The following is a decision from the Merit Systems Protection Board, and considered a precedential decision, one that can be cited as authoritative going forward.
Appellant: Timothy Allen Rainey
Agency: Department of State
Decision Number: 2015 MSPB 49
MSPB Docket No.: DC-1221-14-0898-W-1 Issuance
Date: August 6, 2015
Appeal Type: Individual Right of Action Action
Whistleblower Protection Act Jurisdiction
The appellant filed an Individual Right of Action appeal alleging that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations and training certification procedures. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant’s claim of retaliation based on refusal to violate acquisition regulations and training procedures did not amount to a nonfrivolous allegation that he refused to obey an order that would require him to violate a law.
Holding: The Board affirmed the initial decision.
1. While employees are protected from whistleblower retaliation for refusing to obey an order that would require a violation of the law under 5 U.S.C. § 2302(b)(9)(D), the Supreme Court made clear in Department of Homeland Security v. MacLean,135 S. Ct. 913 (2015) that this protection does not extend to violations of an agency regulation or policy.
The MSPBassumed the employee appeals function of the Civil Service Commission and was given responsibilities to perform merit systems studies and to review the significant actions of OPM. State Department’s civil servants have appeals rights in the MSPB. The employee also has a right to request review of the final decision by the United States Court of Appeals for the Federal Circuit.
“Who is the as yet unnominated Civil Service member who is SO certain of her ambassadorship that she is already tasking the desk and her prospective post with confirmation prep? Is Congress as certain of her ambassadorship as she is?”
This report is based on the Federal Employee Viewpoint Survey (FEVS), a tool that “measures employees’ perceptions of whether, and to what extent, conditions characterizing successful organizations are present in their agencies.” The full report is available here.
On June 29, OPM announced the temporary suspension of the online system used to submit background investigation forms. The system could be offline from 4-6 weeks. Below via opm.gov:
WASHINGTON, D.C. – The U.S. Office of Personnel Management today announced the temporary suspension of the E-QIP system, a web-based platform used to complete and submit background investigation forms.
Director Katherine Archuleta recently ordered a comprehensive review of the security of OPM’s IT systems. During this ongoing review, OPM and its interagency partners identified a vulnerability in the e-QIP system. As a result, OPM has temporarily taken the E-QIP system offline for security enhancements. The actions OPM has taken are not the direct result of malicious activity on this network, and there is no evidence that the vulnerability in question has been exploited. Rather, OPM is taking this step proactively, as a result of its comprehensive security assessment, to ensure the ongoing security of its network.
OPM expects e-QIP could be offline for four to six weeks while these security enhancements are implemented. OPM recognizes and regrets the impact on both users and agencies and is committed to resuming this service as soon as it is safe to do so. In the interim, OPM remains committed to working with its interagency partners on alternative approaches to address agencies’ requirements.
“The security of OPM’s networks remains my top priority as we continue the work outlined in my IT Strategic Plan, including the continuing implementation of modern security controls,” said OPM Director Archuleta. “This proactive, temporary suspension of the e-QIP system will ensure our network is as secure as possible for the sensitive data with which OPM is entrusted.”
Meanwhile, on June 22, AFSA sent a letter to OPM Director Katherine Archuleta with the following requests:
via afsa.org (click for larger view)
On June 25, AFSA is one of the 27 federal-postal employee coalition groups who urge President Obama to “immediately appoint a task force of leading agency, defense/intelligence, and private-sector IT experts, with a short deadline, to assist in the ongoing investigation, apply more forceful measures to protect federal personnel IT systems, and assure adequate notice to the federal workforce and the American public.” (read letter here: AFSA Letter sent in conjunction with the Federal-Postal Coalition |June 25, 2015 | pdf)
The WH has now officially announced President Obama’s intent to nominate Roberta S. Jacobson as the next Ambassador to the United Mexican States. The WH released the following brief bio:
Roberta S. Jacobson, a career member of the Senior Executive Service, is the Assistant Secretary for Western Hemisphere Affairs at the Department of State, a position she has held since 2012. From 2010 to 2012, she was the Principal Deputy Assistant Secretary for Western Hemisphere Affairs. Previously, Ms. Jacobson served as the Deputy Assistant Secretary for Canada, Mexico, and NAFTA issues from 2007 to 2010 and as Director of the Office of Mexican Affairs from 2003 to 2007. She was Deputy Chief of Mission at the U.S. Embassy in Lima, Peru from 2000 to 2002. From 1989 to 2000, Ms. Jacobson held several roles in the Bureau of Western Hemisphere Affairs, including Director of the Office of Policy Planning and Coordination from 1996 to 2000. She began her career at the Department of State as a Presidential Management Intern.
Ms. Jacobson received a B.A. from Brown University and an M.A. from the Fletcher School of Law and Diplomacy at Tufts University.
If confirmed, Ms. Jacobson would succeed career diplomat Tony Wayne who was appointed Ambassador to Mexico by President Obama in 2011. President Obama had previously nominated Maria Echaveste for the Mexican post in the fall of 2014. She withdrew her nomination after waiting four months for her confirmation. Her supporters blamed it on a “failed, politicized nomination process” according to NBCNews.
The Mexico Mission is one of our largest posts. We hope Ms. Jacobson gets a speedy confirmation but the SFRC is a perplexing place these days. We want to add that we’ve watched Ms. Jacobson stay cool and collected under congressional grilling over the Administration’s Cuba policy. She is probably one of the State Department’s better congressional witnesses — straight-forward, not antagonistic or evasive, and was engaging. She did not get flustered even when senators were in their scolding best for the cameras. She obviously knows her stuff, and she looks them in the eye when she talks. We’d like to suggest that the State Department clone her for its congressional witnesses prep.
Hey, did you know that Andrew Jackson was the first nominee for ambassador to Mexico? According to history.state.gov, he was appointed on January 27, 1823 but he declined the appointment. It looks like the second appointee in 1824 did not proceed to post either. Joel Roberts Poinsett (1779-1851) was then appointed in 1825 and he did present his credentials three months after his appointment. If confirmed, Ms. Jacobson would be the first female American ambassador appointed to Mexico. Ever. Can we get a yay! for that?
What are we learning from this first batch of emails?
1) The document dump is not arranged or ordered in any useful way. The emails from 2011 are mixed with 2012. Some of the emails are included more than once. Some of the redactions are rather odd, given that some of these emails were already published via the NYT. The former secretary of state is not referred to as HRC, only as “H.” The emails show an extremely small number of gatekeepers – Mills, Sullivan, Abedin, plus a couple of folks routinely asked to print this or that.
2) Sid, Sid, Sid — there are a good number of memos from “friend of S” or “HRC’s contact,” Sidney Blumenthal, who apparently had his own classification system. The memos he sent were marked “Confidential” although he was no longer a USG employee at the time he sent them and presumably, no classifying authority. Imagine the COM in Libya and NEA folks chasing down this intel stuff. Right. Instead of “OGA” for other government agency, State got “FOS”or “friend of S” as intel source.
3) “Pls. print” one of the former secretary of state’s favorite response to emails sent to her.
4) When former Secretary Clinton finally addressed the firestorm of her use of private email, she said: “I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two,” a self-assured Clinton told more than 200 reporters crowded into a U.N. corridor. (via Reuters). It looks like she had more than one email address, and we don’t know how many devices. The email below was sent from an iPad.
8) In November 2012, the House Intelligence Committee had a closed hearing that reportedly had the Director of National Intelligence James Clapper, Matt Olsen, Director of the National Counterterrorism Center, CIA Acting Director Michael Morell and the State Department’s Under Secretary for Management Patrick Kennedy. Those could be the Matt and Pat in this email:
9) There was a meeting at the WH Situation Room on Nov 26, 2:35 pm on Benghazi. The invitation was for the Secretary +1, and if she was unable to attend, an invitation for one representative only. The then Executive Secretary John Bass (now US Ambassador to Turkey) asked Mills if she’d prefer “Pat” to attend or “Dan.” Dan is State’s former counterterrorism guy, replied “Pat should go” in reference to Patrick Kennedy. Mills asked HRC if she’s good with Pat going and she replied “I think I should go w Pat.”
10) On December 17, 2012, then State Department spokesperson Victoria Nuland (now A/S for the EUR bureau) confirmed that the Accountability Review Board on Benghazi had concluded its work, and that the report went to Secretary Clinton that day (see ARB Concludes Work, Unclassified Report May Be Publicly Available on Wednesday). The following email is between Burns and Mills dated December 18, 2012. It mentions three names, Eric, Pat, and Greg Starr. We are guessing that the Eric in the email is Eric Boswell, the then Assistant Secretary of Bureau of Diplomatic Security, and Pat is the Under Secretary for Management. The portion referencing Greg Starr was redacted except for Burns’ “I like the Greg Starr idea.”
11) On December 20, 2012, the State Department’s two deputies, William Burns and Thomas Nides went before Congress instead of Secretary Clinton (see Clinton Recovering, Top Deputies Burns and Nides Expected to Testify Dec.20). Thank yous all around with HRC saying thank you to Burns and Nides. Thereafter, Cheryl Mills sent an email praising HRC’s email as being “so nice.” This was then followed with more thank yous from Nides and Burns.
12) So nothing surprising in the emails except the parts that may give some of us toothache. And the missing parts. This is only the first batch of emails although our understanding is that this constitutes the Benghazi-related emails. If that’s the case, it is striking that we see:
a) No emails here to/from Eric Boswell, the Assistant Secretary for Diplomatic Security.
c) No emails to/from Gregory Hicks who was Embassy Tripoli’s DCM at the time of the attack and who would have been attached by phone/email with Foggy Bottom (Hey! Are telephone conversations recorded like Kissinger’s?)
d) Except for an email related to one of the ARB panel member, there are no emails related to setting up the ARB, the process for the selection of ARB members, the assistance requested by the ARB, the support provided by the State Department to the panel, etc. What happened to those emails?
13) Then Secretary Clinton was using at least two emails from her private server according to these released emails. It does not look like anyone from the State Department could have just sent her an email by looking her up on the State Department’s Global Address List (GAL). But certainly, her most senior advisers including the experienced, career bureaucrats at the State Department must have known that she was using private email.
Seriously, no one thought that was odd? Or did everyone in the know thought it was beyond their pay grade to question the practice? Let’s imagine an entry level consular officer conducting official business using a private email server. How long would that last? Right.
So what happened there? Ugh! Pardon me? You were just doing your job? That CIA briefer also was just doing his job.
Dr. Terry Newell will address – through cases, exercises, and practical tips – not only how to speak truth to power, but how to keep your job when doing so, as well as what leaders need to do to foster the moral courage needed in their organizations.
Foreign and Civil Service members best serve when they voice their concerns about a policy or practice that fails to advance the mission and goals of their agency or the U.S. government. Leaders also need to encourage professional criticism or, as it is sometimes called, constructive dissent. AFSA has long supported constructive dissent through its awards program.
Dr. Newell spent nearly forty years in the federal government including distinguished service in the U.S. Air Force, the Department of Education, and the Office of Personnel Management. Since leaving his last position as Dean of Faculty at the Federal Executive Institute, he has concentrated on writing and teaching about ethical leadership in government. His books include The Trusted Leader: Building the Relationships That Make Government Work; Statesmanship, Character and Leadership in America; and – most recently – To Serve with Honor: Doing the Right Thing in Government. This book is filled with case studies, checklists, and stories of exemplary public servants, offering a practical, readable roadmap for acting ethically.
WaPo reported last week that federal employees responsible for reviewing and processing U.S. passports are now prohibited from bringing their cellphones to work. The new rule would affect the 1,200 government workers and 1,000 private contractors in passport offices across 22 domestic locations. What started this off? Who knows except that there apparently was a contractor in Houston:
“The rumor among passport workers is that a contractor in Houston was taking pictures of private information on passports.”
A State Department official confirmed the new policy to WaPo: “The Department has a serious and important obligation to protect the personally identifiable information (PII) of U.S. citizens applying for passports,” the official said. “Prohibiting cellphones throughout our Passport Agencies, where employees review and process passport applications, is an effort to further protect passport applicant’s PII.”
The National Federation of Federal Employees (NFFE) Local 1998 that represents Passport Agency workers nationwide is not happy. The union wondered what use is getting these employees secret clearances if they can’t be trusted with the information?
Donald M. Bishop, President of the Public Diplomacy Council, served 31 years in USIA and the State Department. A Public Diplomacy officer, his first assignments were in Hong Kong, Korea, and Taiwan, and he led Public Diplomacy at the American embassies in Bangladesh, Nigeria, China, and Afghanistan. He served as the Foreign Policy Advisor (POLAD) to two members of the Joint Chiefs of Staff at the Pentagon. The piece below was originally published via the Public Diplomacy Council website and republished here with Mr. Bishop’s kind permission.
Sources of State Department Senior Leadership
by Donald M. Bishop
In recent months, the front pages, websites, columns, blogs, and talking heads rediscovered an old issue — the nomination of individuals who raised funds for a Presidential campaign to be ambassadors. A few nominees were embarrassed at their Senate confirmation hearings.
This short piece is NOT about ambassadorial nominees. Rather, let me step back and discuss the naming of political appointees to senior policy positions in the Department of State.
The American Foreign Service Association counts the number of political vs. career appointees as Deputy Secretary, Under Secretary, Assistant Secretary, Special Envoy, Special Representative, Director, Chief, Coordinator, Advisor, and Executive Secretary. In 2012, 27 were career officers, and 63 were political appointees. This was the highest percentage of political appointees in policy positions since AFSA began counting. In 2008 there were 26 senior noncareer Schedule B hires; in 2012 there were 89.
How about Public Diplomacy? Three bureaus report to the Under Secretary for Public Diplomacy and Public Affairs — Public Affairs (PA), Educational and Cultural Affairs (ECA), and International Information Programs (IIP). All three bureaus are led by appointees. The three bureaus have eleven positions at the level of Deputy Assistant Secretary, and six geographic bureaus all have Deputy Assistant Secretaries assigned Public Diplomacy portfolios. For these 17 positions, the exact count varies with ordinary turnover, but it is safe to say about half are career, and half are political.
No matter the bureau or function, many of these appointees indeed have solid foreign policy credentials. There are many paths to expertise and several different incubators in foreign affairs, and the Foreign Service is only one. Many experts have worked in Congress, the NSC and the White House, Presidential campaigns, and at the think tanks at different times in their careers. At the beginning of their careers, they may have served in the Peace Corps or, less often, the armed forces.
Over the years, I worked with many appointees. Many brought energy and fresh ideas into the Department. This essay is not about individuals – many of whom earned my admiration – but rather about organizational dynamics.
I have concluded that an overreliance on political appointees from outside the Foreign Service weakens the conduct of American foreign policy. These reasons have little to do with the qualifications of the individuals. If the administration decides that this or that position at the State Department is better filled by a political appointee than by a Foreign Service officer, there are three down sides.
First, the search and selection process, vetting, security clearances, and – for those positions requiring confirmation by the Senate — long waits for hearings and confirmation add up to long vacancies between incumbents. During the vacancies, someone picks up the slack, for sure, but some other portfolio is shorted. Even if a career officer serves as “Acting,” the Department waits for the President’s nominee to come on board before launching new initiatives and committing funds. Preferring political appointees from the outside, then, slows foreign policy down. Public Diplomacy, in particular, suffered from long periods between Under Secretaries.
Second, whatever their regional or issue expertise, whichever Washington arena gave them their chops, however close appointees may be to the President and his team, they have had no reason to understand “the machinery” or “the mechanics” of the State Department – its funding, authorities, planning, reporting, budget cycle, and incentives.
All organizations have an organizational culture. For the State Department and the Foreign Service, it encompasses the five cones, the assignment and promotion systems, hierarchies, the “D Committee” which recommends career FSOs to the White House to become ambassadors, and agreements with bargaining agents. The culture includes such intangibles as policy planning but not program planning, tradeoffs between goals, “buttons to push,” “energy sponges,” “lanes,” “corridor reputations,” and the “thin bench.” The “ship of State” can indeed respond to new priorities, but few appointees have the inside experience to know how to make it turn quickly and smoothly.
All understand, moreover, that if something more is needed – “reform” of the Department, its processes, or the Foreign Service – it can take many years to achieve. A career officer can commit to a long process of reform and understand the payoff down the road. A political appointee may understand the need to change the Department’s way of doing business, but what is the incentive for doing so? The appointee will be on to fresh pastures, through the revolving door, and doing something else soon. Why take on tasks that will outlast her appointment?
Third, political appointees naturally come to the State Department with a strong intention to advance the President’s agenda. Their frame of mind is, then, “top down,” meaning that ambassadors, embassies, consulates, and the Foreign Service should take their lead from the White House and become implementers of this month’s or this year’s White House policy initiatives. If, for instance, the President believes that the United States must promote action against climate change, the political appointees in the Bureaus insure that the Department responds. As a result, even Embassies in countries with strong environmental records – Western Europe, say — adjust their priorities to respond to the “top down” agenda.
A focus on the administration’s global broad-brush themes, however, inevitably crowds out the attention paid to bilateral issues. Every Mission spends a large part of its spring in a deliberate process defining specific bilateral strategic goals, but their implementation can be overridden by political appointees and top-down priorities. Many Public Affairs Officers at overseas posts have noted the shift to a “Washington driven” agenda. The Foreign Service is always ready to “surge,” so to speak, on the nation’s most important objectives, but it’s not possible to “surge” month in and month out. When an embassy surges on one administration priority, moreover, it can’t be very effective when yet one more surge is asked for.
I submit, then, that reliance on political appointees weakens not strengthens the achievement of America’s national goals. Long vacancies slow down the implementation of policy. Lacking institutional knowledge, appointees increase the friction within the system. They tip the scales to respond to worldwide, “top-down” rather than bilateral goals. There will always be a mix of political appointees and career officers in the State Department’s senior policy positions, but in my judgment the nation is better served when there are more of the latter than the former.
The original post is here, check out the comments.
The Nation listsStaffing the Executive Branch as one of the possible problematic area after the GOP take-over of the U.S. Senate:
For much of the Obama presidency, Republicans in the Senate stymied up literally hundreds of presidential appointments to cabinet slots big and small, as well as nominations to the federal bench. Harry Reid implemented filibuster reform one year ago, and nominations have been handled more quickly—but with Republicans in charge, expect them to grind to a halt. Republicans blocked nominees reflexively under the old filibuster rules, many times without offering a single actual objection, and that’s very likely to resume now.
The recent Yahoo article about the State Department being top heavy with political picks, also include the following nugget:
A top GOP aide, asked what would happen to the stalled “ambassadonor” nominations, signaled that those would-be diplomats shouldn’t pack their bags.
When it comes to confirmations of Obama nominees in a Republican Senate, the aide said dryly, “partisan picks and Obama bundlers won’t be at the top of the list.”
So — in real terms, that means no one can pack their bags or schedule any packout. Maybe, we’ll see some confirmation of career diplomats to ambassadorial positions this year. Or maybe not. What might be more problematic, of course, would be the confirmation of presidential bundlers nominated as ambassadors to some of our overseas posts. If the clock runs out and none of these nominees get confirmation this year, President Obama will have to resubmit these nominations to the next Congress in January 2015. A GOP-controlled Senate may or may not act on these nominations.
The following are the ambassadorial nominees currently pending on the Senate’s Executive Calendar. They have all been cleared by the Senate Foreign Relations Committee but could not get voted on in the full Senate:
Ambassadorial Nominees: Career Diplomats
Karen Clark Stanton, of Michigan, to be Ambassador to the Democratic Republic of Timor-Leste
Donald Lu, of California, to be Ambassador to the Republic of Albania
Amy Jane Hyatt, of California, to be Ambassador to the Republic of Palau
Arnold A. Chacon, of Virginia, to be Director General of the Foreign Service
Luis G. Moreno, of Texas, to be Ambassador to Jamaica
Maureen Elizabeth Cormack, of Virginia, to be Ambassador to Bosnia and Herzegovina
Theodore G. Osius III, of Maryland, to be Ambassador to the Socialist Republic of Vietnam
Leslie Ann Bassett, of California, to be Ambassador to the Republic of Paraguay
George Albert Krol, of New Jersey, to be Ambassador to the Republic of Kazakhstan
Marcia Stephens Bloom Bernicat, of New Jersey, to be Ambassador to the People’s Republic of Bangladesh
James D. Pettit, of Virginia, to be Ambassador to the Republic of Moldova
Allan P. Mustard, of Washington, to be Ambassador to Turkmenistan
Erica J. Barks Ruggles, of Minnesota, to be Ambassador to the Republic of Rwanda
Earl Robert Miller, of Michigan, to be Ambassador to the Republic of Botswana
Judith Beth Cefkin, of Colorado, to be Ambassador to the Republic of Fiji, and to serve concurrently and without additional compensation as Ambassador to the Republic of Kiribati, the Republic of Nauru, the Kingdom of Tonga, and Tuvalu
James Peter Zumwalt, of California, to be Ambassador to the Republic of Senegal and to serve concurrently and without additional compensation as Ambassador to the Republic of Guinea-Bissau
Craig B. Allen, of Virginia, to be Ambassador to Brunei Darussalam
Barbara A. Leaf, of Virginia, to be Ambassador to the United Arab Emirates
Virginia E. Palmer, of Virginia, to be Ambassador to the Republic of Malawi
William V. Roebuck, of North Carolina, to be Ambassador to the Kingdom of Bahrain
Pamela Leora Spratlen, of California, to be Ambassador to the Republic of Uzbekistan
Donald L. Heflin, of Virginia, to be Ambassador to the Republic of Cabo Verde
Robert T. Yamate, of California, to be Ambassador to the Republic of Madagascar, and to serve concurrently and without additional compensation as Ambassador to the Union of the Comoros
Gentry O. Smith, of North Carolina, to be Director of the Office of Foreign Missions, and to have the rank of Ambassador during his tenure of service
Linda Thomas-Greenfield, an Assistant Secretary of State (African Affairs), to be a Member of the Board of Directors of the African Development Foundation for the remainder of the term expiring September 27, 2015
Michele Jeanne Sison, of Maryland, to be the Deputy Representative of the United States of America to the United Nations, with the rank and status of Ambassador, and the Deputy Representative of the United States of America in the Security Council of the United Nations
Brent Robert Hartley, of Oregon, to be Ambassador to the Republic of Slovenia
Ambassadorial Nominees: Non-Career Political Appointees
George James Tsunis, of New York, to be Ambassador to the Kingdom of Norway
Colleen Bradley Bell, of California, to be Ambassador to Hungary
Robert C. Barber, of Massachusetts, to be Ambassador to the Republic of Iceland
Mark Gilbert, of Florida, to be Ambassador to New Zealand, and to serve concurrently and without additional compensation as Ambassador to the Independent State of Samoa
John L. Estrada, of Florida, to be Ambassador to the Republic of Trinidad and Tobago
Brent Robert Hartley, of Oregon, to be Ambassador to the Republic of Slovenia
Cassandra Q. Butts, of the District of Columbia, to be Ambassador to the Commonwealth of The Bahamas
Noah Bryson Mamet, of California, to be Ambassador to the Argentine Republic
Stafford Fitzgerald Haney, of New Jersey, to be Ambassador to the Republic of Costa Rica
Charles C. Adams, Jr., of Maryland, to be Ambassador to the Republic of Finland
Frank A. Rose, of Massachusetts, to be an Assistant Secretary of State (Verification and Compliance)
Catherine Ann Novelli, of Virginia, to be United States Alternate Governor of the European Bank for Reconstruction and Development (currently Under Secretary for State/E)
David Nathan Saperstein, of the District of Columbia, to be Ambassador at Large for International Religious Freedom
Paige Eve Alexander, of Virginia, to be an Assistant Administrator of the United States Agency for International Development (USAID)
Jonathan Nicholas Stivers, of the District of Columbia, to be an Assistant Administrator of the United States Agency for International Development (USAID)