How ‘NGOization’ Inhibits Movement-Building and Disempowers the Grassroots

An excerpt from a highly-relevant article at popularresistance.org:

A political culture of participation, collective decision-making and debate is all but missing. Decisions are made in offices and boardrooms, where professionalized staff preside over donors, petition signers and the occasional volunteer rather than a mobilized or empowered membership.

It wasn’t always like this. We don’t need to idealize the past to realize that there has been a concerted push to make what under other circumstance would be movement organizations into centrally-controlled bodies run by trained professionals. Exceptions to this trend are forever popping up: the environmental movement in the 1970s, the antiglobalization movement of the late 1990s, and most recently Occupy Wall Street are a few of the more prominent examples. But none of these exceptions has put an end to the process of bureaucratization and centralization. In fact, the process seems to accelerate when powerful grassroots movements enter onto the scene.

This process has been dubbed NGOization (after the increasingly-ubiquitous form, the Non-Governmental Organization, or NGO). While NGOization has been going on for decades, the concept is just starting to gain in currency beyond a few academics and grassroots organizers.

NGOization, write Dip Kapoor and Aziz Choudry in their edited collection by the same name, is a process of “professionalization and depolitization” which fragments and compartmentalizes the world into “issues and projects.” It works well, they add, “for neoliberal regimes.”

What NGOization precludes and inhibits is movement-building. Centralized control allows for an efficient mobilization of existing capacity, but it doesn’t provide the opportunities for masses of people to have new experiences, build their own ideas, do their own research, or start their own initiatives. It doesn’t provide the possibility of large numbers of people to decide, together, where to focus their energies or when to divide them.

The driving force behind the process of NGOization is not mysterious. Billions of dollars have been provided to Canadian NGOs to provide social services, dig wells in villages in African villages, support marginalized populations, campaign for environmental protection, and alleviate the effects of poverty. The money comes from government (the federal government spends close to a billion dollars per year on development NGOs alone) and private foundations (millions of tax-deductible dollars are spent annually to support environmental campaigns, for example).

But what do foundations and governments get for their money?

Chill effect

The wide variety of NGOs serves to confuse things. Depending on how one counts, there are hundreds or thousands of grant-dependent mission-oriented organizations in Canada. Many who work in NGOs insist that it is futile to make generalizations. There exist an undeniable plethora of NGOs. All of them, however, depend on a comparatively small pool of funders.

Each NGO is a snowflake, and the overall effect is chilling. While NGOs may have unique cultures and approaches, the agencies and foundations (hereafter: funders) that fuel them share a number of common characteristics. Almost all funders prefer solutions that don’t question prevailing neoliberal policies or capitalism. When they tolerate questioning, effective mobilizing is strictly forbidden. Funders demand centralized control and accountability in the form of regular and extensive reporting, and often direct oversight. Funders avoid grassroots organizing that directly empowers people whenever possible, prefering structures that provide tight, centralized control.

Democratic accountability to a membership is actually a liability for the funded organization, because it distracts them from adapting to funder priorities. That’s part of what makes the first few paragraphs of this article seem so absurd.

How, then, do movements end up in this situation? No one, after all, wants to give up all their power and autonomy. No one intends to sell out.

Every step of the NGOization process is understandable. Anyone who has spent an hour or three discussing a poster design or slogan can see the advantage of clearly defined leadership. Anyone who has attended a grassroots organizing meeting where key tasks didn’t get done can see the advantages of professional, paid staff. And anyone who has tried to take on a major corporation or government with a few hundred dollars in their bank account knows that decent funding can be invaluable.

While activists are often in emergency response mode, funders play the long game. From the perspective of the funder, here’s how you get the process of NGOization going:

1. Set up a large pool of money, perhaps in collaboration with other foundations or governments.
2. Fund a number of organizations to undertake a variety of activities within a large umbrella. Be supportive at first, and fund existing organizations to do what they were already doing.
3. Give them a little time to get comfortable with the funding.
4. Over time, require an increasing volume of paperwork: grant applications and reporting. This increases the amount of time that the staff spend thinking about your priorities to the exclusion of those of their membership or constituency. You can say that this is necessary to ensure that the money is well spent, and talk about wanting to be as effective as possible.
5. Once staff members are accustomed to their new salaries, announce that there’s less money than was forseen. Have them compete with other organizations for your funding. Gradually introduce new priorities for the grants you provide that they would not have accepted before, but aren’t willing to sacrifice their jobs or organization to oppose.
6. Take it slow and steady. Let them raise a fuss about new constraints and requirements while pruning out those who are intransigent or principled. You’ll rarely have to do any direct disciplining. If someone steps out of line, their peers will realize that they are endangering the funding and marginalize their troublesome colleague to the extent needed for the funding to flow.
7. You don’t have to tell anyone about your overall goals, because it’s literally their job to guess what they are, and wonder what you might want. Drop cryptic hints and point to organizations that are doing “exciting” or “effective” work as models.
8. If you decide that a certain group is actually subversive to your aims, simply defund them. Other organizations will be suitably scared, and happily step in to take on tasks for any funding that might have been freed up.
9. Accountability to goals other than those set you set have become a liability to the organizations you fund. Many of them have all but cut themselves off from their member base, if they ever had one.

Read the complete article here.

Programming Note

view from sandia mountains

View from Sandia Mountains, Albuquerque, New Mexico (Copyright David Pardo)

Barring any developments of site features or newsworthy events, MSPB Watch will go on hiatus for a few weeks while management relocates to the great state of New Mexico. After regular posting resumes, readers can expect Litigation Tips, investigative reports, contextual research, and more. Stay tuned.

2

MSPB’s ‘Bad Faith’, ‘Deceit’ Come Into Focus with Federal Circuit Filing

The following is an opposition to the MSPB’s motion to reissue O’Donnell v. MSPB as a precedential decision by Thomas Daniels, a petitioner in the Ninth Circuit who is challenging the same case at issue in O’Donnell. 

Mr. Daniels rightly shines a light at the Board’s less-than-honorable litigation tactics. What’s coming into focus with this litigation, and the manner in which the Board and other entities regard the law, is that this sector is brittle and incapable of brooking dissent and criticism.

It’s a fiction that past administrations and other people are to blame for the poor quality of justice – the same games, manipulations, and deceits are present here, leading to another cycle where whistleblower protections are gutted with impunity, and this is while two former union officials are board members and a pro-employee lawyer is the Board’s executive director! Not to mention the silence and complicity of the drafters of the WPEA while the law is being co-opted and twisted before our very eyes. Where are the adults around here? How many meritorious cases have to be sacrificed to mend the bruised and easily-threatened egos of those who can’t wield power responsibly?

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RelatedCoverage of O’Donnell v. USDA and Daniels v. SSA

2

MSPB Asks to Make a Dubious Court Decision Precedential

The Merit Systems Protection Board filed a motion today in O’Donnell v. MSPB, before the U.S. Court of Appeals for the Federal Circuit, asking that court to make its decision precedential.

To recap, O’Donnell ruled that Congress, in passing the Whistleblower Protection Enhancement Act of 2012, did not overrule Meuwissen v. Dep’t of Interior, a 2000 Federal Circuit case, in its entirety, and that Meuwissen’s holding that disclosures about erroneous or illegal administrative judges’ decisions are not protected by the Whistleblower Protection Act.

The problem with O’Donnell is that it did not address a long line of Supreme Court cases that determine how to interpret congressional silence. In this case Congress spoke disapprovingly about one notorious aspect of Meuwissen but not another - so what to do with this selectivity? In my amicus I noted that Meuwissen’s “minor holding”–having to do with adjudicative decisions–was not known to Congress because it was only cited twice, in passing, in the dozen years since Meuwissen was issued. And the Supreme Court’s jurisprudence suggests that much more than this is required for Congress’ silence to be meaningful.

Finally, it’s also worth recalling the following facts about this saga:

-First, neither Mr. O’Donnell nor his employing agency, the U.S Department of Agriculture, raised Meuwissen in their pleadings. The Board raised it sua sponte, and in so doing it deprived itself of the benefit of competing arguments. When the issue reached the Federal Circuit, it wasn’t thoroughly briefed, resulting in that court issuing its decision without anyone discussing the Supreme Court cases. Recall that Mr. O’Donnell was a pro se appellant. I weighed in with an amicus brief, but I had no right to weigh in beyond that.

-Second, the court disposed of the issue with a one-line sentence:

The legislature’s only objection to the holding in Meuwissen was the idea that “disclosures of information already known are not protected.”

Now the Board is attempting to pass this off as a “clear statement” and “clear guidance” on the issue:

Despite the Court’s clear statements on the issue in this case, it remains possible that appellants before MSPB administrative judges, and the Board itself, will continue to argue that the WPEA overruled Meuwissen in its entirety, just as petitioner argued here.

By making the opinion in this case precedential, the Court would provide clear guidance to all parties that the V/PEA only partially reversed the Court’s holding in Meuwissen and that disclosures of general philosophical or policy disagreements with agency decisions or actions did not acquire protection with the passage of the WPEA in 2012.

Of course “it remains possible” that appellants will continue to challenge Meuwissen/O’Donnell. These are not legitimate decisions when they flout the rule of law as determined by the Supreme Court!

Keep this in mind: the Board is doing everything it can, in the light of day no less, to entrench this decision and cloak it under the guise of law rather than have to address the possibility that, sometimes, its administrative judges violate the letter if not the spirit of the law with their decisions. This is about protectionism, not the rule of law.

The bottom line: Is this the type of decision that is appropriate as precedent? Is it appropriate for the Board to push through an agenda it raised on its own, exploit the limitations of that particular litigation, and then trumpet the decision as one worthy of replication in the future? Was the right result reached here?

A follow-up question: why is the Board so intent on preserving its options to invoke Meuwissen/O’Donnell in the future? Where else might it wish to apply–or expand the scope of–Meuwissen/O’Donnell? And is this not the same cycle of the WPA being eroded repeating itself, necessitating future admonishments by Congress?

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RelatedCoverage of O’Donnell v. USDA and Daniels v. SSA

5

Contracting Officer’s Once-Bright Career Sidelined after Raising Questions at the FBI

US-FBI-ShadedSeal.svgDarin Jones of Bethesda, Maryland, is struggling to have his whistleblower case heard on the merits, but a loophole in the FBI’s regulations may prevent that from ever happening.

His case raises questions of fairness at a time when the scope of whistleblower protections in the intelligence community are coming under scrutiny at the highest levels of government. Although at first glance Jones’ case resembles that of any contracting officer in any civilian agency, the lack of due process rights—and a possible untimely change in the law—may cost him his day in court.

Jones, 42, married, a former Navy officer, licensed engineer, trained lawyer, and now father-to-be, was a four-year rising star at the General Services Administration when he was recruited by the FBI’s Facilities Contracts Unit in August 2011.

The offer: a GS-15 unit chief and supervisory contract specialist position, in charge of 22 employees and contractors and all of FCU contracting functions (building, maintaining, or renovating FBI facilities).

In spring 2012, less than a year into the job, Jones disclosed to numerous supervisors that a high-level FBI official improperly took a position with an IT contractor that won a $40 million no-bid contract—when the official was allegedly involved with overseeing the solicitation, according to documents filed with the FBI.

Jones later expressed concerns about a departmental award ceremony, held in September 2012 in downtown Washington, for which the Bureau paid $300,000 partly to transport overseas agents and their families. This was shortly after GSA officials came under fire for spending $822,000 for a conference in Las Vegas.

These allegations caught the attention of Senator Claire McCaskill (D-Mo.), prompting her office to send a letter of inquiry to the Justice Department’s Office of Inspector General, which is now looking into the matter.

During Jones’ time with the FBI, two individuals who apparently raised questions about FBI procurement operations were reassigned or transferred out, including the supervisor who hired him, Jones said.

Jones told this author that after he raised concerns with his supervisor’s replacement, the latter warned him that unless he wanted what happened to the recruiting supervisor to happen to him, he better not follow up on any of his disclosures. Further, because Jones was a probationary employee, he could be fired with ease.

And that’s just what happened: he was let go just before completing a year with the Bureau.

After filing and exhausting a complaint for whistleblower reprisal with the Inspector General, Jones appealed to the DOJ’s Office of Attorney Recruitment and Management (OARM). OARM resembles an administrative court, but the proceedings are not open to the public and case decisions are not published anywhere.

Further, although OARM looks to the body of civil service case law developed by the U.S. Merit Systems Protection Board and the U.S. Court of Appeals for the Federal Circuit, it is not bound by it, according to an FBI filing.

OARM dismissed Jones’ complaint in December 2013, ruling that it lacked jurisdiction because he did not make his disclosures high enough up the chain of command. Jones appealed the complaint to David Margolis, the Justice Department’s Deputy Attorney General, where the complaint currently resides. There are no further appeal rights.

Among the officials who received Jones’ disclosures were his supervisors, financial officers, a procurement section chief, a supervisory attorney in the general counsel’s office, and a compliance official.

Under the current version of FBI’s whistleblower protection regulations, found at 28 C.F.R. 27, whistleblower disclosures are protected if made to entities as low in the chain of command as the ranking official in an FBI field office, the FBI Deputy Director, the DOJ Deputy Attorney General, or several inspector general-type offices.

Jones did not reach this high, in part because of lack of familiarity with the FBI’s whistleblower provisions—a sentiment apparently shared by his former colleagues, he said.

Jones also said FBI officials told him not to proceed further with his whistleblowing.

In a 2001 case, OARM apparently exercised discretion to extend protection to a disclosure made to an official not listed in 28 C.F.R. 27.1 when the disclosure was intended to be forwarded to the appropriate officials. And in 1997, the regulations came into existence at President Clinton’s direction, following a long and successful legal campaign waged by FBI whistleblower Dr. Frederic Whitehurst. The regulations’ non-existence at the time of Dr. Whitehurst’s disclosures in the early ‘90s did not prevent him from securing a $1 million settlement for his mistreatment.

Jones argues the 2001 precedent should be applied here, meriting the DOJ’s extension of jurisdiction over his disclosures, especially in light of his supervisors’ efforts to silence him.

Otherwise, his case might fall victim to a belated change in the law.

In October 2012, President Obama signed Presidential Policy Directive 19, which, for the first time, calls for most intelligence community agencies to provide regulatory protections for whistleblowing employees, and for the Attorney General to assess the efficacy of the FBI’s whistleblower protections by April 2013.

PPD-19 defines a protected disclosure as “a disclosure of information by the employee to a supervisor in the employee’s direct chain of command up to and including the head of the employing agency.”

Under the directive, therefore, employees at the NSA or CIA could soon make the same disclosures to the same group of employees that Jones approached but be protected—unless Deputy AG Margolis exercises a measure of discretion and applies jurisdiction in Jones’ case.

As it stands, OARM receives only a handful of cases each year, if the docket number in his case — 13-4 — is any indication.

3

Was a Former MSPB Chair Reassigned from Her Federal Job in Retaliation for Whistleblowing?

So says Tom Devine, Legal Director of the Government Accountability Project, speaking before a Senate committee hearing regarding Elizabeth Slavet, former Chair of the Merit Systems Protection Board (2000-’03) and recently the director of the Whistleblower Protection Program at the Department of Labor:

It also is difficult not to be concerned that OSHA reassigned the DWPP Director, Elizabeth Slavet, shortly after she began implementing plans for a more independent audit. Ms. Slavet is a nationally-recognized whistleblower expert, previously having served as the highly-respected Chair of the U.S. Merit Systems Protection Board adjudicating the Whistleblower Protection Act for federal workers. Many of the reforms credited above occurred under her leadership at DWPP. After her abrupt removal, it is essential that OSHA takes steps to – 1) assure there is no violation of Ms. Slavet’s own whistleblower rights; 2) select a successor whose credibility and expertise also are beyond dispute; and 3) add independent audit enforcement teeth to his announced reforms.

Link to Testimony Statement, April 29, 2014

MSPB Issues Powerful Special Study on Struggle for LGBT Rights in the Civil Service

The Merit Systems Protection Board’s Office of Policy and Evaluation, under the direction of James M. Read, issued a powerful and moving account of the history of discrimination in the federal civil service on the basis of sexual orientation. Here is one such excerpt:

The Subcommittee on Investigations determined that “homosexuals and other sex perverts were not proper persons to be employed in Government for two reasons—first, they [were] generally unsuitable, and second, they constitute[d] security risks.”20 Much rhetoric revolved around the security risk it was believed that homosexuals posed to the Government. Experts testified before Congress that “moral perverts” were bad security risks because they were susceptible to blackmail due to the threat of exposure of their moral weakness.21 Even absent security issues, the subcommittee report indicated it believed that homosexuals were inherently unsuitable for Federal employment.

Some questioned whether homosexuals alone deserved this intense focus, given that many people could be deemed unsuitable for Federal service based either on security or general concerns. In a series of New York Post articles in July 1950, the Senate Minority Leader examined this topic. When told that some observers would consider promiscuous heterosexuals security risks, or that reckless gamblers or alcoholics might be entangled by blackmail, the Senator responded, “You can stretch the security risk further if you want to, but right now I want to start with the homosexuals. When we get through with them, then we’ll see what comes next.”26

There are few reliable figures regarding the number of employees dismissed from, or applicants denied entry to, Federal employment due to their homosexuality beyond those presented in this chapter. One estimate places the number of real or suspected homosexuals who lost their civil service jobs in the 1950’s between 7,000 and 10,000.80 It is unlikely that we will ever know how many people were affected by these policies.81 In Society for Individual Rights, Inc., the [U.S. Civil Service Commission] was asked to disclose the number of persons who had been discharged annually from the Federal service solely on the grounds of homosexual conduct. The CSC declined to provide that number, claiming that the request was “burdensome and oppressive.” The Court interpreted this response to mean that the number of persons discharged on this basis per year was so large that it would be burdensome and oppressive to count them in order to answer what the Court believed to be a proper interrogatory.82

The turnabout in government policy began in the 1970′s and was formalized in OPM’s interpretation of the Civil Service Reform Act of 1978:

After passage of the CSRA and the enumeration of the PPPs, OPM Director Alan K. Campbell issued a memorandum which affirmed that Federal employees were prohibited from discriminating based on conduct that did not adversely affect job performance. That 1980 memorandum stated that Federal employees or applicants for employment were protected from actions based on or inquiries into matters such as religious, community, or social affiliations or sexual orientation.97 The tenth PPP and OPM’s interpretation of that PPP to bar sexual orientation discrimination rejected the Subcommittee on Investigations’ earlier conclusion that it was a “false premise that what a Government employee did outside of the office on his own time, particularly if his actions did not involve his fellow employees or his work, was his own business.”9

As well as the Justice Department:

An early example of an agency arriving at a similar conclusion for its internal operations occurred at the U.S. Department of Justice in March 1983. At that time, the Assistant Attorney General for Legal Counsel issued a memorandum opinion stating that an Assistant United States Attorney (AUSA) “may not be terminated solely on the basis of his homosexuality, in the absence of a reasonable showing that his homosexuality has adversely affected his job performance.”99 The opinion noted that the authority to remove the AUSA was limited, in part, by the tenth PPP,100 and that it was doubtful that a nexus could be demonstrated between the AUSA’s homosexuality and his job performance because the AUSA had consistently received superior performance ratings.101

Read the entire report here.

It bears mentioning that this report includes what appears to be a new disclaimer, perhaps in response to this author’s persistent calls for the Board to be more aggressive in its reporting on the health of the civil service. This move is a step in that direction.

Special Studies Disclaimer

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OSC Clarifies Stance Following MSPB Rulemaking Comment

In a rulemaking initiative before the Merit Systems Protection Board this week, the U.S. Office of Special Counsel filed a comment that I found peculiar, prompting me to reach out to its communications department. I’m copying the exchange between OSC and me, as it speaks for itself.

Here is my inquiry from earlier in the week:

[Salutation]

I noticed something peculiar about OSC’s comment to MSPB’s latest rulemaking initiative (found at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1027539&version=1031542&application=ACROBAT):

“In no case should the Board require IRA appellants to submit correspondence from OSC or other information that reflects OSC’s investigative processes or the basis for OSC’s discretionary decision to terminate an investigation at the complaints examination stage.”

Could you tell me what’s driving this suggestion/request, especially since it’s not exactly germane to the rulemaking at issue?

Also, isn’t there a disconnect between “investigative processes” and disposition of complaints at the complaints examination stage, given that the latter does not ordinarily (to my knowledge) entail “investigation” per se but analysis of the law and application of the facts to OSC’s determination of the law, based solely on the submitted complaint?

The disconnect is less so with regards to “the basis for OSC’s discretionary decision to terminate an investigation,” but why should such bases be precluded from submission to the Board (and therefore be taken outside of the reach of FOIA), even if the Special Counsel’s discretion is not subject to judicial review?

Currently, the only document that may be withheld from submission by appellants is the final closure letter, per 5 USC 1214(a)(2). Preliminary determination letters–and comments thereto–(5 USC 1214(a)(1)(D)) are certainly discoverable, as are all other communications with OSC examiners and investigators (same goes for OSC-agency communications) [Ed: later clarified to exclude ADR-related communications]. These documents may reflect investigatory processes or bases for termination (especially the preliminary determination letter).

Is it OSC’s intent or request for the Board to initiate rulemaking to shield these communications from discovery or responses to jurisdictional challenges during an IRA? If so, what is the statutory basis for this, given that Congress distinguished one type of document from another in 5 USC 1214(a)?

Lastly, would the Special Counsel concede that there is a public interest in making sure OSC abides by the law when closing complaints, notwithstanding her unreviewable discretion, and that shielding OSC’s investigative or complaints closure processes runs the risk of obscuring potential misapplication of the law by OSC? If so, would the Special Counsel be willing to take credible steps to assuage such concerns?

Here is OSC’s official response:

OSC’s comments seek to ensure that the MSPB is accessible to IRA appellants. Appellants should not be required to provide more than the complaint they filed with OSC to have their cases heard by the Board.

OSC views the administrative exhaustion requirement as an ordinary procedural claim-processing rule. The purpose of the exhaustion requirement is simply to give OSC the first opportunity to investigate prohibited personnel practices and, hopefully, resolve them. If we decide not to pursue a case or if we take 120 days or longer, the law allows complainants to pursue IRA appeals. Information from the OSC file is not needed to meet these requirements.

A recent case, Clarke v. Department of Veterans Affairs, added to these requirements [Ed: added link.]

Our comment letter does not address FOIA. OSC does not intend to request any rulemaking from the MSPB on shielding its communications. Oversight by Congress and other entities ensures that OSC is applying the law as Congress intended.

As I later informed OSC, its letter indeed did not address FOIA–that was my interpretation of the logical consequence of what it suggested: to potentially request that MSPB bar the submission of Appellant-OSC communications that might reveal its investigatory processes. I also (respectfully) informed OSC that I disagreed with its contention that “Oversight by Congress and other entities ensures that OSC is applying the law as Congress intended,” based on my personal observations, and that I intended to research the matter via FOIA and follow up with it for comment. I expect that this sentiment might be shared by other members of the community. If so, I ask that readers with experiences with OSC weigh in, while making sure to refrain from attacking individuals. Let’s target the evil, not the evildoer.