April 5, 2004

Jack Blackwell
Regional Forester
USDA- Forest Service
Regional Office, R 5
1323 Club Drive
Vallejo, CA 94592

Re: Hispanic Settlement Agreement

Dear Mr. Blackwell:

The Region is rapidly approaching the halfway point in the three year Hispanic Settlement Agreement ("SA"). I have spoken at several RLF's, explaining that progress has been severely lacking, systems are not in place, and there has been insufficient oversight of and accountability for the often decentralized Region 5 culture and operations. I met with you on March 25th to discuss briefly some of my concerns. I also recently discussed with Chris Pyron, John Lopez and Kathy Gause my view that the Region has made insufficient progress on effective implementation of the Hispanic Settlement Agreement. To give the Region a clear understanding of how seriously I view the lack of progress, and to provide background for the newly hired SA director, I am providing this review of many of my concerns, along with a number of specific requests and recommendations. 

The requests and recommendations in this report are made pursuant to Sections VI (A) and (B) of the SA. I have noted my requests and/or recommendations under each topic discussed below. Given the past history of delayed responses, I have included specific deadlines for these requests and recommendations.

I received a copy of the March 29, 2004 letter to you from plaintiffs' counsel Shaheena Simons and I will address below several of the issues she raised.

I will be meeting with you and the RHWGX on April 19th and I hope that many of the issues raised in this letter will be addressed at that meeting. 

1. Overview Of Hispanic Representation In The Workforce And Barriers To Improvement

As noted in the Region's 2nd Semi-Annual Report ("Report"), the overall Fiscal year 2003 (FY 03) Hispanic representation in the permanent workforce was only 9.4%. The newly issued 2000 Census data reflects close to 30% Hispanic total civilian labor force ("CLF") in California. The Region reported that only two occupational categories (Technical and Other) had increases in Hispanic representation from FY 02 to FY 03. The increase in the Technical category, which according the Region is mostly wildland firefighters, was a mere 1% from 10% to 11%. Thus, according to the Report, the Hispanic representation among technicians remains well below the 1990 census figure of 16.3% Technician for Hispanics in California (Report pp. 9, B-1), and in that category, like many others, the 2000 Census data reflects increased percentages of Hispanics in California's civilian labor force. The technician grouping comprised 51.7% of the Region's workforce in FY 03 (Report, p. B-1, Table B.1.1), so this is a key area under the SA. 

Significantly, the Report also states that the overall percentage of R5 positions filled by Hispanics during both the first and second reporting periods was only 12.2%.(Report, p. 9) If the Region continues to hire Hispanics at a rate far below the California Hispanic CLF, there is little or no likelihood that the SA goal will be achieved. 

During the past year, I have been attempting to identify the barriers to increased Hispanic representation in Region 5. It appears that barriers exist both because effective outreach and recruitment systems are not in place, and because opportunities are missed to select diverse applicants who do apply and are qualified. 

The poor representation of Hispanics in lower level positions is particularly puzzling. For example, Hispanic representation in blue collar positions is only 5% while even the 1990 Census data reflects Hispanic representation at over 30%. (Report, page, B-1, Table B.1.1). With fire hires (discussed further below), it is my understanding that Fire Management, in practice, requires experience for the Apprenticeship program greater than that specified in the bulletin, and also is not using Demo announcements in some situations. In addition, the process for temporary fire hires, who gain the experience much valued in future hiring decisions, is decentralized with little or no oversight of efforts to get diverse candidates.

With upper level positions, even if outreach does not yield a diverse applicant pool, many have expressed a reluctance to expand the pool through multi-grade announcements. There have been problems with inclusion of all appropriate series in vacancy announcements, specifically two occasions on which the 807 series was omitted from announcements, thus requiring that the positions be re-advertised. In addition, although a key aspect of the SA is to advertise Demo as well as government wide, there seems to be great reluctance in upper level positions to seriously consider applicants from outside the forest service, and in some cases, Demo candidates have not even been evaluated by panelists. If I am correct that applicants without forest service experience will not be considered appropriate for upper level positions, then the use of the Demo announcements for them seems to be an exercise in futility. I also discussed with you my concerns about the lack of a consistent process for panels reviewing applications, and the fact that interviews may not be done even when clearly warranted, for example, when some finalists are known and others are not. 

The increasing use of on-line announcements and application forms may also be creating barriers for Hispanic and other diverse applicants. My recommendations to address these issues are detailed in Exhibit A.

2. Continuing Pattern Of Missed Deadlines, Lack Of Follow Through, And Failure To Respond Promptly To Monitor Requests

Throughout the life of the SA, the Region has repeatedly established deadlines in its implementation plan and then has failed to meet those deadlines. It similarly set deadlines in its 2nd Semi-annual Report and failed to meet them. Some examples are:

Action Deadline set in Report Status 
Fill Director CR position 1/31/04 Report p.17 Selection not announced until 3/29/04
Fill the Settlement Agreement Staff positions 1/31/04Report p.17 Staff remains incomplete; Regional Recruitment Coordinator position vacant
Contract for external outreach and recruitment assistance 12/31/03Report p.24 No contractor retained
Finalize the Regional Outreach and Recruitment Program 3/31/04Report p.24 Not finalized
Fill HR Assistant Position 12/15/03Report p.28 Position not filled by deadline
Fill remaining positions in the Outreach and Recruitment Branch of the Settlement Agreement Staff 1/30/04Report p.28 Numerous positions on the SA Staff are unfilled
Finalize outreach and recruitment policies and procedures in the directive system 3/31/04Report p.28 Neither procedures nor directive are finalized
Applicant Flow System Input all past data on permanent selections from 1/1/03 through 10/30/03 10/31/03Report, Appendix D-1 Key data missing: Northern Province Operations team erroneously destroyed the RSNO background information sheets; AVUE applicant data not yet available; data not validated until late March 04
Establish SF-52 Tracking System Begin using system by 9/30/03Report, Appendix G, p. 7 System not in use; still in testing phase as of 4/5/04
Prepare first SF 52 report with data for 10/03 to 12/03 1/31/04Report, Appendix G, p.10 No SF-52 report completed; system still in testing phase as of 4/5/04

During the past six months, the Monitor or the RHWGX made a number of requests (some of which required only a brief letter or email). In numerous situations, the RO agreed to respond and then either delayed taking action or failed to respond to the request entirely. Some examples of the problem in getting timely responses to requests are attached as Exhibit B:

Delays in the Region's Own Proposals for Effective Implementation

Among the items listed in the November 20, 2003 Report as "Key Accomplishments" are having a "Draft Strategic Outreach and Recruitment Plan" and a draft "Marketing Plan;" having a full time Regional Recruitment Coordinator in place; and having created the SA staff for which an organization chart was developed September 28, 2003 (Report, p. 25). In addition, an August 26, 2003 letter from Vicki Jackson (for Jack Blackwell) to Plaintiffs' counsel addressed the commitment to have a full time HEPM. 

As of early April 2004, the Strategic Outreach and Recruitment Plan still is not finalized, the Regional Recruitment Coordinator position is vacant, and several of the SA Staff positions, including the HEPM, have not been filled. 

Outreach and Recruitment Strategy

During the summer of 2003, Vicki Jackson developed a concept for SA implementation that included the SA Staff, an Outreach and Recruitment Strategy with a plan, directive, revised form, and agreement on having a Unit Employment Review Team. Vicki "rolled out" these concepts at the October 2003 HR/CR meeting and RLF. I reviewed and provided feedback on the plan, directive and form as did members of the RHWGX at Vicki's request, as well as Maryann Fletcher, who came to Region 5 from the Washington Office specifically to work on that project in October 2003. A December 18, 2003 memo to me from Vicki Jackson stated that: "The Outreach and Recruitment Plan has been completed and is ready for distribution." To my knowledge, the Plan still has not been finalized and distributed.

At the February 2004 implementation meeting, I was told that the letter regarding the Employment Review Team ("ERT") would be done in mid March, even if the rest of the Outreach and Recruitment Strategy was not completed, and that Kellie Pursell and Marissa Suarez would review the letter. That letter is not yet finalized. 

I have expressed to you and others my dismay at the fact that the Outreach and Recruitment strategy is still not in place. Because an effective outreach and recruitment plan and directive, and implementation of the ERT are central to the success of the SA, further delay is unacceptable. 

No later than April 20, 2004, please finalize the Outreach and Recruitment Plan, Directive, revised Form C, and implement the Unit Employment Review Team procedure. 

Regional Recruitment Coordinator

Janet Brandt Jackson has moved to the SCEP position on the SA staff, which means that the Region Recruitment Coordinator position is now vacant. The SA clearly provides that the Regional Recruitment Coordinator ("RRC") must be maintained as a full time position: 
Defendants will maintain a full-time Regional Recruitment Coordinator position, with the primary purpose of implementing the Recruitment Program set forth in Section V. The duties of the Regional Recruitment Coordinator are set forth in Section V. B.
For many months at the start of the SA, Janet Brandt Jackson was in that position but not on a full time basis. I raised this problem with the Region in an April 23, 2003 letter to Jack Blackwell and again in a June 4, 2003 letter to Vicki Jackson. Vicki finally advised me in a June 20, 2003 response that Janet's other duties had been reassigned so she could work full time as the Recruitment Coordinator.
Because of the clear obligation to maintain the RRC on a full time basis and the history of not having the incumbent working full time on those duties, it should be a priority for the Region to fill the Coordinator position as soon as possible to be in compliance with the SA terms. I spoke with Julena Pope about the obligation to fill this position. She advised me that, to date, there is still no position description for the RRC, and that Maxie Hamilton is drafting a PD. She intends to fill the position with an 89 day detail and do outreach and recruitment for the permanent position. 
No later than April 20, 2004, please provide a written timetable for completion of the Regional Recruitment Coordinator PD, filling of the detail, completion of the outreach and recruitment, and target date for filling the position.
Unfilled SA Staff Positions
I understand that JJA consultants has been or will be working with the Region on the structure of the SA staff, and that there is a revised organizational chart which I have not yet seen. The unfilled SA staff positions, in addition to the vacant RRC position, include the GS-13 outreach position and the HEPM.
No later than April 20, 2004, please provide a copy of any revised organizational chart and a written timetable for filing the remaining positions on the SA staff that will be dealing with the Hispanic Settlement Agreement, including the HEPM.
Outside Contractor
A key aspect of the Region's Outreach and Recruitment strategy is the proposed use of an outside contractor for various aspects of outreach and recruitment. Although the concept of using a contractor was developed in the summer of 2003, as late as mid-February 2004, the Statement of Work still was not completed. It is my understanding a bid recently came in at a money amount far in excess of what the Region anticipated. It is unclear to me what the Region intends to do in light of the amount of the contractor's bid. 

I have discussed briefly with Julena Pope alternative uses of financial resources to do recruitment in the Hispanic community. I understand that the Region previously had a program called Greenlink in Southern California. Reestablishment of Greenlink, or a "Southern California Consortium," along with a similar operation in Northern California, may prove to a more effective means of recruiting for some types of positions than a costly outside recruiter. Replication of the Consortium program also has a far greater likelihood of institutionalizing effective recruitment, particularly for entry level positions, than short term outside contractors. An outside contractor could still be used for positions not reached effectively by the Consortium model. A more limited use of outside recruiters would then free up funds to support Northern and Southern California Consortium type programs. 

No later than April 20, 2004, please provide information on what alternative plans the region has for outreach and recruitment in light of the amount of the bid received by the outside contractor.

Given the Region's inability thus far to finalize its Outreach and Recruitment Strategy, retain the Outside Contractor, and complete hiring of the SA Staff, I make the following Recommendations with regard to Outreach and Recruitment: 

(1)The Region should re-institute the Southern California Greenlink program or another similar program modeled on the Central California Consortium's outreach and recruitment successes highlighted in the 2nd Semi- Annual Report at pp. 19-21. 

(2) The Region should develop a similar program in Northern California. 

(3) Notwithstanding the limited term of the SA, the Region should commit to fully fund the existing Consortium and the proposed Northern and Southern California programs for a period of five (5) years to ensure that effective outreach and recruitment methods are institutionalized in the forest service.

(4) The Region should re-establish collateral duty HEPMs on the forests who would participate in outreach and recruitment.

No later than May 3rd, please respond to the above recommendations.

3. Problems With Creation of Data Systems, Record Retention And Timely Production Of Reports
Applicant Flow System
The SA had a specific timeline for establishment of the Applicant Flow System (AFS):

Region 5 shall also establish within six months of the Effective Date an automated system to provide the following information (to the extent possible, given that Region 5 must rely upon optional self-identification) in the monitoring report: the number and percentage of applicants for Region 5 Positions filled by forest, and by the RO, by race, gender, and national origin, who are persons employed by Region 5, the U.S. Department of Agriculture as a whole, any other federal agencies, and those coming from external applicants; the race, gender, and national origin of those individuals who are reassigned pursuant to Rule 12 ("Rule 12 reassignments"), as that rule is defined in the Guide to Processing Personnel Action, Chapter 14, Table 14-D (Reassignments in the Competitive Service). Region 5 will also provide written guidance regarding Rule 12 reassignments.

In addition to the SA requirements for an AFS system, EEOC's new Management Directive 715 (MD-715) states that Agency Heads are responsible for: 
Developing systems for the evaluation of program effectiveness and barrier identification and elimination; ensuring that the agency has adequate data systems for effective analyses of applicant flow, on-board workforce and personnel transactions data. (See Section 8(a)(2), empahsis added)
MD-715 further identifies within its "Essential Elements of Model Agency Title VII and Rehabilitation Act Programs" procedures to:
Maintain a system that tracks applicant flow data, which identifies applicants by race, national origin, sex and disability status and the disposition of all applications…
Maintain a system that collects and maintains accurate information on the race, national origin, sex and disability status of agency employees. 
Maintain a tracking system of recruitment activities to permit analyses of these efforts in any examination of potential barriers to equality of opportunity. 
As you know, there were serious problems in getting the AFS system started. First Steve Florman was repsonsible for AFS and was working with setup of an Oracle system. Mr. Florman then left Region 5, the Oracle system was abandoned, and the Region started over with a Lotus Notes system. The Region did not meet the six month deadline in the SA. I have since learned that signaifcant data is is missing from the Region's AFS. It is my understanding that MEL and other data is not included because that RSNO data is in the AVUE system. In addition, I learned in January 6, 2004 that the Northern Province Operations team erroneously destroyed the RSNO background information sheets after providing numerical reports earlier in the year. Efforts have been made to validate data and input information from manual processes, but I do not yet have any complete AFS reports.
In response to the information regarding the Northern Province's destruction of data, I asked the Region to send out instruction promptly to all relevant parties instructing them not to discard, shred, or otherwise destroy underlying RSNO data. To my knowledge, no such instruction has yet been sent, despite my repeated requests. No later than April 10th, please ensure that this instruction is sent to all relevant personnel, with a copy to me.

When I was informed early this year that the first AFS run showed an extremely high percentage of unknown RNO categories, I asked the Region to run a report for the 3rd and 4th quarters (4/1-9/30/03), in an effort to evaluate whether the absence of AD-1086 forms in the early part of 2004 affected the data obtained. I have not yet received the report on the 3rd and 4th quarters. At the March implementation meeting, the Region told me the information requested would be provided to me by April 1, 2004. The Report has not been provided. Please provide this report no later than April 20th

MEL hire RSNO data 
I have requested RSNO data on the MEL hires and the Region has not been able to provide the information. I originally requested this information from Gary Biehl on October 9, 2003, by email with copies to Vicki Jackson and Sadie Aragon. Gary Biehl, whose office handles the MEL data, then told me that he did not have access to the RSNO data. At the December implementation meeting, I received a sample of preliminary data on one MEL round, which was voluminous and not in a useable format. We had discussions about what a useful format would be, with some delays because many people were on annual leave over the Christmas holidays. I met in person with Kellie Pursell on January 22, 2004 to review the format of the apprenticeship data as a model for the MEL hire data, and had follow up discussions with Margaret Pasholk about the MEL data format in early February. Dennis McKinnon and others subsequently told me that AVUE "owns" the data and the Region cannot obtain the data to do its own statistical runs. By late March 2004, I had no information about whether or not the RO had followed up with the WO AVUE personnel. I therefore spoke with the WO myself about this. Gloria Banks at the WO told me that Gloria Crawley, the program manager for AVUE, will be able to work with the region and get the necessary data from AVUE. I gave the SA Director the contact information for Gloria Crawley. On April 2, 2004, six months after my initial request, the RO finally asked the WO for the necessary AVUE data. 

No later than April 20th, please tell me who within Region 5 will be responsible for follow up with Gloria Crawley or other WO AVUE personnel and what the timetable will be for getting the necessary data or data runs from AVUE. I have already explained to the Region what data I need to review, and I am available if there are any further questions about this.

RLT Selection Records
The RHWGX requested Regional Leaders Team (RLT) selection records by unit and RSNO going back three years. The Region agreed to provide selection records beginning in January 2003 only. My October 31, 2003 memo to the RO recommended a November 15, 2003 date for providing those records. That date came and went. Vicki Jackson's December 18, 2003 memo to me then said the region was validating the quality of AFS data for tracking RLT selections, and expected that the first report would be out in January 2004. I did not receive the report in January. A February 18, 2004 email from HR described a requested FOCUS run to get the RLT data. To date, I still have not received the RLT selection data.

No later than April 20th, please provide the report on RLT selection beginning January 2003.

Staffing Logs and SF-52 Tracking System
During an August 2003 meeting with you and in several RHWGX conference calls with Vicki Jackson, RHWGX members raised concerns about the inconsistent format of the staffing logs and the need for uniformity. The Region agreed to create a uniform format and then declined to do so because it decided that it would be more efficient to provide the information through an automated SF-52 tracking system. The Region committed to begin using the tracking system 9/30/03 and to have the first report by 1/31/04 (Report, Appendix g, p.10). These deadlines were not met. The most recent information I have from RO staff is that there is no "real" data entered into the SF-52 tracking system and beta testing still needs to be done. At the February implementation meeting, Vicki Jackson told me there was some "slippage" in the deadline for the SF-52 tracking system because the revisions in the implementation plan database were given priority. At the March implementation meeting, RO staff raised an additional issue, namely, that the SF-52 tracking system will have confidential information(such as adverse actions) that should not be disclosed to all those who currently have access to the staffing logs. The Region therefore needs to develop a system to provide general access on the SF-52 tracking system for all information currently on the staffing logs, without revealing the confidential information. It is my understanding that this access issue has not been resolved.

No later than April 20th, please provide written information as to when the SF-52 tracking system will be fully operational and capable of running reports, what the process will be for providing access to the staffing log information without disclosure of confidential information, and when that process will be in place.

Inclusion of Persons Hired as well as Persons Selected in Data Runs
As I have discussed with the SA Director, when RSNO reports on "selections" are run, those reports should indicate not only persons to whom job offers were made, but also a separate category of those actually appointed/hired. If only "selections" are included on reports, it will not accurately reflect whether or not the individual accepted the position and completed all post-offer, pre-employment screening.

4. Fire Hires:
I addressed above some general issues concerning fire hires. Given the positions frozen under competitive sourcing, and the large number of fire hires, this is a key opportunity to increase the workforce diversity. I have also spoken with the SA Director, Ray Quintanar, Shirley Sutliff, Jim Oftedal and others to attempt to identify the problem areas, and I understand that a meeting is planned with Ray for the week of April 5th. I will outline some of the issues here, but see the need for a meeting with all the relevant players to work through the fire hire issues before the apprenticeship and other hires for the upcoming fire season.

Letter concerning fall 03 Apprenticeship hires
In November 2003, prior to finalization of the Apprenticeship selections, members of the RHWGX met with RO staff to discuss the diversity of the applicant pool and proposed selections. At that meeting, handwritten RSNO data was provided, indicating that some forests have very few Hispanics identified in the applicant pool, and other forests had Hispanics in the pool, but few Hispanics were selected. Several forests had no Hispanics selected. The RO was not willing to stop the selections to try to increase the diversity of the applicants and/or selectees, but instead agreed to send a follow up letter to the forests identifying areas for improvement in future selections. Many months have passed, with repeated inquiries from me about the status of the letter at monthly implementation meetings, and the letter still has not been sent. The Region is now about to start another round of Apprentice hires with no follow up on the last round.

Recommendation: 
No later than April 20th, the long overdue letter should go to all Forest Supervisors with the Apprentice RSNO data for that forest. Kellie Pursell has the RSNO data. The letter should include the Region's recommendations for improving the diversity of the applicant pool and selections. The letter will also include my questions for the forest supervisor attached to this letter as Exhibit C, and will have a "Reply Due" date of May 10th for response to the questions.

Future Apprenticeship and other Fire Hires
On March 23, 2004, I sent a recommendation that the Apprenticeship application be corrected to include a question about lawful permanent residents as well as citizenship, so it conforms to the Apprenticeship Bulletin. The Region has agreed to correct the application question.

At the March implementation meeting, I recommended informally that the Apprenticeship application form allow applicants to check off each forest to which they are applying. The fall 03 bulletin said that a separate application form was required for each forest. A simplified check-off procedure will make it easier for Apprentice applicants to indicate their willingness to work at multiple forests. By this letter, I am formalizing this recommendation. No later April 20th, please respond to the recommendation for one application form with a check-off for multi-forest interest, and indicate how this will be accomplished.

The fire Apprenticeship applicants in the fall 03 hiring were limited to California, in the hopes of increasing the diversity of the applicant pool and selections. The Region should evaluate whether this approach was successful and determine whether or not it will again use the California-only pool.

It is my understanding that Apprenticeship applicants do not need 500 hours of experience to apply to the program, but do need that experience by the time they start the academy. However, it apparently is the practice of Fire Management in most cases to require the 500 hours before hiring Apprentices. Fire temps are the persons likely to have the 500 hours of experience, and there is little or no oversight of the efforts to increase diversity in the temp hiring process which is decentralized. Although I have no statistics on the diversity of temporary fire hires, many in fire have told me that the temps are largely Caucasian. Fire Management sets a numerical target for the number of SCEP Apprentices; however that target often is not met and the Region then relies on temp hires. 

Apparently, Fire Management has also decided not to use Demo announcements for GS-5's and several individuals in fire have told me that they feel this may limit their efforts to diversify the fire hires. This decision is contrary to SA provisions IV(E) which states that Defendants shall advertise Region 5 positions in the following job series in the Relevant Geographic Area, both government-wide and through demonstration project authority, throughout the term of this Agreement: All job series with 50 or more employees and job series 193, 201, 303, 334, 340, 401, 460, 462, 486, 802, 810, 1001, 1101, 5716, and 5823.

In the year or so that I have been working with the Forest Service, I have heard much about the Incident Command System that Region 5 uses when solutions are needed in an urgent situations. Given the lack of progress in improving the hiring of Hispanics, and the lack of follow through with the fire hires, I think an urgent situation now exists with regard to the Settlement Agreement. An Incident Command approach to addressing the fire hires in particular may well be the appropriate solution. 

These and other issues should be addressed at the meeting I am proposing. 

Recommendation: 
The RO convene a working meeting before the end of April to address the barriers to increased diversity in fire hire and necessary changes in procedures. Attendees should include: Vicki Jackson, CR and HR Directors, Kellie Pursell, SA Staff Julena Pope, Janet Brandt Jackson, and Peggy Hernandez, Jim Oftedal, Ray Quintanar, Shirley Sutliff, Joe Reyes, you, and me (as well as any others you feel should be present). Fire hiring should not go forward until this meeting is convened and solutions addressed. I certainly recognize the need to get fire hires in place and therefore urge the Region to make this a very high priority.

I further recommend that (1) the Region comply with SA Section IV(E) regarding Demo advertisements for all positions listed; (2) establish a mechanism for oversight of the temporary fire hires to ensure that there is diversity in the pool that later is eligible for permanent fire hires; and (3) take steps to create oversight of and accountability for efforts to diversify all fire hires. 

I trust that, by providing many specific examples of the Region's inability to meet deadlines, provide information, and/or comply with specific SA provisions, both the RO and WO can see that I view the Region's progress on the Hispanic Settlement Agreement as falling far short of where it should be. Financial and other resources are certainly being devoted to the SA, but the outcome thus far has not been effective. I think the Region should look closely at whether resources are being well spent, and I urge you, as Regional Forester, to be more actively engaged in oversight of the efforts to meet the SA goals.

Sincerely,


Marci Seville

Cc: Marissa Suarez
Susan Ullman
Class Counsel
Chris Pyron
Kathy Gause
John Lopez
Vicki Jackson
Julena Pope
Margaret Pasholk
Sandy Macias