The U.S. Equal Employment Opportunity Commission

Transcript

PRESENT:

CARI M. DOMINGUEZ Chair
NAOMI C. EARP Vice Chair
LESLIE E. SILVERMAN Commissioner
STUART J. ISHIMARU Commissioner

ALSO PRESENT:

BERNADETTE B. WILSON,
Program Analyst

LEA GUARRAIA,
Chief Operating Officer

NICHOLAS INZEO,
Director, Office of Field Programs

JAMES LEE,
Deputy General Counsel

PEGGY MASTROIANNI,
Associate Legal Counsel / Parliamentarian

This transcript produced from audio provided by the U.S. Equal Employment Opportunity Commission.

PROCEEDINGS

CHAIR DOMINGUEZ: The meeting will come to order. Good morning. On behalf of my fellow Commissioners let me welcome everyone to the Equal Employment Opportunity Commission. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting. We appreciate your joining us today as we discuss a topic that is important to all of us, the proposed repositioning of our field offices.

At this time, I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting. Ms. Wilson.

MS. WILSON: Good morning, Madam Chair, Madam Vice Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience of the guidelines governing the public's conduct which are posted outside of the room. As indicated there, questions and comments from the audience are not permitted during the meeting. We ask that you carry on any conversations outside the meeting room and if you need to depart and re-enter that you do so quietly as possible.

Also, please take this opportunity to turn your cell phones off or to vibrate mode. During the period April 21st, 2005 through July 7th, 2005, the Commission acted on 12 items by notation vote, approved litigation on nine cases, approved revisions to the Freedom of Information Act fee schedule, approved a resolution honoring Esterine Cosby and approved amicus participation in Meachum v. Knolls Atomic Power Lab.

Madam, Chair, it would be appropriate at this time to have a motion to close a portion of the next Commission meeting in case there are any closed agenda items.

CHAIR DOMINGUEZ: Thank you, Ms. Wilson. Do I have a motion?

COMMISSIONER ISHIMARU: I so moved.

CHAIR DOMINGUEZ: Is there a second?

VICE CHAIR EARP: Second.

CHAIR DOMINGUEZ: Any discussion? Hearing none, all those in favor, please say "Aye".

(Aye)

CHAIR DOMINGUEZ: Opposed?

(No response)

CHAIR DOMINGUEZ: The motion carries. The ayes have it.

We're meeting today to deliberate and vote on a Repositioning Plan that is designed to do a number of things, among them, enhance our enforcement presence and service delivery, improve the efficiency of our operations and reduce or eliminate expenses that threaten the financial stability of the Commission. This is what every mission-connected organization strives to do. This is what taxpayers expect of the government and this is what the President has asked of each federal agency. Specifically, he has asked each agency to develop a repositioning plan that is customer centered, performance driven and results oriented.

This plan accomplishes those objectives by providing the Commission with much needed efficiency and flexibility to adapt to shifting conditions in the workplace. Over the past three years, the Commission has been engaged in a comprehensive review of its operations and organizational framework. We've had a lot of input from a lot of sources, both internal and external. Predictably, the comments have run the gambit reflecting a diversity and divergence of views and competing interests that are represented among individuals and stakeholder groups. Faced with the impossibility of finding consensus in such an environment one might consider just doing nothing, preferring inertia to take hold.

But President John F. Kennedy, one of our great visionary leaders, put it best when he said quote, "There are risks and costs to a program of action, but they are far less than the long-range risks and costs of comfortable inaction". For me, doing nothing is not an option because the consequences are too dire to ignore. We can no longer afford a house that was built in the 1970s for 3800 employees on a budget that over time has come to support an occupancy rate of 2400 employees.

We can't continue to lose line professionals such as mediators, litigators, and investigators while feeding a structural design heavily laden with management layers no longer necessary in a high tech world. The Commission structure is an outdated liability. It was created before the telecommunications revolution and other watershed advances in organizational efficiency and before discrimination shifted from bold and overt to subtle and sophisticated. EEOC is not yet a member of the National Historical Preservation Society, though we aspire to be some day when we're no longer needed.

For now, we have to remain a vital, dynamic, compelling force with a mission to eradicate discrimination and its infrastructure has got to help, not hinder that effort. Driving a Model T Ford on the information superhighway, no matter how cute, quaint or expensive, simply won't work. We have a stewardship responsibility to utilize our limited resources as efficiently and effectively as possible. Streamlining will improve lines of authorities, enabling us to expand coverage and enhance efficiency. Realigning our resources and strengthening our investment in front line, customer-driven activities will better enable us to serve the American public.

We must insure that we maintain and vigorously enforce our laws while operating within our means without fear of furloughs or forced layoffs. I have said from the beginning that every effort would be made to maintain EEOC's presence and to preserve a job for everyone. This plan does that. And while I can certainly appreciate that each individual and stakeholder may look at this plan through their very unique lens, guided by their role, position and perceived personal impact, ultimately it is the sum of the parts, the common good, what must guide any public process.

President Bush has exhorted all who answer his call to public service, not to come into these jobs just to mark time, but to make progress. I know that today we are making progress. I want to thank all who have participated in this effort, either by offering suggestions or by working through the suggestions that have been offered. You have been a very critical part of this process.

I've asked our Chief Operating Officer, Lea Guarraia, I've asked our Director of the Office of Field Programs, Nick Inzeo, and our Deputy General Counsel, Jim Lee to present this plan. Following their presentations, we're going to have statements and comments, questions, deliberations, by the Commissioners. And at this time, I would like to ask Lea Guarraia to please come up and actually, all three of you can come up, and, Lea, please begin.

MS. GUARRAIA: Good morning, Chair Dominguez, Commissioners, General Counsel, EEOC Managers and employees and all of our visitors today. I am Lea Guarraia, the Chief Operating Officer for EEOC. I am pleased to present Phase 2 of our Repositioning Plan. Phase 1 was, of course, the launching of our National Contact Center in March on a pilot basis which was, from all reports, and which is from all reports, off to a great start.

Phase 3, which will be forthcoming, will be the streamlining of our Headquarter's structure. Today, however, we are presenting Phase 2, the repositioning of our field operations. This plan is the culmination of several years of work, study, assessment and input. Our work began with a study of the Commission's organization by the National Academy of Public Administration in 2002. NAPA issued their report in 2003. Among the recommendations made by NAPA was a structure that would be made up of 10 lead offices. While we have decided to expand that number of lead offices above the number recommended by NAPA, we did follow their recommendations concerning communication and comment.

The report was posted on out external website and we had an e-mail response process. Every employee of the Commission was given the opportunity to comment on the report and its recommendations. Also in 2003, a day-long Commission meeting was held to receive additional input from our employees, managers, the union and other interested stakeholders. In 2004, a repositioning work group under the leadership of the Vice Chair and former Commissioner Paul Miller, was convened. This work group had representatives from all levels of staff at EEOC, both Headquarters and field.

All of the Commissioners were briefed on the work group's final report. Throughout this period, Chair Dominguez has visited many, if not all of our field offices to get the views of our employees on a number of issues, to include repositioning and, as the Chair noted, we have kept our stakeholders, OMB and various Congressional committees and subcommittees informed as to our progress. Without question, this has been the most open, transparent, and inclusive restructuring process in the history of the Commission, and I dare say, in the history of any administrative repositioning of any of our sister agencies.

Through all of this we heard several things from our staff and our stakeholders, "Do not close offices, do not reduce your level of service, do not cut staff", and we have listened. Our proposal closes no offices, preserves a job for every EEOC employee, actually expands our presence to those areas where we do not have -- have had offices previously and will allow us to increase the number of front line staff while reducing costs. We heard the concerns that were raised and we have addressed every single one. As the Chair began this process, she set down a marker and made a pledge to the employees of the Commission, no offices will be closed, no jobs will be lost, there will be no reduction in force and no furlough.

And by this plan she has kept those promises. We are in a situation where we must right-size the Commission to operate effectively and efficiently within the resources that we have today. The current Commission structure was created almost 25 years ago when the Agency had a staff of nearly 3800 employees, not the 2400 that we have today. As will be discussed in more detail, this proposal fits the size of each EEOC office to the work it must perform. There will be 15 district office directors and 15 regional attorneys. The Commission is expanding its number of field offices from one to nine and we'll also have 15 area offices and 14 local offices, two of which are new offices being established to respond to the growing population of workers in Mobile, Alabama and Las Vegas, Nevada.

This repositioning will give the Commission a total of 53 offices, enabling us to increase our presence and still reduce costs. This plan flattens our overall management structure and results in a more logical alignment of our offices. This plan will allow us to redeploy 70 to 80 staff to front line positions and to fill 20 new positions in addition to the already 130 positions that have been authorized over the past year, most of which have been assigned to our field offices.

Will this all happen at once? No. What the Commission will be voting on today are the necessary changes to Orders 110 and 120 which define the mission and functions of our offices and their structure and the geographical boundaries of each office. Upon approval, we will move to the implementation phase. We realize there are many details to be addressed, and these will be addressed over time as we move toward full implementation.

I know that there has been some concerns that all of this is going to happen in one fell-swoop. This is not the case. We will insure a transition phase that is adequate and sufficient for proper implementation. This change will not adversely affect the public access to the Commission. They will continue to reach the Commission and be served by our staff at an even higher level of customer service. Throughout this effort we have been sensitive to the concerns of our employees and our stakeholders. To be frank, we had a number of proposals before us that were far more drastic than this plan, plans which would have required the closing of offices or the laying off of employees.

We were certainly aware that some agencies have been forced to take this route; the Civil Rights Commission, MSPB, GSA, OPM and the Office of Special Counsel to name a but a few. However, we were determined to find a way to make the necessary adjustments to our structure without doing that and we believe we have been successful on many fronts - by relieving grade compression, opening up new opportunities for promotion and management and expanding our presence to our constituencies and creating a right size organization that results in operational consistency through a stronger, leaner management team.

Since this proposal was announced in May, we have reached out to interested parties about the plan, received their input, addressed their concerns and answered their questions. We have held numerous briefings for our Commissioners, Congressional members and staff, stakeholder groups and our own office directors so they, in turn, could advise their employees. We have posted a wealth of information on the Commission's internal and external websites to include answers to questions generated by interested groups and the transcript of a public forum that was held on June 23rd of this year.

We provided e-mail boxes for the receipt of comments from both the public and our own employees. We received approximately 137 comments in total, including 83 from members of the public and organizations, including the union, 55 comments from our own employees out of 2400 of our employees. All of the input has been received and has been carefully assessed. As the Chair mentioned, some changes to the original proposal have been made as a result of that input. Let me summarize briefly what those changes are and then Nick and Jim will expand upon those as needed.

EEOC Order 110 has been further edited to clarify the role of our Regional Attorneys and Legal Units and to provide that any of the program functions performed in the field may be performed and continue to be performed in the field in area or local offices depending on the workload needs. The relationship between our district offices and state and local Fair Employment Practice Agencies, otherwise known as FEPAs has been clarified by providing that each FEPA will have a relationship with only one district office for the purposes of administration of its FEPA contract and EEOC file review of its cases.

This is reflected on a FEPA map that shows all states except three states that are split under our current repositioning remaining whole. Five counties in California have been under -- had been under the Fresno local office but they are closer to the San Francisco office than Fresno and therefore, will be moved to the jurisdiction of the San Francisco office. Four counties in Northeast South Carolina will be moved back to the jurisdiction of the Charlotte office. The entire upper peninsula of Michigan will be moved back to the jurisdiction of the Detroit office.

And four Central Ohio counties around Columbus, Ohio will be moved back to the jurisdiction of the Cleveland office and three Southern Ohio counties will be moved to the jurisdiction of the Cincinnati office. And lastly, two of the three Delaware counties and five Pennsylvania counties, including Lancaster and York will be moved from the jurisdiction of the Philadelphia office to the Baltimore office. Four Western Pennsylvania counties will be moved from the Philadelphia office to the Pittsburgh office.

Before I turn this over to Nick, Director of the Office of Field Programs, and Jim Lee, Deputy General Counsel to say a few words, I would like to mention one additional thing. I said that we began this process by commissioning a study by NAPA in 2002. We have kept NAPA advised of our actions since the report was issued in 2003. Just this week, we received a letter from the President of NAPA, Morgan Kingshorn, a letter that has been shared with all of the Commissioners. In his letter, Mr. Kingshorn notes that it is clearly necessary that we resize our field staff to our current size and that our proposal appears to be consistent with NAPA's recommendations and presents a creative way to maintain and even enhance the Commission's presence while providing for necessary efficiencies.

We agree with that assessment and think this is a good plan, one that will meet the needs of the Commission, its employees and the public we serve as we continue into the 21st Century. I thank you, Commissioners and Madam Chair. Nick, let me turn it over to you, please.

COMMISSIONER ISHIMARU: Madam Chair, before we turn to Nick, could I ask that the letter from NAPA be placed in the record right now so we can see the whole letter, so the public can see the whole letter from NAPA?

CHAIR DOMINGUEZ: Could you table that until we have the presentations because we would need to get into a discussion on that?

COMMISSIONER ISHIMARU: Sure, absolutely, sure. Okay.

CHAIR DOMINGUEZ: And you would have to make it in the form of a motion.

COMMISSIONER ISHIMARU: Okay, well, we could agree to do it without a motion.

CHAIR DOMINGUEZ: No, we really can't because there's a lot of other letters that have come in and, you know, they're not really part of the official record, but let's table that for discussion.

COMMISSIONER ISHIMARU: Surely.

CHAIR DOMINGUEZ: Thank you. Thank you very much, Lea. At this point, let me ask Nick Inzeo to proceed.

MR. INZEO: Thank you, Chair. Good morning, Chair, Vice Chair, and Commissioners. My name is Nicholas Inzeo, the Director of the Office of Field Programs. I've worked with the Chair, Lea Guarraia, the Chief Operating Officer, and Jim Lee, the Deputy General Counsel, in preparing this repositioning proposal for your consideration. I also want to acknowledge the enormous help of Ralph Soto of my office, who served on the Vice Chair's repositioning task force and made himself available to me and other agency managers as a key resource in preparing this proposal. Ralph and Cynthia Pierre, the Director of Field Management Programs are here today to assist in answering any questions that may arise. One of the most important reasons to be here today is to obtain a decision of the Commission on the Chair's repositioning proposal. As an agency, we have taken a long time thinking about and considering repositioning.

During that time, speculation and rumor, much of it unfounded, created considerable concern among employees and stakeholders. Agency managers expressed to me their desire to have a decision made. By making a decision, those concerns can be placed behind us and we can focus on our mission of eliminating employment discrimination. As soon as it became apparent to EEOC employees and managers that repositioning efforts were to begin we heard the question, what is the business case for repositioning? To me, the business case for repositioning is the enforcement of this nation's laws banning employment discrimination.

We have to insure that we have as many resources as we can muster to enforce the law. The President has asked each agency to prepare a repositioning plan to be more customer centered. OMB Bulletin 0107 has defined this requirement to mean in quote, "Deploying resources to direct service delivery positions and using workforce planning to flatten the federal hierarchy". As the Chair so clearly articulated at a recent meeting with state and local fair employment practices agencies' directors, when EEOC received supplemental appropriation in 2002 averting a furlough, Congress and OMB required additional financial reporting and a repositioning plan from EEOC. The Office of Management and Budget and the Congress assess agencies and approve budgets based on how well each agency has performed. During the current fiscal year, we saw the list of government programs that were cut or eliminated and government agencies that had to absorb significant cuts because their programs and structures were not customer centered and results oriented.

EEOC cannot afford to be on that list of agencies. An EEOC that is customer centered must be structured around where the workload is located. This proposal looks to EEOC workload as the major criterion in deciding where EEOC offices should be located and what size they should be. Our largest offices should be where our largest workloads are. In order to make sure that everyone is served, from San Juan, Puerto Rico to Honolulu, Hawaii, we must insure that the size of each office and the size of our staff in each office are appropriate for the workload.

Reuben Daniels, Jr., who served as Acting Director of Field Programs appeared before the Commission at a meeting in September 2003 to urge the Commission to reduce the span of control of Headquarters Program Offices and expand the span of control of District Directors. As many as 25 offices reported to the Office of Field Programs. That span of control was too large and did not allow for effective communication nor for consistent operation. This proposal balances the span of control by reducing to 16 the number of offices reporting directly to field programs and general counsel. The District Directors and Regional Attorneys in the 15 EEOC District Offices will have expanded workloads and expanded geographic responsibilities.

This proposal insures that the budget that OMB and Congress approved for EEOC will be well and wisely spent. Perhaps more importantly the proposal also provides additional resources for enforcing the law. By flattening the management and administrative ranks, we should be able to deploy up to 80 staff to front line positions with responsibility for investigations, mediation, outreach and litigation.

In announcing this proposal to EEOC field managers in May, the Chair indicated that the next phase of repositioning will be to look at the Headquarters structure. The Chair articulated her goal to reduce the Headquarters operation by 20 percent and to redeploy those resources to front line positions. Both the redeployment of field management and administrative staff and the redeployment of Headquarters staff will enable us to provide better service to those individuals who come to EEOC.

The Chair has made it clear that the repositioning plan must also be employee friendly. First, no EEOC office will be closed. In fact, we will add two local offices in Las Vegas, Nevada and Mobile, Alabama. Second, under this proposal, no EEOC employee will lose a job, be forced out through a RIF or Reduction in Force or will be forced to relocate geographically. As Lea indicated, we met with numerous stakeholder groups, briefed congressional staffs, and received numerous comments about this proposal. As a result, some refinements were made to the plan.

Let me emphasize one change. Two weeks ago we met with the state and local Fair Employment Practices Agencies, the FEPAs in Atlanta, Georgia at our annual meeting with them. Some FEPA representatives had a concern with the proposal because it called for the jurisdiction of some states to be split between different district offices. Having had the opportunity to discuss those concerns with the Chair, the Commissioners and other Commission officials, we have modified the proposal so that both contract administration and the substantial weight review process would be performed by one District Office. Our relationship with the FEPAs will not create any additional split states.

As I indicated earlier, I believe the enforcement of the law is the clearest commitment that a Chair and the entire Commission can make. By protecting EEOC's workforce and utilizing our staff more efficiently, this proposal will help us to protect the nation's workforce. Thank you, Chair.

CHAIR DOMINGUEZ: Thank you very much, Nick. At this point, let me ask Jim Lee to please proceed.

MR. LEE: Thank you, Madam Chair. Good morning, Madam Chair, Commissioners. I am James Lee, the Deputy General Counsel. I wish to thank the Office of the Chair and the Office of Field Programs for the consideration they have shown to the program responsibilities of the Office of General Counsel in the development of the Chair's repositioning plan. In order for the litigation program to operate effectively as possible, it is essential that a decision be made by the Commission on the Chair's proposal.

Based on my discussion with Regional Attorneys and many others, attorneys in our field offices, despite assurances, have felt uncertain about the future. Your decision will permit our attorneys to know how the Agency will be positioned for the future and be free to concentrate on their enforcement efforts. Our commitment as an agency, must be to the public we serve. We must insure that we vigorously enforce the laws and make the best use of the resources available.

I realize that there are those who look back on our accomplishments and say, given how well we have done, why change? But the Chair's plan is not about the past. It is, as it must, look forward in order to position our agency for the future with a structure that reflects the new reality. The plan will enable us to provide effective oversight to a litigation program, at the same time, providing greater resources and flexibility to Regional Attorneys. Parity with District Directors will insure effective legal enforcement interaction. It will enable the Office of General Counsel to better utilize its resources and it will enable us to increase our front line effectiveness.

We, as an agency, will be better able to meet our obligation to enforce civil rights in the workplace. While recognizing the organizational improvements that will be brought by the plan, we in the Office of General Counsel recognize the personal impact on some of our colleagues. We will work with them to insure that their talents will be fully utilized by the Agency.

The first field restructuring I experienced was Chair Norton's. I was one of many trial attorneys who were RIF'd. As the Chair's plan moves the Agency forward without RIFs, office closures or forced relocations that have recently occurred at other agencies, and as I personally know, at EEOC in the past, is extraordinary. Just parenthetically, I had in one of the many Congressional briefings we conducted over the last several months had an opportunity to relive those days and memories with Delegate Norton, who curiously her memories were as vivid as mine of that time and her efforts to place the Agency in a position to do our work as we must again, make those efforts today.

During the comment period, we worked with our Regional Attorneys on both changes to the plan itself as well as a strategy for implementation. The modifications to Order 110 clearly spell out the authority of Regional Attorneys over all legal operations in the District and their reporting line to the General Counsel. Language was added to make clear that lawyers may be stationed at any EEOC office. As we go forward, the Office of General Counsel is committed to fully utilizing the talents of all our lawyers. OGC is confident that the Chair's plan will position us to be able to vigorously enforce the statutes well into the future. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Jim Lee and Nick. I appreciate very much your presentations this morning. And now we'll have the opportunity for statements or questions from my fellow Commissioners and let me begin with Madam Vice Chair.

VICE CHAIR EARP: Thank you, Madam Chair. Good morning, everyone.

ALL PARTICIPANTS: Good morning.

VICE CHAIR EARP: The idea that change is the only constant has been a truism of life since at least 500 BC. In the modern world, when change involves one of the three R's, Reorganizing, Re-engineering or Repositioning, there is a great opposition, consternation and fear. What is it about change that fosters such fear? For one thing, some people just don't handle change well. Many of us just don't want to change our way of thinking, acting, being or doing. We have routines and patterns and habits that give us security. Think about something as minor as wearing your watch on the other hand and how uncomfortable that would make you feel.

Routines and familiarity keep us comfortable. Change makes us very uncomfortable. Another dimension of change that is often imposed -- change is often imposed from the top down. When change is discussed, whether in business or government, people at the top see the big picture. They are the visionaries, while others in the organization tend to feel threatened or manipulated. Because they're not at the top seeing it from that view they may feel as though they have no control over the changes coming. Even when everyone agrees that some change is necessary, many people simply fear the unknown and those people want every "what if" possibility vetted before moving on. They want certainty, they want to keep the comfort level that they have and finally, they want time to adjust to the change that's coming.

The repositioning proposal before us for a vote today presents a challenge, because it requires a combination of inner and outer change. Under the proposed paradigm, EEOC employees and our stakeholders will have to go through an internal shift in some of their values and expectations. This is combined with external shifts in behavior associated with some change in our processes, in geographical boundaries and in ways of doing business. To insure there is a foundation for the proposed change, whether one agrees or disagrees, substantial work has been done beforehand. Whether one agrees with it or disagrees with it, some of the foundational work came from disinterested third party organizational development professionals. They don't have a dog in this fight.

Much of the work was performed by and reviewed by experienced and well-respected career EEOC staff who love this agency, love it and would not allow any harm to come to an agency that they have devoted their lives to and as surprising as it may seem, some of the foundational work that helped to pave the path to where we are today was actually bipartisan in nature. The Miller/Earp repositioning work group was the vehicle former Commissioner Miller and I sponsored so that we could hear from a cross section of diverse, multi-disciplinary employees from different districts who could work out recommendations with a minimum of self-interest. The working group had nine members, including a District Director, a Regional Attorney, a Deputy Director, Investigator, Enforcement Manager, two Program Analysts, an Administrative Judge and a state and local Coordinator.

The working group met in January and March 2004. The group was charged with developing criteria to be used to reduce the number of EEOC District Offices to 10 and 11 in accordance with one of the recommendations in NAPA. Without necessarily believing that there was a need to change, the working group took its task very seriously and identified 11 District Offices that could effectively function as a geographically expanded or what we called then mega-district. Each of those 11 Districts are encompassed in the proposal we will vote on today, in addition to four other Districts.

Neither Commissioner Miller nor I viewed the working group's effort as 100 percent perfect. The working group preferred not to change anything, not one thing, about the way we are currently structured. But they knew that options had to be explored and they did an excellent job of objectively, to the extent that they could, evaluate how the field could be repositioned. I want to thank the members of the work group, once again, for demonstrating what I believe is the most creative way to handle change in an organization and that is to work together and not work against each other.

Despite the working group's effort and all the foundation-building that has gone before, there was still a cry for more time to review, discuss and comment. Frankly, I am disappointed at how the additional time for comment has been used. I was frustrated and saddened by the overall quality of comments submitted during the run-up to this meeting. After the huge push for additional opportunity to comment, the majority of comments from staff and stakeholders alike contained little or no substance.

I wasn't surprised to see comments in opposition because the general rule is that those who oppose something are most vocal. What I found personally disheartening is the lack of constructive criticism and real alternatives to how we can improve our field operations in a climate of diminishing resources. I expected more from an agency with such a rich legacy and I expected more from our supporters. Disagreement is to be expected. Profound change is never perfect and is rarely, if ever, without resistance. In many organizations when change is eminent, there is a sense that the good old days will be lost forever but I think it was Billy Joel that says the good old days weren't really all that good.

But good old days is not the legacy of EEOC. Employees here in this organization have created new theories and new approaches to fighting discrimination when we didn't even have enforcement powers. When the backlog became intolerable, staff came up with new ways of handling the charges. We pushed the envelope of creativity in this agency. I was expecting to see some of that innovation and thinking outside the box apply to improving service delivery in a time when our resources are so slim. Instead, I and my fellow Commissioners, waded through many comments simply saying the proposal won't work, but a few suggesting how the plan might work better, and even fewer that suggested alternative ways in which we could improve the way we deliver services and become overall more efficient.

Some of our staff and many of our stakeholders have missed a golden opportunity. Today, after all of that, we are at a decision point. I believe that a decision maker must listen and consider all points of view, then simply make the best decision that one can make based on the best available information at the time. All decisions of this magnitude are with the understanding that course corrections can and should be made as necessary.

Are there things that could have been done differently? Probably. Should we continue to try to build trust around this plan? Yes, by all means. I for one, do not believe that the proposal before us is a panacea. It is not the perfect cure for all that ails us. However, I believe the proposal promotes greater consistency, uniformity in our field operations. It increases our presence and it provides a blueprint for the future. It closes off rumors and it deals with uncertainty. I am persuaded that the broad outline is a sound management tool with the details to be worked out later.

CHAIR DOMINGUEZ: Thank you, Madam Vice Chair. Commissioner Silverman?

COMMISSIONER SILVERMAN: I believe that we're here today for an important reason. The Equal Employment Opportunity Commission is in need of change. We've operated under the same structure for over 25 years. As our fixed costs rise, our budget has not kept pace and it has become increasingly difficult to maintain this organizational structure. In recent years, the fact is we've been able to get by through frugality, a virtual hiring freeze and attrition. Consequently, this agency has been stretched incredibly thin which, combined with staffing imbalances caused by attrition, results in an overall form that is beginning to resemble Swiss cheese.

Despite this adversity, the EEOC has make do. In fact, our staff has done better than make do. They have done a fantastic job under difficult circumstances. But I, for one, recognize that the Agency cannot continue on this path indefinitely. If we do not take action, in time, our holes will increase, our services will begin to diminish and our impact as a law enforcement agency will suffer. For the past three years, our Chair and her staff have been searching for a solution to this dilemma, a solution that would allow the EEOC to carry out its lofty mission of securing equal opportunity in the workplace while living within its means.

Over the same period, we heard repeatedly how closing even one of our offices or RIF'ing even one member of our workforce would be tantamount to rolling back civil rights, that we would be signaling to the world that the leadership of this agency doesn't care about the fight against discrimination. And in the two months since the Chair's original repositioning plan was first disseminated, we've heard feedback from our staff, our state and local FEPA partners, community groups and others making suggestions and asking questions. I'm happy to see that as a result of this input, the Repositioning Plan has been revised and improved in numerous ways.

And so the Chair ultimately settled on the Repositioning Plan that is before the Commission today. This plan tries to address issues raised by employees and our stakeholders. Obviously, as the Vice Chair said, there's no one plan that will satisfy everyone's concern, but I believe the revised plan has addressed many of these concerns in thoughtful and rational ways. Most importantly, the plan before us is customer focused, insures that our offices serve our customers where they live and where they work. This plan allows for every office to stay open. Indeed, it even calls for expanding our presence by eventually opening two additional offices in locations where there is a great need for our services. And this plan guarantees that every member of our workforce will have a position with the Agency.

The plan before us today will allow the Agency to continue on by redeploying some of our existing staff. Instead of closing offices or cutting back on our staff, we are choosing to flatten our management structure to better reflect the size of our workforce. As you've heard, the last time this agency made any significant changes in its field structure was in 1979. At that time, the EEOC employed nearly 1400 more people than we do today. As our workforce has contracted, our organizational structure has remained intact. I think one would be hard-pressed to find an organization in either the private or the public sector that it's reduced its workforce by nearly one-third, while keeping its organizational structure exactly the same.

And let's not forget that the world has changed in many ways over the last 25 years. While many of us think back wistfully to the days where our work and leisure time were not constantly interrupted by mobile phones, e-mails and the like, the fact is, that computers, the Internet, fax machines and other technological advances allow supervisors to manage broader territories from afar in ways that were positively unthinkable in 1979. Moreover the proposed changes should allow this organization to serve the public more effectively. Fewer district offices will mean that our agency will be better able to streamline our operations, have greater consistency in our approach and place us in a better position, in a position to better harness our limited resources.

We have a plan before us today with 2005 in mind. It takes into account where we are now and where we are likely to be in the future. It provides us a road map that will allow us to continue carrying out our mission, one that will, in time, save money and allow us to truly live within our means. Now, I also recognize that while the changes we make will have a positive impact on the Commission overall, this plan will impact many of our employees in the short-term. Jobs will change, titles will change and for some, these changes will be difficult and painful.

It's my fervent hope that this Agency will do everything in its power to assist these individuals to make a smooth transition and that we can create new opportunities to fully utilize each affected person's talents and skills. For example, we recently received a heartfelt memo from the eight displaced Regional Attorneys to our General Counsel. The memo discussed their thoughts about how they could contribute most effectively if the Repositioning Plan is approved. I hope that we will give this -- give serious consideration to their ideas as well as the suggestions that the other employees most directly affected by the Repositioning Plan put forward.

Although I believe in repositioning the Agency, I do have some questions about the plan before us and how it will be implemented assuming the Commission approves it today and I'm pleased to have this opportunity to ask questions. Are we doing opening statements and then coming back and --

CHAIR DOMINGUEZ: Yes.

COMMISSIONER SILVERMAN: Okay. Thank you.

CHAIR DOMINGUEZ: Thank you, Commissioner Silverman. Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair, Leslie, don't worry, I won't steal your question time. I think we'd be somewhat remiss if we didn't note the other happenings in the world today. Yesterday's attack in London, I think, took all of our breath away and I know my colleagues and I certainly send our best wishes to the people of London and knowing what it was like in those hours and days after September 11, how scared people are. So I wanted to note that.

I want to thank the Chair for calling this hearing. This is great that she did it. I would note for the record that this frankly, is the first hearing or meeting of the Commission that's been called since my very first week here in December of 2003 when we did a hearing on mediation. Since then, I've been forced to request meetings as is within my powers and I've done that and I've said at these meetings that unlike some of my colleagues, I believe public meetings are a good thing and that our meetings are not the theater of the absurd.

The Commission does its best work in public and when the issues we consider are aired in public. So I'm glad we're here today to talk about the Chair's plan to reposition the Agency and that the meeting on May 16th was postponed 20 minutes after it was supposed to have started. The public response to that attempt to cram the plan through without disclosing the details of the plan to the public should not have been surprising. The original schedule was fundamentally unfair to the public, to the stakeholders and to the employees of the Commission.

The criticisms and questions concerning this reorganization plan raised by stakeholders and employees are well-taken. Although there have been some very small changes, which have not been disclosed to the public, the proposed Field Repositioning Plan remains seriously flawed and should not be approved. The business case justifying the details of repositioning have not been made. From a cost savings perspective, an efficiency perspective, an enforcement perspective and even a process perspective, this proposal cannot be credibly justified. Change for the sake of change does not improve our ability to enforce anti-discrimination laws. It does not move us closer to our goals of improved efficiency and better customer service. It does not make us a model employer.

Our political representatives, stakeholders and employees should rightfully, be proud that they forced this process to become more inclusive. The message should be clear and remembered. When it comes to major changes in the pre-eminent civil rights enforcement agency in our government, those changes cannot and should not be done behind closed doors and announced as a fait accompli. Our stakeholders would not stand for it.

I hope that my colleagues have learned from this process that public review of our decisions and plans is not something to hide from. Indeed, it is simply part and parcel of our jobs and it makes our work product better. The administration of the Commission should not be by decree but rather with the support, ideas and input of those with whom we work and serve. For every major change, for every plan, we should expect to include stakeholders and a wide range of employees in the creation, implementation and decision. We should, as a matter of course, make the data that supports any changes publicly available. It should not take a plea from me and, in fact, given that this information that I asked at the question and answer forum be placed on the Internet site and it was not, I find very disturbing. And I also find very disturbing that the final plan was not placed on the Internet site, nor was it released to reporters when asked.

From this plan, we should have made available all of the information as limited as it was, that was provided to the Commissioner's including changes to the plan. We should not have played hide the ball. Public input will only make our plans better and this plan that is before us, is better as a result of opening the process. The comments we received have forced boundary changes. The descriptions of the functions of various offices have changed so that there is more flexibility and an understanding that the work should drive staffing, not the label of the office.

The affected employees have more -- have had more of an opportunity to learn about their options. Some of our FEPA partners' concerns regarding contract administration have been addressed. Because the public part of this process only came about through the insistence of our stakeholders, rather than as part of the original plan, the public process was very limited and inadequate. We should have had a public meeting to hear feedback on this plan, not to have the Chair call a question and answer forum during a week when our FEPA partners were at a long scheduled conference in Atlanta and our colleagues from the Plaintiff's Bar were at their annual convention in Philadelphia.

If our stakeholders and employees had been involved from the start and given the information and data they needed, we might have seen a very different plan, one that would have truly improved the agency. The current plan does not address basic issues within the Agency and will not bring about improvements in our enforcement of these fundamental laws. Forty years ago this week, the EEOC opened its doors, exactly one year after President Johnson signed the landmark Civil Rights Act of 1964 into law. Just over a year ago members of this body went to the White House to commemorate the 40th anniversary of the Civil Rights Act with President Bush. As Commissioner Miller and I sat in the front row, we heard President Bush say, "The Civil Rights Act of 1964 gives all Americans another reason to be proud of our country. The work of equality is not done because the evil of bigotry is not finally defeated. Yet the laws of this nation and the good heart of this nation are on the side of equality". And as Dr. King reminded us, "We must not rest until the day when justice rolls down like waters and righteousness like a mighty stream".

I'm proud to have been appointed to this office by President Bush and I agree with him that the work of equality is not done because the evil of bigotry is not finally defeated. We need a strong and effective EEOC, an agency that carefully and openly shepherds the public funds entrusted to us, targeting illegal discrimination for elimination throughout the land. And let me state at the outset, like my colleagues, I'm not opposed to change. As I told our colleagues at our all-employee meeting both last year and this year, I believe change can be good. Repositioning done right can give us a chance to improve our customer service and better fulfill our mission. But to fulfill our mission, I believe we must first define our mission and identify our customer. I believe our mission should be law enforcement, enforcing these important statutes.

Management generally, and the President's management agenda specifically, are important and necessary but we cannot lose sight of our mission in the name of management. So much of this repositioning has been justified as fulfilling the President's management agenda but the management agenda is not about restructuring the agency for restructuring sake. As President Bush said in the introduction to his management agenda, "What matters in the end is completion, performance, results, not just making promises, but making good on promises. In my Administration that will be the standard".

Performance, results both are good, I support that but measured from what? What is our mission? Is our mission to process charges and to close our cases or is our mission to root out discrimination wherever we find it? As I have said many times before, the Chair's five-point plan is a good one, but in order for it to work it must be premised on strong mission implementation and a strong litigation program. Strategic enforcement cannot be an after thought or low priority.

Now, who's our customer? I believe that our primary customer has been and must continue to be the persons protected by our statutes, persons subject to illegal discrimination. Our primary customers are not -- our friends from the business community, the businesses we regulate or law firms or anyone else with an interest in the work we do. While educating entities of their responsibilities under the law is important and will help stem discrimination, I believe that these entities are not our primary customer. We should be first serving those who have been subject to illegal discrimination.

With any restructuring proposal for this Agency, we should be looking at how our offices are balanced and whether there is a proper ratio between investigators, lawyers, management and support staff. We should be looking at how we are serving under-served areas. We should be looking at demographic trends. We should be looking at how headquarters fits into the mix. We should be looking at whether districts are properly configured. If they are, they need a full-time director to run the office. We should not limit our analysis to the charge activity in the office. Charge activity is a useful and important measure but it is clearly not the only measure of workload, yet in the Repositioning Proposal before us, it is.

Our highest priority at the EEOC must be enforcement of the statutes we cover but I've discovered in my time here enforcement is too vague a term. Everyone is for enforcement but to me enforcement of Civil Rights Statutes implicitly implies quality enforcement in all areas, outreach, charges, conciliation and litigation. As a proposal in front of us shows, to some enforcement simply means meeting a number, the number of charges closed, the number of cases filed, but never considering the quality. A simple, yet profound illustration of our differences between us has been the move to use telephonic hearings over the parties' objections in federal sector cases. Yes, instead of having a hearing in front of an Administrative Judge as had been the longstanding practice, hundreds of cases have been transferred to San Antonio and are being adjudicated through the sole use of telephonic hearings. That's right, even if one or both of the parties object, for these federal cases, the only recourse the parties have is to adjudicate over the telephone. Telephonic hearings certainly improve our numbers, we can process more cases and close them out quicker, but it does not serve the goal of quality.

Yet the use of telephonic hearings is not only encouraged, it is rewarded. Because quality enforcement is what I value, that is the perspective that I use to evaluate this proposal and as a whole, this repositioning proposal simply does not move us toward that goal. The Chair's plan fails on too many fronts. Before I talk about specifics, let me share a short tale in a fine tradition used by my friend, the Vice Chair. And believe me, I haven't tried this as you hear the tale.

Apparently, if you place a frog in a pot of cold water and slowly turn up the heat, and then keep heating the water until it's boiling, you can kill the frog without it ever jumping out of the pot, but if you try to put that frog in a pot of boiling water, it would immediately jump out. Is the EEOC a frog in a pot of water with a fire lit underneath? First, we've out-sourced functions to a call center. Now, we're being asked to vote on changes to the field structure of the Agency. We're told that the Chair is working on changes to the headquarters. I'm not mentioning all the smaller changes to the Agency, many of which I'm not privy to. My friends, it's not too late to jump out of the pot. We are on course to weaken the Agency and our ability to enforce anti-discrimination laws. We should not move forward with the Chair's plan.

Let me make a number of points about the Chair's plan. It will decrease our presence around the country. We are downgrading successful offices, reducing their size, removing their authority to approve litigation and essentially, insuring that experienced staff will leave soon. It will decrease the quality of our litigation. Those Regional Attorney's losing their jobs will, perhaps, go to new ones in the Agency, another layer of review for litigation will be added to these offices and undoubtedly some of our most experienced attorney's will leave. In fact, the Plan counts on the fact that they will leave.

It is in the leaving of senior personnel that leaves the majority of the cost savings the plan claims. Once the senior person leaves and the money is saved, there is no guarantee that these people will be replaced by attorneys if these positions are filled at all. I fear that this proposal is simply setting our litigation programs up to fail in a manner reminiscent of the call center decision. In the call center case we did not hire replacement -- to replace administrative intake or investigator positions, complained when the offices could not return calls promptly, and then out-sourced the function.

It is not hard to see that the remaining Regional Attorneys being told that they are not competently managing all of their litigation units, leaving to the dismantling of these units in certain offices. It will not improve our Southern offices. The Chair's plan does not meet the goal of moving us towards quality enforcement because it will further hamper our ability to enforce anti-discrimination laws in the South. It is not an over-statement to say that this Agency exists because of race. Race discrimination was the key impetus for the enactment of Title VII and we are a product of that statute.

The states that have the highest percentage population of Blacks in the nation are Mississippi, Louisiana, South Carolina, Georgia and Maryland. This reorganization does nothing for these states. The New Orleans and Baltimore offices are being downgraded and the Atlanta and Birmingham offices are having their reach extended without seeing an increase in personnel. Our work in some of these states desperately needs help. In the past few years the number of race litigation cases from our Atlanta and Birmingham offices which covered Georgia, Alabama and Mississippi have been close to non-existent.

Louisiana has been slightly better and Maryland has been much better, yet both are rewarded in this restructuring by being downgraded. You would think that the lack of numbers, the last year Birmingham brought just one race case and Atlanta none, would come to the attention of those who care about the numbers and it has. As I started to ask questions about what we're doing in the South, I surprised no one. Everyone knew there was a problem.

It would seem that this repositioning would be an excellent time to address this issue but that would be talking about quality and quality is not the focus of this plan. Of course, there will be some who argue that it has been addressed by a number, one new office in Mobile. But that office will be staffed with the smallest compliment of investigators possible and these will not even be new hires. Meanwhile, the Birmingham office will have to -- will also be given additional geographic territory to cover. This is no way to address the problem.

I fear that race discrimination is not important enough for the management of this Agency. As many of you know, there's a chapter on race discrimination for our compliance manual that is awaiting Commission action. This is an important document. A Commission meeting on it, will allow us to highlight the importance and hear from EEOC experts and outside authorities on how we should be focusing our efforts on race. In April the National Urban League released its 2005 report on the state of Black America. One of the places that Blacks lag the most compared to Whites is economics. While the White unemployment rate has fallen to 4.7 percent, the Black rate has remained at 10.8 percent.

In February, I thought we had a consensus on the Commission that there would be a Commission on the compliance manual within the month. Unfortunately the Chair said she had other priorities and could not get to it. I found that unfortunate. I cannot state this simply enough. We are the Federal Government's civil rights enforcement agency. Race must be one of our leading priorities in all our actions. We must commit resources to training. There's no money in this plan for training, for training of displaced employees, not a single dollar. How can we realistically say that we are committed to successfully placing employees in front line positions if we don't locate the resources to get people trained and ready to do the job? How can we run an effective agency and how much of a commitment to training do we have if we spend, as we do this year, just $30,000.00 on investigator training and $50,000.00 on lawyer training for all of our investigators and lawyers nationwide? Yet we spent $30,000.00 for the all-employee meeting at the Mayflower Hotel, an unknown amount to bring in top managers for a meetings at the Sofatel Hotel and over $100,000.00 on a trip for managers to tour the Contact Center in Kansas City. We need to spend more money on training our front line employees.

This plan being considered today should include a Headquarters component. This plan does not increase our ability to offer quality enforcement because it does not use cuts or changes in Headquarters to help the field. Again, there is a number. This is a three-part plan, with the Headquarters being last. It seems elementary that the Headquarters/field dichotomy helps no one and ignores that resources people and ideas flow from both and that we work for the same agency. There should have been one cohesive proposal that moved us forward towards being one agency. The Vice Chair talked about the plan that she and Commissioner Miller, the task force that she and Commissioner Miller headed up consisting of employees of the Agency.

VICE CHAIR EARP: [laughingly] It was a working group, let's not misrepresent what it was.

COMMISSIONER ISHIMARU: Indeed, indeed, I would not want to do that. It was a work group which received some funding to bring people in. I thought it was a useful group and I'm glad you and Commissioner Miller did that but I don't want to mischaracterize this. Thank you for doing that.

And as she noted, the work group made explicitly clear that they did not believe that a business case had been made for reducing the current number of District Offices, and therefore, do not recommend that the current number of District Offices can be reduced. They also found that they had not received information that would have justified drastic measures such as reducing the number of current District Offices. Budget information was not presented to show how much money could be saved from repositioning into 10 or 11 mega-offices. If budgetary considerations drive the need for repositioning in the field, the work group said, that the Commission should know the amounts of savings. We'll talk about that in a minute.

I wish the Miller-Earp Report was made public and posted on our website and it was not but I do find what they found in 2004 true today. The business case for this plan has simply not been made. We received numerous letters and e-mails from members of Congress, employees and other stakeholders telling us that they had serious concerns about the content of this proposal and could not understand the rationale for the decisions that have been made. The proposal was of so much concern that 201 members of the House voted to include language in our appropriations bill that would have restricted us from reducing the number of full time officers or employees serving as supervisors, management officials, mediators, examiners, investigators or attorneys as part of repositioning. In fact, we just received a letter dated July 6th, signed by 30 Senators opposing the plan because they believe it will undermine the Agencies to serve the public and I believe we received a letter from six members of our authorizing committee in the House giving the same concerns.

The financial case has not been made. First, the plan provides what can only be described as diminimus savings. According to the document we received, it is anticipated that the plan will save $4.8 million over eight years. There were reports that the savings were closer to 8 million but that takes into account a reduction in rent costs that would occur regardless of restructuring. 4.8 million is two tenths of one percent of our budget for eight years, assuming a budget of $330 million a year for the next eight years. $4.8 million is less than the estimated cost of the two-year National Contact Center Pilot Program.

Six hundred thousand dollars, which is $4.8 million broken down over eight years, is less than the amount the Chair wanted to carve out of the FEPA contracts for her own discretionary fund. When I questioned that fund, the money was returned to the FEPA contract which we later approved. This shows that 600,000 is the amount of money that can appear and disappear in the budget around here without any consequences. But in reality, the Plan will save us far less than even $600,000.00 a year. The accounting we received did not include the cost of salary increases for two SES-level managers who it is expected will be in charge of outreach and ADR or increased travel for Regional Attorneys, District Directors, Administrative Judges, ADR Coordinators, Program Analysts and state and local coordinators. A conservative estimate of these costs would be at least $200,000.00 a year. It did not include training for employees who will be placed in new positions or the cost of creating and carrying out the repositioning plan.

Obviously, given the structure of this agency, the place to look for financial and managerial savings would be at headquarters. Although we have been promised a headquarters restructuring plan, any such proposal has yet to be shared with the Commissioners, the public or employees. Field repositioning would make more sense and probably receive a better reception had it been accompanied by a plan that looked to headquarters for financial and personnel savings first or at least at the same time.

It defies common sense that this negligible amount of savings is the driving force behind this proposal. The case for repositioning based on charge intake numbers have not been made. I've been informed that the primary consideration for determining the designation of office levels was based on charge intake and geographic proximity. Reliance on charge intake data is the wrong measure on which to base a structuring proposal. Litigation, mediation, outreach, federal sector work, the resolution of the charges, the office's ability to manage all of the charges it receives, the quality of the work once the charge is accepted, common industries in the district, existing relationships with our FEPAs or community groups, individual performance of current staff, none of these criteria mattered.

So under the Plan we have offices with excellent litigation programs, such as Milwaukee, Baltimore and Detroit, which are being downgraded and in Milwaukee's case to an area office which traditionally does not have a substantive legal presence. Meanwhile we have offices that have not brought more than a handful of cases maintaining the status of a District Office. The Agency's reliance solely on the number of charges filed flies in the face of both the NAPA report and common sense. The NAPA report stressed that the Agency must look at its human capital and reward its high-performing employees. Instead we are downgrading high-performing employees and offices based primarily on one number. In fact, in an e-mail I received from a Regional Attorney stated that the Regional Attorneys have been assured that the downgrade was quote -- was "based on geographic location and not on managerial performance or the effectiveness of any particular litigation programs".

In other words, "Perform well at this Agency and you may lose your job; perform poorly and you may not". The fact that the only number that matters is how many charges walk in the door also sets up a perverse system of incentives for employees. We are sending the message that from now on any office that does not want to be downsized or wants to become bigger should take charges from anyone, even if they do not fit the requirements of the statutes we enforce and dismiss them the next day to increase their apparent workload. We are not sending a message that offices and employees will be rewarded for promptly and courteously responding to a potential charge, effectively counseling charging parties or conducting thorough investigations. What we care about is the number of charges. These are the wrong messages to be sending to our employees and our stakeholders.

Finally, the business case for this proposal has not been made because the proposal does not improve the enforcement of anti-discrimination laws will further hamper our efforts in the South. Our Agency's most important assets, I believe, are our employees. Often our best employees are the most experienced. The stated goal of this proposal is to eliminate some of those employees. The minimal cost savings are to result from eliminating some SES and higher graded positions. Eliminating these positions leads to the EEOC losing experienced people through attrition or retirement and replacing them with less experienced individuals. Also the Plan decreases our ability to retain our best employees who want a realistic possibility of obtaining a higher graded position. Our ability to hire and retain our best employees is particularly important in the South where widespread employment discrimination on the basis of race continues to exist yet the Federal Courts are hostile to employment discrimination lawsuits and the discrimination in many instances are much more subtle.

Fear of change has been mentioned many times but it is the amount of change and the importance of the thing being changed which dictates how much study is necessary. I'd be happy to change the watch to the other arm, except it's down on the table right now, but I certainly wouldn't remodel my house without being sure that it would be the best fit for my family.

I also think it's wrong to label employees and stakeholders as frightened or chastise them for a lack of creativity. Employees and stakeholders would embrace change if the case for this change had been made. It has not. They would have helped make a real plan if they had been given the data and the information and they have not. I want to point out for the record how much information we received on this plan in writing. We received back in May, a week before the meeting was originally scheduled to happen, a packet of information. It consisted of a three-page cover memo from the Chair that resembled the "Dear Colleague" letter that the Chair sent to Agency employees.

It gave us two maps showing us District boundaries that was also posted on our Intranet site. It gave three pages of organizational charts showing how the new offices would report to the District offices which, I believe, has also been posted. It gave us three pages of cost data, one page of which was posted on the website. It gave us the text of the proposed Orders 110 and 120 and it gave us three pages of workload data, a modified version of which was posted on our website, and that's it.

After three years of work by the Chair and her staff, there was no analysis, no justification, no nothing. Everything else was supposed to be answered during oral briefings and I did, in fact, receive a number of oral briefings and I appreciate the work that was done doing that.

In closing, let me talk to my colleagues here at the Agency. I want to thank all of you who responded to my "Dear Colleague" e-mail that I sent around soon after we received the original proposal that asked for feedback on the Chair's proposal. I received numerous responses. I found them thoughtful and confirming the commitment that I found in the employees of the Agency, a commitment to civil rights work that's gone on for 20, 30,40 years where people have dedicated their careers at considerable sacrifice to our work in this Agency all to further the noble cause of civil rights and anti-discrimination.

Thank you for your frank thoughts and thank you for responding to my call. I was pleased that so many of our colleagues felt comfortable to comment on the proposal but I was also struck by a note of fear in some of these messages, fear employees have of retaliation for speaking out and speaking up. I will keep your identities confidential and I want to hear about any forms of retaliation that may go on in the Agency.

This has been a tough process for all here in the Agency. For those colleagues directly affected by this proposal, who will lose their positions and their status within the Agency, my heart goes out to you. And frankly, I was deeply embarrassed on a most fundamental level when I learned at my first oral briefing on May 6th, that the affected District Directors and Regional Attorneys would be told in a general session about their fate the following Tuesday; not in private, not with the courtesy of some advance notice, but in a general session with their peers in a fancy hotel meeting room. And then they would be required to call back to their offices to break the news to employees back at the office over the phone. No warning, no preparation, just the facts back to the offices over the speaker phones.

This is no way to run the government's premier civil rights agency, especially one that deals with human capital. So on behalf of my office, let me extend our apology. I am truly sorry over how this occurred. We should not be marking the 40th year of the establishment of the EEOC with a field repositioning plan that will not bring us any closer to our goal of eliminating employment discrimination. The business case justifying this proposal on a cost-saving, efficiency or enforcement basis simply has not been made. Egregious employment discrimination continues to exist. As leaders and stewards of this Agency, we have the responsibility to protect and strengthen the Agency and not accept a proposal that is really just fool's gold.

I urge my colleagues not to vote on this proposal today and if a vote must be taken, I urge them to vote against it. I thank the Chair.

CHAIR DOMINGUEZ: Thank you, Commissioner. At this point, let me ask our fellow Commissioners to give them an opportunity to provide -- to ask questions of the panel members and let me begin with the Vice Chair.

VICE CHAIR EARP: Thank you, Madam Chair. I'd like to ask Nick and Jim Lee to respond to -- there's a lot of information that Commissioner Ishimaru has just shared and I'm aware, even though he speaks in a pretty rapid fire cadence, that quite a bit of it is just not true. And I'd like to ask you to the extent that you can today, to correct the record.

I know for one that the District Directors and the Regional Attorneys were not blind-sided about how the repositioning proposal was framed, that they had advance notice but if you could just start there and make the clarifications to the extent that you can and I'll make this one observation, that one man's frog in boiling water might be another girl's potential prince in a hot tub. So Jim, Nick, Lea, if you could.

MR. INZEO: Okay, I will start with, Madam Vice Chair, what you asked about -- and I can speak to the Directors. I had promised all of the Directors that they would not walk into a room and be blind-sided by an announcement and that I would tell any of them in advance if they or their offices would be affected. I kept that promise. None of the Directors walked into that room without knowing what would happen to them and their offices. They did get more details and let me -- one other matter I would like to address because it's been raised a number of times and that's the issue of how the Commission has addressed race discrimination matters, especially in the Southern cities.

Commissioner Ishimaru referred to one factor as far as I can tell, and that is the number of lawsuits filed. Both our Atlanta and our Birmingham offices do a great amount of work in the area. I look back and I know Jim looked back also, looking both at individual charge data and collective statistics. And looking at that data, our offices are working hard. I think they're working well which is not to say that we can't do better. You know, I think the Directors, the Managers, the employees, in those office can and should be proud of what they've done and they would be the first to tell you that they'd like to do more.

For instance, I mean, as part of the process of how EEOC is set up, we not only take charges and investigate them, we're required to attempt conciliation of those charges. It's only if conciliation fails that we consider litigation. So if a matter has successfully conciliated, then we would not consider litigation. In the Atlanta office in the last three years, in race discrimination charges, they have reached successful conciliations in over -- in 28 matters. The Birmingham office has successfully conciliated 37 race discrimination cases in two and a half years.

The amounts recovered for victims of discrimination has been high. In the Atlanta office it's over $24 million in that two and a half year period. In the Birmingham office, it's over $13 million in that two and a half year period. So I don't want anyone to be casting aspersions unnecessarily at the performance of our employees in those offices.

I think -- you know, I can't address what has happened this year or last year in terms of the filing of lawsuits, but I think that the employees in those offices have worked hard and will want to work even harder.

VICE CHAIR EARP: Thank you. Jim?

MR. LEE: Well, there was such an extensive litany, I'll only reply to it in general and welcome any specific questions you may have, Commissioner, but I wish to assure you, sir, that the Office of General Counsel has taken steps it deems necessary to address issues of performance in any office in which we view the quality of the work or the quantity of the work to be inconsistent with our mission and will continue to do so whether this Plan is adopted or not.

In 1979, as you heard, which was the last time this agency reorganized, there were six Regional Attorneys rather than 23. The number of trial attorneys that we have at present which are sufficient for the litigation that we are conducting, was the same at that time as it is now, so we've increased our number of top managers by more than three-fold over that period of time but the staffing on the trial attorney level is inconsistent with that. So any suggestion that diminution of Regional Attorney positions by one or more would result in an ineffective program is just not supported by the facts and I wish to assure you and all Commissioners and the public that we will have the resources necessary to conduct the Commission's business in a vigorous manner now and in the future. It will enable Regional Attorneys to have more flexibility without the fractionalization of staff as has existed and we will be able to utilize as Commissioner Silverman noted, our colleagues in various useful and productive ways.

I wish to assure you, sir, of that and I'll leave it for any other follow-up questions that you might have.

MS. GUARRAIA: Thank you. Thank you for asking the question. Thank you, Commissioner for your comments with regard to the administrative side of EEOC. Actually, your numbers are somewhat faulty, sir. The training last year in FY ‘04 topped a little over $400,000.00 in total for employees at the Commission and this year I have every expectation when the numbers come in at the end of this fiscal year, that they'll even be higher than that.

So quite of bit of resource has been placed in the care and training of our employees. In fact, one of the things that the Chair continually stresses is to have money there for adequate training and the education of our employees.

As to staffing, I would say that staffing has been critical and is one of the major -- or one of the reasons that we need to find a way to flatten our top layer structure so that we can, in fact, reinvest that into the resources of our investigators, our attorneys and our mediators.

VICE CHAIR EARP: Madam Chair, I would close my questioning just by acknowledging the truth of Commissioner Ishimaru's comments about the South being a continuing area of concern but I would caution Commissioner Ishimaru not to say and do things that would polarize our employees or even polarize our stakeholders by somehow holding out that race is more important or more substantial or something to be more concerned about than the other bases that we are charged statutorily to investigate and to litigate. In fact, months before Commissioner Ishimaru arrived at EEOC, Nick and I were talking about what is going on with race cases and what kinds of things do we need to do to improve service delivery in what appears to be an under-served area. So I acknowledge the importance of the work that we do there and work that needs to be done but would very, very strongly caution against anything that would be polarizing. Thank you.

CHAIR DOMINGUEZ: Thank you, Madame Vice Chair.

COMMISSIONER ISHIMARU: Madam Chair, a point of personal privilege, I think it's unfair, Madam Vice Chair to --

CHAIR DOMINGUEZ: Chairman, could you state the point of privilege, please?

COMMISSIONER ISHIMARU: I was -- the Vice Chair has misrepresented my position. I have not said that race is more important, I said race is an important factor and I'm not trying to drive a wedge into this issue.

VICE CHAIR EARP: I'm sorry, I apologize. I thought you said more important.

COMMISSIONER ISHIMARU: No, no, no, if you're trying to make that --

VICE CHAIR EARP: I withdraw it if I misunderstood. I just want to be clear that --

COMMISSIONER ISHIMARU: No, I appreciate that.

VICE CHAIR EARP: -- that we are aware of issues to be addressed.

COMMISSIONER ISHIMARU: No, no, I appreciate your concerns.

CHAIR DOMINGUEZ: And as a point of, another comment, another point is that the Vice Chair did have early discussions with me on the issue of color discrimination which is obviously another form of race discrimination and national origin discrimination. So I think the point is well-taken to the extent that there are issues that relate to race, but let's not belabor the point because --

COMMISSIONER ISHIMARU: No, no, I --

CHAIR DOMINGUEZ: -- because the point, in fact -- as a point of privilege, Commissioner, there are a lot of things in your statement that I would take the time to rebut but I won't at this time because the hour is getting a little late.

COMMISSIONER ISHIMARU: The Vice Chair has been very eloquent speaking on many of these issues and I just wanted the record to reflect that I am not trying to drive a wedge in this issue. I think the race work we do and should be doing is very important and I know she agrees as well that it's an important piece of the business –

VICE CHAIR EARP: I do.

COMMISSIONER ISHIMARU: -- that we have as do all my colleagues.

CHAIR DOMINGUEZ: Right, and I should add that I agree with that as well. As you noted in your remarks, we have had some conversations about it. It is a priority of mine; however, when we discussed in detail the proposal that you presented to me, there was no specifics for the proposal other than you wanted to travel to different cities a week at a time, so I really am looking forward to getting more details in terms of the specific travels and the purpose of those trips and I do hope that we have an opportunity to work together on that effort.
At this point, let me ask Commissioner Silverman to ask her questions.

COMMISSIONER SILVERMAN: Before I ask questions, I just want to make one more comment. I mean, I don't want anyone to think in this room or elsewhere that everyone up here does not care about the issue of race, we do. And in fact, I mean we have a race chapter holding that I think everybody here agrees with and we want to get out but it's being held because of what are we going to do in conjunction with that. And it would be great if we could just agree to get that out and then move forward with the training that could come along with it and those other things and whatever else. I don't think it helps to not keep it out and the other thing I just wanted to say is I also don't agree with your statement that we don't want to do things in the Sunshine.

Of course, certain cases and issues cannot be done in the Sunshine, but what I do object to is having hearings on one thing when we don't have a substantive problem with a particular thing. I mean, and there's been some of those and that's a different matter.

COMMISSIONER ISHIMARU: What do you mean?

COMMISSIONER SILVERMAN: We've actually had -- we've had situations where you haven't had a problem with the particular issue in front of you but other issues and you've used that opportunity to call a meeting and that to me is unnecessary. But I don't think that we shouldn't have meetings or that we shouldn't discuss things in the Sunshine. So that's my particular point on that.
I do have questions and as everyone sitting out there on this panel has known, I've had many questions throughout this process and comments and criticisms. But I have been pleased by many of the answers more recently. First of all, Lea, I have a question for you. Why did the EEOC decide to undertake the field repositioning before tackling issues at Headquarters?

MS. GUARRAIA: Thank you, Commissioner. Actually, it's the correct way to do management in the sense that Headquarters is here to serve the field. And the field should be aligned and structured in order for us to know how to proceed with the Headquarters structure. In other words, the way the Headquarters is formed is the best way to serve the way the field is operating. So you need to have a field structure first so that then you know how to look at the Headquarters to make that reflect that field.

COMMISSIONER SILVERMAN: Okay.

MS. GUARRAIA: Does that --

COMMISSIONER SILVERMAN: Why did -- for the panel in general, it seems -- why did we use the number of charges received as -- if this is true, as the primary basis of repositioning?

MR. INZEO: Commissioner, I don't know that I would necessarily say it was the primary basis. It was the major criterion listed in the Vice Chair and Commissioner Miller's work group report. And we used the work of that group in advising the Chair on her plan. In looking at repositioning, and with the goal of having more front line positions, it seemed to both -- to all of us that we wanted to have people where the work was going to be whether that work was investigating charges, mediating matters or litigating cases.

And in part, it's a question of EEOC spending its money in a way that's most effective for EEOC. You wouldn't -- I mean, I would not recommend having a huge management and administrative structure in otherwise a very small office, in an office that doesn't do a lot of work be it investigations, mediation, or litigation.

COMMISSIONER SILVERMAN: Nick, throughout this process I've heard you and others mention that an important consideration in designing the Repositioning Plan was to balance the workload. Does this repositioning plan accomplish that and if so, how?

MR. INZEO: Commissioner, I think it does and we look at it in two -- I look at it in two ways. First of all, looking at workloads of districts, and this proposal, I think, provides greater consistency in terms of the workloads of the districts meaning the workloads that Directors, Regional Attorneys, and other managers will be expected to manage and you know, use those charges as a way to enforce the law.

It also then provides, you know, a better and more consistent basis for outreach and other activities that the Commission does. We also, though, look at individual workloads of employees. So with this structure we will then begin the process of filling in the investigator, mediator, Administrative Judge and litigating attorney positions that we need to make sure that we have workloads that are comparable among all of the offices.

COMMISSIONER SILVERMAN: For the panel, have you identified the implementation issues that will arise if this plan is approved today and if so, how did you go about doing that, what are the primary implementation issues in each of your departments, and how do you plan to address these issues?

MR. LEE: I'll start, Commissioner. We formed a work group of Regional Attorneys, with -- including a number of affected regional attorneys, a number of regional attorneys who would be acquiring additional consolidated offices as well as regional attorneys who've had neither effect brought upon them and they have developed an implementation proposal and strategy which is presently under review. The -- among the questions that they addressed were the implementation timeline, the assignment of cases from offices that had originally begun them, to case recommendations that would be made during the course of the rest of this fiscal year to who would perform evaluations for staff, and a wide variety of issues. I found their work very productive and helpful as we go forward.

MR. INZEO: Commissioner, we have an implementation group made up of three District Directors, three Deputy Directors and OFP staff. And like the General Counsel's office, they've -- you know, they've identified issues, they've mapped out steps that they think that we should take in terms of implementing this plan. We will continue to work with them as we go through the process of implementing. One of the first challenges we faced was looking at all of the various electronic implements that are at our disposal, be they for business purposes, for HR purposes or for charge information purposes. And in working with all of those offices, we determined that we should use the beginning of the fiscal year as the time to really make changes in all of those processes rather than to try to do it you know, during July or August. So we will continue to work with the implementation group that we have, identify issues, work on the plan that they've outlined and work with them really to flesh out that plan.

COMMISSIONER SILVERMAN: I think I will turn the microphone over to Commissioner Ishimaru but I may have another question after, just depending. Is that okay?

CHAIR DOMINGUEZ: Okay, Commissioner, do you have a question?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. Lea, can you tell us how much the repositioning proposal cost to come up with, staff time, consulting time, bringing people in for the May meeting, the cost of the working groups, the various working groups that were --

CHAIR DOMINGUEZ: Commissioner, let me interrupt you on that. That's really not relevant to the issue before us at the moment. We're not prepared to discuss staff time and all of those things.

COMMISSIONER ISHIMARU: Well, but it's a fundamental budget --

CHAIR DOMINGUEZ: That has nothing to do with the MD 110 and the issues before us --

COMMISSIONER ISHIMARU: It's a fundamental budgetary issue --

CHAIR DOMINGUEZ: -- for voting.

COMMISSIONER ISHIMARU: -- Madam Chair and if --

CHAIR DOMINGUEZ: It is, but --

COMMISSIONER ISHIMARU: -- If you're unwilling to share with us how much this proposal that will save less than $600,000.00 a year has cost us to develop over the last three years, that's fine but it's --

CHAIR DOMINGUEZ: That's fine. It's --

COMMISSIONER ISHIMARU: -- it's clearly relevant and you can --

CHAIR DOMINGUEZ: Well, how is it relevant, please explain.

COMMISSIONER ISHIMARU: Well, it would be good to know how much --

CHAIR DOMINGUEZ: Tell me how that changes the issue before us for voting today. It has no relevance whatsoever, therefore, I find your question out of order.

COMMISSIONER ISHIMARU: I would ask the Parliamentarian for a ruling. How -- on what basis does she find it out of order?

CHAIR DOMINGUEZ: It is not germane to the issue at hand.

COMMISSIONER ISHIMARU: Well, we --

CHAIR DOMINGUEZ: Our panel is not here prepared to discuss all of the costs or any kind of time invested in the development, just like I'm not prepared to ask you how much time you've invested in the preparation for your remarks today.

COMMISSIONER ISHIMARU: Well, I invested a fair amount of time because my staff worked hard with me on this and –

CHAIR DOMINGUEZ: I'm sure they did.

COMMISSIONER ISHIMARU: -- and they actually produced something which --

CHAIR DOMINGUEZ: Well, which I will correct later, but that's not the issue right now.

COMMISSIONER ISHIMARU: That's fine. Well, then I will note that my question has been censored from the record.

CHAIR DOMINGUEZ: Yes, it has.

COMMISSIONER ISHIMARU: Thank you very much. When we're talking about workload, we're talking about private sector charge workload for the most part, aren't we? Would you characterize how the workload factor should actually be articulated?

MR. INZEO: Commissioner, the chart we provided you is the combined private and federal sector workload.

COMMISSIONER ISHIMARU: No, it was separated, though, in the chart you provided me. What was the primary driver? The chart that was released to the public showed a combined workload.

MR. INZEO: And that was the one we gave you, Commissioner.

COMMISSIONER ISHIMARU: No, the chart that you gave me separated it out between private sector workload and federal sector workload.

CHAIR DOMINGUEZ: You have both.

COMMISSIONER ISHIMARU: No, I understand I have both and my question would be -- my question would be, what side of the house do you consider the most relevant, the private sector or the federal sector?

MR. INZEO: I consider them both relevant, Commissioner.

COMMISSIONER ISHIMARU: But does one carry more weight when you were coming up with decisions?

MR. INZEO: I don't think so.

COMMISSIONER ISHIMARU: When you were determining whether to make an office a District Office, a Field Office, an Area Office or a Local Office, it's my understanding that it was based primarily on charge intake and secondarily on geography and federal sector workload. Can you tell us what the cutoff numbers were for each type of office?

MR. INZEO: Commissioner, in terms of any recommendations I would have made, there wouldn't have been any cutoff number.

COMMISSIONER ISHIMARU: But wasn't there a range of the number that was considered for each office?

MR. INZEO: In terms of the area -- in terms of the Local and Area and Field Offices, yes, you know, if we look at the workloads, I think they are -- there are groupings of workloads. You know, District Offices -- District Office location also depends on where offices are in the country. So –

COMMISSIONER ISHIMARU: Right, no, but my question is -- my question is, what number did you use as your basic number to determine the difference between a District Office, a Field Office, an Area Office, or a Local Office and you've said there are numbers. What are they?

MR. INZEO: None was used as a cutoff in that way. In terms of Local Offices, I think you'll find that Local Offices tend to have a workload of around 700 or less. The Area Offices tend to have workloads of 800 to probably around 14 or 1500. Field Offices would tend to have workloads 1400 or higher and then the District Offices would tend to be the larger offices in those geographic areas.

COMMISSIONER ISHIMARU: And is that, in your mind, an optimal number of charges given the staffing in these offices? No?

MR. INZEO: Commissioner, I guess I look at it -- I look at workload differently. We're -- our offices serve people who come to them with charges of discrimination. We then have to use our resources to conduct the investigations, the mediations, and the litigation that are necessary from that and try to muster our resources in a way that's most efficient for us. That's, I guess, how I would respond to your question.

COMMISSIONER ISHIMARU: I guess my question goes, though, to the optimal number of people in an office, though. Is the balance the way -- under the Chair's repositioning proposal has been presented to us, are the number of people who will be in an office if this plan is adopted, are those optimal numbers, the staff in the office? Are offices staffed at the level you would recommend they be staffed at or is it constrained by other considerations that have been laid on the table such as not having people move and people not losing their jobs and things of that matter.

MR. INZEO: From my point of view in terms of the enforcement side of the house, we could always use more people. We try to distribute the people as fairly as we can so that all offices can have manageable workloads. I believe the same is done on the litigation side of the house.

COMMISSIONER ISHIMARU: Nick, what's the optimal number or the expected number of charges an investigator is supposed to process?

MR. INZEO: It would vary and it could vary by the type of work that the investigator is performing. We can and do produce averages but we have some systemic investigators who work on larger cases. We have some investigators who are dedicated to the intake function. Their job is different from those who conduct investigations. So it really differs.

COMMISSIONER ISHIMARU: But when you -- you have performance goals that are placed on an office. What are those goals for investigators?

MR. INZEO: I don't have those with me. I mean, the goals we -- the goals we provide to offices are based on different levels of performance also. So the -- you know the expectations would be, you know, in terms of working proficiently, working above average, you know, outstanding, they would be at different levels. The goals that we have are given to the Director so that what we're expecting is that the Director will organize the work of the office to produce certain results and they then use their staffs in different ways.

COMMISSIONER ISHIMARU: Depending on the strengths of the personnel involved.

MR. INZEO: Right, right, to produce those results.

COMMISSIONER ISHIMARU: I understand that but what are those ranges?

CHAIR DOMINGUEZ: Commissioner, I need to interject here because I just don't see the relevance of this to the Repositioning Plan --

COMMISSIONER ISHIMARU: Well, Madam Chair the --

CHAIR DOMINGUEZ: We're happy to brief you on the subject of, you know, performance goals and program plans and all of the things that I know you have available, but I just don't see the relevance of this to the issue before us at this point, so we need to move on.

COMMISSIONER ISHIMARU: Frankly, Madam Chair, we're talking about how to allocate resources within the Agency and --

CHAIR DOMINGUEZ: Yes.

COMMISSIONER ISHIMARU: -- and what offices should look like.

CHAIR DOMINGUEZ: And you've had those briefings extensively.

COMMISSIONER ISHIMARU: And, again, Madam Chair, if you don't wish to provide that to me, I understand that and I'll move on.

CHAIR DOMINGUEZ: Yes, please. You --

COMMISSIONER ISHIMARU: Fine, I'll move on. Can you tell me whether individual performance had any role in the decisions on how to restructure the Agency? Did the performance of District Directors or Regional Attorneys, if they were doing a poor job, did that factor whether their office would be downgraded? No?

MR. INZEO: And, Commissioner, for the record, I don't believe there were any District Directors performing poorly.

COMMISSIONER ISHIMARU: Thank you, I appreciate that because I think when you have restructurings, one question always comes up, "Why was I affected". So I think it's good to get it on the record.

MS. GUARRAIA: Commissioner, I'd like to say one of the unusual hallmarks of this particular repositioning -- I've been around for a long time and many times you're right, repositionings or restructurings are geared around individuals. And this is one of the first ones that I've ever been associated with and I've been associated with more than I should maybe, that has not gone that route. Personalities were not the reason around which decisions were made.

COMMISSIONER ISHIMARU: And performance was not, it was based on --

MS. GUARRAIA: That's correct.

COMMISSIONER ISHIMARU: -- workload and your best judgment on how workload should be.

MS. GUARRAIA: And how to equalize that and continue moving forward to enforce the law.

COMMISSIONER ISHIMARU: I appreciate that. Thank you, Lea. You've said that one of the goals of the proposal is to reduce the number of managers and to put more people on the front lines. It's my understanding that many of our Regional Attorneys actually litigate cases in their Districts in addition to supervising the legal programs in the District Office. Given the Regional Attorney's actual front line work, what will happen to our litigation program when these individuals leave and are not replaced with attorneys of equivalent experience. And Jim, you've assured me both publicly and privately that the performance of our various offices will not decrease, but what happens when people leave?

MR. LEE: First of all, I'm unaware of what you're basing your assertion on that many Regional Attorneys are litigating cases. They may have involvement here or there along the way but in great part, their duties are managerial and directive. The question is, what happens when the people, I guess that you're addressing who would be performing other duties other than Regional Attorney duties leave, I take it, is your question.

COMMISSIONER ISHIMARU: Well, no, my question is, when people who are Regional Attorneys are in fact, litigating cases, what is the impact on the litigation program when those people who have the experience and leave because the position no longer exists? What will be the impact on your litigation program?

MR. LEE: Well, as I indicated to you, sir, it's not our understanding or intention that Regional Attorneys would be personally litigating cases. We staff litigation --

COMMISSIONER ISHIMARU: Wait, are you telling me that Regional Attorneys do not litigate cases or it's the rare exception?

MR. LEE: I'm saying to the extent that you're suggesting that Regional Attorneys personally carry a case load and litigate cases themselves that are normally litigated by trial attorneys yes, I believe that to be the exception rather than the rule. We staff -- and to the extent the resources permit us, based on the litigation workload of offices and consider the number of trial attorneys necessary to perform that function and would continue to do so.

COMMISSIONER ISHIMARU: So would it be fair to say that you do not expect any diminution of the litigation capacity by any departure of a Regional Attorney who may have been litigating a case? I don't want to put words in your mouth but I would like to get an answer to my question.

MR. LEE: Well, the answer is no, sir.

COMMISSIONER ISHIMARU: No, you wouldn't expect a diminution, you don't expect that.

MR. LEE: I thought that was your question.

COMMISSIONER ISHIMARU: Right.

MR. LEE: The answer is no.

COMMISSIONER ISHIMARU: All right, I just want to be clear. Is there an anticipation of creating Deputy Regional Attorney positions and if so, would litigation approval still have to be done by the Regional Attorney in the District even if there's a Deputy Regional Attorney?

MR. LEE: As I believe I've indicated, previously, litigation is approved either within the Office of General Counsel or to the extent it has to be approved by the Commission. Litigation recommendations pass through Regional Attorneys to the Office of General Counsel for our consideration. That would continue to be the case after the adoption of this plan.

COMMISSIONER ISHIMARU: Well, it's my understanding that most of the litigation caseload under the delegation plan that was approved by, I believe, a previous General Counsel, that most of our litigation is, in fact, approved by the Regional Attorney. Is that not correct?

MR. LEE: That's not correct, sir. Those cases are submitted by Notice of Intent to file suit and are not authorized to do so until the Office of General Counsel signs off on them.

COMMISSIONER ISHIMARU: But it's my understanding that the approval mechanism is a five-day wait period and then unless there's an objection raised by the General Counsel, the de facto decision is --

MR. LEE: At one point in time, sir, some years back, that was the case. It hasn't been for many years.

COMMISSIONER ISHIMARU: So under the current proposal, the Office of General Counsel, my friend, Mr. Dreiband signs off on all the cases except for those that are sent to the Commission?

MR. LEE: There are certain cases that are personally signed off by the General Counsel. Most notices of intent are handled by Litigation Management Services and our Associate General Counsel, Ms. Reams.

COMMISSIONER ISHIMARU: And within the Office of General Counsel, then, I've been misinformed and that the Office of General Counsel approves all --

VICE CHAIR EARP: Madam Chair, excuse me. Can we get a point of privilege?

COMMISSIONER ISHIMARU: Surely.

VICE CHAIR EARP: Madam Chair, I need a potty break.

COMMISSIONER ISHIMARU: I would have no objection.

CHAIR DOMINGUEZ: Yes, let's -- yes, I agree. Let's take a 10-minute break, please.
(A brief recess was taken.)

CHAIR DOMINGUEZ: Let's find our seats and try to resume. I know that some of you have lunch plans and unfortunately, we can't call in for pizza today, so let's go ahead and resume the meeting. Commissioner.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. So, Jim, thank you for your clarification on what happens in the Office of General Counsel. When I was at Justice, they didn't let me litigate, they just let me play with the paper, but the lawyers put up with me and I appreciate you putting up with me as well. Are we talking about creating a Deputy Regional Attorney position. Are those one of the issues on the table of how to accommodate displaced Regional Attorneys?

MR. LEE: That's the -- I suppose I would call that the working title, sir.

COMMISSIONER ISHIMARU: But --

CHAIR DOMINGUEZ: Commissioner, if I may interrupt, you're getting into the implementational components of this proposal which we're not -- there are a couple of implementation work groups that have been assembled but the purpose of this meeting is to talk about the design of the infrastructure, not to get into the details. And so again, that's really not connected with the issue before us.

COMMISSIONER ISHIMARU: Well, let me -- can I restate the reason for this question, Madam Chair, because a regional -- a Deputy Regional Attorney position at least in my mind, would create a mid-level manager that I thought one of the purposes of this proposal was trying to reduce the number of mid-level managers and I'm trying to see whether we, in fact, are flattening the structure or whether we're just calling a horse by another name.

CHAIR DOMINGUEZ: Well, there will be a litigation presence. They will have litigators at the field as well as the district as well as the area offices, so if that is your concern whether or not there will be --

COMMISSIONER ISHIMARU: That isn't my concern. My concern with this question was whether creating a Deputy Regional Attorney was, in fact, creating a manager who was between a supervisory trial attorney and the Regional Attorney and whether we, in fact, are creating yet another level of bureaucracy here and I -- if that's -- you know, I think given that we're trying to figure out whether this plan will reduce the bureaucracy which is its stated purpose or, in fact, will only shift the deck chairs. I'm just trying to find that out. And if you deem it not appropriate I will move on.

CHAIR DOMINGUEZ: I'll allow the answer, the question and answer.

MR. LEE: Well, that's one thing that's considered. It is certainly not a position that would exist in every office and it would only exist for a period of time. As Commissioner Silverman noted, there has been a number of suggestions that we've received from the group, many of which did not go to such a position but to other positions and other thoughts about how they could continue to use their talents in furthering the mission of the Agency. So that I would expect when all is said and done, that there would only be a few such positions that would combine litigation duties as well as some mix of managerial duties as well.

COMMISSIONER ISHIMARU: With the elimination of the eight Regional Attorney positions we further limit the opportunities for our trial lawyers and our supervisory trial lawyers to be trained by the experienced Regional Attorney and also reduce, I believe, the ability for lower level attorneys to be promoted. How will the lack of senior attorneys, the Regional Attorneys and the lack of advancement opportunities affect trial attorneys and supervisory trial attorneys in the Office of General Counsel?

MR. LEE: I think that there will continue to be opportunities for attorneys as they continue their tenure with the Agency. It may require, as it does in many other agencies, more mobility on the part of personnel than there has been in the past.

COMMISSIONER ISHIMARU: More mobility?

MR. LEE: In the sense that if you wish such a position, you may have to relocate to take it.

COMMISSIONER ISHIMARU: Can you tell me what's going to happen to the eight Regional Attorneys who are losing their positions in the downgraded offices?

CHAIR DOMINGUEZ: Let me interject. This is not germane to the repositioning plan. That is part of the implementation and I can assure you that those very valuable Regional Attorneys, we have had extensive discussions as well as you have, and they will be well taken care of but let's not belabor that.

COMMISSIONER ISHIMARU: Well, but I think it is important, Madam Chair, to ask the question what happens to these people, these people who are directly affected by their jobs. When I asked at the question and answer forum what happens to people who may not be equipped or would not want to become a front line person, I got an answer that indicated that we would find something for them and I'm trying to -- you know, I'm worried about the people who are being affected, and I know we all are, and to say that it's not appropriate for this meeting, that, I think, points to the fact that we should have had a meeting on these very issues, so we could have talked about it.

And if you want to stop me from asking the questions, that's your prerogative.

CHAIR DOMINGUEZ: Well, what I'm saying is that I have convened this meeting to vote on the Plan and not to vote on the implementation of the Plan which, obviously, will require a lot more work. However, having said that, the short answer to your question is nothing will happen to those individuals. They will continue to perform as attorneys. They may have a different title, but they will continue to perform. That's one of the markers that I have put down that no one will lose their jobs, everyone will continue to perform in those duties.

So the answer to your question is, that no one will lose their jobs and that they will continue to serve as attorneys.

COMMISSIONER ISHIMARU: I understand that but Madam Chair, what happens to a former Regional Attorney who no longer has that position and is now in a job as a supervisory trial attorney who, under our rules, can have a maximum grade level of 14. Will that person, after a two-year period, will that person then have to take a lower grade?

CHAIR DOMINGUEZ: No, the answer is, no.

COMMISSIONER ISHIMARU: Under what authority? How can you --

CHAIR DOMINGUEZ: Those individuals will be accommodated as appropriate. We've been working -- as has our Deputy General Counsel has been working with each one of them. Many of them have expressed a desire to pursue other things as well.

COMMISSIONER ISHIMARU: I understand, but I guess my specific question is if a person is in a job that cannot be supported by a higher grade level, are you saying that we will keep the person in a higher grade level indefinitely? Aren't we bound by OPM rules? Somebody must know the answer to this.

MS. GUARRAIA: We all know the answer to that, Commissioner. The rules are that under certain circumstances, you're right, the person that gets into a lower graded job is reduced after two years. There is also incumbency only rules out of OPM which allows an individual -- incumbency only means that as long as that person is in that position, they retain their grade and their pay until such time as they either vacate, retire or decide that they want to move on or accept a different grade if that's what they want to do for less responsibility. However, because of the way the Repositioning Plan is being designed, there will be new opportunities and other opportunities and any individual who is currently a Regional Attorney in an affected office or for that matter, any manager, including those managers that are currently SES Directors, have the ability to bid on other positions and may, in fact, just may, in fact, end up lifting the compression that we currently have and allow more mobility for employees and more opportunities.

COMMISSIONER ISHIMARU: So there will be opportunities for employees to go into these various openings that will exist around the --

MS. GUARRAIA: If that's their choice. Nobody is being forced to do that.

COMMISSIONER ISHIMARU: No, no, I understand that. So can I also interpret that to mean that all the vacancies that we have for all of these positions, including District Director positions, Regional Attorney positions, and new positions that will be created under the restructuring, that all of those positions will be competed and that people both inside and outside the Agency can compete?

MS. GUARRAIA: No, I didn't say that, Commissioner.

COMMISSIONER ISHIMARU: Well, no, I was asking the question. What will happen?

MS. GUARRAIA: Commissioner, I can't answer that. I'm the Chief Operating Officer, I'm not the Chair –

COMMISSIONER ISHIMARU: So the Chair will make a decision at some point in the future.

MS. GUARRAIA: The Chair has given me the responsibility as administrative head of the Agency.

COMMISSIONER ISHIMARU: No, I understand what the statute says about the Chair's powers. I'm fully aware of that but it goes to the Chair's decision making at a later point. That's all that I'm trying to say.

CHAIR DOMINGUEZ: That's right, and as the need arises and the opportunities arise, we will make the appropriate -- I can assure you that we all share your commitment to accommodate all those individuals who, you know, may be affected by this repositioning.

COMMISSIONER ISHIMARU: Could you tell me a technical question? If a person takes a position in another office, do they get moving expenses?

MS. GUARRAIA: It depends. If they want to take the move, they can take it without what's called PCS. Jobs have been announced in other offices and sometimes because of budgetary constraints, we say no PCS is offered, then it's up front and it's announced, and in other cases, if it's at the bequest of the Agency, then PCS can be offered.

COMMISSIONER ISHIMARU: Can be offered?

MS. GUARRAIA: Yes, sir.

COMMISSIONER ISHIMARU: But for the eight Regional Attorneys, if they take a job under one of these new job positions that --

CHAIR DOMINGUEZ: Commissioner, I am going to rule you out of order, because it has nothing to do with the demarcations on the Repositioning Plan, so please, I mean, I've allowed -- I've been extremely generous but I think we need to move on. It's really not germane to what the reasons that I've convened our Commissioners and I'm concerned we're abusing their time and the time of those all around us. If we continue..

COMMISSIONER ISHIMARU: Madam Chair, I am sorry, frankly, that for the first meeting you have called in nearly a year.. over a year and a half that you will not allow the courtesy of me to ask what I believe are fair questions and --

CHAIR DOMINGUEZ: And I appreciate the fact that you have called a number of meetings and I've learned as much about postage meters as I can possibly learn thanks to your generous efforts to create --

COMMISSIONER ISHIMARU: Now let --

CHAIR DOMINGUEZ: Let me just say this, that you have had ample opportunities to ask all of these questions privately as often as you would like and you know, and I think there's a point here where you need to be more respectful of other peoples' time–

COMMISSIONER ISHIMARU: Madam Chair, let me point out for the record, that I have received three briefings. The last briefing that I received was scheduled on an hour's notice and I rearranged my schedule to accommodate Lea and Jim and Nick. And that meeting, I was told, could last a half hour and we could take more time if we needed it. Our first meeting -- no, Lea, that's absolutely correct. We didn't need more time but you told me at the beginning of that briefing that Jim and Nick had one-half hour before they had to do something else.

At our first briefing, at our first briefing, it was one hour, one hour because people had other things to do and I appreciate that, but the fact that the Chair tries to lay out a scenario where there's been unlimited opportunities to get information is frankly flat out wrong.

CHAIR DOMINGUEZ: Well, within the context of your available time, Commissioner, I understand you've been on vacation for a few weeks and --

COMMISSIONER ISHIMARU: Well, Madam Chair so have you and I understand that we have not had to... could not do this at an earlier date because you were on vacation. I didn't want to bring your vacation into this.

CHAIR DOMINGUEZ: I didn't want to bring yours either.

COMMISSIONER ISHIMARU: You did, though.

CHAIR DOMINGUEZ: But that's to correct the record.

COMMISSIONER ISHIMARU: Well, thank you, Madam Chair, I appreciate that. I will refrain then from asking these questions that I believe go to the fundamental nature of what happens to our employees at the Agency. I will not ask those questions that the Chair believes are within her sole prerogative.

The proposal that the Chair has presented to us has two positions for the Office of General Counsel. What will be the duties of these positions and how will these positions be filled?

CHAIR DOMINGUEZ: We don't know at this point. Again, it's not related.

COMMISSIONER ISHIMARU: It's in the proposal, Madam Chair.

CHAIR DOMINGUEZ: It's not what we're voting on today, Commissioner. We're here to deliberate and vote on the plan as presented in the directives that you have been given. This is not --

COMMISSIONER ISHIMARU: I don't believe there's a motion yet on the table of what we are considering, so I would ask the Parliamentarian for a ruling because, frankly, it's not limited to Order 110 and 120. There is no motion on the table.

CHAIR DOMINGUEZ: That's the whole purpose of the meeting.

COMMISSIONER ISHIMARU: There is no motion on the table, Madam Chair, so the Parliamentarian can rule. There's been no motion and no second. We're having a discussion. Who made the motion?

CHAIR DOMINGUEZ: Well, the whole purpose of convening this meeting was to deliberate and vote on the Repositioning Plan as submitted to you.

COMMISSIONER ISHIMARU: I understand that.

CHAIR DOMINGUEZ: That's the whole purpose of this meeting.

COMMISSIONER ISHIMARU: I understand that, Madam Chair, but as a matter of parliamentary procedure, somebody would have had to have made a motion to consider this and then we discuss. There's -- I'm not sure how we could be limited by your very narrow interpretation of what the meeting is about and I'd like a ruling from the Parliamentarian.

MS. MASTROIANNI: Madam Chair?

CHAIR DOMINGUEZ: Yes.

MS. MASTROIANNI: A motion is not necessarily required under the manner in which the Commission operates.

COMMISSIONER ISHIMARU: What about under Robert's Rules?

MS. MASTROIANNI: What is before the Commission is the package that was distributed to the Commissioners which requires them to vote on the revisions to the two orders, 110 and 120. That is what is before the Commission. You're correct, there was not a formal motion. There generally is not, actually, when we -- when we conduct our meetings but that is what you all will be voting on.

COMMISSIONER ISHIMARU: Can I ask Peggy a question regarding --

CHAIR DOMINGUEZ: It depends on the question.

COMMISSIONER ISHIMARU: I see. No it's about what she said. The package as distributed to the Commissioners included specific information about these two new Office of General Counsel SES positions. And what I am trying to do here is to find out what these two SES positions will be, where they will be, what they will be doing and the Chair says that that's not within the orbit of what we're here to discuss. And you have said quite plainly that we are here to talk about the package that was distributed from the Office of the Chair.

MS. MASTROIANNI: I believe I said that the Commission is here to vote on the revisions to Order 110 and Order 120.

COMMISSIONER ISHIMARU: Well, I don't think the record will reflect that but I will withdraw my question.

CHAIR DOMINGUEZ: Thank you.

COMMISSIONER ISHIMARU: I hope you can answer this question. Will the District Directors and Regional Attorneys in the remaining -- in the District Offices under the Chair's plan have a certain amount of time committed to each office? I know when I've talked to Regional Attorneys, current Regional Attorneys, current District Directors, current personnel in our various offices, where people have been covering multiple offices, it was made very clear to me that District Directors who were covering multiple offices spent a significant amount of time in their other office, as well they should.

Do you anticipate or do you have a sense of how much time will be required by the District Director in these new areas of jurisdiction? Would it be say a week a month, half the time? Would it depend on the population? I hope that's an appropriate question to ask, Madam Chair.

MR. INZEO: Commissioner, let me answer that as to the Directors. Based in large part on the experience we've seen over the last couple of years where we have paired some Directors with two District Offices. Those Directors report that initially they spent what they would term a considerable amount of time. Now, in terms of your specific question, whether that's a week, a month or more or less, I couldn't -- you know, I couldn't quantify it further. But then as they became more familiar with the office and the office became more familiar with them, they found that it was less necessary for them to travel to the office, that they didn't do it on as regular a basis and you know, they could use opportunities for staff from other offices to come to the District Office or for other district office personnel to travel to the various area or local offices.

COMMISSIONER ISHIMARU: So the week a month is a guidepost from the beginning of a process and it's unclear how much travel might be required of various senior personnel, various management personnel.

MR. INZEO: I believe, though, Commissioner, we did give your assistants the information as to what the cost was for traveling by Directors to the other offices.

COMMISSIONER ISHIMARU: Right, no, that information was provided and I was just trying to get a sense of how much time a Director or other senior management personnel would be spending in other physical locations other than their main office and --

MS. GUARRAIA: Commissioner, I have the unique position of having been a District Director who had several offices when I was in Los Angeles. And --

COMMISSIONER ISHIMARU: Not a Las Vegas office, though?

MS. GUARRAIA: We did have Las Vegas as a matter of fact, but not an EEOC office there but we did have a FEPA there, which I chose to visit often. No, no, no, no.

COMMISSIONER ISHIMARU: I won't touch that.

MS. GUARRAIA: No, taken out of context, sir., it sounds bad. But seriously, as a District Director, and as the excellent core of District Directors that we have out there now, it's a very fluid situation and it really depends on what is going on and what the needs are in any particular office. There is no guidance or standard.

Anecdotally, I have talked to many of the Regional -- District Directors, excuse me, and a few Regional Attorney's too, but mostly Regional -- District Directors who have expanded their area of control and what I've gotten from them is a re-energized attitude toward the job and in fact, better statistics coming out of their offices and more team building. People get -- I don't care where they are or where they work, they get stale if they're not challenged and thank heavens, that our staffs have been able to rise to the challenge and, in fact, they've been doing a better job for it.

COMMISSIONER ISHIMARU: Thank you for that answer, I appreciate that. I'd like to ask, a number of federal sector cases because this obviously impacts on our federal sector work as well --

CHAIR DOMINGUEZ: Cases?

COMMISSIONER ISHIMARU: No, not cases but framework questions about how we deal with federal sector cases.

CHAIR DOMINGUEZ: Well, could you explain how that's related to the Repositioning Plan?

COMMISSIONER ISHIMARU: Well, there will be Administrative Judges within the various offices that would --

CHAIR DOMINGUEZ: Yes, as they are now, yes.

COMMISSIONER ISHIMARU: And the boundaries have changed as I understand it, so they will be dealing with new areas in many cases of federal sector cases. And there's also a question in my mind of when cases get transferred from one office to another because trying to equalize the workload, I'm trying to see whether this makes sense from a federal sector point of view as well. And you know, you can have a very narrow definition of what we're voting on today but I believe that the federal sector is an important piece of our work. I know we all do.

CHAIR DOMINGUEZ: Oh, absolutely.

COMMISSIONER ISHIMARU: And it would be -- you know, I'm trying to understand how this was considered by the decision makers who developed this plan and it would be helpful to ask what might happen in the future. So it's -- again, maybe it's best if you hear the questions and if you think they're out of order, we can deal with them on a question by question basis.

CHAIR DOMINGUEZ: Well, you said federal sector cases, so you got my attention.

COMMISSIONER ISHIMARU: No, no, sorry, sorry.

CHAIR DOMINGUEZ: That could be another whole meeting in and of itself.

COMMISSIONER ISHIMARU: Oh, no, and that I'm not looking to drag everyone through --

CHAIR DOMINGUEZ: Thank you.

COMMISSIONER ISHIMARU: -- for this afternoon.

CHAIR DOMINGUEZ: But I'll have Nick respond. I mean, my short answer to that is that I don't expect the AJ's whatever boundary delineations the Repositioning Plan has, should have no impact whatsoever on an AJ's ability to handle cases, but I'll allow Nick to answer that.

COMMISSIONER ISHIMARU: Nick, under the proposed reorganization, the Washington Field Office would become the largest federal sector office in the Commission. How will that office handle the increased case load given its historic backlog and the fact that it regularly has to transfer out a number of cases to other offices around the country?

MR. INZEO: Commissioner, I think consistent with the information that I supplied your office, we haven't transferred out any cases this year from Washington Field Office on the federal sector side and, in fact, we transferred in some cases to the Washington Field Office in the private sector side. The -- this repositioning proposal would affect the Washington Field Office by providing that they would handle the workload from Montgomery County and Prince George's County in Maryland, the two adjoining counties to the District of Columbia.

I think that with the really good work that the Administrative Judges in the Washington Field Office have been doing and that we've been seeing over -- for more than a year, that you know, as well as the -- you know, ability of our Administrative Judges in the Baltimore office who have also been doing a good job, that we'll be able to handle that workload quite easily.

COMMISSIONER ISHIMARU: Do you -- when cases are transferred from office to office, do you anticipate -- how do you anticipate them being processed, in as good a manner as they would in the original office?

MR. INZEO: Generally speaking, I'd say yes.

COMMISSIONER ISHIMARU: Will there be hearings in these transferred cases, AJ hearings?

MR. INZEO: Where they should be, yes.

COMMISSIONER ISHIMARU: And do you see an increase in the use of telephonic hearings or video conference hearings?

CHAIR DOMINGUEZ: Commissioner, again, this is not germane to the issue at hand. Where or how an AJ chooses to handle his or her workload, really has little bearing on -- has no bearing whatsoever on the issue before us. That's really their -- you know, based on the merits of the case, that's within their domain to decide. I think to have Nick answer that is unfair. Everybody handles it the way they deem fit based on what's before them on a case by case basis. You know that as well as we do.

COMMISSIONER ISHIMARU: May I ask one more question to see if it deems your approval, Madam Chair?

CHAIR DOMINGUEZ: Yes, you may.

COMMISSIONER ISHIMARU: Thank you very much. Will the Administrative Judges -- will more Administrative Judges be hired as a result of the repositioning?

CHAIR DOMINGUEZ: The Administrative Judges are hired on the basis of the workload. We don't generate the workload. The workload comes to us and we deal with the workload based on where it comes from and the resources that we have to allocate. If we deem that there's a need to have more AJ's, then I'll get a request from our very capable career folks and say, we'll need another AJ here, there or more than one. We will handle that as we've always handled requests for additional staffing.

MR. INZEO: And if I may just add to that, Commissioner, the Administrative Judges in our offices have been doing a really excellent job and at least in the two years I've been in the Office of Field Programs, I think they've been doing an outstanding job in terms of managing the work that they have and processing it fairly and efficiently.

COMMISSIONER ISHIMARU: In the proposal that's before us, the new proposal, there was a number of geographic changes that were made from the original proposal. What were the main factors in determining that you had made a mistake in the original proposal? Was it geography, was it dependent on whether someone complained and brought an issue to your attention? I'm giving Lea pain. I'm sorry, Lea.

MS. GUARRAIA: No, you did, Commissioner, because you said a mistake and that makes us sound like --

COMMISSIONER ISHIMARU: Well, I --

MS. GUARRAIA: -- but it's not.

COMMISSIONER ISHIMARU: I maybe mischaracterized, but what caused the rethinking. That's what I'm trying to figure out here.

MR. INZEO: Commissioner, we spoke to a number of employees, managers, stakeholders, and you know, including the FEPA Conference a couple weeks ago. And where other people believed that certain adjustments would actually be more effective, and in our discussions with them, we reached the conclusion that that was right, we then made the adjustment.

COMMISSIONER ISHIMARU: We also, all of us received correspondence from a number of individuals, including the District Directors and Regional Attorneys from both the Phoenix and Dallas offices asking that Oklahoma remain part of the Dallas District and New Mexico remain intact and part of Phoenix. And you did not make this change, can you tell us why not?

MR. INZEO: In part, Commissioner, based on my conversation with the Director of the Phoenix Office, he told me that he had retracted that request or proposal.

COMMISSIONER ISHIMARU: But the other three did not as far as I can tell, didn't. I recall getting a follow-up correspondence from one person, who still reiterated this request. And certainly there was a July 1 memo from the District Director and the Regional Attorney from Phoenix indicating that their earlier documents still were making a similar request. So is it not operative?

CHAIR DOMINGUEZ: Let me just interject. That's not consistent with the information. I personally discussed this with the District Director from Phoenix, who has informed me that he had withdrawn that.

COMMISSIONER ISHIMARU: But there were four signatories to the plan, so are we saying that no one -- has the memo itself been withdrawn or just that the District Director from Phoenix no longer wished to be associated with it, because there were four signatories as I understood.

CHAIR DOMINGUEZ: Uh-huh.

MR. INZEO: As he expressed it to me, Commissioner, he believed that the entire request was being withdrawn.

COMMISSIONER ISHIMARU: So he was speaking for all four.

MR. INZEO: Based on my conversation with him, I think he was purporting to, yes. Whether he really was --

COMMISSIONER ISHIMARU: I don't want to put -- you know, if he was, if he was -- if you were under that assumption, I appreciate that. I understand what that's like.

MR. INZEO: I mean, we looked at that issue because it was raised. We believe that the St. Louis District Office, that the Director of... the Regional Attorney, the management staff and the staff there can effectively manage the Oklahoma City Office. The Oklahoma City Office is going to remain there. I mean, it will be the Office that serves the people in Oklahoma and the question for us was when they have to pick up the phone and ask someone a question, do they dial one number or another number. We thought that for purposes of efficiency that having them part of the St. Louis District would be more effective, you know, looking at the Commission nationwide, and clearly I believe that either office could supervise the Oklahoma office but again, we're trying to create District Offices and the General Counsel is looking at litigation programs and having a nationwide program where you don't have small offices and really big offices. We want to have some consistency in size and responsibility.

COMMISSIONER ISHIMARU: Thank you, Nick. It's very seldom that I get a letter from a former colleague of mine, Congressman Sensenbrenner of Wisconsin who wrote in with the Wisconsin delegation asking about --

CHAIR DOMINGUEZ: Commissioner, do you have a question?

COMMISSIONER ISHIMARU: I do have a question.

CHAIR DOMINGUEZ: Related to the panel?

COMMISSIONER ISHIMARU: It's related to the panel and if you would allow me a chance to ask the question, I will, thank you.

CHAIR DOMINGUEZ: Please pose the question.

COMMISSIONER ISHIMARU: The question is, as Congressman Sensenbrenner and the Wisconsin delegation on a bipartisan basis wrote to the Chair, what was the basis for your decision to downgrade the Milwaukee office two levels from a District Office to an Area Office, unlike any other existing District Office in the country. And he further goes on to ask, what factors led you to decide against making the Milwaukee Office a field office?

CHAIR DOMINGUEZ: And Nick, I know you've answered that for the Commissioner on a number of occasions, but please answer it one more time.

COMMISSIONER ISHIMARU: Well, Madam Chair, if there was an answer promulgated to Congressman Sensenbrenner and the Senators and the other members of Congress that wrote in, I was not aware of seeing the answer so, I think, frankly, having Nick tell us, you know, how they got there on this record is certainly within the bounds of our work here.

CHAIR DOMINGUEZ: There have been extensive consultations and responses to all of the inquiries that have come from --

COMMISSIONER ISHIMARU: Well, it would have been a nice courtesy to have been provided with those as a matter of course.

CHAIR DOMINGUEZ: Was this letter addressed to you, Commissioner?

COMMISSIONER ISHIMARU: No, it wasn't, Madam Chair, but --

CHAIR DOMINGUEZ: All right.

COMMISSIONER ISHIMARU: -- we also asked your office for copies of correspondence which you provided, so as a matter of courtesy, it would have been nice to say -- to see what response we were providing, because frankly, it helps us in the production of our deliberations to see what the official Agency position is.

CHAIR DOMINGUEZ: It's the same Agency position and answers that you have been provided extensively.

COMMISSIONER ISHIMARU: Not in writing, Madam Chair.

CHAIR DOMINGUEZ: Let's --

COMMISSIONER ISHIMARU: Madam Chair, let me point out again that the amount of analysis that I got from your staff in written form is virtually nil and frankly, for a government agency to be operating on the fact that we can have these private discussions as the major basis for how we come to public decisions, I find very troubling.

CHAIR DOMINGUEZ: Well, and I take great exception to that because, as has been stated before, this has been one of the most transparent repositioning plan of any federal agency. So please let's proceed. I mean, this is something that I think is an abuse of time and power to have this type of interaction --

COMMISSIONER ISHIMARU: Well, Madam Chair, you --

CHAIR DOMINGUEZ: -- we can deliberate and vote on the --

COMMISSIONER ISHIMARU: -- You can certainly cut me off if you'd like.

CHAIR DOMINGUEZ: Did you have a question for Nick?

COMMISSIONER ISHIMARU: I asked Nick a question.

CHAIR DOMINGUEZ: Okay, please, Nick.

MR. INZEO: Commissioner we have, I mean, there is a lengthy response to the letter. I don't have it with me. I'd be happy to --

COMMISSIONER ISHIMARU: Can we make that a part of this record?

MR. INZEO: I'd be happy to provide you a copy.

COMMISSIONER ISHIMARU: No, that isn't my question. It's a question to the Chair. If there's a written response provided, I would ask that that written response be put in the record, just so we don't have to take up this time doing it–

CHAIR DOMINGUEZ: I'll be happy to include that response in the record.

COMMISSIONER ISHIMARU: Good. What about my earlier proposal that the letter from NAPA be put in the record following Lea's remarks?

COMMISSIONER ISHIMARU: I will allow that as well.

COMMISSIONER ISHIMARU: All right. I appreciate that. I don't want to use the time of the body that obviously is very valuable, asking questions that have been answered. I look forward to seeing those.

Can you tell me when you expect the Headquarters repositioning plan to be released and will the process be as transparent as this process?

MS. GUARRAIA: Of course, the process will be transparent.

COMMISSIONER ISHIMARU: Well, no, that wasn't my question. My question was whether --

MS. GUARRAIA: I already think it is transparent, sir.

COMMISSIONER ISHIMARU: So it will be as transparent as this process?

MS. GUARRAIA: Yes.

COMMISSIONER ISHIMARU: And there was also -- there was some speculation that the Headquarters repositioning will result in 20 percent of the Headquarters being moved to the field. Is that accurate?

MS. GUARRAIA: No, what the Chair has stated and what our marker is– is to redeploy 20 percent of our resources to the field.

COMMISSIONER ISHIMARU: Twenty percent of our resources to the field. So that may include staff but it may not.

MS. GUARRAIA: It may include staff. It may include vacant positions. It can include a lot of things.

COMMISSIONER ISHIMARU: Uh-huh, but 20 percent of the resources is --

MS. GUARRAIA: As a goal.

COMMISSIONER ISHIMARU: As a goal, okay, that would be fine..

MS. GUARRAIA: Yes.

COMMISSIONER ISHIMARU: Okay, a couple of other questions, Lea. When do you expect the Las Vegas and Mobile offices to actually open? I know part of that depends on when we actually approve it but --

MS. GUARRAIA: That's the biggest part, following the vote of the Commission, we will then look at it and assess it and, you know, had you all voted months and months ago, I would have said maybe the end of "05. Now, I wouldn't be so foolish.

COMMISSIONER ISHIMARU: But possibly, what six months or so to actually get an office up and running and people there? That's a rough measure.

MS. GUARRAIA: I don't know. I really don't know exactly the time frame.

COMMISSIONER ISHIMARU: Okay. And the implementation for the rest of the plan once approved?

MS. GUARRAIA: Well, I think we've said that the implementation will start at the first of the fiscal year.

COMMISSIONER ISHIMARU: At the first of the fiscal year.

MS. GUARRAIA: Yes, sir.

COMMISSIONER ISHIMARU: Okay, great. Thank you. That, Madam Chair, will close my questions. If people have more questions, I may have a few more but I don't have a bulk of –

CHAIR DOMINGUEZ: Let me just correct the record, Commissioner. You mentioned the memo from Chet Bailey and Mary Joe O'Neill dated -- let's see, dated July 1st and I just want to set the record straight so there's -- no one can misconstrue the record. Essentially what this memo says is that they are withdrawing their memorandum dated June 22nd and that, in fact, the final proposal concerning the repositioning plan is that which they presented to us on June 16th. I just want to make sure --

COMMISSIONER ISHIMARU: But that didn't -- but that the June 16th memo is their recommendation --

CHAIR DOMINGUEZ: It is their recommendation.

COMMISSIONER ISHIMARU: -- at least according to Chet.

CHAIR DOMINGUEZ: According to all of them. I mean, this is essentially based on the discussions that they've had --

COMMISSIONER ISHIMARU: So it's --

CHAIR DOMINGUEZ: -- with their Regional Attorney as well as the District Director from Dallas, all four of them.

COMMISSIONER ISHIMARU: Oh, all four of them. Your understanding is all four of them stand by Mr. Bailey and Ms. O'Neill's memo --

CHAIR DOMINGUEZ: That is correct.

COMMISSIONER ISHIMARU: -- of July 1st and that the June 16th memo and the May 13th memo are the operative memos.

CHAIR DOMINGUEZ: Yes.

COMMISSIONER ISHIMARU: Okay, I appreciate the clarification.

CHAIR DOMINGUEZ: The other point I should mention is that I did have the opportunity to visit the Oklahoma City office, not that long ago, and I have to say that that is one of the best managed offices that I have visited. That office is self-directed. That office really needs very little -- in fact, I would prefer that we not have too much other management, because it's working so well. It's a very important component of our Dallas office but I can take that and spin it off any way we want and with every assurance that the members of the public that visit that office will be extremely well-served.

COMMISSIONER ISHIMARU: Madam Chair, actually I have three short record clarification questions if I could ask. It actually stemmed out of the set of questions the Vice Chair asked at the beginning of the questioning period. One, Nick indicated that District Directors were told beforehand going into the Tuesday meeting at the Sofitel Hotel that they would be affected. I asked specifically on the Friday before when I was briefed on this plan, whether District Directors and Regional Attorneys would be told prior to the meeting that they would be affected and I was told quite flatly, no, they would not.

Now, I'm pleased that the District Directors were told before the meeting, but I was told by the three of you at a briefing we had that there would be no prior notice given and if that wasn't the case, I understand, but I asked that question specifically and if people have different recollections, maybe they should speak now.

MR. LEE: Well, as my recollection is that we informed you, I believe at the time that given the nature of the organization there are no secrets and that everyone had known for some period of time what offices were going to be affected by this. We had had any number of conference calls with Regional Attorneys in the period leading up to that meeting, so it was by no means a shock.

COMMISSIONER ISHIMARU: But let me be clear that people, at least Regional Attorneys were not told specifically, directly that they would be affected, that they had to rely on the information that was floating around generally.

MR. LEE: We had any number of calls prior to then to indicate that if a plan was announced, everyone could expect the offices that had been listed for some period of time would be the ones affected, that it would affect Regional Attorney's as well as District Directors and I think everyone understood that going in.

COMMISSIONER ISHIMARU: But then there was no specific call made.
MR. LEE: There was no specific call made because there was no need to make one.

COMMISSIONER ISHIMARU: Jim, you also mentioned that you would be happy to provide me with the personnel actions that have been taken to deal with problem issues. I obviously, don't want to deal with personnel issues in a public forum but I would appreciate getting that within due course, and we can relook at the record to see what you actually promised me but you indicated that --

MR. LEE: Yes, I would suggest we do that sir.

CHAIR DOMINGUEZ: I'd like to see that myself.

COMMISSIONER ISHIMARU: Well, I'm just looking to get that -- whatever that is within a timely fashion. The other question, Jim, would be back in 1979 when you were part of Chair Norton's RIF, you mentioned there were six attorneys who were functioning as Regional Attorneys.

MR. LEE: That's right.

COMMISSIONER ISHIMARU: Right, and do you know, having been a trial attorney at the time and not being a manager, were those Regional Attorney's were they SES Regional Attorneys or senior level, whatever they called them back at the time or were they GS-15s?

MR. LEE: They were Grade 16.

COMMISSIONER ISHIMARU: 16, so they were super level equivalence to our SES graded people today. There were six of those. Do you know whether at the time of the 1979 reorganization whether there were Grade 15 attorneys under the Grade 16 Regional Attorneys?

MR. LEE: Yes.

COMMISSIONER ISHIMARU: There were. So there was a cadre of Regional -- of Grade 15 attorneys in various offices back in 1979? –

MR. LEE: Generally, there was a grade reduction suffered by those people.

COMMISSIONER ISHIMARU: Well, there was a grade reduction suffered by those people --

MR. LEE: Regional attorneys became 15s, supervisory trial attorneys became 14s.

COMMISSIONER ISHIMARU: But at the time there were supervisory trial attorneys in the offices where they did not have the six Regional Attorneys, the supervisory trial attorneys were 15s.

MR. LEE: That's right.

COMMISSIONER ISHIMARU: Okay. And Lea, the last thing on training, you had mentioned there was $400,000.00 in the training –

MS. GUARRAIA: I don't have the number of training..

COMMISSIONER ISHIMARU: No, no, no, but I just want to be clear, that the figures that I gave of $30,000.00 for investigator training and $50,000.00 for lawyer training and $30,000.00 for the all-employee meeting and over $100,000.00 for the trip to Lawrence, Kansas are accurate figures?

CHAIR DOMINGUEZ: No, I wouldn't say that.

MS. GUARRAIA: I would not say they were accurate figures.

COMMISSIONER ISHIMARU: Can you tell us what the figures are in --

CHAIR DOMINGUEZ: Commissioner, again, we've had this discussion on a number of occasions. It has no relevance whatsoever --

COMMISSIONER ISHIMARU: Well, it has relevance to the question, Madam Chair --

CHAIR DOMINGUEZ: No, it doesn't.

COMMISSIONER ISHIMARU: -- about whether we're training our people, especially on the front lines and especially since not a single dollar is in this proposal to train people to be redeployed to new jobs. Lea Guarraia told me that there was no money set aside, that people will be taken care of but that there was no money budgeted within this proposal. And I just want to make that clear. And if that's not true, I welcome an explanation of how we're going to train and where the money is going to come from?

MS. GUARRAIA: What I told you Commissioner, at least what I hope I told you and I think I've been consistent with all the Commissioners on this point, that what you're being asked to vote on is a very narrow package dealing with the structure of the field and the reporting lines in the field. Therefore, the package does not contain such things as the administrative training, what's going to take place for the staff following the vote or following the repositioning.

CHAIR DOMINGUEZ: And I can assure you that there will be appropriate training conducted for all individuals who may be assuming different roles or expanding their roles. We just had a big training for new first time investigators. We continue to have another one on mediation, is it Nick?-- so there's a lot of training going on and --

COMMISSIONER ISHIMARU: Transparency of how we spend the money at this Agency would be very helpful in figuring whether the policy choices we make are appropriate as well, and again, I know Commissioner Silverman is not happy with the fact that we have meetings on issues that are not directly on point, but frankly, the fact that basic budgetary information is not provided to members of this Commission or members of the public, I frankly, think is a misservice that we send to the American people.

CHAIR DOMINGUEZ: I don't want to take the time to correct additional falsehoods, Commissioner, but the fact that your allegation that you're not being given budgetary information is totally inaccurate and a real falsehood. So let's move on because that has nothing to do with it.

COMMISSIONER ISHIMARU: Well, Madam Chair, if you'll provide me with the information that I have requested repeatedly, I would not have to make these statements, but in fact, I am told time and time again that this information is quote "none of my business". And frankly, as a member of this body, I don't understand that because I, like you, want to make decisions for this Agency that make sense and that go to our fundamental mission.

CHAIR DOMINGUEZ: Thank you, Commissioner. Can we move on? Do you have any more questions?

COMMISSIONER ISHIMARU: I don't believe that I do.

CHAIR DOMINGUEZ: Okay, great. Anyone else? Okay, I have one final question if you can tolerate it. There's been a lot of comments and associations and attributions that the Repositioning Plan is going to reduce enforcement, it's going to reduce the quality of enforcement. All kinds of things have been attributed to this Repositioning Plan except for shark attacks off the coast of Florida, everything else seems to be attributed to this plan.

But I would like your considered opinion, I value your judgment, always have, and have consulted you intensively on the development of this plan. And I would like to get your opinion as to whether or not you believe that this Repositioning Plan alters in any way the quality of our enforcement efforts.
MR. LEE: I'll start and I'll say I absolutely do not believe it will alter the quality of our enforcement efforts.

CHAIR DOMINGUEZ: Thank you. Nick?

MR. INZEO: I would say that I think it will help us improve them. It will help us provide more people doing direct front line jobs and that's what we need. I think it will -- that the management and administrative structures that remain will be more than adequate to do their jobs and this will allow us to redeploy resources to front line positions. I think that will be helpful to our enforcement efforts.

CHAIR DOMINGUEZ: Okay, thank you. There was another comment, allegation made that this Repositioning Plan will actually decrease our presence. Can you comment on that?

MR. INZEO: That's a comment I didn't understand. I mean, we will continue to be located where we're located. We'll have -- we will be able to open up two more local offices. It will -- this proposal will not diminish the staff that we have devoted to front line duties. It will increase it, so I don't understand how it could be said to decrease our efforts.

CHAIR DOMINGUEZ: The final question is for Jim.. There's been all kinds of references made to the fact that there's an expectation that as a result of this plan, the litigation program and, in fact, senior attorneys are going to somehow be diminishing their contributions to furthering the mission of this Commission. What's your sense of that, having worked with most of them for probably over 15, 20 years?

MR. LEE: I would expect as we go forward, to have a vigorous litigation program. I believe the Plan provides for structure that would support such a program and we have full intention to fully utilize the talent that we have within the Office of General Counsel to carry out our mission.

CHAIR DOMINGUEZ: Thank you. Thank you all very, very much. This will bring our discussion to an end. And I will now ask for a -- I will ask for a motion and, in fact, I guess I can present a motion, but I'll ask Madam Vice Chair to present a motion to approve Orders 110 and 120 as presented to the Commissioners today.

VICE CHAIR EARP: So moved.

COMMISSIONER SILVERMAN: Second.

CHAIR DOMINGUEZ: Any quick comments?

COMMISSIONER ISHIMARU: Could we have a roll call, just to expedite matters, Madam Chair?

CHAIR DOMINGUEZ: Yes.

COMMISSIONER ISHIMARU: Thank you.

CHAIR DOMINGUEZ: All right. Let's begin with the Vice Chair, do you vote to approve the amendments to Orders 110 and 120?

VICE CHAIR EARP: I do.

CHAIR DOMINGUEZ: Commissioner?

COMMISSIONER SILVERMAN: I vote to approve.

CHAIR DOMINGUEZ: I vote to approve. Commissioner, Ishimaru?

COMMISSIONER ISHIMARU: No.

CHAIR DOMINGUEZ: Okay, the motion carries. The vote is approved, three votes in favor and one against and the vote will be recorded.

COMMISSIONER ISHIMARU: Madam Chair, if I can, I'd like to make a motion as well, that now that the plans have been approved by the Commission and I respect that, that no motion -- no actions will be taken on implementation of this plan until there's a final appropriation for fiscal "06, for 2006. As you know, there have been a number of efforts to place various restrictions on how we spend next fiscal year's money and I would hope that we not take steps on this implementation of the plan that may at a later point, put us in a difficult position with the Appropriations Committees in the Congress as well as the Congress as a whole. It sounds like from reading the paper that the appropriations bills are moving fairly quickly this year and we may get a final appropriation before the fiscal year starts which would not -- which would still work within Lea's timetable that she laid out.

CHAIR DOMINGUEZ: Okay, there's a lot of information in your motion. What exactly is your motion?

COMMISSIONER ISHIMARU: My motion is that we take no steps to implement the plan that was approved by the Commission until after the President has signed the appropriation for our 2005 -- or 2006 budget.

CHAIR DOMINGUEZ: Is there a second to that motion?

(No response)

CHAIR DOMINGUEZ: The motion fails.

COMMISSIONER ISHIMARU: Well, again, I note that there's no second, no one wishes to discuss this. I think that we're in dangerous territory, though, if we go forward with implementation that may be contrary to the intent of the Congress but I raise this so it's a point that hopefully can be taken into consideration.

CHAIR DOMINGUEZ: I appreciate your concern and as the Chair of the Commission and the person that interacts very directly with the members of the Appropriations and Authorization Committees, I can assure you that I will continue to carry out my fiduciary responsibilities and budgetary responsibilities as I have up until now. So thank you for your concern. I appreciate it.

COMMISSIONER ISHIMARU: I certainly appreciate that, Madam Chair.

CHAIR DOMINGUEZ: Thank you. All right, well, I want to thank everyone for joining us today. You've been extremely patient and we appreciate your being here. There being no further business, do I hear a motion to adjourn the meeting?

VICE CHAIR EARP: So moved.

CHAIR DOMINGUEZ: Second?

COMMISSIONER SILVERMAN: Second.

CHAIR DOMINGUEZ: All in favor?

(Aye)

CHAIR DOMINGUEZ: Opposed?

(No response)

CHAIR DOMINGUEZ: The ayes have it and the motion is carried. The meeting is adjourned.

(Whereupon, at the meeting in the above entitled matter concluded.)

This page was last modified on July 27, 2005.

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