CREW citizens for responsibility and ethics in washington April 19, 2011 Kathleen S. Tighe Inspector General U.S. Department of Education 400 Maryland Avenue, S.W, Washington, D.C. 20202-1500 Via Messenger Dear Inspector General Tighe: Citizens for Responsibility and Ethies in Washington (CREW) respectfully requests that you open an investigation into the circumstances and conditions under which former Deputy Undersecretary Robert Shireman obtained a position at the U.S. Department of Education (Education) as a paid intermittent consultant to Education’s Office of Federal Student Aid. Documents Education recently provided CREW in response to our Freedom of Information Act (FOIA) request reveal that under the terms of that appointment, Mr. Shireman improperly retained his federal benefits, including health benefits, paid annual and sick leave, and retirement benefits Following up on reports that Mr. Shireman was going to stay on as an advisor to Education after his departure from the agency in June 2010, CREW filed a FOIA request seeking copies of all records from June 1, 2010 onward regarding any contracts between Edueation and Mr. Shireman.' FOTA personnel at Education orally advised CREW there was no record of any such contract, but on April 14, 2011, Linda Darby, Education’s FOIA Public Liaison, sent to CREW four pages of documents deemed responsive to CREW’s request.” In her letter, Ms, Darby noted, however, that some information had been redacted from the documents under FOIA Exemption b(6), claiming its disclosure “would constitute a clearly unwarranted invasion of personal privacy.” The first document, titled “Correspondence Summary,” dated June 15, 2010, is from Chief Operating Officer William Taggart to Chief Administration Officer Irma Blanchett, requesting approval to hire Mr. Shireman “as an Intermittent Consultant to Federal Student ' Letter from CREW Chief Counsel Anne L. Weismann to Department of Education FOIA Public Liaison, February 7, 2011 (attached as Exhibit A). * Letter from Linda Darby to Anne L. Weismann, April 14, 2011 (attached as Exhibit B). 3d. 1400 Eye Steet, NW, Suite 450, Washington, D.C. 20005 | 202.408.5565 phone | 202.588.5020 ax | wmw.ctzensforetics.or, _Inspector General Kathleen Tighe April 19, 2011 Page Two Aid."* The body of this memo describes Mr. Shireman’s responsibilities as an intermittent consultant, a capacity in which he was to serve for not more than 130 days in a calendar year, and indicates he would be paid at a GS 15 step 10 level, or $74.51 per hour. Notably, the memo also states: We would effect the consultant appointment immediately following his departure from his current position as Deputy Undersecretary in the Office of the Under Secretary, so he could retain his federal benefits. Exhibit C (emphasis added). Education redacted the signatures of the approving officials and the dates on which some of them signed the summary. Id. ‘The second document provided bears the title “Supplemental Information ~ Expert or Consultant,” and describes the services Mr. Shireman was expected to perform.’ It states Mr. Shireman received a one-year appointment, during which he was expected to perform services for a total of 90 days. Although the document notes an attachment, none was produced. The third document is labeled “Certification.”* In this document, officials — whose names have been redacted — certify that in approving Mr. Shireman’s appointment as a consultant, they have considered relevant laws, policies and instructions. Jd. The Certification states explicitly the appointment had been “appropriately designated as. .. intermittent (the individual will work without a regularly scheduled tour of duty).” Jd. The final document is a “Notification of Personnel Action,” a standard OMB form, effecting Mr. Shireman’s appointment to the position of “consultant” with an “intermittent” work schedule.” The Remarks section at the bottom includes in relevant part: APPOINTMENT AFFIDAVIT EXECUTED 07-06-10... EMPLOYEE IS AUTOMATICALLY COVERED UNDER FERS . . . ELIGIBLE FOR HEALTH BENEFITS AND ANNUAL AND SICK LEAVE... Id. (emphasis added). The action was approved on July 2, 2010. Id. * Attached as Exhibit C. * Attached as Exhibit D. © Attached as Exhibit E. 7 Attached as Exhibit F.Inspector General Kathleen Tighe April 19, 2011 Page Three ‘The terms of Mr. Shireman’s appointment as an intermittent consultant conflict directly with governing personnel rules and policies. Specifically, U.S. Department of Education Personne] Manual Instruction, PMI 304-1, states unequivocally “Intermittent appointees are not entitled to annual and/or sick leave.”* This same guidance states with respect to benefits: ‘Normally, new appointments of experts and consultants are excluded from coverage under the Federal Employees Retirement System Act, the Health Benefits Act, and the Federal Employee Government Life Insurance Act? Contrary to these directives, Education appointed Mr. Shireman as an intermittent consultant to be paid both health benefits and annual and sick leave as well as continued coverage under the Federal Employees Retirement System Act (FERS). Indeed, the newly disclosed documents show the appointment was made effective immediately upon Mr. Shireman’s departure as the deputy undersecretary specifically “so he could retain his federal benefits.” Also troubling is the redaction of the idemtties of those Education officials who approved this improper appointment. These redactions clearly suggest an attempted cover-up by Education, contrary to the true purpose of the FOIA exemptions and this administration’s binding FOIA policies. There is no merit to Education’s claim that disclosing these names would invade the privacy of these individuals, who were acting in their official capacities and presumably exercising delegated authority. CREW has twice asked Secretary Ame Duncan to investigate the attempts by Wall Street investors and other outside groups to influence the direction of the agency’s regulation of the for- profit education industry, and the concomitant collusive actions of high-level Education officials."° A growing body of evidence, consisting primarily of documents Education has provided CREW in response to FOIA requests, attests to these actions. Notwithstanding this, evidence, Education has responded to each of CREW’s requests with denials and blanket assertions of no impropriety in any aspect of the regulatory process. These latest revelations concerning Mr. Shireman’s appointment as an intermittent consultant and his improper retention * Education Personnel Manual Instruction 304-1, p. 7, X (emphasis in original). Attached as Exhibit G. ° PMI 304-1, p. 7, XI. '* A copy of CREW’s January 19, 2011 letter to Secretary Duncan was an exhibit to CREW’s February 7th FOIA and is attached as part of Exhibit A. The second letter, dated March 1, 2011, is attached as Exhibit H.Inspector General Kathleen Tighe April 19, 2011 Page Four of benefits underline the need for an investigation of this entire matter, including the circumstances and conditions under which Mr. Shireman received an appointment as an intermittent consultant, ‘The general controversy surrounding Education’s regulation of the for-profit industry and the mounting evidence of agency improprieties have severely undermined the credibility of the department's processes. Public trust can be restored only by a full and impartial investigation by your office. Thank you for your prompt attention to this important matter. Very truly yours, af Melanie Sloan Executive Director Enclosures