As Govt #Shutdown Looms Large, @StateDept Still “Reviewing All Available Options” #MissingGuidance

Posted: 8:23 pm PT

 

On January 18, the State Department spokesperson was asked about the the preparations for a potential government shutdown and the impact on the State Department. Here is one part of the response:

MS NAUERT: Yeah, well, first let me start off by mentioning to everyone here the current continuing resolution expires at midnight tomorrow, January the 19th. We are putting in place prudent management of this. Our Secretary’s office right now is reviewing all the available options as to how we should handle some of the decision-making going forward, if this were to happen, if there were to be a government shutdown. We will be prepared for all contingencies – I want to make that clear – including the possibility of a lapse. That would mean a government shutdown.

OMB, the Office of Management and Budget, has requested that all agencies determine ways to minimize the impact on the American people. Matt, I think that would fall under visas and passports and the like. This is what we’re doing here from the State Department. Some of those decisions are still being made, exactly what services we will be able to provide and which ones we will not.

The State Department spox and her bosses do not realized that passports and visas are fees-funded and not appropriated funds?

After the spox talked about the Secretary having “quite a bit of leeway” and embassies having “a lot of discretion over how they will handle their staffing”, she was asked “You sound very reassuring, like the Secretary has lots of leeway, the embassies have some leeway. It sounds very peaceful in your view. But does the State Department view this looming prospect as dangerous to national security on its face?”

MS NAUERT: Look, national security, and keeping the security and the safety of Americans is always a top priority. We will not pull back on that in any way, shape or form. We will continue to follow those things. We’re not going to get all excited about what may or may not happen. We will have contingency plans that we put in place, and we will adhere to those. Okay.

A State Department official cited by vox.com notes that “US missions usually designate people as essential employees who must work during government shutdowns; others are considered non-essential and therefore can’t work. As of Thursday, no such list has been created.”

Are they going to come up with the furlough lists after the actual shutdown occurs?

On December 4, 2017, the State Department released its Guidance on Operations During a Lapse in Appropriations. The guidance was prepared in anticipation of the lack of appropriation or continuing resolution before midnight on December 8, 2017. As of this writing, we have not seen an updated guidance for the looming shutdown tomorrow. We’ve asked the A/DGHR if this same guidance would apply if there is no CR by midnight Friday, January 19, the deadline to pass a short-term spending bill to keep the U.S. government open and avoid the shut down of federal agencies, but our question has so far been ignored.

Below is an excerpt from the December 2017 guidance that has not been updated for 2018 but potentially relevant to how the State Department will manage the agency in a shutdown.

Appropriated Funds: 1-Year, 2-Year, No-Year Funds

Departmental entities will continue to operate until their respective balances are insufficient to continue. While many appropriated funds expire after one year, the Department has some accounts that are 2-year funds or no-year funds.

If there is no appropriation or continuing resolution before midnight on December 8, 2017, Department elements using multi-year or no-year appropriations (with remaining available balances), trust funds, other permanent appropriations, fees, and the Working Capital Fund will fund and continue operations as long as this funding is available. Please note that due to reduced funding or revised authorities, such availability for FY 2018 may be different than what was in place for the previous lapse in appropriations.
[…]
If there is no appropriation or continuing resolution before midnight on December 8, 2017, posts and offices supported by single-year appropriations will immediately commence procedures [/] on the first business day following that date, i.e., Monday, December 11, 2017. Posts that normally operate on Saturdays or Sundays will immediately commence procedures [/] on Sunday, December 10, 2017.

Determination of Excepted Functions and Positions

A. Definition of Excepted Functions: “Excepted” functions that may be continued in an absence of appropriations include those necessary for emergencies involving “the safety of human life or the protection of property,” and those necessary for activities essential to national security, including the conduct of foreign affairs essential to national security. Employees performing “excepted” functions will continue to report to work and perform their duties.

B. Chief of Mission (COM) Authority Regarding Other U.S. Government Agency Employees Abroad: Under a lapse of appropriations, each U.S. government agency at post must determine which positions meet the criteria of “excepted” in the absence of appropriations. If an agency has determined that certain of its positions abroad do not meet those criteria, and that determination conflicts with the views of the Chief of Mission, then the Chief of Mission should attempt to resolve the matter directly with the parent agency concerned. Based on COM authority and the Department’s foreign affairs responsibilities, the COMs and Department’s judgment about what functions constitute the conduct of foreign relations essential to national security carries great weight. If the COM is unable to reach agreement with another agency on what functions should continue to be performed during a lapse of appropriations, the COM may refer the matter to Washington to see if the Department is able to reach an accommodation with the other agency.

The COM will be responsible for informing the most senior officials of other agencies at post immediately upon notification by OMB that we are to implement shutdown procedures.

C. Consular Operations Domestically and Abroad: Consular operations domestically and abroad will remain 100% operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Office of the Under Secretary for Management.

D. Use of E-Mail/Telegrams/Remote Access/Mobile Applications: The Department will be minimally staffed if a shutdown occurs. Department managers and post managers are asked to reduce message traffic to include only the most urgent need. Remote access and mobile programs, to include fobs, secure laptop services, and centrally managed Blackberry support services will be minimally staffed. Additionally, due to reduced domestic staff levels, all personnel should be cognizant that there are fewer personnel available to respond to incoming messages.

Non-excepted employees should turn off all Department-provided mobile devices, and excepted personnel should not communicate with non-excepted employees. For purposes of communicating work status to non-excepted employees, supervisors should have employee personal contact information on file.

Personnel

U.S. Direct Hires Employees

An immediate hiring freeze will apply during a lapse in appropriations. Entry-on-board dates for prospective employees with employment offers are suspended until the funding lapse is over. No new job offers may be made.

We will need to examine the text of any subsequent appropriation or continuing resolution to determine if the Congress has authorized retroactive pay and allowances. All non-excepted personnel support activities, such as unfunded security investigations, should be suspended.

Family Members and Locally Employed (LE) Staff at Post

Eligible Family Members employed at post follow the furlough procedures of other direct-hire U.S. government employees unless paid on the local pay plan. Application of the furlough to LE staff (including foreign nationals and locally resident U.S. citizens, whether on personal services agreements (PSA) or direct-hire appointments) depends on local labor laws in each country. In general, Department LE staff will be required either: a) to report to work as directed by their supervisor (i.e., if “excepted,” or if treated as “excepted” because these LE staff legally must be paid, provided that in no event may LE staff report to work if adequate supervision is unavailable); b) to be on excused absence leave per 3 FAM 7451, if LE staff must be paid under local labor law but may not actually work because, for example, adequate supervision is not available; or c) to be placed on ordinary furlough status.

HROs at each post will examine local labor law and make appropriate, post-specific determinations in conjunction with post management. The COM should inform other U.S. government agencies at post that, as in the past, the Department plans generally to treat those LE staff members as excepted whom the Department believes must be paid under host state labor laws regardless of attendance. HR/OE will be in touch with those posts that indicated during sequestration planning that their host country local laws allow personnel to be furloughed.

Part-Time Employees

Part-time employees should follow the same guidance as full-time employees.

WAE Employees and Seasonal Employees

Employees with a When-Actually-Employed (WAE) work schedule and seasonal employees are called to duty at identified periods of the year in accordance with pre-established conditions. WAE employees are non-full-time employees without a regularly scheduled tour of duty. A seasonal employee is an employee hired into a position for which the customary annual employment is six months or less. Whether either group is called for work during the period in which furloughs are scheduled is discretionary with agencies, but those personnel must be performing excepted functions.

Rotation of Personnel

The decision to rotate personnel to perform excepted functions may be made at bureau and post discretion in unique and compelling circumstances. However, the following should be taken into consideration when making a decision on rotations:

  • Managers should take into account the potential impact on unemployment compensation eligibility for the employee, based on local jurisdictions’ unemployment insurance policies.
  • Decisions on rotations for specific positions should balance the Department’s need for continuity and equity to the employees.
  • Posts may determine on what basis rotations may take place (based on increments of at least one week), but due consideration should be given to continuity and fairness.
  • Personnel rotated into and out of an excepted function must have the requisite qualifications to perform the function.

All decisions to rotate employees must be documented by the bureau or post.

Details

Detailees follow the furlough policies and procedures of their home agencies because they remain officially employed by their home agencies. If you are detailed from the State Department to another federal agency, the State Department will determine if and how you are affected. If you are detailed to the State Department from another federal agency, your home agency will determine if and how you are affected. For more information and for details involving non-Federal agencies, refer to OPM guidance.

Specific Situations

The following are typical bureau/post obligation/payment categories and how they should be handled:

LE staff pay/allowances: Standard procedures to process LE staff payroll must be followed. Under no circumstances should alternate means be used to pay LE staff salaries, such as using petty cash. As per the above general guidance for obligations after a lapse in appropriations, no obligations for payroll after that date should be recorded on official accounts or in RFMS and GFMS, even for excepted activities. More detailed guidance on submitting time and attendance during the period of the lapse will be provided prior to the deadline for the next submission of time and attendance.

American Salaries, Benefits, and Allowances: While obligations may continue to be established for employees on US-based salary schedules performing “excepted” and shutdown activities, payments for salaries and allowances may only be made for services rendered prior to the lapse in appropriations.

Travel: Only travel in fulfillment of excepted activities can be initiated after a lapse of appropriations. Per guidance above, even in cases of travel in this category, obligations made after any lapse of appropriations should not be recorded on official bureau or post accounts even though obligations have been incurred. Blanket travel orders issued prior to the lapse in appropriations are not valid during the lapse period, unless in the case of travel abroad, travel commenced or any cost was incurred for that travel prior to the shutdown. No travel advances can be issued unless the obligation for travel abroad was incurred prior to the lapse in appropriations. Travel voucher reimbursements can be processed only if against obligations incurred and recorded for prior years, or for the current Fiscal Year (if obligated prior to the lapse in appropriations) multi-year or no-year appropriations for which funds remain available. Travelers who hold Citibank Travel Cards may charge advances against these cards for any approved trips as travel card advance charges do not create advances to official accounts. As part of GSA Smart Pay cards, Citibank Travel Cards will continue to function normally and banks will continue to provide service. Cardholders, as usual, should contact the bank customer service organization should they experience problems with their cards.

Utilities: As with other categories of payments, utility payments for obligations established prior to the lapse in appropriations can be processed and sent to CGFS for payment or entered in RFMS. Obligations for utility costs after the lapse in appropriations should not be recorded even though incurred, and utility payments for periods after that cannot be made from lapsed appropriations. Posts confronted with any emergencies in this regard should contact the Department as soon as possible (see paragraph 13 below).

OBO Allotment Activities: Since OBO activities abroad (e.g., rents, maintenance and repair, fire/safety and capital projects) are paid from the no-year OBO appropriation, these activities can be obligated and paid if the post has sufficient funds in its OBO allotment. Salaries for facility managers and OBO direct-hire project staff at post are funded domestically from the no-year OBO appropriation; therefore, those personnel will continue to report to work and perform their duties. Salaries for locally-hired OBO project staff are funded from post-held OBO allotments and can therefore be obligated and paid as long as post has sufficient funds in its allotment.

Collections: Embassy cashiers can continue to process all collections normally.

Absolutely Necessary Payments: To reiterate, and consistent with OMB guidance, we have authority to incur obligations but cannot make payments for excepted activities after the lapse in appropriations. Because our accounting system pays for incurred obligations, we cannot post (record) obligations due to the lapse of appropriations even though obligations have been incurred, nor can we make payments against the incurred but not recorded obligations for current Fiscal Year lapsed appropriations. If it is necessary to make payments in emergency situations (e.g., to safeguard life and property), the bureau or embassy should send a memo or cable, respectively, on a case-specific basis to request use of funds that BP determines may be available for such purposes. Each request should provide details of the date the funds are needed, the amount, the justification, and any other relevant information. Requests of this type should be limited to extreme cases.

Repatriation Loans: Post authority to expend up to $2,000 per applicant without Department approval is temporarily rescinded. If a post determines that a repatriation loan is necessary during the period of a lapse in appropriations, the post should cable CA/OCS and CA’s Comptroller to request funding as mentioned in paragraph 11 above.

Emergency Medical Services: If the concurrence of MED is received, emergency medical travel and services obligations can be incurred but not recorded. Accordingly, payments against such obligations cannot be made. Please coordinate with MED and follow guidance in paragraph 11 in emergency situations where payment is required immediately. For medical services funding requests the post should cable MED and CGFS – USOFFICE Global Financial Services (not the regional bureaus).

Speech-Making and Media Engagement

As a general rule, all speeches to public audiences should be cancelled and no invitations to give speeches to public audiences should be accepted during the shutdown period. If you believe there are exceptional reasons to honor an existing speech commitment or to accept a speaking invitation, you should contact the Public Affairs (PA) Special Assistants at 202-647-6607 for guidance. No speeches to public audiences may be made during the shutdown period without explicit approval from the PA Principal Deputy Assistant Secretary.

The Bureau of Public Affairs may need to communicate with the media, via on-camera or off-camera briefings and/or the release of statements via traditional or social media means, for events and issues involving the safety of human life or the protection of property, or those necessarily related to national security, including the conduct of foreign affairs essential to the national security (“excepted activities”). This would include direct support to the Secretary of State for travel related to national security-related issues, and any news media and transcription support that would entail. Approval for such activities will rest with the Bureau Assistant Secretary or Principal Deputy Assistant Secretary.

Non-emergency social media operations outside of flagship social media accounts must cease. Department flagship accounts managed by the Bureau of Public Affairs may operate in support of excepted activities.

Representation Events

Domestic Representation: As a general rule, no domestic representation events should be held during the shutdown period. Events already scheduled should be cancelled and no new events planned until the shutdown is over. If you believe there are truly exceptional circumstances that merit a representation event being held during the shutdown period, you should contact M/EDCS for approval.

Representation Abroad: As a general rule, no representation events should be held abroad during a shutdown period. Chiefs of Mission (COMs) may authorize a representational event abroad only if it is necessary to support excepted activities. COMs should consider the perception of a representational event during a Department shutdown.

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

Posted: 3:48 pm PT
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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?

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