@StateDept Updated Assignment Restrictions Regs in 2020, Also Where’s the Preclusion Data?

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Last week, Politico published a piece about hundreds of people of color at the State Department handed “assignment restrictions” due to concerns over split loyalties or being susceptible to foreign influence. See Foreigners in their own country: Asian Americans at State Department confront discrimination. In 2017, The Foreign Service Journal published In Pursuit of Transparency in Assignment Restriction Policies by FSOs Christina T. Le and Thomas T. Wong who at that time were the current and past presidents of the Asian American Foreign Affairs Association (AAFAA). Excerpt below:

Employees’ concerns regarding the assignment restrictions process were plentiful: it was unfair, lacked transparency and was based on ethnic origin or family heritage. Our advocacy to the State Department on the issue began in 2009 and continued in earnest through 2016.

The case was framed by input from countless numbers of employees who came to us expressing real frustration, disillusionment and anger over the lack of transparency and accountability in the process. In some cases, the department had prioritized hiring these officers because of their language skills, only to turn around and preclude them from using those valued language skills overseas.

While assignment restrictions affect many State department employees of different backgrounds, we accumulated substantial anecdotal evidence that it has disproportionately affected employees of AAPI descent. Our data suggested assignment restrictions were levied with race as a factor, with disregard for mitigating circumstances and even based on incorrect facts.

According to the authors, the efforts to confront these issues went back many years: “Mariju Bofill first raised the issue with the Secretary of State in 2009, after consultations with the department’s legal advisor, and continued to raise it during the following three years. Cecilia Choi took the baton in 2012, working with the Bureau of Diplomatic Security to try to come to a fair solution. In 2013, The Washington Post featured an article on the subject, “At the State Department, Diversity Can Count Against You,” highlighting the perspectives of several Foreign Service officers.”
In May 2017, AFSA issued guidance on new provisions governing assignment limitations as negotiated with the State Department; these were reportedly implemented on October 21, 2017 and can be found in 12 FAM 233.5.  The latest update were done on June  24, 2020:

Per FAM, assignment restrictions are conditions placed on a security clearance.  They are used to prevent potential targeting and harassment by foreign intelligence services as well as to lessen foreign influence and/or foreign preference security concerns; for example, if an employee and/or his or her close family members maintain citizenship or dual citizenship with that country or have substantial financial interests or foreign contacts there.  Foreign influence and preference are two of the U.S. Government’s Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.

Assignment restrictions may be determined when the initial clearance determination is made, during periodic reinvestigation, or when an individual’s personal situation changes; i.e., marriage, cohabitation, etc. (see 12 FAM 270).  An individual may be restricted from permanent assignment to a particular country or countries, or in some cases, a desk and/or program where that country or countries are the primary focus.  Desks or other positions may present vulnerabilities for targeting when there is frequent official contact with foreign individuals.  Individuals with an assignment restriction to a country may not serve temporary duty (TDY) in that country for more than a total of 60 days during any 365 day period.

The 2020 FAM update allows for a review within 30 days of receiving the assignment restrictions at an employee’s request, on exceptional circumstances the employee/applicant may also request an additional 15 days review, and there us a review on the assignment restrictions by DS/SI/PSS each time an individual’s continued eligibility for access to classified information is re-adjudicated, typically every five years.
The thing that’s clear in the regs is that the initial assignment restriction is conducted by Diplomatic Security. The  reviewer is also Diplomatic Security. After that review, the decision by DS/DSS becomes final. There is no appeal authority above Diplomatic Security. The State Department’s personnel chief, yes, the DGHR said in a congressional hearing that she “does not know enough about the process to answer the question” (see video below).
The updated regs also do not indicate who tracks, and keep the data about these assignment restrictions. The report on Politico points out that the State Department is required by law to provide to Congress “the number and nature of assignment restrictions and preclusions for the previous three years”. This was part of the Department of State Authorities Act, Fiscal Year 2017 dated December 16, 2016 (see 22 USC 2734c: Employee assignment restrictions).  Which means Tillerson in 2017 or Pompeo in 2018 would have been required to submit preclusion data to Congress dating back at least three years.  And yet, the Politico report said that a State Department spokesperson was unable to say how many diplomats across the department are currently subject to restrictions.
Well, now.  So either the State Department ignored a congressional reporting requirement or the information is available but in a lock box?  Who wants to share?
Congressional representatives like Andy Kim of NJ who previously worked for the State Department has publicly voiced a demand that “we fix this problem.”

Below is the top official in charged of personnel including assignments at the State Department told by the congressman from California to “Maybe you might want to find more about this process since you’re Director General of the Foreign Service and Director of Global Talent and this is affecting your State Department employees … “

 


 

 

WhatTheWhat? State/OIG Reviewed But Did Not/Not Evaluate @StateDept’s COVID-19 Response

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“The scope of this review was the Department’s response to the global COVID-19 pandemic and its plans and procedures for returning employees to offices. As part of this review, OIG did not evaluate whether the Department’s implementation of its plans and procedures effectively safeguarded Department personnel health and safety. In addition, OIG did not include the Department’s COVID-19 vaccine distribution or new policies, such as President Biden’s executive order on required mask wearing, as these occurred subsequent to fieldwork completion. OIG completed this review in Washington, DC, and virtually with officials from U.S. Embassy Baghdad, Iraq; U.S. Embassy Kabul, Afghanistan; and Consulate General Frankfurt, Germany. These posts were selected due to OIG’s onsite presence at each post, as well as the varying local responses to the global COVID-19 pandemic, which influenced how the Department’s reopening plans were executed by post management.”

 


 

 

GAP and VOA Whistleblowers Call For Investigation of Ex-USAGM Chief Michael Pack

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On March 18, Government Accountability Project on behalf of federal whistleblowers called for an investigation of the former head of the U.S. Agency for Global Media (USAGM) Michael Pack who reportedly spent nearly $2 million in federal funds investigating Voice of America employees. Excerpt below:
…On behalf of anonymous whistleblowers, alerted Congress and federal whistleblower agencies to new details about sole source, no bid contracts awarded to two law firms by Michael Pack to investigate the employees at the agency he headed, the U.S. Agency for Global Media (USAGM). USAGM is the parent agency of Voice of America (VOA). Until ordered to resign by President Biden on Inauguration Day, Mr. Pack—a Trump administration political appointee—was Chief Executive Officer (CEO) of USAGM.
[…]
After alerting the Congress and the federal whistleblower agencies (the U.S. Office of Special Counsel (OSC) and the State Department Office of Inspector General (OIG) to Mr. Pack’s misconduct, Government Accountability Project used the Freedom of Information Act (FOIA) to obtain additional details about the sole source, no-bid law firm contracts.
GAP provided a link to USAGM materials released via the latter’s FOIA, available here. Government Accountability Project also sent a supplemental analysis to Congress, OSC, and State/OIG.
Cited among its findings:
  • The total value of all services rendered by McGuireWoods and Caplin & Drysdale (billed and unbilled) was approximately $1.776 million.
  • Over four months, McGuireWoods billed approximately $1.625 million in fees and disbursements based on 5,093 billable hours, an average of approximately $320 for each billable hour.
  • The three activities responsible for over 90 percent of McGuireWoods’ billable hours were: “Document Production” (2,998.10 hours); “Analysis/Strategy” (1,053.40 hours); and “Fact Investigation/Development” (655.80 hours).
  • Over four months, Caplin & Drysdale billed approximately $66,000 in fees and disbursements based on 84.4 billable hours, an average of over $780 for each billable hour.
GAP urge the Foreign Affairs and Appropriations Committees in the House and the Senate, State/OIG and the Office of Special Counsel “to specifically investigate the authority invoked and the representations made by Mr. Pack and others in order to pay these law firms, and any other contractors Mr. Pack hired during his brief and controversial tenure.”
The letter is available to read here.


 

 

 

Office of Special Counsel Investigates Pompeo For Two Potential Hatch Act Violations

 

Is @StateDept Suppressing the IG Report on Protocol Officials? What’s Happening to the Whatchamacallits @StateOIG?

The least surprising thing about this report is that a State Department spokesperson strongly defended Henderson and attacked the inspector general. Have you heard the Acting State/OIG Matthew Klimow offer any defense for his people or their work product? We have not. Is A/IG going to say he does not comment on leaked reports? But since there is no plan to release this report apparently, there is also no reason to offer a defense? Is that it? But wait, the State Department has commented on the leaked report and has attacked the inspector general office. Is that how this works?
The State Department spokesperson also shared testimonials purportedly from three unnamed State Department officials (they all have nice things to say!). Also, the spokesperson shared a lengthy comment from one of Pompeo’s two BFFs in Foggy Bottom, Counselor Ulrich Brechbühl.
HuffPost notes that “No part of the State Department’s response directly refuted the idea that Henderson regularly drank to excess on the job.”
If you remember, in November 2019, State/OIG also released a report on the Review of Allegations of Politicized and Other Improper Personnel Practices Involving the Office of the Secretary.  The State Department’s response includes Brian Hook’s 8-page response as well as an official response by  you guess it — Counselor Ulrich Brechbühl who wrote: “The Department disagrees with the finding in the report that improper considerations played a role in the early termination oof Employee One’s detail. The report ignores the compelling evidence provided by Brian Hook that his personnel decision in this matter was actually made prior to any of the non-merit factors being brought to his attention, and that the decision was mad for entirely professional and lawful reasons.”
Hey, isn’t this the same office that stayed quiet as mouse when career professionals were attacked by political characters, particularly last year?
Wondering why parts of this report kept getting leaked. Some questions though.
Is the State Department suppressing this IG report?
On what grounds? Hurt feelings?
Is the Acting State/OIG Matthew Klimow now allowing the State Department to decide which of the IG reports can be made public?

So what’s happening to the whatchamacallit …. the Linick-era investigations of you know who? Shhhhhh!  Shhhh!!! Keep it low. Top aides knew about it, but they were so bad they never bothered to tell their boss they knew the name of the fella in the IG’s crosshairs and then surprise, the former IG got fired and prevented from returning to his office. And they could not keep their excuses for the IG firing  in a straight line, the excuses kept toppling over like drunken sailors on liberty call. Then you know some staffers left or got fired. Then, the replacement guy quit. And then a career person stepped in, but then got replaced. Again.  So what’s happening to the whatchamacallits …. go ahead, tell us, just whisper….

American Oversight Calls on @US_OSC and @StateOIG to Investigate Pompeo’s Email Rush Before the Election #WSOS

 


 

 

 

State/OIG: EUR’s Workforce Diversity Data-Below Department Averages #42outof43

 

Via State/OIG:

 

State/OIG Questions $201.6M in AF’s Trans-Sahara Counterterrorism Partnership Spending

 

Via State/OIG:

“AF is not monitoring TSCTP contracts in accordance with Federal and Department requirements. Specifically, OIG found that contracting officer’s representatives (COR) had approved invoices for four contracts without adequate supporting documentation. In addition, they relied on Department of Defense (DoD) partners to monitor contractor performance; however, these DoD partners were not delegated authority to serve in this role, nor were they trained to be government technical monitors or alternate CORs. Furthermore, none of the six TSCTP contracts reviewed had the required monitoring plans, and five contracts were missing Government quality assurance surveillance plans; both plans are essential oversight tools. Lastly, AF was not ensuring that the assistance provided to the host countries was being used to build counterterrorism capacity. AF officials stated that the lack of clear guidance and limited staff contributed to these weaknesses. Because of these weaknesses, OIG considers the $201.6 million spent on these six contracts as potential wasteful spending due to mismanagement and inadequate oversight. OIG is specifically questioning almost $109 million because the invoices lacked supporting documentation. With respect to the grant and cooperative agreement reviewed, both had required monitoring plans included in the files.

OIG also found that AF is not effectively coordinating with stakeholders to execute a whole-of-government initiative. Although TSCTP partner agencies meet to formulate strategic priorities, the execution of activities among the partners in the host countries receiving assistance is insufficient. For example, U.S. Air Force officials said they were not consulted on the plans and construction of a C-130 aircraft hangar on a base that they share with the Nigerian military. Government officials stated that undefined roles and responsibilities, the lack of knowledge management, and staffing shortfalls hinder effective coordination.

The deficiencies identified in this audit have occurred, in part, because AF has not adequately attended to longstanding challenges with the execution of foreign assistance, including the TSCTP. AF officials acknowledged the lack of progress made to address these challenges but stated that the Department has not appropriately prioritized the bureau’s needs. Until these deficiencies are addressed, the Department will have limited assurance that TSCTP is achieving its goals of building counterterrorism capacity and addressing the underlying drivers of radicalization in West and North Africa.”

Snapshot: Top Five Bureaus & Posts With the Highest Number of Sexual Harassment Complaints (2014-2017)

Via State/OIG:

Related post:
State/OIG Releases Long-Awaited Report on @StateDept Handling of Sexual Harassment Reports

 

 

 

EEOC: Denial of Reasonable Accommodation Found

Via EEOC:

Denial of Reasonable Accommodation Found.

Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).

Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required. Complainant had been teleworking for several years, but her telework agreement expired. According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months. Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days. The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework. The Agency acknowledged that Complainant was a qualified individual with a disability. Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified. Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation. The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted.  The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.
Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).