[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
DEPARTMENT OF ENERGY'S BONNEVILLE POWER ADMINISTRATION: DISCRIMINATING
AGAINST VETERANS AND RETALIATING AGAINST WHISTLEBLOWERS
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
AUGUST 1, 2013
__________
Serial No. 113-75
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
U.S. GOVERNMENT PRINTING OFFICE
86-720 WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected].
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan Vacancy
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on August 1, 2013................................... 1
WITNESSES
The Hon. Gregory H. Friedman, Inspector General, U.S. Department
of Energy
Oral Statement............................................... 8
Written Statement............................................ 11
The Hon. Daniel B. Poneman, Deputy Secretary, U.S. Department of
Energy
Oral Statement............................................... 16
Written Statement............................................ 19
Ms. Anita J. Decker, Bonneville Power Administration
Oral Statement............................................... 23
Written Statement............................................ 25
APPENDIX
Letter from Mr. Daniel P. Boneman to Chairman Issa and Rep.
Cummings....................................................... 60
DEPARTMENT OF ENERGY'S BONNEVILLE POWER ADMINISTRATION: DISCRIMINATING
AGAINST VETERANS AND RETALIATING AGAINST WHISTLEBLOWERS
----------
Thursday, August 1, 2013,
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 9:35 a.m., in Room
2154, Rayburn House Office Building, Hon. Darrell E. Issa
[chairman of the committee] presiding.
Present: Representatives Issa, Mica, Jordan, Chaffetz,
Walberg, Lankford, Gowdy, Hastings, Meadows, Bentivolio,
Cummings, Maloney, Norton, Tierney, Lynch, Connolly and Pocan.
Staff Present: Ali Ahmad, Majority Communications Advisor;
Jen Barblan, Majority Counsel; Molly Boyl, Majority Senior
Counsel and Parliamentarian; Lawrence J. Brady, Majority Staff
Director; Caitlin Carroll, Majority Deputy Press Secretary;
Sharon Casey, Majority Senior Assistant Clerk; Steve Castor,
Majority General Counsel; John Cuaderes, Majority Deputy Staff
Director; Carlton Davis, Majority Senior Counsel; Adam P.
Fromm, Majority Director of Member Services and Committee
Operations; Linda Good, Majority Chief Clerk; Tyler Grimm,
Majority Professional Staff Member; Christopher Hixon, Majority
Deputy Chief Counsel, Oversight; Mark D. Marin, Majority
Director of Oversight; Tamara Alexander, Minority Counsel;
Krista Boyd, Minority Deputy Director of Legislation/Counsel;
Beverly Britton Fraser, Minority Counsel; Jennifer Hoffman,
Minority Communications Director; Elisa LaNier, Minority
Director of Operations; Dave Rapallo, Minority Staff Director;
and Cecelia Thomas, Minority Counsel.
Chairman Issa. Good morning. The committee will come to
order.
We on the Oversight and Government Reform Committee exist
to secure two fundamental principles: first, Americans have a
right to know that the money Washington takes from them is well
spent and, second, Americans deserve an efficient, effective
Government that works for them. Our duty on the Oversight and
Government Reform Committee is to protect these rights. Our
solemn responsibility is to hold Government accountable to
taxpayers, because taxpayers have a right to know what they get
from their Government. It is our job to work tirelessly in
partnership with citizen watchdogs to deliver the facts to the
American people and bring genuine reform to the Federal
bureaucracy.
Today's hearing represents what we would consider the front
line in the whistleblower protection issue. This committee's
efforts, both in bipartisan legislation, the first time in more
than a decade, to pass new whistleblower protection and our
recognition that we need to hold Government accountable to the
American people by protecting whistleblowers when they allege
or uncover wrongdoing. This committee, on a completely
nonpartisan basis, has always sought to protect whistleblowers.
Whether they come forward in a Republican administration or
Democratic administration; whether it points to the Oval Office
or just to the office next door for some harassment,
whistleblowers deserve to be heard and protected.
Two weeks ago, the Department of Energy inspector general
issued a management alert warning about Bonneville Power. We do
not seize on every management alert. We consider the seven day
notification and these kinds of alerts as an opportunity to ask
should we look into this, can we make a difference, is it
appropriate for us to act, because what we see could go beyond
the four corners of the particular agency or because there is
more beneath the surface. In this case, the most important
question for us is when Bonneville Power apparently and
deliberately began disadvantaging veterans and other
applicants. They did something that goes at the very heart of
the Federal employment and hiring systems.
There are more or less one million Americans who put on a
uniform every year and two million who do not. All of them are
Federal employees. But a large number have done both. We have
been well served by men and women who serve our Country at the
risk of life and limb, and then go on to have short, medium, or
very long careers of public service in our civilian workforce.
Certainly, at the Department of Defense, the nexus between what
they learned on active duty and what they do helping those who
are still on active duty is critical.
At the Post Office, the largest single employer of
veterans, men and women every day trust that their mail will be
delivered by people whose integrity is shown by their
willingness to put their life on the life.
Let me be perfectly clear. The primary concern we have
today is the apparent retaliation against whistleblowers. It is
illegal and we won't stand for it. We want to make sure the
truth gets to the American people. We clearly believe in this
case there are two issues: protect the whistleblowers and send
a strong message from this committee that the special and
earned status of hiring for our veterans is in fact codified in
law and universally believed by people on this side of the
dais.
Consequently, this hearing will be the beginning of what
will be a dual investigation, one working hand in hand with the
IG, one in which, as my ranking member and I coined in an
earlier investigation, we will look over his shoulder.
However, we reserve the right to go independent if
necessary. We do so because there are two issues. When it comes
to investigating, IGs have certain privileges and authorities,
but not as many as we have here. For that reason, at the
beginning of this hearing I want to make it clear if the IG
does not get full cooperation in the investigation, or if for
any reason someone falls outside the ability for the IG to get
testimony, we will back that authority up.
The Department of Energy's recent reversal of the
retaliation against personnel is a positive step. I don't want
to let that go unnoticed, but make no mistake: we expect people
not just to be reinstated, but to be treated in a genuine,
appropriate way as people who have done the right thing, not
people who have broken some sort of silence within any agency.
With that, I thank our panelists and ask the ranking member
for his opening statement.
Mr. Cummings. Thank you very much, Mr. Chairman.
Today we are here discussing a preliminary management alert
issued by the inspector general of the Department of Energy on
July 16th related to the Bonneville Power Administration, also
known as BPA. For those not familiar with BPA, it is a unit of
the Department of Energy based in Portland, Oregon that is
self-funded and receives no appropriation. It has approximately
3,100 employees, with no political appointees, and it supplies
electricity from hydro and other types of power plants to
western States, including California, Idaho, Nevada, Oregon,
Utah, Washington, Wyoming, and parts of Montana.
The IG's alert covers two major allegations. First, it
finds that BPA engaged in prohibited personnel practices from
November 20th, 2010, to June 2012. Specifically, the alert
states that BPA's actions resulted ``in the inappropriate
exclusion of veterans and other applicants from consideration
for selection.'' The second major allegation is that ``BPA
initiated questionable adverse personnel actions'' against
employees who raised concerns about hiring problems with the IG
and others.
The IG alert says this: While we are not in a position at
this point to conclude that the actions taken thus far are
retaliatory in nature, we are deeply concerned.
I am also very concerned. We are fighting a war that has
lasted more than a dozen years. American soldiers are arriving
home every day and they face common worries in my district and
districts all over the Country. They ask themselves: How will I
support myself when I take off these fatigues? How will I
support my family when I hang up the boots?
For their service and sacrifice, words of thanks from a
grateful Nation are not nearly enough. We need to continue
moving service members from our armed forces to our workforces
as seamlessly as possible.
In addition, our committee, in particular, takes very
seriously its role with regard to protecting whistleblowers. I
do not want to get ahead of the evidence or the IG's
investigation, and I understand that there have not been any
findings of retaliation, but we have to treat these allegations
carefully, responsibly, and thoroughly. If allegations of
discrimination against veterans or retaliation against
whistleblowers prove true, those responsible must be held
accountable for their actions.
Despite these troubling allegations, I am encouraged with
the proactive nature of the IG's investigation and the very
swift response of the Department of Energy. The IG made two
preliminary recommendations in the alert while they continue
the investigation. First, they recommended that all ongoing
disciplinary actions against BPA staff be suspended until the
IG completes its work and issues its final results. Second,
they recommended that any employees facing removal or
suspension be temporarily restored to their positions.
In response, the Department not only implemented these
recommendations, but took a number of additional steps to
aggressively address these issues. The deputy secretary named a
new acting administrator of BPA, instructed the new
administrator to immediately direct all employees to fully
cooperate with the IG, initiated an immediate review of BPA
management, and suspended all adverse personnel actions pending
further review.
Let me read the IG's very positive assessment of the
Department's actions to date: ``The Department expresses
concurrence with the facts presented, the conclusion reached,
and the recommendations provided in its management alert.
Notably, the Department initiated immediate corrective actions
which were fully responsive to our findings and
recommendations.''
Finally, I understand the limitations of today's hearing.
The IG's conclusions are preliminary. The IG has made it clear
that the investigation is ongoing and we will look forward to a
final report when the investigation concludes. Also, because we
do not have final conclusions, we understand that today's
witnesses may not be able to discuss some issues due to the
Privacy Act and other constraints.
With that, I thank the witnesses for their participation in
today's hearing and I look forward to the testimony.
With that, I yield back.
Chairman Issa. Thank you.
All members will have seven days within which to submit
their opening statements.
We now welcome our first panel of witnesses.
The Honorable Daniel Poneman is Deputy Secretary of the
United States Department of Energy. Welcome.
The Honorable Gregory Friedman is the Inspector General of
the United States Department of Energy and the primary reason
we are here today. Welcome.
Anita Decker is the Chief Operating Officer for the
Bonneville Power Administration, or was, and we will discuss
that further.
Pursuant to the committee rules, I would ask all three of
you please rise to take a sworn oath, and raise your right
hands.
Do you solemnly swear or affirm the testimony you are about
to give will be the truth, the whole truth, and nothing but the
truth?
[Witnesses respond in the affirmative.]
Chairman Issa. Thank you. Please be seated.
Let the record reflect that all witnesses answered in the
affirmative.
Pursuant to ensuring that all witnesses are ready and able
to give testimony, I have just a few questions that are going
to be required for Anita Decker.
We have been informed that DOE believes you are appearing
in your personal capacity. Were you told that?
Ms. Decker. Yes, I was.
Chairman Issa. Ms. Decker, you are currently employed by
the Bonneville Power Administration, is that correct?
Ms. Decker. Yes, Mr. Chairman.
Chairman Issa. Ms. Decker, you are currently being paid by
Bonneville Power Administration, is that correct?
Ms. Decker. This is correct.
Chairman Issa. When were you first hired by Bonneville
Power Administration?
Ms. Decker. In October of 2007.
Chairman Issa. Thank you. Have you been an employee of
Bonneville Power Administration since then continuously?
Ms. Decker. Mr. Chairman, there was a period of time when I
was on a detail assignment for the Western Area Power
Administration, from August of 2012 until April of 2013.
Chairman Issa. And that falls within what many of us think
of as Bonneville Power, this group of related organizations, is
that correct?
Ms. Decker. The Western Area Power Administration is not.
Chairman Issa. It is not Bonneville, but it is one of the
four.
Ms. Decker. Correct.
Chairman Issa. Okay. And this was an assignment that
Department of Energy chose, to have you move from one to the
other and had to be approved?
Ms. Decker. That is correct.
Chairman Issa. Okay. And I will ask this because it is
required. Bonneville Power is part of the Department of Energy,
is that correct?
Ms. Decker. That is correct.
Chairman Issa. The Western Area Power Administration is
part of the Department of Energy, is that correct?
Ms. Decker. That is correct.
Chairman Issa. And the Department of Energy is part of the
Executive Branch. I will answer yes for that one.
Did the Department of Energy pay for your transportation
here today, as far as you know, either directly or through
Bonneville Power?
Ms. Decker. Mr. Chairman, yes.
Chairman Issa. Are you receiving per diem for your travel
here today, as far as you know?
Ms. Decker. Mr. Chairman, yes.
Chairman Issa. When were you placed on administrative
leave?
Ms. Decker. Mr. Chairman, I was placed on administrative
leave on July 15th, 2013.
Chairman Issa. And roughly when do you believe you were
restored from that position?
Ms. Decker. So, Mr. Chairman, I was restored on Sunday
afternoon in order to just prepare for testimony and to appear
today.
Chairman Issa. Okay. Did you have access to official emails
in preparation for today's hearing?
Ms. Decker. Yes, I did.
Chairman Issa. Were you instructed by the Department of
Energy that you are here today only in your personal capacity?
I asked this before.
Ms. Decker. Mr. Chairman, that is correct.
Chairman Issa. Who gave you that instruction?
Ms. Decker. The instruction was provided by one of the
Department of Energy's general counsel to my counsel.
Chairman Issa. Okay.
Deputy Secretary Poneman, were you aware of that
instruction?
Mr. Poneman. Mr. Chairman, when I read Ms. Decker's
testimony last evening was when I saw the comment about the
personal capacity. That was the first time I had heard about
that.
Chairman Issa. So you weren't consulted in this process?
Mr. Poneman. No. And there is a difference as I asked the
question, because I hadn't seen it before. As I understood it
when I asked our own staff, Ms. Decker is speaking in her
capacity of her personal actions in this matter, but not as an
individual citizen. In other words, she is restored to her
Bonneville employee status to precisely cooperate with this
committee.
Chairman Issa. And I will shortcut as quick as I can
through these questions.
Do you, Secretary Poneman, understand that there would be
any restrictions on her full ability to answer about what she
did in her official capacity during her entire tenure with the
Department of Energy?
Mr. Poneman. Neither she nor anyone else would have any
such restriction, sir.
Chairman Issa. Do you agree that when someone is asked
questions about what they saw, heard, and observed or did
during the time in which they were a Federal employee, that is
not a personal statement but, rather, an answer as to their
professional activities?
Mr. Poneman. If the question is about professional
activities, by definition that is what they are talking about.
Chairman Issa. Okay. And the reason I have gone through
this is it the chairman's decision that Ms. Decker, from what I
can determine, is here as a Federal employee, in no way in a
personal capacity. To the best of my knowledge, no one on the
dais has any questions as to your activities outside of your
official capacity as a Government employee. So although general
counsel often makes statements, I want to make it clear, and if
there is any question or dissent, I want to hear it, that, as
Federal employees, you are here to represent the positions you
have and the observations you have, and in no way is that
personal.
Now, Secretary, you will speak on behalf of the Department
of Energy from the standpoint of your opening statement and
cleared activity. Is that your understanding?
Mr. Poneman. Yes, sir.
Chairman Issa. Okay.
So I will recognize the ranking member if he has any
questions.
Mr. Cummings. I have a number of questions.
Chairman Issa. I wanted to make sure this was clear,
because we often do bring people in personal capacity.
Whistleblowers, for example, are not here in their personal
capacity, they are here on behalf of their activities related
to the official activity. I wanted to make sure there was no
misunderstanding that Ms. Decker is here as a Federal employee,
here to discuss her activities as one of the many people we are
very proud of as Federal employees with a long career, and not
in some sort of non-Government way. And perhaps lawyer have a
technical understanding that I don't, but our counsels could
find no basis for the word personal to be used.
Understanding, Ms. Decker, you do not speak on behalf of
the Department of Energy, but you do speak on behalf of an
organization you ran, and that is in both of your capacities.
Mr. Friedman, do you have any questions on this line of
clarification?
Mr. Friedman. I do not, Mr. Chairman.
Chairman Issa. Thank you.
Mr. Cummings.
Mr. Cummings. Ms. Decker, first of all, thank you for being
here. I think we can be even clearer, no matter what the terms
are. You said that you were put on administrative leave, I
think you said, on July 15th?
Ms. Decker. That is correct.
Mr. Cummings. And then you said that you were restored last
Sunday, is that right?
Ms. Decker. That is correct.
Mr. Cummings. About what time was that? Somebody called
you?
Ms. Decker. Yes. I want to say that it was about 11:30 or
so on Sunday morning, Sunday afternoon.
Mr. Cummings. All right. But then you said that you were
restored so that you could come back to do this hearing, is
that right? What did you say?
Ms. Decker. So, representative, what I understand is I was
taken off of administrative leave for the sole purpose of
preparing testimony for this hearing, and that when I returned
to Portland I will be placed back on administrative leave.
Mr. Cummings. All right. So now, with regard to your
testimony, you mentioned in your personal capacity. Did you
mention that? I think the chairman talked about it, personal
capacity. Were you told that that is the range of your
testimony would be, you would be testifying in your personal
capacity?
Ms. Decker. Yes, that is correct. What I was told was I
would be testifying in my personal capacity of my personal
knowledge and that I would not be speaking on behalf of
Bonneville, and that DOE would be the spokesperson for
Bonneville.
Mr. Cummings. Based upon what you just said, do you feel
limited in what you can say today? Do you believe that you are
being limited in what you can say?
Ms. Decker. I don't believe I am being limited in what I
can say, but I would reiterate the instructions I have been
told is that I am not speaking for DOE in regard to Bonneville.
Mr. Cummings. So going back to what the chairman said, so
we won't get caught up in legalese, and correct me if I am
wrong, you feel that you are free today to speak under oath
about what you have observed, what you have experienced, what
you have seen in your capacity as an employee of Bonneville? Is
that a fair statement?
Ms. Decker. Representative, what I would say is that my
personal knowledge does include what I have experienced, what I
have felt, and what I have done while I have been at
Bonneville, so I would say yes.
Mr. Cummings. Very well.
And, Mr. Poneman, you said that you had no knowledge of
this personal capacity situation? You did not?
Mr. Poneman. When I saw Ms. Decker's testimony last night,
that was the first time I either saw or heard the phrase, sir.
Mr. Cummings. So you just heard what she said, did you not?
Did you hear what she said?
Mr. Poneman. Yes, sir.
Mr. Cummings. And does that sound reasonable?
Mr. Poneman. To me, sir, it is pretty simple. And without
getting caught up in the legalese, precisely because our policy
is, and will always be, any Bonneville or any DOE employee has
full freedom to cooperate with any proper investigation such as
this one, it is to that purpose that Ms. Decker was restored.
She was not restored in the other capacities of chief operating
officer and so on. So I think the confusion might be the word
personal refers to her personal knowledge of what happened,
anything that is of interest to this committee. But in terms of
the broader operations of Bonneville today over supply,
Columbia River Treaty, all of that stuff is not within the
scope of the restored----
Chairman Issa. The good news is we are not going to ask
about what the current load is with certain units offline or
the capacity of transmission lines.
Mr. Poneman. I know you know about these things, Mr.
Chairman.
Chairman Issa. I do serve on the other committee, and some
day we may----
Mr. Poneman. I recall. I recall, sir.
Mr. Cummings. This is my last question. I note that there
is a management alert and this management alert, on page 5,
there is an attachment, and I am pointing this to you, Mr.
Poneman. It says the deputy secretary also directed the
administrator to immediately convey to all BPA employees that
they can cooperate freely with the OIG and other investigations
without fear of retaliation.
You are familiar with that?
Mr. Poneman. Yes, sir.
Mr. Cummings. Is that accurate?
Mr. Poneman. Yes, sir.
Mr. Cummings. Very well.
Chairman Issa. I thank the gentleman.
We now recognize our first witness, Mr. Friedman.
STATEMENT OF THE HONORABLE GREGORY H. FRIEDMAN
Mr. Friedman. Chairman Issa, Ranking Member Cummings, and
members of the committee, I appreciate the opportunity to
testify at your request on the Office of Inspector General's
July 2013 Management Alert concerning alleged whistleblower
retaliation and prohibited personnel practices at the
Bonneville Power Administration. Bonneville and its nearly 3100
Federal employees are responsible for marketing electric power
to all or parts of seven or eight States in the Pacific
Northwest.
My office is currently reviewing allegations that
Bonneville engaged in inappropriate hiring practices that
violated the rights of applicants for Federal positions, most
notably applicants entitled to veterans' preference. During
this review, we learned that Bonneville employees who had
raised questions regarding violations of personnel practices
may have been subjected to retaliation and that several of
these individuals had already filed retaliation complaints with
the U.S. Office of Special Counsel.
As troubling as we found these allegations to be, our
concern intensified when, in July of this year, Bonneville
employees indicated that additional retaliatory actions were
imminent. We deemed the sources of the allegations to be
credible. Thus, we brought this matter to the attention of the
Department's senior leaders in the July 16, 2013 Management
Alert. We used management alerts in time-sensitive situations
that require immediate management consideration. We concluded
that expedited action to protect the involved Bonneville
employees was of paramount importance. The Management Alert
included recommendations to ensure that all Bonneville
employees feel that they can report potential wrongdoing in an
atmosphere free from retaliation.
Commenting on the Alert, the Department concurred with the
facts, conclusions, and recommendations, and the Department
outlined a list of corrective actions that had been taken or
were to be taken, and informed us that the deputy secretary
directed the administrator to convey to all Bonneville
employees that they can cooperate freely with the OIG and other
investigations without fear of retaliation.
I would like to address the status of our ongoing work
regarding the core allegation that Bonneville had engaged in
inappropriate hiring practices.
As background, on May 11, 2010, the president issued a
memorandum requiring the use of category rating for personnel
recruitment and hiring. One objective was to increase the
candidate selection pool while still complying with merit
system principles, including veterans' preference. Thus, as of
November 1st, 2010, Bonneville was required to use category
rating to rank candidates for competitive positions. One
critical component of this process is that the quality category
definitions, the basis for formulating the best qualified lists
at Bonneville, must be developed before the vacancy
announcement goes public and cannot be changed once the vacancy
is opened. This is to assure fairness, equity, and consistency.
As noted, it was alleged that Bonneville's practices had
effectively disadvantaged job applicants, most notably those
entitled to veterans' preference. We found the Department had
received the same allegations and initiated a review of
relevant hiring actions in Bonneville's policies and practices.
This resulted in the February 2013 memorandum to my office in
which the Department itself identified prohibited personnel
practices at Bonneville which it described as systemic.
We promptly initiated a review to determine the underlying
causes of these problems. Our preliminary findings validated
the concern that Bonneville had adjusted quality category
definitions after vacancy announcements were closed and
applications were received. These matters have also been the
subject of internal reviews by Bonneville itself and by the
U.S. Office of Personnel Management.
These examinations have been extremely revealing. Our
summarization of the data developed by Bonneville shows that it
had engaged in inappropriate personnel practices in 65 percent
of its competitive recruitments, that is, 95 of 146 cases,
conducted from November 2010 to June 2012, confirming, in
essence, the allegation that the best qualified list had been
modified after applications were received. Clearly, as a
consequence, veterans and other applicants were inappropriately
excluded from consideration for job selection.
As has been noted, our review is still in process and,
therefore, the statistical analysis that I just gave you may
change as new information becomes available and as we analyze
the new information.
We were told that Bonneville changed its work processes and
issued new guidance in May 2012 to stop these practices;
however, most importantly, Bonneville failed to take required
action to notify the negatively impacted applicants and address
the impact associated with the prohibited practices. As of June
2013, Bonneville's hiring authorities have been suspended.
These actions were taken because both OPM and the Department
concluded there were major errors in Bonneville's personnel
files.
Our emphasis was and remains establishing the cause of the
improper practices, and I would like to stress again that our
Management Alert was preliminary. Our work with regard to the
substances of these allegations is not complete and it
continues. Additional interviews and document searches are
underway. We intend to complete the effort as promptly as
possible.
Mr. Chairman and members of the committee, this concludes
my statement. I would be happy to answer any questions that you
may have.
[Prepared statement of Mr. Friedman follows:]
[GRAPHIC] [TIFF OMITTED] T6720.001
[GRAPHIC] [TIFF OMITTED] T6720.002
[GRAPHIC] [TIFF OMITTED] T6720.003
[GRAPHIC] [TIFF OMITTED] T6720.004
[GRAPHIC] [TIFF OMITTED] T6720.005
Chairman Issa. Thank you.
Secretary Poneman.
STATEMENT OF THE HONORABLE DANIEL B. PONEMAN
Mr. Poneman. Thank you, Chairman Issa, Ranking Member
Cummings, and distinguished members of the committee.
Before beginning my prepared remarks, I would like to pause
to acknowledge the untimely passing of Mr. Benjamin Cool, a
Wilson Construction employee who died earlier this week while
working at a Bonneville Power substation in Oregon. Our
thoughts and prayers go out to him and to his family. This
tragedy starkly reminds us of the dangers, as well as the
awesome responsibility, for those who work on our electric
grid. It also reminds us of how important it is to make that
extra effort to do our job safely and always to look for ways
to improve our performance, and, indeed, our management
principles tell us that we must do our work safely and
continuously improve in our efforts.
I have been invited here today to discuss the Bonneville
Power Administration and the allegations of questionable
personnel practices at BPA. The Department of Energy takes
these allegations very seriously. We share the committee's deep
concern regarding the inspector general's preliminary findings.
We have responded forcefully to those findings and continue to
provide assistance to aid in the completion of the IG's
investigation of BPA. We also continue to provide guidance and
support to BPA management as they carry on the work of BPA in
all of its dimensions, including human capital management, but
extending to the full suite of BPA missions and all of their
diversity.
In the matter being reviewed by this committee, as the IG
recognized, the Department initiated immediate corrective
actions which were fully responsive to its findings and
recommendations so far. As the IG continues its investigation,
we look forward to a full accounting of the facts so we can
carefully consider and implement any actions that may be
appropriate.
The history of BPA dates to 1937, when President Franklin
Roosevelt signed the Bonneville Project Act to deliver the
massive benefits of Columbia River hydro power, clean,
inexpensive electricity to citizens of the Pacific Northwest.
Four years later, BPA hired Woody Guthrie to write 26 songs in
30 days about the Columbia River hydro system for the princely
sum of $266.66. This is an organization, in short, Mr.
Chairman, with a great history and a great tradition, and it
has played a major role in the development of the Pacific
Northwest.
For all its storied past, Bonneville remains vitally
important today in serving the energy needs of the citizens of
the Pacific Northwest. Specifically, it markets wholesale
electric power from 31 Federal hydro power projects in the
Columbia River basin. While part of DOE, BPA, as Mr. Cummings
has noted, is self-funding and covers its costs by selling its
products and services to ratepayers and through borrowing from
the U.S. Treasury.
In 2012, DOE received a complaint alleging prohibited
personnel practices at BPA and provided this information to the
inspector general. The inspector general informed the
Department that it had also received a similar complaint. The
IG subsequently requested that DOE review these matters. DOE
conducted a review of the hiring cases identified in the
initial complaint and briefed the IG on the findings. Included
in the Department's findings was concern that BPA had not
followed the personnel requirements related to veterans' hiring
practices.
Based on these initial findings, DOE took a series of
actions to address the situation at BPA. First, DOE required
BPA to submit all cases involving hiring from the general
public to DOE for review and concurrence before proceeding;
second, DOE subsequently formally suspended the BPA
administrator's authority to conduct hires from the general
public; and, third, based on the preliminary findings from the
June 2013 audit, DOE formally suspended BPA's authority to
conduct hiring from within the existing Federal workforce.
Based on its June 2013 audit, DOE also outlined steps BPA
needed to take to correct its hiring procedures. DOE continues
to provide support to BPA to assist Bonneville in taking
corrective actions as needed and to develop and implement sound
human resource processes and procedures.
As the committee is aware, the IG and others have also
indicated there were allegations of retaliation against BPA
employees who were cooperating with the IG's investigation. Let
me be clear. DOE is strongly committed to a workplace where all
workers are free to speak out, voice concerns, or lodge
complaints without fear of retaliation. For this reason we were
seriously concerned when we learned, after the fact, that BPA
had issued a notification of proposed removal against a
potential whistleblower. DOE then took swift and decisive
action.
First, DOE requested that BPA provide all documentation
associated with proposed adverse actions; second, DOE
temporarily suspended BPA's authority to take any adverse
personnel actions and instructed BPA to provide DOE
headquarters with all information on any adverse actions in
process or under consideration; third, as has been noted
already, I directed the administrator of BPA to take no adverse
personnel actions against BPA employees, to immediately suspend
any such actions that had already been taken, and to instruct
any such employee then on administrative or any other type of
leave to return to work immediately. I also directed the BPA
administrator to provide a full, prompt report of any actions
that conceivably could fall into these categories. Furthermore,
I directed the administrator to immediately convey to all BPA
employees that they can cooperate freely with IG and other
investigations without fear of retaliation. Finally, I sent a
team to BPA to conduct a management review and named Elliott
Mainzer as acting administrator of BPA on an interim basis.
In conclusion, we recognize the committee's interest in
this matter and share your objective of remedying any
deficiencies in personnel practices at BPA. We look forward to
a full accounting of the facts once the IG's investigation is
complete so that we can evaluate the situation and, as
necessary, build on the steps already taken to assure that BPA
staff understand Federal hiring rules and have the capability
and systems in place to implement them appropriately. BPA
remains committed to performing its mission and to serving the
Nation, the region, and its customers while ensuring continuity
and stability in its operations. The Department will be working
actively to support Bonneville as it continues to fulfill these
vital responsibilities and to make progress on critical issues
facing the organization and the region. We are all grateful for
the dedicated service of the thousands of BPA employees who
strive every day to fulfill their mission.
Mr. Chairman and members of the committee, this completes
my prepared statement. I would be happy to answer your
questions at this time.
[Prepared statement of Mr. Poneman follows:]
[GRAPHIC] [TIFF OMITTED] T6720.006
[GRAPHIC] [TIFF OMITTED] T6720.007
[GRAPHIC] [TIFF OMITTED] T6720.008
[GRAPHIC] [TIFF OMITTED] T6720.009
Chairman Issa. Thank you.
Ms. Decker.
STATEMENT OF ANITA J. DECKER
Ms. Decker. Chairman Issa, Member Cummings, and
distinguished members of the Committee on Oversight and
Government Reform, I am here as a result of acceptance of the
chairman's invitation, which I initially declined. Given my
limited ability to prepare, the lack of final findings or
resolution on personnel matters at issue and my tenuous
position of being on administrative leave have given me pause.
On July 15th, as you have already established, I was placed
on administrative leave by DOE. The memorandum I received
recites allegations that BPA engaged in improper hiring
practices, violations of veterans' preference and merit system
principles, and allegations of whistleblower reprisal. There
are no particular allegations against me specifically.
I have not been allowed to access the BPA buildings,
documents, personnel, or computer systems up until this Sunday,
so I have only had limited time to prepare, so I hope you will
give me a little bit of grace for that.
I would like to state that I would never knowingly allow
BPA to implement policies or practices that violate Federal
veterans' hiring. I am proud of BPA's record of veteran hiring,
both personally and professionally. My father served in the
U.S. Navy; my stepbrother retired from active duty as a U.S.
Marine; my stepsister left the Air Force after 14 years of
service and then spent 19 years in the U.S. Air Force Reserves,
including being deployed to Iraq. I have a stepson who served
in the U.S. Navy who is now working for the Post Office as a
contractor. So the importance of veterans' preference does not
escape me; it has personal meaning for me. I have actively
supported veteran personnel and I was extremely proud for
Bonneville to be recognized for supporting veterans and for me
personally to be recognized by Bonneville's veterans.
The main issue regarding BPA hiring practices had to do
with BPA's interpretation and implementation in late 2010 of
the category rating process envisioned in the Improving the
Federal Recruitment and Hiring Process. BPA's implementation of
how to apply the category rating was incorrect. That said, the
issue that was identified by BPA staff, identified by BPA staff
in May of 2012. At that time, more than a year ago, BPA stopped
the practice that was in question.
In July of 2012, I learned that either there had been or
there was going to be a complaint issued to the IG. I responded
as described in my written testimony. When I left Bonneville in
August of 2012 to serve as acting administrator of the Western
Area Power Administration at the request of DOE, I thought the
hiring issues would be timely resolved. Most importantly for me
before I left was the fact that the hiring practice that had
disadvantaged both veterans and non-veterans had been stopped.
I returned to Bonneville eight months later, in April of
2013. Upon return I found that the reconstruction process, the
required process when a veteran has not been granted the proper
preference, had not yet been completed. A variety of factors
combined to delay that resolution, but both BPA and DOE have
first attempted to ensure that we have all of the issues that
need to be remediated for before we begin remediation.
With respect to the allegations of retaliations against
whistleblowers, I can assure this committee that I take that
very seriously and I understand the sensitivities associated
with protecting whistleblowers. While the actions in question
in the IG Management Alert are in my line of responsibility, I
am not the decision maker of the proposed actions. While I
might be aware of some of the actions, my primary interest was
are those actions following the appropriate personnel actions
and processes that are designed to protect both the individual
and the agency and taxpayers, and in this case Bonneville's
ratepayers.
I also take performance management very seriously and
believe the Federal personnel system contains checks and
balances intended to protect the agency's ability to fairly
manage performance and protect employees from retaliation. My
personal belief, my training, my legal advice from BPA counsel
have made it very clear there is zero tolerance for
retaliation. It also counsels that making a complaint or other
protected activity does not insulate an individual from
performance accountability solely because that person engaged
in a protected activity such as complaints or cooperating in an
IG investigation.
In summary, in regard to retaliation, until the
investigation, audits, and legal determinations are final,
jumping to conclusions is inappropriate and may do unintended
damage to effective and efficient government and to public
servants.
In regard to veterans, we made a regrettable mistake. We
stopped making that mistake over a year ago. I want to be part
of making this right.
Mr. Chairman, I am happy to answer any questions.
[Prepared statement of Ms. Decker follows:]
[GRAPHIC] [TIFF OMITTED] T6720.010
[GRAPHIC] [TIFF OMITTED] T6720.011
[GRAPHIC] [TIFF OMITTED] T6720.012
Chairman Issa. Thank you.
I recognize myself.
Ms. Decker, you are Senior Executive Service.
Ms. Decker. Correct.
Chairman Issa. I just want you to be aware that there is a
bill on the floor today. If that becomes law, it would require,
before you be terminated, that you be told at the time that you
would be removed, and with 30 days to remedy it, what you are
being accused of. Not everyone on the dais is going to vote for
that, but I will be one who will support that. I am not a fan
of long administrative leaves and I am completely opposed to
people being on the payroll, off the job, and neither accused
nor in a position to even prepare to explain what happened as
time goes by. I don't think that is good management practice.
But I want to ask you a specific question, and perhaps, in
a sense, this will be more of a personal question. Could you
briefly tell us when you learned that you were being put on
administrative leave and the events that occurred in those
first few minutes when that happened?
Ms. Decker. Mr. Chairman, I had an email that said I needed
to be available for a phone call at 9:00. A woman from DOE's
Human Capital Office called me and said that an individual was
going to bring me an envelope and there would be a knock at my
door, and there was and I was handed an envelope, and inside
that envelope was a memo from the woman I was talking to on the
phone that said, as I said in my oral statement, Bonneville was
under investigation and she had been delegated the authority to
put me on administrative leave and, therefore, she was. And the
letter gave instructions of what I needed to return in terms of
Government property and that I would need to check in every day
until further notice. And the gentleman who handed me the
envelope came and I gave him my Government possessions and he
walked me out of the building.
Chairman Issa. Let me paragraph that. They sort of took
your gun and badge, and walked you out virtually at gunpoint;
you were not allowed to do anything except walk out of the
building and it was a fairly public display, wasn't it?
Ms. Decker. Yes.
Chairman Issa. Have you seen that done before at
Bonneville? Is that a standard practice?
Ms. Decker. I would not call it a standard practice. There
are times when someone has been notified, like in a proposal,
or if they are going to be on administrative leave for cause,
that that is the process that Bonneville follows as well.
Chairman Issa. But you were not told you were on
administrative leave for cause.
Ms. Decker. No.
Chairman Issa. Okay.
Secretary, you talked in terms of a fairly aggressive
action once you became aware of this, but let's go through,
based on what Ms. Decker said. One, DOE knew about this more
than a year ago, correct?
Mr. Poneman. Mr. Chairman, when you say this, what are you
referring to?
Chairman Issa. Well, you knew about the wrong use of the
hiring practices, the discriminatory hiring practices in May of
last year.
Mr. Poneman. Mr. Chairman, there was an anonymous complaint
that was filed in May of last year, that is correct.
Chairman Issa. Well, Mr. Friedman, maybe I will go through
it with you quickly. Between May of last year and the time Ms.
Decker was walked out of the building, was there a time in
which whatever--and we don't want to get into details of why
she is on administrative leave, but was there a time that
people knew that there was a there-there that was well before
that day? And, more importantly, as I understand it, Ms. Decker
was gone for eight months. Basically, during the 90 days or
less in which she returned, was there some action that
triggered her being placed on administrative leave? And you
don't have to tell me what it was, but administrative leave and
the need to remove her from the building in that way.
Mr. Friedman. Well, let me treat that in two parts, Mr.
Chairman. First of all, there were a number of people within
the Department of Energy who were aware of the fact, from June
2012 to the date that these events took place that you are
referring to, that there was a problem or there was an alleged
problem with regard to personnel practices at Bonneville. So to
set the stage, I think you are right about that.
With regard to any individual being placed on
administrative leave, I did not recommend that, I didn't
suggest it, I wasn't consulted, given a thumbs up or thumbs
down, so I can't fill in the details as to what transpired and
the thought process behind that.
Chairman Issa. Okay, but at this point you have reached a
conclusion, which was they certainly broke the rules when it
came to hiring and it worked to the detriment of veterans.
Mr. Friedman. I reached the conclusion, the Department's
Human Capital Office reached the conclusion, and the Office of
Personnel Management have reached that conclusion.
Chairman Issa. Okay. Two more quick questions. One, we have
the name of five, but there are, if I understand, at least six
people who qualify, in your opinion, as whistleblowers in this
case who went to the Office of Special Counsel, etcetera.
Mr. Friedman. Yes, that is roughly correct.
Chairman Issa. Okay. If the number is not right, in another
setting, we would appreciate it. We would also appreciate the
names.
Mr. Poneman, I am going to be very brief. One, you
mentioned privacy in your opening statement. You do understand
that we are not covered by privacy laws. Congress specifically
exempted itself from that, so we are entitled to things which
would otherwise not be available under the Privacy Act.
Mr. Poneman. Mr. Chairman, I am referring to restrictions I
am told I am subject to under the Privacy Act, sir.
Chairman Issa. Okay. Because we have a number of things we
want to make you aware of. First of all, we have sent you two
letters; one received no response whatsoever, and that was July
16th, and the second one we are not happy with the response and
we will talk to you offline. Before I yield to the ranking
member, the point that I want to make is this: we expect if
something cannot be said in an opening hearing, if it is
sensitive, prior to that hearing we get a full and complete
either in camera or otherwise arranged review. We are not as
well prepared as we would like to be today particularly because
immediately after the notification we sent a letter and got no
response, and the letter was addressed to you.
Mr. Poneman. Congressman, we always seek to being
cooperative with this committee. It was my understanding that
the letter that had been sent was responsive to both of your
incomings, which came in the space of a couple of days.
Chairman Issa. Well, Mr. Secretary, just so you know, and I
am going to yield to the ranking member, you didn't even call
us and, no, there was no written response. So you represent the
Administration. Understand this is an Administration who has
systematically not responded. So we have known each other a
long time, but you get a little tarred and feathered if you act
like many other Administration officials and we get that kind
of non-response. This is not something, as I told you when we
talked privately, this is something where we think it is fairly
local, fairly contained, but it really encompasses an important
message, both on whistleblowers and veterans, that I think the
committee wants to make sure that we shed light on and spread
the word throughout the Administration. So I am not going to
belabor this. I expect that we get full cooperation. You and I
have a past where I think we have great respect for being able
to work these things out.
Mr. Cummings.
Mr. Cummings. Speaking of what the chairman left off, I
have a letter here dated July 24th, 2013 that I received a copy
of that was addressed to the chairman from Eric Fygi?
Mr. Poneman. Fygi, sir.
Mr. Cummings. Were you aware of this letter?
Mr. Poneman. Yes, sir.
Mr. Cummings. It seems to be not your response, but he
refers to the letter of July 16th and July 17th in this letter.
Were you aware of this?
Mr. Poneman. Yes, sir.
Mr. Cummings. But you did not personally provide a response
to the chairman, is that right?
Mr. Poneman. It is my understanding that this letter, I
think, is fairly standard procedure, was the response from the
Department on my behalf, and I am here today, sir, as I always
do appear because we do completely accept the oversight
authorities that you all have and we are committed to being
cooperative.
Mr. Cummings. Mr. Friedman, let me ask you this. In
response to one of the chairman's questions just a moment ago,
you said that you had nothing to do, you rendered no opinion
with regard to Ms. Decker being placed on administrative leave.
Is that what you said?
Mr. Friedman. Yes. I think, in fairness, Mr. Cummings, that
I was told a day or two in advance that that was the plan, but
it was not my recommendation.
Mr. Cummings. Is this something you would opine on? I mean,
is that something that you would normally provide an opinion
on? I am just curious.
Mr. Friedman. Under these circumstances, probably not.
Mr. Cummings. I see. You sounded as if you were
disappointed that you didn't have something to say about that
and I just wanted to clear it up.
Mr. Friedman. I appreciate the question. The answer is I
conveyed a disappointment, that was not accurate.
Mr. Cummings. All right. Mr. Friedman, your Management
Alert says this, ``Bonneville engaged in prohibited personnel
practices in 65 percent of its competitive recruitments
conducted from November 20th to June 2012. I have to tell you,
as I listen to all of this, having been, in my early practice,
in the late 1970s, to be in civil rights practice and to have
seen so many people discriminated against, I take this whole
episode very seriously because I know the damage that it does.
As far as I am concerned, it is criminal when people deprive
people of their rightful opportunities. But can you explain to
me, very briefly, how veterans applying for these positions
were disadvantaged by these actions?
Mr. Friedman. Yes. It is nuanced and subtle, but let me try
to make it as simple as I possibly can. Under the system that
was in place after the president's memorandum, and was in place
in Bonneville in November of 2010, essentially a best qualified
list was derived and a formula was created to set the
parameters for the best qualified list. Veterans, by
definition, if they met the best qualified list, went to the
top; they had to be selected. They could have rejected the job
offer, but they had to be selected. What Bonneville did is they
adjusted the criteria after the fact. So instead of a rating of
90 to 100 falls in the best category list, it was modified from
up to 95 being the lower threshold and, in effect, everyone who
scored from 90 to 95 or 94, depending upon how the threshold
was changed, was essentially excluded from consideration, and
vets were in that. Vets and non-vets, people who were entitled
to veterans' preference and those that were not were
essentially excluded from further consideration as a result of
changing the bottom cut line.
Mr. Cummings. You said vets and non-vets. So how did we get
zeroed in on vets? In other words, if there are other people,
women, African-Americans? I am just trying to figure out why we
zeroed in on vets. And don't get me wrong. I think it is very
important that we address vets, but I am trying to figure out.
Take me there. Help me with that.
Mr. Friedman. I understand your point, Mr. Cummings, I
believe. First of all, the allegations that we received
specifically indicated that vets had been disadvantaged. But
you are absolutely correct, there was a population that was
disadvantaged that included, most likely, and we don't know
specifically because the reconstruction that has been talked
about has not taken place, but it no doubt included women,
minorities, a broad cross-section of applicants.
Mr. Cummings. This is an ongoing investigation, is it not?
Mr. Friedman. Yes. Can I qualify?
Mr. Cummings. Sure.
Mr. Friedman. It is not, at this point, an investigation.
Important distinction. It is an inspection and it is an
allegation-based inspection.
Mr. Cummings. Would you supply us with the information as
to the other folks that may have been discriminated against
here, that may have fallen in that category?
Mr. Friedman. The answer is I can't do it immediately.
Mr. Cummings. I know that.
Mr. Friedman. No, at some point the Department is going to
have to go, either internally or using consultants, on a case-
by-case basis and reconstruct each one of those vacancy
announcements to provide the information that you are looking
for, Mr. Cummings.
Mr. Cummings. How many veterans are we talking about here?
Mr. Friedman. If I knew the answer to that question, I
could answer your earlier question. We don't know. But in the
20 cases that the Department looked at, there were 35 vets that
were disadvantaged, in just 20 cases.
Mr. Cummings. At this point, do you know why employees were
doing this? Were they intentionally trying to exclude veterans
or were they just trying to reduce the number of total
applicants they had to consider? You have heard Ms. Decker's
testimony that there may have been some confusion with regard
to how to do this scoring.
Mr. Friedman. Well, let me try to break it down.
Mr. Cummings. Break it down.
Mr. Friedman. First of all, Bonneville personnel indicated
that there was confusion in terms of the policy and the
procedure. I have no basis for disputing that except that, Mr.
Cummings, a fair person who would read the direction in the
policy, it was crystal clear. So I don't suggest that these
people were misleading us or lying to us; I would suggest that
the credibility in terms of that line of thinking was really in
doubt.
Secondly, I am sorry, could you go back to the first part
of your question?
Mr. Cummings. Do you know----
Mr. Friedman. The Bonneville personnel involved indicated
that the reason they did it, and you hit upon it in your
question, was that they were trying to reduce the size of the
pool that was going to the selecting official, to make it
manageable.
Mr. Cummings. Finally, Ms. Decker, as the chief operating
officer of BPA, let me give you an opportunity to respond to
the IG's finding. Do you agree with the IG that BPA engaged in
prohibited personnel practices during this time frame to the
detriment of veterans? And my last question is what is your
sense of why this happened? Was it intentional? Was it poor
training?
Mr. Decker. Representative, the bottom line is I agree with
the IG's findings. We did apply and implement the category
rating incorrectly. I think there is not a dispute with
Bonneville. Mr. Friedman stated that OPM found that, that DOE
found that, that the IG found that. Bonneville also found that
and is why we stopped the practice. We found that we had
implemented it incorrectly. I do not believe that it was
intentional, because the rationale, if you consider that we
moved the line, which that is what the intentional act, of
moving the line. We intentionally did move the line. Why we did
it was because we were misinformed or didn't understand how to
apply it correctly. But when we moved the line, that line
didn't then exclude all veterans, but it excluded that pocket
of veterans. So say it was from 90 to 100 percent and we moved
the line to 95. Anyone that was in that 90 to 94 percent
suddenly got excluded. But anyone that was above the 95 percent
line, which did include veterans, in fact still, was referred
to the hiring manager. I believe it was not an intentional act.
Mr. Cummings. Do you think it was poor training?
Ms. Decker. I do believe that it was poor training. As I
understand it, folks had some training. I think the training
was deficient. And I think that the retraining that is going on
now will rectify that. But we did implement a faulty
implementation. That is not in dispute.
Mr. Cummings. Thank you, Mr. Chairman.
Chairman Issa. Thank you. I just want to have Mr. Friedman
follow up on the effect. And I will run you through real quick
numbers and you tell me if this is correct. You have 50 slots
to be hired. You have 50 people in the top 5 percent and you
have 100 people in the top 10 percent. By going to a 10 percent
mark to a 5 percent mark, let's assume for a moment that there
are 25 veterans in the top 5 and 25 veterans in the second 5.
If you take 10 percent, 50 veterans get 50 slots. If you take 5
percent, 25 veterans get the slots and 25 non-veterans get it.
Is that roughly the arithmetic, the way it works, because
veterans flow to the top? The smaller the group, the more
chance you have of essentially, with a given amount of slots,
running out of veterans and taking other people. Is that what
you found in your inquiry?
Mr. Friedman. Mr. Chairman, I am not sure I completely
follow your numbers, but, in principle, you have it right. But
just let me clarify one thing. It is not going to the top, it
is more severe than that; it is they must be offered a
position. So they get a primacy that is extremely----
Chairman Issa. Right. And I said to the top in the sense
that if there is only 50 slots and there are 60 veterans, only
50 get offered. So it is very much like the gentleman said, and
I think it is a good point, it is like civil rights
discrimination. If you create an environment in which you
exclude a group of people, for whatever characteristic, that
would get something, they don't get it, and that is effectively
what you found in your investigation. So misunderstanding 5 to
10, somebody probably understood the effect of how many of this
particular group that uniquely would be offered a position if
they were on that list, you knew you were excluding them by
definition, because you knew the size of the hiring, so you
knew the size that were not going to be included. And I think
Ms. Decker said it, it wasn't always the same, it was 94 or 95
percent. Is that correct?
Mr. Friedman. Well, I agree with you, Mr. Chairman, but I
would like to draw a distinction between recognizing that
people who are entitled to veterans' preference were, by
definition, now below the line, therefore would not be
considered in contrast to saying that it was done intentionally
to disadvantage the vets. I am not there yet.
Chairman Issa. Okay. Well, we look forward to that
continued process.
I am going to go out of order to recognize the chairman of
the full Resource Committee because he also has a hearing. Mr.
Hastings.
Mr. Hastings. Thank you, Mr. Chairman, for your
accommodations and to allow me to come in here after my
colleagues. I have been chairing a hearing on the transparency
and the scientific integrity of the Endangered Species Act, not
an insignificant issue.
The subject of this hearing is of considerable interest to
me for multiple reasons, both as a member of this committee
with oversight responsibilities and also chairman of the
Natural Resources Committee, which has jurisdiction over the
Bonneville Power Administration and other power marketing
authorities. That is why that interest is there.
It is also of interest to me because of the importance of
upholding promises made to our Nation's veterans and policies
governing their hiring by Federal agencies.
Lastly is a parochial interest to me, because the district
that I was elected to represent, BPA is a very important part
of that because it provides the wholesale power, the
transmission to the greater northwest. And I might add, Mr.
Chairman, that agency is fully founded by ratepayers.
As a result, the Northwest Congressional Delegation has
long worked in a bipartisan way on overseeing BPA. So when it
comes to these allegations, there clearly is bipartisan support
in seeking the truth and ensuring that the appropriate
responses to make certain BPA is operating properly so it can
move forward in the future.
There should be no doubt on the part of any person or
agency that the Congress takes fair treatments of its veterans
very seriously. Allegations of improper actions must be
properly and carefully investigated. So I encourage the Office
of Inspector General to be both thorough and timely in
completing its reports. The full facts obviously need to be
known.
This is important. The full facts, which we do not have
here today, are needed to be able to fairly and accurately
assess the actions of BPA and DOE to determine how to move
forward on this point. And let it be clear, the actions of DOE
officials are certainly under scrutiny, at least from my
perspective as the chairman of the Natural Resources Committee.
Before these allegations ever came to light, there have
been serious bipartisan questions about this Administration's
intentions as it relates to power marketing authorities, or
PMAs. For months, dating back to last year, I have sought
documents and information from DOE concerning what is commonly
known as the Chew memo, a directive from then Secretary Chew to
the PMAs that threatened to arbitrarily increase electricity
rates of 40 million Americans in order to pursue questionable
energy dictates. To be very blunt, Mr. Chairman, DOE has not
been transparent in that regard. In fact, for months DOE has
been uncooperative in this regard. DOE owes the Committee on
Natural Resources the request that they had for documents
surrounding this.
BPA and PMAs have an established mission under the law.
This is important. And this mission should not be subject to
political interference to pursue particular policy penchants of
any presidential administration, whether that administration is
Republican or Democrat. Oversight of both of these matters will
continue from the perspective of the Natural Resources
Committee and I certainly intend to fully participate in any
future actions by this committee.
Once again, Mr. Chairman, thank you very much for your
courtesy in allowing me to come here after leaving my hearing.
Chairman Issa. Would the gentleman yield briefly?
Mr. Hastings. I would be happy to yield.
Chairman Issa. Thank you.
Secretary Poneman, I want to run very, very quick
questions, because the short response we received from Eric
Fygi, we had asked a question about potential for retaliation
and directives, and we got an answer saying that you didn't
order or tell people not to respond. But I want to go through
something quickly. Did you give a directive, verbal or
otherwise, to anybody at Bonneville Power not to discuss the
situation with anybody outside the BPA? In other words, did you
have a conversation with somebody who then could have acted on
your statements?
Mr. Poneman. I certainly have frequently, Mr. Chairman,
said we are one organization and we need to coordinate our
communications when we are dealing with the outside world, yes.
Chairman Issa. Okay, so somebody could have taken your
statement that we have to coordinate to mean that somehow
people should only answer questions coordinated or talk to
Congress on a coordinated basis.
Mr. Poneman. I have no idea what they read into my
statements, but, as I said, Mr. Chairman, it is our policy that
we speak with one voice and we always seek to coordinate our
messaging to the public, to the Congress, to the press, and so
forth.
Chairman Issa. Well, Mr. Secretary, it concerns me that you
say that. You don't have to coordinate the truth; you don't
have to prepare to tell the truth. The fact is that we expect
people to be told something closer to your original opening
statement, which is that you are free to talk to congress; it
is not only your right, but it is your responsibility, and that
although notification may in some cases, if we classify
notification, may be appropriate, that coordinating is a term
or code, in my opinion, for come to us, let us tell you what to
say, let's talk about what you would say. That kind of coaching
is outside what we would consider to be a free exchange that
encourages people to tell us, right or wrong, what they think
happened.
Mr. Poneman. Let me be very, very clear about this, Mr.
Chairman, because I think this is a very important question
that you raise. It is absolutely fundamental, as a matter of
fairness, as a matter of everything that we stand in our
management principles and everything else, that any individual,
be they a Federal employee or a contract employee, must be free
at any and all times to cooperate fully, to step forward, to
express any concerns, tutored or untutored, whatever is on
their mind, they have to be free to step forward and say
exactly what they think to anyone. I have been very clear about
that consistently.
That is a very different thing than assuring that one's
policy responses in a very complex organization, with a lot of
different issues, river treaties, rate cases, and so forth, it
is confusing and inaccurate if we then convey 115,000 views out
of 115,000 people.
Chairman Issa. I am going to Mr. Lynch, but we have been
told by staff at Bonneville Power they are under the impression
they are not to speak to anyone outside of Bonneville Power
Administration or DOE about this situation. That is their
impression when they have said I can't speak to you because
that is my understanding. And, of course, that thwarts our
investigation, which isn't that much of an investigation in the
sense that we are very, very much just trying to look over the
shoulder of the IG, get comfortable so that we can make an
assessment on a Government-wide basis. So we have been a little
surprised that they have the impression that you say you are
not trying to give them.
Mr. Poneman. I am surprised too, Mr. Chairman, because
everything I have said verbally and everything I have put out
in emails and so forth has said everybody is free to step
forward without fear of reprisal or retaliation. I have been
absolutely consistent in that.
Chairman Issa. Or coordination, hopefully, in the future.
Mr. Cummings. Mr. Chairman, unanimous consent to have one
minute just to clear this up.
Chairman Issa. The gentleman is recognized for one minute.
Mr. Cummings. Thank you very much.
I want you to listen to what I am saying very carefully,
because I don't want misimpressions. But I also want to know
your answer. You haven't done anything to stop anybody from
telling the truth, have you?
Mr. Poneman. Absolutely not, sir.
Mr. Cummings. I want to make sure that is clear because we
want the truth, as I have said many times, the truth, the whole
truth, and nothing but the truth. So I just want to make that
clear.
Chairman Issa. Thank you.
Mr. Lynch.
Mr. Lynch. Thank you, Mr. Chairman.
I want to thank the witnesses for coming before the
committee to help us with this. I am the former chairman, now
the ranking member of the Subcommittee on the Federal
Workforce, so I am a big champion of veterans' preference.
Matter of fact, the distinguished veterans of the United States
Armed Forces have enjoyed veterans' preference for hiring in
Federal positions since the Civil War, the American Civil War,
and well deserved, I think. The longstanding Federal policy of
veterans' preference in hiring was borne out of our collective
recognition of the immeasurable sacrifices that our brave sons
and daughters in uniform have made on behalf of this grateful
Nation. The veterans' preference has been codified in law,
including the landmark Veterans' Preference Act of 1944 and the
Veterans Employment Opportunity Act of 1998, and other Federal
statutes. So it is a matter of law. It is not a suggestion; it
is a priority that we have recognized and it needs to be
followed. These veterans have earned this.
And it is important to remember that for this workforce
that we are considering of veterans, the Gulf War veterans,
Iraq veterans, Afghanistan war veterans, this is a volunteer
force and many, many, many of them have served multiple tours
of duty where they have not only put their civilian careers on
hold, but also their personal lives on hold so that they can
serve this Country. So these laws for veterans' preference also
reflect our national commitment to ensuring that our men and
women in uniform are not penalized because they have served
multiple tours in Iraq and Afghanistan and in the Gulf. So with
that interruption in their civilian careers, if they don't get
veterans' preference, they are penalized. So this is an
affirmative step that we are taking to make sure that they are
not penalized for their duty to this Country.
Now, I am greatly concerned by the inspector general's
preliminary findings set forth in the July 16th Management
Alert, and I am going to quote from them. He says BPA engaged
in hiring practices that ``effectively disadvantaged veterans
and other applicants and were inconsistent with the concerted
efforts by the Federal Government to ensure that veterans
receive appropriate preferential treatment in the hiring
process.''
Ms. Decker, I appreciate you haven't had much time to
prepare, but I have to ask you, in the report, the Alert says
``We have received a number of complaints from the ACM staff
members alleging that they were disciplined because they had
communicated hiring problems to Bonneville management, to the
Office of the Inspector General, and/or to Human Capital
officials.'' You are aware of these allegations, correct?
Ms. Decker. I am, representative.
Mr. Lynch. Okay. Let's talk a minute about these
disciplinary actions, which trouble me greatly. Ms. Decker, in
your testimony you stated that while these actions are in my
line of responsibility, I am not the decision-maker on the
proposed actions. That is your statement. Ms. Decker, which
management officials at BPA were the decision-makers who
proposed and implemented these adverse personnel actions?
Ms. Decker. Thank you, representative. So just maybe talk a
little bit about structure for a second.
Mr. Lynch. No, no, no, no, no, no, no, no, no. No, no, we
are not going to talk about structure and things like that. I
want the names of the people. If you are saying it was in your
line of responsibility.
Ms. Decker. Yes.
Mr. Lynch. And you didn't make it, and other people did,
and you do go on to say, about the process that was used, who
are the individuals that we should be talking to that made
these decisions not to hire veterans, or to limit the number of
veterans that we are hiring?
Ms. Decker. So, Mr. Representative, our human resources
director, in conjunction with the human resources manager for
staffing actually made--let me back up because I am under oath.
The decision on how the practice was implemented, I can't speak
to who specifically determined this was the interpretation
Bonneville would take. What I can tell you----
Mr. Lynch. Wait a minute. Wait a minute. In your testimony
here that you gave to the committee, you say it was made with
the consultation of a number of individuals. You said they were
qualified; they made the decision right down the line. You are
not going to tell me names?
Ms. Decker. Mr. Representative, what I said was that this
was in my line of authority. I was not the decision-maker. You
are asking two different questions. One is who was making
decisions on the performance management versus who was making
decisions on the policy. So I am not sure which answer----
Mr. Lynch. Well, give me them both. Give me one, then the
next.
Ms. Decker. Okay. The decision on the policy of the
implementation of the category rating would have been made by
the manager in the staffing.
Mr. Lynch. Who is that?
Ms. Decker. At the time--you know, I would have to go back
and see who the manager was.
Mr. Lynch. Wait a minute, wait a minute, wait a minute. You
forget?
Ms. Decker. I am not sure who the manager was of the
staffing----
Mr. Lynch. Okay, let's go to the next group, the other
group that decided policy. Do you remember those names? You are
under oath, now.
Ms. Decker. Yes, decided--but what I am not sure of is in
terms of the policy----
Mr. Lynch. You have to be kidding.
Ms. Decker.--it may have been Susan----
Mr. Lynch. You have to be kidding.
Ms. Decker. I will give you names. It may have been Susan
Burns. At the time I believe she was the manager of the
policy----
Mr. Lynch. Is that B-Y-R-N-S or----
Ms. Decker. B-U-R-N-S.
Mr. Lynch. All right, who else?
Chairman Issa. Briefly answer. The gentleman's time has
expired. And I do think that, secretary, that you and the IG
probably could answer this for the record very accurately.
Mr. Lynch. We are on the record.
Chairman Issa. No, I meant with qualified instructions
within the line. I am happy to have her, to the best of her
knowledge, answer your questions, but I ran an organization
that was only a few hundred people, and not being sure which
person--and I built the company.
Mr. Lynch. Sir, with all due respect.
Chairman Issa. The gentlelady may answer.
Mr. Lynch. With all due respect, though, we spent 20
minutes up here on a dance of what was personal and what was
not personal. Now we are getting down to the brass tacks of who
actually did this and we want to defer the question?
Chairman Issa. No, I am not deferring. Mr. Lynch, your time
has expired. What I said was the lady----
Mr. Lynch. Well, I am chatting with you.
Chairman Issa. I know. The gentlelady may answer to the
best of her knowledge or conjecture that it is one of a couple
of people, but she is under oath. She does not have the
documentation in front of her.
Mr. Lynch. She has her memory, though. That is all I am
asking her.
Chairman Issa. And that is all we have said. But she has
said she is not sure on a couple of cases.
So, Ms. Decker, you may answer those questions to the best
of your knowledge today, and the committee will ask the
secretary and the IG to provide such documentation so that we
may verify the accuracy.
Mr. Lynch. Okay, so can we have your answer to the
question?
Ms. Decker. I will answer the question. So I have--I will
answer the question. I have 2700 people that report to me.
Knowing specifically which manager, four levels down, that made
a decision on implementing a policy, I am not as clear about
who that specific person was, although I believe the name I
gave you is accurate.
In regard to the performance management, the performance
management decisions were made by first-line supervisors, not
all the same supervisor, and someone who was an employee
relations specialist, who is trained to work through
performance management issues with their manager and different
representatives of Bonneville legal counsel. They are each
handled individually given the circumstances of the
performance.
Mr. Lynch. So they all, on their own, decided to go with
this 95 percent level?
Ms. Decker. No, excuse me, representative. I was referring
to the individuals that have come under scrutiny or performance
scrutiny are not necessarily all in the staffing organization.
Chairman Issa. Thank you. The gentleman's time has expired.
We now go to the gentleman from Utah, Mr. Chaffetz.
Mr. Chaffetz. Thank you, and thank you all for being here.
Mr. Friedman, when did you first learn about the problems
that we are talking about today?
Mr. Friedman. The first allegations were received in June
and August of 2012.
Mr. Chaffetz. And are you aware of any BPA whistleblowers
who contacted your office who now face adverse personnel
actions?
Mr. Friedman. The answer to that is yes. Well, face or
faced. There have been intervening actions that have taken
place.
Mr. Chaffetz. Well, explain what has happened to these
people.
Mr. Friedman. Well, in one case a person was escorted off
the property and placed on suspension in anticipation of being
relieved of his or her responsibilities.
Mr. Chaffetz. And you believe the reason for that was
because they had contacted your office?
Mr. Friedman. I am relying upon what they told us. They
felt they were being retaliated against for raising this issue
either to our office or to Bonneville's management itself.
Mr. Chaffetz. Was there more than one person that went
through this?
Mr. Friedman. Variations on the theme, yes.
Mr. Chaffetz. How many are we talking about?
Mr. Friedman. Well, as the chairman alluded to, it is at
least five or six, and we have received additional allegations
since our report was issued and we are sorting through those
right now.
Mr. Chaffetz. What effect has this had on your
investigation?
Mr. Friedman. Well, it has a chilling effect on--we don't
know. We can't gage that. But, obviously, people who are
concerned about their jobs may--that is the whole point of
protecting these people--they may feel that if they are going
to be retaliated against for coming forward, that they will be
reluctant to do so. So it is an unknown. I can't prove the
unknown.
Mr. Chaffetz. But there is obviously a current, and that is
one of the concerns, is there starts to be a current here that
is a very either direct or indirect.
Mr. Poneman's comments are baffling to me, quite frankly,
sir. On the one hand you talk about the great openness and
transparency, the great ability for anybody to come forward. At
the same time you have people who say, well, we were told not
to, we were going to coordinate. In fact, in this letter of
July 24th of 2013, deputy general counsel wrote to Chairman
Issa: ``Rather, Bonneville was informed that this is a very
serious matter and that any external questions were to be
coordinated with the appropriate headquarters office,'' as if
the United States Congress was an external organization.
Mr. Friedman, doesn't that strike you as a contradiction?
Doesn't that strike you that if you are going to coordinate,
isn't that sort of code for you better not say anything unless
headquarters approves it?
Mr. Friedman. You are asking me for an interpretation,
Congressman Chaffetz, and I could interpret it one of two ways.
I could interpret it either way, frankly. One is that it is a
code, but I prefer the more benign interpretation, which is
that in an organization you do coordinate things; that is the
way things get done, things are accomplished.
Mr. Chaffetz. But that is contradictory to the idea that if
management, if Washington, D.C. is going to take the point on
answering these questions, you better let them answer these
questions, rather than you as an individual feeling free to
express your personal point of view and your personal
experience. Is that a leap too far in your mind?
Mr. Friedman. No, I don't think that is a leap too far, no.
Mr. Chaffetz. These allegations----
Mr. Poneman. May I comment on that?
Mr. Chaffetz. Not yet. Not yet.
Allegations of retaliation, again, any sense of how far and
wide this might be?
Mr. Friedman. Well, as I indicated earlier, I think we have
five or six cases that are ripe or getting ripe, but we have
had other allegations since the issuance of our report and we
don't know where those stand at this point.
Mr. Chaffetz. Mr. Poneman, we had a very senior official
there say that you did give a verbal order to acting BPA
Administrator Elliott Mainzer that nobody at BPA was allowed to
talk to anybody about the situation. Do you take issue with
that?
Mr. Poneman. I have no idea what others have said. I can
tell you what I said. And I have talked to Mr. Mainzer and I
have been clear beyond peradventure that anybody may step
forward. I said this to him verbally; he repeated it in an
email to the staff. I don't think there is any ambiguity
whatsoever.
Mr. Chaffetz. I beg to differ.
Mr. Chairman, I think as we talk to these whistleblowers,
and God bless them for stepping forward and offering a
perspective, it needs to be in context and with an objectivity.
I appreciate, Mr. Friedman, for your diving into this issue
and we look forward to your continued experience in sorting
this out.
Yield back.
Chairman Issa. I thank the gentleman.
We now go to the gentleman who represents a great many
Federal workers, Mr. Connolly of Virginia.
Mr. Connolly. Thank you, Mr. Chairman.
And welcome to the panel.
Mr. Friedman, I am puzzled by what my colleague, Mr.
Chaffetz just said. I have worked in the private sector and I
have worked in the public sector. I headed up a very large
government locally here. It would be unthinkable in either of
those enterprises that people could just Lone Ranger responses
to the Hill. Whether it was written inquiries or whether it was
a request to testify, you absolutely had to notify your
supervisor and you absolutely had to coordinate it; otherwise,
there is chaos. In the private sector company I am talking
about, we had 46,000 employees, and in the public sector
company I am talking about we had 36,000 employees, including
school employees. One can go wrong with allowing everybody to
do whatever they wanted whenever there was an inquiry here on
the Hill.
That is a recipe for chaos, is it not, Mr. Friedman, as a
management principle?
Mr. Friedman. I certainly see that possibility.
Mr. Connolly. Thank you. So the idea that somebody might
coordinate in no way, shape, or form, on its face, suggests
anything other than that very word, coordination. That is a
fair interpretation too, right, Mr. Friedman?
Mr. Friedman. I think it is a fair interpretation.
Mr. Connolly. So the idea that putting a sinister
interpretation on that word is certainly one interpretation,
and Mr. Chaffetz would have us believe apparently that is the
only interpretation. But I beg to differ, as somebody who has
managed large enterprises and been involved in the management
of large enterprises, both in the public and private sector,
dealing with this very subject. Frankly, given what could go
wrong with Federal employees coming before this committee,
especially, I would think lack of coordination would actually
be a reckless management act.
Mr. Chaffetz. Would the gentleman yield?
Mr. Connolly. No, I will not.
Mr. Deputy Secretary Poneman, it seems, based on what we
are looking at, that the Department reacted very aggressively
to these allegations and took some strong message, so I was
surprised to learn that Chairman Issa publicly accused you of
muzzling employees and obstructing the committee's
investigations. I mean, those are serious words. So I would
like to give you an opportunity to respond publicly. On July
17th Chairman Issa sent you a letter that said: ``Today I
learned on Monday''--that would have been July 15th--``you
verbally instructed Elliott Mainzer, the individual you chose
to act as acting administrator of BPA, that no BPA employees
were to talk with anyone regarding these allegations, including
congressional investigators.''
Did you in fact, Mr. Poneman, instruct Mr. Mainzer that no
BPA employees were to speak with congressional investigators?
Mr. Poneman. No, sir, I did not.
Mr. Connolly. Have you any idea why the chairman would make
such a charge when your testimony under oath here today is,
flat out, you did not do such a thing?
Mr. Poneman. No, sir, I don't know what information he was
basing that comment on.
Mr. Connolly. Can you tell us what you did tell Mr.
Mainzer?
Mr. Poneman. Absolutely, sir. I told him that it was
imperative, as I have maintained consistently in all
communications, that everybody understand clearly that there
can be no retaliation, no reprisal, no adverse action taken to
anybody for stepping forward and expressing their concerns in
any case. And, in fact, he followed up that conversation with a
communication to all BPA employees to that precise effect, so I
think he understood me rather clearly.
Mr. Connolly. Did you ever instruct anyone to muzzle BPA or
DOE employees?
Mr. Poneman. No, sir, I did not.
Mr. Connolly. Chairman Issa next warned: ``Obstructing a
congressional investigation is a crime.'' Now, that sounds a
little bit--well, it echoes a tactic used in a previous era
that is most unpleasant. And if the chairman really believes it
is a crime, then presumably this committee will pursue it to
the fullest. And then he, in fact, reminded you that that crime
statutes have a five year prison penalty, which seems
deliberately designed to intimidate you, but maybe he felt you
just needed to be reminded.
The very same day, however, that Chairman Issa claims you
ordered the muzzling, the Department sent its official response
to the IG, explaining that you had personally directed Mr.
Mainzer to instruct employees to cooperate.
Can you explain this seeming contradiction between the
chairman's conviction that a crime almost had been committed
and apparently your official response directing Mr. Mainzer to
in fact cooperate?
Mr. Poneman. Congressman, I can only speak to my own
actions and there, as I said, I have been consistent that
anybody in any setting, be they Federal employee or contractor
employee, has to feel free to step forward and express any
concerns that they may have to any properly constituted
authority. So I have been quite consistent on that. It never
would even occur to me to seek to be obstructing any such
inquiry, frankly.
Mr. Connolly. And, Mr. Chairman, just one last question to
the IG.
Mr. Friedman, is there anything in your findings or your
investigation that would contradict anything Mr. Poneman just
said to this committee under oath?
Mr. Friedman. We have no allegation, if that is what you
mean, Mr. Connolly, that Mr. Poneman has muzzled anyone.
Mr. Connolly. Do you have any information, did anyone come
forward from DOE or BPA to suggest to you that they had been
intimidated or coerced or discouraged from cooperating with
this committee in any way? Do you have any evidence of that as
the IG?
Mr. Friedman. Not from Mr. Poneman, with regard to Mr.
Poneman.
Mr. Connolly. Thank you.
Thank you, Mr. Chairman.
Mr. Jordan. [Presiding.] Thank you.
Mr. Poneman, you are deputy secretary, you are the number
two guy at the Department of Energy, is that correct?
Mr. Poneman. Yes, Mr. Chairman.
Mr. Jordan. And you have been there since 2009?
Mr. Poneman. Yes, sir.
Mr. Jordan. And you head up the Credit Review Board, is
that accurate?
Mr. Poneman. Yes, sir.
Mr. Jordan. So you were on the Credit Review Board when
decisions were made regarding giving taxpayer money to
Solyndra, is that correct?
Mr. Poneman. Actually, the original Solyndra decision, sir,
occurred before I arrived.
Mr. Jordan. Were you part of any discussions about the
taxpayer money that was given to Solyndra? Were you on the
Credit Review Board when some of that was discussed, yes or no?
Mr. Poneman. The subsequent issue that came up later, when
the loan was in trouble, was when I was at the Credit Review
Board.
Mr. Jordan. And what is the status of Solyndra today? Isn't
it true that Solyndra is bankrupt?
Mr. Poneman. I believe it is bankrupt, sir.
Mr. Jordan. Okay. So were you on the Credit Review Board
when Abound Solar was given taxpayer dollars as well, and a
loan guaranty?
Mr. Poneman. Abound was during our tenure, yes, sir.
Mr. Jordan. And isn't it true that Abound Solar is bankrupt
today, as well?
Mr. Poneman. I believe that to be the case.
Mr. Jordan. Okay. And were you on the Credit Review Board
when Beacon Power was given a loan guaranty?
Mr. Poneman. Yes, sir. I would note that there are----
Mr. Jordan. And isn't it true that Beacon Power is bankrupt
today?
Mr. Poneman. Yes, sir. And I would also note we have the
largest wind farm in the world; we have the largest
photovoltaic farm in the world.
Mr. Jordan. I am asking the questions here. And you were on
the Credit Review Board when the decision was made to give
Fisker a loan guaranty, isn't that true?
Mr. Poneman. Yes, sir.
Mr. Jordan. All right.
Mr. Poneman. And I was also there when Tesla repaid their
loan early, sir.
Mr. Jordan. I got that. Maybe we will get to that. I have a
series of questions.
And isn't it true that Fisker is in serious financial
difficulty, failed to meet the milestones established by the
company?
Mr. Poneman. Sir, I am not prepared to address the Fisker
matter today.
Mr. Jordan. Well, we had a hearing and they are in big
trouble.
And isn't it true that you were on the Credit Review Board
when Nevada Geothermal was given taxpayer money?
Mr. Poneman. I would have to look at the record, sir.
Mr. Jordan. Yes, we think it was. And isn't it true, Mr.
Poneman, that you were on the Credit Review Board when Solar
Power was given taxpayer money, as well?
Mr. Poneman. I would have to look, sir.
Mr. Jordan. And isn't it true, Mr. Poneman, that almost $15
billion of taxpayer money in the loan guaranty program was
given to 26 different projects? Is that accurate, $14.5
billion, 26 projects?
Mr. Poneman. Sir, we have deployed billions and we have
leveraged more, and we have to show for that large wind farms,
large solar farms, and a very, very small default rate, sir.
Mr. Jordan. And isn't it true, Mr. Poneman, that 22 of
those 26 projects had a credit rating of BB-, commonly referred
to as junk status?
Mr. Poneman. Sir, I would have to look at----
Mr. Jordan. Well, we have looked at the emails from
Department of Energy and we have looked at the facts, and that
is in fact the case. And now we find out, and now we find out,
as I look at this flowchart, where it says you are number two,
or this chain of command, that you were also the one directly
responsible for Bonneville Power Administration. The line goes
directly up to you. And we find out that this agency or this
Bonneville Power was discriminating against veterans. We find
out from Chairman Hastings that the Department has been
uncooperative was the term he used in inquiry he has made. The
chairman has said you have not been responsive. And then we
also find out from Mr. Friedman that there is retaliation going
on at Bonneville Power. All this is causing me concern about
what is going on in the Department of Energy.
Mr. Poneman. Sir, we always seek to be responsive. We
provide thousands and thousands of documents. We have consumed
less than 10 percent of the loan loss reserve set aside, which
I think is not a bad record, even the private sector. We are
always responsive----
Mr. Jordan. How many more billions of dollars do you plan
of loaning out of taxpayer money to other projects over the
course of this next year, Mr. Poneman, do you have any idea?
Mr. Poneman. We will have to see how many----
Mr. Jordan. Do you think your track record is going to get
better? Are some of these loans you are going to give to these
projects going to be better than BB-rated companies?
Mr. Poneman. Sir, the portfolio is healthy; it has been
looked at, it is being managed actively----
Mr. Jordan. Three companies bankrupt, four on the verge of
bankruptcy, and you call that healthy? That is seven out of 26.
Mr. Poneman. Sir, we have consumed less than 10 percent of
the loan loss reserve. The default rate is very minor.
Mr. Jordan. Seven out of 26, 22 out of 26 BB-rating.
Let me just put up one other thing. I want to ask you this
question. This is an email that we received and we will make it
available to everyone. This talks about you were recused from
decisions regarding Fisker. Tell me why you had to be recused.
Because you told me that you were on the Credit Review Board
when decisions were made about Fisker, but this says you were
recused from that. Why were you recused? Tell me the
circumstances around that.
Mr. Poneman. Sir, in 2008 there was a presidential election
coming up. I had begun to make some inquiries as to whether I
might need post-Government employment engagement. So when you
have engagement with entities, you file recusals, and that is
what I did.
Mr. Jordan. What was the entity that caused you to--were
you talking with Fisker directly?
Mr. Poneman. No, no, no, of course not, sir.
Mr. Jordan. Okay, so I am still not clear. Deputy secretary
is recused from Citibank. Citibank is involved in several loan
guaranty deals and they list Fisker there. So you were recused
because of your involvement with Citibank?
Mr. Poneman. I beg your pardon, sir?
Mr. Jordan. You had to recuse yourself from discussions
about Fisker because of your involvement with Citibank?
Mr. Poneman. I had a conversation with Citibank, which led
me to recuse myself from anything that----
Mr. Jordan. When did the conversation with Citibank take
place?
Mr. Poneman. I can't recall the exact date; I would have to
come back to you. This is a hearing on a different topic and I
had not prepared for this.
Mr. Jordan. Well, let me put up another slide, because I
just want to ask you, then, because I am curious, because we
have the minutes from the April 11, 2012 meeting, and as we go
through the minutes there are several questions. The next
project for review was Fisker Automotive. The deputy secretary
asked if any of these problems related to issues of A123
battery. The deputy secretary asked the company was it--the
deputy secretary asked this; the deputy secretary--so you were
critically involved in discussions about whether taxpayer money
was going to go to Fisker, which we know was on the verge of
bankruptcy, and yet we also have the email saying you were
supposed to be recused from any discussions about Fisker. So
what I want to know is----
Mr. Cummings. Mr. Chairman?
Mr. Jordan.--I want to know the timing of----
Mr. Cummings. Mr. Chairman? Would the chairman yield?
Mr. Jordan. I would be happy to yield.
Mr. Cummings. Just very briefly. You know, I have tried to
sit here and listen to this line of questioning that has
nothing to do with this hearing, and Chairman Issa and I have--
--
Mr. Jordan. I think it goes to the--if I could, to the
ranking member, I think it goes to the performance of the
Department of Energy as a whole and, obviously, when you are
discriminating against veterans and you have to recuse yourself
from taxpayer money given to organizations, I think it all is
applicable.
Mr. Cummings. I think that the other thing that I am
concerned about is you are asking Mr. Poneman some questions
and I want him to be frank and honest, but at the same time he
didn't come prepared, I don't think, to answer these questions,
as you can see, over and over again. But I just think that we
ought to try to stay within the limits of the hearing. That is
what this subject is. I tell my members on this side to
maintain some type of order. We can go over a whole landscape
of things and not really get to the bottom line here, but again
I reluctantly even mention this, because I do believe in a
certain amount of latitude, but at some point it just gets out
of line.
Mr. Jordan. I appreciate the ranking member's comments. I
would just say that Mr. Poneman is the deputy secretary,
basically runs the Department of Energy, is the number two guy
there. I asked him a question early on in my five minutes about
his involvement with the Credit Review Board and Fisker; he
said he was involved with that decision. Then further asked him
why he had to be recused subsequently from decisions regarding
Fisker and highlighted what we have in the emails. We would be
happy to let Mr. Poneman get back to us with an answer, but you
would think the number two guy at the Department of Energy
would know what he did relative--he was just bragging about
what a great program this is. You would think he would know,
with respect to Fisker, when he had to be recused and why he is
in the minutes from the meeting where they were deciding to
give taxpayer money to Fisker, a now bankrupt company. You
would think he could give some of those answers to us.
Mr. Poneman. Sir? Sir?
Mr. Jordan. Yes. The gentleman can respond.
Mr. Poneman. With due respect, sir, I did not act on Fisker
at any time after which I was recused, period. Thank you.
Mr. Jordan. I am asking when were you recused. That is what
I want to know. When was the date?
Mr. Poneman. We will provide you the date, sir. I did not
come prepared for this line of questioning.
Mr. Jordan. Okay.
The gentleman from Michigan is recognized.
Mr. Walberg. I thank the gentleman.
Just to make sure I have an understanding, Mr. Friedman,
are you aware of any BPA whistleblowers who contacted your
office who now face adverse personnel actions?
Mr. Friedman. I am not trying to put too fine a point on my
answer, Congressman, but they faced, past tense, potential
action, yes.
Mr. Walberg. What adverse actions did they face?
Mr. Friedman. Possible suspension.
Mr. Walberg. What effect does whistleblower retaliation
have on IG investigations?
Mr. Friedman. It has a potential chilling effect on our
ability to get people to be forthcoming, candid, and cough up
information that is essential to our work.
Mr. Walberg. So do you feel that the threat of retaliation
by BPA prevented other whistleblowers from coming forward, as
well as having a chilling effect on these whistleblowers?
Mr. Friedman. I can't--to paraphrase a former secretary of
defense, I don't know what I don't know, and I can't be sure
there were people who----
Mr. Walberg. Your best professional opinion.
Mr. Friedman. My best professional opinion is it put a
chilling effect on the work that we do. But the original
whistleblowers, if I may, were people who brought the problem
with regard to veterans' preference to the attention of
Bonneville's management, and then there were others who brought
it to our attention as well.
Mr. Walberg. Okay. Well, thank you.
Let me go from there to Ms. Decker. At what time did you
become aware of retaliatory adverse personnel actions?
Ms. Decker. So, Mr. Representative, I am not aware of
retaliatory adverse actions.
Mr. Walberg. None?
Ms. Decker. No.
Mr. Walberg. Then what role did you play in the
disciplinary process?
Ms. Decker. In the adverse actions that are in question?
There are adverse actions at play. I would submit they are not
retaliatory. I am not a decision-maker in those, but the role
that I played when they came to my attention----
Mr. Walberg. Yes, that is what I am asking, the role you
played.
Ms. Decker. The role that I played when they came to my
attention was to understand had there been consideration of the
whistleblower impact and had there been consideration for the
due process of managing performance. The answer I got, the
response I got from our legal counsel was that, yes, those
things had been weighed, and, yes, there are risks, but that it
did not preclude proceeding with the adverse action in terms of
performance accountability.
Mr. Walberg. What specific role did other BPA employees
play in the disciplinary process that you have described here?
Ms. Decker. Representative, as I started to say earlier,
the individuals in question have a supervisor. The supervisor
is best equipped to determine the performance of an individual.
So the supervisor was involved in terms of the individual's
performance. Beyond the supervisor at Bonneville, our practice
is to have someone from legal counsel and to have an employee
specialist work with the manager. In part, that is ensure that
there is not retaliatory actions, that legal counsel and the
employee relations specialist are watching for that as someone
goes on to performance action.
Mr. Walberg. So you personally took no actions in
relationship to allegations about retaliatory actions or
discipline?
Ms. Decker. What I did----
Mr. Walberg. Is that a correct understanding?
Ms. Decker. No. That would be depending on how you look at
that. So what I did do--my responsibility was to ensure that we
actually are following the processes that protect employees and
protect the agency. I did that. Again, I want to underscore
there was a first-line supervisor, a manager, a director,
another executive vice president before it got to me.
Mr. Walberg. Do you think the actions were fair,
ultimately?
Ms. Decker. Ultimately, I believe in the process that we
use and, yes, I believe that they are fair.
Mr. Walberg. Let me go further here. Randy Hardy, former
BPA administrator, recently stated that the BPA employees
claiming retaliation are ``poor performers who claim to be
whistleblowers.'' He further stated that is a frequent problem
with whistleblower laws. Do you agree with Mr. Hardy's
statement that the whistleblowers are poor performers trying to
insulate themselves from disciplinary action?
Ms. Decker. Representative, let me say this in terms of Mr.
Hardy's comment. In this case, I don't know the facts to know
whether that is true in this case. I think there is appropriate
whistleblowing. I think that is an important function that is
played by anyone who brings something forward. The issue of
someone's performance is oft-times a separate issue, and I
would not categorically say that someone who is whistle-blowing
is doing it to protect themselves from performance. But I also
know that management cannot turn a blind eye to performance
because someone has a protected status. And there is a chilling
effect upon managers, as well, if their view is they cannot
take any action.
Mr. Walberg. But Mr. Hardy went on to say that he thought
that was exactly what was at work here, in this instance, and
that is a concern. And that is not general statement, that is
specific to this issue.
Ms. Decker. And that is Mr. Hardy's opinion.
Mr. Walberg. Is that your opinion?
Ms. Decker. No, that is not my opinion.
Mr. Walberg. Thank you.
Thank the chairman.
Mr. Bentivolio. [Presiding]. Now going to the gentleman
from Indiana, Mr. Lankford. Excuse me, Oklahoma
Mr. Lankford. I will take it. Indiana is a great State as
well. But if I have the option, I will take Oklahoma, just
personally, for me.
Two questions here. Ms. Decker first. You had mentioned
before, in your oral testimony, that a mistake was made a year
ago and that mistake is being fixed. Can you clarify what you
mean by the mistake?
Ms. Decker. So Bonneville did implement the category rating
process incorrectly, as Mr. Friedman articulated. That was a
mistake. In terms of fixed, I would not call that it is fixed;
I would say that improper application of category ratings has
stopped. What is not fixed is the reconstruction of those jobs
during that time period that impacted veterans. We have not
fixed that yet. So we stopped the erroneous practice, and we
stopped it because we also saw that it was incorrect. If we
didn't think it was incorrect, we would still be doing it, and
the fact of the matter is we stopped back in May 2012.
Mr. Lankford. Okay, thank you.
Mr. Poneman, let me ask a little bit about just direction
for all the PMAs. While Bonneville is the one, obviously, we
are addressing on this now, is there an emphasis right now
between DOE to say, okay, we need greater oversight over all of
these different entities at this point? Is there more of a
regional focused decision-making? Where do you think the trend
is going right now as far as how decisions are made, whether it
be personnel or function or direction?
Mr. Poneman. I don't think there is a trend, Congressman.
As you note, all the power marketing administrations fall under
the authority of the Department of Energy, they are part of the
Department; they have various different legal authorities and
various and different traditions. We seek to have good
cooperative, coordinated relations with all of them, and I
think to a large measure we do.
Mr. Lankford. Secretary Chew had written a memo back in
March of 2012 that talks about just increasing--to work on
incentivizing energy-efficiency programs, integration of
variable resources, preparation for electric vehicle
deployment, and such. Are you familiar with that memo?
Mr. Poneman. I do recall it, sir.
Mr. Lankford. Just the preparation and the direction that
it needs to go on it. A general question on this, and it is a
difficult one because multiple administrations, both Republican
and Democrat, for the last 30-plus years have considered the
PMAs, and Bonneville specifically, as an entity that should be
privatized, that should be sold, and allow the power to go back
to the market as it does to other areas. What is the
consideration? While the consideration is happening at DOE
about functioning with how we need to direct the different
PMAs, is there also conversation about is this something that
should be on the market like other power distribution is?
Mr. Poneman. Sir, the conversations I have had about the
power market administrations, as far as I can recall, have not
touched on privatization, per se. I would note that when there
was so much concern generated by that memorandum, that we took
account of that and we had a whole, as I think you know,
because they included your region, a whole series of working
groups, and I think it turned out to be a very healthy exercise
to bring a lot of perspectives to bear and a so-called JOT
program that I think ended up providing a lot of very useful
information and a lot of good feedback with good policy
direction rolling forward for the PMAs.
Mr. Lankford. What happens if, in the days ahead, this
Congress were to look at it and say, okay, let's do an
experiment, let's pilot, let's find one of these areas and be
able to sell it, and to be able to have the power that is
generated for that area on the private market, as it does in
others? And I am very aware of all the parochial concerns that
immediately folks from that area panic and say we won't have
electricity in our homes because it will be on the private
market, and all that kind of stuff, as it in multiple other
areas. There are terrific assets that are there, but it is also
a liability to us, the line of credit, and it has a history
over the past 30 years of sometimes making money and sometimes
being a stretch on the Federal budget. So the question becomes
what would it take and are there considerations about selling
any of these assets.
Mr. Poneman. Sir, I am not aware of any conversations of
that character. We are, right now, of course, most directed by
the statutory bases of all four PMAs, which are different. The
thing that we are very focused on is they generally require us
to provide the least power available to the preference
customer, and so forth, and I am aware that there has been a
lot of interest in the ability that that has had in generating
economic growth in the region served by the PMAs.
Mr. Lankford. Great. This is not just a Republican issue;
Democrat administrations have brought this same issue up, as
well, over the years, to say there should be a serious
consideration to be able to look at not only for budget
realities, but just for fairness for the community that is
there and for the Federal taxpayer nationwide to look at it. So
what I am interested in is are there conversations like that
that have happened in DOE.
Mr. Poneman. Not that I have been party to or aware of,
sir.
Mr. Lankford. Okay. Thank you.
I yield back.
Chairman Issa. [Presiding.] I thank the gentleman.
We now go to the gentleman from Michigan, just north of
Indiana.
Mr. Bentivolio. Thank you, Mr. Chairman, and I apologize; I
did know he was from Oklahoma.
Getting back to veterans and hiring preferences, I think I
have a unique clarity because I am a Vietnam veteran, as well
as Iraq, and I remember coming home from Vietnam and applying
for work, and my fellow veterans were telling me don't put
Vietnam veteran on your resume, you will never get hired. So I
think I have a unique clarity.
And what was really upsetting to me when I read this, it
said that one of your middle managers, he or she would never
again hire a Vietnam veteran. That was a comment made by the
report from a whistleblower after they heard this from a middle
manager.
Have you ever served in the service, Mr. Poneman? How do
you pronounce that?
Mr. Poneman. It is Poneman, sir.
Mr. Bentivolio. Poneman. Thank you.
Mr. Poneman. My father was a World War II veteran, but I,
sir, have not served, but I strongly honor all service and
honor you for yours.
Mr. Bentivolio. Thank you very much. But, you know, I hear
that a lot too, thank you for your service, now get lost.
Mr. Poneman. And, sir, this is precisely why we are as
forceful as we are in ensuring that the veterans' preferences,
which are codified in law, are fully and faithfully executed.
Mr. Bentivolio. Did you ever talk to your father about his
experience in World War II?
Mr. Poneman. I absolutely did, many times. We lost him many
years ago, sir, but he served in Burma, he served in China, and
he was in the Signal Corps, and it was a formative experience
for him. And, by the way, he benefitted from the GI bill and
got some college education efforts, so we had a strong tie on
that.
Mr. Bentivolio. As did I. And thank you for his service.
Mr. Poneman. Thank you, sir.
Mr. Bentivolio. A lot of veterans tell me that when they
come home it is kind of like watching a movie, it is a 3-D
movie. Everything is live around them, but because they, I
guess, experience something uniquely different than everybody
else, it was like watching a movie; they weren't really
actually part of what they were watching because there was this
difference.
But the whistleblowers, Mr. Friedman, any of those
whistleblowers veterans?
Mr. Friedman. I don't know.
Mr. Bentivolio. Did you ask? You had about five or six,
right, and others?
Mr. Friedman. That is an interesting question. I don't
believe we have posed that question.
Mr. Bentivolio. Okay. Very good. Just a few more questions.
You had 146 cases of applications or people you were
hiring. Was that the extent? And what was the period? Two
questions. What was the period of hiring that we are discussing
and how many openings for jobs were there?
Mr. Friedman. Well, as I indicated, those are our
preliminary numbers. It covers a period of 2010, November 2010
to 2012, April or May of 2012.
Mr. Bentivolio. Okay. So out of 146 cases, you said how
many hired were actual veterans?
Mr. Friedman. I don't know how many hired were actual
veterans. What I have said is in two-thirds of the cases the
veterans were--there were prohibited personnel practices in
which veterans were disadvantaged.
Mr. Bentivolio. Did anybody tell you why, other than this
comment I hear that they bound with each other too quickly and
undermine management? I don't understand how that----
Mr. Friedman. Well, in terms of the actions that were taken
by Bonneville, what we were told by the hiring officials and
the program officials is they wanted to reduce the size of the
pool they had to deal with for selection purposes.
Mr. Bentivolio. Why do you think that is? I have a real
hard time with that because--well, go ahead, answer.
Mr. Friedman. Well, I have a hard time with it, too. That
is why we are doing what we are doing.
Mr. Bentivolio. Yes, I understand. So, let's see, I had one
other question. I can't remember what it is, so I will yield
back.
Chairman Issa. Will the gentleman yield?
Mr. Bentivolio. Yes.
Chairman Issa. Mr. Friedman, I would ask that you give the
committee the effective numbers, do the analysis based on the
known pool of how many veterans would have been in the pool had
it been at 90 percent and how many were in the pool each time
at a different number. I think both the ranking member and I--I
will let him have the rest of the time--would like to know the
effect of this change, even if we don't know the intent.
Mr. Friedman. Mr. Chairman, let me totally candid with you.
That question cannot be answered with any precision until all
the files have been reconstructed, and that is going to take--
that is not something that I can do; something that Bonneville
is going to be doing and the Department is going to be doing.
It is going to take months before that is done.
Chairman Issa. I appreciate it. We will be patient and we
will take partial reports as they become available.
Mr. Cummings?
Mr. Cummings. Thank you, Mr. Chairman. Just one quick
question.
How do we correct this? In other words, we talk about
correction. Discrimination is a buggerbear. It is criminal.
Because basically what you have done is deprived these veterans
of opportunities, and it just doesn't affect them; it affects
their families and generations probably yet unborn. I haven't
even gotten into the frustration piece.
Mr. IG, Mr. Friedman, if you were to find these violations,
will they go into any kind of corrective action?
But thank you very much, I appreciate it, Mr. Chairman.
Mr. Friedman. Well, Mr. Cummings, if, at the end of the
day, this pans out the way it is headed right now, and it is
going to take some time, we are going to have, hopefully,
recommendations that will get to the root causes of the
problem, at least the proximate causes of the problems at
Bonneville. We are hoping that there will be lessons learned.
Frankly, this whole exercise will have been for naught if there
aren't lessons learned that can be applied certainly throughout
the Department of Energy, and perhaps beyond, and that is our
hope.
Part of this, though, is a question of judgment and, Mr.
Cummings, I don't know that you can regulate judgment or
legislate judgment. People here knew there was a problem and
didn't correct it at the source, and that is a judgment call,
and I am not sure how you correct that, to be honest with you.
It is frustrating.
Chairman Issa. Thank you. We look forward to finding out
how we do that with the secretary.
Mr. Poneman?
Mr. Poneman. I would just like to add to that. We will
certainly benefit from whatever the IG finds, but our
responsibilities are not abated while he is doing his work. And
I just want to assure the chairman and the ranking member that
we have sent out, and we continue to send out, support. We have
people actually on the ground now instructing on how to execute
these laws and responsibilities appropriately so that the
veterans' preferences are fully respected. We are not awaiting
the outcome of any investigation to make sure we try to get at
the actual practices themselves and correct them so that these
problems don't recur and we fix them where they have occurred.
Chairman Issa. Well, we appreciate that. I think what the
ranking member and I are both getting to is you have a pool of
people who may have gone on to other jobs, may have done other
things, and may not even be interested in these positions at
this time. But until you essentially stop hiring anyone else,
look and find these people and offer them a job, you won't at
least have corrected the portion that is still within
correcting.
Mr. Poneman. And we are on that, Mr. Chairman. We are
working that issue.
Mr. Cummings. Mr. Chairman, I am so glad you said what you
just said, because you are right. These are people who lost out
on an opportunity and they probably can identify them. And I am
so glad you said that because it is just one of the ways, at
least, for people who, if we find out that they definitely were
discriminated against, they might at least have an opportunity
to be brought back into a pool which they should have been in
from the very beginning. So I do appreciate that, Mr. Chairman,
and I would hope that we would follow up on that.
Chairman Issa. Ms. Decker?
Ms. Decker. Mr. Chairman and Mr. Representative, if I could
comment on that. There is a process to reconstruct, and that is
what we need to get after. I think that is Bonneville's hope,
to get that done, and it is DOE's. I think that is one place I
can say there is agreement that that reconstruction process
needs to take place. And, yes, we can identify the pool of
folks that have been impacted.
Chairman Issa. Okay, we are going to go to Mr. Gowdy, who
has been patiently waiting, but affirmative action must be done
quickly to have any real effect on the lives that have been
disrupted as a result of wrongdoing. The ranking member said
generations unborn. We don't want to wait for the generation
unborn to be offered a job at Bonneville.
Ms. Decker. I hear you.
Chairman Issa. Or at some other equivalent place, which is
within the Department of Energy's ability. You have a very
large pool. If you had that entire list, you could offer them
an equal or greater. You could go a long way toward a
corrective action. And we are talking affirmative action here.
We are talking about a group that has been discriminated
against. They deserve to be recognized quickly and corrective
action separate from accountability, and I think that is what
the ranking member and I are so dedicated to and why we are
really having this hearing today.
The gentleman from South Carolina, Mr. Gowdy. Thank you for
your patience.
Mr. Gowdy. Thank you, Mr. Chairman, and I apologize to you
and my fellow committee members, Mr. Chairman. I was in the
back meeting with two constituents, so if I ask questions that
have already been asked, forgive me. It probably won't hurt the
witnesses to answer them more than once, so I will proceed on.
What evidence, Mr. Inspector General, do you have, if any,
of an intent to discriminate? Not a discriminatory effect, but
an intent.
Mr. Friedman. Mr. Gowdy, I want to answer your question as
directly and honestly as I can.
Mr. Gowdy. I am sure you will.
Mr. Friedman. There are two pieces here. One is the piece
we have talked about this morning, which is adjusting the cut
line in this system. We have no indication at this point that
it was an intentional, wilful attempt to discriminate against
people who were entitled to veterans' preferences. There are
other issues that we are looking at associated with the review
that we currently have ongoing which may cross into that
boundary. I have no idea where we are headed. I think you have
a prosecutorial background. We are following the facts where
they take us; we just don't know where it will be.
Mr. Gowdy. And that is exactly what I want you to do. So
you have concluded that there was a discriminatory effect, and
now you are trying to adduce whether or not there was
discriminatory intent.
Mr. Friedman. No. What I am saying is there are at least
multiple pieces to this inspection that we have ongoing. One
piece deals with the inappropriate adjustment of the best
qualified pool which resulted in applicants, including
veterans, being discriminated against.
Mr. Gowdy. That is the effect.
Mr. Friedman. We have no indication right now that it was
done willfully and intentionally in terms of affecting veterans
and those with veterans' preference.
Separate and apart from that, although part of the rubric
under which this whole investigation, this whole inspection is
undergoing, are certain additional instances which may cross
the boundary that you have described.
Mr. Gowdy. When was BPA first put on notice that the
practices were unlawful or discriminatory, regardless of
intent?
Mr. Friedman. In May or June of 2012.
Mr. Gowdy. What remedial steps were taken and with what
timeliness?
Mr. Friedman. We are told that the process at that point,
they stopped the process of adjusting the lower boundary for
the best qualified list.
Mr. Gowdy. Contemporaneous with you bringing it to their
attention?
Mr. Friedman. They received it from their own folks as
well, individuals in the human management program at
Bonneville.
Mr. Gowdy. Ms. Decker?
Mr. Friedman. However, Mr. Gowdy, an important point. This
is a two-part process. One is stopping the activity; the second
part, which Ms. Decker referred to and we refer to in our
report, which is, in a sense, as important, is that there are
remedial actions that need to be taken to address those who
have been negatively impacted. You must notify them----
Mr. Gowdy. Those are definitely two of the parts. I am
primarily interested in how we got to those two parts.
Mr. Friedman. Okay.
Mr. Gowdy. And I can start with Ms. Decker. I am interested
for the motive. What motive exists to have a discriminatory
practice that adversely impacts veterans, whether it was
intentional or not? What is the motive?
Ms. Decker. Representative Gowdy, as I understand it, there
was no motive to discriminate. There was a motive that was
inaccurately applying the category rating.
Mr. Gowdy. So you are just telling me it was simply
negligence that adversely impacted this discreet group, but
there was no intent to single out that group?
Ms. Decker. Absolutely not.
Mr. Gowdy. And what evidence do you have to support that?
Ms. Decker. The evidence I have to support that is that it
impacted both veterans and non-veterans. There were jobs where
there were no veteran candidates, and yet the category was
altered.
Mr. Gowdy. Who made the decision to adjust the parameters
that led to this?
Ms. Decker. They were made in our staffing organization.
Mr. Gowdy. Who was the boss? Who was the head of all of
them? Who is the final decision-maker?
Ms. Decker. So the director of the human resources
organization at that point was a gentleman named Roy Fox, and
he had a staffing manager. I do not know where the final
decision on how the application occurred was made.
Mr. Gowdy. I guess what I am trying to get at is somebody
did some adjusting. They had to have a reason for doing it.
They didn't read a horoscope that morning and decide to do it;
they had to have a reason to do it. What is the reason?
Ms. Decker. As I understand it, and this may not be a full
answer, as I understand it, the way they interpreted the
regulations, so their interpretation was faulty. They believed
that there could be a modification of the category after it was
initially set in the hiring process. That was inaccurate. You
cannot move the category. I don't know the specific motive of
the staffing manager to make that a policy call.
Mr. Gowdy. Mr. Chairman, I am out of time. I have one more
question. I will pose it and the chairman can decide whether or
not he would like it to be answered or not.
I understand, Mr. Chairman, that in January of 2012 DOE
gave BPA an award for hiring veterans. I am trying to figure
out how in the hell you can have a discriminatory practice,
intentional or otherwise, single out the people who bring it to
the authority's attention, the whistleblowers, and then qualify
for a DOE best practices award. I am having a tough time
reconciling all three of those. But I am also out of time.
Chairman Issa. Well, if someone can justify that or explain
it, I would appreciate it. Ms. Decker?
Ms. Decker. So there is a fine point that I would like to
underscore.
Chairman Issa. Sure. We want the record to be complete.
Ms. Decker. Okay.
Representative Gowdy, you asked a question of Mr. Friedman
whether the stopping of the practice at Bonneville was a result
of the IG. The stopping of the practice at Bonneville was a
result of staff talking to management and saying that they were
concerned about it, and that stopped the process. It was not--
--
Mr. Gowdy. Well, I am out of time, but if I weren't out of
time, I would ask you how long did that take. I mean, was it
stopped the hour that you learned of the practice, the minute
of it, the week, the month?
Ms. Decker. It was stopped within two days.
Mr. Gowdy. Okay. Well, then that leads to whether or not
you discovered it as timely as you should have.
Ms. Decker. We did not discover it as timely as we should
have.
Mr. Gowdy. Okay. Well, look, I am not adverse to giving
credit where credit is due, but I can't give you credit for
that fact pattern. And I still haven't heard an answer how you
qualify for a best practices award.
Mr. Poneman. I would----
Chairman Issa. This will be the final, final answer.
Mr. Poneman. Yes. I don't mean to delay the committee.
Chairman Issa. No. Please go ahead, secretary.
Mr. Poneman. This, as I said at the outset, congressman,
perhaps when you were not here, this is a storied and very
distinguished organization with a great history, and they have
done a lot of great things in a lot of great areas, and right
across the board. That doesn't obviate our responsibility to
make sure that in all cases the law is applied fairly
consistently and accurately. So it is certainly possible that
things can be happening in one part of the organization that
are fine and good, and there are things happening that are not
fine and good. The fact that something is going well in one
place does not, obviously, alleviate us of our obligation to
respect veterans' preferences and so forth. So that would be
all I would have to offer. I don't know the specific details of
the award that you mentioned, but in the question being how
that can happen, that is how it can happen, because we
acknowledge all aspects of performance; the good, the bad, and
everything in between.
Chairman Issa. Thank you.
Mr. Cummings, I am not going to do a second round, but do
you want to say anything in closing, or any final questions?
Mr. Cummings. I want to thank all of you for being here.
One of the things that I am hoping is that we address this
issue and it is addressed in a way that helps those who have
been left out. The chairman said something that I just want to
make sure that we are clear on. When I said that discrimination
might affect generations yet unborn, I want to first of all say
that I agree with him that I don't want to wait for
generations. That is not what I was trying to say. And he is
absolutely right, justice delayed is justice denied, and if we
can find remedies quickly and get people back and give them a
chance that they should have had, we need to do that as fast as
possible.
But what I was saying was I have lived long enough now and
seen enough to see when, say, that female is deprived of an
opportunity she should have gotten, then she can't do for her
children and, to me, that is criminal. So that generation of
children then don't benefit. And I have seen it with African-
Americans deprived over and over again, and then they die not
getting the opportunities they deserve. To me, that is criminal
because you basically have shut off opportunities for them in
the future, and for their children. And that is the point that
I was trying to make.
But I have to ask this one question. When Ms. Decker was
testifying just a moment ago in regard to Mr. Gowdy's
questions, Mr. Friedman, you kind of looked like you were in
total disagreement. Could you comment, please? I can't help but
watch you. And then that is my last question. Thank you.
Mr. Friedman. Mr. Cummings, I wish I could answer your
question. I don't know what my reaction may have been, what
comment----
Mr. Cummings. Was there something that she said that you
disagreed with? Just now.
Mr. Friedman. I really don't believe there was, Mr.
Cummings. I am sorry.
Mr. Cummings. All right, thank you.
Thank you, Mr. Chairman.
Chairman Issa. Thank you.
I am going to close with just a couple quick points.
Mr. Secretary, I know that within the Federal Government,
Ms. Decker is not the only person who is on administrative
leave, finding themselves being paid, but without a job. I
can't speak for the Government. I have only spent my military
time and then my time here with the Government. But this
practice under your watch, as essentially the chief operational
office at Department of Energy, this practice of not finding a
way to either begin direct disciplinary action or find some way
to get some modicum of benefit from somebody who is in the
Senior Executive Service who is highly paid. Now, I know that
sometimes people say, well, if you take me off administrative
leave and don't give an equal level job, that in fact I am
being punished, but I will tell you I would rather this
committee have to look at whether people are finding the
highest and best use for somebody that for some reason cannot
return to their exact position, I would rather have that then
have somebody who simply is being paid not to come to work.
That is somebody, a private citizen, and I am now speaking as a
taxpayer, that I think you can do better. Or Ms. Decker can be
told why she is on administrative leave and action could be
begun. And that is part of what we will be voting on the House
floor today. So that is not an order, it is just something from
a citizen who pays a not insignificant amount of taxes.
I am going to close. Mr. Connolly, while I was consulting
over there, went into one of his statements, and for some
reason every time I say something it seems like I get referred
to as tail-gunner Joe McCarthy. But I want to make sure I make
the record straight, because we didn't get into specifics, Mr.
Secretary, because we just wanted to make the record clear that
you will take the action to ensure that the committee gets
cooperation throughout any of our investigations. But I want to
make the record clear. A high ranking official said no one at
BPA was to speak about this outside of BPA and DOE, and that
that person alleged that it came from Mainzer, your appointee,
acting, and that he got it from you. So specifically following
up on that, we talked to the acting director there and he said:
``I personally have no problem sharing information with you.''
This was to my committee staff. ``But I don't feel like I have
the elbow room outside my chain of command to talk to you right
now.'' Now, that is your personally appointed acting.
We are not accusing you of deliberately obstructing our
investigation, and I tried to be very clear. But your way of
expressing coordination and so on may have very well been
interpreted by your key lieutenant at Bonneville Power, similar
to the statement he made directly to us, and that translates to
people saying, well, you know, we kind of have to get
permission to talk. That is all I was saying. I am not backing
off. If anything, I didn't plan on making the specifics of
these people public. But if somebody down the dais wants to say
that somehow I am making accusations, it isn't. My staff and
Mr. Cummings' staff often call directly to people we think we
should work with, sometimes because of something we are hearing
from the IG. And this is not the first time this ever happened
and this is not the first administration that it happened
under. But I brought it to your attention because I would like
to know that you can take the corrective action in how you
speak to your lieutenants so that they would feel that they
have the elbow room. Of course you want to be notified. That is
fine. But we want them to be able to speak candidly.
Mr. Poneman. Thank you, Mr. Chairman, for raising this.
This is, in fact, a very important issue that you raise, and it
is important to remember first principles. The first principles
is that not only do we accept, but we welcome the oversight of
this committee. It is part of the process that keeps our whole
system of government healthy, point one.
Point two, we always endeavor, sir, and I think we have a
good record and we always, as I say, we require that we improve
our performance by our own metrics, to be cooperative. One of
the things I have found, sir, in all candor, is that in the
jobs that we have, the first thing that happens, it is like a
kid's game of telephone, you say one thing and it becomes,
frankly, wildly distorted. So all I can do, and I am doing it
under oath and I have done it in private and I will do it in
public, is to be very, very clear. There is no tolerance for
reprisal for anybody communicating freely with all constituted
authorities, including this committee. That has been the
instruction. That will be the instruction.
And at the same time it is also very important, with a
large organization, that we communicate clearly and
authoritatively what our policies are, and we can't have,
obviously, 110,000 policies; we have to have one policy. So I
will be very mindful of making sure that people understand that
coordinating a policy position has nothing to do whatsoever
with the fact that every individual, be they contractor or
Federal employee, be free to step forward. The first job I was
given in 1989, Mr. Chairman, when I entered, on a fellowship,
the Department of Energy was writing the regulation to protect
contractor whistleblowers. So this is something that is
personal to me, as well, and we will continue to endeavor to be
cooperative and to be responsive. These are incredibly
important issues in the merits of the case, and we are going to
keep working at it and making sure we do it with the speed and
intensity and faith in the process and in our laws that is
required.
Chairman Issa. Thank you.
In closing, I trust that in your role over at the
Department of Energy, and for all the cabinet administrators,
that what has been discovered here and is still under an
inspection and ultimate decision, is being looked at by every
chief executive of every agency to find out whether it has
happened, somehow, on their watch. This is one of those things
where, and you worked in the nuclear world, if something
happens somewhere, anywhere to a nuclear facility or a product,
the first thing everyone says is could it happen to mine. If
you have a fleet of 737's and a plane crashes anywhere in the
world or has a problem, everybody inspects their aircraft.
The question of whether or not people have deliberately or
inadvertently been discriminated against is one that I would
trust that this hearing helps establish should be looked at not
later than today throughout all the Federal Government.
I thank you for your testimony. I believe it has been
helpful to that end.
We stand adjourned.
[Whereupon, at 12:22 p.m., the committee was adjourned.]
APPENDIX
----------
Material Submitted for the Hearing Record
[GRAPHIC] [TIFF OMITTED] T6720.013
[GRAPHIC] [TIFF OMITTED] T6720.014