[Senate Hearing 111-882]
[From the U.S. Government Printing Office]
53-117 PDF
2011
S. Hrg. 111-882
NOMINATIONS OF HON. ERNEST W. DUBESTER, JULIA AKINS CLARK, AND RAFAEL
BORRAS
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
of the
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
NOMINATIONS OF HON. ERNEST W. DUBESTER TO BE A MEMBER, FEDERAL LABOR
RELATIONS AUTHORITY; JULIA AKINS CLARK TO BE GENERAL COUNSEL, FEDERAL
LABOR RELATIONS AUTHORITY; AND RAFAEL BORRAS TO BE UNDER SECRETARY FOR
MANAGEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY
JULY 29, 2009
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado
Michael L. Alexander, Staff Director
Kristine V. Lam, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Jennifer L. Tarr, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Akaka................................................ 1
Senator Voinovich............................................ 3
Senator Collins.............................................. 17
Prepared statements:
Senator Akaka................................................ 31
Senator Voinovich............................................ 34
WITNESSES
Wednesday, July 29, 2009
Hon. Ernest W. Dubester to be a Member, Federal Labor Relations
Authority...................................................... 4
Julia Akins Clark to be General Counsel, Federal Labor Relations
Authority...................................................... 5
Rafael Borras to be Under Secretary for Management, U.S.
Department of Homeland Security................................ 18
Alphabetical List of Witnesses
Borras, Rafael:
Testimony.................................................... 18
Prepared statement........................................... 87
Biographical and financial information....................... 90
Letter from the Office of Government Ethics.................. 98
Responses to pre-hearing questions........................... 99
Responses to post-hearing questions for the Record........... 143
Letters of Support........................................... 153
Clark, Julia Akins:
Testimony.................................................... 5
Prepared statement........................................... 60
Biographical and financial information....................... 63
Letter from the Office of Government Ethics.................. 73
Responses to pre-hearing questions........................... 74
Dubester, Hon. Ernest W.:
Testimony.................................................... 4
Prepared statement........................................... 36
Biographical and financial information....................... 38
Letter from the Office of Government Ethics.................. 48
Responses to pre-hearing questions........................... 49
NOMINATIONS OF HON. ERNEST W. DUBESTER, JULIA AKINS CLARK, AND RAFAEL
BORRAS
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WEDNESDAY, JULY 29, 2009
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 3:07 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
Akaka, presiding.
Present: Senators Akaka, Collins, and Voinovich.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. The hearing of the Senate Committee on
Homeland Security and Governmental Affairs will come to order.
Good afternoon and welcome to all of you here today.
Today, the Committee on Homeland Security and Governmental
Affairs meets to consider the nominations of Ernest Dubester to
be a Member of the Federal Labor Relations Authority (FLRA),
Julia Clark to be General Counsel of the Federal Labor
Relations Authority, and Rafael Borras to be Under Secretary
for Management, U.S. Department of Homeland Security (DHS),
whom we will introduce later in the hearing.
Mr. Dubester attended Boston College and received his law
degree at Catholic University. Mr. Dubester has been involved
in public service since 1975. After graduating from law school,
he worked as legal counsel to the National Labor Relations
Board.
In 1993, President Clinton nominated Mr. Dubester to serve
on the National Mediation Board (NMB), and the Senate
unanimously confirmed him. He became the chairman of the NMB in
1993. Mr. Dubester also has taught law at the George Mason
University School of Law and the Catholic University School of
Law.
Ms. Clark graduated from Oklahoma Baptist University and
received her law degree from the Washington College of Law at
American University. For the past 14 years, she has served as
general counsel to the International Federation of Professional
and Technical Engineers, a union that represents dedicated
Federal employees throughout the country, including many in my
home state of Hawaii.
The positions for which Mr. Dubester and Ms. Clark have
been nominated are among the most important to Federal
employees. If confirmed, I expect these nominees to be strong
advocates for fair employment practices in the Federal
Government.
I want to congratulate you both on your nominations to
these important positions and welcome your families. I
understand that you both have some family and friends in the
audience, and I want to give you the opportunity to introduce
them to the Committee.
Mr. Dubester, will you begin with your introduction?
Mr. Dubester. Thank you, Mr. Chairman. The most important
member of my family is here, my wife, Karen Kremer. When I met
her for the first time, about 22 years ago, she was working for
Senator Howell Heflin on the Senate Judiciary Committee. Now
she works for the Administrative Office of the U.S. Courts, and
she recently reached the milestone of 25 years of Federal
Government service.
Sitting directly behind her are two of our friends, George
Honyara, who also happened to work for the Federal Government
almost 25 years, and Jim Pope.
Senator Akaka. Thank you. I want to welcome your wife,
Karen, and your friends who are here. And I would also like to
welcome all of your supporters who are here.
Mr. Dubester. Thank you.
Senator Akaka. Will you please introduce your family and
friends, Ms. Clark?
Ms. Clark. Yes. Thank you, Chairman Akaka, for giving me
that opportunity. My mother and father are here, Jack and
Loreen Akins from Denton, Texas. My brother and sister-in-law,
Tim and Debbie Akins, are here from Highland Village, Texas. My
brother-in-law, Chris Clark, is here from St. Louis, Missouri.
In addition, my step-daughter, Lisa Nichole Clark, is here, and
my grandson, her son, Drake Clark, is here. And behind me is my
husband, Nick Clark. Thank you.
Senator Akaka. Welcome to all of you here today. I want to
say aloha and welcome. We are happy to have all of you here
today.
Mr. Dubester and Ms. Clark, your nominations come at a
critical juncture for the FLRA. The FLRA is responsible for
providing leadership in establishing policies and guidance
relating to Federal sector labor relations. It also resolves
complaints of unfair labor practices and decides issues
involving Federal union representation.
These are very important responsibilities. For far too
long, however, the FLRA has failed to carry out its mission.
The FLRA has been without a general counsel since February
2008. Moreover, prior to October 2008, the FLRA had only one
member. Last year, I am glad we were able to fill two of the
seats; however, it is better to have a full complement.
Personnel shortages have led to a serious backlog of cases at
the FLRA, and I trust you will work to reinvigorate the FLRA.
I am also concerned about low employee morale at the FLRA.
In the Partnership for Public Service's 2009 Best Places to
Work rankings, the FLRA ranked last among small Federal
agencies. The FLRA received the lowest score in several
categories, including effective leadership, strategic
management, and employee training and development. Clearly, big
changes are needed to address these serious issues. I look
forward to hearing the nominees' thoughts on these issues.
During the past Administration, Federal employees and their
representatives at times believed their views were not
adequately considered when changes to Federal programs and
workplace policies were made. In your roles, if confirmed, you
can help rebuild strong partnerships between unions and
management throughout the Federal Government, which I believe
is necessary to help agencies best carry out their missions.
I am happy to have my good friend and partner, Senator
Voinovich, here with me today, and he can speak from experience
on some of these concerns. For many years, Senator Voinovich
and I have sat on this Committee together and worked to address
problems in the Federal workforce. Senator Voinovich has proven
himself to be a champion of these issues
Senator Voinovich, would you please make your opening
statement at this time?
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. Thank you, Senator Akaka. You have done
a pretty good job of laying out the challenges here. I wonder
if the same staff member who wrote your statement wrote mine.
[Laughter.]
I am pleased to be here to review the qualifications of two
individuals nominated by the President of the United States to
fill important positions at the Federal Labor Relations
Authority. From what I can see, the President has nominated two
very qualified individuals for those positions.
I commend both of you for your willingness to serve your
country at this important time in the FLRA's history. As you
well know, the Authority faces significant challenges in its
attempt to fulfill its statutory mandate to encourage
``efficient operations of the Government'' through positive
labor-management relationships.
Senator Akaka and I have talked about this, but you are
only as good as your team, and it is really too bad that the
FLRA has fallen so far down that the Partnership for Public
Service has said it is ranked last in overall employee
satisfaction among small agencies. So you both are going to
have a challenge to change that poor ranking, and I would be
interested to get your insights into how you think you can get
that done.
The FLRA's case backlog is intolerable. I ran into a couple
of my good friends from the trade unions yesterday, and I said
that I just wish, Senator Akaka, that somebody had called to
tell us how far behind the FLRA had fallen in processing cases
because maybe we could have done something earlier to get some
needed folks over there. So that is another challenge that you
have.
I understand that the FLRA has crafted some performance
goals to try to eliminate the case backlog, and I think it is
going to take that plan plus some innovative strategies for
disposing of these pending complaints and appeals in a timely
and conscientious manner while continuing to process the normal
influx of complaints and appeals. It is not going to be an easy
job.
So I commend you for your willingness to answer this newest
call to service, and I thank you for your past sacrifices. And
I want to thank your families for the sacrifices they have made
over the years so that you can serve in the capacities that you
have.
Senator Akaka. Thank you very much, Senator Voinovich.
The nominees have filed responses to biographical and
financial questionnaires, answered prehearing questions
submitted by the Committee, and had their financial statements
reviewed by the Office of Government Ethics.
Without objection, this information will be made a part of
the hearing record, with the exception of the financial data.
It is on file and available for public inspection in the
Committee offices.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath. Therefore,
I ask the nominees to please stand and raise your right hands.
Do you swear that the testimony you are about to give this
Committee is the truth, the whole truth, and nothing but the
truth, so help you, God?
Mr. Dubester. I do.
Ms. Clark. I do.
Senator Akaka. Thank you.
Let it be noted for the record that the witnesses answered
in the affirmative.
Mr. Dubester, please proceed with your statement.
TESTIMONY OF HON. ERNEST W. DUBESTER \1\ TO BE A MEMBER,
FEDERAL LABOR RELATIONS AUTHORITY
Mr. Dubester. Thank you, Mr. Chairman, and thank you,
Senator Voinovich.
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\1\ The prepared statement of Mr. Dubester appears in the Appendix
on page 36.
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I appreciate the opportunity to come before the Committee
for its consideration of my nomination to be a Member of the
Federal Labor Relations Authority. I also would like to thank
all of the Committee's staff for their work and assistance in
reviewing my nomination and for scheduling this hearing.
I think it is also important to recognize the presence here
this afternoon of several people from the Federal Labor
Relations Authority, including the current chair, Carol Waller
Pope. And I know several key staff members from the FLRA are
here as well, and I appreciate their attendance. I also want to
add that it is my personal pleasure to appear this afternoon
alongside of Julia Clark, the President's nominee to be the
general counsel of the FLRA.
It is particularly an honor to appear before you as
President Obama's nominee to be a member of the FLRA because I
am strongly committed to the FLRA's mission and to the
importance of stable, constructive labor-management relations
in the Federal sector. In my 35 years of experience in labor-
management relations, working as a public servant, advocate,
mediator, arbitrator, and academic, nearly 20 of those years
were in the Federal sector.
When I was still in law school and considering my first
professional opportunity, I decided to join the staff of a
Member of the National Labor Relations Board, as you pointed
out, Mr. Chairman. In fact, it was during my tenure at the NLRB
that Congress enacted the Federal Service Labor-Management
Relations Statute, a law that, as the Committee knows, is
generally modeled after the National Labor Relations Act. And,
indeed, this year marks the 30th anniversary of the FLRA.
As you also pointed out, Mr. Chairman, during President
Clinton's Administration, I was privileged to serve as the
Chairman and a Member of the National Mediation Board, the
independent agency that oversees labor relations in the airline
and railroad industries. There I was responsible for
harmonizing the goals of another collective bargaining statute
with the public demand for the highest standards of employee
performance and the efficient accomplishment of the operations
of government.
If confirmed, I will dedicate myself to working to ensure
that the FLRA fulfills its mission by adjudicating disputes
fairly, impartially, and expeditiously and by providing quality
decisions that enhance the stability of Federal sector labor
relations.
An important part of this effort will be to make sure that
the Authority has the resources to fulfill its
responsibilities. Indeed, if confirmed, I look forward to
working with each and every person on the FLRA staff, including
my colleagues on the Authority, as well as the Federal sector's
labor and management representatives to help establish the FLRA
as one of the stellar independent agencies within the Federal
Government.
Again, I appreciate the opportunity to appear before you,
and I will be pleased to answer any questions that you may
have.
Senator Akaka. Thank you very much, Mr. Dubester, for your
statement.
Ms. Clark, will you please proceed with your statement?
TESTIMONY OF JULIA AKINS CLARK \1\ TO BE GENERAL COUNSEL,
FEDERAL LABOR RELATIONS AUTHORITY
Ms. Clark. Thank you, Chairman Akaka, Senator Voinovich,
and all of your gracious staff who have treated us with such
courtesy and respect in this process. I truly appreciate
everything you have done to bring this day about.
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\1\ The prepared statement of Ms. Clark appears in the Appendix on
page 63.
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It is the greatest honor to be asked to serve one's country
as a public official. If confirmed, I promise to do my utmost
to fulfill my statutory responsibilities in the public
interest. I understand the role of the General Counsel. The
role is to investigate unfair labor practices and, where
merited, to issue and prosecute complaints.
The General Counsel is also responsible for managing the
employees of the Office of General Counsel, including all of
the regional offices. In that capacity, that means also
supervising the conduct of representation proceedings. The
General Counsel is also part of the management team of the
Authority and must work in a collaborative way with the chair
and the other members. I feel that my background and experience
has prepared me well for this role.
I was honored during the period of time between the
election and the inauguration to be asked to serve as a part of
the President's transition team that reviewed the FLRA. As I
did that, I became very much aware and gained significant
insights into the challenges that you described and the
capacity of that agency to meet those challenges.
Since 1995, I have been the general counsel of a national
labor organization, and I am a part of that management team. In
that role, I have had to supervise and provide leadership to
management regarding employee relations and relations with our
staff unions. And before that, I was also a prosecutor at the
U.S. Department of Justice, and I understand very well the
important role that the government plays in enforcing and
carrying out public responsibilities.
I understand that the FLRA is facing an enormous challenge
right now, and I look forward to the opportunity of bringing
what talents I have to this job to make sure that this agency
is, once again, a model agency and provides the services that
the statute requires. Thank you.
Senator Akaka. Thank you very much, Ms. Clark, for your
statement.
I will begin with the standard questions this Committee
asks of all nominees and ask for your responses.
First, is there anything you are aware of in your
background that might present a conflict of interest with the
duties of the office to which you have been nominated?
Mr. Dubester. No, Mr. Chairman.
Ms. Clark. No.
Senator Akaka. Second. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. Dubester. No.
Ms. Clark. No.
Senator Akaka. Third. Do you agree, without reservation, to
respond to any reasonable summons to appear and testify before
any duly constituted committee of Congress if you are
confirmed?
Mr. Dubester. Yes, I do.
Ms. Clark. Yes.
Senator Akaka. Thank you very much.
Mr. Dubester, one of the most significant challenges facing
the FLRA is the need to process cases in a more timely manner
and reduce the large backlog of cases that currently exists. If
confirmed, what role do you believe you can play in reducing
this backlog of cases and restoring public confidence in the
FLRA?
Mr. Dubester. Well, Mr. Chairman, the first point I think I
would make, which is good news at least, is that my
understanding is that already this year a meaningful effort has
been made in that regard and that within the Authority, more
decisions have been issued already this fiscal year than were
issued in the previous two fiscal years.
I think part of the explanation for that, as I understand
it, is there was already a plan in place to reduce that
backlog, which, if I am confirmed to be a member, I would
certainly join in. And it starts with collaborative working
relationships among the members of the Authority as well as the
staff. It includes addressing some of the oldest cases, and
most of the cases in the backlog, I believe three-quarters of
them, are what I think would be fairly characterized as older
cases, and perhaps directly interacting with the labor-
management parties to see whether there was a way of dealing
with those cases other than through actual decisions.
Consistent with the statute, the statute imposes a
directive on the Authority to provide leadership and guidance
to the labor-management participants. So I think another part
of that effort would be to provide training to the labor-
management parties about their statutory rights and
responsibilities to give them better understanding. And I think
one of the hopeful consequences of that would be perhaps it
could lead to a reduced number of frivolous or less significant
kinds of cases.
I think another program that needs to be mentioned is the
FLRA's Alternative Dispute Resolution (ADR) program. And each
component, as the Committee knows, has an ADR program. That
program is voluntary for the labor-management participants to
choose to participate in. I have a strong background in the use
of ADR myself. I think that is a very effective way of helping
to reduce constructively the number of future case filings,
which will help the Authority to deal with the existing
backlog.
Senator Akaka. Thank you, Mr. Dubester.
As you probably know, there is a backlog of approximately
300 unfair labor practice complaint cases and approximately 700
unfair labor practice appeals at the FLRA. That is an issue
that we look forward to addressing. After you are confirmed, I
hope we can meet with you to determine how you are progressing
on reducing this backlog.
Ms. Clark, I would like to hear from you on this issue as
well. If confirmed as FLRA general counsel, what specific steps
will you take to reduce the backlog of unfair labor practice
complaint cases and appeals at FLRA?
Ms. Clark. Yes, Mr. Chairman. The backlog of cases that you
just described, the 300 pending unfair labor practice
complaints, those are recommendations from the regional offices
that have been fully investigated and recommended for
prosecution, and they have been pending for some time. And it
is the statutory responsibility of the general counsel to act
on those complaints.
The 700 cases are all appeals from regional director
decisions not to issue complaints. And, again, that case
backlog of 700 cases has simply been pending with no action.
And no action can be taken until a general counsel is
confirmed.
I consider it one of the greatest challenges facing whoever
takes this position, and if confirmed, my initial step will be
to speak to senior staff about grouping those cases in ways
that make sense and would allow us to triage, do the best we
can to get those cases resolved and into litigation, perhaps
settled, as quickly as possible.
Parties are not going to stop and have not stopped filing
unfair labor practice charges, so that backlog is continuing to
mount. But until we deal with it, we cannot possibly restore
the confidence of management and union representatives and
employees that an agency is there to impartially resolve their
disputes. So I intend that backlog to be the very first focus
of my attention, if I am confirmed.
Senator Akaka. Thank you.
Mr. Dubester, as I stated in my opening statement, the FLRA
finished last in the 2009 Best Places to Work rankings by the
Partnership for Public Service for all small Federal agencies
that submitted data, and this, of course, is of great concern.
What steps do you plan to take to improve working
conditions at the FLRA and make it a more attractive agency to
young people seeking Federal employment?
Mr. Dubester. Well, the observation that you point out is
very disturbing to me because I think in any workplace,
including Federal sector workplaces, the employees are the
workplace's greatest asset. And so, that certainly is among the
highest priorities that I see for the agency.
I think one of the first points that I am making here at
this hearing is to let each and every member of the agency
staff know of my strong commitment to the agency's mission,
which, of course, requires an appreciation of the work and
dedicated service that they are going to provide.
I think another important necessity within the workplace is
to provide meaningful and effective communication among all
staff members and, in my case, if confirmed, people within the
Authority. I know that for fiscal year 2010, it is my
understanding that the FLRA has established a performance goal
involving human capital management. And one of the goals of
that is to establish collaborative internal work groups so that
employees have an opportunity to provide meaningful input.
I think another point, if confirmed, for me as a member of
the Authority would be to foster and support the professional
development of each and every member of the agency, and that
would include providing meaningful opportunities for training
so they could do their jobs even better.
So those would be some of the goals that I would have if
confirmed.
Senator Akaka. Thank you very much. Senator Voinovich.
Senator Voinovich. Ms. Clark, you were on the presidential
transition team and had a chance to observe the state of
Federal labor relations. At this stage of the game, you are
coming on board. When you went through this review as part of
the transition process, did the problems seem to be the result
of a lack of people? Is the FLRA's budget adequate?
What are your observations? You are going to have a big job
here, and I would like you to share with us just what your
observations are and how you intend to take advantage of the
opportunity you have had to review Federal labor relations
during the transition process.
Ms. Clark. Thank you for the opportunity to respond to that
question. I wanted to say first that I do intend, as a first
step, if confirmed, to work closely with the chair, the other
members, and senior staff to make sure I really do understand
the problems and collaboratively develop a plan. But my
observations initially are--some of them fairly obvious--that
these are civil servants we are talking about who really are
there to do an important mission. And the long-term vacancies
in the key positions of the other FLRA member, the general
counsel, and the deputy general counsel, I believe, have
contributed tremendously to the slide in morale.
I do note that staff has been decreased 50 percent from
2001 to the present time and the budget has also dropped
significantly from 2001 to the present time. I would note that
the staffing does appear to be inadequate. The budget does
appear to be inadequate. But as a first step, by filling these
key positions, we are going to allow the hard work of all of
the agents who have investigated these complaints and made
recommendations to come to fruition. That should improve
morale.
I think that communication is important and can be greatly
improved and that as a leadership team, together with the chair
and the other members, taking a hard look at how we can use our
existing resources to provide training opportunities and staff
resources should make a positive contribution.
But like Mr. Dubester, I truly do look forward and hope I
have the opportunity to comment with greater facts and data
about what we need to do in terms of staffing and budget. But
my initial impression is that it is truly inadequate.
Senator Voinovich. Who compiles the FLRA's budget request?
Ms. Clark. The chief executive of the agency is the chair.
Senator Voinovich. So in other words, you would have to
work with the chair after making your observations to ascertain
whether or not you have an appropriate budget to do the job
that you have been asked to do and then try to make sure that
the information gets to the Administration so that they can
properly give you the resources to get the job done.
Ms. Clark. That is correct. There is a high premium on
working cooperatively, open communication, and I am committed
to that.
Senator Voinovich. Did you have a chance to look at the
salary schedule at the FLRA to find out whether or not you
think it is adequate to attract the right people?
Ms. Clark. There were some issues with respect to the
salary schedule, a couple of key issues that had occurred in
terms of people working side by side, in terms of the rank and
file employees in the general counsel's office, doing the same
jobs and being graded differently. A similar situation exists
with respect to the top level management in the regions. The
first step, really, is to make sure there is fairness in the
existing pay scale, and I understand that great strides have
been made in that direction already.
Having worked for the Federal Government and the Justice
Department and being familiar with the salary schedules for GS
employees, particularly litigation attorneys, I think that
there probably is a need for some closer examination about
whether the salary schedules for certain employees are at the
appropriate level.
Senator Voinovich. One of the things that Senator Akaka and
I have tried to do over the last 8 or 9 years is to give
flexibilities to the departments in terms of hiring people. I
would be interested, after you have had a chance to observe the
FLRA's hiring operations, whether or not you think that you
have the hiring flexibilities to get the job done and whether
Mr. Berry at OPM is able to respond to your hiring needs.
It is interesting that the agencies that in terms of
employee satisfaction are the top performers are the ones that
were granted hiring flexibilities. Hopefully, this new hiring
system that we are trying to establish by S. 736 will make a
difference.
You both have advocated on behalf of labor unions. I ran
into a couple of my union friends on the street, and they are
really delighted to have some people with union backgrounds
nominated for positions at the FLRA.
How do you intend to maintain your impartiality and not
have your former relationships with union folks influence your
decision-making because I am sure there are going to be cases
where you are going to make your former colleagues very
unhappy. So tell me about that.
Mr. Dubester, do you want to start?
Mr. Dubester. Yes, Senator Voinovich.
Well, first I want to say I am proud of my former
associations with some of those folks from labor organizations
and look forward to working with them as well as the management
representatives and Federal agencies in my new job. I am
certainly mindful that, if confirmed, as a member of the
Authority, I will be sitting in a quasi-judicial role, and I
will have the responsibility of adjudicating disputes in a fair
and impartial manner.
I think in my particular background, I would also point out
to you that for the last 16 years I have been working as a
neutral or as an academic, including working as a mediator and
an arbitrator and, of course, teaching. And during the time I
was working as an arbitrator, I was selected by labor-
management parties and sometimes put on permanent panels. And I
was on two permanent panels as an arbitrator selected by
parties that I previously worked with during my tenure as
chairman and member of the National Mediation Board for 8
years.
So those people that worked closely with me, both the labor
as well as the management parties, selected me to work in that
neutral capacity. I would like to think that the reason for
that selection was because they had confidence that I could
fulfill my duties in a professional, fair, and impartial
manner.
So, again, I am appreciative of my former associations with
labor organizations. Of course, the Federal statute has one of
its primary purposes to be collective bargaining, which
Congress has found is in the public interest. But I am also
completely confident that I can, if confirmed, fulfill my
responsibilities in a fair and impartial manner.
Senator Voinovich. Ms. Clark.
Ms. Clark. Thank you, Senator Voinovich. I was very
fortunate that my first job out of law school was to work as a
prosecutor at the U.S. Department of Justice, and through that
experience, I learned about the importance of the public trust
and the enormous authority and responsibility of the Federal
Government, and I came to understand that what all citizens
rely on is that we fulfill our responsibilities as public
officials in ways that maintain the public trust. Whether they
are pleased or disappointed with the result, the importance is
that our work is transparent, is fair and consistent and
impartial. That is my guide, and it always has been throughout
my career no matter where I have been employed.
As a part of the transition team, I was required to execute
an ethics agreement that since that time has limited my ability
to appear before the Authority and also to maintain confidences
with respect to the work that was performed there.
I feel comfortable that we have been through the ethics
process, and we have a highly qualified and cautious and
careful ethics officer at the Federal Labor Relations
Authority. So I feel very comfortable that I have all the
support I need, the background I need, and the experience I
need to fulfill the public responsibility in the way that it
should be. And I believe that all of my colleagues and co-
workers--management and labor--understand that and are only
asking that I fulfill my public responsibilities with fairness
and impartiality.
Senator Voinovich. Thank you.
Senator Akaka. Thank you very much, Senator Voinovich.
The FLRA plays a key role in Federal sector labor
relations. Due to recent personnel shortages, it has been
difficult for the FLRA to serve as a neutral party to resolve
disputes between labor and management.
If confirmed, what will you do to address that personnel
shortage and ensure that the FLRA is able to carry out that
important function?
Ms. Clark. I understand the question to be that given the
shortness of staff at the FLRA and the backlog, what is
expected to be an increasing workload, how are we going to
manage. And I think that it will require great cooperation on
the part of the political appointees and senior staff to fairly
assess the situation, share resources, and come up with
creative strategies.
It is going to require open dialogue and a partnership with
the staff union at the FLRA and also, I think, application,
wherever we can, of technology improvements to improve our case
processing in ways that allow us to do more with less and then
provide you with the kind of information you need to give us,
in the medium and longer term, the kind of budget resources we
need to staff up.
Senator Akaka. Mr. Dubester, some have said that the
current state of labor-management relations in the Federal
sector is as poor as it has ever been. I believe that the new
Administration is committed to addressing that problem.
What do you believe should be done to improve the relations
between employees and the unions that represent them and the
Federal agencies?
Mr. Dubester. Well, Mr. Chairman, I think that the lack of
confidence by the stakeholders, the labor and management
representatives, is in many ways related to what you have
previously referenced as the low employee morale within the
agency. And I think it comes from the lack of confidence in
recent years as to whether or not the FLRA has the adequate
resources, both in terms of budget authority as well as in
terms of human manpower, if you will, to fulfill its mission.
So the previous question addresses that. And I think, as
you know, the chair is the chief executive and administrative
officer of the agency. So if confirmed as a member of the
Authority, I will certainly assist her in any way possible to,
again, ensure that we have adequate resources, both budgetarily
as well as increased staffing. And I think by doing that, that
would be a big first step, both in improving employee morale as
well as in improving the confidence that labor-management
representatives have in the FLRA's ability to fulfill its
responsibilities.
Senator Akaka. You mentioned the need for adequate
resources in your opening statement.
Mr. Dubester. Yes, I did, Mr. Chairman.
Senator Akaka. And this is true. Without the personnel to
do the work, there is a problem. And, hopefully, that problem
can be eliminated.
Ms. Clark, the FLRA general counsel may prescribe
regulations providing for informal methods to resolve alleged
unfair labor practice charges prior to issuing a complaint.
What informal methods of resolution do you believe are most
effective in resolving these disputes prior to the issuance of
an unfair labor practice complaint?
Ms. Clark. Yes, Mr. Chairman. I am aware that in the past
such authority has been used. It was the decision of a
subsequent general counsel to not use that authority and change
those regulations through the appropriate mechanisms.
It is my professional opinion, though, that particularly in
labor relations, where the parties work together everyday to
attempt to achieve a common mission, which is in the public
interest, that anything we can do to assist those parties in
clearly understanding their legal responsibilities and
resolving disputes through means other than litigation is in
the public interest.
So I would welcome the opportunity, if I get the chance, to
take a hard look at what was done in the past, how successful
it was, what changes occurred when those pre-complaint
resolution procedures were not available, and consider
establishing the opportunity for parties to resolve disputes
pre-complaint. I am very open to that and would like to look at
it more closely.
Senator Akaka. Thank you. This is my final question, and it
is addressed to both of you.
We have discussed the many challenges facing the FLRA. If
confirmed, what will be your long-term priorities while at the
FLRA?
Mr. Dubester.
Mr. Dubester. Well, as I said in my opening statement, Mr.
Chairman, I look forward to working with every member of the
FLRA staff and my colleagues, as well as the labor-management
representatives. And my long-term goal, after tackling the
challenges that we have discussed in our questions and answers
here today, is to help to make the FLRA one of the stellar
independent agencies within the Federal Government.
I happen to be a big sports fan. And if you are a sports
fan, a lot of times you watch situations where teams in various
sports finish last one year, and then amazingly the next year
they finish first, and they go on to win perhaps the world
championship.
I am a big one in that last-to-first kind of a metaphor.
You have made reference to the human capital survey where, for
a variety of reasons, apparently the FLRA employees made the
FLRA last in that survey. Well, I am going to make that
conversion from last to first within the FLRA. And that would
be my long-term goal, maybe even my short-term goal.
Senator Akaka. Thank you. Ms. Clark.
Ms. Clark. I share Mr. Dubester's goal. And from
preliminary conversations with Chairman Carol Waller Pope and
Member Thomas Beck, I think that this is a team that shares
this goal, and that it really is incumbent upon us to make the
Federal Labor Relations Authority a model for other labor
relations systems, one that we can all be proud of and that
fulfills the statutory purpose that has been enacted that finds
collective bargaining in the Federal sector to be in the public
interest. And the place to start is to restore confidence in
this agency as an impartial, timely dispute resolution agency.
So in the short-term and long-term, I look forward and
hopefully get to participate in this team effort to make the
FLRA a model again.
Senator Akaka. Thank you very much. Senator Voinovich.
Senator Voinovich. Ms. Clark, I think you have talked about
the importance of consultation and cooperation. And, of course,
you have a chairman responsible for FLRA administrative
matters. But I would suggest that it might be good for you and
Chairman Carol Waller Pope to maybe walk around the agency for
a while talking to people about how they feel about their work
environment and get their thoughts and recommendations on how
they could do a better job.
I found in my experience when I was mayor and governor that
I had a team of individuals who were quite smart and knew
management. They went in and talked to agency employees to get
their thoughts on how the agency could be improved or their
environment could be improved. And so, as a result of that,
some of the recommendations that came through for agency
reforms were actually recommendations from employees who had
been at an agency for years but nobody had ever sat down to
talk to them to find out how they felt about their agency. And
I think that approach would be really helpful to you,
particularly if you are going to start trying to reestablish
some employee morale at the FLRA.
The other issue, Mr. Dubester, you talked about was
alternative dispute resolution, and I think that is terrific.
Where does ADR come in? Do you encourage the agencies when they
have a problem to engage in ADR or does ADR occur when they
come up to the board?
Mr. Dubester. Well, each component of the agency has an
alternative dispute resolution program, including the Office of
the General Counsel, the Authority, and the Federal Service
Impasse Panel. So it could arise at various stages, before
either charges or petitions are filed with the Office of
General Counsel or even after cases have come to the Authority
in efforts to resolve matters without having formal decisions
issued.
Senator Voinovich. The question I have--and I should be
more familiar with it, and I am not----
Mr. Dubester. Sure.
Senator Voinovich [continuing]. Is that you have various
Federal agencies. Are you telling me that Federal agencies have
alternative dispute resolution functions where the management
would say to somebody, you are unhappy about your work
environment and we have something available, namely ADR, that
can resolve your concerns before you file your complaint?
Mr. Dubester. Well, they do. As a matter of fact, what you
are referring to, Senator Voinovich, does not involve the FLRA
directly. That involves particular agencies.
Senator Voinovich. It is the agency before they get----
Mr. Dubester. Under law, every agency has some kind of an
ADR program to deal with their internal workings, at least,
usually employment matters, so they can resolve them in a more
informal manner where the disputing parties have the ability to
make decisions themselves without resorting to a more formal
adjudicative process.
In the case of matters that would come before the FLRA, we
are dealing with situations where the parties involved have a
collective bargaining relationship, so they have mechanisms in
place there. The alternative would be whether informally--
though, as you suggest, communication, just dialogue, informal
dialogue, processes that do not require formal processing, in
the case of the Authority, formal decision-making--they can
voluntarily work together collaboratively to try to craft
solutions without resorting to either formal decisions or
formal processing.
Again, in the appropriate situations, I think that could be
very useful. It is a very good mechanism for improving
communication and a very good mechanism for improving the
relationships between labor representatives and management
representatives from various agencies.
Senator Voinovich. I would be interested to see a survey of
where complaints originate in the Federal Government and any
patterns that exist.
Is part of your responsibility to survey agencies to see
whether or not the vehicles they have within the agency are
doing the job that they are supposed to be doing or could be
improved so that you could cut back on the number of cases that
get filed with the FLRA?
Mr. Dubester. Sure. Well, if confirmed, as a member of the
Authority, because of my strong interest in ADR, as we said, I
would try to get a better understanding of what we currently
are doing. Part of this goes to external outreach, if you will,
to the parties. And I think that is, again, consistent with the
statutory directive to provide leadership to the labor-
management representatives, which I think can help to provide
stable and constructive labor relations.
I know that the use of ADR, based on information that I
reviewed, has gone up and the percentage of voluntary
resolutions has been quite successful. But I think that goes to
outreach. It is analogous to your suggestion, Senator, about
going around to staff within the agency, from people within the
FLRA, including members of the Authority, the general counsel.
I think it is also part of external outreach and showing
that you are receptive and open-minded to hearing from the
labor-management parties as to what is going on in their lives
and business, sharing with them, to the extent they are
unfamiliar with it, the availability of ADR as a tool to
resolve their problems; providing them training in ADR to help
them with more effective communication and interpersonal
relations, which I think, even if they do not use the ADR
processes, will reap great benefits just in terms of their day-
to-day working labor-management relations.
So I think those are ways, I believe, that the FLRA is
already working with the parties, but I hope would continue and
maybe even increase in use.
Senator Voinovich. Good.
Senator Akaka. Thank you very much, Senator Voinovich.
I want to thank you all. At this time, there are no further
questions for Mr. Dubester and Ms. Clark. There may be
additional questions for the record, which we will submit to
you in writing. The hearing record will remain open until the
close of business Friday for Members of this Committee to
submit additional statements or questions.
I want to thank you, Mr. Dubester and Ms. Clark, for being
here and for bringing your families, friends, and supporters. I
am pleased to be able to hold a hearing for such well-qualified
nominees.
It is my hope that the Committee will take up your
nominations very soon and your nominations will be considered
by the full Senate very shortly. Thank you very much.
Mr. Dubester. Thank you very much.
Ms. Clark. Thank you.
Senator Akaka. I would like to call on our next witness,
Mr. Borras. Will you please come forward?
Welcome to this part of today's hearing as the Committee on
Homeland Security and Governmental Affairs meets to consider
the nomination of Rafael Borras to be Under Secretary for
Management at the Department of Homeland Security.
Mr. Borras has been nominated to this important position
with over 20 years of Federal, local, and private sector
management experience. It is my hope that this diverse
experience will guide the nominee well, should he be confirmed.
As you know, I, along with my friend Senator Voinovich,
feel that the Under Secretary for Management is an important
position because he or she oversees the Department's budget,
finances, procurement, human capital, information technology
(IT), facilities, as well as performance measures. The role is
so important that I co-sponsored Senator Voinovich's bill, the
Effective Homeland Security Management Act, which would elevate
this position to a term-appointed deputy secretary with a fixed
5-year term.
This legislation, which was considered by this Committee
this morning, would promote more focused and robust management
at DHS, which is critical to improving the cohesiveness,
efficiency, and effectiveness of the Department's action. Even
if our bill is not enacted this year, I trust that Mr. Borras
will use his position to implement sound management practices.
The Department of Homeland Security has been on the
Government Accountability Office (GAO) high-risk list since
2003 because of the challenges it faces through its continued
transition from over 20 distinct entities into the third
largest department in the Federal Government. Since its
creation, DHS has been one of the biggest management challenges
in the Federal Government.
Mr. Borras, you will be coming to an agency that continues
a long struggle to integrate and become one DHS. You will have
been left several management reform projects to take over. I
have no doubt from our discussions with you that you have your
own enthusiastic ideas as well, and I look forward to hearing
more about those ideas today.
As you know, one of my primary concerns at DHS has been
that of accountability. But today, there are far too many
contractors at DHS and not enough Federal employees to oversee
them. It is essential that we fix the contractor/federal
employee mix to ensure that there are enough career
professionals to carry out the critical missions of this
department. It is also important that agencies look to
innovative methods to leverage the diverse talent of the
Federal workforce to fulfill critical mission gaps.
In particular, a problem throughout the Federal Government,
but especially important at DHS, is the acquisition workforce.
These are the professionals who are responsible for the
development and execution of billions of dollars worth of
contracts every year. Unfortunately, as this Committee has
heard in several hearings, the government is losing acquisition
professionals to retirement or other employers, and it is not
recruiting and training new ones quickly enough. This is an
issue that my Oversight of Government Management Subcommittee
will continue to address in the near future.
More broadly, DHS, with the rest of the Federal Government,
faces looming workforce challenges as baby boomers retire. DHS
must attract the next generation of employees, proud of Federal
service and committed to the Department's mission. This will
require seeking out talent with unique skills from both outside
and within the government. These efforts can best be achieved
by ensuring the use of veterans' preference, a diverse
workforce, and a commitment to working with employee unions and
groups.
Again, Mr. Borras, I want to thank you for your willingness
to take on the challenges that you will surely face in this
position. It is my hope that you will work closely with this
Committee as we move forward in addressing the strategic
management challenges facing DHS.
At this time, I would like to call on Senator Voinovich for
his opening statement.
Senator Voinovich. Thank you, Mr. Chairman. And I want to
also welcome you, Mr. Borras, and thank you for being here
today. We look forward to hearing about your qualifications and
your desire to serve.
Senator Akaka, since DHS was established in 2002,
management issues have existed and persisted, and we have been
concerned about these issues ever since. In 2003, the
Government Accountability Office included implementing and
transforming DHS on its list of areas at high risk to fraud,
waste, abuse, and mismanagement because when DHS was created,
it became responsible for transforming 22 agencies into one
department with over 200,000 workers. Failure to effectively
address management challenges at DHS could have serious
consequences for our national security.
The truth of the matter is that the creation of DHS is
probably the most formidable management challenge ever
undertaken by the Federal Government, even beyond the
management changes that were made in the Department of Defense.
In December 2005, the DHS Inspector General issued a report
warning of major management challenges facing DHS. The Homeland
Security Department's own Performance and Accountability
Report, released in November 2006, states that the Department
did not meet its strategic goal of ``providing comprehensive
leadership and management to improve the efficiency and
effectiveness of the Department.'' In 2007, the Homeland
Security Advisory Council Culture Task Force Report also
detailed persisting organizational challenges within DHS.
This year, GAO retained implementing and transforming DHS
on its high-risk list because the Department has not yet
developed a comprehensive plan to address the transformation,
integration, management, and mission challenges it faces. And I
mentioned this to you during our earlier meeting, Mr. Borras. I
have been trying to get GAO and the Department to agree on some
metrics to determine whether DHS, in fact, is moving forward
with this transformation.
Because of such issues, Senator Akaka and I have spent much
of our time on the Oversight of Government Management
Subcommittee examining DHS management issues, and last year we
included a provision in the Implementing Recommendations of the
9/11 Commission Act of 2007 that requires the DHS Under
Secretary for Management to have extensive executive level
leadership and management experience, strong leadership skills,
a demonstrated ability to manage large and complex
organizations, and a proved record in achieving positive
operational results.
As Senator Akaka mentioned, we did vote a bill out of
Committee today that would provide for a 5-year tenure for this
individual because we feel that kind of tenure will help us
make the management transformation that needs to be made at
DHS.
Mr. Borras, I look forward to hearing specific examples
about how you think you meet each of these statutory
requirements because, again, ensuring the effective management
of DHS remains one of my top priorities and will stay at the
top of my list until I tip my hat at the end of next year.
Senator Akaka. Thank you, Senator Voinovich. Senator
Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman.
I am here because I, too, view this position as being
absolutely critical to the success of the Department of
Homeland Security. As both the Chairman and the Ranking Member
have pointed out, this is an enormously complex department. It
has more than 200,000 employees. It is comprised of
approximately 23 agencies that were brought together from a
host of other departments and agencies when we passed the
legislation creating the Department of Homeland Security.
It has not been a smooth process to integrate all of these
agencies and bring them together toward the common goal of
protecting our Nation. So this position and having an
individual with strong management experience is absolutely
critical to the success of the Department.
I do have some concerns and questions that I want to ask,
and I appreciate the opportunity to be here today.
Thank you, Mr. Chairman.
Senator Akaka. Thank you very much, Senator Collins.
Mr. Borras has filed responses to a biographical and
financial questionnaire, answered prehearing questions
submitted by the Committee, and had his financial statements
reviewed by the Office of Government Ethics.
Without objection, this information will be made a part of
the hearing record with the exception of the financial data,
which are on file and available for public inspection in the
Committee offices.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath. Therefore,
Mr. Borras, I ask you to please stand and raise your right
hand.
Do you swear that the testimony you are about to give this
Committee is the truth, the whole truth, and nothing but the
truth, so help you, God?
Mr. Borras. I do.
Senator Akaka. Thank you.
Let the record note that the witness answered in the
affirmative.
Mr. Borras, will you please proceed with your statement?
TESTIMONY OF RAFAEL BORRAS \1\ TO BE UNDER SECRETARY FOR
MANAGEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Borras. Thank you, Mr. Chairman, Senator Voinovich,
Senator Collins, and other distinguished Members in this room.
I am humbled and honored to appear today before you as you
consider my nomination by President Obama to serve as the next
Under Secretary for Management at the U.S. Department of
Homeland Security.
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\1\ The prepared statement of Mr. Borras appears in the Appendix on
page 87.
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Thank you for your consideration of my nomination. I also
thank the President for the opportunity to once again serve
this great country and Secretary Napolitano for her confidence
in me and her support throughout this confirmation process.
I also thank this Committee and its Members for being
guardians of the Department of Homeland Security. While I have
only been an observer of this Department, your efforts
obviously have safeguarded the institution and its mission,
provided intelligent and thoughtful oversight, and
legislatively ensured that the Department's management
functions are properly considered in the context of government-
wide policies.
Not only were you responsible for the creation of the
Department, you have led the fight in finding DHS a home at St.
Elizabeths. You have ensured the Department grew more resilient
as a result of your investigation into Hurricanes Katrina and
Rita and your subsequent legislative and oversight work
reforming the Department. And I have learned from listening to
those in the Department that you have instilled an
understanding of the need to set goals and measure progress so
the Department can be accountable to you and the American
taxpayer.
As an observer, I have also noticed that the Department's
interactions with the Committee, both the Members and the
staff, have fostered a climate of bipartisan collaboration
devoid of partisan rancor. If confirmed, I look forward to
working with you to ensure that this Department fulfills the
vision of the Secretary and this Committee: One DHS that is
integrated, efficient, and a Department that understands and
executes its mission.
There is no professional challenge or reward greater than
ensuring that the Department of Homeland Security achieves its
mission. If confirmed, I know that I will have the immense
responsibility of providing management support to the mission
of protecting America.
As you consider my nomination, I ask that you consider the
totality of my 27 years in public, private, and nonprofit
sectors as a leader and a manager. I also have an intimate
understanding of the challenges that the Department's State and
local partners face each and everyday due to my work for the
cities of Hartford, Connecticut, and New Rochelle, New York. I
have held a wide variety of management positions that have
allowed me to lead such diverse organizations as administration
and finance, human resources, information technology,
acquisition, and security, each of which is represented by the
lines of authority that report to the Under Secretary for
Management.
If confirmed, I have three principal areas of focus for the
Department of Homeland Security: Financial management,
acquisition management, and human capital management. My
approach to these areas of focus would be to provide an
integrated solution that would link an emphasis on financial
management, acquisition review and transformation, and a
holistic approach to human capital management that would help
drive DHS toward improved management, accountability, and
performance.
Thank you, Mr. Chairman and Members of the Committee, and I
look forward to answering your questions.
Senator Akaka. Thank you very much, Mr. Borras. I will
begin with the standard questions this Committee asks of all
nominees.
Is there anything you are aware of in your background that
might present a conflict of interest with the duties of the
office to which you have been nominated?
Mr. Borras. No, sir.
Senator Akaka. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. Borras. No, Mr. Chairman.
Senator Akaka. Do you agree, without reservation, to
respond to any reasonable summons to appear and testify before
any duly constituted committee of Congress if you are
confirmed?
Mr. Borras. I do.
Senator Akaka. Thank you very much. And before I begin my
questions, I would like to give you the opportunity to
introduce your family and others who are here.
Mr. Borras. Thank you, Mr. Chairman.
First of all, I would like to make the Committee aware that
I am joined this afternoon by my wonderful wife who is seated
behind me, Ivelisse; my daughter, Nicole, who represents our
five children, and that is a management feat in itself.
I am also joined by my new friend, Elaine Duke, who is the
current Under Secretary for Management at the Department and
who has ably provided stewardship during this time of
transition and has been of great benefit to me as I have come
to learn DHS. I also have here a colleague of mine who serves
with me on the Montgomery County Ethics Commission, Gilles
Burger, and I am pleased that he is here today with me.
Also, I would like to say that I am definitely in the
presence of my mother and father, who passed away in the last
couple of years but are with me each and every day. And it was
their hard work, their dedication, and their encouragement that
led me to public service. And I could not let this moment go
without recognizing them today.
Thank you, Mr. Chairman.
Senator Akaka. Thank you very much. Because she has worked
for a while with us, and we have worked well with her, I just
want to welcome Elaine Duke to the Committee.
Mr. Borras, as you may know, the Government Accountability
Office has faulted the Department of Homeland Security for its
overreliance on contract personnel. DHS has said that it plans
to in-source more positions in the future.
What would you do to right size the mix of contract
personnel and Federal employees?
Mr. Borras. Mr. Chairman, I would say that, if confirmed, I
would apply the same techniques and the judgment I have used
throughout my long career, beginning in the city of Hartford,
where we undertook a very comprehensive right-sizing strategy
to realign the government.
I do not think inherently there is anything wrong with
having a blended workforce. What is problematic is having a
workforce that is made up of contractors that may not have the
proper management controls and oversight in place. The
utilization of contractors, like any other form of acquisition,
requires strong requirements, a strong indication of the
expected outcome, and I also believe a sunset feature.
If we hire contract workers, we should have a clear
understanding of what they are going to do to contribute to the
mission, specifically how we will manage and oversee them, and
what is the end date. I believe that it is very important to
ensure that we do not have contract workers who are performing
either inherently governmental or nearly governmental
functions. I also believe that addressing this issue would be
among one of my highest priorities, again, if confirmed.
Senator Akaka. Thank you.
Let me follow up with one issue that has consistently come
up in talking about contractors at DHS, and that is the lack of
clear statistics regarding the numbers and types of contractors
in use by the Department.
If confirmed, would you be willing to assess the current
number of contractors and provide this Committee transparent
accounting of how many and what kind of service contractors are
at DHS?
Mr. Borras. If confirmed, Mr. Chairman, I believe that the
identification of those contractor resources is essential to
understand precisely our workforce needs. I do not believe at
this time that the Department can adequately represent a number
that identifies the exact number of contract workers that are
performing work at the Department of Homeland Security.
All of these issues are related to our workforce, whether
it be acquisition workforce, IT workforce, where we have so
many contractors currently performing support functions. There
is a great need to enhance and build the Department's
acquisition workforce, IT workforce, and human capital
management workforce.
Until we have a proper accounting of the number of contract
employees we have, what role and functions they are performing,
and begin to assess how we can migrate back to government
employees, we would be unable to make that proper assessment.
And I would be, if confirmed, unable to provide a clear
direction to this Committee as to what the course of action
would be without that information and that data.
Senator Akaka. Mr. Borras, one issue that the Oversight of
Government Management Subcommittee has focused on for many
years is the issue of recruiting a new generation of Federal
workers. As I am sure you are aware, the baby boomers are aging
and the Federal Government faces a great retirement wave.
Just this morning, this Committee passed favorably a bill
that I sponsored with Senator Voinovich to streamline and make
more manageable the Federal hiring process. Some of the issues
we have tried to address are the length and complexity of the
process, workforce planning at agencies, and the use of
technology in the process.
Can you share your assessment of the current hiring process
and what steps DHS could take to improve it?
Mr. Borras. Mr. Chairman, I have spoken with the chief
human capital officer and other individuals in the Department
to understand what is the perception of impediments to the
hiring process and what steps are currently being taken.
I understand that there is a system that was put in place,
Talent Link, when complete, to be able to provide cradle-to-
grave management of the hiring process. The hiring process
certainly begins with the outreach and the networking to new
and potential employees. It also extends into the on-boarding
process, when we bring new employees on.
In my experience, I have found that one of the ways to
build an effective workforce is through the introduction of
that employee to the new agency. So how we manage bringing on
employees, what I call the care and feeding of employees,
during that hiring process, ensuring that it goes smoothly and
efficiently, goes a long way toward establishing a good
relationship with a brand new employee.
So I believe these systems have to be evaluated. And if
confirmed, I would certainly take a very hard look at what
programs are in place and assess what needs to be done to
improve that hiring process.
Senator Akaka. Thank you very much. I will now ask Senator
Voinovich for his questions.
Senator Voinovich. Senator, if it is all right, it would be
all right if Senator Collins could ask the questions before I
do.
Senator Akaka. Certainly. Senator Collins.
Senator Collins. Thank you, Mr. Chairman, and thank you,
Senator Voinovich.
Mr. Borras, I have a number of concerns about your failure
to pay taxes on time and in full, in light of the
responsibilities of the position for which you have been
nominated. So I want to ask you a number of questions to get
the facts out and also, I hope, to ease the concerns that I
have.
Let me start by asking, do you personally take
responsibility for filing the tax returns for you and your
wife?
Mr. Borras. Yes, I do, Senator.
Senator Collins. Do you file a joint return?
Mr. Borras. A joint return; yes, ma'am.
Senator Collins. It is my understanding that on your 2005
income tax return, you failed to include $9,301 in income for
your wife's part-time work.
Did you receive a W-2 form for this income?
Mr. Borras. Senator, I believe I did.
Senator Collins. Can you explain to the Committee why you
did not report more than $9,300 of your wife's income?
Mr. Borras. Senator, the issue you have raised is one which
I certainly regret having had occur. I have disclosed that
information and made all the details available to the
Committee. I am happy to continue to answer those questions.
The responsibility for the omission, including that
document, in my tax return that year is solely mine and one
which certainly I regret. And the oversight was clearly one
that is certainly regrettable. Not only did it happen for my
2005 filing; in my 2006 filing, I committed the same error,
both of which I provided details.
Senator Collins. Well, we will get to 2006 in a moment. I
want to first establish the facts for the 2005 income tax
return.
It is my understanding that on your return for 2005, you
listed $270 for expenses associated with your wife's attempt to
establish a beauty business.
Is that correct?
Mr. Borras. I did put that there; however, that expense was
not allowable due to the amount of income, so it was not a part
of my filing.
Senator Collins. What I am trying to better understand is
why you would look to take a deduction and yet miss reporting
more than $9,000 of income.
Mr. Borras. Senator, once again, I would say that my error
was in an oversight of one W-2 that was in the total of $9,000
or so. And I simply cannot provide you a better response other
than I failed to include that on my filing.
Senator Collins. And it is my understanding that you also
failed to report $50, granted not a huge amount like the
$9,000, in income from an annuity in 2005.
Is that correct?
Mr. Borras. There was one 1099-INT, an interest annuity of
$50. That is correct.
Senator Collins. So that year, you did not report income
from an annuity for which you had a 1099 form and more than
$9,000 for which you had a W-2 form.
Is that an accurate summary of 2005?
Mr. Borras. That is an accurate summary.
Senator Collins. And then in March 2008, you paid $3,184
plus $405 in interest to settle the problems with your 2005
return.
Is that correct?
Mr. Borras. That is correct.
Senator Collins. Now let us turn to 2006.
In 2006, did you receive a form indicating a withdrawal of
$5,884 in taxable income from your wife's IRA?
Mr. Borras. I have stated that I do not specifically recall
receiving that 1099-R.
Senator Collins. But you did fail to report that income; is
that correct?
Mr. Borras. That is correct.
Senator Collins. And in addition, in 2006, did you fail to
include some interest income for which you had a 1099 form?
Mr. Borras. That is correct.
Senator Collins. And how much was that?
Mr. Borras. The total was about $980.
Senator Collins. Finally, on your 2006 taxes, you were late
in paying about $14,000 in taxes owed. Could you explain how
that delinquency came about?
Mr. Borras. It was my understanding that when I filed my
taxes in 2007 for 2006, the full amount of tax owed, which was
$14,286, would be deducted from my taxes. Shortly after filing,
I noticed that there had not been a large deduction taken from
my checking account, and I followed up with the Internal
Revenue Service (IRS) to inquire why that had not been
deducted.
So as a result of my following up with the IRS and my
conversations with them, I made an electronic payment for that
$14,000 online as I was speaking with the IRS agent on the
phone.
Senator Collins. Well, the Turbo Tax form shows that you
only paid $286 rather than $14,286. That is a huge difference.
When was this cleaned up? When were the taxes and penalties
and interest paid on the 2006 return?
Mr. Borras. In the beginning of June. I do not have the
exact date, Senator.
Senator Collins. What concerns me is a pattern of
carelessness here. You have been nominated for a job that is
enormously complex and that is going to require great
managerial experience and great attention to detail. We could
spend hours talking to you about the management challenges.
If there had been just one incident or one form overlooked,
I would certainly understand that. Anyone can make a mistake.
But I am concerned about a pattern of significant lapses with
regard to your taxes.
I realize my time has expired, but if you have any
explanation, if there are extenuating circumstances that the
Committee should be aware of--for example, we have had a
nominee who was deployed in Iraq at the time that he missed
some tax payments. That is an extenuating circumstance.
If there are extenuating circumstances or some
justification for this pattern, I need to know it.
Thank you, Mr. Chairman.
Senator Akaka. Thank you very much, Senator Collins.
Senator Collins. Thank you.
Senator Akaka. Senator Voinovich.
Senator Voinovich. Yes. I would like to follow up on that
line of questioning by Senator Collins.
The job for which you have been nominated requires an
individual with broad vision and attention to detail. In
conversations with Committee staff, it became clear you did not
review your tax return before filing it.
In written questions before the hearing, I asked ``In what
ways will your attention to detail at DHS be different and
improved from your attention to detail regarding your personal
matters.'' And since your response failed to address mistakes
with your Federal tax returns, I will ask it again.
For the record, in what ways will your attention to detail
at the Department be different and improved from your attention
to detail regarding personal matters?
All of us have responsibilities. I just cannot understand
this pattern, and it gives me pause. If you are not paying
attention to details regarding your personal matters, are you
going to pay attention to the duties of this position, read
financial audits and surveys on employee morale and so forth?
Mr. Borras. Senator, my response to you would be that I
certainly have acknowledged making mistakes 2 years in a row.
Certainly, I have filed my taxes in both of those years,
regrettably, with errors. But recognizing those mistakes, I did
take corrective action; certainly have had no problem with 2007
and 2008 filings. And I filed taxes for over 30 years, and I
have no pattern of making those kinds of mistakes.
In addition, I would certainly want to say that in my 27
years of professional work, progressive responsibility at local
government, in the Federal Government, and in the private
sector, there has never been any issue related to attention to
detail, anything about my performance that has indicated any
level of concern.
I have managed successfully very difficult financial
situations, at the local, the Federal, and even the private
sector level, I believe with distinction. I have been commended
for that. I have never had an investigation that has challenged
or questioned my financial management, and I stand behind my
professional record and believe that it speaks for itself.
Again, I recognize and I regret the errors I made in 2006
and 2007.
Senator Voinovich. In my opening statement, I referenced
our efforts to ensure that the DHS Under Secretary for
Management is qualified to manage the complicated portfolio,
including by setting statutory requirements for the DHS Under
Secretary for Management.
You referenced your positions at the Department of Commerce
and the General Services Administration as ``significant
management responsibilities.''
What specific management responsibilities did you
personally have in each of those jobs?
Mr. Borras. Well, Senator, my position at the Department of
Commerce was as a Deputy Assistant Secretary for
Administration, which is the one that I referenced in my
response to these questions.
Deputy Assistant Secretary for Administration oversees the
departments of finance, budget, at that time, we called it
personnel, information technology, security, and acquisitions.
That is department-wide management responsibility for a budget
of approximately $4.5 billion in a department of about 35,000
employees.
Clearly, I saw that position and I would view that position
as being one of considerable responsibility for the charge of
affairs for the Department of Commerce, and I believe I served
in that role with great distinction.
When I was privileged to serve as regional administrator
for the General Services Administration, the Mid-Atlantic
region, my position had responsibility for the Public Building
Service, the Federal Technology Service, and the Federal Supply
Service for the Mid-Atlantic region, for Europe, Africa, and
the Middle East.
I had approximately 1,500 employees and an annual budget
for my region of about $1.1 billion. We served all of the
Federal agencies in the Mid-Atlantic region, in Europe, Africa,
and Middle East, providing services that you, Senator, would be
very well aware of with the General Services Administration.
And, once again, I would categorize those responsibilities as
certainly being significant in carrying out the affairs and
supporting the affairs of the Federal Government.
Senator Voinovich. Can you give me an example of how you
have achieved positive operational results in a difficult
climate, such as the climate you are going to face at DHS, in
both human capital and procurement challenges?
Mr. Borras. Senator, throughout my career in public
service, much of my work has required the management of very
difficult financial circumstances. When I joined the city of
Hartford as a deputy city manager--and a deputy city manager
is, in effect, a chief operating officer of the municipal
government--we were facing extremely difficult financial
situations where we were having budget deficits on an annual
basis projected at about 15 to 20 percent of our total budget.
This was due in part to declining tax revenues. The city of
Hartford was in a state of decline, both financially and----
Senator Voinovich. Excuse me. What time is that again?
Refresh my memory. I forgot.
Mr. Borras. From the years of 1991 to 1993; those 3 years,
1991, 1992, and 1993.
Those challenges required a fundamental change in the way
that we managed and functioned in local government. We
undertook a very comprehensive, what we called, right-sizing
approach where we had to evaluate each and every program that
the city of Hartford managed, to evaluate its effectiveness, to
be able to make some judgment as to whether or not we could
continue to fund and fund at the same level or whether there
were new ways to accomplish some of the things that we were
doing.
Additionally, we had incredible public safety needs as
crime was increasing, drug use and selling, and drug-related
crime was increasing in the city of Hartford. So we also had to
fund additional initiatives in public safety. So we had a very
difficult time of balancing the typical guns and butter ratio,
having to increase funding for public safety and find ways to
reduce the size of government. And we were able to do that very
effectively and balance our budgets and not raise taxes.
So I am very proud of my work during that period of time of
working very hard to evaluate the performance of the programs.
We eliminated programs; we restructured others. And we were
commended by the business community for developing the first
responsible budget, which had not been done to that extent
prior in Hartford's history.
Upon coming to the Federal Government and joining the
Department of Commerce, my first assignment, Senator, was the
Secretary specifically asked me to go serve at the Minority
Business Development Agency to ``clean up the agency,'' to
review its operations, to make recommendations for changing the
way the operation worked, and to evaluate what constituted
performance. I am very proud to say that after my first year
there, we got a clean financial statement from the Inspector
General, and we made radical changes to the way the Minority
Business Development Agency operated.
The Secretary also asked me to take the agency through the
budget process because there was no director at that time. So
he asked me to serve as the acting director. All of these were
prior to my coming over and becoming the deputy assistant
secretary.
So I had to effectively review the operations of the
Minority Business Development Agency, work on a plan for new
performance measurements; once again, right size. We eliminated
some positions from the agency. And then I was re-asked to join
the Secretary's staff as deputy assistant secretary.
There in particular, my focus was on standardization and
processes, where I worked very hard to find holistic solutions
to improving the efficiency and management of the department.
And I am very proud that during that time, we developed a
process called Concept of Operations, which integrated the work
of the finance department, the budget department, and
acquisition to work with each and every one of our 11 bureaus
and agencies to better manage the acquisition process to
improve efficiencies, improve the time that it takes to
complete the acquisition and the overall program effectiveness.
Senator Voinovich. Thank you.
Senator Akaka. Thank you very much, Senator Voinovich.
Mr. Borras, we have held several hearings on pandemic
influenza preparedness, including one last month focused on the
Federal workforce. During the early stage of H1N1 outbreak,
Customs and Border Protection and Transportation Security
Administration employees, who interact with hundreds of
travelers daily, received conflicting guidance on whether they
were permitted to use personal protective equipment such as
face masks. I asked the Department to clarify their guidance
for employees, and I have not yet received a response.
What steps will you take to ensure that the Department's
employees receive clear and consistent guidance on their rights
and responsibilities if H1N1 resurges this fall as expected?
Mr. Borras. Mr. Chairman, the issue of the Department's
response to a potential pandemic outbreak and the use of
protective gear certainly would be a very strong priority for
the Under Secretary of Management. And if I am confirmed, I
would work very closely with the Office of Health Affairs (OHA)
to ascertain the level of threat to our workforce employees.
We would work closely with the Occupational Safety and
Health Administration (OSHA) to determine what level of
protection is required. And, again, if confirmed, I would
follow the advice of OHA and the folks at OSHA to implement a
uniform and consistent policy that would provide clear guidance
to the employees on how they should provide for their personal
protection during a potential pandemic outbreak.
Senator Akaka. Mr. Borras, the Oversight of Government
Management Subcommittee has been very involved in the oversight
of the acquisition management structure at DHS. When Mr.
Schneider was Under Secretary, he was the Chief Acquisition
Officer, which is separate from the Department's Chief
Procurement Officer. However, there historically has been only
a dotted line of authority between the Chief Procurement
Officer, the Chief Acquisition Officer, and the component
acquisition officers.
Can you tell me what you believe the relationship between
the Under Secretary for Management, the Chief Procurement
Officer, and the component acquisition officers should be?
Mr. Borras. Mr. Chairman, my understanding of the roles and
responsibility of the Under Secretary for Management is that
individual serves in the capacity as the chief acquisition
officer for the Department. Furthermore, that position has a
direct reporting relationship to the Chief Procurement Officer
for the Department.
Currently, the way the Department is organized is that
there is a dotted line relationship between the Chief
Procurement Officer and the Chief Procurement Officers of each
one of the individual component agencies. I believe that, if
confirmed, I would certainly want to review the extent to which
adequate controls and oversight are in place to effectively
manage the Department's acquisition, to effectively identify
risks, and that the proper controls are in place to ensure that
the Department manages its acquisition process as efficiently
as it can.
I do know that the Department has an acquisition review
board, which is a very useful tool in managing and identifying
risks in the acquisition process. I have stated prior that I
believe the most important phase of the acquisition process is
the requirements phase, so I believe it is very important that
in the acquisition life cycle, management put considerable
attention on working with the component agencies to understand
and make sure that the requirements are clear and the outcomes
are also equally clear so that we have an effective acquisition
process.
So if confirmed, that would be among my highest priorities,
to evaluate the existing working relationship and make
recommendations, if required, to improve that process.
Senator Akaka. I mentioned in my opening statement that DHS
has been on the high-risk list ever since its establishment.
Because of this, Senator Voinovich and I requested that GAO
look deeper into management integration efforts at DHS. Work
done to date has shown that the Department still faces
significant challenges in integrating over 20 separate agencies
into what Secretary Napolitano has referred to as one DHS.
What experience have you had in your career, in the public
and private sectors, that you believe has prepared you to take
on this particular integration challenge?
Mr. Borras. Thank you. I appreciate the question, Mr.
Chairman, because it is fundamentally how I see my career and
the evolution of my career, one of progressive responsibility,
beginning with my work with integration activities at the city
of Hartford, continuing through my work at the Department of
Commerce and the General Services Administration. My priority
as an executive and as a manager has always been to look for
operational efficiencies and integration strategies that will
bring the operation into closer alignment.
At the outset, you mentioned the concern of GAO. I take
GAO's concern very seriously. In fact, I reached out and spoke
with the Acting Comptroller General, Gene Dodaro, recently to
better understand GAO's position and concerns relative to
inadequacies in management at the Department of Homeland
Security. And he reaffirmed for me what I believe to be the
principal areas of concern in rectifying the management
deficiencies at DHS.
First of all, we spoke at great length about the need for
standardization and process. There needs to be a uniform
process. As you have so aptly described, the Department was put
together with the combination of 22 different agencies, Mr.
Chairman, each of which brought its own legacy systems for
management.
So right now there is a lack of standardization within the
Department. That hampers the Department's ability to function
effectively and also to draw statistical information, data,
from the agency in a very efficient manner because there is a
lack of standardization.
Not only do we have to have standardization, if confirmed,
I would focus on repeatability, which is a term that Gene
Dodaro used and I certainly agree with. Not only do we have to
have standard practices, we have to be able to do them over and
over again. So we have to make sure we have consistency in
those practices. So I believe those are very important
elements.
The GAO and Gene Dodaro in particular has mentioned his
concern, the GAO's concern, about the workforce issues,
specifically the acquisition workforce and the IT workforce. My
initial assessment is that both of those indicate to me a
severe challenge in meeting the objectives of the Department,
of strengthening management due to perhaps a lack of inadequate
resources.
So if confirmed, I would certainly want to evaluate the
number of personnel that are available to support those very
functions in the Office of the Chief Financial Officer,
information technology, and acquisition management to ascertain
whether we have the effective resources to be able to do that;
review the current processes that are in place to determine
whether they are adequate enough; and, quite frankly, also to
establish a very good and open relationship with GAO.
Senator Akaka. Mr. Borras, this will be my final question.
As you are aware, DHS has faced challenges with poor
employee morale and has scored generally low on the best places
to work in the Federal Government.
What do you believe are the reasons DHS faces such
challenges, and if confirmed, what specific steps do you
believe are necessary to improve DHS as a Federal workplace?
Mr. Borras. Mr. Chairman, I have looked at the Federal
Human Capital Survey, and much like this Committee has
expressed concern, it certainly is of concern to me that the
employees of DHS, in their response to that survey, rate near
the bottom of all of Federal Government. So that is of great
concern, and I understand certainly the concern of this
Committee.
I chose to look at it also, though, for where the positives
are and where can we build for the future. One of the most
powerful signals of the result of that survey of the extent to
which the employees support the mission of the Department. So I
believe they scored very high. Probably 90 percent or greater
are in alignment with the mission. So it is very important, if
confirmed, to be able to capitalize on that strong mission
identification that employees have and begin to address some of
their other critical issues.
I believe in my experience in looking at workforce morale
issues, Mr. Chairman, they tend to fall in a couple of
categories. One is a general sense of equity. Do employees feel
they are adequately and equitably being compensated for the
work they perform? That is something that has to be looked at
very carefully.
Supervision is another very important component. Frontline
supervision has a tremendous impact on the morale of employees.
I think it is critically important that we look at how we train
our supervisors, what levels of support are provided to the
supervisors. They have such an important role in determining
the job satisfaction of employees. Also, we have organized
employee groups that we need to communicate with, we have to
align with, and we have to have good relationships with.
So communication, relationship building, looking at issues
of fairness and equity, and responding to the great mission
identification of the employee base are all powerful tools, Mr.
Chairman, that will enable us to work hand in hand to be able
to improve the employee morale in the Department.
I am heartened by the enthusiasm and the commitment that
Secretary Napolitano brings to that issue. She has conveyed to
me on numerous occasions that is among her most important
priorities for creating a unified one DHS.
Senator Akaka. Thank you very much for your responses. I
want to thank you for bringing your family, friends, and
supporters here today. I want you to know that there may be
additional questions for the record, which we will submit to
you in writing. The hearing record will remain open until close
of business Friday for Members of the Committee to submit
additional statements or questions.
Again, I thank you for your responses to this Committee,
and we will be considering your nomination as soon as we can
here in the Senate.
Thank you very much. This hearing is adjourned.
Mr. Borras. Thank you, Mr. Chairman.
[Whereupon, at 5:01 p.m., the Committee was adjourned.]
A P P E N D I X
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