The U.S. Equal Employment Opportunity Commission

Commission Meeting of June 18, 2008 on Strategic Plan, Systemic Program and State and Local Program

PRESENT:

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

ALSO PRESENT:

RONALD COOPER General Counsel
REED RUSSELL Legal Counsel
BERNADETTE B. WILSON Program Analyst
DEIDRE FLIPPEN Director, Office of Research, Information & Planning
JAY FRIEDMAN Director, Strategic Planning, ORIP
KATHARINE KORES Memphis District Director
RON EDWARDS Program Research and Surveys Division, ORIP
ELIZABETH GROSSMAN NY Regional Attorney
NICHOLAS INZEO Director, Office ofField Programs

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

TABLE OF CONTENTS

1. Announcement of Notation Votes
2. Motion to Close a Portion of the Next Commission Meeting
3. Motion to Withdraw the Modified Strategic Plan for FY 2007-2012
4. Motion to Approve the Modified Strategic Plan for FY 2007-2012
5. Systemic Program Update
6. State and Local Program Update

P R O C E E D I N G S

CHAIR EARP: The meeting will come to order. Thank you all for being here. In accordance with the Sunshine Act today's meeting is open to the public observation of the Commissions deliberations and voting.

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 morning Madam Chair, Madam Vice Chair, Commissioners. I am Bernadette Wilson from the Executive Secretariat.

We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting and we ask that you carry on any conversations outside the meeting room, departing and re-entering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.

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

During the period May 31, 2008 through June 16, 2008, the Commission acted on five items by notation vote. Approved litigation on one case, approved the acquisition for a facility to host the FY 2009 EXCEL Conference, approved a subscription to Commerce Clearing House EEOC Compliance Manuel on the internet, approved a non-competitive labor economist-statistician contract and approved the obligation of funds for processing the EEO-3 and EEO-5 surveys.

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

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

COMMISSIONER GRIFFIN: So moved.

CHAIR EARP: I'll second. Any discussion?

(No response.)

CHAIR EARP: Hearing none all those in favor say aye.

ALL: Aye.

CHAIR EARP: Opposed?

(No response.)

CHAIR EARP: The ayes have it and the motion is carried. Thank you Ms. Wilson.

Again, good morning to everyone. I want to officially say welcome to those of you in attendance whether you are here in the room or watching from around the country.

At the outset there are a number of people I want to thank. There are a tremendous number of staff who work behind the scenes to put meetings like this together. I know that a lot of hard work and long hours have gone into this meeting and each staff person involved I want you to know how much I appreciate your help.

First, Deidre Flippen, the Director of the Commission's Office of Research Information and Planning, and Jay Friedman, a key member of her staff will present us with a modified strategic plan.

As my colleagues know the strategic plan was originally issued in October 2006. It covered fiscal years 2007 through 2012. Although we issued the plan it was not entirely complete. Since 2006 Ms. Flippen and her team and other Commission staff have worked diligently to update and to modify the document.

As of today I believe we have a plan that is fully modified. I also believe that that plan is valuable as a document important to helping the Commission's work and in helping us to measure our performance.

As an act of perfection the modified strategic plan probably falls short. But as an experiment in planning for and measuring our qualitative and quantitative goals, I believe the modified strategic plan is a first step towards success.

After the staff's presentation and the Commissions discussion I will call for a motion to approve the modified strategic plan.

Also on today's agenda are updates requiring -- regarding two of our most important programs. Namely the Systemic Initiative and our state and local program.

I know I speak for my fellow Commissioners when I say that we are all committed to both of these very important program areas. Our partnership with the FEPAs is essential and it's an integral part of EEOC operations. FEPAs provide us a critical component in helping to meet our mission.

We all value this partnership. Likewise we all believe that the Systemic program is vital to the mission of EEOC because it allows us to leverage limited resources in order to have the widest possible reach.

Through our Systemic program we are litigating and resolving cases that result in widespread changes in the work place and that benefit large numbers of workers.

Systemic cases can transform whole industries or geographical areas in one fell swoop and I'm pleased that we are able to have an update of this nature. I hope to schedule other informational meetings to provide updates on important EEOC programs and initiatives in the months to come.

So without further adieu we'll now have a presentation on the modified strategic plan. Ms. Flippen.

MS. FLIPPEN: Good morning, Madam Chair, Madam Vice Chair, and Commissioners. My name is Deidre Flippen. I am the Director of the Office of Research, Information, and Planning. And beside me is Jay Friedman who is the Director of the Strategic Planning and Management Controls Division within my office.

I am here to present the EEOC's modified strategic plan for fiscal years 2007 through 2012 for your consideration and approval. I would first like to provide some background about the agencies modified strategic plan that will help with our discussion today.

1993 Congress passed the Government Performance and Results Act known as GPRA. The Office of Management and Budget has issued guidance over the years to implement the provisions of the Act. The Act requires federal agencies to implement an overarching strategic plan to guide the organization as it engaged in activities to achieve its mission.

Agencies were required to incorporate several elements in the plan including the identification of general goals and objectives and the methods an agency intended to use to achieve them.

A plan had to cover at least a six year period and had to be reviewed and updated at least every three years. With a strategic plan as the overarching document, agencies were also required to prepare a fiscal year performance plan that contains specific performance measures and annual target goals that the agency expected to achieve during the year. Finally, the agency was required to prepare a performance report describing how well it achieved its goals for the just ended fiscal year.

The EEOC issued its first strategic plan on October 1, 1997. Since 1997, the agency issued an updated and revised plan every three years and prepared annual performance plans and reports. The EEOC has continuously improved these documents as it and other Federal agencies gained experience with the implementation of the GPRA requirements.

In the Spring of 2002, at the beginning of the 2004 budget cycle, the OMB initiated an ambitious five year effort to evaluate over 1,000 Federal programs using a methodology it developed and called the Program Assessment Rating Tool or PART.

Basically PART is a series of structured questions within four major categories that required agencies to provide specific evidence-based responses and documentation to OMB about a program under review. OMB evaluated the information and scored and rated the agency.

OMB assigned four specific ratings to evaluated programs. Ineffective, adequate, moderately effective, and effective. And a fifth general rating, results not demonstrated, if a program did not have acceptable long-term and annual performance measures in place and/or it lacked baselines and performance data for the performance measurers if used.

In the Spring of 2006 the OMB reviewed the EEOC evaluating the entire agency as one program. For several months the agency responded to the PART questions in OMB's request for additional information. From the outset the OMB was not concerned -- was concerned, the OMB was concerned with the type of performance measures the agency was using or the lack of established base lines and annual targets or final goals for some of them.

Agency staff worked extensively with OMB during the review to design a new overall strategic framework and a performance measurement configuration to address these concerns.

Considering all of the information provided and the performance measures used, the OMB rated agency program as results not demonstrated. Although the agency implemented a new strategic framework and a performance configuration as a result of the PART review, which OMB acknowledged, it determined that EEOC still lacked baselines for some measures and had not established ambitious targets for others in the new configuration.

In addition, the OMB specifically raised a concern that the agency did not measure the performance of its partners, the Fair Employment Practices Agencies, and their contribution to EEOC's achievement of its mission and goals.

Following the three year GPRA requirement the agency issued its new strategic plan on October 1, 2006, fiscal year 2007, using the strategic framework and performance management configuration developed with OMB during the PART review.

The plan covers the six fiscal years from 2007 through 2012. The new plan also formed the basic framework for the agencies 2008 performance budget which was submitted to Congress in February of 2007.

During fiscal year 2007 we began to work collecting data establishing base line values and determining ambitious annual targets and final goals through fiscal year 2012 for the performance measures adopted during the PART review.

Some of the performance measures were continued from the previous strategic plan, but others were new as we explored ways to collect data and establish goals for the new performance measures.

However, we identified a specific concern with our capacity to generate outreach data that would be comparable to the type of data we would collect for our enforcement programs. The agency proposed to OMB modifying the new performance measures in the strategic plan by removing the outreach activities and establishing baselines and determining targets and goals for only our enforcement programs. OMB agreed to this modification.

By the end of fiscal year 2007 the agency established annual targets and final goals through fiscal year 2012 for six of the ten measures, established baseline values for the remaining four, which included the new measure modified to focus on the enforcement programs, and began a dialogue with our FEPA partners to identify one or more measures that would demonstrate their contribution toward our mission and goals.

The modified approach was incorporated into our 2007 performance and accountability report, or PAR issued in November 2007 and was again the format used in the 2009 performance budget which was submitted to Congress in February 2008.

During the first half of fiscal year 2008, the agency proposed and OMB approved the annual targets and final goals for the four remaining measures. We have now established a measurement configuration, baselines, and annual targets and final goals for all of our measures.

A joint EEOC FEPA Task Force has been working on an approach that is designed to demonstrate the contribution our FEPA partners make towards achievement of our mission and goals. With all of this progress on performance measures the agency will be prepared to discuss with OMB a revision to our current PART rating during the next cycle, in the Spring of fiscal year 2009.

I hope that this background information is helpful. We look forward to your approval of the modified strategic plan for fiscal years 2007 through 2012. As I noted earlier the GPRA cycle requires the agency to review and update its strategic plan at least every three years. The agency will have to initiate its review of this plan at the beginning of fiscal year 2009 in order to meet this time frame and issue a new plan no later than October 1, 2009, fiscal year 2010.

The six year period of coverage for the new plan will move to fiscal years 2010 through 2015. Thank you, we will try to answer any of your questions.

CHAIR EARP: Thank you Deidre. We will now have questions and comments from the Commissioners. We'll start with the Vice Chair. Five minute rounds. Madam Vice Chair.

VICE CHAIR SILVERMAN: Thank you Deidre and thank you Jay. I know you've put a lot of effort into this document and thought into it. It's unfortunate that we weren't able to really be involved in that process because you know, I have a number of questions and thoughts and there just wasn't a lot of time to talk about it before this meeting.

I wish you had consulted the Commissioners at some point during it because there's some things that I might have liked to shape at that point in time.

There's certain measures that I'm just a little bit concerned about and I just wanted to ask you about them because in hearing you talk you mentioned, you know that we're supposed to be setting ambitious goals and that OMB rated us as results not demonstrated in the past because we weren't setting ambitious goals. But, at the same time, you know if we set a goal that we don't think it's possible to meet at least under current circumstances and this plan that's supposed to be taking into effect in 2008 then we're setting ourselves up for failure and I think that can be demoralizing.

So, I'm just you know caught in betwixt and between. You know, you should aim for the stars but if you're going to be judged by it, it makes it more difficult. Specifically annual measure 2.1 that at least 75 percent of private sector charges are resolved in 180 days or fewer by 2012. Under current circumstances do you believe that that is attainable?

MS. FLIPPEN: There are some questions about whether or not the agency has the resources to do that. When we had those discussions among ourselves and with OMB this 2.1 and 2.2 are the two measures that the agency did not meet in 2007.

VICE CHAIR SILVERMAN: I mean not only did we not meet it but we were 55.7 percent, correct?

MS. FLIPPEN: Yes.

VICE CHAIR SILVERMAN: And isn't it true that our -- currently we have an increase in charges. This -- you know this year as well as last year?

MS. FLIPPEN: Yes.

VICE CHAIR SILVERMAN: And we don't have more resources than we had last year to do these charges.

MS. FLIPPEN: Well what did happen when we didn't meet the measure is that we did have discussions and we did consult with OMB and expressed to them our concern about whether or not the measures should be modified lower, that we didn't think that we could achieve it.

We had those discussions with OMB and OMB came back to us and advised us that at that time they would not modify the measure. In order for us to change the measure we need OMB's approval.

VICE CHAIR SILVERMAN: So --

MS. FLIPPEN: What they have basically said to us is that you can't change the measure at this time however during this budget cycle we can have discussions about that. We can take another look at resources and make adjustments. So that's what we plan to do.

VICE CHAIR SILVERMAN: So we're supposed to ratify your discussions with OMB but we can't really change what they set for us as the measures is what you're saying?

MS. FLIPPEN: If the Commission decides to, that it wants to change any of the measures or the targets we would go back to OMB and consult with them on it.

VICE CHAIR SILVERMAN: Okay.

MS. FLIPPEN: It doesn't mean that they can't change it.

VICE CHAIR SILVERMAN: Well okay, I think I made my point that I don't see how that's possible right now.

But, the end of the Systemic report on page 29 we have a list of program evaluations in the future and I see that in fiscal year 2009 we're supposed to be initiating two such program evaluations and one of them is Systemic enforcement.

As somebody who worked on the Task Force I'm delighted that we're going to work on Systemic enforcement and we're going to get to that later today. But as someone whose watching us slowly build the infrastructure for Systemic enforcement and as we'll hear later today, you know we just got our own team up and running to evaluate it - I'm questioning why we would spend money in 2009 evaluating a program that we're still just getting up and running from outsiders when we don't even have our inside evaluation done.

You know, you run a shop that has a lot to do with the Systemic program. Do you think it's ready to be evaluated in 2009 by an outside evaluator?

MS. FLIPPEN: I think what the -- the program evaluation -- each strategic plan is required to have a program evaluation scheduled and we've established this particular schedule. We have a lot of flexibility about whether or not we change any of these things.

For example, this year, according to the plan we were supposed to do outreach and we pretty much moved that back because we didn't think it was appropriate. And that wasn't a problem. If in 2009 we look at, consult with the program offices, consult with the Chair's office and the Commissioners that it is premature to do it then we could also move that to another time.

VICE CHAIR SILVERMAN: But again, 2009 for us starts in October and it is June. We're voting for a plan that starts 2009. This is the kind of thing that we can look at right now and say this is a little early. And again, if we had been consulted earlier in the process you know I would have indicated to you that I am delighted that we're putting the effort into it I just think that this would be, you know throwing good money after bad right now. I see my time is up for this round.

CHAIR EARP: Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I'm delighted we're here at this meeting. This is the first meeting we've had on a substantive matter in over a year and I hope Madam Chair, like you said in your opening statement, in the upcoming months we'll see more informational meetings ahead because I think they are very valuable for the work of the Commission.

I think one thing that hasn't been mentioned is that the strategic plan that was implemented in October of 2006 was never put to a vote by the Commission.

I did not object at that time to this procedural defect because Chair Earp had just taken office and I felt that she was between a rock and a hard place because she was given a strategic plan that was drafted up before she became Chair and she was faced with an immediate deadline to put in a strategic plan with the Office of Management and Budget.

By the way, are our budget examiners here? Are personnel from the Office of Management and Budget here? Could you name them and introduce them?

MR. FRIEDMAN: They were invited but couldn't make it.

COMMISSIONER ISHIMARU: So no one from OMB is here, no?

MR. FRIEDMAN: Not that I am aware of.

COMMISSIONER ISHIMARU: All right, because you know one of the things that comes up in this conversation is the faceless nature of OMB. That there's an Office of Management and Budget. But we deal with budget examiners who have tremendous leeway in judging our plan and it would be nice to know who they are, and frankly for the rest of us it would be nice to meet them every so often.

But anyway, back to the point that this was not voted on which in my recollection is the first time that a strategic plan had not been adopted by the Commission. It was implemented but it was a special situation because the Chair took over. She needed to put a plan in place and I appreciated that.

I also thought though that the Chair would put time in and consult with other members of the Commission as we developed a strategic plan for an upcoming period of time and no one had ever raised this with me again until we were getting ready for this meeting.

As the Vice Chair had indicated there was no consultation with members of the Commission and I think that's unfortunate because there's a lot in this plan that either does not express the vision that the Commission has laid out quiet substantially over the past few years. It also does not link together the various initiatives both old and new that have been talked about in the plan. Things like the President's New Freedom Initiative, the Freedom to Compete Initiative, Youth@Work, E-RACE.

         

They are certainly mentioned, but the linkage between the initiatives and certainly the more recent initiatives like the Systemic Initiative that the Commission on a unanimous basis voted to adopt and frankly I think has put into place, and people have embraced with open arms many of these new initiatives, is not reflected in the body of the strategic plan.

So, it was good to hear that we were looking at this and I'm glad the meeting was called. But I must say that when I got a hold of the strategic plan two weeks ago, which was under the time we were supposed to have to review this, I frankly was disappointed to put it mildly.

Some people have said to me both here at the EEOC and in previous lives when I've dealt with strategic plans and the Governments Performance and Results Act that this is an exercise for OMB and this is part of something that we need to do to be in compliance with the various laws that are out there and this is a planning tool.

And I appreciate the notion of exercises and tools, but it also can be a useful vehicle for the agency in planning out what the next period of time will look like in the broadest of senses.

And there's nothing that precludes us, especially now, here we are 15 years or more after the passage of the GPRA, the Government Performance and Results Act, that people now know how to do these plans because at first there was big confusion as to what these things meant, how to do one effectively, and I think at this point in our time that people know how to do these and that it can be used both as an exercise and to benefit the agency to have a real strategic plan.

I see my time's up. I'll yield until the next round because I have much more to say.

CHAIR EARP: Thank you, Commissioner Griffin.

COMMISSIONER GRIFFIN: Well, it's probably no surprise that I too am a little disappointed with the way this has developed and frankly, you know we really didn't get to see this until very recently and didn't really get to have a discussion or a briefing until the day before yesterday. So I think it was probably premature scheduling a meeting.

I too, like Stuart, would have loved to have met some of these OMB folks especially when I'm told that they are the one's that are making these decisions, we can't change the numbers, and yet we here I guess supposed to ratify what they and all of you have decided. And I just don't think that's an appropriate thing for any of us to be doing frankly.

I think it's also kind of ironic that, you know this OMB says that setting unattainable and unreachable goals will demonstrate to Congress our need for more resources when they are the very OMB that advances the administrations budget and prevents the Chair or anyone that's testifying before a budget hearing from deviating from that to say you need more resources. So I just think the whole thing is ironic.

As for the plan, I think it could have been a lot better and I think we should have had a part in the process because as Stuart said we did give up the option of voting on it in 2006 and I think we thought we would play a role in that and that we would be, we're assured that we would be voting on one that was developed and we haven't.

And I think it's also interesting that lots of this has gone on since 2006, the meetings with OMB, the changes to the 2006 plan and yet we didn't I think have a full appreciation of what was happening.

I think we really do need to take a look at these goals and be a little more realistic and fight back with OMB. Just for an example, we have in New Orleans right now pre-Katrina number of charges and we have ten investigators, we used to have 30 pre-Katrina. I think we should be able to demonstrate pretty easily to OMB that we don't currently have the resources to meet goals that are even lower than this, which we certainly can demonstrate in the last couple of years. Never mind reach these goals.

And so as I think as Leslie said it's demoralizing to the staff and to us to be here at the head of an agency that's setting unrealistic goals and not having input into them and then being asked to vote on them.

So, I just -- I find the whole process very problematic. I really don't have a lot of questions because you know as we talked the other day, there are so many that we really -- this probably isn't even really the appropriate forum to sit down and have this whole policy discussion about where we go and how we change this plan. And if you're telling us we can't change it then I guess what I'm saying is I can't vote for it. And I yield my time back to anybody who wants it.

CHAIR EARP: Deidre, each of the Commissioners have expressed a concern about the lack of coordination between October/September `06 when we were trying to respond to OMB's deadline and getting information on the plan in the last week or so. Can you address, can you respond to what was going on during that period of time?

MS. FLIPPEN: During that period of time what we had done was to establish what we called the Executive Leadership Team. And the Executive Leadership Team consisted of all of the Office Directors. We also created a Performance Measurement Workgroup that would support in terms of looking at the data, doing the analysis to support the measures that we were looking at and the targets that we were trying to figure out.

So during that time there were numerous meetings among the Executive Leadership Team and Performance Measurement Group back and forth looking at that October 1, 2006 document to see whether or not we wanted to make any changes to it and whether the measures were realistic and whether we should drop any.

And there was a lot of rich discussion about the measures and we also discussed the concerns that had been raised by the Commissioners during September `06 when there were - the decision after consultation with the Chair was made to go ahead and put the October 2006 document up. She didn't have that vote. So --

COMMISSIONER ISHIMARU: Madam Chair, can I just ask a quick question. You said hearing the concerns of the Commissioners in October or September of `06?

COMMISSIONER GRIFFIN: When we commented on what was given to us, but at that time it was empty.

COMMISSIONER ISHIMARU: Oh, I see -- the comments on the `06 plan that were we --

MS. FLIPPEN: The `06 plan.

COMMISSIONER ISHIMARU: -- did provide counsel. Thank you very much.

MS. FLIPPEN: Where you raised very specific concerns that you have and over the last few days you have expressed that those concerns still exist even with the changes that we've made.

But those concerns were put in front of the Executive Leadership team and were considered and ultimately this is the plan that we came up with.

I will say that hindsight is 20/20 or something. Certainly what we were trying to do is because one of the concerns that had been expressed by the Commissioners is that we had all of these TBDs. So we wanted to be determined. We didn't have targets. We wanted to try to identify them and we wanted to have them all before we came back to you.

So in hindsight we should have been talking to you along the way and did not. So I can't fix that. I guess we just have to move forward on where do we go from here.

So, that was a mistake to try to put it all together and to not try to consult with you as we went along. We did have some input on the two measures that dealt with the survey with some of your staff. But that doesn't take the place of having substantive input into the framework or the structure of the ultimate measures or didn't give you an opportunity to talk with the Executive Leadership Team regarding why these particular measures are put forth and in the manner that they are.

So that was a mistake and I wish we had done that differently, but --

COMMISSIONER GRIFFIN: Aren't we the Executive Leadership Team? Who's the Executive Leadership Team because I'm sitting here thinking aren't we that?

MS. FLIPPEN: Well, it's just under the, you know GPRA, it's the Office Directors. It's Program Directors.

COMMISSIONER GRIFFIN: So GPRA decides who the executive leadership is too, OMB does?

MS. FLIPPEN: No, that's not OMB, that was --

COMMISSIONER GRIFFIN: They kind of have actually. I mean when you look at how this has all happened, OMB and I think a few folks here have decided that for us.

CHAIR EARP: Well I appreciate that mea culpa and our recognition that we should have been closing the loop with the Commissioners based on early indications that they had some concerns.

I would like to start round two of questions and comments and go to the Vice Chair.

VICE CHAIR SILVERMAN: Just two more questions on the process. Did the entire Executive Leadership Team support this document?

MS. FLIPPEN: Yes, ultimately they did, yes.

VICE CHAIR SILVERMAN: They all said this is a great idea let's measure ourselves and OFP something that we can't --

MS. FLIPPEN: I don't know that we had 100 percent consensus but everyone pretty much agreed on it or they could live with what was here.

VICE CHAIR SILVERMAN: Okay, and one last thing and I appreciate your mea culpa as well. I mean would you not say that a lot of this document, and some is management but a lot is policy. Where we want to go, what we want to do, and how we want to get there and are we not all the policy makers.

I mean this is -- we understand that we're not supposed to be sticking our nose into everything even though I don't think the Chair always appreciates -- you know it's very hard between the Chair and the Commissioners and I appreciate that there is a division that we don't get to decide exactly where the resources go.

But if this document isn't something that you should be working on with the Commissioners, I mean I really don't know what is, because this is I think why we're here because we're supposed to be having - helping with the vision of the agencies.

So, again getting this to us after this is scheduled for a vote is setting it up for failure and that makes all of your hard work a waste of time because I really do think we could work with this, you know and get something that we could've all agreed on. But the way this is now I just don't see how we can.

You had mentioned earlier in your statements about the survey. As you may recall, my office was quite involved with trying to shape the survey so that we could really measure what the public thought about the agency, what they knew about our laws and so that it would be a useful baseline which

I think is what OMB and PAR and all of these things encompassed.

And yet I was a little bit concerned when I looked at how again we're trying to measure ourselves on this because I saw in long term measure two we have a fiscal year 2007 baseline of 47.8 percent. In other words 47.8 percent of those surveys said that they were confident in EEOC's enforcement of the Federal laws. Can you explain to me how you measured the confidence here?

MS. FLIPPEN: There was a question on the survey that asked respondents to rate their level of confidence in the EEOC on a scale of one to ten. One being not confident, ten being very confident and those responses were tallied and our office recommended that we use the levels eight, nine, and ten to express -- for the baseline.

And the reason that we did that, after consulting with our contractor we actually asked them what -- which level should we use. They recommended that the strongest indication of confidence is eight, nine, and ten and that including seven in that calculation would be more iffy. And so as a result of that we recommended eight, nine, and ten.

There was some discussion about that and some concerns raised about whether or not that was appropriate. Whether or not we were missing something. Whether or not that represented -- best represented the public's confidence in what we do. And as a result of that we went back to the contractor and had them to do another calculation to see what the numbers would be if it was seven through ten.

And that number would have been 60.7 if we had included that.

What I did, or what my office did was to make a recommendation to the Chief Operating Officer, because at this point he needed to weigh in, as to whether or not we would use the respondents information from eight to ten or seven to ten. And so I sent that to him for him to make a decision as to whether or not he wanted to change that.

VICE CHAIR SILVERMAN: The Chief Operation Officer?

MS. FLIPPEN: Yes.

VICE CHAIR SILVERMAN: Okay, so he decided to do seven to ten instead of eight to ten. But wouldn't you say that eight to ten is very confident as opposed to -- I mean I would think that six and above would be confident.

I mean again we've taken the absolutely highest standard, which sounds great, except if you kind of look at the totality of the circumstances here. We have a public who's, you know are filing charges. We have, you know what we have with investigators and they're trying to get through that and not everybody is going to walk away very satisfied customer and then we then surveyed the public and got a pretty good result I think and then taken the very highest level and say, we want to make that in the future.

Again, I think we're setting ourselves up for failure and I don't know why we would do this in a document. I'm not saying let's make easy goals, but I'm saying it's already tough enough on our folks here. I don't know why we would take on a piece of paper, something that would be so difficult to achieve and put it out there.

MS. FLIPPEN: Well again, after consultation with the contractor --

VICE CHAIR SILVERMAN: But does the contractor, did they ever talk to investigators and ask them how many cases they have to, you know investigate on a given day?

MS. FLIPPEN: From --

VICE CHAIR SILVERMAN: Or are they just looking at a survey. I mean you know, this isn't how much you enjoy chewing gum. I mean this is --

MS. FLIPPEN: From the standpoint -- I mean what we were trying -- what we're doing here is establishing a baseline for the future. It's the first time we've ever done a survey.

VICE CHAIR SILVERMAN: And I think we got a pretty good result.

MS. FLIPPEN: And once we set this baseline then we have to set annual targets. My thinking was that, based on consulting with the contractor is that including the six and seven, while they may increase the, you know the number on the baseline it may -- from a public relations perspective it certainly looks better and I recognize that. But there was also the concern that those ratings for -- are weak and that if we set a goal at 60 that means -- and if we're following the OMB criteria of higher targets then it may be that when we resurvey again that it's more difficult to reach those targets. So we were trying to also be a little conservative in terms of setting the baseline. That was also part of the equation.

And that -- I do think that is something that should be considered. The higher you set your baseline then you're going to have to meet it. At this point we don't even know what types of different initiatives that we might implement to move the baseline. What kinds of things we're going to do.

The other consideration was the fact that in 2005 we had the Gallup survey and the Gallup survey was something like 49 percent, asking the same question. The Gallup survey, which was on a different scale, from one to five used four to five. The four to five is comparable to the eight to ten. That's what the contractors told us. So we were also trying to be consistent with the Gallup survey.

And so you know if you look at what the confidence result from the Gallup survey 2005 and 2000 -- the baseline that we have now, they are very close. And it seemed also reasonable setting that as our baseline for the purposes of this exercise was the best way to go.

Now, let me just go back a ways. That because of the concern that had been raised about using eight to ten we did the calculation for seven to ten. Sent that to the Chief Operating Officer and he gave, he gave some of the folks who were expressing a concern the opportunity to come back to him and basically say let's use seven to ten and that didn't happen and so here we are.

There is nothing, there is absolutely nothing that precludes us from using seven to ten if we want. If we want to use the 60.7 for to -- for that particular measure or for 2.7 or --

VICE CHAIR SILVERMAN: I just think if you're going to measure people with awareness of rights or confidence in the agency and you pick, you know a very difficult goal it just makes it harder for people to do what they do. It just makes it almost impossible for us to meet this, thank you.

CHAIR EARP: Thank you Deidre. Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I'd like to follow-up on an earlier point the Vice Chair was making. GPRA was enacted and is usually interpreted dealing with executive branch departments where there is a secretary as the head of the department. We on the other hand are set up in a very different way where the Chair is one of five members of the Commission. She's empowered under the statute to deal with the administrative operations of the Commission including hiring of people.

But the Commission as the body is the decision maker here and that I think was, you know that statutory requirement was not followed here. Where the decision makers should have been consulted and the Executive Leadership Team in an Executive Branch Agency serve as surrogates of the secretary. But here the body itself did not, was not consulted. Did not participate. Was not included and I think that unfortunately led to many of these problems.

As I was saying earlier in my statement that, you know I believe that we can come up with a document that satisfies both the GPRA requirements, the OMB requirements and can show Congress that we have a vigorous program here that should be funded and that new programs should be funded at higher levels.

And, there have been indications both last year and this year as well when the House has passed as my understanding a 20 million dollar increase over the President's request to our budget, that the appropriators are interested in funding a program at this agency that will improve and will increase and I think that's a good thing.

But frankly if we want to make sure that Congress is confident that we can actually use this money in a strategic and thoughtful way we need to have a plan that reflects that going forward.

Now I don't know how many millions of dollars of staff time was spent developing this plan. You had mentioned that there were high level debates that went on over this plan and no doubt the millions of dollars were spent trying to develop this product. And it is not to disparage the people who were working on this because I know a lot of hard work went into this. But, it's troubling that we're at this place with this plan, you know it's a real conundrum because we're being asked now to vote on modifications to the strategic plans. Yet at the same time there are significant changes to the plans that take it out of the realm of modification.

And I know people have told me that if we have a new plan it's subject to new requirements and I appreciate that. But it looks to me, as being one asked to vote on this, that it is a new plan and that if we're going to have a new plan perhaps we should start and have a real new plan and to look at this from a holistic point of view and to go through the processes that we need to happen.

You had mentioned that this plan, the plan that was adopted in 2006 was subject, or was a result of the PART review done earlier in 2006. And I think what's making us troubled here is that OMB has signed off on this. OMB approved these measures and therefore people want to hang on to what OMB approved rather than look at the plan itself to see whether it meets the need of the agency for all these various purposes.

Frankly, if you look at these measures some do not make any sense and frankly some are counterproductive to the stated goals that the Commission as a body has stated.

One of the goals, that is a carry over from past strategic plans and I assume was included in this plan as well, is resolving things within 180 days. Resolving private sector charges, resolving federal sector complaints.

If you look at the definition of what resolve means it means successful resolutions I assume, and correct if I'm wrong. It means successful resolutions. It means charges that are dismissed, closed out, it means that we finished it no matter which way. Positive, negative, plus, or minus it's done, it's off our books so we don't -- it doesn't carry over to the backlog.

But as I vividly recall from a meeting I had in one of our field offices where as I was talking to investigators one pulled me aside and he said "check out this email from our deputy who said I want 300 closures by the end business today. I don't care how I get them. I want 300 closures so I can get these cases closed and off our books." And I found that, like this investigator did, very troubling that we would have a quota to close cases because we needed them closed. And as we've talked many a time and as came up during the discussion of the Vice Chair's Systemic Task Force, when we use quantitative measures alone they can be used, the numbers can be used to drive us places where we don't want to go.

And I see again my time's up so I'll save it for the next round. But I guess my question to you, what sort of qualitative measures are there here that we are using to try to analyze the quality of our work. Are there --

MS. FLIPPEN: We believe that we have qualitative measures. The 2.4, annual measure 2.4 which is the percent of investigative files meeting quality criteria.

COMMISSIONER ISHIMARU: But that's a quantitative measure isn't it because it's my understanding that the people from the Office of Field Programs go and do these audits. And they have a check list. Is the check list being followed and if it is being followed it falls into the quantitative measurement of yes, we have sufficient numbers of things being followed. But it doesn't go into the quality of the work that's being done. It's a check list of are these things being followed which is a useful function, I grant you, but it's not a qualitative analysis of is the quality there.

MS. FLIPPEN: It is my understanding that when they go out and do those tech reviews that they do review those files for quality, the content of the files. You know, it is reduced to a quantity so we can fit it into the measure, but their reviewing those files based on a certain quality criteria. So it is a qualitative.

I believe it is a qualitative measure as well as the measure with respect to the confidence in EEOC's mediation program. It's a direct result of the quality of the mediations that are held by the mediators. We consider that a qualitative measure.

Again, they are not perfect, maybe there could be other or different measures but both of those -- and as well as our successful litigation measure. We consider those to be qualitative measures.

COMMISSIONER ISHIMARU: Well, the successful litigation measure we should talk about in the next round. Thank you Madam Chair. I'll wait for the next round.

CHAIR EARP: Commissioner Griffin.

COMMISSIONER GRIFFIN: I too appreciate your apology for not including us. But I also think, you know there are other factors here. You weren't the one deciding whether to include us or not and certainly based on some of the things that you said, the Chair's office, Tony, somebody was very involved in this. So you know I feel like maybe that decision was made not to include us at a different level or we were just forgotten. I don't know. But I don't want it, you know to lay it all at your feet.

When you talked about the program review when Leslie asked you about, you know the Systemic program being chosen. How were those programs chosen? Like who decides what programs and what year to review it and --

MS. FLIPPEN: Generally speaking my office just came up with a list and put it before that Executive Leadership Team and you know they just said okay. That's how that came about.

But in the past we have made some shifts and like I said we can make other changes to that. It depends on funding. As a matter of fact we were supposed to do one this fiscal year, I think it was outreach and I just made a recommendation that we not do it and that we not move forward on a program evaluation for this year because we were already looking at the PCHP any way.

So there is a lot of flexibility there. I think during the early discussions with respect to Systemic and some of the other areas, Systemic was just getting off the ground and we were actually trying to push it into the future in terms of having the program actually be strengthened before we did that evaluation. But that would be something that would be considered. But basically that's how it became about.

COMMISSIONER GRIFFIN: All right.

MS. FLIPPEN: Areas where we felt that, you know some feedback would be useful in terms of looking at the programs.

COMMISSIONER GRIFFIN: Well I understand that you say that there's flexibility but my concern is if we vote for something like this, you know it may be flexible as hell for somebody but I'm afraid we won't be consulted at all. And to, you know any changes that are made or anything like that, you know based on what's happened so far. So I would be very concerned about us ratifying anything like that.

MS. FLIPPEN: Well certainly the message to my office is to do a better job of consulting with the Commission and figuring out what the best way to do that is and that is certainly -- that will certainly happen in the future wherever we go from here. We'll just have to figure out how to do that.

COMMISSIONER GRIFFIN: My next question, I really don't know who can answer this. You know, it might be actually for the Chair. But what happens if we don't vote for this because in my mind if we don't vote for this we don't have this strategic plan and is that right?

CHAIR EARP: Deidre you can respond to that.

MS. FLIPPEN: To be honest with you I don't know where we are. We'll have to have some discussions about where we are. If you don't vote for it, I just don't know where that puts us. As you know from the briefings I expressed to you that we had been using the framework, the measures etcetera in our other planning documents. So we're now in a position, we're in the process of the budget cycle. So we're doing our 2010 budget and we're required to have an annual performance plan in there, measures, etcetera.

In order to have an annual performance plan you have to have a strategic plan and if you don't have a strategic -- I don't know where that puts us. I think we're going to have to talk about that.

COMMISSIONER GRIFFIN: Well, we have a strategic plan the one we voted on or the Commission voted on is just an older plan.

MS. FLIPPEN: Well we certainly have the October 1 version that's on our website. Of course that wasn't technically voted on. So I really cannot answer that question.

COMMISSIONER GRIFFIN: I'll tell you why I'm a little concerned because we had a little bit of exchange the other day and some follow-up emails and based on the answers to those emails I thought it was pretty clear that even if we don't vote on this the intent is to go ahead and put -- update with these goals and numbers that you put in this plan, and I for one would be very concerned if that happened. Will that happen?

MS. FLIPPEN: I know what you're talking about. I know there was an email exchange between you and Jay and he said yes and I don't necessarily agree with that. I don't know where we are. My response is I don't know. That we'll have to talk about. If you don't vote for it I don't know where we are.

COMMISSIONER GRIFFIN: Well I just want to be clear that if I don't vote for this, if we don't vote for this as a Commission, I am assuming that we don't put this forward. That you know, we can't just, we need to vote on this and then we don't like it and we don't vote for it then it happens any way. I mean that can't be the answer too.

MS. FLIPPEN: I would consult with the Chair's office and see how she wants to proceed and what are the next steps if we don't get a vote.

COMMISSIONER GRIFFIN: Well, I hope someone consults with us too.

MS. FLIPPEN: Absolutely, I'm sure.

CHAIR EARP: Well I don't think that the determination is solely within EEOC's control. I mean OMB does have a role to play in whether or not we have a plan but how they are going to measure us and what we're allowed to use as a part of the budget submission.

But Deidre let me ask you a couple of things. It has been stipulated that we did not do a good job keeping the Commissioners informed and the Commissioners disappointment at that and the document has also been stipulated. There's been talk of millions of dollars of staff hours lost and some one mentioned this was a total waste of time. Do you believe that this exercise has been a total waste of time?        

MS. FLIPPEN: Absolutely not. I don't believe that it was a total waste of time. I think for the first time we had all the program offices in the room together and all of the support offices in the room together talking about strategic planning, notwithstanding that we didn't have the Commissioners' input, talking about strategic planning. Discussing issues that you raised about quality and quantity and staffing and what's achievable, what's not achievable. Having too many measures or too few measures, having a discussion about what is the most important thing that we do which is enforcement, as opposed to some of the other things that we do that are very important but are more supportive.

I think that it was a very useful process and I think that, you know we had individuals in the room who were in different places. Some who wanted more aggressive, stronger measures, or stronger targets, and others who were more conservative because there's always the issue about down the road what kind of resources are we going to have to implement them.

So, I don't think it was a waste of time. I think of it as something that the agency needed to do. I think this plan with all of its flaws or imperfections is an improvement over what we've done in the past. That we had rich discussions about again results, what impact are we having, how do we measure that? How do we know that? And I believe that this is a, it's useful and I don't think it was a waste of time.

CHAIR EARP: Can you briefly address what impact the plan may have had on our proposed budget for 2009 because that was effectively the first budget that OMB actually looked at what we were proposing in the strategic plan?

MS. FLIPPEN: Well I'm not privy to all of the various budget discussions. But certainly the interactions that we had with OMB about the measures, about our staffing issues, about their pushing us to stretch, to be ambitious in our cautions about you know stepping out too far. That it's my understanding that we have been given some additional resources. I do believe that part of the reason is the fact that we've gone through this process, that we have put some measures before them that they feel better meet their criteria than the one's that we had before.

I do think that that has some influence on it. I know that the Chair's office and the Program offices do a lot of other interactions and consultations with OMB also on work load kinds of issues too. But yes, I do believe that this had a positive impact on that.

CHAIR EARP: Thank you. Round three, questions and comments starting with the Vice Chair.

VICE CHAIR SILVERMAN: The last issue I have is again with -- well it's with annual measures resulting from the survey and I apologize, I try to come as prepared as I can for meetings but I just got this survey as I was heading out on a plane two days ago and I haven't gotten through the whole thing. But, it seems like we are measuring in annual measure 2.7 how much individuals demonstrate an awareness of their equal employment opportunity rights and responsibilities by fiscal year 12.

And I recall working with Jay on the survey and making sure that we asked questions about the laws and what people's awareness of their rights and responsibilities under the Federal EEO laws. And my understanding is that in the survey you actually asked those questions and that we were pleasantly surprised that more people seemed to know about their rights and responsibilities under federal employment laws than you know we might have thought.

But, it seemed to me in looking at this instead of judging ourselves on how well people knew rights and responsibilities under federal employment laws which is part of our mission we've asked, we are judging ourselves based on the measure on whether or not people attributed their knowledge of federal employment laws to EEOC. And my concern there again is setting ourselves up for failure because we have an effect on people's knowledge on federal equal employment opportunity laws in lots of ways people have no idea.

You know, we have the Office of Legal Counsel who's constantly, you know issuing guidance and fact sheets and those go to people and they're read on HR sites and they're talked about in the office, and people don't realize that that's us at work. We also have our lawsuits and someone will read someone is sued and they don't realize that we've been involved or we've filed an amicus brief. Or you know, the myriad of ways that we try to get out there, set policy, and let people know about their rights and responsibilities of the laws.

So, if we're going to measure us on their rights and responsibilities of the law why are we tying it back to us when -- I mean sometimes I know something but I don't know how I know it.

MS. FLIPPEN: The strategic plan has a certain framework and we have two long term measures. Long term measure one and long term measure two. Long term performance measure two has to do with public confidence and under that there are a number of annual measures.

The structure of our strategic plan is that those annual measures contribute to long term measure two which is confidence and under GPRA which is actually measured is what the agency does and that's why we had a specific question in the survey that addressed individual rights and responsibilities with respect to EEOC because it contributes to the public's confidence in EEOC's enforcement program. That's the way it's structured. That's why it's structured that way.

VICE CHAIR SILVERMAN: But it's written in the plan that we're voting on right here, it doesn't say EEOC it says at least 49 percent of individuals demonstrated an awareness of their equal employment rights and responsibilities by fiscal year 2012.

MS. FLIPPEN: But again as I said, long term measure one is the percent of the public's confidence in EEOC's, enforcement of Federal equal employment laws. Under that are the annual measures. Annual measure one, two, three, four, five, six, seven measures contribute to that. That individual rights and responsibilities. So it is EEOC that we're looking at.

VICE CHAIR SILVERMAN: But we're also looking to see how well people know the laws. I mean that's what it seems like we're measuring but you're saying it has to -- they have to be able to bring it back to us.

MS. FLIPPEN: The other question that --

VICE CHAIR SILVERMAN: To fit this box.

MS. FLIPPEN: -- that the -- the methodology, the other questions that were the various scenarios, the results from the scenarios will assist the agency in identifying areas that it can perhaps make some improvements where we've shown that we are weaker in one area or not.

Or the public -- for example, one of them has to do with religious discrimination. There seems to be that the public is confused about that. About what is illegal and what isn't illegal and what is right and what is wrong. And so that might be an area that we might want to focus some outreach after we have some discussions about that.

VICE CHAIR SILVERMAN: And all I'm saying is if we did that outreach. If we, you know wrote something, if we said something in that area and it got out there it doesn't mean that the people who ultimately got the knowledge on religion would necessarily know that was because a lawsuit we filed or because of guidance we issued or because a, you know a brief we filed.

And I just think again, if we're going to measure our effectiveness we really have to measure how people view the law or understand the law. Not whether or not they can tie it back to us because I don't think that's as important as educating the public. So again, if I had been involved in this I probably would have had a concern with how we were looking at this because I think we're selling ourselves short in what we're capable of. Thank you, that's my final question.

CHAIR EARP: Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I notice as I was going through the proposed modification before us and the one in the 2006 plan, or the fiscal 2007 plan that the Chair implemented is that we've taken out as a measure organizational excellence. Is there a reason why we did that? Why would we not want our organization to be excellent?

MS. FLIPPEN: I don't think it's a matter of not wanting the organization to be excellent. I think everything the agency does points to that in the way we go about our work. The feeling within the workgroup was that we wanted to focus our measures on our enforcement program and that the other activities were more supportive.

In the past we had, I think one of our plans had 25 measures and we had lots of measures in there with respect to organizational excellence and EEOC as model workplace.

COMMISSIONER ISHIMARU: Right.

MS. FLIPPEN: And the feeling was that we should reduce the number of measures and be more focused, and wanted to focus on enforcement.

COMMISSIONER ISHIMARU: So it's your view that by deleting that as an objection, or as an objective it is no signal that we're not seeking organizational excellence --

MS. FLIPPEN: No.

COMMISSIONER ISHIMARU: -- it's just a matter of what we should be focusing on as far as our measures go?

MS. FLIPPEN: Yes.

COMMISSIONER ISHIMARU: All right. I'd like to spend a few minutes talking about the various measures. The one measure is annual, is long term and annual measure one which seems sound but it doesn't seem sound standing alone.

Without putting our work in greater context and providing guidance that quality matters this measure makes it seem that if all that matters is getting some kind or any kind of change to a companies policies, practices, or procedures, it's my understanding that this would include even communications about equal employment opportunity.

I certainly agree that it's important to have employers post messages to employees about EEO, but if that's all they're doing and we're counting this as part of our goal it certainly goes against the innovative things and the broad range in things that we say we want to happen.

How can you -- you know, I know measuring is hard and I know that trying to figure out what to measure is hard. But how to do you separate wheat from chaff here?

It's -- you know the General Counsel and I were talking earlier in the year about how just by the mere timing of things that you may have settlements early on that push your numbers up to basically cover your number for the year. Does that make people stop working, certainly in some places it might. How do you deal with that as a practical matter?

MS. FLIPPEN: This is a new measure although the Office of Field Programs has been collecting data for this particular measure. This past fiscal year for 2007 was the first year that all the program offices, OFO, OGC, and OFP had an opportunity to implement this.

And because it is new, I mean we are looking at it closely to determine whether or not it is appropriate, whether it's measuring exactly what we want it to measure. But what we were trying to do here was to identify a measure that illustrates impact. What impact do we have when we resolve a charge on workplace? That's what this is attempting to do and the feeling was that it's not just the charging party that benefits. The whole work place benefits.

COMMISSIONER ISHIMARU: Right.

MS. FLIPPEN: Short of being able to send a questionnaire to the work place to say, you know to ask questions of them, we felt this was a proxy for trying to get at that. I think that we probably need some years of experience with it and have some discussion about whether we think it's really getting at what we want.

But I think the consensus among the group was that this is a step forward, it is an improvement in trying to measure our impact and also to try to do that in a way that's not too burdensome on the field. That's been a consideration for all of the measures, for staff, you know having them to have to take time away to collect the data to support the measures. So, there is that tension when you're measuring something and you're asking people to stop and collect the data for you.

So, it's a measure that we'll be looking at to see if it's doing what we think it's doing.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I'll ask further questions on a further round.

CHAIR EARP: Commissioner Griffin.

COMMISSIONER GRIFFIN: I really -- I don't have any more questions to be honest with you. Like I said earlier, you know we could probably stay here all day and discuss this. I don't see the point, so.

CHAIR EARP: Nothing?

COMMISSIONER GRIFFIN: Nothing.

CHAIR EARP: Okay, Vice Chair?

VICE CHAIR SILVERMAN: No, I said I was done. I'm done.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Well I just promised the Chair that I'd ask one more question in the interest of comity, C-O-M-I-T-Y, not with a D-.

I wanted to raise the measure of litigation outcomes and the 90 percent outcome that is in there. Now one of the things that we have talked about is how do you have the Commission bring new cases, daring cases, interesting cases, where there is a risk of litigation failure. 90 percent strikes me as, you know I know it's been explained to me as a historical measure and we generally meet that measure. But how do you provide incentives, or how would this goal provide incentives for the litigators to take those risks that they deem necessary to bring new cases and not to worry about getting slapped back later by the goal of 90 percent which is, you know on some level near perfection if nine out of ten cases are supposed to be won.

Doesn't that point to litigators doing their, you know nine cases that may not matter that much in the scheme of things. So they can get that one case that is new, exciting that will push the law.

Is that a good way that we should use our resources or should that number, should that even be a number. Should that even be a measure? I know it's a measure that we know how to measure. We know it, we can count it, it's there. I know other agencies use it. But I must say from my time at the Department of Justice, where the success rate in both criminal prosecutions and civil matters was at the same neighborhood, things would come into us that were frankly at times over-lawyered.

That the need to try to wrap up the case before it gets started stifles the creative urges or the desires to help push the law and shape the law to where you want it to go. So, I'm not sure if this measure -- again, like the resolve everything in 180 day measure, may not have the unintended consequence of being counterproductive of making our people do things that they would rather not do in order to meet their goal.

MS. FLIPPEN: I can only say that during our discussions about this particular measure with General Counsel staff that we talked about those kinds of things. We talked about whether or not it was the wrong incentive or whether or not it would create any kind of disincentive for our litigators. And it was -- OGC felt that it did not. That it did not. That it doesn't and that they don't, that's not guidance or that's not anything that their expressing to the field that they should do this.

It's not about just getting the numbers. It isn't. So there was a lot of discussion about that. There was discussion about whether or not we should increase the goals because this is one where -- where is it -- where is that measure. Okay, 2.6 this is the measure, you know OMB wants it to go up, up, up. If you notice 2.6 doesn't go up, it's flat. So OGC was very adamant about while we might go higher there was the concern about the disincentive. And we did have discussions with OMB. But on this one it's not appropriate to go up and so that's why you see that it's level.

COMMISSIONER ISHIMARU: Right, I think this is -- my other huge concern with this on what's here is goes to the 180 day resolution issue and perhaps there's a better forum to raise that. But one of my criticisms of the work we do has always been we're driven by the numbers. We're driven by people wanting to meet whatever the expectation is laid out in front of them.

And if we're trying to resolve things in 180 days it does nothing to address the question of whether we should be resolving various cases, various charges within 180 days.

That sort of discussion needs to happen and I hope it will. Again, I don't think this has been a waste of time, but I must say that it is troubling that we have this report in front of us the way it is as a number of us have said. And I'm sure with that my light just turned red. I'll yield back.

CHAIR EARP: Thank you, what the Commissioners permission I'd like to take a ten minute break. Okay, ten minutes.

(Whereupon, off the record from 10:45 a.m. until 10:55 a.m.)

CHAIR EARP: Welcome back. Continuing with the modified strategic plan on the agenda. Is there a need for another round of questions and comments from my fellow Commissioners? Vice Chair has completed, Commissioner Griffin, Commissioner Ishimaru?

COMMISSIONER ISHIMARU: I assume that we'll be following regular order and we'll have a chance to discuss anything before vote. That after the question has been called and seconded that you'll call one more time for a round of any more comments or any discussion at that point. Right, with that being noted I don't have anything for now.

CHAIR EARP: Okay, then in that case I would like to move for a vote to approve the modified strategic plan currently before the Commission.

Do I have a second?

COMMISSIONER ISHIMARU: Second.

CHAIR EARP: Discussion?

VICE CHAIR SILVERMAN: I think it's clear from my questioning that I can't support the strategic plan in its current form in good conscience. But, I am a collaborative person. I always firmly believe that, you know when we put our heads together we can come up with something that is acceptable to all of us and I would welcome, you know the opportunity without running anything, to be involved. That was a joke Madam Chair, I know you have a sense of humor in there. To be involved in a process if we are able to work on this. So, with that, you know in that I do think it's important in the future for something, a document of this magnitude. You know, even though it's only a piece of paper but it's a guiding piece of paper that, and I know you understand that, but just to involve the Commission in future discussions earlier in the process because I think you end up with better product. Thank you.

COMMISSIONER GRIFFIN: Just to say you know I too think that going forward that it should be clear to everyone that when we are dealing with something like this that there's clearly policy and clearly needs our vote to make it happen that we are included earlier, earlier and often. Thank you.

COMMISSIONER ISHIMARU: And Madam Chair, I would say that you know in a few minutes the Commission as a body will be voting on this question and I would say that if the question is not approved, and the strategic plan is not approved, that any work coming from this strategic plan should not be implemented. That the numbers on -- that we have put forward in the draft strategic plan be not used and if there's any usage of those in any forum including at OMB it's a clear repudiation of those numbers by the Commission.

And I think any use of those numbers is inappropriate given the expressed vote of the Commission if in fact the strategic plan is not approved. And I think it does not fall within the administrative authority of the Office of the Chair to use those numbers until they are actually approved by the Commission.

One could also say that the only operative strategic plan by the Commission that is out there is the one that was approved I believe by vote in 2003 and you know I think that puts us in a more difficult position. But I think you could also make that argument as well. So, with that I look forward to the vote.

CHAIR EARP: With that I have heard my fellow Commissioners and although I don't always get my Vice Chair's jokes I would agree that there are more interests at stake than just EEOC and even the interest of individual Commissioners. It's one thing to say that we can't use any numbers that OMB have approved. But, doing that as a matter of practice is something all together different.

Nonetheless, I have heard the concerns, legitimate concerns raised by my fellow Commissioners and I would like to move that the plan be withdrawn at this point rather than a vote. If I can have a majority of the Commissioners to agree?

VICE CHAIR SILVERMAN: I agree, so moved. I don't know what the parliamentary – Reed, your expertise.

CHAIR EARP: To withdraw?

COMMISSIONER ISHIMARU: Well no the motion has been made and seconded to approve the plan. That's the question before us. The Chair has asked that the plan be withdrawn. I would object to that and if need be, I would assume under the rules that it would come up for a vote on the question to withdraw.

The question is on the floor, on your motion Madam Chair to approve the plan, which I seconded. So that is the business before the Commission.

CHAIR EARP: Okay.

COMMISSIONER ISHIMARU: And I'm happy to wait for the Parliamentarian to come up with a ruling.

PARLIAMENTARIAN: What was the motion, precisely?

CHAIR EARP: To vote on the plan, the item before us and it was seconded. And the discussion was an attempt to withdraw.

PARLIAMENTARIAN: Madam Chair, I do think you have to go ahead with the vote. It's been moved, it's been seconded. It's called for.

CHAIR EARP: Okay.

COMMISSIONER ISHIMARU: Point of order Madam Chair. It's my understanding that you made a subsequent subsidiary motion that the Vice Chair seconded to withdraw. So I assume that that motion now is in order that we vote on that and then we would vote on the primary motion to vote on the adoption of the strategic plan.

PARLIAMENTARIAN: I'm not sure that's seconded. I'm not sure --

VICE CHAIR SILVERMAN: I wasn't allowed to do it.

CHAIR EARP: It's not effective, so --

COMMISSIONER ISHIMARU: Well it was made and seconded. So, I --

PARLIAMENTARIAN: Commissioner, Commissioner, I'm not really sure that's accurate. I think there was an attempt to make it, I don't think it was made. And the only motion that was properly made and seconded was the one for the vote. The second one there was obvious confusion about whether that was a motion and it was not.

COMMISSIONER ISHIMARU: So that's the ruling of the Parliamentarian?

PARLIAMENTARIAN: Yes.

COMMISSIONER ISHIMARU: Based on what section of the rules?

PARLIAMENTARIAN: I can confirm that later.

COMMISSIONER ISHIMARU: No, could you do it before we proceed.

PARLIAMENTARIAN: I don't know that I'm required to do that, Commissioner.

COMMISSIONER ISHIMARU: Well, Madam Chair, you know if the Parliamentarian is unable to point to the section of the rules that he's relying on I'm not sure how we can go forward.

CHAIR EARP: Commissioner -- you raised --

PARLIAMENTARIAN: Well, I guess the point would be -- you point to the section that you think we're breaching.

COMMISSIONER ISHIMARU: I'm not the Parliamentarian.

PARLIAMENTARIAN: Exactly.

CHAIR EARP: Commissioner Ishimaru, you indicated that the motion before us is a vote on the modified strategic plan. I attempted to withdraw, the Vice Chair attempted to second that --

COMMISSIONER ISHIMARU: You made a motion.

CHAIR EARP: -- it was ineffective.

COMMISSIONER ISHIMARU: You made a motion to withdraw that was seconded.

CHAIR EARP: It was ineffective.

COMMISSIONER ISHIMARU: Why?

CHAIR EARP: Because you noted that the only item to be voted on before us is --

COMMISSIONER ISHIMARU: No, no, no --

CHAIR EARP: -- my motion to vote and --

COMMISSIONER ISHIMARU: -- you can move to withdraw that would then supersede the original motion that you made to approve it.

CHAIR EARP: You objected to that.

COMMISSIONER ISHIMARU: No, I objected to withdrawing it. But you have made a motion that has been seconded that's a proper subsidiary motion that needs to be voted on.

CHAIR EARP: What is it that you want to happen Commissioner Ishimaru?

COMMISSIONER ISHIMARU: It's my reading of the rules, although obviously not the Parliamentarian's that we would vote first on the question of whether we withdraw the motion and then we vote on the underlying question of whether we should approve it or not.

CHAIR EARP: If the vote were to pass to withdraw what would be underlying?

COMMISSIONER ISHIMARU: That would supersede the previous motion. But, Madam Chair, in the interest of time I realize that if we voted on whether to -- on the question raised by the Parliamentarian it would result at best in being a tie vote. So I would lose the point of order.

So, I will yield back to you if you want to withdraw your motion or lack of motion. Happy to do that and then we could vote on the underlying question that's still on the table.

CHAIR EARP: I think I have to comply with the Parliamentarian which basically says that the second motion and attempt at second were ineffective and that the motion before us is to vote on the plan.

PARLIAMENTARIAN: We can clarify, okay.

CHAIR EARP: Okay.

PARLIAMENTARIAN: You essentially need unanimous consent to withdraw the motion. You don't have it. Commissioner Ishimaru said as you made the motion he would object to it. And so you don't have unanimous consent to withdraw it.

CHAIR EARP: Okay.

PARLIAMENTARIAN: So that puts you back where we started.

COMMISSIONER ISHIMARU: Wait a minute, wait a minute. So, if there was not unanimous consent, but if there was a majority of the body that wanted to withdraw it, it could not be withdrawn?

PARLIAMENTARIAN: Because it was already put, right that motion to vote.

COMMISSIONER ISHIMARU: Right.

PARLIAMENTARIAN: Then there is a motion to withdraw the motion to vote.

COMMISSIONER ISHIMARU: Right.

PARLIAMENTARIAN: But there's not unanimous consent to withdraw the motion to vote. So the motion to vote has to go forward and vote.

COMMISSIONER ISHIMARU: Even if there was a majority who wanted to withdraw it?

PARLIAMENTARIAN: Well then there wouldn't be unanimous consent. That's what I mean by unanimous. I mean --

COMMISSIONER ISHIMARU: No, no I realize there wouldn't be unanimous consent, but if there was a majority of the body that wanted to withdraw the original motion and wanted to support the Chair's motion you're saying that under the rules you would need unanimous consent and a majority would not be operative in this case?

PARLIAMENTARIAN: I can check one more time. Then another option would just be to abstain and then you would have --

COMMISSIONER ISHIMARU: To abstain from a withdrawal. But that would only be a silence vote.

CHAIR EARP: Hold on, to the other staff who are there, we're going to get to you before the day is over, I promise.

PARLIAMENTARIAN: Okay.

CHAIR EARP: What say you?

PARLIAMENTARIAN: The way I heard your first request for withdrawing was one for unanimous consent. I know there was something that sounded like for some people a second. But I didn't interpret it that way and you didn't have unanimous consent and that was obvious. However, you can now do a proper motion to withdraw the vote and get a second and then you can vote on it. On the motion to withdraw.

COMMISSIONER ISHIMARU: Or not right, she could go either way?

PARLIAMENTARIAN: Right, right she did not --

CHAIR EARP: Are you going to object?

COMMISSIONER ISHIMARU: Well to withdraw it I hopefully -- we could vote on to withdraw it. That's what he's saying.

PARLIAMENTARIAN: You could have asked for unanimous, you asked for unanimous consent and you didn't get it.

COMMISSIONER ISHIMARU: Well let --

PARLIAMENTARIAN: You can move --

COMMISSIONER ISHIMARU: -- record show that she did not ask for unanimous consent.

PARLIAMENTARIAN: I'm sorry. I'm interpreting what you requested unanimous consent, a request for unanimous consent.

CHAIR EARP: Okay, having heard my fellow Commissioners raise legitimate concerns about the imperfect coordination that we did and the Commissioners rightful desire to be included in the strategic plan, I would move that the strategic plan currently before us be withdrawn.

Is there a second to that motion?

VICE CHAIR SILVERMAN: Second.

CHAIR EARP: Discussion?

COMMISSIONER GRIFFIN: What does it mean to be withdrawn? So, if you withdraw this is there a plan to do something or, I mean can we discuss that or -- because that would certainly effect my vote.

COMMISSIONER ISHIMARU: And does it also mean that the goals and the numbers that have been proffered to OMB that has been included in our performance accountability report for 2007 would those still be used.

And my guess would be that the numbers that we by vote on the strategic plan itself, if the numbers would -- if the vote would be to note accept this strategic plan it sounds like a back door way to try to continue to use the numbers, for the Chair to continue to use this which I think as a policy matter the Commission may in fact vote down.

So withdrawing and voting the plan down would have a similar effect that the strategic plan would not go forward. Withdrawing it would not allow the Commission as a body to express it's will that the plan not go forward as is and the status quo would remain in place.

CHAIR EARP: I know that there are some conspiracy theorists or --

COMMISSIONER ISHIMARU: Madam Chair you just --

CHAIR EARP: -- and nefarious motives. But the attempt to withdraw has one purpose and one purpose only and that is to try to address the legitimate concerns that you've raised.

COMMISSIONER ISHIMARU: Madam Chair you just said on the record that you would not honor the vote of the Commission not to use these figures that we may in fact repudiate.

CHAIR EARP: I did not say that, but I said that there are other interests in the goals and the measures that we put in place.

COMMISSIONER ISHIMARU: So would you not, would you not --

CHAIR EARP: I never said that I wouldn't honor them.

COMMISSIONER ISHIMARU: -- would you not then use the numbers involved, the goals involved, or will you in fact use them. It's either yes or no.

CHAIR EARP: I think I don't know at this point. It's clear that we've not closed the loop with the Commissioners. Withdrawing the plan is an opportunity to do that. To go back and to listen to your concerns and to attempt to mediate between the Commissioners concerns and OMB's expectation.

Beyond that, sitting here today, I don't think that I can give a thoughtful considered response to what we would do. You want to be included, rightly so. Commissioners should be. The attempt to withdraw allows us to do that.

COMMISSIONER ISHIMARU: It seems to me that you're trying to have it both ways. That you have had this under your control for the last two years. There was no consultation, which I assume was on your direction not to consult with us. And now the plan is about to go down.

CHAIR EARP: Deidre, did anyone ever tell you not to consult with the Commissioners?

MS. FLIPPEN: No, no one ever said that.

COMMISSIONER ISHIMARU: Did they tell you to consult with the Commissioners. Was there any effort from the Office of the Chair including the Chief Operating Officer to include input from the Commissioners as much as you were getting from the Executive Leadership Team?

MS. FLIPPEN: As I mentioned earlier, what I was focusing on was trying to get all the numbers in the document before it came before you thinking that was the best route. Not the best route.

CHAIR EARP: You know --

MS. FLIPPEN: So that really was the focus and it was also getting consensus among the Office Directors. So, you know in great part it was getting them to agree to what is reasonable and then putting that forth to you and also trying to consult with OMB to see if we're all going in the right direction because what is ambitious, what is a stretch, and what is reasonable in terms of what Program Offices can accomplish.

So we were trying to do all of that first and then put it before you and --

COMMISSIONER GRIFFIN: It's problematic in that, you know OMB is getting to decide all of this and then you know we are asked to ratify it. I mean it just doesn't even make sense. If we were included in the beginning we would all be presenting something to OMB that we all agreed with. And that --

COMMISSIONER ISHIMARU: It actually goes -- it actually goes beyond that because in the 2007 PAR it talks about these interim measures that have been taken without any vote of the Commission to institute similar goals here and when I saw that it raised questions in my mind. When did we ever consider that we should be going forward this way and we obviously had not and we're trying to do that today.

COMMISSIONER GRIFFIN: And you know frankly a vote no does exactly the same thing. A vote no says no, we don't agree with this plan. It says it loudly and clearly and that doesn't preclude us from going forward and doing what you suggest.

CHAIR EARP: Any further discussion on the motion to withdraw.

(No response.)

CHAIR EARP: May I have a --

COMMISSIONER ISHIMARU: Could I just get clarification. We're voting on this motion to withdraw and then after that we would vote on the underlying question on the motion to approve. Assuming that the motion to withdraw is not adopted?

CHAIR EARP: Yes.

COMMISSIONER ISHIMARU: All right.

CHAIR EARP: Yes, any further discussion on the motion to withdraw?

(No response.)

CHAIR EARP: Hearing none I will call for the vote. All in favor signify by saying aye.

VICE CHAIR SILVERMAN: Aye.

CHAIR EARP: Aye.

CHAIR EARP: Opposed?

COMMISSIONER ISHIMARU: No.

COMMISSIONER GRIFFIN: NO.

CHAIR EARP: The motion fails on two for, two against. The next motion before us is an up or down vote on the strategic plan.

May I have -- I move that we vote--

COMMISSIONER ISHIMARU: It's already been moved Madam Chair and I seconded your motion.

CHAIR EARP: Okay, that's right you seconded. Any discussion?

(No response.)

CHAIR EARP: All in favor of the strategic, modified strategic plan before us please signify by saying aye.

CHAIR EARP: Aye.

CHAIR EARP: Opposed?

COMMISSIONER ISHIMARU: No.

COMMISSIONER GRIFFIN: NO.

VICE CHAIR SILVERMAN: No.

CHAIR EARP: The opposed vote no. The motion fails with three no votes, one yes vote.

Thank you, thank you Deidre. Thank you Jay. Thank you to your team that worked on it.

Next we will hear an update on the Commission's Systemic Initiative. I will turn this portion of the meeting over to the Vice Chair who chaired the Task Force which promoted several enhancements to the Commission Systemic Program.

On behalf of a very, very grateful agency I want to thank the Vice Chair for her leadership and thank her Chief of Staff Mindy Weinstein for coordination of implementation of the recommendations. Vice Chair Silverman.

VICE CHAIR SILVERMAN: Thank you. Good morning or afternoon everyone. I want to thank you Madam Chair for highlighting the Systemic program at today's meeting. It's unfortunate that it had to follow a more negative subject matter because this is a program that I think all of us up here are so enthusiastic about.

And from what I'm hearing, and I'm off the script here, many people in the Commission even people that were cynical at the beginning are very enthusiastic about it. So, you know I feel really good about that and I also want to thank you for making this possible Madam Chair, for the support you've given to the program as it has grown and developed during the time that you've been serving as Chair.

And it's now been a little bit more than two years since the Commission unanimously -- and that's an unusual thing these days -- approved the recommendations of the Systemic Task Force and agreed to launch a new Systemic program at the EEOC.

I was so proud to have the opportunity to lead the Systemic Task Force and to work and get to know so many talented committed EEOC staff members.

Our mission was to develop a program that would allow the Commission to more effectively identify, investigate, and litigate cases of systemic discrimination.

After extensive research and many interviews the Task Force submitted a consensus report with numerous recommendations aimed at supporting a new Systemic program at the EEOC. It is available on our website.

We emphasize that in order to create a successful nationwide Systemic program the Commission needed to be proactive, to improve coordination between offices and to develop and enhance staff expertise, to improve its technological tools, to address staffing issues and to fundamentally decide to make Systemic work a priority here at the EEOC.

On April 4, 2006 the Commission approved the motion and the Chair issued directives implementing the Task Force's recommendations.

And then came the hard part, turning the recommendations into reality. And we're here today to talk about how the agency is doing so far. You know in some ways, as I alluded to earlier, it's really too early to know for sure.

By necessity the agency spent most of the first year and beyond after the Commission vote getting the building blocks in place for the new program. Starting to build the infrastructures so that we could actually do this work nationwide.

But I do think now is a good time to pause and take a look to see where we are in the implementation of the new Systemic program and I really want to thank our distinguished panel of experts who are here to share their thoughts with us this morning. We are just so pleased to have these people. First of all we have our first speaker is going to be Kathi Kores, Director of EEOC's Memphis District Office and Kathi is going to focus on the implementation of the Systemic recommendations within the EEOC's investigations program.

Our second speaker will be Ron Edwards. Ron is the Director of the Program Research and Surveys Division in the Office of Research Information and Planning, known as ORIP. Ron is going to speak about ORIP's work in support of the Systemic program, particularly their assistance to investigators in obtaining and analyzing data.

Last but never least we're going to hear from Elizabeth Grossman, the Regional Attorney in our New York Office. Elizabeth is going to be wearing at least two hats today. She's first going to speak about EEOC's Systemic litigation program and then in her role as the Head of the Committee of Advisors for the Systemic Enforcement known as CASE she will speak about CASE's responsibilities and activities thus far.

Again, I really want to thank all of our speakers for traveling to be here with us today and for sharing your perspectives with us and for doing it all on very short notice.

Kathi, let's begin with you.

MS. KORES: Thank you, good morning Chair Earp, Vice Chair Silverman, Commissioner Ishimaru, Commissioner Griffin. I am pleased to be here to give an update of the Systemic program on behalf of the Office of Fields Program.

I want to start with my conclusion which is that the EEOC has made substantial progress towards a revitalized and dynamic Systemic program following the Systemic Initiative adopted by the Commission in April 2006.

The results support this conclusion. There is a striking increase in the number of Commissioner charges. As of May 31, 2008 45 Commissioner charges were under investigation. Only 15 Commissioner charges were in investigation as of March 31, 2006.

In fiscal year 2007, 24 Commissioner charges were developed and approved. Only 11 were signed in fiscal year 2006. In the first half of fiscal year 2008, 12 new Commissioner charges had been signed.

The number of Systemic charges has also increased dramatically. From just over 200 Systemic cases in investigation prior to March 31, 2006 to over 1,000 as of May 31, 2008.

Over 550 Systemic charges have been resolved since the adoption of the Systemic Initiative. Approximately 400 merit closures in which nearly $10,000,000 in monetary benefits has been obtained and approximately 1,200 persons were benefited through the administrative process.

We have had Systemic cases under Title VII, under the ADEA, the EPA, and the ADA, and charges that have been developed under the E-RACE initiative. They include a broad set of bases and issues and involve a wide variety of industries.

All districts are involved in partnership arrangements with headquarters or other field offices. Close working relationships have developed with ORIP, OFP, and OGC and other field offices in the investigation of charges and in providing training to our staff.

These results were made possible by intense implementation efforts which began immediately after the Systemic Initiative was adopted. In June 2006, OGC and OFP issued six memoranda to the field on such matters as exploring class implications of charges at intake, enforcement and legal staff working closely to identify and develop Systemic cases, and reiterating the Commission's policy that class and Systemic charges are not eligible for mediation.

In June 2006, the Offices of General Counsel, Field Programs, and Research and Information Planning each designated staff as points of contact to assist the field on implementing the Systemic Initiative. Also in June 2006, each District Office designated a Systemic Coordinator to facilitate the development of Systemic work.

In July 2006, OGC and OFP provided field staff with detailed instructions on preparing Systemic Plans and initiating and investigating Commissioner Charges and Directed Investigations. In July 2006, OGC and OFP provided field staff with detailed instructions on preparing Systemic plans and initiating and investigating Commissioner charges and directed investigations.

In August 2006, OGC, OFP, and ORIP conducted a training conference on developing Systemic cases at an EEOC Headquarters. 16 Systemic coordinators and their alternates from each district and the Washington Field Office attended.

In August of 2007, advance Systemic training was held with specialized sessions for investigators and attorneys. It was designed as a hands-on training for front line staff who actually do the Systemic work.

By the end of September 2006, each district had submitted a draft Systemic plan through consultation with OFP and OGC. Those plans were refined, approved and in place by the end of December 2006.

The districts report quarterly to OFP and OGC on their Systemic activity and on April 2008 they submitted comprehensive Systemic activity reports describing all of their district activity under their Systemic plan.

OIT has improved IMS to allow uses access to EEO-1 data. Another new IMS tool which has allowed for better coordination of Systemic activity is the Systemic utility. It allows Systemic coordinators to automatically receive daily updates on all the new charges filed against a particular employer involving certain bases and issues.

In September 2007, OFP distributed outreach and educational materials to the field which carried a slogan "EEOC Systemic Program Transforming Work Places, Changing Lives."

Finally I'd like to mention that five individuals have been selected for the position of GS-13 Lead Systemic Investigator. They will assist in Systemic work in their own offices and will serve as coordinators, leaders and consultants for Systemic work in other offices as well. Thank you for the opportunity to share this information with you.

CHAIR EARP: Ron.

MR. EDWARDS: Good morning Madam Chair, Vice Chair Silverman, and Commissioners. May name is Ron Edwards and I'm Director of the Program Research and Surveys Division in the Office of Research, Information and Planning, known as ORIP.

I'm here this morning to talk about steps that ORIP has taken to implement the Systemic Task Force recommendations. I hope to focus on four main areas. First, assistance to the field in identifying possible systemic discrimination in their districts. Two, support of the field during investigations such as assistance in drafting data requests, constructing analytic databases and developing statistical evidence. Three, the training of field staff related to Systemic case development and analysis and finally four, the results of our experiment of hiring and placement of ORIP staff in a district office.

ORIP has been extensively involved in assisting staff in identifying possible systemic discrimination in the districts since the issuance of the Systemic Task Force report.

At the first Systemic conference we met collectively and individually with staff from district offices to provide background information about employers and industries within their jurisdictions. We followed-up on this effort by providing more detailed analysis for offices developing their Systemic plans.

Since then our efforts in this area have focused on conducting analysis for the development of Commissioner charges or the possible expansion of individual charges to address class issues.

Nearly half of our division's professional staff is devoted to supporting the field during Systemic investigations. We assist, as I mentioned earlier, drafting requests for information, constructing analytic databases and developing statistical evidence.

While this has always been a major activity in our office the demand for our services has escalated dramatically since the Systemic Task Force report was issued. Currently we are actively providing investigative support to a broad range of field offices covering numerous issues, basis, and industries. In fiscal year 2005, the year before the Systemic Task Force report was issued about 2,100 hours of ORIP staff time or PRSD staff time were devoted to supporting Systemic investigations. In fiscal year 2007, about 3,700 hours were devoted to this task.

In 2005, ORIP provided substantive support to about 24 investigations. In 2007, we provided support to about 40 investigations. By April of this fiscal year we had already provided support for 40 investigations. So obviously our work was increasing there.

In fact, we provided support to offices in all but one of our district offices this fiscal year and last fiscal year we provided support to that office. So we've covered all of our district offices that way.

ORIP has also provided additional support to field staff by developing and delivering training, including the two Systemic conferences mentioned earlier and we've also worked with -- and in those Systemic conferences we worked with Office of Field Programs to set the agenda. We recruited trainers and of course delivered training.

ORIP has delivered training to nine offices in the last two fiscal years since the issuance of the Systemic Task Force report and we're scheduled to provide training for three more offices in the next few weeks.

In this training we educate enforcement staff about the assistance that ORIP provides in Systemic investigations as well as the survey data available to perform preliminary comparative analysis of a respondent's work force. We explain the processes for obtaining automated information from employers and we provide training on the use of some of the analytic tools that are available to investigators such as the EEO-1 desktop and the EEOSTAT.

And also in this training it's very useful to provide or explain the services that we provide simply because sometimes that's daunting to investigators. The class investigation can be intimidating and by explaining people are here to help them I think that helps them a great deal.

Finally, I'd like to discuss the new ORIP staff member working in the Atlanta District Office. The Systemic Task Force report recommended the hiring of additional ORIP staff, labor economists, social scientists, industrial psychologists.

The Task Force also recommended the placement of some of this staff in field offices. We were able to implement this approach with the hiring of a labor economist and placing him in the Atlanta district office. Thus far he has focused the majority of his time in provided training and analytic support to our southern offices and I think he's been very well received there. It's been a tremendous success and we look forward to placing additional new ORIP staff in these offices in the future.

CHAIR EARP: Elizabeth.

MS. GROSSMAN: Good morning, if it is still morning, Chair Earp, Vice Chair Silverman, Commission Ishimaru, and Commissioner Griffin. Thanks for allowing us this opportunity to comment on the Systemic Initiative both on behalf of the Office of General Counsel and on behalf of the Committee of Advisors, or Systemic Enforcement.

On behalf of OGC, it's clear that our litigation is focusing more on systemic and class cases. Since the inception of the Systemic Initiative we filed -- no, I'm sorry. In fiscal year 2007, we filed 14 law suits with 20 or more identified victims compared to 11 such law suits in the previous year.

In fiscal year 2007, we resolved 20 cases with at least 20 class members compared to only 7 such cases in the previous fiscal year. And last year we resolved four law suits with an estimated class size of more than 100 individuals compared to the previous year when there were zero for classes that big.

So Systemic cases have been filed across the country under every statute, involving issues related to the complementary initiatives, the Youth@Work Initiative, the E-RACE Initiative, as well as the Caregiver Guidance.

So needless to say under the Systemic Initiative we've been focusing more of our resources and attention on identifying, investigating, and litigating cases that have a widespread impact on eradicating discrimination. They are of course significantly more complex cases that require much greater participation on behalf of skilled and experienced attorneys who engage in, you know extremely sophisticated and often very cutting edge and novel legal analysis.

Overall as expected attorneys are working very well with investigators in a more intense way due to the nature of Systemic cases and much of this is from the beginning of the investigation. We're redirecting our existing resources and making more efficient use of our legal staff through partnerships among district offices and collaborative work on the larger cases.

Chicago Regional Attorney John Hendrickson and I are now working on these issues as Senior Litigation Project Managers in the Senior Executive Service, including staffing cases pursuant to a national law firm model from their initial filing.

Our newly promoted Systemic paralegals located in Memphis, Minneapolis, and Phoenix are also playing an important role in sharing resources among districts. As you are well aware, Systemic cases are more expensive and more often require the hiring of expert witnesses and we appreciate the Commissions support in providing us these necessary resources.

One of the key changes OGC has made to facilitate litigation of Systemic cases is in the area of technology. We are investigating -- I'm sorry, we are investing in the technology tools that are critical to a vigorous nationwide litigation practice.

We're providing training to our staff and working to better equip the lawyers and the investigators to manage and analyze the very large amounts of case related data in support of the Systemic investigations and litigation.

And consistent with the Systemic Task Force's recommendations we're seeking to upgrade our computer hardware and software to assist us in these efforts. The General Counsel has designated a technology liaison from each district and communication among these individuals, which has included a monthly conference call at times attended by OIT, has greatly helped coordination among offices in the area of technology.

In regard to other training, last week we began our nationwide training program for enforcement and legal staff on damages and assessment which is geared towards Systemic cases and was in New York last week. It was extremely well received.

And as part of that training we're bringing in both an outside mediator and outside defense counsel to share their perspective on working with us in regard to settlement and negotiation. And in July OGC will host an E-RACE Systemic training for lawyers.

For fiscal year 2009, we project a decrease in law suit filings compared to previous years. This is due to a readjustment of our docket to include the more large class cases. It's clear that our efforts to refocus on the eradication of systemic discrimination will focus on litigating fewer, small, or individual cases. And we understand that shifting the balance presents a change and we believe this will increase the benefit to the public in that our cases will have a much broader reach.

Our Systemic work to date has shown that the larger cases use the agencies limited resources in the most efficient and effective manner. But individual cases, particularly those under the ADA will remain an important component of our docket and will continue to be strategically selected to have impact beyond their pleadings.

We will continue to pursue the development, settlement and the litigation of Systemic cases during the rest of this fiscal year and beyond. We are working hard to ensure that in the words of the Systemic Task Force report combating Systemic discrimination will be a top priority at EEOC and an intrinsic ongoing part of the agencies daily work.

The primary challenge of course will be one of resources -- that we be given adequate staff, technology, and expert and other support necessary to make the greater impact that we know we can achieve.

Now I'll discuss the work of the Committee of Advisors for Systemic Enforcement referred to as CASE, which is a nine member committee composed of six Field and three Headquarters staff from OGC, OFP, and ORIP including my two fellow panelists.

CASE was established by the Commission pursuant to the approval of the Systemic Task Force recommendation to create an advisory committee. As adopted by the Commission the Task Force proposal stated that CASE should assess the agencies overall effectiveness in combating Systemic discrimination and serve as a resource on Systemic matters. Since we were appointed in January 2008 CASE has been working to assess the impact of the Systemic Initiative and in that context has reviewed Systemic plans, Systemic reports, and in a confidential manner conducted individual interviews of numerous staff members throughout the field and from every district.

As the Chair of CASE I'm pleased to report our conclusion that this Systemic Initiative is working. Every district is now working on Systemic cases.

Staff members across the country have changed their thinking and are identifying Systemic cases at a far earlier time period than previously. Less experienced offices will continue to increase the size of their Systemic dockets as they develop experience and skill working on these cases. Staff members across the country are sharing information more freely and are entering into more productive partnerships.

The designation of a Systemic coordinator in every office has been extremely helpful and these internal experts are sharing their knowledge well beyond their offices.

As was referred to earlier IMS has been improved to allow for easier coordination between offices and we're trying to focus the efforts on training the staff to use the technology that we currently have.

CASE numbers are in the process of preparing a confidential report which we hope to get you at or close to the end of this month which will cover our recommendations on a variety of relevant matters.

So, thank you very much for allowing me to present on this important issue.

VICE CHAIR SILVERMAN: I just also wanted to announce and thank Calvin Loving from OIT and Jeff Bannon and Jerry Scanlon from OGC who are also here today in case we have questions from up here on technology.

Not that you all can't answer them, but you know we have additional expertise. And I will, defer to my colleagues with questions.

CHAIR EARP: Thank you so much. It's wonderful to have some good news for a change. We'll do five minute rounds, questions, comments and I defer back to you Madam Vice Chair.

VICE CHAIR SILVERMAN: And I'm going to defer to Stuart.

COMMISSIONER ISHIMARU: Well thank you, it's delightful to have you here and unlike the Vice Chair I frankly don't mind this coming after the strategic plan discussion because this quite frankly is some of the most important work we do.

Like many of you I've been doing civil rights work for a long time and it's my view that the role of the Federal Enforcement Agency is to do Systemic work in large part. And as we acknowledged the Systemic work at the Commission was not working the way it should be and I'm delighted to see after a period of time that we are up and running and we've gotten off to a good start.

And I think in getting ready for this meeting and re-reading the Vice Chair's report, it really is a testament, it's a real legacy that you leave having worked this through, being collaborative, trying to figure out a way that we could make a formerly dysfunctional system work and work well.

So I salute you Leslie. It's really a grand piece of work and I'm delighted to hear about the progress that's been made. When I've talked to people around the country people are interested in our Systemic work from all sides of the table and they understand that it's getting started. They understand, they've seen the results that have come out of some pieces of litigation, that frankly I think is remarkable given how some of this had to start up.

I think the blending of the Systemic Initiative with the Chair's E-RACE initiative has also been fruitful. The recent settlement at construction site in Bethlehem, Pennsylvania for racial harassment, a 1.65 million dollar settlement and the settlement in the Walgreens case on behalf of a group of African-Americans on a nationwide basis that settled earlier this year a testament to how these two initiatives can be worked together, as well as our other initiatives as well. But, I think it's a fine testament that these things have gotten done in a very timely manner.

I'm also pleased that CASE was established and I'm delighted of the membership of it. We had talked earlier about the expertise that lies within the Commission and that we should pull our experts out. People who have done this before and who could train others to do it. And I'm delighted that CASE is up and running. I look forward to receiving the report of CASE and I look forward to fruitful efforts ahead.

And I'm also very pleased at how the Commission as a whole, the staff as a whole has really embraced Systemic as a top priority. It's my understanding that when the Chair pulled together top managers of the Commission at various meetings recently that the top managers, the executive leadership saw this as the top priority of the Commission.

But it's not just there, it's throughout the Commission and people have seen this as something that they can be very, very proud of and I think the excitement around the country for doing Systemic work is palpable.

But, we are at the beginning stages of the process and I'm glad the progress has been made and I expect more progress to be made in the future. There is talk of hiring that's been done.

I know that in the report there was talk of more hiring being done and I would hope and would expect that that continues in the future. I think when we hire new people or when we promote from within those slots that were vacated as people get promoted get filled. I hope that we're able to expand our presence and expand the personnel of people who are doing both Systemic work and other work. It's good that we're cross-training people. I think that's important because we have all these things that we need to do and to juggle is how do we do it.

So, I think this is a wonderful start and I expect more good things to happen in the future and I hope again we can get an update in the not too distant future on the other good work that the Systemic Program is doing.

I want to thank you Madam Chair for your leadership because it really takes a commitment to make this happen and to pound it in both public and private forums that this is a priority and that we will go forward on it and I think your leadership should be commended for that.

And I have a few questions but I'll wait for the next round. Thank you Madam Chair.

COMMISSIONER GRIFFIN: I too -- when you go last you really, you end up repeating, sometimes you just want to say ditto.

But I really want to thank the Chair for her leadership on this and also the Vice Chair and probably mostly to Mindy Weinstein for all of the hard work they've done. Not only creating this, because they didn't just create it. And you know set it off as I think some of us tend to do sometimes.

You know, they stayed with it and they've really had a hand in helping this whole initiative really become something that is strategic and has really led us in a new and exciting positive direction which is transforming the American work place.

And I want to commend, you know Ron's office, the General Counsels Office, and all the folks out in the field under that office as well as the enforcement folks, ORIP, OIT, all of the people that have had a hand in really making this happen because it isn't just about going out and doing some bigger cases. It was about really coordinating all these different systems and thinking intelligently about how you make that happen from what software do you use to, you know how do we get laptops out to everybody and how do we do more work out of ORIP supporting this initiative.

So it's really been stunning, to use one of Stuart's words. And stunning when we look at the cases that we're seeing. It's really been amazing to look at what we've been able to do and what we're able to accomplish with the limited resources that we have.

And this should be a clear indication to everybody and especially OMB that we are being efficient and that we are being effective with the limited resources.

I really look forward to the time when we can actually increase the resources to our Systemic staff and you know, and truly, truly transform the American work force because with more resources and more people doing this work I think we'll be able to do a lot more.

I'd like to say we'll eradicate discrimination in the American workplace but I won't go that far. We'll get closer to doing that. How's that.

I just had a couple of questions. I was listening on the way in to NPR this morning and reporter Joe Shapiro was actually reporting on the wonderful bipartisan efforts on the Hill today with the ADA Restoration Act being marked-up by two House Committees.

And he talked actually about it being fast tracked and that he actually reported that there was every indication that the President wanted to sign this on the anniversary of the ADA.

And as I sit here thinking about that wonderful report and the remarks about individual ADA cases versus Systemic, I was actually trying to think would that, would the passage of that create more of a Systemic opportunity within the ADA versus what's traditionally been mostly individual cases.

Any thoughts on that at all or is that too premature?

MS. GROSSMAN: You're looking at me? I agree with you. I think it will create more opportunities for Systemic work. And even in some of the policy cases that we're currently litigating we may only get a very small percentage of people covered even though there are nationwide policy violations.

And so, my understanding of the ADA Restoration Act is that it would change the definition of coverage and so we might be bringing the same kinds of cases but there would be many, many more victims covered by those cases.

COMMISSIONER GRIFFIN: Yes, my understanding is that the piece regarding mitigating measures that will extend more coverage to people with diabetes, epilepsy, those types of disabilities that we've now seen have been traditionally, you know locked out of coverage will be back in.

So, that will be pretty exciting and I know that we'll have a lot of work to do with regard to regs and that type of stuff. But, I'm sure we're all looking forward to that.

What's my time there -- you said that we'd be receiving the CASE report soon and I too am looking forward to that and the recommendations that you make. Can you talk a little bit, and any of you can talk about this, a little bit more about how the relationships between the offices and the expertise is working because you know, as we noted and as the initiative noted in the beginning there was great expertise that already existed, but it was only working within a particular region.

Can you talk a little bit more about that?

MS. KORES: I mentioned in my remarks that there are partnerships between the offices, the field offices, and between the field offices and Headquarters and those are, I think they are different than the kinds of partnerships which may have existed prior to the Systemic Initiative because their being formed against the background of the Systemic Initiative and we're learning more about the varying experience levels and expertise in different offices and every office wants to contribute to the accomplishment of the Systemic Initiative.

So, they're finding out, and a lot of that comes from sort of the facilitator role of OFP. You know OFP knows which offices have individuals who have worked in a particular area. That might be helpful to another office that is just starting out in that area.

So, in order -- because there is -- I think there is a culture change. There's certainly enthusiasm in the field about, you know doing something in your office and utilizing whatever resources you can find around the Commission experience and knowledge and so forth. That the partnerships are different and they are increasing in an effective way.

COMMISSIONER GRIFFIN: Right.

MS. GROSSMAN: And just to add to that. There's a variety of partnerships. Some offices are partnering generally and waiting for cases to come along. Some offices are partnering on cases that they want to work together on. Some offices are partnering because one has a greater work load and one has a lesser work load, and so there's such a wide variety of reasons that offices are partnering and I think people are looking outside the box for those reasons.

COMMISSIONER GRIFFIN: It's exciting because you really see this movement towards this national law firm model and it's really, I think as Stuart said something that, you know will be -- you know, will live on and will be, you know probably Commissioner Silverman's legacy here so.

CHAIR EARP: I have nothing but praises to sing. No questions though.

VICE CHAIR SILVERMAN: Thank you. You know we're talking about working together as an agency and that was one of the byproducts or sort of an added goal that I think the Systemic Task Force came to. That we really wanted to see the agency to be most effective as an agency, really start working together and thinking -- the 15 districts thinking of themselves as part of a whole instead of sometimes in competition with each other, or you know what have you, and sometimes working together.

And I definitely have seen that movement. Another sort of underlying goal that we came up with during this -- what we really thought as a Task Force was that it was very important particularly in these cases for both sides of the shop, for the District Directors and the Regional Attorneys to work together on these cases. And I know that that was one of the things that we had talked about. I realize that that works better or had worked better in some offices than others.

But, I'm just wondering Kathi and Elizabeth have you noticed, have you heard -- I mean does this initiative, is that a byproduct of this initiative?

MS. KORES: I think right from the very start, from the time that we selected the people who would be the Systemic Coordinators in our offices those were decisions that were made jointly between the Directors and the Regional Attorneys and it's continued.

         

The quarterly reports that are submitted to OFP and OGC are put together by the Regional Attorney and the District Director and there really is the consultation that the Task Force report anticipated and the consultation and working together of both sides right from the start on Systemic cases.

You know, if we get to a point where we have started on the road of a Systemic investigation and we've decided, or the investigation is not supporting what we had expected at the outset, you know we -- it's always a joint decision of the Regional Attorney and the District Director that okay, we need to shut this down.

VICE CHAIR SILVERMAN: You just took away my next question.

MS. KORES: Elizabeth I'm sure has some thoughts.

MS. GROSSMAN: Yes, I think there still remains a fundamental tension between legal goals and enforcement goals and that has been bridged in some offices, in some instances. And from my perspective it seems like there is more work to do in some offices for some instances.

So, the Systemic Initiative is being handled in very different ways by different districts with different staff working on it which is I believe how you intended it to be from the Task Force report.

But, I think there is increased coordination. There's increased, you know discussion of these issues but there remains much progress to be made in some places on this issue.

VICE CHAIR SILVERMAN: Ron, you talked earlier about the number of offices that you now assist and it seems like 14 districts this year that other district last year.

My recollection is that before the Task Force you tended to work with only a few offices on a regular basis. Is that correct?

MR. EDWARDS: That's absolutely true. And there were maybe a handful of offices that we really did a lot of substantial work for and there were isolated investigations in other offices. But now we've got, I would say a viable -- providing viable support to an investigation in almost every district office now.

VICE CHAIR SILVERMAN: So we've really put your department to work. I mean you're in there doing your job not just for the few lucky people before that understood what you did, but now for the entire agency.

MR. EDWARDS: Absolutely.

VICE CHAIR SILVERMAN: Can you let us know a little bit more about, you know what it is that you do just to typically support a Systemic investigation and how the process would work. And I realize my time is low so we'll just, you know --

MR. EDWARDS: Well typically we like to get involved as early as possible in the process and we can use our survey data like our EEO-1 data to help investigators make decisions about how to pursue an investigation. Whether or not it's worthwhile to expand it or whether or not they need to keep the scope small.

And then once we, you know provide that type of support and there's a decision that yes, we want to do something on a class-wide basis we do get involved in requesting automated data which is a very technical process and we end up not only leading the investigator but also often the employer's technical representative in understanding what we need to know about their automated data and how we can best use that data and provide the least amount of burden to employers in providing it.

Once that's done, that's very complex information that we then convert to analytic databases, and then we work very closely with the investigator so that we do analysis -- and I shouldn't just say the investigator. At that point you want the attorneys involved as well in making sure that we're doing the analysis that they need to get proof that they need for their case whether or not it be resolved in an investigative process or it has to move on to a legal context. That's I think fundamental in the process that we use.

And again, training staff and understanding what our capabilities are and what types of assistance we can provide them.

VICE CHAIR SILVERMAN: So, you know our thoughts were the Task Force that we were going to really inundate you and triple your work load and it sounds like you --

(Laughter.)

VICE CHAIR SILVERMAN: I'm sure your wife isn't loving us right now. But you know, on behalf of the Commission we thank you for taking on this greater work load and I see my time's up.

MR. EDWARDS: Sure.

COMMISSIONER ISHIMARU: Thank you Madam Chair, you know one of the things that has come about in recent years along with the Systemic Task Force was efforts to try to get us more money from the Appropriations Committees and let's say, as is the case this year, that one body of Congress appropriated an additional 20 million dollars to us. And last year the Senate appropriated an additional 50 million dollars to us.

If you had money like that what would you do with it and you know frankly I don't expect an answer off the cuff, but it's something we need to think about because the one thing that I hear from talking to people as we talk about how our resources are strapped and how the agency is strapped is that people can't think beyond what they have in front of them, or they can't think beyond what they've always done or done without.

And I think there are signals that there are members of the Appropriations Committees and Chairs of the Appropriations Committees who are interested in funding the new work we do. And I guess my question to -- especially to CASE is what would you recommend that we do with a substantial increase in money that we spent on Systemic enforcement.

There are times when I look at the existing budgets and from what I can tell out of the existing budgets there are limited funds available. Although other people tell me they get what they need.

But, if you could think outside of the box and if you had multiple millions of dollars to enhance the Systemic program the question is what would you do and what would CASE do as an expert body of thinking about this? So I throw that out to you. I don't expect an answer today.

The other thing that I found intriguing and one tool that I've always found important is the use of Commissioners charges and could someone talk about how that's being used.

I've noticed that I've got more office generated Commissioners Charges coming from offices around the country and coming from offices that aren't your usual suspect offices that used to keep Ron busy, but coming from all sorts of offices of varying degrees of quality, but it sort of changed the way we thought about it.

But maybe Kathi you cold talk about the use of Commissioners Charges and how that's worked and gotten better under the Systemic program and I have one follow-up question on Commissioners Charges.

MS. KORES: Well it's certainly -- the number of Commissioners Charges as I said has increased because of the realization, the acceptance that we want to do this kind of work now. So the information that -- well you know from the proposals that come to you what you think of as a quality of them and the quality of the information.

I'm hesitating now because I'm a little concerned -- I don't want to talk about specific Charges in this public forum. All of our Charges, Commissioner Charges, directed investigations, and regular Charge work of course is confidential.

But, you know we're looking at the information that we get from stakeholder groups, from EEO-1 information, from just kind of surveying the respondents that we're familiar with to see about possible problems. And those would be the kind of things that frankly if it's an age or an equal pay issue it's more likely to become a directed investigation because we can do that.

If it's a Title VII matter or ADA matter that we happen upon then it would become a proposal for a Commissioners Charge.

COMMISSIONER ISHIMARU: Well I would hope that district offices are sending these forward on a regular basis and that people don't hesitate to send them forward because frankly, all this is is to open an investigation and it's a charge where you're based on a reasonable amount of evidence that you think something is going on.

And I think it's a very useful tool to see if there is something there and if it isn't you should close it out as came out of the Systemic Task Force report.

So, I encourage districts to send them in. In my office we will continue to root out our own Commissioners Charges.

But, I also want to touch on the confidential nature of these. These Commissioner Charges should be treated as any other Charge where there are both criminal and civil penalties for releasing confidential information about Charges, Commissioner Charges, and I think that needs to be reiterated and violations of that should be referred to the appropriate authorities for appropriate action.

But I would hope that the whole notion of Commissioners Charges that we use that carefully and that the information contained in them remained confidential just as it would for any Charging party. And violation should be severely dealt with, so with that I thank the panel.

COMMISSIONER GRIFFIN: I don't really have any more questions. I do want to, because actually my question was -- my next question was going to be about the relationship with enforcement and the attorneys. And I've seen in various parts of my life or working for even the Food and Drug Administration or the Department of Justice that things work best when the attorneys and investigators are working together from the beginning.

And that you know, it doesn't make sense to invest a lot of time and resources on something that, you know an attorney or a compliance officer at the end is going to look at and say, oh, this isn't very good.

You know, so that never made sense to me and that whole you know hierarchical type setup is just rife with problems. So, I'm very encouraged to hear that this culture is changing in that because I really believe that we do the best work when we're all, you know working on the same things from the very beginning and we're all involved and working collaboratively. So I was really glad to here that, so thank you.

VICE CHAIR SILVERMAN: I just wanted to clarify one thing with the Commissioner Charges. You know, one of the things that we looked at with the Task Force is the Commissioner Charges in the past.

And what we didn't want to do and I think this was misunderstood at first. We didn't want any quotas that you had to do Commissioners Charges. We wanted to emphasize that when you needed to do Commissioner Charges that they should be done.

And I've seen several in my office where an office saw an issue but decided it wasn't "like and related" and proffered a Commissioner Charge because it was an appropriate way to get to the information and I think, you know that's fantastic because I'd rather follow the correct process when possible.

But again, when we're seeing more Commissioner Charges, and when we're encouraging them, we're encouraging them because you see something and you see a need and it's a tool that, a unique tool that Congress gave us as well as directed investigations. And I think that that's fantastic.

Again, I want to thank all of you in everything that you've done to, you know, to make what the Task Force had written a reality and I want to think Mindy Weinstein who has done so much for this program, thank you.

CHAIR EARP: Thank you to the panel. We will now have a presentation on our state and local programs. Nick Inzeo, Director of the Office of Field Programs and members of his staff Mary McIver and Michael Dougherty.

Ms. McIver, why don't we start with you.

MS. MCIVER: Thank you. Good morning Madam Chair --

CHAIR EARP: It's now afternoon.

MS. MCIVER: Is it already? Thank you, good afternoon Madam Chair, Madam Vice Chair, Commissioners. I am Mary McIver and I want to thank you for allowing me an opportunity to present the final recommendations of the Joint Equal Employment Opportunity Commission and Fair Employment Practices Agencies Workgroup on Performance Measurement.

The workgroup was established as a means of working in collaboration with the FEPAs to identify a method for measuring their contribution toward achievement of EEOC's strategic goals and mission.

This effort was initiated in response to the Office of Management and Budget's assessment of EEOC in fiscal year 2006 using its program assessment rating tool, or as it's most often referred to, the PART.

One of the reasons contributing to the rating of results not demonstrated given to EEOC by OMB was OMB's decision that EEOC does not measure the performance of its partners. OMB acknowledged that the work sharing arrangement currently in place helps to expedite service to the public, prevents redundant investigations and facilitates the exchange of information regarding charges.

They also agreed that EEOC has controls in place to monitor the FEPAs performance in relation to legal and quality standards to govern the program.

However, when focusing on how EEOC measured the FEPAs contributions OMB determined that EEOC did not have effective tools in place to measure the FEPAs contribution toward achievement of EEOC's strategic goals and projections.

In response to this finding and in support of the Chairs vision to strengthen the partnership relationship with inclusion and collaboration -- I'm sorry partnership, relationship, and with inclusion and collaboration on issues impacting the FEPA community EEOC's PART improvement plan promised to develop in collaboration with the FEPAs methods for measuring the FEPAs contributions.

This effort was kicked off during the 2007 EEOC FEPA training conference. As part of the conference agenda, time was set aside in small workgroups to brainstorm ideas for possible areas to measure and potential barriers. These groups consisted of representatives from FEPA agencies and EEOC District Office Directors and State and Local Coordinators.

Each of four groups was facilitated by co-facilitators, one EEOC representative and one FEPA representative. The information collected during these sessions served as the basis for the current workgroup's discussions and alternate recommendations.

The existing workgroup is comprised of three FEPA representations in addition to Jay Friedman from the Office of Research Information and Planning and myself.

Four of five workgroup members also served as co-facilitator a year earlier and the other representatives participated in discussions in Memphis.

The representatives from the FEPA community included Marty Ebel, a Commissioner with the Massachusetts Commission Against Discrimination, Marcos Regalado, the Director of the Miami-Dade County Equal Opportunities Board and a member of the EEOC FEPA Joint Standing Committee, and Bobbie Wanzo, Deputy Director of the Illinois Department of Human Rights and a representative of the IOAHRA Board.

All three possessed an understanding and working knowledge of the performance measurement process and brought with them a wealth of experience and information that proved extremely helpful throughout the process.

The group's first product was initial recommendations developed for the purpose of sharing with the full FEPA community to generate discussion and provide another opportunity for input from the FEPA Directors across the country.

These initial recommendations focused on potential measures within five categories which included customer satisfaction, processing time, outreach, workplace benefits, and alternative dispute resolutions.

We presented our initial recommendations during the 2008 EEOC FEPA conference and encouraged everyone in attendance to submit comments to the workgroup.

We asked that they identify the type of measures most suitable to their organizations from among those provided in the workgroup's initial recommendations.

We also asked that they identify potential barriers they projected relative to individual measures and as for any additional measures they may want the group to consider during their final deliberations.

The group used the input received in response to the data call in developing our final recommendation. The concerns and suggestions from the FEPA Directors who responded were used by the workgroup to weigh the benefit of one measure over another and to arrive at our final recommendation.

The measure recommended for use by EEOC to measure the FEPAs contribution is the workplace benefit measure that is currently included in the EEOC's strategic plan.

The members of the group agreed that among the alternatives we considered this measure, because it focuses on the number of individuals impacted in a given workplace as a result of the FEPAs' actions demonstrates effective and efficient use of state, federal, and local resources and will result in a benefit that the public can identify with and hopefully acknowledge as being an accomplishment in the struggle against illegal discrimination.

This measure also satisfies the goal of identifying a tool that does not impose a financial hardship on either EEOC, the FEPAs, or both. Since it does not require additional resources to implement others and time for training to familiarize the FEPAs with the types of actions that are covered, the method for calculating results and process the data input to IMS.

Following approval of the measure for use by EEOC and OMB's concurrence with this proposal, the workgroup will develop an implementation plan.

Again I want to thank you for allowing me to talk with you today and I would be happy to take any questions you have.

CHAIR EARP: Thank you Mary. Michael?

MR. DOUGHERTY: Good afternoon Madam Chair, Madam Vice Chair, Commissioners. I'm Michael Dougherty and I'm here before you today to provide an update regarding the status of this year's state and local contracts.

Although we are rapidly approaching the end of the third quarter I asked that my staff run preliminary production numbers to provide us with an estimate of where the FEPAs stand at this point in the process. However, please keep in mind that we generally base third quarter modification actions on IMS runs which are conducted in the middle of July, followed by discussions between the FEPAs and their contract monitoring district offices.

Since we recognize that this computer run is premature, we've attempted to refine our projections by communicating with some individual FEPAs as well as some of our district office personnel to get a better idea regarding the likelihood of their meeting their contracts regardless of what the numbers generated from IMS say at this particular point.

Based on numbers generated during the first week of June, it appeared that FEPAs collectively would fall short of the contracted level. However, some of the agencies projected results prompted us to make the contacts that I referred to above. It must be kept in mind however that the purpose of these discussions was to try to determine if there was in fact a probability that a particular agency was not going to meet its contract or perhaps whether there were circumstances that we needed to consider in projecting the final number of resolutions for any of those agencies.

At this point in the process we can only rely on the input that they provide along with the numbers. The district offices will have the final third quarter numbers available by mid-July and we will be able to refine our numbers at that point. Based on the information currently available to us in general, I believe that the FEPA agencies overall will come extremely close to meeting their original contract levels for fiscal year 2008.

As I noted above, the run we did indicated that the FEPAs would fall short of the contracted level and the number that the run showed was approximately 3,000 resolutions. However, the contacts we made suggested that a number of the large agencies whose numbers make up the bulk of that downward trend will in fact not experience the short fall in the final analysis. Otherwise stated the 3,000 potential downward that the numbers show on the run will ultimately not come to pass.

Obviously we will continue to monitor the agencies resolution numbers and we will also be in close contact with our district offices once the third quarter numbers have been run next month.

We recognize the need to monitor the situation closely and we certainly will do so. I believe that while all of you would appreciate my honest and sincere desire to be correct on my prediction, I am very much mindful that there are compelling reasons to determine as soon as possible what the official tally will be. And we will strive to make that determination as soon as possible. Thank you.

CHAIR EARP: Nicholas.

MR. INZEO: Good afternoon Madam Chair, Madam Vice Chair, and Commissioners. I'm Nicholas Inzeo. I wanted to spend a few minutes this morning to update you on the status of two items. The fiscal year 2007 outreach contracts and the cost of enforcement tiered payment concept.

Following Commission meeting this February, we worked with the District Directors, the FEPA Directors, and state and local coordinators to update the table of proposed FEPA outreach that was contracted for with fiscal year 2007 money. Based on the information that was available to us in February, we believe that many if not most of the FEPAs has received payment for their outreach work.

Following our briefings I did ask the Office of the Chief Financial Officer to run a report that would help us determine how many payments have and have not been made. I can tell you that this morning the Chief Financial Officer gave me information that only 12 FEPAs have not received payment.

So, you know based on a report from the financial system that he ran. We do know that not all FEPAs have completed the outreach that they said they would. It was scheduled over a period of time.

They have not all finished their reports and they have not all billed us yet. Beginning this fiscal year when we sent FEPA the requirements for entering new contracts or extending their current contracts, we asked for information from all of them that would help provide information to EEOC that will assist us in how we will approach the issue of tiered or differentiated payment. That cost information will be used in conjunction with the table of FEPA activities that we shared with you recently.

We'll work with FEPA Director Vanessa Boling to get complete and better information from all of the FEPAs on the cost of enforcement so that we can then use that information along with the activity table to determine an appropriate payment structure. We will be working on that for the remainder of the fiscal year.

I'd be happy to answer any questions that you may have. Thank you.

CHAIR EARP: Thank you to the panel. Five minute rounds beginning with the Vice Chair.

VICE CHAIR SILVERMAN: Mike, I had a question based on your testimony and just my confusion a little bit. I know that last year the amount of charges filed with FEPAs went down even though our charges went up. Is that correct?

MR. DOUGHERTY: Yes ma'am.

VICE CHAIR SILVERMAN: But when you were talking in your testimony earlier you were talking about closures.

MR. DOUGHERTY: Correct.

VICE CHAIR SILVERMAN: Which is when they get paid. So that's --

MR. DOUGHERTY: Correct.

VICE CHAIR SILVERMAN: -- not an accurate indication of how many charges have been filed when you're talking about closures it's how many they finish?

MR. DOUGHERTY: Correct.

VICE CHAIR SILVERMAN: I'm just wondering do you have any idea whether the charges with FEPAs this year, because now we're going up again or so it seems, are now starting to go up with our FEPA partners this year as well. Are they seeing that trend as well?

MR. DOUGHERTY: The trend is up for us and it is up for them as well. Rather significantly in both arenas, for both the FEPAs and us. That doesn't say obviously that that will, as you correctly point out, produce additional resolutions at the end, but there are additional coming in the front door. Yes there are for them as well.

VICE CHAIR SILVERMAN: I mean I'm sure there's a point where actually getting more makes it harder to close any because you have so much on your desk.

MR. DOUGHERTY: That would be for EEOC.

VICE CHAIR SILVERMAN: Yes, okay, so I just wanted to understand whether or not this was truly a nationwide trend or just an anomaly for us. That's all I have for questions.

CHAIR EARP: Okay, Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I'm intrigued by the tiered payment question and one of my questions with the FEPAs and how the EEOC uses FEPAs to get to areas where we don't have presence, we just physically do not have presence.

And I think about, you know when the floods have been happening now in Iowa and I know that Iowa is under the jurisdiction of our Chicago office, but we have no physical presence in the state. Yet the FEPA is present in the state. Seems to be fairly vigorous.

And you know might, when you think about or talk about tiered payments and how to encourage places where we don't have physical presence, could that be a factor in paying certain FEPAs more or on a different formula so we enhance the equal opportunity presence

in the state and conversely, if you have a FEPA in a place where we already have a district office and we have good presence does it make sense to look to whether that FEPA needs to be enhanced or perhaps decreased.

I don't know what the answer is but I think that it's something, as you're thinking about tiered payments you should factor in mind that there are vast parts of the country, especially after the reorganization, that just aren't covered by the EEOC physically. And the question is how can we use our FEPA partners and our TERO partners in a more targeted way. I don't know if you have any thoughts on that Nick.

MR. INZEO: The first part on what you said in terms of utilizing FEPAs where we have no presence certainly I think should be part of that equation. Most areas where we have EEOC offices there are also FEPA offices. In some instances both entities do quite well and it is a little less clear how that would factor in or would factor in.

COMMISSIONER ISHIMARU: Right.

MR. INZEO: But, I don't -- I think it's a relevant consideration.

COMMISSIONER ISHIMARU: And I guess I'm also intrigued by the fact that some FEPAs are able to do more because they are enabled to do more and others do less because they don't have the authority or don't have the wherewithal to do as much.

So there's a varying degree of what service FEPAs provide and for the EEOC to think at least about how you both encourage people who need more capacity or to reward people who have had capacity, that's something again that needs to go into the mix.

And I don't know what the right answer is but I'm glad you're thinking about it and I'm glad there's -- that a compilation is being made now of those various places and how they differ.

Mike, last summer when the third quarter modifications came back in and we knew what the numbers were and there was some, there was quite a bit of interest on the Commission level of how you spend the excess, and some disagreement as to how you spend the excess, and you say this year hopefully there won't be very much to spend which I think is fine.

But if there is a substantial amount of money that you will have to come back to the Commission to seek approval for are there new things you are thinking about or is it too early to tell?

MR. DOUGHERTY: I think it's too early to tell Commissioner. I mean I think that we have tried to do things that have made sense, that have made sense to us, that have made sense to the people in the FEPA community and that made sense to the policy making body of the Commission which is you folks and we would hopefully do the same things this time in terms of exactly what that one will take. I think that will depend on whether there is a little bit or quite a bit and I don't anticipate that there is going to be quite a bit. So I think we're going to be at most we're going to be tinkering with very minor amounts I believe.

COMMISSIONER ISHIMARU: But if you had a substantial amount what sorts of new things would you possible propose?

MR. DOUGHERTY: Well if it were me making the decision I wouldn't propose a new thing I'd propose an old thing which would be the training which was conducted by our revolving fund folks, which was spectacularly received by members of the FEPA community, who much like us are often starved for training. And the opportunity to have those I think was money that was well spent and returned across the board among the FEPAs.

COMMISSIONER ISHIMARU: Did our revolving fund programs, did they go out to be closer to the FEPAs?

MR. DOUGHERTY: Yes they did, there were multiple locations and they at times they consulted with the FEPAs and went to a particular city where there was maybe 30, 35 investigators in one city --

COMMISSIONER ISHIMARU: I see.

MR. DOUGHERTY: -- for a FEPA and some collected in a geographically proximate area, yes.

COMMISSIONER ISHIMARU: And was there also talk about what the FEPAs wanted to be trained on as well?

MR. DOUGHERTY: Well there was not an unlimited menu of training items. But there were consultations.

COMMISSIONER ISHIMARU: There was a menu at least.

MR. DOUGHERTY: It was made up of -- it wasn't much of an ala carte but there were at least a few entrees that were considered.

COMMISSIONER ISHIMARU: Thank you very much. Thank you Madam Chair.

CHAIR EARP: Thank you. Commissioner.

COMMISSIONER GRIFFIN: I want to thank all three of you although I think you know, this will be no surprise, I continue to be a little frustrated with the lack of progress on some of these issues.

I know that, you know we had -- Vanessa Boling was here almost a year ago working on the issue of how much it cost and that we still don't know that information.

We asked for the list of what all the FEPAs do a long time ago and just got it very recently. So, I guess that I continue to be a little frustrated with our progress in this area. We were waiting for all of this information so that we can begin a process and a dialogue about how to refocus our thinking about how FEPAs are paid. And I certainly hope that we are involved in that process because I think we do have a great interest and do have some ideas about how that should go, along with, I think you folks as well as FEPA representatives.

I think, you know here's another example of a place where we can at the very beginning be collaborative and come up with a product that we all agree with at the end and that we could support.

Is there any way off the top of your head can you tell me how many trainings we did, no?

(No response.)

COMMISSIONER GRIFFIN: This was last year, right.

MR. DOUGHERTY: It was over the last several years.

COMMISSIONER GRIFFIN: Over the last two years?

MR. DOUGHERTY: I would say 50 but it's probably more than that.

MR. INZEO: Can I -- including some larger sessions where you'd have --

COMMISSIONER GRIFFIN: Wasn't there a big one in Phoenix or something?

MR. INZEO: There was a big one in Phoenix where there were paid instructors --

MR. DOUGHERTY: A big one in Dallas, a huge one in Dallas that I went down to which probably had over 100 people there for sure.

COMMISSIONER GRIFFIN: So I guess my next question would be, you know what is the need in the next year? I mean are there currently tons and tons of folks, the FEPAs that need training on something else or need training because they just began, or -- I guess I'm saying if we've done a lot, 50 trainings in two years it sounds like we've probably trained a lot of the FEPA folks, right?

MR. INZEO: We did a lot of training. There is no question in my mind that if we asked again we would be able to do -- we would have more people sign up than we would have the capacity.

MR. DOUGHERTY: I think that's fair.

MR. INZEO: And in a number of topics too. I mean we -- there were as Mike indicated a relatively limited menu to choose from. There are other topics that we could easily present also and that we've heard from FEPAs that they would like to see.

COMMISSIONER GRIFFIN: Okay, I know one of the other things we've done with extra money is forward fund the annual conference, which probably isn't a bad idea.

I am a little concerned about the numbers that you present Mike. You know, I mean if -- and I know you're saying that it won't be the 3,000 but if it is we're talking about what, a million five hundred and that's a problem.

MR. DOUGHERTY: That's right, but I'm --

COMMISSIONER GRIFFIN: And I want to know, you know, is there a date certain that we can know this info. So if we're -- if we know everything by the third week in July, by the beginning of the fourth week can we have an actual number this is where we are? Because I really think waiting like we do until the end of the fiscal year to make these decisions does not make sense especially when we're talking about large sums of money. It puts us in a very bad position and it puts the FEPAs in a bad position and I don't think it's fiscally responsible.

MR. DOUGHERTY: As soon after the third week of July as possible, that will be the point at which the Directors, who are the contract monitors will be interacting with the FEPAs.

I am very confident that the predictions that were made to me personally will come to pass. But the FEPA and the District Director have to sign and agree on, or they have to agree on the number.

COMMISSIONER GRIFFIN: All right, will we put out a message to them right now and not -- I don't mean just by this meeting, that you folks are on top of them --

MR. DOUGHERTY: Absolutely, absolutely.

COMMISSIONER GRIFFIN: -- look we, you know do not wait until you know we're asking you again or anything. You know start looking at this and start figuring this out and be in constant contact because I really -- making that decision at the end of August is not wise.

MR. DOUGHERTY: Okay.

COMMISSIONER GRIFFIN: So I kind of want a date certain on when we're going to have that number so can we say -- and Jeff you might want to weigh in here.

Can we say --

MR. DOUGHERTY: Jeff wouldn't be involved though.

COMMISSIONER GRIFFIN: Well he'll know what the money is.

MR. SMITH [from audience]: July 1st if you ask.

COMMISSIONER GRIFFIN: Well because they supposedly would have the numbers by the end of June.

MR. INZEO: The numbers are run by ORIP in the quarterly report.

COMMISSIONER GRIFFIN: Right.

MR. INZEO: We would generally get that report between the 20th and the 25th of the following month which would be July. And then at that point --

COMMISSIONER GRIFFIN: Which would be so like the end of that week which is like July 25th.

MR. INZEO: -- and then at that point if there are some anomalies that we need to go back to ORIP with, we do that and then we talk to the District Directors, the FEPA Directors, the state and local coordinators to see what -- where they think they are going based on those third quarter numbers for the end of the year. That requires that those people be available for us to talk to.

COMMISSIONER GRIFFIN: Well see that's the problem and I understand that this is the way we've done this traditionally but you know can we start thinking now about how to do this a little bit differently because we're going to end up in the same boat, you know we are.

And with all due respect Mike we've sat in previous years and had the same discussion where you predicted based on what folks are telling you -- I know that's all you have to go on. But, you should be as skeptical as I am at this point that based on what people tell you doesn't translate into an actual sum of money. And you know -- you do remember the time I'm talking about where you said absolutely won't be, you won't be voting on anything over $100,000 because it won't be there.

MR. DOUGHERTY: Right but --

COMMISSIONER GRIFFIN: And --

MR. DOUGHERTY: -- as it turns out the thing that I am probably most nervous about is the "aliens" in this regard with respect --

COMMISSIONER GRIFFIN: Those of you who don't know the "aliens" are the FEPAs that aren't using IMS.

MR. DOUGHERTY: And who get -- excuse me, I guess I should have clarified that. I thought it was a term of art.

COMMISSIONER GRIFFIN: It's your term of art I learned.

MR. DOUGHERTY: Okay, but at any rate that's the thing that I'm most concerned about. Nick correctly points out what the chronology is regarding the agencies who are on IMS.

And we could do that much more expeditiously than the problems that Calvin and John will have to deal with on the "aliens" who unfortunately are larger agencies.

So there can be a -- talking about a swing vote. Those swings are very difficult to predict. I mean the one's I talked to I'm pretty confident that the one's that I talked to will produce as they said. So that the numbers that we were starting with have been offset.

COMMISSIONER GRIFFIN: The "aliens", as you call them, though have their own computer systems. So it's not like they don't know.

MR. DOUGHERTY: Correct.

COMMISSIONER GRIFFIN: They know, there's a number and they know it. So I would be calling up the "aliens" today and say hey, I want this number on this date and --

MR. DOUGHERTY: That has happened for sure.

COMMISSIONER GRIFFIN: All right.

MR. DOUGHERTY: That has happened.

COMMISSIONER GRIFFIN: Then can I say August 1st. I know you don't like to be held to something, but you know --

MR. DOUGHERTY: Well it's certainly a date certain.

COMMISSIONER GRIFFIN: -- I think we have to do that. I really do, I think we have to -- we let this go and you know the track record isn't good, so.

MR. DOUGHERTY: I mean we, we could give you a status report on August 1st and tell you what the -- which is fine with me to tell you if there are holes, what they are and why and where we are otherwise. If that's clear.

That I can say here we stand on August 1st. This is what it is and here are the few that are missing and this is the reason that they are missing. And you will be able to judge for yourself --

COMMISSIONER GRIFFIN: Why would they be missing? Tell me why they would be missing?

MR. DOUGHERTY: Because there is going to be -- there will be inevitable disagreements between what the IMS system shows and what the alien system shows. Or there is going to be a FEPA Director that is going to say I am certain I can make this and a District Director who will say I can't.

COMMISSIONER GRIFFIN: But what's today's date, June 18th. So they can't start looking at this now?

MR. DOUGHERTY: Oh, Certainly, certainly.

COMMISSIONER GRIFFIN: To have enough --

MR. DOUGHERTY: Certainly and what we -- the run that we have as I said which is from the beginning of it's June it's tautology that June will end up being a better month at the end of June than it was at the beginning because people are aware of the third quarter mod process. So at the end of June it will not look as bad as this.

By the same token a number of agencies will be able to say, convincingly I believe, that people that we brought on board in February, the probationary period is going to expire. So even though it looks like we're going to be down 400 cases I am telling you, Mr. and Ms. District Director that we're going to achieve that. But that discussion has to happen because it's a contractual matter.

COMMISSIONER GRIFFIN: These are also closures that we're talking about so it's not like predicting how many people are going to walk in your door next month.

You're really predicting, you know what you've already got in the system and where it is so you should have a -- they should have a better sense of where this is going, right?

MR. DOUGHERTY: Correct, yes.

COMMISSIONER GRIFFIN: All right, I know it's red but one more.

CHAIR EARP: Go ahead.

COMMISSIONER GRIFFIN: We haven't spent $120,000 on the outreach is that right. I mean that's -- if it's 12 people, 12 FEPAs that would leave --

MR. INZEO: Only one was a state agency Commissioner.

COMMISSIONER GRIFFIN: Oh, all right.

MR. INZEO: The rest were locals.

COMMISSIONER GRIFFIN: All right, all right so it's lower.

MR. INZEO: 41, we haven't paid out about $41,000.

COMMISSIONER GRIFFIN: All right, if it was the higher amount I was actually going to ask what we were doing with that and would we have to vote on that -- given that it's over $100,000 but I forgot that the locals get less.

MR. INZEO: The money is obligated already Commissioner.

COMMISSIONER GRIFFIN: And you know -- well that's a whole another -- I mean obligated and then they have forever to do this? I mean I know when I ran a non-profit and took Federal money you had -- there were clear rules and I know they are state and local Governments or whatever and maybe the rules are different. But it just does not make sense to me that the Federal Government would let someone, you know just decide when -- forever that they had forever to actually you know send us the bill. We've got to close books don't we?

MR. INZEO: There's a period of performance Commissioner and there is not in the federal contracting process I believe a -- any requirement that the bill be sent within a certain amount of time. And in some of these agencies their internal process for producing a bill perhaps rivals the Federal Government's process.

COMMISSIONER GRIFFIN: I understand that but I just, you know I always know that when you have so many -- you know when your time is limited to send that bill in it motivates you whether you are a state agency or anyone else to actually send the bill in.

But when it is this open ended -- how do you close books on this, how does the Federal Government close books when these open ended?

MR. INZEO: Quarterly, Commissioner, we do reviews of older obligations. And so anything that was obligated in a prior fiscal year gets reviewed every quarter. And then at the end of five years any money that is -- that was obligated and not spent is returned to the Treasury and unavailable for use by us and unavailable for use as payment. So ultimately that becomes --

COMMISSIONER GRIFFIN: So 12 unpaid means they have -- they haven't done any -- no, you're not saying that.

MR. INZEO: No.

COMMISSIONER GRIFFIN: They just haven't billed us?

MR. INZEO: They haven't billed us, correct.

COMMISSIONER GRIFFIN: So we can assume the other 96 minus 12 have done the outreach and they have been paid, is that right?

MR. INZEO: The number I have is that 78 have been paid. So that came from a different report but in an email I received I noted 78 had been paid. The others could be in process.

COMMISSIONER GRIFFIN: Okay, all right I'm sorry I'm done.

CHAIR EARP: That's okay. Is it correct to say that we are not and have not adopted "alien" as an acronym or term of art for those FEPAs that are not subscribers or participants in IMS?

I just want the record to be clear.

MR. DOUGHERTY: No, no that's -- I think that that is a geek terminology.

VICE CHAIR SILVERMAN: How about taking the Lost reference and calling them The Others?

MR. INZEO: The people working on the interface between IMS and those systems adopted the term. It has stuck and, you know it is what it is.

MR. DOUGHERTY: In terms of full disclosure though, I will have to acknowledge that there was another office that used to call them the "dump agencies". So between the "dump" and the "alien" I don't have a preference. Maybe you do.

CHAIR EARP: Perhaps the record could show "alien' in quotes or --

MR. DOUGHERTY: Yes.

CHAIR EARP: -- some other set off on that. Next round?

COMMISSIONER ISHIMARU: I have one other question. Is this the only -- the way we pay the FEPAs, is this mandated by law or are there are other ways we can think about doing this? And I'm sitting here thinking that we come to the end of the fiscal year and we come into the crunch time and it's totally unclear what's going to happen. There may be left over money, there may not be.

Could you possibly develop a system where the payments for the next year for the various agencies are based on the previous year's performance?

So if the agency did x number of cases in fiscal `08 you would pay them a set amount in fiscal `09. So you weren't dependent on the actual production for that year, you'd be off a year but the money would flow and the agency would know it at the beginning that they were getting, for the new fiscal year ahead x dollars.

Is that possible? Again Nick to throw into your pot as you're thinking about how we pay FEPAs in the future. Is that something that we're precluded from doing or are there alternative methods that might be used to change how we operate?

MR. INZEO: I think that's something that could be considered. I'm not -- I'm not aware of anything that would preclude it. But we would have to check with the contracting people on that.

COMMISSIONER ISHIMARU: And I know from a conversation we had at the FEPA Conference this year that there's been a long history of things being done certain ways, certain years, and it's evolved over time.

But maybe getting the benefit of the thinking of people who have been around for a while and have seen various payment schemes working one way or the other might be helpful.

But thank you Madam Chair.

CHAIR EARP: Are there other questions or comments?

(No response.)

CHAIR EARP: Okay, thanks to everyone who managed to stick it out for a rather lengthy meeting.

I also want to thank all of the panel participants and even though Deidre has left the room, the no vote on the strategic plan today should in way be taken as a condemnation of ORIP.

They're actually studies in contrast today, and the one case, the strategic plan I relied on a group of Senior Executive Career Staff to come together and with their best thinking decide how we would proceed. Ultimately it was a bad choice.

In another groups specifically regarding Systemic I also relied on a group of Senior Executives and asked them to come together, not only to affirm our commitment to Systemic, but to look at our budget for the next year and make some determinations about how we should financially support Systemic. In that case the decision was one that's good. From my perspective it's all fine because each provides a learned lesson about how to proceed. While we got a no vote today, I in no way consider it a failure. And while there was an endorsement of our Systemic Initiative, I in no way believe that's the only time that we have proceeded in a fashion to try to get the collective thinking of the career senior service, as well as to include the Commissioners.

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

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there a second?

COMMISSIONER GRIFFIN: Second.

CHAIR EARP: Second.

(Moved and Seconded.)

CHAIR EARP: All in favor?

ALL: Aye.

CHAIR EARP: The ayes have it and the meeting is adjourned, thank you.

(Whereupon, the meeting was adjourned at 1:20 p.m.)

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