[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]








MERIT SYSTEMS PROTECTION BOARD, OFFICE OF GOVERNMENT ETHICS, AND OFFICE 
                   OF SPECIAL COUNSEL REAUTHORIZATION

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                         GOVERNMENT OPERATIONS

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           December 16, 2015

                               __________

                           Serial No. 114-151

                               __________

Printed for the use of the Committee on Oversight and Government Reform



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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     JASON CHAFFETZ, Utah, 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
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
TIM WALBERG, Michigan                    Columbia
JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida                TED LIEU, California
MICK MULVANEY, South Carolina        BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina          MARK DeSAULNIER, California
ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia                PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama

                    Sean McLaughlin, Staff Director
                    Andrew Dockham, General Counsel
  Jeff Post, Government Operations Subcommittee Deputy Staff Director
                    Sharon Casey, Deputy Chief Clerk
                 David Rapallo, Minority Staff Director
                                 ------                                

                 Subcommittee on Government Operations

                 MARK MEADOWS, North Carolina, Chairman
JIM JORDAN, Ohio                     GERALD E. CONNOLLY, Virginia, 
TIM WALBERG, Michigan, Vice Chair        Ranking Minority Member
TREY GOWDY, South Carolina           CAROLYN B. MALONEY, New York
THOMAS MASSIE, Kentucky              ELEANOR HOLMES NORTON, District of 
MICK MULVANEY, South Carolina            Columbia
KEN BUCK, Colorado                   WM. LACY CLAY, Missouri
EARL L. ``BUDDY'' CARTER, Georgia    STACEY E. PLASKETT, Virgin Islands
GLENN GROTHMAN, Wisconsin            STEPHEN F. LYNCH, Massachusetts



























                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on December 16, 2015................................     1

                               WITNESSES

The Hon. Susan Tsui Grundmann, Chairman, U.S. Merit Systems 
  Protection Board
    Oral Statement...............................................     4
    Written Statement............................................     6
The Hon. Walter M. Shaub, Jr., Director, U.S. Office of 
  Government Ethics
    Oral Statement...............................................    15
    Written Statement............................................    17
The Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of 
  Special Counsel
    Oral Statement...............................................    27
    Written Statement............................................    29

                                APPENDIX

Response from the Hon. Susan Tsui Grundman to Questions for the 
  Record.........................................................    58
Response from the Hon. Walter M. Shaub to Questions for the 
  Record.........................................................    69
Response from the Hon. Carolyn N. Lerner to Questions for the 
  Record.........................................................   112

 
MERIT SYSTEMS PROTECTION BOARD, OFFICE OF GOVERNMENT ETHICS, AND OFFICE 
                   OF SPECIAL COUNSEL REAUTHORIZATION

                              ----------                              


                      Wednesday, December 16, 2015

                  House of Representatives,
             Subcommittee on Government Operations,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 11:10 a.m., in 
Room 2154, Rayburn House Office Building, Hon. Mark Meadows 
[chairman of the subcommittee] presiding.
    Present: Representatives Meadows, Jordan, Walberg, Buck, 
Carter, Grothman, Chaffetz, Connolly, and Norton.
    Mr. Meadows. The Subcommittee on Government Operations will 
come to order. Without objection, the chair is authorized to 
declare a recess at any time.
    Today's hearing will examine the reauthorization of three 
important agencies for our Federal workforce, specifically the 
Merit Systems Protection Board, the Office of Government 
Ethics, and the Office of Special Counsel. The authorizations 
of the MSPB and the OGE and the OSC all expired at the end of 
fiscal year 2007. However, given the important work that each 
of these agencies perform, their funding has continued.
    Still, in the nearly 10 years since their authorizations 
have expired, there has been little opportunity for even the 
most basic and needed reforms at these agencies. So, today, we 
will begin to have this conversation about reform and 
reauthorization for these agencies.
    I'd like to highlight that as we go into a different type 
of appropriations season next year, this becomes even more 
critical and thus the reason for this hearing today. During 
this hearing, we'll have the opportunity to learn more about 
the MSPB and its efforts in overseeing the Federal Merit 
System; obviously, the OGE and its oversight role of the 
executive branch ethics program; and OSC and its efforts to 
protect Federal workers and applicants from prohibited 
personnel practices, especially the retaliation for 
whistleblowing. All three organizations have a very important 
role for the executive branch agencies and Federal employees.
    As part of the reauthorization of these agencies, we will 
also examine and discuss the agencies' proposals for changes in 
some of their procedures and operations. We will hear testimony 
from the Chair of the MSPB, Susan Tsui Grundmann. Chairman 
Grundmann can provide information on the current state of the 
MSPB accomplishments made by the agency and the challenges 
ahead.
    And the Director of OGE, Walter Shaub, will update us on 
the OGE's oversight and leadership role of the executive branch 
ethics program and prevention of the conflict of interest. In 
addition, Director Shaub, on the outline of OGE's preparation 
for the upcoming Presidential transition.
    From OSC, Special Counsel Carolyn Lerner joins us today. 
Special Counsel Lerner can provide us with information on OSC's 
role in protecting Federal employees from prohibited personnel 
practices and its efforts at investigating allegations of 
whistleblower retaliation, evaluating disclosure cases, 
enforcing and evaluating complaints under the Hatch Act, and 
protecting members of the armed services under the Uniformed 
Service Employment and Reemployment Rights Act.
    We look forward to hearing from all of our witnesses and 
obtaining a better understanding of the proposed 
reauthorization language.
    So I now recognize Mr. Connolly, the ranking member of the 
Subcommittee on Government Operations, for his opening 
statement.
    Mr. Connolly. Thank you, Mr. Chairman.
    And thank you for holding this hearing in the last 2-1/2 
days of the first session of the 114th Congress.
    I have three hearings today. I belong to two committees 
that passionately believe no human challenge, no human problem 
cannot be improved with another hearing. So we are glad we are 
getting around to this one.
    These three agencies in front of us, the Merit Systems 
Protection Board, the Office of Government Ethics, and the 
Office of Special Counsel, are among the smallest agencies in 
the Federal Government, but their work has a tremendous impact 
on the Federal workforce.
    The authorizations for each of these agencies unbelievably 
expired 8 years ago, in 2007, Mr. Chairman. And they have been 
sustained by annual appropriations, so congressional action, 
including by this committee, is long overdue. It's especially 
important given the critical work that these agencies perform.
    I want to thank our witnesses for being here today. 
Particularly, I want to commend them for the vitally important 
work they do and their staffs perform to ensure that the 
Federal civil service is merit-based, not subject to political 
influence or ethical conflicts of interest, and free of 
prohibited personnel practices, such as retaliation for 
whistleblowers, as you pointed out, Mr. Chairman.
    MSPB's 200-person staff is charged with adjudicating 
appeals relating to adverse employment actions, such as 
removals and suspensions over 14 days, veterans' and 
whistleblowers' rights, and Federal disability and retirement 
claims.
    MSPB is seeking 5-year reauthorization through fiscal year 
2020 and is proposing that the Office of Personnel Management 
and other agencies assist it in conducting employee surveys. I 
look forward to a discussion of this as we proceed.
    I also would like to hear about MSPB's efforts to address 
recent challenges, including adjudication of 32,000 appeals 
filed by Federal employees who were furloughed in the shutdown 
in 2013 due to sequestration, budget cuts, and implementation 
of 2014 Veterans Access, Choice and Accountability Act.
    The Office of Government Ethics employs 80 individuals who 
prepare and issue standards of ethical conduct for the fellow 
workforce and oversee agency ethics programs. OGE seeks its 7-
year reauthorization, which follows previous congressional 
practice to avoid the need to seek reauthorization during the 
first and last year of Presidential terms. I'd like to better 
understand the steps that the agency has taken to implement the 
2012 Stop Trading on Congressional Knowledge Act, or STOCK Act. 
I would also like to hear about the agency's preparations for 
the next Presidential transition.
    The Office of Special Counsel's primary mission is to 
protect Federal employees from prohibited practices. It serves 
as the frontline of defense and protection for whistleblowers 
who disclose government wrongdoing, something particularly 
important to this committee and our subcommittee. The agency 
seeks a 5-year reauthorization. It is proposing several 
legislative changes that would, among other things, enhance its 
access to Federal agency information, increase agency 
accountability and whistleblower disclosure cases, and modify 
procedural requirements for certain prohibited personnel 
practices.
    I am pleased that OSC has achieved settlements in numerous 
cases on behalf of Veterans Administration employees who were 
retaliated against because they stepped forward to blow the 
whistle on both the backlog and the lack of quality of care for 
some of our veterans.
    OSC was also instrumental in drawing congressional 
attention to the disclosures by Department of Homeland Security 
employees regarding the abuse of administratively 
uncontrollable overtime. Those disclosures caused DHS to stop 
the improper use of these payments and resulted in the passage 
of legislation establishing a new pay system for Customs and 
Border Patrol agencies.
    Mr. Chairman, the fact that these agencies have now gone 8 
years without being reauthorized is a terrible abrogation of 
our responsibility, congressional responsibility. And I 
certainly pledge to work with you in trying to rectify that 
situation.
    Thank you for holding this hearing.
    Mr. Meadows. I thank the gentleman.
    I'll hold the record open for 5 legislative days for any 
member who would like to submit a written statement.
    We will now recognize our panel of witnesses. I'm pleased 
to welcome Honorable Susan Tsui Grundmann, Chair of the U.S. 
Merit Systems Protection Board; the Honorable Walter Shaub, 
Jr., Director of U.S. Office of Government Ethics; and the 
Honorable Carolyn Lerner, special counsel at the U.S. Office of 
Special Counsel.
    Welcome to you all.
    And pursuant to committee rules, all witnesses will be 
sworn in before they testify. So if you would please rise and 
raise your right hand.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    Thank you. Please be seated.
    Let the record reflect that all witnesses answered in the 
affirmative.
    In order to allow time for discussion, please limit your 
oral testimony to 5 minutes, but your entire written statement 
will be made part of the record.
    And, Ms. Grundmann, you are recognized for 5 minutes.

                       WITNESS STATEMENTS

        STATEMENT OF THE HONORABLE SUSAN TSUI GRUNDMANN

    Ms. Grundmann. Thank you. Good morning, Mr. Chairman, 
Ranking Member Connolly, Chairman Chaffetz, and distinguished 
members of this committee.
    On behalf of MSPB and our 220 employees, thank you, Mr. 
Chairman, for bringing us all together.
    It has been both an honor and a privilege to serve as the 
Chairman of the MSPB and its dedicated workforce for the last 6 
years; the last 3 of which have been among the most eventful 
and challenging in our history. These years have also been 
among the most rewarding.
    We are proud of what our agency, through its employees, has 
accomplished during incredibly trying times and the role that 
we have played in a variety of matters related to the overall 
operation of the Federal civil service.
    During the last 4 fiscal years, our agency has issued over 
61,000 decisions. Over 54,000 of them were issued by our 65 
administrative judges, the other over 6,200 were issued by the 
three, now two, board members in headquarters.
    Our numbers are staggering due largely to, as you say, the 
32,000 furlough appeals we received during the summer of 2013 
as a result of sequestration budget cuts. In a normal fiscal 
year, our agency processes about 6,000 to 7,000 in the regions 
and about 700 to 800 in headquarters.
    The last 2 years have been anything but normal with a 
workload five times a regular fiscal year. And while processing 
times have been adversely impacted, I am proud to report two 
significant accomplishments. We have completed almost 97 
percent of our furlough cases. And while we have quantity in 
abundance, the quality of our decisions is ever constant. Our 
affirmance rate by our reviewing court, the U.S. Court of 
Appeals for the Federal circuit, is at a 4-year high, holding 
steady for a second year in a row at 96 percent.
    And with performance at an all-time high, our employee 
commitment and satisfaction reflected in our employee viewpoint 
survey results have dramatically improved from last year as 
well. With a 72-percent response rate, we showed improvement, 
sometimes dramatic, in the 71 of the 72 core EVS questions, 
with the greatest positive responses in communication from 
leaders, high rates of motivation, commitment to the work, and 
the agency's purpose, which is to safeguard, protect, and 
promote the nine merit principles.
    And while we do not know what the future holds for us in 
terms of factors and resources impacting our workload, this 
year's results are particularly encouraging as they come at a 
time when workload is at its peak, but employee morale and 
commitment did not falter. This year, we jumped eight slots 
from last year's rankings. And it is this commitment as 
recently as last week that the Partnership for Public Service 
recognized by ranking us eighth among small agencies in best 
places to work and the fifth most improved small agency in 
2015.
    I understand that you, Mr. Chairman, have been paying 
visits to the agencies that have been doing well. I hereby 
cordially invite both you and Ranking Member Connolly to pay us 
a visit one day soon.
    Even though a great deal of our agency time has been 
dedicated to our adjudication function, our statutory studies 
function continues to produce high-quality, relevant reports 
that are significant to the deliberations of this subcommittee. 
Unlike our adjudication function, which looks backwards in time 
at events passed, our studies function is forward-looking, 
garnering a series of best practices that can and often become 
the basis of legislative or regulatory reform.
    Some of our past reports have been uncanny in terms of 
their timing with respect to this committee's work, such as our 
barriers to whistleblowing, issued in 2011, which we believed 
helped assist in the passage of the Whistleblower Protection 
Enhancement Act in 2012; our veterans' rights report in 2013; 
our Federal due process report, published earlier this year 
during the dialogue in the VA Accountability Act; and our new 
SES training report, which we will release this week, and we 
hope that will assist in the discussion and development of 
initiatives by OPM following the new executive order on SES 
training and development just issued last night.
    Mr. Chairman, we welcome this occasion for reauthorization. 
We welcome this opportunity to tell our story. But as you note, 
we have only one legislative proposal solely dedicated to our 
studies function, which I will be happy to discuss with you. In 
the meantime, our work continues, but things are going well. 
Thank you.
    [Prepared statement of Ms. Grundmann follows:]
    
    
    
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       Mr. Meadows. Thank you so much.
    Director Shaub.

        STATEMENT OF THE HONORABLE WALTER M. SHAUB, JR.

    Mr. Shaub. Chairman Meadows, Ranking Member Connolly, and 
Chairman Chaffetz, and members of the subcommittee, thank you 
for the opportunity to testify on behalf of the reauthorization 
of the Office of Government Ethics. I'm happy to be here with 
my colleagues from OSC and MSPB.
    OGE was established by the Ethics in Government Act of 
1978, which came out of the same committee in the same month as 
the Inspector General Act.
    Congress established OGE as part of a broader framework for 
integrity which is coordinated among a variety of executive 
branch entities. Among others, this includes OSC, MSPB, and the 
14,000-member inspector general community. The language of the 
Ethics in Government Act makes clear that the primary mission 
and objective of the ethics program is one of prevention. The 
program works to prevent conflicts of interest so that the 
American people can be confident that public servants make 
decisions based not on their own financial interest but on the 
interests of the public. Congress designed this program to be 
decentralized, with OGE setting ethics policies and agency 
ethics offices carrying out day-to-day operations.
    Our strategic goals focus on the three pillars of 
uniformity, continuity, and transparency. OGE's work includes a 
wide range of activities for a small agency of about 70 
employees. Much of that work can be grouped into the following 
general areas: Nominations and support for Presidential 
transitions; regulations and guidance; oversight of agency 
ethics programs; development of an electronic filing system; 
assistance to stakeholders; ethics education; and engaging 
leaders in ethical compliance and ethical culture.
    My written testimony details OGE's accomplishments in these 
areas. I'll just highlight a few. Since I became Director in 
January 2013, we have leveraged technology to deliver more 
training, with our classes going from 1,400 attendees a year to 
7,500 attendees in 2015. And 90 percent of customers surveyed 
said the training helped them to do their jobs better.
    Through innovative new approaches, we've also cut costs. 
For example, we hosted our 2014 national ethics summit for less 
than 1 percent of the cost of OGE's traditional conferences. In 
2015, we showed 59 reports in our oversight reviews of agency 
ethics programs, and we are on pace to review all agencies 
before the end of my 5-year term.
    We have improved our financial disclosure program by going 
paperless and cutting review times for annual reports from 180 
days to 30 days. As required by the STOCK Act, we developed an 
electronic filing system for financial disclosure. In less than 
a year, we have registered about 10,000 employees and, as of 
yesterday, 90 agencies in that system. And 90 percent of agency 
administrators who operate the system for their agencies were 
surveyed and rated the system favorably.
    In 2015, we responded to about 2,000 requests for 
assistance from agencies. And 91 percent of agency ethics 
officials surveyed said our assistance helped them do their 
jobs. We received another 700,000 requests from outside the 
government.
    Since our last authorization expired, we have issued over 
100 legal advisories. This year, 98 percent of responders to 
our survey said these advisories helped them in their work. We 
also actively support the enforcement community. As Director, I 
am statutory member of CIGIE, the Council of the Inspectors 
General on Integrity and Efficiency, as well as CIGIE's 
Integrity Committee. OGE also provides IG staffs and 
prosecutors with legal advice and training.
    Looking forward, our next big challenge will be the 
Presidential transition. A Presidential transition is a 
critical time when the Nation is vulnerable with the potential 
for man-made, natural, and economic disasters to strike while 
the government's top positions are vacant. OGE makes sure that 
nominees are free of conflicts of interest so that top 
leadership positions can be filled quickly.
    During a transition, our nominee work triples in volume and 
increases in complexity. The challenge is nothing short of 
extraordinary, and it requires a full commitment of resources. 
We're doing everything possible to be ready for the transition 
because we know how important it is.
    Finally, we have submitted a legislative proposal to amend 
this Ethics in Government Act. Because the systems in place are 
working, the proposal is limited to technical corrections.
    We are also seeking reauthorization through 2022 so that 
the next reauthorization does not coincide with a Presidential 
transition, when OGE's resources will be stretched thinnest, 
but we are more than happy to talk to you at any time in 
between.
    So thank you for the opportunity to testify today.
    [Prepared statement of Mr. Shaub follows:]
    
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    Mr. Meadows. Thank you for your testimony.
    Ms. Lerner, you are recognized for 5 minutes.

          STATEMENT OF THE HONORABLE CAROLYN N. LERNER

    Ms. Lerner. Thank you, Chairman Meadows, Ranking Member 
Connolly, and members of the subcommittee.
    Thank you for the opportunity to testify today about the 
U.S. Office of Special Counsel. I also want to thank Chairman 
Chaffetz for your being here today and for your ongoing 
interest in OSC's work. Under your leadership and with Ranking 
Member Cummings, we reformed the Hatch Act in 2012 and, last 
year, in response to whistleblower disclosures and your 
oversight, prompted changes to overtime at the Department of 
Homeland Security, saving hundreds of millions of dollars a 
year. So thank you for being here.
    I am also pleased to be here today with Chairman Grundmann 
and Director Shaub. I appreciate the committee's interest in 
reauthorizing OSC. The Office of Special Counsel provides a 
safe and secure channel for government whistleblowers who 
report waste, fraud, and abuse, and threats to public health 
and safety.
    OSC also protects veterans and servicemembers from 
discrimination under the Uniformed Services Employment and 
Reemployment Rights Act, or USERRA, and we enforce the Hatch 
Act, which keeps partisan political activity out of the 
workplace.
    By nearly every statistical measure, OSC is operating more 
efficiently and effectively than at any time in its history. 
For example, in 2015, OSC received and resolved approximately 
6,000 cases, a 55-percent increase since I took office in 2011.
    We are also getting better results for whistleblowers. For 
instance, in 2015, OSC secured 268 favorable actions, up from 
only 29 favorable actions a few years ago.
    Beyond statistics, our successes in individual, high-impact 
cases show how OSC promotes better and more efficient 
government. For example, our work with whistleblowers has 
prompted improvements at VA medical centers across the country. 
It has saved hundreds of millions of dollars every year in 
overtime payments at the Department of Homeland Security. And 
we helped the Air Force fulfill its sacred mission on behalf of 
fallen servicemembers and their families.
    We are promoting integrity through a robust enforcement of 
the Hatch Act, and we are protecting the jobs of returning 
servicemembers and members of the Reserves and Guard.
    Many of our recommendations for OSC reauthorization would 
help to ease the burden resulting from the increased demand for 
our services. In addition to reauthorizing OSD for 5 years, we 
have some recommendations.
    First, we ask Congress to streamline OSC's access to agency 
information. This will assist our investigations of retaliation 
and reviews of whistleblower disclosures. Statutory access to 
agency records would be similar to the authorities provided to 
the inspectors general and the Government Accountability 
Office. It will help avoid unnecessary and duplicative 
government investigations and lead to quicker and better 
results.
    Second, we ask that Congress increase agency accountability 
in whistleblower disclosure cases. Over the last 3 years, 
agencies substantiated 90 percent of the allegations that we 
referred to them for investigation. Typically, the agency will 
commit to taking corrective actions to remedy the misconduct. 
But sometimes the corrective plans are insufficient or their 
actions are incomplete at the time that I send my final report 
to the President and to Congress.
    When there is substantiated misconduct, we recommend that 
Congress require agencies to provide an explanation if they 
fail to take an action, including disciplinary action. And for 
any agency action that is planned but not yet implemented, OSC 
should have statutory authority to request detailed followup 
information.
    Third, Congress should consider reducing the procedural 
requirements imposed on OSC in certain prohibited personnel 
practice cases. The current requirements are onerous and 
unnecessary. In every case, regardless of the merits, title V 
requires OSC to take several procedural steps before closing a 
file. These requirements are unique to OSC and use a large 
amount of our resources. The proposed changes would allow us to 
generate more positive outcomes on behalf of whistleblowers and 
the American taxpayers.
    Fourth, OSC recommends that Congress eliminate the annual 
survey requirement that was passed as part of a prior OSC 
reauthorization. In addition to having little statistical or 
informational value, the survey is costly and time-consuming, 
and it takes away from our other duties. We recommend that 
Congress eliminate this requirement so OSC can dedicate our 
limited resources to actual case work.
    Finally, my written testimony includes some additional 
proposals that are of a technical nature.
    I want to thank you for considering these options to 
improve OSC's authorities. I would be very happy to answer any 
questions that the committee may have.
    [Prepared statement of Ms. Lerner follows:]
    
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    Mr. Meadows. Thank you, Ms. Lerner.
    The chair will recognize himself for 5 minutes for a series 
of questions.
    Thank you for the invitation. I can tell you we'll take 
note of that. One of the things that the ranking member and I 
enjoy doing is actually reaching out to a number of the Federal 
agencies. I've been concerned, I guess, and very surprised to 
find that many times as we have made the visit, it is sometimes 
the first time a Member of Congress has ever shown up at an 
agency. So shame on us. I am committed, along with my ranking 
member, to make sure we change that. So thank you for the 
invitation.
    Let me focus real quickly on the whistleblower aspect 
because I think we've got, Ms. Grundmann and Ms. Lerner, two 
different kinds of areas that address that. But as we look at 
whistleblowers, one of the reoccurring themes that has been 
very disconcerting to me has been the retaliation against 
whistleblowers and, in even in highlighting that, that it 
continues to go on. And so what happens is it has a chilling 
effect on those who are willing to speak up. We did an email 
address here which was a ``Tell Mark'' email address, and we 
started getting all kinds of whistleblower information, but the 
overriding concern, in fact, I've gotten from the Secret 
Service, a number of agents who have called me from New York to 
California and in between, is that they want to do it 
anonymously because there has been retaliation in real terms, 
whether it be with lack of promotion--sometimes it is more 
subtle. How do we work with your two agencies to make sure that 
we correct that? Anybody want to weigh in on that?
    Ms. Lerner?
    Ms. Lerner. Sure, well, they would start with us. And if an 
employee has a complaint, either a disclosure of waste, fraud, 
or abuse, or a health or safety issue, which we've been seeing 
in greater increasing amounts from the VA especially, they can 
come to us and say they want to do it anonymously.
    Mr. Meadows. But here is what I'm finding is, is as they do 
that, the minute they raise that profile, what happens is, is 
somehow the information leaks out. I guess my question is, is 
there any special intervention that the special counsel does 
when we see it trying to undermine the very rules that we have 
in for whistleblower protection?
    Ms. Lerner. Sure. We have a very robust Investigation and 
Prosecution Division that if there is any instance where a 
whistleblower believes that they are being retaliated against 
after having come to our agency and making disclosure, we can 
start with the agency by requesting an informal stay of any 
personnel actions. So if someone is threatened with their job 
or even threatened with like a demotion or a move, we can go to 
the agency and say: You need to stop; we think there is a basis 
here.
    If they won't agree voluntarily to stop the adverse action, 
we can go to the Merit Systems Protection Board and formally 
ask them to do it.
    I should tell you: Whenever we make a disclosure or send a 
disclosure over to an agency, we include in our referral sort 
of a warning that says, ``You need to make sure and take active 
steps to make sure there is no retaliation against the 
whistleblower.''
    Mr. Meadows. So which agencies would you say have the worst 
track record as it relates to protecting whistleblowers.
    Ms. Lerner. Well, in terms of pure numbers, we get the most 
complaints--in the last 2 years--from the Veterans 
Administration.
    Mr. Meadows. But they feel a protection because it has been 
high profile. So outside of Veterans, who would it be?
    Ms. Lerner. Our second--well, I'm not sure that they do 
feel protection. I mean--I'm sorry, the whistleblowers feel 
protection, or the VA does?
    Mr. Meadows. No. Which agencies have the poorest record of 
protecting the whistleblowers? For example, giving retaliation 
in such a way that may not be direct retaliation, but it's 
indirect retaliation in that they get transferred or they don't 
get to move up because the retaliation is a lot more subtle a 
lot of times than what we're seeing. How do we address that?
    Ms. Lerner. I think the first way is to send a strong 
message, has to start from the top of the agency that says: 
Retaliation isn't going to be----
    Mr. Meadows. I guess what I am looking for is for this 
committee, what would be the three agencies we would need to 
look at closest as it relates to whistleblower retaliation?
    Ms. Lerner. In terms of pure numbers, the VA is first.
    Mr. Meadows. Okay. Who's second?
    Ms. Lerner. Second is the Department of Defense. And I 
should note that the Department of Defense has double the 
number of civilian employees as the VA.
    Mr. Meadows. And who would be third?
    Ms. Lerner. Department of Homeland Security is probably----
    Mr. Meadows. So all big, big----
    Ms. Lerner. The large agencies have the largest numbers. I 
should say that the one agency where we have received a 
surprisingly small number of complaints is from the Secret 
Service.
    Mr. Meadows. I can tell you that's very troubling because 
they have found my phone number, and I'm getting--you may get 
the smallest amount, but I can tell you also--and I know that 
he slipped you the note that you have got the smallest amount. 
I can give you a plethora of complaints as it relates to that.
    One of the instances that I'm very concerned about is that 
once a whistleblower had made one particular comment, that 
there was an interview of almost every single employee trying 
to find out who that person was, and that's the kind of 
draconian management style that this committee is not going to 
adhere to. I'll go ahead and recognize the ranking member for 5 
minutes for his questions, a generous 5 minutes.
    Mr. Connolly. Thank you, Mr. Chairman.
    Ms. Grundmann--if we can hold on time.
    Ms. Grundmann?
    Ms. Grundmann. Yes. I just want to chime in very quickly. 
We have essentially two answers for you. The first is we come 
on the back end after OSC has done their work. So we are the 
adjudicator in this process. The front end part is actually in 
our studies program, and if you look at our report on 
whistleblowing and barriers to whistleblowing, we actually ask 
people: Are you seeing prohibitive personnel practices? What 
happens when you see them? And what happens if you disclose? Is 
there retaliation? So through the studies program, we get a 
plethora of answers--some of them multiple choice, some of them 
essay--that will talk about this anonymously and that we can 
analyze and then we can also publish. Thank you.
    Mr. Connolly. Thank you, Mr. Chairman.
    Chairman Grundmann, why has it taken 8 years to get to the 
point where we're hopefully going to consider reauthorization?
    Ms. Grundmann. There was an attempt previously to do, so it 
just sort of fell off the wagon, I guess, and was forgotten.
    Mr. Connolly. Congress fell off the wagon?
    Ms. Grundmann. Not Congress, but it never came to fruition, 
if you will.
    Mr. Connolly. Director Shaub, same question, from your 
perspective.
    Mr. Shaub. I don't actually have an answer for that. We 
have not had an authorization hearing since 2006.
    Mr. Connolly. 2007.
    Mr. Shaub. That's right. It ran out at the end of 2007. We 
have requested that from time to time. So I'm very pleased that 
you're holding the hearing this year, and we're thankful for 
being here.
    Mr. Connolly. Well, we didn't rush into it. We have 2-1/2 
days left in this session, but all right.
    Special Counsel Lerner, your perspective.
    Ms. Lerner. When I was nominated in 2011, I was told that 
the agency hadn't been reauthorized.
    Mr. Connolly. I can't hear you. I'm sorry.
    Ms. Lerner. Sorry. My mic is on.
    Mr. Connolly. Yeah, but you've got to speak into it.
    Ms. Lerner. When I was nominated to be special counsel in 
2011, I was told that the agency hadn't been reauthorized in a 
few years. And, frankly, it gave me a little bit of a pause to 
take the job because not knowing whether the agency was going 
to be around. But I was assured that it would be; we just 
needed to have a reauthorization process started. And it's 
something that we've been asking for periodically since I 
became special counsel. I'm really pleased that we're here 
today. Thank you.
    Mr. Connolly. Well, we've got sort of a different spirit on 
this committee, the leadership of Mr. Chaffetz, and hopefully 
we'll use that spirit on a bipartisan basis to try to rectify 
that situation. I mean, there is just no excuse for going 8 
years without a reauthorization.
    Chairman Grundmann, in your testimony, you raised concerns 
about the Veterans Access, Choice, and Accountability Act of 
2014 that allows the VA Secretary, at his or her discretion, to 
fire a senior executive without prior notice or the opportunity 
to respond if the Secretary determines performance of the 
individual warrants its action. The act provides an expedited 
appeal process but after the determination.
    What's the nature of your concern about that?
    Ms. Grundmann. On the constitutional side?
    Mr. Connolly. Whatever you want to share with us.
    Ms. Grundmann. In the operations?
    Mr. Connolly. Speak as colorfully as you have already; 
Congress falling off the wagon is a great image.
    Ms. Grundmann. That's dangerous.
    Mr. Connolly. Cartoonists heed. All right.
    Ms. Grundmann. Twofold. The constitutionality of that 
particular law is being litigated right now in the Federal 
circuit. No doubt we will have a decision in some course of----
    Mr. Connolly. And that is about due process.
    Ms. Grundmann. It is about due process. It is also about 
the appointments clause in the Constitution. The argument is 
that if you eliminate three Presidentially appointed board 
members from the process all together and delegate that 
authority to a, quote, ``not a principal employee'' and have 
that decision be final without board review, without court 
review, that is a violation of Article II, Section 2, of the 
appointments clause.
    There is the constitutional argument on due process as 
well, and due process is prior notice and an opportunity to 
respond. That is also being litigated.
    Mr. Connolly. Well, is that a constitutional issue, or is 
that just a practice? I mean, in the private sector, you're not 
entitled to those protections. I mean, if the boss decides 
you're not performing, you're an at-will employee, and you can 
be terminated.
    Ms. Grundmann. You're absolutely right. But according to 
Supreme Court case law, Loudermill has told us repeatedly that 
Federal employees have a property interest in continued 
employment, the depravation of which must be accompanied by 
opportunity--advanced notice and opportunity to respond, 
nothing more, nothing less.
    You raise a really good point, and this gives me an 
opportunity to talk about how that act has impacted our 
operations. So far, we've only seen seven cases under the VA 
Accountability Act.
    Mr. Connolly. So abuse of that new authority is not yet a 
problem holding in abeyance the merits of those seven.
    Ms. Grundmann. Well, two of them were withdrawn. It's not 
the abuse of the authority; it is how it impacts our 
operations. What the law says is that once an employee files, 
he or she is entitled to a full hearing. And that hearing for 
us means discovery, motions, the opportunity to raise 
affirmative defenses, a full hearing, prehearing conferences, 
along with a written decision. And if you look at some of the 
decisions that we have issued--and we have only issued two 
written decisions--they are about 60 to 70 pages long. It is 
not a summary decision.
    Mr. Connolly. But let's remember the genesis of the bill: 
It was a growing frustration on the part of veterans, of the 
public, of this Congress. And the inability to assign 
accountability to Veterans Administration officials--everyone 
was kind of pointing somewhere else, and meanwhile, the backlog 
grows; falsification of medical records expanded; treatment was 
inadequate and, in some cases, nonexistent; getting an 
appointment became, in some places, very difficult. And these 
are our veterans. And there was deep outrage up here, and we 
had to weigh expediting the process determination to hold 
people accountable against process. And while no one wants to 
make light of due process, that was the balancing act we were 
looking at. Your comment on that?
    Ms. Grundmann. Yeah, I understand completely the genesis of 
this bill. And let me just share with you a question, a 
thought. When these cases come to us, and this is not just the 
VA, but any case, the employee is off the payroll. They are not 
being paid during the time they are litigating before us. We 
wonder--and it's a question--whether or not the bill is 
actually doing what it's supposed to do. Agencies may act--the 
VA, I don't know this, may actually be taking longer to prepare 
for these cases because they have to finish the case in 
essentially 18 days.
    Mr. Connolly. Yeah.
    Ms. Grundmann. During the time they are investigating and 
preparing their case on the front end, the employee is still on 
the payroll. So is it having the same effect? Shortening the 
processing period doesn't get rid of the employee faster; 
they've already been removed. It just determines whether or not 
the removal was proper.
    Mr. Connolly. Well, we look forward to working with you on 
this. I think it is a conundrum.
    Ms. Grundmann. Yes.
    Mr. Connolly. And no one wants to trample overdue process 
and the rights of Federal employees, but we do not want to 
sacrifice accountability, especially in the case of men and 
women who put on the uniform and serve the country.
    Ms. Grundmann. In order for us to get involved, an agency 
has to act first.
    Mr. Connolly. Yeah. Okay. I wish I had more time because I 
think this is a very important issue.
    Thank you, Mr. Chairman.
    Mr. Meadows. I thank you.
    The chair recognizes the chairman of the full committee, 
Chairman Chaffetz, for a series of questions.
    Mr. Chaffetz. Thank you. I thank--to all three of you for 
your good and important work.
    Mr. Shaub, I want to direct my comments to you, if I could. 
You work with some very important issues dealing with ethics. 
You work with some 4,500 ethics officials in more than 130 
different agencies. I want to focus on honorarium, particularly 
as it relates to public appearances and speaking. Can a 
government official act as an official agent for a charity or a 
foundation?
    Mr. Shaub. There's no specific prohibition on the types of 
outside employment you can have in that regard, but we have to 
distinguish between the types of government official we're 
talking about.
    Mr. Chaffetz. If it is a Senate-confirmed position, can you 
act as an agent for a foundation?
    Mr. Shaub. Certainly not for pay and certainly not as a 
representative to the government. There's an outside earned-
income prohibition in a longstanding executive order so they 
can't earn honoraria, and they can't represent anyone back to 
the government, so it would have to be an outside activity 
where they would speak for free, but they----
    Mr. Chaffetz. But what if there is compensation to a 
foundation?
    Mr. Shaub. A government official themselves--I--could not 
speak for any compensation without violating the earned-income 
ban, even if they subsequently donated it to someone else.
    Mr. Chaffetz. What if somebody went and spoke and then that 
money was directed or given to a foundation----
    Mr. Shaub. Right.
    Mr. Chaffetz. Do they have to disclose that?
    Mr. Shaub. The disclosure depends on whether the money was 
paid to them as an individual speaker and then they chose to 
donate it to a charity, or whether you're acting as an agent of 
some sort of charity. A comparable example would be, for 
instance, if you were working for a car dealership and you sold 
a car, you would not report the income from the sale of the car 
because that's income of the car dealership.
    Mr. Chaffetz. Let's go back. Can you be an agent, a Senate-
confirmed person, can they be an agent of a foundation?
    Mr. Shaub. Not if they are representing the foundation to 
the Federal Government, but there is no legal prohibition on 
serving as an agent for an outside entity in an outside 
activity.
    Mr. Chaffetz. Do you have to disclose that?
    Mr. Shaub. Your role as an agent?
    Mr. Chaffetz. Yeah.
    Mr. Shaub. If you have a position with an outside entity, 
that would be disclosable on the form.
    Mr. Chaffetz. So you have to disclose that.
    I want to bring up--there have been--there has been a lot 
of controversy with Secretary Clinton and the lack of candor in 
her financial disclosures. I will go back to the Wall Street 
Journal article in May of this year. The spokesperson, Mr. 
Salamone, who works for you, commented directly on that case. 
Did you review that case?
    Mr. Shaub. I'm hoping I'm remembering the correct one. The 
one I recall was a question not about Secretary Clinton's 
speaking activities but about her husband--the former 
President's speaking activities. The question Mr. Salamone was 
asked, if I'm recalling correctly, was, would he be--would she 
be required to report honoraria paid in compensation for his 
speaking if he was acting as an agent for a foundation as 
opposed to acting in a personal capacity. And Mr. Salamone 
correctly answered, consistent with our longstanding view of 
government financial disclosure requirements, that that would 
not be required to be disclosed if he was acting as an agent 
for the foundation, in contrast to a situation where he went 
out on his own, gave a speech, and then donated the funds to a 
charity.
    EDTR ROSEN
    Mr. Chaffetz. How could he not be an agent for the Clinton 
Foundation? It is under his own name.
    Mr. Shaub. I think our understanding was he was an agent, 
so that's why it was not required to be disclosed.
    Mr. Chaffetz. So where is that found in the rules?
    Mr. Shaub. The statute is a very long, very detailed 
statute.
    Mr. Chaffetz. I have it in front of me, and I went on your 
Web site. He is what your Web site says, ``Do I report payments 
donated or directed to charity?'' Yes, you must report 
honoraria as usual.
    Mr. Shaub. Right.
    Mr. Chaffetz. And then if You look at the code, it goes on 
saying that filers are expected to, and I quote, ``the source, 
date, amount of honoraria from any source received during the 
preceding calendar year aggregating $200 or more in value, 
effective January 1st, 1991. The source, date, amount of 
payments made to charitable organizations in lieu of honoraria. 
And the reporting individual shall simultaneously file with the 
applicants supervising ethics office.''
    Mr. Shaub. Right. So that's interpreting section 102(a) of 
the appendix to Title V under the Ethics in Government Act.
    Mr. Chaffetz. Correct.
    Mr. Shaub. That is a provision that applies to your own 
earnings if you go out and speak on behalf as your own 
individual, on your own behalf, earn it and subsequently donate 
it. And we have been very consistent in requiring. But it is 
not even a close call as to whether it would be reportable if 
you're acting as an agent of a foundation. It is not even a 
close call. I can tell you unambiguously, that's not 
reportable.
    Mr. Chaffetz. Why isn't it reportable? I don't understand.
    Mr. Shaub. Well, it is for the same reason as the car 
dealership example. Another example is, we've had nominees--you 
know, I've handled nominee reports personally under both the 
Bush administration and the Obama administration. I have been 
doing this for a long time. We've had a lot of nominees over 
the years who have been attorneys. They have to follow nominee 
incoming financial disclosure reports. So although while they 
are an appointee, they would be covered by outsider and income 
ban, and there would be no income or honoraria to report; 
nominees are the perfect comparison to a Presidential candidate 
or the appointee who has a spouse doing outside speaking, as in 
this case, where they do have income to report. And, so, they 
report their earnings from the law firm, but they do not report 
each individual payment from each individual client. It is 
simply not required by the financial disclosure laws. Now you 
have within, you know, within your power to change those laws, 
but it is not----
    Mr. Chaffetz. I'm not understanding where the rule or where 
you can point to in the law, where you have this 
distinguished--Mr. Salamone said, quote, ``Disclosure of 
speaking fees is not required when the public filer or the 
filer's spouse is acting as agent of an organization, and 
payment it made directly to that organization.'' Where is that 
found in the rule?
    Mr. Shaub. 5 U.S.C. appendix section 102(a).
    Mr. Chaffetz. Okay. We may be looking at that differently 
than you are, but I would really love to have some details. Why 
wouldn't we have that disclosed? I just--if you're trying to 
maintain the maximum amount of transparency which you report to 
do, it says the OGE makes sure that the nominees and 
Presidential candidates have complied with extensive 
requirements for financial disclosure under the Ethics in 
Government Act. Have you investigated this situation with 
Secretary Clinton?
    Mr. Shaub. The--so that's a two-part question. I'll answer 
the first question first, why don't we pursue maximum 
disclosure?
    Mr. Chaffetz. Yeah.
    Mr. Shaub. Anything that could be potentially relevant or 
interesting to anyone. And it is simply because we're a Nation 
of laws, and OGE is specifically regulated by an extremely 
detailed, highly prescriptive statute. Congress left us almost 
no discretion in terms of interpreting this statute. We apply 
it uniformly to everyone across the board, highly detailed. 
It's not the statute that I would have written, as evidenced by 
the fact that OGE has a confidential financial disclosure 
system where Congress left us the ability to write our own 
rules. We wrote very different rules for those.
    But we are bound by the laws as they are written, this has 
been OGE's long-standing interpretation across the board, 
whether you're a car salesman, an attorney, a Member of 
Congress. Anybody coming into the executive branch, you 
disclose income paid to you that you earned yourself, act in 
your own capacity, or you disclose income from an entity, but 
you don't disclose every payment to that entity. We've been 
absolutely uniform, it is not even a close call.
    Mr. Chaffetz. So when you show up and give a speech, is 
that--I mean, that seems like a direct payment. There is a 
reason why the University of California, Los Angeles, paid 
$250,000 to the Clinton Foundation it is because Secretary 
Clinton showed up and gave a speech.
    Mr. Shaub. I have no doubt that they paid that money 
because he gave a speech?
    Mr. Chaffetz. She gave that speech, she gave a speech.
    Mr. Shaub. Sorry, I misunderstand.
    Mr. Chaffetz. She did. She was Secretary of State.
    Mr. Shaub. Okay.
    Mr. Chaffetz. And that's why is I'm curious: Is she an 
agent for the Foundation? Is she the Secretary of State? How do 
you determine what's what?
    Mr. Shaub. Well, I can say for sure she did not have a 
position, but that does not preclude----
    Mr. Chaffetz. She didn't have a position what?
    Mr. Shaub. She did not have--she did not hold a formal 
position with the Foundation while she was in the government 
but----
    Mr. Chaffetz. But--so she wasn't an agent?
    Mr. Shaub. No. Those are different questions. The question 
of whether somebody holds a formal position, Vice President, 
President----
    Mr. Chaffetz. Right.
    Mr. Shaub. --Secretary, is very different from whether 
you're acting as an agent. There is an entire----
    Mr. Chaffetz. So was she an agent or not an agent?
    Mr. Shaub. Well, we don't investigate their reports so I 
can tell you if----
    Mr. Chaffetz. Wait. Why don't you investigate their 
reports?
    Mr. Shaub. Well, we don't have the authority.
    Mr. Chaffetz. That's not what you said in your testimony.
    Mr. Shaub. Well, I believe it was.
    Mr. Chaffetz. Your testimony said, OGE makes sure that the 
nominees and Presidential candidates have complied with the 
extensive requirements for financial disclosure under the 
Ethics in Government Act.
    Mr. Shaub. That's exactly what we do.
    Mr. Chaffetz. Well, how do you do that if you don't 
investigate it?
    Mr. Shaub. We have to take the facts as they are asserted 
at face value, and then using those facts, we determine whether 
they've complied with requirements. The reason Congress made 
these reports public----
    Mr. Chaffetz. How can you do that without investigating? 
You don't ask any questions?
    Mr. Shaub. It is the same practice as the House Committee 
on Ethics when they review your financial disclosure report. 
They don't bring you in for an audit and conduct an 
investigation. We don't do that either. We follow the industry 
standards of the Senate Ethics Committee, the House Ethics 
Committee, the Office of Congressional Ethics, the Ethics 
Office for the judicial branch.
    Mr. Chaffetz. Do you do any investigations?
    Mr. Shaub. In the 37 years that OGE has existed, it has not 
done a specific investigation. We haven't had, to, because we 
have a 14,000-member inspector general community. We work 
extremely closely with them. We have been involved in 
investigations, though not leading them. We assist them, in 
great detail, in understanding these highly complex ethics 
laws, the conflicts of interest laws, the standards of conduct, 
we work closely with them.
    We also get calls frequently from prosecutors when they 
prosecute these cases. We work with them to help them 
understand it. We also conduct training for both of them.
    So as I said, OGE gets part of the larger framework for 
integrity in the executive branch. We have our role to play, 
which is strictly laid out by statute and we adhere to our 
role, but it is one important piece in a framework consisting 
of multiple executive branch entities.
    Mr. Chaffetz. And I'm just suggesting that you're just 
shuffling paperwork. If you are just taking everything at face 
value and then reprinting it and putting it up on the shelf--
what good are you? Why should we even have you if you're not 
going to actually review them, hold people accountable, and do 
any investigation? I mean, what is it that they would actually 
do? Let me read what you had written. This is your testimony 
today.
    OGE makes sure that the nominees and Presidential 
candidates have complied with the extensive requirements for 
financial disclosure under the Ethics in Government Act. These 
requirements are highly complex, and ensuring full compliance 
is labor intensive. OGE's goal, with regard to a nominees's 
disclosure, is to ensure that the Senate receives a complete 
accounting of relevant financial interest in order to 
facilitate its advice and consent role in considering the 
President's nominees.
    The goal as to Presidential candidate is to provide the 
electorate with similar information. That's a bit of a stretch, 
isn't it?
    Mr. Shaub. It is not a stretch at all. This is----
    Mr. Chaffetz. You do no investigations. You--I question, 
Mr. Chairman, why we have such an agency, because if they are 
just taking it at face value, and then putting it in a file, 
what if you saw something that was askew?
    The Wall Street Journal said that Secretary Clinton's 
disclosure--not included in the disclosure were payments for at 
least five speeches that Mrs. Clinton directed to her family's 
Foundation. So----
    Mr. Shaub. Unfortunately, the House is not involved in our 
Senate confirmations work, so you're not as familiar with it.
    Mr. Chaffetz. It's a Presidential candidate, it's 
different. There is if no Senate confirmation. We understand 
that.
    Mr. Shaub. Well, it was a multipart question. I was 
answering the earlier question about what we do with nominees.
    Mr. Chaffetz. I'm asking about Presidential candidates. And 
there is a lot of controversy swirling around here, and you're 
trying to parse words by saying, well, if you're an agent, you 
have to disclose, if you're not an agent, you don't have to 
disclose it. I don't know how you distinguish whether somebody 
is an agent or not, because on the one hand, the Foundation's 
in Secretary Clinton's name. On other hand, she, definitively, 
according to you, is not an agent of a Foundation, or she 
doesn't have a title within that organization. I don't know 
what good you are if you don't do this kind of work.
    Mr. Shaub. Well, that's an incorrect characterization of my 
statement. I did not say we concluded she is not an agent. We 
said she did not hold a formal position within. Those are two 
different things.
    Your question on how you determine whether someone's an 
agent, there is an entire body of law and the law of agencies 
that's well-established in the common law.
    Mr. Chaffetz. I've gone way over my time. In the case of 
Secretary Clinton speaking, for instance, at UCLA, did you do 
any sort of investigation to figure out whether or not she was 
an agent?
    Mr. Shaub. We did not investigate the factual circumstances 
that she reported.
    Mr. Chaffetz. So, and the problem I have is, you go out and 
comment as the authority leading one to believe that, quote, 
``disclosure of speaking fees is not required when a public''--
and to comment on a specific case when you have not 
investigated it, I think is wrong.
    Mr. Shaub. We reported on the legal requirement and where 
you've compared factual analysis with legal analysis. You have 
to take the facts at face value, that's why the reports are 
public, so that they can be challenged. This is a good decision 
for the public to have. It is a good conversation----
    Mr. Chaffetz. It is good information to have.
    Mr. Shaub. --for Congress to have. But our role is legal in 
this respect; we can tell you that if the facts are that they 
are an agent, the information is not disclosable on part A of 
the form.
    Mr. Chaffetz. Help us understand what an agent actually is.
    Mr. Shaub. An agent?
    Mr. Chaffetz. Yeah.
    Mr. Shaub. An agent is someone who acts on behalf of 
another. That's the simplest statement; the body of law fills 
treatises, but the simplest statement is someone acting on 
behalf of another.
    Mr. Chaffetz. So it says, quote, ``the rule is different 
when the speaking is done in a personal capacity and the fees 
that are directed are donated to a charity, in which case 
disclosure would be required.''
    Mr. Shaub. These are the same rules that applied to Members 
of Congress and to Senators and to Presidential----
    Mr. Chaffetz. Don't confuse your branches here for a 
second. We're talking about executive here.
    Mr. Shaub. There is one statute that applies to all three 
branches. Congress has been very firm in wanting parity among 
the branches, so they passed only one statute that is 
applicable to all three branches. We have regular meetings with 
our colleagues in the House and Senate and the Judicial Ethics 
Office to make sure we're all on the same page and we are 
interpreting these. We have a regular three-branch forum. It is 
three branches, but it is actually four offices, because you 
also have the Office of Congressional Ethics.
    We meet as a group, we talk about the interpretations of 
laws and regulations. And OGE has a great deal more experience 
than they do, simply because we handle a much higher volume. So 
we often take the lead in helping others to understand how we 
interpret----
    Mr. Chaffetz. You shuffle paperwork. There is no 
consequence. There is no accountability. There is no review and 
there is no investigation. Why do we need you? If the law is 
crystal clear, you know, I--well, if you're an agent, you don't 
have to disclose; if you're not an agent, you do have to 
disclose. Your name's on the Foundation, and yet, they weren't 
disclosed. Does that really add up to you?
    Mr. Shaub. Sir, I don't think we just push papers. The work 
of reviewing these financial disclosures----
    Mr. Chaffetz. What do you do when you review it? Is there 
an analysis?
    Mr. Shaub. There is an intensive analysis of every----
    Mr. Chaffetz. Where is the conclusion of that analysis?
    Mr. Shaub. The conclusion is the certification by the 
director of the Office of Government Ethics, or the chair of 
Senate Ethics Committee, or the chair of the House Ethics 
Committee.
    Mr. Chaffetz. In the case of a Presidential candidate, do 
you certify?
    Mr. Shaub. I certify the reports. And I can tell you, there 
isn't a major party candidate whose reports we didn't require 
substantive changes on. Our detailed analysis we went back to 
every single Republican or Democrat who was running for 
Congress right now and made them make significant changes on 
their----
    Mr. Chaffetz. I'm talking about Presidential candidates, 
I'm talking about Presidential candidates, you keep trying to 
get--you said congressional candidates.
    Mr. Shaub. No, I'm sorry, if I said congressional----
    Mr. Meadows. I think you just misspoke.
    Mr. Shaub. I'm sorry. I apologize. I was talking 
Presidential candidates. There isn't a major party candidate 
whose reports we haven't gone back to. And it is a very 
intensive back-and-forth process. We ask them questions. We 
say, have you fully disclosed this? Is there more information 
on this? Do you understand that the law requires that? These 
are very detailed interactions. I don't think there is a 
Presidential candidate out there right now who has great love 
for us, because we've made them do so much work on their 
reports.
    Mr. Chaffetz. And is all that information, if somebody 
submitted a FOIA, can they get all that information?
    Mr. Shaub. You don't even have to submit a FOIA. They're on 
our Web page. And we have them annotate--we made the candidates 
themselves initial each change on the report. So every page 
that has changes, you can see the initials. You could see the 
reports as they were certified by the Federal Election 
Commission, which receives the reports. They do the first line 
review. Their focus is mostly on getting the right people to 
file the right reports by the right deadline. Then they get 
them to us, and we get involved in the substantive work. We 
roll up our sleeves. We spend a lot of time. I'm sure these 
candidates are appreciative of the work we do, but I'm sure 
they also would have rather spent their money on something 
other than having to make all the changes we've sent them back 
to do. But we felt we were obligated by the law to hold them 
accountable to meet the financial disclosure requirements.
    Now, if there are factual discrepancies, that's the reason 
they're publicly available. So that they can go through the 
rigorous scrutiny of the press, the American people, Congress. 
There are plenty of eyes looking at these reports. And some of 
them may have information that they can contradict the factual 
assertions. But we make sure they're legally compliant.
    Mr. Chaffetz. I have lots more questions, but I will yield 
back.
    Mr. Meadows. I thank the chairman.
    Let me go ahead and follow up on a little bit of this.
    Ms. Grundmann, one of the things that I would like, as we 
look at the reauthorization of your particular agency, is if 
you would look quantitatively, and maybe a little bit more 
forward thinking in terms of what are the type of reforms that 
you say: Golly, I wish this were happening, or that were 
happening. Because as we relate to that, sometimes we get used 
to the laws and the rules that we have grown up under. And just 
like Director Shaub was just talking about a few things that he 
would have written differently, those are the kind of things 
that as we look to reauthorize what we'd like to do is not only 
look at the reauthorization, but perhaps other legislation that 
needs to accompany that.
    And before the ranking member left, we agreed we're going 
to let him take the lead on one of those. I think he chose your 
particular group that he's going to take the lead on. I'm going 
to take the lead on the other two, as we start to work towards 
that. But are you willing to provide that to the committee?
    Ms. Grundmann. We are always willing to provide assistance, 
with one tiny caveat. That----
    Mr. Meadows. Those little caveats are always the troubling 
pebble in the shoe. But go ahead.
    Ms. Grundmann. Kind of like a footnote. If these laws would 
come to us for interpretation, you know, we're the adjudicator 
in the case. That's the only caveat.
    Mr. Meadows. We understand that. And so we'll keep that in 
mind----
    Ms. Grundmann. Call us.
    Mr. Meadows. --and be sensitive to that.
    Ms. Lerner, I want to come back. You mentioned earlier 
about getting rid of a survey. Which survey were you talking 
about?
    Ms. Lerner. Sure. It's an annual survey that was put into 
effect during a prior reauthorization. It requires that we----
    Mr. Meadows. What's the name of it?
    Ms. Lerner. Hold on.
    Mr. Meadows. It's not the employee satisfaction survey, is 
it?
    Ms. Lerner. No. No. It's--I don't have the--I have a copy--
--
    Mr. Meadows. Okay. You can get that to me later. I can see 
them, you know, with puzzled looks behind you. And so as we 
look at that, and I say that in a kind way. What I'd love to do 
is you said it was statistically not valid.
    Ms. Lerner. Yeah.
    Mr. Meadows. Why is that?
    Ms. Lerner. Because it has an incredibly low response rate.
    Mr. Meadows. Does it have an incredibly low response rate 
because you do nothing with it?
    Ms. Lerner. No. No. No. We have to, by statute. We send it 
to----
    Mr. Meadows. I know, but you only fill out surveys if you 
think that they're making a difference. So I guess that's what 
I'm saying is, is do the people who will fill them out see no 
value in it because nothing happens with it, it just gets put 
on a shelf?
    Ms. Lerner. Not sure why they fill it out or why they 
don't. I can tell you that we mailed out 3,500--over 3,500 in 
fiscal year 2014. Three hundred and fifty-five people returned 
them. These are folks who have come to our agency and asked for 
help. And we can't help everybody who comes to us. And the fact 
is that, you know, the folks who returned the survey, we had a 
10 percent response rate. And of the 10 percent who responded, 
very few of them feel like they got what they asked for. And 
it's not statistically significant if we're only getting a 10 
percent response rate.
    Mr. Meadows. Well, statistically some would argue contrary 
in terms of that response rate, but in terms of what you do 
with that. Here's what I would ask for. If you would get us the 
survey that you're talking about. Obviously, what has happened 
historically and what has not happened historically with that. 
If you would get that to the committee, and we'll look at that 
as we look at the reauthorization. I'm one that, you know, if 
you're just doing busy work, I'm all for streamlining. I think 
that was in your testimony about streamlining some of that. And 
I'll be glad to look at that.
    Ms. Lerner. We are taking some actual concrete steps to be 
responsive and be better about customer service. We just 
finished a study of everyone who participated in our mediation 
and alternative dispute resolution program.
    Mr. Meadows. So do you participate, as Ms. Grundmann--and 
congratulations on being fifth most improved, did you say?
    Ms. Grundmann. Fifth most improve in small agencies.
    Mr. Meadows. Okay. Do you participate in the public/private 
partnership surveys?
    Ms. Lerner. Yes.
    Mr. Meadows. Okay. All right. And so----
    Ms. Lerner. That's a different--that's completely 
different. This is the folks--this survey is the folks who come 
to OSC with----
    Mr. Meadows. And they're evaluating you?
    Ms. Lerner. Yes. The agency. The results that they got at 
the agency.
    Mr. Meadows. And so you're saying that those results, they 
say they don't get helped. Is that what you said?
    Ms. Lerner. Well----
    Mr. Meadows. Is that 10 percent of the people say that they 
don't get helped. Is that your testimony?
    Ms. Lerner. No. We get a response rate of 10 percent.
    Mr. Meadows. But the majority of those I think you said 
feel like they didn't----
    Ms. Lerner. That's right. They did not get what they were 
seeking when they came to our agency. That's right.
    Mr. Meadows. So based on that 10 percent response rate and 
those survey results, what have you changed operationally?
    Ms. Lerner. What we've done is tried to actually get some 
concrete feedback from the people who come to our agency. For 
example----
    Mr. Meadows. All right. So if we were to do away with the 
survey and say that's no longer a requirement, how would you 
evaluate whether you're doing a good job or not? How would you 
know whether you're getting a A or an F?
    Ms. Lerner. Well, I think our results really speak for 
themselves in terms of the number of corrective actions that 
we've gotten. Before I came, they were in around 20 a year 
corrective actions for complainants. Last year they were around 
280.
    Mr. Meadows. So would you be willing----
    Ms. Lerner. I would say that those are pretty substantial--
--
    Mr. Meadows. So would you be willing to put forth a matrix, 
kind of a dashboard of sorts, so we can evaluate? Because, you 
know, it's one thing with you there and you're taking it on 
personally. It would be another when there's a new special 
counsel there. How do we compare apples to apples and----
    Ms. Lerner. Look at our actual results. Look at--look at 
the cases that we are bringing to you.
    Mr. Meadows. Right. And I guess that's what I'm saying. I'm 
willing to look at that matrix if you can come up with a 
reporting standard that reports to this committee and says: 
Okay. Here is a matrix on how we decide whether we're getting--
you know, doing a good job or a bad job. And we're willing to 
look at that. I'll get with minority staff and see about 
changing that. But I want to make sure it's quantifiable. You 
know, it's kind of like we've done with FITARA. You know, most 
of the agencies got Fs and Ds. But that was a good start. It 
set a benchmark for where we needed to go. And I guess what I'm 
needing is the same thing from you on how we determine whether 
you're doing a good job or not.
    Ms. Lerner. Yeah. Look at our cost per case, which has gone 
down significantly.
    Mr. Meadows. That's what I'm saying. If you'll get that to 
committee, we're willing to evaluate that.
    Ms. Lerner. Very happy to work with you on that.
    Mr. Meadows. Does that make sense?
    Ms. Lerner. Sure thing.
    Mr. Meadows. So Director Shaub, let me finish with you. 
Because you've mentioned the inspector generals in CIGIE and 
your close relationship, I guess, is the way that you just 
characterized it with Chairman Chaffetz in terms of working 
with them. How, in that passing of the baton, between you and 
the inspector general, or inspectors general, who do you leave 
it up to for enforcement? Because we get an IG's report, and it 
depends on, you know, what chairman, what subcommittee 
chairman, whether there's a hearing, and whether it gets 
highlighted. How do you pass the baton? Because I think in your 
testimony with Chairman Chaffetz, you said that you don't 
investigate. You leave that up to the IG. Is that correct?
    Mr. Shaub. That's correct.
    Mr. Meadows. All right. So if the IG finds something that 
is egregious, what happens?
    Mr. Shaub. Well, at that point, assuming it was a criminal 
violation, we would----
    Mr. Meadows. No. Let's say it's ethical. Let's say it's 
ethical and not criminal.
    Mr. Shaub. Okay.
    Mr. Meadows. Okay? So what happens?
    Mr. Shaub. So if, for example, it was the standard of 
conduct and it was a violation of a provision that was not 
criminal, the next mechanism that would need to come in place 
would be disciplinary action. IGs will write reports. Sometimes 
they'll recommend action. Other times they'll state 
conclusions, and those will go back to the agency----
    Mr. Meadows. So how many IG reports have you gotten to have 
action? Would you be the one that would do the action?
    Mr. Shaub. No. The agencies each have the authority to take 
individual action against the employees.
    Mr. Meadows. All right. Then let's assume it's the head of 
the agency.
    Mr. Shaub. Right.
    Mr. Meadows. What happens?
    Mr. Shaub. Well, if it's the head of the agency, then a 
decision's not going to be made by the agency. The President's 
the only one with the authority to----
    Mr. Meadows. All right. Well, let me--so how often is the 
President going to do that with one of his nominees?
    Mr. Shaub. Well, I hope every time that----
    Mr. Meadows. Yeah. I would hope so, too, but I'm not as 
confident as you are that that would happen. So let me quit 
beating around the bush and share one particular issue that I'd 
like you to look into and report back to this committee.
    It was an IG report that was done by an Inspector General 
Roth. It was a very scathing report of Mr. Mayorkas as it 
relates to EB-5, the potential ethical bounds of interference 
in terms of visa applications. You know, there were some 
allegations of interference at the very highest level, which 
would include some elected officials in very nearby States.
    I read it. I could not believe it, because normally, the 
inspectors general are not that scathing in their report. And 
as I read this particular issue, it really is something that 
was troubling. Obviously, Mr. Mayorkas didn't agree with that. 
But being where he is in that particular agency, so the only 
person that could hold him accountable would be the President? 
Is that what you're saying? So you don't have the authority to 
do that?
    Mr. Shaub. You know, I have to beg your pardon. I remember 
reviewing Mr. Mayorkas' financial disclosure report----
    Mr. Meadows. Yeah, and this is not financial disclosures. 
This really has to do with the fact that he was intervening on 
behalf GreenTech Automotive, one where Mr. Clinton, President 
Clinton, had given a speech. All of a sudden, there was money 
that came over. I mean, it was--you know, I'm not a conspiracy 
theory kind of guy, but when you look at connecting the dots, 
it was very troubling. And the fact that the inspector general 
would look at that and have employees, whistle blowers, within 
the agency that said they felt like Mr. Mayorkas had acted 
improperly, where does that go? Because the inspector general 
felt like he had done his job. And so does it come to us, or 
who would investigate that?
    Mr. Shaub. So the reason I mention his report is I was 
going to tell you I can't remember his exact position, his 
position title. Was he assistant secretary? Under Secretary?
    Mr. Meadows. I don't recall either. So----
    Mr. Shaub. In any event, he works, then, for the State 
Department and would report----
    Mr. Meadows. Well, this would--well, so who----
    Mr. Shaub. It wouldn't be the President. It could be--the 
head of the agency could take some action.
    Mr. Meadows. So your agency has no role in that whatsoever? 
Should you have?
    Mr. Shaub. When an IG is conducting an investigation, we 
don't want to step on the IG's toes. We're very respectful of 
IG jurisdiction. So during the investigative phase, absolutely 
not.
    Mr. Meadows. Yeah, I was passed a note. He was then the 
director of USCIS. Now he's the DHS deputy director.
    Mr. Shaub. Okay. So either the President or somebody who's 
in charge of his agency at a higher level can take some action. 
Only the President could take removal action. So something like 
that actually would be well within your jurisdiction if you're 
asking whether you could, obviously.
    Mr. Meadows. Well, we've got all these other ethics groups 
out there, Congressional Ethics. You mentioned some of those 
that they're your sister--they actually take action. Are you 
the only one that just does financial disclosure with no 
actions?
    Mr. Shaub. No. We don't just do financial disclosure. But 
we're the prevention piece of the framework. This is a broad 
framework----
    Mr. Meadows. So who's the enforcement piece? Because it's 
not the IG.
    Mr. Shaub. No. That would come to agency management or the 
White House to take action against a Presidential appointee.
    Mr. Meadows. Do you not see an ethical dilemma that you put 
yourself in when you have someone that is a nominee having to 
be held accountable by the person who nominated them?
    Mr. Shaub. Well, that's the framework the Ethics in 
Government Act established. But we do have the separation of 
powers issue where Congress has the ability to ask the very 
questions you're asking about an individual. And you could 
certainly have a hearing on that investigative----
    Mr. Meadows. So do you think that your agency needs to have 
expanded authority to be able to investigate?
    Mr. Shaub. I don't think so. I think that there----
    Mr. Meadows. You don't want it?
    Mr. Shaub. Well, I don't think we should have it. What I 
might want one way or the other is not as relevant as what 
would be the right thing. And what's the right thing is that we 
have a broad framework with a number of different, very 
specialized entities that perform very important roles. The 
inspectors general have investigative authority. Agencies can 
take disciplinary action. In whistle blower cases, you 
mentioned whistle blower in this example, the Office of Special 
Counsel can initiate an action against them. And I won't speak 
for what's within your power, but they then take a case before 
the MSPB.
    So there are--everybody has their individual roles. We, for 
instance, don't adjudicate the disciplinary cases. The MSPB has 
the authority to do that. So ours is the prevention piece of 
the program.
    Mr. Meadows. So if the employees--what you're saying, is if 
the employees in that particular situation feel like that they 
have been thwarted, then either special counsel or--I guess it 
would be special counsel first?
    Ms. Lerner. No. I don't believe we would have jurisdiction 
over these matters.
    Ms. Grundmann. Are we talking about----
    Mr. Meadows. I'll tell you what I'll do, is let me do this: 
I'll get that particular IG's report. I'll get it to all of you 
and then let you weigh in before we go forward. How about that?
    Ms. Grundmann. Are you talking--just to be clear, you're 
talking about a political appointee who's not the head of the 
agency?
    Mr. Meadows. Right. Yeah, he would have been. That's 
correct.
    Ms. Grundmann. Okay. We wouldn't have jurisdiction.
    Mr. Meadows. But there was employees that felt like they 
were wronged that were rank-and-file employees underneath.
    Mr. Shaub. Yeah. I'm sorry. I was talking about the whistle 
blower complaints of the individual level employees----
    Mr. Meadows. Okay. All right. So basically other than our 
oversight, we need to have a hearing on that if I care about 
it.
    Mr. Shaub. Well, the Constitution has set up Presidential 
appointments, Senate confirmation process. I think I saw talk 
of an impeachment proceeding in the news about one Federal 
official. So there are constitutional mechanisms. But at the 
level you're talking, that's--we're getting into the 
constitutional area.
    Mr. Meadows. Okay. Well, I want to thank each one of you 
for your testimony. I know that this is sometimes like going to 
the dentist and you're just glad it's over. And so--but I would 
say this, is if you will get those follow-ups that counsel's 
been taking notes, if you would get those follow-ups, we'll be 
expeditious in our return in terms of information to you, and 
hopefully work with you on the reauthorization language, or any 
caveats that might need to be addressed legislatively.
    And if there's no further business, the subcommittee stands 
adjourned.
    [Whereupon, at 12:24 p.m., the subcommittee was adjourned.]


                                APPENDIX

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