MARCH 19, 1997


WILLIAM M. THOMAS, California, Chairman


JOHN L. MICA, Florida

SAM GEJDENSON, Connecticut
STENY H. HOYER, Maryland

STACY CARLSON, Staff Director
ROBERT BASKIN, Minority Staff Director


Opening statement: Hon. William. M. Thomas, Chairman
Statement: Glen D. Nager

The committee met, pursuant to call, at 3:20 p.m., in Room 1310, Longworth House Office Building, Hon. William M. Thomas [chairman of the committee] presiding.

Present: Representatives Thomas, Ehlers, Ney, Granger, Gejdenson, and Kilpatrick.

Staff Present: Dan Crowley, counsel; Dan Bucci, staff assistant; Nick Parks, staff assistant; Julie Benevedes, staff assistant; and Kerrie Freeborn, staff assistant.

The Chairman. I will tell our witnesses that I was just handed a note on which the vote on the Owens amendment is expected in 5 minutes. So there were some folks who were conserving their energy, hoping we would not get started. However, as you might know, 5 minutes is not always 5 minutes. See, it is less than 5. I will be back.


The Chairman. This committee will come to order. Members will be returning to the committee, and since this is an oversight committee, we can kind of begin, because if we do not begin, we will never end.

It is an oversight committee, and it is the first oversight hearing that we have had since the implementation of the Congressional Accountability Act. So I think it is important, and I was pleased that we were able to work out a mutually agreeable time so that we can, first of all, share with each other concerns, experiences, and, secondly, go through perhaps some questions and answers so that we can better understand what it is that you are doing, notwithstanding the fact we passed a law and we understood what we thought you were going to be doing, and your understanding of what it is that you thought you were going to be doing.

We will be doing this under the obvious implied congressional oversight power in the Constitution that, if it hadn't given us the power, we couldn't oversee what we did.

Secondly, and more specifically, under the act, there is a specific provision for oversight. I believe it is in section 301 of Public Law 104-1, 104th Congress. And although some of the press attention was generated after we agreed on the hearing, whenever anybody is in the paper as often as you folks are and we are, it is, I think, useful to just talk on the record so that people have a better understanding of what is occurring. It is not that the newspaper stories are not completely accurate and fully dispositive of whatever it is that they are discussing, but sometimes we might be able to flush out the public's opinion of what is or is not happening.

So on that basis, I want to thank you for being with us. And in lieu of any kind of an opening statement -- although clearly the record will be open for any Member who wishes to submit a written statement; without objection, that will occur -- I would much rather simply begin the process of oversight asking some questions and indicate to you we have a number of things to cover. Hopefully we will be able to cover them in the time frame we have available. If we do not, I might be constrained to try to figure out when we can get back together another time.

But to the degree our answers are not as complete or lengthy maybe as they need to be, we are not going to be able to get as many questions in. I would very much like, unless you would like to make an opening statement -- Mr. Nager, you certainly may.


Mr. Nager. Thank you, Mr. Thomas. I would like to make a short opening statement if I might. It is brief. And if I follow my tendency to read faster than I can actually talk, that will be even quicker.

The Chairman. I will tell the gentleman, any written statement he may have will be made part of the record, without objection, and he may proceed in any way he sees fit.

Mr. Nager. Thank you.

I appreciate the chairman working with us to find a mutually convenient date. As you know, I was in trial this February, and we very much appreciate the opportunity to testify before this committee on the implementation of the Congressional Accountability Act in its first 2 years.

As you know, with me is Ricky Silberman, the executive director of the Office of Compliance. And I would also like to introduce two of our board members who are here today: Mr. Lorber, and Ms. Virginia Seitz is here with us as well as the statutory appointees who are our colleagues in this important statutory endeavor; Mr. Jim Stephens, who is the deputy executive director for the House; Pam Talkin, who is deputy executive director for the Senate; and Dennis Duffy, our general counsel.

Mr. Chairman, the Congressional Accountability Act was the first piece of legislation passed by the 104th Congress, and it rests on the notion that our liberties as citizens are more secure when our lawmakers must live under the same laws that the rest of us do.

At the outset as part of this dialogue, I think it is important to define the law to which the Congressional Accountability Act actually subjects the legislative branch and the Office of Compliance. CAA, on its face, is more than just the 11 Federal labor and employment laws made partially applicable through the CAA, it is also the applicable portions of the regulatory regime embodied in the substantive regulations of the executive branch. It is the procedural rules that the executive director promulgates to govern the operations of the office. And equally important, under section 30 of the CAA, it is the principles and procedures of the Administrative Procedure Act as well as the principles of due process and administrative regularity that will guide the courts in reviewing the propriety of the decisions and actions by the Office of Compliance.

In short, under the CAA, the legislative branch, including the Office of Compliance, is subject to not only the same laws as are applicable to the citizens of this country but also to the same legal process. And it is important, Mr. Chairman, for me to describe our understanding as part of this dialogue of the unique institution that Congress and the President created in the Congressional Accountability Act to implement these laws and that legal process.

In order to make the Congressional Accountability Act publicly credible and also constitutionally valid but beyond the power of the executive branch to enforce, the CAA carefully made the Office of Compliance independent and it divided the powers of that office among distinct authorities. By doing so, it echoes another principle of American constitutional democracy, that our liberties are more secure when government is organized and it is constrained by a separation of executive, legislative, and judicial powers.

The office has a board of directors, and the board of directors is responsible for promulgating regulations, for adjudicating cases initiated by petitioning parties, and for providing reports to Congress on possible revisions to the law.

The members of the board under the statute are appointed for limited and finite terms, may be removed only for quite limited reasons, are financially independent of Congress by virtue of their part-time service, and are prohibited from lobbying or from recently having held an incompatible office in the legislative branch.

Most importantly, under the Congressional Accountability Act, the board must adhere in its decision-making to the strictures of a formal legal process, and those decisions are subject to judicial review, as any administrative agency's actions would be.

Each of these requirements works with the others to ensure that the board's authority is exercised consistent with the requirements of law and independent of the demands of the regulated community. Here the employing offices, the employees of the legislative branch, and unions representing employees of the legislative branch as well as under the public accommodation provisions that were made applicable qualify individuals who might have a disability.

The statutory separation of powers that I am describing exists not only between the Office of Compliance and the rest of the legislative branch, it also applies to the Office of Compliance itself because the statute diffuses and divides authority within the Office of Compliance.

The executive director is the chief operating officer and under the statute has all residual authority. The executive director is responsible for establishing the procedures of the office as well as for the appointment, supervision, and removal of office employees. She is also responsible for an alternative dispute resolution system. She also, to protect the public fisc, is statutorily mandated to review and approve all settlements.

In short, whereas the board has most of the regulatory and adjudicatory responsibilities under the statute, the CAA makes the executive director responsible for the bulk of the functions of the House.

Each House has a deputy executive director assigned to it to serve as a liaison. The liaison function of the deputy executive directors is essential to the independence and effective functioning of the office, since

general principles of administrative law as well as the board's own ex-parte rules preclude board members from inappropriate interaction with and undue influence by the regulated community.

Finally, there is a general counsel, who has prosecutorial authority under a limited number of statutes against separating the prosecutorial function of the office from the adjudicatory and rulemaking function of the office.

The board has endeavored to fulfill all of its responsibilities, Mr. Chairman, and, with not much time and quite strict deadlines, we have adopted all of the substantive regulations required by the CAA. We have timely moved forward on the neutral and evenhanded investigation and adjudication of cases brought to it by petitioning parties, including setting the first union representation elections held under section 220 of the CAA.

Finally, the staff of the board has completed and forwarded to Congress the two studies that were mandated under sections 102 and 230.

And I would just like to conclude, Mr. Chairman, by saying that, true to the underlying principles of the CAA, the legislative branch is today living under some parts of the same laws that the rest of us live under, and, true to the separation of powers contemplated by the statute, we have endeavored to act neutrally and independently.

There have been judgments that have had to have been made in some instances about what the Congressional Accountability Act means, and there have been disputes about what those judgments should be, and some concerns have been expressed about those judgments. But judgments like these and disputes and concerns like those that have been expressed were to be expected. They arise in any system of law, and they are inevitable in any system of separate powers, and they were especially inevitable under a statute in which the regulated community also is the Congress with its lawmaking powers and its oversight functions.

As history shows, these disputes are part and parcel of our constitutional democratic experience, and what the CAA does is bring them firsthand to the Congress. The CAA was the foundational step of the 104th Congress of making government more responsive and accountable to the people, and it is my judgment in the first 2 years we have made a small step toward doing that.

The executive director can outline for you the activities of the office in the first 2 years.

[The statement of Mr. Nager follows:]

******** INSERT 1-1 ********


The Chairman. I would tell you that that will suffice as the opening remarks because we are going to run out of time. And if you will heed my initial statement that not only will we have to have a second hearing, we may have to have a third hearing if our goal here is to not allow this committee to function as an oversight committee, which, by its very nature, is to ask questions and have you answer them. That is why the Chair decided not have an opening statement and so you might understand why we probably do not want then to have an extended description of what you do because, frankly, that is what this oversight hearing is about.

Mr. Nager. Okay.

The Chairman. You discussed in your opening statement, Mr. Nager, at great length independence, division of powers, and so on. It is no accident that this law was passed in the 104th Congress when there was a new Majority. This legislation was available to the previous Majority at any time in the 40 years they were a Majority. They chose not to exercise it.

So I think from the outset we need to realize that the context in which any questions may be asked are being asked by those who supported -- indeed, voted for and passed and endorsed -- the legislation.

It is inevitable that those who attempt to carry it out may have an understanding of what that law is that sometimes may differ from those who wrote it, argued it, discussed it on the floor, and passed it. And part of our initial concern would be perhaps some disagreements in that area.

You indicated a separation of powers that is important to a fundamental democracy and a degree of independence. Mr. Nager, do you believe that the Office of Compliance draws its powers from Article I, Article II, or Article III of the Constitution?

Mr. Nager. I believe it draws its powers from the Congressional Accountability Act, which was passed by the Congress, acting pursuant to its powers under Article I, and by the President signing it pursuant to his powers under Article II, I believe, if I can remember where the present clause is.

The Chairman. The short answer would have been in section 301, as you pointed out in your discussion, the establishment says: "There is established as an independent office within the legislative branch of the Federal Government, the Office of Compliance." So I think on any flow chart you come under the legislative branch.

Mr. Nager. No doubt of that, Mr. Thomas.

The Chairman. Thank you.

There is a provision in that same section 301 about congressional oversight. My understanding in and reading of alphabetically (i) under "congressional oversight" is that the board shall be subject to oversight, notwithstanding the independent nature of its establishment within the legislative branch. Are you comfortable with that?

Mr. Nager. Absolutely, just like any agency would be subject to congressional oversight.

The Chairman. With an exception, as is noted, with respect to disposition of individual cases.

Mr. Nager. Yes, I agree with you.

The Chairman. And as a matter of fact, it states that this particular committee is one of those.

If we agree that we have the power to carry out general oversight, and my assumption is, you would agree that that general oversight would extend to the board's promulgating rules and regulations commensurate with the statute, would that be an area that we would have oversight over?

Mr. Nager. Yes, I think so, Mr. Chairman. I think you have oversight, I could generally state, with respect to everything under the Congressional Accountability Act except the disposition of individual cases.

The Chairman. Were you aware, then, that this committee made a request of the Office of Compliance to supply us with materials that might allow us to conduct our oversight, such as minutes or votes or any materials that would allow us to understand what went on during the process of rulemaking, that we were denied that material, and the reason was your general counsel cited the confidentiality section under Title IV?

Mr. Nager. When the request came in, I was actually in trial, but I am aware of it, and my understanding is that the three boxes of materials were provided to the committee and that Mr. Stephens, the deputy executive director, has been in communication with your counsel about the documents.

I understand that early this week there was a question about some minutes, and I think Mr. Crowley was told that the kind he asked for, there are no such minutes.

The Chairman. You referred to three boxes?

Mr. Nager. That is what I think. I mean, I did not pack them. And maybe Ms. Silberman should address that since she was responsible.

Ms. Silberman. I believe it was three volumes.

Mr. Nager. Excuse me.

The Chairman. And that is the extent of the materials that you have?

Mr. Nager. Again, I think the question is better answered by Ms. Silberman.

The Chairman. See, my problem is that if, in fact, you do not have minutes and you do not have votes and there is no correspondence, what are we to rely on in terms of what went on in the rulemaking process which produced rules? Is it people's opinions of what went on?

Mr. Nager. I will try to answer your question. Maybe you may have to help me understand the full extent of your question but --

The Chairman. My question is, you agreed we have an oversight capacity.

Mr. Nager. Absolutely.

The Chairman. It extends, for example, to the rulemaking portion of your power. We asked for materials that we thought would be helpful for us to understand how you go about making rules so that the questions we questioned would be responsive to your rulemaking power. We were told, one, we could not have those materials because of the confidentiality provision of Article IV. You have now indicated that we have got some stuff, but the stuff that we asked for you don't have, like minutes.

Mr. Nager. The board did not keep minutes. The board met and discussed the rules.

The Chairman. Was there a transcript of that discussion available?

Mr. Nager. There is no transcript kept. Maybe it would help if I describe the process by which we go about considering these issues.

The Chairman. But I want to understand. There are no minutes. There are no transcripts. Is that what you are saying?

Mr. Nager. Let me make sure to be accurate here. When the board first started meeting in the summer of 1995, there were -- when the board first started meeting in the summer of 1995, I believe we kept minutes of two meetings. Given the part-time nature of the board and the small staff, we abandoned that practice because it was not a useful -- we were using up too much time trying to figure out what the minutes should be rather than addressing matters that the board could meet in the limited time that it had.

The Chairman. So it was more important for you to do stuff than keep a record of what you did?



Mr. Nager. Well, the record of what we did is in the regulations that we promulgate and in the matters that we publish.

Mr. Gejdenson. Would the chairman yield?

The Chairman. Yes, the gentleman from Connecticut.

Mr. Gejdenson. I am sensitive of the desire to keep things from growing and becoming large bureaucracies, but I think even a board in a small town in Connecticut wants to keep some record of the debate in their meetings. Just for due process reasons for people and the ability to review, you don't feel there is any need to have any record of the debate that occurs?

Mr. Nager. I think you made a good point. In fact, we recently, now that we have a solicitor of the board, have tried to start a practice of meetings. You have to remember that when this statute was passed, what the Congress did was, it appointed five board members and we appointed four officers. We had to create an institution out of nothing. So, on many issues, we are still learning as we go, and there are practices that we are adopting as we go as we try to figure out how to do things.

The Chairman. Mr. Chairman, if part of your explanation is that you don't know what you are doing, that you are new to this activity, and that you will do better in the future, we will remember that when we start listening to you tell us we don't know anything about the law, when we make requests, we are wrong, we do not understand the way the statute was written.

I just want you to be reminded of the statement you just made about the way you run your operation. It seems to me you are one member of the board --

Mr. Nager. Mr. Thomas, I think you just misstated my testimony.

The Chairman. Would you like to correct the reason you gave to the gentleman -- correct me in the explanation of the reason you gave the gentleman from Connecticut that you did not have materials, about you were just getting started and you really didn't know what you were doing and you are getting better?

Mr. Nager. What I stated was, we are learning and improving our practices as we go along.

The Chairman. Are you now keeping minutes and records of votes and a transcript of your process of determining rulemaking?

Mr. Nager. We are not keeping a transcript. We are keeping minutes of what we do and records of the votes --

The Chairman. How long have you been keeping these records?

Mr. Nager. I believe we started that in December, the minutes that we are talking about, votes at board meetings.

The Chairman. Have you supplied that to this committee?

Mr. Nager. I don't believe that we have, but we were -- I was not aware that you wanted that.

Mr. Thomas. I thought that was the request that was made, that we wanted the minutes. We stated we wanted the minutes, we wanted the votes, and we wanted the transcripts. You told me you did not keep any. Did I misunderstand your statement this time?

Mr. Nager. My understanding was, the only request for minutes that we received was on our 220(e) deliberations.

The Chairman. Rulemaking is a bit broader than 220(e), or do you believe your rulemaking goes directly to 220(e)?

Mr. Nager. No, not at all.

The Chairman. My question to you was minutes, votes, and transcripts relating to your rulemaking function. That was my statement at the beginning, and I did not alter it, and you answered me, you did not keep minutes on rulemaking.

Mr. Nager. I think what I have said is that we did not begin keeping minutes except for the first two meetings on the board until December.

The Chairman. Have you supplied this committee with those minutes that you began keeping in December?

Mr. Nager. No, we have not. I was not aware that you wanted them, Mr. Thomas.

The Chairman. Is the chairman aware that the committee now wants them?

Mr. Nager. Yes, I am now aware of it.

The Chairman. And will you submit them?

Mr. Nager. If we are not precluded from doing so by section 416(c) of the statute, of course we would.

The Chairman. Well, then we need to pursue whether or not you believe you are precluded from doing it in section 416, which comes under Title IV rather than the oversight function of the House under Title III. Do you believe you are subjected to the confidentiality requirement under 416 on the rulemaking function and the associated documentation supporting the rulemaking?

Mr. Nager. Well, certainly not with respect to all documents supporting the rulemaking, because many of the documents are part of a public record that the board keeps for support of the rulemaking.

With respect to whether or not 416(c) applies to the board's discussions and deliberations on a rulemaking --

The Chairman. Over rulemaking.

Mr. Nager. Yes. Quite frankly, I think it does; but I would want to confer with my colleagues to see whether or not they held the same view.

Mr. Thomas. Mr. Lorber, you have not said anything; and you are a member of the board. You were present at the various meetings. You may or may not have had your comments taken down or your votes recorded, and I assume you have some opinion about what has transpired in terms of our discussion. Do you have any comment to make?

Mr. Lorber. Yes, Mr. Chairman. I think that the notion that rulemaking is somehow privileged is something -- is a notion that I simply do not share. I think that section 416, if one reads it in its totality, refers to the adjudicatory and case intake function of the board and the office, which the act clearly holds sacrosanct.

But with respect to rulemaking and the decision-making process, it had always been my view that those processes, by their very nature, should be public. So at least on this one instance I don't share that view that 416(c) would hold the rulemaking function separate from the purview of the Congress. Indeed, other sections indicate that judicial review of that rulemaking would require such information as the board had to be made available. So I think that if one reads that section, Title IV, in its totality, it seems to me it leaves the rulemaking function subject to review.

The Chairman. Well, the Chair has tried to separate very clearly the oversight function and specify very clearly that there was an exception to the oversight function of the Congress, the House, and this committee in the disposition of individual cases. Indeed, Title IV is the administrative and judicial dispute resolution procedure, and the dispository section deals with counseling, mediation, hearings and deliberations, releases of records for judicial action, access to those records by committees of Congress. So there is no question, nor are we asking for those kinds of communications, decisions, or other items that the board may be involved in.

My concern is in the oversight function clearly under 301 dealing with rulemaking. And so is the chairman arguing that he would not be able to submit to this committee the communication, voting, other information surrounding the rulemaking process by the board?

Mr. Nager. My only qualification, Mr. Thomas, is with respect to deliberations between board members, which I am not aware are ever made public; and, in this instance, we have a specific statute which does not limit itself, as I think you are suggesting, to cases. But this is an issue which has not been discussed with my colleagues. I have not even had the benefit of having a board meeting with Mr. Lorber about it, and I don't speak for the whole board.

The Chairman. Has the general counsel issued any kind of a ruling needed or a piece of paper on this?

Mr. Nager. Well, the general counsel gives us advice, but I don't know that the question has been put to him in the exact way that you are framing it. He has -- let me put it this way, because I don't want to have my attorney's advice be the issue here. With the benefit of the general counsel's advice, it is my understanding that 416(c) applies beyond.

Let me also say, Mr. Thomas --

The Chairman. Mr. Chairman, I understand that. But I have here a document sent from Jim Stephens. Who is Jim Stephens?

Mr. Nager. He is a deputy executive director for the House.

The Chairman. It says here, "Attached is a revised organizational chart as to your question regarding the availability of the board's minutes of its deliberations of the 220(e) rulemaking. The general counsel advises that section 416 of the CAA requires that the board maintain the confidentiality of those deliberations."

You were not aware of this?

Mr. Nager. I was aware of it today, a few hours ago.

Mr. Thomas. So there has been a statement by the general counsel as to the confidentiality citing section 416?

Mr. Nager. I think that the general counsel -- I think I said the general counsel has given us some advice about 416(c). What I tried to say is, I don't know that the specific question, as you are phrasing it, has been put.

The Chairman. We will provide you the CRS analysis of the law and the relationship between 301 and 416. As you might guess, they believe 416 clearly focuses on that narrow area and that 301 clearly allows us to inquire about supportive materials dealing with rulemaking.

Very quickly, in the area of rulemaking, you do realize that the Congress and the House and the Senate acted very quickly on the regulations dealing with -- we refer to them as the 220(d) folk. In addition to that, we attached a provision in which the House felt strongly about the adoption of regulations relating to hearing officers.

It says that the board of directors of the Office of Compliance shall adopt regulations in accordance with section 304 of the Congressional Accountability Act to implement the requirement that the board refer any matter under section 220(c)(1) of such act, which relates to employing officers and covered employees of the House of Representatives, to a hearing officer.

That was a bipartisan vote of the House, vote of the Senate in the approving of the regulations otherwise. Has the board done that?



Mr. Nager. I think the board believes that it has construed the statute in the best way that it can. I think the board has --

The Chairman. My question was, have you done that?

Mr. Nager. No.

The Chairman. No. The board shall, under the law, by a vote of the Congress, carry out the act.

Mr. Nager. I am sorry, Mr. Thomas, a resolution of the House is not a law.

The Chairman. Thank you.

One final question. In terms of another rulemaking area that you have dealt with, the 220(e) rules, in which you met, do you have a record of the deliberations and the vote of that process of making that rule?

Mr. Nager. Yes, I, along with Mr. Adler and Ms. Seitz, wrote a 43-page opinion publishing our reasoning.

The Chairman. Not the opinion, the communications and the discussion of the board reaching the rules that you established.

Mr. Nager. To my knowledge, there are no opinions of minutes that have.

The Chairman. No minutes. Already you published them and under the law there is a 30-day comment period. Did you receive comments on those regulations, proposed regulations?

Mr. Nager. Yes, we did.

The Chairman. Both sides for and against?

Mr. Nager. I believe so, but it has been a long time since have I looked at that.

The Chairman. Does anyone who supplies you with supportive information know who it was that was for and who it was that was against?

Mr. Nager. I am sure that information is available, yes.

The Chairman. If you do not have any minutes or you do not have a record of who submitted information, I have here a Roll Call article, "Behind Closed Doors Compliance Boards Split," July 8, 1996. Absent any serious correction, I happen to know the reporter and she is quite a good one, Juliet Eilperin. She indicates that there were a number of folk who wrote under the comment period concerns about it.

I happen to know that I submitted material. I believe the Secretary of the Senate submitted material. I believe the Inspector General submitted material concerned about the regulations. And according to her article, there was only one submission in favor. It came from, according to her article, last paragraph, the AFL-CIO's general counsel praising the compliance boards' position and urging it to move expeditiously. Absent any other information, do you believe that that is accurate?

Mr. Nager. The whole article?

The Chairman. No, the statement that there was one comment in support?

Mr. Nager. I think -- at that time I don't think we had issued regulations, but I think --

The Chairman. It is the comment period.

Mr. Nager. Yeah, if the comment period -- if I can restate, I think I can agree with you there was one comment by the AFL-CIO arguing that there should not be any exclusions, and there were a number of comments from your committee, as well as others. I think yours came later, but there are lots of comments asking for lots of exclusions. No doubt about it.

The Chairman. As a matter of fact, you did not make any changes.

Mr. Nager. I think we did make at least one significant change in, I believe it was this committee, although, again, my memory may be failing me here. This committee objected to a proposed regulation that would have reserved to the board the right to make 220(e) decisions on a case-by-case basis, and we withdrew that proposed regulation in the final regulations.

The Chairman. And you do not have any record of that or communique or any written materials that would allow us to understand the deliberations that went on?

Mr. Nager. I think that was the reason why we wrote such extensive preambles both by the Majority and why Mr. Lorber chose to publish his dissenting views along with Mr. Hunter.

The Chairman. And in the article, Ms. Silberman, this is apparently a quote from you and you can react to it, because I want to make sure you have an opportunity. On the bottom on the second page, first column, "Rulemaking proceeded no differently than any of the others," a quote from you which may or may not be accurate, "What we have done is drawn on the expertise of our board and our statutory appointees."

Is that relatively the quote?

Ms. Silberman. Yes, I would think this is relatively accurate.

The Chairman. And so notwithstanding the comment period where we get to say what we think about the proposed rules, you primarily drew on the expertise of your board and your statutory appointees?

Ms. Silberman. Well, no, I did not mean that comment to be exclusive, Mr. Chairman. There is an extensive period in which the comments are taken into account and discussed on the part of the board, and those are what we always thought were the --

Mr. Thomas. I understand. What we established was those that were in favor of what you did was one group, AFL-CIO, and the people that were opposed were key people from the House and the Senate, the Inspector General and perhaps others. We don't know for sure who else may have commented on the structure.

But if we are relying in support of your position on basically making no changes, the expertise of the board and the statutory appointees, what we are dealing with in 220(e), if there is someone somewhere who does not realize it is basically the employees in the legislative area and perhaps the most sensitive, for example, offices referred to under the law are the personal office of any Member of the House of Representatives or of any Senator, a standing select, special, permanent, temporary or other committee, et cetera, et cetera.

I mean, let's just start with A, the personal members of any Member of the House of Representatives or any Senator. Are there any board members or statutory appointees who were on the staff of a Member of the House in the 104th Congress?

Ms. Silberman. No, we would not have the -- no one would have been eligible to have been appointed.

The Chairman. 103rd Congress?

Ms. Silberman. I don't think they would have been eligible to have been appointed.

The Chairman. 102nd Congress?

Mr. Nager. I think the statute precluded people like that from being in those positions.

The Chairman. So we are relying on the expertise of our board and the statutory appointees who, by the statute, could never have participated in that particular position to understand how the office operates firsthand?

Mr. Nager. You have to understand we had extensive comments from your committee.

The Chairman. No, they were in opposition to what you were doing in many particulars. You went ahead and did it anyway. The rationale for doing that is the rulemaking proceeded no differently than any of the others. What we have done is drawn on the expertise of our board and our statutory appointees.

Ms. Silberman. Mr. Chairman, I had no intention with that comment in saying exclusively. I meant that that was the way that we read the legislation to require us to use, of course, that expertise, but we also, in the person of the deputies to the House and the deputies to the Senate, have had extensive comments. We also have statutory appointees experience. Now, I never meant it to be exclusive, Mr. Chairman.

Mr. Thomas. The deputy executive directors, did they ever -- were they ever, the personal office, ever any Member of the House?

Ms. Silberman. Yes.

The Chairman. Or of the Senate?

Ms. Silberman. Certainly of the House, and I was of the Senate.

The Chairman. When?

Ms. Silberman. In the Senate? In 1978 and 1979.

The Chairman. So the expertise that was drawn on was the understanding and knowledge of the working relationships in an office 20 years ago?

Ms. Silberman. That certainly formed our opinions, Mr. Chairman. I should not speak for the board, because I wasn't a decision-maker.

The Chairman. Well, we have a preamble to the proposed section 220(e) which states, quote, "Over the last 6 months the board has received extensive recommendations from the Executive Director, Ms. Silberman; the Deputy Executive Director of the House, Mr. Stephens; in the Senate, Miss Talkin. Recommendations were based upon the statutory appointees, only legislative branch experiences, their substantial knowledge of these laws, their appropriate discussions with involved parties, and those knowledgeable about job duties and responsibilities in section 220(e) offices and their own independent investigation of the pertinent factual and legal issues."

It seems to me that those of us who were engaged in the process, who provided extensive specific suggestions for options could have been a part of an ongoing open discussion, a participation which would have produced, by this time, a 220(e) provision relying as substantially as you have on a relatively narrow group of folk whose experience was

last experienced more than 20 years ago is probably not as substantial a basis for issuing 220(e) regulations as most of the members of this committee would appreciate.

My concern is, since we have no record of the deliberations in the committee, if Mr. Lorber or the Chairman could assist me in determining whether or not that was discussed, that maybe we don't have as solid a basis based upon the comments of those people that were in office and who clearly are for the law because they passed it and want it to work.

Mr. Nager. Well, I will let Mr. Lorber say his piece.

Mr. Lorber. Well, as we indicated, and speaking for myself and Member Hunter, that was our main concern. It seemed to us as the process went along that we were simply guessing.

Insofar as the act required the board take special cognizance and make special rulemaking of constitutional or real or apparent conflicts of interest, that is relatively unplowed ground; and it was our concern, as we expressed in the dissent, that we were acting narrowly, blindly.

Frankly, I will say at one meeting I recall saying clearly we don't know what we are talking about. We don't know what it is we are addressing. There are relationships between Members and their staff, committees and its staff which require special examination. That, in fact, was the basis for the dissent, that we were acting blindly and we did not fulfill what we believe was the intent of the Congress, as expressed in the legislative history of that act.

And, indeed, in previous attempts by previous Congresses that we know what we are doing and the assurances given by Senator Glenn and Senator Grassley, their colleagues, would conduct special rulemaking, would examine the relationships between itself, staffs and Members would look to see if there should be nonaffiliated unions.

All of those issues, it seemed to us, were present throughout; and we simply did not address them, at least to the satisfaction that I would have as somebody that is supposed to vote to promulgate this.

Mr. Nager. May I comment, Mr. Thomas?

The Chairman. Let me say this, then, obviously you certainly may, that according to this article, the 220(e) regulations were adopted by the board by a 3-2 vote. Is that accurate? We have a record that lets us know that?

Ms. Silberman. Yes.

Mr. Nager. I would say, Mr. Thomas, the board followed the exact procedures specified by section 304(b) of the statute doing advanced notice of proposed rulemaking, receiving comment, evaluating them, and then published for all to criticize our reasons for addressing each option that this committee and any other commentator brought forward. And we discussed them at length, and if there was any additional information that we missed, I am sure this committee would have put it before us either before we made our decision or in a section 304(f) petition for additional rulemaking.

For all of the questions that you are raising here, where is the flaw in the regulations? Remember, we had a very narrow project. Is it necessary to entirely exclude an employee from coverage in order to address a real or apparent conflict of interest or a constitutional responsibility? And I could not find it, Mr. Adler could not find it, and Mrs. Seitz could not find it, and it was never presented to us.



The Chairman. My question would be then, in the process of promulgating these particular regulations, do you have any -- you don't have any information obviously that you can provide the committee. Do you remember, was there a discussion of the pieces? How did it get put together? How did 220(e) come about?

Mr. Nager. How did the section of the statute come about or our regulations?

The Chairman. No, your regulations. I know how the statute came about. There is a clear transcript of what occurred that I can produce for you, which is public information, about how it came about in the legislative process.

What I am trying to find out, since have you none of that, is how you wound up producing the regulations. I am asking you, how did they come about?

Mr. Nager. Yes, we have a very clear record of how our regulations came about.

The Chairman. Where did the 220(e) regulations come from?

Mr. Nager. From the 43-page explanation that is published in the Congressional Record signed by me.

The Chairman. No, that is not my question. Where did they come from? That is an explanation of what they are.

Mr. Nager. And the reasoning behind them.

The Chairman. Mr. Lorber, were you part of a drafting task force of the board to write the 220(e) regulations?

Mr. Lorber. No.

The Chairman. Mr. Nager, where did they come from?

Mr. Nager. I think I just stated it.

The Chairman. No, I will try it again. Did somebody write them?

Mr. Nager. Yes.

The Chairman. Who wrote them?

Mr. Nager. They were drafted for us by the deputy executive director and the executive director and presented to the board, debated by the board, and then adopted by the board.

The Chairman. Was there board participation in the writing of the regulations?

Mr. Nager. The board -- yes, the board reviewed them, offered comments on them.

The Chairman. No, not reviewed. Was there participation in the writing of the regulations by the board?

Mr. Nager. Well, we may be engaging in semantics here.

The first drafts of documents, indeed under the statute, were required to receive recommendation from the deputy executive director. So that is what we start with.

The Chairman. Was there any active drafting participation by any members of the board?

Mr. Nager. I certainly believe there was. Almost every regulation --

Mr. Thomas. Mr. Lorber indicated he was not a part of that.

Mr. Nager. Well, Mr. Lorber has to speak for himself. It was my belief that Mr. Lorber was fully involved. He disagreed with the decision.

The Chairman. Were you involved with the actual initial writing of the draft?

Mr. Nager. The initial? No, I was not with the initial.

The Chairman. Was any member of the board involved with the initial writing of the draft?

Mr. Nager. No, because the statute says that the board doesn't start, the board gets substantive recommendation from the deputy executive director.

The Chairman. That is all I want to know.

The gentleman from Connecticut.

Mr. Gejdenson. Thank you.

Let me ask a couple of hopefully short questions. One, on the issue of the police union, with about a thousand people voting, you do not think it made sense to provide additional sites on Capitol Hill or stretch the time a little to make it easier to vote? You felt that was an unreasonable request or one not necessary to respond to?

Mr. Nager. Mr. Gejdenson -- I hope I am pronouncing it correctly.

Mr. Gejdenson. You did fine.

Mr. Nager. Thank you. That is a difficult question for me to respond to. Because this is an ongoing matter and questions about challenging the outcome of the election and whether or not the decision as to where to conduct the vote that could come before me, and I would have to vote whether or not to affirm the outcome of the election or order that it be reconducted. And I respectfully suggest that it would be inappropriate for me to express an opinion about that at this time.

Mr. Gejdenson. Let me ask about the process then. Did the board decide or just a staffer of the board decide on not extending the sites for the election process?

Mr. Nager. Under our regulations, the executive director or designee is assigned responsibility for making those decisions, and then those decisions can be challenged by either the employing office or union or intervener, and those challenges will be considered by the board.

Mr. Gejdenson. And when the executive director makes a decision, is it part of the process that she consult with the board or she does that on her own?

Mr. Nager. Under the regulations, that decision will be made by the executive director or her designee and is either unrevealable under the regulations or is considered in the review process pursuant to the challenges.

Mr. Gejdenson. So the only time that would get reviewed by the board is if there is a challenge in the outcome of the election?

Mr. Nager. That is correct.

Mr. Gejdenson. And is it appropriate for Members of Congress to ask then the executive director to expand the -- whether you agree or not, that is not an inappropriate action by Congress?

Mr. Nager. Absolutely not.

Mr. Gejdenson. And then the other issue I guess from my perspective is, you know, without looking at just the details of the legislation, which is obviously important, my sense, at least in the public and in the Congress, is that what we are trying to do is set up a situation where we would live like the rest of the world lives. And so do you see yourself in a way like the NLRB but maybe with some different guidelines, but that kind of role?

Mr. Nager. Yes, or the agency that everyone likes to beat up on.

Mr. Gejdenson. But in the case of the NLRB, the relationship with Congress is a little different in that they are not reviewing Congress. So when they come to congressional review, it is a different situation on that occasion.

But the NLRB -- in dealing with an issue like, for instance, you know, if the AAs or, you know, some chief operating officer of a unit was exempt from the bargaining unit, the NLRB would know company by company -- would it not make every company come in and say you have to -- they do?

Mr. Nager. Yes.

Mr. Gejdenson. So in every company that you know unions were set up, they have to go through a public hearing on every staff person?

Mr. Nager. Let me see if I can answer that just for -- I will use the NLRA to try to use it in that. Remember, it is the FLRA which is really the relevant analogue here, because Congress did not subject it to the private sector labor law. But what typically happens is the administrative official from the agency will get together with the union and the employing office and attempt to get stipulated as many positions as possible, and indeed --

Mr. Gejdenson. And is that a public hearing?

Mr. Nager. Well, eventually also an investigatory hearing, but a public hearing about disputed issues.

Mr. Gejdenson. Sometimes there is a process at the beginning where you can have a discussion that is not public, I guess. Is that right?

Mr. Nager. I would have to check the regulations on that. I think the answer is that it is not done.

Mr. Gejdenson. I don't know what the answer is either. We went around telling the whole world we want to be treated like everybody else. Now we ought to be treated like everybody else. So whether we like it or not --

Mr. Nager. Ms. Talkin, who was a member of the Federal Labor Relations Authority and is an expert in every sense of the word on this subject, says that those initial meetings are not confidential but they are usually not done in a public forum. Eventually, for disputed issues, that is done in a public proceeding.

Mr. Gejdenson. So that is what we anticipate happening here? I mean, are we going to have an opportunity to sit down with whoever is trying to organize employees on the Hill? Will that be office-by-office votes, or will it be the entire Hill -- you know, personal staff will vote?

Mr. Nager. That has already been done in the case of the Capitol Police.

Mr. Gejdenson. Right. They are going off by themselves.

Mr. Nager. And if the Congress were to choose to subject itself in the legislative political offices to this section of the statute, then the employer would be the employing office and it would be done presumably on an employing office basis, although I have not even considered the question of whether or not you can have a multi-employer bargaining unit as sometimes happens in the private sector.

Mr. Gejdenson. And at the Federal level. So you are saying that the real place we ought to look for guidance on how this ought to work at least is the board that deals with Federal employees outside the legislative branch.

Mr. Nager. Right.

Mr. Gejdenson. And that is where you are looking for guidance as well.

Mr. Nager. That is where we look. And when we adopted our 220(e) regulations, we looked at the regulations that have been adopted, including all of the exclusions that have been included in the Federal sector law, and it was our judgment, based upon the information that was brought to us and the information that we were able to independently acquire, that no additional exclusions were necessary.

Mr. Gejdenson. Thank you.

The Chairman. I thank the gentleman.

In looking at models that you will follow --

Mr. Gejdenson. Mr. Chairman, if I could just ask, since there seems to be some conflict and division here, we should try to take advantage and get as much information out.

Mr. Lorber, do you agree with that basic assessment?

Mr. Lorber. Well, with respect to 220(e) to the political staff on the Hill, what I would simply remind my colleagues is that the act requires this board to do something differently than it does with any other of the functions. It requires that the board conduct a special rulemaking. It requires that the board go beyond the statutory expenditures for managerial, professional or administrative employees which exists now and address threshold issues.

So that where I would differ is the statement that all this law does with respect to political employees on the Hill, which would be the Members' personal staff or the committee staff, is to treat them as we are treating right now the Capitol Police and any of the other employees who are eligible to attempt to become organized who were within the larger congressional establishment.

So there is a difference, I would suggest, between what the act says we had to do because of the unique nature of all your employees, all of whom are at will, who serve essentially as long as you wish them to serve to the extent you control their employment.

So in terms of that, the act recognized the fact that there are differences, just as, I might add, NLRB recognized there are differences in the healthcare industry by taking out the unit-by-unit, employer-by-employer determination and predecided what would be the appropriate units. Because it recognized that to do otherwise would cause a rather chaotic and extended period of time --

Many of you serve at 2-year increments. We are in the seventh or sixth month of the Capitol Police efforts to organize. Were we to do this office by office, Congresses would come and go before the issue would be decided. So it simply seemed, at least to some of us, that there would be a better way to deal with this.

Mr. Nager. May I reply to that, Mr. Gejdenson?

Perhaps it is the fact that I served some of my formative post-law-school years in the Reagan Justice Department, but the statutory interpretation that I learned in the Reagan Justice Department says you look at the language of the statute before you make a conclusion about the statute. And there is nothing, nothing in that statute which says there is anything different about the process by which the 220(e) regulations would be adopted.

The only thing that makes 220(e) different is it sets some criteria that the board is supposed to consider. It poses a special question. And in contrast to all other provisions of the statute where Congress said in the Congressional Accountability Act it does not like the regulations of the board, it will get the executive branch regulations by default, here it reserved to you the decision as to whether or not -- after you get the best determination that we as a board could give you, whether or not you want to go forward, and that is yours, not ours.



The Chairman. In that regard, we passed the 220(d), told you where we wanted to change it, require a hearing officer which, frankly, if you told us, you would not have been in the paper in the way you have been both in terms of divulging the protection procedures we use with the security and with the problems that you currently have; and that, too, in dealing with these particular personnel under 220(e), the law clearly says that the board shall exclude from coverage under this section any covered employees who are employed in offices listed below.

If the board determines that such exclusion is required because of, one, a conflict of interest or appearance of a conflict of interest; or, two, Congress' constitutional responsibilities, what did you do to determine what Congress' constitutional responsibilities are?

Mr. Nager. We considered the comments provided by this committee and other commenters. We read the United States Constitution. We -- at least I read some publicly available materials in my law library about the organization of the Congress and its responsibilities.

The Chairman. My concern of course would be, based upon personal knowledge of more than 20 years ago and the other expertise that you had about the working relationship, you mentioned that you were in the Reagan White House and that might give you an example of the close working relationship between key elected personnel and their closest advisors and supporters, which might be somewhat analogous to the relationship between a Member of Congress and his staff.

When you were looking at the way in which labor law applies to the executive branch, did you find any guidance in the way in which the President and the White House is required to allow employees to unionize?

Mr. Nager. No. We found guidance in the fact that Schedule C employees --

The Chairman. No. My question was the personnel at the White House. In working with the President, what guidance do we have there about the way in which they can bargain collectively and unionize?

Mr. Nager. I don't think there is any guidance that one can get from that that helps to answer the question as to whether or not Congress --

The Chairman. Is there a law that applies to them?

Mr. Nager. I think you actually recently passed a law.

The Chairman. On the unionization of the White House staff?

Mr. Nager. I believe the Congress recently passed a law on that, but I don't have any particular knowledge.

The Chairman. You would find they are exempt for very good and valid constitutional reasons, which extend to a conflict of interest on constitutional responsibilities. You found none of our arguments persuasive.

Mr. Nager, I do not want to belabor the point; but we have here a series of billing records. Since you have to bill, as you indicated, several times, you folks are beleaguered and part time and it helps you create an independence of one of the board members -- and she is present here, Ms. Seitz -- which cites numerous billed hours and portions of hours to the Office in dealing with the writing, the revising and the review of the 220(e) provisions, including, interestingly enough, revise and transmit guidelines, prepare draft minutes of past meetings, review and edit draft procedural rules.

What we are going to need to do is sit down and review the billable hours that have been submitted in terms of work product that was produced and compare it with your statements about the fact that board members were not involved. Because, frankly, this is quite confusing to me. I don't want to take the committee's time now to sort out your statement and the billable records that were filed and paid. We will work that out.

The gentleman from Ohio.

Mr. Ney. Thank you, Mr. Chairman.

Mr. Nager, as you know, the Office of Compliance is to be required to carry out a program of education for Members of Congress with regard to the laws that apply to them under the Congressional Accountability Act.

What is the position of the Office of Compliance in reviewing the committee's model employment handbook to determine whether it is consistent with the duties and responsibilities of those laws?

Mr. Nager. I think that we have counselors available at the office who, if the committee wanted to discuss its handbook with those counselors, they would be happy to do so.

Mr. Ney. Well, has any type of discussion occurred either formerly or informally up to today on the issue?

Mr. Nager. At one point, actually, I had a conversation with Mr. Crowley about it at a meeting -- must have been in December of 1995, maybe January of 1996. I cannot speak to what conversations anyone on this committee has had with counselors in the Office or with, you know, even the deputy executive director for the House.

Ms. Silberman. Mr. Ney, if I might answer that.

We have answered over 1,800 requests for information, some of which have been from -- I don't know if there is anyone on this committee, but we have had many Representatives from the House, both committees and House offices, discussing the applicability of handbooks, job descriptions, etc. That is one of the functions that we perform.

Mr. Ney. I am going to go directly then, in the interest of time, to a question I want to ask. During the public hearing on the petition relating to the U.S. Capitol Police, was there a disclosure of sensitive security information which forced Capitol Hill Police to change their procedures for security?

Mr. Nager. I don't know the answer to that question.

Ms. Silberman. You will have to ask the Capitol Police.

Mr. Ney. Well, I think that, from what I understand, there was a public hearing; and it was insistent upon the Capitol Hill Police to reveal the type of security situation which we have here in the U.S. Capitol, from what I understand.

Mr. Nager. Let me address what I can about that.

My understanding is that there are a number of issues that were raised by the Capitol Police during that hearing, and they were offered the opportunity to present evidence in camera in a sealed transcript, and they declined to do so. They put a witness on in the public part of the proceeding that they chose to go forward with, and my memory is that that witness blurted something out which we then sealed at the request of -- I think it was the chief of police.

Maybe Ms. Silberman has better memory of this than I do.

Ms. Silberman. No, but it was inadvertent. We did seal it. I mean, it was inadvertent on their witness's part. We did seal it, and I don't know what they did in terms of changing their procedures.

Mr. Ney. Mr. Lorber, do you agree with that?

Mr. Lorber. To my understanding, that may be a correct statement I believe.

Mr. Ney. A letter dated December 12th, the board requested the Capitol Police board provide relevant evidence and other written submissions supporting applications of section 7103 as a need, covered employee officers by section 220 of the Accountability Act; and the board requested such factual information be detailed -- be submitted in affidavit form and present specific facts, not conclusatory statements, to establish the Capitol Police board's claim that the Capitol Police -- and it goes on to talk about their intelligence on January.

On January 8th, Capitol Police submitted an affidavit together with exhibits in support of the contents, that they had satisfied this request. Now, I probably am assuming incorrectly that it was to be put into writing. Would that then not be public information?

Mr. Nager. There were two separate Capitol Police proceedings. One was the union representation proceeding. The other was a proceeding we held to determine whether or not various parts of the Capitol Police should be excluded from the possibility of unionization on national security grounds, agencies or subdivisions. I believe that letter went to that, because that would have been done under our 7103(b) power.

Mr. Ney. I am going to yield to my colleague.

The Chairman. Gentleman from Michigan.

Mr. Ehlers. Thank you, Mr. Chairman. In view of the fact that a vote is on, I have little time. I won't ask a question but simply comment.

I found it rather amazing, reading through your response to the committee when the regulations were sent back. If the board had been unanimous and we had five knowledgeable individuals telling this committee that we were wrong, I would be inclined to go back and read through the act again and think through it again. Maybe the committee is wrong.

But I find it amazing that a three-member majority of the board, on rather tenuous ground I think, simply told the committee that we were wrong and that you had done your work right and, in essence, thumbed your nose at us. I certainly urge you to reconsider your position on that.

It seems to me that the committee communication laid out a very good rationale for why the hearings should have been conducted, comments from Members of Congress should have been considered, and that your work should have been redone. And, clearly, the fact that two members issued dissenting opinions would lead me to conclude that we were right.

If you can't achieve unanimity, or at least more than three to two, it indicates to me that the job has not been done right. And then when you are told that it is not done right and you still can't get greater than three to two, I think there is a real problem there. Mr. Chairman, I think there is an indication that there is a real problem here.

I believe the board should do as the committee requested and that is reconsider the issue of regulations, reconsider the basis for them, take testimony from interested parties and do the job right.

The Chairman. Thank you.

Considering the fact that we just had second bells, it is not fair to not allow the Chairman to respond to the belief of the infallibility of the three members who, notwithstanding the input from the other two members and the Congress to pass the act in the first place, why they were unwilling to sit down with us or provide written material which would get us to better understand what they were doing and submit bills for billable hours in working on the documentation by the board members, when in fact we were told they were not.

Would you like to respond?

Mr. Nager. I will respond to both. I think there are two separate points there. The first is, Congressman, that no one has claimed any infallibility on the part of the majority of the board. The statute subjects the board to a legal process for making these decisions.

We followed that process. We gave it the best judgment we could, and I fully respect the right of my colleagues to have a difference of view with me. The statute provides recourse, just as every statute does, for having a legal judgment of that type changed.

There are basically three ways. One is, if regulations were passed, they could be challenged in a court; and the court could determine whether or not they are invalid. Two, Congress can amend the law and give us new directions. Three, some evidence of some type or a new legal argument that was not previously considered by the board could give us cause for conducting a new rulemaking.

But in the absence of any of those three, any action that we took to reconsider merely because of a request, demand or anything else from a congressional committee would subject any action we had to invalidation on the grounds that it was not done on the basis of the merits but it was done on the basis of a request of a congressional committee.

We cannot do that. That is our problem.

The Chairman. Well, I understand. But the Chairman's characterization of, on the whim of a committee, you folks being forced to changed your mind in no way characterizes the gentleman from Michigan's concern about a difficulty in being able to communicate.

I can assure the gentleman that had the Brown v. Board of Education decision been 5-4, they would have sat down and thought about how they wound up making it 9-0. This is important. This is critical. We want to do it in a way that would have painted everybody involved in this process in a positive light.

The gentleman continues to put himself in the box of the law, and in no way is he talking about an open process, that we could discuss the decision and its rationale. Because you have no minutes, you have no documentation that allows this committee in its legitimate oversight function to find out how it wound up 3-2 so we could understand, so we could assist in trying to make sure that the law functions.

Mr. Lorber wants to make a comment. Our problem is we have got a vote on. We are going to run. I don't think I am going to be able to get people back.

It is fairly clear that there can be some fruitful discussion if we have another oversight hearing. We will provide you with the documents we have about billable hours. We need them explained as to why there aren't members of the board participating in the writing and reviewing of the regulations prior to their full submittal and discussion. That needs to be clarified; and I would like, if it is possible, to sit down so that when we have the next oversight you can present your materials in a way that allows us to understand the process you have been through. If you can supply us with some materials that allowed you to reach those decisions, it will better help us in carrying out our oversight function so that we can understand how you arrive at the decisions.

My understanding is you do now have minutes, you do take notes, and we would like to make sure that between now and the time that we have the next oversight committee that we are provided with those materials.

Mr. Nager. We will do the best we can.

The Chairman. We would like to be provided with those materials.

Mr. Nager. I think I just told the Chairman we will do the best we can to do so.

The Chairman. We would like to be provided with the materials. That is a yes or a no?

Mr. Nager. Mr. Thomas, I don't speak for my board by myself. I have to consult with the board about what I am allowed to do.

The Chairman. On a 3-2 vote of the board, you are going to stiff this committee in its oversight function?

Mr. Nager. I have no intention of stiffening you whatsoever.

The Chairman. The Chair attempted to end this committee on a high note. The chairman of the board persists in making sure that we can't do that.

The committee is adjourned.

[Whereupon, at 4:55 p.m., the committee was adjourned.]