The U.S. Equal Employment Opportunity Commission

Commission Meeting of April 6, 2007

The Commission convened at 10:00 a.m., Naomi C. Earp, Chair, presiding.

PRESENT:

NAOMI C. EARP, Chair
LESLIE E. SILVERMAN, Vice Chair
STUART J. ISHIMARU, Commissioner
CHRISTINE M. GRIFFIN, Commissioner

INDEX

1. Announcement of Notation Votes
2. Motion to Close a Portion of the Next Commission Meeting
3. FY 2007 Budget Allocations for the State and Local Program
4. Motion to Approve the FY 2007 Budget Allocations for the State and Local Program
5. Motion to Adjourn

PROCEEDINGS

10:00 a.m.

CHAIR EARP: The meeting will now come to order. As many of you know, today is Good Friday, and it is also Passover. If you have colleagues or friends who would be interested in today's meeting but they can't be here because of religious observances, please let them know that we will post the transcript on EEOC’s website. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberation and voting. At this time I am going to ask Michelle Waldron to announce any notation votes that have taken place since the last Commission meeting. Ms. Waldron?

MS. WALDRON: Good morning Madam Chair, Madam Vice-Chair, Commissioners. I am Michelle Waldron from the Office of the Chair. We would 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 conversation outside the meeting, 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 of February 27 through April 5, 2007, the Commission acted on seven items by notation vote. Approved litigation on two cases;

Approved the Federal Sector Decision in Rico v. USPS;

Approved resolutions honoring Robert G. Johnson and Kathryn B. Olson on their retirement;

Approved the proposed rule to harmonize EEOC'S age discrimination regulations with the Supreme Court's decision in General Dynamics Land Systems v. Cline; and

Approved the Spring 2007 Regulatory Agenda.

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.

COMMISSIONER ISHIMARU: So moved.

CHAIR EARP: Thank you. Do I hear a second?

VICE CHAIR SILVERMAN: Second.

CHAIR EARP: Is there any discussion? Hearing none, all those in favor please say aye.

Chorus of Ayes.

CHAIR EARP: Opposed? The ayes have it and the motion is carried. Today's agenda will cover just one item, that is the 2007 Budget Allocations for the State and Local Program. Fair Employment Practice Agencies are our partners. Our partnership with the FEPAs has been an essential and integral part of EEOC operations providing a critical component in helping us to meet our mission. The Commission as a whole values this partnership and I personally value this partnership. In January, I met with the Board of the International Association of Official Human Rights Organizations. There, I expressed my belief that we should, the EEOC, and IAOHRA and its FEPA members, that we should strengthen and enhance our existing partnership. The meeting was also attended by the primary staff within EEOC who are responsible for state and local programs, Nick Inzeo and Mike Dougherty. The meeting was open, it was productive, it was constructive; and it led to suggestions that we should expand our relationship with the FEPAs. Of primary concern during that meeting to the FEPA board, to the member agencies and to Jim Stowe, the IAOHRA President, was the 2007 allocation. At the time of that meeting in January, none of us at EEOC were sure of what the Continuing Resolution amount would be. We knew that the CR was out there and soon to be acted on, but we didn't know exactly what the amount would be. At the meeting we heard the FEPA’s concern about their funding and we were sensitive to their concern that when there are cuts, that the cuts to the FEPA budget necessarily be done in an equitable manner. As you are all aware, the continuing resolution was approved at a not-to-exceed amount of $32 million dollars for the state and local programs. I personally requested when we got that information, via telephone conference, a meeting with the FEPA’s joint state local standing committee and IAOHRA. The purpose of that meeting was to work out a plan to discuss how we would spend that not-to-exceed amount. The FEPAs indicated that they would like to see a higher rate per charge and they would like to see more money committed to education and outreach. I agreed to both of those requests. Within days of that telephone meeting and within days of agreeing to the FEPA’s request, we were informed that we could only spend $30 million dollars of the allocated amount on state and local. I personally contacted Jim Stowe and advised him of this decision. The Commissioners were put on notice by my staff. Today's meeting was originally slated for March 15 at 1:00 p.m., but as a result of our notice regarding the CR, a two-week delay in the meeting was requested and approved. We are here today to vote on the FEPA budget so that the work they complete for us in 2007 can be compensated. We will now start with statements from our Commissioners and we will start in order of seniority, starting with the Vice-Chair.

VICE CHAIR SILVERMAN: I don't have a statement for today's meeting.

CHAIR EARP: Okay.

VICE CHAIR SILVERMAN: So I will pass it on to my colleagues.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you Madam Chair. When this journey began a number of months ago, I voted to put this on the agenda because the original proposal funded the FEPAs at 28 million because of the formula that was existing for the then pending CR and I thought it best that we wait until Congress acted on a final, a continuing resolution for the rest of the year, which they indeed did and came up with the funding figure of not-to-exceed, I thought it was a bit more than $32 million. I thought it was about 32.5 and I say it is almost 33 but somewhere in that neighborhood. And, it’s been our historical practice at the agency to fund the FEPAs, as I understand it, at the not-to-exceed level that we have in the past funded, fully funded the FEPAs at the level intended by Congress. Today we are faced with a different situation where we are funding FEPAs at less than the not-to-exceed level, less than the amount I believe Congress intended us to fund the FEPAs at. What we are looking at here is a cut of some, between two and three million dollars going to the FEPAs, not much money in the scheme of things when you look at the Department of Defense budget or even when you look at the EEOC budget. But when you look at the budget for the FEPAs, this represents a 10 percent cut, which is a major cut to their operations from the funds that they receive from this agency. And I also appreciate the difficult position the Chair is in because as she noted in her statement, she had meetings with the FEPAs, talking about how best to go forward, seeking their input and I think that was a valuable process and I am sure that the FEPAs appreciated the opportunity to weigh in. And it's a very difficult situation to be in when the Office of Management and Budget directs that the FEPAs be allocated some less than three million dollars than what some of us believe they should be getting. The OMB instruction unfortunately has pitted two mutually dependent partners against each other. And I unfortunately believe that it will take some time to repair the damage that this directive will do to our relationships with our state and local partners.

I believe that the budget proposal should be opposed for a variety of reasons. The FEPAs have a settled expectation that when Congress says that it appropriates an amount not-to-exceed a certain amount of money, it will have that amount of money. We've done this historically and except for the across-the-board rescissions that all agencies are subject to from OMB. I also believe that Congress in appropriating this money uses this number as a pass through, that we get this as an agent for the state and local programs, and that we should be passing this money through to the state and local programs, that we are not a fourth branch of government and that we should do as we have done in the past and as Congress has seen and approved us doing in the past, of passing this money through to our state and local partners. We have also, given past history, we've created an infrastructure that works quite well with respect to the FEPAs.

This budget proposal is the first to fund the FEPAs at less than 100 percent of the charges that they are expected to complete. For that reason I believe that another bad precedent will be set here and that the infrastructure and expectations that we have established through a lot of hard work over the years will be put at risk.

And finally, and most importantly, I believe that our FEPA partners do good work. They are often at the front line of defense to discrimination that occurs in this nation, especially in areas of the country where EEOC has little physical presence. Our budget problems should not be balanced on their backs. If EEOC takes a hit in its budget, the FEPAs should be expected to take a proportionate decrease, but they shouldn't bear the brunt of our budgetary shortfall or budgetary challenges as we are asking them to do today. So with that Madam Chair, I will stop. I have a number of questions for the panel and look forward to today's meeting. Thank you.

CHAIR EARP: Thank you Commissioner. Commissioner Griffin?

COMMISSIONER GRIFFIN: Yes, I too, think, agree with you with the other statement that the FEPAs are our partners and that the work that they do is a critical component of the work we do throughout the country and I value the partnership as well. That's why I really, I think the change in their budget this late in the year is just - it's problematic if it was at the beginning of the fiscal year. It's a bigger problem because it's occurring so late in the fiscal year and I just find it very troubling that OMB is able to do this and I have lots of questions, some big picture and then some little picture with regard to the budget, so as I said, I am troubled by this and the damage it could do to our relationship but also I think the damage it can do with the appropriators in Congress who said to us, we want you to give them this amount of money. So, I reserve further remarks for questions.

CHAIR EARP: Okay. Thank you Commissioner. Nick Inzeo, Director of Field Programs is here with us. He is accompanied by Mike Dougherty, Director of State and Local Programs. We will have a presentation by Nick.

MR. INZEO: Thank you Madam Chair and good morning Chair, Vice-Chair and Commissioners. We seek your approval today on the state and local budget. The original submission, as was noted, was made during the continuing resolution period and after consultation with OCLA and OCFO, it was submitted at the $28 million dollar level. Following the final CR as Chair indicated, we consulted the FEPA directors for input into the budget. Following that teleconference with the FEPAs, we learned that the apportionment for the state and local funds would be at the $30 million dollar level. We thus revised our original submission to reflect that budget amount. The four charts that you have attached to our proposal, reflects the amount and also provides a three-year historical perspective in terms of the expenditures of the state and local funds. Following circulation of the proposal, we did make some changes to accommodate comments made by Commissioners, changes to the joint outreach funding and to the delegation provision in the budget. With this budget presentation, we seek your approval of the budget amount so that we can get funds to the state and local agencies. Thank you.

CHAIR EARP: Thank you Nick. Vice-Chair do you have questions?

VICE CHAIR SILVERMAN: I am going to reserve my questions for after my colleagues.

CHAIR EARP: Okay. Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Reserve them for another day?

VICE CHAIR SILVERMAN: Possibly.

COMMISSIONER ISHIMARU: Madam Chair before I begin my questions, I would ask permission that we put in two letters that we received yesterday, one from Governor Corzine of New Jersey and one from Attorney General Stuart Rabner of New Jersey, both expressing their concerns with our possible actions today and urging us to fully fund the FEPAs at the level that was intended by Congress. So I ask that these be placed somewhere in the record.

CHAIR EARP: I think we can accept those for the record.

COMMISSIONER ISHIMARU: Thank you Madam Chair. Has this apportionment by OMB where they have funded the, or required us to fund the FEPAs at a level less than the not-to-exceed level ever happened before?

MR. INZEO: I'm not aware of it Commissioner.

COMMISSIONER ISHIMARU: And is it true that we funded in past years the FEPAs at the not-to-exceed level?

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: Okay. What -- do you have any idea of what or can you tell me what the response has been from the FEPAs to funding them at the $30 million dollar level than the level somewhere less than $33 million?

MR. INZEO: I defer to Mike on that since Mike has more daily contact with the FEPAs.

COMMISSIONER ISHIMARU: I'm sure the debate has been vigorous and --

MR. DOUGHERTY: The FEPAs, I think it is safe to say, have been not very happy about this development. I might even say they've been unanimously not happy but in my dealings with them they have been, appeared to be very professional and understanding of the predicament that we are in.

COMMISSIONER ISHIMARU: Yes. The current proposal proposes to reimburse FEPAs at a 91 percent rate, 91 percent of projected capacity, which is approximately 96 percent of the charges processed last year. Will that happen -- what will happen when and if the FEPAs process more than what's reimbursed?

MR. DOUGHERTY: Nothing will happen. What I mean is that the, this is the category of cases which in the past, when this has occurred and its quite a number of years ago, the FEPAs would suggest that they are doing the cases "for free," although indeed they are required to do those cases under their respective state and local ordinances, but they will still be dual-filed and will be closed by us as well.

COMMISSIONER ISHIMARU: Have we ever reimbursed FEPAs for less than 100 percent of the projected number of charges as we are proposing to do this year?

MR. INZEO: Yes we have.

COMMISSIONER ISHIMARU: When was the last time we did that?

MR. DOUGHERTY: I'm not sure what year, it's been a number of years.

COMMISSIONER ISHIMARU: A number of years.

MR. DOUGHERTY: And it was one when there was a lower level, at the $28 million dollar level, perhaps the $30 million, so it's a number of years.

COMMISSIONER ISHIMARU: It's my understanding that the current version of the proposal changes the delegation of authority to require that the Commission approve of any spending in excess of $100,000.00 or more after the third quarter modifications. Do we anticipate having any net resources available after the third quarter modification given this scenario? I know in past years we didn't plan to have it but we in fact did. Given how this has been cut substantially, do you anticipate that there will be resources available after the end of the third quarter?

MR. DOUGHERTY: Commissioner Ishimaru, I don't anticipate that there will be any net resources available. I think that the cut off the top of either the four percent or nine percent, depending on what beginning number you are talking about, will result in the FEPAs "spending" all of the money that is available. There will be some that don't make that level, but there will be many more that exceed. So there will be more takers than givers in the third quarter.

COMMISSIONER ISHIMARU: Let me ask one more question during this round. Do you know how OMB came to the level of $30 million dollars? How did this come to be the right number or the number that drove them to choose? Did we propose $30 million dollars to OMB as the proper number or did OMB propose it to us and what sort of formula might they have used or do you know what they used to come up with this $30 million dollars?

MR. INZEO: We don't know Commissioner.

COMMISSIONER ISHIMARU: Did we propose $30 million dollars or were we told that this was the magic number?

MR. INZEO: To my knowledge we proposed the appropriated amount but that, that is my knowledge of it.

COMMISSIONER ISHIMARU: And in your discussions with OMB, are you aware of them explaining how they got to the $30 million dollar number?

MR. INZEO: We didn't have discussions with OMB, Commissioner.

COMMISSIONER ISHIMARU: Do you know of anyone within the agency having discussions?

MR. INZEO: Typically that comes through the budget function which would be in OCFO.

COMMISSIONER ISHIMARU: Through Mr. Smith’s shop?

MR. INZEO: The Chief Financial Officer, yes.

COMMISSIONER ISHIMARU: And do you know whether OMB suggested or directed how the excess money should be used within the agency? Are you aware of any direction along those lines?

MR.INZEO: I'm not aware of anything that we received in writing on that, Commissioner.

COMMISSIONER ISHIMARU: Could I ask a few questions after, in another round?

CHAIR EARP: Sure.

COMMISSIONER ISHIMARU: I don't want to hog the floor right now.

CHAIR EARP: Okay.

COMMISSIONER ISHIMARU: Thank you Madam Chair.

CHAIR: Let’s see what’s on Commissioner Griffin’s mind.

COMMISSIONER GRIFFIN: Well actually I'm on the same track so, can someone and actually I am assuming it's Jeff or you as the Chair. Could someone explain because I really -- I have like no idea how something like this happens when Congress can appropriate and then they can apportion. So I just -- and why did they pick like just this piece? Why wouldn't they like pick other pieces of our budget? So is there -- it's like, is there a mechanism for how this happens and why it happens because when you mention this to people, people actually go "that's really weird." You know?

CHAIR EARP: Okay, let's, I think we can within Commission protocol have a witness that was not originally slated. Jeff, would you come up and join the panel.

COMMISSIONER GRIFFIN: Thank you.

CHAIR EARP: And would you give the Commissioners a five minute tutorial on the budget process, on the budget process.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I think this will be very valuable for all of us to understand the intricacies of the federal budgetary process and if we can do it in five minutes.

CHAIR EARP: Well, that's the trick, Jeff. Five minutes so that we can get back to the questions.

MR. SMITH: Good morning.

CHAIR EARP: Good morning.

MR. SMITH: First of all we use the word appropriation. I think everybody pretty well understands that Congress appropriates. What folks don't understand is that there is an additional administrative control in place called an apportionment. One cannot obligate funds until funds have been apportioned. Funds are apportioned by OMB. We ask. They apportion. And it's really that simple. The discussion earlier was do they do this often? Certainly not since I've been here with EEOC, but from my experience at other agencies, sure. And they have the option of doing it, to line items within the budget.

COMMISSIONER ISHIMARU: In your other experiences with OMB, how often did it happen and in what sort of context? Can you give us some sort of general?

MR. SMITH: A typical context is an administration policy decision to help an agency allocate limited resources.

COMMISSIONER ISHIMARU: But as a specific example when you were at HUD, did they allocate money to go to this program versus that program or how did it work?

MR. SMITH: That's typically what would happen. You know, six years plus ago, I can't tell you specific programs but they are helping the agency allocate their funds through the apportionment process.

COMMISSIONER ISHIMARU: Even if there's a congressional intent to fund something at a certain level.

MR. SMITH: Well, again, it says not-to-exceed.

COMMISSIONER ISHIMARU: No, I understand that but there is a congressional intent some would argue that.

MR. SMITH: One would argue that, yes, could argue that. So, it's really just a two step process. We request and they came back. To answer the earlier question, we went over at 32.5 which is about the right number and they came back at 30. And briefly, the context for the discussion was that we had presented to them an exploding private sector backlog. And they asked us what we were going to do about it and where we were going to get resources to begin to get that backlog down.

COMMISSIONER GRIFFIN: And you said, couldn't you give it to us? I'm just being facetious.

MR. SMITH: Yes, at that point in the process, you know, the mark had already been set, the ceiling for the agency, so this was about priority setting within the agency.

COMMISSIONER GRIFFIN: So, Jeff let me ask you. Did they come back -- so we said when we get an amount appropriated, then we send them something that says "okay, this is our best guess of how we are going to spend it"? Is that what happens? And then they come back and say, "No, we think you should spend it differently."

MR. SMITH: Well, I wouldn't say best guess. It is basically we are just asked to parse out two lines of our budget, our annual account and in this case, about $328 million. What we are going to spend generally and in the course of reporting it requires us to break out the state and local money. It's really that simple.

COMMISSIONER GRIFFIN: Oh, so we just present them with two lump sums. We say this goes to the EEOC. This goes to the FEPAs and they came back and said, "No we want the FEPAs to only get this amount."

MR. SMITH: Right.

COMMISSIONER GRIFFIN: Did they tell us how to spend it? Or did they just give us --

COMMISSIONER ISHIMARU: You are talking about the difference, the 2.5?

COMMISSIONER GRIFFIN: Right. Did they just give us 2.5 million? They take 2.5 from the FEPAs, put it in the EEOC line item. Did they say what they want us to do -- did they say do something?

MR. SMITH: I go back to what I said earlier is that they said your private sector backlog is exploding and basically they are saying that we need to get some resources to get that backlog down.

VICE CHAIR SILVERMAN: Jeff, how will that additional money help us? I mean, where do you see it going here?

MR. SMITH: Well we are committing the 2-1/2 million to front line staff hiring.

VICE CHAIR SILVERMAN: The front line staff. Do you mean investigators? People who -- attorneys? People who are helping the charging parties that come to us and the ones that we get through our FEPA referrals as well?

MR. SMITH: Yes.

VICE CHAIR SILVERMAN: Okay.

MR. SMITH: Based on program recommendations, you know, back to the Chair.

COMMISSIONER ISHIMARU: But is this money added to our base for next year for budgetary purposes? Because it seems to me that this is a one-time only extra money and that it's not added to our base for future year budgeting purposes. So we will have this extra money if we are going to focus it on reducing our backlog that will only be available for one year. And that after the end of the year, the money will go away. We will not have the resources to continue these people in place, so this money --

VICE-CHAIR SILVERMAN: Or could it be that this is a way to help us this year and then in future years they may take this into consideration?

MR. SMITH: Well, first of all our `08 mark is already set at around 327, so our mark for `07 is 328. So the money is still in the base.

COMMISSIONER ISHIMARU: Well the money is not in the base because we are freeing up 2.5 million extra that we did not anticipate for `07.

MR. SMITH: I respectfully disagree. The money is in the base. The decision then is how it's going to be prioritized in the fiscal `08 budget.

COMMISSIONER ISHIMARU: Well, how could it be in the base because this money was not expected until a few weeks ago? It was never part of our base.

CHAIR EARP: Commissioner, can I just say, we want to stay germane here today and I think that we are getting very close to having a discussion that was not in the Sunshine Act that we did not post as a subject for this meeting.

COMMISSIONER ISHIMARU: Well, it goes Madam Chair, to the whole notion of the state and local allocation for next year and the question of where we spend this so-called extra money, the 2.5 million that we will be saving is what I believe to be a policy decision of this body and something that I believe all of us should be talking about and it's very helpful to get an explanation from Mr. Smith on how the budgetary process works because that is something that most of us sitting up here don't understand and aren't paid the big bucks to deal with. But --

CHAIR EARP: I generally agree. I would just state that we are getting very close to having an issue of germaneness.

COMMISSIONER ISHIMARU: I appreciate that Madam Chair. I appreciate that.

CHAIR EARP: Do you have additional questions? Actually, Commissioner Griffin had the floor.

COMMISSIONER GRIFFIN: Yes hey. It's all right. So they didn't give us clear direction, you must spend this money on such and such? It is just this general idea of what we are going to spend it on. Could they come back at any time and re-org our budget? Could they come back and say "well, you know, we see that you put, you know, let's say $12 million into Outreach. Why don't you take another two or three of that and put it into staffing or something like that." Can they do that? Is that apportionment?

MR. SMITH: First of all, they don't apportion Outreach. Again, that's an agency priority setting responsibility within the base.

COMMISSIONER ISHIMARU: Could they?

COMMISSIONER GRIFFIN: Yes, that was my question. Can they?

MR. SMITH: It is not a separate line item in the apportionment request.

COMMISSIONER ISHIMARU: So is apportionment limited to the line items within the budget itself?

MR. SMITH: Within -- when you say line items, within the apportionment request. There are only two line items. State and local is broken out. The rest of it is just a lump sum.

COMMISSIONER ISHIMARU: Aportionment requests makes it sound like we are requesting the apportionment.

MR. SMITH: We are.

COMMISSIONER ISHIMARU: So we requested that the $30 million dollars be apportioned?

MR. SMITH: No sir. We requested 32.5 be apportioned.

COMMISSIONER ISHIMARU: Which would be our standard practice from past years that the --

MR. SMITH: Yes.

COMMISSIONER ISHIMARU: Okay. And then they came back and told us 30, okay.

MR. SMITH: With the discussion that they saw as we published our private sector workload expanding, exploding, as some people would use the term and that they wanted to help us with priority setting.

COMMISSIONER GRIFFIN: Let me ask you this. Now let's say it is next year. And I know the administration has requested 28 million for the FEPAs, but let's say Congress decides to give them the 33, and OMB doesn't apportion it differently, what are we are going to do with the staffing, the people that we hired with this money?

MR. SMITH: Well, I guess I am not being clear. The people that we are hiring with this money, we have money within the 327, with state and local at 28 to pay them in `08 or we wouldn't be making a decision to hire.

COMMISSIONER ISHIMARU: But yet it's not being added to our base for `08 because `08 has been set.

MR. SMITH: Yes sir.

COMMISSIONER ISHIMARU: So something is being cut. You can't add an extra 2.5 million that's more or less extra money for `07 without it having consequences for `08. Something has to give, doesn't it?

MR. SMITH: No.

COMMISSIONER GRIFFIN: Really? I'm having a difficult time understanding this.

CHAIR EARP: If the FEPAs are only allowed in `08 to spend $28 million dollars, whether or not we use the term of art -- added to our base or whether or not we understand what the budget Lexicon is, but if the FEPAs are held to $28 million, does it allow us to fully fund positions we are hiring for today?

MR. SMITH: Yes it does if we set the priorities properly in `08 within the 327.

COMMISSIONER ISHIMARU: But where does this -- what do we give up in `08 in order to continue these people who we weren't expecting in `07? That's what I don't understand.

MR. SMITH: Well there's only two line items in general terms. We have either personnel costs or non-personnel costs. So, what we would say is if it's important to keep those people on the rolls, then we would have to cut non-personnel costs in the budget.

COMMISSIONER ISHIMARU: So the priority programs that we've talked about in past meetings including the Vice Chair's Systemic Program and the E-Race Initiative and the other programs that we run at the agency, are those then subject to being cut because we've chosen to keep people on?

MR. SMITH: Each year we go into an operating budget to set what priorities the agency wants. The first cut is the pay for the staffing that's onboard and then to pay for the other services.

CHAIR EARP: Okay, I am going to rule that any discussion of the budget other than the FEPA budget specifically and the decision that we have to make today is out of order for germaneness but we can have a further tutorial with Jeff and budget staff outside this meeting to talk about the mechanics and the priorities setting of a budget.

COMMISSIONER ISHIMARU: I believe there was some talk of possibly doing a meeting like that at some point.

CHAIR EARP: A management meeting?

COMMISSIONER ISHIMARU: Right.

CHAIR EARP: Exactly. Commissioner Griffin, do you want to continue? I don't know where your time is to tell you the truth. You have been interrupted so much.

COMMISSIONER ISHIMARU: I would grant her the full five minutes, Madam Chair.

CHAIR EARP: Okay.

COMMISSIONER GRIFFIN: Well, besides the budget questions, as it relates to us overall, I have a couple of smaller questions, smaller picture questions on the actual FEPA budget. We actually -- you state that a specific amount will be set aside in this budget to make available to district offices for use with their FEPA partners to develop inter alia measures which can incorporate FEPA performance into our overall goals and this refers to PART, P-A-R-T. So, what we don't know is what's the specific amount proposed? How will the district offices use the money? I thought this was something that we are going to talk about it. They were going to talk about at their conference. So, what's the deal with that?

MR. INZEO: The specific amount, Commissioner that would be used for all joint training and for discussions of strategic management would be $20,000.00 for the year for nationwide.

COMMISSIONER GRIFFIN: And is it really going to be used for PART? I mean, that's the PART -- I thought that was something that is sort of a bigger picture thing that happens with us. I have a hard time understanding how with a little amount of money, offices, district offices and the FEPA offices are going to --

MR. INZEO: If it's used for strategic management, what we might do, what we might do is to get a working group together of FEPAs and meet with the smaller group. If it's used for joint training or other joint enforcement measures, then it could be used at district office levels, depending on their needs and what they are able to do. That money could be used for either.

COMMISSIONER GRIFFIN: So it may be used for other things not necessarily PART related?

MR. INZEO: That's right.

COMMISSIONER GRIFFIN: Okay. And do we have -- I know this should be a big topic of the conference. Is that going to be -- is there an agenda yet or anything like that?

MR. INZEO: There is no agenda yet Commissioner. We did have a conference call with the members of the state and local joint standing committee and identified a number of topics this among them for the conference.

COMMISSIONER GRIFFIN: Okay.

MR. INZEO: And as soon as the budget gets approved, we will start the process of trying to identify where and when the conference will be held. COMMISSIONER GRIFFIN: At some point in time, and maybe this meeting isn't the appropriate meeting forum, but at some point in time can we have a further discussion about how this money is spent? How it is allocated towards different things for each FEPA? I guess, the age old discussion that you have had and certainly heard before is, you know, if you have a FEPA that adjudicates and you have a FEPA that does a paper review for an investigation, why are they being paid the same amount? Why do you wait until the end of the adjudication? You know things like that. I know that Chair Dominguez had a report that was done.

MR. INZEO: Yes.

COMMISSIONER GRIFFIN: And I don't know how much of that really got implemented and how much didn't but maybe we can use that as a base to have a discussion about why we do things the way we do them because they don't seem fair and appropriate.

MR. INZEO: Okay. We will be happy to do that Commissioner.

COMMISSIONER GRIFFIN: Okay. The other thing -- I just got a letter. I don't know if anyone else got this letter from Jim Stowe, that he is asking to be entered into the record. Do I read it?

CHAIR EARP: I think we can make sure it's included in the record.

COMMISSIONER GRIFFIN: Yes.

COMMISSIONER ISHIMARU: You may want to point out a couple of salient points without reading it though.

COMMISSIONER GRIFFIN: Well it just says to let you know that he talks about Congress designating state and local programs as key components in the fight against employment discrimination, which I think we all recognize. And that Congressional intent was for state and local agencies, was emphasized by Congress, adding them as a line item to our budget and to them it's clear that Congress has from the very beginning intended to have state and local agencies strategically involved in the fight against employment discrimination. And that Congress appropriated $32.577 million dollars, $32,577,600.00 for state and local programs and in keeping with past practices they believe that congressional intent meant that they should fully expect to receive all the funding due. So, he goes on to say that they as an organization reject the proposal of $30 million and that, $2,577,600.00 be redirected to the EEOC and urge that we further review this proposal and push for full funding. He said that they feel strongly that using EEOC agency discretion with FEPA funds has been contemplated by the EEOC in the past and with direct opposition to the partnership role that they have jointly constructed and cultivated. He asked the Commission to -- if we choose to move forward they urge that we set aside that amount for FEPAs who may perform at a 100 percent of their contract and other essential enforcement activities. So he is asking us to actually set that aside. He doesn't give a time period or anything like that. And he asked that this letter be entered into the record at this meeting.

CHAIR EARP: We accept the letter for inclusion in the record. I would like to bring these discussions to a close but let me find out if there are final questions or comments starting with the Vice Chair.

VICE-CHAIR SILVERMAN: Jeff, what would happen if we didn't follow OMB's apportionment requirement?

MR. SMITH: Basically we are dealing with an Anti-Deficiency Act violation for the agency.

COMMISSIONER ISHIMARU: How would it be an Anti-Deficiency Act violation? Excuse me, Madam Vice Chair.

MR. SMITH: We violated the administrative ceiling that was put on us through the apportionment.

COMMISSIONER ISHIMARU: But doesn't the Anti-Deficiency Act deal with funds appropriated by Congress and the government not spending more than was actually appropriated and doesn't deal with the question of administrative -- of dealings within the administration?

MR. SMITH: If we obligate more funds in the apportionment amount for that line item we are going to be anti-deficient.

COMMISSIONER ISHIMARU: Could I turn to --

MR. SMITH: Also, we would be subject to sanctions. I would defer to the Office of Legal Counsel for the specifics.

COMMISSIONER ISHIMARU: Well, it's my understanding that the Anti-Deficiency Act deals with government agencies not spending more than they were appropriated by the Congress and doesn't deal with internal governmental decisions as to how much money should be made. And the Office of Legal Counsel probably knows this better than I, but I…

PEGGY MASTROIANNI: The Anti-Deficiency Act deals with both and Section 1517 prohibits officers and employees of the U.S. from spending in excess of the apportionment. They were also prohibited from spending in excess of the appropriation. It's both they are covering.

COMMISSIONER ISHIMARU: So the apportionment is covered as a privileged matter that the apportionment by the Office of Management and Budget or by some other part of the executive would also be covered by this?

PEGGY MASTROIANNI: Yes.

COMMISSIONER ISHIMARU: Thank you.

CHAIR EARP: May I just request that we, the Commissioner who has the floor be allowed to keep the floor so that -- the Vice Chair had the floor.

COMMISSIONER ISHIMARU: I apologize, Madam Chair.

CHAIR EARP: Okay.

VICE-CHAIR SILVERMAN: It seems to me what we are talking about is almost comparable to statutes and regulations and ultimately we have to follow both here and so it can make it look like we are trying to rob Peter to pay Paul but the statutory language is flexible and the OMB language is not and so I think I understand where we are at. Thank you, Jeff.

CHAIR EARP: Commissioner Ishimaru, or are you exhausted already?

COMMISSIONER ISHIMARU: Madam Chair, this is a relatively short meeting so we can go on for quite a while. Let me be brief. I appreciate the difficult position that we are in and I appreciate, especially for you, Madam Chair, the difficult position you are in having had meetings with the FEPAs where you have talked about a higher level and having to go back and say we couldn't do it is a very difficult thing and I understand how difficult that is. I must say, for the record, where this extra, you know, where this extra money should be going is a question that I think should be debated by the Commission as a whole because it goes to our fundamental responsibilities as a policy making body. I guess when I look at extra money and how we should be spending it, I would -- I think some of this money should be spent on the various initiatives that we have talked about and approved and done so on a bipartisan basis, the E-Race Initiative, the Systemic Initiative using things for say matched-pair testing and exploring that as a possibility to help both of those programs that I previously mentioned. Bringing on social scientists or contracting out with social scientists to get some of this new information that we talked about at previous hearings. All these priorities are out there that we talk about, we think should happen and we face difficult budgetary situations. And I fear that when it goes towards the general goal of reducing inventory backlog, which is also something we need to deal with, that it, you know, I jokingly tell Mr. Inzeo that he gets more than two-thirds of our budget and it goes to Nick's pot. But it's a large amount of money that OFP has to deal with and on a certain level this is just a drop in their bucket. And will this be effective in dealing with inventory? Perhaps it will but I also think there are priorities that we have talked passionately about over the past few months that I think should be funded if there are extra funds to fund with. So, I appreciate your indulgence of me this morning, Madam Chair.

CHAIR EARP: Always, Commissioner. Commissioner Griffin, do you have final comments, thoughts, questions?

COMMISSIONER GRIFFIN: I would just hope that we can see something in writing that says we just learned a couple of weeks ago, we get an extra 2.5 million and here's what we are going to do with it. If it's reducing the backlog, what does that really mean? How many people are we hiring? Where are we hiring them and what are our expectations about how they are going to reduce the backlog? I would hope we could see something like that. Because I really believe we are going to have to justify this well into the future with not only our FEPA partners but with our appropriators as well.

CHAIR EARP: Thank you Commissioner. Vice-Chair?

VICE-CHAIR SILVERMAN: I think that the fact is that most of the priorities that we have talked about, my Systemic Initiative, your E-Race Initiative, you can't have those without having solid investigations and you have to begin with a solid investigation and you can't have a solid investigation without enough investigators, so to me, I think this is consistent with a lot of the things that the Commission is trying to accomplish and if I heard that this money was going to some of our other things, I would say, no. But the fact is, this is the base from which everything works and I've had many tutorials throughout my time in the Commission about what we struggled with over the years and I think managing the inventory, when that goes askew everything else goes askew. So, if the money is to go anywhere, I think that you have to start with that and everything that we are talking about builds from there.

CHAIR EARP: In the interest of staying germane and staying succinct, I have one question before trying to conclude and calling for a vote. Jeff, Nick, Mike, did we do anything directly or indirectly, in writing or verbally, implying, steering, directing, wink winking in anyway indicate that the FEPAs should be used to help us meet our obligations? That our budget should be balanced on their backs or that they represented a sum of money that could be transferred to us to address the backlog and other needs? Did we do that?

MR. INZEO: Not to my knowledge, Madam Chair.

CHAIR EARP: Mike?

MR. DOUGHERTY: I've never had a conversation to that effect with anyone.

CHAIR EARP: Jeff, in your discussions?

MR. SMITH: No.

CHAIR EARP: Thank you.

MR. SMITH: I amplified on my discussions earlier that it was suggested that we needed help in prioritization.

CHAIR EARP: Thank you. I think as these deliberations have shown, these are times of very, very difficult and competing priorities. We are all in this together, sometimes in it together alone, trying to do more with less. Our job today is to vote on the 2007 allocation for the FEPAs. Failure to approve this budget, no matter what we think about it, a failure to approve it, will hurt the FEPAs. Ultimately though, it will hurt the very victims of discrimination that we are all committed to help. So I would ask that the Commissioners think one final moment before we call for a vote. I would like to ask is there a motion to approve the 2007 Budget Allocations for the State and Local Program?

VICE-CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there a second? No second on the motion?

COMMISSIONER GRIFFIN: Second, only because as you say, they need the money.

CHAIR EARP: Thank you. Is there discussion?

COMMISSIONER ISHIMARU: I agree with Commissioner Griffin that the FEPAs need the money and that getting $30 million dollars rather than 32.5, even though some of us would have pushed for full funding, it would be better for them to get the 30 now and we can have further discussions on the other. So, I hear what Commissioner Griffin has done and I don't disagree with it.

CHAIR EARP: Okay. Commissioners in favor please signify by saying aye.

CHAIR EARP: Aye.

VICE-CHAIR SILVERMAN: Aye.

CHAIR EARP: Opposed? Abstain?

COMMISSIONER ISHIMARU: I would ask for a roll call just so we can be clear as to who is voting which way Madam Chair.

CHAIR EARP: Okay. Let's start with the Vice-Chair.

VICE-CHAIR SILVERMAN: Aye.

CHAIR EARP: Thank you. Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Generally I would have opposed this but in the interest of letting the money flow to the FEPAs I will abstain.

COMMISSIONER GRIFFIN: I agree. I will abstain in the interest of letting the money go to them.

CHAIR EARP: And I vote yes. So the vote, this item is recorded as two yeas and two abstentions. Does that give us a majority?

PEGGY MASTROIANNI: Yes it does.

CHAIR EARP: Okay, thank you. The vote carries. I want to thank everyone for joining us today. We appreciate your being here. There being no further business, do I hear a motion to adjourn?

VICE-CHAIR SILVERMAN: So moved.

CHAIR EARP: Do I hear a second?

COMMISSIONER GRIFFIN: Second.

CHAIR EARP: Thank you. This meeting is adjourned. Oh, all in favor? All in favor of adjourning the meeting?

EVERYONE: Aye.

CHAIR EARP: Opposed? Aye's have it. Meeting is adjourned. Happy holidays, whatever your religious persuasion. Thank you.

(Whereupon the foregoing meeting was concluded at 11:02 a.m.)

This page was last modified on April 26, 2007.