Rainey v. @StateDept: Attention Whistleblowers — Rules and Regs Are Not Laws

Posted: 2:14 am ET

 

Last year, we blogged about a decision by the Merit Systems Protection Board concerning a Whistleblower Protection Act case where a State Department employee, Timothy Allen Rainey, alleged that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations (FAR) and training certification procedures. See Rainey v. State Department: “Right-to-Disobey” (Precedential Decision).

On June 7, 2016, the U.S. Court of Appeals for the Federal Circuit upheld the Merit Systems Protection Board ruling in a precedent-setting opinion — agreeing that the term “a law” in section 2302(b)(9)(D) refers only to a statute, and not to a rule or regulation.

In this IRA appeal, Rainey claimed that his duties as contracting officer had been taken away from him because he refused to obey his supervisor’s order to tell a contractor to rehire a terminated subcontractor.  Rainey contended that he refused to obey the order because dong so would have required him to violate a provision of the Federal Acquisition Regulation.  The issue was whether the right-to-disobey provision of the Whistleblower Protection Act, 5 U.S.C. §  2302(b)(9)(D), which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” applied to the appellant, who alleged that he had suffered retaliation for refusing to obey an order that would require him to violate a regulation.  The Board, relying on a recent Supreme Court decision, Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015), which held that the word “law” in the “right-to-disclose” provision of the WPA, 5 U.S.C. §  2302(b)(8), refers only to statute, and not to a rule or regulation, ruled that the term “a law” in section 2302(b)(9)(D) should also be interpreted to refer to a statute, and not to a rule or regulation.  122 M.S.P.R. 592 (2015).

The Court writes:

Dr. Rainey makes a final argument that the FAR is a particularly important regulation that has the full force and effect of law and therefore should be regarded as “a law” within the meaning of section 2302(b)(9)(D) even if other regulations do not qualify as “laws” for purposes of that statute. The first problem with that argument is that substantive agency regulations that are promulgated pursuant to statutory authority typically have the “force and effect of law,” see Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979), so that feature does not distinguish the FAR from other more quotidian legislative rules. The second problem with the argument is that, as noted, there is nothing in the section 2302(b)(9) that even hints at a distinction between important regulations and less important regulations; to the contrary, the statute distinguishes between “a law” and “law, rule, or regulation,” and the FAR clearly falls on the “regulation” side of that divide.

What now?  Court says “Congress is free to alter the scope of the statute”:

Dr. Rainey’s arguments are heavy on policy reasons why Congress likely would not have wanted to confine the scope of section 2302(b)(9)(D) to statutes. Those policy considerations are not without force, and it may be that the statute should be extended to cover rules, regulations, and other sources of legal authority. If so, Congress is free to alter the scope of the statute. But we are not so free. Between the restrictive language chosen by Congress and the closely analogous decision of the Supreme Court in MacLean, we are constrained to hold that the protection granted by section 2302(b)(9)(D) is limited to orders that are contrary to a statute, and does not encompass orders that are contrary to a regulation.

This is bad.  So basically State Department employees will not be able to get whistleblower protection for refusing orders that violate rules or regulations in the Foreign Affairs Manual/Foreign Affairs Handbook.  If a supervisor orders an employee to break the rules/regs in the FAM/FAH, the employee must comply or be subjected to disciplinary action/s?  How nutty is that?

Click here to contact your congressional representatives.

Read the ruling below or read it via mspb.gov here (PDF). 

 

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Congress to require @StateDept to report on diversity recruitment, employment, retention, and promotion

Posted: 12:12  am ET

About time, too!

For years we’re been looking at the State Department to make available publicly its diversity statistics, most particularly the gender and race component of its promotion statistics (see related posts below). Somebody from Secretary Kerry’s office once told us he would look into it and then we never heard anything back despite periodic reminders.  For whatever reason, the State Department has no interest to make its gender and race promotion statistics available publicly. Data is available annually, but it remains behind the firewall. Which is rather curious.

Congress has now included a reporting requirement for the State Department’s diversity recruitment, employment, retention, and promotion.  The requirement is included in S.1635 Department of State Operations Authorization and Embassy Security Act, Fiscal Year 2016 which was passed by the Senate by unanimous consent on April 28, 2016. (See Whoa! Senate Passes @StateDept Operations Authorization and Embassy Security Act, FY2016). Since this reporting requirement is mandated by Congress, if this becomes law, the promotion stats, can no longer be shielded behind the firewall.  The report has to be submitted no later than 180 days after the Act is enacted, and the information required includes the 3 fiscal years immediately preceding the fiscal year in which the report is submitted.

Sec. 218. Report on diversity recruitment, employment, retention, and promotion.

(a) In General.–Not later than 180 days after the date of the enactment of this Act, and quadrennially thereafter, the Secretary of State shall submit a comprehensive report to Congress that–

(1) describes the efforts, consistent with existing law, including procedures, effects, and results of the Department since the period covered by the prior such report, to promote equal opportunity and inclusion for all American employees in direct hire and personal service contractors status, particularly employees of the Foreign Service, to include equal opportunity for all races, ethnicities, ages, genders, and service-disabled veterans, with a focus on traditionally underrepresented minority groups;

(2) includes a section on–

(A) the diversity of selection boards;

(B) the employment of minority and service-disabled veterans during the most recent 10-year period, including–

(i) the number hired through direct hires, internships, and fellowship programs;

(ii) the number promoted to senior positions, including FS-01, GS-15, Senior Executive Service, and Senior Foreign Service; and

(iii) attrition rates by grade, civil and foreign services, and the senior level ranks listed in clause (ii);

(C) mentorship and retention programs; and

(3) is organized in terms of real numbers and percentages at all levels.

(b) Contents.–Each report submitted under subsection (a) shall describe the efforts of the Department–

[[Page S2590]]

(1) to propagate fairness, impartiality, and inclusion in the work environment domestically and abroad;

(2) to eradicate harassment, intolerance, and discrimination;

(3) to refrain from engaging in unlawful discrimination in any phase of the employment process, including recruitment, hiring, evaluation, assignments, promotion, retention, and training;

(4) to eliminate illegal retaliation against employees for participating in a protected equal employment opportunity activity;

(5) to provide reasonable accommodation for qualified employees and applicants with disabilities;

(6) to resolve workplace conflicts, confrontations, and complaints in a prompt, impartial, constructive, and timely manner;

(7) to improve demographic data availability and analysis regarding recruitment, hiring, promotion, training, length in service, assignment restrictions, and pass-through programs;

(8) to recruit a diverse staff by–

(A) recruiting women, minorities, veterans, and undergraduate and graduate students;

(B) recruiting at historically Black colleges and universities, Hispanic serving institutions, women’s colleges, and colleges that typically serve majority minority populations;

(C) sponsoring and recruiting at job fairs in urban communities;

(D) placing job advertisements in newspapers, magazines, and job sites oriented toward women and people of color;

(E) providing opportunities through the Foreign Service Internship Program and other hiring initiatives; and

(F) recruiting mid- and senior-level professionals through programs such as–

(i) the International Career Advancement Program;

(ii) the Public Policy and International Affairs Fellowship Program;

(iii) the Institute for International Public Policy Fellowship Program;

(iv) Seminar XXI at the Massachusetts Institute of Technology’s Center for International Studies; and

(v) other similar, highly respected, international leadership programs; and

(9) to provide opportunities through–

(A) the Charles B. Rangel International Affairs Fellowship Program;

(B) the Thomas R. Pickering Foreign Affairs Fellowship Program; and

(C) the Donald M. Payne International Development Fellowship Program.

(c) Scope of Initial Report.–The first report submitted to Congress under this section shall include the information described in subsection (b) for the 3 fiscal years immediately preceding the fiscal year in which the report is submitted.

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Related posts: 

 

 

 

Senator With Serious Grrrrr Over Cuba Policy Picks On Obama’s Ambassador Nominee. For Mexico!

Posted: 3:53 am ET

 

The Hill reported on April 26 that Sen. Marco Rubio (R-Fla.) blocked the Senate from moving forward with President Obama’s nominee to be ambassador to Mexico.

The Florida senator said he had questions about policies that nominee Roberta Jacobson has “pursued” in her current position as assistant secretary of State for Western Hemisphere affairs.

Last year, Politico reported that the delays in her committee approval have “everything to do with the Cuban policy,” according to Sen. Ben Cardin of Maryland, ranking Democrat on the committee. “That’s not Roberta Jacobson. That’s the Obama policy.” See Mexican post held hostage over Cuba.  Her nomination had since cleared the Senate Foreign Relations Committee but remains ensnared in the Senate.

 

 

Related posts:

 

 

Snapshot: U.S. State Department Core Staffing (1995-2015)

Updated: 3:33 am ET

 

Via heritage.org:

Screen Shot 2016-04-21

 

Related post:

Heritage: How to Make the State Department More Effective at Implementing U.S. Foreign Policy

 

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Congress Threatens to Compel Testimony of Ex-@StateDept Career Employee Over HRC’s Email Server

Posted: 3:34 am EDT

 

We have not heard this name publicly cited before, but Politico is reporting that John Bentel, a 39 veteran of the State Department has now been snared in the Clinton email server saga. Politico says that according to a letter it obtained, Mr. Bentel has declined to be interviewed by GOP staff on the Senate Judiciary and Homeland Security committees. The chairmen of both committees, Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), are reportedly “threatening to consider other ways to compel” Mr.  Bentel to discuss the matter.  Excerpt:

A State Department staffer who oversaw security and technology issues for Hillary Clinton is refusing to answer Senate investigators’ questions about the former secretary of state’s use of a private email server — marking the second time an ex-State employee has declined to talk to lawmakers.

John Bentel, a now retired State employee who managed IT security issues for the top echelon at the department, declined to be interviewed by GOP staff on the Senate Judiciary and Homeland Security committees, according to a letter obtained by Politico.
[…]
The chairmen of both committees, Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), are now threatening to consider other ways to compel him to discuss the matter.

“We are troubled by your refusal to engage with the committees even after repeated overtures of accommodation,” the letter to Bentel and his lawyer reads. “We need to speak with you. … We would, of course, prefer that you meet with us in a voluntary and informal manner, but we will consider other options if faced with a continuing lack of cooperation.”
[…]
On Dec. 4, 2015, Judiciary and Homeland investigators reached out to Bentel’s lawyer to schedule an interview. But Turk told them Bentel had already been asked about the matter when he sat before the House Benghazi Committee. Turk said Bentel told the committee he had “no memory of knowledge” of the server issue and there was “little point” in telling another committee the same thing, according to the letter.

But both Senate panels say Bentel may have been aware of the sever, noting that their investigators have been told that some of Bentel’s subordinates knew about the home setup: “It appears that you were an integral figure in the operations of the Executive Secretariat and that you would have particular and unique knowledge relevant to the committees’ inquiry. Indeed, Department personal have noted that your subordinates in the Executive Secretariat’s office, who reported directly to you, had knowledge of Secretary Clinton’s private email server, which leads one to conclude that you were likely made aware of the server.”

Read more:

There does not seem to be an end in sight for these investigations. Certainly not in 2016.  This is a potential conundrum for folks even in the periphery of the former secretary’s orbit.  One can show up to these interviews and become a story, or one can refused to show up for these interviews and still become a story. Beyond becoming the news of the day, click here for what happens if one refuses to testify.

The law firm, MayerBrown says that Congress can compel the production of documents and sworn testimony from almost anyone at almost any time.  It has a good primer (PDF) on the Congress’s investigative authority and subpoena power:

“Although there is no legal obligation that a party comply with such a request, it is typically in the responding party’s best interest to do so, except where privileged or other sensitive information is involved [snip]. These informal requests present an important first opportunity for the responding party to shape the views and perceptions of the committee staff. Congressional staff members are required to work on a wide range of issues. They will rely heavily on a responding party whom they view as trustworthy to educate them on the issues under investigation. In addition, cooperating with an initial request allows the responding party to demonstrate that it is compliant and respectful, favorably influencing the staff and potentially mitigating the risk that members will publicly attack the responding party for noncooperation.”

Even if there is no immediate possibility of getting snared in these investigations, it’s probably a good reminder to review one’s private Professional Liability Insurance coverage. PLI may not just offer coverage on administrative and disciplinary matters, but also congressional, OIG investigations and civil suits. Outside these controversies, there is one very good reason for a PLI.  The Kent Case demonstrates that while FSOs are considered on duty 24/7, the 24/7 rule “. . . only defines the FSO’s duty to the state–not the states duty to the FSO.”  The case is Kashin v Kent dating back to 1998, decided by the Appeals Court in August 2006, and we think, it’s a must read case for FS employees.

Note that State Department regulations allow the reimbursement of up to 50%, or $175, whichever is less of the PLI cost for eligible covered employees (see 3 FAM 3840 – pdf). Membership with AFSA also affords one legal services when needed.  Check with AFSA. Also check with HR for guidance on PLI coverage.

 

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Email of the Day: Wow! What’s With These @StateDept “Make Them Whole” Awards?

Posted: 1:50 am EDT

 

Via foia.state.gov released through the Leopold v. State Department FOIA litigation. These “make them whole” awards are given because the “sucessesors (sic) got the award and they didn’t.” Wait, what? Does this mean the employees got these awards because the folks who followed them on these jobs got the awards but they didn’t? Help us, we don’t understand this award type. Is this like those competition where everyone gets a trophy?

 

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@StateDept Honors 47 Employees For Exceptional Performances at Home and Abroad

Posted: 12:20 am EDT

 

The Department-wide annual awards ceremony was held on November 5, 2015 at the Ben Franklin Room with Secretary Kerry, Deputy Secretary of State for Management and Resources Heather Higginbottom and DGHR Arnold Chacon in attendance. As its usual practice, the names of awardees are usually announced via cable to all posts in fall but the public release of names occur via publication in the agency’s official rag, State Magazine, which typically occurs in January of the following year.

Extracted from State Magazine, January 2016:

 

Related items:

Awards of the United States Department of State (Wikipedia)

3 FAM 4800 Department Awards Program (Foreign Affairs Manual):
4810 Awards Program-General
4820 Honor Awards
4830 Annual Awards
4840 Recognition Awards
4870 Honor Award for Exceptionally Arduous Service

 

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

Posted: 1:26 am EDT

 

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

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

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

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

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

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

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

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

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

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

 

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

Posted: 12:53 am EDT

 

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

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

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

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

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

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

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

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

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

II.  Appointing Employees to the Senior Executive Service

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

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

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

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

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

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

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

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

And “Don’ts”:

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

Read more here.

 

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