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Deputy Secretary Sullivan’s Town Hall With @StateDept Employees Now in Gifs

Posted: 3:09 am ET

 

On August 8, while Secretary Tillerson remains on travel, Deputy Secretary John Sullivan had a town hall with employees at the State Department.  The event was closed to the press though there was one report filed soon after it concluded. We’ve got thoughts about this, so we wrote Why Tillerson Not Sullivan Needs the Town Hall: Morale Is Bad, “S” is Accountable.

Now, we think that this town hall was put together in a hurry to counter the deluge of bad press that’s been flooding our inboxes about the State Department, and Secretary Tillerson in particular. Why do we think that? Because Mr. Sullivan, who we’re told is personable and likable, was not as prepped as he should have been if this was appropriately planned. Secretary Tillerson is on travel from August 5-9, so a wait of 48-72 hours after his return to hold a town hall would have been feasible. But somebody must have decided that the negative reports have reached a tipping point and that they must be addressed before Tillerson returns to office. So now that his deputy has held one, Secretary Tillerson no longer has to do one. Or not immediately. According to Mr. Sullivan, Secretary Tillerson will do one in three months, “He’s going to do one in three months, and it will be the same format as I used today.”

The State Department obviously want the press corps to write about the town hall, how the deputy secretary is taking questions from employees, and answering them, and to impress upon media folks that things are going well in Foggy Bottom. And yet, the event was closed to the press. We are guessing that the State Department wanted good press clips, but did not really want members of the media to witness the question and answer. Unscripted things happen in those events, sometimes embarrassing ones and reporters could write up those stuff. And then you have a bigger fire.

As far as we are aware, no video was posted of the town hall and no transcript was made publicly available, though there are a few photos. But after the event concluded, the State Department made Deputy Secretary Sullivan available for On-the-Record Briefing With the State Department Press Corps.  We’re hearing from Mr. Sullivan, but we’re not hearing from the folks who asked him questions. See the interesting gap there? In any case, here are the things that we found notable from Mr. Sullivan’s on-the-record briefing. We’ll address the interesting gap next time.

Hitting on all cylinders!

John J. Sullivan: “So we’ve been very busy; he’s been very busy, supported by our great Foreign Service and Civil Service here at the State Department. So the notion that’s been out in the press and in the media of a hollowed-out State Department that is not effective, I think, is counterfactual, and the fact that the Secretary and the department have been able to accomplish what they have is evidence of the fact that we are hitting on all cylinders even though we don’t have the full complement of political appointees that we should have.”

 

 

Frozen, who’s frozen?

JJS: “I don’t think anyone would say – no one here would say that we’re pleased by the fact that we don’t have more of our under secretary and assistant secretary slots filled, but we’re working hard to do that. Those slots are not being – those slots are not being frozen or not filled because of the redesign that’s underway. […] So I think the last stat I saw was that we have roughly 60 percent of the unders and assistant secretaries slots either confirmed, nominated, or in the process, so getting – undergoing the security clearance review and so forth. And we hope to get all of those slots filled as quickly as we can.”

Is @StateDept Reporting Its Vacant Positions Under the Vacancies Reform Act? Barely, According to GAO Database

via tenor.com

 

Five working groups — who are you people?

JJS: “But the redesign is in midstream. It’s really the – we’ve really hit our stride, and this month is going to be a key one for the working groups that are leading the effort on – there are five working groups that are leading the effort on redesigning the State Department. And I’d be happy to give you a little more detail on that if you would like to hear about that. […] So whether it was the mission statement that I was talking about earlier, the draft mission statement, to reorganization of the – of bureaus, that’s all going to be fed up through this redesign process, employee-led, and with input over time this month – later this month from other interested stakeholders, whether it’s senior leaders of bureaus in the department, union – unions – AFSA, for example, OMB, members of Congress. So we’re going to be as transparent as possible as we go forward and reach final decisions on these issues, and eventually implement them.”

COMMENT: Oh, yes, we’re interested on more details about these working groups. Who are in these five working groups? How were they selected? Who selected them? How transparent was the selection? Where can we find their names? How long are they expected to work in these groups. Have they been detailed to these groups or are these their collateral duties?

Growing Body of Work on Rex Tillerson’s Stewardship of the State Department

Why ‘Rexit” Is Not Happening Anytime Soon, in Rex Tillerson’s Own Words

via tenor.com

 

Hold on, the noise is coming from the building!

JJS: “I am from Boston and a New England Patriots fan, and those of you who know football know Bill Belichick’s motto is: Do your job and don’t pay attention to the noise out there. But in this town, it’s kind of hard to miss when your friends and colleagues start calling you and emailing you about the latest article that appeared.”

 

Helllooooo A/GIS/DIR – show yourself!

JJS: “And what we’ve discovered is that over the last seven years or more there have been hundreds of delegations of authority that no one had kept track of and there was no central either registry or system so that a current assistant secretary would know exactly what had been delegated to her or to him.”

COMMENT: Per regulations dated March 1, 2010, the State Department’s Office of Directives Management (A/GIS/DIR) under the Bureau of Administration (presently carrying on without an Assistant Secretary) manages the Department of State’s Delegations of Authority Program. It processes delegations of authority for publication in the Federal Register, and — get this — maintains the Department’s inventory of delegations of authority, including the Web-based Delegation of Authority Database.  So A/GIS/DIR assigns appropriate serial numbers to delegations of authority and maintains the Department’s records of official delegations. In addition, A/GIS/DIR maintains an electronic listing and database of all current and rescinded Department delegations on the A/GIS/DIR website.

WHO KNEW? 

Via Imgur

 

John, call your office now!

JJS: “So there are elements of truth in some of these stories, whether it’s about the delegation of authority or about the mission statement, but then they’re twisted in a way that makes it sound as though the Secretary is out of touch, mismanaging, whatever. [….] So I think there’s really a misperception both of the department and what we’re doing and his role in the department.”

COMMENT: The State Department should have every opportunity to respond to stories we write about it. They lost that opportunity when they banned this blog and refused to respond to email inquiries. See our original post on delegations of authority: Tillerson Rescinds Delegated Authorities Department-Wide, Further Gums Up Foggy Bottom). See our follow-up here: Making Sense of Tillerson’s Rescinded Delegations of Authority @StateDept/ .

As recently as last week, we asked about a specific case regarding a DS agent accused of rape and stalking. But all there are … are crickets (See A Woman Reported to Diplomatic Security That She Was Raped and Stalked by a DS Agent, So What Happened?). Hey, we’ve also asked about the “Naughty List” but still got crickets ….so anyways, we got work to do …

 

Noooo! Not the 1960’s or why Colin Powell should call in to protest

JJS: “I – once I asked – I won’t name him by name, because I don’t want to drag him into a news story, but I asked a retired, very senior Foreign Service officer – I had lunch with him not – just before I got – just before I came on board here. I asked him about what he knew about morale at the State Department, and he said morale at the State Department is very low. He said, “It was low when I started in 1960 and it’s still low. It’s the nature of the State Department.”

COMMENT: We wrote a bit about Colin Powell here: Why Tillerson Not Sullivan Needs the Town Hall: Morale Is Bad, “S” is Accountable.

 

Congrats, it was all for nothing!

JJS: “I think it’s almost 800 EFMs that have been approved since this – the hiring freeze was imposed.”

COMMENT: We’ve said this before and we’ll say this again. Whether the State Department is successfully reorganized or not, there will remain a need for community liaison coordinators, security escorts, consular associates, mailroom clerks, security coordinators, etc. at our overseas posts. So the freeze on these jobs did not make a whole lot of sense in the first place. But it did make life at overseas posts more difficult for employees who have to cover for these unfilled positions, and make for distressed diplomatic spouses who already suffer from extended under employment when they go overseas.

See Unemployment Status of @StateDept Family Members Overseas (4/2017) #ThanksTillerson

Oy! That Rumor About Foreign Service Family Member Employment as “Corporate Welfare”;
Are #EFM positions literally about to become…extinct under #Tillerson’s watch?;
No thaw in sight for @StateDept hiring freeze until reorganization plan is “fully developed”

 

Making Ops Center Watchstanders’ Lives Easier Soon!

JJS: “We don’t put a lot of – we don’t have a huge budget for things. We have a budget for people and we’re going to organize ourselves better, to use our people better, to – excuse me, to put our people and our employees in a position to do their jobs more effectively and efficiently, and to make their – make their jobs, their professional lives easier.”

COMMENT: The State Department is making folks’ professional lives easier already. And it’s starting with the watchstanders at the Operations Center. The State Department has directed that Ops tours should now be two years instead of 13 months. The nomination request cable went out already. For the first time ever, the Ops Center will have officers working insane shifts on two year rotations 24/7. More on that later. And they’re making lives easier for families, too. We’ve been hearing issues with umbrella schools for homeschooling families and issues with allowances related to Foreign Service children with special needs.

Image via Canadian Foreign Service Problems

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Making Sense of Tillerson’s Rescinded Delegations of Authority @StateDept

Posted: 5:07 am ET
Updated: Aug 11, 2:24 pm PT

 

We recently blogged about the rescinded delegations of authority at the State Department (see Tillerson Rescinds Delegated Authorities Department-Wide, Further Gums Up Foggy Bottom).  A State Department official (SDO) told Politico that Tillerson only rescinded three delegations of authority. Just three.  SDO frequently is the attribution used when the folks at the State Department press shop do not want to speak on the record.  The same official who commented to Politico also said Tillerson has requested the Under Secretaries to undertake an immediate review of the remaining authorities. The SDO forgot to remind himself that the State Department currently do not have Under Secretaries but only one Under Secretary (P).

The sources who informed us of the rescinded authorities are SDOs but are not part of the agency’s press office.  They are folks who are not known for running around with their hair on fire.  One of them told us “all”, another confirmed that it was “department-wide,” and that’s the story we ran.  One of our sources subsequently told us that decisions will be made quickly on which authorities will be redelegated. It was pointed out to us that some will be quick and obvious to make like authorities concerning consular services.

We understand that there is also a memo floating around outlining the delegations of authority that have been rescinded.

 

DA-14: Delegation of Authority to Under Secretary for Political Affairs (P) and the Under Secretary for Management (M), January 18, 2017
(no text publicly available)

One the three authorities the State Department said it rescinded was DA-14 dated January 18, 2017 granted by then Secretary Kerry to the Under Secretary for Political Affairs (P) and the Under Secretary for Management (M) that the State Department says “allowed for almost unlimited re-delegation of those authorities.”  DA-14 has not/not been published in the Federal Register nor the GPO so we don’t know all the details that it covered.

A former State Department official (SDO) familiar with this issue, however, told us that the January 18 delegation was essentially envisioned as “a temporary, unlimited delegation of authorities to P and M because it was anticipated that there would be no “D” and perhaps no “S” for some period of time” and that its revocation “would not have a dramatic effect” on operations.  According to the former SDO, the revocation of this specific DA is not surprising since the Secretary and the  Deputy Secretary are now both in place.  The former official further told us that rescission of ALL of the delegations of authority would be much more significant but said, “I can’t imagine that all of the delegations were rescinded.”

The former SDO added that “If the Secretary did revoke all of the delegations one would hope that this would be very temporary.” The former official explained that “Without delegations in place, any decisions that by law lie with the Secretary literally would need to be made by the Secretary. This could result in significant delays, including on decisions that are by and large technical.”

A piece published by the New York Times over the weekend notes that “all decisions, no matter how trivial, must be sent to Mr. Tillerson or his top aides: Margaret Peterlin, his chief of staff, and Brian Hook, the director of policy planning.” 

A Foggy Bottom worker bee told us that whether or not Tillerson rescinded delegated authority “the effect is the same –the paper goes to him.” FBWB added that “In normal circumstances we would know the staffers in S, as we do in other 7th floor offices, and can keep paper moving with a telephone call” but that this is now “unknown” territory.

So what does it mean if ALL decisions must now go up to the Secretary of State?

Please don’t tell us that the next wrinkle we’re going to hear would be folks unable to PCS (Permanent Change of Station) because Tillerson is traveling and is unable to approve travel orders.


DA 284-1: Delegation of Authority to the Under Secretary for Political Affairs, Feb 13, 2009

Text: Delegation of Authority No. 284–1

By virtue of the authority vested in me as Secretary of State by the laws of the United States, including 22 U.S.C. 2651a, I hereby delegate to the Under Secretary for Political Affairs, to the extent authorized by law, all authorities and functions vested in the Secretary of State or the head of agency by any act, order, determination, delegation of authority, regulation, or executive order, now or hereafter issued. This delegation includes all authorities and functions that have been or may be delegated or redelegated to other Department officials but does not repeal delegations to such officials.

This delegation shall apply only when the Secretary, the Deputy Secretary, and the Deputy Secretary for Management and Resources are absent or otherwise unavailable or when the Secretary or either Deputy Secretary requests that the Under Secretary exercise such authorities and functions.

Notwithstanding this delegation of authority, the Secretary of State, the Deputy Secretary of State and the Deputy Secretary of State for Management and Resources may exercise any function or authority delegated by this delegation.

This is one of the three DAs cited  by the State Department official to the press.  The language is clear that this authority apply only when the Secretary and the Deputy Secretary are “absent or otherwise unavailable” or “when the Secretary or either Deputy Secretary requests that the Under Secretary exercise such authorities and functions.”

Excuse us, but this is perplexing to us, ok? If Secretary Tillerson and Deputy Secretary Sullivan are traveling who has authority over the State Department in their absence if it’s not going to be the third highest ranking person in the agency?

A separate source  familiar with inner workings at State but has no direct knowledge of these developments suggested that the Delegation of Authority exercise exposes more than anything else “the profound lack of knowledge and grasp” on the 7th floor especially with the political appointees.  This source says that there are practical and long standing reasons for delegations to D and P of certain things, such as making it possible for Tillerson to seamlessly have things done without having to go through the “Acting” designation every time he’s not around or unavailable. It appears that no one understood that.

And no one thought about asking the Office of the Legal Adviser?

 

DA 280-1: Delegation by the Secretary of State to the Under Secretary for Political Affairs of Authorities Regarding Congressional Reporting Functions, Feb 13, 2009:
Text: Delegation of Authority No. 28o–1 

By virtue of the authority vested in me as Secretary of State by the laws of the United States, including 22 U.S.C. 2651a, I hereby assign to the Under Secretary of State for Political Affairs, to the extent authorized by law, the function of approving submission of reports to the Congress.

This delegation covers the decision to submit to the Congress both one-time reports and recurring reports, including but not limited to those recurring reports identified in Section 1 of Executive Order 13313 (Delegation of Certain Congressional Reporting Functions) of July 31, 2003. However, this delegation shall not be construed to authorize the Under Secretary to make waivers, certifications, determinations, findings, or other such statutorily required substantive actions that may be called for in connection with the submission of a report. The Under Secretary shall be responsible for referring to the Secretary, the Deputy Secretary, or the Deputy Secretary for Management and Resources any matter on which action would appropriately be taken by such official.

Any authority covered by this delegation may also be exercised by the Deputy Secretary and the Deputy Secretary for Management and Resources, to the extent authorized by law, or by the Secretary of State.

This is the last of the three DAs cited by the State Department as having been rescinded by Tillerson. According to Reuters, the authorities regarding congressional reporting functions will now go to the Office of Policy Planning (S/P), The current S/P head is a member of Tillerson’s inner circle, Brian Hook. The position does not require Senate confirmation.  Three former officials told Reuters that giving the policy planning staff final sign-off on the reports could inject political considerations into their preparation.  (For what it’s worth, a Foggy Bottom denizen who knew Mr. Hook during his prior stint at State during the Bush administration told us that he is “very smart and thoughtful — a good pick for the head of the policy shop — and also really a nice man.”)

S/P was created in 1947 by George Kennan at the request of Secretary of State George C. Marshall. The office serves as a source of independent policy analysis and advice for the Secretary of State. According to state.gov, the Policy Planning Staff”s mission is to take “a longer term, strategic view” of global trends and frame recommendations for the Secretary of State to advance U.S. interests and American values.

Note that there are at least 300 congressionally mandated reports required by Congress. So S/P will now have sign off on all those reports? The rumors of an expanding S/P empire is in all likelihood, true, because how are you going to clear all these reports?  And if this is the case, who’s going to be doing “longer term, strategic view” for the State Department if S/P is signing off on all reports and every policy memo? What’s the career diplomat at “P” going to be doing?

One other thing pointed out to us, particularly on the delegation to P for signing off on reports to Congress is that these reports must have a “policy sign-off.”  We understand that the Bureau of Legislative Affairs (H) never had this function which is primarily coordination of legislative activity/strategy and principally as liaison to Congress.  Apparently, the 7th floor is not even aware of this and was under the assumption that the bureau’s responsibility to “transmit” reports is the same as responsibility to “sign-off” for policy purposes.

Did somebody send the Office of the Legal Adviser (L) a smoke signal for help?

NOTE: Delegation of Authority: 245-2 Delegation from the Secretary to the Deputy Secretary, July 31, 2017 to be published in the Federal Register on August 14, 2017. This DA supersedes Delegation of Authority 245-1, dated February 13, 2009. PDF

AND NOW THIS —

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@StateDept Updates List of Personnel Offenses Subject to Discipline, Note Language on Freedom of Expression

Posted: 3:52 am ET

 

In January 2017, Congress passed the Department of State Authorities Act: Fiscal Year 2017, which introduced new legislative requirements with regard to the Accountability Review Board (ARB) statute. On July 17, the State Department updated three FAM sub-chapters related to standards of appointment and continued employment, and the list of offenses subject to disciplinary action for both the Foreign Service and the Civil Service.

3 FAM 4130 STANDARDS FOR APPOINTMENT AND CONTINUED EMPLOYMENT

Under 3 FAM 4138, the following update has been added:

  • (12) Conduct by a senior official that demonstrates unsatisfactory leadership in relation to a security incident under review by an Accountability Review Board convened pursuant to 22 U.S.C. 4831; or
  • (13) Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.

Note that 3 FAM 4139.3  Freedom of Expression (CT:PER-860;  07-17-2017) (Uniform State/USAID)
(Applies to Foreign Service Employees)
appears to be a new addition. Further note the language here that says “An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.”

The agencies do not presume to impinge upon any of their employee’s right of expression, but the individual as an employee is obliged to protect or to refrain from unauthorized dissemination of certain types of information which the employee acquires through official duties, such as classified information, privileged financial, commercial, and other business information, and information about individuals protected by 5 U.S.C. 552a (the Privacy Act of 1974).  An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.  Such efficiency may be impeded because information appearing insignificant from a security point of view is highly sensitive by virtue of the source or manner in which it was acquired; or because creation of a poor reputation for discretion and security consciousness seriously impairs the trust and confidence the Service normally enjoys with foreign governments and individuals with whom it must deal in candor and mutual confidence.  The Department’s procedures for the expression of dissenting views on official matters are contained in 5 FAM, and for the agencies the prerequisites for public speeches or writing for publication are found in uniform State/USAID regulations in 3 FAM 4170.

Other additions/update to this subchapter includes Habitual Use of Intoxicating Beverages to Excess, Abuse of Narcotics, Drugs, or Other Controlled Substances, Loyalty and Security, and Financial Responsibility.

3 FAM 4370 says: The purpose of this subchapter is to advise employees, supervisors, and managers of some of the types of employee conduct which can result in disciplinary action.  It is intended that this material be required reading for new employees and that it be referred to during briefings on the behavior expected of employees, ethics, the Department’s leadership tenets, etc.  The Department believes that the more employees know and understand their responsibilities and the professional standards by which they are expected to abide, the less likely it is that they will engage in improper behavior that requires disciplinary action.  Disciplinary action is taken only after it has been determined that discipline, rather than less formal action, such as an admonishment, is necessary.

On duty 24 hours a day:  As explained in 3 FAM 4130, the attainment of foreign policy objectives requires the maintenance of the highest standards of conduct by employees of the Foreign Service.  Because of the uniqueness of the Foreign Service, employees serving overseas are considered to be on duty 24 hours a day, seven days a week, and must observe especially high standards of conduct during and after working hours, and when on leave or in travel status.  Accordingly, the commission after work hours of many of the offenses listed here under “Conduct on the Job” would still be punishable if it affects the ability of the individual or the agency to carry out its responsibilities or mission.  No action against a Foreign Service employee should be considered without a careful review of 3 FAM 4130.

The list is not exhaustive, but these are a few marked additions:

  • 40. Dereliction of managerial and supervisory duty by neglecting to carry out personnel management responsibilities, including failure to address conduct or performance problems, failure to complete required performance ratings or reviews, or failure to address a toxic workplace.
  • 50. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring commercial sex.
  • 51.  Sexual Assault (3 FAM 1700)
  • 52.  Violation of regulations or policies (including post policies) regarding the payment or treatment of domestic staff (3 FAM 4128)
  • 53. Failure to maintain records as required in 5 FAM 414.8 paragraph (2)
  • 54. Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.

See more 3 FAM 4370 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – FOREIGN SERVICE

The subchapter for the Civil Service appears to be entirely new:

It is impossible to list every possible punishable offense, and no attempt has been made to do this.  Employees are on notice that any violation of Department regulations could be deemed misconduct regardless of whether listed in 3 FAM 4540.  This table of penalties lists the most common types of employee misconduct.  Some offenses have been included mainly as a reminder that particular behavior is to be avoided, and in the case of certain type of offenses, like sexual assault, workplace violence, and discriminatory and sexual harassment, to understand the Department’s no-tolerance policy.

The non-exhaustive list includes 51 offenses with penalties meriting a Letter of Reprimand except for the following:

12. Improper political activity (5 U.S.C. 7321, et seq.) – suspension or removal

35. Violation of the “no strike” affidavit – removal (same penalty for Foreign Service)

39. Gifts to official supervisors¾soliciting contributions for gifts or presents to those in superior official positions, accepting gifts or presents from U.S. Government employees receiving lower salaries, or making donations as a gift or present to official supervisors (exception:  this does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, retirement, or transfer (22 CFR 1203.735-202(e)) – Removal (required by 5 U.S.C. 7351) (same penalty for the Foreign Service)

Read more here: 3 FAM 4540 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – CIVIL SERVICE

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MSPB Precedential Case: The Statutory Definition of a “Widow”

Posted: 2:14 am ET

 

This is a precedential case worth noting via the U.S. Merit Service Protection Board:

Petitioner: Amanda E. Becker
Respondent: Office of Personnel Management Tribunal: U.S. Court of Appeals for the Federal Circuit Case Number: 2016-1365
MSPB Docket No. CH-0831-15-0280-I-1
Issuance Date: April 7, 2017

Case Report – April 14, 2017

The appellant filed an application with the Office of Personnel Management (OPM) seeking survivor benefits under the Federal Employees’ Retirement System (FERS) based on the Federal service of her late husband. OPM denied her application on the basis of its finding that she did not meet the statutory definition of a “widow” who may receive such benefits, which is defined at 5 U.S.C. § 8441(1) as the surviving wife of an employee who was married to the employee for at least 9 months immediately before his death, or who is the mother of children by that marriage. The appellant appealed OPM’s decision, and the administrative judge affirmed. During the proceedings, the administrative judge denied the appellant’s request for discovery regarding instances in which OPM may have waived the 9-month requirement and regarding whether OPM provided her late husband notice regarding the 9-month requirement. The appellant appealed the decision to the court, arguing that 5 U.S.C. § 8441(1) was unconstitutional and that the administrative judge improperly denied her discovery requests.

Holdings:

(1) The court found that 5 U.S.C. § 8441(1) does not violate the Constitution because there is a rational basis for Congress to use an imprecise set of criteria as a proxy to ensure that the marriage was entered into for reasons other than the desire to shortly acquire benefits.

(2) The court found that the administrative judge did not abuse her discretion in denying the appellant’s discovery requests because: (a) she had no reasonable belief that OPM has previously waived the 9-month requirement and, even if OPM had previously done so, it would still be required to follow the statutory requirements when reviewing the appellant’s application; and (b) there was no dispute that the appellant’s late husband submitted all of the election forms to ensure that she received survivor benefits and, even if he was unfamiliar with the statutory requirements contained in the election forms he signed, such fact would not provide a basis for waiving the requirements.

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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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