Foreign Service Grievance Board Annual Report 2020-Statistics (3/1/21) – Updated

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Update 3/30:  A source with insight into the FSGB process informed us that  the new metric starts counting the days when the file is complete and ready for adjudication.  Prior to file completion, processing times depend heavily on how promptly the grievant and agencies provide documentation.  It appears that the FSGB want to focus on the period that is totally under the FSGB’s control.  That’s understandable but that does not give a full picture. The source agreed that it would have been useful to also report the total processing time as previously calculated. There’s no reason why FSGB can’t include the processing time from ROP closure to decision, as well as the total processing time as it has done in the past. We also learned that to keep cases moving forward during the October 2020 to mid-February 2021 staffing gaps, the remaining 11 FSGB members reportedly had to increased their case work hours on average by about 21 percent. Some cases were also reportedly judged by two-member panels instead of the usual three-member panels. 

Last December, AFSA called on then Secretary of State Mike Pompeo to fulfill his statutory responsibility (22 U.S.C. 4135b) to make appointments to the Foreign Service Grievance Board (FSGB). Eight seats on that board have been vacant since October 1 due to inaction on their nominations. “The nomination paperwork was transmitted to Secretary Pompeo’s staff on or before August 28, 2020, giving him at least four weeks to act prior to the September 30 expiration of the terms of office of the eight positions. If Secretary Pompeo had adverse information on any nominees, he could have allowed the Foreign Service agencies and AFSA to submit replacement nominations prior to September 30. Unfortunately, Secretary Pompeo has taken no action over the past three months.”
In the March 2021 issue of the Foreign Service Journal, AFSA Retiree Representative John Naland wrote that  “Secretary Pompeo left office without acting on the nominations, leaving it to his successor to fulfill that responsibility. Secretary Antony Blinken did so within two weeks of taking office. Perhaps by the time a future historian finds this column, Secretary Pompeo will have explained his failure to act. But my impression today as the AFSA Governing Board member charged with overseeing the annual FSGB nomination process is that Secretary Pompeo’s dereliction of duty was of a piece with the arrogance and contempt for the rule of law that he frequently showed to committees of Congress, the media and others. Secretary Pompeo’s passive-aggressive evisceration of the FSGB deserves to be recorded and remembered.”
Lawrence C. Mandel, the Chairperson of the Foreign Service Grievance Board issued the Annual Report for 2020 on March 1, 2021. The report notes that staffing was complicated by delay in the re- appointment of the Board’s Senior Advisor and two annuitant members, and the delay in appointment of five new Board Members, resulting in vacancies of nearly half of their members over the final three months of the year. Members of the Board are appointed for terms of two years by the Secretary of State.
The Annual Report says that despite these staffing challenges, “the Board closed 66 cases – almost as many cases as in 2019 (69). The average time to issue decisions was 66.9 days after closure of the Record of Proceedings (ROP).”
Whoa, whoa, wait, “the average time to issue decisions was 66.9 days after closure of the Record of Proceedings (ROP)?”  That got our attention. Based on the previous annual reports, the disposition of a case was measured from the time of filing to Board decision (or withdrawal/dismissal); not from when decisions are issued after closure of the ROPs.
In 2019, the disposition of cases, as we normally understood it, took 57 weeks, which would have been 399 days. In 2020, the average time is 66.9 days which is just 9.5 weeks. See below:
2020: Average time for disposition of a case, from closure of Record of Proceedings to Board decision was 67 days 
2019: Average time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal, was 57 weeks. A number of older cases were closed this year, including some that had to await decisions in other fora. Additionally, fewer cases were settled and withdrawn this year, which increased the average time for disposition.
2018: Average time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal was 41 weeks. Excluding three cases that were significantly delayed by extraordinary circumstances, the average time for disposition was 38 weeks.
2017: Average Time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal was 41 weeks.
2016: Average Time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal was 39 weeks.
So we asked the FSGB about this new way of describing the average time of disposition of FSGB cases.  The new way of describing duration of cases is not from time of filing, but rather from when a decision is issued after closure of the ROPs.
We also wanted to know what impact the 3 month delay in appointing/reappointing eight seats to the Board affected the processing of their cases.
We received a brief response that says in part, “We allow the FSGB Annual Report, as submitted to Congress, to speak for itself.”
Help alert! That is, we need help to understand stuff. We still can’t understand the way they calculate the disposition of a case. Counting from closure of ROPs to Board decision does not tell us the actual duration of cases, does it?
Good news though; at least they do not have an email chewing doggo over there!

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Career Diplomat Daniel J. Kritenbrink to be Asst Secretary of State for East Asian and Pacific Affairs (EAP)

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On March 26, 2021, President Biden announced his intent to nominate senior career diplomat Daniel J. Kritenbrink to serve as Assistant Secretary of State for East Asian and Pacific Affairs (EAP). The WH released the following brief bio:

Daniel J. Kritenbrink, a career member of the Senior Foreign Service, Class of Minister-Counselor, has been U.S. Ambassador to Vietnam since 2017.  He was previously the Senior Director for Asian Affairs at the National Security Council, and Deputy Chief of Mission at the U.S. Embassy in Beijing.  In earlier tours in Beijing, he served as Political Minister Counselor, and as a Political Officer.  Kritenbrink was Director of the Office of Chinese and Mongolian Affairs at the Department of State.  He also served as a Political-Military officer at the U.S. Embassy in Tokyo.  Kritenbrink earned a Masters Degree at the University of Virginia, and a Bachelors Degree at the University of Nebraska-Kearney.  He speaks fluent Chinese and Japanese.

According to history.state.gov, the Division of Far Eastern Affairs, established in 1908, was the first geographical division to be established in the Department of State. The Department of State established the position of Assistant Secretary of State for Far Eastern Affairs in 1949, after the Commission on Organization of the Executive Branch of Government (Hoover Commission) recommended that certain offices be upgraded to bureau level and after Congress increased the number of Assistant Secretaries of State from six to ten (May 26, 1949; P.L. 81-73; 63 Stat. 111). On Nov 1, 1966, the Department by administrative action changed the incumbent’s designation to Assistant Secretary for East Asian and Pacific Affairs.
The last three appointments to this position were political appointees.  We have to go back all the way to 2005 to find a career appointee for EAP; that’s Christopher Robert Hill who served from 2005–2009.
Previous appointees to this position include Philip Charles Habib (1974–1976); Richard Charles Albert Holbrooke (1977–1981); William Averell Harriman (1961–1963); and Winston Lord (1993–1997). The complete list is here.

 

Related posts:

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Career Diplomat Brian A. Nichols to be Asst. Secretary of State for Western Hemisphere Affairs (WHA)

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On March 26, 2021, President Biden announced his intent to nominate senior career diplomat Brian A. Nichols to be Assistant Secretary of State for Western Hemisphere Affairs (WHA). The WH released the following brief bio:

Brian A. Nichols, a career member of the Senior Foreign Service with the rank of Career Minister, currently serves as U.S. Ambassador to Zimbabwe.  He was U.S. Ambassador to Perú from 2014 to 2017.  Previously, Nichols served as Principal Deputy Assistant Secretary of State for International Narcotics and Law Enforcement Affairs (INL).  Prior to that he was a Deputy Assistant Secretary in INL.  He also served as the Deputy Chief of Mission at the U.S. Embassy in Bogotá, Colombia, Director of the Office of Caribbean Affairs, and Counselor for Political Affairs at the American Embassy in Indonesia.  Earlier in his career, Nichols served as Deputy Political Counselor in Mexico.  He also worked in the Office of UN Political Affairs, the Office of Central American Affairs, and the Executive Secretariat. Nichols began his Foreign Service career as a Consular Officer in Perú and then as a Political Officer in El Salvador.  He received the 2016 Charles E. Cobb, Jr. Award for Initiative and Success in Trade Development, two Presidential Meritorious Service Awards, and 13 Senior Performance Awards.  He speaks Spanish.  A native of Rhode Island, he is a graduate of Tufts University.

According to history.state.gov, the Department had first established a Division of Latin American Affairs in 1909. The Department of State created the position of Assistant Secretary of State for American Republic Affairs during the general reorganization of Dec 20, 1944, after Congress had authorized an increase in the number of Assistant Secretaries of State from four to six (Dec 8, 1944; P.L. 78-472; 58 Stat. 798). On January 12, 1999, the Bureau assumed responsibility for Canada and was renamed the Bureau of Western Hemisphere Affairs. More here.
The most recent career diplomat confirmed by the U.S. Senate to lead the Western Hemisphere bureau was Thomas Alfred Shannon Jr. who served from 2005–2009. He was succeeded by political appointees: Arturo Valenzuela (2009–2011), Roberta S. Jacobson (2012–2016) under the Obama Administration and Kimberly Breier (2018-2019) under the Trump Administration. At least four designates have also served in an acting capacity: political appointee Mari Carmen Aponte; SES Michael Kozak, career diplomats Francisco “Paco” Palmieri and Julie J. Chung .
According to AFSA’s appointment tracker going back to 1975, the Western Hemisphere bureau has a 50 percent split between career and political/other appointees.
The AP notes that Ambassador Nichols would be the first Black assistant secretary of state for Western Hemisphere affairs since Terence Todman in the late 1970s (see Terence Alphonso Todman ).

Related posts:

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Brett M. Holmgren to be Assistant Secretary of State for Intelligence and Research (INR)

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On March 26, 2021, President Biden announced his intent to nominate Brett M. Holmgren to serve as  Assistant Secretary of State for Intelligence and Research (INR). The WH released the following brief bio:

Brett M. Holmgren served as the Deputy for Nominations for the Biden-Harris Transition Team, and as Co-Chair of the Intelligence Working Group for Biden for President.  Earlier, Holmgren was Vice President for Technology Risk Management at Capital One Financial.  Prior to that, he was Special Assistant to the President and Senior Director for Intelligence Programs at the National Security Council, where he also previously served as Senior Policy Advisor to the Assistant to the President for Homeland Security and Counterterrorism.  Earlier, Holmgren was Special Assistant to the Deputy Secretary of Defense, Director for Counterterrorism at the National Security Council, and a political analyst at the Central Intelligence Agency.  Holmgren began his government service as a counterterrorism analyst at the Defense Intelligence Agency.   Holmgren is the recipient of numerous performance awards, including the Director of National Intelligence Superior Service Award, the Central Intelligence Agency Director’s award, and the Office of the Secretary of Defense Exceptional Civilian Service Award.  He received a Bachelor’s Degree from University of Wisconsin-Madison and a Master’s Degree, summa cum laude, from Johns Hopkins University.

According to history.state.gov, on Oct 10, 1957, the Department of State elevated the position of Special Assistant to the Secretary for Intelligence and Research to that of Director of the Bureau of Intelligence and Research, with rank equivalent to that of an Assistant Secretary of State. Since 1947, the Special Assistant had been in charge of intelligence functions that the Department of State first received after the abolition of the wartime Office of Strategic Services in 1945. An Act of Congress (P.L. 99-93) of Aug 16, 1985, authorized the appointment of an Assistant Secretary of State for Intelligence and Research. Prior to this date, the Secretary of State designated all Directors of the Bureau of Intelligence and Research. Since Aug 1986, all incumbents have served as Assistant Secretaries of State and been commissioned by the President.
The most recent career diplomat to head INR was Ambassador Daniel Bennett Smith who served from 2014–2018, and then was sent to oversee the Foreign Service Institute. Ambassador Smith was  INR Assistant Secretary for two years at the end of the Obama administration and two years at the beginning of the Trump administration.
According to AFSA’s appointment tracker, 57.1% of INR appointees were career appointments. Four of the career appointees to INR since 1986, also have the personal rank of career ambassador: Morton Isaac Abramowitz (1985–1989); J. Stapleton Roy (1999–2001); Philip S. Goldberg (2010–2013); and Daniel Bennett Smith (2014–2018).
If confirmed, Mr. Holmgreen would succeed Ellen McCarthy who served at INR from January 2019 until January 2020.
Related post:
March 2019: Secretary Mike Pompeo Swears-In New INR Assistant Secretary Ellen E. McCarthy

 

 

Post in Search of a Mission: “Now, I found, that the world is round and of course, it rains everyday ….”

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1) If there are fewer than two dozen staff members. 
2) If they live in austere conditions even without COVID, but particularly during COVID they are limited to their homes and the embassy. Nothing else. 
3) If there are no flights servicing pouch needs coming to post. This means the staff cannot procure needed items with regularity, including food and medicine. 
4) If there are no relationships with the host government. This means the embassy remains open simply to support itself. 
5) If staff is top heavy with multiple FS-01 positions and few FS-02 and below officers. 
6) If staff lives together due to health concerns. 
7)  If there are no option to telework even amidst COVID. Security requirements preclude remote access. 
8) If a staff member gets COVID, they will likely put the entire embassy at risk. Flight clearance to get an OPMED evacuation flight is difficult to obtain from host nation and would likely necessitate evacuating all who had been exposed (thus shuttering the embassy) because of the OPMED cost, and the delayed timeline of clearance to land and cost of repeated flights. 
9) If local staff continue to be paid even though most never come to work, and have been forced to stay home since COVID. 
10) If COVID vaccination efforts will be hamstrung by the aforementioned issues with host nation further putting staff at risk. 

 

Now, I found that the world is round
And of course it rains everyday

Living tomorrow, where in the world will I be tomorrow?
How far am I able to see?
Or am I needed here?

Now, I found that the world is round
And of course it rains everyday

If I remember all of the things I have done
I’d remember all of the times I’ve gone wrong
Why do they keep me here?

Courtesy: Bee Gees – World (From the 1968 Album, Horizontal)


 

 

@StateDept Appoints Career Sr. Diplomat Ricardo Zúñiga as Special Envoy for the Northern Triangle

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Earlier this week, the State Department announced the appointment of career senior diplomat Ricardo Zúñiga to be the Special Envoy for the Northern Triangle. 

The Department of State is pleased to announce that Ricardo Zúñiga, a career member of the Senior Foreign Service, will serve as its Special Envoy for the Northern Triangle. The Special Envoy will lead U.S. diplomatic efforts, advise the Secretary and Acting Assistant Secretary for the Bureau of Western Hemisphere Affairs, and coordinate closely with the National Security Council staff on the administration’s comprehensive efforts to stem irregular migration to the United States and implement President Biden’s multi-year, $4 billion to address root causes of migration in Central America.

The Special Envoy will engage with regional governments, including but not limited to Mexico, El Salvador, Guatemala, and Honduras, on a range of issues in order to seek to improve conditions in Central America. He also will hold our partners accountable for their commitments to address root causes of migration and the increase in arrivals of unaccompanied children at the U.S. southern border. Additionally, the Special Envoy will engage stakeholders in civil society and the private sector as we work toward building better futures in these countries.

As such, he will accompany White House senior officials to Mexico and Guatemala March 22-25.

The Special Envoy will also keep Congress apprised of our efforts.

The Department congratulates U.S. Special Envoy Zúñiga as he takes on his new role and thanks him for his continued service to his country.

In May 2015, Mr. Zuniga completed a three-year detail with the National Security Council Staff, where he served as a Special Assistant to then President Obama and was Senior Director for Western Hemisphere Affairs.  In July that year, he assumed charged as Consul General of the U.S. Consulate General in Sao Paulo, Brazil. Also see Secretary Kerry With U.S. Delegation Set For Ceremonial Reopening of U.S. Embassy Cuba. According to his Wilson Center bio, until March 15, 2021, he was the Interim Director of the Brazil Institute and a Senior Diplomatic Fellow at the Woodrow Wilson Center Latin America Program, on detail from the U.S. Department of State.


 

 

Do you know the statutory definition of “widow” for benefit purposes?

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Gibson v. Office of Personnel Management, No. 2020-1651 (Fed. Cir. September 9, 2020) (MSPB Docket No. PH-0831-20-0011-I-1): The appellant sought survivor annuity benefits under the Civil Service Retirement System, contending that she is a “widow” of a retired Federal employee. OPM denied the appellant’s application for benefits, finding that she did not meet the statutory definition of “widow” for benefit purposes under 5 U.S.C. § 8341(a)(1)(A), because the marriage to her husband lasted from May 21, 2018, until his death on February 15, 2019 (270 days). This was short of the “at least 9 months” requirement. On appeal, the Board affirmed OPM’s determination. Before the Federal Circuit, the appellant contested the application of the term “months” and argued that each month should be counted as having 30 days, meaning her 270-day marriage was 9 months in duration. The court rejected this argument and affirmed the Board’s final decision. Citing Supreme Court precedent as support, the court concluded that the phrase “9 months” has an “ordinary public meaning” that counts time as calendar months. The court further explained that Congress often uses, including in the statute at issue, “days” as a unit of measurement and could have done so in 5U.S.C. § 8341(a)(1)(A) if that were its intention. The appellant presented no grounds for “erasing the clear distinction between familiar counting methods.”

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-1651.OPINION.9-9-2020_1649543.pdf

 


 

 

@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 … “

 


 

 

Samantha Power Before SFRC on 3/23, USAID Announces 19 New Biden-Harris Appointees

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On Tuesday, March 23, former USUN Ambassador Samantha Power will have her confirmation hearing as President Biden’s nominee to be the next Administrator for the U.S. Agency for International Development (USAID). A live video of the hearing will be available to watch here.  
Meanwhile, on March 15, 2021, USAID announced almost two dozens new Biden-Harris appointees at the agency:
Today, the U.S. Agency for International Development (USAID) welcomes Gideon Maltz as the Agency’s Chief of Staff. Gideon joins the growing body of Biden-Harris appointees that continue to build out the Agency with wide-ranging expertise. They look forward to contributing to the world’s premier development agency as part of a vibrant, dedicated workforce, representing the best of the American people.
Together, the team, celebrating 60 years of successes, will build the USAID of tomorrow, leading and always innovating international development and humanitarian efforts to save lives, reduce poverty and strengthen democracy.
Senior Staff
      • Travis Adkins, Deputy Assistant Administrator, Bureau for Africa
      • Jeremy Bernton, Executive Secretary, Office of the Executive Secretariat
      • Natasha Bilimoria, Deputy Assistant Administrator, Bureau for Global Health
      • Nikole Burroughs, Deputy Assistant to the Administrator, Bureau for Policy, Planning, and Learning
      • Sarah Charles Phillips, Assistant to the Administrator, Bureau for Humanitarian Assistance
      • Gabi Chojkier, Deputy Assistant Administrator for Public Affairs, Bureau for Legislative and Public Affairs
      • Megan Doherty, Deputy Assistant Administrator, Bureau for Middle East
      • Mileydi Guilarte, Deputy Assistant Administrator, Bureau for Latin America and the Caribbean
      • Diala Jadallah-Redding, Deputy Assistant Administrator for Legislative Affairs, Bureau for Legislative and Public Affairs
      • Anjali Kaur, Deputy Assistant Administrator, Bureau for Asia
      • Jeremy Konyndyk, Executive Director for COVID-19, Office of the Administrator
      • Zeppa Kreager, White House Liaison
      • Mike Michener, Deputy Assistant to the Administrator, Bureau for Resilience and Food Security
      • Raj Panjabi, President’s Malaria Initiative Coordinator, Bureau for Global Health
      • Neilesh Shelat, Deputy Assistant to the Administrator, Bureau for Humanitarian Assistance
      • Michele Sumilas, Assistant to the Administrator, Bureau for Policy, Planning, and Learning
      • Margaret Taylor, General Counsel
      • Rebecca Wexler, Special Advisor, Office of the Administrator
Click on the hyperlinks to view their bios.
With the exception of Jeremy Konyndyk who previously served in the Obama Administration from 2013-2017 as the director of USAID’s Office of US Foreign Disaster Assistance (OFDA), all are new political appointees to USAID; some previously worked on the Hill, NGOs, consulting firms, or  think tanks.
Also Rebecca Wexler who is the new Special Advisor to the Office of the Administrator previously served as Special Assistant to the U.S. Ambassador to the U.N. when Samantha Power was at USUN.
We’re still looking for the career appointees but where are they hiding them? We haven’t found them yet!