When You’re Out of the Loop, Don’t Forget That Secrecy Is the Soul of Diplomacy

Posted: 1:26 am EDT

 

As the media reported on the Iran prisoner swap this weekend, HuffPo’s Ryan Grim wrote Here’s Why We Held The Story On The U.S.-Iranian Prisoner Exchange, on January 16. It deserves a good reading because there’s a lesson here somewhere:

One of the four men was Jason Rezaian, a Washington Post reporter who had covered the Iran nuclear talks. Rezaian was being held on baseless charges of espionage in order to try to extract concessions from the Americans. Our source, State’s Chase Foster, was upset that the U.S. had failed to secure the Americans’ release as part of the nuclear deal, and it was his understanding that the talks had since collapsed. But as we reported out the tip, we discovered that, unbeknownst to Foster, the talks had never really stopped.
[…]
What added an extra wrinkle to this ethical dilemma was the State Department official, Foster, Schulberg’s on-the-record source. To describe such a situation as unusual wouldn’t do it justice: State Department officials with specific knowledge of prisoner negotiations don’t talk publicly about them. It just doesn’t happen. Yet to Schulberg’s credit as a reporter, Foster was doing so in this case. His frustration motivated him to speak out — and, eventually, to quit his job, which he did late last year.

Any public official willing to air grievances on the record, whether those grievances are legitimate or not, should be thought of as a whistleblower. And if a whistleblower is willing to risk his career and reputation to share information he thinks the public needs to have, a news outlet needs to have an awfully good reason not to run his story. On the other hand, we never asked him not to talk to other outlets or to take his concerns public on his own, which was always an option, but one he didn’t take. And had he known the talks were once again going on, that may have changed his calculus about going public, which in turn was something we had to keep in mind. And it wasn’t something we could share with him.
[…]
When we reached out to the administration, the frontline press folks there were extremely aggressive and served up a bunch of garbage we later confirmed to be garbage. But when we approached administration officials higher up the chain, they told us what was actually happening. They told us that reporters for The Washington Post and The Wall Street Journal were withholding details of the talks as well, though neither knew of Foster, whose identity we never revealed to the government. They did not put hard pressure on us to hold our story, but instead calmly laid out their analysis of the possible consequences of publishing, and offered confidence that the talks were moving forward and headed toward a resolution.

Read in full here. After reading that, you might also want to read The New Yorker’s Prisoner Swap: Obama’s Secret Second Channel to Iran by . She writes in part:

More than a year of informal discussions between Sherman and her counterpart, Majid Takht Ravanchi, the Iranian Foreign Ministry official in charge of American and European affairs, led to an agreement, in late 2014, that the issue should be handled separately—but officially—through a second channel. After debate within the Administration, Obama approved the initiative. But it was so tightly held that most of the American team engaged in tortuous negotiations on Iran’s nuclear program were not told about it.[…] Brett McGurk, a senior State Department official, headed the small American team, which also included officials from the Department of Justice, the F.B.I., and the intelligence community.

According to NYT, Mr. McGurk’s team sat down with their Iranian counterparts in Geneva for the first time in November 2014, according to an account by several American officials on the condition of anonymity.

HuffPo’s source Chase Foster, a Foreign Affairs officer at the State Department since 2012, was reportedly upset that the U.S. had failed to secure the Americans’ release as part of the nuclear deal according to the Huffington Post.  FAOs are civil service positions at the State Department that typically requires regional or functional expertise.  His LinkedIn profile says that he had an advanced degree in Professional Studies in Persian and speaks Persian. It does not say which bureau he works in.  But by the time he quit the State Department in frustration late last year, the negotiations for the prisoners release has been going on for about 13 months.

Foster was willing to risk his career by speaking on the record. That’s not something we often see these days. His heart was in the the right place, and we won’t blame him for it.  But he may have also forgotten what François de Callières said about secrecy as being “the very soul of diplomacy.”  

If mentorship works at State as it should have, somebody could have counseled him quietly that absence of apparent action does not mean lack of action.  The American team working the nuke negotiations was not even told about the second channel secret negotiations. We would not be surprise if the top honchos at the NEA bureau with decades of USG service were also out of the loop. And no one has even mentioned James O’Brien, the newly appointed Special Presidential Envoy for Hostage Affairs.

This could have easily gone the other way. We’re glad that it didn’t, that senior administration officials did not dish more garbage, that the journalists listened, and the negotiations worked out in the end.

 

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About Time For That Washington Ritual: Watch Out For Political Appointees “Burrowing In”

Posted: 12:53 am EDT

 

Late last year, WaPo wrote about the watchdogs being in the lookout for Obama appointees ‘burrowing in’:

As each administration winds down, some political appointees traditionally seek to continue their government service as career employees beyond the administration they served. Also known as “conversions,” the practice has attracted skepticism from government watchdogs and experts but has become known as something of a Washington ritual.
[…]
In 2010, GAO reviewed 26 federal departments and agencies that converted 139 people from political to career positions from May 2005 through May 2009. While the majority of the conversions followed proper procedures, GAO said at least seven might have violated the merit-based system, including a Department of Veterans Affairs appointee who lacked the required experience and a Justice Department employee who received a career position despite unfavorable recommendations from government interviewers.

A separate WaPo report notes that in May 2006, investigators found that 23 agencies hired 144 political appointees from the G.W.Bush administration into career positions from May 2001 to April 2005. “In at least 18 cases the agencies did not follow proper procedures, the GAO found, citing problems such as hiring appointees with limited qualifications, creating positions for specific individuals and disregarding veterans’ preference laws.”

It also cites a report from 2002 where apparently between October 1998 and April 2001, 111 political appointees and congressional aides from the Clinton administration landed career jobs in 45 executive-branch agencies.

On January 11, 2015, OPM also issued guidelines for processing certain appointments during the 2016 presidential election period.

I.  Appointment of Current or Former Political Appointees to Career Civil Service Positions

Agencies must seek prior approval from OPM before appointing a current or recent political appointee to a competitive or non-political excepted service position at any level under the provisions of title 5, United States Code.  A former or recent political appointee is someone who held a political appointment covered by OPM’s policy within the previous five-year period.  OPM reviews these proposed appointments to ensure they comply with merit system principles and applicable civil service laws.  OPM’s memo and instructions regarding political appointees and career civil service positions is available at https://www.chcoc.gov/content/political-appointees-and-career-civil-service-positions.  The memo includes pre-appointment review checklists to assist agencies in preparing their submissions for review.

Note:  Schedule C employees may not be detailed to competitive service positions without prior OPM approval [see 5 CFR 300.301(c)], and no competitive service vacancy should be created for the sole purpose of selecting a Schedule C or Noncareer SES employee. 

OPM prepared a series of questions and answers (Q&As) to respond to agency inquiries about its policy for pre-appointment reviews and to provide additional details that will help agencies meet the policy’s requirements.  These Q&As, which follow, are also available at http://www.opm.gov/FAQs/topic/ppa/index.aspx?page=1

II.  Appointing Employees to the Senior Executive Service

OPM will continue to conduct merit staffing reviews of proposed career SES selections that involve a current or former political, Schedule C, or Noncareer SES appointee before such cases are formally presented to a Qualifications Review Board (QRB).  Agencies should carefully review all actions that would result in the career SES appointment of a political, Schedule C, or Noncareer SES before forwarding such cases to OPM.

Note:  All SES vacancies to be filled by initial career appointment must be publicly announced (5 CFR 317.501).  Only a career SES or career-type non‑SES appointee may be detailed to a Career-Reserved position (5 CFR 317.903(c)).  

In addition, OPM will suspend the processing of QRB cases when an agency head leaves office or announces his or her intention to leave office, or if the President has nominated a new agency head.  OPM imposes a moratorium on QRB cases as a courtesy to a new agency head when it learns of an agency head’s planned departure.  However, OPM will consider requests for exceptions to such a moratorium on a case-by-case basis.  When a presidential transition occurs, OPM will determine the disposition of QRB cases based upon the policy of the new administration.

In the same announcement, OPM released its Do’s and Don’t’s with burrowing employees:

Effective January 1, 2010, OPM conducts on-going pre-appointment reviews of current or former political appointee, Schedule C employee, and Noncareer SES member appointments to the competitive or exceptive service.  OPM seeks to ensure that the merit system principle of fair and open competition is protected.  With this in mind, these are the two most common reasons for OPM not to approve an appointment or a conversion:

  1. the new position appears to have been designed solely for the individual who is being converted, and/or
  2. competition has been limited inappropriately.

Below are “Do’s” that will help agencies with the conversion approval process:

  • Do make a public announcement through OPM’s USAJOBS when filling competitive or excepted service vacancies from candidates outside your own agency’s workforce.
  • Do carefully consider the Interagency Career Transition Assistance Plan for Displaced Employees regulations (5 CFR 330, Subpart G) before making selections.
  • Do ensure the Chief Human Capital Officer and Human Resources Director closely review all such proposed actions to determine if they meet the test of merit.
  • Do ensure the Chief Human Capital Officer and Human Resources Director gather all necessary internal agency approvals before presenting a case to OPM for review.

And “Don’ts”:

  • Don’t create or announce a competitive or excepted service vacancy for the sole purpose of selecting a current or former political appointee, Schedule C employee, or Noncareer SES member.
  • Don’t remove the Schedule C or Noncareer SES elements of a position solely to appoint the incumbent into the competitive or excepted service.

Read more here.

 

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Top Five/Bottom Five For Performance Awards in FY2014

Posted: 2:48 am EDT

 

Via GovExec:

The number of career senior executives receiving a bonus based on their job performance increased by 12.2 percentage points between fiscal years 2013 and 2014 across government, and the average amount of individual performance awards increased $347 during that time.
[…]
Here are the top five most generous agencies when it came to individual performance awards in fiscal 2014. We’ve defined “most generous” as those agencies that provided bonuses that were more than the average individual award of $10,560 governmentwide. Again, these are averages; some senior executives might have received more money, and others less than the amount listed in parentheses.

  1. National Science Foundation ($15,333)
  2. Justice ($14,600)
  3. Small Business Administration ($13,894)
  4. Education ($12,800)
  5. Commerce ($12,177)

The agencies that doled out the smallest individual SES performance (less than $10,560) awards in fiscal 2014 were:

  1. State Department ($8,434)
  2. General Services Administration ($8,509)
  3. Nuclear Regulatory Commission ($9,013)
  4. Transportation Department ($9,063)
  5. Veterans Affairs Department ($9,450)

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With about 20 days left in session, time is running short for nominees in Senate logjam

Posted: 12:02 am EDT

 

It looks like the Senate will not be back at work until November 16-20, and again, from Nov 30-December 18. That’s from a tentative schedule (pdf) but that leaves us with approximately 20 working days before the body adjourns for the year.

The following are the nominees pending on the Executive Calendar. They have cleared the SFRC and just need the full Senate vote before they can go packing:

BAHAMAS | Cassandra Q. Butts, of the District of Columbia, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Commonwealth of The Bahamas (cleared by SFRC on May 21, 2015; subject of a Senate hold on Oct. 5, 2015  by Mr. Cotton).

SWEDEN| Azita Raji, of California, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Sweden (cleared by SFRC on June 10, 2015; subject of  Senate hold on Oct. 5, 2015  by Mr. Cotton)

NORWAY | Samuel D. Heins, of Minnesota, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Norway (cleared by SFRC on July 29; subject of  Senate hold on Oct. 5, 2015  by Mr. Cotton).

TRINIDAD AND TOBAGO | John L. Estrada, of Florida, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Trinidad and Tobago (cleared by SFRC on October 1)

STATE/L | Brian James Egan, of Maryland, to be Legal Adviser of the Department of State, vice Harold Hongju Koh, resigned (cleared by SFRC on June 25, 2015; subject of a Senate hold on Sept. 30, 2015 by  Mr. Grassley)

STATE/CSO | David Malcolm Robinson, of Connecticut, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be an Assistant Secretary of State (Conflict and Stabilization Operations), vice Frederick D. Barton, resigned (cleared by SFRC on October 1; subject of a Senate hold on Aug. 4, 2015 by Mr. Grassley)

USAID | Gayle Smith, of Ohio, to be Administrator of the United States Agency for International Development, vice Rajiv J. Shah, resigned (cleared by SFRC on July 29; potential snag to this nomination has been reported to include Sen. Marco Rubio (R-Florida) although no formal objection has been filed in the Senate.

USAID | Thomas O. Melia, of Maryland, to be an Assistant Administrator of the United States Agency for International Development, vice Paige Eve Alexander, resigned  (cleared by SFRC on July 29).

USAID/OIG | Ann Calvaresi Barr, of Maryland, to be Inspector General, United States Agency for International Development, vice Donald A. Gambatesa, resigned (cleared by SFRC on October 1, and by HSGA on October 22).

USAID | 2015-08-05 PN769 Linda I. Etim, of Wisconsin, to be an Assistant Administrator of the United States Agency for International Development (cleared by the SFRC on Nov 10).

UNGA | Barbara Lee, of California, to be a Representative of the United States of America to the Seventieth Session of the General Assembly of the United Nations (cleared by SFRC on October 1).

UNGA  | Christopher H. Smith, of New Jersey, to be a Representative of the United States of America to the Seventieth Session of the General Assembly of the United Nations (cleared by SFRC on October 1).

Cleared by the SFRC on November 10:

2015-06-02 PN526 MEXICO | Roberta S. Jacobson, of Maryland, a Career Member of the Senior Executive Service, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the United Mexican States (potential snag to this nomination from Sen. Marco Rubio (R-FL) and Sen. Robert Menendez (D-NJ) reported via Politico, though no formal objection has been filed in the Senate).

2015-07-08 PN629 LIBYA | Peter William Bodde, of Maryland, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Libya.

2015-07-08 PN633 TAJIKISTAN | Elisabeth I. Millard, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Tajikistan.

2015-07-16 PN671 OMAN | Marc Jonathan Sievers, of Maryland, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Sultanate of Oman.

2015-09-16 PN843 UGANDA | Deborah R. Malac, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Uganda.

2015-09-16 PN845 SWAZILAND | Lisa J. Peterson, of Virginia, a Career Member of the Senior Foreign Service, Class of Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Swaziland.

2015-09-16 PN846 MOZAMBIQUE | H. Dean Pittman, of the District of Columbia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Mozambique.

2015-11-09 PN933 MICRONESIA | Robert Annan Riley III, of Florida, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Federated States of Micronesia.

2015-09-21 PN872 STATE/P | Thomas A. Shannon, Jr., of Virginia, a Career Member of the Senior Foreign Service, Class of Career Ambassador, to be an Under Secretary of State (Political Affairs).

2015-07-16 PN672 OPCW | Kenneth Damian Ward, of Virginia, a Career Member of the Senior Executive Service, for the rank of Ambassador during his tenure of service as United States Representative to the Organization for the Prohibition of Chemical Weapons.

2015-06-16 PN579 OPIC | John Morton, of Massachusetts, to be Executive Vice President of the Overseas Private Investment Corporation.

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Philip Arsenault has been tracking the length of time these nominees have waited pending confirmation.  At least 13 nominees have waited over a hundred days and there is no end in sight. At least four of these nominees have been renominated once before.  John Estrada, the nominee for Trinidad and Tobago has waited the longest at over 800 days. Some of these nominees, particularly the political appointees may not want to have their lives on hold while they wait for the Senate to make up its mind, and will probably decline to be renominated a second time. Most of these nominees will likely be renominated if the Senate fails to act on the nominations this year but we can’t imagine right now that 2016 will be any different. The confirmation process has grown wilder and more unpredictable. That’s true even for midlevel career diplomats, as can be seen with the multiple Foreign Service lists that continue to languished within the Senate Foreign Relations Committee.

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The following are the nominees submitted by the President to the Senate for confirmation during the current congress. They are currently undergoing committee consideration at the SFRC according to senate.gov:

AMBASSADORS

2015-11-09 PN934 MARSHALL ISLANDS | Karen Brevard Stewart, of Florida, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of the Marshall Islands.

2015-10-21 PN916 BARBADOS+ | Linda Swartz Taglialatela, of New York, a Career Member of the Senior Executive Service, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Barbados, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Federation of St. Kitts and Nevis, Saint Lucia, Antigua and Barbuda, the Commonwealth of Dominica, Grenada, and Saint Vincent and the Grenadines.

2015-10-21 PN915 BURMA | Scot Alan Marciel, of California, a Career Member of the Senior Foreign Service, Class of Career Minister, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Union of Burma.

2015-10-21 PN914 EL SALVADOR | Jean Elizabeth Manes, of Florida, a Career Member of the Senior Foreign Service, Class of Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of El Salvador.

2015-10-08 PN910 LUXEMBOURG | David McKean, of Massachusetts, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Luxembourg.

2015-10-05 PN894 ECUADOR | Todd C. Chapman, of Texas, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Ecuador.

2015-09-16 PN848 SERBIA | Kyle R. Scott, of Arizona, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Serbia.

2015-09-16 PN847 BULGARIA  | Eric Seth Rubin, of New York, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Bulgaria.

2015-07-30 PN744 PANAMA | John D. Feeley, of the District of Columbia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Panama.

2015-07-08 PN632 MALTA | G. Kathleen Hill, of Colorado, a Career Member of the Senior Foreign Service, Class of Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Malta.

2015-07-08 PN630 PAPUA NEW GUINEA/SOLOMON IS/VANUATU | Catherine Ebert-Gray, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Independent State of Papua New Guinea, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Solomon Islands and Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Vanuatu.

STATE DEPARTMENT

2015-10-08 PN909 STATE/ENR | Amos J. Hochstein, of the District of Columbia, to be an Assistant Secretary of State (Energy Resources).

2015-01-08 PN48 STATE/OES | Jennifer Ann Haverkamp, of Indiana, to be Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs.

2015-10-05 PN895 APEC | Matthew John Matthews, of Oregon, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, for the rank of Ambassador during his tenure of service as United States Senior Official for the Asia-Pacific Economic Cooperation (APEC) Forum.

2015-07-08 PN628 OAS | Mari Carmen Aponte, of the District of Columbia, to be Permanent Representative of the United States of America to the Organization of American States, with the rank of Ambassador.

2015-09-10 PN827 UNGA | Cassandra Q. Butts, of the District of Columbia, to be a Representative of the United States of America to the Seventieth Session of the General Assembly of the United Nations.

2015-08-05 PN771 IAEA | Laura S. H. Holgate, of Virginia, to be the Representative of the United States of America to the International Atomic Energy Agency, with the rank of Ambassador.

2015-08-05 PN770 UNVIE | Laura S. H. Holgate, of Virginia, to be Representative of the United States of America to the Vienna Office of the United Nations, with the rank of Ambassador.


OTHERS

2015-01-08 PN50 Peace Corps | Carlos J. Torres, of Virginia, to be Deputy Director of the Peace Corps.

2015-09-16 PN844 European Bank for Reconstruction and Development | Catherine Ann Novelli, of Virginia, to be United States Alternate Governor of the European Bank for Reconstruction and Development.

2015-03-04 PN240 International Monetary Fund | Mark Sobel, of Virginia, to be United States Executive Director of the International Monetary Fund for a term of two years.

2015-02-26 PN229 African Development Bank | Marcia Denise Occomy, of the District of Columbia, to be United States Director of the African Development Bank for a term of five years.

2015-02-26 PN228 Inter-American Development Bank | Mileydi Guilarte, of the District of Columbia, to be United States Alternate Executive Director of the Inter-American Development Bank.

FOREIGN SERVICE LISTS pending at the SFRC:

2015-11-10 PN939 Foreign Service | Nominations beginning Steven Carl Aaberg, and ending Sandra M. Zuniga Guzman, which 119 nominations were received by the Senate and appeared in the Congressional Record on November 10, 2015.

2015-09-21 PN877-2 Foreign Service | Nomination for Derell Kennedo, which nomination was received by the Senate and appeared in the Congressional Record on September 21, 2015.

2015-09-10 PN830 Foreign Service | Nominations beginning Christopher Alexander, and ending Tipten Troidl, which 28 nominations were received by the Senate and appeared in the Congressional Record on September 10, 2015.

2015-06-10 PN573-2 Foreign Service | Nominations beginning Jeffries Blunt de Graffenried, Jr., and ending Christopher Nairn Steel, which 3 nominations were received by the Senate and appeared in the Congressional Record on June 10, 2015.

2015-05-07 PN464 Foreign Service | Nominations beginning Eric Del Valle, and ending Ryan Truxton, which 7 nominations were received by the Senate and appeared in the Congressional Record on May 7, 2015.

2015-02-26 PN230-2 Foreign Service | Nominations beginning David Elliott Horton III, and ending Victoria L Mitchell, which 2 nominations were received by the Senate and appeared in the Congressional Record on February 26, 2015.

2015-01-13 PN72-4 Foreign Service | Nominations beginning Eric N. Rumpf, and ending Daniel Menco Hirsch, which 3 nominations were received by the Senate and appeared in the Congressional Record on January 13, 2015.

2015-01-13 PN71-2 Foreign Service | Nominations beginning David J. Barth, and ending R. Douglass Arbuckle, which 2 nominations were received by the Senate and appeared in the Congressional Record on January 13, 2015.

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State/OIG Honored With CIGIE Awards — Congratulations!

Posted: 12:37 am EDT

 

Via State/OIG:

On October 22, 2015, the Council of Inspectors General on Integrity and Efficiency (CIGIE)  held their 18th annual inspector general community awards ceremony, with Attorney General Loretta Lynch as the keynote speaker.

In fiscal year 2014, the IG community identified potential savings of over $46.5 billion as well as program efficiencies and enhancements. Offices of Inspectors Generals (OIGs) successfully investigated individuals and entities who threatened government integrity and the public trust. Cumulatively, these efforts resulted in $13.8 billion in potential savings from audit recommendations; $32.7 billion in potential savings from investigative recoveries and receivables; over 5,500 indictments and criminal information; over 5,800 successful prosecutions; over 5,100 suspensions and debarments; and over 547,000 hotline complaints processed.

Here are the State/OIG awardees:

 

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Several representatives from OIG were recognized as members of the Interagency International Ebola Response and Preparedness Oversight Team “In recognition of the distinguished achievements of the OIGs of USAID, DoD, DOS, and HHS for oversight of the U.S. Government’s international response and preparedness efforts associated with the Ebola outbreak in West Africa.” They included Tinh Nguyen/MERO, Carol E. Hare/AUD, Melissa A. Bauer/AUD, Upeksha Peramune/AUD and William Stapleton.

Congratulations!

Click the 2015 Award Ceremony Booklet for a complete list of awardees.

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Happy Retirement Wishes to Foggy Bottom’s Chief Librarian Hugh Howard

Posted: 2:45 pm EDT

 

We want to send best wishes to Hugh Howard on his retirement as chief librarian of the Ralph J. Bunche Library at the State Department. He will officially retire on November 3.  He joined the Bunche Library in 2001 from USIA where he had been since 1995.  He was Branch Chief for Information Services or Reference until November 2011 when he was selected to be Chief Librarian.

Mr. Howard very kindly scanned for us the Chris Argyris study on the Foreign Service which is no longer in circulation, and available only in paper copy at the library. That study is now part of their digital collection.

When we asked him about his stint as Foggy Bottom’s librarian, he said, “I am only one of a staff of great librarians. I’ve never worked with a better group of librarians. I’ll be going, but the staff will continue to do great work.”

The Ralph J. Bunche Library of the U.S. Department of State is the oldest Federal Government library. It was founded by the first Secretary of State, Thomas Jefferson in 1789. It was dedicated to and renamed the Ralph J. Bunche Library on May 5, 1997. The Library has a large and important collection of unclassified and published information sources on foreign relations.

The Ralph J. Bunche Library is a Federal Depository Library. The mission of the Library is to support the research needs of personnel of the Department of State. The Library is not open to the public and does not lend books directly to members of the public. The Library will lend books, at its discretion, to other libraries. Members of the public must contact a library through which they may borrow books from the Ralph J. Bunche Library.

Enjoy your retirement, Hugh!

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State Dept’s Conduct and Disciplinary FAM Regulations — Still as Clear as Mud?

Posted: 3:54 pm EDT

 

On March 17, the American Foreign Service Association (AFSA) wrote to Arnold Chacon, the Director General of the Foreign Service and the State Department’s top HR official requesting clarity on the applicability of 3 FAM to career and political/non-career employees of the oldest executive agency in the union. (see AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!).

A long time Foreign Service hand told us that the practice has usually been that if a politically appointed State Department official or ambassador violates the Foreign Affairs Manual conduct and disciplinary regulation, that matter is generally raised with the sponsor of the non-career appointee.  Which typically means, the White House.  The infraction is then reportedly handled outside of the State Department system.  In rare cases, the Office of Inspector General is called in with the approval of the secretary of state. This is, apparently not the practice at DOD where political appointees are warned that DOD regulations and enforcement system apply to them equally.

We know that DGHR did respond to AFSA’s inquiry towards the end of Bob Silverman’s tenure but we were told to wait for the incoming elected officials to release the response. Last month, we sent a follow-up email to new AFSA president Barbara Stephenson asking if AFSA can share the DGHR’s clarification on the applicability of the FAM to non-career appointees.  To-date we have received only radio silence from AFSA’s Barbara Stephenson and her VP. We can appreciate why some official correspondence between AFSA and DGHR under special circumstances should be under wraps but what good reason is there not to respond to a solicitation for information on this matter?

A source on background did provide us what DGHR sent to AFSA in response to its March 17 inquiry.

AFSA was seeking clarity as to the provisions in 3 FAM.  In his response, the Director General of the Foreign Service (DGHR) specifically mentions 3 FAM 4300 and 3 FAM 4500 regarding conduct and disciplinary standards and how they might be applied to non-career appointees as opposed to career employees.

DGHR Arnold Chacon writes with an assurance, “From the outset let me assure you that 3 FAM regulations are much more than “guidelines.” They are derived from law and for govemment-wide regulation and are directives to State Department personnel. As you are aware, 3 FAM governs all pertinent personnel policies, practices and matters affecting conditions of employment, most if not all of which as it pertains to Foreign Service is negotiated as appropriate with AFSA.”

DGHR Chacon further writes, “Regarding conduct and discipline of non-career appointees, I can say with confidence that all forms of misconduct are taken seriously by the Department and will be dealt with accordingly. The FAM, by its terms, applies to Schedule A and B appointees. lf a Schedule C or other political appointee were to allegedly commit misconduct, then the State Department and the White House would work in concert to review the situation, take action to prevent abuses, and, if appropriate,  remove the employee. You can be assured that misconduct will always be addressed and dealt with in a fair, thorough and responsive manner, while respecting the right of due process and adherence to the tenet of like penalties for similar offenses.”

Last month, the question of the applicability of the FAM, related to the secretary of state also surfaced during a Daily Press Briefing (see Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?). We note the following in a blog post:

The January 2015 OIG report, Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (pdf) includes the following:

[The] Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.

According to the OIG report, the Under Secretary for Management disagrees with this interpretation:

[T]he Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).

So to sum up, the Office of the Legal Adviser has the opinion that the FAM’s disciplinary provisions do not apply to Ambassadors and other political appointees because they are not members of the Foreign Service or the Civil Service. “M” disagreed with that interpretation.  DGHR, an office reporting to “M” has the opinion that the FAM’s disciplinary provisions do/do apply to Schedule A and B appointees.  But note the careful wording in the DGHR’s response as he makes a distinction about Schedule C/political  appointees. He could have said straight up that the FAM applies to Schedule A, B, and C appointees, he did not.

So, there you have it, still as clear as mud?

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Picur v. Kerry: Court slaps down FSGB annuity decision as “arbitrary and capricious”

Posted: 1:37 am EDT

 

This case is about a USAID/OIG criminal investigator, an annuity calculation, and a Foreign Service Grievance Board decision.

According to court documents, the starting point for computing an annuity payment under the Foreign Service Act of 1980, as amended. See 28 U.S.C. §§ 4041–4069c-1. is section 4046(a)(1), which provides that:

[t]he annuity of a participant shall be equal to 2 percent of his or her average basic salary for the highest 3 consecutive years of service multiplied by the number of years, not exceeding 35, of service credit obtained in accordance with sections 4056 and 4057 of this title[.]

22 U.S.C. § 4046(a)(1). The statute does not define “basic salary” as that term is used in section 4046(a)(1); however, section 4046(a)(8) makes clear that a participant’s “basic pay” for annuity calculation purposes includes the special differential pay that Foreign Service officers are authorized to receive. Id. § 4046(a)(8). Moreover, section 4046(a)(9) provides that, when determining the average basic salary for the highest 3 consecutive years of service—commonly referred to as the participant’s “high three” (see Compl. ¶ 13)—“the basic salary or basic pay of any member of the [Foreign] Service whose official duty station is outside the continental United States shall be considered to be the salary or pay that would have been paid to the member had the member’s official duty station been Washington, D.C., including locality-based comparability payments[.]” 28 U.S.C. § 4046(a)(9).4

Here is a quick summary of the case:

Plaintiff Gregory Picur served as a Foreign Service criminal investigator for the Office of Inspector General of the United States Agency for International Development (“USAID OIG”) from the 1990s until his retirement in May of 2010. The dispute in the instant case concerns the State Department’s calculation of Picur’s retirement annuity, which Picur alleges is incorrect. (See Compl., ECF No. 1, ¶ 14.)1 Generally speaking, Picur contends that the State Department wrongly based its annuity calculation on what the agency says Picur’s salary should have been at the time of his retirement, rather than on the compensation that Picur actually received. (See id. ¶¶ 9–14.) Picur filed an administrative grievance contesting the agency’s calculation of his retirement annuity, but the State Department denied his grievance (see id. ¶ 4), and on appeal of that denial, the Foreign Service Grievance Board (“FSGB”) upheld the agency’s calculation (see id. ¶¶ 5–8), finding that the State Department had determined Picur’s retirement annuity in accordance with agency policies (see, e.g., id. ¶ 35). Picur has filed the instant action against Secretary of State John Kerry (“Defendant” or “the Secretary”), asking this Court to review and to set aside the FSGB’s conclusion as arbitrary, capricious, and not in accordance with law under the Administrative Procedure Act (“APA”).

[…] Defendant argues that the FSGB’s decision should be upheld because the Board examined the relevant evidence and provided a satisfactory explanation for its conclusion. (See Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Br.”), ECF No. 10, at 22–27.) But this Court finds that, when it affirmed the State Department’s annuity calculation, the FSGB did not consider the crucial issue of whether or not the statutory scheme that governs calculation of Picur’s annuity permits the agency to treat the annuity computation process as an opportunity to correct purported prior salary overpayments. In other words, it is clear to this Court that the FSGB ignored a key aspect of the problem that it was deciding in a manner that rendered its decision to uphold the State Department’s annuity calculation arbitrary and capricious in violation of the APA. Consequently, Defendant’s motion for summary judgment must be DENIED, the FSGB’s decision must be VACATED, and the matter must be REMANDED for further consideration.

The court’s conclusion:

Whatever the appropriate statutory analysis, the administrative record in this case makes crystal clear that the FSGB failed to consult any of the statutory provisions that specifically prescribe how an annuity is properly calculated in this context, and it appears to have merely assumed that the State Department has the power to decide that an annuitant’s actual high three salary average is too high for the purpose of an annuity calculation. Consequently, this Court concludes that the Board failed to consider an important aspect of the problem with which it was presented, and thus its decision was arbitrary and capricious for the purpose of the APA. See, e.g., Olsen, 990 F. Supp. at 40 (granting summary judgment for plaintiff where the FSGB “did not properly consider the legality of the [agency’s] policies”); see also Quantum Enterm’t, Ltd. v. U.S. Dep’t of Interior, Bureau of Indian Affairs, 597 F. Supp. 2d 146, 153 (D.D.C. 2009) (holding that where an agency’s “decision [i]s incomplete, [it] violates the prohibition against arbitrary or capricious agency decisions” (citation omitted)).

We are posting the Memorandum Opinion for Picur v. Kerry, Civil Action No. 14-cv-1492 (KBJ) in the the member’s only section of Diplopundit’s forum. Check it out in the forum’s document dump.

The redacted FSGB Record of Proceeding (ROP) for this case is available online here (pdf) via fsgb.gov.

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When the Boss Is Last to Know: Chaffetz Snoops at the Secret Service

Posted: 1:06 pm EDT

 

The Department of Homeland Security Inspector General has completed its independent investigation into allegations that one or more Secret Service agents improperly accessed internal databases to look up the 2003 employment application of Congressman Jason Chaffetz, Chairman of the House Committee on Oversight and Government Reform. The Inspector General has confirmed that between March 24 and April 2, 2015, on approximately 60 different occasions, 45 Secret Service employees accessed Chaffetz’ sensitive personal information. The OIG concluded that only 4 of the 45 employees had an arguable legitimate need to access the information.

Here is the IG’s conclusion:

This episode reflects an obvious lack of care on the part of Secret Service personnel as to the sensitivity of the information entrusted to them. It also reflects a failure by the Secret Service management and leadership to understand the potential risk to the agency as events unfolded and react to and prevent or mitigate the damage caused by their workforce’s actions.

Screen Shot 2015-09-30

via dhs/oig

All personnel involved – the agents who inappropriately accessed the information, the mid-level supervisors who understood what was occurring, and the senior leadership of the Service – bear responsibility for what occurred. Better and more frequent training is only part of the solution. Ultimately, while the responsibility for this activity can be fairly placed on the shoulders of the agents who casually disregarded important privacy rules, the Secret Service leadership must do a better job of controlling the actions of its personnel. The Secret Service leadership must demonstrate a commitment to integrity. This includes setting an appropriate tone at the top, but more importantly requires a commitment to establishing and adhering to standards of conduct and ethical and reasonable behavior. Standards of conduct and ethics are meaningful only if they are enforced and if deviations from such standards are dealt with appropriately.

It doesn’t take a lawyer explaining the nuances of the Privacy Act to know that the conduct that occurred here – by dozens of agents in every part of the agency – was simply wrong. The agents should have known better. Those who engaged in this behavior should be made to understand how destructive and corrosive to the agency their actions were. These agents work for an agency whose motto – “worthy of trust and confidence” – is engraved in marble in the lobby of their headquarters building. Few could credibly argue that the agents involved in this episode lived up to that motto. Given the sensitivity of the information with which these agents are entrusted, particularly with regard to their protective function, this episode is deeply disturbing.

Additionally, it is especially ironic, and troubling, that the Director of the Secret Service was apparently the only one in the Secret Service who was unaware of the issue until it reached the media. At the March 24th hearing, he testified that he was “infuriated” that he was not made aware of the March 4th drinking incident. He testified that he was “working furiously to try to break down these barriers where people feel that they can’t talk up the chain.” In the days after this testimony, 18 supervisors, including his Chief of Staff and the Deputy Director, were aware of what was occurring. Yet, the Director himself did not know. When he became aware, he took swift and decisive action, but too late to prevent his agency from again being subject to justified criticism.

Read the full report here. Check out Appendix 1 for the chronological access to the Chaffetz record which includes multiple field offices, including the London office. Appendix 2 is the timeline of record access.

We can’t remember anything like this happening in the recent past.  There was the 1992 passportgate, of course, which involves a presidential candidate, but that’s not quite the same. In 2009, the DOJ said that a ninth individual pleaded guilty for illegally accessing numerous confidential passport application files, although it was for what’s considered “idle curiosity.”

Whether the intent of the Chaffetz record breach was to embarrass a sitting congressman or curiosity (not everyone who looked at the files leak it to the media), the files are protected by the Privacy Act of 1974, and access by employees is strictly limited to official government duties. Only 4 of the 45 employees who did access the Chaffetz records had a legitimate reason to access the protected information. If the DOJ pursued 9 State Department employees for peeking at the passport records of politicians and celebrities, we can’t imagine that it could simply look away in this case. Particularly in this case.  Winter is definitely coming to the Secret Service.

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Federal Employees With Stolen Fingerprints From OPM Breach – Now Up to 5.6 Million

Posted: 12:05 pm EDT
Updated: 6:39 pm PDT

 

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Here is the official statement from OPM dated September 23, 2015:

As part of the government’s ongoing work to notify individuals affected by the theft of background investigation records, the Office of Personnel Management and the Department of Defense have been analyzing impacted data to verify its quality and completeness.  During that process, OPM and DoD identified archived records containing additional fingerprint data not previously analyzed.  Of the 21.5 million individuals whose Social Security Numbers and other sensitive information were impacted by the breach, the subset of individuals whose fingerprints have been stolen has increased from a total of approximately 1.1 million to approximately 5.6 million.  This does not increase the overall estimate of 21.5 million individuals impacted by the incident.  An interagency team will continue to analyze and refine the data as it prepares to mail notification letters to impacted individuals.

Federal experts believe that, as of now, the ability to misuse fingerprint data is limited.  However, this probability could change over time as technology evolves.  Therefore, an interagency working group with expertise in this area – including the FBI, DHS, DOD, and other members of the Intelligence Community – will review the potential ways adversaries could misuse fingerprint data now and in the future.  This group will also seek to develop potential ways to prevent such misuse.  If, in the future, new means are developed to misuse the fingerprint data, the government will provide additional information to individuals whose fingerprints may have been stolen in this breach.

As we have stated previously, all individuals impacted by this intrusion and their minor dependent children (as of July 1, 2015) are eligible for identify theft and fraud protection services, at no cost to them.  In conjunction with the Department of Defense, OPM is working to begin mailing notifications to impacted individuals, and these notifications will proceed on a rolling basis.

OPM and our partners across government are working to protect the safety and security of the information of Federal employees, service-members, contractors, and others who provide their information to us. Together with our interagency partners, OPM is committed to delivering high-quality identity protection services to impacted individuals. The interagency team will continue to review the impacted data to enhance its quality and completeness, and to monitor for any misuse of the data. The U.S. Government will continue to evaluate the coverage being provided and whether any adjustments are needed in association with this incident.

Sigh. Grrr. Sigh. Grrr. Sigh. Grrr. Sigh. Grrr.

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