Government Executive - Authors - Charles S. Clark

Everyone Dreads Shutdowns, So Why Do They Keep Happening?

Charles S. Clark — Thu, 18 Jul 2019 13:38:21 -0400

In April, with painful memories of last winter’s 35-day partial government shutdown still raw, Rep. Louis Gohmert, R-Texas, delivered a favorite shutdown anecdote: During the 16-day governmentwide shutdown in 2013 under President Obama, Gohmert joined some World War II veterans in a visit to the Iwo Jima Marine Corps Memorial in Arlington, Va. The National Park Service had barricaded the site, Gohmert recalled at a 2019 hearing of the House Natural Resources Committee on the Interior Department’s reorganization.

“I was absolutely appalled” that the nation’s veterans were “being harassed,” he said, describing a busload of veterans of the Iwo Jima battle who had arrived at the site and “busted up” the barricades. “We didn’t let the enemy keep us from getting to the top of Mount Suribachi,” the veterans reportedly said. “So we won’t let a little wooden barricade keep us from the memorial.”

A National Park Service spokesman told Government Executive in May that the agency had no information on such an incident. But similar Republican attacks on the Park Service for closing war monuments to tourists during the 2013 appropriations lapse threw into relief a key difference between the two political parties.

Under the Obama administration, during an angry hearing in October 2013, National Park Service Director Jon Jarvis resisted Republican attacks and defended the closing of war monuments as required by appropriations law. Consistent with the requirements of the amended 1884 Antideficiency Act, the service “was forced to close all 401 national parks across the country and furlough more than 20,000 National Park Service employees,” Jarvis told a joint hearing of the House Interior and Oversight panels. “Approximately 3,000 employees were exempted from the furlough to respond to threats to the safety of human life and the protection of property. Absent appropriations, the National Park Service will continue to implement the contingency plan that was approved by the [Interior Department],” he said at the time.

Rep. Darrell Issa, R-Calif., accused Jarvis of wanting to "inflict pain" to make a point about government funding. “Whose land are the parks?” Issa asked. “The people’s or the government’s?”

Democratic Rep. Peter DeFazio of Oregon countered to the Republicans: “When you decided to shut down government two weeks ago, did you forget that the NPS is part of the federal government?”

Flash forward to January 2018, when, with a shutdown threatened under President Trump, Budget Director Mick Mulvaney promised the damage would be less than under Obama because the Democratic administration had “weaponized the shutdown in 2013.” By contrast, “we’re not going to try and hurt people, especially people who work for the federal government,” Mulvaney said.

Hence during the 35-day shutdown that ended Jan. 25, the Trump administration took unusual steps to get around the Antideficiency Act. They called back furloughed Internal Revenue Service staff to prepare for tax filing season and implement the new tax law. They summoned Agriculture Department employees to keep the food stamps program going. The State Department pressed ahead with a conference for ambassadors and chiefs of mission with many State staff furloughed, and the Transportation Department recalled idled Federal Aviation Administration engineers and inspectors.

Is that allowed? Not according to the lawsuit filed by the National Treasury Employees Union, the National Air Traffic Controllers Association (which later dropped out) and a group of five federal workers. Also dubious of the legality of the administration’s actions is Sen. Mark Warner, the Virginia Democrat who wrote to the administration challenging such legal authority.

Chris Edwards, the longtime director of tax policy studies at the libertarian Cato Institute, said he believes political calculations account for the differing approaches: “During the Obama administration, there was a shutdown or two when the administration did seem to go out of its way to make it more painful,” he said. “Under Trump, the administration went out of their way to make it as least painful for voters as possible.” The reason, Edwards suspects, is that “there is a common perception going back to the two shutdowns in the mid-1990s that Republicans got mainly blamed, and that may be correct.”

Inside the Republican conference on Capitol Hill, “there has long been a perception that they need to fear shutdowns at all costs and always get blamed,” he added. “I think Democrats know that, so they have the upper political hand on shutdowns.”

Both parties seek to pin the blame on opponents—using labels such as the “Trump shutdown” or “the Schumer shutdown” (for Senate Minority Leader Chuck Schumer, D-N.Y.). But opinion polls suggest the public does blame Republicans more, depending on who’s in the White House.

During the twin shutdowns in 1995-1996—a two-part, 26-day clash between the Clinton administration and Congressional Republicans over their proposals for deep cuts in Medicare and other domestic spending—a Washington Post-ABC News poll showed 50% of respondents blamed Republicans, versus only 27% who blamed Clinton.

In the 2013 shutdown—triggered by a GOP effort to defund the Affordable Care Act—53% in a similar poll said Republicans were mainly responsible, versus 29% who blamed Obama.

Three weeks into the 2018-2019 partial government shutdown—set in motion after Trump abandoned a budget agreement with Congress and demanded greater spending on a southwest border wall—an NPR poll showed that 54% of U.S. adults believed Trump was most responsible, and another 31% said congressional Democrats were at fault. Only 5% said Republicans on Capitol Hill were to blame.

‘A More Regular Occurrence’

The polls showed that shutdowns are “overwhelmingly negative, embarrassing, and hurtful to the economy and international relations,” said Paul Light, a professor of public service at New York University. Nonetheless, in the coming budget drama, President Trump is capable of “blowing things up,” Light said. “Democrats may be able to maneuver to push him into pulling the trigger, but he will not be able to blame it on the Democrats. People are clear he’s the chief executive.”

Norman Ornstein, resident scholar at the American Enterprise Institute, laments the fact that shutdowns have “become a more regular occurrence—we’re writing not about historical anomalies, but about facts of life in governance now,” he said. “A lot of Republicans relish a shutdown, because they don’t want government, don’t want it working.” That was apparent, he said, in 1995 and 1996 when then-House Speaker Newt Gingrich, R-Ga., drove “a shutdown during the holidays to discredit Clinton and make an ideological point.”

But Clinton recognized that some people think government does work and want more of it. His approach assumed that “the best way to end the shutdown was to gain, no doubt, some political advantage” by bringing to public attention the cost of shuttering government operations, especially things the public cares about, Ornstein said.

Today’s situation is even more radical, Ornstein added, citing Treasury Secretary Steven Mnuchin’s “willingness to give a middle finger to Congress, or act as if Congress is immaterial.” At the same time, the “Republicans’ end run around the Antideficiency Act,” Ornstein cautioned, does not mean they aren’t “pragmatic in making sure their political needs are met.”

Though Republicans get blamed in the short term as the party that’s anti-government, I don’t think shutdowns are bad for Republicans over the medium or longer term. People forget it.

- Chris Edwards, The Cato Institute

But Edwards takes a longer view. “Though Republicans get blamed in the short term as the party that’s anti-government, I don’t think shutdowns are bad for Republicans over the medium or longer term. People forget it,” he said. “Go back to 1996. Republicans got blamed, but only a few months later, the vast majority of the budget-cutters and shutdowners got reelected.”

Economic Damage

Members of both parties, of course, agree that the costs of shutdowns to government and the economy are formidable. The 2018-2019 shutdown delayed $18 billion in federal spending and cost the economy some $11 billion, according to the Congressional Budget Office. The estimate from the private S&P Global Ratings was $6 billion—or about what Trump had demanded for the border wall in triggering the breakdown in bipartisan budget talks. That record-breaker compares with a cost of $2.6 billion for the 2013 shutdown and $2.3 billion for the twin shutdowns in 1995-96 (in inflation-adjusted dollars).

The Congressional Research Service last December released a mid-shutdown comprehensive lookback at shutdowns, beginning with short ones during the Carter administration. It was Carter Attorney General Benjamin Civiletti who issued opinions setting in motion a much stricter interpretation of agency’s freedom to spend during an appropriations lapse. “For years leading up to 1980,” CRS said, “many federal agencies continued to operate during a funding gap, minimizing all nonessential operations and obligations, believing that Congress did not intend that agencies close down,” while waiting for the enactment of annual appropriations acts or continuing resolutions.

CRS’s history of how agencies have executed their contingency plans during shutdowns also notes the difficulties in calculating the costs. “Costs to whom?” it asked. “For something to count as a shutdown-related cost, must it be a cost for the federal government or a distinct part of the federal government? How should costs be handled that accrue to a state or local government (e.g., delayed grant funding), a citizen or client (e.g., lost services), a business (e.g., less tourism revenue), or society at large (e.g., reduced economic output)? What if one stakeholder’s cost (e.g., a contractor’s lost work and compensation) may be viewed as savings or a benefit for another stakeholder (e.g., cost savings for an agency, albeit with less work effort toward the agency mission)?”

The anecdotal costs to employees at specific agencies are more vivid. At the Internal Revenue Service’s Exempt Organizations division, for example, the processing of nonprofit applications for tax-exempt status was severely curtailed during last winter’s shutdown, with only 24 employees deemed essential. According to an American Bar Association roundtable talk on Jan. 18 by tax attorney Meghan Bliss of Caplin & Drysdale, “There’s a person in the mail room, though, who will accept your Form 1023. They’re essential. They stamp it as received and cash your check,” she said, as reported by Paul Streckfus’s Exempt Organizations newsletter. But “there is no one else in EO to take your calls or work your applications or do your examinations.”

The financial hardships to employees at the State Department were detailed in a roundup from an officer of the American Foreign Service Association. “Some members had already tapped into their ‘rainy day fund’ after being forced to leave Mission Russia last year. Others had to juggle funds to pay tuition expenses or mortgages due in January,” the group noted.

“Unemployment benefits were not available to many members serving overseas. Single parents and tandem couples were hit particularly hard with the delay of first one paycheck, and then two.”

And there’s the Volvo Cross-Country car seen last January in front of the Arlington, Va., house of an unnamed federal employee bearing a for-sale sign reading: “Fuloughed and working: $4,000 OBO.”

Charles S. Clark/GovExec.com

An Obvious Solution

What emerges as the proper interpretation of agency obligations under the Anti-Deficiency Act will depend on the courts, and on the Government Accountability Office, which referees such decisions. Julia Matta, GAO’s managing associate general counsel, testified on Feb. 6 before the House Appropriations Subcommittee on the Interior: “The Antideficiency Act is the only fiscal statute that includes both civil and criminal penalties for a violation,” she said. Those who violate it “are subject to administrative discipline, such as suspension or removal from office, as well as criminal penalties in the case of a knowing and willful violation.”

But she also split hairs on what happens during a shutdown. “As an initial matter, certain agencies and programs may continue to operate without implicating the Antideficiency Act if the agency or program has available budget authority. Such authority may derive from multiple year or no-year appropriation carryover balances, or otherwise available balances from other authorities, such as from fee income that Congress made available for obligation,” Matta said.

Transferring funds under the law in most cases requires notification of Congress. And “an agency must still ensure that it adheres to all other applicable laws,” she said. “Sometimes an agency may have two appropriations that may arguably be available for the same purpose. In those cases, an agency must elect to use a single appropriation. The agency may not switch to a different appropriation merely because the one it chose first is now depleted.”

Current lawmakers have drafted bills designed to force reforms in the budget process that would require their colleagues to keep the government open automatically, by continuing funding, for example, at the previous year’s levels. The Prevent Government Shutdowns Act (S. 589), introduced in February by Sens. James Lankford, R-Okla., and Maggie Hassan, D-N.H., for example, would require that, if appropriations bills are not passed by both chambers of Congress and signed by the president by Oct. 1, “no official travel will be allowed for Office of Management and Budget leadership or staff, Cabinet members, or senators and representatives along with their committee and personal staffs (except for official travel within the D.C. metro area).”

Other solutions have included switching from annual to biennial budgeting. That would be “a nightmare,” said Paul Light: “I don’t see Congress losing its control over the budget—it’s too important to the electoral cycle, and Congress is nothing if not diligent in claiming credit for all spending,” he said. Plus, the currently Democratic House, in negotiating with a Republican-controlled Senate, “is not going to go along with any kind of weakening of oversight on the budget.” Such propositions are “politically naïve,” he said.

I don’t see Congress losing its control over the budget—it’s too important to the electoral cycle, and Congress is nothing if not diligent in claiming credit for all spending.

- Paul Light

What complicates the challenge, added Ornstein, “is not just the tribal environment and maneuvering to gain advantage, but also the breakdown of regular order, which goes back even further. The inability to finish appropriations bills on time, much less reach agreement, creates a greater likelihood of shutdowns.”

In moving forward, Edwards said, “both parties know there’s a problem with shutdowns. The solution is pretty straightforward—an automatic continuing resolution at the same spending levels if the parties don’t agree on discretionary levels. It’s a fair and neutral approach.” Unlike the messy issues of immigration and healthcare, Edwards said, “both parties know the solution. So why not get together and make the trains run on time?”

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OMB Moving Ahead to Steer Agencies on Evidence-Based Policymaking

Charles S. Clark — Fri, 12 Jul 2019 13:13:15 -0400

The Trump White House is pressing ahead with implementing the bipartisan legislation enacted last year to discipline agencies to rely more heavily on evidence and data when making policy and managing programs.

In a July 10 memo to all agency heads, acting Budget Director Russell Vought laid out a timeline from September 2019 to February 2022 for four phases: (1) Learning Agendas, Personnel and Planning; (2) Open Data Access and Management; (3) Data Access for Statistical Purposes; and, (4) Program Evaluation.

The Foundations for Evidence-Based Policymaking Act “creates a new paradigm by calling on agencies to significantly rethink how they currently plan and organize evidence-building, data management, and data access functions to ensure an integrated and direct connection to data and evidence needs,” OMB wrote. “This paradigm requires engagement and cooperation from multiple actors within agencies (e.g., senior leadership, policy officials, program administrators, performance managers, strategic planners, budget staff, evaluators, analysts, front-line staff and data professionals) and key external stakeholders.”

The new approach also accelerates and expands many activities underway, the memo said, “including the Federal Data Strategy….; the governmentwide reorganization proposals to strengthen federal evaluation and reorganize the Census Bureau, Bureau of Labor Statistics, and Bureau of Economic Analysis to improve economic statistical data; new monitoring and evaluation guidelines for agencies that administer foreign assistance; new centralized mission support shared services and standards; and ongoing open data policy related to open data laws,” such as the 2014 Digital Accountability and Transparency Act.

To carry out the act, each “agency must establish an agency Data Governance Body, to be chaired by the Chief Data Officer, with participation from relevant senior-level staff in agency business units, data functions and financial management,” the memo said.

“The newly-designated positions (Chief Data Officer, Evaluation Officer, and Statistical Official) all play a key role in” leading activities such as “Capacity Assessments,” which, as part of agencies' strategic plans, will help agencies assess their ability and infrastructure to carry out evidence-building activities such as fact finding, performance measurement, policy analysis and program evaluation, while also identifying the data needed.

The OMB Evidence Team will establish and coordinate an interagency council composed of Evaluation Officers, who will exchange information, consult with and advise OMB.

The memo was welcomed by Nick Hart, formerly of the Bipartisan Policy Center, which had inherited the congressionally mandated commission’s task of fleshing out the approach to evidence-based policymaking. “OMB’s new guidance on implementing the Evidence Act is a productive step forward for ensuring federal agencies have the leaders in place to promote evidence-based policymaking,” said Hart, now CEO of the DATA Coalition.

“The designation of new chief data officers, evaluation officers, and statistical experts across government is a critical first step for making government data more accessible and useful in our society,” he said. “While ideally this guidance would have been issued months ago, the Data Coalition applauds OMB for prioritizing these leadership roles, offering detailed implementation guidance, a clear organizational plan and a governmentwide scope.”

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Education Department’s Handling of Loan Forgiveness Draws Union Lawsuit

Charles S. Clark — Thu, 11 Jul 2019 16:30:55 -0400

Education Secretary Betsy DeVos, along with the department she runs, on Thursday was hit with a lawsuit by the American Federation of Teachers seeking redress for teachers who say they were unfairly denied benefits of the federal student loan forgiveness program for borrowers who were incentivized to work in public or nonprofit-sector jobs.

The suit, filed in the U.S. District Court for the District of Columbia by the union, its president Randi Weingarten and eight teachers from across the country, argued that DeVos has "done nothing to remedy the gross mismanagement" of the federal public service loan forgiveness program.

It faulted administration of the program by both the department and private lenders. Borrowers among certain classes of public-service workers, the union said, make 120 monthly payments toward their loans over the course of a decade or longer. “But qualifications for the forgiveness program are complex, and according to U.S. Department of Education data released last fall, only 96 applicants out of 28,000 who applied between October 2017 and June 2018 were approved.”

The suit cited studies of the program’s longstanding unreliability as documented by the Government Accountability Office and the Consumer Financial Protection Bureau, whose student loan regulations both DeVos and Trump appointees at the bureau have sought to roll back.

One plaintiff, Cynthia Miller, “is a teacher in Chicago who applied for loan forgiveness last year after making at least 120 qualifying payments,” the suit said. “That set off more than a year of back-and-forth with agents at the department, who gave her conflicting information and ultimately denied her application. When she asked for an explanation, she received a letter containing more than 160 pages of dense numerical code and undefined abbreviations.”

Another plaintiff, Janelle Menzel, “is a teacher in Minnesota who asked her loan servicer, Nelnet, about the federal Teacher Loan Forgiveness program, which forgives a portion of student loans for teachers working in low-income schools for five years. Menzel was eligible for the program," a press release from the union alleged, "but Nelnet told her she was not." The suit also alleged that Nelnet "misrepresented the payment process—leading to Menzel making payments for five years that were not counted toward Public Service Loan Forgiveness eligibility.”

The suit called some of the company denials “arbitrary and capricious,” citing processing errors and inaccurate information. It asked the court to require the department to vacate the loan forgiveness denials, freeze denials and provide a status report on the program, arguing that its current handling had violated the plaintiffs’ rights as well as the Administrative Procedure Act and the Fifth Amendment’s Due Process Clause.

Asked for comment by Government Executive, Education spokeswoman Liz Hill said the department does not comment on pending litigation, but it "is faithfully administering the complex program Congress passed."

The department has stressed that the program is complex and includes restrictions on the types of eligible loans. Back in December, the department did launch a new tool to help borrowers understand the program’s ins-and-outs.

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IRS Staffs Up As a Result of Disputed Private Debt Collection Program

Charles S. Clark — Thu, 11 Jul 2019 15:28:34 -0400

In its latest congressionally-mandated report on contracting out collection of recalcitrant tax debts, the Internal Revenue Service said it is hiring 100 specialist staffers this fall and plans to bring on another 100 in a year.

The revival of an earlier program required by Congress in 2015 contracts with four private companies which, under specified rules, go after delinquent taxpayers the IRS has been unable to collect from. Critics—including the just-departed National Taxpayer Advocate Nina Olson—blast the public-private partnership for superseding an IRS core function and for deploying company bill collectors who are not always sensitive to the challenges of low-income taxpayers.

The new report said the program brought in more than $82 million in fiscal 2018, a figure projected to rise to $114 million for 2019 and again in 2020. By law the Treasury secretary cannot reroute the program's proceeds, but must channel them back into the debt collection program.

Boosters, such as Senate Finance Committee Chairman Chuck Grassley, R-Iowa, praised the program, noting its reliance on IRS in-house staff called “special compliance personnel.” Efforts by that category of worker are projected by the end of fiscal 2019 to have collected $6.7 million, an amount the agency thinks will double in fiscal 2020, to $13.5 million.

“Data continue to show that the Private Debt Collection program is working,” Grassley said in a Wednesday release of the report. “This is the most recent in a series of reports that have given me confidence in the program’s ability to make the system fairer for law-abiding citizens while also strengthening the effectiveness of the IRS.”

The collection industry coalition called the Partnership for Tax Compliance was also supportive.

“We are very pleased to see the Special Compliance Personnel Program beginning to ramp up,” the nonprofit said in a statement. “Over time, the program will effectively work with taxpayers to help them meet their commitments to the federal government, ultimately strengthening the U.S. Treasury. Twenty-five percent of ongoing collections made by the Private Debt Collection Program support the SCPP, which has allowed the IRS to build a unique, stand-alone tax collection program that’s fully self-funded. The agency is treating this just as the statute intended–as permanent appropriations covering salaries, benefits, training, overhead, infrastructure and even technology–which will allow the [special compliance program] to continue functioning, even during budget battles in Congress.”

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Does the Hatch Act Need a Makeover for the Trump Era?

Charles S. Clark — Thu, 11 Jul 2019 13:29:13 -0400

The Office of Special Counsel wants “to put a big roll of masking tape over my mouth!,” said Counselor to the President Kellyanne Conway, speaking to Fox News in June two weeks after that independent office recommended her dismissal for repeated violations of the Hatch Act.

Her declaration followed repeated brushes with the 1939 law intended to keep federal employees at arm’s length from electoral politicking. It came after the White House social media director drew his own reprimand from the special counsel, and just as top advisers and family members of President Trump, namely his daughter Ivanka, have been accused by a nonprofit ethics group of violating the act by sending Tweets using the campaign slogan “Make America Great Again.”

The OSC itself, in modernizing Hatch Act guidance for the social media age, has issued detailed instructions to federal employees warning against such language as “resistance” or “impeachment” in the political context of the Trump era.

Hatch Act clashes in recent years have singed both Republican and Democratic administration appointees. Measured in numbers of violations reported, investigated and acted upon, the Trump administration has produced a small uptick. In fiscal 2018, 67 employees—including federal, state and local employees—violated the Hatch Act, up from 51 employees in 2017, OSC reported to Government Executive. Those tallies are similar to those during President Obama’s second term. For the first two quarters of fiscal 2019, OSC has submitted 23 warning letters and produced three corrective and two disciplinary actions.

But the defiance by the Trump team may be unprecedented. In his all-out defense of Conway sent to OSC on June 11, White House Counsel Pat Cipollone blasted OSC for its “overbroad and unsupported interpretation of the Hatch Act” and faulted the investigative agency created in 1978 for failing, despite its multiple meetings with Conway, to provide her with sufficient time and “an opportunity to respond.” Most telling, the top White House lawyer questioned whether the Hatch Act even “applies to the most senior advisers to the president in the White House.”

Trump was quick to declare he had no intention of firing Conway. He also forbade her from even testifying at a June 26 hearing of the House Oversight and Reform Committee, which resulted in her being subpoenaed.

There is a new risk, as warned against by Special Counsel Henry Kerner—himself a Trump appointee—that having an uncooperative White House protecting a highly visible appointee will, “if left unpunished, send a message to all federal employees that they need not abide by the Hatch Act’s restrictions.”

Perceptions of Enforcement Disparity

Those fears may be justified. Most federal employees think the Hatch Act is well enforced, but that White House staff get favorable treatment, according to an online survey by Government Executive and the Government Business Council taken over several days in early July. Nearly half of the respondents (47%) are supervisors.

A clear majority (70%) said federal employees are held to a higher standard than White House staff and appointees.

Nonetheless, most respondents (60%) believe the Hatch Act is fairly enforced at their agency, and a full 80% believe the Hatch Act is meaningfully respected by their colleagues.

The survey has a margin of error of 5% with a 95% confidence interval.

Confusing Guidance

Government Executive interviews with attorneys who have experience representing clients who ran afoul of the Hatch Act suggest that it may be time for Congress to clarify whether the act should be enforced among political appointees who won their jobs outside of Title 5 authority.

Under current law, the prohibitions against electioneering apply to any employee of an executive branch agency except the president, vice president, Government Accountability Office, those in certain positions at independent agencies, those in the uniformed services (who have their own restrictions) and those employed by the government of the District of Columbia. Kellyanne Conway is employed by the White House under Title 3.

“As a result of Conway’s situation, it does seem like the current administration is not very interested, outside of OSC, in enforcing the Hatch Act said,” said John Mahoney, a Washington, D.C.-based federal employment law attorney. “Things are becoming more politicized throughout the executive branch, so it’s important that the OSC aggressively prosecute Hatch Act violations—even though it has no jurisdiction over political appointees” other than to make recommendations.

Mahoney’s clients represent a cross-section of the ways in which people run afoul of the Hatch Act: one ran in a partisan election (that client had to resign); a federal manager added under his official email signature block the words “making American great again” (after an investigation he opted to retire); and a third was a supervisor who shared political articles within his work unit on LinkedIn (he got a three-day suspension).

Though the prospects for enforcement should not depend on which political party an employee is advocating, Mahoney said, in the current era, there is “a big danger that federal employees engaging in prohibited political activity in support of the administration may not be aggressively prosecuted by individual agencies.” Also slowing the enforcement process, he added, is the continuing backlog and lack of a quorum at the Merit Systems Protection Board, which adjudicates complaints referred by the OSC (though it cannot take cases as the original jurisdiction, only appeals).

“The tone is set by the administration,” said Joanna Friedman, a partner with the Federal Practice Group who focuses on federal employment and labor law. The rise in OSC’s Hatch Act activity “seems to tell you either there are more violations or that OSC is paying closer attention, perhaps because the violations are more blatant,” she said. OSC’s “unprecedented letter to the president about one of his senior counsels shows that OSC is taking Hatch Act violations very seriously.”

Friedman expressed surprise that the White House hasn’t argued more forcefully that the Hatch Act doesn’t apply to Title 3 presidential appointees, of which Kellyanne Conway is one, although, she said, “that should be no excuse for White House officials to engage in campaign activity while being paid by tax dollars.”

Overall, although OSC has published guidance on “do’s and don’ts,” there is still confusion over social media postings and what content can constitute a Hatch Act violation, Friedman added. “In this day and age, it has become more complicated to know what you can and cannot do, especially given that President Trump started his re-election campaign almost immediately after taking office. But that being said, it is crucial for those at the top to set the example for those watching. There should not be one set of rules for leadership and another for everyone else.” Perhaps what is needed is more training.

‘It’s Like Playing a Game of Clue’

The complexity of current-day enforcement also bothers Ward Morrow, the assistant general counsel at the American Federation of Government Employees. “If a Cabinet secretary and staff can’t keep it straight, how can a GS-5, who has been in government two or three months?” he asked. Agencies do provide training through their ethics offices, but “it’s like the service icon on a Microsoft agreement—no one has read down into the weeds on this,” said Morrow, who in 16 years has represented hundreds of accused violators.

“Everyone knows you cannot run for federal office if you’re a federal employee, and you can’t raise money,” he said. But, for example, “what happens when you get down to two employees who are best friends and believe they have the same political beliefs, and they email that ‘the candidates’ debate is tonight, you wanna watch?’ Is that partisan activity?”

If the times when an employee can use social media—when not in a government building, when on personal time—is “unclear, it’s like playing a game of Clue,” Morrow said. “The really unfair part is that for union members, who are federal employees, their boss is the president,” unlike in the corporate world, Morrow said.

Conway’s conduct, more “egregious” than any he’s seen by a federal employees, “does show the unfairness that merit system employees can be fired but political appointees can violate the law at their leisure, and nothing happens to them,” Morrow said.

Perhaps there should be new penalties for political appointees, he added, so that the Justice Department could prosecute them.

Gaps in Enforcement Powers

Debra Roth, managing partner at Shaw Bransford & Roth, agrees that the OSC’s report on Conway highlights gaps in its enforcement powers that could prompt changes in the law by Congress.

At a June 26 House Oversight and Reform Committee hearing, just such a bill was announced by Rep. Jackie Speier, D-Calif., after she cited a Trump appointee at the Housing and Urban Development Department who said she no longer cared about the Hatch Act. The “Presidential Appointee Accountability Act” (H.R. 3499) would require the president to respond to OSC recommendations within 30 days and threaten politically appointed employees found to have violated the act with $10,000 fines.

Roth said she would be surprised if courts agreed with the claim by the White House and Conway that her on-camera and online statements are protected by the First Amendment. In Trump’s favor, however, many Hatch Act specialists consider the letter from the OSC calling for her firing to be highly unusual, Roth said, which was written in part because her conduct was unusual.

Overall, the OSC’s Hatch Act Unit “does an extraordinary job trying to stay in touch with changes in how the workforce uses social media to discuss political issues and historically has applied the law evenhandedly,” Roth said, in an era when political engagement has moved from “literally the water cooler” to the instant communication of social media.

Early in the Trump administration, OSC took the position that Trump was already running for reelection, she noted. Kerner’s admonition that the Trump team is “setting a bad example” is realistically all Kerner had to go with, given his lack of enforcement powers over political appointees, she said.

“But setting a good example is not the agenda for this administration. It’s not important to them,” so they are ignoring norms in multiple areas, "which shows gaps in the law,” Roth said.

But Roth sees a larger issue beyond the rule of law. “It’s about whether we as Americans still believe in an executive branch work force that’s apolitical. It’s a conversation that’s been brewing for about eight years,” she said.

A White House “can have its political team out there campaigning, they just have to use a different source of money to fund those people’s salaries,” Roth added. “There’s an equity for taxpayers too. What about the taxpayer who doesn’t support the political views of this administration? Part of the Hatch Act is keeping the functioning of government apolitical so that all Americans have confidence the system is working for all.”

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More Than Two-Thirds at Agriculture Research Office Reject Relocation

Charles S. Clark — Wed, 10 Jul 2019 16:23:02 -0400

Just over two months before their offices are scheduled to move from Washington to the Kansas City area, some 71% of staffers at the Agriculture Department’s National Institute of Food and Agriculture say they won’t go.

In response to the controversial plan launched last August by Agriculture Secretary Sonny Perdue to move NIFA and the Economic Research Service to a locality closer to farm country, the recently unionized Local 3403 of the American Federation of Government Employees canvassed most of the employees of a NIFA staff that has already shrunk from a full complement of 315 in January to 224.

“AFGE estimates that 83 more staff plan to leave through retirements, other jobs, or simply because they are unwilling to leave their homes for the Kansas City region,” the union local said in Wednesday release. “This leaves NIFA with 141 staff or 45% of the full complement. In addition, many employees who may relocate to Kansas City tell AFGE Local 3403 that they may only relocate short term until they find employment in their preferred localities.”

In addition, “Moving a granting agency at the end of the fiscal year will have a detrimental impact on getting grant money out the door to our stakeholders,” said Local 3403 acting Vice President for NIFA Wesley Dean. “Our staff, with all their years of experience, are leaving for other agencies. We should be focused on this, rather than hastily moving the agency.”

The employees who had already left, or who plan to leave by Sept. 30, or who would move only as a last resort totaled 64 among national program leaders and 79 under general program staff, totaling 143 leaving their jobs. AFGE acknowledged that 29% would be willing to consider relocation “if AGFE demands such as a reasonable amount of time for employees to make arrangements for their families and housing were agreed to by the USDA.”

In late June, the same local at the Economic Research Service estimated that two out of three employees were certain they would decline relocation.

The department defends the moves on efficiency grounds, to reduce the cost of living for employees they hope to recruit from state land-grant colleges closer to the Kansas City area—which won the bidding to host the relocated offices against 135 other localities. Perdue’s staff also points to a cost-benefit of analysis of signing new leases.

The union repeated in its statement the criticisms it has shared with many academic and statistical groups saying the “catastrophic attrition...threatens congressionally mandated scientific research, education, and extension related to agriculture and food systems, as well as the many congressionally-mandated formula funds that support state and county extension offices, and the 4-H program. Evidence suggests the relocation of these agencies is an attempt to hollow out and dismantle USDA science that helps farmers and protects our food supply.”

Warning that rehiring and retraining employees could take years, the union local added that “the low number of employees relocating to Kansas City highlights that relocation has been poorly incentivized for remaining in civil service.”

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Ex-State Dept. Official Gets 40 Months in Prison for Spying

Charles S. Clark — Wed, 10 Jul 2019 14:49:59 -0400

Former State Department official Candace Marie Claiborne, who was accused of spying for the Chinese government and misleading investigators, was sentenced to 40 months in prison on Tuesday, the Justice Department announced.

The 62-year-old, who had pleaded guilty in April, also received three years of supervised release and a fine of $40,000 for conspiracy to defraud the United States. She was found to have lied to law enforcement and background investigators and to have hidden “extensive contacts with, and gifts from, agents of the People’s Republic of China, in exchange for providing them with internal documents from the U.S. State Department,” the department said.

“Chinese intelligence agents convinced Candace Claiborne to trade her integrity and confidential information of the United States government for cash and other gifts for herself and her family,” Assistant Attorney John General Demers said. “Claiborne withheld information and lied repeatedly about these foreign intelligence contacts. Violations of the public’s trust are an affront to our citizens and to all those who honor their oaths. With this sentencing, justice has been imposed for these dishonorable criminal acts.”

Acting Assistant Director John Selleck added, “The targeting of U.S. security clearance holders by Chinese intelligence services is a constant threat we face, and today’s sentencing shows that those who betray the trust of the American people will be held accountable for their actions.”

Claiborne joined State under the Clinton administration in 1999 as an office management specialist. She worked overseas at embassies and consulates in Baghdad, Iraq; Khartoum, Sudan; and Beijing and Shanghai, China. As the holder of a top secret security clearance, Claiborne was required to report any contacts with persons suspected of affiliation with a foreign intelligence agency, Justice noted.

But she failed to report repeated contacts with two Chinese intelligence agents, even though they “provided tens of thousands of dollars in gifts and benefits to Claiborne and her family over five years. The gifts and benefits included cash wired to Claiborne’s USAA account, Chinese New Year’s gifts, international travel and vacations, tuition at a Chinese fashion school, a fully furnished apartment, and a monthly stipend,” the release said. Some of these gifts and benefits were provided directly to Claiborne, while others were provided through a co-conspirator.

The internal documents Claiborne provided in exchange dealt with topics ranging from economics to visits by dignitaries between the two countries at a time of a U.S.-Sino Strategic Economic Dialogue. Having confided to a co-conspirator that she knew the Chinese agents were “spies,” she wrote in her journal that she could “Generate 20k in 1 year” working with one of the PRC agents.

After being contacted by State and FBI investigators, Claiborne instructed co-conspirators to delete evidence.

Claiborne was sentenced in U.S. District Court for the District of Columbia by Judge Randolph Moss.

Her case was investigated by the FBI’s Washington Field Office and prosecuted by Assistant U.S. Attorneys Thomas Gillice, John Hill for the District of Columbia, and Deputy Chief Julie Edelstein and Trial Attorney Evan Turgeon of the Justice National Security Division Counterintelligence and Export Control Section.

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Pentagon Puts Price Tag of July 4 Pageantry at $1.2 Million

Charles S. Clark — Wed, 10 Jul 2019 09:00:00 -0400

The President Trump-directed “Salute to America” pageant at the Lincoln Memorial on July 4 cost the Defense Department $1.2 million, its comptroller’s office said on Tuesday.

The event attended by members of the Joint Chiefs and featuring flyovers, ceremonial units and heavy tanks transported to the nation’s capital became controversial among Democratic lawmakers and advocacy groups that considered it wasteful and inappropriate. The White House-produced festivities also reportedly required re-purposing $2.5 million from the National Park Service’s budget.

In advance of expected scrutiny from congressional panels, the Defense Undersecretary’s Office—after consulting with the individual services—said in a statement to Government Executive that “funding for the demonstrations came from the military services' training budgets that facilitate flying hours, which are imperative to military readiness.” Additional funding was used for the transportation of static displays and equipment, for a total of $1.2 million, the statement said.

“The Department of Defense has a long history of showcasing military assets to the country in order to recognize our military's contributions to the safety and security of the nation, and to assist in recruiting future generations of service members,” the statement added.

The comptroller’s inventory of the aircraft and ground equipment deployed for the July 4 ceremony included:

Four AH-64E Apache Guardian helicopters from the 101st Combat Aviation Brigade in Fort Campbell, Ky.;
Two MV-22 Ospreys aircraft and one VH-92 helicopter (often called the “new Marine One”) from Marine Helicopter Squadron One from Marine Corps Base Quantico, Va.;
Two F-35C Lightning II aircraft from Strike Fighter Squadron 147 from the Naval Air Station in Lemoore, Calif.;
Two F/A-18 Hornet aircraft from Strike Fighter Squadron 37 from the Naval Air Station in Oceana, Va.;
Six F/A-18 Hornet aircraft from the Navy Flight Demonstration Squadron (Blue Angels) from the Naval Air Station in Pensacola, Fla.;
One VC-25 aircraft (known as Air Force One) from the Presidential Airlift Group from Joint Base Andrews in suburban Maryland;
One B-2 Spirit aircraft from the 509th Bomb Wing from Whiteman Air Force Base in Missouri;
Two F-22 Raptor aircraft from the 1st Fighter Wing from Joint Base Langley-Eustis in Virginia;
One MH-60J/T Jayhawk helicopter, one MH-65 Dolphin helicopter and one HC-144 Ocean Sentry aircraft from the Coast Guard Atlantic Sector at the Coast Guard Station in Annapolis, Md.; and,
Two M1A2 Abrams Main Battle Tanks and two M2 Bradley Fighting Vehicles from the 3rd Infantry Division, Fort Stewart, Ga.

The ceremonial units included:

The U.S. Guard Fife and Drum Corps, 3rd U.S. Infantry Regiment (The Old Guard) from Joint Base Myer-Henderson Hall in Northern Virginia;
The U.S. Marine Corps Silent Drill Platoon from the Marine Barracks in Washington, D.C.; and,
“Free Country,” the U.S. Marine Corps Band from the Marine Barracks in Washington, D.C.

The Pentagon supplied yearly numbers for similar flyovers done regularly by the services for training purposes. The Army, for example, in 2018 conducted 44 flyovers, the Marines 22, and the Air Force 660 flyovers, including 130 static, aerial demonstrations and flyovers to support air shows.

Costs of those past training exercises were reported at $35 million for flights by Air Force Thunderbirds. For the Navy during regional fleet weeks from 2017 to 2019, the costs came in at $1.8 million for San Francisco Fleet Week; $1.6 million for Los Angeles Fleet Week; $1.3 million for New York’s Fleet Week ($2.5 million if fuel is counted); $1 million for the Seattle Fleet Week; and $1 million for the Portland Fleet Week.

For the Navy’s Blue Angels, the total cost of 47 flyovers during that period was $36 million.

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Pentagon Parts Supplier Falls Under Watchdog's Scrutiny Again

Charles S. Clark — Tue, 09 Jul 2019 15:38:10 -0400

A large corporate supplier to the Pentagon whose pricing practices have already prompted controversy is again being investigated by the Defense Department’s Office of Inspector General.

Cleveland-based TransDigm, a diversified provider of aircraft and related parts, became the subject of a tension-filled House hearing in May after an IG investigation of 113 of its Defense Department contracts from January 2015-2017 affecting 47 parts coordinated by the Defense Logistics Agency calculated that the company overcharged Uncle Sam by $16.1 million on a total of $29.7 million.

The executives later agreed to reimburse the Pentagon, but lawmakers and critics of defense spending continued to portray TransDigm as a poster child for Defense waste.

On Monday, Glenn Fine, the principal deputy Defense inspector general serving as acting IG, informed Pentagon acquisition brass and service inspectors general that: “We plan to begin the subject audit in July 2019. We are conducting this audit in response to a congressional request. Our objective is to determine whether TransDigm Group Inc.’s business model affects the DoD’s ability to pay fair and reasonable prices for spare parts. We will consider suggestions from management on additional or revised objectives.”

That move drew praise from Sen. Chuck Grassley, R-Iowa, who had long followed the drama as part of his agenda for reducing waste, fraud and abuse.

“As the old saying goes, where there’s smoke, there’s fire,” Grassley said in a Monday statement. “And there’s a lot of smoke coming from TransDigm. I’m glad to see the DoD IG is re-opening its investigation into this company to root out any additional waste, fraud and abuse that squanders taxpayer dollars and shortchanges our men and women in uniform.”

Grassley has also asked the Defense Department for broader information on how pricing agreements are arrived at, including Defense’s ongoing effort to acquire more cost data from contractors suspected of gouging.

TransDigm did not respond to Government Executive inquiries on Tuesday. The company’s second-quarter earnings report released in May showed net sales of $1.2 billion, up 28.2% from $933.1 million.

“Our highly consistent business model, continues to create significant intrinsic value for our shareholders,” said its annual report for fiscal 2018. “Since our IPO in 2006, total enterprise value has grown at a compound annual rate of more than 30%. Steady growth in passenger traffic, our strong position on diverse and growing platforms, and significant opportunities to complete accretive acquisitions give us confidence that we can continue our onward and upward trajectory of profitable performance.”

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NSA Still Grappling With Controls to Guard Against Surveillance Abuse

Charles S. Clark — Mon, 08 Jul 2019 14:55:14 -0400

The National Security Agency is behind on implementing internal data system controls aimed at assuring compliance with the domestic privacy protections in the Foreign Intelligence Surveillance Act, a watchdog found.

The NSA inspector general's office, in an unclassified version of its semiannual report released on Monday, summarized its study of the agency's system controls related to the law’s controversial Section 702, which allows counterterrorism programs to target certain non-U.S. individuals overseas under regulated conditions.

The IG “found that NSA did not have a necessary system control,” said the July 8 report covering October 2018 through March 2019. “The agency had previously identified this as a concern and has been working to implement a new system control. Until this system control is implemented, the agency will be at risk for performing queries that do not comply with” its authority under Section 702, which was the since-amended area of the law that former contractor Edward Snowden criticized in 2013 when he leaked highly classified information on NSA surveillance.

Though the original goal for implementing the new controls was December 2017, the NSA now plans to have a prototype ready by December 2020, the IG said.

The watchdog also criticized NSA’s data system security plans, which “are often inaccurate and/or incomplete,” the report said, citing data centers and equipment rooms not properly protected with two-person access controls and removable media that “are not properly scanned for viruses.” An eight-year-old effort to better monitor the authorization of software and hardware purchases by contractors still needs finalization, auditors found.

The inspector general “also found that some aspects of NSA programs it examined were working well, and it recognized a number of best practices that could be replicated across the agency,” the report said. The agency closed 69 out of 198 new recommendations to management during the six-month period, and closed out a total of 438 past outstanding recommendations.

The agency’s investigations division received 457 contacts on its hotline, resulting in 27 investigations and 64 inquiries, as well as 14 cases referred to the Justice Department for criminal prosecution. Disciplinary actions were taken against eight employees during the reporting period, resulting in one employee’s termination and four employees resigning or retiring in lieu of removal. The NSA recouped approximately $53,000 for contractor misconduct and $11,400 for employee timecard fraud.

Examples of uncovered employee misconduct included a GS-15 civilian found to have committed reprisal against a subordinate by threatening to fire the subordinate, who had made three protected disclosures. The investigative findings were forwarded to Defense Department IG, the NSA Employee Relations office, the Office of Personnel Security and the subject’s supervisor.

In another case, a former Senior Executive, “who at the time of the investigation was a reemployed annuitant and employee of a private company, recommended that a Senior Agency Technical Director meet with his private employer,” the report said. “The former Senior Executive recommended his current private employer to the agency as capable of meeting an agency procurement requirement. The OIG substantiated that the employee had used his public office for private gain, a violation of 5 CFR § 2635.702.”

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Intelligence Bill Would Enhance Whistleblower Protections

Charles S. Clark — Mon, 08 Jul 2019 05:00:00 -0400

Among the many items on Congress’s crowded July agenda is floor action on a three-year catch-up on the Intelligence Community authorization bill, a largely bipartisan package drafted in both chambers, with Senate provisions that would enhance protections for whistleblowers.

On June 26, the House Select Intelligence Committee by voice vote cleared its version (H.R. 3494) of what is called the Damon Paul Nelson and Matthew Young Pollard Intelligence Authorization Act (named for two recently deceased congressional staffers), following similar bipartisan approval of S. 1589 by the Senate Intelligence panel in May.

The usual panoply of issues includes requiring the CIA to investigate Russia’s meddling in U.S. elections, codifying a recent reorganization of the security clearance process, enhancing the Intelligence Community inspector general’s oversight through greater consistency and an appeals process, enhancing career path flexibility and benefits for cybersecurity experts and providing paid parental leave for the civilian workforce.

The bills—which combine texts for fiscal 2018, 2019 and 2020—also aim to protect the government’s technology supply chain by creating a task force within the Office of the Director of National Intelligence and improving procurement to defend against intrusion.

Both bills would require an unclassified report identifying those who carried out, ordered or were complicit in the death of U.S.-based Saudi columnist Jamal Khashoggi, who was murdered in Istanbul.

The House version authorizes funding at roughly 1.4% above President Trump’s fiscal 2020 budget request. However, said House Intelligence Committee Chairman Rep. Adam Schiff, D-Calif., “it rejects the administration’s misguided use of Overseas Contingency Operations funding as a budget gimmick to evade existing budget caps put in place on a bipartisan basis by Congress, and it authorizes in the base budget those programs the Administration has explicitly identified as ‘OCO for base.’ ”

The Senate version “is vital for countering the growing threats posed by hostile foreign actors, including Russia, China and Iran, and for strengthening our nation’s election security,” said Senate Chairman Sen. Richard Burr, R-N.C., who filed an accompanying written report on June 11, weeks after his committee’s approval. “It also invests in the future of the Intelligence Community by improving personnel retention and recruitment, ensuring we have the best and brightest working to keep America safe.”

Ranking member Sen. Mark Warner, D-Va., praised its “provisions aimed at deterring foreign influence in our elections, tackling the technological threats from China as the U.S. and other nations move to 5G communications, revamping our outdated security clearance process, and enabling the IC to exchange talent with the private sector.”

At the request of the CIA, the Senate version would expand the definition of “covert agents” to include those unnamed employees who serve domestically (those serving overseas have long had protections for their identities). Some critics worry that the expanded definition would limit the agency’s accountability. “The expanded definition, if enacted, would likely imply increased withholding of historical and other intelligence records under the Freedom of Information Act,” wrote secrecy blogger Steven Aftergood of the Federation of American Scientists.

The whistleblower provisions in the Senate version will be the subject of a House-Senate conference after floor action. “No later than 1 year after the date of the enactment of this act,” the Senate version said, “the inspector general of the Intelligence Community, in consultation with the Intelligence Community Inspectors General Forum, shall complete a feasibility study on establishing a hotline whereby all complaints of whistleblowers relating to the intelligence community are automatically referred to the inspector general of the Intelligence Community.”

Many whistleblower provisions were championed by Sen. Ron Wyden, D-Ore. One would codify an appeals process for those in the IC who disclose verified waste, fraud and abuse. The Senate version would require “harmonization of whistleblower processes and procedures” across the Intel Community to maximize transparency and protections. In addition, the bill would seek to improve oversight, Wyden said, by allowing the IC watchdog to “track whistleblower complaints and ensure that policies are in place that assure that investigations are conducted and whistleblowers are protected from reprisals.” Whistleblowers themselves would gain access to attorneys with security clearances.

Those proposed reforms were welcomed by Dan Meyer, the former whistleblower ombudsman for the Intelligence Community now a law partner with Tully Rinckey in Washington.

The codified appeals process for whistleblowers who faced retaliation “would not have been required of the Congress had the inspectors general of the intelligence community performed their duties under the president’s directive these past five years,” he told Government Executive, recommending that the IC create an administrative entity along the lines of the Merit Systems Protection Board. “The inspectors general have failed in the larger role, they can now be consigned to the lesser fact-finding role with which they feel more comfortable.”

The “harmonization” of the disparate whistleblower procedures,” said Meyer, who was removed from his post in 2018, is needed because “the post-911 intelligence reforms, as shown by intelligence community whistleblowing, is backsliding into the stovepipes and silos that existed prior to 9/11. Congress can now use the IAA to promote the true integration” stressed by previous Director James Clapper.

The Government Accountability Project, which has represented hundreds of whistleblowers, will pay close attention to the floor votes and coming House-Senate conference. “I’d call the whistleblower provisions inside this year's Senate's Intelligence Authorization Act a 'must-pass,’ ” Irvin McCullough, GAP’s national security analyst, told Government Executive. “We’ve consistently seen watchdogs betray the whistleblowers they’re entrusted to protect. These largely technical sections ensure stronger whistleblower protections and greater oversight over the watchdogs who enforce them.”

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Lawmakers Look Into the Costs of Trump's July 4 'Display of Pageantry'

Charles S. Clark — Fri, 05 Jul 2019 12:52:09 -0400

The costs and financing for President Trump’s unusual July 4 “Salute to America” in Washington will be scrutinized by House appropriators and Democratic senators.

Rep. Betty McCollum, D-Minn., chairwoman of the Appropriations Interior Subcommittee, announced on July 3 that she plans a review of the reported decision by Interior Secretary David Bernhardt to divert money from Park Service fees to pay for the special display of fireworks and military prowess Trump directed to be held at the Lincoln Memorial.

“Using National Park entrance fees to pay for this display of pageantry is absolutely outrageous,” McCollum said. “I disagreed with Secretary Bernhardt’s decision to use these fees during the prolonged federal government shutdown–the legality of which the Government Accountability Office is currently reviewing–and I disagree with his decision to use them now. These fees are not a slush fund for this administration to use at will. They are meant to improve our national parks, keep them safe and protected for Americans to enjoy, and are clearly not to be used for a political rally.”

McCollum also complained that her committee was not informed of the plan to use $2.5 million from park fees—which was reported by anonymous sources in The Washington Post, but never confirmed. “The National Mall belongs to all of us," she said. “I’m prepared to use my full oversight authority as chair of the Interior-Environment Appropriations Committee to determine how this decision was made and hold the responsible parties accountable. This administration needs to be reminded that the power of the purse belongs to Congress.”

The lawmaker told Minnesota Public Radio that her review will include a hearing to examine whether funds were diverted from the Park Service’s maintenance budget at a time of a well-known maintenance backlog of nearly $12 billion.

Costs of the Defense Department’s participation, which included flyovers and the transfer of heavyweight tanks to the nation’s capital, were not calculated before the July 4 celebration, a Pentagon spokesman told Government Executive. He said the comptroller will be reaching out to the individual services, and numbers likely won’t be available until the middle of next week.

Scrutiny of the event is also coming from Democrats in the Senate. Sen. Tom Udall, D-N.M., ranking member of the Appropriations Interior Subcommittee, along with Sens. Chris Von Hollen, D-Md., and Patrick Leahy, D-Vt., on June 18 sent a request for details on funding from the Interior Department. The senators have not received a response. “It is unacceptable that the Interior Department is failing to inform Congress about how it plans to spend taxpayer money to fund the president’s lavish July 4^th plans,” the senators said in a July 2 statement.

Theresa Pierno, president and CEO for the nonprofit National Parks Conservation Association, speaking just before the holiday, also expressed frustration at the lack of information on the funding. “Siphoning off desperately needed money from our national parks to pay for a spectacle on our National Mall is both reckless and a breach of the public’s trust,” she said in a statement. “Two and a half million dollars might not seem like a lot to this administration, but to a national park it’s everything. Fee dollars are meant to protect our parks' irreplaceable resources and enhance visitors’ experiences, not fund a presidential stunt.”

Neither the Park Service nor the White House responded to Government Executive queries on Friday after the holiday, a day when many in government are off.

When asked for details on the funding the day before July 4, Mike Litterst, chief of communications for National Mall and Memorial Parks, said, "The Department of the Interior is committed to providing the American people a fantastic celebration of our nation’s birthday. We are doing so consistent with the department’s mission and historical practices.”

Trump himself, on July 3, tweeted, “The cost of our great Salute to America tomorrow will be very little compared to what it is worth. We own the planes, we have the pilots, the airport is right next door (Andrews), all we need is the fuel. We own the tanks and all. Fireworks are donated by two of the greats. Nice!”

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Army Corps of Engineers and GSA Faulted for Costly Contract Changes

Charles S. Clark — Wed, 03 Jul 2019 14:56:27 -0400

With government-commissioned construction projects a perennial source of cost overruns, the Army Corps of Engineers and the General Services Administration could both improve their tracking of change orders given to contractors executing the government’s $36 billion spend for new facilities in fiscal 2018.

That’s the verdict from the Government Accountability Office’s July 2 report, which reviewed data from August 2018 to the present. While the Corps of Engineers “can compile and review construction contract change information on an ad hoc basis, the agency does not conduct regular monitoring at the headquarters level and must manually manipulate data to review this information,” auditors noted. “GSA lacks information on the contract change process and its time frames at the headquarters, regional and local levels.”

The lapses, GAO said, mean that “contracting officials may be unable to spot potential problems—such as long process times that may affect project schedules—as they occur and respond accordingly.”

Agencies are required under the fiscal 2019 National Defense Authorization Act to report information on how quickly they finalize contract changes authorized by contracting officers, who either impose or negotiate them. The contractors, nearly half of them small businesses, have complained about delays in processing change orders, which can alter price and profitability.

According to interviews with private-sector construction managers and testimony before the House Small Business Committee, the report noted, the change process “negatively affects cash flows, increases administrative and legal costs, and creates a risk of not receiving reimbursement for completed work.”

Agencies, for their part, note that preparing cost estimates for negotiations with awardees “can be time-consuming, particularly for complex changes. Yet the time may be used to help ensure the government has adequate cost data to inform negotiation,” the report said. In addition, “miscommunication during the contract change process—which can lead to problems such as unauthorized work undertaken by the contractor—can result in additional reviews and longer time frames.” (The Corps of Engineers says most are finalized within 60 days.)

A centralized data collection process on contract changes “can help agencies understand the scope of any problems encountered,” GAO stated, noting that new legislative requirements give agencies an August 2019 deadline for compiling more-detailed data on contract changes. Neither agency has a modernized strategy for promptly processing and tracking contract changes, which are still calculated and documented manually.

The small business offices within the Army Corps and GSA told auditors they play only a limited role in monitoring construction contract changes.

GAO recommended that GSA’s Public Buildings Service and the Army Corps each develop a strategy to “routinely collect information on and monitor time frames for changes” in construction projects at the headquarters level.

Both agencies agreed.

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Census Will Print 2020 Survey Without Citizenship Question

Charles S. Clark — Tue, 02 Jul 2019 18:19:18 -0400

After two years of controversy and litigation, the Justice Department on Tuesday confirmed that the Trump administration will abandon its effort to add a question on citizenship to the looming 2020 decennial census.

Following last week’s Supreme Court ruling blocking—at least temporarily—the plan as ill-explained, news reports broke that the Justice Department had notified legal challengers of the decision one day after the deadline for launching the printing process that had been set months ago by Census Bureau professionals.

Commerce Secretary Wilbur Ross, in a statement provided to Government Executive, said “I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 Census. The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus, and that of the Bureau and the entire department is to conduct a complete and accurate census.”

Trump officials had justified the addition of the question originally as a tool requested by Justice to aid in enforcing the Voting Rights Act. But critics in the civil rights and statistical community, and many Democratic lawmakers concerned about voter district reapportionment in 2021, blasted the proposal as a way to depress response rates and reduce Latino voter impact, which they assume aids Democrats.

Rep. Elijah Cummings, D-Md., chairman of the Oversight and Reform Committee, immediately issued a statement saying he was “encouraged that administration officials had dropped President Trump’s unconstitutional plan to postpone the Census just because he lost the Supreme Court case. The Trump Administration put our country through more than a year of wasted time and squandered resources—all in the service of an illegal attempt to add a discriminatory question based on a pretext. Now they need to direct all their attention to the nuts and bolts of putting on the Census next year. The Census Bureau has a responsibility under the Constitution to get an accurate count.”

Cummings’ panel is still seeking Census and Justice documents on how the proposal was developed.

Vanita Gupta, president and CEO of The Leadership Conference Education Fund, said, “The people have spoken, the courts have spoken, and finally, the Trump administration has conceded—there will be no 2020 Census citizenship question. This is a victory for all those who fought so hard against this partisan ploy to weaponize the census and rig our democracy. Now we double down on the work to ensure a fair and accurate count.”

Trump himself had tweeted a suggestion that his lawyers find a way to delay the big count, on the grounds that asking whether a respondent is a citizen should be a normal part of the process.

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Trump’s White House Staff Is Smaller and Better Paid Than Obama’s

Charles S. Clark — Tue, 02 Jul 2019 15:21:53 -0400

Controversial counselor to the president Kellyanne Conway makes $183,000 a year, as did recently-departed presidential strategist Mercedes Schlapp and just-departed Press Secretary Sarah Huckabee Sanders, along with 19 other key White House employees.

But acting chief of staff Mick Mulvaney brings home $203,500, according to the annual report to Congress on White House salaries released this week. That’s because Mulvaney, as noted first in the Wall Street Journal, continues as director of the Office of Management and Budget, where salaries (many of them higher than those of White House staff) are set statutorily.

A Government Executive review of the salary roster in comparison with the 2016 version from the Obama administration shows that the President Trump’s White House staff is smaller (418 versus 473 under Obama). But Trump is paying more of his top advisers at the highest rate of $183,000 than Obama’s top counselors, who were paid $176,461. The difference of $6,539, or 3.7%, is greater than the roughly 2% inflation rate over the past three years.

Additional Trump team members who earn the top $183,000 annual salary include national security adviser John Bolton, Assistant to the President for Economic Policy Lawrence Kudlow, Domestic Policy Council director Joseph Grogan, Counsel to the President Pat Cipollone, Assistant to the President for Legislative Affairs Eric Ueland, Assistant to the President for Trade and Manufacturing Policy Peter Navarro, newly installed Press Secretary Stephanie Graham and Senior Advisor for Digital Strategy Dan Scavino.

Under Obama, the 16 top earners at $176,471 included Chief of Staff Denis McDonough, National Security Adviser Susan Rice, Deputy National Security Adviser Ben Rhodes, Press Secretary Josh Earnest, National Security Adviser Susan Rice, National Security Council deputy Lisa Monaco, National Economic Council Director Jeff Zeintz, Special Assistant for Intergovernmental Affairs and Public Engagement Valarie Jarrett, Domestic Policy Adviser Cecelia Munoz, Assistant to the President and Deputy Chief of Staff for Implementation Kristie Canegallo, Director of Political Strategy and Outreach David Simas, and Deputy Assistant to the President and Staff Secretary Joan Walsh.

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Pentagon Advised to Keep Better Tabs on Defense Industry Before Reforming Payments

Charles S. Clark — Mon, 01 Jul 2019 16:06:31 -0400

Defense Department contract managers need to formally update their data on contractor financing and eligibility for performance pay before modernizing policy, the Government Accountability Office said.

“DoD officials acknowledged that DoD has not comprehensively analyzed how its policies affect the defense industry since 1985,” said the June 27 report sent to leaders of Congress’s Appropriations and Armed Services panels. “Industry and economic conditions, however, have since changed, including lower interest rates and the emergence of contractors who do not typically work with DoD.”

Contractor representatives, who worked with GAO auditors on the study, applauded its conclusions, which followed the Pentagon’s withdrawal of a proposed rule floated in August 2018 that would have changed the calculation of incentive payments for contractor performance—on the grounds that it didn’t address contractor profitability.

The legislative and regulatory framework for contractor financing has been reevaluated and altered in recent years with insufficient consideration of the impact on companies in the market, the report said. Changes were aimed at encouraging performance-based payments to contractors and reducing Defense administrative costs, a cited example being the cancellation of a requirement that contracting officers justify a need for contract financing and establish a preference for performance-based payments.

“Without assessing the collective impact of these changes, DoD may be assuming too much financial risk or providing contractors with levels of working capital that are not commensurate with what is needed to help finance long-term projects, and affecting its ability to attract new entrants into the defense market,” GAO said.

Numbers from the Defense Contract Management Agency show that the amount of performance-based payments it administered fell by nearly $20 billion from 2010 to 2016, while the amounts in progress payments (based on the companies’ incurred costs) rose.

Because its study was out of date, “DoD’s supporting analysis did not include an assessment of how the proposed rule would impact the overall profitability of defense contractors (such as assessing the impacts to a contractor’s internal rate of return) or of the profitability of defense work relative to non-defense industry opportunities,” GAO said. “Rather, DoD’s analysis estimated the total financial impact the rule would have on large and small contractors primarily based on interest costs.”

Not only should the Pentagon conduct a new industry study, GAO said, it should be repeated on a regular basis. Otherwise, it will not be “in a position to understand whether current or future contract financing policies are achieving their intended objectives,” auditors said.

Defense agreed on the need for a new “comprehensive assessment” of contact financing and the impact of Defense rules on the industry, wrote Kim Herrington, acting principal director of Defense Pricing and Contracting.

In hailing the study and abandonment of last August’s proposal, Alan Chvotkin, executive vice president and counsel at the Professional Services Council, said on Friday that GAO “validates” the contractors’ position that DoD lacked sufficient data to make “radical changes,” as he called them.

“This comprehensive assessment should not just be an update to the old data,” Chvotkin said. “With the significant changes taking place in the defense market—driven in part by DoD’s own actions—any assessment must take into account the likely characteristics of the defense marketplace over the next decade before proposing any changes to DoD’s contract finance policies.”

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National Archives Needs Better Handle on Agency Electronic Records, Says Watchdog

Charles S. Clark — Mon, 01 Jul 2019 13:46:43 -0400

The government’s full-time archivists need to up their game in performing the 21st-century task of preserving the increasing portion of federal agency records that exist only in electronic form, a watchdog found.

Though the National Archives and Records Administration has made progress in strengthening and modernizing its handling of important agency documents, “permanent electronic records are still at a significant risk of loss and destruction,” according to a June report from the agency’s inspector general.

Noting that “reskilling” and attracting current-day technological talent is high on the Trump administration’s President’s Management Agenda, the IG diagnosed a failure of NARA to identify all the federal agencies subject to the Federal Records Act, adding that “the universe of scheduled electronic records accessioned into NARA holdings has not been adequately identified.”

The archivists’ inability to identify “possible gaps in permanent electronic records schedule accessions,” the report said, can be attributed to “NARA not effectively exercising its oversight authority.” Specifically, the agency authorities responsible for determining what is a permanent record were not promptly entered into the tracking database, offices didn’t communicate with each other, and too many data systems remain “antiquated,” the auditors found.

The agency is “not exercising established controls,” the report added, best practices are “not being codified, and there is inadequate strategic planning for NARA’s inspections of other agencies’ records management systems.

“These deficiencies combined represent a material weakness in electronic records management and will continue to have a negative impact unless improvements are made,” the watchdog warned.

The challenge of knowing precisely how many agencies come under NARA’s purview for fulfilling the statutory mission while executing White House guidance is more complex than meets the eye, the auditors acknowledged.

“It has been widely reported that no federal entity knows how many federal agencies exist,” the report noted. “For example, Forbes reported in July 2017 that FOIA.gov lists 78 independent executive agencies and 174 components of the executive department while the United States Government Manual lists 96 independent executive units and 220 components. USA.gov lists 137 independent executive agencies and 268 units in the Cabinet. In fiscal 2018, The Best Places to Work in the Federal Government ranks a total of 488 agencies and subcomponents and the Federal Register reports there are at least 441 federal agencies.”

Even so, the audit said, NARA should have performed an analysis of the issues involved in creating an authoritative list of agencies subject to the Federal Records Act.

The IG made 10 recommendations, among them creating a complete authoritative list of all active federal agencies (including but not limited to departments, agencies, sub-agencies, and/or components subject to the Federal Records Act); making data entry more timely; and considering reporting the Electronic Records Management deficiencies identified in the audit report as a material weakness under Federal Managers’ Financial Integrity Act.

David Ferriero, archivist of the United States, in a June 11 letter agreed with all 10, and the auditors said they consider the recommendations resolved, with execution underway.

On June 28, Ferriero joined with acting Budget Director Russell Vought in publishing new guidance for agencies for modernizing electronic records retention.

This story has been updated.

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Commerce Officials Silent After Supreme Court Blocks Census Question

Charles S. Clark — Fri, 28 Jun 2019 17:03:30 -0400

On April 1—Census Day—top officials from the Census Bureau assured reporters and the public that they would be ready to print the questionnaire for the 2020 big count with or without the Trump administration’s proposed new citizenship question.

Then came Thursday’s blockbuster Supreme Court decision, in which a 5-4 majority temporarily blocked the proposal and sent the Commerce Department back to the drawing board on finding a rationale for adding the controversial question.

The department had claimed that asking respondents whether they are citizens was justified to help enforce the Voting Rights Act. But critics warned it would cause an undercount among Latinos reluctant to participate and hence a back-door route for Republican reapportionment strategists to lower the count of likely Democratic voters.

While Democratic lawmakers and civil rights groups celebrated their apparent victory, officials and spokespersons at both the Census Bureau and its parent agency, the Commerce Department, declined to release any response on how the decision would affect the already-tight production schedule for printing Census forms.

Nor would the Government Publishing Office’s contractor, Chicago-based RR Donnelley, comment.

To complicate things further, President Trump tweeted on Thursday that he has asked lawyers to delay the census, which is required under the Constitution.

Various interest groups expressed skeptcism that Commerce would have time to come up with a new legal rationale, or that the bureau could rejigger its production schedule without harming the long-planned preparations.

“The Constitution requires a decennial census and the Census Act sets the date of the count as April 1, 2020,” said Howard Fienberg, co-director of the nonprofit coalition called Census Project, on Friday. “The Census Bureau says they must begin printing questionnaires by July 1. If printing is to start on time and as the Census Bureau has contracted, it cannot include a citizenship question.”

Any delay, he added, “would undermine the constitutional mandate for fair and equal representation in Congress, be disruptive to markets, hamper community planning, derail business investment, harm economic projections, and weaken the enforcement of civil rights, housing, voting rights and other laws.”

Dale Ho, director of the Voting Rights Project at the American Civil Liberties Union who argued against adding the question in court, said Thursday in a conference call with reporters that he didn’t think the department and bureau have time to add the question.

“Given how many times they have represented that they need to start printing the forms next week, I think it would be the height of hypocrisy for the administration to try to get more time now,” Ho said, but then added: “I wouldn’t put anything past them.”

Vanita Gupta, president of the Leadership Conference Education Fund, noted that “the Census Bureau has said that they need to print these forms in July and they have already been delayed significantly” because of the court challenges.

John Thompson, the Census Bureau director who retired in June 2017, told Government Executive that while "the bureau has said that they need to start printing next week, any schedule probably has a little bit of slippage that could occur. I don't think they would want to see a lot of slippage, because it will start to cost more money." Added Thompson, who has served as a consultant to some parties in the lawsuits on the citizenship question, "if you compress the timeframe too much, you also risk making mistakes."

Rep. Elijah Cummings, D-Md., chairman of the Oversight and Reform Committee, said the Supreme Court had “eviscerated” as “contrived” Commerce Secretary Wilbur Ross's claim that the Justice Department had asked him to add the question. Ross made statements before Cummings’s committee justifying adding the citizenship question that have since been challenged.

“Some have suggested that Secretary Ross could go back and offer other reasons for adding the citizenship question,” Cummings said in a statement. “However, any claim now that the Trump administration had other reasons for adding the citizenship question would directly contradict Secretary Ross’ sworn testimony that helping the Justice Department enforce the Voting Rights Act was the Administration’s sole purpose.”

Sen. Gary Peters, D-Mich., the ranking member of the Homeland Security and Governmental Affairs Committee who has pushed hikes in Census funding, called the Supreme Court’s decision “a step in the right direction to help keep the 2020 Census on track and ensure that every Michigander gets counted.” He said he would “keep pushing the Commerce Department and the Census Bureau to move forward with conducting an accurate and cost-effective count in 2020.”

He and other Democrats last February introduced a bill, the Census IDEA Act (S. 358), to require that proposed changes to the count be “properly studied, researched and tested” by the Census Bureau before being added to the questionnaire.

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Senate Clears $750 Billion Defense Policy Bill That Reforms the Security Clearance Process

Charles S. Clark — Fri, 28 Jun 2019 13:22:03 -0400

The Senate on Thursday approved a $750 billion version of the fiscal 2020 National Defense Authorization Act, handing uniformed personnel a 3.1% pay raise, streamlining software acquisition and bringing greater accountability to the long-backlogged security clearance process.

Senators of both parties, and a key contractors group applauded the bill, which passed by a vote of 86-8.

“Building upon several years of reform, the NDAA continues to streamline operations—continuing acquisition policy reform, recalibrating contract reform, and strengthening program oversight,” said an Armed Services Committee summary. “A more efficient bureaucracy will better utilize the full value of every taxpayer dollar spent on defense.”

Responding to Trump administration proposals, the bill (S. 1790) also would establish the United States Space Force under the Air Force.

Committee Chairman Sen. Jim Inhofe, R-Okla., said, “Congress has passed this critical legislation for 58 years running, and now, we’re one step closer to doing it for a 59th year. Today’s strong bipartisan vote shows our commitment to our constitutional responsibility to provide for the common defense.”

Ranking Member Sen. Jack Reed, D-R.I., added that the bill “makes critical investments in emerging technologies and a stronger cyber framework. The NDAA also includes needed reforms to help fix and improve on-base housing for military families.”

Sen. Mark Warner, D-Va., hailed the bill’s language to overhaul the security clearance process. “With the inclusion of the Intelligence Authorization Act for fiscal years 2018-2020,” he said, “Congress takes key steps to modernize the nation’s security clearance process by reducing the background investigation inventory and bringing greater accountability to the system.”

Specifically, the bill would provide a statutory plan for consolidating the National Background Investigation Bureau at the Defense Department (already directed by executive order) and implement “practical reforms so that policies and clearance timelines can be designed to reflect modern circumstances,” Warner’s summary said. It would also strengthen oversight of the personnel vetting apparatus by codifying the Director of National Intelligence’s responsibilities as the Security Executive Agent.

Warner’s amendments on background checks won praise from the 400-company Professional Services Council, whose executive vice president and counsel Alan Chvotkin had written to the committee on Wednesday to say, “The wait times associated with obtaining a security clearance hinder the ability of the federal government and the contractor community to recruit and retain talent for high skilled, national security positions. Insights into the status of an application, coupled with the average time required for each phase of the security clearance process, will help employers and potential employees plan accordingly.”

After Thursday’s vote, he released a statement saying the group “is pleased that the Senate continues to prioritize this critical legislation. This year’s bill includes a number of provisions that will enhance our national security, will modify the Defense Department’s procedures to improve acquisition outcomes, and make the department a smarter buyer.”

An example of acquisition reform is the bill’s provisions to adopt and oversee “modern software development and information technology acquisition practices to improve lethality and efficiency,” the bill summary said. It also would establish special pathways for rapid acquisition of software applications and upgrades,” requiring the use of more agile programming.

The contractors group applauded an amendment offered by Budget Committee Chairman Sen. Mike Enzi, R-Wyo., requiring the Government Accountability Office to study the impact and uncertainty that hits the Defense Department and other agencies and industry when Congress resorts to continuing resolutions at the end of a fiscal year rather than passing updated, long-term budgets.

Enzi was also successful in attaching an amendment to require the National Nuclear Security Administration within the Energy Department to implement measures to track its operating costs to identify efficiencies in its intercontinental ballistic program.

Sen. Tom Carper, D-Del., successfully attached two amendments to require the Pentagon to use environmentally safe chemicals in firefighting.

The House version of the NDAA (H.R. 2500) cleared the Armed Services Committee on June 19, with a supplemental report winning approval on Thursday. A floor vote is expected after the July 4 recess. It too contains IT software acquisition modernization provisions, as well as workforce development language that “modernizes the certification process at the department to emphasize professional skills that are transferable across the workforce and industry,” according to a summary.

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Senate Chairman Presses HHS to Do a Better Job of Curbing Medicaid Fraud

Charles S. Clark — Thu, 27 Jun 2019 16:51:18 -0400

A year after his committee released a major report blasting weak controls against improper Medicaid payments, Sen. Ron Johnson, R-Wis., has grown impatient with remedies pursued by the Health and Human Services Department.

In a June 26 letter to Seema Verma, administrator of the Centers for Medicare and Medicaid Services, the chairman of the Homeland Security and Governmental Affairs Committee recapped his staff report’s conclusion that anti-fraud specialists at the joint federal-state Medicaid program are failing to effectively combat improper payments, which have risen by 157 percent since 2013. And he asked for progress on state-by-state audits of payments sent erroneously to undeserving recipients.

“With Medicaid spending now projected to rise at an average annual rate of 5.7% over the next decade, significantly faster than U.S. gross domestic product, it is imperative that CMS utilize every tool at its disposal to minimize waste, fraud and abuse,” Johnson wrote.

CMS announced new initiatives just days after the committee’s scathing report, he continued. The report documented a large spike in Medicaid overpayments to providers and an increasing number of Medicaid fraud criminal convictions. It also showed that CMS had “not taken basic steps to fight Medicaid fraud, including reviewing federal eligibility determinations for accuracy and even creating an antifraud strategy,” Johnson said.

The new CMS steps a year ago included stronger audit functions, enhanced oversight of state contracts with private insurance companies, increased beneficiary eligibility oversight, and stricter enforcement of state compliance with federal rules, Johnson noted. Audits of state programs were to track amounts “spent on clinical services and quality improvement versus administration and profit,” new audits of state beneficiary eligibility determinations, and use of advanced analytics to both improve Medicaid eligibility and payment data for program integrity purposes, he reminded Verma.

Johnson then asked for details, by July 10, such as data on which states have been audited, the status and methodology of the audits, any available results and forms derived from them. He also asked for details on CMS’s new use of “advanced analytics” of data that can flag payments that appear improper.

A CMS spokesperson told Government Executive on Thursday that the agency has “received the chairman’s letter and will respond directly to the committee.”

Verma’s office in the past week has updated its efforts in Program Integrity in a blog and press release. “In 2019, for the first time since 2014, we will be reporting the improper payment rate for people who are improperly enrolled in Medicaid” and the Children’s Health Insurance Program, Verma wrote in a June 25 blogpost discussing the agency’s Payment Error Rate Measurement.

In a June 20 press release, her agency added that it had issued guidance to state Medicaid agencies that “outlines the necessary assurances that states should make to ensure that program resources are reserved for those who meet eligibility requirements.”

On top of the reform efforts launched in 2017, CMS said, the agency is addressing “a nearly $1 billion backlog of impermissible state financial claims, initiating new federal audits of state eligibility determinations and managed care financial reporting, and achieving significant milestones for enhanced state data reporting that support program integrity efforts.

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Vast Majority of Staffers at Agriculture Research Agency Reject Relocation

Charles S. Clark — Thu, 27 Jun 2019 15:04:40 -0400

As predicted by many critics of the Agriculture Department’s planned moves of two research offices out of Washington, a staff tally at the Economic Research Service released on Wednesday showed that as many as four out of five of the 200 employees being reassigned to Kansas City will decline to go.

Local 3403 of the American Federation of Government Employees—which voted last month to unionize amid criticism of Secretary Sonny Perdue’s plan to move two offices closer to “stakeholders”—tabulated the leanings of the employees and released results it said constituted “catastrophic employee attrition.”

“Given the aggressive timeline to move all positions before the end of the current fiscal year, AFGE Local 3403 estimates that 2 out of 3 employees are certain they will decline relocation,” AFGE wrote.

The planned moves of ERS and the department’s National Institute of Food and Agriculture were announced last August as a cost-cutting move that would open up jobs to more graduates of land-grant universities in areas where the cost of living is more affordable. After 136 sites bid to host the two offices, the Kansas City area in Missouri and Kansas was selected.

Perdue announced on June 13 that 250 ERS employees are among the more than 550 USDA research employees scheduled to move to Kansas City on or before Sept. 30. Under his re-assignment list first revealed in March, 76 employees would stay in the nation’s capital.

Many academic and statistical groups opposed the moves as disruptive to the professional community in which Washington has been the hub, and challenged the cost-benefit analysis offered by USDA to justify the moves.

The union’s breakdown of employee plans by ERS divisions shows that the Information Services Division “may experience nearly 100% attrition or no one relocating. The Resource and Rural Economics Division may experience more than 90% attrition, and the Food Economics Division could experiencing 89% attrition,” the tally showed. “The Market and Trade Economics Division and Office of Administrator could expect three out of four employees to decline to relocate.”

Including the 76 ERS employees tapped to remain in Washington, “the attrition across ERS is projected to be 50-60%,” the union wrote. “However, many of those remaining in D.C. also say they are seeking new employment because they are scheduled to be reassigned to a yet-to-be identified new facility within the National Capital Region.” Others said they may go to Kansas City but then seek new employment elsewhere.

“The current and projected attrition will curtail research data products that encompass commodity estimates, agricultural sector forecasts, food and farm economic and statistical indicators for U.S. agriculture, conservation, and food policy and markets,” said Local 3403 Acting Vice President Kevin Hunt.

The union local argued that that the resignations prompted by the move will reduce staff quality to a point where years will go by before rehiring catches up. The move also “threatens congressionally mandated scientific research related to agriculture and food systems and ERS’s standing as a Federal Principal Statistical Agency is put at serious risk,” the union stated. “Evidence suggests that the relocation of these agencies is an attempt to hollow out and dismantle USDA science that helps farmers and protects our food supply.”

Some House Democrats are pursuing language in an appropriations bill that would defund the move, but its fate is unclear.

One ERS employee who spoke on condition of anonymity told Government Executive that “in numerous cases, families are being split by the move with one spouse moving while the other remains in the Washington area for work or family reasons. The short notice has made it impossible for some couples to move together. This is ironic given Perdue’s obsession with ‘one USDA family.’ ” Splitting supervisors from line researchers, this employee added, adds to the difficulties.

No comparable analysis has been conducted for the 350 employees at the NIFA, AFGE’s national office said, “but they are expected to leave at a similar rate.”

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Agencies Meet Small Business Contract Goals

Charles S. Clark — Wed, 26 Jun 2019 16:46:24 -0400

Agencies fulfilling their obligations for awarding contracts to small businesses broke a record with $120 billion in awards in fiscal 2018, the Small Business Administration announced on Tuesday.

Governmentwide for the sixth straight year, agencies met their goal of 25% for qualified small-business procurements, though fell short in the subgroups of women-owned businesses and Historically Underutilized Business Zones, or HUBZones.

The overall government rating was an A, and eight agencies received an A+ on the annual scorecard, SBA said. The $120 billion total marked an increase of $15 billion over last year.

“Through these businesses, we strengthen the economy, and support the American workforce in the process,” said Acting Administrator Chris Pilkerton. “The federal prime and subcontract awarded to small businesses in fiscal 2018 equate to more than one million jobs created. Every contract that gets in the hands of a small business is a win-win for our nation, the entrepreneurs, their employees and the communities they support all across the country.”

In prime contracting among subgroup designated for set-asides, agencies exceeded goals for service-disabled veteran-owned small business and small disadvantaged business, while contract dollar awards rose in all categories, SBA said. But the effort fell short of goals in the categories of women-owned businesses and HUBZones.

In subcontracting, the federal government also exceeded its subcontract goals for awards to small businesses and women-owned small businesses, and awarded more than $79 billion in subcontracts.

As for methodology, SBA explained that while each federal agency is responsible for ensuring the quality of its own contracting data, SBA conducts additional analyses to help agencies identify potential data anomalies.

As a sign that agencies value the scorecard, the Homeland Security Department on Wednesday put out a statement noting that for the 10th year in a row, it earned an A grade: “DHS has been the largest agency to consistently earn a grade of an ‘A’ or higher on SBA’s scorecard,” it said. “This achievement confirms the department’s commitment to working with small businesses to help keep our nation safe.”

Gloria Larkin, president of the contractorTargetGov who is also procurement advisor to American Express on educating women contractors, told Government Executive: “While I celebrate the fact that women-owned businesses received $22.9 billion in prime contract awards, it is still under the five percent goal, at 4.75%. The Women Owned Small Business Program has multiple challenges in reaching that goal,” she added, citing the spotty awareness of the program among some acquisition personnel and contract offerings do not appear in agency solicitations for all industry classification codes.

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Special Counsel Defends Career Staff as Panel Subpoenas Trump Counselor Over Hatch Act Violations

Charles S. Clark — Wed, 26 Jun 2019 15:58:16 -0400

As a House panel voted to subpoena presidential counselor Kellyanne Conway on Wednesday, Special Counsel Henry Kerner defended his and his career staff’s recent decision to call for her firing over Hatch Act violations.

With all but one Republican (Justin Amash, R-Mich.), voting no, the House Oversight and Reform Committee agreed 25-16 to subpoena Conway after she, on instructions from the White House, declined an invitation to testify on OSC’s recent report outlining 12 instances of what investigators deemed improper, election-oriented comments on television and on Twitter while speaking in her official capacity.

“It’s a principle of our precious democracy that no one is above the law,” said Chairman Elijah Cummings, D-Md. The panel’s move is “not a conspiracy to silence her or restrict her First Amendment rights, but an effort to enforce federal law,” he added, faulting Conway’s “outstanding defiance” with presidential approval.

Contrary to President Trump’s comments on why he will not fire her, Cummings said, “It’s not a question of whether she’s a terrific person . . . but whether to obey the law.” He cited past clashes between congressional panels and the White House that he said show that Congress has “never accepted the claim” that White House staff are beyond reach for testimony on their adherence to ethics laws.

Kerner reiterated details from the on-camera statements by Conway, about which his office received numerous complaints. For example, Conway dismissed all the Democratic presidential candidates as “woodchips,” called Sen. Cory Booker, D-N.J., “tinny and sexist” and accused Sen. Elizabeth Warren, D-Mass., of misrepresenting her much-questioned Native American background to get a job. He said he and his office—though they spoke to White House counsel rather than to Conway herself—offered her many opportunities to talk or take training in Hatch Ac compliance. “But the violations only increased, which left us with no choice,” Kerner said.

But Ranking Member Jim Jordan, R-Ohio, called the OSC report and the subpoena idea “outrageous, unprecedented and unfair,” another sign of the Democrats’ “obsession” with taking down Trump. He accused Kerner—whom various Democrats noted was a Republican and a Trump appointee—of acting because “he got his feelings hurt” when the White House ignored the earlier work of his office. Jordan cited Obama administration personnel who also had run-ins with Hatch Act violations—White House political adviser David Axelrod, Chief of Staff John Podesta, Senior Adviser David Plouffe, Labor Secretary Hilda Solis and Press Secretary Josh Earnest.

Jordan accused Kerner of targeting conservatives in the same way, he said, Internal Revenue Service Exempt Organizations official Lois Lerner did back in 2012. (Kerner denied the comparison, noting that as a Senate staffer, he wrote the official report for the Senate Homeland Security Permanent Investigations Subcommittee condemning the IRS’s alleged biases.)

Objecting on more legalistic grounds was Rep. Mark Meadows, R-N.C., who called the subpoena “not necessary, not with the law, and nothing more than a political spectacle. We’re better than this,” he said, borrowing a favorite phrase of Cummings and lamenting the committee’s “downward spiral.”

The Office of Special Counsel doesn’t have the authority to write the guidelines—it’s the Office of Personnel Management, Meadows said. “What authority do have to write the prohibitions about using Twitter?” he asked Kerner, who cited the social media guidelines prepared by his career staff. Meadows asked Kerner to check the U.S. Code of Federal Regulations Title 5 Subpart E, which offers “waivers,” he said, for political appointees.

Kerner insisted that the OSC strives to be “fair and impartial,” acknowledging that he knew coming to the job “there would be hard calls.” But, he said, “the central purpose” of the Hatch Act, passed in 1939, “remains unchanged.” It protects two groups—federal workers, who can’t be co-opted into performing political work, and taxpayers, who deserves “nonpolitical” services from federal employees.

Conway’s actions and the White House resistance to the OSC “send a message that people need not adhere to the Hatch Act and that White House officials are above the law,” Kerner said. “The OSC will continue its distinguished history of enforcing the Hatch Act.”

He also expressed concern that the White House Counsel had responded to his recommendation by demanding documents on how the OSC investigators arrived at their conclusions. “We’re an independent, prosecutorial agency,” Kerner said. “It’s important to preserve our ability to execute oversight over the executive branch.”

Kerner expressed hope that the White House could still work out an agreement for Conway to admit fault and take training, contrasting her behavior with that of the departing press secretary Sarah Huckabee Sanders, who “deftly pivoted away when reporters asked her questions on campaign issues.”

Strikingly, Kerner defended his OSC career staff “as the world’s greatest experts on the Hatch Act.” Civil servants conduct the investigations, he stressed, and “apply the statute in a dispassionate and nonpartisan way. They are consummate professionals, and I’m very proud to represent them today.” He added that their recommendations—even the rare one of calling on the president to fire Conway—“are carefully calibrated.” He noted, for example, that President Obama’s Health and Human Services Secretary Kathleen Sebelius, after twice being called out for Hatch Act violations, reimbursed the government for the costs of a trip that turned political, and that some conservatives at the time called for her removal.

The career staff had told him, Kerner testified, that a recommendation for firing would “likely” be the conclusion if Conway’s behavior had been seen in an average federal employee. “We treat the well-connected just as we do the little guy,” he said. “We’re not going to have at two-tier Hatch Act system.”

Rep. Stephen Lynch, D-Mass., cited recent instances in which two postal workers—one pro-Trump and one pro-Hillary Clinton—were cited for Hatch Act violations in the workplace. The subpoena for Conway “is not even a close call,” he said. “We asked her to come in and she didn’t come. So either we change the law or abide by it.”

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Trump Withdraws Nominee to Lead Publishing Office

Charles S. Clark — Tue, 25 Jun 2019 12:11:23 -0400

The White House on Tuesday announced the withdrawal of its nominee to be director of the Government Publishing Office, a year after his initial nomination, and six months after news reports of alleged mismanagement at the agency.

No explanation was given for the cancelled nomination, first filed in June 2018 and renewed in January 2019 for the new Congress. GPO posted a press release, but would not comment further on reasons for the change.

Robert Tapella was formerly the public printer and more recently was an oversight professional staff member on the House Administration Committee. Staff on the panel said he no longer works there.

GPO is currently being run on an acting basis by John Crawford, acting deputy director and managing director of plant operations. There are three other acting leaders among GPO’s top 17 slots.

Former Director Davita Vance-Cooks left in November 2017 and went to work for Grant Thornton LLP, and acting deputy director Herbert Jackson retired in March. Both were subject to investigations by the inspector general for alleged misuse of funds and hiring procedures.

Tapella, while awaiting confirmation, had told the GPO inspector general last fall that he would cooperate with any probes.

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State Department Faulted for Redoing Web Page Aimed at Helping Refugees

Charles S. Clark — Mon, 24 Jun 2019 13:34:23 -0400

The Trump administration, in pursuit of policies to reduce immigration and the numbers of asylum seekers, has removed or repackaged materials designed by previous administrations to help refugees, according to a new study by a transparency group.

Two “Frequently Asked Question” fact sheets, one written on the final day of the Obama administration and a second in 2018, are now gone from the State Department’s website, as revealed by the Sunshine Foundation’s Web Integrity Project.

The documented changes affected the online presentation of the U.S. Refugee Admissions Program, an interagency effort managed by State’s Bureau of Population, Refugees and Migration that was suspended for 120 days beginning in June 2017, and later restored with tightened screening.

The details of the missing FAQs are being published first by Government Executive as part of a series by the nonprofit monitoring policy-based changes or removals of material on agency websites executed often without public notice.

They come as the number of world refugees admitted to the United States under Trump’s reduced-quota policy fell from 53,716 under the program in fiscal 2017, to 22,491 in fiscal 2018, the Web Integrity Project reported.

The FAQs, the concept for which date back at least to the George W. Bush administration, “were presented in a way that avoided politicized language and legalese, and appeared to be intended for broad public consumption,” the researchers said. And “although not online for long, the FAQs were widely cited in academic literature and used as a key authority in many of the amicus curiae briefs filed in opposition to Trump's immigration” executive orders in 2017.

The tone in the removed fact sheets was more philosophical and celebratory than the Trump administration’s more sober declarative language describing the refugee programs. “Every year, the United States provides opportunities to thousands of the world's most vulnerable refugees to resettle in the U.S., in a program endorsed by each president annually since 1980 through a Presidential Determination and notification to Congress,” said the version published on the last day of the Obama administration. “The U.S. Refugee Admissions Program is in keeping with our proud history of being a nation of immigrants and refugees, and is an important, enduring demonstration of our commitment to international humanitarian principles. The United States is the largest refugee resettlement country in the world, admitting approximately two-thirds of all refugee resettlement referrals worldwide each year.”

The 2017 version, removed sometime between December 2017 and January 2018, also contained “more content than previous years, with additional detail about security screening, the cost of the program, and the rarity of resettlement from the country of first refuge,” the Web Integrity Project noted. It also “appears to be written for Americans, which is a different audience than previous versions, which appeared to be aimed at potential applicants.”

The 2018 fact sheet, retrieved through searches on the Internet “Wayback Machine,” was online perhaps for just four or five months, disappearing sometime in May or June 2018. But a Google search showed it was cited in peer-reviewed and law review articles about policy, medical care for refugees and family-professional partnerships, the study said. (A current search on State’s website links to a general notice about website modernization.)

Asked for comment, a State Department spokesperson told Government Executive, “In April 2019, the Department of State updated its website. As part of this broader effort,” the population bureau redesigned its pages “to update and better organize the information.” The information on the refugee program is now available on another page via links under the tab “Discover More,” the official said. “The substantive information we provide is like that of past fact sheets, including information about eligibility criteria, ways to access the program, family member travel, the steps of the process, and domestic resettlement.”

In addition, the official said, interested readers can consult State’s annual Report to Congress on Proposed Refugee Admissions.

Web Integrity Project Director Sarah John responded by saying, "Those materials are not nearly as expansive as the removed factsheets and were added a year after the factsheets were removed. Furthermore, the State Department has not established redirects from the widely cited factsheet URLs to the 'replacement' content, meaning that academic literature and court filings are littered with dead links."

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