[Senate Hearing 109-681]
[From the U.S. Government Publishing Office]
S. Hrg. 109-681
FULFILLING THE PROMISE? A REVIEW OF
VETERANS' PREFERENCE IN THE
FEDERAL GOVERNMENT
=======================================================================
HEARING
before the
OVERSIGHT OF GOVERNMENT MANAGEMENT,
THE FEDERAL WORKFORCE AND THE DISTRICT
OF COLUMBIA SUBCOMMITTEE
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MARCH 30, 2006
__________
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
_____
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Michael D. Bopp, Staff Director and Chief Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Chief Counsel
Trina Driessnack Tyrer, Chief Clerk
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
GEORGE V. VOINOVICH, Ohio, Chairman
TED STEVENS, Alaska DANIEL K. AKAKA, Hawaii
NORM COLEMAN, Minnesota CARL LEVIN, Michigan
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Andrew Richardson, Staff Director
Richard J. Kessler, Minority Staff Director
Nanci E. Langley, Minority Deputy Staff Director
Emily Marthaler, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Voinovich............................................ 1
Senator Akaka................................................ 3
WITNESSES
Thursday, March 30, 2006
Hon. Dan G. Blair, Deputy Director, Office of Personnel
Management..................................................... 5
Hon. Charles S. Ciccolella, Assistant Secretary for Veterans'
Employment and Training, U.S. Department of Labor.............. 6
James McVay, Deputy Special Counsel, U.S. Office of Special
Counsel........................................................ 8
Richard Weidman, Director of Government Relations, Vietnam
Veterans of America............................................ 22
Joseph C. Sharpe, Jr., Deputy Director, National Economic
Commission, The American Legion................................ 25
Brian E. Lawrence, Assistant National Legislative Director,
Disabled American Veterans..................................... 26
Alphabetical List of Witnesses
Blair, Hon. Dan G.:
Testimony.................................................... 5
Prepared statement........................................... 33
Ciccolella, Hon. Charles S.:
Testimony.................................................... 6
Prepared statement........................................... 44
Lawrence, Brian E.:
Testimony.................................................... 26
Prepared statement........................................... 78
McVay, James:
Testimony.................................................... 8
Prepared statement........................................... 49
Sharpe, Joseph C., Jr.:
Testimony.................................................... 25
Prepared statement........................................... 71
Weidman, Richard:
Testimony.................................................... 22
Prepared statement........................................... 60
APPENDIX
Questions and answers submitted for the Record from:
Mr. Blair.................................................... 80
Mr. Ciccolella............................................... 88
Mr. McVay.................................................... 91
Mr. Weidman.................................................. 95
Mr. Sharpe................................................... 100
Mr. Lawrence................................................. 104
FULFILLING THE PROMISE? A REVIEW OF VETERANS' PREFERENCE IN THE FEDERAL
GOVERNMENT
----------
THURSDAY, MARCH 30, 2006
U.S. Senate,
Oversight of Government Management,
the Federal Workforce and the
District of Columbia Subcommittee,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:37 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. George V.
Voinovich, Chairman of the Subcommittee, presiding.
Present: Senators Voinovich and Akaka.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. The Subcommittee will please come to
order. Thank you for coming. Today's hearing, ``Fulfilling the
Promise? A Review of Veterans' Preference in the Federal
Government'' continues this Subcommittee's commitment to
oversight of the Federal workforce. The purpose of today's
hearing is to evaluate one of the most important civil service
protections, veterans' preference.
I would first like to thank my good friend, Senator Akaka,
who has served as my partner in many civil service reform
initiatives. I would also like to thank him for requesting
today's hearing. As a veteran himself and the ranking member of
the Senate Committee on Veterans' Affairs, our Nation's
commitment to veterans holds a very personal interest to him.
Since its inception, this country has recognized the
special sacrifice of veterans. To this end, our Nation has
taken the necessary steps to provide for their health and well-
being due to service-related injuries. We have also established
safeguards and mechanisms to ensure that our veterans are
afforded professional, vocational, or technical opportunities
upon completion of their military service.
Near the conclusion of the Civil War, Congress passed the
first veterans' preference legislation for qualified disabled
veterans for a position in the Federal Government. Although not
a veteran myself, I understand the importance of honoring
veterans, and particularly in my case our Ohio veterans and
their families. As Governor of Ohio, one of my first actions
was to create the Governor's Office of Veterans' Affairs. This
office was the first of its kind in Ohio to provide services
for veterans seeking Federal benefits and overseeing State laws
pertaining to veterans.
I brought the office to the 30th floor, which is where the
Governor's office is situated, and gave it a high profile so
everybody knew that we meant business. The first man to serve
as director of this office was my good friend, the late Dave
Alstead, a Vietnam veteran, who did an absolutely fantastic job
in that office.
I also lobbied for legislation during my first term
establishing a special task force during times when the
National Guard and Reserves were activated. The Ohio Military
Activation Task Force assisted the dependent families,
employers and employees of Guard and Reserve members with needs
that may arise in their absence, and that task force continues
today.
We didn't have to set up a special task force when we got
involved in Afghanistan and Iraq because the group is ongoing.
I strongly believe we must take care of those who serve when
they return from duty. Furthermore, in Ohio, we facilitated
private sector job fairs for veterans and declared several
periods, Veteran Week periods.
In other words, the government has to get the private
sector to try and help our veterans. I also developed the
Veterans' Bill of Rights, and a 1-800 number with the Ohio
Bureau of Employment Services to assist veterans in finding
employment.
As Governor, Commander-in-Chief of the Ohio National Guard,
I felt duty-bound to honor our veterans. I had the distinct
privilege of dedicating the Congressional Medal Grove at Valley
Forge, Pennsylvania. How many have been to the Congressional
Medal Grove? It is an unbelievable way to honor our National
Medal of Honor recipients.
They couldn't get a governor to go to Valley Forge to
dedicate it. They have a provision that says, ``If your
governor won't come, we won't dedicate it.'' I will never
forget that day, and Ray Allman was one of our Congressional
Medal of Honor winners who is still alive and was over there.
It was a very emotional experience I had that day.
When I became Governor, I was also surprised to learn that
the only veterans' memorial on the grounds of the State House
were to commemorate veterans from the Civil War and one from
the First World War. There was nothing to honor our veterans
from the Second World War, Korea, Vietnam, or Desert Storm.
So when we undertook the renovation of the State House, a
site was reserved to build the Ohio Veterans' Plaza. We now
have a very fine memorial to our veterans. It will be there for
other veterans who served us.
In 1992, Ohio established the Nation's first Veterans' Hall
of Fame, which is run by the Governor's Office of Veterans'
Affairs. Again, we wanted to honor veterans at that Hall of
Fame, and those annual events are something that I will always
remember.
We, in Congress, continue to recognize the service,
sacrifice, and dedication our veterans have made to our Nation.
As a result, Congress continues to evaluate and improve upon
the opportunities for veterans to continue their service by
facilitating their entry into the Federal service.
Congress most recently clarified veterans' preference laws
in the 2006 Defense Authorization Act, which ensures preference
for veterans which have served in operations in response to
September 11 through the conclusion of the Operation Iraqi
Freedom. As the number of our veterans grows, it is imperative
for us, in Congress, to evaluate new laws and consider their
implementation by the government to ensure veterans are
afforded the opportunities promised.
While it is impossible for us to adequately express our
gratitude to the brave men and women who have served our Nation
in the Armed Forces, and their families, the government must do
all it can to care for these brave individuals. And I share
their commitment.
I am really anxious to hear the testimony of our witnesses.
No one should refrain from being critical. One of the reasons
why we are having this hearing today is to find out how are we
doing. And what are we doing that we could improve upon?
I would like to turn this over to Senator Akaka for his
opening statement.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you very much, Mr. Chairman. It is a
pleasure to work with you on the Subcommittee on Government
Management, Federal Workforce, and the District of Columbia.
I sincerely appreciate your willingness to hold today's
hearing on veterans' preference. I know you share my commitment
to helping our Nation's veterans. Through our discussions this
afternoon, we will have the opportunity to review veterans'
preference which, as you mentioned, has been in effect since
the Civil War.
I also wish to thank you for your continued leadership in
making the government an employer of choice. I enjoy being your
partner in this joint endeavor, and look forward to the days
ahead as we work together on this Subcommittee.
As a veteran and the ranking member of the Senate Committee
on Veterans' Affairs, I understand the importance of ensuring
that the Federal Government fulfills its promise to our
veterans. I firmly believe that young men and women will serve
in this Nation's all-volunteer military only if they see that
the veterans who have come before them are treated with the
respect that they have earned through selfless service.
One area where this is especially true is veterans'
preference in Federal employment. We know all too well the
sacrifices our veterans made for their country. While we must
do much more to keep our promise to provide health care to our
veterans, the Federal Government also has an obligation to
support returning members of the Armed Forces in finding
employment and guaranteeing that their time in the military
does not count against them.
Although many modifications and enhancements have been made
to veterans' preference, the basic premise is the same,
ensuring that America's veterans are not disadvantaged because
of military service. Veterans' preference recognizes the
economic loss suffered by those who have served their country
in uniform and acknowledges the larger obligation owed to
disabled veterans.
The good news is that the Federal Government is a leader in
hiring veterans. According to the Office of Personnel
Management, there were nearly 454,000 veterans employed by the
Federal Government in fiscal year 2004, representing 25 percent
of the Federal workforce. According to the most recent data on
the civilian labor force, veterans comprise only 9.4 percent of
the private sector work force.
However, once you subtract the roughly 231,000 veterans
hired by the Department of Defense from the total number of
veterans in the government, it is clear that the Federal
Government as a whole has room for improvement. To ensure that
the government retains its role as a leader in hiring veterans,
we must work to improve recruiting and placing veterans in
professional positions, as only 4,200 of the 43,000 veterans
hired in 2004 received such jobs. This number pales in
comparison to the 24.8 percent of veterans hired for
administrative positions, the 23.2 percent hired for clerical
positions, and the 21.9 percent hired for blue collar
positions.
Currently, veterans are provided a preference in hiring and
a protection in a reduction in force. However, I have heard
from concerned veterans that, one, the system to ensure
veterans' preference is not working as intended. Two, agencies
are trying to avoid hiring veterans, and are using surrogate
systems for RIFs. And, three, the new personnel regulations at
the Department of Defense will adversely impact veterans'
preference. For example, I have heard from employees at the
U.S. Forest Service and a management association at the U.S.
Postal Service that their agencies appear to use involuntary
reassignments to circumvent applying veterans' preference in a
RIF.
I look forward to discussing some of these issues with our
witnesses today and exploring ways to address these concerns.
With over 1.2 million members of the Armed Services having been
deployed to fight the wars in Iraq and Afghanistan, this
hearing is timely.
Again, I appreciate Chairman Voinovich calling today's
hearing to review how well veterans' preference is working,
both in theory and in practice. If problems need to be
addressed, let's do it now before more of our troops come home.
Our veterans deserve no less.
In closing, Mr. Chairman, I want to thank our witnesses. I
appreciate the work of our Federal partners, the Office of
Personnel Management, the Department of Labor, and the Office
of Special Counsel. Together, they provide the framework to put
veterans' preference into practice. I am especially pleased
that we are also joined by representatives of the veterans'
service organizations, who have a long and proud tradition of
working on behalf of those who put themselves into harm's way
to protect us all.
I thank you again, Mr. Chairman, for this hearing, and look
forward to hearing the testimony of the witnesses.
Senator Voinovich. Thank you, Senator Akaka.
We have a tradition here of swearing in the witnesses.
[Witnesses sworn.]
Senator Voinovich. Time is always at a premium in the
Senate. One of the things Senator Akaka and I don't know is
when they call votes to the floor, so we like to move things
along so everybody has a chance to at least be heard. I would
ask the witnesses to limit your oral statements to 5 minutes,
and I am going to be really tough today about it, 5 minutes,
and you know that your complete written testimony will be put
into the record.
Our first panel, we have Hon. Dan Blair, the Deputy
Director of the Office of Personnel Management; the Hon.
Charles Ciccolella, the Assistant Secretary of Labor for
Veterans' Employment and Training of the Department of Labor;
and James McVay, Deputy Special Counsel, Office of the Special
Counsel. We are very happy that you gentlemen are here today.
Mr. Blair, will you proceed?
TESTIMONY OF HON. DAN G. BLAIR,\1\ DEPUTY DIRECTOR, OFFICE OF
PERSONNEL MANAGEMENT
Mr. Blair. I would be happy to.
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\1\ The prepared statement of Mr. Blair appears in the Appendix on
page 33.
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Our mission at the Office of Personnel Management (OPM) is
to ensure that the Federal Government has an effective civilian
workforce. To accomplish this, we are dedicated to assuring
compliance with Merit System principles, including veterans'
preference laws and regulations. This Administration and OPM
are committed to ensuring veterans receive all rights and
benefits to which they are entitled under Federal employment
laws.
The Federal Government serves as the Nation's largest
employer of veterans. According to our recent statistics, the
government employs more than 456,000 veterans out of our work
force of more than 1.8 million. Internally at OPM, we have one
of the highest veterans' employment representations among
independent agencies.
While the numbers appear good, we have worked hard over the
last 5 years to invigorate compliance with veterans' preference
laws and regulations. To do this, we conduct audits of
agencies' practices, as well as auditing agencies' human
resources authorizations. Enforcement and compliance are key
aspects of our program. We also have focused on building strong
relationships with the veterans' service organizations (VSOs).
To this end, I meet on a quarterly basis with the VSOs to
address important veterans' issues and to provide an
opportunity for the VSOs to share their concerns.
We also are proud of our efforts directed at the agencies
in support of veterans. For example, we worked closely with the
Department of Defense (DOD) to preserve veterans' preference
rights in workforce shaping and reductions in force in the new
National Security Personnel System (NSPS). Further, we
coordinated with the Department of Veterans' Affairs to reduce
the paperwork burden placed on veterans in determining
eligibility for employment preferences. Critical to the
enforcement and compliance partnership is our partnership with
the Department of Labor to resolve veterans' preference
complaints and veterans' reemployment issues.
Federal agencies today have seen an increasing number of
their employees continuing to serve in the military through
their Reserve service. In an effort to encourage agencies to
assist these employees when activated, OPM initiated a program
in which we asked agencies to pay both the employee and
government shares of the Federal Employee Health Benefits
premium during this period of activation. I am pleased to
report that all 114 Federal agencies and departments have
heeded this call.
My written statement goes into great detail about OPM's
specific actions in support of veterans. For example, our
outreach efforts at the military's Transition Assistance
Program Centers and our staffing of an office at the Walter
Reed Army Medical Center to serve as a point of contact to
provide employment information and counseling to veterans. We
also have worked to make our USAJOBS web site more veteran-
friendly, by providing prominent links to veterans' employment
information and web resources at agencies and elsewhere.
These are just a few of the efforts that are covered in
detail in my testimony. We are very proud of the work that we
have done in this area, and will continue to make our efforts
even greater throughout our government, in order to make the
Federal Government the Nation's leader in veterans' employment.
Thank you for this opportunity to testify. I will be happy to
answer any questions.
Senator Voinovich. Thanks, Mr. Blair. Mr. Ciccolella.
TESTIMONY OF HON. CHARLES S. CICCOLELLA,\1\ ASSISTANT SECRETARY
FOR VETERANS' EMPLOYMENT AND TRAINING, U.S. DEPARTMENT OF LABOR
Mr. Ciccolella. Thank you, Mr. Chairman. And let me say
before I begin that I appreciated your opening comments. I
believe the Senate has no finer advocates for veterans than
Senator Akaka and yourself.
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\1\ The prepared statement of Mr. Ciccolella appears in the
Appendix on page 44.
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Having been to Ohio a number of times, I can tell you that
the traditions that you have started have carried on. In fact,
from my recent visit, you might be interested to know that your
workforce system actually runs a transition program, in
addition to the transition program that we run for returning
veterans. So it is a very good program.
Thank you for the opportunity to appear, sir. I want to
say, first of all, that we are absolutely committed to
veterans' preference in the Federal Government. We believe the
government does have a good record on veterans' preference and,
as Senator Akaka mentioned, one in four employees, about 25
percent of our Federal Government are veterans.
It is the job of our organization, the Veterans' Employment
and Training Service, to work collaboratively with OPM and the
Office of Special Counsel and all of the Federal agencies, and
we are champions of veterans' preference. We are also committed
to ensuring that veterans receive all their rights and benefits
to which they are entitled under the Federal employment laws.
At Veterans' Training and Employment Service (VETS), which
is our organization, we regularly communicate that to all
Federal agencies in our outreach efforts, and in our primary
responsibility for investigating and attempting to resolve
veterans' preference complaints against the Federal Government
that are filed under the Veterans' Employment Opportunity Act.
The VEOA or Veterans' Employment Opportunity Act provides
that a veteran or any preference-eligible person who believes
that their rights have been violated under law or regulation
may file a written complaint to us. We then investigate that
complaint. I can assure you we have very highly trained
investigators who do that, and the investigations are through.
I have discussed the investigative process in my testimony,
and so what I would like to do is just talk a little bit about
veterans' preference trends. I think that is where the
Subcommittee wants to go.
There are many complaints that are filed with our
Department that are determined to have no merit. There is
actually good news to that, and there is also bad news. The
good news is that we think the Federal agencies, from our
outreach to these Federal agencies, are actually observing and
applying veterans' preference. But there is also some bad news,
and the bad news is that there is still some confusion about
who is eligible for veterans' preference and the details about
veterans' preference. That is particularly true of our recently
separated veterans.
One reason for that is because veterans don't understand,
in many cases, that veterans' preference doesn't apply to the
in-house promotions, the merit promotions. It applies primarily
to the open competitive promotions. The other thing is that
sometimes agencies don't respond to veterans in a timely manner
with regard to whether they were or were not selected, and so
we get complaints in that regard. Then sometimes a veteran is
not qualified for the position, and when that is the case, then
there is not much that we can do.
What we are trying to do in working with OPM, because they
have a major effort in this regard, is to improve the Federal
agencies' knowledge of veterans' preference and, just as
importantly, the use of special hiring authorities for bringing
veterans in noncompetitively. And we think we are making big
progress in this area.
We have improved our outreach to veterans themselves with
regard to the veterans' preference through the military
transition points at the TAP employment workshops. We have very
good on-line resources, and veterans preferences is also
covered in the Federal application process.
Thus, we are not only visiting the transition points and
talking directly to our separating service members, but both
OPM and DOL also have electronic tools or advisors that
actually coach an individual through those programs so they
know whether they have a veterans' preference complaint or not.
In many agencies, especially at DOL and OPM, the secretary
or director of the agency has encouraged the use of special
hiring authorities. That has resulted, I believe, in
significant increases in the number of veterans, and
particularly disabled veterans and special disabled veterans,
in the Federal Government.
I would conclude by saying that I cannot stress enough how
important our collaboration is with OPM, the Office of Special
Counsel, and with the Federal agencies. It is the only way that
things get done in the government. But, more importantly, I
think all agencies, and particularly DOL, OPM, and I know the
Special Counsel as well, are dedicated to ensuring that all
Federal agencies do apply veterans' preference and they do make
use of the special hiring authorities.
That concludes my statement.
Senator Voinovich. Thank you very much. Mr. McVay.
TESTIMONY OF JAMES McVAY,\1\ DEPUTY SPECIAL COUNSEL, U.S.
OFFICE OF SPECIAL COUNSEL
Mr. McVay. Thank you, Mr. Chairman, for the opportunity to
discuss how the Office of Special Counsel, OSC, promotes
veterans' preference under Titles 5 and 38 of the United States
Code. The Special Counsel extends his respect and gratitude to
this Subcommittee for providing OSC with such an incredible
responsibility.
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\1\ The prepared statement of Mr. McVay appears in the Appendix on
page 49.
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At OSC we honor the commitment and sacrifice of these noble
Americans. One cannot spend 5 minutes at Walter Reed or
Bethesda Naval Hospital without an overwhelming sense of
gratitude, awe, and an understanding of our clear commitment to
these American warriors.
It is my goal to leave you today with an understanding of
our commitment to these laws and the people they are designed
to affect. We, at OSC, perform our mission by enforcing the
Uniformed Services Employment and Reemployment Rights Act,
USERRA, to ensure that they are not discriminated against
because of their status as service members. We also protect our
veterans under Title 5, the Civil Service Reform Act, relating
to veterans' preference laws during the job application
process. Allow me to explain how we have improved our
enforcement of these important laws.
With the passage of USERRA in October of 1994, Congress
expanded OSC's role as protector of the Federal merit system
and the Federal workforce. In cases where we are satisfied that
the service member is entitled to relief, we may exercise our
prosecutorial authority and represent the claimant before the
Merit System Protection Board.
When the Special Counsel took office, he made it a high
priority to champion service members' rights. We were startled
to learn that not a single USERRA case had ever been filed for
corrective action before the Merit System Protection Board by
OSC. Several of these cases had been in OSC for years. Within a
few short months we had filed three cases before the Merit
System Protection Board and obtained full corrective action for
the aggrieved service members.
Let me tell you about one. The preference in this case, the
claimant, a full time staff nurse serving under a temporary
appointment, alleged that her agency had violated USERRA by
terminating her employment because she was excessively absent
from the workplace due to her military obligations. The agency
argued that term employees were not covered by USERRA. OSC
filed an action before the MSPB and successfully obtained full
corrective action for the claimant, namely, back pay, and
expunging her record of any derogatory comment in her official
personnel file. The agency also agreed to USERRA training for
their managers.
As you know, in late 2004 Congress further expanded OSC's
role in enforcing USERRA. Pursuant to a demonstration project
established under the Veterans Benefits Improvement Act of
2004, OSC now has the exclusive authority to investigate
Federal sector USERRA claims brought by persons whose social
security number ends in an odd-numbered digit.
Given these additional investigate responsibilities, OSC
has established a USERRA unit as part of the organization of
our agency. The USERRA unit is the investigative and
prosecutorial unit for all matters pertaining to USERRA and
veteran-related employment issues.
We have also stepped up our technical assistance and
outreach through modification of our web site. We have created
a new electronic filing form and a new web-based help line for
answering USERRA-related questions. We have also conducted
educational outreach to several agencies and Federal employment
seminars. The Federal Counsel's goal is to improve the
awareness of Federal managers of these important laws.
Here is just one of the examples of the 26 cases where our
USERRA unit has obtained full corrective action. In this case
the claimant was a member of the U.s. Air Force Reserve. She
applied for two jobs with an agency. During her job interview,
the selecting official noted that she was a member of the Air
Force Reserve and asked her if she could be activated. She was
honest. The claimant was not selected for either job. However,
she did accept another job outside of that agency.
Our investigation indicated the claimant would likely have
been selected for the jobs, and the selecting official's
comments and question suggested that the claimant's Reservist
duties were the reason for her non-selection. The agency paid a
lump sum settlement amount reflecting her loss of pay from the
time the claimant would have been selected until the time the
claimant began her current employment.
As I commented earlier, OSC also provides relief under
Title 5 of the United States Code to veterans under our
authority granted in the Civil Service Reform Act, again noted
as prohibited personnel practices. Section 2302(b)(11) forbids
managers from taking, or failing to take, a personnel action if
it would violate a veterans' preference law. However, OSC's
role with respect to these allegations is limited to seeking
disciplinary action against offending managers in appropriate
cases. By statute, the Office of Special Counsel has no
authority to help service members obtain corrective action.
In closing, I want to thank the Subcommittee for allowing
me to testify today. I truly believe the issues we are focusing
on today cut to the core of our values as a Nation. According
to Congress in enacting USERRA, Federal employers should be
model employers in this regard. OSC strives to hold agencies to
that high standard. Thank you.
Senator Voinovich. Thank you, Mr. McVay.
We will begin the questioning with 5-minute rounds.
I think Senator Akaka mentioned this new National Security
Personnel System has raised concerns that it would be used to
avoid veterans' preference. One of the things that I was
concerned about when we went from the rule of three to the
categorical hiring was that it would be used to circumvent
veterans' preference. Mr. Blair, how many agencies are using
it? I know the last time I looked, it wasn't very many.
Mr. Blair. I can not tell you how many agencies are but I
do know that is in our strategic plan. We are going to get all
agencies up and running on category ratings.
Senator Voinovich. At the time there was some concern that
somehow we were going to diminish the effort to uphold
veterans' preference. To my knowledge, we haven't had a
complaint on that, but maybe we will in the testimony later
this morning.
Mr. Blair. With category rating and ranking, it is a
simplified form, as opposed to the rule of three. And, under
category rating, ratings go to the highest division in their
respective category. For instance, if you have categories of
minimally qualified, qualified, and then best qualified,
veterans would float to the top of each of those respective
categories, depending on how their qualifications are
determined. If you are a disabled veteran, you would float to
the very top of the highest quality category. In other words,
you float to the top of that best quality category.
The preliminary data that we have seen or evidence that we
have seen is that veterans fare better under category rating
and ranking than they do under the rule of three. Veterans
service organizations expressed some trepidation at first about
moving to this area. They voiced that quite clearly to us and
we heard those concerns. So we are watching to make sure that
it is not being used as a subterfuge to get around veterans'
preference. We believe at this point, that it is probably
better for veterans than under the old rule of three.
Senator Voinovich. I would like to get an update on the
status of implementation of categorial hiring in the
government. I think the law has been in effect for a couple of
years.
Mr. Blair. It has been.
Senator Voinovich. I know it was very controversial and
they said we would never get it done, and we did.
Mr. Blair. Yes we did.
Senator Voinovich. I think that has helped a great deal.
Mr. Blair. It has. I would like to say that at our recent
workforce conference we had one session devoted specifically to
category rating and ranking. This session was held to ensure
that agencies know how to use it and what not to do when using
it. We also emphasized the application of veterans' preference
during that breakout session. So the information is out there,
and we will be holding agencies' feet to the fire to make sure
that they are using that flexibility correctly.
Senator Voinovich. One of the things that is always of
concern to me, is how frequent is the contact with veterans'
organizations? In other words, there are benefits that accrue
to veterans in the Federal Government, all kinds of them. But
how often do you make sure that you get that information to the
veterans' organizations?
For example, I constantly hear web site, web site, web
site. I don't know how many veterans have computers. How much
communication is there throughout the country? Do you have a
regular, formalized program to make sure that veterans, in all
three of your cases, are familiar with what is available in
terms of jobs and so on, so that they can take advantage of the
system?
Mr. Blair. At OPM we have quite regular contact on multiple
levels. For instance, I chair our veterans' service
organization quarterly meetings. We have between 15 and 20 of
the VSOs come in. We have an established agenda that we talk
about, that is worked out beforehand, and go through that. For
instance, we briefed the VSOs on the new personnel systems at
the Department of Homeland Security and the Department of
Defense. Our next meeting will be in April. We have not set
that date yet, but it is done on a quarterly basis.
Although that is at a higher level, that is my contact with
the VSO representatives. We also have a dedicated staff member
at OPM who serves as a liaison with the veterans' service
community as well. He is in constant contact, on a daily basis,
with the VSOs to act as a pulse-taker, to ensure that we have
an open line of communications.
If we have briefings on matters of mutual concern, we will
call them in for situations like that. We also have gone beyond
the Washington, DC area. When we did our job fairs, we placed
special emphasis on veterans' hiring. We even had a veterans'
hiring symposium a couple of years ago, in which we brought in
the agencies to make sure that they understood how to use
category rating and ranking, and to understand the meaning
behind veterans' preference and how important it is. I remember
a couple of years ago, we had one of our first meetings at
Walter Reed Medical Center. The purpose behind that was to
emphasize the commitment that the Federal Government has to
returning veterans.
So, it is a multi-layer process that we have. I am quite
proud of the progress we have made over the last 5 years. I
know that when I went into OPM, I was struck by the level of
suspicion and ill-will that was expressed towards OPM, because
there was a great level of distrust. I think the VSOs can speak
better to that, but I hope that we have done a good job at
displacing that. Are we always going to agree on every issue?
That's why we have these meetings--to express those comments
and try to work through those disagreements.
Senator Voinovich. My time is up. Senator Akaka, I
understand that we have a vote going on. Would it be OK if I
went to vote? And you just take as much time with the
questioning as you want, and then you can go vote. Is that all
right for you?
Senator Akaka. Yes. Thank you very much, Mr. Chairman.
Mr. McVay, current law provides that OSC may take action
against an agency only when the agency knowingly--and I stress
knowingly--violates preference laws. Acording to the VSOs the
term knowingly undermines the effectiveness of this law. My
question is, how many disciplinary action cases has OSC brought
against agencies for violating veterans' preference? What was
the final outcome of these cases?
Mr. McVay. Thank you, Senator, for that question. I will
tell you I can only answer in the last year and a half since I
have been there. I didn't know I would be asked this, but I can
certainly get some of that information to you.
I will tell you that in the last year and a half there has
been one case filed for disciplinary action for violation of a
veterans' preference. And before that, frankly, it had been
quite some time. But since the current Special Counsel took
office, there has been one. Before that, it has been quite some
time. That case was filed and actually settled before it went
to trial with that manager, and that manager took discipline
and actually took quite a bit of time off as part of the
discipline.
Senator Akaka. So that was one case that was filed?
Mr. McVay. That is correct.
Senator Akaka. How has the word ``knowingly'' impacted
enforcement of veterans' preference?
Mr. McVay. Keep in mind, Senator, that we only have
authority to discipline managers, which can be anything from
suspension all the way up to debarment from Federal service.
And when we are talking about debarring somebody with Title 75
protections, they have a lot of due process rights. And so with
that understanding, I believe the statute was written to make
sure that they could only be disciplined when there was a
knowing violation, an intentional violation, if you will, of
veterans' preference laws.
Now, if we had authority to get corrective action for
complainants, there would probably be a different standard,
just like in whistle-blower reprisal cases, where the standard
is somewhat lower. When we are simply getting corrective
action, such as back pay, expungement of the official personnel
file for disciplinary actions taken in reprisal, for example,
it would probably be a lower standard.
But, considering the fact that we are talking about
debarment, there is probably a necessity for us to show that
the manager really had an ill mind, if you will, mens rea
almost in the criminal sense, when they made the decision to
not use the veterans' preference law. Otherwise, frankly, would
you be disciplining managers for making mistakes.
Senator Akaka. Thank you.
Director Blair, you mentioned that OPM has quarterly
meetings with veterans' service organizations to discuss issues
important to veterans. What are three recurring issues that the
VSOs bring up at these meetings? And what steps has OPM taken
to address these issues?
Mr. Blair. I have our January agenda with me, and it was an
update on the NSPS. As you know, the regulations at that point
were about to be finalized. So, we wanted to give the VSOs an
update.
Another issue is compliance issues, to make sure that the
VSOs understand our role in the compliance process where
complaints--if there are complaints, who handles such
complaints, if it is us or if it is the Department of Labor,
what our roles are in auditing agencies, when we are looking at
what we call the Delegated Examining Unit of the authorities--
that is the authority for an office within an agency to hire
without having to go through OPM--or if it was a full-blown
audit of an agency's resources operations. We talked about our
recent report to Congress that we issued on the employment of
veterans.
I think this is fairly representative of the issues that we
have discussed with VSOs over the course of the last 3 years
that I have been doing this. These are issues that come to the
forefront, whether they are core issues or hiring issues. I
think we have had several sessions on category rating, exactly
what it is and what it is not.
But the bottom line is this is a great opportunity for both
sides. For OPM to bring in the program folks who are charged
with directing these programs, to let the VSOs know who the
faces are behind these names, and also for them to have one-on-
one interaction with VSOs. These can be quite lively meetings,
as they should be. I think over the course of the last few
years we have elicited very good will between the
organizations, knowing that we can not agree on everything but
knowing that there will not be surprises, and they will always
know who to call in case there are situations which demand
immediate attention.
Senator Akaka. You mentioned the VSOs and we have here
three VSOs on the next panel.
Mr. Blair. Yes.
Senator Akaka. What are the issues raised regularly by VSOs
as common problems?
Mr. Blair. An update on the NSPS was done in January. We
have done updates on the Department of Homeland Security. We
did a presentation on the draft ``Working For America Act.''
What are we doing in terms of our audit? A few years ago we
did a complete audit report. We did a briefing on that as well.
We did an overview on our 2004 report to Congress on our hiring
of veterans. Those are just examples of things that have come
up during the VSO meetings.
Senator Akaka. Mr. McVay, I reviewed the OPM report on the
employment of veterans in the Federal workforce but did not see
the OSC listed. Can you tell me how many veterans currently
work at OSC?
Mr. McVay. No, I can not. I will tell you that recent
hirings have included multiple veterans, and frankly I have
been on several of the boards where there have been a lot of
veterans hired in the Office of Special Counsel. But if you
want me to, I will be glad to get that information to you.\1\
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\1\ The information appears in a letter dated November 20, 2006, on
page 105.
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Senator Akaka. Will you please have it for the record?
Mr. Ciccolella, you testified that VETS entered into an MOU
with OSC in the year 2000, requiring that any meritorious
veterans' preference cases be automatically referred to VETS
for review as a potential prohibited personnel practice. Mr.
McVay states that VETS refers cases to OSC involving egregious
violations of veterans' preference rights. As a point of
clarification, are all violations sent to OSC, or only the
egregious ones? And if the latter, what criteria does VETS use
to determine if the case is serious enough to warrant
disciplinary action?
Mr. Ciccolella. Senator Akaka, if during the process of our
investigation, and in looking at the hiring process, which is
what our responsibility is, to determine whether a veterans'
preference has been applied, if we make a merit determination,
we obviously try to resolve the case right there. Sometimes we
can, sometimes we can not. If we can not resolve the issue, we
will then take the other route of working with the client, the
complainant, to buck it up to the Merit System Protection Board
and beyond that.
It doesn't matter what the violation of veterans'
preference is. If we make a merit determination, whether the
agency complies with our request for them to resolve it in
favor of the veteran or not, we inform the Special Counsel's
office and provide the case to them to review. The Special
Counsel's office reviews it for prohibited personnel practices,
i.e., any violation of the 12 very clearly codified prohibited
practices. At that point we continue on, obviously, with the
settlement of the case if we can.
With regard to the kinds of egregious violations, we don't
find a significant number of egregious, willful violations. But
it is very clear when an agency has violated veterans'
preferences.
Senator Akaka. Thank you for that.
Mr. Blair, employees at the Forest Service and the Postal
Service have contacted me about involuntary reassignments that
appear to be directed at veterans as a way of circumventing the
prohibition on designer reduction in force (RIFs). I raised
this issue with OPM Director Springer, who advised that this
practice does not violate veterans' preference laws. However, I
believe that even if it does not violate the law technically,
it still violates the spirit of the law.
Have you heard of this happening at other agencies? And
what can be done to ensure that this process does not turn into
a designer RIF?
Mr. Blair. I do remember seeing the letter that you sent to
Director Springer and the response that she sent back to you.
At this time I am not aware of any practices like that at other
agencies, and I would say that any effort to target veterans as
a subterfuge to veterans' preference, if it is intentional,
would likely be a prohibited personnel practice. However, if
these are done as an effort to mitigate the effects of a
reduction in force, I think that you need to be careful to make
sure that the efforts you are doing do not exacerbate the
impact of a reduction in force.
While we have not seen it at other agencies, you mentioned
the U.S. Postal Service and the Forest Service. I am not aware
of any other instances where that has occurred. I also would
say that you need to look at the totality of the circumstances
in which the situation occurs and make sure that if any actions
are taken, that you are not doing anything to give greater
impact to the disruptive effect that a reduction in force has.
Senator Akaka. I would tell you that I would appreciate a
meeting of the chief human capital officers on this issue of
veterans' preference, and look forward to that.
Mr. Blair, I have also heard from veterans that agencies
will often cancel vacancy announcements once it is determined
that a veteran will get the position, and then reopen the
announcement after the job description and requirements have
been tailored to a particular person who is not a veteran.
To the best of your knowledge, how many times has an agency
returned a certificate unfilled? And how many of those were
withdrawn for a valid business reason?
Mr. Blair. We look at those things when we do our audits of
agencies, and particularly, when we do what we call our
Delegated Examining Unit (DEU) audits. That is one piece of
evidence that we look for if we are looking for violations of
veterans' preference.
If we can see a pattern developing where an agency or an
office in an agency is returning certificates unused because a
veteran topped the certificate, or any other evidence
indicating an intent to violate veterans' preference, that is
something that we would turn over to the Special Counsel's
office, as well as looking at withdrawing their DEU authority
or other corrective actions. I can not tell you for certain how
many agencies have done that, but those are things that we do
look at. We do about 120 to 130 Delegated Examining Unit audits
a year. So, those are things that we look for and would pick up
on as evidence of violations of veterans' preference.
Senator Akaka. Mr. Blair, last year the Merit System
Protection Board ruled that the hiring of an individual under
the Outstanding Scholar Program violated the veterans'
preference rights of qualified veterans. I understand that OPM
has asked the MSPB to reconsider that decision. Can you tell me
why OPM is asking MSPB to reconsider the case? And how many
individuals are hired under the Outstanding Scholar Program
each year?
Mr. Blair. In Fiscal Year 2004 there were approximately
1,000 appointments under the outstanding scholar authority, as
opposed to 43,000 veterans that were hired in Federal service.
So overwhelmingly, for every one outstanding scholar
appointment there are 43 veterans hired. I think that gives you
a perspective in which you can evaluate this.
As far as OPM's intervention with the Merit System
Protection Board and our request for reconsideration, I can
tell you that Outstanding Scholar is the product of a consent
decree that is approximately 25 years old. I am kind of limited
as to what I can say about this because it is the subject of
current litigation--but we have always used Outstanding Scholar
as a supplement to the hiring process, and it should not
supplant veterans' preference. We see the two as coexisting
within the same framework, although there are some natural
tensions between the two.
Senator Akaka. Mr. Ciccolella, can you walk us through the
process of reviewing a veteran's claim that an agency has
violated veterans' preference laws? For example, do you always
talk to the veteran, review the veteran's performance files,
and review the personnel file of the individuals who were hired
instead of the veteran?
Mr. Ciccolella. Certainly, Senator Akaka.
First of all, VETS does not make a determination of the job
qualifications of the veteran. That is not within our
jurisdiction. With regard to the process, the complaints can
come to us in a number of ways. They can come on our toll-free
help line. They can come through the veteran employment
representatives, the DVOP or LVER, for example, in Hawaii. An
individual can also file a veterans' preference complaint
electronically. They can come through our State directors.
We do talk personally with the veteran at that point in
time because you have to verify the individual's eligibility.
Have they filed a complaint within 60 days? If not, how do we
sort that out? And you can get a little bit of information with
regard to whether the veteran may have veterans' preference.
Some do and some don't.
Then we immediately start gathering information, the
selection certificate, for example. It doesn't take a lot of
time. If there is a denial letter, or the information from the
job announcement, or how the agency has informed the
individual, we will get all of that information.
Then we will formally notify the hiring authority, and we
will tell them what our authority is. We may visit with them.
We may ask them who was selected, why that individual was
selected. Did they bypass veterans' preference? Was veterans'
preference applied? Did they use categorical rating criteria?
Or did they use the rule of three? Did they pass over a
preference-eligible? Our investigators are pretty good at
determining that.
It becomes very clear when you're looking at the process
whether or not there is an anomaly or a problem. If we find
merit, then we will immediately try to resolve the situation
with the employer, the agency, and the veteran. Sometimes we
can, sometimes we can not. If we can not, we will then help the
veteran refer their case to the Merit System Protection Board.
If it does have merit, and we can work it out, then we will
seek whatever remedy there is, including any back wages or
placement.
Senator Akaka. Thank you very much, Mr. Ciccolella. I have
to run and vote now, but I will return.
Mr. Ciccolella. I apologize. It's sort of a long process.
Senator Voinovich. One of the questions that I am going to
ask the second panel is, how would they characterize their
organization's relationship with Federal agencies, the Office
of Personnel Management, Department of Labor, and the Office of
Special Counsel? I got into that a bit before, but I would like
all of you to clarify just exactly how do you think they are
going to answer that question?
Mr. Blair. I would hope they would characterize their
relationship with OPM as one of being a straight shooter. We
are not always on agreement on things. However, they will get
accurate and timely information from us. I think that is the
best that you can ask from an agency like ours--that we
understand the importance of that constituency.
We have worked hard to build trust that was not there
before, and I am pleased with the relationship that I,
individually, have with a number of the representatives of the
VSOs. So, I think that we have done a good job. We can always
do a better job, but I think the most important thing is to
keep the lines of communication open and make sure that
communication is fair, accurate, and timely.
Senator Voinovich. Mr. Ciccolella.
Mr. Ciccolella. We have a pretty good relationship with the
veterans' organizations. We try to get the VSOs together.
Senator Voinovich. What does ``pretty good'' mean?
Mr. Ciccolella. I would say they would rate 8 or 9. We have
a very open line of communication. We have regular
communications with them. We try to meet monthly or every 2
months. They get part of the agenda. We get part of the agenda.
We not only meet with them, but we also try to make sure that
we address their legislative conferences, their service
officers conferences, and we try to get the Secretary or a very
high level official out to their national conferences.
So we are in regular dialogue with them. But, frankly, Mr.
Chairman, it would be very difficult to do my job if we didn't
have an open dialogue with the veterans' service organizations.
They are enormously helpful to us.
We have a program called REALifelines, which seeks to
employ the most seriously wounded an injured service members.
Veterans' service organizations are very helpful in that
regard.
They are extraordinarily helpful because they have good
outreach to homeless veterans. And the veterans' service
organizations actually have homeless veteran task forces. They
are very well organized. So they complement our Homeless
Veteran Reintegration Program.
Senator Voinovich. What is that called, again?
Mr. Ciccolella. The Homeless Veteran Reintegration Program.
Senator Voinovich. The one before that.
Mr. Ciccolella. The REALifelines program. It is a program
we started about 2 years ago out at Walter Reed. We have
stationed veteran employment representatives at Walter Reed and
Bethesda, Madigan, Brooke Army Hospital, Balboa, and now we are
putting them into the medical holding companies, so that as
these folks come back and they are seriously wounded, while
they are waiting for discharge or their evaluation boards, we
can get them interested in employment, especially if they are
going to leave the service.
We have a network of veteran employment representatives
around the country. Many of those veteran employment
representatives are members of the DAV, the American Legion,
and the VFW. So that is a network that we can actually refer
those individuals to get jobs. So far we have put a little
fewer than 100 of the most seriously wounded--I am talking
multiple amputees, even brain-injured service members--and
their spouses into employment.
So the veterans' service organizations are instrumental, in
that effort, and they are very instrumental in the compliance
area. They are very interested in veterans' preference. I think
their view of veterans' preference is that it is not broad
enough. So we have a regular dialogue with them about that.
An area that is just as important for me is the USERRA
area, the Uniformed Services Employment and Reemployment Rights
Act, because as you know we have had half a million Guard and
Reservists in particular being mobilized. A lot of those are
young people, and they come back, and some are not employed.
But if they are employed, they get their jobs back when they
come back.
The veterans' service organizations also can be very
helpful in terms of when and if an individual comes back and
they have issues or problems. If they know about what the
reemployment regs are, they can connect that veteran to us, and
it is very helpful.
Senator Voinovich. First of all, I want to say that this
REALifeline is wonderful. I don't get out there often enough. I
get out there maybe once a month to Walter Reed. I go down and
meet men and women recovering there. They have that fantastic
rehab center. It is amazing what they are doing.
But you meet them and they say, ``I wanted to have a career
in military service. I'm not going to be able to have one.''
And the first thing in their mind is, ``I need a job.'' They
have to know that there is somebody out there that cares about
them. I think that the stress level is reduced substantially if
they can talk to somebody and they know somebody is going to
look out for them because they appreciate what they have done
for our country.
Mr. Ciccolella. Sometimes we can not get them employed
right away, but it is very important that we are there for
them. One of the things they may need is funding. So we may be
able to help their spouse get employed until they are ready to
get employed. So it is a good program.
Senator Voinovich. The other thing is the National Guard
people that are coming back and the Reservists. Are they
familiar with their rights? Are you hearing any complaints such
as, ``I'm getting hassled about my job.'' Would that be brought
to their Adjutant General or do they bring that to you?
Mr. Ciccolella. Yes. They can certainly take it to the
unit--the National Guard has a good structure for receiving
those complaints. If it is going to require an investigation,
it comes to us. The Defense Department has a national committee
of volunteers around the country. In Ohio, you have General
Hartley up there, who really has a very good program for this.
You have about 6,000 National Guard who are deployed from Ohio
at any given time.
Senator Voinovich. The point is, that if I come back and I
am having a hard time with my employer, most of the time that
is going to be handled on the State level and it won't usually
get kicked up to you?
Mr. Ciccolella. No, actually, not so. We have a network of
Federal staff in every one of the States. We make sure that
prior to mobilization, all National Guard and Reserve are
briefed on their employment and reemployment rights. When they
return, during the demobilization process, we also provide them
at least a one-hour presentation on what their employment and
reemployment rights are and how to find assistance. If they
need assistance, then either us or the ESGR people will open a
case on them. ESGR does informal case work. We do formal
Federal investigations.
You asked about what the trends are. Before September 11,
we were doing 900 investigations every year. During the Gulf
War, the first Gulf War, we were doing 2,500 for those 2 years,
1991 and 1992. After September 11 we had a very significant
mobilization. And so about April 2003, when the first of the
Guard started coming back, we found that the investigation
numbers went up. They went up to almost 1,500 cases a year in
2004. And then in 2005 they went down to about 1,250.
During the first Gulf War we had one complaint and one
investigation for every 54 returning Guardsmen and Reservists.
Now, I am not talking about the guys who do their weekend
drills. I am talking about the people who are actually
deployed. Now we are at 1 in 81, so we are doing better. We put
new rules out about USERRA that are extremely good and easy to
understand. We have got a tremendous outreach effort to the
employer community and the service members.
Senator Voinovich. When they get called up, do they get a
letter that they give their employer that explains what they
are doing and what their rights are?
Mr. Ciccolella. The law, the way that works is that an
individual who is called up, is supposed to provide advance
notice to the employer. Most of the time that is possible.
There are a few cases where it is not possible, and if that is
the case, then the employer can get whatever proof he or she
needs from the military, a set of orders or whatever.
But the point is, if the individual is called up and
mobilized, there is no penalty to that individual. So it
doesn't require a letter. We encourage the advance notice
unless the individual can not do that, and DOD does the same
thing.
Senator Voinovich. It is helpful for reservists and
employers to have a call up letter. Everyone is better able to
understand what is happening.
Mr. McVay, what about you? On a scale of 1 to 10, how would
the veterans organizations rate you?
Mr. McVay. Let me make sure you understand. Our position in
the process has always, historically, been at the back end, so
we have little if any relationship with veterans' service
organizations, because when we got the cases, it was time to
either prosecute or not prosecute. It was with the individual.
However, since the demonstration project we have been given
in essence half, or the odd-numbered social security numbers of
USERRA cases, we have, if you will, contacted some of these
organizations, let them know that we are out there, that we are
now in the game and that we are interested. If they want to,
they can come directly to us. This is something that we have
actually discussed with Mr. Ciccolella. They know what we are
doing, and hopefully we are building relationships as we go.
That has been the first effort ever for OSC in that regard.
I will also say that every time somebody has gone through
those mobilizations as an enlisted man, you do get the letter.
You get it from your division. And if you are paying attention
when you get demobilized, if you are not sleeping, you get an
education on what your rights are, too.
And so they do get education when they get back. They are
told what their rights are. The military does a very good of
making sure of that because they are an advocate for these
people. The First Sergeant of each company, I assure you, looks
at each one and says, ``You're going to a class and you're
going to learn about your USERRA rights.''
Senator Voinovich. Thank you.
Mr. Blair, if I asked you what Federal facility in the
United States is not doing the job they are supposed to be
doing, could you answer the question?
Mr. Blair. With regard to?
Senator Voinovich. There are so many Federal facilities--we
have DFAS in Cleveland, we have DFAS in Columbus, we have a
tremendous number of employees down at Wright-Patterson. Are
you able to communicate to the Department of Defense the record
of some of these various facilities if they do not honor
veterans' preference? In other words, you get statistics
specific enough so that you can tell if somewhere around the
country isn't adhering to the law.
Mr. Blair. We can focus in on it if we hear a number or a
series of complaints. As I was telling Senator Akaka earlier,
we do about between 120 and 130 Delegated Examining Unit (DEU)
audits of various agencies and departments, of offices that do
the hiring. We look at things such as returned certificates to
see if veterans have topped the certificate, to see if there is
a pattern emerging, or to see if they have cancelled vacancy
announcements.
Those are what set off our alarm bells and cause us to say,
``Are you doing the right job? Are you applying veterans'
preference as appropriate?'' In the past there have been some
cases where we have had to go and say, ``Look, we have some
serious problems here,'' or we are finding some egregious
violations, and we have had to lift the Delegated Examining
Unit authority, which basically means they have to go through
others to hire until you remedy their situation.
Senator Voinovich. What you are saying is, that you could
tell me, if I asked you, how the DFAS operation is doing in
Columbus?
Mr. Blair. If we had done a DEU review for that operation,
which I would have to go back and check.
Senator Voinovich. What you are telling me, and I would
like to have it on paper, is if a location has a pattern of
violations, that the penalty is to pull out the hiring
authority? So they loose the control of hiring and firing
personnel?
Mr. Blair. That is one of the penalties. We can order some
corrective action to be taken, and if we find that there was a
violation, OPM would refer it to the Office of Special Counsel
to prosecute.
Senator Voinovich. We should be, in fact we are, looking at
the agencies and how many do performance evaluations on senior
executives. We are moving towards pay-for-performance. But, I
just wonder, is one of the things that they are taking into
consideration, when a manager is being evaluated, is whether or
not they are complying with veterans' preference?
Mr. Blair. I have to go back and see if it is that specific
or if it is more generic, but I would be happy to provide that
for the record.
Senator Voinovich. I would like to find that out, because
one of the best ways that you can get people to do what they
are supposed to do is include it in their performance
evaluation. That is what I did when I was governor and I was
mayor. If managers are being judged on that, then they will
start paying more attention to it. But if they don't think it
is a high priority, and it is just something that is nice to
do, then I don't think you get the kind of response that you
should.
I will say this, and I would be interested to hear what the
veterans' organizations have to say. The numbers that you have
given me are very impressive. I would be interested to know,
what were the numbers before? You've been there now, Dan,
almost 4 years? What was the record under the previous
administration?
Mr. Blair. I think that it has been relatively steady at
about 25 percent of the work force. If you remember, we
downsized during the 1990s. So, the total number of veterans in
the work force, since most of them were World War II VETS or
Korea-era veterans, went down. But the representation in the
work force has stayed relatively steady.
Last year we did see a blip upward. I think you are going
to continue to start seeing higher representation of full-time
hires. We are seeing that a third of the new hires are
veterans. So, I think you are going to start seeing those
numbers increase again as veterans return from the Middle East.
That is on the good side. The flip side is that just
because you have increasing numbers does not mean that the
violations do not exist. We are going to keep the heat up at
OPM on agencies to make sure that they are following the letter
of the law as intended by Congress.
Senator Voinovich. As you know, we have probably done more
to change Title 5 of the Civil Service Act since 1978, a lot of
changes. I have been very much involved in that, along with
Senator Akaka. All through this process we have been concerned
that we maintain the merit system, including veterans'
preference.
The Federal Government has an Outstanding Scholar Program.
We have given more of the agencies the opportunity to go to
college campuses and identify individuals that are really
outstanding and hire them on the spot because we don't want to
lose them to the private sector. We have a real crisis today in
the Federal Government. We have an unbelievable number of
employees who could retire. We are trying, as Senator Akaka
likes to say, to be the employer of choice.
But, we have the Outstanding Scholar Program, and the
purpose of it was to increase representation of African
Americans and Hispanics in non-clerical entry level GS-5 and
GS-7 positions. Through the program, agencies can
noncompetitively appoint college graduates to an entry-level
Federal job if they receive a grade point average of 3.5 or
higher from accredited schools.
However, some suggest that this Outstanding Scholar Program
is being misapplied. Would you please share with the
Subcommittee what steps are being taken to ensure that Federal
agencies correctly apply veterans' preferences to all hiring
decisions for competitive and exempted service positions?
Mr. Blair. It is a kind of affirmative action, trying to
have a well-balanced work force and at the same time make sure
that we maintain our veterans' preference. Specifically, just a
couple of points I want to make because this is a product of
litigation right now before the Merit System Protection Board.
Outstanding Scholars is a product of a consent decree that
was entered into in 1980, in an effort to remedy under-
representation. At OPM we said to agencies that you can use
this Outstanding Scholars appointment authority as a supplement
to your regular hiring. So, if your regular hiring does not
work right, then you can go out and use an Outstanding Scholar.
We have never intended agencies to use it as a subterfuge
or to supplant veterans' preference. Veterans' preference and
Outstanding Scholar have been able to coexisted.
Senator Voinovich. What you are saying is that this program
came about because of a court decision mandating a prospective
remedy for past discrimination. Is that correct?
Mr. Blair. This is an old thing. This has been going on for
about 25 years, the Outstanding Scholars appointment authority.
Senator Voinovich. And today you are trying to make sure
that it doesn't interfere with the application of veterans'
preference?
Mr. Blair. We want to make sure that it doesn't supplant
veterans preference or be used as a subterfuge to it. There is
a court case going on right now before the Merit System
Protection Board, in which MSPB made some rulings. I just want
to limit my comments on this point, given the litigation that
is going on. But the points I did want to make were that, they
have coexisted within this universe for the last 25 years.
There is tension between the two. However, we think that there
is room for both.
Senator Voinovich. I can understand that, because I had a
similar situation in Cleveland, Ohio, with the police and fire
departments, the Vanguard case.
Mr. Blair. The other thing we were pointing this out with
Senator Akaka, he had asked earlier how many Outstanding
Scholar appointments were made. For 2004, we made about 1,000
government-wide Outstanding Scholar appointments. During that
same time, we hired over 43,000 veterans. So for every
Outstanding Scholars appointment, there were 43 veterans hired
under different authorities.
What that is intended to show, is the context in which we
should consider these two programs.
Senator Voinovich. Well, as I have stated to you before,
these reforms that we have made are very significant, and they
have caused some anxiety. As you know, some of the unions have
even taken us to court.
But, we will be going through this whole period, and I
would hope that a year from now or 2 years from now through
oversight, we will have testimony to the effect that the new
personnel system have not interfered with veterans' preference,
and that we have the same kind of report for categorical
hiring, that veterans are doing better under the categorical
hiring than they did under the old system.
Senator Akaka, I had about 16 minutes, you had about 15. Do
you have any more questions? I don't know when the next vote
is, but I would like to hear our second panel of witnesses.
Thanks very much for your appearance here today. I
appreciate it.
Our second panel is Richard Weidman. Mr. Weidman is
speaking on behalf of the Vietnam Veterans of America. Joseph
Sharpe is here on behalf of the American Legion, and Brian
Lawrence is here for the Disabled American Veterans.
I would like to thank all of you for being here today. You
had the benefit of hearing the testimony from folks of the
other agencies, so as we begin the question and answer period,
if you have any comments about some of the things that they
have said, we welcome that.
Mr. Weidman, we are going to start with you.
TESTIMONY OF RICHARD WEIDMAN,\1\ DIRECTOR OF GOVERNMENT
RELATIONS, VIETNAM VETERANS OF AMERICA
Mr. Weidman. Thank you very much, Mr. Chairman, and thank
you Senator Akaka, for holding this oversight hearing as a
comprehensive review of the Veterans' Employment Opportunities
Act passed by Congress and enacted in 1998. We were grateful
back then for the bipartisan effort of Senator Hagel, Senator
Specter, Senator Cleland, and others to get that landmark
legislation through, to try to put some reality back into
veterans' preference.
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\1\ The prepared statement of Mr. Weidman appears in the Appendix
on page 60.
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Subsequent to the Civil Service Reform Act of 1978,
veterans organizations won the battle to keep veterans'
preference on the books, which was a heck of a battle here in
Congress.
Senator Voinovich. When was that?
Mr. Weidman. In 1978, under President Carter. But that's
when we started to lose the ball game, when the corporate
culture started to grow up, which is the HR sections of each of
the Federal departments and agencies. There was also
discrimination allegations that led to the court order that
created the Outstanding Scholar Program referred to before.
There was a perception at that time that veterans'
preference was primarily a white male benefit, when in fact it
is a veterans' benefit. Veterans look like America. We are
every race, we are every creed, we are every national origin,
we are both genders, increasingly so, including in combat
theaters of operation.
And, therefore, to think that there is a dichotomy between
affirmative action and veterans' preference is simply a false
dichotomy altogether, sir. You can accomplish both goals, both
afford the individual earned right of veterans' preference and
meet every single affirmative action goal that an agency might
have.
I would challenge my good friend, Dan Blair, to name me one
Outstanding Scholar who is veterans' preference eligible,
because I certainly have never heard of them. Customarily, it
has been abused to circumvent veterans' preference in the last
25 years, unfortunately so because these should not be things
that are equivocal, whatsoever.
Our problem with the way in which it is and is not
happening at this point is, the accountability for actions does
not seem to be there for Federal managers who violate
individual veterans' preference, and there is not
accountability for agencies that consistently, such as the
Forest Service and Fish and Wildlife, appear to have a terrible
record when it comes to hiring veterans and disabled veterans.
We also worked very hard, and with the assistance of your
colleagues in this body, we are grateful that we were able to
hold off designer RIFs. But now there is a new wrinkle that is
known as the involuntary repositioning rules that will
accomplish the same thing by, as an example, taking someone who
has family ties for four generations in the State of Idaho and
repositioning them in the State of Mississippi, knowing that
they will not take that transfer in order to keep that job, but
rather it was a run-off drill so that person would quit. Or
taking someone from Hawaii and repositioning them in Montana,
when there are strong family ties, that they know they will not
leave the State of Hawaii.
We have great concerns as well----
Senator Voinovich. Are you basically saying, if I
understand this, that through repositioning an employee, who is
a veteran, they can be forced out of his or her job by moving
him or her someplace else, knowing that they will quit their
job?
Mr. Weidman. Well, yes. Essentially, it is a run-off drill
about people they don't care about. It is not so much anti-
veteran, as the favorites of the agencies are herded into one
area, into essentially a no-fire zone, which is exactly what
used to happen under designer RIFs, those they want to keep,
and those who they don't care one way or the other about are
put into a free-fire zone.
Senator Voinovich. But wouldn't that apply to anybody that
they are not really happy with?
Mr. Weidman. That is correct.
Senator Voinovich. So, in other words, what you are saying
is in the process of doing that, with positions they would like
to eliminate, veterans are included?
Mr. Weidman. The veterans are part of the pool, but in many
cases, it is a service-connected disabled veteran. They have to
keep those people first if they go to a formal RIF. Then the
service-connected disabled veteran would probably stay, the
same thing with your veterans.
Senator Voinovich. So if there is a formal RIF, you still
have veterans' preference applies?
Mr. Weidman. That is correct, sir.
Senator Voinovich. In using repositioning, it does not
apply?
Mr. Weidman. That is correct, sir. There is no waiting
whatsoever.
There had been previous talk on making agencies accountable
and I was smiling at that. It was right dead on point, Mr.
Chairman, about why isn't there a computer program to be able
to monitor what is going on in each agency at each locality
around the country? Everything is already computed. It is just
a matter of setting up the system to monitor, to hold agencies
accountable, and we would encourage the Subcommittee to mandate
OPM to do just that. The audits are too much hit-and-miss, and
therefore what is indicative of that is, unfortunately OPM can
not tell you the results of a single one of those audits
because they make so little impact, unless they dig down and go
back and dig it out.
In terms of need of legislation to go further at this time,
to build off of the base of the Veterans' Employment
Opportunities Act, we would ask that you consider, sir, the
elimination of the word ``knowingly'' from the statute
altogether, and to clarify the lines of authority between OSC,
the Office of Personnel Management, OPM, and the Veterans'
Employment and Training Service.
There is great confusion on that, even amongst the three of
them, as to who is responsible for what. When we approach them
with an individual case, that is clearly an egregious violation
of veterans' preference, Labor says it is OPM's job, OPM says
it is Labor's job.
The reporting, for a true picture about what is going on,
the 2004 report to which Mr. Blair alluded, while this report
was being prepared, we pointed out that they were listing all
veterans and not veterans' preference eligibles, and they still
didn't make a distinction in the final report. The gentleman
who was in charge of it was on detail from another office,
which highlights a significant weakness of that. Historically,
unfortunately, that is what OPM has always done, because there
are more veterans than there are veterans' preference eligibles
in the population, and it is very specifically awarded to
wartime veterans only.
Senator Voinovich. Mr. Weidman, can you wrap up? I have
given you a little extra time.
Mr. Weidman. Should I stop?
Senator Voinovich. If you could wrap it up, yes.
Mr. Weidman. So we need reporting and data by grade, by
age, per agency, because those are the key things to get a
picture of what is happening, and whether or not the younger
veterans, who have extraordinary unemployment at the moment of
60 percent or greater, in fact are being picked up and will be
able to move up within the Federal agencies in the future.
There are a number of other things that we would have to
say about that that have to do with making veterans' preference
apply to all pay grades and wage grades in the future, and
every agency being put under measurable performance outcomes
for applying the law.
Thank you very much, Mr. Chairman, for holding the hearing
and for allowing us to present our views here today.
Senator Voinovich. Thank you. Mr. Sharpe.
TESTIMONY OF JOSEPH C. SHARPE, JR.,\1\ DEPUTY DIRECTOR,
NATIONAL ECONOMIC COMMISSION, THE AMERICAN LEGION
Mr. Sharpe. Mr. Chairman and Members of the Subcommittee,
the American Legion appreciates this opportunity to share its
views on veterans' preference in the Federal Government.
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\1\ The prepared statement of Mr. Sharpe appears in the Appendix on
page 71.
---------------------------------------------------------------------------
Congress enacted the Veterans' Preference Act of 1944 to
address the readjustment needs of the men and women who served
their country during the time of war.
The law was designed to assist veterans in regaining the
lost ground suffered in their civilian careers as a result of
military service.
When the American Legion was founded in 1919, one of the
first mandates was to convert the existing patchwork of
veterans' preference laws, administrative rules, and executive
orders into one national policy that would be protected by law.
That goal was realized 25 years later when President Roosevelt
signed the Veterans' Preference Act of 1944 into law.
With the closing of World War II, the Federal Government
enthusiastically complied with the provisions of the new
veterans' preference law. Unfortunately, as time passed and the
memory of war faded, so did America's concern for fulfilling
its obligations to its citizen-soldiers. Today, provisions of
the original legislation and its amendments as codified in
Title 5, United States Code--USC--seem almost nonexistent to
many veterans across the country.
The American Legion believes there are several reasons for
this. A large number of Federal managers do not understand, or
agree, with the reasoning for granting veterans' preference to
those who fought to keep this country free, nor do they
understand or care how this process works.
Veterans' preference laws are intended to give veterans an
advantage over other applicants for Federal positions and
during a reduction in force, RIF. Veterans are disadvantaged
while serving their country. For many years, veterans'
preference laws successfully provided significant advantages,
as intended. However, over many years, agencies have gradually
gained access to appointment methods that do not require
providing preference. Other weaknesses in the current system
relate to enforcement of veterans' preferences, accountability
and disciplinary action for veterans' preference violations,
and the limited appeal rights for violations of veterans'
preference.
The American Legion would like to reiterate how important
veterans' preference in Federal hiring is to returning service
members and veterans. It is equally important that OPM maintain
enforcement power over Federal agencies.
In a time of rapid change, and with the pending departure
of 400,000 service members within the next 2 years, the
American Legion believes that the current structure within OPM,
which is designed to monitor, inform, promote, and enforce
veterans' preference laws, is clearly inadequate. The American
Legion recommends that Congress provide additional funding for
an Office of Veterans' Affairs within OPM, so that it is
adequately staffed and funded. Such an office would better
exercise OPM's mandate to protect veterans' preference.
Mr. Chairman, a grateful Nation created the concept of
veterans' preference for those citizens who served this country
in our Armed Forces. Due to the current war on terror,
thousands of service members of the Reserve component, who make
up 40 percent of the current fighting force in Iraq and
Afghanistan, will now qualify for veterans' preference due to
their extraordinary contribution to the freedoms we all enjoy
as Americans. The American Legion urges the Subcommittee to
send a strong message to Congress to do more to preserve and
protect veterans' preference.
Mr. Chairman, this concludes my statement.
Senator Voinovich. Thank you. Mr. Lawrence.
TESTIMONY OF BRIAN E. LAWRENCE,\1\ ASSISTANT NATIONAL
LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS
Mr. Lawrence. Thank you, Chairman Voinovich. Good
afternoon, Senator Akaka. On behalf of the 1.3 million members
of the Disabled American Veterans, thank you for the
opportunity to present our views on the state of veterans'
preference in Federal employment.
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\1\ The prepared statement of Mr. Lawrence appears in the Appendix
on page 78.
---------------------------------------------------------------------------
Our country has recognized that members of the Armed Forces
deserve special consideration regarding appointments to Federal
positions since the Revolutionary War. Along with rewarding
benefits for their patriotic duties and sacrifices, our
government realized the value in harnessing veterans' inherent
leadership qualities and skills, which are essential to any
successful business or government agency.
Despite statutory requirements providing Federal employment
preferences, we occasionally receive complaints from disabled
veterans who believe their preference rights were ignored or
intentionally circumvented by the agencies, to which they had
applied. Most often such complaints are in reference to the
Outstanding Scholar Program. Many Federal agencies use the OSP
to hire new employees that have maintained college grade point
averages of 3.5 or higher. The program should never take
priority over veterans' preference.
Senator Voinovich. Excuse me just a minute. We have heard
this now, and what I would like to know from you, whether this
is anecdotal or can you show us specific cases where this has
occurred? That is very important to us. In other words, so
often witnesses come here and say this is that. But for us to
really investigate, I need some examples.
Mr. Lawrence. It is anecdotal, largely, but there has been
a lot of it. So many instances of it that we have had
resolutions actually introduced to ban the Outstanding Scholar
Program. There wasn't a resolution that was adopted by our
membership included with our legislative agenda, but it has
risen to that level.
Again, we feel that the Outstanding Scholar Program should
never trump veterans' preference. It lacks the statutory
preference. And, additionally, I don't think maintaining a 3.5
grade point average indicates that somebody would be a better
worker than somebody that served their country in the military.
In my testimony I refer to the Merit System Protection
Board, the MSPB case. We were disheartened that OPM asked for a
reconsideration of that case, and we feel that it sends the
wrong message to the men and women serving in the military.
The Outstanding Scholar Program is probably the foremost
example of ways that veterans' preference has been voided. But
again, I am going largely by anecdotal information here. I
don't have a specific case to mention to you right away.
We appreciate the Subcommittee's interest on these issues,
and we will do whatever we can to help enforce veterans'
preference and see that there is a better upholding in the
future. That will conclude my statement.
Senator Voinovich. Thanks very much.
Would you all agree that Federal managers do not understand
veterans' preference, and why we have it?
Mr. Weidman. No. Many managers do, and God bless them. The
problem is that there is no repercussions for those who either
do not, or those who understand the purposes, but disagree with
the purposes and do not act accordingly with the law.
Senator Voinovich. Do you know whether or not OPM, in terms
of orientation for managers, gives them information through
their chief human capital officers or human resource people?
Has there been a training program so they understand why we
have veterans' preference?
Mr. Weidman. I think most of their training program focused
on that, but it is not a competency based program, number one.
And, number two, at the Department of Labor, some of their
staff--most of their staff I guess has been trained now. But,
none of them have taken any competency based tests about how to
investigate a complaint as to whether someone has a veterans'
preference right, if there is a legitimate case in an agency,
and where there have been repeated complaints from the same
locality, the same agency, whether or not there is pattern and
practice happening at that locality. That means that it is the
given norm there and needs to have significant action.
Senator Voinovich. So you would like to see a follow-up on
this--that gets back to the statistical analysis that I talked
about--so that there would be some coordination between the
Department of Labor and OPM? Maybe Senator Akaka and I can ask
for a report every 6 months or a year that basically talks
about how people are performing?
Mr. Weidman. We are sensitive to the lack of performance,
and we are sensitive to the fact that we are all, to some
degree, flying blind. It is not an affirmative action program.
So the question is, how do you pinpoint the specific cases?
Now, we do get individual complaints, and quite often get a
real run-around, and I can show you some war stories.
Senator Voinovich. I can tell you this. Talking to some
managers that I talk to, they will say to you, ``Veterans'
preference doesn't make any sense. It's not the best way to
manage.'' So there has got to be some education that this is a
policy Congress has decided to do.
I think you heard my comments to Mr. Blair, that as we, the
government, moves into strong employee performance evaluations,
we should include understanding of veterans' preferences, along
with other things they should be measured on.
Mr. Weidman. If I may just say, one thing I would like to
do publicly is commend Secretary Nicholson. In this coming
year, for the first time ever it is a specific, stated goal of
the Veterans' Administration to hire more veterans, overcoming,
I might add, the objections of Office of Management and Budget
of those being included. Office of Management and Budget has
less than 10 veterans working for it, in the entire agency, and
no disabled veterans, so that is where their mind set is at.
They are already putting it into managers' job descriptions
because Secretary Nicholson is serious about it.
It takes that kind of commitment from the top of each
agency, doing what it is supposed to do. But there is no
centralized reporting mechanism on things like the disabled
veterans and affirmative action program. They state what the
goals are, but nobody comes back and says, ``What did you do?''
Senator Voinovich. You would support Senator Akaka and I in
requesting OPM Director Linda Springer to provide the good
examples, role models, among agnecies?
Mr. Weidman. I would say that, yes, sir.
Senator Voinovich. Mr. Sharpe.
Mr. Sharpe. You mentioned earlier about the Outstanding
Scholar Program, if we had any evidence. We are currently
involved in a case now, and one of our assistant directors,
Juan Latta, has brought some hard copies of it, of our
involvement, so we can give that to you after this session.
Senator Voinovich. We would like to have it. If I ask the
NAACP or the Urban League, or other national organizations that
represent minorites, what do you think would they say about it?
Mr. Sharpe. I have spent 22 years in the military, and I
recently returned from Iraq, so I am still in that military
mind-set, so I have no idea what the NAACP or any other group
would say.
Senator Voinovich. This consent decree is prospective
relief for past discrimination. The courts decided that there
was discrimination in the Federal Government. You feel the
program is being abused. I would be interested in knowing what
other organizations think.
Mr. Sharpe. My unit is on its way back to Iraq, and so as
far as I am concerned, I am against the Outstanding Scholar
Program. I don't care who it is for. But I really thing
veterans deserve that.
Twenty percent of the Army is made up of African Americans,
and that is where my loyalty goes. I consider myself an Army
Sergeant, and I am still that. And I feel that this goes
against the grain of veterans' preference.
I have seen too much, and I believe that when these
veterans come back--I have too many people in my unit that are
currently unemployed. I have people that are homeless. I know
too many military folks that are trying to get into the Federal
Government. I have met people in Walter Reed, severely injured,
and they are upset because they have to wait a year to try and
get their applications through to the Federal Government.
Senator Voinovich. So do you have concerns with the
REALifeline program?
Mr. Sharpe. I think it is an excellent program.
Senator Voinovich. But you don't think it is doing enough?
Mr. Sharpe. The problem is that there seems to be a funding
issue with everything. There is a funding issue with OPM. We
feel that there ought to be an Office of Veterans' Affairs.
There is one full-time person. I can not see how one full-time
person can monitor veterans' preference in all the agencies,
even though OPM has made a great effort in trying to do
outreach. The same thing with the Department of Labor. I think
that they are understaffed. The Amerian Legion and other
organizations have been fighting for years for more funding.
I think with more funding, and a greater willingness, on
certain individuals in the government, to ensure that veterans
are ensured of their rights, I think we can solve the problem.
But, I think they are doing a good job with what they have.
Senator Voinovich. I am over my time, Senator Akaka.
Senator Akaka. Thank you, Mr. Chairman.
This is a question to all of you. I asked this question of
Mr. Blair earlier about three reoccurring issues at OPM's
quarterly meetings.
I know there are many issues, but what are three
reoccurring issues that you have at these meetings, and how
would you rate OPM's responsiveness to your concerns? Mr.
Weidman.
Mr. Weidman. One issue that occurs almost every meeting, is
the lack of measured performance outcomes. Most of us in
veterans' service organizations feel strongly that, if you have
these glowing generalities, how do you know if you are making
any progress towards it? That is number one.
Mr. Blair has challenged us to come back exactly with what
you asked, Mr. Chairman, and that is with specific cases. We
are trying to do that through surveys of our own membership, to
the point where, this past month, I ran an ad in the Federal
Times, Army Times, Navy Times, Air Force Times, and Marine
Times, with a special e-mail address, [email protected]. We are
going to continue to do that, but, in the meantime, each agency
has to come from the other end.
Their 1984 report makes certain recommendations. To our
knowledge, there has been no look-back to see whether any of
these has been implemented. And, second, none of them were
quantitative in any manner, shape, or form. And there is no
redress mechanism in the form of an 800 number or a specific e-
mail address that somebody can send an e-mail to and say,
``This is my case,'' and leap over the agency at hand or
whatever the problem may be at the local level to seek redress.
So it is a question of measurable performance outcomes,
lack of redress, and the last, but by no means least, is
concern in regard to trying to get a grip on the specific
scenarios with the new categorical rankings. They have brought
in, to their credit, George Nesterchuck, who is somebody who
worked for Congressman John Mica when we fashioned the
veterans' peference--actually it was first fashioned in 1995
and finally enacted in the 106th Congress. Mr. Nesterchuck is
somebody who we value, and he is working at OPM now, trying to
make sure that there is veterans' preference in the new DOD
system.
Senator Akaka. Mr. Sharpe.
Mr. Sharpe. For the American Legion, we are very concerned
again with accountability: OPM's ability to oversee and
enforce. We are concerned, with their staffing levels, if they
are able to conduct what they need to do. We feel that they
have made an effort, a huge effort, under Kay Coles James and
the current administrator, to do what they could, but we just
feel that this is not enough. They really don't have the
funding, the personnel, or the statutes in place to allow them
to be more effective. I think they are doing the best they can,
with what they have, but I don't think they have enough to work
with. And neither does the Department of Labor.
Senator Akaka. Yes, and in your testimony you did use the
word ``inadequate,'' and you are saying it again. Mr. Lawrence.
Mr. Lawrence. I don't think I can add anything to what my
colleagues have said on that issue, so rather than reiterate, I
will just defer to what they have said.
Senator Akaka. Let me ask the three of you again another
question. You heard Director Blair's response to Senator
Voinovich's question about the impact of category ratings on
veterans' preference. In your view, what has been the impact of
this personnel flexibility on veterans' preference? Mr.
Weidman.
Mr. Weidman. It is unclear. The jury is very much still out
on it. In terms of the initial switchover, if we were asked,
the veterans' service organizations, ``Why are you so paranoid
about that?'' we would have replied, ``If we couldn't trust you
with the rule of one in three, why in the world would we trust
you with the rule of one in three hundred?''
And, until they put into place the performance measures and
ways of monitoring station-by-station to pick up patterns and
practice, to go in and discover where there appears to be
statistical anomalies, then to go in and see if rights of
individual veterans' preference eligibles are being violated,
until they put that in place, we remain even more skeptical
about the categorical rankings.
Senator Akaka. Mr. Sharpe.
Mr. Sharpe. From our viewpoint, the jury, again, is still
out. But we are not sure OPM has enough to be able to
adequately tell us if preference is being violated or not, or
if this is a better system or not. I just think certain things
are not in place to be able to definitely let us know how the
Federal agencies are carrying out their mandates.
Senator Akaka. Mr. Lawrence.
Mr. Lawrence. The DAV hasn't had a specific position on
that issue, so I don't have any comments in that regard.
Senator Akaka. Mr. Chairman, my time has expired, but if I
can ask one more question----
Senator Voinovich. I have a suggestion. I have a commitment
at 4:30, and what I would like to do is continue the hearing
and then you can adjourn it. Is that all right?
Senator Akaka. I will submit questions for the record, so
you may adjourn the hearing.
Senator Voinovich. I want to say I appreciate your
testimony here today. What I would like to do, with Senator
Akaka, is to sit down and get a letter summarizing some of the
issues that were brought here.
One of the things that bothers me about these hearings is,
you guys come in and testify. Then, maybe, we are going to come
back a year from now and do the same thing. I hate to have
hearings without a follow-up.
So I would like to sit down with Senator Akaka. We will try
to draft a letter, it may not include everything that you want,
but, we would be glad to even run it past you to see what you
think about it, and then we will have to decide whether it is
going to be included or not included. Then we will see if we
can get some action on some of these things, particularly with
OPM.
But I want you to know this, that OPM, the Department of
Labor, and some Federal agencies do not have the budget they
need.
One of the things that we have to do here is to figure out
how people can get things done with the budget they have. We
are asking them to do jobs and we don't give them the resources
to do the job. What I found from my experience as a mayor and a
governor, when you say to somebody, ``I want you to do the
job,'' and you don't give them the tools to do it, then
basically what you are telling them is you don't think much of
the job you are asking them to do.
We have got to address this. Director Springer is coming in
next week to see me, and I am going to try to ask her to
identify areas that we are asking her to take care of and talk
about the real resources. This Administration wants us to get
involved in a lot of reforms that are controversial, and I am
unsure if they have the capacity to implement further reforms
well. If they want us to cooperate with them, then I want them
to show me the money.
When we consider the issues of today, and halting illegal
immigration, including more drones, and helicopters. But at the
same that we are talking about doing these things, never have I
heard a Member of the Senate or Congress by the same token say,
``And, by the way, folks, it's going to cost us X number of
dollars.'' So the public doesn't get it.
I learned we are spending $154 million protecting the oil
lines in Saudi Arabia. It just drives me crazy. I call it the
silo effect. There is a silo and there is a silo and there is a
silo. Nobody ever looks at the big picture to see how do all
the silos fit together.
If we don't start looking at the big picture, we are going
to have more trouble. We don't have the right people with the
right knowledge and skills at the right place at the right
time. We have underestimated how important it is to have those
people in place. The most important resource we have in this
government are good workers, management that pays attention to
what they are doing, and the resources to get the job done.
I will adjourn this hearing now, but I want you to know we
are going to work on this. Six months from now we know it is
not going to be one of those deals where you came in to say,
``Well, you saw those guys, and they'll forget about it for a
year.'' We are going to do something. OK?
Senator Akaka. Mr. Chairman, let me just say that your
statement was eloquent, and I can tell it comes out of your
experiences as a mayor and governor, and knowing what happens
in the trenches. Unless we have the personnel and an office
that can handle veterans' preference, then veterans are left
without recourse. Using the words of Mr. Sharpe, agencies
efforts are inadequate.
I know the frustration the Chairman goes through, that we
have these hearings and there is no appropriate answer. I am so
glad, Mr. Chairman, that you are pushing this, and I am with
you on putting a letter together to try to get answers on this.
Senator Voinovich. The hearing is adjourned.
[Whereupon, at 4:35 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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