ML24094A045

FOIA-2024-000092 Released Set

ML24094A045
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Issue date:	04/02/2024
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FOIA-2024-000092
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OFFICIAL USE OHL¥ OIG INVESTIGATION INFORMATION

MEMORANDUM

DATE: August 9, 2023

TO : J oyce L. Connery Chair

FROM: Rob ert J. Feite l Ro ert J. Fe1te Fei tel Ins pect o r Ge neral b. I Dig ita lly sig ned by Robert J. Date : 2023.08.0911:13 :07-04 '00'

SUBJ E CT: ACTI ONS INCONSISTENT WITH TH E DELEGATION OF F UNCTIO NS RE QUIRED BY THE ATOMIC ENE RGY ACT (OIG CASE N O. I 2 200180)

Attached is an Office of t h e Insp ector Genera l (OI G), U.S. Nu clear Regul atory Co mmi ssion (N RC) a nd Defen se N uclear Faciliti es Safet y Bo ard (DNFSB), Report of Inves ti gati on pertainin g t o an allegation th at th e DNFSB Ch air fail e d t o d el egat e requisite functions t o t h e agen cy's Executive Director of Opera t ions (E DO ). As discu sse d in our r eport, the OIG fo und th at whil e th e Chair d el egat ed t o the EDO s om e of the functions re q uire d b y the Ato m ic Energy Act (AEA) of 1954, as am ende d, bo th t h e Ch air and the Board r em ained h eavi ly invo lve d in the agen cy's d ay-to-day op erati o ns and r et ained co ntr ol ove r m a n y ad mini strative t asks, co ntr ary t o AEA section s 3 11(c)(3)(B) an d 313 (b)( 3)( C).

Th is Memoran dum an d Rep ort of I nves t igation is furn ishe d for any corrective action yo u m ay d ee m appr opri at e. Please noti fy thi s o ffice b y Septemb er 15, 20 23, of any corr ective action tak en or planned, b ased on th e r esult s of thi s inves ti gation, and if y ou require furt h er assis t ance.

The distribution of t h is memorandu m and report sh oul d be limi t ed to those DNFSB m an ager s r eq uir ed for evaluati o n of thi s matt e r. T o prot ect the ide ntiti es of DNFSB

CONTACT: Malion A. Bartley, Ass istant Inspe ctor Gen e ral fo r Inves tigati ons 3 0 1.4 15.5 9 25

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 exhibit s may be placed on DNFSB websites without the OIG' s express written permission.

Attachme nt :

As stated

cc: Thomas Summers, Vice Chair Jes s ie 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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TABLE OF CONTENTS

ALLEGATION...................................................................................................................... 1

BACKGROUND................................................................................................................... 1

EDO SELECTION AND SCOPE OF AUTHORITY................................................... 3

FINDINGS............................................................................................................................. 4

BASIS FOR FINDINGS..................................................................................................... 4

DISPOSITION.................................................................................................................... 12

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THIS DOCUMENT IS THE PROPERTY OF THE U.S. NUCLEAR REGULATORY COMMISSION AND DEFENSE NUCLEAR FACILITIES SAFETY BOARD, OFFIC E OF THE INSPECTORGENERAL (OIG). IF LOANED TO ANOTHER AGENCY, IT AND ITS CONTENTS ARE NOT TO BE REPRODUCED OR DISTRIBUTED OUTSIDE THE R ECEIV ING AGENCY WITHOUTOIG'S P ERMISS ION.

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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 administrati v e 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.

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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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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 v ersion 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 authori z e the hiring of an executive director for operations as a senior employee at the Defense Nuclear Facilities Safety Board. The provision would also authori z e 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" (Nov ember 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 organi z ation that aids Congress, federal agencies, and state, local, and international government entities regarding issues of importance. In particular, NAPA "provides e xpert advice to government leaders in building more effective, efficient, accountable, and transparent organi z ations." The DNFSB engaged NAPA in March 2018 to perform a comprehensi v e organi z ational assessment, and NAP A provided a report of their findings in November of that year.

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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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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 hav e each served as acting EDO for periods of time (August 2022 through November 2022, November 2022 through February 2023, and July 2023 to present, respectivel y ) 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 Manage r (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 administrati v e staffs. 1

According to Chair Conne ry, the legislative intent behind the NOAA provi sions 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 Exe cuti v e Direct o r of Operation s (OEDO),

and th e Office of the Ge n eral Counsel (OGC). The fir s t two offices r e port to the EDO, whe r ea s OGC repo rts d i rectly t o t h e DNFSB Chair.

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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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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).

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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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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 th e 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 Jul y 2022:

• In m e moranda to Chair Connery, the Technical Director and General Manager sought the Chair's approval of routin e administrative actions, such as approval of remote work for employees, promotion s for six DNFSB employees on the Defense Nuclear Pay Scale, requests submitted by junior OTD staff for classified Department of Energy (DOE) docum ents, 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 e mploy ee's student loan r epayme nt, and th e nam e 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 review ed 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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stated that "[the EDO] wants to hav e all of the 'authorities ' but isn' t yet capable nor willing to take responsibility... " However, the matters described above generally involv ed routin e personnel actions, and the OIG did not identify any evide nce that th e former EDO was unabl e or unwilling to assume r espo nsibilit y in these matt er s.

The former EDO also told th e OIG that h e attempted to secure additional staffing for th e Office of the EDO (OEDO) to effectively handle the full delegations of authority he expected und er the AEA. The Chair, howev er, d enied the former EDO's request for additional staffing. The OIG reviewed emails that demonstrated othe r 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 s hould have been within the former EDO's delegated authority. For examp l e, th e 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 th e discuss ion topic s were primarily administrative in natur e, addressing matters such as conference room HVAC repair, contractor clearance processing updates, random drug testing, and procurement updates.

Testimony the OIG obtained also showed th at both during the former EDO's tenure and after his departure, man y of the OGM gath erings have b een 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] s hould not be involv ed in. " The office dir ector provid ed exam ples of topics di scussed, such as auto replies for the Human Resources inbox thanking employees for sending their messages, status sheets for safet y 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 th e topic was "compl et ely b eneath [the Board m emb ers]...it's b en eath m e" and the Board should hav e d el egat ed the s ubj ect to lower-l eve l personnel.

One of the senior managers that served as the acting EDO following the departure of the former EDO told the OIG that th e Board now hold s "sync m eeti n gs" with the se nior managers to shorten the OGM gatherings and discuss the Board's calendar, although the se m eetin gs s till t end to invol ve "in th e weeds" administrative topics.

Four senior managers also stated that the Board maintained interest and influence on day-to-day administrative fun ction s within the agency eve n 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 m emb er s n eede d to act at a l eve l appropriate for Preside nti al appointees and not stray into the weeds of the DNFSB's administrative matters. Other senior managers expressed similar opinions about the Board' s invol vemen t in administrative matters.

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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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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] involv ed 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 sepa r ating 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 abilit y to approp r iately supervise emplo y ees, 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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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 Micros oft 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 occasionall y 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 form e r EDO' s ability to successfully manag e 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 ma nager pro v ided thi s informa tion t o t h e OIG prio r t o the t enur e of the thi r d acti ng EDO.

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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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In addition, the Board Chair communicated at times with the General Manager and the Technical Director, or s taff 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 Gener al Manager to go around him.

The OIG reviewed emails that supported that position. For example, in a September 2021 email to the senio r leade r ship team, Chair Conne ry 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 anoth er 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, b e cause the EDO' s "... main job is not managing [the General Manager and the Technical Director]. " The Chair told the General Manage r in another email that, "I am trying to get OEDO out of the bus ines s of being a passthrough, that's why I asked for dir ect answers from you all."

The OIG found that Chair Connery often bypassed the EDO by communicating directl y with OGM div isions or staff, including staff within the Division of Human Re sources (HR). Although Chair Connery told the OIG that s he nev er went directl y to the HR Director to discuss is sues that should have included either the EDO or the General Manager, the OIG found substantial contrar y ev idence. For example, the OIG reviewed an email the Chair sent the former HR Director in July 2021, without copying the EDO, asking fo r a meeting to discuss the makeup of the OEDQ.3 The OIG also reviewed another email chain, from July 2021, in which th e 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 inv olv ed general HR matters.

Chair Conner y also acted in matters related to the appointment of employee s in a manner that was inconsistent with the authority delegated to the EDO and the EDO's subo r dinate employees. A s enior OGM emplo y ee told the OIG that hiring n ew HR staff at the agency was tricky because the Chair felt she had th e final decision on selections, and becaus e 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 s ev eral comment s

3 Chair Conn ery stated to the OIG she did not rem emb er either the email or any meetin gs with the HR Directo r regar di ng t h e OE DO's stru ctur e.

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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.

9 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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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 appea r 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 th e DNFSB SharePoi nt directi v es pag e in April 2023 show ed t h at the Board had updated only 28 of 137 directives, policies, and appendices since the former EDO joined the agenc y 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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Chair Conner y 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 inv estigation, howev e r, it does not appear the coaching s essions resolved the underlying disagreements regarding the EDO's authority as it relates to OGCstaff.

During our investigation, the OIG reviewed memoranda and email s 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 docum e nts d escribe a relationship betwe en th e EDO and OGC staff that does not appear significantl y 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 initiall y delay ed 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 conve ys the result s of our inv estigation 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 b y the AEA and address any limitations on the scope of the EDO's authority. To the extent additional time is required bey ond 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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