Font Size Down Font Size Up Reset Font Size

Sign Up for Committee Updates

 

Hearing Transcript on Veterans' Preference.

Printer Friendly Version

 

 

VETERANS' PREFERENCE

 



 HEARING

BEFORE  THE

SUBCOMMITTEE ON ECONOMIC OPPORTUNITY

OF THE

COMMITTEE ON VETERANS' AFFAIRS

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION


SEPTEMBER 6, 2007


SERIAL No. 110-41


Printed for the use of the Committee on Veterans' Affairs

 

Snowflake

 

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC:  2008


For sale by the Superintendent of Documents,  U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; DC area (202) 512-1800
Fax: (202) 512-2250  Mail: Stop IDCC, Washington, DC 20402-0001

 


COMMITTEE ON VETERANS' AFFAIRS

BOB FILNER, California, Chairman

 

CORRINE BROWN, Florida
VIC SNYDER, Arkansas
MICHAEL H. MICHAUD, Maine
STEPHANIE HERSETH SANDLIN, South Dakota
HARRY E. MITCHELL, Arizona
JOHN J. HALL, New York
PHIL HARE, Illinois
MICHAEL F. DOYLE, Pennsylvania
SHELLEY BERKLEY, Nevada
JOHN T. SALAZAR, Colorado
CIRO D. RODRIGUEZ, Texas
JOE DONNELLY, Indiana
JERRY MCNERNEY, California
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota

STEVE BUYER,  Indiana, Ranking
CLIFF STEARNS, Florida
JERRY MORAN, Kansas
RICHARD H. BAKER, Louisiana
HENRY E. BROWN, JR., South Carolina
JEFF MILLER, Florida
JOHN BOOZMAN, Arkansas
GINNY BROWN-WAITE, Florida
MICHAEL R. TURNER, Ohio
BRIAN P. BILBRAY, California
DOUG LAMBORN, Colorado
GUS M. BILIRAKIS, Florida
VERN BUCHANAN, Florida

 

 

 

Malcom A. Shorter, Staff Director


SUBCOMMITTEE ON ECONOMIC OPPORTUNITY
STEPHANIE HERSETH SANDLIN, South Dakota, Chairwoman

JOE DONNELLY, Indiana
JERRY MCNERNEY, California
JOHN J. HALL, New York
JOHN BOOZMAN, Arkansas, Ranking
RICHARD H. BAKER, Louisiana
JERRY MORAN, Kansas

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records of the Committee on Veterans' Affairs are also published in electronic form. The printed hearing record remains the official version. Because electronic submissions are used to prepare both printed and electronic versions of the hearing record, the process of converting between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process is further refined.

 

       

C O N T E N T S
September 6, 2007


Veterans' Preference

OPENING STATEMENTS

Chairwoman Stephanie Herseth Sandlin
        Prepared statement of Chairwoman Herseth Sandlin
Hon. John Boozman, Ranking Republican Member
        Prepared statement of Congressman Boozman


WITNESSES

U.S. Merit SystemS Protection Board, Hon. Neil A. G. McPhie, Chairman
        Prepared statement of Hon. McPhie
U.S. Department of Defense, Hon. Patricia S. Bradshaw, Deputy Under Secretary of Defense (Civilian Personnel Policy)
        Prepared statement of Hon. Bradshaw
U.S. Department of Agriculture, Hon. Boyd K. Rutherford, Assistant Secretary for Administration
        Prepared statement of Hon. Rutherford
U.S. Office of Personnel Management, Anita R. Hanson, Outreach Group Manager
        Prepared statement of Ms. Hanson
U.S. Department of Labor, John M. McWilliam, Deputy Assistant Secretary, Veterans’ Employment and Training Service
        Prepared statement of Mr. McWilliam
U.S. Department of Veterans Affairs, Willie Hensley, Deputy Assistant Secretary, Human Resources Management, Office of Resources and Administration
        Prepared statement of Mr. Hensley


American Federation of Government Employees, AFL-CIO, Mary Jean Burke, First Executive Vice President, National Veterans Affairs Council
        Prepared statement of Ms. Burke
American Postal Workers Union, AFL-CIO, C.J "Cliff" Guffey, Executive Vice President
        Prepared statement of Mr. Guffey
Disabled American Veterans, Brian E. Lawrence, Assistant National Legislative Director
        Prepared statement of Mr. Lawrence
National Veterans Legal Services Program, Meg Bartley, Senior Staff Attorney
        Prepared statement of Ms. Bartley
Tadsen, Roger, Wetumpka, AL
        Prepared statement of Mr. Tadsen


SUBMISSIONS FOR THE RECORD

American Legion, Ronald F. Chamrin, Assistant Director, Economic Commission, statement
National Association of Postal Supervisors, Ted Keating, National President, letter


MATERIAL SUBMITTED FOR THE RECORD

Post-Hearing Questions and Responses for the Record:

Hon. Stephanie Herseth Sandlin, Chairwoman, Subcommittee on Economic Opportunity, Committee on Veterans' Affairs, to Hon. Neil A.G. McPhie, Chairman, U.S. Merit Systems Protection Board, letter dated September 17, 2007

Hon. Stephanie Herseth Sandlin, Chairwoman, Subcommittee on Economic Opportunity, Committee on Veterans' Affairs, to Hon. Patricia S. Bradshaw, Deputy Under Secretary of Defense (Civilian Personnel Policy), U.S. Department of Defense, letter dated September 17, 2007

Hon. Stephanie Herseth Sandlin, Chairwoman, Subcommittee on Economic Opportunity, Committee on Veterans' Affairs, to Hon. Boyd K. Rutherford, Assistant Secretary for Administration, U.S. Department of Agriculture, letter dated September 17, 2007

Hon. Stephanie Herseth Sandlin, Chairwoman, Subcommittee on Economic Opportunity, Committee on Veterans' Affairs, to Ms. Anita R. Hanson, Outreach Group Manager, U.S. Office of Personnel Management, letter dated September 17, 2007

Hon. Stephanie Herseth Sandlin, Chairwoman, Subcommittee on Economic Opportunity, Committee on Veterans' Affairs, to Willie Hensley, Deputy Assistant Secretary, Human Resources Management, U.S. Department of Veterans Affairs, letter dated September 17, 2007


VETERANS' PREFERENCE


Thursday, September 6, 2007
U. S. House of Representatives,
Subcommittee on Economic Opportunity,
Committee on Veterans' Affairs,
Washington, DC.

The Subcommittee met, pursuant to call, at 2:10 p.m., in Room 334, Cannon House Office Building, Hon. Stephanie Herseth Sandlin [Chairwoman of the Subcommittee] presiding.

Present:  Representatives Herseth Sandlin, Donnelly, McNerney, Hall and Boozman. 

OPENING STATEMENT OF CHAIRWOMAN HERSETH SANDLIN

Ms. HERSETH SANDLIN. Good afternoon, ladies and gentlemen.  The Veterans' Affairs Economic Opportunity Subcommittee hearing on veterans' preference will come to order.  Before I begin with my opening statement, I would like to call attention to the fact that Mr. Ted Keating, President of the National Association of Postal Supervisors, has asked to submit a written statement for the record.  If there is no objection, I ask unanimous consent that his statement be entered for the record. 

Hearing no objection, so entered.

[The statement of Mr. Keating appears in the Appendix.]

Ms. HERSETH SANDLIN. When called to duty, servicemembers must make a sacrifice by leaving behind loved ones and a way of life for an extended period of time.  As four of our most recent Subcommittee hearings have highlighted, many of these servicemembers have returned home to find themselves having a difficult time securing employment. 

In the early years of our Republic, veterans returning from war have been provided assistance in their reintegration back into civilian life to include being given preference in Federal Government hiring so they may succeed after military service.  Generally, to qualify for such preference, a veteran must have been discharged or released from active duty in the U.S. Armed Forces under honorable conditions and be eligible under one of the preference categories.  These categories apply to certain veterans who served during war; veterans with less than or a greater than 30 percent service-connected disability; veterans who have a service-connected disability and are receiving benefits due to that disability, but do not qualify for other preferences; and family members of veterans. 

Unfortunately, as we will hear today, there are some concerns that still exist, have existed over the past years.  Some of these include veterans improperly denied appointments and veterans targeted during a reduction in force (RIF). 

I hope this hearing will allow the Subcommittee to determine the success rate of veterans' preference; if veterans' preference has assisted our Nation's heroes in acquiring jobs at Federal agencies; and if these agencies have implemented veterans' preference properly. 

I applaud the Federal agencies that have made strong efforts in hiring veterans, especially disabled veterans.  I would also like to take the time to recognize the steadfast dedication of all our panelists today and their willingness to bring to light the serious issues that are being faced by many of our veterans today.  I know that those of us here in the Congress, and the Administration officials on the third and fourth panels, look forward to hearing today's testimony so that we may all work together to properly recognize the sacrifice of those who have answered the call to duty.  This is especially true at a time when our country is experiencing an increased retirement rate among Federal employees, and the military operations that are creating a larger population of veterans. 

[The statement of Chairwoman Herseth Sandlin appears in the Appendix.]

Ms. HERSETH SANDLIN. I now yield to our distinguished Ranking Member, Mr. Boozman, for his opening remarks. 

OPENING STATEMENT OF HON. JOHN BOOZMAN

Mr. BOOZMAN. Thank you, Madam Chair.  I want to thank you and your staff, my staff for bringing this very important issue before the Subcommittee. 

The Federal Government has a special obligation to make veterans part of its workforce, and I know that many Federal agencies make a real effort to hire and promote veterans.  For example, the military services led by the Army with 43 percent, Air Force with over 41 percent, Navy with 38 percent, and the U.S. Department of Veterans Affairs (VA) with over 23 percent led the Federal Government in hiring veterans in fiscal year 2005.  Unfortunately there are also agencies that make little or no effort. 

I hope that today's hearing will provide us with insights as to how veterans' preference laws are working and in some cases not working.  I would say that overall numbers show the Federal Government is making an effort.  For example, according to the U.S. Office of Personnel Management (OPM) report on veterans in the Federal workforce for 2005, veterans comprised 27 percent of the Federal full-time permanent employees, and veterans hiring is up in all areas.  If I am disappointed, it is that agencies did not make better use of the special hiring authorities, such as veterans recruitment authority, VRA, to hire even more veterans. 

I must say reading OPM's Web site sections devoted to veterans' preferences is not an easy task, probably because of the multiple laws, hiring authorities and programs in effect for veterans and nonveterans. 

Madam Chair, since we have no direct authority over Title 5 in the rest of the government, and again, I am thinking out loud but, I wonder if we should consider using our jurisdiction to simplify veterans' preference for the VA in the same manner as we did for small business in Public Law 109-461. 

VA has a good overall record relative to hiring veterans, but I think that we could help them do even better without tying the hands of the human resources staff. 

Again, I appreciate very much the panelists here, and I am very glad to hear the testimony.  Thank you, Madam Chair.

[The statement of Congressman Boozman appears in the Appendix.]

Ms. HERSETH SANDLIN. Thank you, Mr. Boozman, for your suggestions and ideas on how we can best utilize our jurisdiction in our work here together to ensure that other agencies can meet the higher standard that the VA has in a number of instances, and that we can share that information with our colleagues on other committees but also look to simplify these procedures.  I'm also interested in the testimony, or the questions you may have, for our witnesses along that line or thoughts they provide in their opening statements. 

I want to welcome on our first panel Ms. Meg Bartley, Senior Staff Attorney of the National Veterans Legal Services Program (NVLSP); and Mr. Roger Tadsen, a disabled Air Force veteran, residing in the State of

Alabama .  Thank you both for being here today. 

I do want to remind you that your entire written statements will be made part of the record.  Please summarize your remarks, you will be recognized for 5 minutes.  We will have some questions for you as well.  We have two additional panels, so please keep your opening statement to 5 minutes, we would appreciate that. 

Ms. Bartley, let us begin with your testimony.  You are recognized for 5 minutes.

STATEMENTS OF MEG BARTLEY, SENIOR STAFF ATTORNEY, NATIONAL VETERANS LEGAL SERVICES PROGRAM; AND ROGER TADSEN, WETUMPKA, AL (DISABLED VETERAN)

STATEMENT OF MEG BARTLEY

Ms. BARTLEY.  Madam Chair and Members of the Subcommittee, on behalf of the National Veterans Legal Services Program.  I am honored to provide this testimony.  And I hope it assists you in ensuring that all veterans receive the preference to which their service entitles them. 

During the past 8 years, NVLSP has reviewed and investigated complaints concerning veterans' preference violations.  During that time we have filed amicus briefs with the U.S. Merit Systems Protection Board (MSPB) and the Federal circuit on behalf of the American Legion and on behalf of our own organization in important veterans' preference cases.  Based on discussions with individual veterans and review of numerous complaints, we believe there are currently many violations of both the spirit and the letter of veterans' preference laws. 

I want to summarize three problems with the current system.  In the interest of time, I will omit the recommendations that I have included in my written testimony.  These are not the only problems with how veterans' preference works, but I believe they best illustrate the systemic weaknesses in the system.  They show us that agencies currently avoid consistent and even-handed application of veterans' preference in appointments to the competitive service. 

I will first address the practice of canceling a certificate of eligibles in order to avoid hiring a preference eligible.  And I have a little overview in my written testimony of what can happen when an agency posts a vacancy.  Usually applicants apply.  A certificate of eligibles is generated.  Sometimes there is more than one certificate, and I will get to that in a minute. 

But let's look at a case where there is a single certificate.  Let's assume it is headed by a preference eligible.  The hiring official doesn't want to hire that veteran.  They may request a passover from OPM, and if their request for a passover is denied, the law currently provides that if the agency decides to subsequently cancel the entire announcement in order to avoid hiring the preference eligible, veterans' preference rights are not violated.  That is from the Scharein case and also the Abell case of the Federal Circuit.  That outrageous statement is the current state of the law, and allowing that situation to continue allows an agency to intentionally foil veterans' preference laws. 

A second problem that shows the systemic weakness of the current system is that under veterans' preference laws, emphasis is placed on the rank or rating of a preference eligible on a single competitive examining certificate.  That is in chapter 33 of Title 5 USC.  For many positions, the preference eligible is at the top of the certificate.  And years ago when there was only one certificate, that provided meaningful preference, right, because the veterans at the top end would have to be chosen, or the agency would be required to get authorization for a passover. 

However, at the current time, agencies have the ability to choose a candidate from among multiple certificates and programs.  The existence of multiple certificates and programs, any of which may be used to fill a single vacancy, renders the rank or rating assigned to the preference eligible on the competitive open certificate potentially meaningless.  What is the benefit of being number one on the list if the agency has the ability to choose from four or five other certificates or programs in deciding who to hire?  Veterans are completely confused to find that they were at the very top of a certificate, but someone from a completely different certificate was appointed to the job. 

A third problem is that agencies tend to ignore the primacy of the competitive examining process in Federal hiring.  The existence of multiple hiring programs and certificates from which agencies can choose leads agencies to a dangerous view of Federal hiring, and that is that they are pretty much unrestricted in choosing how to hire an individual.  Competitive examination is seen as one hiring method among several.  However, the statutory scheme in Title 5, chapter 33 requires that an individual be appointed in the competitive service only if they have passed an examination or of necessity been excepted from examination. 

Deviations from that method of choosing an individual for the competitive service leads to serious violations of veterans' preference laws.  This is evidenced by the fact that the Outstanding Scholar Program operated undisturbed for many years and only recently was recognized as violating veterans' preference.  The growth of additional programs as alternative routes into competitive service is a serious threat to consistent application of veterans' preference. 

Madam Chair and Members of the Subcommittee, I appreciate the opportunity to present our views on this issue and look forward to continuing working with the Subcommittee on strengthening the application, oversight and enforcement of veterans' preference. 

Ms. HERSETH SANDLIN. Ms. Bartley, thank you very much for your testimony. 

[The statement of Ms. Bartley appears in the Appendix.]

Ms. HERSETH SANDLIN.  Mr. Tadsen, thank you very much for taking personal leave to join us today to share with us your insights and testimony.  You are now recognized for 5 minutes.

STATEMENT OF ROGER TADSEN

Mr. TADSEN.  Madam Chairwoman and Members of the Subcommittee, I am Roger Tadsen, and I thank you for allowing me to speak with you concerning my experiences under the Disabled Veterans Affirmative Action Program (DVAAP), established by 5 CFR 720 Subpart C.  My military career started when I joined the Air Force in January 1972 at the age of 17.  While on active duty, I had surgery which left me partially paralyzed in both legs.  The Air Force medically discharged me in January 1987.  As a result, the Veterans Administration established my service-connected disability rating at 70 percent. 

The Air Force Audit Agency hired me in June of 1991 upon completing the VA's Vocational Rehabilitation Program.  My previous Air Force experience paid off with my first audit, which resulted in over a $3 million savings to the Air Force.  I thought I was doing well.  Imagine my surprise when my region chief, meeting me for the first time, told me, you should be satisfied where you are because of your disability and that you could not handle being an audit manager. 

His statement took me aback.  I filed an equal employment opportunity (EEO) complaint.  And his explanation:  You misunderstood what I said.  And I gave him the benefit of the doubt. 

Between 1995 and 2004, I had ratings of excellent and superior.  I self-nominated for more than 15 competitive promotions and was never selected.  All the while, the Air Force Audit Agency had continuous vacancies in California, Ohio,

Texas and the Pentagon.  I watched as my peers with less time and grade and service were selected and wondering, why not me?  When I asked, I was told by Agency officials, focus your energies on job performance, which is the primary factor to promotion in the Audit Agency, and apply for vacancies. 

Since January 2000, I have completed 23 audits, identifying over $54 million in savings for the Air Force.  I have audit experience in acquisition field operations and information systems audits and am a certified fraud examiner.  I have worked with the Air Force Audit Agency for over 15 years and have more than 31 years with the Air Force. 

In October of 2002, I discovered the DVAAP.  On my own time I started to research its implementation in the Air Force Audit Agency.  Over the next year I asked my supervisor and other agency officials why the Audit Agency was not following this affirmative action program, focusing on disabled veterans rated 30 percent or more as outlined.  My written testimony gives a full account of who I wrote and their response since. 

After many letters and e-mails and discussions, it became apparent that the Audit Agency did not want to implement this affirmative action program.  As a result, I filed an EEO complaint in December of 2003 based on the lack of their responsiveness. 

In January of 2004, I requested a humanitarian reassignment for personal reasons.  A Deputy Assistant Auditor General offered me a job, which included a promotion in February 2004, stating, this will kill two birds with one stone.  I assumed he was referring to my EEO complaint and humanitarian reassignment.  I accepted this promotion, knowing that this same official had previously rejected my self-nomination a few months earlier, and I withdrew my EEO complaint. 

After our move, I continued to ask why the Audit Agency was not implementing the DVAAP plan.  My Associate Director said that a Deputy Assistant Auditor General poignantly told me in September of 2004, we don't want to hear any more about the DVAAP. 

Since January of 2006, to continue my career progression, I have applied 11 times for vacancy in professional military education since the Agency senior officials say I need depth and breadth of experience.  Yet again, I went unselected while generally others with less time and experience were selected. 

In June of 2007, I provided Audit Agency senior staff contact information for the Supervisor of Employment Outreach at the national VA headquarters.  None of these officials contacted his office even though he identified over 1,600 potential candidates rated 30 percent or more. 

I believe my testimony has shown a pattern of deception concerning the implementation of this affirmative action program while supporting discrimination against disabled veterans within my own organization, especially those rated 30 percent or more.  And I just thank you for allowing me to take the time to come and speak with you on this issue.

[The statement of Mr. Tadsen appears in the Appendix.]

Ms. HERSETH SANDLIN.  Thank you again, Mr. Tadsen.  We appreciate your willingness to share your experiences, clearly as frustrating as they have been, so that we can help get some answers to try to help others avoid being in this position.  Certainly it is our oversight role to make sure that programs like DVAAP are implemented in the way that we had intended. 

We have been joined by Mr. McNerney, the gentleman from

California .  Did you have an opening statement, Mr. McNerney, that you wanted to share with the Subcommittee? 

Mr. McNERNEY.  No.  Go ahead and go on with the questions. 

Ms. HERSETH SANDLIN. I will recognize the Ranking Member first for questions and then recognize you, Mr. McNerney. 

Mr. Boozman? 

Mr. BOOZMAN.  Thank you, Madam Chair. 

Ms. Bartley, you mentioned the three things that were common barriers.  In one I was a little confused.  You quoted a case, a citing from the case.  Was that quoted from the law, or is that a bad interpretation of the law?  See what I am saying?  Laws are made all the time, and then judges interpret what the law means.  Is that a bad interpretation?

Ms. BARTLEY.  That is both the Merit Systems Protection Board and the Federal circuit's interpretation of the law.  I want to make clear that the MSPB and the court seem to be interpreting the law correctly.  It is just that the law has this flaw in it that it would allow an agency to go ahead and cancel.  There is nothing to prevent that from happening.  So that was their interpretation of the law. 

Mr. BOOZMAN. So in your mind, there is a loophole in the law.

Ms. BARTLEY.  There appears to be a loophole in the law.

Mr. BOOZMAN. It wasn't intended to be that way when the law was written.

Ms. BARTLEY.  I don't think when the law was written people thought that that would occur.

Mr. BOOZMAN. In many cases when you try to write law, sometimes you don't cover every intended loophole.

Ms. BARTLEY.  Right.  It is impossible to foresee that something like that would—

Mr. BOOZMAN. You describe the three most common barriers.  What is the most common of the three? 

Ms. BARTLEY.  I think these are all significant flaws structurally in the law.  I did not attempt to say that they were the most important or the ones that occur most frequently.  I would find it hard to choose among them or to put them ahead of other problems that the other service organizations are going to address in a little while. 

Mr. BOOZMAN. And I know in your written testimony it is there, but would you summarize again, would you kind of go through one, two and three?  And then as one who works with the problem, what would be your fix for the problem? 

Ms. BARTLEY.  Well, the first problem that I mentioned was the cancellation of a certificate specifically in order to avoid hiring a preference eligible.  One recommendation or idea that we have and that some veterans service groups and I have discussed, some other service group members have discussed, is to require an agency to request permission to cancel a certificate that is headed by a preference eligible.  A rule that might be patterned after the current passover provision in 5 USC 3318(b), which requires an agency—the current rule, the passover rule is if the agency wants to pass over a veteran on a certificate, to essentially request OPM's permission to do that, giving reasons why they want to do that; is the preference eligible not qualified, et cetera.  And sometimes they can actually accomplish that.  The OPM says, yes, go ahead and pass over. 

There could be a similar provision concerning the cancellation of a certificate.  Where the certificate is headed by a preference eligible, they could have to give reasons to OPM or give reasons to some agency as to why they want to cancel the certificate.  And OPM, if they found that there was a valid reason other than just because the agency wants to avoid veterans' preference laws, they could go ahead and approve the cancellation of the certificate. 

I am sure that there will be an objection, that that would be quite bureaucratically burdensome, and I guess that would have to be tailored so it wouldn't be burdensome, because I understand there are a lot of cancellations of certificates.  The funding for the position might have failed, the agency may need to tweak how they described the position, so they cancel the certificate, and they add a new skill in there that needs to be—you know, that the applicant should have.  There are all kinds of reasons why certificates are cancelled.  And I am not saying that this is the main reason, but this is—there are many cases that have—cited the Scharein case and the Abell case.  And so our assumption is, well, this is happening with some frequency.  And it is such an outrageous situation that it just calls out for some kind of action. 

As far as the second problem, the agency's ability to choose from multiple certificates or programs in filling a single vacancy, I admit that our recommendation there is a bit vague:  basically somehow to ensure that a certificate generated through the competitive process, that is the open competitive—open to all sources competitive certificate is somehow favored over other hiring methods and over other hiring programs. 

Again, I admit that that is a bit vague, but that is all I can think of, because when you look at Title 5 as a whole, the only place that appointments are really talked about is in chapter 33.  That is a structured—a structured method of appointing someone to the competitive service.  It is all in chapter 33, and that is where all of the veterans' preference rules are also. 

So that should be the primary method of hiring.  But again, the recommendation there is admittedly a bit vague.  And I am sure perhaps other people have other suggestions on that. 

The third problem is—and it is related to the multiple certificate problem—is that agencies tend to ignore that the competitive examination process is supposed to be the primary hiring method for appointments to the competitive service.  This is routinely ignored.  It is ridiculously routinely ignored, in my opinion.  The recommendation here, again, is to ensure that the competitive examining process remains the primary appointment method for entry into the competitive service, and if an agency is going to use another hiring program, they should have reasons why that is necessary. 

Mr. BOOZMAN. With your permission, can I ask Mr. Tadsen one thing? 

You told your story and then alluded to the fact that other veterans, other friends, acquaintances or whatever were having the same problem.  Is it because that your supervisors feel like you are thrust on them in the first place?  See what I am saying?  If you are doing a good job, and if I were the supervisor, and you want to have a good team that does a good job doing these things, is it just getting off on the wrong foot in the first place, or—

Mr. TADSEN.  Well, most of our—most of the decisions that are made aren't made at my first- or second-level supervisor.  It is upper management and at the Senior Executive Service (SES) level that are making these decisions and trying to inform the agency how they want to do it.  So my first- and second-level supervisors, they write glowing reports. 

For example, when I put in for Air Command and

Staff

College at Maxwell, my first- and second-level supervisors, they wrote glowing comments.  But when it got to the SES where they are supposed to fill out their comments on this form, their comments aren't supportive.  And so the selecting officials at the Board that they choose the people that are to attend these professional schools, they wrote back to me saying that the endorsing officials' comments don't relate to how the Air Force would benefit from me attending this particular college. 

And again, I am just one.  There are 13 other disabled veterans, and they have told me their stories as well.  But again, they don't want to be under the gun, as it were. 

Mr. BOOZMAN. So you feel like the upper level is based on the fact that you and these other folks have a disability as to why they are—I guess what I am saying is you want to have a good team of people that are doing the job, and evidently you are doing the job.

Mr. TADSEN.  You want to be qualified.  You want to have qualified people in those positions.

Mr. BOOZMAN. So what is their motivation?  What is their motivation? 

Mr. TADSEN.  I don't know, because they have yet to respond to any of my inquiries.  You know, they just don't respond.  They tell my Associate Director they just don't want to hear any more about it, and that is it.  And even under National Security Personnel System (NSPS) now, we have been under NSPS since April of 2006, we have not hired any disabled veterans, we have not promoted any disabled veterans, and nobody will explain why.  And when I write the Office of Primary Responsibility at the Air Force level, they said, well, we have provided the Air Force Audit Agency with six recommendations that would help them to improve the disabled veterans' representation.  And they still have not implemented those recommendations. 

Mr. BOOZMAN. Well, thank you for coming, and we appreciate your service.  Thank you very much. 

Ms. HERSETH SANDLIN. Mr. McNerney? 

Mr. McNERNEY.  Thank you, Madam Chairwoman. 

I also want to thank the two panelists.  I know it is hard to come forth, but this is what it takes to change the system so hopefully we can make some things that are going to change and make it better. 

Ms. Bartley, I would like to ask you, in your opinion, is the Office of Personnel Management capable of dealing with veterans' preferences across the country, or are there major structural changes that are needed? 

Ms. BARTLEY.  I think there are major structural changes that are needed.  I believe that one of the other service organizations later will speak about the fact that the appeal process and the complaint process for veterans' preference violations is not streamlined at all.  A lot of different agencies have a hand in it:  Office of Special Counsel, OPM, the MSPB, et cetera.  And often veterans don't know really what is happening. 

I also think that with the growth of a lot of—I mentioned this in my written testimony—multiple student hiring programs and things like that, it is hard for OPM to—you know, there is like growth in the number of ways to hire people.  It is hard for OPM to keep their hands on each one.  And then, of course, sometimes all this is delegated to the agency, and OPM is just doing minimal supervision.  And then again, they don't really have the—they have authority, but they don't have the supervisory ability to make sure that things are happening the right way. 

Mr. McNERNEY.  Well, in your view, then, does the veterans' preference statute really help?  Is there any level that it does help, or are we sort of not getting anywhere at this point? 

Ms. BARTLEY.  Well, I certainly wouldn't recommend getting rid of it. Of course it helps in situations.  What we are trying to highlight are the numerous violations and think about ways that we could improve it so that those violations don't occur.  Sometimes, though, it seems as though you plug one hole, and, you know, other potential ways of hiring people appear, you know, and so you are busy kind of plugging holes. 

And I would point to the Outstanding Scholar Program, as you know, a hole that was plugged, but now—and after the—you know, the Outstanding Scholar hiring program was frozen.  I believe it is still frozen.  But I heard various things from various people on that.  After that was frozen, because it was seen as basically a violation of veterans' preference laws and the competitive examining process, then we did see some advice, actually, among Federal hiring managers, what to use now that Outstanding Scholar isn't available to us.  And, of course, there is nothing wrong with that, but a lot of these—seemingly what has occurred is that there has been a bit of an explosion in different student hiring programs, and we are not sure how veterans' preference is being applied there and whether anyone is doing any oversight or enforcement of those programs.

Mr. McNERNEY.  Do you think that employers find any tools that are useful in locating the appropriate person to hire for vacancies, or is that an area that could use some work as well? 

Ms. BARTLEY.  Did they have—it is possible that an human resource (HR) professional might have a better view of that than I do because I really don't do HR work.  I know they clamor for hiring flexibilities.  And, of course, no service organization in this room has a problem with that as long as veterans' preference laws, including, you know, passover and enforcement, are followed. 

Mr. McNERNEY.  Thank you. 

Mr. Tadsen, do you think that the Air Force Audit Agency retaliated against you in any way, or do you feel like there was unintentional action? 

Mr. TADSEN.  Oh, I think it was well directed at me, because my first line supervisor and a deputy director for my region worked together, I think, to put me in the hospital, as it were.  They were—the VA, they were thinking I was having heart trouble, but it was all stress-related, because, again, they were attacking my character, my work.  As I said in my previous testimony, my ratings from 1995 until 2004 were superior or excellent.  And since that time—now I am just average.  And I think that is part of the process. 

And just to add with what Ms. Bartley had said as far as certificates being cancelled and how the preferences are given, in my own organization, I believe that they purposefully tried to do what they can so that they don't have to have a disabled veteran in a supervisory position or mid or upper management, because there are none currently.

Mr. McNERNEY.  Can I ask one more question?  Do you have any specific recommendations then on what should be done to improve the situation or—you don't have to answer in detail now, but if you do, if you would submit those, I think it would be useful.

Mr. TADSEN.  One recommendation I would give is that the air staff, the A1X folks that are the Office of Primary Responsibility (OPR) office for the DVAAP plan, is that they should have the authority to not necessarily encourage my organization to participate in this program, but actually monitor how they implement the DVAAP for hiring using veterans' preferences or promotions under the DVAAP, because now it is just not satisfactory. 

Mr. McNERNEY.  Okay.  Thank you. 

Ms. HERSETH SANDLIN. Let me continue with you then, Mr. Tadsen.  In your testimony you said that between 1995 and 2004 you self-nominated 15 times? 

Mr. TADSEN.  Yes, ma'am.

Ms. HERSETH SANDLIN. For competitive promotions.  You were never selected, and there were continuous vacancies at the time? 

Mr. TADSEN.  Yes, ma'am. 

Ms. HERSETH SANDLIN. And you were never proffered a reason as to why you were not selected? 

Mr. TADSEN.  No, ma'am.  Well, I assume in some instances, as Ms. Bartley had alluded to, some certificates were withdrawn.  We chose not to fill the position at this time.  In other things, they just never filled the position.

Ms. HERSETH SANDLIN. I think you stated this in your response to an earlier question.  This wasn't an issue, it doesn't sound like, even at the outset, that was just someone's lack of awareness of DVAAP, right? 

Mr. TADSEN.  Well, in 2003, I gave the auditor general a copy of the law, the 5 CFR Subpart C, and a paper I had written when I was attending the

Professional

Military

Comptroller

School on how the Air Force should implement this affirmative action program.  So they were well aware of it in 2003.  Myself, I wasn't aware of it until I was doing research on another audit project that I just happened to cross the law.  Otherwise, I would have never even known of the DVAAP.  And once I found out, that is when I started to ask questions.

Ms. HERSETH SANDLIN. I am asking these questions so that we can figure out, as a Subcommittee, the best way to address different cases.  Whether it is an agency that has some folks in certain positions of responsibility that aren't as familiar as they should be, and is, therefore, obviously not taking adequate steps to implement it; or do we have instances in which people are fully aware of it, those that are responsible in a particular agency for knowing about it and implementing it, and there is an intentional, willful refusal to implement the law. 

Do either you or Ms. Bartley want to respond to whether or not you think that we have situations in which either are true?  Do you think in your experience with other agencies, that people are familiar with the various programs we have in place to ensure adequate enforcement of veterans' preference?

I raise this question because we have had other hearings where workload issues are identified for people and primary responsibility to keep up with changes in the law, whether it is in contracting issues or what have you.  Or do we have a systemic situation in which individuals with responsibility are purposefully not doing enough to implement the programs? 

Ms. BARTLEY.  Well, that is an interesting question, and I tend to think it is a mixed bag.  But I did want to note from what Mr. Tadsen said that—I believe I am correct in this, although I don't have all the laws memorized.  veterans' preference doesn't apply to the SES.  And he was just mentioning that the problem is with SES.  I don't want to draw too much out of that—out of that connection I am making, but it is possible that because upper management— there may not be.  I don't know a lot of disabled veterans there—that there may be some resistance to following the many parts of the veterans' preference or affirmative action laws.  I don't know. 

But as far as your general question, I do believe it is a matter of both workload and ignorance, or I believe there is often outright resistance to applying the law and thinking of ways to getting around it, like canceling certificates or tweaking the requirements for a position so that the veteran may no longer qualify, things like that. 

Mr. TADSEN.  If I might add, ma'am, when I was trying to discover how the Air Force was implementing this plan, it took me almost a year to get the Air Force to provide me two sheets of paper that looked like a Word document.  It was not properly staffed.  Most regulations that I review, they have an OPR identified on the face of the document whose office is primarily responsible, just the staffing.  But the plan that they provided me, and they called this the Air Force fiscal year 2003 DVAAP plan, I provided it to my Civilian Personnel Office at Elmendorf.  That is where I was stationed at the time.  They had never seen it.  I contacted the Civilian Personnel Office for the Pacific Air Command because that is where Elmendorf falls under.  They had never seen it. 

So as she has alluded to, I think it is a mixed bag of just knowledge and knowing that it is there.  So I—again, I think it is a mixed bag.  But in my own organization, I gave them a copy of the law.  I gave them a copy of the Air Force plan in 2003, and we have yet to hire or promote disabled veterans within my organization.  We remain constant between 10 and 13 disabled veterans that have a rate of 30 percent or more.  And that is a concern for me, not necessarily from my own progression, career progression, but for the other 10 or 12 other 30-percent disabled veterans that are out there that have had these comments made to them, you know, the only reason you were hired is because you are disabled; it should have gone to a woman.  Those kind of comments are just irresponsible from mid and upper management.

Ms. HERSETH SANDLIN. Ms. Bartley, you had already addressed the issue of your concerns about OPM.  Let me ask you both this:  If it is a workload issue and a lack of familiarity with some of the laws that are in place, then going to the issue that Mr. Boozman brought up in his opening statement, when there is familiarity, is it still too complex?  Do you think it needs simplification?  Are there certain agencies, in your opinion, that you have seen canceling a certificate of eligibles more frequently than others, particularly since the decisions that you have referenced from 2002?  I think it is the Scharein decision in 2002 and the Azdell decision.  What are your thoughts on the complexity of administering veterans' preference across agencies?  Which agencies may have taken these decisions from the last few years and started issuing more cancellations of the certificate of eligibles?  That is a question more directed to you, Ms. Bartley, and I may have another one to directed Mr. Tadsen.  What are your thoughts? 

Ms. BARTLEY.  We haven't looked into the—well, I did call OPM to try and see how they track the cancellation of certificates.  They do track the cancellation of certificates.  I didn't talk—I wasn't able to talk to the person who is actually in charge of that.  So I don't have any sense of what agencies might be doing this more than others. 

As to your question about the complexity, I think that is an issue.  It has become very complex.  If you read, you know, Title 5 and the appointment and selection process there, it all sounds really simple.  But there is just so many regulations and different parts of the mosaic that it is very complex.  I mean, I have some sympathy with, you know, human resources people just because it is hard to walk that line.  But again, the most important thing to me and to our organization is that veterans' preference laws are applied.  But it has become a very, very difficult thing with all of these different programs. 

Ms. HERSETH SANDLIN. I appreciate that.  We may explore with the next panel their thoughts on this.  Perhaps after the hearing, taking the testimony we are getting today, if there is a consensus about that, we can help develop proposals, as Mr. Boozman suggested, to help simplify this process that would also help in the training for those being familiar with what laws apply and how to best implement them. 

We do have three more panels, so I think we may have some additional questions that we will submit to you in writing, if you can get back to us, because I think if they are agency-specific, Mr. Tadsen, for us to get more information from your experience.  We may want to submit some additional questions to you. 

I again appreciate your testimony today and share your concerns.  Of course, it raises some other issues, as Ms. Bartley pointed out.  If we have got veterans' preference applying to initial hires and protection against reduction-in-force actions, we want to focus on what is currently the law.  I also think if we have continuous vacancies, and someone has demonstrated their qualifications and has consistently received positive reviews, then in supervisory managerial roles there needs to be not so much flexibility for agencies to just be canceling certificates of eligibles or just leaving vacancies open when we know we have got people who applied that appear to meet the qualifications for the position. 

Thank you both.  I appreciate the time, and we appreciate your service to the Nation.  Thank you. 

Mr. TADSEN.  Thank you kindly.

Ms. HERSETH SANDLIN. I now invite the second panel to the witness table.  Joining us on the second panel of witnesses today is Ms. Beth Moten, Director of the American Federation of Government Employees (AFGE); Mr. Cliff Guffey, the Executive Vice President for the American Postal Workers Union (APWU); Mr. Brian Lawrence, Assistant National Legislative Director for the Disabled American Veterans; and Mr. Rick Weidman, Executive Director for Policy and Government Affairs for the Vietnam Veterans of America. 

Well, evidently Mr. Weidman wasn't able to meet with us today, so we will move right to Ms. Moten.  You are recognized for 5 minutes.  Thank you for being here, and thank you for your written testimony.  Again, your written testimony will be made part of the record in its entirety, and we look forward to your summation.

STATEMENTS OF MARY JEAN BURKE, FIRST EXECUTIVE VICE PRESIDENT, NATIONAL VETERANS AFFAIRS COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; C.J. "CLIFF" GUFFEY, EXECUTIVE VICE PRESIDENT, AMERICAN POSTAL WORKERS UNION, AFL-CIO; AND BRIAN E. LAWRENCE, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS

STATEMENT OF MARY JEAN BURKE

Ms. BURKE.  Thank you.  Ms. Moten wasn't able to be here today.  So I am Ms. M.J. Burke.

Madam Chairwoman, Members of the Subcommittee, thank you for inviting AFGE to testify today.  Being a union officer and a physical therapist at the Indianapolis VA Medical Center gives me a unique ability to understand veterans' vocational needs during the recovery process and as employees try to advance their careers once they return to civilian life.

The Federal Government should be a role model for all employers in this country not only when it comes to hiring practices, but also for career advancement and placement of qualified employees in leadership positions.  Veterans' preference rules must change with the times.  Currently veterans' preference rules only apply to Title 5 positions or positions covered by the Veterans Employment Opportunity Act.  There are roughly 85,000 Federal employees in the VA who are covered by Title 38.  More recently, the Department of Defense and the Department of Homeland Security have put in place their own personnel rules.  Therefore, we urge Congress to expand current civil service protections for veterans to cover employees under all personnel systems.

Veterans' preference rules must also change as the nature of military service changes.  For example, members of the Guard and Reserves are being redeployed more often and for longer periods than in the past.  Therefore, they are particularly disadvantaged by the fact that veterans' preferences does not currently apply to promotions and transfers.  For example, a Title 5 employee working in my medical hospital as a biomedical engineer technician is in the Reserves and is activated.  He perhaps then earns preference status through this new military experience.  When he returns to work at my hospital, this additional status is of no help to get him promoted or transferred. 

Our employees in the Reserves and Guard deserve better.  They deserve a civil service system that recognizes their own personal sacrifice.  Only through my personal experience at the Indianapolis VA Medical Center have I come to realize something about today's veterans and their employment options.  At one point in my life, I assumed that people with Bronze Stars and Purple Hearts were set for life financially, that their record would ensure them a decent wage and good benefits.  The reality is many of these veterans at the VA who fold our sheets, mop our floors, repair our air conditioners and fix our wheelchairs have exemplary military records, but what they, in fact, rely on is their Federal employment to give them a consistent living wage, health and pension benefits.  And even though most of these jobs are lower skilled, they find tremendous satisfaction in caring for other veterans. 

Currently the Federal Government does not have the tools it needs to see how well its policies are working to promote veterans employment.  There is a ready-made model that the government could use to monitor veterans employment practices:  Management Directive 715, which currently tracks race, age, national origin, disability and gender trends in Federal employment.  This report could be easily expanded to include data on veterans in the Federal workforce. 

Finally, those who are making hiring decisions and those who decide how to rate an applicant's past work experience for qualification purposes need more training to ensure that military service is properly recognized and uniformly applied.  I have been troubled by the lack of consistency in rating decisions.  I have seen very little guidance from VA central office about this very important function for fair treatment of veterans and employment. 

For example, there have been complaints by veterans who have worked as medics in the military who felt they were unfairly denied step and/or grade increases when being rated as a licensed practical nurse.  We have similar examples by other occupations. 

This concludes my testimony, and I would be happy to answer any questions for the Subcommittee. 

Ms. HERSETH SANDLIN. Ms. Burke, thank you very much.

Ms. BURKE.  You are welcome. 

[The statement of Ms. Burke appears in the Appendix.]

Ms. HERSETH SANDLIN. Mr. Guffey?

STATEMENT OF C.J. "CLIFF" GUFFEY

Mr. GUFFEY.  Madam Chairwoman and Members of the Subcommittee, I am Cliff Guffey, Executive Vice President of the American Postal Workers Union, AFL-CIO, the APWU.  I am proud to say that I am a 10-point veteran.  I was a member of the Marine Corps in 1968 and 1969.  My President, William Burrus, was a member of the 101st Airborne, and with me today is Steve Raymer, our Director of the Maintenance Division, and he is also a Marine Corps veteran. 

It is no coincidence in my mind that those of us who are willing to fight for the rights of our country are also willing to fight in our workplace for the rights of working employees, veterans included.  Postmaster General Potter recently reported that nearly 25 percent of the postal employees are veterans.  Among postal workers of my generation, the numbers and percentages of veterans in the Postal Service has been higher. 

The fact that large numbers of veterans are employed by the Postal Service tends to obscure the fact that Postal Service effort on behalf of our veterans is not as strong and beneficial as it should be.  There has been a continuous decline in the number and proportion of its workers who are veterans.  This trend is particularly significant in light of the large number of veterans, particularly disabled veterans, who are returning from fighting in the

Middle East .  The Veterans Administration has reported that our returning veterans are suffering levels of unemployment and homelessness that I am sure the Committee will agree are not acceptable. 

According to the Veterans Administration, the reality is that unemployment usually affects younger, less experienced workers than most, and that includes young veterans who are attempting to enter the civilian workforce after they are discharged from the military service.  The VA estimates nearly 200,000 veterans are homeless on any given night, and nearly 400,000 to 1 million veterans experience homelessness each year.  Conversely, one out of every three homeless men who are sleeping in a doorway, alley or box in our cities and rural communities have served in our military. 

While great efforts have been made to provide housing, these have not been nearly enough.  More importantly, our veterans need good jobs, good-paying jobs, a living wage with adequate fringe benefits.  Studies show that gainful employment with a living wage with the opportunity for advancement is the foundation for maintaining economic stability and reducing the risk of homelessness. 

There is no doubt that the Veterans' Preference Act has provided important assistance to veterans, but this assistance is not as effective as it should be.  Perhaps the largest problem is that veterans are not aware of their veterans' preference rights.  Neither the military nor the Veterans Administration nor the Postal Service is doing enough to inform veterans of their veterans' preference rights. 

In our experience, the vast majority of veterans are not aware of their rights.  Even knowing their rights under the law will not really assist veterans unless the Postal Service makes an effective effort to inform them of employment opportunities.  Veterans who are informed of their rights and also informed of the available postal positions are more likely to gain U.S. Postal Service (USPS) employment because they have access to the entrance exam upon discharge.