Trump’s New E.O. Launches Wrecking Ball at the Civil Service

 

On October 21, Trump issued an Executive Order on Creating Schedule F In The Excepted Service:

“Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures. Placing these positions in the excepted service will mitigate undue limitations on their selection. This action will also give agencies greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the authority inherent in their prospective positions, and agencies should be able to assess candidates without proceeding through complicated and elaborate competitive service processes or rating procedures that do not necessarily reflect their particular needs.”
[..]
Schedule F. Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F. In appointing an individual to a position in Schedule F, each agency shall follow the principle of veteran preference as far as administratively feasible.”

FedWeek notes that the “estimates of the potential number of employees affected range from the tens of thousands to 100,000 or more.”
The Partnership for Public Service released a statement that says in part ““Our civil service is the envy of the world and must be strengthened and enhanced. Without strong safeguards, the risk of hiring and firing for political reasons is high. The president’s executive order creating a new Schedule F job classification is deeply troubling and has the potential to impact wide swaths of federal employees over the next few months without engagement from Congress, civil servants and other key stakeholders.”
On October 27, 2020, H.R. 8687: To nullify the Executive Order entitled “Executive Order on Creating Schedule F In The Excepted Service”, and for other purposes was introduced in Congress. Of course, this bill must be passed by both the House and Senate in identical form and then signed by the President to become law.
The new E.O. which amends the Civil Service rule, requires a preliminary review of positions covered within 90 days of the issuance of the order, that places the due date on January 19, 2020, a day before the presidential inauguration of 2021. A complete review is due within 210 days, which is August 19, 2021. Agency heads will determine which positions should be placed in Schedule F category:

Sec. 5. Agency Actions. (a) Each head of an executive agency (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) shall conduct, within 90 days of the date of this order, a preliminary review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, and shall conduct a complete review of such positions within 210 days of the date of this order. Thereafter, each agency head shall conduct a review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, on at least an annual basis. Following such reviews each agency head shall:

(i) for positions not excepted from the competitive service by statute, petition the Director to place in Schedule F any such competitive service, Schedule A, Schedule B, or Schedule D positions within the agency that the agency head determines to be of a confidential, policy-determining, policy-making, or policy-advocating character and that are not normally subject to change as a result of a Presidential transition. Any such petition shall include a written explanation documenting the basis for the agency head’s determination that such position should be placed in Schedule F; and

(ii) for positions excepted from the competitive service by statute, determine which such positions are of a confidential, policy-determining, policy-making, or policy-advocating character and are not normally subject to change as a result of a Presidential transition. The agency head shall publish this determination in the Federal Register. Such positions shall be considered Schedule F positions for the purposes of agency actions under sections 5(d) and 6 of this order.
[…]
(b) The requirements set forth in subsection (a) of this section shall apply to currently existing positions and newly created positions.

(c) When conducting the review required by subsection (a) of this section, each agency head should give particular consideration to the appropriateness of either petitioning the Director to place in Schedule F or including in the determination published in the Federal Register, as applicable, positions whose duties include the following:

(i) substantive participation in the advocacy for or development or formulation of policy, especially:

(A) substantive participation in the development or drafting of regulations and guidance; or

(B) substantive policy-related work in an agency or agency component that primarily focuses on policy;

(ii) the supervision of attorneys;

(iii) substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law;

(iv) viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations generally covered by deliberative process privilege and either:

(A) directly reporting to or regularly working with an individual appointed by either the President or an agency head who is paid at a rate not less than that earned by employees at Grade 13 of the General Schedule; or

(B) working in the agency or agency component executive secretariat (or equivalent); or

(v) conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.

(d) The Director shall promptly determine whether to grant any petition under subsection (a) of this section. Not later than December 31 of each year, the Director shall report to the President, through the Director of the Office of Management and Budget and the Assistant to the President for Domestic Policy, concerning the number of petitions granted and denied for that year for each agency.

It looks like they expect that this would be challenged in court:

(d) If any provision of this order, or the application of any provision to any person or circumstances, is held to be invalid, the remainder of this order and the application of any of its other provisions to any other persons or circumstances shall not be affected thereby.

On October 23, 2020, OPM issued a memo with Instructions on Implementing Schedule F.

This Executive Order excepts from the competitive service positions that are of a confidential, policy-determining, policy-making, or policy-advocating character, typically filled by individuals not normally subject to replacement or change as a result of a Presidential transition. As a result of this Executive Order, such positions will be rescheduled into the newly created Schedule F and exempt from both the competitive hiring rules as well as the adverse action procedures set forth in chapter 75 of title 5 of the United States Code.
[..]
The Executive Order directs each agency head to review positions within his or her agency and identify those positions appropriately categorized as confidential, policy-determining, policy-making, or policy-advocating, and then petition OPM to place those positions in Schedule F. Agencies have 90 days to conduct a preliminary review of positions and submit petitions, with an additional 120 days to finalize that review and submit any remaining petitions.

If Biden wins, how quickly do you think this E.O. gets rescinded?
If there is a Trump second term, we expect that the wrecking ball now directed at the Civil Service will soon extend to all parts of the federal service.
Go VOTE!

Jamaica: A U.S. Ambassador’s Apology and One Convoluted Story About That Twitter Wrestling

 

The Twitter Wrestling news out of Jamaica continue to distract us from our never ending woes, (see Top US Diplomat in Jamaica Wrestles With Random People on Twitter).  The tweets have now been deleted with no explanation.
We have it in good authority that the Jamaicans were plenty upset about this. The Twitter spectacle apparently resulted in a telephone call between the Jamaican Foreign Affairs Minister, Kamina Johnson Smith and Ambassador Tapia.  The Foreign Minister also tweeted “I have spoken with the Ambassador and he is aware that the engagement was not appropriate for a diplomatic representative.”
Ouch!
Ambassador Tapia on the other hand has now given an interview to Cliff Hughes Online where he said “I take full responsibility for what took place”  but that it wasn’t him who did the wrestling on Twitter.  That sounds a lot like “I take full responsibility. It’s not my fault” doesn’t it?   It wasn’t the intern either, thank goodness! The ambassador, a political appointee, also told the interviewer that the individual, (a he) will be “leaving shortly, because it was inappropriate” according to the interview with Cliff Hughes Online posted here.
In that interview, Ambassador Tapia discussed the employee who purportedly sent the offensive tweets under his account and was asked “What do you mean by rotating him out?”
Ambassador Tapia responded with extreme helpfulness (pardon our attempt at transcription, the zigzagged response made us frankly, dizzy):
“Which means that he will be leaving by going back to the U.S.”
Then Ambassador Tapia added, “He just got here, just about 3 or 4 weeks ago …. so he will normally stay …. he’s married … he goes home … we tried to rotate him every two months so that he can go home and be with his family but he will be, I will say he will be leaving sooner than the rotation.”
What the what?
So we are to believe that a Public Affairs officer (typically in charge of media), a career employee trained in media and public relations just decided one day to throw his career to the Caribbean winds, and go on an insult spree directed at his host county nationals?
Seriously? Why would he do that?
And that now this purported rogue officer is to be rotated out? Rotated out after four weeks in country?
If the employee assigned to Embassy Jamaica just got there 3 or 4 weeks ago and is now directed to return to the United States, that’s not called a rotation. That’s a curtailment, a shortening of the assignment, and presumably an involuntary one.  An ambassador can initiate that if he/she declares loss of confidence on any employee.
How it is that this employee just got to post 3 or 4 weeks ago, but that they  also “tried” to rotate him every two months so that he can go home and be with his family? How did that work?  And pray tell, what kind of employment schedule is this?
We’re not liking this story one bit, folks; it’s not hanging well together even at the thin seams.

 

 

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….

Hey @StateDept Send Congrats, Your New Special Envoy to Northern Ireland Has a New Gig

 

We ❤️ you, Canada! Some folks you hear are not our best people!

 

Hatch Act Complaints Filed Against Most Partisan Secretary of State in Memory #WSOS

 

So and So Wandering Around Jerusalem to Address Republican Convention in Private Capacity #whodis

 

Secretary of Trump Mike Pompeo to Address Republican Convention From Jerusalem #politicalprops

 

5 U.S. Code § 7321.Political participation
Memorandum of President of the United States, Oct. 24, 199459 F.R. 54121, provided:
Memorandum for the Secretary of State: Pursuant to authority vested in me as the Chief Executive Officer of the United States, and consistent with the provisions of the Hatch Act Reform Amendment regulations, 5 CFR 734.104, and section 301 of title 3, United States Code, I delegate to you the authority to limit the political activities of political appointees of the Department of State, including Presidential appointees, Presidential appointees with Senate confirmation, noncareer SES appointees, and Schedule C appointees.
Under 3 FAM 4546  LIST OF DISCIPLINARY OFFENSES AND PENALTIES, the  penalty for  #12. improper political activity (5 U.S.C. 7321, et seq.) is suspension or removal.
Oh. But … but see, this only apply to some people, not all people.
Apparently, four sets of lawyers are saying no rules apply to Mike Pompeo because he will be speaking in his private capacity and because no DOS resources will be used? Where is he going to deliver his address, in a tent? Oh, a rooftop. They better have the seal of Embassy Jerusalem or we won’t know where he is. Are they’re allowed to borrow it? Hey, we all know this is not really a question of resources. Also the secretary of state is secretary of state 24/7. There is no such thing as personal capacity in that job whether he likes it or not. That’s just the reality of it.
Although if you were writing Pompeo’s EER since he got to Foggy Bottom, and you did not expect this, you were not paying attention.
Now, wouldn’t it be nice to see those legal opinions by the best people? We’re guessing they’re going to tell us it’s not/not expressly prohibited so it must be A-okay …. or the presidential memo doesn’t specifically mention cabinet secretaries … or it’s old, that presidential memo oh, so old …. or the memo was issued by a president who had been impeached, imagine that?! Oh, wait, maybe not that. Ah, we get it, the memo doesn’t spell out that Michael R. Pompeo, the 70th secretary of state is not/not allowed to deliver a speech at the Republican National convention from Jerusalem. Their bad for not anticipating this. Yes, of course. That must be it.

Spotlight on @StateDept Top Lawyer Marik String’s Experience and Conflict of Interest

The State Department’s official bio says that Marik String was appointed as Acting Legal Adviser of the Department of State on June 1, 2019. Previous to this appointment, the bio says he “served in the State Department’s Bureau of Political-Military Affairs, where he performed the duties of the Assistant Secretary of State for Political-Military Affairs; Acting Principal Deputy Assistant Secretary; and Deputy Assistant Secretary.  He managed more than 400 officers and the U.S. government’s $200 billion annual arms transfer portfolio, including the compliance and enforcement functions under the International Traffic in Arms Regulations (ITAR).”  Prior to his stint at PolMil, he served as Senior Advisor to Deputy Secretary of State John Sullivan, now Ambassador to the Russian Federation.
String’s financial disclosure report says that he joined the State Department as Senior Advisor on July 13, 2017.
A June 13, 2019 reporting on Just Security notes that a “congressman raised his concern that String had been appointed Acting Legal Adviser to the State Department on May 24, “the very day that this emergency declaration was sent to the Hill, according to public records, this is when he got the promotion to be the top lawyer.” String worked for Cooper until May 23.”
That would be Assistant Secretary of State for Political and Military Affairs R. Clarke Cooper who assumed office on May 2, 2019.
We don’t know when this bio went up and if it had been updated.
The Senate-confirmed Legal Adviser Jennifer Newstead’s departure was announced on April 22, 2019. If String wasn’t designated Acting Legal Adviser until June 1, 2019 as his official bio says, then pray tell who blessed Pompeo’s emergency declaration?
Via Just Security:
The newly published IG report does not probe String’s actions once he transitioned from working in the department that oversees FMS [foreign military sales] to working as the State Department’s top lawyer. Nor does it address String’s possible actions regarding the redactions of the report, which were applied, according to the State Department, to “protect executive branch confidentiality interests, including executive privilege.”
But at least two senior State Department officials have testified to String’s conduct: both his work on the emergency waiver and his later interactions with the IG’s office. Former Deputy Assistant Secretary of State Charles Faulkner testified on July 24 that String “identified an ‘authority’ in the law ‘that allow[ed] for an emergency declaration of arms transfers,’” as Democratic members of Congress noted in their subpoena to interview String and others involved in the sale. They further noted:

“On the day of the emergency declaration, May 24, 2019, Mr. String was promoted to Acting State Department Legal Adviser, a position he still holds. When asked about those two events happening on the same day, Mr. Faulkner testified: ‘I think I see the significance of those statements.’”

During Linick’s recent testimony on the matter, he recalled a meeting between himself, String, and the current State Department Under Secretary for Management Brain Bulatao. In this meeting, Bulatao reportedly indicated to the IG that he “shouldn’t be doing the [Iranian Arms Sale investigation] because it was a policy matter not within the IG’s jurisdiction.” During the meeting, String agreed, according to the former IG’s testimony:

HFAC Dem Counsel: So Mr. String said that he didn’t think you should be looking into this, and Undersecretary Bulatao said he didn’t think you should be looking into this. Is that correct?

Linick: That’s correct, yes. Yes.

     Bulatao at times “tried to bully me,” Linick told the HFAC.

Read in full below:

@StateDept Skirts Thresholds in Arms Transfers to Saudi Arabia and UAE, Avoids Congressional Notifications

 

On August 10, a Senior State Department official held an on-background briefing on State/OIG’s  still unreleased report of the May 2019 Emergency Certification for Arms Sales to Saudi Arabia, UAE, and Jordan.
The State Department also released a statement Inspector General Confirms No Wrongdoing in Emergency Arms Sales to Counter Iran, The Secretary’s “Emergency Certification Was Properly Executed” and “Complied with the Requirements” of Law.
The cover memo to Pol-Mil that accompanied the IG report dated August 10 says that “OIG will distribute a copy of this report to Congress and post a redacted version of this report on OIG’s public website within 2 business days.” Then the agency basically Bill Barred the IG report, putting a fine spin on the IG report, most likely expecting a couple of days of most favorable headlines.
State/OIG posted the report online on Tuesday, August 11. But nice try by Foggy Bottom’s spin-doctors. Now folks got to read the actual report though a redacted one. The IG report says that “In a memorandum dated July 27, 2020, the Department asserted that its requested redactions were necessary to protect executive branch confidentiality interests and, further, stated its position that the Secretary “has the authority to direct the OIG not to disclose privileged information, and the Department may do so without any final assertion of executive privilege.”
Well, not only redactions from the public report, but a more extensive redactions from the classified report that they also want to withhold from the Congress:

“On August 5, 2020, the Department provided its redactions to OIG’s report. Although the Department withheld relatively little information in the unclassified portion of the report,4 it withheld significant information in the classified annex necessary to understand OIG’s finding and recommendation.”
[…]
“Department asserted that the redactions made to the classified annex should be withheld from Congress because the underlying information implicates “executive branch confidentiality interests, including executive privilege.”

But see, if the State Department could assert any redaction for State/OIG’s work products, including in the classified annex to be withheld from Congress, what’s to keep Pompeo from asserting the same thing over IG investigations related to him, his wife, or any other senior officials?
It’s high time for the Council of the Inspectors General on Integrity and Efficiency (CIGIE) to go in and take a look at the State Department given the circumstances of the Linick firing, the abrupt resignations of the acting State OIG, as well as the dismissal of other IGs in multiple agencies. Starting with the State Department, CIGIE can then “address the integrity, economy, and effectiveness issues that transcend individual Government agencies.”
Summary of Review of Arms Transfers

“In response to congressional requests, OIG reviewed the Department of State’s (Department) role in arms transfers to the Kingdom of Saudi Arabia and the United Arab Emirates following the Secretary’s May 2019 certification that an emergency existed under Section 36 of the Arms Export Control Act (AECA). 2 The Secretary’s emergency certification3 waived congressional review requirements for 22 arms transfer cases to the Kingdom of Saudi Arabia, the United Arab Emirates, and the Hashemite Kingdom of Jordan,4 with a total value of approximately $8.1 billion. Congress had previously placed holds5 on 15 of the 22 arms transfer cases included in the May 2019 emergency certification. At the time the Secretary certified the emergency, 6 of the 15 cases had been held by Congress for more than a year. The held cases included at least $3.8 billion in precision-guided munitions (PGMs) 6 and related transfers. In explaining the decision to place the holds, members of Congress cited concerns about the actions of the Saudi-led Coalition (Coalition)7 in Yemen since 2015, including high rates of civilian casualties caused by Coalition airstrikes employing U.S.- supplied PGMs.

For this review, OIG examined the process and timeline associated with the Secretary’s May 2019 use of emergency authorities contained in the AECA. OIG also evaluated the Department’s implementation of measures designed to reduce the risk of civilian harm caused by Saudi-led Coalition military operations in Yemen and analyzed Department processes for reviewing arms transfers that do not require notification to Congress. 8 The AECA affords the President or Secretary considerable discretion in determining what constitutes an emergency. Moreover, the AECA does not define the term “emergency.” Accordingly, OIG did not evaluate whether the Iranian malign threats cited in the Secretary’s May 2019 certification and associated memorandum of justification constituted an emergency, nor did OIG make any assessment of the policy decisions underlying the arms transfers and the associated emergency.

OIG determined that the Secretary’s emergency certification was executed in accordance with the requirements of the AECA. However, OIG also found that the Department did not fully assess risks and implement mitigation measures to reduce civilian casualties and legal concerns associated with the transfer of PGMs included in the May 2019 emergency certification.9 In addition, OIG found the Department regularly approved arms transfers to Saudi Arabia and the United Arab Emirates that fell below AECA thresholds that trigger notification to Congress. These approvals included items such as PGM components on which Congress had placed holds in cases where the transfers reached the thresholds requiring congressional notification. However, the AECA does not require the Department to notify Congress if it approves transactions below those thresholds specified in the law. OIG issued one recommendation to the Department in a classified annex10 that accompanies this report.”

Wait, the “emergency certification was executed in accordance with the requirements of the AECA” but the OIG made no evaluation whether it was an emergency?  So, that’s something. Was this the same position taken by the former IG Steve Linick?
Per footnote:

Sections 36(b)(1), 36(c)(1), and 36(d)(1) of the Arms Export Control Act (22 U.S.C. § 2776) specify the types of arms transfers that must be notified to Congress. For example, transfers to countries other than NATO members, Japan, Australia, the Republic of Korea, Israel, or New Zealand of major defense equipment in excess of $14 million and non-major defense equipment in excess of $50 million must be notified to Congress.

4,221 Below-Threshold Arms Transfers Estimated at $11.2 Billion

OIG reviewed Department records on approved arms transfer cases involving Saudi Arabia and the United Arab Emirates that fell below the AECA thresholds that trigger notification to Congress.41 The records show the Department approved a total of 4,221 below-threshold arms transfers involving Saudi Arabia and the United Arab Emirates, with an estimated total value of $11.2 billion since January 2017. Components of PGMs were among the below-threshold transfers to Saudi Arabia and the United Arab Emirates approved during this period. Although the Department approved below-threshold transfers of PGM components as early as January 2017, the Under Secretary for Arms Control and International Security notified the Secretary in 2018 and 2019 that the Department intended to proceed with additional below-threshold approvals notwithstanding congressional holds on larger, above-threshold transfers of similar items.

So basically, the State Department did separate below threshold arms transfers to Saudi Arabia and UAE and avoided the required congressional notifications. Apparently, it will continue to do so despite congressional holds on similar items.
Looks like the State Department is daring Congress to do something about this. Here’s Pompeo also touting full “vindication.”

Also on August 11, Politico’s tireless reporter Nahal Toosi covering the State Department published a copy of the same OIG report, unredacted.
The unredacted document is posted here labeled in red “FOR INTERNAL U.S. GOVERNMENT/COMMITTEE USE ONLY – NOT FOR PUBLIC RELEASE MAY NOT BE FURTHER DISCLOSED WITHOUT CONSENT OF THE DEPARTMENT OF STATE.  Wow! Now you can see which part of the public report, the State Department asserted the public should not see (it has to do with the timeline of the emergency declaration and the bureau involved. And oh, money, money, money).