The U.S. Equal Employment Opportunity Commission

Commission Meeting of February 13, 2008 on Budget Allocations for State and Local Agencies





RONALD S. COOPER, General Counsel
REED RUSSELL, Legal Counsel

This transcript was produced from video tapes provided by the Equal Employment Opportunity Commission.


Chair Earp

12/12/07 to 2/12/08 NOTATION VOTES:
Bernadette Wilson



Chair Earp
Nicholas Inzeo

Commissioner Ishimaru

Commissioner Griffin
Nicholas Inzeo

Stuart Ishimaru

Nicholas Inzeo

Christine Griffin








CHAIR EARP: Good afternoon and welcome. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberation and voting.

Before I ask Ms. Wilson to announce the notation votes, I just want to acknowledge that yesterday, February 12th, we -- the staff in San Francisco had a memorial service for Joan Ehrlich, a very loved, trusted director of a couple of our offices. And yesterday would have been her birthday and in keeping, I won't tell you exactly how many years, except to say that we continue to miss her.

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 afternoon, Madam Chair, Madam Vice Chair, Commissioners, I'm Bernadette Wilson from the Executive Secretariat. We’d like to remind our audience that questions and comments from the audience are not permitted during the meeting. And we ask that you carry on any conversations outside the meeting room, departing and re-entering as quietly as possible.

Also, please take this opportunity to turn your cell phones off or to vibrate mode.

I would also like to remind the audience that in addition to the elevators, in case of emergency, there are stairways down the halls to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right.

During the period, December 12, 2007 through February 12, 2008, the Commission acted on 10 items by notation vote:

Approved litigation on five cases;

Approved resolutions honoring Harriet Joan Ehrlich and Hilda D. Rodriguez;

Approved revisions to the procedural regulations for bases of dismissal;

Approved a Notice of Proposed Rule Making amending 29 CFR Part 1615; and,

Approved an expert labor economist statistician services contract.

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

CHAIR EARP: Thank you, Ms. Wilson. Do I hear a motion?


CHAIR EARP: Is there a second?


CHAIR EARP: Any discussion? Hearing none, all those in favor say aye.

ALL: Aye.

CHAIR EARP: Opposed? The ayes have it. The motion is carried. Thank you, Ms. Wilson.

Good afternoon again. Thank you all for being here today. Today's agenda will cover one item, that is the FY 2008 Budget Allocations for the State and Local Programs, what we normally call FEPAs.

I'm pleased to note that the approval of this budget will also result in the designation of two new FEPAs. They will be located in Guam and in Erie County, Pennsylvania. Our partnership with the FEPAs has been an essential and integral part of EEOC's operations. The state and local agencies provide a critical component in helping us to meet our mission. I personally value, and EEOC organizationally values, the partnership with the FEPAs.

Last month I met with the Board of the International Association of Official Human Rights Organizations to express my belief that we should continue to dialogue with the FEPAs and to strengthen our partnership with them.

I believe that the Vice Chair and Commissioner Ishimaru and I'm not sure, I think, Commissioner Griffin may not have been available actually when they were in town, but we’ve all met with them and attempted to understand what the FEPAs’ priorities are and to improve our coordination and our collaboration with them.

My discussions with the Board were open, frank and, I think, productive. These discussions led to several broad suggestions on how we might continue to expand our relationship with the FEPAs. During the meeting, there were three broad topic areas that I discussed with them.

One is to continue the cooperation that we’ve had with the FEPAs enhancing that cooperation over the last year. No. 2 is to try to have a transparent relationship with the FEPAs. And then finally, we want to tie up loose ends and finish any old business that we have with the FEPAs.

By cooperation, we discussed ways that they might continue to play a greater role in our systemic initiative and for them to perhaps be included, in some way, as a mention in our press releases. When there’s a big case in an area where we also have a contract with the FEPA, we should discuss how they might be mentioned, so that we call attention to their organizations.

We discussed my strong desire for a member of the IOAHRA Board to continue to come to Washington for short periods of time to work with us, to be the eyes, the ears, the hands on FEPAs' priorities. By doing so, it gives the Board a direct involvement in our program and in our budget process.

The FEPAs need to know how we do what we do and when they’re here, they get to learn information at the same time we learn it. I don't think that we can be any more transparent than that.

Finally, I talked to the FEPAs about finishing up old business, which includes recommendations from their re-engineering report, it's a couple of years old, and also the cost of justice or the cost of enforcement study that was started last summer.

These are just a few of the projects that are directly dependent upon the vote that we're going to take today. We and our partners face a number of challenges in the upcoming year. We have to continue to dialogue openly and honestly with our state partners. We have to develop mutually agreed upon performance measures and we have to agree upon joint partnerships.

Now, I will ask Nick Inzeo, Director of Field Programs, who is here with us, to explain the proposed distribution of the 2008 budget for state and local operations.

MR. INZEO: Good afternoon, thank you, Chair, Vice Chair and Commissioners, I'm Nicholas Inzeo and I'm here with Michael Dougherty to present the proposed State and Local Budget Allocations for Fiscal Year 2008.

Included with the budget allocation, as the Chair mentioned, is our recommendation to designate two FEPAs in Guam and in Erie County, Pennsylvania.

The proposed budget is summarized in Chart 1, which is part of your package. The budget allocation follows along the lines of the budget approved last year. Charge resolution and intake services contracts with FEPAs would be funded at the same per charge levels as last year, with the number of each determined largely from the measurement period. We will be able to reimburse FEPAs for approximately, 93 percent of their projected capacity.

TERO contracts and TERO training levels will also remain at last year's levels. Relatively small amounts are also proposed for joint training efforts, ADP support and the contingency reserve.

We have revised the proposal from the January 25th memorandum and have mirrored the delegation of authority language approved last year. That delegation says that if funds exceeding $100,000 should remain after third quarter modifications, then we will bring back to the Commission any proposal for spending those funds.

We request your approval of the budget and the designation of the two FEPAs. Mike and I would be happy to answer any questions that you may have.

CHAIR EARP: Thank you, Nick. We will now have statements, questions and/or comments from my fellow Commissioners and this will be done in five minute segments. We have all the time this afternoon that we need, so there is no need to worry about waiving time or talking over each other. I know that all of my fellow Commissioners are very concerned about our state and local partners, so we’ll start with a five minute round and we'll begin with the Vice Chair.

VICE CHAIR SILVERMAN: I’m actually going to defer to my colleagues. I wanted to hear what their concerns were and why.


COMMISSIONER ISHIMARU: Thank you, Madam Chair. I must say that it is somewhat frustrating to be back here at a meeting on the FEPA contract. Obviously, I share my colleagues’ admiration for the work the FEPAs do. I consider them a true partner. I especially consider them a partner in areas where we don't have coverage, where we don't have offices.

This came up once in a conversation I was having with my own staff about what do you do in a place like Iowa, which is part of the Chicago office, where there is no office there? How many times a year can the Chicago office actually cover that area? How often do they have presence? And frankly, they’re not there that often, yet, there is a FEPA in Iowa and there is FEPAs in many parts of the country who can help us provide that service.

I guess my frustration with this package and it follows the pattern of packages that we have gotten historically on the FEPAs is that we follow a formula that may or may not be the best way to allocate the money. It's my understanding that we have this dollar figure that is substantially lower than the figure that is provided in the fair housing field.

It's my understanding that, and I don't know the exact figures, but it's my understanding that when our friends at the Department of Housing and Urban Development pay state and local agencies for their work in the fair housing field, they have a substantially higher payment. That -- you know, one is a budget question of how much money we have, but it also goes to the fundamental notion of what do these agencies do and how much does it cost them to do it?

And I know last year, the last calendar year, at the end of the fiscal year when we were deciding what to do with the money that was unallocated, there was concern by all of us on how the money gets allocated. And one of my concerns is, should we be paying a set amount to each agency for each action that it does for each charge that it takes in? Some agencies, some FEPAs do a lot, some do less, some are unable to do more because of their statute, it's a whole range of issues. And when we’ve asked the question of how does this differ across the board, at least I have not seen a coherent recitation of what is done in the various agencies we participate with.

It also strikes me that we need to look at where the funds are going, not on a formulaic basis, as we’ve been doing, but looking at the question, if there’s more work that should be happening in a certain jurisdiction, how do you encourage that? Is it through a formulaic provision of funds? Is it working with agencies to create capacity to deal with what they have in front of you? If we're dealing with agencies in our own literal backyard, where our district offices are, are we duplicating work? And, you know, should they be coming to us or should we be sending people to the local FEPA? I think all those questions are worth exploring. I don't know what the final answer is.

Let me say before my five minutes is up that I'm also concerned about the continuing decrease in the funding for the FEPAs. And I’ve raised this, as you know, Madam Chair, in many a past meeting. It’s my reading of the appropriations language that we get every year that we are to provide X amount of money as stated by the Congress for the work of the FEPAs. And I know that it’s phrased in such a way that it's "not to exceed a certain amount."

This year and I believe last year the Office of Management and Budget apportioned money that was less than the money that was appropriated by Congress. I'm concerned that we’re not funding these partners at a level we should be funding them at. I'm also concerned that in the 2009 budget, the FEPA -- the level for FEPA funding is proposed to be $26 million. Again, a substantial decrease from where it’s been historically. I think there’s a lot of questions here that need to be answered and I hope that we start to grapple with these questions. And I look forward to the conversation this afternoon.

CHAIR EARP: Okay. Thank you.

COMMISSIONER GRIFFIN: I also believe that the FEPAs, I think like everyone here will state, are a key component in the fight against employment discrimination in this nation. And I am also once again concerned that we're seeing a decrease in their funding and we'll continue to see that into the next fiscal year.

And I know that it's hard to argue given that there’s a significant decrease in the number of charge receipts they are receiving as evidenced by the left over money at the end of last year that we predicted wouldn't exist whatsoever. And we wouldn't have to come back to the Commission for a vote on that money, because there wouldn't be any to vote on.

I understand that it's hard to argue to give them additional funding when they can't spend what we get. But I had hoped that by the time we were here this year, we had actually grappled with those big picture issues that we talked about at the meeting last, I think it was, last March about looking at how the money is spent and really figuring out, you know, is there, as Stuart said, another way besides this fairness doctrine formula where everybody gets the same amount.

And, except the TEROs, I guess, where they all get the same amount and we end up in the same situation where we’re paying a FEPA that does a tremendous amount of work at the end of the time -- they have to wait until the end of the period of time in which they close the case and they do that tremendous amount of work to get paid versus an agency that does something cursory, like maybe reviewing some paperwork, and issuing that to somebody else and then closing it very quickly and getting the same amount of money.

So I had hoped we would be at a point by this year where we had actually looked at all of that. I know that you've brought someone in from the FEPAs to actually take a look at that, but I don't think that resulted in anything, from what I can gather. And I think that's unfortunate. I would hope that we could make a commitment at this meeting to say we are going to do something and that we are going to form a group of some sort to look at this. And I actually stated this last March that the Commission -- I mean, Chair Cari Dominguez had actually developed a work group that consisted of FEPA participants as well as, I think, our own staff to look at these very issues. They issued a report and I think a response, Nick said, last year that yes, we'll take a look at that and maybe we could, you know, use that as a starting point, and we didn't do it. And I would have been happy to participate and do that, but that's not the approach we took.

So I'm concerned that we're here at this point a year later and we haven't figured that out. I'm also concerned about the amount of money that was left over last year. And this whole discussion that took place about the charge receipts were actually decreasing because of the decline in outreach money that the FEPAs actually have -- I guess it’s been declining in the last couple of years. And so they were tying their decrease in the number of charge receipts to the decline in the outreach money, when, in fact, and I have a whole list of questions about this, I don't think that even though a specific amount of money at the end of last year was allotted to them to actually do that outreach, that we’ve really overseen that and we understand what’s happening with that. And I have a lot of questions about that, so can I go right into that? Is that --

CHAIR EARP: You have 57 seconds left on this first round.

COMMISSIONER GRIFFIN: All right. Well, then I'll hold off and --

CHAIR EARP: What I’d like to do is ask Mr. Inzeo to respond broadly to the themes that you’ve heard both Commissioner Ishimaru and Commissioner Griffin express, the concerns about diminishing receipts from the FEPAs, concerns about what FEPAs are paid, especially compared to our sister agency, HUD, and any of the other broad themes. And then we’ll do another five minute round and get specific.

MR. INZEO: Okay. Thank you. Let me take a crack at it and we're here for questions, so if there’s something I don't cover or don't cover well, feel free.

The -- last year with the apportionment of funds from OMB, we actually revised our recommendation working with your office, Madam Chair, to reimburse FEPAs at the rate of $550 per charge, rather than at the rate of $600 per charge. We were aware and have been aware that HUD does reimburse FEPAs at a much higher level per charge than we do.

And as Commissioner Ishimaru indicated, that is largely a budget issue. Because of that and because of the issues that Commissioner Griffin raised, through your leadership working with the FEPAs, we started looking at the issue of the cost, what has been called the cost of enforcement.

We met with both the IOAHRA Board and the Joint Standing Committee to outline what we propose to do. We addressed the FEPA conference last year. We developed two documents that were designed to get the information about what each FEPA does and the budget information related to it. We shared that with IOAHRA members and Joint Standing Committee members. We reviewed it. We then sent it out to all of the FEPAs as part of the 2008 procurement package and work sharing agreement package. We’ve received responses from the FEPAs. The staff for state and local programs has compiled those responses, organized them, put them in spreadsheets now and we have shared that with the FEPA member who has been working on that issue, Vanessa Boling from Texas. And we're at the point where she’s reviewing it and hopefully we're going to be able to take a preliminary step in terms of getting that information.

Now, having said that, I fully suspect that at least as to some of the FEPAs, we're going to have to go back and get more information or get better information, that's going to be part of the process of just making sure we know as much as we can.

Once we have that, then I think we will be able to start addressing the issue of cost of enforcement as best we can. And we can also then start looking at issues of how we should be spending money and how we can be allocating it, that's the approach we started and I think, you know, we’ve come a long way, we’ve got a little way to go, but, you know, I think we can continue.

CHAIR EARP: Okay, do you think that the timing -- Vanessa Boling was here last spring for a total of, just shy of, six weeks. The initial surveys went out as a part of the 2008 package, which was when, September,…?

MR. INZEO: September.


MR. INZEO: September/October time frame, I believe.

COMMISSIONER ISHIMARU: Wait, the packages went out that late in the fiscal year? Because we dealt with the contracts in the spring. I'm just thinking back, wouldn't the contracts go out --?

MR. INZEO: For this year, Commissioner, for this fiscal year.

CHAIR EARP: For 2008.

COMMISSIONER ISHIMARU: For 2008, the one that we're voting on today?

MR. INZEO: Right.

COMMISSIONER ISHIMARU: The actual obligation money.

MR. INZEO: Right.

COMMISSIONER ISHIMARU: I see. Okay. Okay. Thank you.

MR. INZEO: Right.

CHAIR EARP: Right. I'm just trying to get a sense of how much time has lapsed and what arguably remains to be done on these questions that were raised last year when we sat at this point.

MR. INZEO: The -- as I indicated, I think in terms of the cost of enforcement --

CHAIR EARP: Right, that survey.

MR. INZEO: -- I think that once Vanessa has had an opportunity to look at the data and the information, she can assess where she believes we're going to need more information. We can work with her then to work with the FEPAs. You know, we did work with the IOAHRA president. He sent a letter out to all of the FEPAs encouraging them to, you know, to participate.

And I believe we have received responses from each FEPA. It's just a matter of, I think in some instances, going back and getting more or better data.

CHAIR EARP: I just want to note before we turn to the second round of five minute comments that the notice to the FEPAs that we were going to ask them to look at the services they provide for us and report that information back on a standard survey was just at the end of last summer. So we started to get their responses back in the fall and we're still analyzing that information. So I know we raised these questions about the same time a year ago, but the actual instrument to begin to collect the information wasn't even completed until the end of summer. So Commissioner?

COMMISSIONER ISHIMARU: Well, Madam Chair, I appreciate the fact that these, you know, went out at the time it went out last year. I guess my frustration is is that it wasn't just last year that we’ve raised these questions of how does the FEPA money get allocated. I'm glad this was started.

CHAIR EARP: But last year was the only year I had an opportunity to be responsive.

COMMISSIONER ISHIMARU: No, no, I -- and I think you have been. And, you know, I think by bringing Ms. Boling in last year to look at this, I believe it was actually the summer.


COMMISSIONER ISHIMARU: Because she was here during our discussions on what to do with the extra money from last year.

CHAIR EARP: That's right. That's right.

COMMISSIONER ISHIMARU: You know, I guess my frustration is that there’s a limited amount of money, a limited, yet, substantial amount of money. We, at this agency tend to think that a $30 million or $29 million, $28 million budget for this activity in the scheme of our work at this Agency is small potatoes. And certainly on a percentage basis, it's, you know, roughly 10 percent of our overall budget.

From other agencies that I’ve been involved with over the years, including dealing with people at HUD, dealing with people at the Department of Justice in the Civil Rights Division, dealing with the Civil Rights Commission, $30 million is a lot of money.


COMMISSIONER ISHIMARU: And it's a substantial piece of the federal outlay on civil rights enforcement. And, I know that we are in a conundrum when we deal with the Office of Management and Budget when they say how do you measure success here? And if our measure is how many charges do you handle, which I have always said that I think that's one measure of success, but certainly not the sole measure of success.

I think we spend too much time focusing narrowly on whether FEPAs and their activities are succeeding. And I think we need to take a holistic look to see how you measure success and where success is being measured. It's my understanding that every year OMB comes back and says the number of charges is going down, therefore, the amount of money that we think should be budgeted or allocated for the FEPAs should be less.

I think there is more worth to the activities of the FEPA than just measurement of charges. And I'm also concerned that, frankly, every year or certainly the last few years we’ve projected cases to come in at a certain level. And we come back at the end of the fiscal year, at the end of the third quarter with an adjustment that always has more money left over. And we are in a quandary or we're in this, I'm not sure if it's a quandary if we have the luxury of trying to figure out how to spend this extra money, which, you know, I would hope that we could spend it all on dealing with cases in front of us.

Now, this last year, we were dealing with the question of how do you spend close to a million dollars? And I know that there was concern by all of us on, how do you do this in an effective way? And I know that there were various proposals out there of how to spend the money.

One was to spend it all on outreach. And, I think outreach is an important piece of what we do at the Agency and what the FEPAs do. But I was concerned, and I think a number of my colleagues were as well, that this outreach money being passed out at the end of the year might -- you know, who knows how it gets spent. How do you use this effectively and hold people accountable for it? And I guess one of my questions to the panel is, it's my understanding that the provision of outreach funds under last year's budget in the amount of over $400,000 was contingent on the submission of an outreach plan. And when we -- in the last few days in getting ready for this hearing, we asked, let us see those outreach plans, let us see what people were proposing to do. And I must say that I was troubled by the fact that no one could provide me with an answer on outreach plans, that this story went from there were no strings attached, to, they may have put in outreach plans, they are disbursed among the various offices. The question couldn't be answered. And this again is a pretty good chunk of change that was being provided to FEPAs and that’s been spent by a fair number of FEPAs and I don't know what the money’s gone for. And, I think we have a fiduciary obligation here at the Agency to make sure that monies that are given to partner agencies are spent to further our common mission.

And I must say that I'm uncomfortable with the responses that I've gotten in the last few days.

CHAIR EARP: Somewhere in Commissioner Ishimaru's comments is a question about --


CHAIR EARP: -- what the FEPAs reported to us about how the end of year money was going to be used specifically related to outreach.

COMMISSIONER ISHIMARU: In the left over money -- in the money last year that was provided specifically for outreach.

CHAIR EARP: End of year money.

MR. INZEO: Right. And while they do work with the district offices in doing that, Commissioner, I can commit that we will go to the district directors and the FEPA directors to get all of the plans and we will share them.

COMMISSIONER ISHIMARU: Well, Mr. Inzeo, last year when we voted on this package, when we voted to allocate the so-called extra money for the FEPAs, it said in the memorandum that was provided to the members of the Commission that the money was "contingent on FEPAs’ submission of an outreach plan," part of which would require the FEPAs to measure the impact of their outreach efforts on charge receipts.

And just from our informal conversations over the last few days, I was unable to get an answer whether plans were submitted that were the contingent factor for providing this money. And I would expect that if you’re saying that people should provide plans, that plans are provided and the money is released. And that we here in Washington would know, at least on a general basis, what was going on by these various FEPAs.

And if you can provide information to us now about what FEPAs were actually planning to do with this outreach money, that would be very helpful. But I must tell you that I am concerned that, it does not appear that this was done on a consistent basis and, on a certain level it’s $5,800 per state agency and $3,000 for a local agency, not a lot of money, but certainly when you add it up in the aggregate and looking at how outreach is done, it adds up fairly quickly. So whatever light you can shed on this now, I think would be helpful.

MR. INZEO: Okay, Commissioner, the -- what I'm coming -- two things. The contracts with the state and local agencies are done by our district offices, and so the district director and the state and local coordinator in the district are the people who work with the FEPA. They would be the people working with the FEPA, with each FEPA, in terms of working on the outreach plan and authorizing payment. Those vouchers then go right to the Department of Interior and are paid.

COMMISSIONER ISHIMARU: But, Mr. Inzeo, last year when we were talking about whether the Agency, at large, could handle dealing with X number of contracts, it was my understanding that the contracts had to come here to Washington, and that Mr. Smith and his office did not have the resources to handle more than X number of transactions given the time that we had.

But what you’re telling me now is that contracts are being done on a district-by-district basis and sent directly to the financial people for payment?

MR. INZEO: The Acquisition Services Division prepares the modifications for the contracts. And that's done here in Washington. They did do 94 modifications last year. The individuals who are the Contract Officer Technical Representatives, the COTR, for the contracts are the district directors and the state and local managers in the field. And they have dealings with the FEPAs as they do with the charge resolutions. And they administer those as, you know, as the information comes in and put receiving reports into the financial system, so that people can be paid when they do the work that’s expected.

We, this week, asked the district offices how many of them had plans. And from what I understand, we were given a number somewhere in the 60s of FEPAs who had either sent something in writing or had discussions with the district office that apparently the district office thought was sufficient.

COMMISSIONER ISHIMARU: So, so oral conversations were deemed sufficient to be an outreach plan?

MR. INZEO: That is my understanding.

COMMISSIONER ISHIMARU: I see, and do you know whether that memoranda was created by the district office to memorialize -- a conversation or is it done on such an informal basis that by having the conversation, that, that is sufficient?

MR. INZEO: I don't know the answer to that, Commissioner. I would -- as your question, I think, suggests, I would hope that something was committed -- was put in writing. Even as a, you know, memo to file on the conversation.

COMMISSIONER ISHIMARU: Right, right. But you --

MR. INZEO: But I don't know.


COMMISSIONER GRIFFIN: Can I ask something about this? Because I thought in our discussions that, you know, I thought Jeff made it very clear when we were having all these discussions that he needed something in writing from them. It had to be something very -- you know, they had to turn this around very quickly in order to obligate that end of the year funding for this purpose of outreach.

So I, maybe stupidly, but I assumed that they were all going to send in something to Mike, or you know, somebody here at Headquarters saying this is what I'm going to do with my $5,800 or whatever it is, depending on who I am, of outreach money. And, specifically in the vote it said that it would be -- they would include a component in there about how they were going to measure how their outreach would impact their charge receipts, because they were specifically saying, and you were saying, that their charge receipts would decrease because of the decline in outreach money. And they were going to demonstrate that to us. And we're not asking that they demonstrate that now. We're asking, you know, did they do that? And I guess I assumed that those plans were going to come in very quickly before the end of the fiscal year. I understood Jeff to say that was required. And then the money would be, you know, allocated according to whether they were state or local.

And now, you know, what we're hearing is very different. We don't seem to really know anything about this. And it's distressing.

MR. INZEO: But the document, Commissioner, that the FEPA would, and all the FEPAs would have to sign, would have been -- a document to accept the modification to their contract last year. In a contract term, it's a bilateral modification to the contract and so it requires both parties to sign. So both the Director of the Acquisition Services Division here at EEOC and someone at the FEPA would have to sign in order to obligate the money. And that's what was -- that's what had to be done by the end of the fiscal year in order to obligate that money.

CHAIR EARP: But are you suggesting that the actual obligation of funds itself did not have to be completed in the last fiscal year?

MR. INZEO: Well, the obligation was completed with the signing of that modification. And the performance period then could extend for --


MR. INZEO: -- could extend beyond.

CHAIR EARP: So that for example, one of the FEPAs told me that they decided to reprint brochures. They were getting $3,000. They were out of a certain brochure. They would reprint that series of brochures. They did not get paid for that work until January 8th.

MR. INZEO: This year.

CHAIR EARP: Yes, just a month ago. But the invoices were submitted some time or the voucher, I think she described it as, last fall. So I'm trying to get the specific answer to Commissioner Griffin's question, because I think the question is reasonable.

The documents that we were in such a hurry to have completed at the end of last fiscal year was merely the contract modification that allows the funds to be accessed, spent at some later point.

MR. INZEO: Right.

CHAIR EARP: Is that correct?

MR. INZEO: That's correct.


COMMISSIONER GRIFFIN: And I understand that you obligate money and the performance can actually go one or two years, whatever, you know, they are allowed to do. I understand that part of it clearly. But I do remember very specific discussions and Jeff raised his concern that that they had to submit something very quickly to say what they were going to do with the money to be able to obligate that money. You know, I'm not making that up. And we had very specific discussions about it. And I was under the impression that is how that worked. So then in asking about this, you know, to find out that, you know, some of the submitted plans, we don't really know that, you know, some may be verbal, that 27 haven't, that raises a whole bunch of other questions for me about, so where is that money? And what happens if, let's say, you're saying roughly, you know, you think 27, 30, something like that haven't submitted anything. So obviously, they haven't, you know, been able to get their funding, and so what happens to that money? What if 27 don't? Does that money -- is that with us? Does it sit somewhere else? Does it go back to the general fund? I don't know.

MR. INZEO: Right. The money, as I understand it, remains in the Treasury until it's spent. The -- if, you know, if after some period of time and I couldn't tell you right now what that period of time would be, but a FEPA was not going to do the work and voucher for it, we would de-obligate it.

The money is no longer available to the Government five years after the end of the fiscal year. So, that is by default in some ways, you know, the end of time as to any -- even any obligated money.

COMMISSIONER GRIFFIN: I thought you obligate it and then you have so much time to liquidate it, to spend it.

MR. INZEO: Right.

COMMISSIONER GRIFFIN: And then if you don't spend it, it doesn't revert, because it's our budget, it doesn't revert to EEOC.

CHAIR EARP: No. It effectively becomes lapsed.

MR. INZEO: It goes back to the Treasury then.

CHAIR EARP: Vice Chair, do you have -- I skipped you before. I apologize.

VICE CHAIR SILVERMAN: I actually had some questions, not about that particular money, but on -- just about this dilemma that, you know, we’ve been dealing with, you know, for as long as I can remember, which is this one size fits all problem. And, you know, it just seems like such a complicated problem that, you know, I don't think that -- and I understand that Chair Dominguez had also a committee on it and now you’ve done a survey and now Vanessa’s looking at it.

But I mean, it's not only what they say they do, it's how -- it's both, you know, the quality of what they do and what it means and then how do you figure that? I mean, this seems like -- and the fact, as my understanding in talking to the FEPAs, they would prefer this system. So we're also up against that, too.

CHAIR EARP: Right, yes.

VICE CHAIR SILVERMAN: So I guess, and I mean, we don't have that many staffers to oversee the FEPAs to try to figure that out. So, you know, it's one of those difficult governmental problems that I don't know how to solve without spending more money solving it or watching over it. And I'm just wondering-- but at the same time, I don't think it's very tenable that we have FEPAs, you know, that do tons of work for the same money that FEPAs that do hardly anything at all. I mean, what about tiers of FEPAs that get different amounts? There are things like that. I mean, what do you think? What do you guys think it would take, you know, having we just took systemic on and we found a new system for it. This needs a new system. So what’s it going to take to get to a new system here? How are we going to solve this problem or can it be solved?

MR. INZEO: I think if we were -- if we are to approach it, eventually we will probably need to work with them, work with FEPAs at a conference, so that they can, you know, they can all express views on it.

VICE CHAIR SILVERMAN: But they do tend to stick together on this, which makes it, you know, very challenging.

COMMISSIONER GRIFFIN: Well, some of them do. I think that, you know, their leadership, you know, IOAHRA, those folks are clearly saying, you know, give everyone the same thing, that's what we want. But I think it's very difficult to argue to OMB to stop, you know, raiding the money that they should be getting without demonstrating to them, to OMB and to anybody else, that, you know, they are doing good quality work, that we do develop outcome measures, which we still haven't done, which I still think is a huge problem. And without, you know, changing the system to just go to OMB and say, you know, well, you know, this little, you know, tiny entity over here, you know, doesn't have much staff, they don't have much funding, so they only do this. And this one over here, you know, goes full blown for a hearing stage and yet, we give them the same amount of money. It just doesn't make sense.

So, you know, whether they like it or not, I think we have a fiduciary responsibility to make sure that the money is spent well. And at the same time, I think we have an obligation to Congress who appropriates and to OMB who apportions to demonstrate that this money is spent wisely and appropriately. And this one size fits all system, you know, doesn't do it. It clearly doesn't do it. Look at what’s happening to their funding.

MR. DOUGHERTY: Commissioner, if I might? One of the words, the phrase that you just used sort of struck me. You said without changing the system. And it strikes me that when you ask a FEPA what is their process and you described correctly some of the processes, including what you called -- referred to as a paper review versus a full blown hearing, etcetera.

The fact that a FEPA could say to us or to Vanessa, I have a hearing, is not the end of the inquiry, because a hearing is not a hearing is not a hearing. There are --


MR. DOUGHERTY: Right. So --


MR. DOUGHERTY: --So there are different systems. But with respect to the one size fits all, there was a time in the not too distant past that "big brother," that would be EEOC, knew better or thought it knew better and strongly suggested that all of the FEPAs think about doing it our way.

We don't have a hearing. The suggestion was, at that point, that the hearing was something that just elongated the process. Maybe it ended up better, maybe not, but for purposes of consistency and for purposes of designing, if everyone could redesign a system, it was the notion from EEOC that the system should be designed in the image of EEOC.

COMMISSIONER GRIFFIN: But no one is suggesting that.


COMMISSIONER GRIFFIN: No one is suggesting that.

MR. DOUGHERTY: I understand that.

COMMISSIONER GRIFFIN: What we are suggesting is that we look at what we are doing and I think it's problematic that we don't -- we aren't able, you aren't able, frankly, to sit and tell me right now exactly what everyone does and how they do it. And, yes, there are discrepancies between one agency saying I do a hearing and another agency saying I'm doing a hearing. And yet, I can't get that information about what that really means. That's going to be something that somebody is working on, I was told.

You know, how long have we been in charge of this program? When was the first time we got the funding to go to state/local Government agencies?


CHAIR EARP: But fundamentally, I hear two questions, maybe, and I think that they are both legitimate coming from Commissioner Griffin.

One is, do we have access to the information that for our 90 some odd relationships with the FEPAs that we know who does what? What services they provide for us. Then the second question is, should they all be paid, given the services that they deliver, should they all be paid the same amount for the services that they provide for us?

It's my understanding, we don't have the answer to the second question and we've just started that process last spring, last summer with Vanessa Boling coming to conduct a survey and ultimately an analysis of what we're calling the cost of enforcement. But the first question that I think I hear Commissioner Griffin asking, we should have the answer, easy access to the answer to that question. Do we?

MR. INZEO: We do have easy access to the answer to that question. And our district directors and state and local managers could certainly tell us as to each FEPA within that jurisdiction exactly how that FEPA works.

CHAIR EARP: But broadly here in Washington Headquarters, where we have the ultimate responsibility for oversight, are you suggesting that we can't broadly provide pretty much at a moment's notice to the Commissioners, those FEPAs that perform a hearing or do not, that do outreach or do not, that do investigations or do not?

Do we have to go to the district directors to get that information?

MR. DOUGHERTY: No, I'll give you the answer to two of those three right now. With respect to investigation and outreach --

COMMISSIONER GRIFFIN: No, no, no. Answer the question. Can you give me a document right now, upstairs, you can go get it, put your hands on it that actually says, here’s the 94 FEPAs, here’s what they each do?

MR. INZEO: Commissioner, I don't have it.

COMMISSIONER GRIFFIN: Because it is all different. It's all statutory.


COMMISSIONER GRIFFIN: And that's why no one is suggesting a cookie cutter approach, because they do all have different ways of doing things, and a lot of it is dictated by their statutes.

MR. INZEO: Commissioner, I'm not aware that we have such a document.

COMMISSIONER GRIFFIN: Okay. That's the real answer, because I asked this the other day and you told me the answer. The answer was no, you don't have it.

CHAIR EARP: But we will get it?

MR. INZEO: Yes, we will.

MR. DOUGHERTY: Commissioner, but if I might?

COMMISSIONER GRIFFIN: But how long have we been doing this? This doesn't make sense to me.

MR. DOUGHERTY: If I might? One of the responses to the cost of enforcement survey came in and it indicated that a particular agency, and I'm not going to name it, please, indicated that it had done a hearing. Somebody on my staff, in fact, had worked in the district office where that FEPA was located and indicated to me that that was news to her.

A number of phone calls were made to the district office and to the FEPA to inquire as to what's going on. It is something which is on paper in their statute, is permitted. It was done so infrequently while she was there, that she didn't recognize that it was done.

It was -- so on paper, there is a hearing and apparently it is done a few times a year. I'm just suggesting that the words on the paper did not reflect what the reality was on the --

VICE CHAIR SILVERMAN: But you’re also saying that the district offices have enough understanding of the FEPAs in their jurisdiction that if the FEPAs fill out the papers, the district office, being the, you know, relationship, would know what is and isn't adequate. And even if we have sort of a standard, that this really is a hearing. Is a hearing done in every case? You know, all of that, I mean, I can't imagine that, you know, district by district, and I'm not trying to pile more work on our people, but that we couldn't pretty easily figure out, you know, what they say and how we look at what they say and come up with one document that just gives us --

MR. DOUGHERTY: Yes. You understand this is a different thing. You’re looking at a different thing other than the final product, which is what we have been looking at before. The final acceptable product at the end of the administrative process, whatever the administrative process has to be.

So I'm suggesting that if what you're saying is true, that you could look at different stuff, you could look at what happens in the administrative process, you can see how far the administrative process goes, but that is a different measure than the measure of -- at the conclusion of the administrative process, there is a document upon which the Equal Employment Opportunity Commission can rely in closing out the dual filed case that exists compatible with that.

VICE CHAIR SILVERMAN: I think we were talking about two issues, quality and the depth of what they provide. And I don't think, you know, if we ever look at changing the system, they -- both factors have to be in there, but we can't know without knowing the depth of the system as well as the quality. I think is what we’re saying.

CHAIR EARP: I think I’ve lost any control over the five minute rounds. I may have started. Okay, let me --

MR. RUSSELL: We just finished round two.

CHAIR EARP: We just finished round two? Let me try to start this again. And, Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. You know, I'm -- I think all these questions that we just talked about are intriguing. I’ve a somewhat more mundane question that maybe Mr. Russell can help me out here or somebody on the panel.

We’ve added two new FEPAs. Can you walk me through how FEPAs are added? I know in the Fair Housing context, the statute requires them to be -- their statute to be substantially equivalent. And we don't have that same requirement here. What do we look at to see whether FEPAs should be added to our list?

What sort of analysis is done and who is that analysis provided to? Because what I have in front of me is a recommendation, which I appreciate, that we should add two new FEPAs. I don't know what they do. I don't know the reach of their statute. I don't know their fundamental capabilities, for both these new FEPAs coming in as well as the ones that we have. And I don't know if you are in a position to tell us or whether the Office of Legal Counsel does a legal sufficiency review to see if it's legally sufficient, but you rely on the program office to do it.

MR. RUSSELL: We did review these. I’d have to pull the document to see, you know, what the exact analysis was, but I know we did review them.

MR. DOUGHERTY: If I might, you absolutely, positively have 100 percent on the HUD and that's -- you are also correct that it's different from us. The substantial equivalency in HUD is, as I understand it, a chapter and verse, line by line.

COMMISSIONER ISHIMARU: It's required by statute --


COMMISSIONER ISHIMARU: -- that they be substantially equivalent, but we don't have that same --



MR. DOUGHERTY: What we have from Legal Counsel, I think there was somebody in OFP who used to be in legal counsel. They have to have a statute. They have to have the authority to grant or seek relief or the other thing is the… Tom? the a… --

MR. INZEO: Grant or seek relief.

MR. DOUGHERTY: -- grant or seek relief.


MR. DOUGHERTY: I mean, that's it. I mean, it's a very -- and that's in the statute. So they present a statute which covers things that we cover, roughly the same as the stuff that we cover. And even -- and it gets even to the point, Commissioner, which I think you asked a very important question, and there is some disagreement on this, but I think maybe I've prevailed over the years. We have to know that there’s somebody there to do the work, even though it's not required, that it’s going to be staffed up.

COMMISSIONER ISHIMARU: Is that put in writing? Now, is this analysis actually done?


COMMISSIONER ISHIMARU: Is memoranda put in the file?


COMMISSIONER ISHIMARU: Or is this an -- you know, done on an oral basis or, you know, just someone just --

MR. DOUGHERTY: They submit pieces of paper, right.

COMMISSIONER ISHIMARU: And then we analyze the pieces of paper?


COMMISSIONER ISHIMARU: And is that analysis actually written up and does it have to meet a test that --

MR. DOUGHERTY: The threshold that I just said.

COMMISSIONER ISHIMARU: And is our analysis then, where does that go? You know, I appreciate that it might not come to us, but, how do we know what’s actually done on a day to day basis? What happened in these two cases? What happened in Guam? What happened in Erie, Pennsylvania?

MR. INZEO: Typically, and I think I know very little about Guam, but typically, the district office will work with an agency that isn't yet designated as a FEPA agency. And if they conclude that the agency would qualify as a FEPA, sometimes they will work with them. But then they will get the agency to request designation as a FEPA from us.

In the case of Guam, I know that the formerly San Francisco District Office and currently the Los Angeles office has been working with them, because there was a desire on the federal government's part to build up the internal government in Guam, so that they could perform functions that many state governments perform.

And the EEOC office, especially, you know, for many years it was the San Francisco District Office, worked with the Department of Labor to build up that capacity. The FEPA --

COMMISSIONER ISHIMARU: Without providing funding to do it, right?

MR. INZEO: Without providing funding from us, because it was for years provided by the Department of Labor.


MR. INZEO: Just through some program dealing specifically with Guam. The Guam agency and the Erie County agency that have now requested FEPA designation, when we get that, if we believe that they would qualify, we would ask for a Legal Counsel opinion on that.

We would ask the Attorney General of the state, Guam and Pennsylvania, whether they meet the qualifications and, you know, under state or territory law, they are eligible. And that all gets done before a recommendation would be made.

CHAIR EARP: May I jump in?

MR. INZEO: Sure.

CHAIR EARP: Since we are at the end of your five minutes.


CHAIR EARP: I want to ask the two of you to respond to my understanding. And it is essentially this, that historically, EEOC served as a mere pass-through for the 706 or state and local agencies. We neither took an active voice in attempting to manage them or monitor them, that we have historically decertified very, very few FEPAs or asked a lot of probing questions about how the money is used. It’s placed in our budget. It passes through to the state and local agencies.

It's my understanding that with this current Commission and to some extent the last Commission, we have become much more actively involved, perhaps from the FEPAs' perspective even meddlesome, in raising questions, the expectation of performance, the expectation of accountability that Commissioner Ishimaru has mentioned a couple of times.

Now, this is my understanding of how the FEPAs have been handled. I see Mike shaking his head. If my understanding is not correct, would you, please, fill us in on what we’ve done to manage, monitor, hold the FEPAs accountable? Because Commissioner Griffin has presented the question of how many years? Now, my understanding is, the way we are treating the FEPAs now is fairly new, but if it's not, then Commissioner Griffin's question has even more potency.

MR. DOUGHERTY: I didn't mean to shake my head. I was just making sure it was still there. I believe the FEPAs would disagree with what you said, because many moons ago, at a time when -- which I will call the Jim Troy era, in a respectful and caring way, the FEPAs were very much, in their opinion, and you’d have to ask some of them who were around at that point, that we were very much involved in everything they did and we asked way too many questions and we pushed too much and we did too much and we required too much.

And whereas, back in the old days, there was no time frame within which a case had to be submitted when we went to 10 years and then 7 and 6, etcetera. We had -- it was not --

CHAIR EARP: So you would disagree that the money was merely a pass-through?

MR. DOUGHERTY: Well, the money part of it, Madam Chair, I'm not sure. I would say the money was -- the money, the formula that you’re referring to, the desire was before my time. It was as a result of a meeting that Nick described, I think, absolutely positively correctly, that would have to be done if you wanted to change the way it was done.

The money thing was done, but there were strings attached, you know, the 35 percent administrative threshold, the 10 percent lack of jurisdiction threshold. There were things that were put into place that they would say was a -- very much of an involvement that by EEOC that wasn't necessary.

Thereafter, there was a loosening of that, if you will, to the extent that things were more consistent and there was less day to day involvement in that, which is not to say that that can't be revisited. So I guess I'm just not sure how to answer the money part of it.

But there is no question that you are correct that the money was taken and it came through EEOC and it ultimately made its way to the FEPAs. Whether that was with or without requirements placed on by us, that's the only thing I'm a little --

MR. INZEO: And can I add one thing to that?

COMMISSIONER ISHIMARU: Can Mr. Dougherty actually put a rough year figure on when the Jim Troy era was?

COMMISSIONER GRIFFIN: Can you actually answer the question I asked to begin with? What year did we actually start getting the money for the FEPAs?

MR. INZEO: FEPA money was added to the budget, I believe, in the second year of EEOC's budget, so that would have been 1966. The -- I -- the Jim Troy era would have been early -- started in the early to mid '80s and it would have ended in the -- it would have ended around 1993.

COMMISSIONER GRIFFIN: And actually, I do know in '95 and '96 when I was here working for Paul Igasaki, there was a lot of discussion about the FEPAs and about the money and a lot of activity.

MR. DOUGHERTY: Yes, and it wasn't -- the –

MR. INZEO: I know, Commissioner, in the late '70s was the first time that the Commission actually tied the money to charge resolutions. So in 1977/1978, that would have been the first time that that would have happened.

COMMISSIONER GRIFFIN: And I would think that if Congress wanted it to be a pass-through in that we don't, you know, oversee it in any way, shape or form, they would’ve just given it to them directly and not had to go through an agency. And I think if it was a pass-through, frankly, we wouldn't need any staff. It would be a fiscal -- something done for our fiscal office and we wouldn't need Mr. Dougherty or anybody else on staff, frankly.

MR. INZEO: Commissioner, let me-- one thing about that and I was going to supplement Mike's response. The charges that we reimburse FEPAs for are dual filed charges. They are filed with us and with the FEPA. We -

COMMISSIONER ISHIMARU: Mr. Inzeo, the charging party goes to one office though, right? This dual filing is a technical term that it goes to both agencies, but it's my understanding that the charging party only has to go to one office to file the charge, right?

MR. INZEO: That's the way it’s done under the work sharing agreement that we have with them, yes, correct.

COMMISSIONER ISHIMARU: So charging parties virtually never have to go to both offices. They go to one office, file their charge and then it's shared between the agencies. Is that --

MR. INZEO: By virtue of the work sharing agreement, it's then filed, dual filed with both agencies, that's correct. And that's -- I mean, that's something created by EEOC. Once that charge is then resolved by the FEPA, we will do -- many of them are certified and we would for a certified agency automatically accept their resolutions, although the parties are given an opportunity to request a substantial weight review.

And we do a considerable number of substantial weight reviews each year, which -- where the district offices then look at the documents submitted by the FEPA and we look to make sure that it meets the standards that EEOC has enunciated, you know, before authorizing payment of those. And there are a large number of substantial weight reviews done each year.

MR. DOUGHERTY: And in those cases that Nick is correctly referring to, and I'm sorry I didn't say that, Nick, is that when those charges are resolved by the FEPA and accepted by us, the charging party is given a federal right to sue, at that point.

VICE CHAIR SILVERMAN: And those federal right to sues are part of our right to sues, their right to sues?

MR. INZEO: They’re ours.


MR. DOUGHERTY: They’re ours.

VICE CHAIR SILVERMAN: So that's part of our total number?

MR. DOUGHERTY: Correct. Well, it's part of the number that the FEPAs have to process.

MR. INZEO: Right.

CHAIR EARP: Are we double counting that somewhere?

MR. DOUGHERTY: No, no, we’re not. We're absolutely not.

VICE CHAIR SILVERMAN: But it goes to them, but it's part of our charge filings? It's only -- no, it's not. Okay.

MR. INZEO: When we report on charge filings, those that are done by the FEPAs are FEPA charged, they’re counted as FEPA charges, not as ours.


MR. INZEO: So we do keep those separate.

COMMISSIONER GRIFFIN: So even just -- it's state rights as well their --

MR. INZEO: Right, federal rights.

COMMISSIONER GRIFFIN: -- federal rights are protected.

MR. INZEO: Right.

MR. DOUGHERTY: And that's the point.

CHAIR EARP: Well, thank you for correcting my misunderstanding. But that probably poses a different question about how do we get to the point of what seems like lax accountability where we are today, given how much there may have been during the Jim Troy era. But I'm going to start with the Vice Chair and see if we need another round of five minute comments, questions?

VICE CHAIR SILVERMAN: No. I'm going to defer.

COMMISSIONER ISHIMARU: I’ve a few questions and then I have a suggestion to you, Madam Chair to help move things along. I just wanted to get a couple of things clarified. Mr. Russell, do you know whether the Office of Legal Counsel actually reviewed these two submissions? Do you know one way or the other? You have a lot of stuff on your plate and I don't want to put you on the hook. And you can answer me after the meeting, after consulting with the appropriate folks, but do you know?

MR. RUSSELL: The memo that you got, the memo for this meeting says that we did. If it was done, it was done a while ago. I have no moral certainty about it. I haven't seen them, but I can check.

COMMISSIONER ISHIMARU: Great. I’d appreciate that, thank you. The other question going to the substantial weight reviews, has there been a trend over the years? Have the number of substantial weight reviews gone up or gone down over the years?

MR. INZEO: The --

COMMISSIONER ISHIMARU: Because it's my understanding that they’ve gone down as -- if you look at the quantitative measure of what's actually happening, that there are less being done today.

MR. INZEO: The -- Commissioner, within the last few years, and it was done while I was in the Office of Field Programs, we did come to the Commission with the recommendation that we no longer do a substantial weight review on every ADA charge that a FEPA processed. And that we review FEPA charges the same way we review all other charges, ADA charges.

The Commission approved that and so now, I believe that we're reviewing roughly 10 percent, whereas before we reviewed all of them. So that would indicate that there would be a smaller number now than there were before.

COMMISSIONER ISHIMARU: And if you take those out of the equation, is the trend upwards, downwards or flat?

MR. INZEO: That I don't know. I don't know that, Commissioner.


COMMISSIONER GRIFFIN: Is it 10 percent overall? I mean, what are we -- so we're looking at 10 percent of all charges filed with the FEPAs for a substantial weight review?

MR. DOUGHERTY: Although, it might be more if there are additional requests in a particular jurisdiction office for whatever reason.

MR. INZEO: Right. The parties are given the opportunity to ask for a substantial weight review in addition to our doing so -- our doing 10 percent on our own, so,

COMMISSIONER ISHIMARU: Madam Chair, I have a suggestion, since this discussion has gone -- has been wide ranging, that I must say that I am not, at this point, inclined to vote for this contract today. And that if it was put to a vote, that I would likely vote no.

And I think there are a lot of unanswered questions that need to be addressed, so questions can be raised, answers be provided, so that we all have an understanding of what is going on with this program. As much as I’d like to get the money out to the FEPAs for this fiscal year, because many of them survive on our money, I think we're at a somewhat earlier stage in the process than we historically are on the time line.

And I would ask that we put off the vote today, because it's, from my counting of the votes, we may, in fact, not have enough votes to pass this today. And I think there are plenty of questions that have been raised that deserve a fuller exploration. I know that the FEPAs have a conference scheduled for the end of February. And I know that I had planned to go there along with Commissioner Griffin to raise a number of these issues and to hear back from the FEPAs.

And I know you’re going as well. I don't know if the Vice Chair is going. But we’ve all had these conversations. And I think during the course of this discussion today, there are still a lot of questions that many of us would like to get answered before we come to a vote.

So I raise that as a suggestion. But I think we may better spend our time getting -- you know, having a fuller discussion whether it's informal or at a meeting, but to not try to do it all today.

CHAIR EARP: Thank you Commissioner for the suggestion. I guess the appropriate way to entertain that would be with a motion. I would comment that much of what we heard today is institutional, it's organizational, it's longstanding, it's historical and while we can all agree that there is a need to correct these institutional issues, the need to get the money to the FEPAs as quickly as possible in light of what you said, many of them depend on us, I think that is something that we should also consider.

So I’d like to have your permission to do a 10 minute recess and then reconvene to pick up at this point. May I? Thank you. 10 minutes.

(Whereupon, the Commission recessed briefly and then reconvened.)

CHAIR EARP: The meeting will now come to order. Over the last 40 to 45 minutes or so we have been caucusing about the suggestion that was given at the end of the meeting by Commissioner Ishimaru. It appears that during these caucus sessions, we may have figured out a way to respond to the suggestion that has been presented to the Commission.

In the interest of being able to reach some agreement on exactly what has come out of the caucus, I'm going to ask Mr. Inzeo to articulate his understanding of what would be required to respond to the suggestion Commissioner Ishimaru has made. Mr. Inzeo?

MR. INZEO: Thank you, Madam Chair. My understanding is that we would need to collect all of the information in EEOC's possession. And when I say EEOC's possession, I mean, Office of Field Programs and all of the district offices, as to the outreach plans that we have for the FEPAs as a result of those modifications last year.

And we would review what has been submitted. Where there’s an absence of a submission or, in our view, an insufficient submission, we would require by date certain, I think I suggested at one point a month, that it would be -- that either the absence of a submission or an insufficient submission would be corrected within that one month time period.

We would report to the Commissioners, both by Tuesday as to what plans there were, what -- how many were sufficient or not. And then we would again report to the Commission at the end of the month to report how many plans were submitted, how many were sufficient. And that would be the information that we would provide to the Commission.

CHAIR EARP: And in exchange for providing that information?

MR. INZEO: That there would be a vote to approve the FEPA budget package on Tuesday. CHAIR EARP: Okay. I would like to get a response from Commissioner Griffin on what’s been articulated as a way to move forward.

COMMISSIONER GRIFFIN: All right. So my understanding is that before we vote on this package for the FEPA budget on Tuesday, we would get information regarding the number of FEPAs that have actually submitted a plan that would give them the opportunity to get the outreach funding that we voted on last September; that we would have some sense of whether the plans were sufficient or not and included their -- at least something was articulated on whether they -- and how they would measure the impact of their outreach on their charge receipts.

And I think you also would have some recommendation about what to do to resolve those that aren't sufficient and those that have not, to date, asked for that outreach money. Is that right?

CHAIR EARP: Do I understand that a part of what would be expected on Tuesday is information on how to measure the impact of the outreach money? So some kind of impact analysis would be expected on Tuesday?

COMMISSIONER GRIFFIN: No, no, I actually -- because I think it's too early for them to figure that out. I just -- what they -- what we voted on was that they would have this outreach plan and it would include a way -- they would actually put in their plan a way that they were going to measure the impact.

What I'm trying to minimize is that we're back in the same position next September dealing with this extra money. Them saying again, oh, give it to us for outreach, because that's why our charge numbers are down. You know, and we had a lot of discussion about this last September that, you know, we needed to demonstrate.

That was all anecdotal. No one could prove it. And that we needed some demonstration and so they were going to include that in the outreach plan. So we would want, you know, to know who submitted a plan, how many, how many haven't, were the plans sufficient? Did they include that measurement? Whatever it is, they could have picked. I mean, we're not even, you know, and, you know, how we're going to sort of prevent this, you know, sort of mismanagement of this in the future, because we’ve -- you know, we’ve come to this every year and we don't seem to be able to figure out how to address it and how to manage it better, so,

CHAIR EARP: So when this information is provided, are you prepared to vote for the approval of this 2008 FEPA appropriation?


CHAIR EARP: Would you be prepared to vote it notation? Because we don't have seven days between now and then to comply with the Sunshine Act.

COMMISSIONER ISHIMARU: Well, but it's my understanding that we could continue this meeting and meet again, because the notice was given for today, so we would have given the notice under the Sunshine Act for this item. So, you know, my guess is --

COMMISSIONER GRIFFIN: We could actually keep the meeting open.


COMMISSIONER GRIFFIN: And then put this --

COMMISSIONER ISHIMARU: And agree to meet again on --



CHAIR EARP: So, you're saying that you would vote pursuant to the requirements articulated, but you want to do that voting at a meeting?

COMMISSIONER ISHIMARU: Well, and, Madam Chair, if I might, let's say hypothetically Mr. Inzeo asks people to provide this information. And let's say hypothetically that there are no plans and we have a month-- you know, he gives his period of time for people to come up and make – lay out what their plans are on how to use this money. I would hope that we would get that back in a month and we would have a meeting on that to see if it worked out, so the record could reflect that, in fact, this issue has been resolved. I don't think the requirement that's placed here that an agency come up with a plan is an onerous burden. And I think from the discussion, nobody’s asking agencies to actually prove that they positively impact charge development in the course of this plan. I think they’re looking for, you know, how do you measure it?

CHAIR EARP: Okay. I --


CHAIR EARP: -- just want to be clear that you’re stating on the record you’re going to be prepared to vote this contract on Tuesday, correct?


CHAIR EARP: Commissioner Griffin nods in the affirmative.

COMMISSIONER ISHIMARU: Well, you know, if you have Commissioner Griffin's vote, then you really don't need mine.

CHAIR EARP: I always need yours, Commissioner.

COMMISSIONER ISHIMARU: Well, yes, I guess I've been troubled by what’s come out during the course of this hearing. And I know that we're trying to limit the issue at hand to the issue of what's in the contract, and I appreciate that. I would hope that we, at some point, on the record deal with these various issues that we’ve laid out.

Now, I don't expect you to make a commitment to do a meeting, because meetings are hard to do and there’s plenty of other things we could do a meeting on. And the three of us were at a forum earlier today that raised interesting issues on a whole different matter, that, you know, it would be great to have another meeting on. We can talk about that.

So, you know, if we vote on it next Tuesday, that would be fine by me, too.

CHAIR EARP: Okay. I think that the – Commissioner Griffin?

COMMISSIONER GRIFFIN: No, I was just going to say, do you need a motion to --

CHAIR EARP: Yes. I was going --


CHAIR EARP: -- to say the appropriate mechanism --


CHAIR EARP: -- to get this before the Commission is, I think, first, help me out, Legal Counsel, a motion to postpone?

MR. RUSSELL: I think you would have a motion to postpone consideration and then you need to have a motion to change the agenda for next Tuesday's meeting to add this to it.


MR. RUSSELL: It's the safest way. We could -- you could --

COMMISSIONER ISHIMARU: Doesn't that violate the Sunshine Act?

MR. RUSSELL: No, not if you vote that Agency business requires it.

COMMISSIONER ISHIMARU: But could we also just stand in recess until next Tuesday at the time and deal with it then?

MR. RUSSELL: I think you increase the risk of bringing the Agency into litigation if you do it that way. We might win, but you increase the risk. The less risky alternative is to vote in this meeting that Agency business requires changing the meeting next Tuesday on less than seven days’ notice.

I'm not saying your position’s not well-founded. I just -- it reduces the risk.

COMMISSIONER ISHIMARU: But it's similar to the times when we’ve had to have emergency meetings because Agency business requires it.

MR. RUSSELL: It's similar to that. It's just a slightly different procedure. They're both in the regulations on the Sunshine Act.

CHAIR EARP: So before calling for the motion, are there final comments? Commissioner Griffin?

COMMISSIONER GRIFFIN: No. I mean, we're entertaining, I guess, several motions here, so --

MR. RUSSELL: Madam Chair? May I state for the record, I didn't mean to suggest that Commissioner Ishimaru wanted to get the Agency sued.

CHAIR EARP: Absolutely. We didn't interpret it that way.

COMMISSIONER ISHIMARU: Point of personal privilege, I appreciate that.

CHAIR EARP: I just want to be sure before we call for the motion that there’s no other discussion or questions, comments. Vice Chair?

VICE CHAIR SILVERMAN: No, there’s no discussion.

CHAIR EARP: Commissioner?

COMMISSIONER GRIFFIN: Just what I'm wondering is do we then -- do we actually have a motion as well that spells out what we are requiring to go to the next meeting or did that discussion suffice? Do we need a motion that actually says this is what we expect? No?

MR. RUSSELL: I don't think so.


MR. RUSSELL: I think your motion -- you have a motion to postpone the consideration of the agenda item from today and then a motion to change the subject matter of next Tuesday's meeting to add today's agenda item to it.


COMMISSIONER ISHIMARU: Madam Chair, I’d like to be clear though. I want to make sure that on Tuesday, we will have access to these plans that have come in to see what’s come in or will we be given the number only of plans that have come in? Will we be able to see the actual paper that came in?

MR. INZEO: Commissioner, when we had the discussion, I was told no, but I don't have an objection to that. I was told that you didn't -- that the Commissioner didn't need to see the plans. She wanted to know that we had seen them and reviewed them.

COMMISSIONER ISHIMARU: Well, but you will actually have the plans in your possession, right?


COMMISSIONER ISHIMARU: And I guess I’d like to retain the option of just seeing these, just to see what they look like.

MR. INZEO: I don't object to that.

COMMISSIONER ISHIMARU: And I take it that that's a corporate I don't, we don't? I don't want to be an obstructionist, but, you know, I -- but I assume that some agencies have turned in plans. I don't expect them to be, you know, a huge dissertation on what they plan to do, …

MR. INZEO: Right.

COMMISSIONER ISHIMARU: But that there was some thought put into how we spend this modest amount of Government funds. And it would be good to see how they did it.

CHAIR EARP: For purposes of Tuesday, the information to be provided, can we stipulate that OFP will provide to the Commissioners the number of plans received, as well as where there is a written plan, notwithstanding how little substance might be there, be it communicated by email, fax or notated telephone call, that that information, as well as the number of plans will be provided to the Commissioners.

In addition to the number of plans and the content of the plans that OFP will provide some indication of its review of the sufficiency of those plans. Good plans, not such a good plan, additional information needed.

And finally, can we stipulate in addition to those two items, the final item would be a recommendation from OFP on how to improve the process, specifically regarding outreach, should we find that at the end of 2008 there is additional money left over that requires us to go through a similar process of how to spend it on outreach.

This is a more limited presentation than the bigger question of tiered funding for FEPAs, some of the structural barriers that we need to address.

COMMISSIONER GRIFFIN: Yes, I think we're being very specific about, you know, this particular budget and what happened with last year's money.

CHAIR EARP: Are we clear?

MR. INZEO: As part of the first part, you want to know the number received and where it’s written in any form of writing. I'm not sure what we are to provide.


MR. INZEO: A copy, okay.

CHAIR EARP: We’ll make it available and if the Commissioners want to review it, they will have it.

MR. INZEO: Okay. Yes, yes.

CHAIR EARP: Agreed? Okay.

COMMISSIONER ISHIMARU: That would work for me.

CHAIR EARP: Having stipulated what’s going to be provided by Tuesday at -- we need a time, because we’re scheduled for a meeting on Tuesday, will be provided on Tuesday, February 19th, not later than noon.

COMMISSIONER GRIFFIN: The meeting’s at 10:30, right?


CHAIR EARP: No, we haven't decided this meeting yet, exactly when this meeting is going to take place. The other meeting is at 10:00.


CHAIR EARP: Not later than?

COMMISSIONER ISHIMARU: Could we get it by 9:00? So in case we --

CHAIR EARP: Not later than --

COMMISSIONER ISHIMARU: -- this all may go fairly quickly.

CHAIR EARP: 9:00 a.m. on Tuesday?

COMMISSIONER ISHIMARU: Yes, because it will either be done or it won't.

CHAIR EARP: Right. 9:00 a.m. on Tuesday, February 19th, you will provide the information that you’ve gathered over the next couple of days.

MR. INZEO: Okay.

CHAIR EARP: To the Commissioners.


CHAIR EARP: By 9:00 a.m.


CHAIR EARP: Okay. Having said that, is there a motion to postpone this meeting on the vote of the 2008 Budget Allocations for State and Local Programs to Tuesday, February 19, 2008? Is there a motion to postpone?


CHAIR EARP: And seconded?


CHAIR EARP: Discussion? All in favor?

ALL: Aye.

CHAIR EARP: Unanimous. Thank you. The motion carries. Okay. We also need a motion to continue this meeting to raise this subject matter at the meeting on February 19th without complying with the Sunshine Act Notice of seven days.

VICE CHAIR SILVERMAN: Not to continue to the next meeting, to add it to the agenda of the next meeting. Isn't that what you said?

MR. RUSSELL: You’re going to comply with the Sunshine Act by voting that less than seven days is required.

CHAIR EARP: So that's the vote?

MR. RUSSELL: Because it's the Agency business requires it.

CHAIR EARP: So the --

MR. RUSSELL: You are complying with the Sunshine Act.

CHAIR EARP: So the motion is to have a meeting. Okay, let's try this. We need a motion to add consideration of the agenda item from today's meeting to the meeting to be held on Tuesday, February 19th. Appropriate motion? Is there a motion?




CHAIR EARP: Discussion?

MR. RUSSELL: Madam Chair, the motion needs to say the part about business requiring.

CHAIR EARP: The change?

MR. RUSSELL: The business requirement.


MR. RUSSELL: The whole thing.

CHAIR EARP: For the record, is there a motion to add consideration of the agenda from today's meeting to the meeting to be held on Tuesday, February 19, 2008? This change is being announced with less than seven days notice, because business reasons dictate that we cannot get this done earlier than -- earlier announcement of this change is not possible.


CHAIR EARP: Do I hear a second?


CHAIR EARP: Discussion?

COMMISSIONER ISHIMARU: Madam Chair, I don't wish to prolong this any further. I am somewhat reluctant as a matter of principle to waive various statutory requirements for the business of the Commission.

It goes to a number of fundamental issues of procedural fairness. I will not object to this. I think a vote should go forward, but this issue will come up at future meetings of whether we should waive requirements to get something done that's not in compliance. But I will not object to this.

VICE CHAIR SILVERMAN: But you assume that if somebody wanted to hear what we were talking about, that they would be here today.

COMMISSIONER ISHIMARU: Yes, I think, in this case, it probably does not have a negative impact.

VICE CHAIR SILVERMAN: I just thought I would point that out for the transcript for those who, you know --

COMMISSIONER ISHIMARU: No, I appreciate that. But I --

VICE CHAIR SILVERMAN: -- don't look out there and see pretty much only our points.

COMMISSIONER ISHIMARU: I also realize that it's – there’s a danger in waivers. And I just wanted to point that out. But I will not object.

CHAIR EARP: I'll consider Commissioner Ishimaru's comments discussion on the motion, and ask for a vote on the motion. All in favor, please, say aye.

ALL: Aye.

CHAIR EARP: Opposed? [No response] Unanimous. Thank you. I want to thank everyone for joining us today. My fellow Commissioners for --


CHAIR EARP: -- their willingness to caucus. There being no further business, do I hear a motion to adjourn the meeting?




CHAIR EARP: All in favor?

ALL: Aye.

CHAIR EARP: The ayes have it. Thank you.

(Whereupon, the meeting was concluded at 4:40 p.m.)

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