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The World Watches Another Trumpster Fire Week #WhatNowPublicDiplomacy?

Posted: 2:38 am ET

 

Last June, USC’s Center on Public Diplomacy did a piece on Islamophobia & U.S. Public Diplomacy in the Trump Era. In another post on re-thinking social engagement, CPD writes that “in the age of Trump though, global organizations, especially those with American origins, must do all they can now to shore up their reputational capital and strengthen bonds of trust with the people they engage with and serve – customers, employees, influencers, citizens – around the world.” On Wednesday, USC Annenberg will host P.J. Crawley, former spox and Assistant Secretary of State for Public Affairs for a conversation on U.S. domestic politics and the future of America’s global leadership in the age of Trump.

Former FSO John Brown once wrote that at its best, public diplomacy “provides a truthful, factual exposition and explication of a nation’s foreign policy and way of life to overseas audiences,”  — how do you do that particularly after what happened last week? After a new underground railroad from the United States to Canada is widely reported to “escape a harsh new U.S. regime”?

Also a quick reminder that the State Department’s Under Secretary for Public Diplomacy and Public Affairs (R) who leads in America’s public diplomacy outreach is currently vacant. Ambassador Bruce Wharton, the acting “R” retired in late July. There are no announced nominees for the undersecretary or for the assistant secretaries for the Bureau of Public Affairs (PA), Educational and Cultural Affairs (ECA), or for Special Envoy and Coordinator of the Global Engagement Center (GEC).

Some cartoonists below looking at the United States.

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@StateDept Dismisses EEO Complaint For Following Wabbit Into a Hole, EEOC Reverses

Posted: 1:45 am ET

 

Here is an EEO case with a reminder that the Commission has previously held that an agency may not dismiss a complaint based on a complainant’s untimeliness, if that untimeliness is caused by the agency’s action in misleading or misinforming complainant.

Quick summary of case via eeoc.gov:

At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Department of State facility in Washington, DC. Complainant contacted an EEO Counselor alleging that she was subjected to discrimination and a hostile work environment. When the matter was not resolved informally, the EEO Counselor emailed Complainant a Notice of Right to File (“NRF”), which Complainant received and signed on January 25, 2017. However, in that same email, the EEO Counselor conflated the EEO filing requirements, misinforming Complaisant that she had to file her signed NRF, rather than her formal complaint, within 15 days. On that same date, Complainant attempted to file her signed NRF with her EEO Counselor, who informed Complainant that the signed NRF had to be filed with the Agency’s Office of Civil Rights, and that filing the signed NRF with that office would initiate the formal EEO complaint process.

Complainant filed her signed NRF, rather than a formal complaint, to the Office of Civil Rights on January 25, 2017, and the Office of Civil Rights confirmed its receipt on January 27, 2017. Complainant therefore filed her signed NRF within the 15-day period that she was supposed to file her formal complaint. However, it was not until February 21, 2017, which was beyond the 15-day filing period, when the Office of Civil Rights informed Complainant that she had submitted the wrong form to initiate the formal EEO process, and that Complainant needed to file a formal complaint rather than her signed NRF.

On March 6, 2017, which was within 15 days of being informed that she had filed the wrong form, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On 10/11/2016, she was denied the ability to telework;
2. On 11/10/2016, she was subjected to an environment of uncertainty and arbitrary decision making regarding her accommodation requests; and
3. She was subjected to a hostile working environment characterized by repeated acts of disparate treatment, unpleasant social interactions with management, and retracted support for locally negotiated reasonable accommodations.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failing to file her formal complaint within 15 days of receiving her Notice of Right to File.

On appeal, Complainant contends that the Agency’s dismissal of her complaint should be reversed because her EEO Counselor mistakenly advised her to file her signed NRF, rather than a formal complaint, within 15 days of receiving her NRF, causing her to miss the filing period for her formal complaint.

The decision notes the following:

EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f).

On June 28, 2017, the EEOC reversed the State Department’s decision to dismiss the complaint and remanded the case to the agency for further processing in accordance with its order as follows:

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request.

Compliance with the Commission’s corrective action is mandatory. Read the full decision here.

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When @StateDept Folks Send Action Memos to the 7th Floor … 😭 😭 😭

Posted: 12:12 am ET

 

Via Politico:

State Department officials began urging Tillerson to seek the first $60 million from the Defense Department soon after he took office in February, according to the former senior State Department official.

But they quickly found themselves mired in a new, confusing and bottlenecked decision-making process imposed by Tillerson’s top aides. For example, officials involved with the center first put in their request in an “action memo,” the standard document sent to the secretary of state when a decision is required. Tillerson’s aides retorted that he “didn’t like being told what to do,” the former senior State official said, and ordered that the request be refashioned as an “information memo.”

Poor action memos, after years and years of being known as action memos, they will now be just info, not action memos. Kind of like the building.  No more Bruce Willis yippie-kai-yay memos.  But how long before 7th floor papers will be upgraded from 12 pt TNR (Times New Roman) to 14pt TNR once more?  All over the building desk officers will be mourning the loss of 100 words that will no longer fit in the call sheet. Or maybe, even the loss of hundreds more words if information memos now need to fit into a notecard.

But here you go …

Via astrologygifs

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If @StateDept Refuses to Spend $80M Appropriated Funds, Could It End Up in Court? #GAO

Posted: 3:48 pm PT

 

Last month, we wrote about the 1974 Congressional Budget and Impoundment Control Act; the Act  inspired by then President Nixon’s refusal to disburse nearly $12 billion of appropriated funds by Congress.

Today, Politico is reporting that Secretary Tillerson is resisting the pleas of State Department officials to spend nearly $80 million allocated by Congress for fighting terrorist propaganda and Russian disinformation.

“It is highly unusual for a Cabinet secretary to turn down money for his department. But more than five months into his tenure, Tillerson has not issued a simple request for the money earmarked for the State Department’s Global Engagement Center, $60 million of which is now parked at the Pentagon. Another$19.8 million sits untouched at the State Department as Tillerson’s aides reject calls from career diplomats and members of Congress to put the money to work against America’s adversaries.”

The $60 million will expire on Sept. 30 if not transferred to State by then, current and former State Department officials told POLITICO.
[…]
Last month, Republican Sen. Rob Portman of Ohio pressed Deputy Secretary of State John Sullivan on whether Tillerson considers the Global Engagement Center a priority and urged that hiring caps be lifted so the center can expand.

We anticipate that Congress could allocate more funds for the State Department than requested by the Trump Administration.  Given that the Administration has proposed some 30% cuts in its own request, it will be worth watching what Tillerson will do with the bulk of appropriated funds that the Administration did not ask for. The reported $80 million for the State Department’s Global Engagement Center that the State Department has not released could be the first test.

The State Department could violate the 1974 Impoundment Control Act (ICA) if it refuses to obligate funds for policy reasons without President Trump sending a special message to both Houses of Congress.  It is also considered a violation is if it sets aside funds or intentionally slows down spending, or if it proposes a deferral but the timing is such that funds could be expected to lapse before they could be obligated.

Under ICA, an impoundment is any action or inaction by an officer or employee of the federal government that precludes obligation or expenditure of budget authority.  The Act applies to salaries and expenses appropriations as well as program appropriations.

The Impoundment Control Act of 1974 (ICA) provides authority for agencies to “impound” or withhold the obligation of funds in certain circumstances. There are two ways for withholding funds, through a deferral or through proposed rescission. In both both cases, the President is required to send a “special message” to the House and the Senate specifying the following:

(1) the amount of budget authority which he proposes to be rescinded or which is to be so reserved;
(2) any account, department, or establishment of the Government to which such budget authority is available for obligation, and the specific project or governmental functions involved;
(3) the reasons why the budget authority should be rescinded or is to be so reserved;
(4) to the maximum extent practicable, the estimated fiscal, economic, and budgetary effect of the proposed rescission or of the reservation; and
(5) all facts, circumstances, and considerations relating to or bearing upon the proposed rescission or the reservation and the decision to effect the proposed rescission or the reservation, and to the maximum extent practicable, the estimated effect of the pro- posed rescission or the reservation upon the objects, purposes, and programs for which the budget authority is provided.

A deferral is used if the President wants to temporarily withhold obligation of funds (but not beyond the end of the fiscal year). A rescission is used if the President wants to permanently withhold funds from obligation and for Congress to cancel the budget authority (before that authority would otherwise expire). The latter can be accomplished only through legislation.

The GAO’s Principles of Federal Appropriations Law notes that “The President is authorized to withhold budget authority that is the subject of a rescission proposal for a period of 45 days of continuous session following receipt of the proposal. Unless Congress acts to approve the proposed rescission within that time, the budget authority must be made available for obligation.”

Since Congress is on break in August, and the fiscal year ends on Sept 30, we don’t think there’s enough time to notify Congress of the rescission if that’s something the State Department is considering for the $80 million GEC funds.

So what happens if an agency withholds appropriated funds, and refuses to spend it?

Continue reading

@StateDept Spins the Russia Sanctions, Fails to Impress Regular Folks

Posted: 12:01 am ET

 

 

Continue reading

FS Labor Relations Board on AFSA Dues, Foreign Service Retirees, and Annuities ≠ Salaries

Posted: 4:22 am ET

 

Last month, the Foreign Service Labor Relations Board (FSLRB) rendered a decision about AFSA dues and Foreign Service retirees.  AFSA filed with the Foreign Service Labor Relations Board (the Board) a “request[ for] . . . interpretation and guidance of § 1018(b)(2) of the Foreign Service Act of 1980. This provision concerns the termination of payroll deductions for union dues when “the individual ceases to receive a salary from the [Agency] as a member of the Service.”

When Agency employees wish to have their Union dues automatically withheld from their paychecks, the employees complete a form that authorizes the Agency to withhold those funds and remit them to the Union.6 According to the Union, the Agency automatically terminates dues withholding when a foreign-service employee retires. The Union asserts that this practice is based on an erroneous understanding of § 1018(b)(2) of the Foreign Service Act …
[…]
[T]he Union argues that the automatic termination of dues withholding causes it to lose dues and, therefore, asks the Board to find that § 1018(b)(2) does not require automatic termination of dues withholding upon retirement.
[…]
The Union contends that the Agency should continue withholding dues from an individual’s retirement benefits based on the same dues-withholding-authorization form that applied to the individual’s salary while in active service.17 We disagree.

Section 1018(b)(2) of the Foreign Service Act requires the Agency to terminate an existing dues-withholding assignment when an “individual ceases to receive a salary from the [Agency].”18 As explained below, retirees generally receive “annuities,” not salaries, upon retirement.19

The FSLRB says it find that § 1018(b)(2) requires the State Department to terminate an existing dues-withholding assignment when a retiring employee stops receiving a salary.

The Department deducts union dues from salaries on the basis of a voluntary act by the Foreign Service employee. The employee has the right to revoke his/her decision at any time. Whenever an employee who has had his/her union dues deducted from salary arrives at the moment of retirement, it must be assumed that he/she continues to believe it had been in his/her interest to maintain both their membership in the union, and the automatic deduction of union dues.

The Board notes that “when a foreign-service employee retires, that “individual ceases to receive a salary from the [Agency].”30 Consequently, under § 1018(b)(2), the Agency must terminate the individual’s previous dues-withholding assignment.”
AFSA has over 10,000 active paying FS members. Its dues range from $95.00 to $400.00 annually based on four employee brackets.  Read the full decision below:

 

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ExxonMobil “demonstrated reckless disregard for U.S. sanctions” – @StateDept says go over there for QQQs!

Posted: 12:42 am ET

 

The State Department spokesperson Heather Nauert did one of her twice a week Daily Press Briefing at the State Department and was asked about the Treasury Department’s Exxon fine for violating the Russian sanctions when Secretary Tillerson was the CEO. A quick note here.  We realized that they’ve changed the name of this briefing into “Department Press Briefing” but as a daily reminder that the Bureau of Public Affairs is now unable to handle the daily demands of briefing the press, we will continue calling this the State Department’s Daily Press Briefing.

Below are excerpts from the DPB:

MS NAUERT: The Secretary – we’re not going to have any comments today for you on some of the alleged facts or the facts underlying the enforcement action. Treasury is going to have to answer a lot of these questions for you. I’m not going to have a lot for you on this today. The Treasury Department was involved in this. They were the ones who spearheaded this. And so for a lot of your questions, I’m going to have to refer you to Treasury.

MS NAUERT: Yes. I’m not going to comment on that at this time. The Secretary recused himself from his dealings with ExxonMobil at the time that he became Secretary of State. This all predates his time here at the Department of State, and so —

MS NAUERT: I think I will say this: The Secretary continues to abide by his ethical commitments, including that recusal from Exxon-related activities. The action was taken by the Department of State – excuse me, the Department of the Treasury, and State was not involved in this.

QUESTION: And does – can you tell us if the Secretary believes in the objectives of the Ukraine-related sanctions programs?

MS NAUERT: I know that we have remained very concerned about maintaining sanctions. That will continue. We’ve been clear that sanctions will continue until Russia does what Russia needs to do.

QUESTION: For the record, will he come down and talk with us —

MS NAUERT: Well, I’m sorry, who —

QUESTION: — talk about this? Just for the record, will he come down and talk about this to us himself?

MS NAUERT: Well, I’m here to speak on his behalf and on behalf of the building. There’s not a whole lot that we can say about this right now. Again, you can talk to Treasury or to Exxon about this. Okay.

MS NAUERT: The Secretary has been – not to my knowledge. I can tell you this, that he has been extremely clear in his recusal of anything having to do with Exxon. When this information come to us here at the State Department, it did not come to the Secretary himself. It came to the Deputy Secretary John Sullivan. The Secretary has taken this very seriously, that Exxon-related activities are not something that he is involved with here as Secretary of State.

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In assessing the maximum monetary penalty, Treasury/OFAC outlined the following as aggravating factors (via):

(1) ExxonMobil demonstrated reckless disregard for U.S. sanctions requirements when it failed to consider warning signs associated with dealing in the blocked services of an SDN; (note: Specially Designated Nationals)

(2) ExxonMobil’s senior-most executives knew of Sechin’s status as an SDN when they dealt in the blocked services of Sechin;

(3) ExxonMobil caused significant harm to the Ukraine-related sanctions program objectives by engaging the services of an SDN designated on the basis that he is an official of the Government ofthe Russian Federation contributing to the crisis in Ukraine; and

(4) ExxonMobil is a sophisticated and experienced oil and gas company that has global operations and routinely deals in goods, services, and technology subject to U.S economic sanctions and U.S. export controls.

U.S. Secretary of State Rex Tillerson delivers remarks at the 22nd World Petroleum Congress opening ceremony in Istanbul, Turkey, on July 9, 2017. [State Department photo/ Public Domain]

 

AND NOW THIS — the State Department’s “employee-led redesign initiative” with no “predetermined outcomes” is a runner up for “Best in Show.”

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@StateDept Withdraws Proposed Rule For Adoption Accreditation Requirements #HagueConvention

Posted: 4:05 am ET

 

Last year, the State Department proposed to amend the requirements for accreditation of agencies and approval of persons to provide adoption services in intercountry adoption cases. See below:

The Department of State (the Department) proposes to amend requirements for accreditation of agencies and approval of persons to provide adoption services in intercountry adoption cases. The proposed rule includes a new subpart establishing parameters for U.S. accrediting entities to authorize adoption service providers who have received accreditation or approval to provide adoption services in countries designated by the Secretary, which will be known as “country-specific authorization” (CSA). Adoption service providers will only be permitted to act as primary providers in a CSA-designated country if they have received CSA for that particular country. The proposed rule also strengthens certain standards for accreditation and approval, including those related to fees and the use of foreign providers. In addition, the proposed rule enhances standards related to preparation of prospective adoptive parents so that they receive more training related to the most common challenges faced by adoptive families, and are better prepared for the needs of the specific child they are adopting. These proposed changes are intended to align the preparation of prospective adoptive parents with the current demographics of children immigrating to the United States through intercountry adoption. Finally, the proposed rule makes the mechanism to submit complaints about adoption service providers available to complainants even if they have not first addressed their complaint directly with the adoption service provider.

You can read more on why the Secretary of State proposed to change this rule here.  In April, the State Department withdrew the proposed rule with the following brief notice:

The Department of State (Department) published a notice of proposed rulemaking (NPRM) on September 8, 2016, proposing to amend its regulations implementing the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Intercountry Adoption Act of 2000. 81 FR 62322. The Department hereby withdraws that action. The comments provided in response to the NPRM will be considered in drafting a new rule, which is expected to be published later this year.

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G20 Trump Keywords: Disharmony, Decline, Isolation, Plus Vlad’s CyberSecurity Ha! Ha!

Posted: 3:09 am ET

 

AND NOW THIs …

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@StateDept Says It’s “Unfortunate” That It Withholds Employee Survey Results From Public 😢 Hu-Hu!

Posted: 1:59 am ET

 

Via govexec.com:

“Unfortunately, the results of the survey will not be available,” said Nicole Thompson of the department’s Office of Press Relations. That position comes in spite of the fact that a copy of the 110-page survey report from Insigniam, a consulting firm, was leaked to the Wall Street Journal, which published excerpts.

Hey, that’s the $10K/page report that the American taxpayers paid for but cannot read publicly. “Unfortunate” is an understatement. We also don’t know who owns the data collected during this study. Do you?

The contractor has asserted its copyright on the report — provided for under the FAR — in which case, “when claim to copyright is made the Contractor grants the Government, and others acting on its behalf, a license to the work.” Also that “The Government’s license includes the right to distribute copies of the work to the public for government purpose.” So in this case, by not making the report public, the State Department has decided that the American public does not have a right to see a report it paid for.

Folks, this is going to be the document that Mr. Tillerson will cite in reorganizing, no, excuse me, downsizing his own agency, the oldest executive agency in our history, and the public is not allowed to read it?  Holy moly guacamole! Help me! I can’t stop crying 😢 😢 😢 …

If Contractor is Allowed to Assert Copyright in a Work Produced Under a Government Contract, What Rights Does the Government Have?

Federal Acquisition Regulation (FAR) was established to codify uniform policies for acquisition of supplies and services by executive agencies. The following from the Frequently Asked Questions About Copyright Issues Affecting the U.S. Government  addresses the issue of copyright from an operations perspective:

A contractor’s assertion of copyright in a work produced under a DFARS contract does not provide any restrictions to the Government’s use of the work (see DFARS 227.7103-990 and 227.7203-991). In a FAR contract, if the contractor is permitted to assert copyright, the Government will acquire a license to the copyrighted work. The extent of the license may depend on the type of work created (see FAR 52.227-1492).

Under the FAR, when a contractor asserts copyright in a work first produced in the performance of a contract with a civilian agency or NASA, the contractor must place a copyright notice acknowledging the government sponsorship (including contract number) on the work when it is delivered to the Government, as well as when it is published or deposited for registration with the U.S. Copyright Office (see FAQ Section 4.8). If no copyright notice is placed on the work, the Government obtains unlimited rights in the work. Unlimited rights allow the Government to provide the work to another contractor and distribute the work to the public, including posting the work to a public web site. Otherwise, when claim to copyright is made the Contractor grants the Government, and others acting on its behalf, a license to the work.

The Government’s license is a nonexclusive, irrevocable, worldwide license to use, modify, reproduce, release, perform, display or disclose the work by or on behalf of the Government. The Government may use the work within the Government without restriction, and may release or disclose the work outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose the work on behalf of the government. The Government’s license includes the right to distribute copies of the work to the public for government purpose. While the contractor may assign its copyright in “scientific and technical articles based on or containing data first produced in the performance of a contract” to a publisher, the Government’s license rights attach to the articles upon creation and later assignment by the contractor to a publisher are subject to these rights. Under some FAR data rights clauses, if the work is a computer program, the right to release or disclose the computer program to the public is not included in the Government’s license. If there is any question as to the scope of the Government’s license, the Contracting Officer or your General Counsel should be consulted.

An example of a copyright statement, which includes a government license, for use with works created under contracts with civilian agencies and NASA is:

COPYRIGHT STATUS: This work, authored by ______________ employees, was funded in whole or in part by _________________ under U.S. Government contract _______________, and is, therefore, subject to the following license: The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in this work to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.

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