The U.S. Equal Employment Opportunity Commission

Commission Meeting of August 22, 2008 on Obligation of Funds for e-Government and Competitive Revolving Fund Online Registration

PRESENT:

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

ALSO PRESENT:

REED RUSSELL Legal Counsel
BERNADETTE B. WILSON Program Analyst
JEFFREY SMITH Director, OCFO
BERNADETTE B. WILSON Program Analyst

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. Obligation of Funds for e Government Application Hosting/Managed Services and Extension of DOI/NBC Hosting
4. Obligation of Funds for Competitive Revolving Fund Online Registration and Payment Collection System Contract and Sole Source Extension of Current Contract for Transition Period

P R O C E E D I N G S

CHAIR EARP: Good afternoon, everyone. The meeting will now come to order. Thank you all for being here on Friday afternoon. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting.

But before asking Bernadette Wilson to announce any notation votes, I want to take a moment and acknowledge that today is the Vice Chair's last Commission meeting. And I want to let the record reflect how much fun I've had working with Leslie Silverman. It's been interesting. I've enjoyed it, learned a lot. The Vice Chair's leadership of EEOC's Systemic Task Force, whose recommendations were unanimously endorsed, is a gold standard for the success of a bipartisan Commission working together; we don't do many things unanimously.

Her work to enhance the Commission's mediation program and partnership with the ABA is another legacy that she leaves with us; and, finally, last but not least, her efforts to fight discrimination against workers with care‑giving responsibility, all of which had her personal touch, her up‑close and personal hands‑on and became pet projects of the Vice Chair.

So let the record reflect that Vice Chair Silverman in her time with us, cast approximately 1,550 votes, over a 6 and a half‑year period, but her legacy is priceless.

Thank you, Leslie.

(Applause.)

VICE CHAIR SILVERMAN: Thank you, Madam Chair for those so kind words. I really appreciate it. It's been the job of a lifetime for me. It really has. It's ‑‑

CHAIR EARP: You will be missed in ways you cannot know.

VICE CHAIR SILVERMAN: It's kind of sad to know that I've met my peak at such a ‑‑ what did you call it John? ‑‑ such a young age, right?

(Laughter.)

VICE CHAIR SILVERMAN: But this is really a dream job for me. I've loved, I can't say every moment, but most moments. There are incredible, incredible people here, and I will miss all of you. And you're going to get an invitation later today. They're going to do a goodbye party for me in September, September 8th, so, but my last day is next Friday.

CHAIR EARP: Thank you.

VICE CHAIR SILVERMAN: Thank you.

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

Ms. Wilson?

MS. WILSON: Good afternoon, Madam Chair, Madam Vice Chair, ‑‑ and we're sorry to see you leave, Madam Vice Chair ‑‑ Commissioners, I'm 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 reentering 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 August 6th, 2008 through August 21st, 2008, the Commission acted on eight items by notation vote: Approved federal sector decisions in six cases;

Approved the Fall 2008 regulatory agenda; and,

Approved the obligation of funds for Novell maintenance contract.

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 BARKER: So moved.

CHAIR EARP: Is there a second?

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there discussion?

(No response.)

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

ALL: Aye.

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

We are here to vote on the obligation of funds for two contracts. They are, number one, the e‑government application hosting/managed services and extension of the Department of Interior National Business Center hosting; and number two, the competitive Revolving Fund online registration and payment collection system contract, also a sole source extension of a current contract for a transition period.

These contracts involve services that are critically important to the Commission's ability to carry out its mission to eradicate employment discrimination. First, the e‑government hosting contract provides the Commission the ability to improve and better manage the Commission's many internet‑based applications, including the Commission's Web site, eeoc.gov, inSite, our internal, and the EEO‑1, as well as other employment survey collection systems.

Currently these applications are hosted by a variety of government and private sector entities. By bundling these services into a single unified contract, rather than having numerous separate agreements, the Commission can reduce management and other costs related to these services while simultaneously improving the performance and user experience of these applications.

Extending the current cross‑servicing agreement we have with the Department of the Interior, National Business Center, it's necessary to provide sufficient transition time to the new bundled services system.

The second contract presented for consideration and vote relates to the ongoing operation of the Revolving Fund. In 1992, Congress created the EEOC Education Technical Assistance and Training Revolving Fund Act.

Under the Act, the Revolving Fund charges fees to reimburse the Commission for its actual costs associated with developing and delivering specialized training and technical assistance related to the laws that we enforce.

To date, most of this training is aimed primarily at small and medium‑sized employers in the private sector, but there is also training for EEO practitioners in the federal sector and our partners in state and local government.

In 2007, for example, the Commission, under the auspices of the Revolving Fund Training Institute, conducted 501 fee‑based training events attended by approximately 22,700 persons. The events included 44 technical assistance seminars, 7 half‑day workshops, the 3 and a half‑day EXCEL federal conference, 394 customer‑specific training events, 30 courses for federal employees, 25 courses for state and local for employment practice agencies.

The obligation of funds that we are voting on today is essential to the vendor's operation of the Revolving Fund. It goes to the very registration and other day‑to‑day services essential to carrying out a training program.

By contracting these services, EEOC personnel, both in the field and at Headquarters, can focus on providing the training and technical assistance associated with their primary duties.

The current contract will expire on September 30, 2008. I urge my fellow Commissioners to consider the benefit that we are currently receiving and that we will continue to receive. And I urge them to vote yes in approving these funding requests.

I will now call on Kimberly Hancher, Office of Information Technology, and then later Nicholas Inzeo, Director of OFP, to present.

MS. HANCHER: Thank you.

Good afternoon, Madam Chair, Vice Chair, Commissioners, General Counsel. I am pleased to be here today with my Associate Chief Information Officer, Pierrette McIntire. We've prepared a statement that describes these contractual efforts.

And, let me also tell you that our office, the Office of Information Technology, has worked very closely with several of the other EEOC offices, ORIP, OFO, and the Chief Financial Officer, as well as the Acquisition Services Division, to put together a joint strategy on the managed service initiative that's aimed at reducing the administrative burden of managing multiple contracts and in implementing cost management practices while also positioning the Agency to take advantage of new technology.

And let me begin my statement by acknowledging the importance of the employment surveys and the data that's collected in the EEO‑1, 3, 4, and 5‑type surveys, which I understand are required by regulation.

The data that's gained in these surveys is an essential part of the EEOC's mission and gives it very important data that's used in the systemic efforts and the litigation as well. The data supports requirements that provide technical assistance for the employers to also see how they relate to others in their industry or in their geographical areas.

So let me give a little background on the hosting arrangements. Like many small agencies, the EEOC relies on external computer service providers to host the public‑facing systems. So those are the systems that the general public would use, that other government agencies would use, that businesses would use to do online electronic filing and then also for the general web site, our external presence on the internet.

The systems are separated from the EEOC's internal network. And this helps us with our security requirements, and it helps us to protect our internal use network.

Our internal use network is really sized for our staff and for our contractors. And it's really not scaled to accommodate sufficient bandwidth or the technical support requirements when you have internet‑based 24 by 7 type customer‑facing applications.

Instead, the EEOC, like other small agencies, uses cross‑servicing arrangements with government entities as well as contracts with private sector providers to do those kinds of services. And at the present time, we have a number of contracts and arrangements with other government agencies.

The Government Printing Office hosts our eeoc.gov website as well as Youth@Work. And the Department of Interior, National Business Center, hosts several of the employment surveys: EEO‑1, the electronic assessment system, which is the way that the public checks to see whether their potential charge of discrimination might be within our jurisdiction; and then also the Form 462, which is used by federal agencies to do online electronic data submission to the agency. And then there are a number of other private sector providers that host the EEO‑3, 5, and 4.

So OIT does the hosting for our internal intranet website, which we call inSite.

COMMISSIONER ISHIMARU: Madam Chair, just to be clear, can I ask a question on this? I know she's giving her presentation, but I want to make sure what we're hearing is precise as to what's actually hosted by whom.

How many sources of entities hosting exterior ‑‑ if it's all right?

CHAIR EARP: Sure.

COMMISSIONER ISHIMARU: Thank you.

How many actual entities host the actual services for us? You mentioned the Government Printing Office. You mentioned the Department of Interior, which I thought you said hosted the EEO‑1 through 4 forms. But then you said that there were other entities that did that as well. Could you ‑‑

MS. HANCHER: Sure.

COMMISSIONER ISHIMARU: ‑‑ both clarify that and also list the other entities that also provide these services just so we have a clear picture as to where it's all situated?

MS. HANCHER: Sure, I'd be happy to. I think I might have misspoken. It's EEO‑1 that is hosted at Department of Interior.

COMMISSIONER ISHIMARU: EEO‑1? Okay.

MS. HANCHER: Yes. Yes, sir. And the other ones, the National Opinion Research Center, NORC, hosts EEO‑4, which is the state and local government report; and then the EEO‑3, which is local union; EEO‑5 is the elementary and secondary survey, that's hosted with a company called Sage Computing.

So let's talk a little bit about why we want to combine the acquisitions into one consolidated contract. I guess that the overall driver here is that the effort will provide the EEOC with a robust set of secure, reliable hosting services at a fair and reasonable cost. The idea is to reduce the overhead and the administrative burden of managing multiple contracts and improve the quality of the technical services and consistency of the end user experience.

By requiring fixed‑price quotes, we expect to improve our ability to manage the costs and to monitor performance while improving the technologies and services available to the Agency.

And the contract has mandatory and optional portions to it. It is a competitive public‑private solicitation that will result in a single award with a base year and four additional option years.

The contract scope is well‑defined. And the performance work statement outlines what the mandatory tasks are and what the optional areas are. And I can summarize those now.

The mandatory tasks cover the migration and the hosting for the eeoc.gov website as well as the inSite intranet. It also includes the migration and the hosting of the EEO‑1 surveys, the EAS system, and the federal 462 system, and also includes documentation and reporting on the hosting arrangements.

Now, the optional tasks cover three areas. And the first area is website design and website management support. The second area is programming and application technical support. And the third area is hosting of new e‑government applications or websites to meet future requirements and allow implementation of new technologies and services.

Let me be clear. The mandatory tasks include the migration planning and the transition to the new hosting provider for both the internal and the external website, all the planned EEO surveys, the EAS, and the Federal Form 462. And we expect to award and conduct the initial migration planning during F.Y. '08 through '09.

The optional portion of the contract provides the EEOC with an acquisition vehicle to address requirements that may come along over that five‑year period. For such a requirement, we would consider the contract vehicle along with others in determining the best acquisition strategy.

The Department of Interior currently hosts those systems that we talked about earlier. And we have a cross‑servicing arrangement with the Department of Interior for hosting those systems. That agreement expires September 30th, 2008. So we need to extend this arrangement to allow adequate time to transition to the new hosting arrangement.

OIT is requesting Commission approval to award the new e‑government contract and to extend the current DOI hosting arrangement.

Thank you so much for your time and your attention.

CHAIR EARP: Thank you, Kim.

We will now have statements, Pierrette, is there anything further?

MS. McINTIRE: No, I'm going to help answer questions as I can.

CHAIR EARP: Okay. Thank you.

We'll have statements starting with the Vice Chair.

VICE CHAIR SILVERMAN: I have no statement or questions. Thank you.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

I want to thank you for the presentation. Before I ask you some questions and make a short statement on this, I wanted to note for the record that I objected to the Chair holding this meeting on this date in the middle of my vacation.

I'm happy to come back for it, but I made clear that I thought it set bad precedent to hold a meeting when members of the Commission said they could not be there, would not be in town. And I think it is an unfortunate precedent that's been set. And I regret that it happened, but it, nonetheless, is. I'm happy to be here, nonetheless, because I think these are important issues, and they should be aired at a Commission meeting.

I do have some questions on the timing of both this contract and the contract that follows that I'll bring up in the course of my questioning.

And before I begin that, I too, wanted to join the Chair, as I did at the last meeting, which I thought could have been my last meeting, in wishing our friend, Leslie Silverman, well. It's been a real honor and pleasure to serve with you.

And the third thing that I'd like to note for the record is the passing of Congresswoman Stephanie Tubbs Jones, who was a representative from Ohio and a former EEOC employee.

And I remember after I was nominated for this position back in 2003, I remember meeting Congresswoman Jones and telling her that I'd been nominated. And she was excited to hear that. She told me stories about the EEOC in the old days and what a wonderful place it is. And we had a lovely conversation about that. She was a giant voice in the Congress and will be missed. And I know, Madam Chair, that you've sent out an e‑mail to our staff, which I think is lovely. She will be missed, and she was a big fan of ours up on Capitol Hill. And we need all of those we can get.

I guess I'm looking at this contract, and, in theory, I understand why it would make sense to consolidate contracts, and possibly it makes sense to have it all done by one provider. I guess what I'm concerned about, though, is you talk about administrative burden of administering the contracts and you talk about benefits by consolidating these together under one provider. Could you expand on both of those things: both the administrative burden that's actually placed upon either your shop or contracting shops? I don't know where the burden might be, but if you could expand on that and talk about the benefits that this would bring, in fact, to having it all under one provider.

MS. HANCHER: Okay, I think the key point here is that, regardless of the type of acquisition, federal procurements take a really long time to conduct. And there's really a big investment of FTE time.

It's, for example, on this contract, it really has been a lot of Pierette's time, Adam, Susan Taylor, you know, folks in ‑‑ you know, we've worked really ‑‑ a lot of people have put their requirements together. And when you put requirements together, you document them; you put them in the form of a statement of work; you move forward with a solicitation.

One of the best practices is to really make sure that it is well‑scoped, flexible, competitively awarded, performance‑based, and leverage that economy of scale, so to speak, that goes into that effort so you don't have to do it over and over unnecessarily. So there's a lot of work that goes into putting together successful contracts.

COMMISSIONER ISHIMARU: But on a day‑to‑day administration basis of these systems, is there administrative burden, either on your shop or on any other shop that you know of?

MS. HANCHER: Each one of these has a PR, a procurement request, that has to go into Momentum, and each one has different CLIN item numbers for the base year.

COMMISSIONER ISHIMARU: No, no, no, but you…

MS. HANCHER: When there's modifications, when there's ‑‑ yes, it's quite a bit of work.

COMMISSIONER ISHIMARU: But you're talking about the procurement and follow‑ups to the procurement. I'm interested in the actual day‑to‑day operations of these hosting entities, whether there is administrative burden that is exacerbated by having different contracts.

MS. HANCHER: Sure. Let me ask Pierrette to deal with that because she's actually been in that role.

MS. McINTIRE: One of the benefits of consolidating together is that we can take advantage of potentially adding multiple applications onto a single server or a single license and even sharing Oracle servers, services and licenses.

Right now both the EAS and the EEO‑1 are on one consolidated server. They share licenses, they share that whole operating environment. And OIT is responsible for, from afar, overseeing the performance and management. So it's much easier for us when we're overseeing one cluster and working with one vendor when we have an issue than, all of a sudden, having to go to multiple vendors.

Another example is the EEO‑3, 4 and 5 are on disparate companies at this time.

COMMISSIONER ISHIMARU: Right.

MS. McINTIRE: You could probably save costs by consolidating them down and even potentially putting them all on the same server as the EEO‑1 and thereby taking advantage of enterprise group licensing and also even DBA, the internal support of administering those servers.

So everything, when you have similar systems, consolidating them together, really is cost‑effective.

COMMISSIONER ISHIMARU: And could you give me some historical perspective that, in the past, these were procured from different vendors. Was that done consciously or was that done because the procurement was set forth and we went with another vendor?

MS. McINTIRE: A lot of it was timing. Our very first e‑government application was the Federal 462. And at that time we had a vendor uniquely develop that system and host that system, and they hosted it.

And we actually got into a little bit of issue when we started not really wanting to continue with that vendor, but they have the whole environment. It's much easier when you have a vendor that hosts the environment, and then you can just hire anyone you want to support that application.

So they were in one environment, EEO-1 was in another over at Department of Interior. And we moved that system, the 462, to DOI. And when we did that, it was a very cost‑effective solution because DOI ‑‑ it was just a very minimum bump to the cost of what they already paid for EEO‑1. We could even beat that cost in‑house because of the shared services.

COMMISSIONER ISHIMARU: Great. I see my time is up. Thank you very much.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: I too, want to say goodbye to Leslie but meeting‑wise. It's been a pleasure sitting next to you for part of my time here anyway and working with you definitely.

We are both from Massachusetts. She doesn't sound like it, but, she is. She actually admits to it.

(Laughter.)

VICE CHAIR SILVERMAN: Commissioner, sure, I do.

(Laughter.)

COMMISSIONER GRIFFIN: So I know it isn't goodbye. She's going to be around. And I'll see you on the 8th. And I really look forward to working with you maybe in another capacity in the future.

We don't know where she's going, but I would imagine she's going to stay hopefully in the EEO world and we'll be working with you in a different capacity, so.

Kimberly, on the contract you actually, in the discussion of optional tasks, you talk about redesigning our intranet site, inSite. Are we doing anything to redesign the public website? And I know we've been ‑‑ OCLA is developing a communication plan. I was just trying to figure out, how does that all fit in with what you're talking about?

MS. HANCHER: Well I think from a contractual standpoint this does offer us a vehicle to get some external consulting on redesign or reengineering if that's something that we need to do.

I do know a little bit about the Government Printing Office hosting environment and that it's pretty ‑‑ it's like bare bones, you know, we can host our website there. It has been, you know, adequate, but it doesn't allow us a great deal of growth in terms of making the website a little bit more interesting and doing some additional, maybe content consistency between our intranet and internet. So it gives us some opportunities with that.

COMMISSIONER GRIFFIN: But there aren't any concrete plans to redevelop that through IT?

MS. HANCHER: The responsibility for the external website is something that we share with several parts of the Agency. And we will, as with every system that the Agency has, we will always be working sort of on a continuous improvement kind of cycle, to improve it.

COMMISSIONER GRIFFIN: And EEO‑3 and 5 right now are done by another contractor? Sage? Is that the ‑‑

MS. HANCHER: That's my understanding, yes.

COMMISSIONER GRIFFIN: And when does that contract actually expire?

MS. HANCHER: I think that was something that was voted on earlier this year and was awarded and underway a bit like in the fall. Those are the ones that get done on the even years. So it's 2008. And then it will be done again in 2010.

COMMISSIONER GRIFFIN: When you talk about these optional services, you know, it's a little vague. The money isn't there, and you say, you know, you may use a contract vehicle, you may not. Here are some of the things that we're thinking of we may do if we had the money.

I don't understand why we would be voting for that now seeing as we don't have the money, we don't know what it's going to be used for. Why wouldn't you come back to us when you have specifics and if they meet the threshold amount of money that requires a vote? I don't get that. I don't understand why we're not doing it that way. This sounds pretty vague to me, and I don't know why we would vote for it like this.

MS. HANCHER: It's a common practice to have contract line items that establish a baseline of services, those that are mandatory and then those that are optional to provide an acquisition vehicle for the out-years.

And the idea behind the optional tasks is that as specific requirements are identified, then you consider this contract vehicle along with others as your acquisition strategy, you know, whichever one is the best acquisition strategy you have those kinds of options.

COMMISSIONER GRIFFIN: Well, why wouldn't you just come back to us and say ‑‑ even if you had to, I would imagine there might be some things in here that wouldn't even require a vote, you know, that they wouldn't meet the threshold of the amount of money? So I'm not fully understanding why I would vote for something for a large sum of money that was ‑‑ I don't know what we're going to do with it.

Do you even need a vote, you know, if you know what you're going to do with it and how much it is?

MS. HANCHER: I think one of the things that might help to clarify it is that the Agency budget and its priorities determine what you will pursue in out years. The contract vehicle just allows you a mechanism to exercise those kinds of activities should the Agency decide to do those. So it really ‑‑

COMMISSIONER GRIFFIN: But we could do that for lots of things. We could vote at the beginning of every year, you know, for big sums of money and say, "Okay, here's a budget to do whatever you see fit."

MS. McINTIRE: We also have to size out the contract before it's awarded to make sure that everything is within scope and that the contract ceiling is high enough to allow us to meet these future requirements, as opposed to having to later then go back out and recompete every new requirement.

CHAIR EARP: Pierrette, would you address that a little bit more and try to get to the Commissioner's specific question about the options? And given your historical knowledge, if you can cite some examples of if we didn't have the option, we would not have been able to move ahead with some technological plan or tweaking?

MS. McINTIRE: The DOI contract had optional tasks. And a lot of those optional tasks were for the electronic assessment system. And so at the time we hadn't fully scoped that out, but it was in the scope of the contract and within the overall value of the contract.

And so when the Agency made the decision that they wanted to move forward with the electronic assessment system, we formed the workgroup. We got through all of the requirements. And then we instantly had a vehicle that we could place it on, which was the Department of Interior.

And, what's wonderful about that is we were able to put it right on the same technology that EEO‑1 resided on, at a great cost savings to the Agency. Had we not had that opportunity, we would have had to go through all of the requirements process, develop a new statement of work because many times, just because it's within ‑‑ well, it's an e‑Gov hosting contract, if the scope of the contract wasn't large enough to encompass it, and the vendors know that they might be bidding on that size of scope, you're not allowed to mod above a certain level. And I'm speaking a little bit outside of my expertise as far as procurement, because there's only a dollar threshold that you can mod up to before it's outside of scope and you have no options. You can't mod that contract. You have to go back out on the street.

COMMISSIONER GRIFFIN: What is that threshold?

MS. McINTIRE: That's one where I think we should be talking to procurement. We've often been hit with a ten percent threshold, which is considered within the scope.

COMMISSIONER GRIFFIN: Can we just find that out? I mean, is that an easy answer? Is it ten percent of any contract, above any contract?

CHAIR EARP: Jeff, is there any easy answer?

MR. SMITH: The easy answer is ten percent.

CHAIR EARP: Okay. So, Pierrette, the example that you gave, had we not had an option that was already preapproved, had been addressed, ‑‑

MS. McINTIRE: Right.

CHAIR EARP: ‑‑ we would not have been able to move forward with the EAS?

MS. McINTIRE: As timely as we were able to do so and without having to spend the time and resources to develop another statement of work, solicit that statement of work, and potentially award it to another vendor, you know, which would then lose the economies of savings that we did receive by placing it in the current contract.

CHAIR EARP: And potentially create even more different operating environments.

MS. McINTIRE: That's correct. That's right.

COMMISSIONER GRIFFIN: Well, my time's up, but I have more questions pertaining to this.

CHAIR EARP: Okay. Commissioner Barker?

COMMISSIONER BARKER: I don't have any questions. I appreciate the work that you all have done to put this together.

And I would like to just say that I'm sorry that I've known Leslie for just a short period of time, but, you know, Leslie is one of those people you immediately like and respect. And she's been tremendously helpful to me, and I really appreciate it, and we'll greatly miss her. She's a real loss for this Commission.

CHAIR EARP: Vice Chair, back to you?

VICE CHAIR SILVERMAN: I think that the question that Chris was going to ask you was okay, so you explained why you would need this extra threshold on that contract. And maybe you have answered this, but why are you putting it on this contract? I mean, you have something's it's intended for, this extra part? And you're just going to see as the workload ‑‑ I mean, why this here, I guess, is what she was getting at?

COMMISSIONER GRIFFIN: That was part of it.

MS. HANCHER: The idea is that external facing systems are sort of a fact of life. Now with federal agencies, we're asked to increasingly make our services available to the public, to businesses, and to other governments via electronic means.

And so it is a growth area. We know that there will be requirements over the next five years.

VICE CHAIR SILVERMAN: Thank you. And I want to thank you for all of your work on this as well.

CHAIR EARP: Commissioner?

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

I wanted to follow up on Commissioner Griffin's question, though. I guess the concern that some of us have is certainly that when a number of options are listed in a laundry list, the question of what you, in fact, might do is taken out of the hands of the Commission, which some might argue is a good thing operationally, but we have no sense of what might actually happen over the course of a five‑year contract.

Will monies be spent? Will resources be spent to improve the website look? Will resources be spent for this issue or that issue? All we have here is a laundry list. And once we vote on it, it never comes back to the Commission.

I, for one, think that the website itself, both internal and external, needs a sufficient amount of rework to make it user‑friendly and to make it more accessible to the public, both accessible in 508 terms and accessible from a web user's point of view.

Might that happen? It could happen, I've been told, because we would have the option to do that. Whether it would happen or not is a whole other question that, you know, I am reluctant to vote for something that may or may not happen over the course of time.

Without going into the numbers in the contract because I know that's not allowed, there are substantial funds in the proposal that would go to optional services – I'm assuming I can say this, Reed ‑‑ that make it a substantial piece, and without any assurance that it may or may not happen, it's hard for me to say, "Yes, go forward with this" because, frankly, I don't know where this contract might lead.

The third thing is, we are being asked as part of this single vote, it's my understanding, Madam Chair ‑‑ correct me if I'm wrong – but that we're being asked to both approve the contract itself as well as an extension of our contract with the Department of Interior.

Just as in the contract that's coming up next, I have problems with the piggy‑backing of contracts that are about to expire onto contracts that are new for the future. And we're being asked in a single package to vote for both of these because this contract is about to expire. So you have our backs up against the wall and the proverbial gun to our head, saying, "This will expire, you must vote for it, otherwise this vital service will disappear."

And I'm not advocating for the web hosting at the Department of Interior to disappear, but, frankly, this contract should have come up months ago to extend it for a reasonable period of time so you could have this transition. I think linking these together does not make good sense and does not bring about to the best possible result.

Getting back to the contract that's in front of us and the question of who will host in the future, will there be an evaluation to see whether we can host this in‑house? It's my understanding from my limited understanding of how the internet works, is that people can also obtain their own servers and put lines out to somewhere or to gather data from the internet, but that you could actually host your own internet site. So we technically could host our own internet site internal to the Commission and I assume separate and apart from our internal network that we have already set up; that we could set up our own internet site and host all of these various things here. Is that possible? And is that being looked at as a possibility? And has something like that been costed out?

MS. HANCHER: Technically, if you have enough time, people, and money, yes, you can absolutely host services. Small agencies have a tough time with that.

And I'm going to ask Pierrette to talk a little bit about the evaluation of our capabilities to do that.

MS. McINTIRE: Right, one of the ‑‑ well, let me back up just a little bit. Federal internet sites have a lot more requirements over them than your average "Let me bring up a website and put my family pictures on it."

COMMISSIONER ISHIMARU: So the $8.95 web site hosting ads that I see ‑‑

MS. McINTIRE: That's right. That's right. Here's a ‑‑

COMMISSIONER ISHIMARU: ‑‑ don't apply here?

MS. McINTIRE: If you look at the last page of the performance work statement, you'll see literally a page and a half of federal regulations that these vendors must comply with for the federal agency websites, so that's an enormous amount of overhead.

Also, there is a huge bandwidth requirement to allow the public to hit that server without getting "Server not found" in performance errors. We don't have that incoming bandwidth. So we would have to pay to have that type of incoming bandwidth into our Commission.

Another thing we don't have is the 24/7 support. You know, we cover the hours between, I think it's, about 7:00‑8:00 a.m. to about 6:00 p.m. to try to do East‑West, but we don't have 24/7 support. And that's another thing that as the public starts using these applications, they're using them at all times of day and night.

COMMISSIONER ISHIMARU: Right.

MS. McINTIRE: And they don't want to see a file error and have a problem.

COMMISSIONER ISHIMARU: Right.

MS. McINTIRE: And so our resources currently we do the best we can with our internal. You know, a server goes down, an alert comes off. But I don't have someone sitting here at midnight to bring that server back up. You know, we had to bring people in.

So small agencies just aren't accommodated with that whole infrastructure, and vendors are. And they do this arrangement for not just our government agency…

COMMISSIONER ISHIMARU: Right.

MS. McINTIRE… but particularly lots of government agencies, so that's where you have that shared cost savings. The infrastructure's already in place, security is already in place, they do it for us along with other federal agencies. And that's something we look for as part of our evaluation. And do they have other federal clients? Are they familiar with this environment?

COMMISSIONER ISHIMARU: Does it matter whether they have federal clients or private clients? Does that ‑‑

MS. McINTIRE: It matters as far as their ability to follow the federal security requirements. There are strict regulations that NIST puts on us. They call it 853.

And we actually have to check all of our systems against ‑‑ it's a book of requirements. And we do that for internal. DOI does that on their side, and we get their certification. And if you read the PWS, it's a requirement of the PWS.

COMMISSIONER ISHIMARU. Yes.

MS. McINTIRE:… They certify how their systems meet or do not meet so that we can accept that risk.

And we do go through about two or three audits a year on how well we apply security to our systems. So, even though we outsource it, we're still responsible.

COMMISSIONER ISHIMARU: Would the provider as a general matter add bandwidth if there was a requirement for it, if there was more traffic coming in?

MS. McINTIRE: Right. What we do is we don't tell them how much. We're telling them this is the performance work statement. These are the response times we expect. This is the community. This is how many log‑ins. They scope out the size for us.

DOI is responsible for making sure that they hit those performance requirements. And that system's always available. If that means more bandwidth, they have to scope it out, and that's why we do a fixed price.

COMMISSIONER ISHIMARU: Great. Thank you very much.

CHAIR EARP: Pierrette, let me try to follow up with one of the questions I think Commissioner Ishimaru was getting at. The optional task ‑‑ I interpret them as being so broadly drafted, for example, website design and management support, that it allows flexibility. Approval of the option does not lock OIT into a specific set of tasks that would prevent a new administration from making enhancements or if we find a need that hasn't been identified today, making that adjustment and moving forward. Is that correct?

MS. McINTIRE: That's correct. And currently the mandatory tasks on this contract are primarily for the hosting of support. That's hardware and software and the maintenance of that hardware and the Oracle licenses.

We use other contracts, our IT services contracts that you voted on in the past, to really provide a lot of the application help and support. And that can be some of the more costly items.

Right now one of the benefits if we chose to, we can look at this vehicle now along with our other vehicles to determine what's the best way to maintain the applications, the software. The government is responsible for the applications from the EAS, the EEO‑1, how those systems work, how the application works.

One of the benefits, if we chose to put it on the same contract, is that you can reduce some of the finger pointing. Oh, it's not performing well. Is it the infrastructure or is it an error in the application? And so, you know, there's other benefits to keeping them separate. That way you don't get locked into one person maintaining it. And so that's just something we would weigh with everyone. So it's just giving us another fixed labor cost category that we can also compare, like "Hey, the junior programmer around here is more cost‑effective, and they have good skills. I think we'll put this one on this contract or maybe that contract." So it just gives us more flexibility.

CHAIR EARP: So, as an example, the concern about making our external site more user‑friendly and more 508‑compatible, accessible in other ways, if a decision were made to make that a priority and get that work done, the decision being made January 21st would not be thwarted by an approval of these option tasks today. Is that correct?

MS. McINTIRE: Correct.

CHAIR EARP: Okay. Thank you.

Commissioner Griffin?

COMMISSIONER GRIFFIN: That's interesting because I have to be perfectly honest. I wasn't even thinking about administrations changing when I was thinking about these optional tasks and the amount of money.

I was actually thinking a lot more about ‑‑ I really feel like I'm being asked to vote for this large sum of money. I know I can't say what it is that certainly exceeds ten percent of a modification of a contract. It's ‑‑ I don't know ‑‑ more than half. And I don't get it. If we're going to give you the opportunity to ‑‑ I don't know ‑‑ modify what you're doing with whoever you're doing it with, how do we know we're getting best value? I feel, you know, somehow ‑‑ and I don't know how to articulate this any better, but I feel like I am being asked to vote for a large sum of money that could ultimately go against contracting, you know, requirements, and I'm really uncomfortable with it. I still don't hear a really good reason for doing this.

You know, clearly if the amount was ten percent of what the contract we have with a contractor was, that would be one thing. This is saying, you know, "Would you please vote for this very large amount of money? And we'll do the best." And I'm uncomfortable with that. I just, you know, I don't know what else to say.

CHAIR EARP: What if the option is never exercised?

MS. McINTIRE: That's the choice of the government.

CHAIR EARP: And what happens to the money?

MS. McINTIRE: Well, the money at this point isn't obligated against a contract. This is just saying what the ceiling for the contract would be. It's defining the scope. It's defining the scope.

It's similar to a lot of the IT services contract, where the scope is well‑defined as far as these are the types of things that can be put on this contract. And it's actually a fairly limited scope that has to do with e‑government hosting and externally facing applications. And it's a pretty refined, consolidated scope.

And what we are wanting is the ability to be able to use this vehicle without having to go through recompetitions or even potentially having again all of our e‑government applications hosted at various vendors across different locations. It's the benefit of consolidation.

And with IT services, you're looking at the scope. And on that one, I won't state money as well, but, you know, it's a base plus option saying, "Here's the scope of services that we're providing and OIT within their operational plan decides what is the best avenue to meet those requirements."

COMMISSIONER GRIFFIN: Well, I don't know, but in every year I'm looking at, you know ‑‑

MS. McINTIRE: And an optional task can become a recurring task because once you've implemented it in the system, you have to maintain that system. So that's why the costs seem to go up as you add new items and still have to maintain the ones that you might do in option year one.

I've added this new system. I now have to maintain the system in three, four, and five. So that's why some of the numbers do become recurring.

And then as you add another system on the following year, then you've almost doubled that into the out years. So that's how it seems to grow.

COMMISSIONER GRIFFIN: All right. But if it's legal, if it's absolutely legal, to modify a contract, ten percent of it, to, you know, to be more efficient in doing this, why aren't those amounts of money ten percent or even in the ballpark? They're not. So can somebody explain that? Because I'm not getting this.

MS. HANCHER: I think maybe the key to understanding is that the Commission vote package costs that you're looking at are the projected costs over the life cycle, five years. So we have to project what might be the kinds of things.

COMMISSIONER GRIFFIN: Yes, but by your own admission and by what Jeff said, you couldn't do it.

MS. McINTIRE: No. I think if we were willing to do the mandatory task and that was the whole scope of the contract and I had a new requirement, I might be able to modify that contract over the course of the life up to ten percent on those mandatory tasks. You know, this is giving us the flexibility to really add, to say we have a new system. We want the public to be able to come in and look up online IMS status of their charges or something. This is a new requirement. I mean, we don't know what future legislation requirements may hit us.

We can develop a whole other system, host it there, and support it there, which would be outside the scope of the initial mandatory tasking of EEO‑1, 4, 5, 6 because if you look at the statement of work, we've scoped out those systems for them so they can get us fixed costs on that. And that's the limit of that. If we only went ten percent over, we wouldn't be able to do anything else with that contract, that would be it. Every new requirement would have to go out and issue a new contract.

COMMISSIONER GRIFFIN: All right. I'm still not getting it.

Okay. One last question, and I'm just curious, you know, there's no contemplation in here, whether it's mandatory or optional, about any discussion about our MD‑715 reports for federal agencies to fill out online. I know that's been a discussion. Where is that? Do we know?

MS. HANCHER: That's the ‑‑

COMMISSIONER GRIFFIN: Is that contemplated in here anywhere and I'm missing that?

MS. HANCHER: Is that the OFO?

COMMISSIONER GRIFFIN: Yes.

MS. HANCHER: We met with several folks from OFO to talk about their requirements. They are very much aware of the need. And I think that it is something that might be a future requirement here.

MS. McINTIRE: And the MD‑715 is also something that Office of Personnel Management has a big influence on that. They're the ones that have the statistics on the employee – the federal workforce. And so that's something that I think we are really looking at.

COMMISSIONER GRIFFIN: They actually don't. They have a whole different system. And they collect different data.

MS. McINTIRE: Yes.

COMMISSIONER GRIFFIN: And it's called something else.

MS. McINTIRE: Civilian workforce data.

COMMISSIONER GRIFFIN: Right. And we may use, we use some of their data for our annual report, but MD‑715 is not connected to that.

MS. McINTIRE: The scope of this contract, should we choose to look into that, would allow us to do so.

CHAIR EARP: As an option.

MS. McINTIRE: As an option.

COMMISSIONER GRIFFIN: Right.

MS. McINTIRE: Correct. That is correct.

COMMISSIONER GRIFFIN: But it's just not listed in here?

MS. HANCHER: Correct.

COMMISSIONER GRIFFIN: Okay.

CHAIR EARP: Commissioner Barker?

COMMISSIONER BARKER: No questions.

CHAIR EARP: Vice Chair, anything?

VICE CHAIR SILVERMAN: No further questions.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

This discussion of the last few minutes raised another issue that we had in earlier contracts. Is the dollar amount that's in the proposal, is that a ceiling on the amount that can be obligated under the contract or is that a goal or an estimate at this time? Is that a maximum that can be spent on the contract? Because I know in past contractual packages that we've had in front of us, I'm not sure if they were IT or not. I assumed that what we had in front of us was the maximum that could be spent. And then I was told that, oh, no, that was not a maximum. We could spend anything we want. But this is what you voted on. But we can spend anything.

Is this a maximum amount you can spend?

MS. HANCHER: I'm going to have to defer to the procurement group for that, but I'll tell you my understanding. What I said a little bit earlier is that what you have in Commission vote packages is a government estimate. It really reflects what we think will happen over the next five years. So it helps us to give an order of magnitude on mandatory tasks and optional tasks. But I don't believe that it's a contract maximum. In the contracting world, there are minimums and maximums. And, to the best of my knowledge, that is not the maximum order limit. I think that's what they call it.

COMMISSIONER ISHIMARU: Well, perhaps before we vote on this, Madam Chair, you could have someone from your staff find out for us if this is, in fact, is the maximum or this is the government cost estimate that could be exceeded by any amount, by some amount. I'd like to know what, in fact, we're voting on, if this is just an estimate or if this is an actual amount. But that would be helpful to inform my vote.

Let me ask a few other questions. Could you clarify for me whether the mandatory requirements for EEO‑3, 4, and 5 ‑‑ is it all mandatory that they be hosted by the single host or are EEO‑3 and EEO‑5 optional tasks? Because in the package, it lists 3 and 5 as optional.

MS. McINTIRE: Right. That's a good question. And we've had that confusion before. It's the way we wrote the PWS. We could actually spec out the requirements for 3 and 5 where I know exactly this is the size of the database, this is the user community. I could put enough specs in there where I wanted a fixed‑price quote coming to me as part of the technical evaluation.

So if you look in your packages under our estimates, it's included as a mandatory.

COMMISSIONER ISHIMARU: Yes.

MS. McINTIRE:.. but we list optional because we don't want to do it on day one. It's an optional year task.

And so with the vendor community, I also wanted to let them know, even though you're giving me a fixed‑price cost on this, I may or may not decide to do it, depending on what that cost comes in.

COMMISSIONER ISHIMARU: Yes.

MS. McINTIRE:..you know, if it's more cost‑effective the way it is today, then we won't exercise that option.

And so it was a little confusing what the optional tasks truly were - I can't spec this out because I don't have a defined requirement at this date.

And so that's a good question.

COMMISSIONER ISHIMARU: Right. Right.

MS. McINTIRE: We had purposely added it into the mandatory cost column ‑‑

COMMISSIONER ISHIMARU: Right.

MS. McINTIRE: ‑‑ but listed it as an optional task because I wanted a fixed cost coming in on day one for consideration as part of the valuation.

COMMISSIONER ISHIMARU: Okay. No. That's helpful to know. I appreciate that.

The other question that I have is for many of these systems, they appear to me to be incoming systems, that people are sending us information, reporting to us, as is required by either law or by regulation. Is there an anticipation that we will be reporting out more information?

Kim mentioned this in her statement, that there may be a possibility that we start sharing more of this information on the outside. And would it be anticipated that that would be done through our website or through one of these other programs or is that something we leave for the future as to how you might do it if you choose to do so?

MS. HANCHER: Well, I think that the trend definitely is to publish agency public information via the web so that that's clearly ‑‑

COMMISSIONER ISHIMARU: Well, that's certainly not the trend in some government agencies. Some government agencies, it's to publish less data. And that's been a mixed bag, but assuming that it is.

MS. HANCHER: There are guidelines on federal website information that are supposed to help guide agencies to make the right decision about what they publish.

And I think the question was, do we think that we'll be posting more information?

COMMISSIONER ISHIMARU: Well, will you be posting more information and if you do post it, where might it be? Would it be in a separate place? Would it be part of our website?

MS. McINTIRE: It would likely depend on what that information is. We have some projects that we're looking into where we might be sending out electronically something like appellate files or case files.

If it's a secure environment, it wouldn't be on the external website, but we might host it in this environment, creating almost a portal, you know, a passworded type of thing.

COMMISSIONER ISHIMARU: Yes.

MS. McINTIRE: So there are visions of that type of nature. And all of that would fall within the scope should we decide to use the scope. It's not in the current mandatory tasking, but it certainly is initiatives that we're looking into that would make sense to have in that environment.

COMMISSIONER ISHIMARU: And this contract would provide you with the flexibility to provide that?

MS. McINTIRE: Exactly.

COMMISSIONER ISHIMARU: Great, thank you very much.

CHAIR EARP: Jeff, would you respond to Commissioner Ishimaru's question about exactly what it is we're voting on? Are we dealing with estimates or maximums?

MR. SMITH: Sure. I first want to apologize, the voice is a little tough, so,

We take our marching orders from Order Number 360‑001, where we're required to come to the Commission for competitive procurements that are estimated to be 100,000 or more or sole source procurements 25,000 or more.

COMMISSIONER ISHIMARU: This is the EEOC order?

MR. SMITH: EEOC Order 360. And, really, that drives why we bring the contracts to the Commission. If our estimates exceed that, then we come to the Commission. And that's why we're here today.

These government cost estimates do not establish the ceiling for the contract. The reason is, first, the contract has to be competed. Second, the vendor's proposals have to be evaluated, both on technical and price.

Third, there has to be a price technical trade‑off evaluation, which we call best value. And then, finally, there can be a negotiation with the vendors. GSA schedule prices are all subject to negotiation.

Some vendors will discount more than others. In the end, whatever that number is, management has to decide whether it's a reasonable number compared to what the government thought it ought to cost. And it's possible they won't find it reasonable and the proposal would be canceled.

But sometimes, much to our surprise, the vendor competition can come in substantially lower than a government cost estimate. And sometimes because of the small pool of vendors bidding on the work or the labor market, that we find that the price proposals come in higher.

But ultimately, it's that deal we have with the particular vendor that's going to set the contract ceiling. And that's done at the time essentially that the contract is signed. And then it's that ceiling where we can apply the ten percent variance.

That ten percent variance is really not an opportunity to add optional tasks. It's really there to account for variances in labor rates, market conditions, or other terms and conditions of the contract.

The industry way this is done is essentially, as has been proposed to you today, you can debate the weighting of how much is in the base or optional, but many IT contracts carry optional line items just for the reasons that have been articulated.

COMMISSIONER ISHIMARU: So the short answer is that this is only an estimate and it could be substantially over it after all this negotiation is said and done. And at end, it's the call of the management, in this case the Chair of the Commission, to approve it or not. So let's say hypothetically it was a million‑dollar contract, and let's say the bids came in and it was judged to be a good value and it finally priced out at $10 million. The management could approve that, because the process was approved to be started by the Commission. The management could in its discretion approve a contract if it met the other requirements, as you laid out?

MR. SMITH: Yes.

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

CHAIR EARP: Commissioner Griffin, anything else?

COMMISSIONER GRIFFIN: No. You know, I understand. You know, I hear what everyone's saying. I can't say I clearly understand it. I don't know. And maybe this is more of the same, but, again, I can't get over this feeling that I'm being asked to vote for this large sum of money without really clearly knowing what we're going to do with it, you know.

And I don't know. I don't know how you can alleviate that feeling that I get that somehow we're just voting for the opportunity to spend a large sum of money that, frankly, we may or may not have and it may or may not be appropriate to spend it here versus somewhere else. I just… I don't know.

COMMISSIONER ISHIMARU: Well, but if my friend would yield, I think the problem that I'm having with this is that we have a number of various priorities that we all agree on. And, yet, we only fund certain priorities at a very small level. The systemic program that's part of the Vice Chair's legacy, this year's budget is funded at $150,000. And when I raise this with people in the field, they tell me that's not enough. And clearly just on its face of it, that is not enough. Yet, there's all this other money being spent that, again, the Commission itself does not weigh in on. And it could be approved by the management. And the Commission as a body has no say in that in priorities that we all agree on should be funded. And that's why I am reluctant to vote for something like this because we talk about our priorities and we should have a clear indication of what should be funded.

And here this could balloon to any number, as Jeff has indicated, if approved by the management, and I find that troubling given that we have stated priorities that we all agree on. And quite often they're not met.

At this week's EXCEL conference in a discussion we had, the Chair indicated that she would love to do more on the federal sector. And I don't doubt that at all if she had more resources.

Again, it's a question of, how do we place these resources? Where do we spend our money? And I am reluctant to vote for a contract that, you know, really could go anywhere. And, you know, it seems to make sense on a certain level, but the way we've been operating gives me great pause.

But I thank my friend, Commissioner Griffin.

COMMISSIONER GRIFFIN: Well, thank you, Stuart, because I think you better articulated what my gut was telling me is that by voting for this, I'm giving up the hope that we would be spending this money maybe somewhere else that we deem to be more important: systemic, hiring people out in the field, you name it. There are huge needs. And I feel like I'm giving up my fiduciary responsibility to maybe place that money elsewhere where the Commission needs it, rather than saying, "Yeah, go ahead, here's a huge sum of money, I'm on board, do with it what you may."

So, that's it. I have nothing else.

CHAIR EARP: I'd like to draw the discussion to a close, if there's no further discussion. Is there a motion to approve the obligation of funds for the e‑government application hosting/managed services and extension of the Department of Interior NBC hosting?

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there a second?

COMMISSIONER BARKER: Second.

CHAIR EARP: Any discussion?

(No response.)

CHAIR EARP: Hearing none, I'd like to call for a roll call. Vice Chair, what say you?

VICE CHAIR SILVERMAN: Yes.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: No.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: No.

CHAIR EARP: Commissioner Barker?

COMMISSIONER BARKER: Yes.

CHAIR EARP: And I vote yes. The yeses have it. The item is approved: three votes in favor, two against. Thank you, Pierrette. Thank you, Kim. Thanks, Jeff.

COMMISSIONER GRIFFIN: Thank you.

COMMISSIONER ISHIMARU: Madam Chair, a point of personal privilege. Could we take a five‑minute break before we start the next panel?

CHAIR EARP: Yes.

COMMISSIONER ISHIMARU: There are certainly two of us on the left of you that would appreciate that.

(Laughter.)

CHAIR EARP: Yes. Five‑minute recess.

(Whereupon, the foregoing matter went off the record at 2:40 p.m. and resumed at 2:53 p.m.)

CHAIR EARP: The meeting will come to order. The last item on today's agenda is the Obligation of Funds for Competitive Revolving Fund Online Registration and Payment Collection System. This is a contract and a provision for sole source extension of a current contract for a transition period.

Nick, I'll ask you to start.

MR. INZEO: Thank you, and good afternoon, Madam Chair, Vice Chair, and Commissioners.

We're seeking your concurrence to obligate funds for a competitive procurement for the full‑service operation of the Revolving Fund's online registration and payment collection system and to obligate funds for extension of the existing contract in order to provide a seamless transition from the current contract to the new contract. The current contract expires on September 30th.

The Revolving Fund is in its fifth year of a contract for all registration and payment processing services. The registration and payment processing service are critical for the operation of the fund as it has ensured sound financial management and financial integrity of the fund. Our Revolving Fund team collaborated with the Acquisition Services Division team on the performance work statement. Under the performance work statement, the contractor must:

first, design and maintain a website that is managed by the contractor and advertises the seminars, products, and other relevant information, and provides a link to the registration system in order to enable participants to register for the seminars; second, process registration and troubleshoot incomplete or erroneous registrations for all Revolving Fund training events;

third, process payments through checks, credit cards, purchase orders, and IPAC collection with the ability to reconcile the registration system with the U.S. Treasury system and the EEOC Momentum Financial Management System;

fourth, manage an online bookstore of Revolving Fund products; and,

finally, maintain an electronic marketing capability with maintenance of electronic records of customers to advertise Revolving Fund events.

Using an online registration and payment processing service as part of a comprehensive business plan has allowed the Revolving Fund to grow into a business operation that reimburses the Commission for all the expenses of the fund, including the salary and benefits of all Commission employees who perform work for Revolving Fund events.

As part of our request, we also seek your concurrence for an extension of the current contract for up to 120 days to allow adequate time to transition from the current contract to the new contract.

John Schmelzer is here with me. And we will be happy to answer any questions that you may have.

CHAIR EARP: Madam Vice Chair?

VICE CHAIR SILVERMAN: I have no questions at this time. I just want to thank both Nick and John. It's been a pleasure working with you.

MR. INZEO: Vice Chair, it's been a pleasure working with you. Thank you very much.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

Neither of you is the director of the Revolving Fund. Is that correct?

MR. INZEO: That's correct.

COMMISSIONER ISHIMARU: Where is the director of the Revolving Fund?

MR. INZEO: She's returning from the EXCEL conference in Chicago.

COMMISSIONER ISHIMARU: So this was not of importance for her to be here?

MR. INZEO: Oh, it was of importance, but there was a mandatory closeout with the hotel this morning. And she was the person in the best position to do that. I asked that she do that and that John and I would ‑‑

COMMISSIONER ISHIMARU: Would substitute for her?

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: All right. This contract raises a number of issues that are extremely troubling. I think that the Revolving Fund in principle is a good idea to allow the Agency to charge monies for training that it might not otherwise provide.

This contract really was the first time that I know of in my tenure here that we, the Commission, have had an opportunity to ask detailed questions about the operations of the Fund and to find out more about how, in fact, it operates and how, in fact, this automated registration system works.

As a preliminary matter, I find it extremely troubling that in the second part of this contract, where we would extend the contract with the current provider for a period of time, that that part of the contract was not presented to us either months ago or that we could have avoided the need to have a short‑term extension at considerable cost, that this contract should have been brought before the Commission in a more timely fashion and not five weeks before the contract is about to expire.

And I would hope in the future as a management matter that the Commission be provided with these contracts in a timely fashion so if we have questions, we can ask the questions and if there are problems, we can work it out but not so that we're in a position where we have to vote for something because the contract is about to expire.

I think that registration services for training are obviously a thing that needs to happen. And then to say, though, that we're going to compete this again and we need to extend the current contract is an unfortunate business practice, and I would hope that this not happen again because, frankly, the amounts of money that we're talking about extending the contract could be used for other priorities, as I mentioned before the break. There are plenty of other things we could use with this money, and we keep on saying that we don't have money, we don't have money, but, in fact, there's money out there apparently for extensions of contracts for things like registration systems.

So, before I ask you about the registration system, I'd like to ask a few questions about the Revolving Fund itself so we have the context in which to understand what we're voting on today.

Could you tell me what the Revolving Fund's annual budget is?

CHAIR EARP: Can we stay within the scope of what has been Noticed for this meeting?

COMMISSIONER ISHIMARU: Well, this is providing context for a vote. And the Revolving Fund has been Noticed for this meeting, that we are voting for a system for the Revolving Fund.

I think it's certainly within the context of this meeting to ask what the budget is and how revenue funds work to see, frankly, whether this is within the scope of what's authorized under law.

CHAIR EARP: Okay, Commissioner. I just want to ‑‑ I think we have some flexibility, but I do want to make sure we stay within what the Sunshine Act requires.

COMMISSIONER ISHIMARU: Well, I'm not quite sure what that means, Madam Chair. Where would you not want me to go with this?

CHAIR EARP: Nick, would you respond to the question?

COMMISSIONER ISHIMARU: Madam Chair, I'd like to know what I can and can't ask. If you could let me know what troubles you about it, I'd be happy to try to comply?

CHAIR EARP: Reed, would you give me a reading of generally whether or not the question about the Revolving Fund's budget, how it operates, if it falls within what has been properly Noticed for today's meeting? Yes, essentially the question is, how much context is appropriate for today's vote?

COMMISSIONER ISHIMARU: And I know, Madam Chair, that in the past I've raised similar concerns with other Chairs, and I've been chastised for it. So I appreciate your ‑‑

CHAIR EARP: I'm not chastising you.

COMMISSIONER ISHIMARU: No, no, no, no.

CHAIR EARP: I'm just reminding that there are some parameters.

COMMISSIONER ISHIMARU: I totally understand. I totally understand and appreciate your courtesies in reminding me that there are requirements under the Sunshine Act.

MR. RUSSELL: Madam Chair, I'd like to take these as they come. This question is okay.

CHAIR EARP: Okay.

MR. RUSSELL: Okay? But I'd rather not try to set any blanket rules. We're all operating under the general rule that things need to be germane. And all the Commissioners are well‑versed on the Sunshine Act. So just keep it in mind, at the forefront of our mind.

CHAIR EARP: So would you pose the question again just so that we're clear?

COMMISSIONER ISHIMARU: Could you tell me what the annual fund of the Revolving Fund is?

MR. INZEO: The last information I saw indicated that the revenue ‑‑ and I believe it's revenue that's anticipated for this fiscal year, that would be collected by the fund would be between $4.8 and $4.9 million.

COMMISSIONER ISHIMARU: So roughly $5 million, roughly?

MR. INZEO: Roughly.

COMMISSIONER ISHIMARU: Is collected per year that goes into the Revolving Fund. And could you tell me how the Revolving Fund works? It was my understanding that because EEOC staff works on the Revolving Fund, that and account for their time, that individual offices who worked on Revolving Fund activities were reimbursed for their time directly. And I've been told that that's not the case.

So perhaps, Mr. Schmelzer, you and Mr. Inzeo could tell me, in fact, after the money comes in, what happens to it?

MR. INZEO: Every year there is a schedule that the Revolving Fund develops and works with the Chief Financial Officer's office to schedule reimbursements to EEOC from the Revolving Fund. So the Revolving Fund will pay directly certain bills and certain vendors, certain contracts that it has; for instance, this one. But then for salaries, benefits, for rent, and other types of matters that the Agency has paid for; the Revolving Fund will reimburse EEOC for that.

This year the schedule is that the Revolving Fund will reimburse EEOC $2.2 million. In other years, it's been as much, I think as $2.6 million. And those reimbursements then go to EEOC's general appropriation, not to individual offices.

COMMISSIONER ISHIMARU: So it comes back, in essence, to the Chief Financial Officer, who would make distributions from, if you will, a general pot.

MR. INZEO: I think it's worked into the operating budget by the Chief Financial Officer, yes.

MR. SCHMELZER: Yes. I'm not sure Jeff would characterize this as it goes to the Chief Financial Officer. That was my only point… ‑‑

COMMISSIONER ISHIMARU: Well, as Mr. Inzeo well knows, I normally refer to most of the money that comes into the Agency through the Chief Financial Officer as going to Nick's pot.

MR. INZEO: Yes, yes. I've heard that a few times, Commissioner.

COMMISSIONER ISHIMARU: Indeed. I will withhold until my next round. Thank you, Madam Chair.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: We, in an earlier briefing ‑‑ and maybe you can explain it here, we've had some discussion about the language in there regarding an on-site conference planning. And having just returned from EXCEL, as you have and others, I still don't get why we aren't actually soliciting bids for an organization that can do everything this one is currently doing, and but then also doing, you know, real conference planning because I think it should be crystal clear that, you know, and I think people work hard and they do as good a job as they possibly can, but it is impossible for our internal people, headed up by an attorney, nothing wrong with that, ‑‑ I would be one myself, but some of our skills don't include hotel conference planning ‑‑ why we don't change that, and I still have never heard a good answer.

MR. INZEO: Commissioner, I think we share your interest in looking into that area. We didn't include it in the performance work statement here, I think primarily for the reason that when we went out with the procurement in 2003, it did include an optional provision for conference‑planning services.

What we found was that the entities that bid on the contract were people who could do online registration of payment systems. They were going to subcontract out any conference planning that was to be done.

And, for a variety of different reasons, it didn't work well through that contract vehicle. And so what we want to look at now is: number one, to have this contract in place, to maintain the registration and payment system. It's worked well as a system, and we'd like to have that.

But then we will look at what the ‑‑ and it's a different vendor community that does conference planning, look at that; look to see in terms of the pricing of it, what's available out there so that we could look toward possibly doing a separate contract for conference planning.

COMMISSIONER GRIFFIN: I'm actually not convinced that it's a different vendor community. I think there are organizations that do it all. And I think if we were going to be cost‑effective and efficient, you know, number one, we would have been looking at this contract a lot earlier and not doing the extension. And then we also would be looking at a request for proposals that included basically the services that we need.

Do we actually, earlier we had some questions about what it costs to register people and everything, and I know I won't go into amounts, but in an earlier e‑mail that you sent; we talked about the cost per registrant versus the attendee or I'm very unclear about how that works, because it sounds like what you say that sometimes a company might sign up, you know, 20 people on one registration for a particular conference, and the contractor only charges us for one registration? Is that ‑‑

MR. INZEO: I think, as the Chair pointed out at the beginning of the meeting, there are, I think it's, 501 customer‑specific training events that are sponsored by the Revolving Fund. One person from the company will enter into a contractor agreement for that customer‑specific training. It's one entry into the registration system. And what then happens is that either an EEOC person will go there to that company or agency or facility and put on a course or those people may come into an EEOC office or facility for it, but that'll be one registration, but there may be 10‑20 attendees at that training. And what the company or agency or entity is buying is that training event, as opposed to a sign‑up course, like the EXCEL conference we were just at, where people would register individually and, by and large, each individual was a registrant.

COMMISSIONER GRIFFIN: All right. So ‑‑

MR. INZEO: It's different types of ‑‑

COMMISSIONER GRIFFIN: Well, let's say they didn't. Let's say ten people from the FBI signed up for EXCEL and they wanted to do it all on one. I'm not seeing the difference between if it was a TAPS versus a conference like EXCEL in there. You're actually saying they charge ‑‑ I mean, they charge per registration. That's..Right? That's ‑‑

MR. INZEO: For EXCEL and for TAPS, they do, but for customer‑specific training, we don't. We charge by the event because the event is set up by one company or one entity.

COMMISSIONER GRIFFIN: Yes, but that wouldn't go through our registration anyway, right?

MR. INZEO: It does go through the registration as one registration.

COMMISSIONER GRIFFIN: And why do we do that?

MR. INZEO: Because that's how we can capture the event and then get the payment into the system. And it's processed and accounted for through the system.

COMMISSIONER GRIFFIN: All right. My time's up.

CHAIR EARP: Three hundred and ninety‑four customer‑specific training events, 501 total fee‑based.

MR. INZEO: Yes.

CHAIR EARP: But, for example, one customer‑specific training event might be a union that comes to us and wants to train some of its shipfitters to counsel sexual harassment.

MR. INZEO: Yes.

CHAIR EARP: That's one event that we design for that union?

MR. INZEO: Right.

CHAIR EARP: We capture the name of the vendee and the cost. How do we capture or do we capture the number of attendees?

MR. INZEO: The attendees are captured through our IMS system.

CHAIR EARP: Okay.

MR. INZEO: The office putting on the event will enter that information into IMS. And they do for all outreach activity.

CHAIR EARP: But for purposes of registration, the contractor that we use needs to just know that that particular union and this customer‑specific training is one registration?

MR. INZEO: Yes.

COMMISSIONER GRIFFIN: Well, I'm sorry, but that means we can't cost it out by attendee, so the information he gave us is inaccurate.

MR. INZEO: No.

CHAIR EARP: No, I think that the cost per attendee goes to what we design, at least that's my experience. I went on a speaking engagement, someone approached me about needing training tailored specifically for some union members. When the office and OFP worked with that union and determined how many participants they would have, what the content of the seminar would be, the cost was built in then.

COMMISSIONER ISHIMARU: The cost of the training or the cost of the registration?

COMMISSIONER GRIFFIN: Yes.

CHAIR EARP: Our cost for developing the training specifically for that client.

COMMISSIONER ISHIMARU: So let's say hypothetically in your case it would cost $10,000 or $1,000 to design and put on a training. Then we would charge that entity the amount that it cost us, and then for purposes of this contract, they would register one time and submit their names. And that would be at a cost of $40 roughly per registrant?

COMMISSIONER GRIFFIN: They don't even submit their names.

MR. INZEO: Just the name of the person doing the registration, ‑‑

CHAIR EARP: Purchasing the training.

MR. INZEO: ‑‑ purchasing the training.

COMMISSIONER ISHIMARU: Oh, purchasing the training.

MR. INZEO: That's the name that would be captured in the registration.

COMMISSIONER ISHIMARU: Even if it was training for, say, 50 people?

MR. INZEO: Right.

COMMISSIONER ISHIMARU: There's only one name captured in the registration?

COMMISSIONER GRIFFIN: The entity. That's why this is really apples and oranges because you can't cost that out registration‑wise for those attendees.

You almost have to take all of those customer‑specific events and the numbers related to them and put them over here. And this is how we capture it, but then when you are actually trying to figure out what they're charging us ‑‑ and that was the question. What is this company charging us per registration? You really have to separate the customer service stuff out and actually look at everything else, which makes me think that the answer that we got actually is higher, would have to be.

MR. INZEO: We gave you all of the information, Commissioner. The charge doesn't come on a per‑registrant basis. The charges come because we're charged costs based on the individuals that the contractor has devoted to the contract. And you'll see in the government cost estimate that's how it's costed out.

COMMISSIONER GRIFFIN: Right. We were trying to get a handle on what is this ‑‑ you know, how do we compare this to other people? The accurate answer was, I think, no one really knew. But then an effort was made to give us that information.

MR. INZEO: We gave you the number of registrations that there are ‑‑

COMMISSIONER GRIFFIN: Yes.

MR. INZEO: ‑‑ and an approximate total cost of the contracting. We also gave you the number of total attendees so that you'd have all of that information.

COMMISSIONER GRIFFIN: Anyway, but the amount that you gave ‑‑ and I won't say it ‑‑ doesn't ‑‑

COMMISSIONER ISHIMARU: You can certainly talk about the past amounts, just not the ones looking forward. That's my understanding of the rules, right? They've been paid, so we can talk about past things that have happened, but we can't talk about the forward‑looking things that are ‑‑

COMMISSIONER GRIFFIN: Oh, good. I thought it was like giving away for the future. Yes, I'm sensitive to this. So I guess so. We can talk, you know, the information that we got was that it was $40 per registration or that a lower amount, $82 per attendee, that's where we're mixing up the customer service folks over here with the actual attendees at a TAPS or a conference, which would make me think, then, the actual cost has got to be higher than that.

We're just trying to get a feel for, what does this actually cost? What does it cost? You know, what are they charging us?

MR. INZEO: They charge us a cost based on the people they have working on the contract. And, you know, it's a schedule. And that's what we pay. And we would pay that whether there were 9,000 registrations or 12,000 registrations.

COMMISSIONER GRIFFIN: But in the briefing, actually, what you said was opposite. You said that, actually, they charge us, really, per person.

So, obviously, if ‑‑ I don't know ‑‑ 1,000 people came to EXCEL and 500, they're obviously charging us more, right? And you're saying it's based, really, on the time they spend with that extra 500 versus an amount per registrant?

MR. INZEO: My understanding, if they were required to add additional personnel because of a spike in work, then we would of course, have to pay that. But the price that we pay is the cost of their providing dedicated staff to do the service.

COMMISSIONER GRIFFIN: All right. Well, I don't know whose turn it is.

CHAIR EARP: Actually, it's Commissioner Barker's time.

COMMISSIONER BARKER: I don't have any questions. I pass.

CHAIR EARP: I'm sure you do, Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

Just following up on the previous conversation, under the existing contract, we are charged a set amount for however many registrations come in. And if it got to be too big, I guess we would renegotiate like we did with the Call Center but that we don't pay on a per‑registration or per‑person basis. We just pay every year or we have paid every year X amount of dollars. And they would process the registrations?

MR. INZEO: Right.

COMMISSIONER ISHIMARU: And it just so happened to work out to roughly $40 per registration?

MR. INZEO: That's right. That's correct.

COMMISSIONER ISHIMARU: Okay. I'm not an expert in registering people for conferences. I went to law school so I didn't have to do that. But I did take a look online to see since a fair number of these registrations come in over the internet and are web‑based now. And from the figures you provided me yesterday, Mr. Inzeo, roughly half, or 40 percent ‑‑

MR. INZEO: Forty percent, yes.

COMMISSIONER ISHIMARU: ‑‑ come in through the internet. And it struck me that $40 per registration, even though it's being paid for by the registrant, is extremely high.

And so I went on to Google, like I did during the Call Center debate, to see if there were possibly cheaper ways to do this just to get a feel for what was out there.

And I went to one website and they said for small events, it would cost $4.75 per registrant; for larger events of more than 120 attendees, $3.50 per registrant, $150 per event. Another one said $150 per registration. Another one said the pricing begins at $79.95 for up to 1,000 contract records.

You know, frankly, I don't know what this means, but it would strike me that if you're taking in registrations in an automated fashion over the internet and processing them for the most part without error, it would be a reasonably easy process that should not cost roughly $40 a head. You know, I just find the overall sums that we are talking about here to be substantial.

And when I looked at the legislation that actually created this, it appeared to me that what Congress was trying to do was trying to give us a way that we could generate our own monies to pay for technical assistance and outreach and charge for some of them and that this would broaden our base and that we would not be reliant every year on the appropriated funds that came in from the Congress. And Congress agreed that they thought that this was a worthwhile activity. And usually they don't let us work out of our appropriated funds. As Mr. Smith has told me repeatedly, he doesn't want to go to jail for violating the Anti‑Deficiency Act, and neither do I. But Congress here certainly said that this was okay to raise money to do technical assistance and outreach.

And it appears to me here ‑‑ and correct me if I'm wrong – but that the Revolving Fund is basically used for pay technical assistance to a very narrow segment of our population that we want to reach, not an inconsiderable one. I think educating people from the employer community and from the small business community is a good group to reach. And I'm glad we've done it, but does the Revolving Fund pay for any outreach that isn't paid for, say, outreach to groups representing charging parties, groups representing minorities and women or people with disabilities? I've been told that there is a limitation on the amount of training that our staff can give to groups that are out there of any stripe, wherever they might come from, limited to an hour. And I was told that was because the Revolving Fund practice wouldn't let us do any more. Am I mistaken on that?

MR. INZEO: I believe that whoever told you that was mistaken. There is no limit. EEOC does in very general terms two types of outreach: fee‑based outreach and free outreach.

The fee‑based outreach is done through the Revolving Fund. Free outreach can be done with employee groups, advocacy groups, and all. And it's not limited in terms of time.

COMMISSIONER ISHIMARU: So a district office could put on a full‑day seminar for any group it wants under training and outreach, not charge a nickel, and not be in violation of anything?

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: Do they do it?

MR. INZEO: Yes, they do. I would add to what you said. They couldn't provide the same TAPS presentation that they charge other people for, but they could do a one‑day seminar. It could be targeted to a particular group or organization or a particular constituency.

COMMISSIONER ISHIMARU: Without limitation as to hours?

MR. INZEO: Without limitation as to hours.

COMMISSIONER ISHIMARU: So they could do a full‑day free presentation? They obviously could not provide lunch or couldn't provide a nice hotel ballroom, but they could do it without limitation ‑‑

MR. INZEO: That's right.

COMMISSIONER ISHIMARU: ‑‑ if they chose to do so?

MR. INZEO: That's right.

COMMISSIONER ISHIMARU: Could the revolving ‑‑ well, my light's up. I'll wait until the next round. Thank you, Madam Chair.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: One of the things I thought was important here is that we were trying to get everyone to register online for whatever. And it seems like, according to the information you gave us, there's a good percentage that isn't done that way. And I would just imagine that that costs a whole lot more to have someone at their price rate opening up mail and doing all of that stuff.

Is there any way of making this a little more efficient, I mean, because that doesn't make sense to me? I mean ‑‑

MR. INZEO: I mean, anyone can do it online, can do it with a credit card. But it's not required that they do that.

COMMISSIONER GRIFFIN: Well, I guess that's ‑‑ why aren't we requiring that? I mean, lots of places, they require it. You don't have an option. Why wouldn't we do something like that?

MR. INZEO: We have ‑‑

COMMISSIONER GRIFFIN: We're paying people a pretty high rate for... I mean, given, you know ‑‑

MR. INZEO: We have a lot of varied customers.

COMMISSIONER GRIFFIN: We could do some of that ourselves.

MR. INZEO: I know many federal agencies are done through IPACs, they're not all done that way.

COMMISSIONER ISHIMARU: IPAC, for the record, is the interagency ‑‑

MR. SCHMELZER: Electronic Processing, transfer of funds.

COMMISSIONER ISHIMARU: Thank you.

MR. SCHMELZER: We want to try and get the widest array of employers we possibly can. Some ‑‑

COMMISSIONER GRIFFIN: But if a good portion of the fee they're paying to come to one of our TAPS ends up getting eaten up in costs by our contractor opening mail and faxing and all that other stuff, I mean, that doesn't make sense.

MR. INZEO: That then gets figured into the cost of the event. I mean, it gets figured into the cost of all events. If that cost were to go higher and it would require that our G&A be higher, then we'd have to charge more for those events. And that's part of how the price for the events are figured out.

COMMISSIONER GRIFFIN: The legislation that authorizes us to do this, you have to actually submit reports to Congress. I've actually never seen one.

In that, it also says that you give the name of every person who attends the event. Are we doing that? It seems like it would be a lot of names.

MR. INZEO: The first part, the Revolving Fund information is included in the budget every year, and I believe it's included in the PAR every year. I'm not aware that we have provided the names of individuals attending.

COMMISSIONER GRIFFIN: All right. Well, I guess maybe no one paid attention to the part of the law that says the Commission shall include in each report made under subsection E, information with respect to the operation of the fund, identity of every person, or entity to which the cost to the Commission, blah blah blah. I think it was contemplated in the law that you actually submit reports to. We haven't done that huh?

MR. INZEO: I think, Commissioner, I believe that the information is included in ‑‑

COMMISSIONER GRIFFIN: So you've put it in. And do we include everyone's names and all that? Do we do all of that?

MR. INZEO: I don't believe that we have included names in that submission, no.

COMMISSIONER ISHIMARU: What about cost information? That's never been in ‑‑

MR. INZEO: It's in the budget, I know.

COMMISSIONER ISHIMARU: Cost information?

MR. INZEO: I believe it is. I believe I looked at it yesterday.

COMMISSIONER GRIFFIN: Well, I mean it clearly says what we're supposed to do. I'm not making it up. It says, "The Secretary of the Treasury shall invest a portion of the fund not required to satisfy current expenditures from the fund."

CHAIR EARP: Legal Counsel, are we still within the context of what's been Noticed to explore reports to Congress on the Revolving Fund?

MR. RUSSELL: We're still talking about the registration, right?

CHAIR EARP: I'm not sure.

COMMISSIONER GRIFFIN: Oh, we're talking about the Revolving Fund and the law that authorizes us to even have it has some requirements. I'm just curious. I've never seen ‑‑

MR. RUSSELL: We're probably approaching the outer limits.

COMMISSIONER GRIFFIN: Okay. And would it be outer limits to ask anything about the draft IG report on the Revolving Fund? Would that be outer limits, too?

MR. RUSSELL: Does that mention or does it talk about the registration or the ‑‑

COMMISSIONER GRIFFIN: I don't know what it says because I haven't seen it. And I think it's a piece of a puzzle here that we aren't seeing. And it causes me concern that we're voting for something and not having the benefit of having seen that.

CHAIR EARP: An IG report? I'm not sure what the Commissioner is talking about to be discussed in the public meeting I think is beyond the outer limits of what has been properly Noticed.

MR. RUSSELL: I think that would be a bit far.

COMMISSIONER GRIFFIN: Okay. That was my question.

MR. RUSSELL: Okay.

COMMISSIONER GRIFFIN: I'm going to assume, then, that the hiring of a new director for the Revolving Fund is, although another piece of the puzzle, is out of the realm of this discussion. Is that correct?

MR. RUSSELL: Ask me the question?

CHAIR EARP: Personnel, staffing are within the discretion of the Chair. There's a vacancy announcement on the street. And it's not a policy matter. The Commission doesn't get to weigh in on staffing issues.

COMMISSIONER GRIFFIN: Yes. Well, my only point in all of this is that there's a lot of activity around this fund, pieces to a puzzle that, frankly, I'm not allowed to see or haven't seen. And, yet, I'm supposed to vote for this contract. And, again, my gut's telling me something isn't right.

So in light of the fact that we're hiring a new director that may have some expertise in this area that is sorely needed, I don't know why we aren't discussing something different, rather than entering into a request for proposals for a long‑term contract. I don't know why we wouldn't wait until that new person is on board, maybe we're already talking about an extension for a certain period of time, extending that for a longer period of time, and wait until someone who knows hopefully what they're doing in this area, would come on board, with all due respect, I know you guys work hard at this and everything. And it really isn't something that we have, you know, great expertise in figuring out. And that was really by everyone's admission in the briefing. This is all we've known is this particular company. And I don't think we can fairly assess whether we're paying the right price, whether we really know what that is.

And so, yes, maybe a request the way it's written will get you some of that information, but it won't get you the information I think that's sorely missing around conference planning and everything else.

MR. INZEO: Commissioner, if I may just be ‑‑ the contract was put out in full and open competition last time. Bids came in. We were able to pick the bid that we thought was the best for EEOC. And this one is going out for full and open competition also. I mean, I think we believe we're going to get the best price we can by doing it that way.

COMMISSIONER GRIFFIN: I don't doubt that you believe that.

CHAIR EARP: I would like to bring the discussion to an end.

COMMISSIONER ISHIMARU: Madam Chair, I still have a number of questions if you would be indulgent of me. I appreciate the need or the desire to bring this to an end. I don't disagree with you. But if you could indulge me for a few more minutes?

CHAIR EARP: Five minutes.

COMMISSIONER ISHIMARU: Well, no. Madam Chair, you know, frankly, I think the fact that this contract has come up at this time and the fact that in five weeks the current contract will expire – and we have not seen this one, this should have come up at least six months ago ‑‑ is a reflection on mismanagement of the agency.

CHAIR EARP: Noted.

COMMISSIONER ISHIMARU: And we are paying a premium to extend the current contract for a period of time because we did not deal with this. And we will be paying extra costs so that a new program can be developed.

So, frankly, you can try to shut me down. And I've said that I won't take an inordinate amount of time, but I think that we've barely scratched the surface here. And you're trying to get a vote before the Vice Chair leaves next week that will allow this contract to continue.

So I will take my five minutes, but I must say that, again, I am not a happy camper to be here. And I think that that will have ramifications for the future.

You said that approximately just under $5 million comes in every year and that approximately $2.5 million goes back to the Commission to reimburse it, the Commission as a whole, for ‑‑

MR. INZEO: 2.2 million this year, Commissioner.

COMMISSIONER ISHIMARU: 2.2 million? Okay. What happens to the other roughly $2.8 million or 2.6 million, the balance? Does that go to pay for expenses in the Revolving Fund? Does that sit in the Revolving Fund? Does it expand from year to year?

MR. INZEO: The answer probably is yes. It pays for expenses that are billed directly to the Revolving Fund. You know, the contract for the online registration of payment services ‑‑

COMMISSIONER ISHIMARU: Comes out of that, right?

MR. INZEO: ‑‑ comes out of that. There are other – there's a lot of printing that's done through the Revolving Fund. That's all paid for by the Revolving Fund.

COMMISSIONER ISHIMARU: Does it pay for the staff salaries of the Revolving Fund or does that come in under the $2.2 million reimbursement?

MR. INZEO: That comes in under the $2.2 million reimbursement.

COMMISSIONER ISHIMARU: So the 2.6 or $2.8 million balance goes to pay for other materials and contracts ‑‑

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: ‑‑ regarding the Revolving Fund?

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: Is any of that money used or kept in reserve for the future?

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: How much would that be?

MR. INZEO: That amount will vary. A number of years ago the amount was considerably higher than it was. When I say, "considerably higher," it was probably more than $3 million.

COMMISSIONER ISHIMARU: That was kept in reserve?

MR. INZEO: You can call it kept in reserve or carried over from one year to the next. The amount tends to be now between 1 and $2 million that's kept in reserve or carried over so that we can, number one, cover the expenses that are already lined up to be incurred; for instance, the cost of the location for next year's EXCEL conference.

You know, there's a contract in place, but it's not all ‑‑ you know, we don't pay all in advance, but then also to be able to fund the various projects at the beginning of the year, before a lot of the reimbursements come in.

You know, the money that's carried over is made available to offices so that they can pay for things in preparation of the events that they will be putting on.

COMMISSIONER ISHIMARU: Do we track how much time our employees spend doing logistical or administrative work for the various Revolving Fund activities separate and apart from any programmatic activities that they may be doing?

MR. INZEO: We track total time.

COMMISSIONER ISHIMARU: Total time. So if a person, be it a clerical person or the district director, is doing logistical work or clerical work for a Revolving Fund event, that is just captured as Revolving Fund time? That is charged back to the agency?

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: It's not separated between substantive or programmatic work dealing with the substance of the presentations? It's all lumped together?

MR. INZEO: It is.

COMMISSIONER ISHIMARU: Has there ever been any thought to separating those so we could better see how much of our time is being spent paying for the substance of these events versus the logistical or clerical parts of it?

MR. INZEO: We haven't given consideration to that. We've made a number of adjustments, for instance, by using project codes so we know which of the Revolving Fund events a person's time is going toward but not trying to divide it up between substantive and administrative.

COMMISSIONER ISHIMARU: I see. Well, let me say that I am troubled by the fact made clear through our briefings on this where I thought that when our district offices were hosting these events and are required to host them under the management plans put in place by the management of this agency, that they were getting reimbursed for doing this work so that it would not be on their backs that we were hosting Revolving Fund events.

But it appears to turn out that for all the work that is being done on these events, which takes away from the other priorities we say we have, be it Systemic, be it E‑RACE, be it Youth@Work, be it LEAD, that ‑‑

COMMISSIONER GRIFFIN: Be it backlog.

COMMISSIONER ISHIMARU: ‑‑ be it backlog, that by doing Revolving Fund work, that takes away from the priorities, and they're not reimbursed to do this at all from the Revolving Fund. It comes back to the general pot at the Commission. And I think for my colleagues on the Commission this should be a troubling event that we say we want to have all these things; yet, we're not willing to fund it. And here's a chance where we can fund it. Here is a vehicle that Congress gave us to raise money to do technical assistance and outreach and to save our other monies to do our other things, and we're not doing that. And I think that this is a huge problem. And I think the fact that the Inspector General is auditing this program, I think we should wait to vote on this until we know what the Inspector General comes back with.

This is very, very troubling, and I appreciate getting briefed on it. And I appreciate the discussions we've had. But I am very troubled and will vote no.

CHAIR EARP: Any further discussion?

COMMISSIONER BARKER: Madam Chair, if I may say one thing? This particular item is something that I think all of the Commissioners have spent some time on. And I think it's fair to say that we've all had questions. And we've spent some time with Nick and with John getting questions answered.

I am going to vote to approve this item. I did have some questions. I did have some concerns, but it's my understanding that staff is aware of those concerns and is going to address those.

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: What might those be, though? Because it sounds like things will go on as they've always been. It would be helpful to know what your concerns are and how they might be addressed.

COMMISSIONER BARKER: Well, you know, my preference, Stuart, is to not address my concerns in an open forum, quite honestly. I've discussed those privately with staff. I've discussed them with some of the Commissioners. And I think, I know that Chris Griffin is aware of my concerns because we've discussed them.

COMMISSIONER ISHIMARU: Well, I don't want to force you to do something ‑‑

COMMISSIONER BARKER: Yes.

COMMISSIONER ISHIMARU: ‑‑ you aren't comfortable with, but I think that there's a benefit to doing things in public.

COMMISSIONER BARKER: Well, I agree with that, but there isn't any additional concern that has not already been expressed by one of the Commissioners today.

I think there are some questions. My understanding is staff is aware of those, is going to address them.

MR. INZEO: Yes.

COMMISSIONER BARKER… and, with that in mind, you know, I have confidence that they'll do that. And I'm going to vote to approve it.

MR. INZEO: Thank you, Commissioner.

COMMISSIONER GRIFFIN: Well, I think, again, we do all share probably very similar concerns about this contract. And, yet, you know, I think there are so many missing pieces and to this whole thing that it makes it troubling. And I don't feel like my concerns were adequately addressed.

The hotel conference planning, come on, at EXCEL, that was terrible, that was terrible. We were in an inaccessible hotel, right? I mean, we were. You know, we shouldn't have been there. It couldn't handle the number of people. I mean, I think, you know, I think we do a lousy job at this piece of it. And I think last year it was the same.

You know, Nick, you by your own admission and Spencer Lewis jumping in and doing the registration last year, I mean, what are we doing? It doesn't make sense.

And so I don't know why we're always in this position where we're not addressing these things through the right vehicle. And the right vehicle is through this contract.

And, yet, we're not going to do it. We're once again going to put it aside. And we may be putting out another contract at what expense?

I never can figure out why we can't do things in a more timely manner and actually do it right. And, yet, you know, we're up against the wall. This has to be extended, blah blah blah.

You know, we have someone new coming on board. We do have some sort of idea how to help there, which we haven't seen. You know, aren't these all pieces of a puzzle that we should actually have put together before we vote on a contract?

You know, I'm sorry. I can't vote for this.

CHAIR EARP: I'd like to bring the discussion to an end. And I would like to acknowledge that I think I have some sense of how my fellow Commissioners feel about this issue. As Commissioner Barker said, we all have some concerns about the Revolving Fund.

When another Commissioner, however, is sitting in the seat that I'm sitting in; it will become perfectly clear how hard the staff works behind the scenes and how much work there is to be done to correct the simplest of problems. From the Commissioners' vantage point, the Chair is always at an advantage, which staff and I know is not necessarily true.

A two‑two Commission deadlocked serves some purposes, but it does not serve EEOC. So any intimation that the opportunity to have a majority and to get some things done would be bypassed is ridiculous because the one thing that the Chair does have to do, no matter who is sitting here, is keep the EEOC running, even if it appears to be running poorly by those who don't sit at this vantage point.

Having said that and having drawn the discussion to a close ‑‑

COMMISSIONER ISHIMARU: Madam Chair, a point of personal ‑‑

CHAIR EARP: ‑‑ I would like ‑‑

COMMISSIONER ISHIMARU: Madam Chair, a point of personal privilege.

CHAIR EARP: You know what, Commissioner Ishimaru? I will not honor ‑‑

COMMISSIONER ISHIMARU: Madam Chair.

CHAIR EARP: I will not honor ‑‑

COMMISSIONER ISHIMARU: Madam Chair.

CHAIR EARP: ‑‑ a point of personal privilege.

COMMISSIONER ISHIMARU: I made a point of personal privilege. And you need to let me explain it under the rules. If you don't want to follow the rules, state it now.

CHAIR EARP: I will not acknowledge your point of privilege.

COMMISSIONER ISHIMARU: So you will not allow me to state my ‑‑

CHAIR EARP: No. I want to call for a vote.

COMMISSIONER ISHIMARU: I move that we vote on my motion, point of personal privilege, so I can make one.

COMMISSIONER BARKER: What is that motion? Your motion for a point of personal privilege? Is that what you're talking about?

COMMISSIONER ISHIMARU: Right. Well, that's what I move for.

CHAIR EARP: You're moving for a point of personal privilege?

COMMISSIONER ISHIMARU: And you have denied it. So I'm moving that we vote on it. And we can vote. And if I lose, we move on. But you've denied it, Madam Chair, which is ‑‑

CHAIR EARP: Legal Counsel? Do we need a tiny break?

COMMISSIONER ISHIMARU: No, no. The Chair has intimated that I have said something. And what I'd like to do is to have a chance to respond to it. She has denied me that chance. So I've raised it as a motion to be voted on.

And if you check Robert's Rules, I believe that I'm entitled to a vote.

MS. WILSON: Could I ask the Legal Counsel to speak into the mike, please?

MR. RUSSELL: I guess I'm just having a question about whether it is a point of personal privilege, a point of information, a point of order. That's what I was trying to get to the bottom of.

COMMISSIONER ISHIMARU: It's a point of personal privilege. That's not limited, to my understanding, to physical needs.

MR. RUSSELL: I think the simple way to do this is just to let him make the motion. And it will either get a second or it won't. And you all can vote on it. And it will be done. It will be dealt with.

CHAIR EARP: Okay.

COMMISSIONER ISHIMARU: So I so move.

COMMISSIONER GRIFFIN: I'll second.

COMMISSIONER BARKER: I'm not clear.

MR. RUSSELL: What is the motion?

COMMISSIONER BARKER: Was it for a point of ‑‑

COMMISSIONER ISHIMARU: No. I was denied by the Chair to make ‑‑

COMMISSIONER BARKER: Right.

COMMISSIONER ISHIMARU: ‑‑ my point of personal privilege. So I'm asking for a vote on it.

COMMISSIONER BARKER: On whether or not you ‑‑

COMMISSIONER ISHIMARU: I can raise it, right, which is subject to a vote of the Commission. And if we vote no, then I won't be allowed to raise it.

COMMISSIONER BARKER: All right.

COMMISSIONER ISHIMARU: If we vote yes, I would be allowed to raise it.

COMMISSIONER BARKER: So is this the way it works, that the Commission as a whole votes on ‑‑

MR. RUSSELL: On the motion.

COMMISSIONER BARKER: ‑‑ whether or not a point of personal privilege will be allowed without knowing what the motion is?

MR. RUSSELL: Well, I think the motion is to allow him the point of personal privilege.

VICE CHAIR SILVERMAN: To talk.

COMMISSIONER ISHIMARU: To state it.

CHAIR EARP: Right.

MR. RUSSELL: Exactly.

COMMISSIONER ISHIMARU: We wouldn't have a discussion now ‑‑

VICE CHAIR SILVERMAN: Not to vote on something but to vote on whether or not he can talk is what we're trying to say here.

MR. RUSSELL: That's right. Right. That's the motion. The motion is to give him a point so he can exercise his right to state what he believes is his right.

COMMISSIONER GRIFFIN: But the Chair has the opportunity to just grant that.

MR. RUSSELL: That's correct.

COMMISSIONER GRIFFIN: All right.

COMMISSIONER ISHIMARU: But the Chair has denied it, which is her right to do.

MR. RUSSELL: Now you're voting.

COMMISSIONER ISHIMARU: But then it would be subject to a vote.

MR. RUSSELL: Now you're voting on it. Right.

CHAIR EARP: Say what you have to say, Commissioner Ishimaru, so that we can get out of here. I would just appreciate that.

COMMISSIONER ISHIMARU: Well, Madam Chair, you know, you think it's funny that you call a meeting when not all members of the Commission can be here. You ‑‑

CHAIR EARP: There wasn't a single day in August that we ‑‑

COMMISSIONER ISHIMARU: Madam Chair.

CHAIR EARP: ‑‑ would all have been here.

COMMISSIONER ISHIMARU: Well, Madam Chair, then the whole question of when we could have had this meeting, this meeting could have happened at any point in time.

Pardon me? For crying out loud? Well, Madam Chair, this is the fact that you haven't called an actual meeting on any substantive matter for more than a year is on your watch.

The question that you say ‑‑ and I'll go to my point of personal privilege ‑‑ the question of watching it from a Commissioner's chair is that time and time again, that members of this Commission who are not the Chair watch the Chair run the agency. And there are times when it can be run well. And there are times that it can't be run well.

And I guess I am tired of watching consistently people saying, "We can do better. We should try to do better" and that "Trust us, we will do better" when, in fact, there's been a track record under your tenure of not doing better.

And to intimate that you're doing the best you can and that the rest of us really don't understand I think is not well‑founded.

CHAIR EARP: Where do we go from here, Legal Counsel?

MR. RUSSELL: I assume that the Commissioner has exercised his right to his satisfaction and now you want to proceed.

CHAIR EARP: May I call for a vote?

MR. RUSSELL: I think you need a motion. I don't know that you have had a motion. I don't think you have had a motion to vote on the subject matter.

CHAIR EARP: All right. I was trying to bring the discussion to an end with some conclusory statements. At this point I'd like to call for a motion to approve the obligation of funds for competitive Revolving Fund online registration and payment collection system contract and the sole source extension of the current contract for a transition period.

COMMISSIONER BARKER: So moved.

CHAIR EARP: Is there a second?

VICE CHAIR SILVERMAN: Second.

CHAIR EARP: Discussion?

(No response.)

CHAIR EARP: Hearing none, I'd like to call for a roll call. Vice Chair?

VICE CHAIR SILVERMAN: Aye. Yes.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: No.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: No.

CHAIR EARP: Commissioner Barker?

COMMISSIONER BARKER: Yes.

CHAIR EARP: And I vote yes. The item is approved: three votes in favor, two against.

Prior to closing the meeting today, I would like to again acknowledge my respect and appreciation for the Vice Chair and also give her a couple of minutes in her last meeting for reflections, comments.

VICE CHAIR SILVERMAN: I'm not prepared for reflections today, Madam Chair.

CHAIR EARP: Especially not today.

VICE CHAIR SILVERMAN: Especially, yes, after that, but I do want to acknowledge Elizabeth Bille, who's been my special assistant for the last two years and prior to that was ‑‑ I hope this doesn't insult anybody ‑‑ the best legal intern I've ever had.

This is Elizabeth's last day at the Commission. And she's done a fantastic job. And I think anybody that's dealt with her has found her to be bright and delightful to deal with. And she will very much be missed. Elizabeth is going on to the Society for Human Resource Management. And she's going to be their Assistant General Counsel.

So, Elizabeth, we all love you and will miss you greatly.

(Applause.)

CHAIR EARP: Is there a motion to adjourn the meeting?

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there a second?

COMMISSIONER BARKER: Second.

CHAIR EARP: All in favor?

ALL: Aye.

CHAIR EARP: Thank you.

(Whereupon, the foregoing matter was concluded at 3:29 p.m.)COMMISSIONER ISHIMARU: That was kept in reserve?

MR. INZEO: You can call it kept in reserve or carried over from one year to the next. The amount tends to be now between 1 and $2 million that's kept in reserve or carried over so that we can, number one, cover the expenses that are already lined up to be incurred; for instance, the cost of the location for next year's EXCEL conference.

You know, there's a contract in place, but it's not all ‑‑ you know, we don't pay all in advance, but then also to be able to fund the various projects at the beginning of the year, before a lot of the reimbursements come in.

You know, the money that's carried over is made available to offices so that they can pay for things in preparation of the events that they will be putting on.

COMMISSIONER ISHIMARU: Do we track how much time our employees spend doing logistical or administrative work for the various Revolving Fund activities separate and apart from any programmatic activities that they may be doing?

MR. INZEO: We track total time.

COMMISSIONER ISHIMARU: Total time. So if a person, be it a clerical person or the district director, is doing logistical work or clerical work for a Revolving Fund event, that is just captured as Revolving Fund time? That is charged back to the agency?

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: It's not separated between substantive or programmatic work dealing with the substance of the presentations? It's all lumped together?

MR. INZEO: It is.

COMMISSIONER ISHIMARU: Has there ever been any thought to separating those so we could better see how much of our time is being spent paying for the substance of these events versus the logistical or clerical parts of it?

MR. INZEO: We haven't given consideration to that. We've made a number of adjustments, for instance, by using project codes so we know which of the Revolving Fund events a person's time is going toward but not trying to divide it up between substantive and administrative.

COMMISSIONER ISHIMARU: I see. Well, let me say that I am troubled by the fact made clear through our briefings on this where I thought that when our district offices were hosting these events and are required to host them under the management plans put in place by the management of this agency, that they were getting reimbursed for doing this work so that it would not be on their backs that we were hosting Revolving Fund events.

But it appears to turn out that for all the work that is being done on these events, which takes away from the other priorities we say we have, be it Systemic, be it E‑RACE, be it Youth@Work, be it LEAD, that ‑‑

COMMISSIONER GRIFFIN: Be it backlog.

COMMISSIONER ISHIMARU: ‑‑ be it backlog, that by doing Revolving Fund work, that takes away from the priorities, and they're not reimbursed to do this at all from the Revolving Fund. It comes back to the general pot at the Commission. And I think for my colleagues on the Commission this should be a troubling event that we say we want to have all these things; yet, we're not willing to fund it. And here's a chance where we can fund it. Here is a vehicle that Congress gave us to raise money to do technical assistance and outreach and to save our other monies to do our other things, and we're not doing that. And I think that this is a huge problem. And I think the fact that the Inspector General is auditing this program, I think we should wait to vote on this until we know what the Inspector General comes back with.

This is very, very troubling, and I appreciate getting briefed on it. And I appreciate the discussions we've had. But I am very troubled and will vote no.

CHAIR EARP: Any further discussion?

COMMISSIONER BARKER: Madam Chair, if I may say one thing? This particular item is something that I think all of the Commissioners have spent some time on. And I think it's fair to say that we've all had questions. And we've spent some time with Nick and with John getting questions answered.

I am going to vote to approve this item. I did have some questions. I did have some concerns, but it's my understanding that staff is aware of those concerns and is going to address those.

MR. INZEO: Yes.

COMMISSIONER ISHIMARU: What might those be, though? Because it sounds like things will go on as they've always been. It would be helpful to know what your concerns are and how they might be addressed.

COMMISSIONER BARKER: Well, you know, my preference, Stuart, is to not address my concerns in an open forum, quite honestly. I've discussed those privately with staff. I've discussed them with some of the Commissioners. And I think, I know that Chris Griffin is aware of my concerns because we've discussed them.

COMMISSIONER ISHIMARU: Well, I don't want to force you to do something ‑‑

COMMISSIONER BARKER: Yes.

COMMISSIONER ISHIMARU: ‑‑ you aren't comfortable with, but I think that there's a benefit to doing things in public.

COMMISSIONER BARKER: Well, I agree with that, but there isn't any additional concern that has not already been expressed by one of the Commissioners today.

I think there are some questions. My understanding is staff is aware of those, is going to address them.

MR. INZEO: Yes.

COMMISSIONER BARKER… and, with that in mind, you know, I have confidence that they'll do that. And I'm going to vote to approve it.

MR. INZEO: Thank you, Commissioner.

COMMISSIONER GRIFFIN: Well, I think, again, we do all share probably very similar concerns about this contract. And, yet, you know, I think there are so many missing pieces and to this whole thing that it makes it troubling. And I don't feel like my concerns were adequately addressed.

The hotel conference planning, come on, at EXCEL, that was terrible, that was terrible. We were in an inaccessible hotel, right? I mean, we were. You know, we shouldn't have been there. It couldn't handle the number of people. I mean, I think, you know, I think we do a lousy job at this piece of it. And I think last year it was the same.

You know, Nick, you by your own admission and Spencer Lewis jumping in and doing the registration last year, I mean, what are we doing? It doesn't make sense.

And so I don't know why we're always in this position where we're not addressing these things through the right vehicle. And the right vehicle is through this contract.

And, yet, we're not going to do it. We're once again going to put it aside. And we may be putting out another contract at what expense?

I never can figure out why we can't do things in a more timely manner and actually do it right. And, yet, you know, we're up against the wall. This has to be extended, blah blah blah.

You know, we have someone new coming on board. We do have some sort of idea how to help there, which we haven't seen. You know, aren't these all pieces of a puzzle that we should actually have put together before we vote on a contract?

You know, I'm sorry. I can't vote for this.

CHAIR EARP: I'd like to bring the discussion to an end. And I would like to acknowledge that I think I have some sense of how my fellow Commissioners feel about this issue. As Commissioner Barker said, we all have some concerns about the Revolving Fund.

When another Commissioner, however, is sitting in the seat that I'm sitting in; it will become perfectly clear how hard the staff works behind the scenes and how much work there is to be done to correct the simplest of problems. From the Commissioners' vantage point, the Chair is always at an advantage, which staff and I know is not necessarily true.

A two‑two Commission deadlocked serves some purposes, but it does not serve EEOC. So any intimation that the opportunity to have a majority and to get some things done would be bypassed is ridiculous because the one thing that the Chair does have to do, no matter who is sitting here, is keep the EEOC running, even if it appears to be running poorly by those who don't sit at this vantage point.

Having said that and having drawn the discussion to a close ‑‑

COMMISSIONER ISHIMARU: Madam Chair, a point of personal ‑‑

CHAIR EARP: ‑‑ I would like ‑‑

COMMISSIONER ISHIMARU: Madam Chair, a point of personal privilege.

CHAIR EARP: You know what, Commissioner Ishimaru? I will not honor ‑‑

COMMISSIONER ISHIMARU: Madam Chair.

CHAIR EARP: I will not honor ‑‑

COMMISSIONER ISHIMARU: Madam Chair.

CHAIR EARP: ‑‑ a point of personal privilege.

COMMISSIONER ISHIMARU: I made a point of personal privilege. And you need to let me explain it under the rules. If you don't want to follow the rules, state it now.

CHAIR EARP: I will not acknowledge your point of privilege.

COMMISSIONER ISHIMARU: So you will not allow me to state my ‑‑

CHAIR EARP: No. I want to call for a vote.

COMMISSIONER ISHIMARU: I move that we vote on my motion, point of personal privilege, so I can make one.

COMMISSIONER BARKER: What is that motion? Your motion for a point of personal privilege? Is that what you're talking about?

COMMISSIONER ISHIMARU: Right. Well, that's what I move for.

CHAIR EARP: You're moving for a point of personal privilege?

COMMISSIONER ISHIMARU: And you have denied it. So I'm moving that we vote on it. And we can vote. And if I lose, we move on. But you've denied it, Madam Chair, which is ‑‑

CHAIR EARP: Legal Counsel? Do we need a tiny break?

COMMISSIONER ISHIMARU: No, no. The Chair has intimated that I have said something. And what I'd like to do is to have a chance to respond to it. She has denied me that chance. So I've raised it as a motion to be voted on.

And if you check Robert's Rules, I believe that I'm entitled to a vote.

MS. WILSON: Could I ask the Legal Counsel to speak into the mike, please?

MR. RUSSELL: I guess I'm just having a question about whether it is a point of personal privilege, a point of information, a point of order. That's what I was trying to get to the bottom of.

COMMISSIONER ISHIMARU: It's a point of personal privilege. That's not limited, to my understanding, to physical needs.

MR. RUSSELL: I think the simple way to do this is just to let him make the motion. And it will either get a second or it won't. And you all can vote on it. And it will be done. It will be dealt with.

CHAIR EARP: Okay.

COMMISSIONER ISHIMARU: So I so move.

COMMISSIONER GRIFFIN: I'll second.

COMMISSIONER BARKER: I'm not clear.

MR. RUSSELL: What is the motion?

COMMISSIONER BARKER: Was it for a point of ‑‑

COMMISSIONER ISHIMARU: No. I was denied by the Chair to make ‑‑

COMMISSIONER BARKER: Right.

COMMISSIONER ISHIMARU: ‑‑ my point of personal privilege. So I'm asking for a vote on it.

COMMISSIONER BARKER: On whether or not you ‑‑

COMMISSIONER ISHIMARU: I can raise it, right, which is subject to a vote of the Commission. And if we vote no, then I won't be allowed to raise it.

COMMISSIONER BARKER: All right.

COMMISSIONER ISHIMARU: If we vote yes, I would be allowed to raise it.

COMMISSIONER BARKER: So is this the way it works, that the Commission as a whole votes on ‑‑

MR. RUSSELL: On the motion.

COMMISSIONER BARKER: ‑‑ whether or not a point of personal privilege will be allowed without knowing what the motion is?

MR. RUSSELL: Well, I think the motion is to allow him the point of personal privilege.

VICE CHAIR SILVERMAN: To talk.

COMMISSIONER ISHIMARU: To state it.

CHAIR EARP: Right.

MR. RUSSELL: Exactly.

COMMISSIONER ISHIMARU: We wouldn't have a discussion now ‑‑

VICE CHAIR SILVERMAN: Not to vote on something but to vote on whether or not he can talk is what we're trying to say here.

MR. RUSSELL: That's right. Right. That's the motion. The motion is to give him a point so he can exercise his right to state what he believes is his right.

COMMISSIONER GRIFFIN: But the Chair has the opportunity to just grant that.

MR. RUSSELL: That's correct.

COMMISSIONER GRIFFIN: All right.

COMMISSIONER ISHIMARU: But the Chair has denied it, which is her right to do.

MR. RUSSELL: Now you're voting.

COMMISSIONER ISHIMARU: But then it would be subject to a vote.

MR. RUSSELL: Now you're voting on it. Right.

CHAIR EARP: Say what you have to say, Commissioner Ishimaru, so that we can get out of here. I would just appreciate that.

COMMISSIONER ISHIMARU: Well, Madam Chair, you know, you think it's funny that you call a meeting when not all members of the Commission can be here. You ‑‑

CHAIR EARP: There wasn't a single day in August that we ‑‑

COMMISSIONER ISHIMARU: Madam Chair.

CHAIR EARP: ‑‑ would all have been here.

COMMISSIONER ISHIMARU: Well, Madam Chair, then the whole question of when we could have had this meeting, this meeting could have happened at any point in time.

Pardon me? For crying out loud? Well, Madam Chair, this is the fact that you haven't called an actual meeting on any substantive matter for more than a year is on your watch.

The question that you say ‑‑ and I'll go to my point of personal privilege ‑‑ the question of watching it from a Commissioner's chair is that time and time again, that members of this Commission who are not the Chair watch the Chair run the agency. And there are times when it can be run well. And there are times that it can't be run well.

And I guess I am tired of watching consistently people saying, "We can do better. We should try to do better" and that "Trust us, we will do better" when, in fact, there's been a track record under your tenure of not doing better.

And to intimate that you're doing the best you can and that the rest of us really don't understand I think is not well‑founded.

CHAIR EARP: Where do we go from here, Legal Counsel?

MR. RUSSELL: I assume that the Commissioner has exercised his right to his satisfaction and now you want to proceed.

CHAIR EARP: May I call for a vote?

MR. RUSSELL: I think you need a motion. I don't know that you have had a motion. I don't think you have had a motion to vote on the subject matter.

CHAIR EARP: All right. I was trying to bring the discussion to an end with some conclusory statements. At this point I'd like to call for a motion to approve the obligation of funds for competitive Revolving Fund online registration and payment collection system contract and the sole source extension of the current contract for a transition period.

COMMISSIONER BARKER: So moved.

CHAIR EARP: Is there a second?

VICE CHAIR SILVERMAN: Second.

CHAIR EARP: Discussion?

(No response.)

CHAIR EARP: Hearing none, I'd like to call for a roll call. Vice Chair?

VICE CHAIR SILVERMAN: Aye. Yes.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: No.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: No.

CHAIR EARP: Commissioner Barker?

COMMISSIONER BARKER: Yes.

CHAIR EARP: And I vote yes. The item is approved: three votes in favor, two against.

Prior to closing the meeting today, I would like to again acknowledge my respect and appreciation for the Vice Chair and also give her a couple of minutes in her last meeting for reflections, comments.

VICE CHAIR SILVERMAN: I'm not prepared for reflections today, Madam Chair.

CHAIR EARP: Especially not today.

VICE CHAIR SILVERMAN: Especially, yes, after that, but I do want to acknowledge Elizabeth Bille, who's been my special assistant for the last two years and prior to that was ‑‑ I hope this doesn't insult anybody ‑‑ the best legal intern I've ever had.

This is Elizabeth's last day at the Commission. And she's done a fantastic job. And I think anybody that's dealt with her has found her to be bright and delightful to deal with. And she will very much be missed. Elizabeth is going on to the Society for Human Resource Management. And she's going to be their Assistant General Counsel.

So, Elizabeth, we all love you and will miss you greatly.

(Applause.)

CHAIR EARP: Is there a motion to adjourn the meeting?

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there a second?

COMMISSIONER BARKER: Second.

CHAIR EARP: All in favor?

ALL: Aye.

CHAIR EARP: Thank you.

(Whereupon, the foregoing matter was concluded at 3:29 p.m.)

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