[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EPA MISMANAGEMENT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
APRIL 30, 2015
__________
Serial No. 114-26
__________
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
David Rapallo, Minority Staff Director
William McGrath, Staff Director for Interior Subcommittee
Ryan Hambleton, Professional Staff Member
Melissa Beaumont, Clerk
C O N T E N T S
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Page
Hearing held on April 30, 2015................................... 1
WITNESSES
Mr. Arthur Elkins, Inspector General, Office of the Inspector
General, U.S. Environmental Protection Agency
Oral Statement............................................... 6
Written Statement............................................ 9
Mr. Patrick Sullivan, Assistant Inspector General for
Investigations, Office of Inspector General, U.S. Environmental
Protection Agency
Oral Statement............................................... 13
Written Statement............................................ 15
Mr. Stanley Meiburg, Acting Deputy Administrator, U.S.
Environmental Protection Agency Accompanied by: Mr. John
Reeder, Deputy Chief of Staff, U.S. Environmental Protection
Agency
Oral Statement............................................... 23
Written Statement............................................ 24
APPENDIX
U.S. Merit Systems Protection Board Statement, submitted by Mr.
Cummings....................................................... 66
Letter from Susan Grundman, U.S. Merit Systems Protection Board,
submitted by Chairman Chaffetz................................. 68
EPA MISMANAGEMENT
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Thursday, April 30, 2015
House of Representatives
Committee on Oversight and Government Reform
Washington, DC.
The Committee met, pursuant to notice, at 9:05 a.m. in room
2154, Rayburn House Office Building, the Honorable Jason
Chaffetz (chairman of the Committee), presiding.
Present: Representatives Chaffetz, Duncan, Jordan, Walberg,
Amash, Gowdy, Lummis, Massie, Meadows, DeSantis, Mulvaney,
Buck, Walker, Carter, Grothman, Palmer, Cummings, Maloney,
Norton, Clay, Lynch, Kelly, and Lawrence.
Chairman Chaffetz. The Committee will come to order.
Without objection, the Chair is authorized to declare a
recess at any time.
Once again, we find ourselves in a hearing examining the
management failures at the EPA. We have seen numerous examples
of fraud, unprofessional behavior, cronyism and outright theft
at the EPA.
The most egregious example involved Mr. John Beale. Mr.
Beale did not work for a decade while claiming to work for the
CIA, a complete lie that his supervisors blindly accepted as
fact. This is just one example among many of the glaring
management failures at the EPA.
It is well past time that someone be held accountable for
these management failures. Today, we will discuss more problems
concerning EPA employees, including the outrageous behavior of
now retired EPA employee Peter Jutro.
Mr. Jutro was the Acting Associate Administrator for the
EPA Office of Homeland Security. He also happens to be a serial
sexual harasser. As a result of an Inspector General
investigation, we now know that Mr. Jutro sexually harassed at
least 16 women while working at the EPA.
Even worse, EPA senior management was aware of his history
of harassing women but continued to promote him. EPA management
never even took the time to talk to his direct supervisor who
had verbally warned Mr. Jutro several times about his
unacceptable behavior.
In essence, there was no consequence for this abhorrent
behavior. By turning a blind eye, EPA management allowed at
least six more women to be harassed by Mr. Jutro. We know this
because of the good work by the men and women who serve in the
Inspector General's office.
When Mr. Jutro was finally placed on paid leave, he quickly
retired with full pension benefits to avoid being interviewed
by the IG about these allegations. Part of what I hope we look
for in this Committee moving forward are ways the Inspector
General can continue their investigation and continue to be
able to compel someone to participate in their investigations
and that they cannot just simply retire and get a get out of
jail free card.
In addition to Mr. Jutro, there are continuing problems
with EPA employees who watch pornography at work. To date, we
are aware of two employees who have admitted to watching
pornography several hours each and every day. It is a miracle
they did any work at all--maybe they didn't. We don't know.
Even more insulting to taxpayers is that after the
Inspector General reported these abuses, the porn-watching
employees were placed on paid administrative leave for almost a
year before anybody even tried to fire them.
These people were being paid roughly in the neighborhood of
about $120,000 a year. One of these employees finally retired
after almost a year of paid leave. The other employee is still
collecting his government salary and he too has been on paid
administrative leave for almost a year. American taxpayers
continue to pay this person.
If you sit watching hours of porn on your government
computer, fire them. Fire them. Then let them try to come back
but there is so much overwhelming evidence about what these
people were doing.
This pattern of paid administrative leave followed by
retirement with full benefits is totally and wholly
unacceptable. It rewards bad behavior and leaves taxpayers
footing the bill.
It is totally unfair to suggest that most, all or anything
in between of these employees are participating in this
abhorrent behavior. Most of the people, the overwhelming
majority of the people who work at the EPA and other
departments and agencies within the Federal Government are
good, honest, decent people, working hard, trying to do the
right thing. They are patriotic in their approach.
I think we, as a body, as an institution, the EPA and
others, the Congress, we have a duty and obligation to the
American taxpayer to fire the people who are abusing the
system. Get rid of them. Kick them out of there.
That does not seem to happen and the EPA, from our
viewpoint, our perch here--we have some good Inspector Generals
who have done some good, quality work but when we know about
these people who are participating in sexual harassment, more
than a dozen times, and that person is not fired, that is a
huge problem.
A lot of good people work at the EPA and do a lot of good
and important work, but when we have a bad apple, we have to
get rid of them.
Some of these good employees became victims of harassment
due to these continued management failures. That is the sad
thing. If somebody is going to do something stupid, if you do
not take care of it immediately the first time, then there are
more victims. That is the case and that is why we are here
today.
In addition, high performing employees become discouraged
when they see management rewarding bad behavior or ignoring
clear signs of misconduct. There can probably be nothing more
demoralizing than knowing that somebody has this problem that
is affecting others, nothing is done about it and then they get
promoted.
The Committee will continue to look at exploring
legislative solutions to encourage agencies to weed out the bad
actors while protecting the rights of the vast majority of good
employees, creating a good, positive work environment so that
we can get the job done.
I have said this several times, we, as a Nation, look at
these things in an open, transparent way and do so in the
effort to make it better. That is why we have this panel here
today.
Chairman Chaffetz. I now recognize the Ranking Member, Mr.
Cummings, for 5 minutes.
Mr. Cummings. Thank you very much, Mr. Chairman.
Before I begin, I would like to take a minute to thank you,
Mr. Chairman, for your leadership. Over the last few days,
there have been all kinds of things in the news but one thing
that kind of slipped under the rug for many reasons is the
NFL's decision to waive its tax exempt status.
Mr. Chairman, you worked very hard on that. You called a
bipartisan meeting where you and I sat down with the NFL folks.
You let them know, in a bipartisan way, we were concerned about
this issue.
I know that you have filed legislation, something that is
very near and dear to you. I know a lot of people are going to
take credit for it, or try to. Often things that are done
without legislation, when we sit down and work together, can be
accomplished.
I compliment you and your staff for that. I am hoping that
the NFL understands that we had at least two other issues about
which we were concerned--the whole thing of concussions and we
wanted to look at what they are doing with regard to spousal
abuse, relationship abuse and those kinds of things.
I just wanted to compliment you and thank you for your
leadership on that.
Chairman Chaffetz. Will the gentleman yield?
Mr. Cummings. Yes, of course.
Chairman Chaffetz. Thank you. I appreciate it and I think
it does demonstrate that in a bipartisan way, we can be more
effective. Even though it is behind the scenes, I appreciate
those comments because we did this in unison and it had the
desired effect. We appreciate the NFL for taking the proactive
nature and making this adjustment. I think it is the right
thing to do. I think it is the fair thing to do.
Our thoughts and prayers are with you. I do not know how
you are here. When I turn on the television, you are up in
Baltimore dealing with some very difficult situations. It is
admirable what you are doing to talk about the calm and the
peace. I admire you for what you are doing and how you are
doing it. You are making us proud.
Again, our thoughts, hearts and prayers are with you. I am
amazed that you are able to be here this morning but I thank
you for being here.
Mr. Cummings. Thank you very much, Mr. Chairman.
I thank you for calling today's hearing. Let me start by
making a key point that I know we all agree on.
The overwhelming majority of Federal workers are extremely
hard working and many devote their entire lives to serving this
Nation. We recognize their service to our country and we honor
and we thank them.
One of the things the Chairman said a moment ago, when we
have cases like the ones we are addressing today, it only goes
against the morale of those great employees. We want to make
sure we do not tarnish their great reputations by the conduct
of a few.
We also know that with a work force of millions of people,
there are bound to be individuals who waste government
resources, squander taxpayer dollars, violate the law,
unfortunately, and fail in their core responsibilities as
employees of this great United States of America.
Today, we will focus on a handful of these employees who
worked at the Environmental Protection Agency and abused the
public trust by viewing pornography at work. In each case, the
employee signed a sworn Statement admitting to this misconduct.
We have now obtained these sworn admissions. Based on their
own words--nobody else's, but their own words--there is no
doubt that these employees should have been fired. There is no
doubt whatsoever.
The questions for today's hearing are these. Why were some
employees fired quickly while others were allowed to stay in
their jobs for a long time? Something is wrong with that
picture.
Why was there inconsistency in removing these employees?
Are there ways to improve this process going forward?
One of the things that the Chairman and I have discussed
with regards to some other agencies is when you have employees
who are treated one way and others treated another way, it
kills morale. It kills it.
People just want a level playing ground and want to know if
they do something right, they are applauded just like everyone
else, if they do something wrong, they want to know they are
going to be disciplined, just like everyone else. They can
accept that because those are the rules. However, when they see
a deviation, that is a problem.
Based on the documents the Committee has obtained, I do not
believe we need more legislation to address this issue. I
certainly want to hear from our witnesses on that. Instead, I
believe the EPA, the Inspector General and the Department of
Justice need to coordinate and share information more freely
and more quickly.
For example, EPA and IG officials responded very quickly in
the case of Thomas Manning, a computer specialist in Chicago
regional office who admitted possessing child pornography. He
admitted it.
The EPA notified the IG of possible criminal conduct on
March 13, 2013. The next day, the IG obtained Mr. Manning's
sworn Statement in which he admitted that he looked at ``child
pornography on the EPA computer.''
On that same day, the EPA placed this employee on
administrative leave, the same day, blocked his access to EPA
servers and barred him from EPA buildings--the same day. A
month later on April 10, the EPA placed him on indefinite
suspension without pay.
On August 5, the IG provided the EPA with a copy of the
employee's sworn admission and the agency initiated termination
proceedings. He later pled guilty to possessing child
pornography and was sentenced to 30 months in Federal prison.
In other cases, however, this process took much, much
longer. For example, on September 11, 2013, the IG received a
complaint that a GS-14 geologist had downloaded thousands of
pornographic images into EPA servers.
One week later, IG agents went to talk to this employee and
personally observed him viewing pornographic images on his work
computer. The same day, this employee signed a sworn admission
in which he explained how much time he spent at work surfing
the Internet for pornographic images.
Although he Stated ``it varied from day to day,'' he
admitted that on days when he had little work to do, ``the
surfing may be as much as five to 6 hours per day.'' A work day
is only 8 hours.
This sworn admission of wrongdoing by the employee should
have been enough to initiate termination proceedings against
him. However, the IG did not provide a copy of the admission to
the EPA for at least 9 months. Even then, nearly a year and a
half passed before the EPA finally issued a notice to remove
him.
As I close, there was a similar delay in another case when
a GS-14 employee, an environmental specialist, admitted to the
IG that he also viewed pornographic images while at work.
The IG also obtained a sworn Statement from this employee
in which he admitted looking at pornographic pictures for up to
an hour per day. Yet, the EPA did not initiate removal action
until 10 months after the employee admitted to this misconduct.
I understand that the decisions in these cases may have
been affected by ongoing criminal investigations by the U.S.
Attorney and there may have been restrictions on what evidence
could be shared and when, but if an employee admits to
misconduct, if he actually signs a sworn Statement detailing
what he did wrong, it seems to me--maybe I am missing
something--that we should be able to share that information
immediately so the agency can use it in termination
proceedings.
Mr. Chairman, I thank you for calling today's hearing. I
hope we can work together to develop concrete proposals to
speed up this process, increase information sharing and ensure
the EPA, the IG and the Department of Justice all have the
ability to use as much evidence as possible against an employee
who engages in this type of activity.
With that, Mr. Chairman, I thank you for your courtesy and
I yield back.
Chairman Chaffetz. Thank you.
I hope those from the EPA understand the outrage we have on
both sides of the aisle. This is totally and wholly
unacceptable. This will be a good hearing and I appreciate your
participation.
I will hold the record open for five legislative days for
any members who would like to submit written Statements.
I will now recognize our panel of witnesses.
We are pleased to welcome back to the Committee--he has
testified many time before us--we always appreciate having the
Honorable Arthur Elkins, Inspector General, Office of the
Inspector General, United States Environmental Protection
Agency.
Mr. Patrick Sullivan is Assistant Inspector General for
Investigations, Office of Inspector General, United States
Environmental Protection Agency.
Mr. Stanley Meiburg is Acting Deputy Administrator, United
States Environmental Protection Agency.
Mr. John Reeder is Deputy Chief of Staff at the
Environmental Protection Agency.
Welcome to you all.
Pursuant to Committee rules, all witnesses will be sworn
before they testify. 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?
[Witnesses respond in the affirmative.]
Chairman Chaffetz. In order to allow time for discussion,
please limit your opening Statements to 5 minutes but we are
pretty liberal on that policy. Your entire written Statement
will be made a part of the record.
My understanding is Mr. Reeder, you have combined your
Statement with Mr. Meiburg. We will start with Mr. Elkins and
go from there.
Mr. Elkins.
WITNESS STATEMENTS
STATEMENT OF ARTHUR ELKINS
Mr. Elkins. Good morning, Chairman Chaffetz, Ranking Member
Cummings, and members of the Committee.
I am Arthur Elkins, Inspector General of the EPA. I will
discuss two matters. First, I will report on the current status
of impediments arising from the EPA's Office of Homeland
Security and second, I will discuss the importance of
immediately reporting all employee misconduct to the OIG.
During a September 14 hearing before this Committee, I
testified that the EPA had asserted there was a category of
activity defined as intelligence to which the OIG may have
access only subject to the EPA's granting us permission.
This situation impeded the OIG's ability to investigate
threats against EPA employees and facilities, conduct certain
misconduct investigations and investigate computer intrusions.
Since that hearing, senior OIG officials have met multiple
times with senior agency officials to address a range of issues
falling under these general categories. We have theoretically
agreed that there is no category of activity at EPA to which
the OIG does not have unfettered access.
However, at least two crucial impediments remain. First is
a 2012 MOU that EPA entered into unilaterally with FBI. EPA
asserted that the MOU precluded it from sharing information
with the OIG. However, FBI senior management has since
confirmed to EPA that the FBI does not require withholding
information from the OIG.
During meetings with the EPA, we have Stated that any MOU
addressing these issues must be a three-way MOU among EPA, OIG
and the FBI. EPA has not rescinded the existing MOU, even
though its terms allow the agency unilaterally to rescind it
any time it chooses, nor has the agency accepted our proposed
elements for a revised MOU.
The second crucial OHS related impediment is that OHS
continues to have a use of criminal investigators while lacking
any investigative authority. The OHS examples are fundamental
challenges to the legal authority of the OIG to do its job.
Under the theory being pursued by Administrator McCarthy,
the head of an agency could preclude an IG from exercising
responsibilities and authorities assigned under the IG Act by
simply declaring that because an activity falls within an
agency program for operation, that activity is exempt from OIG
jurisdiction.
Agency heads would be empowered to decide when the IG Act
is applicable and when it is not. If accepted, this approach
would allow an agency to create out of whole cloth unilateral
exemptions to the IG Act where no such exemptions currently
exist.
Late yesterday afternoon, I received two emails from the
Administrator advising of an eminent withdrawal of the MOU.
While I sincerely appreciate the spirit of the proposal, the
Stated terms fall disappointingly short of addressing the OIG's
concerns.
Without real clarity in this matter, we unfortunately
continue to operate in a fog. This is the current State of
affairs at EPA.
While Mr. Sullivan's testimony will address in greater
detail the Peter Jutro investigation about which the Committee
has asked, I want to address that case with a broader view as
to why it matters relative to the OIG's oversight role.
We found that an SES level EPA employee engaged in
offensive and inappropriate behavior toward at least 16 women,
most of whom were EPA coworkers. Further, we found that very
senior EPA officials in the Administrator's office were made
aware of many of these actions and yet did nothing.
They did not tell the Administrator and they did not report
any of this knowledge to the OIG. In fact, they approved Jutro
for a detail assignment to be Acting Associate Administrator
for OHS. Subsequently, Jutro engaged in such behavior toward an
additional six women.
The necessary implication of the overall structure and
certain explicit provisions in the IG Act is that the OIG will
only be able to carry out its statutorily assigned functions if
it receives cooperation from the agency.
Further, both the current and previous EPA Administrators
have sent memoranda to the entire EPA work force setting forth
an expectation of cooperation with the OIG. The OIG's
investigation was negatively impacted and delayed by the fact
that these senior EPA officials did not notify the OIG about
their knowledge of underlying incidents.
This is not the first time that I have raised an alarm in
regards to these issues to EPA leaders and at congressional
hearings over the past 5 years. By this time, I have to
question the priority or the sense of urgency on the part of
agency leaders to resolve these issues.
Cooperation, unlimited access and immediately reporting
fraud, waste and abuse to the OIG are necessary tools that
enable an OIG to fully accomplish its mission. Yet, OIGs have
control over none of these tools, nor ultimately can we compile
solutions.
It is essential that the tenets of the statute directing
the OIG's work remain intact, well supported and not subject to
arbitrary revisions by agency heads. Finally, I would like to
reiterate my appreciation for this Committee's support in that
regard.
Mr. Chairman, I would be pleased to answer any questions
that you or Committee members may have.
[Prepared Statement of Mr. Elkins follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you, Mr. Elkins.
Mr. Sullivan, you are now recognized for 5 minutes.
STATEMENT OF PATRICK SULLIVAN
Mr. Sullivan. Good morning, Chairman Chaffetz, Ranking
Member Cummings and members of the Committee.
I am Patrick Sullivan, Assistant Inspector General for
Investigations for the EPA.
My testimony will highlight several cases of EPA employees
who viewed and downloaded pornography on government-issued
computers, as well as our investigation of a senior level
official who exhibited inappropriate behavior toward several
women over many years.
First, I will discuss employee A, who downloaded more than
7,000 potentially pornographic files into an EPA server.
In September 2013, an OIG special agent went to the
employee's work location and observed the employee viewing
adult pornography. The employee admitted that for approximately
two to 6 hours daily, during his assigned work hours, he had
viewed and downloaded pornographic images on an EPA computer.
We reviewed his laptop and discovered about 20,000
additional pornographic files. The employee advised that he was
not doing anything wrong by accessing pornographic websites
since he was completing his required work.
During the period he viewed the pornography, he received
several performance awards, including awards up to $2,000 and a
time off award.
He was then placed on administrative leave by EPA in May
2013. In March 2015, the U.S. Attorney's Office declined
prosecution. Earlier this month, EPA notified us that this
month that the employee had retired.
Next, I will discuss employee B who had been witnessed
viewing pornography on his government laptop computer during
work hours by a child who happened to be visiting the office
during Bring Your Daughters and Sons to Work Day.
The employee admitted that he viewed pornography at work
between one to 4 hours per day. He said that approximately 30-
40 percent of the data stored on his external electronic media
devices contained pornography. Approximately 3,500 pornographic
images were recovered from the employee's laptop and external
media.
EPA placed the employee on paid administrative leave in May
2014. In March 2015, the U.S. Attorney's Office declined this
case for prosecution. Last month, the EPA notified us that the
employee had been proposed for removal.
The third investigation involves Thomas Manning, an IT
specialist, who downloaded child pornography. He admitted to
viewing child pornography on the EPA computer and attempted to
erase it afterward.
We found that Manning also possessed tens of thousands of
images of child pornography on a personal hard drive stored at
work. He resigned while under investigation in August 2013. He
later pleaded guilty in July 2014 to possession of child
pornography.
Earlier this month, Manning was sentenced to 30 months in
Federal prison to be followed by 5 years of supervised release.
Last, I would like to discuss our investigation involving
Peter Jutro. In August 2013, we received an allegation that
Jutro, the Acting Associate Administrator for the EPA Office of
Homeland Security engaged in a series of interactions involving
a 21-year-old female intern from the Smithsonian Institution.
The OIG's allegations and findings included the following.
In July 2014, Jutro engaged in interactions involving a 21-
year-old female intern who reported him to a supervisor and
indicated that she was uncomfortable and scared.
In his office, he asked the intern what turned her on and
what excited her. He also took photographs of the intern's face
and toes. Contrary to the intern's Statement, Jutro denied
brushing up against, attempting to kiss her, or grabbing the
intern's buttocks but he conceded he might have placed his hand
on her back.
From 2004 through July 2014, Jutro engaged in unwelcomed
conduct with 16 additional females, which included touching,
hugging, kissing, photographing, and making double entendre
comments with sexual connotations.
We substantiated that Jutro had violated building entry
security procedures when he bypassed security checkpoints and
bringing the intern into EPA headquarters. We did not
substantiate the allegation that Jutro discussed classified
information in violation of Federal requirements.
However, we did substantiate that EPA senior level
officials who were aware of multiple claims of unlawful conduct
by Jutro. They did not take any actions against Jutro as a
result of receiving this information about him.
Several senior officials were advised prior to or
immediately following Jutro's February 2014 selection as Acting
Associate Administrator for EPA's OHS that he had exhibited
inappropriate behavior toward women.
Our case was negatively impacted and delayed due to the
fact that these senior officials did not notify us about their
knowledge of other instances of Jutro's inappropriate behavior.
This case revealed no criminal violations and was therefore
investigated as a purely administrative matter.
No criminal declination was sought or received from the
U.S. Attorney's Office. Jutro retired from Federal service in
January 2014.
We will continue to work closely with the agency, our law
enforcement partners and Congress to ensure that allegations of
employee misconduct are quickly and properly addressed.
That concludes my prepared Statement. Thank you, Mr.
Chairman.
[Prepared Statement of Mr. Sullivan follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you, Mr. Sullivan.
We will now recognize Mr. Meiburg for 5 minutes.
STATEMENT OF STANLEY MEIBURG
Mr. Meiburg. Thank you very much, Mr. Chairman, Ranking
Member Cummings and members of the Committee. It is my pleasure
to be here to testify today.
I am Stan Meiburg, the Acting Deputy Administrator of the
Environmental Protection Agency. I am accompanied here today by
John Reeder, one of the agency's Deputy Chiefs of Staff. Again,
I appreciate the opportunity to be here today.
I have worked for EPA for over 36 years in four locations,
starting here in Washington, our offices in Research Triangle
Park in North Carolina, and in our regional offices in Dallas
and Atlanta.
In both of those regional offices, I served as the Deputy
Regional Administrator, which is a senior career office in that
region. I held that position in EPA's Region IV office in
Atlanta for the last 18 years of my career until my retirement
last year.
To my surprise, last fall I received a phone call from EPA
Administrator Gina McCarthy offering me the opportunity and the
honor to return to the agency to serve as the Acting Deputy
Administrator, a position that also serves as the Chief
Operating Officer for the agency. That is the position I hold
today.
John Reeder, who is joining me today, is another long time
civil servant who serves as the career Deputy Chief of Staff
for EPA. John previously served overseas in the military from
1979-1981 and began his career in Federal service as a
Presidential management intern in 1987. He has served in his
current position as Deputy Chief of Staff since 2010.
One of the reasons I came back to EPA was to again have the
opportunity to work with the exceptional and hardworking people
of this agency. I believe in the people of EPA. I believe in
them because for over 36 years, I was one of them. I know how
hard our 15,000 employees work day in and day out on behalf of
the American people.
EPA employees who engage in serious misconduct are not
representative of the broader work force. All of the EPA
employees who work so hard especially deserve that we deal with
misconduct or poor performance swiftly, with integrity and
professionalism.
They further deserve our attention to their professional
growth so that collectively we are able to keep our eyes on the
mission of the agency.
Since returning to EPA, I have had the pleasure of working
with John and other senior agency leaders to increase our
support of agency employees and managers with the goal of
continued improvement of our work force.
In particular, we are working to improve our support for
our first line supervisors, develop a new and highly skilled
next generation of senior leaders and to streamline our
processes.
First line supervisors have some of the hardest jobs at any
organization and EPA is no exception. Our goal is to provide
our first line supervisors with the right tools and information
to enable them in performing their essential role at the
agency, including addressing poor performance or improper
conduct early in those rare instances where it is necessary.
Earlier this month, we launched a revised and updated first
line supervisor's tool kit, the first comprehensive updating of
that resource in 15 years. Through the coming year, we will be
convening focus groups of first line supervisors to ensure we
understand their needs and see how, as their senior leaders, we
can make them better.
The agency has also placed a renewed emphasis on developing
the next generation of senior leaders at the EPA. Earlier this
spring, I announced the opening of EPA's first Senior Executive
Service Candidate Development Program in many years. I am proud
that EPA will enroll more than 20 candidates in the SES
Candidate Program this year.
In closing, EPA has an honorable, 45-year history of
protecting public health and the environment for the people of
the United States. I am proud of the work accomplished every
day by the employees of EPA and excited about our efforts to
continue to improve and better support our managers and staff
across the agency.
With that, we look forward to any questions you may have.
[Prepared Statement of Mr. Meiburg follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
I will now recognize myself for 5 minutes.
Mr. Reeder, how long have you worked at the EPA?
Mr. Reeder. Mr. Chairman, 27 years.
Chairman Chaffetz. Between the two of you, you have about
60 years of experience at the EPA. We thank you for your
service, but I do not understand with Mr. Peter Jutro.
There were 13 times, 13 times that women had reported
matters to the EPA about some form of sexual misconduct, sexual
harassment and yet it took more than 13 times before you got
serious about it. It finally percolated to the point where you
were actually going to pursue it and then he just retires. He
was in his 70's, correct?
Mr. Reeder. Mr. Chairman, I do not know his age.
Chairman Chaffetz. My understanding is he is roughly 70
years old. Why does it take 13 times before you all get serious
about it? That is what is so infuriating.
Two of these incidents of sexual misconduct happened at the
White House--at the White House. Who wants to answer that
question? Why does it take so long?
Mr. Reeder. Mr. Chairman, I do not know where that comes
from. Maybe the Inspector General is in a better position to
answer the question about the incidences because I believe many
of those were discovered in their investigation and were not
raised to managers.
Chairman Chaffetz. Mr. Elkins or Mr. Sullivan? My
understanding is that 13 times these matters had been reported
to EPA management.
Mr. Sullivan. Yes, it was reported, in most cases, to the
victim's immediate supervisor--in most of the cases, not in
every case. Some of the victims came forward during our
investigation.
At least one of the incidents at the White House was
reported immediately during the alleged sexual harassment and
inappropriate conduct by Mr. Jutro. The victim immediately
communicated with her supervisor what Mr. Jutro had done.
Chairman Chaffetz. That happened in 2009-2010, something
like that?
Mr. Sullivan. The last incident happened on or about July
29, 2014.
Chairman Chaffetz. One of the ones at the White House that
was reported, at least according to what I read in here, was
back in 2009-2010.
Mr. Sullivan. Yes, and the second one happened in July
2014.
Chairman Chaffetz. I do not understand why someone has to
ever tolerate this and then tolerate such mismanagement that
you do not deal with it. These people were promoted.
Go ahead, Mr. Reeder.
Mr. Reeder. Thank you, Mr. Chairman.
The way the sexual harassment policy works at the agency is
if an employee complains about behavior, they would report that
behavior to the supervisor. In most instances, those do not
become formal cases and the supervisor is obligated--and I hope
they have done this--the supervisor is obligated to take some
action to either end the behavior or if it is more serious, to
conduct a more formal review and investigation.
I cannot answer for the supervisors who may have been
involved with Dr. Jutro over the course of his career.
Chairman Chaffetz. Time is limited here. Under your policy,
sexual harassment, first offense is either written reprimand or
up to removal. The second offense is a 14-day suspension up to
removal. There were more than two of those. There were more
than two of those and that did not happen. The third offense is
a 30-day suspension up to removal. Why didn't you follow your
own policy in this? This person ultimately got promoted.
Mr. Reeder. I cannot answer the question about what
happened in those instances before he came to the Office of the
Administrator. I am sorry, Mr. Chairman.
Mr. Meiburg. Mr. Chairman, let me just speak to a couple of
things.
Since the incident that led to the Inspector General
investigation occurred before I came back to the agency, I
cannot really speak to that, but I will say that the issues
that were uncovered in the Inspector General investigation were
a result of the agency's asking the Inspector General to do the
investigation following the behaviors that occurred with the
Smithsonian intern.
Chairman Chaffetz. Do you dispute the idea that 13 times
women reported to somebody in management that this was a
problem and this person was getting promoted along the way? He
got bonuses.
Mr. Meiburg. Where I was going with this was simply to
thank the Inspector General.
Chairman Chaffetz. That is not an answer. I want you to do
your job. I want you to fire these people who are sexually
harassing people at work. I want you to fire them. I want you
to live up to the obligations that you put out in your own
manuals. That did not happen in this case. Do you dispute that?
Mr. Meiburg. What I do not dispute is that kind of behavior
was appalling and is intolerable.
Chairman Chaffetz. You can say that but then there is no
consequence and the guy gets promoted. It makes the situation
worse. Would you disagree with that?
Mr. Meiburg. Mr. Chairman, again, in the specific case of
Mr. Jutro, the fact that the Inspector General was able to help
in identifying things that had not otherwise come to light was
useful and I think contributed and backed up the swift action
that was taken.
Chairman Chaffetz. Swift action?
Mr. Meiburg. Yes.
Chairman Chaffetz. Where do you think you had swift action?
Mr. Meiburg. When the report came from the Smithsonian
intern.
Chairman Chaffetz. When was the first time a woman stepped
up and said this guy is harassing me? When was that time?
Mr. Meiburg. When the agency got the information from the
Smithsonian intern, they acted immediately and contacted the
Inspector General. They took his badge, barred him from the
building and he never came back.
Chairman Chaffetz. Mr. Sullivan and Mr. Elkins, to suggest
that they acted swiftly upon the first time, you should not
have to have the Inspector General go through this. Management
should be able to deal with this immediately.
According to your own policy, that is what is supposed to
happen, but that is not what is happening at the EPA.
Mr. Elkins or Mr. Sullivan?
Mr. Elkins. Mr. Chairman, it is my understanding of the
facts that members of the Administrator's office had notice
that Mr. Jutro had some suspect conduct in the past. That was
information they had prior to Mr. Jutro actually being assigned
to have the Acting position as the Associate Administrator of
OHS.
None of that information was provided to us prior to the
incident with the intern. Mr. Sullivan may be able to give you
a little bit more details.
Mr. Sullivan. Mr. Chairman, on or about February 20, 2014,
when Mr. Jutro was being vetted for the position, the then
Deputy Administrator, Mr. Perciasepe asked the Acting Associate
Deputy Administrator, Ms. Feldt to speak to Mr. Jutro.
During that discussion, Mr. Jutro exhibited offensive
behavior to Ms. Feldt that she felt was completely
inappropriate based on his comments. The next day, a senior
executive--who was a victim reported in our report of
investigation--reported to Ms. Feldt, with great specificity,
some of Mr. Jutro's prior behavior.
Ms. Feldt told us she then took that information from the
victim, who was a senior executive, and reported back to Mr.
Perciasepe and other senior executives in the Office of the
Administrator urging them not to appoint him to the position of
Acting Associate Administrator.
Chairman Chaffetz. What happened?
Mr. Sullivan. Nothing. He was appointed. They did some
subsequent vetting, but we are not quite sure exactly what that
vetting was.
Chairman Chaffetz. My time has well expired. I will now
recognize the Ranking Member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
I would like to ask why the EPA moved so quickly to remove
some employees but so slowly to remove others? Let us start
with the case where the process seems to have worked quickly.
Thomas Manning was a computer specialist in EPA's Chicago
office who admitted viewing child porn on his work laptop. On
March 14, 2013, IG agents interviewed Mr. Manning and he signed
a sworn Statement admitting that he used his EPA computer to
``search the Internet to view adult and child pornography.''
The EPA immediately put Mr. Manning on administrative
leave, blocked his access to EPA servers and banned him from
the building. On April 10, less than a month later, the EPA
placed Mr. Manning on indefinite suspension without pay.
On August 5, the IG provided the EPA with a copy of the
employee's sworn admission and the agency then initiated
termination proceedings. Today, Mr. Manning is currently
serving a 30 month prison sentence.
Mr. Sullivan, what is your view on how this case was
handled by your office and the EPA? Was it handled quickly, in
your view?
Mr. Sullivan. It was handled very quickly and
professionally by the EPA Region V staff. One of the
differences here, Mr. Cummings, is that Mr. Manning admitted to
committing a felony. The viewing and possession of child
pornography is a felony under Federal statutes.
Once he gave us his confession confessing to a felony, we
shared that with the Region V officials and they initially put
him on paid leave. They changed that to unpaid leave and then
initiated removal proceedings essentially because he had
admitted to a felony.
The U.S. Attorney's Office had given us permission to share
everything at that point with the Region V folks.
Mr. Cummings. I am assuming he was aware this admission
could be used against him in a criminal proceeding?
Mr. Sullivan. Yes, and we also had permission from the U.S.
Attorney's Office to use that confession or to provide it to
the Region V folks in Chicago for them to use in their
administrative action. It was done on a dual track,
simultaneously.
Mr. Cummings. Let us talk about the case that took much
longer. On September 11, 2013, the IG received a complaint that
a GS-14 geologist had downloaded thousands of pornographic
images. One week later, IG agents went to talk to this employee
and personally saw him--this is amazing--personally saw him
viewing pornographic images on his work computer. You just
walked in on him, is that what happened?
Mr. Sullivan. That literally is what happened. The agent
went over to interview him, walked to his workspace and
observed him in real time viewing pornographic images.
Mr. Cummings. This employee signed a Statement admitting
that he surfed the Internet for pornography ``as much as five
to 6 hours per day.'' Again, an employee was saying, I did it.
He signed an admission. In this case, however, the IG did not
provide a copy of the sworn admission to EPA until June 19,
2014, 9 months later.
Inspector General Elkins, I am trying to understand this.
Why would it take 9 months to provide the employee's signed
Statement to EPA?
Mr. Elkins. Representative Cummings, I think I would like
to defer to Mr. Sullivan who has the specific facts on that.
Mr. Cummings. Very well. Did we have a felony here?
Mr. Sullivan. No, there was no felony here per the viewing
of adult pornography. The potential felony and the theory we
were pursuing is that the geologist--we cannot mention his name
here--was committing a violation of 18 USC 641, the theft of
government funds, because he certified on his timecard that he
worked 80 hours per week but by his own confession, he worked
significantly less than 80 hours a week because between 2, 4
and 6 hours a day he was viewing pornography.
The U.S. Attorney's Office initially accepted that theory
and was preparing a criminal prosecution against the geologist.
Therefore, we verbally briefed the agency, the supervisors and
the Labor Employee Relations attorney as to exactly what the
gentleman admitted to, but we finally got permission from the
U.S. Attorney's Office to physically turn over the confession.
We got specific permission from the U.S. Attorney's Office for
the agency to pursue parallel administrative actions similar to
what happened with Mr. Manning.
Mr. Cummings. I see.
Mr. Meiburg, even after the IG provided the sworn
Statement, it took another 9 months for the EPA to initiate
removal proceedings. Why is that?
Mr. Meiburg. Mr. Cummings, thank you. Let me must State the
obvious, that viewing pornography has no place at EPA.
Mr. Cummings. I got that, now answer my question.
Mr. Meiburg. Right. In the case of the Chicago instance
that you mentioned, there was, in fact, a reasonable cause to
believe the employee committed a crime for which a sentence of
imprisonment could be imposed. That gave us the ability in that
case to act as Mr. Sullivan described and have that employee
immediately suspended without pay.
In the case of the employees otherwise, we were waiting for
a declination of prosecution from the U.S. Attorney's Office
because we do not want to interfere with the prosecution of an
investigation, a crime or any other activity.
Mr. Cummings. Did the U.S. Attorney ask you for that?
Mr. Meiburg. We asked to make sure we knew when that was
the case, so we could then proceed.
Mr. Cummings. No, no, no, you did not answer my question.
Did the U.S. Attorney tell you what you just said? Did they
tell your folks at EPA?
Mr. Meiburg. I do not know the answer to that question.
Mr. Cummings. Do you know whether there is a document that
says that, that you may have in your possession?
Mr. Meiburg. I do not know. I do not know the specifics of
that case enough to say. I do know that it is our general
practice to not try to pursue an administrative action----
Mr. Cummings. Wait a minute now. Mr. Sullivan, do you know
anything about this piece? You would have dropped out of it by
now?
Mr. Sullivan. No, sir.
Mr. Cummings. Tell me, do you know about the U.S. Attorney
asking the department not to proceed for a while? Do you know
anything about that?
Mr. Sullivan. Just the opposite. We received specific
permission from the U.S. Attorney's Office for the EPA
Administrator's office and the powers to be to pursue parallel
administrative action.
Mr. Cummings. That is what I thought you said.
Mr. Sullivan. Yes, sir, that is correct.
Mr. Cummings. I thought maybe I missed something.
Mr. Sullivan. No.
Mr. Cummings. Mr. Meiburg, did you hear that--I am sorry,
Mr. Sullivan, what were you saying?
Mr. Sullivan. We communicated that to the geologist's
supervisor and to the Labor Relations attorneys at EPA.
Mr. Cummings. In other words, EPA knew they could proceed,
right?
Mr. Sullivan. Yes, sir.
Mr. Cummings. You are saying almost--I am not putting words
in your mouth but you are saying almost the opposite of what
Mr. Meiburg just said, I think.
Mr. Meiburg. I think what there is here and one of the
lessons from these cases that I completely agree with is that
there is a need for a better understanding and communication
between the Inspector General's Office, the Department of
Justice and our own Labor and Employee Relations people to make
sure everyone knows the terms of engagement.
I think people were acting in good faith, believing that
they did not want to interfere with the potential criminal
prosecution but as Mr. Sullivan has said----
Mr. Cummings. Let me give you some advice. In the future,
if the department is confused, maybe you might want to just
pick up the phone, dial some numbers and call Mr. Sullivan, if
they want to know where they stand. You would not mind taking
that call, would you?
Mr. Sullivan. Mr. Cummings, not only would we not mind it,
but in the case of the geologist and the other gentleman who
was the environmental specialist, we had continual
collaborative interaction with the agency, the supervisors and
the Labor Employee Relations staff. We had contact with them on
a weekly basis and multiple times every month during this
period of action.
Mr. Cummings. This is the last question.
If an employee admits to misconduct and if he signs a sworn
Statement detailing what he did wrong, we should be able to
immediately share that information. Mr. Meiburg, is there any
reason--Mr. Sullivan, I want you to listen to this also--the IG
and the EPA could not adopt a policy today, not yesterday,
today, providing that sworn Statements like these will be
turned over to the agency as soon as possible? Is there
anything preventing us from doing that?
Mr. Sullivan. The only thing that would prevent us is that
once the case is accepted for prosecution, we would have to get
the acquiescence of the U.S. Attorney's Office before we turned
over that document, but I cannot imagine that any U.S. Attorney
would say we cannot turn over the confession to the agency for
them to take administrative action.
Mr. Cummings. Mr. Meiburg?
Mr. Meiburg. I think that is something we would welcome and
we welcome working with the IG and the Department of Justice.
Mr. Cummings. I thank you, Mr. Chairman, for your courtesy.
I really think that if there is a way you all can work that
out, that would be very helpful. Not every single thing has to
be legislated, I do not think, but you all should be able to
work this out.
I will talk to the Chairman and you all can bring us back
some type of proposal so we can move on this because at the
rate we are going, we will be talking about this same stuff--
some of us, if we are still here--ten years from now.
Mr. Meadows [presiding]. I thank the gentleman.
The Chair recognizes the gentleman from Michigan, Mr.
Walberg.
Mr. Walberg. Thank you, Mr. Chairman.
As I am listening to this testimony, we have heard it
before. It appears there may be some need for the taxpayers to
be protected from the environment of the EPA. It is a concern
that has to be addressed.
Mr. Elkins, yesterday you indicated--I believe around 5:28
p.m., after business hours--you received an email from
Administrator McCarthy stating that the EPA had rescinded the
MOU between the agency and the FBI.
Mr. Elkins, where does Administrator McCarthy's action
leave the EPA OIG? What are the next steps?
Mr. Elkins. Thanks for that question.
Actually, it leaves the whole situation muddier than it was
before. First of all, let me start out by saying that my office
has never really had an objection to an MOU with the FBI and
the EPA on how to move forward. That would create a clear path
that everybody understands who is on first, who is on second.
Mr. Walberg. But you are all part of the game?
Mr. Elkins. We are all part of the game. However, though we
wanted to a part of that discussion, that never happened. We
were never a part of the discussion. In effect, what we have
now is by the Administrator doing away with the MOU--if you
read the plain language of her email--it pretty much puts
everything back to square one where the Office of Homeland
Security will continue to do investigative activities with the
FBI and will decide when they are going to bring the EPA OIG
into an investigation. This is untenable. It is dangerous. At
this stage of the game, we are still in a fog.
Mr. Walberg. Which leaves a crucial ally tool out of the
process for people like us as well, representing the taxpayer.
Mr. Elkins. Yes. To the extent that the FBI has always said
to the Administrator, just let us know who the point of contact
is going to be at the EPA so we can work with them. This takes
away that point, so the FBI does not know. Basically, the point
of contact is back to the Office of Homeland Security, which in
the past has excluded my office from participating. It is a
serious issue.
Mr. Walberg. The hen house is not guarded.
Mr. Sullivan, were senior level EPA officials, such as Mr.
Reeder, cooperative in volunteering information to the OIG in
order to assist you in uncovering further information about Mr.
Jutro's past inappropriate behavior and probably more
importantly, how many times did you have to interview Mr.
Reeder in order to obtain the information you needed to proceed
with your investigation?
Mr. Sullivan. We had to interview Mr. Reeder three times.
There was a series of different subjects we discussed with him.
With each interview when we obtained additional information, we
then asked additional questions, so eventually we got more
information from Mr. Reeder.
The first interview was rather limited and we subsequently
found out that--I do not know whether it was our fault for not
asking the right questions--we subsequently found Mr. Reeder
had additional information which he had during the time of the
first interview but ultimately it was not given to us until
after the third interview.
Mr. Walberg. Mr. Reeder, why didn't you give it to them?
You had the information.
Mr. Reeder. Congressman, I am not sure what particular
information Mr. Sullivan is talking about. If you were to make
it more specific, I am happy to cooperate and answer the
question.
Mr. Walberg. If you were listening to the first question,
it took a series of interviews to get the information that you
should have had--at least Mr. Sullivan had indication that you
had it--but there was not a forthcoming in trying to get to the
bottom of bad behavior.
Mr. Reeder. I will try to be helpful in clarifying that.
I believe Mr. Sullivan is referring to something that
another employee, Lisa Feldt had told me prior to the placement
of Mr. Jutro in the position. If that is what he is referring
to, I can certainly address that question.
Mr. Walberg. Is that what we are referring to?
Mr. Sullivan. Yes, Mr. Walberg. Ms. Feldt--we found out
subsequent to Mr. Reeder's first interview--told us
specifically she discussed her concerns about Mr. Jutro with
Mr. Reeder and other senior executives. During our first
interview, Mr. Reeder never told us that.
Mr. Walberg. My concern, as I listen to this, is that we
have employees who receive pay while on administrative leave
for long periods of time, and we have people who can retire to
get away from some of the impact of their efforts.
Mr. Elkins, would you be in favor of legislative or other
fixes that would streamline the process by which Federal
employees could be terminated, could be prosecuted, would have
their administrative leave shortened and the impact to the
taxpayer impacted in a positive way?
I say this having introduced legislation last term on SES
streamlining to get at these issues. That legislation is
upgraded and shortly in the next couple of weeks will be
introduced as well. Would that be of help to you?
Mr. Elkins. Let me answer the question this way. I believe
that justice delayed is justice denied. Whether it is a
criminal case or an administrative case, employees need quick
action to determine whether or not there is guilt or
misconduct.
Any legislation that sets some sort of timeline, like a
speedy trial type of instance that requires agencies to move
quickly.
Mr. Walberg. Efficiently.
Mr. Elkins. Efficiently, with a sense of urgency, I think
would help the agency and the employee.
Mr. Walberg. Thank you.
Mr. Meadows. I thank the gentleman from Michigan.
The Chair recognizes the gentleman from Massachusetts, Mr.
Lynch.
Mr. Lynch. Thank you, Mr. Chairman.
I want to thank the witnesses for your attendance.
I actually think if we are going to look at new
legislation, and I think we need to, we look at the authorizing
statute for Inspectors General because the side deal between
the FBI and the EPA to shut out the Inspector General is
problematic.
It takes Congress out, as the gentleman previously
indicated. There is nobody representing the taxpayer and
obviously nobody protecting the employees either, the ones that
were harassed.
Mr. Elkins and Mr. Sullivan, thank you so much for your
service. You are both frequent flyers to this Committee and we
appreciate your great work.
One of the provisions in the Inspector General statute says
that when probable cause becomes apparent, you automatically
have the authority to subpoena when there is probable cause
that a crime has been committed.
Certainly either when the tenth, eleventh or twelfth woman
complained about Mr. Jutro, I think you probably had probable
cause to intervene and subpoena the records that the EPA was
withholding from you.
Certainly when you get a written admission of guilt that
the person was actually viewing pornography for numerous hours
during the course of the day, when you have a stipulation that
they are violating Federal anti-pornography statutes, certainly
when you have an admission, a stipulation from the defendant
that they have violated the law, that is probable cause.
What was the problem, once you had the admission, with
going forward? It seems this delay for additional evidence
after the individual stipulated they committed the crime, that
they are guilty and then there is a nine or 10 month dialog
about additional evidence. One the defendant admits or
stipulates they have committed the crime, you don't need any
more evidence to take action. That is a stipulation and you can
go ahead, you can go forward. Am I missing something?
Mr. Elkins. No, sir. Let me try to put this into a bit of
perspective.
On the subpoena issue, inspector generals, yes, we do have
subpoena authority but we cannot use a subpoena against Federal
employees or Federal agencies. It does not work that way.
Mr. Lynch. If the statute says you do--as a matter of fact,
that is the only thing you can do, subpoena the agency that you
are charged to oversee. That is the way the statute is written.
Mr. Elkins. No, no, we cannot use subpoenas against Federal
employees. We can use subpoenas, yes, but not against Federal
employees.
To the extent there is an administrative process going on,
that is one issue. If it is a criminal matter where the U.S.
Attorney is involved, then through the U.S. Attorney's Office,
we can use subpoenas. That is what the IG Act provides.
Mr. Lynch. It says in the statute that authorizes you,
Title V, Subsection 6, that you have the right to unfettered
access to all materials.
Mr. Elkins. I do.
Mr. Lynch. It also says that you can exercise and issue a
subpoena to gain those materials.
Mr. Elkins. Yes, two different things. Yes, we do have
unfettered access.
Mr. Lynch. It does not sound like you have unfettered
access.
Mr. Elkins. No, we do not.
Mr. Lynch. You are telling me we have unfettered access and
I said it does not sound like you have unfettered access and
then you say, we do not have unfettered access. I am at wits
end here because nothing is happening.
Mr. Elkins. Let me see if I can answer your question more
directly.
Mr. Lynch. Please.
Mr. Elkins. This is not really confusing. The statute
provides that we do have unfettered access, that the agency
needs to cooperate with us. That is separate from subpoena
issues.
Mr. Lynch. That is the definition of unfettered.
Mr. Elkins. In order for that to work, the agency has to
cooperate with us. We do not have that cooperation. If we do
not get the cooperation, it does not work. I cannot issue a
subpoena to compel that cooperation. That is the distinction.
Mr. Lynch. OK, so we need to change the statute. Not only
that, in my opinion, we need to put a provision in here that
there is an obstruction of justice penalty against individuals
who get in the way of justice, of prosecuting these cases.
It is not merely an absence of reporting, there is an
active effort here, in my opinion, to protect these employees.
When you have an admission from an employee that they have
broken the law and you promote them or if you have an admission
within your department from an employee who works for you that
they are downloading porn four or 5 hours a day, and you just
kick the can down the road and let them retire without penalty,
that is complicity. That is complicit in allowing that person
to break the law and escape justice.
I am just beside myself with what is going on here. It is
absolutely pathetic. I know there are a lot of good employees
over at the EPA. This is just a disgrace to them of painting
them with this brush. You are not helping.
I will yield back.
Mr. Meadows. I thank the gentleman.
The Chair recognizes the gentleman from South Carolina, Mr.
Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Chairman, you have been on this Committee for a number
of years, as have I. It is the same damned song, just a
different verse. We cannot investigate because there is an
ongoing Inspector General investigation, we cannot investigate
because there may possibly be pending criminal charges.
Then we hear last week, Mr. Chairman, that we cannot
discipline employees for anything other than sexual harassment.
Here we have a fact pattern that includes sexual harassment and
nobody is being disciplined.
Mr. Sullivan, what is the total number of women who made
allegations against Mr. Jutro?
Mr. Sullivan. Seventeen.
Mr. Gowdy. Seventeen. Give me some of the specific
allegations.
Mr. Sullivan. Some of them are pretty graphic and I do not
know if we want to discuss it.
Mr. Gowdy. Oh, yes, I do because the two men beside you
either knew about them or should have known about them and did
not do a damned thing about it, so the more graphic, the
better.
Mr. Sullivan. On one occasion, which was in December 2013,
Mr. Jutro was at a restaurant in the Wilson Plaza right next to
EPA headquarters with one of the senior female employees.
She described to Mr. Jutro that she had to leave to take
the train home. He perked up and said, train, I have never had
one of those. She knew exactly what he meant.
Mr. Gowdy. I think most of us know what he meant.
Mr. Sullivan. Yes, and she was very offended by that
statement.
Mr. Gowdy. Yes, well, she should have been. What else?
Mr. Sullivan. At the incident at the White House in July, a
female colleague was at the White House on assignment with Mr.
Jutro. He asked her what she was doing and she I am tweeting
back the event here so our colleagues back at EPA headquarters
can understand what is going on and can follow in real time.
He said, oh, twating, I really like twating, again
referring to part of the female anatomy.
Mr. Gowdy. Mr. Reeder, were you aware of an allegation of
inappropriate, unwanted sexual discussion at an EPA happy hour
on December 4, 2013 at a restaurant? Were you aware of that?
Mr. Reeder. No, sir.
Mr. Gowdy. Do you know why you were not aware of that, Mr.
Reeder?
Mr. Reeder. I do not know why.
Mr. Gowdy. Because you did not bother to ask Mr. Jutro's
supervisor when you were doing his background check. He knew
about it but you did not bother to ask him.
How about July 29, the same female was again the victim of
inappropriate and unwanted sexual discussion by Mr. Jutro at
the White House Innovation for Disaster Response and Recovery
Day. Do you know about that?
Mr. Reeder. I do not know.
Mr. Gowdy. Do you know why you did not know about that, Mr.
Reeder?
Mr. Reeder. No, sir.
Mr. Gowdy. Because you did not bother to ask the person who
did know which was the immediate supervisor of Mr. Jutro while
you were vetting him for another position.
Did you know about an inappropriate and unwanted hugging
and kissing that began with one of the victims in 2007?
Mr. Reeder. No, sir.
Mr. Gowdy. Do you know why you did not know about that, Mr.
Reeder?
Mr. Reeder. It was not told to me.
Mr. Gowdy. Because you did not bother--no, no, no. You were
not told? You did not ask. You did not interview his immediate
supervisor. Do you recall what your rationale was for not
interviewing that immediate supervisor?
Mr. Reeder. Yes, sir.
Mr. Gowdy. What was that?
Mr. Reeder. At some point before Dr. Jutro was put into the
position----
Mr. Gowdy. I am looking for an answer. I am not looking for
an encyclopedia. What reason did you give for not interviewing
the immediate supervisor of the person that we are describing?
Do you want me to refresh your recollection, Mr. Reeder--
because you do not talk to people at that level. That was your
response.
Mr. Reeder. That is the characterization of somebody else,
sir. That is not my characterization.
Mr. Gowdy. It is the characterization of the Inspector
General, Mr. Reeder.
Mr. Reeder. If you like, I can answer.
Mr. Gowdy. No, I am going to get through, first, Mr.
Reeder.
Mr. Reeder. Yes, sir.
Mr. Gowdy. Were you aware of an allegation of inappropriate
and unwanted hugging and kissing that occurred at another White
House meeting in approximately 2009-2010?
Mr. Reeder. No, I am not, sir.
Mr. Gowdy. Do you know why you were not aware of that, Mr.
Reeder?
Mr. Reeder. No, sir.
Mr. Gowdy. Because you did not bother to ask the person
that had knowledge which would have been the immediate
supervisor of the person you were vetting for another office.
Were you aware of inappropriate and unwanted hugging and
kissing and sexual discussion that began with yet another
victim in 2002?
Mr. Reeder. No, sir.
Mr. Gowdy. Do you know why you were not aware of that, Mr.
Reeder?
Mr. Reeder. Congressman----
Mr. Gowdy. Because you did not bother to ask the person who
knew. Did you volunteer the information when you were asked?
Mr. Reeder. I am sorry, I am not sure what information you
are referring to.
Mr. Gowdy. Did you know any of these allegations, Mr.
Reeder?
Mr. Reeder. No, sir.
Mr. Gowdy. Why did you not interview--let me ask the
Inspector General. Do you agree with that, Mr. Inspector
General, that Mr. Reeder was not aware of any allegations of
wrongdoing at the time you interviewed him and failed to
volunteer?
Mr. Elkins. Let me defer to Mr. Sullivan who has the facts
on the investigative piece.
Mr. Sullivan. Mr. Gowdy, we determined that at a minimum,
Mr. Reeder was aware of the offensive discussion that Mr. Jutro
had with Ms. Feldt. He was also aware of the reporting of Mr.
Jutro's sexual harassment, including unwanted hugging and
kissing with a senior executive. Ms. Feldt reported that to Mr.
Reeder, as well as other senior people including the former
Deputy Administrator, Mr. Perciasepe, before Mr. Jutro was
appointed as the Acting Associate Administrator.
Mr. Gowdy. What did Mr. Reeder do with that information?
Mr. Sullivan. I do not know what he did but we did not find
out about it----
Mr. Gowdy. But he was on notice before the promotion was
made of some of these allegations?
Mr. Sullivan. Yes.
Mr. Gowdy. And would have been on notice of more had he
bothered to ask the immediate supervisor?
Mr. Sullivan. Had he asked the immediate supervisor--we had
interviewed the immediate supervisor--that supervisor told us,
I would have absolutely shared that with Mr. Reeder but he was
never contacted.
Mr. Gowdy. I yield back, Mr. Chairman.
Mr. Meadows. I thank the gentleman from South Carolina.
Mr. Reeder, I am concerned that, as a chief of staff, you
are charged with a particular duty and a particular task and
yet, under questioning from Mr. Gowdy, it sounds like you did
not even conduct a thorough investigation before making a
recommendation on this individual.
Mr. Reeder. Mr. Chairman, I disagree with that.
Mr. Meadows. How could you disagree with all the questions
that Mr. Gowdy just posed to you and you had no knowledge but
yet, Mr. Sullivan was able to get that by picking up the phone
and having a discussion? How could you disagree with that?
In hindsight, you would acknowledge that you were wrong,
would you not, in hindsight?
Mr. Reeder. In hindsight, I would have asked a different
question, yes, sir.
Mr. Meadows. All right.
The Chair recognizes the gentlewoman from New York, Ms.
Maloney for 5 minutes.
Ms. Maloney. I am just astounded and I am getting a little
clarification. It appears that you sexually harassed someone
and you might just get a promotion. You are not disciplined,
you are not put on leave to protect other employees from
inappropriate behavior. It appears you get a promotion.
I want to followup with the questioning of my colleague
from the great State of South Carolina.
Mr. Reeder, the IG report indicates that you were one of
four senior officials who was notified of the concerns of two
female employees on about February 20, is that correct? Were
you notified by these female employees of their concern?
Mr. Reeder. I had a conversation with Lisa Feldt who told
me of something she heard from a third party, yes.
Ms. Maloney. Did you followup and talk to the third party?
Mr. Reeder. No, ma'am. I had the understanding from Ms.
Feldt that the third party was not interested in speaking about
the matter further.
Ms. Maloney. Did you conduct any further checks of Mr.
Jutro after you were informed of these concerns? Sexual
harassment is a crime.
Mr. Reeder. Congresswoman, in this instance, Ms. Feldt told
me that there was an issue, that there was some behavior which
was not described to me. I think it is important for the
Committee to know what I did know and did not know.
I did not know the place, the date, the time, the
description of the activity or behavior. I did not have a
complainant and I did not have a witness. I had a concern about
something that he had done inappropriately at some point in the
past. It certainly was not enough for me to open an
investigation.
I was, frankly, conflicted about what I should do with that
kind of information. It was a very difficult set of facts for
me to deal with, frankly--to act on.
Ms. Maloney. Is not sexual harassment, inappropriate
touching and inappropriate language toward your coworkers
defined as sexual harassment? You may not think it is
inappropriate, but certainly my colleague on the other side of
the aisle did.
I want to followup on when you are going to promote
someone, you talk to the people who work with them. An
allegation is an allegation. If they are serious, I try to
followup on them. I got one the other day and I am making some
phone calls on it.
Why didn't you check with the supervisor? The supervisor
would know whether or not this person should be promoted? Why
didn't you check with Mr. Jutro's immediate supervisor? Is it
true that you did not check with the Office of Research and
Development or the supervisor in his case or whatever? Why
didn't you check with him?
Mr. Reeder. Congresswoman, when I heard this incident,
which as I described was very vague information about some
inappropriate behavior, I did make additional calls to people
that I believed would be in a position to know more about Dr.
Jutro.
Ms. Maloney. Would not his immediate supervisor be in a
better position than whomever you decided to randomly call? Why
didn't you call him? I am just curious. What were you thinking?
Mr. Reeder. I called the senior people in the Office of
Research and Development, I did. I did not call Mr. Sales. In
the normal course of discussing the temporary detail of this
matter, I would talk with somebody who was in charge of the SES
folks in the other office--in this case, Research and
Development.
Ms. Maloney. Mr. Sales was his immediate supervisor,
correct?
Mr. Reeder. Correct. I have to tell you, I really
believed--I understand now maybe this did not happen, I do not
know--that if there were serious concerns about Dr. Jutro's
behavior, those were people that would know. This was the
person in charge of HR.
Ms. Maloney. I think supervisors, people who are close--
hindsight is 20/20 but knowing what you know now, do you
believe it would have been good judgment and appropriate to
check with his supervisor?
Mr. Reeder. Knowing what I know now, I think I would have
called the same people and I would have been explicit in
whether they had checked with the supervisor of the individual.
I would have been explicit.
Ms. Maloney. You would not have called the supervisor?
Mr. Reeder. I may or may not. If I had the belief that
something needed further investigation, I certainly would, but
in the course of the normal vetting, I would be explicit that
they check with the supervisor.
Ms. Maloney. So you regret your actions now?
Mr. Reeder. I do not know what the supervisor would have
said, Congresswoman. I certainly wish we had had that
information at the start.
Mr. Meadows. I thank the gentlewoman.
Mr. Reeder, I find it just mind boggling that you cannot
even say that in retrospect, you made a mistake. It is very
ironic where an agency is charged with making sure that we have
a clean environment but yet has a work environment that is
polluted. It is just beyond comprehension.
Ms. Maloney makes a good point. Even in retrospect, you
cannot even say that you made a mistake?
Mr. Reeder. Mr. Chairman, I honestly believe I did the best
I could with the information I had. I do wish I had spoken to
the--yes, I do.
Mr. Meadows. Mr. Reeder, I would suggest that you are
probably the only person that believed you did as much as you
should have done.
With that, I will recognize the gentleman from Alabama, Mr.
Palmer.
Mr. Palmer. Thank you, Mr. Chairman, and I thank the
witnesses.
I have been sitting here listening to the testimony.
Frankly, I am absolutely astonished that either of you still
have a job. It is absolutely unbelievable. Not only have you
allowed a culture of sexual abuse to exist in your agency, you
sit here and deny that you allowed it.
There was a report from Senator Jeff Flake last year that
pointed out there were eight people on administrative leave at
the EPA apparently because they were involved in cases of
alleged serious misconduct and they were paid $1,096,000. One
person was on leave for 3 years.
Were any of those people involved in sexual misconduct, yes
or no? Mr. Meiburg, Mr. Reeder, either one of you, yes or no?
Mr. Meiburg. Congressman, let me speak to----
Mr. Palmer. It is a yes or no.
Mr. Meiburg. The question that you asked was about a
cultural of sexual harassment which I do not agree with.
Mr. Palmer. That was not the question, sir. That was an
affirmative statement. The EPA tries to regulate everything
from greenhouse gases to ditch water to cattle flatulence but
if someone makes the slightest mistake in their business or
farm or their duties as a municipal officer, they are
immediately descended upon by the EPA.
They are subject to heavy handed action. There have even
been cases where the EPA has showed up with weapons drawn. Last
year, you backed off trying to garnish wages, you have taken
personal property and people faced massive fines that have cost
them their businesses, their farms, their careers and their
savings.
Yet, you have employees who have been sexually abusive of
women and others engaging in activities that are sexually
abusive of children and no one, no one was fired. They were put
on administrative leave, paid administrative leave.
The EPA, in some cases, has cost private citizens millions
of dollars, virtually destroying their reputations, their lives
and at the same time, you have protected sexual perverts, even
rewarded them with promotions and pay increases.
Mr. Meiburg, Mr. Reeder, the EPA is not only mismanaged, it
is misguided and in these cases, apparently morally corrupt.
How can you sit there and defend these actions?
Mr. Meiburg. Congressman, with respect, there are several
elements to your question, some of which go far beyond the
scope of this hearing.
Mr. Palmer. I have not asked a question. I made an
observation. My question is, how can you defend these actions?
You have not given a definitive defense of any of this. The
gentleman from South Carolina, the gentlelady from New York--
you have yet to give a definitive defense of your actions.
Mr. Meiburg. Congressman, again, let me sort through a
couple of different aspects of this.
One is we are very clear at EPA that sexual harassment and
viewing porn is not a part of EPA.
Mr. Palmer. Why would you go after honest people who are
trying to run a business, trying to raise a family or run a
farm who make a mistake and come down on them, in some cases
with fines of $32,500 per day, when you have activities like
this going on within your agency and you cannot act on that as
definitively and as decisively as you do people who are trying
to run a business or run a farm?
Mr. Meiburg. Congressman, with respect, that is not an
either/or question. We, in fact, do many actions and anyone who
is subject to an enforcement action by EPA is entitled to due
process under the law.
Mr. Palmer. I would not have any problem at all with due
process for people who were actually charged with something.
You impeded the investigation of the Inspector General and you
withheld documents. In my opinion, you obstructed justice. I do
not see how you can defend it.
Mr. Chairman, I yield the balance of my time.
Mr. Meadows. I thank the gentleman from Alabama.
The Chair recognizes the gentlewoman from Michigan, Ms.
Lawrence.
Ms. Lawrence. Good morning.
I have some questions for the witnesses who are here today.
You have been members of the Federal Government for a
while, so my question to Mr. Sullivan, have you ever received
EEO training as a manager?
Mr. Sullivan. Yes, ma'am.
Ms. Lawrence. How often do you receive it?
Mr. Sullivan. Yearly.
Ms. Lawrence. I want to ask Mr. Meiburg, have you received
EEO training as a manager and how often do you receive it?
Mr. Meiburg. Yes, indeed, I have, annually as well.
Ms. Lawrence. Mr. Reeder, the same question to you. Can you
tell me how many years you have had in the Federal Government
and have you received the training?
Mr. Reeder. Yes, I have 30 years combined, military and
Federal service and I have received the training.
Ms. Lawrence. In this training, is it stressed upon you
that your obligation is to address any complaint of alleged
sexual harassment or a hostile work environment?
Mr. Reeder. I think I can answer that. The policy calls--
actually, it advises employees to tell their supervisor and the
supervisor is obligated to take action which could be informal
or formal, depending on the seriousness of the complaint.
Ms. Lawrence. In your training that you receive, do you
feel that the allegations and the proper action that should
have been taken was processed the way you have been trained?
Mr. Reeder. I honestly do not know of the cases prior to
the time that Dr. Jutro was in my office.
Ms. Lawrence. No, I am talking about where you were
directly involved?
Mr. Reeder. Yes.
Ms. Lawrence. You felt you met the training and the
obligation that you had as a manager?
Mr. Reeder. Yes, ma'am.
Ms. Lawrence. I Stated before that I was an EEO
investigator, so I clearly feel--not feel, I clearly see a
disconnect from the training, the responsibility you have as a
manager and what happened to an employee.
When you have 17 women--17--who are giving you the reports
that their work environment is one that has been compromised
because of sexual harassment, as a manager--as a manager--part
of your responsibility is to manage your supervisors. You
cannot divorce yourself from what happened.
Mr. Reeder. Absolutely.
Ms. Lawrence. It is challenging for me to sit here and know
that women who come to work to earn a living, to take care of
their families, women or men in our Federal Government who are
the gatekeepers, the EEOC, the Federal agencies, to take care
of the work environment, you failed these 17 women over the
course of the years and you cannot divorce yourself from it
because it was a supervisor.
I do have a question for you. How would you change the
environment that we have seen here? You have been trained. You
have been a manager for 30-plus years. This goes to Mr.
Sullivan as well.
Mr. Reeder. I would be pleased to answer that.
When we have allegations that are filed with the Office of
Civil Rights, those are tracked and we have pretty good data if
it is an EEO-related type of harassment. In fact, last year, we
had one filed case of sexual harassment with our Office of
Civil Rights. In the preceding year, we had two.
That is very low in number but nonetheless, those three
cases were filed with the Office of Civil Rights. There were
other cases that were----
Ms. Lawrence. You do know if there is an environment where
you feel you are not going to be heard and there are
consequences, filing of the formal complaints does not negate
your responsibility for a work environment, you know that?
Mr. Reeder. I am getting there. I think what might be
helpful for us is to have a better system of knowing what other
cases that are not going to the Office of Civil Rights, how
they are being handled and how many there are.
Right now, the way it is handled, they are not all
necessarily centrally identified. Individual managers may have
dealt with a case informally and may have counseled the person.
Once the harassing behavior stops, that is usually the remedy
the victim wants. They want the behavior to stop. Once it
stops, that sort of is the end of that record. We do not have a
really good sense of how often it is happening across the
agency.
Ms. Lawrence. Mr. Sullivan, what are we doing to ensure
that people come to work and they are not in this environment
where it seems to be kind of well, if they stop, it is OK, we
have achieved the goal, they did not file a formal complaint?
What is your response to that?
Mr. Meadows. Mr. Sullivan, the gentlewoman's time has
expired but you can answer the question.
Ms. Lawrence. Thank you.
Mr. Sullivan. Thank you, Mr. Chairman.
Ms. Lawrence, we, in the Inspector General's Office, do not
normally investigate EEO violations. There is a certain process
within most agencies and the IGs do not normally----
Ms. Lawrence. But you have the responsibility.
Mr. Sullivan. Yes, ma'am. I will answer that.
In this case, we did a very thorough and professional
investigation. Some of the victims, quite frankly, told us they
were afraid to report----
Ms. Lawrence. Absolutely, it happens every day because you
do not have managers who take it seriously and respond.
Mr. Sullivan. That is correct. There were some of the
victims that were afraid to report it and when they were
interviewed by my special agents, they opened up and told us
exactly what happened. There were other victims that felt that
Mr. Jutro was not held accountable at all for his actions.
Mr. Meadows. You can followup in writing.
The Chair will recognize the gentleman from Tennessee, Mr.
Duncan.
Mr. Duncan. Mr. Chairman, thank you very much.
I will say to Chairman Chaffetz, I appreciate his calling
this hearing and staying on top of these matters.
I am in my 27th year in Congress. In that time, I have
served on four different Committees. I have been in so many
hearings about horrendous waste by Federal departments and
stupid decisions by Federal departments and agencies. I have
heard about these on the floor of the House from every
Committee.
I have read about these dumb decisions and horrendous waste
in all kinds of articles but this Committee is the main
investigatory Committee of the Congress. In the time I have
served on it, we have investigated I guess almost every
department and agency at some point or another.
We realize when we sit here, that we just see the tip of
the iceberg because we are not in these departments or agencies
full time, so we are not seeing all the misconduct or all the
waste that is going on. We are seeing a tiny, little portion of
it.
I have to tell you, Mr. Meiburg and Mr. Reeder, what I have
heard over these last few months about the EPA is absolutely
the worse I have heard of any department or agency in the
entire Federal Government.
A few months ago, we were here and heard about Mr. Beale or
Dr. Beale who pretended to be a secret agent for a number of
years and drew I think almost $2 million in salary at the time
he was doing no work, taking vacations around the world,
spending most of his time at home doing nothing.
Now we hear about EPA employees who are spending hours of
their work day looking at pornography. Then we hear about
another high ranking EPA employee who has 17 women charging him
with sexual harassment. It just goes on and on.
It seems to me the people who are running the EPA--both of
you gentlemen are very high level EPA employees--people who are
running the EPA should be ashamed. You should be embarrassed.
It appears that the EPA has too many employees who are not
doing anything. The ones who are doing work seem to be running
amuck going almost power mad. It has just gotten ridiculous.
I am concerned about another thing. District Judge Lamberth
made a ruling not long ago. He said in the case of Landmark
Legal Foundation v. EPA, the EPA did not comply with FOIA
requests, they were extremely negligent in processing the
requests and apparently were delaying things to help the
Presidential election in 2012.
We have another instance of the NFIB, the National
Federation of Independent Businesses, sending a FOIA request to
the EPA in May and not receiving an answer until December 30.
The abuse just goes on and on and on. These people are
allowed to keep these high paying jobs--very high paying jobs,
way above what average Americans are making--for months or even
years after they have been discovered doing some of these
terrible, even sometimes criminal activities.
It just is a shameful, embarrassing and pitiful record.
Everybody connected with EPA should be ashamed and embarrassed
about this because, as I say, we are just getting the tip of
the iceberg.
Mr. Elkins, was this man--Mr. Jutro or Dr. Jutro--allowed
to move his retirement date up so he would not be accessible to
your people? Is that correct?
Mr. Elkins. The facts suggest, sir, he did not want to talk
to us and he used the vehicle of retirement to defect that
outcome.
Mr. Duncan. Do you think EPA has been moving fast enough on
these administrative procedures? It looks to me like they have
been dragging their feet. As I think Mr. Lynch said a few
moments ago, they are trying to protect these employees I guess
because some of them were friends.
Mr. Elkins. I am sorry, I cannot speak to the motives of
the EPA management.
Mr. Duncan. I understand.
Mr. Elkins. On the other hand, we have done everything we
can do on our end to make sure that we follow the facts and
bring the facts to the EPA as soon as possible so they can act.
Mr. Duncan. I want to say this. We certainly appreciate the
work of your office because a lot of these terrible activities
would not be here in front of us if it was not for your staff
and your office. I just want to say I appreciate that.
I hope we greatly decrease the funding of the EPA and
greatly decrease the number of employees so that the people
over there will not have all that time on their hands. Maybe
they will do some good things for the country instead of doing
so many ridiculous, shameful, wasteful things.
Thank you very much, Mr. Chairman.
Mr. Meadows. I thank the gentleman from Tennessee.
The Chair recognizes the Chairman of the full Committee,
the Honorable Mr. Chaffetz from Utah.
Chairman Chaffetz. Thank you. I do appreciate it.
Mr. Meiburg, viewing pornography at work, is that allowable
or not allowable?
Mr. Meiburg. That is not allowable by very explicit EPA
policy.
Chairman Chaffetz. What is the penalty for viewing
pornography at work?
Mr. Meiburg. The penalty will depend on exactly what
happens.
Chairman Chaffetz. What is the range?
Mr. Meiburg. The range is from a warning to dismissal.
Chairman Chaffetz. You say in your testimony at page two,
``All the EPA employees who work so hard especially deserve
that we deal with the misconduct or poor performance swiftly
and with integrity and professionalism.'' Do you think you have
lived up to that standard?
Mr. Meiburg. I think that we are moving swiftly when we get
information. I think there is room for improvement--we
discussed that already this morning--in the communication
between ourselves, the U.S. Attorney's Office and the Inspector
General.
Chairman Chaffetz. I appreciate that but the cases we
talked to you about, which were some of the most egregious we
have ever seen in Federal Government, there is no evidence that
you have moved swiftly. I do not see any evidence of that.
Let us go back to Mr. Manning for a second. Why didn't you
swiftly and immediately--you put him on paid administrative
leave?
Mr. Meiburg. No, sir, I believe Mr. Manning is the case in
Region V where he had child pornography and he was immediately
taken on unpaid leave because there was reasonable cause to
believe that he had committed a crime for which a sentence of
imprisonment could be imposed.
Chairman Chaffetz. My understanding is he was put on paid
leave and then transitioned to unpaid leave. Mr. Sullivan?
Mr. Sullivan. Yes, Mr. Chairman. He was initially put on
paid leave for about 3 weeks. Then the agency transitioned that
to unpaid status.
Chairman Chaffetz. Let me ask you, Mr. Elkins, last night
my understanding is that the EPA Administrator sent out an
email rescinding the MOU with the FBI. Explain that to us. What
is it that you are not getting that you believe you should be
getting?
Mr. Elkins. Thank you for that question. Yes, I did receive
just around 5:30 p.m. last night an email from the
Administrator that Stated that she had decided to rescind the
MOU.
What that really does is murky up the waters. We have never
said that the OIG did not want an understanding or an agreement
with the agency and the FBI so that we all understand what our
roles are.
You have to understand, sir, that we are in an environment
where we have agents who are armed who may find themselves in
situations if they do not know what they are doing, you can
have a blue on blue sort of situation that is a very dangerous
situation.
What the Administrator's memo basically has done is that
now we really do not have any guidelines. What we have is OHS
now will make the determination and work with the FBI on any
intelligence matters that come in.
It seems that whether or not they are criminal or
misconduct, we do not know and the OIG is then dependent on the
OHS informing us as to what is going on.
I have been having this discussion for 5 years. That has
been the practice. It has never worked, even with the MOU. Now,
since the MOU has gone away, what gives me any assurance that
things are going to be any different? We are back to square one
again in a murky situation.
That is the problem we have. The OHS has investigators.
That office is growing. They even have more investigators now
with guns and badges. The situation is actually getting worse
rather than better.
Chairman Chaffetz. How should it be? In your opinion--you
have been around the block for a long time--how should it be?
Mr. Elkins. What should happen is a clear acknowledgement
of the OIG's primary role in serving as the investigative arm
of the agency where employee misconduct is involved.
Irrespective of whether it is an intelligence issue or whatever
the matter is, the OIG should be the point of contact.
That message needs to come clearly from the Administrator
so that everybody understands what their roles are. That has
not happened.
Chairman Chaffetz. Mr. Meiburg, what is unreasonable about
that?
Mr. Meiburg. Mr. Chairman, a couple of things. One is I
have to admit I am a little puzzled about the rescinding of the
MOU because it was my understanding--I will have to work with
the OIG on this as we move forward--that the MOU itself was an
objectionable thing and that the rescinding of the MOU was
something that was desired. I think the Administrator's intent
was to take that issue off the table.
The Inspector General's Office has its jobs and the OHS has
its jobs. We fully agree with the Inspector General that the
Inspector General needs unfettered access in the conduct of its
lawful duties. The Administrator has Stated repeatedly that is
what she expects of every EPA employee.
Chairman Chaffetz. Do you have unfettered access?
Mr. Elkins. No, sir, we do not have unfettered access.
Chairman Chaffetz. Mr. Meiburg, why doesn't he have
unfettered access? You just said he should.
Mr. Meiburg. I admit to being puzzled because from where I
sit at least, he does.
Chairman Chaffetz. Mr. Elkins, what do you not have
unfettered access to?
Mr. Elkins. As I previously Stated, sir, in terms of
investigations, we conduct the investigations. We have the
ultimate authority to conduct those.
Chairman Chaffetz. Mr. Meiburg, do you disagree with that?
Mr. Meiburg. Mr. Elkins, I believe, is referring to
investigations of personnel matters which we believe he has the
ability and right to do and that we encourage employees to
cooperate when he conducts those investigations.
Chairman Chaffetz. When you initiate those, do you inform
the Inspector General?
Mr. Meiburg. We generally ask the Inspector General.
Chairman Chaffetz. Generally? How about all the time?
Mr. Meiburg. Pretty much all the time.
Chairman Chaffetz. Pretty much all the time? Why not all
the time? What are the exceptions?
Mr. Meiburg. When you have a matter that is serious--I will
use the Jutro case.
Chairman Chaffetz. No, no, we just said all or nothing,
right? Is it all or nothing?
Mr. Meiburg. When we have a matter that involves conduct
that requires investigation, we ask the Inspector General to
come in and do an investigation. I will also say from the
standpoint of my career, there have been many, very productive
investigations the Inspector General has done that have been
helpful to conduct and discipline in the agency.
Chairman Chaffetz. Mr. Elkins?
Mr. Elkins. The question that needs to be asked is when do
they provide that information to us? We are finding that the
agency may have the information and sit on it for a while.
Eventually, yes, it may get to us.
Also, Mr. Meiburg, I want to be clear that we are parsing
things out here. Mr. Meiburg, with all due respect, indicated
on personnel matters, they do refer matters to the OIG. It goes
much further than that. Matters, not only personnel, criminal
matters, any matter that has a nexus to employee misconduct
should initially, as soon as it comes in the house, they should
pick up the phone and give us a call. That is not happening.
Chairman Chaffetz. Mr. Meiburg?
Mr. Meiburg. Again, I believe the agency has been very
clear that the Inspector General, in carrying out their lawful
duties, has unfettered access to the work of the agency.
Chairman Chaffetz. If they have unfettered access but they
do not know what they do not know. For the process to work
properly requires you, the EPA, to inform the Inspector General
that there may be an issue. That means all of the issues, not
just some of them, not pretty much, not any other disqualifier.
I think what we are looking for is the Administrator to
clearly articulate that throughout in some sort of letter, memo
or letter to Congress without getting somebody else involved.
That is where they are bumping into other people. That is what
I think is causing all the rub.
Mr. Meiburg. Thank you, Mr. Chairman. I appreciate that. I
will be glad to supply for the record the Statement the
Administrator issued within the last 6 months over the fact
that employees have the duty to cooperate with the Inspector
General.
Chairman Chaffetz. Let us keep following up on that.
I need to ask a couple of others and the indulgence of the
rest of the Committee. I appreciate it.
Mr. Reeder, I have a question about the personnel records.
Part of the challenge that we have in the specific case that
Mr. Gowdy and others have brought up is that you did not go
back and interview the immediate supervisor.
For someone under consideration for a promotion, it seems
like the very first thing you would do is go talk to the
immediate supervisor who is telling the Inspector General. That
did not happen.
The question I have is, isn't there some sort of electronic
record that you, as a manager, looking to promote someone,
could go look and see, doesn't it show up in some sort of
personnel record to show that this person has had, at this
point, more than a dozen women complain of sexual harassment to
one degree or another?
Mr. Reeder. Mr. Chairman, thank you, Mr. Chairman, over
there as well, I do not mean to offer this in defense of myself
or any other actions but just for clarification for the
Committee, this was a temporary assignment for Dr. Jutro. It
was not a promotion. It was not what we would consider a
promotion.
Chairman Chaffetz. Did he make more money?
Mr. Reeder. No, sir.
Chairman Chaffetz. Did his title change?
Mr. Reeder. His title changed but his position of record
remained in the Office of Research and Development. He was on a
detail which was a temporary assignment.
Again, I do not mean that in defense in any way but it is
important to get the facts straight. I know you are interested
in that. It did not involve a promotion in the sense that the
government considers promotions, so there was no formal
vetting.
Chairman Chaffetz. We are talking about 17 women who were
harassed and there does not seem to be a flashing red light
that goes off in someone's office saying we have a problem down
here. Why does it take 17 women? Why didn't it happen after the
first incidence?
Mr. Reeder. Sir, in answer to your question, I think I kind
of got to that earlier with Congresswoman Lawrence's question
that I think it might be beneficial to have a better record of
what actions are being taken by management that are not
centrally investigated or adjudicated.
Chairman Chaffetz. What are you going to do about it?
Mr. Reeder. I have to say the vast majority of these cases
often do not rise to the level of a serious charge of
harassment but they are matters we have to take seriously. I
have invested as much as any senior executive at EPA----
Chairman Chaffetz. What has to happen to a woman to be
serious?
Mr. Reeder. If it is unwanted and it is persistent.
Chairman Chaffetz. Persistent? If it only happens once, it
is OK?
Mr. Reeder. It does not rise to the legal definition.
Chairman Chaffetz. If it happens once, if it is not
persistent in your mind, then it is not harassment?
Mr. Reeder. Mr. Chairman, I am not defending harassment.
Chairman Chaffetz. You said it had to be persistent. You
qualified it with persistent. I am challenging that. Why does
it have to be persistent?
Mr. Reeder. That is what I have learned in the training
from EEOC, it has to be in a manner that creates this hostile
work environment for an employee.
Chairman Chaffetz. If it happens once----
Mr. Reeder. That is very serious.
Chairman Chaffetz. If it happens once, is it unacceptable?
Mr. Reeder. It is unacceptable.
Chairman Chaffetz. In your mind, does it rise to the level?
You said it has to be persistent.
Mr. Reeder. It rises to a level that a manager needs to do
something about it, yes, it does. Does it meet the test for
dismissal or formal disciplinary action, that is all very case
specific, but I have to say it is unacceptable at any level.
Our managers are obligated to take action, sir.
Chairman Chaffetz. I appreciate the indulgence here. Your
written policy says sexual harassment, written reprimand to
removal. It is obviously not working and it needs
clarification.
With indulgence, I have one more question.
I was asking if there was a penalty for watching porn and
you said, it depends on what happened. How many different ways
are there to watch porn? Where is the threshold where it
depends?
Mr. Meiburg. Mr. Chairman, any amount of watching porn is
unacceptable. When you are considering you have identified
there was porn, you look at all the factors. You look at the
so-called Douglas factors in considering what penalty would be
imposed.
They include the magnitude and extent of the offense, the
employee's prior discipline and conduct record and the other
ten factors that go along with the Douglas factors. That is
what the table is intended to represent.
Clearly, the cases we are looking at here were very severe
cases and those exacerbating circumstances have been taken into
account in the action the agency has proposed to take.
Chairman Chaffetz. They still were not immediately fired.
They still were on unpaid leave.
Here are two things I would like you to do. One is specific
to pornography. I want to see the written policy and I want to
see whatever notification you have put out over the last
several years. Maybe there are twenty, maybe there are none. I
do not know. Provide those to us and our Committee. Second is
the definition of the sexual harassment and why the wide range.
Is it a definition of persistent, not persistent? We are trying
to help solve this.
That is the spirit in which we do this. We would appreciate
your help. We thank you gentlemen.
I yield back.
Mr. Meadows. I thank the Chairman.
Mr. Meiburg, let me followup on one question of his because
you talked about viewing pornography. As you know, we have a
bill that would prohibit that on Federal assets and computers.
My question to you is very simple. How many hours of
pornography watching is an offense?
Mr. Meiburg. Any pornography watching on government time,
on government equipment.
Mr. Meadows. How many of your employees would you say have
this problem?
Mr. Meiburg. Boy, I sure hope not many.
Mr. Meadows. What do you mean hope? Do you mean you have
not checked?
Mr. Meiburg. No, I have not personally supervised----
Mr. Meadows. Has anybody?
Mr. Meiburg. Yes, their supervisors.
Mr. Meadows. Can you give us the names of the people who
have actually checked all the EPA employees for this? Is that
your testimony? I cannot believe that would be accurate.
Mr. Meiburg. No, no, that is not my testimony.
Mr. Meadows. What is your testimony?
Mr. Meiburg. My testimony is that I do not believe that EPA
has a widespread culture of employees viewing pornography.
Mr. Meadows. How would you know?
Mr. Meiburg. I would know because those issues would have
been identified and reported to a greater degree than they have
been.
Mr. Meadows. Seventeen counts of sexual harassment were
reported to all kinds of people and we did not deal with it. Do
you have 17 different violations of this particular thing
before it gets raised to a point where somebody retires?
Mr. Meiburg. I want to make sure we are clear about
separating the pornography and the Peter Jutro case which was
one individual.
Mr. Meadows. I see them as connected but you go ahead. You
can separate them. If you want to justify pornography watching
at the EPA, you go right ahead.
Mr. Meiburg. Let my testimony be exceptionally clear, I do
not want to justify any pornography watching at the EPA.
Mr. Meadows. My question still stands. How much is too
much?
Mr. Meiburg. Any is too much.
Mr. Meadows. How do you know what is being done at your
agency, Mr. Meiburg? Have you instructed anybody to check into
it?
Mr. Meiburg. We have asked all of our supervisors to be
aware that this is a top----
Mr. Meadows. Have you personally instructed--can you send
us an email or a memo that was sent out that says we have zero
tolerance--what you are saying today? Have you sent that out.
The second part of that question is, have you put blocks on
those government computers?
Mr. Meiburg. Congressman, we have identified ways to put
blocks against known porn sites. We have two issues that, in
all candor, I have to describe.
One is that the Internet moves faster than we do. It moves
faster in identifying sites. I cannot testify----
Mr. Meadows. You are saying it is a technology issue? Mr.
Meiburg, come on. You are saying there is not the technology to
block that on Federal computers?
Mr. Meiburg. There is the technology to block sites that we
know about. Sites come up faster than we can keep up with. That
is life on the Internet.
Mr. Meadows. You have blocks on everybody's computer that
as of today, we could check everyone's computer and there would
be a block on there for current technology, is that your
testimony?
Mr. Meiburg. My testimony is, to the best of my knowledge,
we have blocks on accessing known porn sites. I want to
elaborate.
Mr. Meadows. It is amazing to me that they can watch it for
several hours and continue to get a bonus. How does the guy get
a bonus?
Mr. Meiburg. I wish I could answer that question. I do not
know.
Mr. Meadows. Are you in charge of that?
Mr. Meiburg. I have not been in charge of that.
Mr. Meadows. Is Mr. Reeder in charge of that? How do you
justify a guy watching porn 6 hours a day and he is still an
outstanding employee and gets a bonus? Explain that to the
American people.
Mr. Meiburg. There is no explanation for that.
Mr. Meadows. Why does it happen?
Mr. Meiburg. Because there was a failure in the system.
Mr. Meadows. How many failures did you have, Mr. Meiburg?
Mr. Meiburg. If I knew how many failures I had, then I
would be in a better position to give an answer.
Mr. Meadows. You prepared for this particular hearing. I
assume you coming to this hearing was not a surprise?
Mr. Meiburg. No, it was not.
Mr. Meadows. When you did your research, how many problems
did you have?
Mr. Meiburg. I have not got a list of how many problems nor
can I admit the problems I do not know.
Mr. Meadows. Therein is the problem. If the problems are
there that you do not know and you are not looking, who has the
responsibility for looking in your agency, Mr. Meiburg, you?
Mr. Meiburg. The first line supervisors of employees are
the ones who are responsible for supervising employee conduct.
That, in fact, is the point of why we need to make sure our
supervisors are well equipped----
Mr. Meadows. You are saying this is all a first line
supervisor problem?
Mr. Meiburg. No, sir, I am not. I think first line
supervisors need support from the senior leadership of the
agency so that when they find examples of misconduct----
Mr. Meadows. I could not agree more and therein is the
problem, Mr. Meiburg. I do not think it is first line
supervisors that see the problem. I think it is a cultural
problem that goes up to the level of Mr. Reeder here.
When you have agencies, senior levels that are willing to
turn a blind eye to the kind of horrific stuff that we have
heard today, it is very troubling, wouldn't you agree, Mr.
Meiburg?
Mr. Meiburg. I completely agree that we need to create a
culture in EPA that makes it clear that watching pornography on
the job is unacceptable and that we need to support actions to
make sure people who do that are properly sanctioned.
Mr. Meadows. Let me ask you this. We get whistleblowers. I
have gotten people on [email protected] that give me all
kinds of insight. I am finding more information about your
agency than you are, Mr. Meiburg. Wouldn't you say that is a
problem?
Mr. Meiburg. That sounds like a serious problem.
Mr. Meadows. I am and what happens is there is a culture
where they do not feel comfortable talking to you. They do not
feel comfortable talking to the Inspector General; why would
they not feel comfortable talking to you or Mr. Reeder? What
possible reason would there be for that?
Mr. Meiburg. That, I do not know.
Mr. Meadows. I can give you an answer. If you cannot come
up with one, I can probably give you an answer.
Mr. Meiburg. Let me State what my own view is. I do think
we need to create a culture in EPA and support it at the
highest levels--the Administrator shares this view--that people
ought to feel comfortable in bringing things forward if they
are concerned.
Mr. Meadows. Here is the commitment that I think is a
bipartisan commitment here, Mr. Meiburg. This will stop. Do you
know why, because it actually creates a very bad picture for
the hundreds of thousands of good workers.
Every time you give a bonus to someone who has violated it
and you go oops, I made a mistake, there are three or four
other people saying why did that person get a bonus when I am
working very hard and I am doing the very best job I can, yet
they get rewarded. Don't you think there is a problem there,
Mr. Meiburg?
Mr. Meiburg. Congressman, I completely agree with you. The
biggest obligation, even apart from the individual actions or
other kinds of behavior, is the impact on other employees
because you are quite right, employees at EPA do not deserve to
be tainted by the actions of a few bad individuals.
Mr. Meadows. How many people have you fired because of
that, you personally?
Mr. Meiburg. When you say that, could you clarify?
Mr. Meadows. Looking at pornography or sexual harassment,
how many people have you personally fired, Mr. Meiburg? I can
give you the answer. I know it, but go ahead.
Mr. Meiburg. This will be interesting. To the best of my
knowledge, in my previous role----
Mr. Meadows. I am talking about your new role since you
have come back. How many people have you fired?
Mr. Meiburg. In the last 6 months?
Mr. Meadows. Yes.
Mr. Meiburg. No, none, zero.
Mr. Meadows. Is there a problem today at the EPA?
Mr. Meiburg. I believe that we are very clear at EPA about
our policy with respect to pornography or sexual harassment and
that we will be carrying out that policy.
Mr. Meadows. I believe you have a policy but I believe you
are not enforcing it because Mr. Reeder, in his talking about
the policy, he talked about the fact that it is up to the first
line supervisor to report that. Wasn't that your testimony?
Mr. Reeder. I testified that our policy requires managers
to take action if this is brought to them.
Mr. Meadows. When you were talking to Ms. Lawrence, I
listened very intently. You said it is important that they
mention it to their supervisor and the supervisor is to take
action. That was the policy. Is that your testimony?
Mr. Reeder. That is correct, sir.
Mr. Meadows. If that is the policy, why would you not have
checked with a supervisor in the case of Dr. Jutro?
Mr. Reeder. I did check with his chain of command.
Mr. Meadows. You did not check with his supervisor?
Mr. Reeder. I did not check with his direct supervisor.
Mr. Meadows. The policy says, go to the supervisor, so the
supervisor is the only one that would really know under your
policy and yet, you did not go to him, did you?
Mr. Reeder. I assumed that the senior folks in that office
would have been informed of any serious misconduct. I did. As I
mentioned earlier, I would be more explicit in that check were
I to do that again.
Congressman, you had asked about the culture at EPA. There
is some data that addresses that. I have to agree with Deputy
Meiburg that EPA does have a healthy work environment, I
believe.
Mr. Meadows. Mr. Reeder, let me just tell you. We are
checking into facts here. Your opinion on a healthy environment
and the reality of the facts do not line up.
Mr. Reeder. The fact is that EPA employees were surveyed.
Mr. Meadows. I have gone way over my time. The Ranking
Member has been very gracious.
I am going to recognize the gentleman from Wisconsin, Mr.
Grothman.
Mr. Grothman. Thank you. I am going to followup on that
just a little bit.
Just so you know, in my area--we are supposed to be here
looking for jobs and improving the economy--there is no Federal
agency that is perceived to lack commonsense more and doing
more to endanger the American economy than the EPA.
People, when I talk to them, always kind of wonder what
these people are doing in Washington, that they are so far
removed from reality when they come up with new regulations and
this sort of thing to penalize or hamstring American business.
This is not exactly the type of hearing I thought I was
signing up for when I ran for this job. I thought I was going
to be talking to the EPA about what are your people doing when
they come up with these ridiculous ozone rules. Now we kind of
know at least what some of them are doing.
Is it really true what these people are saying that some of
these people were spending two to 6 hours a day watching porn?
Is that accurate, the testimony we are getting here?
Mr. Meiburg. It is accurate that we had three cases, one of
which was a criminal case, and then two other cases that were
identified in the last couple of years that those two employees
were watching unbelievable, completely offensive and
unacceptable amounts of pornography. That is two people out of
a very large agency. That is not to be defensive about that at
all, but just as Stated.
Mr. Grothman. Do you think because that is what they were
doing, first of all, that more people were doing it?
Second, if in their job, they had the time to dilly dally
around and spend two to 6 hours watching porn, maybe other
employees are spending two to 6 hours doing maybe not things
that would be as interesting to the home viewing audience but
doing whatever else people do when they are not working?
Mr. Meiburg. Congressman, I believe, from my experience
with EPA, that is a very, very small number and that the vast,
vast majority--I think the Inspector General would agree with
me--of EPA employees are dedicated and hardworking and doing
the things to protect the environment for the people of this
country that have produced a much cleaner environment over the
last 45 years.
Mr. Grothman. In the future, if you catch someone watching
porn on their computer, how often do you have to have that
screen up before you think they are terminated?
Mr. Meiburg. It is clear the two cases involved, the
proposing official felt that was more than enough information
to require them to be terminated. I do not know that there is a
specific line because we have to consider due process and the
Douglas factors in doing conduct and discipline cases.
Clearly, what these two employees did--not to prejudge the
last action which is still in administrative process--but it
was way out there.
Mr. Grothman. Like a lot of people, we had other meetings
going on in the building, so maybe I did not catch it. You are
saying the Douglas factors. You think an hour a day, a half
hour a day, 15 minutes a day, 5 minutes a day, what are you
saying rises to the level where you feel maybe this person
should find another line of work?
Mr. Meiburg. Again, to be clear, any amount of watching
pornography on EPA computers on EPA time is unacceptable. The
question then becomes, what level of sanction would you impose
as a result of that?
Mr. Grothman. That is exactly right. If we find somebody
has been watching porn for an hour a week, a half hour a week,
15 minutes a week, at what point do you think they should no
longer be working for the EPA, if you just had to give us a
wild guess?
Mr. Meiburg. I am hesitant to do that about any specific
case but some of the kind of upper numbers you mentioned would
cause grave questions for me if I were their supervisor, why
that person should be working for EPA.
Mr. Grothman. How about the lower numbers I mentioned? How
about a half hour? Do you think a half hour is out of line?
Mr. Meiburg. There would be consequences and discipline
associated with that. I do not want to make it sound like I am
splitting hairs or being overly complicated, but each one of
these cases has to be considered individually.
Mr. Grothman. I think what I am going to do for you, just
because this is not an area that I am an expert in, the next
time I go back to my district and tour my local manufacturers
being threatened with their existence and throwing all their
employees out because of what the EPA is doing, I will ask them
how many hours or half hours a week or 15 minute slots a week
of porn they allow their employees to watch before they
terminate them so you kind of know what the average company out
there feels is a good policy.
I will get back to you on that and then you will have some
direction. Is that OK? I appreciate you spending the time
today.
Mr. Meiburg. Thank you, Congressman.
Mr. Meadows. I thank the gentleman.
The Chair recognizes the Ranking Member of the full
Committee, the gentleman from Maryland, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
Gentlemen, your day with us has just about ended but I have
to tell you, if I were watching this, Mr. Meiburg, just
watching C-SPAN, I would be disgusted.
We are better than this. We are so, so, so much better.
Just think of the idea that the sexual harassment issues. Are
you married, Mr. Meiburg?
Mr. Meiburg. Yes, sir, Ranking Member.
Mr. Cummings. The idea that your wife would come to work,
after doing all the things she has to do to get ready in the
morning and take care of her family, then she has to come and
be harassed. Then it seems as if the powers that be do not
address those issues when they find out about them. Man, you
would go crazy.
I was just thinking about what a negative impact all of
this has on the morale. Mr. Chairman, you talked about it a
minute ago. The idea that you have these folks who stay in the
employment of our EPA, after having done these things, I just
cannot get past what you told me a little earlier about how you
guys are waiting for the U.S. Attorney and come to find out,
you already had permission to move forward in one of the
pornography cases.
Something is missing and we are better than this. We are so
much better. If you cannot do the job, you need to let somebody
else get in there and do it because a lot of people are
depending on government functioning properly.
They just want to come to work, do their job, give them
their blood, sweat and tears and then go home, but then their
morale gets destroyed when they see people coming back to work,
they will get a little tap on the hand, come on back, welcome,
watch some more porn. Give me a break, this is crazy. We are
better than this, do you agree?
Mr. Meiburg. Congressman, I absolutely do. The point you
made is that the people who most deserve that we take action on
cases of folks who are engaged in terrible conduct, the ones
who most deserve it are the employees of EPA. I want to make
sure I am clear on a couple of points.
Mr. Cummings. Be clear because I have to tell you, man, I
am a bit concerned here. I do not feel the sense of urgency.
That is right, I said I do not feel a sense of urgency. I do
not feel the sense of significance.
The only reason I mentioned your wife is because sometimes
I think people need to flip things and think about how they
would want their relatives to be treated or their daughter. Do
you follow what I am saying? I was trying to get some of that
urgency out of you and I am working on it.
Mr. Meiburg. Thank you because I think that would be an
appropriate sense to get from me, that sense of urgency.
Mr. Cummings. I wanted to paint a picture for you because
sometimes when you think about somebody you are close to,
somebody you love, somebody who supports you, somebody who has
your children--go ahead. We have you at the urgency level now,
I guess.
Mr. Meiburg. Absolutely.
Mr. Cummings. OK.
Mr. Meiburg. The fact of the matter is watching pornography
on government time and on government equipment is prohibited by
EPA policy and we are, indeed, urgent about that because
employees who engage in such behavior will face disciplinary
action up to and including removal.
In doing that, the one thing that has not come out in this
hearing--I do want to make a point.
Mr. Cummings. Do it quickly because I have a few things
else I need to discuss.
Mr. Meiburg. EPA wants to follow the law and part of the
reason we want to make sure we follow the law in these things
is so that actions we take are sustained on appeal to either
the Merit System Protection Board, the EEOC or in the District
Court because the consequences of an action that we took where
we removed somebody and then that action was overturned would
be pretty bad.
Mr. Cummings. I got you. The Merit System Protection Board
submitted a Statement for today's hearing stating that
``Current law permits an agency to take adverse employee
action, including removal based solely on an employee's sworn
Statement or admission.'' Several MSPB decisions are cited.
Mr. Chairman, I would ask that it be admitted to the
record.
Mr. Meadows. Without objection.
Mr. Meiburg. That would be helpful.
Mr. Cummings. Thank you.
Do we have an extra copy for him? Mr. Meiburg, I am going
to get you a copy of it.
The MSPB has determined that an agency may rely on an
appellant's admission ``in support of its charge.'' Mr.
Meiburg, help me with this. Why wasn't this employee's detailed
admission of downloading and viewing pornographic images on the
EPA equipment over the course of years sufficient to initiate a
removal?
Mr. Meiburg. Congressman, I do not mean to be evasive, but
I cannot speak to that particular thing. I do think, and I have
urgency about this, that we do need to work better with the
Office of the Inspector General, the Department of Justice and
U.S. Attorneys to make sure we, ourselves, clearly understand.
We have work to do. We understand that.
Mr. Cummings. Were you familiar with what I just talked
about--not necessarily the document but the fact that you could
do this?
Mr. Meiburg. No. This is actually new information to me.
Mr. Cummings. Did you know that, Mr. Sullivan?
Mr. Sullivan. Yes, sir, I did, Mr. Cummings. We
communicated that to the Labor Employee Relations attorneys
that we dealt with continually on both of these cases that you
were free to take action and they certainly could take action,
but they chose to wait until the very end. It is inexplicable
to me and I do not know why they did that.
Mr. Cummings. Mr. Meiburg, we have to do better. I am
sorry, this is not acceptable. It is not acceptable. I feel sad
about it. Listen to me. You do not have to say anything, I am
almost finished.
I feel sad about it. You have Mr. Sullivan and Mr. Elkins
and I think I was a little hard on you all in my opening
Statement. Now that I look back, it is not your fault. You did
your job. You did what you could do. You gave the advice, you
tried but then it seems as if you were hitting brick walls in
trying to accomplish what you wanted to accomplish. For that, I
apologize for what I said earlier.
I could not figure out why things were not moving fast
enough. Now, I know. Now I know. Do you know who it is? It is
you, Mr. Meiburg and you, Mr. Reeder. There is absolutely no
excuse for it, I am sorry. There just isn't.
This is the last thing, Mr. Chairman. Thank you for your
indulgence.
Earlier, I asked for a commitment of the EPA and the IG to
work together to share admissions of employee misconduct. Mr.
Meiburg and Mr. Elkins, you both agreed to do that. I just want
you to keep the Chairman and I informed of your progress. You
all are going to start working on that immediately, somebody?
Mr. Elkins. Yes, we will do that.
Mr. Meiburg. Yes.
Mr. Cummings. Can you give me some date when I can expect
an answer because I do not want to wait too long? I want a date
now. Give me a date.
Mr. Meiburg. We will work together with the Inspector
General and get you a followup on that by the end of June.
Mr. Cummings. What did you say?
Mr. Meiburg. The end of June.
Mr. Cummings. Why is it going to take so long?
Mr. Meiburg. I want to make sure that we are doing this----
Mr. Cummings. Mr. Meiburg?
Mr. Meiburg. I am not trying----
Mr. Cummings. Mr. Meiburg, I tell you what. Make it the end
of May, all right? To me that is too long, OK?
Mr. Meiburg. Yes, sir.
Mr. Cummings. The end of May, will you try?
Mr. Elkins. Yes, sir.
Mr. Cummings. If you are having difficulty, would you let
us know? You can contact the staff or send us a letter if you
are having difficulty getting together because we expect
something by the end of May, all right?
Mr. Elkins. Yes, sir.
Mr. Cummings. Thank you all very much.
Mr. Meadows. I thank the gentleman. Before he leaves, I
want to make one comment.
We were discussing and talking about employee morale. There
is on one more committed to the Federal work force than the
gentleman from Maryland but it also shows his character, Mr.
Elkins and Mr. Sullivan, when the Ranking Member is willing to
apologize for perhaps being overzealous. That just speaks to
your character, Mr. Cummings. I just want to thank you for
that.
Mr. Meiburg, I want to be very specific. A lot has been
talked about and I understand that you have a zero tolerance
for porn watching but in light of the revelation that the
Ranking Member just provided to you that you have the ability--
not only the ability, the requirement--to address these kinds
of behaviors, I would like to know from you today, if we have
an EPA employee who is watching porn--let us pick an hour or a
week on average--are you willing to fire them, yes or no?
Mr. Meiburg. I am not willing to make a judgment on an
individual case without----
Mr. Meadows. If they admit that they have been watching it
and you find it on their hard drive, are you willing to fire
them, yes or no?
Mr. Meiburg. I will answer for myself.
Mr. Meadows. You are the head of the agency--one or two
down--you can answer for the agency, yes or no, will you fire
them?
Mr. Meiburg. If we have an employee who is watching--I will
go with your scenario--an hour a day of porn and that is
documented by whatever forensics we need to do to document
that, it seems to me that would be an appropriate case for
proceeding with termination.
Mr. Meadows. That is not a yes or no, Mr. Meiburg. That is
a question with a question. My question is very specific. If
they are watching porn for a hour--it is a low threshold--I
would not even tolerate that--would you fire them?
Mr. Meiburg. I understand that.
Mr. Meadows. Yes or no?
Mr. Meiburg. I would fire them.
Mr. Meadows. Will you instruct your departments to fire
them?
Mr. Meiburg. I will take that information back and----
Mr. Meadows. Yes or no? There is a yes or no to the end of
this question and we are going to get there eventually. If the
answer is no, just tell the American people no because I am
sensing the answer is no.
Mr. Meiburg. I do not think that is fair but I also do not
think it is fair to me that you prejudge every case that would
come before a supervisor or before the agency. I am sorry that
is not a simple yes or no answer but it is just not.
Mr. Meadows. So the answer is no?
Mr. Meiburg. The answer is not no and the answer is not in
every case.
Mr. Meadows. Mr. Meiburg, let me just tell you, I know they
brought you back and you had a stellar career in Region IV and
other places, but I can tell you that you are doing the EPA a
disservice today.
If you cannot, before the American people, admit that
watching porn is offensive enough to fire them, moms and dads
all across America do not understand that and quite frankly,
neither do I.
Mr. Meiburg. Congressman, I completely agreed that watching
porn on EPA computers is not acceptable.
Mr. Meadows. But if you do not do anything about it, Mr.
Meiburg, it will never change. What I am hearing from you today
is that you are not going to do anything about it. I am
saddened to hear that.
Mr. Sullivan and Mr. Elkins, I want to thank you for your
work. I want to also let you know that the Ranking Member and I
were talking about this and I know that Chairman Chaffetz is
not going to let this go by the wayside. If you will continue
to followup and do your work, please thank all of those who
work with you.
The other thing is if we do not get clarity by the end of
May, as the Ranking Member suggested, on working with you, we
are asking you to report back to this Committee any potential
problems. Mr. Elkins, are you willing to do that?
Mr. Elkins. Yes, sir. Thank you for your support.
Mr. Meadows. You have it.
I would also suggest at this particular point, Mr. Meiburg,
if at 72 hours you have an employee issue that you would notify
Mr. Elkins within 72 hours, your supervisors or anyone else, on
anything that may be of a concern and let the Inspector General
determine whether it is something that needs to be followed up,
not just those that you think are important.
Wouldn't you agree that all--as your previous testimony
would indicate--need to go to the Inspector General?
Mr. Meiburg. Again, my testimony is that my own experience
in going to the Inspector General----
Mr. Meadows. I do not care about your own experience, you
will be long gone eventually. Should the agency have the
commitment to refer all--a-l-l, all--to the Inspector General,
yes or no?
Mr. Meiburg. Again, not to parse hairs, but when you say
all, are you referring to all issues of employee misconduct?
Mr. Meadows. Yes, all issues of employee misconduct or
potential employee misconduct, all, a-l-l?
Mr. Meiburg. The reason I am hesitating--not to parse
words--is that----
Mr. Meadows. Well, you are parsing words so I would suggest
that you get somebody else to come and testify the next time
around.
Mr. Clay, we will recognize you for 5 minutes of
questioning.
Mr. Clay. Thank you so much, Chairman Meadows.
I know some of this ground has been covered already but I
would like to focus on the case of the GS-14 environmental
protection specialist. Help me with the timeline. On May 2,
2014, the IG received allegations that this employee was
viewing pornography at work. On May 8, the IG interviewed the
employee and took his sworn Statement. On June 19, the IG
provided the EPA with a copy of the employee's sworn Statement.
It took the IG about a month after the Statement was given
to provide the EPA with a copy. That is a quick turnover
compared to the case of the geologist.
Despite receiving the sworn Statement on June 19, the EPA
did not start to process removing him. Instead, dialog ensued
between the EPA and the IG over the next 10 months regarding
additional evidence.
On February 23, 2015, the U.S. Attorney's Office for the
District of Columbia declined prosecution of this case. The IG
communicated this to the EPA in its final Summary Memorandum
Report on March 13, 2015.
After this happened, the EPA acted quickly, issuing a
Notice of Proposed Removal on March 23, 2015. This case is
currently pending so we cannot delve further into the details,
but it is difficult to understand why the EPA did not go
forward with removal proceedings as soon as it received the
admission.
At that point, these were no longer just allegations. They
were admissions by the employee himself. Yet, here we are and
it is nearly a year later and the employee's removal is still
pending.
I would like to hear from the panel whether there is a way
we can handle similar cases more effectively and efficiently in
the future? Mr. Elkins, I will start with you.
Mr. Elkins. Yes, sir. Thank you for the question.
I think initially in our conversations and after we
complete investigations, we immediately and timely have a
conversation with the agency as to what our findings are. At
that point, once we turn it over to the agency, it is up to the
agency to act on it.
In the past, we have had discussions about what an
admission means, what the culpable level of standard of proof--
we had that discussion so we have gone through this many times
with the agency, but once it leaves my shop and we give it to
the agency, we are dependent on the agency to act.
Mr. Clay. Mr. Sullivan, anything to add?
Mr. Sullivan. Mr. Clay, no, I concur with Mr. Elkins. We
acted appropriately in this investigation. Not only did we turn
the report over within a month, immediately after we
interviewed the environmental specialist, we verbally briefed
his supervisor as to the results. Within a day of the
investigation beginning and the interview being conducted, we
verbally briefed the supervisor and turned over the confession
within a month.
Mr. Clay. Take it from there, Mr. Meiburg.
Mr. Meiburg. To that point, one of the things we have
discussed in this hearing this morning is that perhaps EPA--not
perhaps, EPA needs to look back at its own internal procedures
to enable us to proceed based on the admission without waiting
for the final conclusion by the Attorney General's Office about
whether or not they are going to accept a matter for criminal
prosecution. That would have speeded up this case.
Mr. Clay. Where is it now?
Mr. Meiburg. Which one?
Mr. Clay. Is the employee still there?
Mr. Meiburg. I am trying to remember which employee. There
were two employees. I am trying to remember which one.
Mr. Clay. This is the GS-14 environmental protection
specialist.
Mr. Meiburg. The agency proposed removal of the employee.
The employee, as is his right, contested this and is going to a
hearing with the deciding official today.
Mr. Clay. I see.
Mr. Reeder, anything to add?
Mr. Reeder. No, Congressman.
Mr. Clay. Let me pose this question to the entire panel.
What can we do to get all of the necessary evidence to the
agency more quickly to facilitate quicker removals in cases
where the individual has admitted serious misconduct? Mr.
Elkins, we will start with you.
Mr. Elkins. Yes, sir. One of the issues here is that once
we have provided our evidence to the agency, we hear in many
cases that the agency says we do not have enough evidence, so
give us more evidence. Again, when you have an admission, you
do not need much more than that.
Also, we are not talking about a criminal case where the
standard of proof is proof beyond a reasonable doubt. It is a
preponderance of the evidence. When we prepare a case and that
case is going to the U.S. Attorney's Office, we prepare it to
meet the burden of beyond a reasonable doubt.
When we turn it over to the agency, it is a lower standard,
so they have everything they need, yet what we hear and what we
have heard from the agency is, give us more.
Mr. Clay. Did the agency tell you that in this case?
Mr. Elkins. Yes, I believe in most of the cases that I have
been involved with, that is what I have heard.
Mr. Clay. Mr. Meiburg, tell me why the agency needed more
evidence after you had an admission from the employee?
Mr. Meiburg. Congressman, I cannot speak to this particular
case on that matter. As a general matter, the agency wanted to
make sure we were not taking any action to interfere with a
possible criminal prosecution or with the Inspector General's
investigation, which was not the issue in this case and to make
sure we had enough information so that when we take a final
action that was subject to review, that it would be sustained
either administratively or in the courts.
Our fear, if you will, is that actions we take are
overturned which would result in not only having to pay back
salary, attorneys' fees and possible penalties, but then the
employee ends up being reinStated at the agency. That would not
be a happy outcome.
Mr. Clay. Mr. Reeder, now this employee is going to an
administrative hearing to contest his firing?
Mr. Reeder. I know that only because of the Deputy
Administrator's testimony. I am not familiar with this case.
Mr. Clay. You are not familiar with this one.
My time is up but thank you.
Mr. Meadows. I thank the gentleman from Missouri.
If there is no further business before the Committee, I
would like to thank all the witnesses for being here today.
This meeting of the Oversight Committee is adjourned.
[Whereupon, at 11:33 a.m., the hearing was adjourned.]
APPENDIX
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