ML24094A045

FOIA-2024-000092 Released Set

ML24094A045
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Issue date:	04/02/2024
From:	NRC/OCIO
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FOIA-2024-000092
Download: ML24094A045 (15)

Text

OFFICIAL USE OHL¥ OIG INVESTIGATION INFORMATION MEMORANDUM DATE:

August 9, 2023 Joyce L. Connery Chair TO:

FROM:

Robert J. Feitel Inspector General b

. I Digitally signed by Robert J.

Ro ert J. Fe1te Feitel

SUBJECT:

Date: 2023.08.0911:13:07-04'00' ACTIONS INCONSISTENT WITH THE DELEGATION OF FUNCTIONS REQUIRED BY THE ATOMIC ENERGY ACT (OIG CASE NO. I2200180)

Attached is an Office of the Inspector General (OIG), U.S. Nuclear Regulatory Commission (NRC) and Defense Nuclear Facilities Safety Board (DNFSB), Report of Investigation pertaining to an allegation that the DNFSB Chair failed to delegate requisite functions to the agency's Executive Director of Operations (EDO). As discussed in our report, the OIG found that while the Chair delegated to the EDO some of the functions required by the Atomic Energy Act (AEA) of 1954, as amended, both the Chair and the Board remained heavily involved in the agency's day-to-day operations and retained control over many administrative tasks, contrary to AEA sections 311(c)(3)(B) and 313(b)(3)(C).

This Memorandum and Report of Investigation is furnished for any corrective action you may deem appropriate. Please notify this office by September 15, 2023, of any corrective action taken or planned, based on the results of this investigation, and if you require further assistance.

The distribution of this memorandum and report should be limited to those DNFSB managers required for evaluation of this matter. To protect the identities of DNFSB CONTACT: Malion A. Bartley, Assistant Inspector General for Investigations 301.415.5925 OFFICmL U~'I!: ON'L, OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPERTY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCY WITHOUT OIG'S PERMISSION.

OFFICIM:: USE ONL*1r OIG INVESTIGATION INFORMATION employees who cooperated with this investigation, the OIG will not provide the exhibits to the Board. Neither the memorandum, the report, nor its exhibits may be placed on DNFSB websites without the OIG's express written permission.

Attachment:

As stated cc:

Thomas Summers, Vice Chair Jessie Roberson, Board Member OFFICIM:. USE ONL¥ OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPERTY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILil'IES SAFE'lY BOARD, OFFICE OF THE INSPECTORGENER.AL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCY WITHOUT OIG'S PERMISSION.

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OPPICltt t1Sf: Of~LY OIG INVESTIGATION INFORMATION TABLE OF CONTENTS ALLEGATION...................................................................................................................... 1 BACKGROUND................................................................................................................... 1 EDO SELECTION AND SCOPE OF AUTHORITY................................................... 3 FINDINGS............................................................................................................................. 4 BASIS FOR FINDINGS..................................................................................................... 4 DISPOSITION.................................................................................................................... 12 OPPICIM; USE ONLY OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPERTY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCY WITHOUTOIG'S PERMISSION.

8FFICIM:: USE OMLY OIG INVESTIGATION INFORMATION ALLEGATION The Office of the Inspector General (OIG) initiated this investigation based on an allegation that the Chair of the Defense Nuclear Facilities Safety Board (DNFSB) failed to appropriately delegate functions to its Executive Director of Operations (EDO), as required by the Atomic Energy Act (AEA), as amended.

BACKGROUND ATOMIC ENERGY ACT OF 1954 The AEA is the enabling legislation for the DNFSB. Among its provisions, the AEA establishes an EDO position at the DNFSB, describes the EDO's responsibilities, and requires the DNFSB's Chair to delegate certain functions to the EDO.

Section 311(c)(3)(B) of the AEA (42 U.S.C. § 2286(c)(3)(B)) states that the Chair "shall delegate" to the EDO the following functions:

(i)

Administrative functions of the Board.

(ii) Appointment and supervision of employees of the Board not specified under paragraph (6).

(iii) Distribution of business among the employees and administrative units and offices of the Board.

(iv) Preparation of-(i) proposals for the reorganization of the administrative units or offices of the Board; (ii) the budget estimate for the Board; and, (iii) the proposed distribution of funds according to purposes approved by the Board.

Additionally, section 313(b)(3)(C) of the AEA (42 U.S.C. § 2286b(b)(3)(C)) states that the EDO "shall be the senior employee of the Board responsible for-"

(i) general administration and technical matters; (ii) ensuring that the members of the Board are fully and currently informed with respect to matters for which the members are responsible; and, (iii) the functions delegated by the Chairperson pursuant to section 2286(c)(3)(B) of this title.

Of'f'fCIAL USE OMLY OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFE'IY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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OFFICIAL UBE ONLY OIG INVESTIGATION INFORMATION NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2020 The EDO position was created by AEA amendments included in the National Defense Authorization Act for Fiscal Year 2020 (NDAA), which became law on December 20, 2019 (Pub. L. 116-92). The Committee Report that accompanied the Senate's version of the NDAA bill explained the basis for the EDO position.

SENATE COMMITTEE REPORT In the June 2019 report that accompanied the Senate's version of the NDAA bill (S. 1790 in the 116th Congress), the Committee on Armed Services referenced a report from the National Academy of Public Administration (NAPA) that, in the committee's view, painted a "disturbing picture" of the DNFSB. To help address persistent issues at the DNFSB, the committee recommended a legislative provision creating an EDO position at the agency. As stated in the report:

"The committee recommends a provision that would authorize the hiring of an executive director for operations as a senior employee at the Defense Nuclear Facilities Safety Board. The provision would also authorize the Chairman of the Board, subject to the approval of the other Board members, to organize the staff of the Board as the Chairman considers appropriate to accomplish the mission of the Board.

"The committee notes that this provision is consistent with the recommendations of the National Academy of Public Administration's report titled "Defense Nuclear Facilities Safety Board Organizational Assessment" (November 2018). Also, in keeping with that report's recommendations, the committee encourages the Chairman to consult and communicate with the staff and other Board members while considering organizational changes."

The committee's recommendation to create an EDO position was adopted by Congress and captured in section 3202 of the enacted NDAA for fiscal year 2020.

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION REPORT NAP A is a Congressionally chartered, non-profit, non-partisan organization that aids Congress, federal agencies, and state, local, and international government entities regarding issues of importance. In particular, NAPA "provides expert advice to government leaders in building more effective, efficient, accountable, and transparent organizations." The DNFSB engaged NAPA in March 2018 to perform a comprehensive organizational assessment, and NAP A provided a report of their findings in November of that year.

OFFICIAL tJ~r! Otff:,: OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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OFFICIAL US}!; ONLY OIG INVESTIGATION INFORMATION In its report NAP A made 16 recommendations aimed at increasing collaboration and teamwork within the DNFSB. While discussing its recommendations, NAPA stated in part:

"There is also a critical need to follow a more traditional management model that empowers the staff to deal with issues at an appropriate level and brings to the top only the critical, strategic matters worthy of a Presidentially Appointed Senate-confirmed Official's precious time."

NAPA therefore recommended the appointment of an EDO at the DNFSB (Recommendation 12). NAPA additionally stated that "[t]he measure would... provide another level to encourage a more traditional relationship among presidentially-appointed officials and professional staff."

EDO SELECTION AND SCOPE OF AUTHORI1Y Since the establishment of the EDO position in December 2019, the agency has had one permanent EDO, who held the position from January 2021 through August 2022. Since the EDO's departure, the General Manager, Technical Director, and Deputy Technical Director have each served as acting EDO for periods of time (August 2022 through November 2022, November 2022 through February 2023, and July 2023 to present, respectively) while the DNFSB searches for a permanent replacement. As of the date of this report, the DNFSB has not hired a new permanent EDO.

The AEA states that the EDO shall be the senior DNFSB employee responsible for both administrative and technical matters. Notwithstanding this seemingly clear statutory language, the OIG found that a central question at the DNFSB is the scope of the EDO delegations mandated by the AEA, with one senior manager informing the OIG this topic was the single biggest issue at the agency.

DNFSB Chair Joyce Connery stated to the OIG that the DNFSB provided input on the NDAA provisions that created the EDO position. Chair Connery stated that historically employees within the Office of the Technical Director (OTD) viewed employees in the Office of the General Manager (OGM) as subordinates, because OGM supported OTD's work, which is the primary mission of the agency. She stated that the intent behind including the EDO as the lead in technical matters was to have "more consistency" among the technical and administrative staffs. 1 According to Chair Connery, the legislative intent behind the NOAA provisions was for the EDO to use the technical information provided by the OTD to strategically assess the 1 The DNFSB has four offices: OTD, OGM, the Office of the Executive Director of Operations (OEDO),

and the Office of the General Counsel (OGC). The first two offices report to the EDO, whereas OGC reports directly to the DNFSB Chair.

0FFICIM:: USE 0i'&Y OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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017171CIAL US£ ONLY OIG INVESTIGATION INFORMATION best way to achieve the desired safety outcome in a given matter. Some managers at the agency interpreted the enacted legislation differently, however, and understood the statutory language as placing the EDO ahead of the Technical Director as the lead on technical matters.

Additionally, some employees interviewed by the OIG stated their belief that the NDAA mandated wholesale delegations of authority to the EDO; therefore, the Chair had no choice but to allow the EDO to execute a broad range of functions related to general administration and technical matters. One individual in the Office of the General Counsel (OGC) stated to the OIG, "[T]he statute says that the Chair shall delegate to the EDO...it's mandatory language...it means everything. It doesn't mean the Chair gets to pick and choose and delegate some administrative responsibilities and not others."

FINDINGS

1. During the former EDO's tenure, the Chair and Board acted inconsistently with AEA section 311(c)(3)(B) by retaining control over many DNFSB administrative functions that had been delegated to the EDO, and by bypassing the EDO when interacting with employees under the EDO's supervision.

2. The Chair and Board acted inconsistently with AEA section 313(b)(3)(C), which states that the EDO shall be the senior employee of the Board responsible for technical matters.

3. Disagreements over the scope of the EDO's authority as it related to OGC employees caused work disruptions during the former EDO's tenure and, ifleft unaddressed, these disagreements could potentially compromise the effectiveness of any future EDO.

BASIS FOR FINDINGS

1. The Chair and the Board acted inconsistently with the delegations of authority required by AEA section 311(c)(3)(B).

AEA section 311(c)(3)(B) states that the Chair "shall delegate" to the EDO (i) the administrative functions of the DNFSB; (ii) the authority for appointing and supervising employees other than the EDO and General Counsel; (iii) the distribution of business among DNFSB staff, units, and offices; and, (iv) the preparation of various proposals or estimates related to office reorganization, budgets, and the distribution of funds. As described below, the Chair and Board took actions that were inconsistent with the delegations required by subsections (i), (ii), and (iii).

OFFICIAL USf: ONLY OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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tlPPICIAL t:J'~~ ONL,-

OIG INVESTIGATION INFORMATION

a. The Chair and the Board retained control over, or significant involvement in, many DNFSB administrative functions to be performed by the EDO.

The OIG found that the Chair had not delegated many of the agency's administrative functions to the former or acting EDOs and had otherwise taken actions that were inconsistent with the delegations of authority required by the AEA. When describing her own responsibilities, Chair Connery stated, "I don't do anything...I vote on things... that's all I do," implying that the EDO was otherwise responsible for DNFSB functions. She further stated "...I prefer to maintain awareness and not necessarily the authorities."

Notwithstanding these statements, the OIG found that, rather than merely maintaining awareness of DNFSB operations, the Chair retained day-to-day control over many aspects of those operations.

For example, after the DNFSB hired the former EDO in January 2021, the Chair continued to make decisions and provide guidance on a wide range of administrative matters, as illustrated by the following actions taken between January 2021 and July 2022:

In memoranda to Chair Connery, the Technical Director and General Manager sought the Chair's approval of routine administrative actions, such as approval of remote work for employees, promotions for six DNFSB employees on the Defense Nuclear Pay Scale, requests submitted by junior OTD staff for classified Department of Energy (DOE) documents, waiver of an overpayment recovery involving an employee, and an extension request for an employee relocation report-to-duty-station date. The Chair signed each memorandum as the final agency authority approving the requested action.

Chair Connery, the DNFSB General Manager, and other senior leadership discussed in emails whether the DNFSB had a minimum requirement for home internet bandwidth for teleworking employees, matters related to one employee's student loan repayment, and the name of the forthcoming telework policy.

• The Chair signed SF-52 (Request for Personnel Action) forms for employees who did not report to her directly and which could have been signed by either the EDO or General Counsel.

During our investigation, the OIG reviewed an email from Chair Connery in which she appeared to state that the former EDO was unable or unwilling to assume certain responsibilities that should have been delegated to him. For example, Chair Connery OFFICIMJ USJZ Oi"tlsY OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFE'IY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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OFFICIAL USE Ol\\lkY OIG INVESTIGATION INFORMATION stated that "[the EDO] wants to have all of the 'authorities' but isn't yet capable nor willing to take responsibility... " However, the matters described above generally involved routine personnel actions, and the OIG did not identify any evidence that the former EDO was unable or unwilling to assume responsibility in these matters.

The former EDO also told the OIG that he attempted to secure additional staffing for the Office of the EDO (OEDO) to effectively handle the full delegations of authority he expected under the AEA. The Chair, however, denied the former EDO's request for additional staffing. The OIG reviewed emails that demonstrated other Board members agreed with the Chair's decision in this matter.

In addition, the OIG found that the entire Board was involved in administrative matters that should have been within the former EDO's delegated authority. For example, the DNFSB holds weekly meetings, called "OGM Gatherings," where the OGM briefs senior leadership, including the Board, on matters involving the office. While the EDO and other office directors are present at the gatherings, the Board is the target audience for the briefings. The OIG reviewed numerous emails discussing OGM gatherings and found that the discussion topics were primarily administrative in nature, addressing matters such as conference room HVAC repair, contractor clearance processing updates, random drug testing, and procurement updates.

Testimony the OIG obtained also showed that both during the former EDO's tenure and after his departure, many of the OGM gatherings have been primarily administrative in nature. One office director told the OIG, "[e]very week the Board has an OGM gathering and that's all the day-to-day operations of the Agency that [the Board] should not be involved in." The office director provided examples of topics discussed, such as auto-replies for the Human Resources inbox thanking employees for sending their messages, status sheets for safety allegations, and office carpeting. Another office director told the OIG they spent time at OGM gatherings discussing wall coverings for the office. The office director believed the topic was "completely beneath [the Board members]...it's beneath me" and the Board should have delegated the subject to lower-level personnel.

One of the senior managers that served as the acting EDO following the departure of the former EDO told the OIG that the Board now holds "sync meetings" with the senior managers to shorten the OGM gatherings and discuss the Board's calendar, although these meetings still tend to involve "in the weeds" administrative topics.

Four senior managers also stated that the Board maintained interest and influence on day-to-day administrative functions within the agency even after the appointment of the first EDO. One senior manager stated that the Board, in fact, operated the same now as it did prior to the creation of the EDO position. The manager stated that in his/her view the Board members needed to act at a level appropriate for Presidential appointees and not stray into the weeds of the DNFSB's administrative matters. Other senior managers expressed similar opinions about the Board's involvement in administrative matters.

Of'f'fCIAL USE Oi'&Y OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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OFFICIAL USE ONLY OIG INVESTIGATION INFORMATION One senior manager stated that the Chair-not the EDO-oversaw administrative areas such as hiring.

The OIG found that the DNFSB did not initially establish a clear process to delegate authorities to the EDO; for example, the authority for Defense Nuclear Pay Scale promotions did not shift to the EDO until nearly two years after the position's creation.

One senior manager told the OIG "[the Board]... still get[s] involved and distracted... by some of the operations of the Agency, but in part I think it's that's just what they are used to, and they still need to transition in their own tasks a little bit more."

The Board indicated a willingness to continue that transition. Vice Chair Thomas Summers told the OIG, "I think the delegation intent from the statute is to take those types oflower-level...administrative tasks from the Chair's plate and make sure that the EDO...is empowered... without having to go to the Chair for every decision." Board Member Jessie Roberson told the OIG the agency had been working on separating the Board from administrative matters by updating the agency directives, which has been an ongoing process. Chair Connery admitted she had been too hands-on in several areas, telling the OIG, "I probably need some weaning to get out of those weeds...! am happy to back off."

Three senior managers told the OIG they believed the Board could increase its impact on nuclear safety by focusing less on administrative functions of the agency and more on nuclear safety itself. One of these senior managers stated that "if you added up the amount of time [the Board] talked about various issues, nuclear safety would fall to about fourth on the list." Another stated that Board members could spend more time visiting DOE sites within their jurisdiction, collaborating with their DOE counterparts, and interacting with DOE site contractors and DNFSB resident inspectors. Vice Chair Summers and Board Member Roberson agreed that the agency could manage administrative functions more efficiently, which would allow the Board more time to focus on the agency's mission.

b. The Chair and the Board undermined the authority of the former and acting EDOs by bypassing the EDOs when interacting with employees under their supervision.

AEA section 311(c)(3)(B)(ii) requires the Chair to delegate to the EDO those functions related to the appointment and supervision of employees other than the General Counsel and the EDO. The OIG found, however, that the Chair took actions that undermined the former EDO's ability to appropriately supervise employees, including the General Manager and the Technical Director. These actions included holding meetings with the General Manager or the Technical Director without the EDO present, encouraging the EDO's direct reports to bypass him and interact with the Board directly, and excluding the EDO from email chains with his direct reports.

81-'FIClAL USE Olill..Y OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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OFFICIM:: USE ONU.l OIG INVESTIGATION INFORMATION The OIG reviewed an email chain from August 2021 between the former EDO and Chair Connery in which the EDO asked to attend the Chair's meetings with the General Manager and the Technical Director in order to stay informed on pressing matters. The Chair did not respond directly to the EDO's request, instead stating that "I felt like

[your request] was a message of your distrust for me." A review of Chair Connery's scheduled meetings held via Microsoft Teams showed that between November 2021 and July 2022, the Chair held 18 one-on-one meetings with the General Manager, with an average meeting time of 39 minutes. The Chair met with the Technical Director via Microsoft Teams for scheduled meetings 25 times between October 2021 and July 2022, with an average meeting time of approximately 37 minutes. Although the Deputy Technical Director occasionally participated in these meetings, the EDO did not.

Senior managers confirmed that Chair Connery did not allow the former EDO to attend one-on-one meetings she held with the General Manager and the Technical Director, both of whom reported directly to the EDO, and refused to allow them to provide summaries of those meetings to the EDO. One office director stated that "[the EDO]

would come... to the [General Manager and the Technical Director] discussions with Mr. Summers and Ms. Roberson, but he was not allowed to come to the discussions with Ms. Connery." When asked why, the office director stated, "apparently she told him not to come."

One of the senior managers who served as acting EDO after the first EDO's departure told the OIG that neither of the first two acting EDOs participated in the one-on-one meetings Chair Connery held with the General Manager and the Technical Director.2 The manager never asked to be part of those meetings while in the role of acting EDO, largely because Chair Connery had already established the precedent of the EDO not being involved in them.

In their testimony, seven senior managers told the OIG that the Board regularly undercut the former EDO's ability to successfully manage his subordinate employees by often going around him to communicate directly with the EDO's subordinates, including the General Manager and the Technical Director. Some of those managers believed that the Chair empowered the General Manager and the Technical Director to bypass the EDO and go directly to the Board with issues that should have been raised first with the EDO. Some managers believed the General Manager routinely bypassed the EDO when bringing issues to the Board.

2 The manager provided this information to the OIG prior to the tenure of the third acting EDO.

OFFIClhL USE Oi'&Y OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFE'IY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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OFFICIAL US£ ONMZ OIG INVESTIGATION INFORMATION In addition, the Board Chair communicated at times with the General Manager and the Technical Director, or staff in their offices, via emails that excluded the EDO. The Chair also emailed the General Manager and the Technical Director directly with administrative questions and requests, excluding the EDO from the email discussions.

The former EDO informed the OIG that the Chair undermined his ability to effectively manage the General Manager and empowered the General Manager to go around him.

The OIG reviewed emails that supported that position. For example, in a September 2021 email to the senior leadership team, Chair Connery outlined the EDO's roles and responsibilities, stating that the EDO was the rating official for the General Manager and the Technical Director, but she was the reviewing official. In another email, the Chair told the General Manager she did not want him to rely on the EDO to pass information within the chain of command, because the EDO's "... main job is not managing [the General Manager and the Technical Director]." The Chair told the General Manager in another email that, "I am trying to get OEDO out of the business of being a passthrough, that's why I asked for direct answers from you all."

The OIG found that Chair Connery often bypassed the EDO by communicating directly with OGM divisions or staff, including staff within the Division of Human Resources (HR). Although Chair Connery told the OIG that she never went directly to the HR Director to discuss issues that should have included either the EDO or the General Manager, the OIG found substantial contrary evidence. For example, the OIG reviewed an email the Chair sent the former HR Director in July 2021, without copying the EDO, asking for a meeting to discuss the makeup of the OEDQ.3 The OIG also reviewed another email chain, from July 2021, in which the Board members specifically discussed the OEDO's makeup and hiring new employees to work within OEDO. In that email chain, Chair Connery stated, "I am going to reach out to [the HR Director]." In addition, the OIG found several email conversations between the Chair and HR staff that omitted the General Manager and the EDO, and which involved general HR matters.

Chair Connery also acted in matters related to the appointment of employees in a manner that was inconsistent with the authority delegated to the EDO and the EDO's subordinate employees. A senior OGM employee told the OIG that hiring new HR staff at the agency was tricky because the Chair felt she had the final decision on selections, and because she wanted to interview the final HR candidates herself. For example, the Chair had a significant role in the selection of the current HR Director, a GS-15 employee who reports directly to the Deputy General Manager, and then to the General Manager and the EDO. Senior OGM staff advised Chair Connery she could conduct a "meet and greet" with candidates, but she could not ask technical questions, nor influence the hiring decision. Despite that guidance, the Chair made several comments 3 Chair Connery stated to the OIG she did not remember either the email or any meetings with the HR Director regarding the OEDO's structure.

OFFIClhL USE Oi'&Y OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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OFFIOIM:. USE Ql)lllsY OIG INVESTIGATION INFORMATION in a meeting in the presence of the selecting official for the HR Director position regarding which candidate she preferred.

The OIG reviewed emails supporting the OGM employee's testimony regarding the Chair's role in the selection process. In those emails OGM staff provided the Chair with the final two candidates' application packets and scheduled interviews with the Chair for each of those candidates. The Chair thereafter sent an email to OGM staff members approving of both candidates and requesting a meeting to discuss her thoughts.

2. The Chair acted in a manner that was inconsistent with the EDO's role as the senior employee responsible for technical matters.

Under AEA section 313(b)(3)(C)(i), the EDO is the senior agency employee responsible for technical matters. Several office directors and one deputy office director stated, however, that the Board did not empower the EDO to act as the agency lead on technical matters. These managers also stated that they heard Board members say the Technical Director was the agency's technical lead, and that the Technical Director did not have to report through the EDO on technical matters.

The Chair appeared to take a similar view regarding the EDO's technical role. In an email to senior staff, Chair Connery outlined her view of the EDO's role and responsibilities as "the front office/exec sec, strategic direction, as well as the day-to-day operations of the entire agency." In the same email, however, the Chair stated that

"[the Technical Director] has the final say as to the technical sufficiency of information to be reported to the Board... " The Chair further stated that "[a]ny 'emerging' information pertinent to the Board will be related by the Technical Director to the Board... [t]hat [information] should not be 'telephoned' through anyone else at the agency."

Senior managers told the OIG that the Technical Director preferred to communicate with the Board through the EDO and had requested that the EDO be allowed to participate in his meetings with the Chair, but the Chair denied that request. One manager additionally stated:

"[T[he [Technical Director]... should have a direct line to the Board members... because they're technical experts... But the EDO is [the Technical Director's]... supervisor. If [the Technical Director is]

running directly to the Board members without at least informing the EDO, that...undercuts the whole supervisor-subordinate relationship... "

The OIG observed that the Chair and DNFSB managers had divergent views over the EDO's role in technical matters. The Chair's view was that the legislative intent behind OFFfCIM:: USE OHlsY OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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OFFICIM:: USE ONU.l OIG INVESTIGATION INFORMATION Congress making the EDO the "senior employee of the Board responsible for...

technical matters" was for this person to use technical information provided by the OTD to strategically assess the best way to achieve the desired safety outcome in a given matter. Certain DFNSB managers, however, understood this language as placing the EDO ahead of the Technical Director as the lead on technical matters.

Regardless of which view betters aligns with the AEA, the Chair appears to have acted contrary to the delegations of authority required by the statute. Even if the EDO's technical role primarily involves strategically assessing the best way to achieve the desired safety outcome in a given matter, as the Chair maintained, the Chair took actions that interfered with the former EDO's ability to fulfill that role. Excluding the EDO from meetings between the Chair and the Technical Director, and requiring the Technical Director to communicate directly with the Board about emerging technical matters, would appear to be inconsistent with any plausible interpretation of AEA section 313(b)(3)(C)(i), including the Chair's interpretation.

3. Interpretive disagreements over the scope of the EDO's authority could compromise the effectiveness of any future EDO.

DNFSB managers and staff stated that, during the former EDO's tenure, there were disagreements over the scope of the EDO's authority as it related to OGC employees.

Soon after the EDO joined the DNFSB, the Chair delegated to the EDO the authority to oversee the agency's directive program and issue new or revised directives that are binding on agency staff. The DNFSB's General Counsel objected to this delegation as it applied to OGC staff, however, because AEA section 311(c) exempts the General Counsel-and in the General Counsel's view, OGC staff as well-from the EDO's supervision.

Chair Connery stated to the OIG that this issue caused significant problems for DNFSB leadership as they were creating policies to fully implement the EDO position.

For example, as a result of the conflicting views regarding the scope of his authority, the former EDO abandoned his attempts to update the agency's directives and focused on other tasks. Chair Connery said that this issue also damaged the relationship between the office directors, leading to hostile exchanges during meetings and stifling their ability to create and update policies and directives. One office director told the OIG that the General Counsel's position regarding the EDO's authority caused the Board to step in and "take control" of the distribution of business within the agency.4 4 The OIG's review of the DNFSB SharePoint directives page in April 2023 showed that the Board had updated only 28 of 137 directives, policies, and appendices since the former EDO joined the agency in January 2021.

OFFIClhL USE Oi'&Y OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFE'IY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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QFFI0IAL l.-JSf; ONLY OIG INVESTIGATION INFORMATION Chair Connery further stated to the OIG that she believed personality differences contributed to various disagreements between the office directors, and she assigned a Senior Executive Service coach to improve teamwork and mediate disputes among them. Based on our investigation, however, it does not appear the coaching sessions resolved the underlying disagreements regarding the EDO's authority as it relates to OGCstaff.

During our investigation, the OIG reviewed memoranda and emails sent to the Board from the General Counsel or OGC staff stating their position regarding the EDO's authority as it relates to OGC. These documents describe a relationship between the EDO and OGC staff that does not appear significantly different from the relationships between EDOs and legal staff at many other federal boards or commissions.

Accordingly, even if disagreements over the scope of the EDO's authority initially delayed work at the DNFSB, it is unclear why the Board did not act quickly to account for, or potentially refute, OGC's position and minimize disruption at the agency.

DISPOSITION This Memorandum and Report of Investigation conveys the results of our investigation and is being provided to the Board for any corrective action you deem appropriate.

Please notify this office by September 15, 2023, of any corrective action taken or planned, to better align the EDO position with the delegations required by the AEA and address any limitations on the scope of the EDO's authority. To the extent additional time is required beyond the September 15, 2023 deadline to plan or implement any corrective action, please update the OIG every ninety (90) days on progress made in this regard.

6PPfCIM:: US:E OML¥-OIG INVESTIGATION INFORMATION THIS DOCUMENT IS THE PROPER'IY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFICE OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE RECEIVING AGENCYWITHOUT OIG'S PERMISSION.

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