December 17, 2018
Mr. Thomas D Robinson, Chairperson
1401 S. Clark St.
Arlington, VA 22202
Re: Response to AbilityOne Commission correspondence dated December 7, 2018
Dear Chairman Robinson:
I am writing in response to your letter dated December 7, 2018, and I am quite perplexed as to your assertions that the National Council on Disability (NCD) does not have the legal authority to perform this review and because of that it may constitute improper intergovernmental activities. As well as your assertion that my prior position on the National Industries for the Blind (NIB) Board constitutes a conflict of interest and should preclude NCD from researching and producing this report.
NCD is an independent federal agency, and we are statutorily authorized to “review and evaluate on a continuing basis-- policies, programs, practices, and procedures concerning individuals with disabilities conducted or assisted by Federal departments and agencies… And all statutes and regulations pertaining to Federal programs which assist such individuals with disabilities; in order to assess the effectiveness of such policies, programs, practices, procedures, statutes, and regulations in meeting the needs of individuals with disabilities.” 29 U.S.C. § 781(a)(5). NCD is also required to “assess the extent to which such policies, programs, practices, and procedures facilitate or impede the promotion of the policies” that “guarantee equal opportunity for all individuals with disabilities… And empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.” Id. § 781(a)(6) (referencing 29 U.S.C. §780(a)(2)).
NCD’s statutory legal authority is clear and the way NCD fulfills its mission of assessing the effectiveness of policies, programs, practices, procedures, statutes, and regulations is by collecting data and interviewing personnel from the respective agencies. Data collection processes for all NCD reports have remained consistent over the last 30 years. Which includes the methods in which NCD researches, writes and releases reports. And, over that course of time, not once has an agency refused a data or interview request on the grounds that we do not have the proper legal authority to request such information. If you are still concerned over NCD’s legal authority you may view the statute in its entirety for clarification at https://ncd.gov/.
To clarify the confusion between the differing in scope between the “Notice of Contract Award: National Disability Rights Network (NDRN)” posted on our website and the “Modification to the Cooperative Agreement,” as cooperative agreements allow, if both parties agree, the cooperative agreement can be modified to expand or contract the scope of work. The rationale for a modification does not need to be available to the public. The two parties involved, NCD and NDRN, mutually agreed to modify the cooperative agreement, to write a standalone paper assessing certain aspects of the AbilityOne Commission, which is within our statutory authority to do so. When AbilityOne expressed concerns over the modification, NCD provided AbilityOne with a complete description of the expanded scope of work. NCD is not required to share the scope of work with the subject matter of the report. That being said, we availed the information to AbilityOne in the hopes to expedite the data collection and interview process. To this date, we still have not received the data requested nor a set date for interviews.
To address your question as to why the Inspector General’s (IG’s) office was not engaged during the initial stages of data collection and interview requests. It is customary for NCD to send data and interview requests directly to the agency or mode of the agency of which we feel is the most appropriate. Every federal agency’s protocol for data collection is different and it is upon that agency to advise NCD of its protocol for scheduling interviews and data collection. We initiated our data and interview requests with Brian Hoey, Senior Advisor at AbilityOne on October 29. He responded to NCD via email and stated, “work directly with me as the Commission point of contact.” We made multiple attempts through Mr. Hoey to execute the data request and interviews. During that time, AbilityOne’s Office of Inspector General reached out to NCD and requested a meet and greet. NCD met with AbilityOne’s Inspector General Tom Lehrich and others from his office on November 16. Prior to that meeting, NCD requested the IG’s office assistance in facilitating interviews and data collection and were told that the IG’s office would not be able to assist. That assertion was reconfirmed at the November 16 meeting when we specifically asked IG Tom Lehrich for his assistance in setting up interviews and collecting data and his direct response when asked if he would assist was “probably not” and abruptly ended the meeting and walked out of the NCD office. NCD has followed up with Brian Hoey, Tom Lehrich, and others from the IG’s office on November 16, November 26, November 28, and November 30 and our multiple queries have gone unanswered. As you can see we have made multiple attempts to work through the IG’s office to facilitate data collection and interviews.
To ensure there was no conflict of interest and hence no ethics violations, NCD contacted the US Department of Education, Office of the General Counsel Ethics Division. NCD explained my role as NCD Chair, my prior role on the board of NIB and the scope of work of the AbilityOne report. You will be pleased to know that the Office of General Ethics has concluded that since the report is of a specific party matter and NIB is not party to the matter, and I would not benefit financially from any of the findings and recommendations garnered from the report, ethics regulations do not prohibit me from fully participating in whatever capacity I am needed.
All of your concerns pertaining to NCD’s legitimacy surrounding this report have been answered. So, again I am requesting your assistance to ensure that the necessary interviews and data requests be fulfilled in very short order. Senate offices have requested that NCD copy them on this letter and are anxiously awaiting the completion of this report. If our contractor is unable to schedule the interviews in short order, the report will be released noting that multiple attempts were made with various entities within the AbilityOne Commission and they refused to assist NCD in fulfilling its statutory obligations of advising the President, Congress, and other federal agencies on disability policy.
If you have further questions about the project please contact Amy Nicholas, Attorney Advisor, National Council on Disability at 202-272-2008 or firstname.lastname@example.org.
cc: Senator Tim Scott; Senator Bob Casey; David Hutt, National Disability Rights Network