[Individual Authorized to Receive the Challenge]

NATIONAL COUNCIL OF EEOC LOCALS No. 216

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

Gabrielle Martin, President

EEOC- Suite 510

303 E.17^th Avenue

Denver, CO 80203

January 8, 2003

Jeffery Smith
Equal Employment Opportunity Commission

1801 L Street, N.W.

Washington, D.C. 20507

Re: FAIR Inventory Challenge

Dear Mr. Smith:

I serve as the President of the National Council of EEOC Locals No. 216 of the American Federation of Government Employees, AFL-CIO, which represents approximately 1900 employees nationwide working at the Equal Employment Opportunity Commission (the “EEOC.”) In this capacity I am an "interested party" as established under the provisions of section 3(b) of the Federal Activities and Inventory Reform Act (FAIR Act) of 1998, Public Law 105-270. As the head of a labor organization as described in section 7103(a)(4) of Title 5, United States Code, I submit the following challenges to select items contained in the EEOC's Commercial Activities Inventory of December 9, 2002.

The Office of Federal Procurement Policy (OFPP) Policy Letter 92-1, "Inherently Governmental Functions" of September 23, 1992 defines inherently governmental functions as follows:

"As a matter of policy, an "inherently governmental function" is a function that is so intimately related to the public interest as to mandate performance by Government employees. These functions include those activities that require either the exercise of discretion in applying government authority or the making of value judgments in making decisions for the Government."

In accordance with the above definition, the work described below should be defined as inherently governmental and reclassified as such. Specifically, I am challenging the decision to include the items listed below on the inventory list as commercial activities:

Item No. 1:

EEOC Inventory dated December 9, 2002 at www.eeoc.gov, page 72987 of the December 9, 2002 Federal Register OFP, ORIP, EXEC SEC, OGC OIRM – Program Assistants, Nationwide assignments, including Headquarters
35 positions

Activity Function Codes No. D0000.

Basis of Challenge Number 1:

Employees who perform duties within Function Code D000 should be classified as inherently governmental. Their work requires the interpretation and execution of the laws of the United States.

OMB Policy Letter 92-1, establishing the Executive Branch policy relating to inherently governmental functions provides guidelines for determining whether a function is inherently governmental. Paragraph 7(a) discusses the “exercise of discretion.” The policy letter states:

“.. . . the use of discretion must have the effect of committing the Federal Government to a course of action when two or more alternative courses of action exist (e.g. purchasing a microcomputer rather than a mainframe computer, hiring a statistician rather than an economist, supporting proposed legislation rather than opposing it, devoting more resources to prosecuting one type of criminal case than another, awarding a contract to one firm rather than another, adopting one policy rather than another and so forth.”)

At EEOC, the Program assistants have the authority to determine whether contracts have been properly submitted and whether contract mediators will be paid. Moreover, the work performed under this category entails access to privacy, personnel sensitive or confidential information. The protection of this information falls within the government's authority to protect the interests of its citizens in so far as it significantly affects the life, liberty or property of private persons and therefore must remain inherently governmental. Maintaining this function as inherently governmental ensures that any final action complies with the laws and policies of the United States. Maintaining this function as inherently governmental ensures that decisions reflect independent conclusions of agency officials and not those of contractors who may have interests that are not in concert with the public interest, and may be beyond the reach of management controls otherwise applicable to public employees.

Program Assistants maintain financial records which contain private and vital personal information. The Program Assistants are directly responsible for protecting that data from unauthorized release, or from loss, alteration or unauthorized deletion. Moreover, the accuracy and security of the systems is of utmost importance to properly assess the claims and is intimately tied to the operation of the Mediation Program. These positions require a high degree to familiarity with and working knowledge of EEOC laws, regulations and policies.

Item Number 2:

EEOC Inventory dated December 9, 2002 at www.eeoc.gov, page 72987 of the December 9, 2002 Federal Register

OFP, OCFOAS, OGC, ORIP – Administrative Support (Office Automation Assistant/clerk and Management Information) Nationwide assignments, including Headquarters
48 positions

Activity Function Code No. W000.

Basis of Challenge Number 2:

Employees who perform duties within Function Code W000 should be classified as inherently governmental. Their work requires the interpretation and execution of the laws of the United States.

“. . . the use of discretion must have the effect of committing the Federal Government to a course of action when two or more alternative courses of action exist (e.g. purchasing a microcomputer rather than a mainframe computer, hiring a statistician rather than an economist, supporting proposed legislation rather than opposing it, devoting more resources to prosecuting one type of criminal case than another, awarding a contract to one firm rather than another, adopting one policy rather than another and so forth.”)

At EEOC, the Administrative Support positions have the authority to determine whether charges are technically correct and codes activities into the EEOC's Charge Data system. Moreover, the work performed under this category entails access to privacy, personnel sensitive or confidential information. The protection of this information falls within the government's authority to protect the interests of its citizens in so far as it significantly affects the life, liberty or property of private persons and therefore must remain inherently governmental. Maintaining this function as inherently governmental ensures that any final action complies with the laws and policies of the United States. Maintaining this function as inherently governmental ensures that decisions reflect independent conclusions of agency officials and not those of contractors who may have interests that are not in concert with the public interest, and may be beyond the reach of management controls otherwise applicable to public employees.

These Administrative Support positions maintain personnel and financial records which contain private and vital personal information. These employees are directly responsible for protecting that data from unauthorized release, or from loss, alteration or unauthorized deletion. Moreover, the accuracy and security of the information in the Charge Data System is of utmost importance to properly assess the charges and is intimately tied to the operation of the investigative and hearings programs. These positions require a high degree to familiarity with and working knowledge of EEOC laws, regulations and policies.

Item Number 3:

EEOC Inventory dated December 9, 2002 at www.eeoc.gov, page 72987 of the December 9, 2002 Federal Register

Office of Field Programs –Other ADP Functions (Management Information), Nationwide assignments, 35 positions

Activity Function Code No. W999.

Basis of Challenge Number 3:

Employees who perform duties within Function Code W999 should be classified as inherently governmental. Their work requires the interpretation and execution of the laws of the United States.

At EEOC, the Computer Assistant occurs where there is not an Information technology Specialist or where the need for services is great. These positions have the authority to determine whether the systems in an office are appropriate, whether to continue using /supporting various software programs and the employees ensure that investigative and hearings activities are properly coded into the system such that the system data is accurate and that the systems in use advance the program or should be replaced.

Moreover, the work performed under this category entails access to privacy, personnel sensitive or confidential information. The protection of this information falls within the government's authority to protect the interests of its citizens in so far as it significantly affects the life, liberty or property of private persons and therefore must remain inherently governmental. Maintaining this function as inherently governmental ensures that any final action complies with the laws and policies of the United States. Maintaining this function as inherently governmental ensures that decisions reflect independent conclusions of agency officials and not those of contractors who may have interests that are not in concert with the public interest, and may be beyond the reach of management controls otherwise applicable to public employees.

These positions maintain personnel and financial records which contain private and vital personal information. These employees are directly responsible for protecting that data from unauthorized release, or from loss, alteration or unauthorized deletion. Moreover, the accuracy and security of the information in the Charge Data System is of utmost importance to properly assess the charges and is intimately tied to the operation of the offices. These positions require a high degree to familiarity with and working knowledge of EEOC laws, regulations and policies.

Item Number 4:

EEOC Inventory dated December 9, 2002 at www.eeoc.gov, page 72987 of the December 9, 2002 Federal Register

Office of Field Programs –Legal Services or Support, Nationwide assignments, 29 positions

Activity Function Code No. Y415.

Basis of Challenge:

Employees who perform duties within Function Code Y415 should be classified as inherently governmental. Their work requires the interpretation and execution of the laws of the United States. OMB Policy Letter 92-1, establishing the Executive Branch policy relating to inherently governmental functions provides guidelines for determining whether a function is inherently governmental. Paragraph 7(a) discusses the “exercise of discretion.” The policy letter states:

At EEOC, the legal technicians often are the first to demonstrate the need for additional services in prosecuting litigation. These employees have access to confidential legal matters such as the theory of the case and key documents as well as access to privacy, personnel sensitive or confidential information obtained during the investigative and litigation phases. Moreover, access to the legal strategy is tantamount to access to the Office of the Commissioners and the Chair. The protection of this information falls within the government's authority to protect the interests of its citizens in so far as it significantly affects the life, liberty or property of private persons and therefore must remain inherently governmental. Maintaining this function as inherently governmental ensures that any final action complies with the laws and policies of the United States. Maintaining this function as inherently governmental ensures that decisions reflect independent conclusions of agency officials and not those of contractors who may have interests that are not in concert with the public interest, and may be beyond the reach of management controls otherwise applicable to public employees.

These positions also maintain personnel and financial records which contain private and vital personal information. These employees are directly responsible for protecting that data from unauthorized release, or from loss, alteration or unauthorized deletion. Moreover, the accuracy and security of the information in the legal units is of utmost importance to properly prosecute the litigation. These positions require a high degree to familiarity with and working knowledge of EEOC laws, regulations and policies.

Recommendation:

The EEOC should uphold these challenges and change its decisions and exclude the challenged functions from its list of commercial activities. Thank you for your consideration of this matter. Please send the challenge decision by fax and U.S. Mail. The fax number is: 303.866.1900. The address is:

Gabrielle Martin, President

National Council of EEOC Locals No. 216

EEOC, Suite 510

303 E. 17^th Avenue

Denver, CO 80203

Sincerely,

Gabrielle Martin, President