on that issue. We are pleased that it contains the
necessary legal authorities and funding authorities for GAO to
carry out that provision once enacted. And we would be very
pleased to have this issue behind us and moving forward.
As it relates to the floor guarantee, we think this is a
really solid approach going forward that preserves the intent
of the pay-for-performance system at GAO but strikes a better
balance with giving our employees some certainty going forward
and a link to the executive branch.
So we are supportive of these proposals and hope that they
are enacted.
Mr. Davis. Thank you very much.
As you know, last summer GAO contracted with the Ivy Group
to study why African American employees at GAO were receiving
lower ratings than their Caucasian counterparts. The Ivy Group
found that not only were there disparities in the ratings
between African Americans and Caucasians, but that GAO's
dropping of two rated competencies in 2004, while not
significant, were the two competencies that African Americans
performed better on.
What do these facts tell us about GAO's performance
management system, if anything? And once the Ivy Group
completes its final report, what steps do you intend to take to
address the concerns raised in the report?
Mr. Dodaro. First of all, Mr. Chairman, this study is very
important to GAO, and I am personally committed to making sure
that we forthrightly address the recommendations out of the
study.
Now, the competencies were realigned back in 2004,
effective for fiscal 2005 ratings. We went from 12 competencies
down to 8. That was largely based on input from our managers
and our Employee Advisory Council, at that point in time, that
the new system we had put in place in 2002 was burdensome and
there was some overlap in the competencies.
Now, the competencies themselves, the performance standards
and work activities were actually merged in with our
competencies, so it wasn't eliminated. We did not have any
reason to believe, at that time, that it would have a negative
effect on any particular group, but it was to streamline the
system that we had in place at that time and respond to
concerns that were fairly broad-based at that time in the
agency.
Now, given the fact that Ivy has already raised this in
their Task 1 briefing, I've already asked our human capital
people to go back and take a look at what we could do. That
competency system was validated by a large number of GAO
people, and we may have some ability to make some changes to
that system. And, of course, you know, we'll have to work with
the union to make any further changes, but we are already
looking at that issue.
Mr. Davis. We're going to have to go and vote. But before I
do, let me ask you, how do you reconcile GAO's second-place
position on the best-places-to-work ranking with the concerns
employees expressed in the Employee Advisory Council's
restructuring survey?
Mr. Dodaro. Well, the best-places-to-work survey is based
upon OPM questions that are asked throughout the Federal
Government, and then there are comparisons made. And its
questions we incorporate in the GAO employee feedback survey,
so that we can be bench-marked against other agencies. They
take a fairly broad view of the workplace and the workplace
environment, and on that score we do very well. We ranked No. 2
in large Federal agencies across the Government.
Now, the Employee Advisory Council survey that was
conducted was focused on some of the most controversial aspects
of our changes, which was the pay system and the Band II
restructuring. But it also had a section on organizational
climate. And, in that section, the results on the issues other
than pay were very consistent with what we received in an
employee feedback survey.
It was also conducted before we reached the agreement with
the union on 2008 pay adjustments and we developed this floor
guarantee approach. And I also think, you know, in retrospect,
if we would have had the floor guarantee in place for 2006 and
2007, while we would have had some issues to deal with, they
wouldn't have been anywhere near as magnified as they were
otherwise.
Mr. Davis. OK. So the controversy that, sort of, existed
around those issues in all likelihood helped to pull down how
people ranked the----
Mr. Dodaro. In this particular survey that was just
conducted at the committee's request by the Employee Advisory
Council, I believe that was a contributing factor. There was
some provision in there that asked about the COLA, and a lot of
people felt it was unfair that wasn't applied to everybody
going forward.
I'm not saying that would have resolved all the
controversies, Mr. Chairman, but I do think it would have
reduced the angst.
Mr. Davis. Mr. Keplinger.
Mr. Keplinger. Mr. Chairman, I also think that if we are
successful in getting your legislation passed, it will be
responsive to a number of the concerns identified in the EAC
survey.
And I would add to what Gene said, and I would second it
too, I think there is also a significant amount of pride
amongst our work force in the work that they do, and that comes
through in these surveys.
So, hopefully, we can deal with the problems that we've
had, get those resolved and move forward.
Mr. Davis. Well, thank you both, gentlemen. We're going to
have to recess for a minute and run and vote, and we'll be
back.
[Recess.]
Mr. Davis. We will return to session.
I'm going to go to Ms. Norton. Mr. Marchant hasn't gotten
back yet, and we will just go to Ms. Norton for her questions.
Ms. Norton. Thank you, Mr. Chairman. I think this is a very
important bill and one that you have done the kind of oversight
that is respected before changes are made in existing
legislation.
I don't have a great many questions for these witnesses.
However, I would like to just say a word about the COLA
adjustment, which has come up time and again in our hearings.
I saw the appropriation committee of the Defense Department
adjust the COLA for DOD employees, some of whom, for various
reasons, were captured by the same problems, because of the new
pay system, as the GAO employees. So guess what? They went to
one of the most powerful committees, subcommittees, in the
Appropriation Committee, and they got their COLA.
I want to know if you see any justification--I indicated,
when we were discussing the changes, that I had recommended for
this bill to equate the kinds of independence that the
appointing authority has in the executive branch with the kind
of authority the Speaker and the minority ought to have here
and in the Senate.
I must say that I don't--uniformity, for its own sake,
doesn't work with me. But inequality doesn't work either. There
are good reasons, sometimes, for changes, and if they are
justified then, of course, it seems to me if they are
functionally justified, they should occur.
Looking to the COLA, would either of you see any
justification for making people who did not receive their COLA
in the years that have been acknowledged without, at the same
time, making these employees whole for the entire period? Could
that possibly be justified?
Mr. Dodaro. I----
Ms. Norton. In other words, could you get a little bit
pregnant? If you concede that you must make them whole for a
couple years, aren't you already pregnant? Go ahead and have
the baby.
Mr. Dodaro. With regard to the 2006-2007 situation, we
think we've worked with subcommittee staff and have come up
with a really reasoned and practical approach for providing the
cost-of-living adjustment to those employees who did not
receive the cost-of-living adjustment at that time. That would
be provided in a lump-sum payment to them, as well as their
salaries adjusted going forward, and so their salaries would be
brought up to the level going forward that they would have been
assuming they had received those adjustments. So we think
that's a reasonable----
Ms. Norton. Excuse me, OK, don't--because reasonable people
can disagree on what's reasonable. I just want to make sure we
have on the record whatever justification is appropriate.
Now, 2006 and 2007 you believe are appropriate.
Mr. Dodaro. Yes.
Ms. Norton. You believe they are reasonable.
Mr. Dodaro. Yes.
Ms. Norton. That being the case, why is it not appropriate
to make these employees whole for the entire period? I can
understand you may be limited----
Mr. Dodaro. Right, right.
Ms. Norton [continuing]. In what you can do. If that's your
answer, I would understand that. But is there any justification
for not making these employees whole for the years that they
did not receive their COLA if they should have received them--
--
Mr. Dodaro. Right.
Ms. Norton [continuing]. For the 2 years that you believe
clearly they should have? I'm looking for a justification. I'm
not looking for what was reasonable.
Mr. Dodaro. Right, right.
Ms. Norton. I was looking for why it was reasonable or why
it is reasonable, if you think it is, to deny them their COLAs
for the years that proceeded it. It may have seemed reasonable
at the time. I'm now saying--that's why I said ``at this moment
in time.''
Mr. Dodaro. Right, right.
Ms. Norton. Could the Congress possibly justify giving back
the COLA for 2 years--and, by the way, isn't this a part of the
pension? Isn't COLA included in the pension? Your COLA is part
of your wages and is included in your pension.
So you understand what I'm talking about here.
Mr. Dodaro. Right, right.
Ms. Norton. We're not talking just about people's salaries.
We are talking about their pensions as well, their base pay.
Mr. Dodaro. Right.
Ms. Norton. So I'm saying, that considered, what is the
justification? I'm not saying at the time there may have seemed
justification.
Mr. Dodaro. Right, right.
Ms. Norton. At this point in time, people get 2 years. Is
there any justification for saying you can have it for 2 years,
but you cannot have it for the period, the entire period that
you were denied your COLA?
And, if so, I want to hear the justification, specifically,
not that it was reasonable. If your justification is it seemed
reasonable at the time, we understand the difference, fine.
What would be the justification now for making people partially
whole?
Mr. Keplinger. Mrs. Norton, maybe I could take a crack at
this.
When we considered these two issues of dealing with the
past and the pay decisions that were made with respect to 2006
and 2007, as Gene mentioned before, we want to prospectively
adjust their salary and we want to give them a lump sum.
The three principles that we brought to bear as we were
talking internally and with staff about how to approach this is
that we wanted to, one, have something that budgetarily we can
afford; second, that it's administratively doable and not
overly burdensome; and third, that it is fair.
Now, we have structured a proposal which, you know, in an
ideal sense it may not be everything that everybody wants and
every detail, but we think, on balance, it's a very fair
proposal. And it also deals with the retirement issue, too,
through directions to OPM to include the prospective pay
adjustments in our employees' high-3 going forward.
I hope that helps.
Ms. Norton. Well, according to the staff memo, what we are
doing is authorizing--seeks to provide an opprobrium for those
employees who were denied all or part of their annual
adjustment for 2006 and 2007 or both years.
Are those the only years----
Mr. Dodaro. Yes.
Ms. Norton. Perhaps that makes them whole, but----
Mr. Keplinger. Yes, those are the only 2 years.
Mr. Dodaro. This takes care of everything in the past.
Ms. Norton. Thank you.
Mr. Dodaro. Yeah. Prior to that, Congresswoman, I'm sorry,
I didn't understand either. Basically up to 2005, we were
giving the same across the board as the executive branch.
Ms. Norton. Only for those years.
Mr. Dodaro. Only for those years. And the floor guarantee
provision we're seeking that's also included in there----
Ms. Norton. The what?
Mr. Dodaro. It is a floor guarantee going forward; that
would take care of the issue going forward as well.
We're hoping to never to talk about this issue again.
Ms. Norton. Talk about putting an issue to rest.
Mr. Dodaro. Yes, yes. That is our objective.
Ms. Norton. So we are fully pregnant; the baby has been
born.
Mr. Dodaro. Yes.
Ms. Norton. Thank you very much.
Mr. Dodaro. As has been pointed out to me, I am not able to
do that. [Laughter.]
But I am able to be empathetic, and I can try.
Ms. Norton. Well, like every father, you all were very
necessary. [Laughter.]
If you want to cutoff these metaphors, I'm perfectly
willing to. [Laughter.]
The part of me that still teaches law enjoyed our
conversation on the effort I'm seeking in the chairman's bill
to equate what happens in the executive agencies with GAO as
well. And there was some thought that maybe there were some
agencies, smaller agencies, where the agency head may appoint
the IG. Perhaps that is the case.
I must say I'm familiar with many agencies, having headed
one myself, and am aware of no agency of any consequence where
Congress hasn't appointed a GAO. And that may be because
Congress looks at the size and importance of the agencies to
public policy. Surely it wouldn't be the size alone, because
agencies differ vastly in size.
But I do want to get on the record that, in terms of the
kinds of work the GAO does, which depends upon your
independence, would you believe that, for an agency of
consequence, whose policy concerns were of importance to the
public, that an independent IG would help it or assist it in
being credible to the Congress of the United States and to the
general public?
Mr. Dodaro. We definitely support the IG concept and the
principal. And we are prepared to have ourselves held to the
same standards as any other agency. And we believe firmly in
that process.
I mean, that is why we've had an Inspector General created
administratively for over a decade. So we have voluntarily put
that system in place, the way we have for many management
principles and laws that are applied to the executive branch
that don't normally apply to the legislative branch or GAO.
And so we are very committed to that. I mean, we have put
forth the statutory IG provision in our bill in an attempt to
further enhance the independence and autonomy of that position.
And, you know, we're willing to entertain discussions about the
best way to appoint that person to have credibility, you know.
There are only one political appointees, maybe two, in GAO
all together. One is the Comptroller General position, which
the Congress creates a list of at least three people with a
congressional commission, sends names to the President; the
President can ask for additional names but has to pick from
that list. Now, that's different because we're in the
legislative branch than it would be for just the President to
pick somebody on their own, for a Presidential appointee in a
legislative branch agency. So there are differences.
The only other political appointed position in the GAO has
been Deputy Comptroller General, and that's been vacant for a
while, because that has not worked, that process hasn't worked.
And while we were originally seeking to change that process
with this legislative proposal, given the departure of Mr.
Walker we think those things ought to be held in abeyance for a
while.
Mr. Keplinger. And, Mrs. Norton, I would be happy to supply
the committee, for the record, the list of the entities in the
executive branch--I don't want to pass judgment on whether they
are or are not of any consequence at this moment--where the
heads of the agencies point the IG.
In the legislative branch, the Architect of the Capitol,
the Librarian of Congress and, I believe, the Public Printer
all appoint the Inspector Generals in their institutions.
Mr. Dodaro. And I'm certainly open to having consultation
with our oversight committees as part of this process. I mean,
I think that just makes sense, so that you have confidence in
that individual.
Ms. Norton. Well, I certainly want to commend the GAO for
understanding that, when Congress hadn't appointed one, at the
very least he should appoint one. And I do want to indicate I
certainly have seen nothing to indicate that the lack of formal
independence has affected the PAB or has affected the IG or has
affected the Comptroller General. I really have not.
As I indicated to you, I am sick and tired of Congress
waiting until something happens before it then runs to do the
obvious. That, really, is all I'm about, because the chairman
was doing a number of other things in the bill. We don't just
shoot bills through here, that seem the appropriate time. I
certainly don't think--far be it from me to say that the
Architect of the Capitol, Library of Congress and the Public
Printer are not agencies of consequence, but you will forgive
me if I do not equate them with the Government Accounting
Office, which then gets to pass judgment on everybody in and
the U.S. Government, much to their displeasure, because
whenever the GAO is talking about you, it normally isn't saying
anything you want to hear. [Laughter.]
So I must say, if those are the agencies, they tend to
prove my point, that I--my own sense is that if a Member of
Congress wants to require things of their constituents, we have
an Office of Compliance, and it says we're going to apply the
same laws to ourselves. Those of us who sit in stations of
power of one kind or the other are most vulnerable, terribly
vulnerable, if, in fact, we don't live up to the same standards
or structure ourselves by the same standards.
So without meeting in fact-finding, I've sat in hearings
and heard General Counsel testify about the employee matters.
That seemed to me to be a straight-up-and-down counsel who
looked at the law and just called it as she saw it.
So the last thing I'm saying is that I see some evidence,
but I have to tell you, this committee is part of oversight and
reform. The reason that we have oversight and reform, a whole
committee on that, largest committee in the House, is precisely
because there are so many things that blow up, and then it is
our job to look at why it blew up. And then they say, why in
the world didn't somebody do something about it? The reason is
it wasn't broken. It wasn't broken.
In the global economy, the United States better figure out
this is not a world of ours any longer. This is not about
economics. But it is about the habit of the Congress of saying,
unless it's broken, we aren't going to do anything about it. So
I would like to do something about it this time.
And I thank you, Mr. Chairman.
Mr. Davis. Thank you very much, Ms. Norton.
Gentlemen, I think that concludes our questions for you.
And so thank you very much, and we appreciate your being here.
Mr. Dodaro. Thank you, Mr. Chairman.
Mr. Davis. We will now go to our second panel for the
afternoon.
Panel two is Mr. Paul Coran. He is the chairman of the
GAO's Personnel Appeals Board. The Personnel Appeals Board
adjudicates personnel disputes involving employees or
applicants to GAO, as well as monitors equal employment
opportunities at GAO.
Ms. Anne Wagner is the General Counsel for the GAO's
Personnel Appeals Board.
And I see that you are both standing, so I will just stand
with you and administer the oath.
[Witnesses sworn.]
Mr. Davis. The record will show that the witnesses answered
in the affirmative.
Thank you both for coming, and thank you both for being
here.
Mr. Coran, we will begin with you. You've got 5 minutes to
summarize your testimony. The yellow light indicates that you
are down to 4. And, of course, the red light means that we've
exhausted the time.
Thank you very much, and you may begin.
STATEMENTS OF PAUL CORAN, CHAIRMAN, PERSONNEL APPEALS BOARD,
U.S. GOVERNMENT ACCOUNTABILITY OFFICE; AND ANNE WAGNER, GENERAL
COUNSEL, PERSONNEL APPEALS BOARD, U.S. GOVERNMENT
ACCOUNTABILITY OFFICE
STATEMENT OF PAUL CORAN
Mr. Coran. Good afternoon, Chairman Davis and
Representative Norton. I am Paul Coran. I've served on the
Personnel Appeals Board since January 2005, and I've been the
Chair since September 2007. I'm honored to be here today before
you to share my impressions of the Board's structure and
processes.
The PAB is charged with all of the investigatory and
adjudicatory functions of the MSPB, the EOC, the Office of
Special Counsel, and the FLRA. As an adjudicatory body, the PAB
must be independent, impartial, informed, effective and
efficient. The Congress and GAO's employees and managers are
entitled to no less.
One might ask how the PAB may entertain such broad
jurisdiction, exist in the GAO's structure, and yet maintain
strict standards of an adjudicatory body. The answer is that,
in creating the PAB, Congress was very careful to design the
Board, its jurisdiction and structure in a way that would
maintain the requisite independence and be both efficient and
effective.
I believe that the PAB is structured to and has
consistently performed its statutory mission very well by
providing a just forum for resolution of employment disputes
and by providing independent oversight of equal employment
opportunity at GAO for nearly 30 years.
My perspective I derive from serving a term in the so-
called school of hard knocks. Before joining the PAB, I served
for 36 years in Federal employment in labor law capacities in
both the executive and legislative branches, as a neutral with
the NLRB, the Department of Labor, the old Federal Labor
Relations Council, and the Office of Compliance. And I served
in advocate roles at two ends of the pole: as a president of a
local labor organization and as a management attorney with the
Department of State.
These experiences allowed me to observe and participate
before an array of Federal-sector employment adjudication
agencies with governmentwide jurisdiction. I've also had the
opportunity to observe and participate before boards which are
limited to the executive branch foreign affairs agencies.
In preparing for today, I reviewed the excerpts from last
year's hearing and noted Representative Norton's concerns about
Board members' independence, in particular how they are
appointed. I would like to address those concerns.
The PAB's independence goes well beyond its separate
physical location in a building closer to Capitol Hill than it
is to GAO. It goes beyond its complete freedom to create its
own personality, such as in its own report covers not having
the iconic GAO blue covers. It goes beyond its ability to keep
its employees in the GS, general schedule, pay system, while
the rest of GAO became pay-banded. It goes beyond the fact that
the PAB has its own logo and its own Web site.
In my 3 years with the PAB, I've had no reason to conclude
anything but that my colleagues and I serve as totally free
agents in meeting our statutory responsibility.
As part of the GAO, we enjoy the excellent logistical
resources that GAO provides us for our administrative needs. In
prior service, I have seen the small free-standing agency
overburdened with having to provide for nearly all of its
administrative needs. I am grateful that we are not so diverted
from our mission.
At the same time, our autonomy evokes the sense of actual
separateness throughout our staff and through the Board. I
recognize that the appearance of independence can be as
important as the actuality. While the Comptroller General
appoints the PAB members, that act is the result of a nearly
year-long collegial process.
I'm running short on time, and I want to summarize that
process just by saying that the process is exhausting.
Employees and their involvement is integrated throughout the
process. And the Comptroller General may appoint the members,
but it's only after this careful vetting process.
I'm sorry that I've gone past my time.
Mr. Davis. Go right ahead. You can finish up.
Mr. Coran. Oh, OK.
I'd like to point out the people with whom I serve, which
is indicative of the quality of appointments through this
process. Throughout the history of the board, they have all
been labor and employment law specialists. Some have
represented management, some been employee advocates, some have
been neutral. I, myself, have moved across those roles. But
I've never worked with anyone on the Board who would ever serve
in a situation where doctrinaire policies govern rather than
applying the rule of law and equity to cases on an individual
basis.
I do believe that the Board has fulfilled its function
through its decisions and its oversight on EEO matters
throughout its almost 30 years of existence. And I would be
pleased to answer any questions the committee may have. Thank
you.
[The prepared statement of Mr. Coran follows:]
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Mr. Davis. Thank you very much.
Ms. Wagner.
STATEMENT OF ANNE WAGNER
Ms. Wagner. Thank you, Mr. Chairman. Good afternoon.
Good afternoon, Mrs. Norton.
I am here at your request, Mr. Davis, to answer your
questions concerning the Office of General Counsel's
investigations into a number of charges that have been filed
with the PAB General Counsel's Office dealing with GAO's pay
system.
As a preliminary matter, I would just like to reiterate
what I had stated in my previous testimony before the
subcommittee, that the PAB General Counsel, by statute and
regulation, conducts investigations into charges that are
brought before it, in order to make a reasonable-grounds
determination as to whether a violation has been committed and,
if so, to offer representation to the charging party, to
adjudicate that claim before the Personnel Appeals Board.
Therefore, the entire thrust for our investigation is
really directed at determining whether that offer of legal
representation is to be made.
The ultimate decisionmaking with regard to those claims is,
of course, statutorily committed to the Personnel Appeals Board
itself, which makes findings of fact and draws conclusions of
law with regard to the claims.
With regard to the status of the investigations, I would
point out that there were 274 charges that were filed in toto
dealing with various aspects of the GAO pay system. These
charges can generally be characterized as having challenged a
market-based pay system that was established at GAO, the
elimination of the 2006 and 2007 annual adjustment, otherwise
known as the COLA.
The charges also raised the question or raised claims as to
the deviation of the GAO COLA in 2006 and 2007 from that which
was accorded the executive branch employees under the GS
schedule.
Some of these charges also challenged the use of a
standardized ratings score in calculating the performance-based
compensation that is afforded employees at GAO.
In addition, some of these charges dealt with the
calculation of locality pay, the use of a ``speed bump'' with
regard to some of the band-level pay ranges, the lack of
uniformity in the rating system across the teams at GAO, as
well as some challenge to the Band II restructuring decisions.
In addition, there were 14 individuals who challenged the
pay decisions based on claims of discrimination. That is, some
of them have alleged that the pay decisions were unlawful based
on discrimination due to age, race, as well as sexual
orientation.
Since these charges have been filed, eight individuals have
withdrawn, which has left us with 266 charges currently pending
in our office in investigation.
Our office has now completed its investigation, and I am
particularly sensitive at this point to enter into any public
disclosure with regard to our preliminary assessment as to the
merits of any or all of those claims. However, the question as
to the Comptroller General's statutory authority to eliminate
the COLA entirely in 2006 and 2007 was a question that was
raised as part of the Band II restructuring cases that my
office handled last year which settled and which was the basis
of the testimony that I gave last year. So I do feel--I don't
feel constrained with regard to any issues of confidentiality
in discussing that issue with you today.
My determination with regard to the statutory authority
question has not changed since last year. I do believe that the
plain language as well as the legislative history of Public Law
108-271 manifestly supports the conclusion that the Comptroller
General lacked statutory authority to eliminate the COLA
entirely.
That said, and with due regard for the rights of the
employees whose claims are still pending in our office and
still under investigation, I would be more than happy to answer
any of the questions that you have with regard to the cases
that we are handling.
Mr. Davis. Thank you very much, and thanks to both of you.
[The prepared statement of Ms. Wagner follows:]
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Mr. Davis. As you know, the subcommittee staff has been
working on pay adjustment provisions for the fiscal year 2006
and 2007 for GAO employees who met expectations but did not
receive an across-the-board adjustment for those years. What I
would like to know is your views on the retroactive provision
that I have included in the legislation that I will introduce
to address the problem and also your views on the across-the-
board floor guarantee provision that will ensure that, in
future years, GAO employees will get the general schedule
annual pay adjustment.
Ms. Wagner. Mr. Chairman, I have to say that I don't have
a--it would be entirely speculative to pass judgment or to
address the questions directly.
I was given a draft proposal, proposed language, Friday or
Monday. I raised concerns about whether or not the language as
it was given to me at that point would fully redress the claims
with regard to the COLA. I don't--I have not seen any
subsequent revisions, if, in fact, there have been. At that
point, if there have been revisions, I certainly would be happy
to review that and provide you with my assessment as to whether
that would redress fully the claims concerning the COLA.
Mr. Davis. All right. Let me ask you, also, what drives if
you--many of the appeals that you get? Many of the appeals that
come before the Board? I mean, what do you think actually
drives them or cause the individuals to appeal?
Ms. Wagner. I think there are two aspects to that question,
the first being what drives people to our office filing a
charge, and then what would compel them to take a case forward
to the Board.
I think that in my short experience as the General Counsel
at the Personnel Appeals Board, I have seen that employees
uniformly come to our office because they genuinely feel that
they have--somehow, their rights have been violated or that
they have been wronged in some way. If they can't articulate
specifically how their rights have been violated, I find that
perfectly understandable, but it is genuinely that they feel
that they have been wronged.
After we have had an opportunity to do an investigation and
to examine the factual and legal grounds for that, their claim,
they then have to step back and analyze whether there is a
viability from a legal standpoint in terms of going forward.
That is assuming, you know, whether or not we offer to
represent them or not.
And at that point, I think that--again, I can only
speculate--but I suspect that the extent to which individuals
take those cases forward or want to take them forward is
probably a function of a number of factors: how strong the case
is, what personal toll they anticipate this having on them.
Mr. Davis. Do you feel that passage of the provisions
relative to the claims before the PAB that pertain to the
denial of across-the-board increases for 2006 and 2007 would
decrease the number of appeals that would in all likelihood
come before the Board?
Ms. Wagner. Again, without having the language to--having
really reviewed the language that may be currently under
consideration, if I could simply state more sort of broadly and
generally. If the legislation that is being proposed plainly
manifests congressional intent to make these individuals whole
with regard to their annual pay adjustments, then I think the--
one could say that much of the relief that the employees might
have gotten through the adjudicative process would have been
afforded them through the legislative process.
Mr. Davis. Thank you very much. I have no further
questions.
Ms. Norton.
Ms. Norton. Could I have your view, if a system may be used
to determine job-related matters, such as promotion, for
example, does that system have to be validated?
Mr. Coran. Representative Norton, we only get it at the
Board level after it goes through the General Counsel's
investigative process. We get live cases where the employee has
exhausted the administrative process and is--either the General
Counsel represents the employee, if the employee accepts, or
else the employee comes forward.
And what you are bringing up is a question of possible or
legal failing of a charge. Someone may claim that the standards
by which they were not promoted do not--they have an adverse
impact and a prescribed basis, and they haven't been validated.
That could be a case that could properly be brought before the
Board and would have to be adjudicated.
Ms. Norton. I didn't ask you about the outcome. I asked you
about the standard. I am asking about the standard of
validation of matters used for various decisions and an
employee's work have to be validated. I am not asking you for
the outcome. Obviously, they have to show whether or not they
are job related. I am asking validated. Of course, validated
means job related.
Mr. Coran. I would be speaking just personally and not for
the Board. But from my dealing in these cases, particularly at
the State Department, where there was a women's class action
where the written examination had an adverse effect on women
and it couldn't be shown to be strictly job related, the
Department settled that case because the matter hasn't been
validated. Yes.
Ms. Norton. Thank you.
Ms. Wagner, isn't that the current state of the law, that
terms and conditions used for such matters as promotion--I just
give an OA system of ratings, you can name it, that--that,
subject to challenge, if in fact the entity could be a private
employer or Federal agency cannot validate the use of the
particular system?
Ms. Wagner. The question as to whether--what factors must
be taken into account with regard to----
Ms. Norton. Now, don't answer another question I wasn't
asking you. I wouldn't begin to ask you what factors. I'm
asking you a conclusion of law, based on what I presume you
understand about the existing case law.
That is all Mr. Coran gave me. He couldn't give me anything
pertaining to a specific case.
If I were to ask a Supreme Court Justice, do you--what
does--a conclusion of law, he could probably tell me what the
law is. What applied to a specific fact, he couldn't tell me
anything because you have to look at that set of circumstances.
I am simply asking whether the factors that an employer
uses, public or private, to make judgments about major aspects
of a person's employment such as promotion or how the person's
rating--you can name it. I don't know what it is, because I
don't know what job I am talking about yet. I am simply asking.
The bottom-line question is, would not that system have to be
validated as a matter--does not the case law show that?
Ms. Wagner. The case law talks specifically in terms of a
Title 7 challenge to a personnel action. Oftentimes, the party
will look to whether the factors were validated. I don't think
that the law supports the concept that there is any one
particular method for validating a particular system, and the
only reason why I was talking----
Ms. Norton. I will grant you that. I wouldn't ask you about
any of the specifics of validation. It is a very technical
process. It varies from job to job. It is a very difficult
process. I am simply trying to ask the bottom-line question
about validation itself.
Ms. Wagner. I think that it would--it is reasonable to say
that any decision, whether it is a promotion or pay, would have
to be--arise out of a system that is valid.
Ms. Norton. That is all I am asking.
Let me understand--I understand your role, Mr. Coran. Your
role, obviously, is much like the adjudicatory role of any
body, of any similar body, for example, in the executive
branch, where you sit in judgment and you wait for the specific
cases to come before you.
Could I ask whether the General Counsel renders advice to
anybody other than the PAB? Who renders advice to the
Comptroller General?
Ms. Wagner. The PAB General Counsel does not render advice
to the Comptroller General, and I would assume that the Office
of General Counsel at GAO provides----
Ms. Norton. So they have their own General Counsel?
Ms. Wagner. Yes.
Ms. Norton. Could I ask you--Ms. Wagner, I think it is
probably the case--and I can't find a way out of this.
Apparently, 12 employees did file for the PAB and did get a
remedy; and, of course, that left everybody else out, and they
didn't get a remedy. They hadn't filed. That is why this action
here has been necessary, to make those people who did not file
whole.
Is there anything that could have been done so that we did
not have to go through this laborious process? When there were
12 people who had shown for the class, there was an error made
and most of the class was left out because they haven't filed--
--
Now, obviously, we are in Federal court. There is ways to
deal with those things. It is pretty formal, class actions and
the like. But here you have this anomalous situation where the
PAB had found, I believe, that--I believe you had argued, I
believe you had argued that the Comptroller General lacked the
authority to deny the COLAs. I believe Mr.--the PAB found to
that effect and that, as a result, 12 people who filed, they
settled before it went to the PAB.
Ms. Wagner. Yes----
Ms. Norton. You argued, and then they settled. Is that it?
You made the--you made the case that you believed he--he, the
Comptroller General, lacked the authority. At that point, a
settlement occurred. Is that how?
Ms. Wagner. If I can just address what I believe is the
underlying concern, which is why the relief wasn't extended
more broadly from the 12 to the rest of the 308 individuals who
were denied COLA in 2006.
At the time, that the 12 individuals--actually, there were
more. But at the time those individuals filed, the case, what
they were challenging, the personnel decisions that they were
challenging had to do with the restructuring. They all arose
out of the split of the Band II analysts and specialists work
force. That--one of the effects of the split for some of those
people was the elimination of their COLA because they, having
been placed in a Band II A, they capped out and then,
therefore, were denied a COLA.
But the fundamental thrust of those cases was then, and
remained throughout, whether this restructuring process itself
was valid and whether those individuals--I mean, assuming--and,
ultimately, the case--ultimately, though, the decisions had to
do with whether those individuals were demoted. And the factors
that were taken into account in that process with regard to
whether those 12 individuals were demoted not only took into--
not only involved sort of general policy decisions that the
Comptroller General made but, ultimately, came down to their
performance. So that, in assessing whether this was the type of
case that would be amenable to a class action, I had to look at
whether it was going to require individual evidentiary showings
with regard to those--each particular individual. And it just
didn't strike me that was going to be amenable to class action
treatment.
The impact with regard to the COLA was, in fact, more
broad-based, but the 12 cases that I had before me that we were
investigating had to do with the demotions of 12 individuals.
And, again, it was a judgment call with regard to whether,
ultimately, those cases were going to be amenable to class
certification. Because the evidence was going to have to
ultimately--in order to demonstrate that they should not have
been demoted, if all of my theories about the policies were
wrong, then ultimately we are going to have to show that each
of those people qualified to get into Band II B. And so to do
that on a broad basis was going to be--was beyond the scope----
Ms. Norton. Of course, that may be the case, Ms. Wagner.
But if the underlying issue was whether the system itself was
job related, regardless of the individual differences in
performance, those individual differences would have to have
been judged by a job-related system for each aspect of their
performance that was involved. Is that not in fact the case?
Ms. Wagner. What was at issue there was whether their
ratings over the last--the 3-year period prior to the
restructuring were legitimate reflections of their
qualifications to remain in Band II B.
The issue as to--there was an issue concerning, and we
would have been prepared to challenge the rating system as such
to show that these individuals' ratings did not accurately
reflect their performance. It did not--the challenges that we
were looking at were, again, specific to these particular
individuals in that we were looking at issues, like did this
individual's performance manager accurately capture that
individual's performance during this period of time, as opposed
to the sort of systemic issues that I think are implicated by
your question.
Ms. Norton. I just want to say for the record, Ms. Wagner,
your answer does not indicate that you are in touch with the
complexity of validation cases.
When somebody challenges the system for promoting--let's
just give me a very simple-minded answer--but the way it has
happened where these notions have been developed, in an entire
corporation, with hundreds of thousands of employees, the
complaint will say, these people up and down the corporation
who are black, who are female--you name it--have systematically
gotten performance ratings. There is a pattern of performance
ratings reflected in pay, etc., that is less than, let us say,
white males.
If you want to see something complicated, much more
complicated than 300-some employees who you say you have to
capture the individual job, their performance on the job, their
qualifications, that is precisely the nomenclature, the words
that describe validation cases. And the reason that employers
go to all the trouble to validate is, once you get into the
morass of trying to explain differences the way you are, you
are out of court.
So you have to understand it is very complicated here. This
is based on whether you are capturing everything they do--and
everything these women do is really different from what these
men--hey, fine. The burden shifts to the employer. And that is
the point.
But once you show statistically the difference, don't think
that employers haven't been able, particularly with validated
systems, to overcome this. But once you show the difference,
the burden shifts entirely to the employer. Because, obviously,
the employee and its lawyer doesn't have the information. It is
you who are saying these women are being paid equal to men, if
you knew what I knew. OK, fine. Tell us what you know. All we
have done is shift the burden to you.
Now the thing that troubles me about your answer is that if
employees challenged performance or ratings systems from some
other agency before--I don't know--the EOC or some such agency,
MSBP, that system would be fully understood. So I am bothered
by the notion that, you know, that there is some difference
here, whether you are saying to me that there is some
difference here given your independence that we in the
legislative branch have granted you and the PAB, which we saw
as no different from the kind of application of the law that we
would expect for other employees.
Ms. Wagner. Mrs. Norton, I wasn't suggesting that we
treated these cases any differently than how they would have
been treated by any other similar agency in the Federal
Government. In fact, there were cases, as I pointed out
earlier, that--our office handled 12, but there were initially
more cases, more individuals who filed charges challenging the
restructuring decisions. Which, again, I want to point out, is
different from the GAO order concerning pay, to some extent. I
mean, those were two separate processes.
The three individuals who filed discrimination allegations
concerning the restructuring were, by virtue of the mechanism
that is set forth in the PAB regulations and GAO orders, were
transferred, in effect, to the GAO's Office of Opportunity and
Inclusiveness for investigation; and they are still there. So
we did not take it upon ourselves to examine these claims for
the determination as to whether reasonable grounds existed to
believe that the restructuring process was discriminatory,
because those questions were to be addressed first at OOI. They
can still come to the PAB once that process is completed
where----
Ms. Norton. I understand this. That is why I asked you for
the law. And I asked Mr. Coran for the law, too. Frankly, I am
at a loss, Ms. Wagner.
Let me just ask both of you a final question. I am not
asking you anything that I think is outside of what you know,
and I don't think saying what the black letter law is or that
somebody settled it--you know, you settled a case, too. I am
not saying why you settled it--you, the GAO--but you settled a
case after looking at the law.
Let me ask both of you. Are you prepared to follow existing
anti-discrimination law as it applies to other Federal
employees?
Mr. Coran. Absolutely. Unqualified.
Ms. Norton. Ms. Wagner.
Ms. Wagner. Yes.
Ms. Norton. That is really all I am getting at. I want to
make sure that we are not still dealing with a different
standard in the GAO.
My final question is, would either of you have any
objection to the Speaker of the House, the majority leader of
the Senate, together with the minority leader of the House and
the minority leader of the Senate, appointing the members of
the PAB, the General Counsel, and the IG?
Mr. Coran. Well, it is certainly, Representative Norton,
within the purview and the best judgment of Congress who should
serve in such positions that are under Congress. However, my
view is that the present system has worked extremely well
because the employees are so integral to the selection process,
and the way the screening has taken place has been----
Ms. Norton. You notice, Mr. Coran, that I have been at
great lengths to say that I regarded both your work and--your
work, PAB's work, and Ms. Wagner's work to be above reproach
during the controversy that has been before us. So I am not
indicating whether it has worked well or not. I asked, would
you object? Would you see any problem to these four members
being the appointing authority? That is my only question.
Mr. Coran. I certainly couldn't object to that.
Ms. Norton. Ms. Wagner.
Ms. Wagner. I have no objection to that.
Ms. Norton. Thank you, Mr. Chairman.
Mr. Davis. Thank you very much.
I have no further questions and thank you all very much.
Our third panel is going to consist of Mr. Curtis Copeland.
Mr. Copeland is currently a Specialist in American Government
at the Congressional Research Service [CRS], within the U.S.
Library of Congress. His specific area of research expertise is
Federal rulemaking and regulatory policy. He is also head of
the Executive and Judiciary Section with the CRS Government and
Finance Division.
Mr. Copeland, thank you.
Ms. Shirley Jones is the current president of the GAO
Chapter of Blacks in Government. She was first elected
president in 2005 and was reelected January 2007. Ms. Jones is
Assistant General Counsel in the Office of General Counsel at
the U.S. Government Accountability Office. In this role, she is
responsible for supervising the legal support for the Strategic
Issues [SI], Mission Team, work related to tax policy and
administration.
Ms. Jones, thank you.
Ms. Janet Crenshaw Smith is co-founder and president of Ivy
Planning Group, an 18-year-old management consulting and
training company that specializes in diversity strategy and
change management.
Ms. Smith, thank you very much.
Ms. Jacqueline Harpp is on GAO's International Federation
of Professional and Technical Engineers Interim Counsel. She is
a senior analyst on GAO's Education, Workforce and Income
Security Team. She has nearly 34 years of experience working at
GAO.
Thank you all for being here. And, as you know, we swear
all of our witnesses in, so if you will raise your right hands.
[Witnesses sworn.]
Mr. Davis. The record will show that the witnesses answered
in the affirmative. Thank you all very much.
And, of course, you know that your testimony is included in
the record. If you would take 5 minutes and summarize. The
green light indicates that you have the full 5 minutes going.
When it gets down to yellow, you have a minute left. And, of
course, the red means that you have concluded your testimony
and thank you very much.
Dr. Copeland, we will begin with you.
STATEMENTS OF CURTIS COPELAND, SPECIALIST IN AMERICAN NATIONAL
GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE; SHIRLEY JONES,
EMPLOYEE ADVISORY COUNSEL, U.S. GOVERNMENT ACCOUNTABILITY
OFFICE; JANET C. SMITH, PRESIDENT, IVY PLANNING GROUP, LLC; AND
JACQUELINE HARPP, INTERIM COUNCIL REPRESENTATIVE, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO
STATEMENT OF CURTIS COPELAND
Mr. Copeland. Thank you, Mr. Chairman, members of the
subcommittee. Thank you for inviting me today.
I am here to discuss several issues that CRS was asked to
address related to the implementation of the new pay system
under the GAO Human Capital Reform Act of 2004.
The first such issue was whether the Comptroller General
told Congress and GAO employees during consideration of the
legislation that all employees who received a ``meets
expectation'' performance evaluation would receive annual
adjustments in their base pay. As I described in detail in my
written statement and as I testified before this subcommittee
last year, the record indicates that the Comptroller General
gave such assurances in writing and orally on multiple
occasions to both congressional committees and individual
Members of Congress. House and Senate committee reports on the
legislation repeated the Comptroller General's commitments.
GAO's employees' concerns were reportedly assuaged by those
assurances; and documents published before and after the
statute's enactment that are still on GAO's Web site continue
to indicate that, ``all GAO employees who perform at a
satisfactory level will receive an annual base pay
adjustment.''
However, the record indicates that 308 GAO analysts and
specialists did not receive the 2.6 percent permanent increase
that other GAO employees received in January 2006. All of the
308 employees had meets expectations ratings or better on all
relevant performance dimensions.
In 2007, 138 GAO analysts and specialists with at least
meets expectations ratings did not receive any of the 2.4
percent permanent pay increases provided to other GAO
employees, and 66 others received only partial increases.
Thirteen GAO administrative staff members with at least
satisfactory ratings also did not receive the full 2007 pay
increase.
During the May 2007, hearing before this subcommittee, the
Comptroller General said his decisions to withhold those annual
pay increases were fully consistent with the authority provided
him in the GAO Human Capital Reform Act. GAO told CRS that the
act permitted the Comptroller General to determine the size of
the annual adjustments, including the option of providing no
adjustment at all to some or all GAO employees. However, the
General Counsel of the GAO Personnel Appeals Board testified at
the May 2007, and repeated just now that the Comptroller
General appeared to have exceeded his statutory authority.
The General Counsel and a CRS attorney who also testified
at the May 2007, hearing testified that the legislative history
of the act indicated that Congress believed all GAO employees
who met performance expectations would receive an annual pay
adjustment.
In February 2008, as a result of negotiations with union
representatives, GAO agreed to provide all of its employees
with a meets expectations rating with at least a 4.49 percent
increase that was provided to General Schedule employees in the
Washington, DC, area. However, this action does not restore the
salaries or income lost by the employees who did not receive
the 2006 or 2007 annual adjustments.
For example, a table in my testimony illustrates, because
those two adjustments were not provided, a GAO employee who is
making $110,000 a year in 2005 who was placed in Band II A,
which is roughly a grade 13 in General Schedule, will have
foregone a total of more than $14,000 in base pay increases by
the end of 2008. If that employee then retires under the Civil
Service Retirement System, her pension will be nearly $2,700 a
year lower than if she had received the 2006 and 2007
adjustments. Therefore, after a 20-year retirement, the
employee will have foregone nearly $68,000 in wages and
pensions since 2005.
A variety of factors can influence the size of the wage and
pension differential, including the employee's starting salary,
whether the PBC is started as base pay, and whether the
employee receives an annual increase in 1 year or the next.
Mr. Chairman, that concludes my prepared statement. I would
be happy to answer any questions.
Mr. Davis. Thank you very much.
[The prepared statement of Mr. Copeland follows:]
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Mr. Davis. We will proceed to Ms. Jones.
STATEMENT OF SHIRLEY JONES
Ms. Jones. Mr. Chairman and Representative Norton, I am
pleased to be here today to discuss the results of the survey
that you requested on the Band II restructuring and the Watson
Wyatt market-based compensation study.
My name is Shirley Jones, and I am an Assistant General
Counsel at GAO. I had the opportunity to testify before you
last November in my capacity of the GAO chapter of Blacks in
Government to share the concerns that our chapter had
previously raised regarding the impact of the Band II
restructuring on African American staff in particular.
In addition to being Chapter president for the last 4
years, I have also served as the attorney representative to the
Employee Advisory Counsel; and since your hearing last May, I
have worked with the EAC committee that conducted this survey.
I will highlight just a few points.
The survey was sent to all GAO employees except SES and
interns. Seventy-one percent of eligible employees responded.
To provide a picture of those responding, demographic questions
were asked regarding position, years at GAO, age, race,
ethnicity, sex, and location. Not surprisingly, the highest
area of nonresponse to the demographic questions was in the
answer to the question about race identification. In addition,
the highest nonresponse to the survey itself was from Asian and
African American employees.
Several survey questions asked about staff involvement,
input, and transparency with regard to the Watson Wyatt study.
Starting with the Watson Wyatt focus groups, 19 percent of
administrative professional and support staff reported
participating, compared to only 4 percent of analysts and 8
percent of attorneys. Only 4 percent of those responding
reported being interviewed by Watson Wyatt for the study. Of
particular note, no Band I or Band II respondents reported
being interviewed by Watson Wyatt.
A much higher number of staff, 94 percent, reported that
they listened to CG Chats or attended town hall meetings. An
overwhelming majority, 81 percent, of respondents reported that
they felt they were only slightly involved or not at all
involved in providing input to management on the transition to
market-based pay. Similarly, 81 percent also felt that employee
input was ultimately only slightly or not at all considered.
A majority of those responding had concerns with the level
of transparency of the Watson Wyatt study and the GAO
decisionmaking process.
We also asked about satisfaction with GAO's market-based
pay system. There were notable differences based on position,
age, and race. Band II A's and Band II B's, respondents age 40
and over, and African Americans had higher percentages of
respondents who said they were generally or very dissatisfied
with GAO's market-based pay system. Eighty-one percent of
respondents thought morale in general was worse or much worse
now than before the transition. Forty-eight percent responded
that their own morale was worse or much worse now. A higher
percentage of respondents age 40 and over and African Americans
reported that their morale was worse or much worse.
Turning to the restructuring of Band II and to Band II A
and Band II B, 54 percent of respondents disagreed or strongly
disagreed with the restructuring, while 29 percent strongly
agreed or agreed. Certain demographics disagreed or strongly
disagreed at a higher rate: African Americans again, Band II A
staff, those at GAO 10 years or longer, and employees 40 years
or older.
Regarding the current general climate at GAO, lower
percentages of Band II analysts and administrative professional
and support staff, 33 percent and 38 percent respectively, felt
their professional contributions at GAO were highly or very
highly valued, compared to attorneys and Band III staff, with
that rate at 67 percent and 63 percent respectively.
A lower percentage of respondents with 10 or more years of
service and respondents age 40 and older felt that their
contributions were highly valued. A lower percentage of African
Americans, only 27 percent compared to other racial groups,
felt that their contributions were highly valued.
1,113 survey respondents provided substantive narrative
comments at the end of the survey, which we coded into 29
categories. Although not generalizable to the overall GAO
population, we noted that more than twice as many respondents
specifically commented that the Band II restructuring was
damaging to employee morale or otherwise provided disincentives
than those that responded that it was the right thing to do,
217 compared to 74.
133 respondents commented that GAO's pay for performance
system is damaging to employee morale or otherwise provides
disincentives, while 80 respondents said that they believed
that PFP at GAO is helpful or worthwhile.
108 respondents noted their belief that PFP ratings are
inaccurate. 107 respondents noted their belief that GAO
employees should receive the same cost of living adjustment as
employees at executive branch agencies.
Staff also used the narrative comments to express other
concerns, such as GAO losing talented staff because of the
recent changes, GAO's overall processes being discriminatory,
lack of trust overall, locality pay decisions being flawed,
concerns about the lack of domestic partner benefits, and
concerns about the treatment of communications analyst
positions under the restructuring.
It is important to note that some narrative comments
conveyed positive thoughts, including the belief that the
Comptroller General should be given credit for moving the
agency in the right direction, that GAO has excellent benefits,
and that our work is cutting edge.
In conclusion, I would like to end with a personal
observation, having served on the EAC for over 4 years. From my
perspective, it wasn't surprising that Band II A staff reported
more unfavorable responses, particularly as it relates to the
compensation ranges and the Band II restructuring. It is also
not surprising that African American staff generally had less
favorable responses, since we know that African American staff
had expressed concerns with the disparities in appraisal scores
leading up to the restructuring.
But more than just confirming what was perhaps the obvious,
it is notable that staff at all levels and in all positions,
not just Band II A and not just African American staff,
expressed concerns about transparency levels, the
restructuring, COLAs, and locality pay decisions.
Having worked on the content analysis myself, it was
striking to me that while more Band III staff responded that
they felt their own personal contributions were highly or very
highly valued compared to Band II A staff, Band III staff were
also among those who shared concerns with the PFP system and
the Band II restructuring providing disincentives or otherwise
being damaging to morale, or that the PFP ratings are
inaccurate.
It is clear from the survey's high response rate and the
voluminous narrative comments that staff at all levels and in
all positions and of all races that they appreciated the
subcommittee's interest and the opportunities to share their
thoughts, both positive and negative, with you directly. On
their behalf, I thank you.
This concludes my statement, and I am happy to answer any
questions.
Mr. Davis. Thank you very much, Ms. Jones.
[The prepared statement of Ms. Jones follows:]
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Mr. Davis. Ms. Smith.
STATEMENT OF JANET C. SMITH
Ms. Smith. Chairman Davis and members of the subcommittee,
I am pleased to be here today to discuss the U.S. Government
Accountability Office African American and Caucasian Analysts'
Performance Assessment Study, Tasks 1 and 2.
My name is Janet Crenshaw Smith, and I am president of Ivy
Planning Group.
In 2002, GAO issued a solicitation seeking a third-party
assessment of the factors influencing the performance rating
average differences between African American and Caucasian
analysts. Ivy Planning Group was retained by GAO as the prime
contractor for this contract; SRA International is the
subcontractor to Ivy.
This project was divided into three tasks. We have
completed the first two.
Task one is an analysis of 2002 to 2006 performance data
for African American and Caucasian analysts. The purpose of
this task is to confirm that there were differences between the
ratings of African Americans and Caucasian analysts. The Ivy
team performed a statistical analysis to determine if there are
significant differences in the performance ratings of the two
groups.
Task two is an assessment and comparison of abilities,
education, engagement roles, and performance of new GAO analyst
hires and onboard employees rated from 2002 to 2006. The
purpose of this task is to determine if African American
analysts and Caucasian analysts have the same abilities and
backgrounds when they arrive at GAO and to begin to look at
what happens to them during their tenure at GAO.
The Ivy team evaluated key characteristics to determine if
both groups are equal at time of hire; controlled statistically
for differences in education, experience, key roles and gender;
assessed rater demographics on outcomes; and reviewed human
capital processes for consistency with agency goals.
Task three is an assessment of internal and external best
practices in implementing performance management systems, and
preparation of a final report that brings tasks one, two, and
three together. Task three involved looking at best practices
in the private sector, the Federal sector, and within GAO;
collecting qualitative data from African American and Caucasian
analysts and raters at GAO; and presenting our overall
recommendations to GAO. We are scheduled to present our final
report at the end of next month.
I will discuss tasks one and two today. However, as the
project is really the culmination of all three tasks, I look
forward to having the opportunity to return to discuss with you
task three and the final report and particularly Ivy's
recommendations in the future. I will report where we are in
the project, highlighting a few points around what we have
learned thus far.
First, yes, there are differences in ratings between
African American analysts and Caucasian analysts in general.
Also, by competency, pay band, team, location, and regardless
of the race of the rater. And the differences are statistically
significant.
There are some differences between African American
analysts and Caucasian analysts at their time of hire. They
come from different schools and proportionally do not have the
same level of education. Please note that our data on school
and degree are based on the highest degree earned by the
analyst and that, while most analysts earned their highest
degrees prior to being hired, some analysts may have earned
their highest degree after joining GAO.
We also learned that the same factor impacts African
American analysts and Caucasian analysts ratings differently.
For example, having a Ph.D. has a statistically significant
positive effect for Caucasian analysts but no effect for
African American analysts. Caucasian analysts receive a ratings
benefit from being assigned to high-risk projects, compared to
African American analysts who receive no statistically
significant effect of having been assigned to a high-risk
project. African American analysts with some college but no
degree receive no statistically significant negative ratings
correlation, compared with Caucasian analysts with some college
but no degree who do.
The final report will provide our full synthesis and
analysis of the data in the context of our overall findings
and, more importantly, our recommendations to mitigate these
differences.
I look forward to continuing the open communication with
you and your staff and reporting those findings. Thank you for
the opportunity.
Mr. Davis. Thank you very much, Ms. Smith.
[The prepared statement of Ms. Smith follows:]
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Mr. Davis. We will proceed to Ms. Harpp.
STATEMENT OF JACQUELINE HARPP
Ms. Harpp. Thank you, Mr. Chairman.
Mr. Chairman and Ms. Norton and members of the
subcommittee, my name is Jacqueline Harpp; and I am a senior
analyst on GAO's Education, Workforce and Income Security Team.
I am also a representative of GAO's newly elected union,
including a bargaining unit of about 1,900 employees,
affiliated with the International Federation of Professional
and Technical Engineers [IFPTE].
I am pleased to be here today to discuss GAO's reforms and
the impact on staff of human capital transformation efforts,
such as the restructuring of one pay band under pay for
performance, changes to employee classification and
compensation using a market-based pay study, and proposed
legislation that is before the Congress today, referred to as
the Government Accountability Office Act of 2007.
Over the past 2 years, GAO employees have experienced major
changes in the way we do our work and how we are compensated.
The restructuring of Pay Band II analysts and the use of a
market-based pay study have led to charges of unfair treatment
as Federal employees with respect to pay and discrimination
based on race and age in job classification and pay.
While GAO employees continue to have a tremendous respect
for the agency and the service GAO brings to the Congress and
the American people, GAO's analysts have formed GAO's first
bargaining unit to address our concerns, and now we have a way
to ensure that our concerns are heard and actions are taken.
A summary of our major concerns are: GAO employees' pay
should be on par with that of other Federal employees.
Employees' purchasing power should be protected, particularly
since this has been a longstanding promise and a key selling
point for the pay for performance initiative. Major changes in
personnel systems should be assessed to ensure that employees
or groups of employees are not harmed by the use of criteria
that would put them at a distinct disadvantage.
GAO has a long history that show disparities in performance
appraisals of African Americans, and job leadership
opportunities have varied widely for all staff. Yet these two
criteria were central to restructuring positions and pay of
about 800 employees, leading to charges of discrimination based
on race and prohibited personnel practices because employees
believed they had been demoted without cause.
We applaud GAO's efforts to examine the reasons for
disparities in ratings, and we look forward to a briefing on
the results of the study. We appreciate and endorse the
legislation proposed to remedy concerns raised with GAO's
implementation of its new authorities, pay parity and
protection of employees' purchasing power. The minimum
requirement of a floor guarantee to ensure pay parity will be
very helpful as the GAO Employees' Organization and GAO
management bargain for future negotiated pay agreements.
We endorse retroactive compensation to those employees
denied full annual pay adjustments in 2006 and 2007 as provided
in this legislation; and we would ask, Mr. Chairman, that
pending employee grievances or discrimination complaints
involving issues in addition to or other than the denial of
past annual adjustments be held harmless in this legislation.
We also support the legislative provision for a statutory
Inspector General, along with requirements to ensure
independence of the Inspector General, the Office of
Opportunity and Inclusiveness, and the Personnel Appeals Board.
The GAO Employees' Organization stands ready to work with
GAO management to ensure that the needs of the agency, the
Congress, and the American people are met. We appreciate the
opportunity to testify before you today and look forward to
working with you to help ensure that GAO continues to improve
its transparency, employee communications, as well as its pay
and performance management systems.
Mr. Chairman, I want to thank the members of this
subcommittee, other Members of Congress, and your staff for the
support you have provided GAO employees from the time the first
person contacted you about individual concerns over 2 years ago
through the entire unionizing efforts. Members of this
committee and others made it clear that our rights to organize
would be protected, and for that we are especially grateful. We
appreciate the Members and staff who were empathetic to our
concerns and did not brush us aside as just a few disgruntled
staff.
Today is an historic occasion for GAO employees, since it
is the first time a member of GAO's newly formed union is
testifying before a congressional committee.
This concludes my statement, and I will be happy to answer
any questions.
Mr. Davis. Thank you very much.
[The prepared statement of Ms. Harpp follows:]
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Mr. Davis. I want to thank each one of you for your
testimony.
Mr. Copeland, let me ask you. You have testified before the
subcommittee regarding the personnel reforms and Band II
restructuring at the Government Accountability Office. In your
opinion, would the lump sum payments and the pension changes in
my draft legislation make whole the GAO employees who met
expectations but did not receive their annual across-the-board
increases in 2006 and 2007?
Mr. Copeland. Mr. Chairman, I would first like to point out
that CRS doesn't take a position on any legislation. But,
technically, I have reviewed it; and it appears that, in
general, the lump sum payments and the pay adjustment
provisions would, in general, make those employees whole vis-a-
vis other GAO employees who had their PBC as annual--as bonus
payments in those years. That is correct.
Mr. Davis. Also let me ask you, if GAO employees received
the floor guarantee in the future, which is similar to what GAO
and the union agreed to implement this year, what impact do you
think it would have on GAO's overall performance-based
compensation program?
Mr. Copeland. In 2006 and 2007, GAO funded the performance-
based compensation program in part by reducing the size of the
annual adjustments. And so the annual adjustments are provided
on par with the GS increases, and the amount of funds available
for performance-based compensation would be less, which means
either the performance-based compensation bonuses would become
less, fewer people would receive them, or both.
Mr. Davis. In H.R. 3268, GAO included a provision that
would remove the current Executive Level IV cap and allow GAO
employees to be paid up to Executive Level III. As a result
non-SES GAO employees' maximum salaries would go from $149,000
to $158,000. What do you think of this provision?
Mr. Copeland. I would note that the Executive Level IV cap
currently affects GS employees in 12 locality pay areas across
the government. So GAO is not the only agency that is affected
by the Executive Level IV cap. And next year if current trends
continue, then five more pay areas will be covered. If GAO is
granted this relief, then it is likely that other agencies will
seek similar types of relief.
Mr. Davis. Thank you very much.
Ms. Jones, I thank you for your testimony. Let me ask you,
what was the survey response and how many respondents took the
time to write comments for the open ended survey question and
how meaningful are the survey's response rates?
Ms. Jones. The overall survey response rate was 71 percent,
which is almost identical to the survey response rate for GAO's
employee feedback survey. And we consider that a very good
response rate, especially considering employees' previous
concerns with survey confidentiality.
We had 1,113 respondents to actually provide narrative
comments to the open ended question. And having been a part of
the two-person team that did the content analysis, I can tell
you that they were voluminous. And they were indeed thoughtful
and considerate of the issues going on at GAO, and I would even
characterize many of them as passionate. It was clear to me in
reading them that they really wanted the Congress to hear their
concerns.
Mr. Davis. In your opinion why was there a higher non-
response rate for Asian and African-American employees?
Ms. Jones. Well, as I mentioned in my testimony, my oral
testimony, I wasn't surprised at that fact at all. As I
mentioned a few moments ago, there have been previous concerns
with survey confidentiality across the board at GAO, but that
concern is always heightened for minority staff because
generally there are fewer of them on the teams. And so there is
the concern that they can more readily be identified
personally. And so often they choose to not respond to surveys
at all or they choose not to respond to the demographic
questions.
Mr. Davis. Are you saying that in your experiences that
minority staff have a tendency to have a higher level of
concern about retribution?
Ms. Jones. Yes.
Mr. Davis. And that may mitigate against revealing
information?
Ms. Jones. Right, I believe that to be true. And even
though in our testimony, our full written statement and the
products that we previously supplied to your staff, we noted
concerns with under representation of the staff and we noted
concerns with the missing demographic information. However,
since our response rate is essentially identical to the
employee feedback survey response rate, I'm not sure--I have no
evidence that it is any different for our survey than it is for
any other survey at GAO or for that matter any survey at
another agency. I think that's a concern that is across the
board with minority staff that they can be personally
identified and in some instances they fear retribution and
retaliation.
Mr. Davis. How do you reconcile the majority of negative
comments to the survey with the previous high marks on the GAO
employee feedback survey that in 2007 led to GAO being second
place on the best place to work survey?
Ms. Jones. I think GAO staff were very honest. I think they
answered questions with integrity. They can give credit when
credit is due. And when there are concerned they can provide
negative feedback. I think that was the case with our survey.
We asked--we touched a nerve, so to speak, by asking questions
about very sensitive topics such as the Band II restructuring
and the PFP system and the lack of COLAs, and the staff stood
up and expressed their concerns about those issues.
On the other hand, the best places to work survey has a
much more limited focus and essentially asks considering
everything how satisfied are you with your job. And GAOers,
they are very satisfied with their work, they feel that they
are providing a great service to the Congress and to the
taxpayer. So it is clear that on the one hand they could be
very satisfied with their job, but still have very serious
concerns with a Band II restructuring and with loss of COLAs
and the PFP system.
Mr. Davis. Thank you very much.
Ms. Smith, let me ask you, the Ivy Group consulting/
training company that specializes in diversity strategy and
change management, would you recommend an agency implement
personnel reforms that would impact employees' promotions and
pay if it had evidence of rating disparities based on race?
Ms. Smith. Well, Mr. Chairman, we will be making
recommendations next month after we have fully synthesized the
information. But certainly if we find that there are
differences that we can attribute to race that are unfair, we
will make recommendations to the agencies to address any of
those disparities.
Mr. Davis. And those findings would then obviously at least
raise a red flag in your mind or in the mind of you and your
colleagues?
Ms. Smith. Would you repeat the question, please?
Mr. Davis. If you found such disparities, would they at the
very least raise what I will call a red flag in the minds of
you and your colleagues?
Ms. Smith. Well, in task 1 and task 2 we have already found
that there are differences in the performance ratings of
African American analysts and Caucasian analysts. However, we
have not found answers to the why. In fact the data can say
that there is a difference, the data doesn't necessarily
explain the differences. So our recommendations can address
those differences and performance ratings without necessarily
understanding why the differences exist.
Mr. Davis. Would you view that information as certainly
being helpful and directive for management as it continues to
program and make decisions?
Ms. Smith. I do believe that our recommendations will be
helpful to management and to the analysts in terms of assisting
them in their career, their transition and actually delivering
the work.
Mr. Davis. Thank you very much.
Ms. Harpp, let me ask you, the subcommittee staff has been
working on pay adjustment provisions for fiscal year 2006 and
2007, the GAO employees who met expectations but did not
receive an across-the-board adjustment for those 2 years. What
are your views on the retroactive provision that we've included
in the legislation that I'm introducing, and do you think it
will effectively address the problem?
Ms. Harpp. Mr. Chairman, while we believe that a full
remedy would have been to include the across-the-board increase
that staff had in addition to the performance-based pay that
they have received, we feel that the retroactive provision
provided in the legislation represents a compromise that will
provide additional compensation to our employees now and in the
future, and we support it and thank you for providing that to
the employees.
Our understanding in the legislation also is that it will
not effect any outstanding claims that GAO employees have that
relate to discrimination and/or placements or promotions that
have--that are included in these claims. And so employees are
happy to support the legislation.
Mr. Davis. Thank you very much. And let me ask you, what
are your views on the across-the-board floor guarantee?
Ms. Harpp. We support the floor guarantee. We feel this
concept gives us a minimum threshold to ensure that GAO
employees, through a combination of GAO across-the-board and
increase in performance-based pay, will receive the percentage
of their salary that many Federal employees received just by
coming to work every day. So we are very pleased with the floor
guarantee and that it assures that everyone who performs
satisfactorily at GAO, which is a high standard, will have
their purchasing power not eroded as was the case with
management decisions made in 2006 and 2007.
Mr. Davis. Do you have the same feeling that was expressed
with the hope that it might put to rest the anxiety or
controversy surrounding whether or not individuals can simply
expect with a tremendous amount of reliability that if they
meet expectations that they will and shall indeed receive their
cost of living adjustment?
Ms. Harpp. Yes, sir, Mr. Chairman. We do believe that will
go a long way to relieving the anxiety of staff, because in the
past with the Comptroller General's discretion as to how he
would divide the pot of money for pay staff were concerned
particularly with the ranges, where some staff would not be
subject to getting any across-the-board, so this will greatly
assist staff and relieve their anxiety.
Mr. Davis. Well, let me thank all of you for your
participation, as well as your patience. Our hearings seem to
be getting longer and longer and it requires an amount of
patience to be a part of them, but we certainly thank you and
we look for to seeing you again soon. And this hearing is
adjourned.
[Whereupon, at 5 p.m., the subcommittee was adjourned.]
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