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House GOP Brings Back Holman Rule to “Retrench” Agency Spending, Cut Pay of Any Federal Employee

Posted: 2:59 pm PT

 

Via WaPo:

House Republicans this week reinstated an arcane procedural rule that enables lawmakers to reach deep into the budget and slash the pay of an individual federal worker — down to a $1 — a move that threatens to upend the 130-year-old civil service.

The Holman Rule, named after an Indiana congressman who devised it in 1876, empowers any member of Congress to offer an amendment to an appropriations bill that targets a specific government employee or program.

A majority of the House and the Senate would still have to approve any such amendment, but opponents and supporters agree that it puts agencies and the public on notice that their work is now vulnerable to the whims of elected officials.

Via Federal News Radio:

The House of Representatives voted on party lines and approved the rules package for the 115th Congress. It reinstates the “Holman Rule,” a little-known provision that allows lawmakers to bring an amendment on an appropriations bill to the House floor that may “retrench” agency spending, reduce the number of federal employees in a particular agency or cut the salary or “compensation of any person paid out of the Treasury of the United States.”

srene

 

Excerpt from the GOP Rules Package from January 3, 2017:

Holman Rule – A new standing order for the first session of the 115th Congress reinstates the “Holman Rule”, most of which was removed from the standing rules in 1983.  The standing order functions as an exception to clause 2 of rule XXI to allow provisions changing law in certain limited circumstances.  Under this order, a provision in a general appropriation bill or an amendment thereto may contain legislation to retrench expenditures by (1) reducing amounts of money in the bill, (2) reducing the number of salaries of Federal employees, or (3) reducing the compensation of any person paid by the Treasury. To qualify for treatment under this order, an amendment must be offered after the reading of the bill and must comply with all applicable rules of the House, such as germaneness.  The purpose of this provision is to see if the reinstatement of the Holman rule will provide Members with additional tools to reduce spending during consideration of the regular general appropriation bill.

FreedomWorks which praised the inclusion of the “Holman Rule” in the rules package that passed the House of Representatives by a vote of 234 to 193 says:

The provision, which is effective only for the first session of the 115th Congress, allows Members to introduce amendments to appropriations bills on the floor of the lower chamber to reduce the size of a federal agency’s workforce or adjust compensation for certain federal employees, who, according to a 2015 study by the Cato Institute, earn an average of 78 percent more than workers in the private sector.

The group also puts out a backgrounder for the Holman Rule, which we are not acquainted of, until today:

Named after Rep. William Holman (D-Ind.), the “Holman Rule” was first adopted by the House in 1876. Holman, a member of the House Appropriations Committee and a fierce opponent of federal spending, introduced the amendment to reduce extraneous spending. The Holman Rule was part of the House rules from 1876 until 1895. It was adopted again as part of the rules in 1911 and survived intact until 1983, when Democrats, who had the majority in the House, nixed it.

Some House Democrats complained about the reinstatement of the Holman Rule prior to the vote on the rules package, foolishly suggesting that it is an attack on federal workers. “Reinstating the so-called ‘Holman Rule’ would allow any Member of Congress to simply offer an amendment that could reduce the salary of any federal employee, or eliminate a federal employee’s position without hearings, testimony, or due process,” Reps. Don Beyer (D-Va.), Steny Hoyer (D-Md.), Gerry Connolly (D-Va.), John Delaney (D-Md.), and Delegate Eleanor Holmes Norton (D-D.C.) said in a press release. “[W]ith this rule House Republicans would instead treat these civil servants like political pawns and scapegoats.”

FreedomWorks notes that “the reinstatement of the Holman Rule is temporary, lasting only for the first session of the 115th Congress, or the 2017 legislative year. But its revival is a trial run that could lead to spending cuts for federal agencies that often run roughshod over congressional authority in Article I of the Constitution, as well as achieve the goal of reducing federal spending as the national debt approaches $20 trillion.”

So a “trial run” for this legislative year, but could become normal in the years ahead.  The reinstatement of the Holman Rule was lost in the uproar over the proposed gutting of the Office of Congressional Ethics (OCE). The WaPo report says that as “a concession to Republicans who oppose this rule, leaders designed it to expire in one year unless lawmakers vote to keep it in place.” But the same report quotes House Majority Leader Kevin McCarthy (R-Calif.) saying that “insofar as voters elected Trump with the hope of fundamentally changing the way government works, the Holman Rule gives Congress a chance to do just that.”  

“This is a big rule change inside there that allows people to get at places they hadn’t before,”  McCarthy told reporters.

Note that WaPo says a majority of the House and the Senate would still have to approve any such amendment to an appropriations bill that targets a specific government employee or program, but that this puts agencies and the public on notice that their work is now vulnerable to the whims of elected officials.

So, we’re now all just waiting to see which congressional representative will be the first to throw a tantrum and attempt to get a federal employee’s salary down to $1.00?

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House Democrats Call on @StateDept to Resist Potential Political Witch-Hunts

Posted: 1:12 am ET

 

In October 2016, then candidate Donald Trump retweeted an editorial by the NYPost about what it calls the “State Department’s shadow government.” Trump’s Twitter archive also includes a few tweets about the “State Department” here, “embassy” here, and the term “ambassador” here. Given the tenor of his typical tweets, these tweets are normal in their abnormality, that is, they’re not unique in themselves.

Last week, there were reports that the Trump Transition asked the Department of Energy for a list of agency employees or contractors who attended meetings or conferences on climate change. The 74-point questionnaire (PDF) includes questions like “Can you provide a list of all Department of Energy employees or contractors who have attended any lnteragency Working Group on the Social Cost of Carbon meetings? Can you provide a list of when those meetings were and any materials distributed at those meetings, EPSA emails associated with those meetings, or materials created by Department employees or contractors in anticipation of or as a result of those meetings?”

The Department of Energy had since responded saying,  “We will be forthcoming with all publically-available information with the transition team. We will not be providing any individual names to the transition team.”

The report was concerning given the department history with the red scare and the lavender scare; we wondered where else the Transition Teams were seeking names. On December 14, CNN reported that Donald Trump’s transition team disavowed the questionnaire sent to the Energy Department requesting the names of employees working on climate change issues. “The questionnaire was not authorized or part of our standard protocol. The person who sent it has been properly counseled,” a Trump transition official told CNN.

We are not aware that a similar request was sent to the State Department. However, the Democratic members of the House Foreign Affairs Committee (HFAC) have already called on Secretary Kerry “to resist any attempt by the incoming Administration to single out individual employees who have worked in support of Obama Administration priorities.”  In their letter, 18 Committee members urged Secretary Kerry to follow suit with their Energy Department counterparts and refuse any such request.

In a letter to Secretary Kerry, the Members wrote, “We believe your Department should work to ensure a smooth transition of power.  However, individual civil servants, Foreign Service Officers, and other staff should not be singled out for their work in support of policy objectives that clash with the next Administration’s goals, leaving them vulnerable to retribution by the incoming Administration. In our view, gathering names in this manner bears striking resemblance to dark chapters in our history marked by enemies lists and political witch hunts.”

The letter also informed the State Department that the HFAC website will soon have a link that State Department and USAID personnel can use securely to report unethical or illegal practices.  The new tool is provided reportedly to help ensure that “employees feel safe when reporting evidence of waste, fraud, and abuse of authority, including discrimination and other civil rights violations.”

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FSGB and MSPB: Majority of the Grievance Cases Do Not Prevail

Posted: 12:21 am ET

 

Via State/OIG’s archive: Review of the Department of State Disciplinary Process:

Foreign Service and Civil Service employees have the right to file a grievance to contest the penalty in the letter from the deciding official. Initially, the Grievance Staff reviews grievances for the Department and reexamines all case materials. The Grievance Staff reviews about 130 Foreign Service and 20 Civil Service grievances of all types each year. A deputy assistant secretary for DGHR makes a determination on each grievance. That agency-level decision can be further appealed through separate Foreign Service and Civil Service processes. Under 3 Foreign Affairs Manual (FAM) 4430, “upon request of the grievant, the agency shall suspend its action” in cases involving suspension, separation, or termination during the review process. This provision applies only to the Foreign Service.
[…]

Foreign Service Appeals Process

A Foreign Service employee may appeal an agency-level decision to the Foreign Service Grievance Board (FSGB), an independent grievance appeals forum established through the Foreign Service Act of 1980. Foreign Service employees facing separation on grounds of misconduct have a right to an automatic hearing before the FSGB. Attorneys or American Foreign Service Association representatives may represent the employee. The FSGB may uphold the agency-level decision, mandate a lesser penalty, or dismiss the case entirely. In 2013, it took an average of 43 weeks for the FSGB to process a case from filing date to final decision.

Foreign Service employees may request and the FSGB may grant “interim relief” (sometimes called “prescriptive relief”) to suspend disciplinary action while an appeal is in process.

The 1995 OIG audit of the FSGB, in addressing the perception that the FSGB routinely overturns the Department’s disciplinary actions, found that “the grievance system is used by a relatively small number of employees, the majority of whom do not prevail.”10 Data from the 2008–2013 FSGB annual reports indicate that this conclusion remains valid. During this 6-year period, the FSGB adjudicated 63 appeals of disciplinary actions. The FSGB partially upheld and partially reversed the Department in 15 cases and fully reversed the Department in only 4 cases. In eight cases, the nature of the FSGB’s decision is not reported in the annual report.

Civil Service Appeals Process

Civil Service employees suspended for more than 14 calendar days or removed or reduced in grade or pay may appeal to the Merit Systems Protection Board (MSPB), an independent quasi-judicial agency established in 1979 to protect Civil Service employees. Employees covered by a collective bargaining agreement with the American Federation of Government Employees or the National Federation of Federal Employees may file a grievance under the agreement or appeal to the MSPB, but not both. The Civil Service appeals process has no mechanism for interim relief.

MSPB data concerning cases originating in the Department do not disaggregate appeals related to disciplinary matters from appeals of all types. However, relatively few Civil Service cases of all types originating in the Department reach the MSPB. In FY 2012, the MSPB received 29 appeals from Department Civil Service employees: 21 were dismissed for lack of jurisdiction or timeliness, and 4 were settled. The MSPB adjudicated only four and upheld the Department in all cases.

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New Executive Order Provides Limited Non-Career Appointees a Pathway to the Competitive Service

Posted: 2:23 pm ET

 

On November 29, President Obama signed an executive order that allows the appointment of certain limited non-career appointees into the competitive service.  The E.O says “the head of any agency in the executive branch may appoint in the competitive service an individual who served for at least 48 months of continuous service in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.”  It looks like LNAs can be appointed to any civil service position at any agency but does not provide for their appointment into the Foreign Service.

Republished below in full, the original text is available here.

PROVIDING FOR THE APPOINTMENT IN THE COMPETITIVE SERVICE OF CERTAIN EMPLOYEES OF THE FOREIGN SERVICE
BARACK OBAMA
THE WHITE HOUSE
November 29, 2016.

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. The Federal Government benefits from a workforce that can be recruited from the broadest and deepest pools of qualified candidates for our highly competitive, merit-based positions. The recruitment and retention of workforce participants who serve in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, Public Law 96-465 (22 U.S.C. 3949), as amended, are critical to our ability to meet consular staffing levels (now in substantial deficit) and thereby enhance our capacity to meet high national security standards and efficiently process visas in accordance with our policy of “open doors, safe borders.” Program participants undergo a rigorous merit-based evaluation process, which includes a written test and an oral assessment and to which a veteran preference applies, and develop advanced- to superior-level skills in languages and in cultural competence in particular regions, skills that are essential for mission-critical positions throughout the entire Federal workforce.

Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that represents all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.

Sec. 2. The head of any agency in the executive branch may appoint in the competitive service an individual who served for at least 48 months of continuous service in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.

Sec. 3. In order to be eligible for noncompetitive appointment to positions under section 2 of this order, such an individual must:

(a) have received a satisfactory or better performance rating (or equivalent) for service under the qualifying Limited Non-Career Appointment; and

(b) exercise the eligibility for noncompetitive appointment within a period of 1 year after completion of the qualifying Limited Non-Career Appointment. Such period may be extended to not more than 3 years in the case of persons who, following such service, are engaged in military service, in the pursuit of studies at an institution of higher learning, or in other activities that, in the view of the appointing authority, warrant an extension of such period. Such period may also be extended to permit the adjudication of a background investigation.

Sec. 4. A person appointed under section 2 of this order shall become a career conditional employee.

Sec. 5. Any law, Executive Order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify a person for appointment under section 2 of this order. Examples of disqualifying criteria include restrictions on employing persons who are not U.S. citizens or nationals, who have violated the anti-nepotism provisions of the Civil Service Reform Act, 5 U.S.C. 2302(b)(7), 3110, who have knowingly and willfully failed to register for Selective Service when required to do so, 5 U.S.C. 3328(a)(2), who do not meet occupational qualifying standards prescribed by OPM, or who do not meet suitability factors prescribed by OPM.

Sec. 6. The Office of Personnel Management is authorized to issue such additional regulations as may be necessary to implement this order. Any individual who meets the terms of this order, however, is eligible for noncompetitive eligibility with or without additional regulations.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

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New Executive Order Provides Certain USG Program Alumni a Pathway to Competitive Service

Posted: 2:07 pm ET

 

On November 29, President Obama signed an executive order that allows the appointment of alumni of the Fulbright, Gilman, and CLS programs into the Federal civil service.  Republished below in full, the original text is available here.

EXECUTIVE ORDER

– – – – – – –
PROVIDING FOR THE APPOINTMENT OF ALUMNI OF THE FULBRIGHT U.S. STUDENT PROGRAM, THE BENJAMIN A. GILMAN INTERNATIONAL SCHOLARSHIP PROGRAM, AND THE CRITICAL LANGUAGE SCHOLARSHIP PROGRAM TO THE COMPETITIVE SERVICE

BARACK OBAMA
THE WHITE HOUSE
November 29, 2016

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. The Federal Government benefits from a workforce that can be recruited from the broadest and deepest pools of qualified candidates for our highly competitive, merit-based positions. The issuance of an order granting Non-Competitive Eligibility (NCE) to certain alumni of the Fulbright U.S. Student Program, the Benjamin A. Gilman International Scholarship Program, and the Critical Language Scholarship (CLS) Program, all of which are academic exchange programs carried out under the authorities of the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act, and the International Academic Opportunity Act of 2000, title III of Public Law 106-309, would be in the best interest of the Federal Government. Participants in these programs develop advanced- to superior-level skills in languages and cultural competence in regions that are strategically, diplomatically, and economically important to the United States. It is in the interest of the Federal Government to retain the services of these highly skilled individuals, particularly given that the Federal Government aided them in the acquisition of their skills. Participants in the Fulbright, Gilman, and CLS programs are drawn from highly competitive, merit-based national selection processes to which a veterans’ preference applies to ensure that the most qualified individuals are selected.

Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that is drawn from all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.

Sec. 2. Establishment. The head of any agency in the executive branch may appoint in the competitive service any person who is certified by the Secretary of State or designee as having participated successfully in the Fulbright, Gilman, or CLS international exchange programs, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.

Sec. 3. The Secretary of State or designee shall issue certificates, upon request, to persons whom the Department of State determines have completed the requirements of a program described in section 1 of this order.

Sec. 4. Any appointment under this order shall be effected within a period of 1 year after completion of the appointee’s participation in the programs described in section 1. Such period may be extended to not more than 3 years for persons who, following participation in the programs described in section 1, are engaged in military service, in the pursuit of studies at an institution of higher learning, or in other activities which, in the view of the appointing authority, warrant an extension of such period. Such period may also be extended to permit the adjudication of a background investigation.

Sec. 5. A person appointed under section 2 of this order becomes a career conditional employee.

Sec. 6. Any law, Executive Order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify an applicant for appointment under this order. Examples of disqualifying criteria include restrictions on employing persons who are not U.S. citizens or nationals, who have violated the anti-nepotism provisions of the Civil Service Reform Act, 5 U.S.C. 2302(b)(7), 3110, who have knowingly and willfully failed to register for Selective  Service when required to do so, 5 U.S.C. 3328(a)(2), who do not meet occupational qualifying standards prescribed by OPM, or who do not meet suitability factors prescribed by OPM.

Sec. 7. The Office of Personnel Management is authorized to issue such additional regulations as may be necessary to implement this order. Any individual who meets the terms of this order, however, is eligible for noncompetitive hiring with or without additional regulations.

Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i)  the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

 

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On the Prospect of Mass Resignations: A Veteran FSO Cautions Against Rash Decisions

Posted: 12:49 pm ET

 

We asked yesterday if the prospect of mass resignations is a real thing (see Inauguration Day Countdown: Is the prospect of mass resignations a real thing?  A veteran FSO who we admire a great deal shared with us his thoughts on the issue of morale and the prospect of an exodus from the Foreign Service of officers unwilling or unable to reconcile with the thought of working in the DJT administration. We are sharing the following with his permission:

On the specific question of the prospect of mass resignations: I think a lot of it depends on where an officer is at in their career. Standing on principle costs more at some times of your life than at others. I can see the light at the end of my career; I have ever-hungrier mouths to feed; my career prospects outside of the FS are a relative mystery to me. I work in a career track that doesn’t often put me in a position of delivering demarches on policy approaches I find objectionable.

But I think it is possible we’ll see resignations among two groups: first, amongst officers who joined in the last five years. Many are already unhappy with the fact that promotions will be slow for some time, given the massive intake of officers in recent years. Working for a decade as a FS-03 in a John Bolton-run State Department (for example) isn’t going to improve their mood. They are young, bright, idealistic, and are unlikely to — in their view — sell out just for the pleasure of public service. The second group I suspect might see resignations are those eligible for retirement. If you are an FS-01 or SFS who has been tossing around the idea of moving on, it seems entirely plausible that the election results might push you over the edge, all other things being equal.

But I want to make something very clear: I’ve been around long enough to have served under several presidential administrations, and the talk of mass resignations percolates anytime we’ve got a nail-biter election result or a controversial new war. But I have to say what I am seeing in the aftermath of Election 2016 is qualitatively different.

Many FSOs disagreed vociferously with the Iraq War; at various times with our approach to the Israeli-Palestinian issue; with our massive HR commitment to PSP missions, just to name a few. A few people resigned from time to time. But never have I witnessed the visceral emotional response from as many FSOs to an event or policy as I have in the last two weeks. We’re a diverse workforce, and given the rhetoric of this campaign, many took the victory of a candidate who spouted misogynistic, racist, xenophobic, isolationist bombast at every turn very, very personally. It is no exaggeration to say this triggered an existential crisis for a fair number of officers without significant time invested in the FS and soul-searching about whether this really is the career for them. As a veteran, I viewed it as my responsibility to help contextualize current events, to urge my charges not to make rash decisions in the heat of the moment, to reconsider the oaths they had taken and their commitment to the nation and the American people, regardless of who sits in the White House.

January 20 is a long way off. I hope once colleagues have had the time to absorb and process November 8, they will return fully engaged and recommitted, because Lord knows we’re going to need their energy and expertise in the coming years.

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Some clips to read:

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Inauguration Day Countdown: Is the prospect of mass resignations a real thing?

Posted: 12:06 pm ET

Via Politico:

Foreign policy veterans may be in especially high demand at the State Department, where career foreign service officers have talked for months about whether they could serve under a President Donald Trump—a debate many considered academic but which now presents them with a grueling choice between their values and their country.

The prospect of mass resignations “is a real thing,” according to one career diplomat who has had several such conversations with State Department colleagues.

Eliot Cohen, an influential Republican who served as counsellor to Secretary of State Condoleezza Rice, and who vehemently opposed Trump, urged longtime diplomatic and national security professionals not to quit in disgust.

“Career people, I think, have an obligation to serve faithfully, and not least to ensure that the principles and letter of our Constitutional system of government are respected,” Cohen said.

Via DPB:

QUESTION:  — I mean, do you expect an exodus from this building over the next few weeks?  I mean, there’s a lot of people that feel that Trump’s – that what he said he was going to do going forward doesn’t gel with how they believe.  So is there any evidence of it yet?  Have you got notices or do you expect —

MR TONER:  Sure.  Well, it’s a valid question.  I wouldn’t attempt to speak for my colleagues in the State Department.  I’m a career diplomat.  I’m a public servant.  And with that, frankly, comes an awareness that you’re there to serve the U.S. Government regardless of whether they – that’s a Republican or a Democratic administration.  Obviously, there are political appointees in the State Department, but I can tell you that what I’ve seen firsthand this morning is very serious professionalism and commitment, as I said, to making sure that this incoming administration, whether these people agree with their policies or not, are given every opportunity for a smooth transition and are as informed as possible before that transition takes place.
[…]
QUESTION:  — as has been mentioned here today, the president-elect differs so greatly on so many issues: Iran, trade, climate, Cuba, Syria, NATO alliances, nuclear proliferation – just basic tenets of the things that – and assumptions that this Administration has been working under.  What about – if you haven’t seen people saying, “I’m leaving today,” career diplomats, which is what I gather you’re saying, are you and is the Secretary worried about morale in these last days?  He – the first thing in his statement basically tells people, his staff, to continue focus moving ahead.  So given the disparity between the president-elect and this Administration, what do you see the morale here being in the coming days and weeks?

MR TONER:  Look, I think – again, it’s a fair question.  I think when you choose a path of public service, you do so with the recognition that – and again, I’m not speaking to the incoming administration or the present Administration – you have to compartmentalize your own political beliefs from your professional duties.  That is something that is incumbent on any public servant, whether it’s at the State Department or any other federal agency, or the military for that matter.  That’s what, frankly, provides continuity and institutional knowledge for our government.  So I wouldn’t predict any mass exodus, far from it.

I think that under Secretary Kerry and under President Obama and under Secretary Clinton as well, this State Department has achieved great things.  I think they’re focused on continuing to work on the priorities.  Some of the urgent ones, like getting a ceasefire or a cessation of hostilities in Syria that is attainable in two months, or next week, if we can get there through our multilateral efforts.  I don’t think any – there’s any kind of attitude that – of resignation or of – or any other attitude other than that, focused on the priorities of this Administration and ensuring that the new administration, incoming administration, has a smooth transition.

Video below, transcript of the DPB here: http://www.state.gov/r/pa/prs/dpb/2016/11/264198.htm.

We are aware that some  folks are considering whether to stay or to leave, below are some clips that might be helpful:

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DS/Threat Investigations and Analysis Directorate Gets Downy April Fresh OIG Treatment

Posted: 1:22 am ET

 

The Bureau of Diplomatic Security created its Threat Investigations and Analysis Directorate  in March 2008 by combining the following offices under the TIA Directorate umbrella:

  • Office of Intelligence and Threat Analysis (ITA)
  • Diplomatic Security Command Center (DSCC)
  • Overseas Security Advisory Council (OSAC)
  • Office of Protective Intelligence Investigations (PII)

It has a staff of about 200 employees. Below is the current org chart but some of the names may already be outdated, via State/OIG:

Screen Shot

State/OIG inspected the TIA Directorate from February 5 to March 7, 2016. The report dated September 20, 2016 went online on September 30. The IG Inspection teams include Team Leader, Lisa Bobbie Schreiber Hughes; Deputy Team Leader, Paul Cantrell, and members, Ronald Deutch, Gary Herbst, Leo Hession, Vandana Patel, and Richard Sypher.

This is the first inspection of this DS directorate, the first ever in eighth years.  It is a fairly thin report with just 12 pages. Here is the quick summary and some details below:

  •   The Threat Investigations and Analysis Directorate was accomplishing its stated mission “to protect life safety.”
  •   The Directorate’s decision to shift to a proactive approach to threat management expanded its mission and workload without a commensurate increase in human resources.
  •   Coordination and communication were effective at senior levels of the Threat Investigations and Analysis Directorate, but senior managers did not communicate consistently with mid-level staff members, adversely affecting the Directorate’s ability to efficiently meet its defined objectives and goals.

Taskings Up Approx 300%

The IG report says that the directorate’s taskings were up approximately 300% since 2010 but that it remained effective in achieving its core objectives. But then immediately after that, the report says that in the absence of increased staffing, the office was in danger of not meeting its basic responsibility.

Folks, you can’t have this both ways.

Despite taking on new responsibilities without additional staff and facing a high turnover among existing personnel, the Directorate achieved its mission. It had, however, requested additional staff to alleviate the burden on its employees. ITA told OIG that since 2010, its taskings had increased by approximately 300 percent; PII stated its mission to provide more proactive security had increased the agent workload “exponentially;” DSCC stated that watch officer responsibilities had steadily increased, especially in the post-Benghazi period. Despite these challenges, the Directorate asserted—and OIG agreed, based on input from the Directorate’s customers and OIG’s review of its products—that it remained effective in achieving its core life safety objectives.

The Directorate requested additional staff in January 2016, when Directorate leadership told the Assistant Secretary that in the absence of increased staff, it was “in danger of not meeting our basic responsibility to analyze, assess, investigate and disseminate threat information and the myriad of other duties for which we are responsible.” This theme was repeated in memoranda prepared for OIG and in personal interviews OIG conducted throughout the Directorate.

Oops! Is it just us or does this look like there’s lots of word padding in this report? Can’t they put these citations of GAO standards, FAM, etc in the footnotes? A third to a half of these sample paragraphs below are just descriptions of what’s in the manual or guidance. C’mon, the folks drafting this report can do better than this, right? And by the way, this is not the only report that has these word paddings.  See below:

Management Challenges

OIG found that increased staffing alone would be insufficient to address the Directorate’s management challenges. For example, a lack of coordination and communication between its offices and officers was unrelated to staffing shortfalls. OIG learned that mid-level officers were unfamiliar with the work of other Directorate offices; they did not have a clear understanding of how their work related to that of the Directorate overall; and they did not understand how their functions complemented those of similarly situated staff in other Directorate offices. This lack of familiarity created a risk that staff members would miss opportunities to work more efficiently. Moreover, it was sometimes difficult for them to prioritize tasks and define their audiences in an organization where everything related to the broad mission of protecting life safety. Mid-level staff members also cited the need for greater top-down and lateral communication. Principle 14.02 of the Government Accountability Office Standards for Internal Control in the Federal Government emphasizes that management should communicate quality information throughout an entity using established reporting lines and to communicate down, across, up, and around reporting lines to all levels of the entity.

Tone at the Top

The Directorate’s DAS retired on March 4, 2016, days before the end of this inspection. The DS front office chose the ITA office director to replace him. OIG did not evaluate how the new DAS set the tone at the top—leading by example and demonstrating the organization’s values, philosophy, and operating style—because he started the position at the close of the inspection. However, OIG expressed the concern that his direct and forceful communication style, as demonstrated during his tenure as ITA office director, risked inhibiting the free flow of communication in a directorate that was, as discussed above, already challenged by communications issues. OIG advised the new DAS of the importance of adhering to the Leadership and Management Principles for Department Employees outlined in 3 Foreign Affairs Manual (FAM) 1214 b(4). These address the need for leaders to express themselves clearly and effectively, offer and solicit constructive feedback from others, and anticipate varying points of view by soliciting input.

Top Managers Not Held Accountable for Internal Control Assurance Process

The Directorate’s DAS and office directors did not provide annual internal control assurance statements for the Department’s annual Management Control Assurance Process2. Although lower-level Directorate staff completed the survey questionnaires DS used to confirm compliance with internal control requirements, Directorate managers did not complete assurance statements—as required in 2 FAM 024 of all office directors and higher level officials—due to lack of understanding of the requirements. As a result, DS had no documentation showing that Directorate leaders confirmed adherence to internal control requirements. The Department’s FY 2015 annual Management Control Assurance Process memorandum advised that, “Just as the Secretary’s statement will rely on your assurance statement, your assurance statement must be supported by input from your managers reporting to you.”

If you read the report, you will note that the director of ITA, one of the components was promoted as the new head of the DS/TIA directorate. So we looked at the performance of that component. The report says that 1) ITA lack top-down communication, 2) the office cannot evaluate its products without customer feedback and 3) new program to assign Intelligence Analysts to embassies proves unworkable. Two striking things:

FSOs as Intel Analysts?

“An ITA initiative that sought to place Foreign Service officers trained by ITA as intelligence analysts at embassies in countries designated as high risk for terrorism. Directorate leaders told OIG that after considering lessons learned in this first year, they concluded that the program was unworkable for a variety of practical and logistical reasons. Among them were the difficulty the Directorate faced recruiting employees with the requisite intelligence experience and challenges in arranging for appropriate secure embassy workspaces.”

The notion that FSOs would work overseas as intel analysts for Diplomatic Security is head-shaking painful. If they’ve spent some serious planning on that, they would have known how unworkable that is.  Which career ladder are you going to be on as an intel analyst? Was DS thinking of intel analysis as a collateral duty for FSOs overseas? What career track would that be on? What posts are intel analysts going to be on? What kind of onward assignments can you expect? As for recruitment, why would people with requisite intel experience leave their agencies and join a small office that’s not even hooked up to the intel community? The report did not show how much this unworkable program costs, and what lessons were learned here. The inspectors did not seem interested in all that.

A keen observant told us:  “I don’t see much digging: poor planning associated with these pet projects: deployed analyst program and the new “everything but the kitchen sink” division within ITA.” 

Oh, we want to know more about this “everything but the kitchen sink” division. Then there’s this:

Nonmembership in US Intel Community?

“ITA analysts were unaware of leadership’s decision on membership in the U.S. Government Intelligence Community. Of the 23 ITA analysts interviewed, half cited advantages of membership, including the increased access to information and training that they believed it would bring. ITA leadership, however, told OIG that it had already concluded that it was more advantageous for ITA to not join the Intelligence Community but had not informed the staff of its decision.”

Did you hear the guffaws over there?

ITA is tasked with analyzing all-source intelligence on terrorist activities and threats directed against chief of mission personnel and U.S. diplomatic facilities overseas. The office also monitors threats against the Secretary of State, U.S. Government officials, foreign dignitaries visiting the United States, and U.S.- based foreign diplomats and missions.  ITA leadership told OIG that “it was more advantageous for ITA to not join the Intelligence Community.” More advantageous to be walled off from the IC? How? The report does not discuss what “membership” means and what it entails, nor the advantages/disadvantages from nonmembership. It just accepts the director’s assessment that “it was more advantageous.” Folks, that’s stenography!

Overheard: “DS seems to think that the Intelligence Community is a round wooden table in a sealed-off room – a skull and bones-type membership. They talk about it in the report like they are debating on whether to have a pizza party.” We think that’s a well-deserved criticism.

Another directorate component PII took on additional workload without increasing its staff. Further, the report offers no dicussion on the Rewards for Justice Program which is also under PII. State.gov says that the Rewards for Justice program continues to be one of the most valuable U.S. Government assets in the fight against international terrorism. Okay. But how effective is RJF? This OIG report doesn’t say.

PII also expanded its support of DS coverage of special events, such as the World Cup. OIG reviewed the number of hours agents (but not intelligence analysts) devoted to these duties during 2015 and found this additional travel took agents away from the office for approximately 3,380 person-days. This equated to roughly one- third of PII’s deployable agents, leaving the remaining agents to accomplish what a significantly larger staff had previously done.

Quick takes on the other three components of the TIA Directorate

Office of Protective Intelligence and Investigations (PII)
–Expanded Workload Strains Manpower
— Supervisors do Not Readily Know the Status of Investigative Cases
–Taskings are Not Coordinated

Diplomatic Security Command Center (DSCC)
–No Metrics for Gauging Customer Satisfaction
–Overuse of the Law Enforcement Sensitive Caveat Limits Dissemination of Information

Overseas Security Advisory Council (OSAC)
–Short-term Extensions for Third Party Contractor Employees Create Challenges

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We’re Adding Our Thumbs Up for @OSAC!

On a positive side, we should add that we are end-users of OSAC’s products and have been happy to see some improvements in the service it provides with timely maps, responsiveness, and infographic of U.S. interests overseas like the one below. OSAC folks are quite responsive when asked for additional information; occasionally even relaying our requests for confirmation.  When events are breaking overseas, our first stop is @OSAC on Twitter.  Sometimes they have the security message up before posts could even post those messages on the embassy’s website.

One thing we think they can improve is having a handler on duty 24/7 managing its Twitter account. When news break overseas affecting U.S. citizens, posts are not always ready or able to provide updated information.  But OSAC can do that on posts’ behalf.  Now if you can actually remove the stovepipe between Diplomatic Security and Consular Affairs, and at least on social media have @OSAC and @TravelGov work together, that would not only make the most sense (together they can do 24/7 coverage) but could also generate the most timely, needed updates especially during these now frequent emergencies.

The report is originally posted here (PDF) or read it below (use arrow in lower right hand corner in box below to maximize reading space).

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Sexual Assault at a State Dept-Leased Apartment: If This Isn’t Abysmal Failure, What Is It?

Posted: 7:01 pm ET

 

This is not a new case but we have not been aware of this case until we started digging around.  In 2009, a Policy Analyst with the Department of Homeland Security (DHS) worked as a liaison to the State Department (the Agency).

According to EEOC records, in and around May 2009, the DHS employee (Complainant) was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was a State Department contractor. The incident took place in a State Department-leased apartment in Prague, Czech Republic. The EEOC decision dated June 16, 2011 notes that the accused individual subsequently became a permanent employee of the Agency.

The complainant had to make several attempts to report the sexual assault. She was eventually directed to contact the EEO office at DHS, who took no action, and refused to take her case because the attacker was not a DHS employee. She was sent to the Violent Crimes Unit of Diplomatic Security, who investigated the case and referred it to DOJ for prosecution. DOJ took no action. A DS investigator advised her to contact State/OCR. She interacted with that office for 6-7 months but these “activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications” according to the EEOC.

Whiskey Tango Foxtrot!

Then State/OCR dismissed the case for failure to state a claim and untimely contact with an EEO counselor.

Sexual assault is a crime punishable by law. Sexual assault and sexual harassment are not the same.  Sexual assault describes the catch-all crime that encompasses unwanted sexual touching of many kinds, with links to state penal code and federal law on related crimes.  It includes rape, forcible sodomy (oral or anal sex), and other unwanted sexual contact that is aggravated, abusive, or wrongful (including unwanted and inappropriate sexual contact) or attempts to commits these acts.

FindLaw notes that Federal law directs judges to examine a number of factors, including the defendant’s criminal history and his or her acceptance of responsibility, when setting a punishment. The federal law criminalizing sexual assault sets a maximum sentence of 20 years in prison, and also provides for fines. In addition, federal law provides that those convicted of sexual assault must compensate their victims for any expenses directly related to the crime. This can include costs for medical care, physical or occupational therapy, attorney’s fees, and other related expenses.

But first, you’ve got to investigate, charge the perpetrator and find him or her guilty.

The complainant here alleged that she was sexually assaulted in USG-leased housing, why did people send her to an Equal Employment Opportunity office for godsakes? Why did DOJ take no action? If there was probable cause for Diplomatic Security to refer this case to DOJ for prosecution, how did the contractor become a State Department employee? This incident happened in 2009, the victim did not get to file her case until a year later, and the EEOC did not make a decision until 2011. At some time during this lengthy process, the victim resigned from federal service. The unnamed alleged attacker may still be in the bureaucracy.

Sure, we could call this abysmal systems failure.

But just about every part of this process was deplorably bad. And the people who worked in the system made it so.

Excerpts below from the EEOC decision (we underlined some parts for emphasis):

Reporting sexual assault — Whiskey Tango Foxtrot!

In and around May 2009, Complainant was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was an Agency contractor.1 This individual subsequently became a permanent employee of the Agency. The record does not indicate in what capacity he was employed or the date his employment began.

After making several attempts to report the sexual assault and being redirected to various components in DHS, Complainant was eventually directed to contact DHS’ EEO office, which she did on June 1, 2009. The record suggests that DHS engaged in limited EEO counseling, but took no action to process Complainant’s allegations as a potential EEO complaint.  Instead, approximately a week after her June 1 contact, DHS effectively dismissed Complainant from the EEO process, concluding that it could not entertain her issues because the alleged attacker was not its employee.  DHS then advised Complainant to contact the Agency, which she did on June 11, 2009.

Soon thereafter, a criminal investigation was initiated by the Violent Crimes Unit of the Agency’s Office of Diplomatic Security. Complainant was cautioned to refrain from discussing the May 10 incident until the investigation was complete. In October 2009, the Agency referred the matter to the Department of Justice (DOJ) for prosecution upon finding probable cause to believe Complainant’s allegations were true. For reasons not reflected in the record, DOJ took no action.

On October 23, 2009, pursuant to the advice of the Violent Crimes Unit investigator, Complainant contacted the Agency’s Office of Civil Rights (OCR). During the next six or seven months, she interacted with various OCR representatives whose activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications.  On May 24, 2010, Complainant filed a sparsely worded formal complaint which contained a single averment of discrimination relating to the sexual assault and several items of requested relief.

In a September 28, 2010 FAD, the Agency dismissed the May 24 complaint upon finding that it failed to state a claim and that Complainant failed to timely contact an EEO counselor.  The instant appeal followed. We note that Complainant is pro se.

Contentions on appeal

In a statement accompanying her appeal, Complainant argues that the chronology of relevant events belies the Agency’s finding that she was untimely in initiating EEO counseling. She also appears to raise questions regarding the trustworthiness of the FAD (final agency decision) by noting several errors of fact reflected in the Agency’s reasoning. The Agency filed no response.

EEOC reversed the State Department’s dismissal

The Agency does not dispute that the alleged assault occurred on May 10, 2009.  Nor does it dispute that Complainant first sought counseling on June 1, 2009 with DHS. The Agency’s finding that Complainant was untimely is premised on the apparent view that her DHS contact had no significance under subsection 105(a)(1). We conclude that it did. To rule otherwise would require the Commission to ignore the plain wording of the subsection, which provides only that aggrieved individuals contact “a” Counselor within the stated time. There is no requirement that the Counselor be from the agency that receives the complaint.3  In this case, Complainant logically initiated contact with a Counselor in the agency where she was employed.

It is self-evident that June 1, 2009 is within 45 days of May 10, 2009. We, therefore, find that Complainant’s counseling contact was timely and reverse the Agency’s dismissal on this ground.

Alleged perpetrator went from contractor to employee

The Commission’s regulation at 29 C.F.R. § 1614.107(a)(1) authorizes an agency to dismiss a complaint that fails to state a claim that can be remedied through the EEO process.  In its FAD, the Agency concluded that Complainant failed to assert a remediable claim because neither she nor her alleged attacker was functioning in work status when the “event in question” occurred. The non-work status of Complainant and her alleged attacker, on May 10, 2009,  would likely be dispositive of this appeal were we to find that the “matter” in question, when the complaint was filed, was clearly confined to the alleged assault.4 Such a finding cannot be made, however, on the basis of the current record.

We are mindful, initially, that the counseling process was unduly erratic and prolonged in this case. Indeed, more than a year had elapsed before Complainant was provided the opportunity to file a formal complaint. Several events occurred, in the interim, which are potentially relevant to the sufficiency of her complaint.

For instance, by the time the complaint was filed, there had been a change in status of the individual the Agency believed had “probably” assaulted Complainant. He went from being an Agency contractor to an Agency employee. Although it is not clear whether, as a DHS “liaison” to the Agency, Complainant had (or would have)  been required to work with (or for) this individual, we find it significant that, at some point prior to filing the complaint, Complainant resigned from federal service. The record suggests that the resignation was under duress and may have related to a requirement that she refrain from discussing her ordeal.  See Complaint File, April 21, 2010 email from Complainant to named Agency official (“I don’t want to be forced to keep [the attacker’s] secret when I’m the one being hurt and losing.”)

At this juncture, we do not know how (if at all) Complainant’s employment may have been affected by the May 2009 incident. The record is wholly undeveloped in this regard. However, we can say that, if the Agency had directed Complainant to remain silent in order to protect the alleged attacker or facilitate his employment, it could hardly be found (as the Agency did) that the incident did not “involve” any term or condition of her employment. Without suggesting that the known facts in this case, by necessity, implicate a potential claim of “sexual harassment,” it is relevant to note that the Commission has recognized that harassment which occurs outside of work may state a claim when the effect of the off-duty incident creates an “intolerable influence on the employee’s working conditions.” Kokangul v. Department of the Army, EEOC Appeal No. 01A61380 (July 6, 2006)

Deficient EEO processing — looking at you S/OCR

We make no finding with regard to the existence of a viable discrimination claim arising from the May 2009 incident. We merely find that deficiencies in processing, as well as the record, render it impossible to determine the full measure of the concerns Complainant sought to pursue through the EEO process.  The quality of the EEO counseling, provided by the Agency and DHS, left much to be desired in terms of ensuring the record would be adequate to assess the sufficiency of any formal complaint that Complainant might file.

Incomplete files

It is unclear, for example, why the Complaint File does not include the Violent Crime Unit’s report, given its obvious relevance to the matter that prompted Complainant to seek EEO counseling. Also inexplicably missing from the record is a “statement” Complainant apparently prepared during the course of the counseling process.6 The absence of this and other information renders the record insufficient to determine the nature of any claim Complainant may have sought to assert.

Should have – what, whose contractor?

Finally, we note that the Agency also relied on 29 C.F.R. § 1614.106(a) as a ground for dismissing the complaint, finding that Complainant should have filed it against DHS because the alleged attacker was a DHS contractor.7 This ground is also found to be without merit. There is nothing in the record that contradicts the statements made by Complainant and others that her attacker was a contractor (and later an employee) of the Agency—not DHS.

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The complainant here would have been under chief of mission authority in Germany where she was assigned a tour of duty. We don’t know what would have been her status in the Czech Republic where the alleged attack took place. But the incident occurred in a State Department-leased apartment. So we expect that the State Department would have been the investigating authority.  This case happened in 2009 and decided by the EEOC in 2011.  This got us thinking on what procedure is in place for reporting sexual assault in the Foreign Service.

We’ve spent the last several days trying to locate the Foreign Service Manual or Foreign Affairs Handbook for the procedure in reporting sexual assault in the Foreign Service, but have been unsuccessful, so far. We were able to find 7 FAM 1940  REPORTING CRIME VICTIM CASES, but this section only apply to non-official, private Americans and the reporting covers only crimes reported to a consular officers abroad by victims, their families or by the host country government and which result in a consular officer or officers providing substantial assistance to the victim.

We’ve asked the State Department for its sexual assault regs and guidance; we’ve received a response but it deserves a separate post.

link

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Decision Window For Federal Long Term Care Insurance With Shocking Premium Hike Closes 9/30/16

Posted: 3:01 am ET

 

Excerpted from CRS Insight (PDF), September 2016 via Secrecy News:

On July 16, 2016, the U.S. Office of Personnel Management (OPM) announced a premium rate increase for long-term care insurance policies purchased through the Federal Long Term Care Insurance Program (FLTCIP). The new rates were established following an open competitive bidding process. That process awarded a new seven-year contract to the prior insurer and sole bidder, John Hancock Life & Health Insurance Company, to continue providing coverage. According to OPM, the higher premiums are based on an analysis that used updated assumptions of industry trends and claims experience. The analysis determined that current FLTCIP premiums were not sufficient to meet projected costs and benefits. Most federal workers enrolled in FLTCIP are affected by the premium increase (an estimated 264,000 of the 274,000 enrollees).

During OPM’s 2016 Enrollee Decision Period, enrollees affected by the rate increase have until September 30, 2016, to decide whether to:

(1) keep their current coverage and pay the increase;
(2) reduce coverage in order to maintain their current premium; or
(3) allow their policies to lapse (i.e., drop coverage in the program).

Rate increases are scheduled to take effect November 1, 2016.
[…]
According to news sources, premiums are expected to increase by 83%, on average. Some Members of Congress have expressed their concerns to OPM leadership and John Hancock about such dramatic increases, calling for more time for enrollees to assess options as well as for congressional hearings on the issue.

Rate Stability and Long-Term Care Insurance

Federal workers are not the only policyholders to face LTCI premium increases. Over the past two decades, annual LTCI premiums have increased significantly overall for both current and new policyholders. Higher average premiums reflect increased demand for more comprehensive benefit packages (including inflation protection) and higher daily benefit amounts. Premium increases have also been driven by inadequate medical underwriting, premiums that were initially set too low, and insufficient growth in reserves to cover future claims. Thus, premium or rate stability depends largely on the ability of insurers to adequately predict future claims. Most policies issued before the mid-2000s have incorrectly predicted claims, necessitating changes to key pricing assumptions. For example, rising claims, lower mortality rates, lower-than-predicted voluntary termination (lapse) rates, and lower-than-predicted rates of return on investments have been cited as key reasons for LTCI premium increases. Nevertheless, large rate increases, such as those proposed by the FLTCIP, are likely to have a continued effect on consumer confidence in these products, possibly leading to further reductions in consumer demand.

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