[Senate Hearing 108-318] [From the U.S. Government Publishing Office] S. Hrg. 108-318 NOMINATION OF SCOTT J. BLOCH ======================================================================= HEARING before the COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE ONE HUNDRED EIGHTH CONGRESS FIRST SESSION ON THE NOMINATION OF SCOTT J. BLOCH TO BE SPECIAL COUNSEL, OFFICE OF SPECIAL COUNSEL __________ NOVEMBER 12, 2003 __________ Printed for the use of the Committee on Governmental Affairs U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2004 91-041 PDF For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON GOVERNMENTAL AFFAIRS SUSAN M. COLLINS, Maine, Chairman TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois ROBERT F. BENNETT, Utah THOMAS R. CARPER, Deleware PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas Michael D. Bopp, Staff Director and Counsel Johanna L. Hardy, Senior Counsel Michael J. Russell, Staff Director, Financial Management, The Budget, and International Security Subcommittee Joyce A. Rechtschaffen, Minority Staff Director and Counsel Lawrence B. Novey, Minority Counsel Jennifer E. Hamilton, Minority Research Assistant Nanci E. Langley, Minority Deputy Staff Director, Financial Management, The Budget, and International Security Subcommittee Jennifer Tyree, Minority Counsel, Financial Management, The Budget, and International Security Subcommittee Amy B. Newhouse, Chief Clerk C O N T E N T S ------ Opening statements: Page Senator Fitzgerald........................................... 1 Senator Akaka................................................ 7 WITNESSES Wednesday, November 12, 2003 Hon. Sam Brownback, a U.S. Senator from the State of Kansas...... 2 Scott J. Bloch to be Special Counsel, Office of Special Counsel.. 4 Alphabetical List of Witnesses Bloch, Scott J.: Testimony.................................................... 4 Prepared statement........................................... 13 Biographical and professional information requested of nominees................................................... 14 Pre-hearing questionnaire and responses for the Record....... 20 Post-hearing questions and responses for the Record from: Senator Akaka.............................................. 46 Senator Akaka, questions and revised responses............. 50 Post-hearing questions and responses for the Record from: Senator Levin.............................................. 54 Senator Levin, additional question and response............ 57 Brownback, Hon. Sam: Testimony.................................................... 2 NOMINATION OF SCOTT J. BLOCH ---------- WEDNESDAY, NOVEMBER 12, 2003 U.S. Senate, Committee on Governmental Affairs, Washington, DC. The Committee met, pursuant to notice, at 2:07 p.m., in room SD-342, Dirksen Senate Office Building, Hon. Peter G. Fitzgerald presiding. Present: Senators Fitzgerald and Akaka. OPENING STATEMENT OF SENATOR FITZGERALD Senator Fitzgerald. I am going to call this meeting to order. Senator Akaka is on his way but he has asked for us to begin. This afternoon the Governmental Affairs Committee will hold two hearings. The first hearing will be on the President's nominee to be Special Counsel. Upon conclusion of the nomination hearing, the Committee will immediately hold a legislative hearing on S. 1358, the Federal Employee Protection of Disclosures Act, the so-called whistleblower bill. I am chairing both hearings since the nomination and the bill are within the subject matter jurisdiction of the Subcommittee on Financial Management, the Budget, and International Security which I Chair. I am pleased to have this opportunity today, and I look forward to hearing from all of the witnesses. I will also be pleased to recognize Senator Akaka, when he arrives. He is not only the Ranking Member of the Subcommittee on Financial Management, the Budget, and International Security but he also is the sponsor of S. 1358 which we will address shortly. First, we will take up the nomination of Scott J. Bloch to be Special Counsel of the U.S. Office of Special Counsel. I would like to welcome Mr. Bloch today as well as Senator Brownback from Kansas, Mr. Bloch's home State. The President has selected you for a very important position in our government, and I congratulate you on your nomination, Mr. Bloch. Mr. Bloch has filed responses to the Committee's biographical and financial questionnaire, answered prehearing questions submitted by the Committee, and has had his financial statement reviewed by the Office of Government Ethics. Without objection, this information will be made 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. In addition, I personally have reviewed the FBI background investigation report on Mr. Bloch. President Bush nominated Mr. Bloch to be Special Counsel on June 26, 2003. Mr. Bloch has a record of 15 years as a practicing attorney with extensive experience in employment and contract law. In November 2001, Mr. Bloch was appointed as Associate Director and Counsel to the Task Force for Faith- based and Community Initiatives in the U.S. Department of Justice. In January of this year, Mr. Bloch assumed the position of Deputy Director and Counsel for the task force. The Office of Special Counsel is an independent Federal agency with investigative and prosecutorial responsibilities regarding three statutes: The Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act. The primary mission of the Office of Special Counsel is to protect Federal employees from prohibited personnel practices, especially reprisals for whistleblowing. As part of its work to protect Federal Government whistleblowers, the Office of Special Counsel is authorized to receive, investigate, and prosecute allegations of prohibited personnel practices. The office also may file complaints with the Merit Systems Protection Board to seek disciplinary action against individuals who are found to have committed a prohibited personnel practice. The Office of Special Counsel also is responsible for enforcing the Hatch Act that addresses political activities, protecting the re-employment rights of veterans and reservists, and operating a disclosure unit to which Federal employees may disclose information about government waste, fraud, and abuse. The Office of Special Counsel is a vital agency in our Federal Government that impacts Federal employees. The nominee is being considered for an important position of leadership in this agency, and we appreciate his presence today before the Committee. Before I swear in the witness I would like to call upon my colleague from Kansas, Senator Brownback, to introduce the nominee. I want to thank Senator Brownback for coming here today. I understand that Senator Roberts also wanted to be here today but he has a scheduling conflict with the Intelligence Committee. So Senator Brownback, welcome to the Governmental Affairs Committee, and you may proceed. OPENING STATEMENT OF SENATOR BROWNBACK, A U.S. SENATOR FROM THE STATE OF KANSAS Senator Brownback. Thank you very much, Mr. Chairman. Thank you very much for holding this hearing today as well. Indeed my colleague Senator Roberts would like to be here, but for a scheduling conflict. We both strongly support Mr. Bloch's nomination. As you noted in your introduction, he has 15 years of litigation experience ranging in a wide range, civil rights to employment law and private practice, in areas quite impressive. This experience, coupled with his recent work at the Department of Justice I think makes him really an ideal fit for this Office of Special Counsel, and as Special Counsel in the Office of Special Counsel. I am pleased to say he is a fellow Kansan. He was a partner in a prominent Kansas law firm for 15 years. He taught at the University of Kansas School of Law, my alma mater. I believe we even have a coach from your State now at our alma mater, which I do not want to bring up a sore point with the starting of basketball season, but he is doing a very nice job. He was an honors graduate at the University of Kansas. He was on the board of editors of the law review, won awards for his writing in law school. He served on charitable and pro bono boards including the Douglas County Bar Grievance Committee, where he oversaw, as chair of the investigation and reporting on attorneys accused of unethical conduct. He was on the board of discipline that heard testimony and made findings to the Kansas Supreme Court for the discipline of attorneys. So he is used to this role in a whistleblower capacity within his own profession. In the practice of law, Mr. Bloch has been a champion of employee rights, ethics, and protection of whistleblowers. He has demonstrated a resolve to pursue just results even in the face of difficult odds. He has served in the Justice Department for the last 2 years, bringing his wife Catherine and their seven children to live in Virginia. I have met and talked with his wife and two of their children are here with him today. I do not think you would probably mind, Mr. Chairman, if he introduced his wife and children at this point in time. Senator Fitzgerald. That would be great, if you could do that. Mr. Bloch. Thank you, Senator. My wife Catherine is to my right. My daughter Mary, whose confirmation ceremony I attended last Monday at our church and now she is reciprocating. Senator Fitzgerald. How old is Mary? Mr. Bloch. Mary is 13. Beatrice is 10 years old. Senator Fitzgerald. Welcome. Mr. Bloch. My brother William, who came on the red-eye from California. He is a plaintiff's employment attorney in California. Senator Fitzgerald. Welcome. Thank you for being here. You have five other kids? Mr. Bloch. That is correct. My youngest daughter celebrates her birthday today, her first birthday. I also want to recognize my son who could not be here, but wanted to be, who is in the Marines and just returned from a tour in Iraq, but he had to report back to California for duty. Senator Fitzgerald. Thank him for his service for us. Thank you. Senator Brownback. He has obviously a strong tie with his family, and when he was telling me about his son and the work that he was doing in the Marines in Iraq, that shows a lot of strong character as well in a very difficult battle that we are involved in. I would just conclude by saying that the Office of Special Counsel needs someone with rock solid ethics, leadership and a passion for justice. I think you find that in Mr. Bloch. That is why Senator Roberts and myself wholeheartedly support his nomination into this important position in the Federal Government. Mr. Chairman, thank you very much. Senator Fitzgerald. Senator Brownback, thank you very much for introducing the witness for us, and thank you for being here today. We appreciate you taking time out of your schedule. Now, I would like to go ahead and swear in the witness, and thank Senator Brownback for being here today. All witnesses are sworn in under this Committee's rules and have to take an oath. [Witness sworn.] If you would like, Mr. Bloch, you could proceed now with your statement and then we will proceed to questions. So you may begin. Thank you for introducing your family earlier. TESTIMONY OF SCOTT J. BLOCH,\1\ TO BE SPECIAL COUNSEL IN THE OFFICE OF SPECIAL COUNSEL Mr. Bloch. Thank you, Mr. Chairman, and Ranking Member, Senator Akaka, when he gets here, and the Members of the Committee. I am grateful and deeply honored by the nomination of the President of the United States to the Office of Special Counsel. I am equally honored by the introduction from Senator Brownback from my great State of Kansas, and his and Senator Roberts' support of my nomination to this honorable position within our Federal Government. --------------------------------------------------------------------------- \1\ The prepared statement of Mr. Bloch appears in the Appendix on page 13. Biographical and professional information appears in the Appendix on page 14. Pre-hearing questionnaire and responses appears in the Appendix on page 20. Post-hearing questions and responses appears in the Appendix on page 50. --------------------------------------------------------------------------- The challenges to the Office of Special Counsel are daunting, but not insurmountable. If you honor me with confirmation to this position I will do my utmost to carry on the high standards of integrity and efficiency of the Office of Special Counsel. As I reflect today on my background which has prepared me for this challenge, I am reminded that I grew up with an understanding of the importance of the underdog. My father was a lifelong member of a union, the Writers Guild of America, and he taught me the need for protections for those who are trying to earn a living for their families, who stand as a lone voice against a powerful industry. In my law practice I learned to champion the small worker and found this work to be the most rewarding of my legal career. That sense of justice and the rule of law inspired me to come to Washington for a career in public service. It continues to inspire me in this new position for which I have been nominated. In Plato's Republic, Socrates asks whether justice is merely the will of the stronger. Socrates was a gadfly of Athens and may, in a certain sense be considered the first whistleblower for he exposed official corruption and called for real justice based on principle, based on each person's due. OSC stands as a gadfly to those who would impose their will on the weaker, who would punish whistleblowers for exposing corruption, waste, and illegality that endanger the public. OSC stands as a guardian of justice and accountability in the Executive Branch. Responsible government is vital to the functioning of our country. The founders of our Nation set up a system of self-government with checks and balances. From the important protections of whistleblowers and civil and political rights of employees, to enforcing the Hatch Act, to protecting re-employment rights and veterans preferences for those who are literally putting their lives at risk for our liberty and the liberty of others throughout the world, I see this office as being a part of an ethical, self-governing nation. I look forward to helping protect our country and the important work of nearly three million civilian employees in the Executive Branch. I look forward to working with you, Mr. Chairman, and the Members of this Committee and the professional staff at OSC to improve the merit system of civil service. I thank you for this opportunity to appear before this Committee and to answer your questions. Senator Fitzgerald. Thank you. That was a very good statement and I like your reference to Socrates, and your citing of him as perhaps the first whistleblower is very apropos. So thank you for that insight. I am going to ask you a series of questions that our Committee asks of all nominees. These are standard questions, and then we will proceed into more specifically tailored questions regarding the Office of Special Counsel. First, is there anything that you are aware of in your background which might present a conflict of interest with the duties of the office to which you have been nominated? Mr. Bloch. No. Senator Fitzgerald. 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. Bloch. No. Senator Fitzgerald. 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. Bloch. I do. Senator Fitzgerald. Mr. Bloch, you have extensive private sector experience in litigation, and most recently you have been serving as Counsel and Deputy Director for the Task Force for Faith-based and Community Initiatives at the Department of Justice. How will you bring these experiences to bear on the work that you will undertake as a Special Counsel at the Office of Special Counsel? Mr. Bloch. Thank, you, Senator. I appreciate this opportunity to explore how my background can help with the position of Special Counsel. It is my understanding that the office requires someone who has a wide background in employment laws, who has a passion for protecting the rights of workers, who has an understanding of the interplay between various statutes and common-law doctrines concerning employment law. I believe I fit that bill. In my 15 years of practice in my law firm I was our resident expert in the area of employment law and quickly developed a specialty in plaintiffs employment work, which comprised better than a majority of my practice. I also represented---- Senator Fitzgerald. Did you also represent some defendants in labor lawsuits against companies? Did you represent some of the companies being sued? Mr. Bloch. Yes, I did, Senator. I believe that my background, which began when I was a law student and I clerked for a national labor law firm---- Senator Fitzgerald. Is that Seyfarth, Shaw? Mr. Bloch. Seyfarth, Shaw, from your fine State. Senator Fitzgerald. But you worked in the Los Angeles office; is that right? Mr. Bloch. I did. We had the best of both worlds out there. In that capacity, that whetted my appetite for the area of labor law and employment law. When I got into private practice I began to represent individuals and found that that was both fascinating and rewarding because you got to develop the facts from the outset and really see the perspective from the worker. Senator Fitzgerald. Can you give us some examples of the types of plaintiffs you represented, the types of aggrieved workers? What kind of cases would these have been? Mr. Bloch. They ranged anywhere from civil rights claims, sexual discrimination, racial discrimination, disability discrimination, fair labor standards practices cases, Family Medical Leave Act cases, retaliation cases. Retaliation is a rather broad topic and it includes a number of things under its umbrella, such as whistleblowing, retaliation for exercise of a protected right such as testifying, jury duty, workers compensation claims, and so on. There is also a subcategory of discrimination claims that result in a retaliation or a reprisal against an employee. I represented plaintiffs in all of those areas. In all of those areas actually I represented some corporations as well because we would often have--since I was the resident expert in the firm, all of the firm clients would come to me for help with any kind of appearance before an administrative agency or a local agency investigating claims at the early stages of any kind of discrimination or reprisal against an employee. So I have been experienced in all of those areas. And other areas as well, under ERISA, Section 1132 claims, 1983 claims involving constitutional rights, as well as protected employment rights and property interests. Senator Fitzgerald. You really have a very broad labor law background. Did you only do labor law cases when you were in the private sector or did you do other things? Mr. Bloch. No, I was in a smaller firm. We had about 14 lawyers so you had to--I was the chair of the litigation department for the last 5 years of practice, so you had to be able to think on your feet and do a lot of different areas. I practiced in securities fraud, some medical malpractice, both on the plaintiffs and the defense side, as well as complex commercial litigation, ethics law which included claims against law firms both regional as well as national. So I had about 60 percent of my practice, 65 percent, in employment and the rest was a smattering of these other areas, including administrative law. Senator Fitzgerald. Now the Special Counsel actually has several roles. On one hand, they are advocates for whistleblowers. On the other hand, in certain cases they may be required to actually prosecute government officials who have had the whistle blown on them. Where it merits prosecution, the Office of Special Counsel has to prosecute them; is that right? What is your understanding of the office based on your preparation for going into the office? Mr. Bloch. Thank you, Senator. The office, as I understand it, is to be a protector or guardian of the merit system of civil service and the merit system principles as found in Title 5 of the United States Codes, Section 2301, to make certain that we have an efficient workforce and that employees are not reprised against, or mistreated or discriminated against on non-merit related issues, as well as bringing corrective actions to protect those employees, and when necessary and when merited, to bring disciplinary complaints against supervisors or even high level officials. So there is clearly a dual, maybe even a triple role that the office serves. Senator Fitzgerald. Have there been any actions brought against high-level officials of which you are aware? Mr. Bloch. Yes, there have been a number. Some of them, as I understand it, have not public record but some are. But, yes, there have been. Senator Fitzgerald. Is there not a public record of these proceedings? Mr. Bloch. I was limited in what I could get into with the Office of Special Counsel and the Acting Special Counsel, so there were certain things I was not allowed to see. Names, for instance. But I could see expurgated or redacted files, or redacted letters that had been written to the President or to high-level officials in agencies concerning other high-level officials. So, yes, I am aware of some. Senator Fitzgerald. So there are prosecutions going on and the public does not know anything about them? Mr. Bloch. No, I am not saying that it is withheld from the public. There are some things as I understand it, of a national security nature that may be protected and I am not able to look at them at this time. Senator Fitzgerald. Things that do not have an intelligence reason or a national security reason for protecting, do they make public those prosecutions when the Office of Special Counsel is actually going after a government official for waste, fraud or abuse that is actionable under the whistleblowers statute? Do they make that publicly available? Mr. Bloch. Senator, my understanding is it is a matter of public record when a disciplinary action is filed or a corrective action is filed with MSPB. The fact or existence of an investigation file I cannot honestly tell you as I sit here that I know that the investigations files are public. I do not think they are, but I really would have to ask a staff member. Senator Fitzgerald. But when an action is filed--we have been joined by our Ranking Member, Senator Akaka. Thank you very much for being here. Senator, you may have an opening statement that you wish to give, and we would be happy to allow you to proceed at this time. OPENING STATEMENT OF SENATOR AKAKA Senator Akaka. Thank you very much, Mr. Chairman. I want to thank you for your leadership and I want to tell you that I am pleased you are having this nomination hearing for Scott Bloch to be Special Counsel. I want to join you in welcoming his lovely family, and also any friends who are joining him this afternoon. So, welcome. The Office of Special Counsel was created under the Civil Service Reform Act way back in 1978. It is an independent Federal investigative and prosecutorial agency whose primary mission is to safeguard the merit system by protecting Federal employees and applicants from prohibited personnel practices. Unfortunately, for many years, OSC was seen as more of an adversary than an ally to whistleblowers. During congressional hearings in the 1980's, this Committee was urged to abolish the OSC. Instead we chose to strengthen the agency and gave it a new charter. The charter is to protect employees, especially whistleblowers, from prohibited personnel practices and to act in the interest of employees who seek its assistance. Our Committee affirmed that the OSC should not act contrary to those interests. This requires a Special Counsel to be a strong and independent advocate for whistleblowers. The Special Counsel must also be an educator, one who will ensure that Federal employees understand their rights and protections when disclosing waste, fraud, and abuse within the government. All too often workers find out too late that they are not covered by the Whistleblower Protection Act or are unaware of their rights and protections. If confirmed, I urge you to make it a priority to inform Federal employees of their rights and protections or the lack thereof. Employees should not be losing their jobs or be subject to possible civil or criminal penalties because their agencies failed to educate its workforce of their rights and protections under the law. Federal civil servants should be encouraged to come forward with information vital to ensuring government accountability and a secure Nation. Mr. Bloch, I want to thank you for being here today, and I am glad to have your family here as well. Thank you very much, Mr. Chairman. Senator Fitzgerald. Mr. Bloch, I was wondering if you would want to describe what you think may be some of the challenges the Office of Special Counsel might face in the coming years. As Special Counsel, how will you address these challenges and which issues will be your top priorities? Mr. Bloch. Thank you, Senator. I have thought about this issue. I think it is very important to go in with an idea of what it is that you are facing in the way of challenges and what kind of vision you might have for the future. I look forward to working with this Committee and with you and with the staff at OSC to implement a broad vision for the future. That includes sending a message to the Federal workforce and to the public that efficiency, expeditious handling of claims is very important. That whistleblowers are going to be protected in not only name, and not only in words, but in action. That with the changing nature of the Federal personnel system as we see in several different agencies, that we have to fashion a better system for employee understanding of rights, because it can become very confusing, or there can be a crossfire of different avenues and different procedures that employees are put into and they are not sure what to do and become very confused. So we have to educate, and I thank the Ranking Member for bringing that to bear here today, that education is a very important part of the future of this office. Senator Fitzgerald. The office has quite a backlog right now, does it not? Mr. Bloch. Yes, Senator. I am aware of the backlog. At the current time there are really three divisions of OSC where a backlog can become a serious issue or it has become something of a serious issue. Leaving aside for the moment the Hatch Act unit, the three areas under the prohibited personnel practices that we think of when we talk about the backlog are in the CEU, or Complaints Examining Unit, the IPD, or the Investigation and Prosecution Division, and then the DU, or the Disclosure Unit. As you know, the primary mission of OSC is the protection of employees from prohibited personnel practices, especially reprisal for whistleblowing. Then secondarily, although not a far second, is a secure channel for the receipt of disclosures of wrongdoing in the government, of gross waste, of gross mismanagement, of illegality, of substantial danger to the public health or welfare. Senator Fitzgerald. Do you know how large of a staff you will have under you? Mr. Bloch. Currently there are about 103 full-time equivalents. Special Counsel's office has a number of positions that have not been refilled; that have become vacant. So that the budget that exists for OSC has not been fully utilized for the full-time equivalents now. In the President's budget for 2004, in addition to filling approximately six or seven positions that have been vacant, there is an additional opportunity for filling an additional seven, I think, full-time equivalents to bring it to 113 under the 2004 budget, which I, of course, support. Senator Fitzgerald. Do you know how many cases wind up with the OSC? Mr. Bloch. The number of matters that come in for prohibited personnel practices is a little over 2,000. Senator Fitzgerald. A year? Mr. Bloch. A little under 2,000 I should say, per year average. Senator Fitzgerald. Has that been going up over the years, do you know? Mr. Bloch. In reality, in the last 3 years there has been a little bit of a dip. There has been a year where it went down, and then went back up to pretty much a level that was experienced a few years ago. Senator Fitzgerald. How many of those cases typically get prosecuted? Mr. Bloch. That are recommended for actual prosecution, that are not closed for one reason or another, or settled in an alternative dispute resolution? Senator Fitzgerald. Right. Mr. Bloch. Around 400. Senator Fitzgerald. Get prosecuted? That is a lot. Mr. Bloch. That are referred out. Then of those that get through the Investigation Prosecution Division, I think we are talking about 150 to 200 that actually go forward with continuing prosecution. Then if you are asking about the number of cases that actually go to the Merit Systems Protection Board, it is a smaller number. What that number is I cannot tell you, but it is significantly smaller, I believe. Senator Fitzgerald. Senator Akaka. Senator Akaka. Thank you very much, Mr. Chairman. Mr. Bloch, as you know the OSC is responsible for working with agencies to ensure that employees know of their rights and protections when they believe they have been retaliated against. However, we are finding that employees are still unaware of their rights. Do you see any deficiencies that exist in law that prevent employees from knowing their rights and protections? Mr. Bloch. Thank you, Senator. I believe this is a very important area that you have raised, and I thank you for your leadership in this area. I believe that the current law, the 2302(c) certification program is one area that is being under- utilized potentially. In addition to that, there is the education program, the ongoing education program and outreach program of OSC to the agencies. This is something that I feel strongly about. It is something that I have enjoyed tremendously in my current work in the Justice Department, is going not only to the public and educating and doing outreach, but actually going in among the agencies in the Federal Government. So there has been quite a bit of work, we have done interagency outreach and so on, that has been very helpful in educating employees and officials. I look forward to doing the same and on an expanded basis in the Office of Special Counsel. Senator Akaka. Thank you, Mr. Bloch. Under both the whistleblower statute and the labor management statute, the President may exclude agencies from coverage of those laws for national security reasons. However, in the labor management context the President is required to issue an Executive Order when removing agencies. Would you support adding a similar requirement to the WPA? Mr. Bloch. Senator, thank you. I do understand that there are a number of agencies that have been excluded in the past from certain personnel laws, and even currently we are facing a bill with the Department of Defense as well as Homeland Security which already has gone through and there have been discussions about, to what extent are the personnel laws going to be applied? Will the Secretary of an agency voluntarily agree to those provisions to be enforced? I do know that in the Department of Defense as well as in certain portions of Homeland Security, for instance, the prohibited personnel practices, especially whistleblowing rights, will still apply. So I think it is important that any bill that comes out spells out and is very clear about the need for employees to be informed of their rights and to specifically have this delegated to the agency officials. Senator Akaka. Thank you. Federal employees are entrusted to serve the American public by helping the Nation prevent and recover from terrorist attacks, fighting crime and diseases, improving our economy, and protecting the environment. As such we must provide them with adequate protections for coming forward with information vital to an effective government. Based on your background and your experience in whistleblower issues, are there elements of any State or other whistleblower system that you believe should be included in the WPA? Mr. Bloch. Thank you, Senator. I have reflected on this and the thing that concerns me most is that when you look at State law whistleblower claims, the common law in the majority of States in the United States, and certainly in the Midwest region where I was most familiar with, you find a sense in which the courts and the law that has developed has required employees to jump through hoops, and to use magic words and magic procedures, and that if they do not there is a sense of gotcha. I think the law should not be that way. I think the law has always been and always needs to be evenhanded, non- discriminatory, and not tilted in a particular person's direction or company's direction. So I think it is important, it is vital that the law reflect that sense of evenhandedness, and fairness, especially in the whistleblower area where there seems to have developed a kind of accretion of requirements that are not in the spirit of what a whistleblower is, which is someone who believes in accountability and who is actually trying to help the public or the company, or the government in this case, and yet they are retaliated against and punished, and that is wrong. Senator Akaka. Thank you for that response, and thank you for your other responses, Mr. Bloch. Thank you, Mr. Chairman. Senator Fitzgerald. Thank you, Senator Akaka. I may just ask one more question before we are going to have to go into another hearing on actually a revision to the whistleblower laws. We are going to be considering a bill Senator Akaka is sponsoring. I wanted to ask you about veterans. Your responsibilities will include protecting the rights of veterans. They do get a preference for government employment. There will be a lot of reservists and servicemen and women who will be returning from Iraq and Afghanistan. How do you plan to protect the re- employment rights of veterans and reservists under the law? Mr. Bloch. Thank you, Senator. I believe that protecting the rights of reservists, veterans, is very important to our country and to our integrity as a government. Just today or yesterday, I believe, there was an article in the Washington Post that reflected a problem with enforcement of the Uniformed Services Employment and Re-employment Rights Act, as well as veteran preferences. Since approximately a year ago there have been something in the order of 1,300 returning reservists and veterans from service to our country who have not been returned to their jobs or have not been given the employment benefits to which they are entitled. Very much like the whistleblower situation, we have people who are being, in a sense, punished for having served the public good and the country. We cannot do this. So I feel committed to this area as well as the other areas of the office, and we have tools within the Special Counsel's law office, if I am lucky enough to be confirmed, that I can utilize such as the prohibited personnel practices concerning veterans preferences, 2302(b)(11) as well as the USERRA Act. We have, to my understanding--the staff has told me at OSC that we have a good relationship with the vets office at the Department of Labor where they are now currently mounting a campaign to bring awareness to the public. I think their slogan is, ``They Did Their Job. Let's Give them Their Jobs Back,'' or something to that effect. I fully support that. I will enforce the USERRA laws as well as veterans preferences vigorously. Senator Fitzgerald. Thank you very much, Mr. Bloch. Very good answers to our questions. I appreciate your appearance here today, and congratulate you and your family on your nomination. Please extend our good wishes to the rest of your children, all five of them who couldn't be here, and good luck to you. We appreciate you having come today. Without objection, the hearing record will remain open for any additional statements or questions from Senators through 5 p.m. on Tuesday, November 18, 2003. If there is no further business to come before the Committee, this nomination hearing is adjourned and we will now take a 5-minute break while staff prepare for the legislative hearing on S. 1358. Thank you very much. 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