The U.S. Equal Employment Opportunity Commission

Meeting of February 22 to Vote on Authorization of Funds


The session convened at 10:02 a.m., Cari M. Dominguez, Chair, presiding.


NAOMI C. EARP Vice Chair


Supervisory Program Analyst,
Executive Secretariat/EEOC

Associate Legal Counsel,

Senior Attorney/OLC/EEOC

Chief Nurse,
Health Unit, EEOC

Chief Human Capital Officer, EEOC

Office of Field Programs, EEOC

State and Local Programs, OFP, EEOC



  1. Announcement of Notation Votes
  2. Motion to Close a Portion of the Next Commission Meeting
  3. Authorization of Funds for Continuing Health Unit Services
  4. FY 2005 State and Local Budget Allocations
  5. Motion to Adjourn


1:32 p.m.

CHAIR DOMINGUEZ: Okay. The meeting will now come to order.

The purpose of today's meeting is to discuss and vote on two items. In accordance with the Sunshine Act, this meeting is open to public observation of the Commission's deliberations and voting. The first item we will address is a contract for continuing health unit services. The second item is a proposal for fiscal year 2005 state and local budget allocations.

We very much appreciate Commissioner Ishimaru's request that these matters be placed on the agenda and also appreciate having Vice Chair Earp and Commissioner Silverman participate in these deliberations. I particularly want to note that Commissioner Silverman is on her way tomorrow on an international trip representing the Commission, so I very much appreciate your taking the time off your very, very tight schedule for the rest of the day to do this.

At this time, I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting. Ms. Wilson?

MS. WILSON: Good afternoon, Madam Chair, Madam Vice Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat. During the period, September 17, 2004 through February 17, 2005, the Commission acted on 30 items by notation vote, approved litigation on 19 cases, approved the program evaluation contractor services, approved the fall 2004 regulatory agenda, approved amicus participation in Isbell v. Allstate Insurance, Campbell v. General Dynamics Government Systems and Hulteen v. AT&T Corporation, disapproved amicus participation in Jespersen v. Harrah's Operating Company, approved resolutions honoring Wallace Lew, Joyce A. Keyes and Catherine D. Blacknall on the occasion of their retirement, approved the final No Fear Act Rule and approved the document management systems support services.

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

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

COMMISSIONER ISHIMARU: I so move that we close a portion as appropriate.

CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: All in favor please say aye? (All commissioners vote aye.)

CHAIR DOMINGUEZ: Opposed? The ayes have it, and the motion is carried.

Welcome, everyone. The first issue for discussion is a request for Commission approval of continued operation of the EEOC headquarters health unit. The proposed contract is for a six-month period to begin on April 1 and end on September 30, 2005, with options to continue health services for an additional five ye

ars that would begin on October 1, 2005 and end on September 30, 2010.

By way of background, EEOC has maintained a health unit at our headquarters location since at least 1976 for the purpose of providing a range of health services to our Washington-based employees.

We currently have in place an interagency cross-service and support agreement with Department of Veterans' Affairs that provides medical staff for the health unit. The Department of Veterans' Affairs notified us that they will no longer support this contract service. Our agreement will expire on March 31 of this year.

Under internal procedures, the Commission must approve the obligation of funds for any contract to exceed $100,000. If the Commission votes to approve this matter, a solicitation of bids will follow. Because the competitive process entails consideration of various factors, including cost, to evaluate bids we may receive, we cannot disclose the government cost estimates during this meeting other than to acknowledge that it exceeds the $100,000 threshold.

The proposal was submitted to the Commissioners for a notation vote, resulting in three votes to approve and one agenda vote, which brings us here today. Before we deliberate we will hear from our Chief Human Capital Officer, Angelica Ibarguen, who has a report on this matter. Ms. Ibarguen, please come forth.

MS. IBARGUEN: Good afternoon, Madam Chair, Madam Vice Chair, Commissioner Silverman, Commissioner Ishimaru, guests and colleagues. My name is Angelica Ibarguen, and I am the Chief Human Capital Officer for the EEOC.

As the Chair mentioned, we currently have an interagency agreement with the Department of Veterans' Affairs to provide EEOC with health unit services through a private health services provider. This contract expires at the end of March, and the Department of Veterans' Affairs has chosen not to renew it.

The EEOC has had a health unit on their premises as early as 1976, and they actually moved with us into this building in 1989. All of the employees in the headquarters location and in the Washington field office -- of all the employees, 81 percent have visited the health unit over the past two years. That number doesn't include any repeat visitors.

The health unit handles an average of about 15 visits a day; however, since 75 percent of our employees in the Washington field office and in the headquarters location are 40 and above, we anticipate that the unit will receive more visitors as the population ages.

The health unit provides a myriad of services to employees. Among these services are treatment and/or assessment of on-the-job illnesses, preventive health screening, examinations, administration of allergy shots and other immunizations, advice and support on a variety of medical services. The health unit also sponsors programs such as the blood drive, Weight Watchers, lactation program, summer skin screening, in-house cancer support, ergonomic evaluations and accommodations, yoga, therapeutic massages. They also educate, counsel and refer employees to other health care providers.

Knowing that this contract would expire, the Office of Human Resources has looked at alternatives in terms of providing health care as well as keeping the cost down to the agency. We contacted the agencies who were on the Veterans' Administration contract to see if any of those agencies would assume the administration of the contract. None of the agencies wanted to do that. In fact, they're all in the process of bidding services now.

We considered partnering with other agencies nearby and sharing a health unit and could not locate any agency that was close enough or that wanted to share the health unit costs with us. The cost of the health unit has been closely monitored over the past several years. In fact, when it came time for renewal the last time, the vendor wanted to increase our costs by ten percent and we met and negotiated to keep the costs flat for 2004 and 2005.

The health unit saves time. It increases productivity by allowing employees with illnesses to receive treatment quickly and effectively and then return immediately to work. In addition, there's a provision in our collective bargaining agreement which states that we shall continue to utilize the services of the health unit or other authorized health facilities. The collective bargaining agreement also states that, wherever possible, health facilities shall be located on the premises.

The health unit does more than dispense aspirin and check blood pressure. I would like to read some of the comments sent to the health unit by employees that received their services. One employee wrote, "If it wasn't for the blood test I had done last March, I would never have thought to seek more advice about the rise in my PSA. After several tests, I was told that I had prostate cancer in its early stages. I have since had surgery and am doing fine. I'm back at work and contributing my share to the Agency. Having a health care facility at our office provided me with the opportunity to have a physical done without having to take a day off from work. I probably would have neglected to do that and would never have discovered that I had a problem."

Another employee wrote, "I want you to know how much I appreciate the mammogram service that you provided for the employees here at the EEOC and how valuable it has been to me personally. I took advantage of the availability of the mobile van from George Washington University and had my mammogram done. This action may have saved my life.

I usually have an annual mammogram but felt no sense of urgency since my last one was normal and I had no symptoms or problems. However, as a result of this screening, a malignant tumor was found. My doctor stated that because of the small size and location of the tumor, it's unlikely that it would have been found through self-examination. He also stated that it was a very aggressive and fast-growing tumor. I have since undergone surgery and have had a very successful recovery."

Those are two examples of preventive care, but another employee wrote, "How can I thank you enough for all that you've done for me in the healing of my horrible third degree burns. If it had not been for the health unit and your services, I would have had to make arrangements for the daily dressing at a local urgent care facility."

These are a few examples of the many, many ways the health unit helps employees here. These situations turned out well for the employee, for the Agency and the prudent use of taxpayers' dollars. The employees returned to work quickly, they saved the government the higher costs of more serious illnesses and rising insurance costs as a result of that.

In summary, the health care unit is a sound investment. It saves time, it saves cost and increases productivity. Providing health care services enhances the work environment and contributes to making EEOC a model workplace. Thank you.

CHAIR DOMINGUEZ: Thank you, Ms. Ibarguen, for your informative report.

At this point, the Commissioners have an opportunity to present opening statements if they wish. For the record, let me say that I voted to approve the authorization of the funds for the health unit as a means of providing EEOC's Washington-based employees with services that support their health and wellness.

Our health unit is an important component of our EEOC as a model workplace initiative. This is an expression of the value we place in the people who carry out the Commission's work. We set high expectations for our employees in terms of the number of hours that they spend in this building each day, and for many they have long commutes and oftentimes even have to come from neighborhood doctors' offices.

As EEOC continues to encourage all employers to pay attention to the work life balance issues facing their work forces, it's imperative that we practice what we preach with regard to our own employees.

Now, while I would not presume to know how anyone else sitting in my position as Chair would necessarily approach budgetary decisions and whether they would reach the same conclusions that I reach, reach them in the same way that I have reached them, I believe it's important for the Commission to reflect its priorities in the way that it funds its mission: through proactive prevention, proficient resolution, mediation, strategic litigation and EEOC as a model workplace, having organizational excellence through compliance with the President's Management Agenda and model workplace initiatives.

Clearly, these are all competing demands, all of which compete for our resources. I'm sure that any one of us sitting in my position can be second-guessed as to how we can allocate these resources, but as long as I'm statutorily charged with this responsibility, I will continue to balance these efforts and these resources to the best of my ability in order to further the President's charge of the items and the outline of the five-point plan, which I just mentioned.

I believe that by continuing to have an in-house health unit, we're making a sound investment in our people. This decision, of course, is time-sensitive. It is my hope that we will move forward today. I now invite my fellow Commissioners, at their option, to present opening statements. Madam Vice Chair?

VICE CHAIR EARP: Thank you. I will waive any opening statement except to say that I too voted to approve the expenditure of funds for an on-site health unit. However, I think that it is not unreasonable to question this as well as other things that we do in an age of diminishing resources. While I think that any major change would require some transition and a lot of thought and an awareness on the part of our employees that where we put our money, if we put it here, then we're not putting it someplace else. So while I support this, I myself got my flu shot in our health unit and it was incredibly convenient given where I live, I don't think that it's unreasonable for us collectively to raise the question about where we put our money. This would not be the only program to be questioned, however.

CHAIR DOMINGUEZ: Thank you, Madam Vice Chair. Commissioner Silverman?

COMMISSIONER SILVERMAN: I too am going to waive an opening statement, but your stories that you told Angie I found them really fascinating, and I also supported the health center. Thank you.

CHAIR DOMINGUEZ: Thank you, Commissioner Silverman. Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. Since everyone is putting their votes on the record, I did not place a vote. I did place to put this matter on the agenda for this meeting, as well as the allocation for state and local agencies, because I think both of these issues are very important to both our employees and our stakeholders, and I think that we should have the opportunity to have our deliberations in public and to ask questions about them.

I strongly believe that we should be doing more of our business in public. Last year, during 2004, we held two meetings. Both of those meetings were called at my insistence by placing a vote on the agenda, to place the item on the agenda. And to that end, I'm pleased to say that the Chair and I have been starting talks about working together to have more meetings in the future, and I hope we can make progress on that.

But I found in my time here that public meetings are very rare and that people automatically assume when we're going to have a public meeting that the worst will happen. When word got around about this meeting and the talk of the health care center allocation, many employees thought we were planning to cut it. I think that if we had more meetings, people, including our colleagues, would welcome the chance to hear what we think about the issues rather than to worry about it.

Similar to my strong preference for public meetings, I also believe that we should share information among Commissioners freely so that Commissioners have the information they need to make informed decisions. Both of these preferences go to my core belief that transparency in government is essential to the public trust being maintained.

Let me say for the record that I'm a strong supporter of both of these programs. I think the FEPAs do wonderful work. We as an agency simply could not timely process the charges we receive if it was not for the work of the FEPAs. Moreover, because of our limited presence in certain states, FEPAs are quite often the only civil rights game in town.

Similarly, I support the existence of a health care center for our employees here at the headquarters and in our field offices. I believe that the health care center provides essential services to our employees, increases the Agency's productivity and helps move us toward a goal of being a model workplace.

For both of these packages, the Commission is being asked to vote to allocate funds. However, I feel that I'm being asked to do so in a vacuum, because despite my repeated requests, I have yet to see information regarding our current operating budget, now at one-third of a billion dollars, certainly the largest civil rights agency in the government.

And what I also find distressing is that most of this budget information is widely known among the staff. So members of the Commission don't have access to this information and are pointedly told that they can't have access to it.

So let me explain the type of information I've been seeking. This is basic information about where the Chair has placed the money for the year. And I'm not talking about questioning these decisions at this point, although I do not think that budget allocations should be something that involves -- I do think that budget allocations should be something that involves the entire Commission, because where the money goes sets policy and the Commission, as a body, is responsible for setting the policy.

As the Chair has said, the Chair is given statutory responsibility for administrative operations of the Commission. Let me read the charge in Title 7. It says, "The Chairman shall be responsible on behalf of the Commission, for the administrative operations of the Commission." And we can have a debate about what this means, but I certainly don't think it means withholding basic budgetary information about how the allocations have been made by the Chair from other members of this body.

But as I was saying in this instance, I was not seeking to give input on the budget allocations. I was merely seeking information as to what allocations had already been made, and, frankly, I'm not sure how any of us can vote on these specific budget allocations without knowing how it fits into the larger scheme of our operating expenditures and decisions.

I have a bit more to say on the FEPAs, but I guess I'll do that before the FEPA presentation. But I would make a motion at this time, Madam Chair, that you release or have the staff release to the members of the Commission the operating plans for the various components of the agency so we can see where the money is being spent for this year. This was given to me in part in past years, and I would hope that the full spending plans would be given to us so we can consider where the money is going so we can make informed and intelligent decisions as to how to spend our money in the upcoming year ahead.

So I make that motion that the plans be released to us. And I hope I get a second for at least purposes of discussion.

VICE CHAIR EARP: I can't second the motion, but I would say that I think for today our agenda is constrained by the items on it. And the full budget discussion and the free flow or the lack thereof of information is not. What I do think is that at some point we should talk, you should talk with the Chair, the Chair should talk to the rest of us about what we're getting or not getting. I'm not sure, though, that this meeting today is the appropriate forum.

COMMISSIONER SILVERMAN: I would echo my colleague's words.

CHAIR DOMINGUEZ: Let me just add, Commissioner Ishimaru, I understand what you're saying, I hear what you're saying. I think it's no surprise, because I have said it consistently, that 80 percent of our budget is fixed, ten percent goes to FEPAs. So what we're really talking about here is ten percent of the balance of the budget, which includes litigation support, includes enforcement travel, includes all kinds of enforcement activities, includes Youth at Work, Freedom to Compete, the President's New Freedom Initiative, the President's Management Agenda.

Now, all of that is incorporated in that ten percent, because you do have access to the broad budget. What we're looking at here, we're talking about here is how one chooses to advance based on the priorities and the pressure points on any given month, on any given quarter, how one chooses to advance one priority over the other.

For example, we just voted to litigate on the Sidley Austin case, that could take tremendous resources from the Commission. We need to make sure that-as Chair of the Commission I have the fiduciary responsibility to make sure that-we have some resources available to continue to advance our very, very strong litigation program.

Commissioner Ishimaru in his prepared statement raised the point that he does not see the National Contact Center -- it is in your written statement, Commissioner, I hope you don't mind my bringing it up -- doesn't see it as a mission-related initiative. Well, the President happens to disagree with that. I am being judged on how customer-centered this Commission is and the National Contact Center was the most urgent priority presented to us by the NAPA Academy when they conducted [their study].

So, clearly, we have differences of opinions based on where we sit in terms of what's a priority and who we're responsive to. Now, we're all appointed by the same President, so I find it somewhat ironic that we choose different paths to advance his mission, but, certainly, I do believe that all of the things that the Commission is carrying forth are mission-centric, and I also believe that if you look at our record for the last several years, we have had some of the best litigation years, some of the best enforcement years.

You look at the press release we just issued on our 2004 accomplishments and I believe that the Commission is indeed doing very well considering the limited resources. So whether or not I can be second-guessed in terms of do I do too much of this or not enough of that, I really agree that all of us have different points of views or may have different points of views. But the operational responsibility for the budget, according to the statute, really does rest with the Chair.

Now, I have tried very hard to work with my fellow Commissioners in involving them and providing as much information and as much resources as I can in terms of the types of activities that they've needed to fund. Vice Chair Earp launched a very, very successful Youth at Work initiative. We look for ways to continue to fund that. Commissioner Silverman launched a very successful --

COMMISSIONER ISHIMARU: Madam Chair, can I raise a point of order? If my motion has not been seconded, we can't have discussion on this.


COMMISSIONER ISHIMARU: Don't we have to dispose of the motion first before we go on? I'm not disagreeing with your comments, but I have a motion a pending, which --

CHAIR DOMINGUEZ: Which no one seconded.

COMMISSIONER ISHIMARU: Well, but then it needs to be disposed of.


PARLIAMENTARIAN: Actually, once the discussion starts, even without a second, the motion is on the table.

COMMISSIONER ISHIMARU: So in order to -- well, how could we have discussion if the motion wasn't seconded? I'm not trying to stifle discussion. I'm just making a point of order that my motion was not seconded, so it either fails for the lack of a second, which is --

PARLIAMENTARIAN: I think by virtue of the discussion beginning the second was waived, essentially, the need for a second.

COMMISSIONER ISHIMARU: So the motion is pending?

PARLIAMENTARIAN: It's on the table, yes.

COMMISSIONER ISHIMARU: All right. Well, that's fine. That's fine. Thank you, Madam Chair.

CHAIR DOMINGUEZ: So my point being that we had a Youth at Work initiative. Commissioner Silverman had an initiative with the American Bar Association on mediation. I know that Commission Ishimaru is working on some initiatives that are forthcoming. So we need to take a look at our overall priorities and areas of focus, and it's my responsibility to make sure that the collective mission of the Commission, as reflected through not only our day-to-day operations but also through the specific initiatives that the Commissioners choose to advance our mission are supported.

So that's a long-winded way of saying to you, Commissioner Ishimaru, that I recognize that the whole issue on the operational budget perhaps we can talk about this down the road, but at this point I find it that it really is not germane to the issue that we have here. You've been given the information that relates to the health unit costs, and you also asked for information relating to the cost of other health units around the nation. You've been given all the information that you need with which to make this decision.

Now, what you're asking for is, you know, how do I know whether I should do this or do that? That's really my decision, not your decision.

COMMISSIONER ISHIMARU: Madam Chair, if I could make a point before I go on. I certainly don't mean to make this personal, because I know that this is a situation that transcends administrations, that certainly Chairs of all parties in the past have wielded power and authority in similar fashions. And I know from looking at the historical record there have been great tensions over the years, over many years between members of this body and the Chair over what information should be available to members of this body.

I am proud that I've been appointed by President Bush to this seat, and even though we do not share the same party and we may not share many of the same views, I believe that when the appointment was made that I have a fiduciary obligation to make sure that I have adequate information to cast an informed vote. And the fact that the Chair of the Commission is given by statute the responsibility on behalf of the Commission for administrative operations and is also given authority to appoint personnel as he or she deems necessary to assist the Commission in the performance of its duties, I don't read that as broadly as you do.

And we can differ on that, and we can have a debate, but for the life of me I do not understand, having worked in government for many a year and having worked for the Congress when one of my roles as a staff member was to oversee the work of various agencies, and to not get information, basic budgetary information on how the agency is working on a day-to-day basis I find astounding.

And I must say when I raised this with people from other areas they're likewise astounded that members of this body cannot get basic budgetary information about decisions you've made and that I respect. But I don't see what -- you know, this is not national security information, this is not classified information, this is not sensitive compartmentalized information. This is basic budgetary information.

CHAIR DOMINGUEZ: The Commission, as you know, and as you very wisely have pointed out, does have a policy in place. Certain budget decisions in excess of a certain amount of money go before the Commissioners for a full vote. Anything under that falls within the authority of the Chair of the Commission to exercise his or her discretion as to how to use it.

Now, as it relates to the vote before us today, you have been given all of the information that you need with which to make that decision. You happen to disagree with that. My point is that I have followed all of the legal proceedings, all of the required proceedings to present a vote to my fellow Commissioners in terms of whether or not to continue to fund the health unit.

COMMISSIONER ISHIMARU: Madam Chair, let me make clear about what I'm seeking here. I was seeking to get information about the decisions that have already been made by you in how we spend our money. I'm not seeking to challenge your authority to do that, because even though we may disagree all I'm trying to do is to try to figure out how the money is being spent across the agency, where people are allocated, what programs are funded, what programs aren't funded. And for the life of me, I can't understand why this basic information that's widely known throughout the agency by employees is not shared with members of the Commission.

CHAIR DOMINGUEZ: Let me just respond by saying that each program director, just as each Commissioner, has been given his or her operating budget, and that's what they have. So your allegation that it's widely known, if it is widely known, I'm surprised that the rest of the Commissioners don't know if it is that widely known.

COMMISSIONER ISHIMARU: Well, the Commissioners are the last to know. I would ask, Madam Chair, that Mr. Smith be made available so we can ask him a number of just basic questions.

CHAIR DOMINGUEZ: Well, I will have to rule you're out of order, because it's not germane to the issue at hand, which is to vote on whether or not we're going to continue to fund the health unit.

COMMISSIONER ISHIMARU: So you won't make Mr. Smith available to answer some basic budgetary questions.

CHAIR DOMINGUEZ: At this time, I think we've exhausted the discussion. We probably should bring this to vote.

COMMISSIONER ISHIMARU: Well, no. I have a number of questions.


COMMISSIONER ISHIMARU: I thought we can answer questions. Let me also point out when I started to ask for this and was told, quite frankly, by the Chief Operating Officer that I could not get it, information flow that I used to enjoy from the various offices stopped, it ceased. Everything after that point had to be cleared through the Chief Operating Officer. I think that's a misuse of time, but I'm not quite sure why she needs to vet everything that I'm asking for. Most of this is information that is public record information, but that's certainly within the prerogative of your office to allow that.

But I have a number of questions. I'm not sure that all of them have been answered, even though we asked for them weeks ago, but let me ask.

CHAIR DOMINGUEZ: Well, just go ahead.

COMMISSIONER ISHIMARU: Can you tell me how many visitors there were to the health unit over the past two years?

MS. IBARGUEN: One second. We had 480 employees use the center in the last two years.

COMMISSIONER ISHIMARU: But how many individual visits were there to the --

MS. IBARGUEN: Four hundred and eighty. That doesn't include repeat. Repeat visitors would be 585.

COMMISSIONER ISHIMARU: So you would add those two together so you would come up with roughly 1,000 visits? I'm just trying to understand the math. Because in an earlier answer I was told that there were nearly 4,000 visits in 2003.

NURSE CLAYTOR: Those include repeat visits.

COMMISSIONER ISHIMARU: Repeat visits. So each discrete visit there were 3,700, 3,800 during 2003 and --

NURSE CLAYTOR: That's including repeat visits.


CHAIR DOMINGUEZ: Let me just acknowledge our Chief Nurse, Judy Claytor, who's here with us today. And if anyone has intimate knowledge of what goes on at the health unit, she would.

COMMISSIONER ISHIMARU: But the actual number of employees was roughly the number you gave earlier.

NURSE CLAYTOR: Out of 600 employees that are currently employed by EEOC, 480 have had one-time visits to the health unit.

COMMISSIONER ISHIMARU: At least. And some have been repeat visitors to come up with your aggregate number of --

NURSE CLAYTOR: These are one-time visits. Four hundred and eighty employees have visited the health unit one time.

COMMISSIONER ISHIMARU: But there have been multiple visits by some visitors. All right.

And, Angie, the current staffing level of the health unit includes Nurse Judy and a doctor part-time and --

MS. IBARGUEN: Four hours. Four hours a week and a part-time nurse.

COMMISSIONER ISHIMARU: There's another additional part-time nurse.


COMMISSIONER ISHIMARU: Okay. Will our solicitation have the same level of staffing for the health unit?

MS. IBARGUEN: In our solicitation, we requested everything but the part-time nurse. Same doctor's hours, same nurse, same supplies, same services.

COMMISSIONER ISHIMARU: And could you tell me how often our employees use the doctor who comes once a week for the four hours?

MS. IBARGUEN: We looked at that. I believe three of the four hours is utilized, is that what it is? Three of the four hours is utilized every week.

COMMISSIONER ISHIMARU: So that would be roughly how many people? Would it be hard to say?

MS. IBARGUEN: Unfortunately, we had this all in a manual exercise, and in the last week we've been calculating all the sheets. Do you know, Judy?

NURSE CLAYTOR: No, I don't. I don't want to guess.

COMMISSIONER ISHIMARU: Okay. No, that's certainly fair enough.

Can you tell me, Angie, how the costs of the headquarters health care unit compares to the field health care units and how the field health care units are set up?

MS. IBARGUEN: The field health care units are through FOH, and they are in federal buildings, if they're within a federal building that's in-house. If it's not in-house, it's within a four-block radius. Less than a four-block is what we try to do. We have I think 13 offices that are in-house facilities in the field. The field costs are about $170,000 versus the headquarters costs of $183,000.

COMMISSIONER ISHIMARU: And how do people in the field access health care services?

MS. IBARGUEN: If it's in the building, they walk down.

COMMISSIONER ISHIMARU: Just as we would here at headquarters.

MS. IBARGUEN: Just the same as here, right.

COMMISSIONER ISHIMARU: And if it's not in the building?

MS. IBARGUEN: They walk a block or two or next door.

COMMISSIONER ISHIMARU: So it's usually close by?


COMMISSIONER ISHIMARU: And can you tell us how much -- the question's been answered already.

For the last question that I have, can you give me your interpretation of the collective bargaining agreement requirements for a health care unit? It appears to provide access to employer-provided health services for all EEOC employees and a preference that it be on site. Is that your interpretation as well?

MS. IBARGUEN: Yes, it is.

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

CHAIR DOMINGUEZ: Thank you, Commissioner. Any other questions?


CHAIR DOMINGUEZ: Commissioner Silverman? Okay. So at this point we need to vote on the motion. Is there a motion to approve the proposal to continue to fund the health unit?

COMMISSIONER ISHIMARU: Madam Chair, I believe my budget motion is still on the table.


COMMISSIONER ISHIMARU: And is entitled to a vote because we had a discussion on it.

CHAIR DOMINGUEZ: Okay. Would you mind repeating the motion?

COMMISSIONER ISHIMARU: My motion is that the budget reports from the various offices be released to members of the Commission.

CHAIR DOMINGUEZ: The operational budget?

COMMISSIONER ISHIMARU: The operational budget.

CHAIR DOMINGUEZ: Is there a second?

COMMISSIONER ISHIMARU: No. Madam Chair, it was seconded by our debate. That's a ruling that came from the Parliamentarian.

PARLIAMENTARIAN: I want to remind you that we don't operate strictly under Roberts Rules here, and this --

COMMISSIONER ISHIMARU: What do we operate under?

PARLIAMENTARIAN: Well, in this case something more informal, and the Office of Legal Counsel, which serves as the Parliamentarian, believes that the motion is on the floor by virtue of the fact that you all discussed it. So a vote would be in order.

COMMISSIONER SILVERMAN: Commissioner Ishimaru asked if there had already been a second by virtue of the discussion, as opposed to just being opened; is that what you asked?

COMMISSIONER ISHIMARU: I wasn't asking. I thought that was a ruling of the Parliamentar



VICE CHAIR EARP: But the motion was only for discussion; is that right, and not a vote on the release of documents.

PARLIAMENTARIAN: As I understand it, the motion was a motion to get the operating plans, and that is what the discussion concerned.

COMMISSIONER ISHIMARU: So we would vote first on my motion. Whether it passes or not is still an open question. But then we would move on to a motion to deal with the health care unit.

CHAIR DOMINGUEZ: Right..and I would just like to amend your motion, if you so choose to accept my amendment, for me to take it under advisement.


CHAIR DOMINGUEZ: I mean we'll vote one way or the other, but --

COMMISSIONER ISHIMARU: What would be the implication of taking it under advisement?

CHAIR DOMINGUEZ: That I will explore it off the premises and look to see what additional information that may be relevant we might be able to provide.

COMMISSIONER ISHIMARU: Well, I was told by the Chief Operating Officer, who informed me that this was a decision that had been vetted with you, that this information would not be provided. I think we should vote up or down and I would certainly welcome further discussion on this.

CHAIR DOMINGUEZ: This has been the operating practice of all the Chairs of the Commission that they have had statutory responsibility for the operation, for the implementation of the operational budget. What you're suggesting is to allow the Commissioners access to everyone's operational budget, which is quite fluid, and it varies from month to month. So we could certainly take your amendment and vote up or down. I'll withdraw my amendment.

COMMISSIONER ISHIMARU: But I can appreciate that the operational budgets are fluid and do change based on circumstances. My concern is that the three other members of this body have no idea what the various levels are and how funds are being spent by the agency. And as a public agency, I think that the operating budget where public funds are being expended should be a matter that's rather transparent.

Now, if my colleagues don't want to see this information, I can live by the vote of this body.

CHAIR DOMINGUEZ: And, Commissioner, I really take exception to your characterization, because it makes it sounds like I'm operating under this veiled -- somehow just a veiled, secluded, secretive operation when our budget has been presented to Congress -- we've got access [to the budget]. What we're talking about is the day-to-day administration of the decisions that I have to make given what comes before my desk on a day-to-day basis.

So I'll go ahead, let's vote, but I just, for the record, wanted to take exception to the way that the budget process is characterized, because you do have access to a lot of information relating to the budget. It's the operational piece that rests with the authority of the Chair that you're raising [issues with], and that is ten percent of the overall budget.


CHAIR DOMINGUEZ: You have the staffing plans, you have all kinds of other things.

COMMISSIONER ISHIMARU: The overall budget is a third of a billion dollars -- billion with a "b." And when I ask basic information about how our funds are being spent, I get stonewalled and I get told flat out that members of the Commission can't see this information. I find that astounding.


HAIR DOMINGUEZ: Well, again, this is not the purpose of this meeting. So I'm going to have to -- we're going to have to move forward


VICE CHAIR EARP: Can I try to reinstate your amendment, which I personally think is a good idea? If the goal is to have a thoughtful discussion about what information we should see, and I agree, I think that's noble, of course if I were sitting where the Chair is sitting, I might disagree, but sitting as a Commissioner, I think --

COMMISSIONER ISHIMARU: That was quite honest of you. I appreciate that.

VICE CHAIR EARP: That's right. I think that makes sense. And I think it should be noted that whatever decision made by the Chief Operating Officer, the Chair is certainly in a position to overrule that. And the Chair's amendment to me indicates a willingness for her to engage in a dialogue about what we're currently getting, what more we may need just to look at this in a more thoughtful way outside of a Commission meeting. I think that there is a little bit of intensity associated with the meeting, so I'd like to see if I can't reinstate the amendment that the Chair was going to withdraw.

COMMISSIONER SILVERMAN: Can I add my voice as well to this? Commission Ishimaru, I respect what you're doing, which is bringing this matter to the attention -- as you said, this is an issue that's gone back and forth in the way the Commission has been run and configured back to practically our very beginning. And from time to time, we do need to question it, and it doesn't matter who's been leading the Commission. That being said, I don't think that was the purpose of this meeting, but I think what the Chair has suggested we should very much consider taking her up on her offer.

COMMISSIONER ISHIMARU: Well, I think the Chair is certainly able to do that, and I hope she will following this vote, because I think having basic information about how the funds are being expended would be very helpful to all of us as to how we operate here. But it's very hard for me to be able to cast an intelligent vote on any budgetary allocation without knowing what the overall picture looks like. And, again, I am puzzled, I'm puzzled by the fact that basic information will not be released to members of this body.

VICE CHAIR EARP: I would move that Commissioner Ishimaru's request for budget information be amended by the Chair's willingness and indication that she would take it under advisement.

COMMISSIONER ISHIMARU: So a second-degree amendment.


CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: All in favor?






CHAIR DOMINGUEZ: The vote carries three to one.

COMMISSIONER ISHIMARU: So I could get a ruling from the Parliamentarian? Does the Vice Chair's motion supersede my motion or is it an amendment to my motion? Do we have to vote on my motion now?

PARLIAMENTARIAN: My understanding is -- I have to talk to Kathy for one second here. I'm advised that you also have to vote on the original motion.

CHAIR DOMINGUEZ: All right. Okay. Let's do that.

COMMISSIONER ISHIMARU: As amended by the Vice Chair's --

CHAIR DOMINGUEZ: No, on your original.

PARLIAMENTARIAN: On your original.

COMMISSIONER ISHIMARU: I thought hers was styled as--

KATHLEEN ORAM: That's right, as amended. First you vote whether or not to amend, and then you'll vote on the amended motion. PARLIAMENTARIAN: Oh, Okay. Okay. Maybe we need for someone to state the amended motion.

COMMISSIONER ISHIMARU: I believe a fair characterization would be that as amended by the Vice Chair's motion that my motion to get access to this information would be stayed pending further discussions with the Chair about getting access to certain pieces of information. Would that be a fair characterization?

CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: All in favor please say aye.






CHAIR DOMINGUEZ: Okay. The motion carries three to one. Thank you.

All right. Moving on, the second and final item before the Commission today is fiscal year 2005 state --

PARLIAMENTARIAN: Excuse me. Madam Chair, we need to vote on the health unit now.

CHAIR DOMINGUEZ: Oh. Thank you. Yes. Okay. All right. Is there a motion to approve the proposal to fund the health unit, as presented?

COMMISSIONER ISHIMARU: Madam Chair, could I take a point of personal privilege before the motion is actually made to approve the health care unit? Let me just say that in the last couple weeks since this has been put on the agenda I've been pleased and gratified to see the affection that has been poured out of various employees here at headquarters for the health unit.

The words of praise that Nurse Judy gets from employees from all over this building are truly profound, and even though I have not been a regular user of the unit, I wanted to note that for the record. As you pointed out in an email that there's been great concern that we might not have Nurse Judy in the future because she has done an excellent job, and I think, certainly, the sentiment throughout the building has been such, and I just wanted to note that before we voted on it.

CHAIR DOMINGUEZ: Thank you, Commissioner, and if you haven't used those services, give yourself time.

COMMISSIONER ISHIMARU: It isn't a matter of time.

CHAIR DOMINGUEZ: You've only been here for a year. Give yourself a little more time. But thank you for your kind words.

Okay. Now, without any further ado let's see if we have a motion to approve the proposal. Is there a motion?

VICE CHAIR EARP: I move to approve the proposal for continuing the health unit services, as presented.

CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: Any discussion?

COMMISSIONER ISHIMARU: I would just ask for a roll call vote when we do vote, because we have discussed.

CHAIR DOMINGUEZ: Okay. All right. So the -- okay. All those in favor please say aye. Madam Vice Chair?

VICE CHAIR EARP: I vote to support the health care unit continuing services.

CHAIR DOMINGUEZ: Commissioner Silverman?


CHAIR DOMINGUEZ: Commissioner Ishimaru?


CHAIR DOMINGUEZ: Okay. And I will vote to support the funding of the health unit. So that makes it three votes and one abstention. The motion is approved.

Moving on, the second and final item before the Commission today is fiscal year 2005 state and local budget allocations. By notation, the Commissioners cast three votes to approve and one to place this issue on the agenda. EEOC's Director of Field Programs, Nicholas Inzeo, is here with a detailed report. He's accompanied by the Director of State and Local Programs, Michael Dougherty. Mr. Inzeo?

MR. INZEO: Good afternoon, Madam Chair, Madam Vice Chair, Commissioners, colleagues and guests. I come before you today to discuss our proposed budget for the Equal Employment Opportunity Commission's state and local program activities for fiscal year 2005. With me is Michael Dougherty, the Director of the State and Local Program. Mary McIver, the Supervisor of the Program, was unable to be with us today because of an illness.

As you know, the Commission's relationship with the state and local agencies is a long-standing and very successful one that has been in place for many years. Indeed, the Commission's relationship with the FEPAs has grown and evolved into a collaborative relationship to address our shared goal of eliminating employment discrimination.

As you are aware, each year Congress includes resources in EEOC's appropriation to fund services provided to EEOC by the FEPAs and in support of tribal employment rights, or TEROs, activities. For fiscal year 2005, the level was set at $33 million.

Like other federal agencies, however, the Commission was subject to an across-the-board rescission, in our case of 0.80 percent and 0.54 percent. That rescission impacted the level of funding available for the state and local component as well as the agency's total funding level. As a result of the rescissions taken against the state and local account, $32,000,560 is our operating budget for the year.

Each fiscal year we present for the Commission's consideration our plans for allocating this money across the many activities required in support of state and local programs. The state and local budget for this year is consistent with expenditures we have made in prior years with the exception related to ADR contracts that I will address later.

Other than the ADR contracts, the categories for expenditures are identical to past years; that is, charge resolution contracts, intake services contracts, TERO contracts, the EEOC-FEPA annual training conference, EEOC-FEPA joint training and outreach, ADP support and a small amount for contingency reserve.

If I might provide a little more detailed overview, let me note that by far the largest single item contained in our proposed budget this year, as in the past, is for charge resolution contracts with our FEPA partners. We also contract with some FEPAs for a limited number of intake services contracts where FEPAs are reimbursed for providing intake services for charges that are to be processed by EEOC. Indeed, the charge resolution and intake contracts total more than $30 million of the approximately $32.5 million available for this year.

Next, again consistent with prior years, the next most significant amount, $1.6 million, is set aside for contracts with 64 Tribal Employment Rights offices relating to their enforcement of Indian Preference Agreements, pursuant to Section 703(i) of Title 7. The remaining funds are distributed among the EEOC-FEPA annual training conference, funds for our district offices to conduct local training for their respective TEROs, ADP support, EEOC-FEPA joint training and outreach and a small amount in the contingency reserve.

Finally, as I noted, we are proposing for the first time that an amount be set aside to enable us to contract with FEPAs as part of our National ADR Contract Program. By way of background, the past two years we have embarked upon a pilot in which a limited number of FEPAs have been able to participate in mediating charges that, by operation of the Work-Sharing Agreement, are our primary responsibility to process at the same $800 per charge rate that private sector mediators are provided.

As a result of our experience the past two years, we are ready to conclude that at least some of the FEPAs will be able to participate on an equal footing with the private contractors. A national solicitation for mediators is currently underway which will allow the FEPAs an opportunity to compete for those funds alongside the private contractors.

Unlike in prior fiscal years, FEPAs receiving mediation contracts will not be part of a pilot; rather, they will be part of the enforcement program. While we are not able to predict exactly what the level of participation will be, we believe it is prudent to set aside $400,000 which would constitute 500 charges at $800 per charge, for that purpose. If it does not appear that the FEPAs will be able to contract for the projected level of charges in fiscal year 2005, the amount remaining will be put into the contingency reserve and expended for other approved FEPA categories.

At this point, I'd be happy to answer any of your questions.

CHAIR DOMINGUEZ: Thank you, Mr. Inzeo. And, Mr. Dougherty, I'm sure we'll have some questions for you.

Let me just say that this allocation of funds, in my view, as Nick has mentioned, represents the straightforward implementation of our annual congressionally established budgetary appropriation less any mandated across-the-board rescissions. We have looked at different iterations of the budget, we have looked at competing demands, certainly the mediation piece of our FEPA, which I opened up a couple of years ago for the first time to our FEPA colleagues. And when it was all said and done we felt that this was the preferred way to go.

The relationship between EEOC and the Fair Employment Practices Agencies, or FEPAs, and the TEROs, with which we have work-sharing agreements, is a long-standing and productive one. Approving this proposal in a timely fashion will ensure that FEPA programs are able to continue without disruption.

At this point, let me ask my fellow Commissioners if they have any opening statements. Madam Vice Chair?

VICE CHAIR EARP: No opening statement.

CHAIR DOMINGUEZ: Commissioner Silverman?


CHAIR DOMINGUEZ: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I want to thank Nick for the cogent remarks that he made. I just wanted to note for the record that this package now in its third iteration highlights my concern about being asked to vote on these allocations without knowing what the rest of the budget plays out.

As I mentioned, this is the third iteration of the FEPA allocation. The first one funded FEPAs at the congressionally mandated level. That one was withdrawn after one day. The next package came and it funded the FEPAs at $1 million less than congressional intent, and it also carved out $700,000 for a discretionary fund to be at the Chair's disposal for any type of project, not necessarily one that is FEPA-related. By my calculations, this meant that the new allocation in this second iteration was $1.7 million less than what Congress intended.

This certainly intrigued me, and I asked Jeff Smith, who's obviously absent at this meeting, Nick Inzeo and Mike Dougherty to come up and explain these changes to me. According to Nick, at that meeting in my office, the second iteration reflected a rate of work that the FEPAs had done during the last fiscal year, which was less than we had expected. And according to Jeff, the $1.7 million would be used to offset unanticipated costs in other areas if, for example, we ended up having less people retire or at a slower rate than we anticipated.

And then I asked Jeff for a budget briefing, which I was not given, and then I was told again by our Chief Operating Officer that the budget materials would not be made available to me.

So I'm curious about this third iteration, which sets the allocation at the level which Congress intended and does not contain a discretionary fund for the Chair. Where is this $1.7 million coming from, is the basic question that I have. Where did it go? What other parts of the budget could it be in? And I guess I'll leave that for questioning when it's time for questions.

CHAIR DOMINGUEZ: I think we can go ahead. There were no other opening statements, so we can go ahead. Would you like to comment, make opening comments?

MR. INZEO: In response to the question, we were discussing the matter with the Chair's office and with the Chief Financial Officer. We were asked in the second iteration to draft something where the total amount would be $32 million. And in light of a number of uncertainties, I thought that it would be better to leave a larger amount in the contingency reserve, which was the $700,000 so that there would be more flexibility in terms of how that money could be spent.

COMMISSIONER ISHIMARU: But wasn't that $700,000 able to be spent anywhere within the agency and not just in FEPA programs?


COMMISSIONER ISHIMARU: So this conceivably could be used to fund other areas not intended by Congress.


COMMISSIONER ISHIMARU: But that obviously is not on the table in front of us today.

MR. INZEO: Yes. That proposal is not on the table anymore. After drafting that proposal, discussing it with you, I discussed your concerns with the Chair, and she asked us to redraft the proposal to be the one that you have in front of you today.

CHAIR DOMINGUEZ: And if I may add, the congressionally mandated language, as conveyed to me by the Office of Legal Counsel, is that it is up to $33 million. It doesn't say that it must spend $33 million. In fact, there's a lot of history relating to the disbursements of those funds in the past. We have certainly enjoyed a very good, productive relationship with the FEPAs, and we've funded them to the maximum extent possible. But the language doesn't require the Commission -- it says up to $33 million; again, looking at the competing needs of the Commission.

COMMISSIONER ISHIMARU: But can I get clarification from Nick that in past years the practice has been to fund it at the not to exceed level, that we have always, less a rescission, have always funded FEPAs at the not to exceed X dollar level.

MR. INZEO: That's my understanding; yes, Commissioner.

COMMISSIONER ISHIMARU: So even though it reads like that, would it be a fair interpretation that Congress intends, even with the awkward wording, that we fund FEPAs at this level that they've placed in front of us?

MR. INZEO: I think the wording is fairly clear in what it says, and I think what it says is what the Chair says. Now, that doesn't mean -- but the practice has been that we do fund it as close to that level as we can. And that has been consistent.

CHAIR DOMINGUEZ: Other questions?



CHAIR DOMINGUEZ: Commissioner, any more questions?

COMMISSIONER ISHIMARU: Can you tell me what the operating budget is of your office?

CHAIR DOMINGUEZ: I would have to interject here that's not germane to the vote at hand. It's out of order.

COMMISSIONER ISHIMARU: Could I get a ruling from the Parliamentarian?


PARLIAMENTARIAN: The Chair has said that that is out of order, and her ruling stands unless a majority of the Commissioners are against it.

COMMISSIONER ISHIMARU: Well, I would have to appeal the ruling of the Chair. I understand.


COMMISSIONER ISHIMARU: In an effort at comity, I will not appeal the ruling of the Chair, Madam Chair.


COMMISSIONER ISHIMARU: Nick, could you tell us some more about the $400,000 ADR fund and how that would work in practice? If the $400,000 for ADR is being competed, as I understand right now, with our ADR Program and that if FEPAs do not use up the full $400,000, what happens to that extra money? Can that be used for other purposes for FEPAs?

MR. INZEO: What we provide for in the matter that's before you, Commissioner, is that that amount would then go into the contingency reserve.


MR. INZEO: In the contingency reserve and that the money in the contingency reserve can be spent on any of the other categories in the memo that are presented, which would all be FEPA-related items. COMMISSIONER ISHIMARU: Do you anticipate -- can you tell me Nick where the Agency is getting the $1.7 million now that the FEPAs aren't losing it? Where's it coming from?

MR. INZEO: I'm not sure that it was $1.7 million, Commissioner, but we were not putting as much money into the charge resolution contracts, as there is now. At a lower level, we would not have been funding the intake services contracts, as we are now. And then there's the money for the ADR that hadn't been in the proposal before. Those three categories make up the difference between the second version you referred to and this version.

COMMISSIONER ISHIMARU: Thank you, Nick. Thank you, Madam Chair.

CHAIR DOMINGUEZ: Thanks. All right. Unless there are further comments, I'd like to bring the discussion to a close, and I believe we're ready to vote.

COMMISSIONER ISHIMARU: Could I ask for a roll call again just to be expeditious?

CHAIR DOMINGUEZ: Yes, certainly.


CHAIR DOMINGUEZ: All right. Is there a motion to approve the proposal?

VICE CHAIR EARP: I move to approve the proposal.

CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: All those in favor please respond through roll call. Madam Vice Chair?

VICE CHAIR EARP: I vote to approve the FY '05 state and local budget allocation.

CHAIR DOMINGUEZ: Commissioner Silverman?


CHAIR DOMINGUEZ: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: I have to abstain, given the lack of overall budget information not being provided. So I abstain.

CHAIR DOMINGUEZ: Okay. And I support the proposal and vote yes. So that brings the vote to three and one abstention. The motion carries.

MR. INZEO: Thank you, Commissioners.

CHAIR DOMINGUEZ: Thank you. All right. I want to thank everyone for joining us here today. We very much appreciate your being here. I know at least one of these subjects, probably both of them, are of tremendous personal interest to all of us, all of us here and all of our colleagues watching the television.

There being no further business, do I hear a motion to adjourn?

VICE CHAIR EARP: I move to adjourn.

CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: All right. All in favor?

(All Commissioners vote aye.)


CHAIR DOMINGUEZ: The ayes have it. The motion carries. The meeting is adjourned.

(Whereupon, at 3:10 p.m., the EEOC Commission Meeting was concluded.)

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