EEOC: Challenge to @StateDept’s Mandatory Retirement as Violation of the ADEA Fails

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Via EEOC Appeal No. 2020000116 (PDF)
DECISION:

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated July 31, 2019, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND:

At the time of events giving rise to this complaint, Complainant worked as an Information Systems Security Officer, FS-03, at the Agency’s facility in Brussels, Belgium.

On July 1, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to age discrimination when he was not allowed to bid for assignments in the summer 2020 job cycle, when he will reach the Agency’s mandatory retirement age. Complainant also stated, in his formal complaint, that he was being involuntarily retired in January 2020, solely on account of his age.

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, stating that the ADEA does not preclude mandatory retirement provisions, including the one set forth in the Foreign Service Act which covered Complainant’s position. The instant appeal followed.
[…]
We concur that the instant complaint, which in essence challenges the Agency’s mandatory retirement at age 65 as a violation of the ADEA, fails to state a claim. Since Complainant is challenging the validity of the mandatory retirement age, which was authorized by Congress as a statutory exception to the Age Discrimination in Employment Act, the Commission finds that his complaint has been appropriately dismissed for failure to state a claim. See Brumbaugh v. Department of the Army, EEOC Appeal No. 01A05531 (Mar. 29, 2001) (the mandatory retirement provisions of the Foreign Service Act must be given “full force and effect” and the ADEA cannot be read to prohibit their implementation, citing to Strawberry v. Department of State, No. 96-5221 (D.C. Cir. 1997. In commenting on Strawberry, the Commission observed that the court looked at both statutes and concluded that Congress knew what it was doing in keeping the mandatory retirement provisions in place even when it otherwise outlawed mandatory retirement for most employers under the ADEA).

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

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State/OIG: Accountability of Official and Diplomatic Passports Needs Improvement

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State/OIG issued its Management Assistance Report: Accountability of Official and Diplomatic Passports of Separating Employees Needs Improvement this week.
According to the OIG, in December 2020, after it announced an audit of official and diplomatic passport records, the Office of Inspector General (OIG) was alerted that a former Department of State employee, a political appointee, allegedly kept their diplomatic passport after separating from the Department and wanted to use it in their new role with another U.S. Government organization.

Specifically: “A politically appointed Senior Advisor separated from the Department in November 2019. In 2020, President Trump appointed the former advisor to a role with another U.S. government organization. A representative from the new organization contacted the appointee’s former Department bureau because the political appointee was in possession of a diplomatic passport. The representative wanted to know whether the appointee could travel on behalf of the new organization using this diplomatic passport. The representative was informed by a bureau official that the appointee should not use the diplomatic passport.”

Excerpt from the MAR:

(U) During an audit of CA’s official and diplomatic passport records, OIG was alerted that a former Department employee had allegedly not surrendered their diplomatic passport upon separation from the Department and wanted to use it in a new role with another U.S. Government organization.24 According to the FAM, entitlement to an official or diplomatic passport ends when the employee separates from the Department, and the passport must be surrendered for cancellation.25

U) OIG found that the former employee’s diplomatic passport was listed as “issued” in ACRQ and had not been electronically cancelled by SIA. Based on that information, OIG performed additional steps to determine whether SIA had cancelled other employees’ official and diplomatic passports once separated from the Department. Specifically, OIG selected a sample of 134 official and diplomatic passports issued to employees who subsequently separated from the Department between November 2017 and September 2020. OIG found that 57 of 134 (43 percent) passports had not been electronically cancelled by SIA after the employee separated. Moreover, of the 57 that had not been electronically cancelled, 47 (82 percent) of the passports had not expired as of February 1, 2021, meaning they could still be valid.

(U) One reason for the deficiencies identified is that Department bureaus and offices did not always maintain proper accountability of passports and could not confirm whether separating employees had surrendered their passports for cancellation. When an employee’s entitlement to an official or diplomatic passport ends, but the passport is not surrendered or cancelled, the individual could misuse the passport, such as misrepresenting themselves as a representative of the U.S. Government. Doing so is a criminal offense.26

(U) Separated Employees’ Official and Diplomatic Passports

(U) Based upon a Bureau of Global Talent Management list of employees who had separated from the Department between November 2017 and September 2020, OIG identified 4,714 official and diplomatic passports associated with those employees. OIG selected a sample of 134 passports to test. 27 OIG found that 57 of 134 (43 percent) passports had not been electronically cancelled by SIA. In addition, of those 57 passports, 47 (82 percent) had not expired, as of February 1, 2021, meaning they could stil l be valid. 28 For example, one employee separated from the Department in December 2017, but the employee’s diplomatic passport was not scheduled to expire until April 2022- more than 4 years after separating from the Department.

OIG apparently followed up with 3 bureaus and 1 office to determine whether 17 former Department employees had surrendered their passport(s) and whether the bureaus or office had requested that SIA cancel the passports in accordance with the FAM. The follow-up revealed the following:

Two former CA employees:  “OIG identified two former CA employees who had diplomatic passports listed as “issued” in ACRQ. According to CA’s employee check-out list, employees are required to return special-issuance passports to SIA that were issued to them and to their family members upon separation and obtain the signature of an SIA staff member. SIA has no record of either of these two passports being returned for cancellation after the employees separated.”

Two former Office of the Secretary employees: “OIG identified two former Office of the Secretary employees who had diplomatic passports listed as “issued” in ACRQ. These two individuals had four passports issued to them. The Office of the Secretary’s employee check-out form requires departing employees to return their special-issuance passports and have the form initialed by the Office of the Secretary’s budget and travel office staff. An Office of the Secretary official stated that the office would have been in possession of three of the identified passports because the office maintains the diplomatic passports of people who travel with the Secretary of State. Because the three passports could not be found in the office, the official assumed that they were physically cancelled and returned to the individual. The Office of the Secretary could not provide information on the fourth passport. The Office of the Secretary official stated that a memorandum would have accompanied each passport to SIA for cancellation, but copies of the memoranda were not maintained .”(what the what? italics added).

Eleven former DS employees:  “OIG identified 11 former Bureau of Diplomatic Security (DS) employees who had diplomatic passports listed as “issued” in ACRQ. These 11 individuals had 16 passports issued to them, including 2 that were issued to a former Assistant Secretary. DS’s employee check-out form requires employees to return to the Employee Services Center or contact SIA about special-issuance passports that were issued to them and to their family members upon separation. A DS official stated that the two passports issued to the former Assistant Secretary were collected before he separated from the Department, but DS had not returned them to SIA. The DS official stated that a former employee, who returned as a PSC, claimed to have lost one passport but there was no comment on her second passport and another employee’s passport had been returned to CA. Three former DS employees had returned four passports in total to their DS offices; however, DS could not locate an additional passport for one of these individuals and an additional two passports for another of these individuals. The DS official further stated that DS did not have records for two of the people associated with two passports. DS may have facilitated the issuance of these passports, but they were not DS employees. DS did not provide information on the remaining 2 of 16 passports.”

OIG recommends that the Bureau of Consular Affairs “improve accountability over special-issuance passports by updating the Foreign Affairs Manual and any other relevant policy documents to require that (a) all Department of State bureaus and offices that participate in the Special Issuance Passport Program either (1) physically cancel special-issuance passports (including secondary passports) issued to a separating employee and email the Special Issuance Agency (SIA) a copy of the physically cancelled data page requesting that the passport(s) be electronically cancelled (along with returning the passport to SIA for destruction if not returned to the separating employee) or (2) if appropriate, file the special-issuance passport with SIA and (b) the Special Issuance Agency confirm that all special-issuance passports issued to the separating employee have been included in the cancellation request and electronically cancel all additional passport(s) as appropriate.”
Consular Affairs concurred with the recommendation, stating that it “will propose updates to the FAM and to the Special Issuance Passport Program.”  The bureau will also “update SIA’s cancellation and destruction SOP to confirm that all special-issuance passports issued to a separating employee have been included in the cancellation request and electronically cancel all additional passports as appropriate.”

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@StateDept Updates 12 FAM 233.4 Suspension of Security Clearance #NoTDYs

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🆕 12 FAM 233.4  Suspension of Security Clearance
(CT:DS-359;   04-27-2021)
a. When derogatory information is received regarding an employee with access to classified information, the director of the Diplomatic Security Service (DS/DSS), based on a recommendation from the senior coordinator for Security Infrastructure (DS/SI), will determine whether, considering all facts available upon receipt of the initial information, it is in the interests of the national security to suspend the employee’s access to classified information on an interim basis.  A suspension is an independent administrative procedure that does not represent a final determination and does not trigger the procedures outlined in 12 FAM 234.
b. Suspension of a security clearance may be appropriate in, but may not be limited to, the following situations:
(1)  Additional time is needed to resolve adverse information that may require additional investigation or for the individual to complete certain requirements to maintain his or her clearance;
(2)  Preparations are being made to revoke an individual’s existing access to classified information and access is suspended while the review of the determination to revoke takes place;
(3)  The individual is pending removal or separation from employment under 5 U.S.C. 7532; or
(4)  The individual has failed to submit required security forms or releases in a timely manner.
c.  In all cases where access is suspended, the individual must be notified, in writing, that his/her security clearance has been suspended.  Upon notification, the individual must turn in his or her Department-issued credentials that provide logical or physical access to classified systems or designated classified spaces/facilities and any and all Special Issuance Agency-issued passport(s) to the Office of Personnel Security and Suitability (DS/SI/PSS).  DS must in turn notify the appropriate human resource personnel or the Industrial Security Division (DS/IS/IND), Defensive Equipment and Armored Vehicle Division (DS/PSP/DEAV), and regional security officer/post security officer, as appropriate, of the suspension.  The executive office within the individual’s employing bureau is responsible for collecting any and all classified devices issued to the employee.
d. Personnel whose security clearances have been suspended may not be placed on temporary duty (TDY) statusExceptions to this policy may be considered on a case-by-case basis by DS/DSS, but are unlikely to be granted, barring exceptional circumstances.  An exception request must be submitted in writing from the individual’s bureau executive director to DS/DSS via DS/SI/PSS.
e. Suspension of a security clearance is an interim measure, and is not a substitute for the revocation procedures described in 12 FAM 234.
f.  The length of the suspension process can vary according to the nature and complexity of the case.  If, for example the suspension of a clearance is based on preliminary facts from a DS criminal investigation, Federal Bureau of Investigation (FBI) counterintelligence or other law enforcement investigation, or an Inspector General investigation, in many cases, those matters must be resolved and prosecutorial decisions rendered before the Department can use the information for administrative action.  Often, relevant evidence and witnesses are located abroad, which can also add time to the investigative process.  Recognizing these constraints, DS will work to resolve suspension cases as quickly as possible.
g. Where deemed appropriate, the director (DS/DSS) may reinstate a suspended clearance subject to conditions, which may include limitations of TDY or regular assignment, or with a warning that future incidents of a similar character may result in revocation of a security clearance.

 

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@EFF Awards “The Thin Crust, Wood-Fired Redactions Award” to @StateDept #SunshineWeek

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The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. It runs an annual Foilies meant to “name-and-shame” government agencies for being obstacles to public access to information.
The last time the State Department received this award was in 2016 with The Self-Server Award. For the 2021 Foilies, the State Department received “The Thin Crust, Wood-Fired Redactions” Award for the redactions of Pompeo’s list of pizza toppings apparently deemed by FOIA folks to be “far too saucy for public consumption?”
Holymoly macaroni, what could those toppings be? Peanut butter-banana jalopeno papusa-pizza?

 

Citation: The Thin Crust, Wood-Fired Redactions Award – U.S. State Department

Former Secretary of State Mike Pompeo hosted plenty of controversial meals during his three-year tenure. There was the indoor holiday party last December and those bizarre, lavish “Madison Dinners” that cost taxpayers tens of thousands of dollars, including more than $10k for embossed pens alone. And while we know the full menu of Pompeo’s high-class North Korea summit in 2018 in Manhattan—filet mignon with corn purée was the centerpiece—the public may never find out two searing culinary questions about Mikey: What are his pizza toppings of choice, and what’s his go-to sandwich?
On the pizza angle, the State Department let slip that Pompeo likes it thin and wood-fired, in emails released to NBC correspondent Josh Lederman. But the list of toppings was far too saucy for public consumption, apparently, and redacted on privacy grounds. Same for Pompeo’s sandwich-of-choice, which the State Department redacted from emails released to American Oversight. But we still know “plenty of dry snacks and diet coke” were on offer.
Originally posted here: The Thin Crust, Wood-Fired Redactions Award – U.S. State Department

 

 

USA v. Raymond: Court Issues Protective Order Pertaining to Classified Information

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Back in October, we blogged about ex-USG employee Brian Jeffrey Raymond who was called an “experienced sexual predator,” and ordered removed to D.C.  The Motion for Pre-Trial Detention in this case says that the government’s investigation has revealed 22 apparent victims thus far – the initial sexual assault victim plus 21 additional victims found on the defendant’s devices and in his iCloud. And this individual reportedly had taken over 10 polygraphs during his career. 
Court records of February 9 indicate that the Preliminary Hearing will  continue on 3/26/2021 at 11:30 AM in Telephonic/VTC before Magistrate Judge Zia M. Faruqui in the U.S. District Court for the District of Columbia.
On February 18, a “Protective Order setting forth procedures for handling confidential material; allowing designated material to be filed under seal as to Brian Jeffrey Raymond” was issued by the Court.
Uh-oh!
On March 1, 2021, the Court issued an order granting a consent motion for Protective Order Pursuant to Section 3 of the Classified Information Procedures Act by USA as to Brian Jeffrey Raymond. Excerpt:
The case will involve information that has been classified in the interest of national security

“The Court finds that this case will involve information that has been classified in the interest of national security. The storage, handling, and control of this information will require special security precautions mandated by statute, executive order, and regulation, and access to this information requires appropriate security clearances and need-to-know, as set forth in Executive Order 13526 (or successor order), that has been validated by the government.2 The purpose of this Order is to establish procedures that must be followed by counsel and the parties in this case. These procedures will apply to all pretrial, trial, post-trial, and appellate matters concerning classified information and may be modified from time to time by further Order of the Court acting under its inherent supervisory authority to ensure a fair and expeditious trial.”

Any classified information provided to the defense…

“Any classified information provided to the defense and the defendant by the government, or to the defense by the defendant, is to be used solely by the defense and solely for the purpose of preparing the defense. The defense and the defendant may not disclose or cause to be disclosed in connection with this case any information known or reasonably believed to be classified information except as otherwise provided herein.”

For Cleared Counsel Only

“The government may disclose some information to defense counsel only. This information shall be clearly marked “FOR CLEARED COUNSEL ONLY.” For any such information, defense counsel may not confirm or deny to the defendant any assertions made by the defendant based on knowledge the defense may have obtained from classified information, except where that classified information has been provided to the defendant pursuant to this Order. Any classified information the defense discloses to or discusses with the defendant in any way shall be handled in accordance with this Order and the attached Memorandum of Understanding, including such requirements as confining all discussions, documents, and materials to an accredited SCIF.”

Defendant’s Memorandum of Understanding

“As a former U.S. government employee who had access to classified information, the defendant has a continuing contractual obligation to the government not to disclose to any unauthorized person classified information known to him or in his possession. The government is entitled to enforce that agreement to maintain the confidentiality of classified information, and the defendant must sign the Memorandum of Understanding. The defendant is subject to this Court’s authority, contempt powers, and other authorities, and shall fully comply with the nondisclosure agreements he has signed, this Order, the Memorandum of Understanding, and applicable statutes.”

The order includes provisions for a secure area for the defense, filing of papers by the defense, filing of papers by the USG, record and maintenance of classified filings, the Classified Information Procedures Act, access to classified information, and special procedures for audio recordings.
The footnotes includes notation that “The Court understands that the government may move for a supplemental protective order depending on the nature of additional information that is determined to be discoverable” and that  “Any individual to whom classified information is disclosed pursuant to this Order shall not disclose such information to another individual unless the U.S. agency that originated that information has validated that the proposed recipient possesses an appropriate security clearance and need-to-know.”

Previously, on December 15, 2020, the FBI released the following announcement seeking potential victims in their Brian Jeffrey Raymond investigation.

Seeking Potential Victims in Brian Jeffrey Raymond Investigation

The FBI and the U.S. Department of State’s Diplomatic Security Service are asking for the public’s help in seeking potential victims of and additional information about an alleged sexual offender, Brian Jeffrey Raymond.

Raymond, 44, was formerly a U.S. government employee, and he traveled extensively overseas, including in Mexico and Peru. He speaks both Spanish and Mandarin Chinese. Raymond had been living in Mexico from August 2018 to May 2020.

Raymond was charged in connection with an instance in which he allegedly met a victim on a dating application and had videos and photographs of the victim showing her unconscious and partially undressed.

Raymond was arrested in La Mesa, California, on October 9, 2020. The investigation is ongoing and has revealed photographs and videos of additional adult women on Raymond’s devices and electronic accounts.

If you believe you have been a victim of Brian Jeffrey Raymond, the FBI requests that you fill out this secure, online questionnaire. The questionnaire will assist law enforcement with the investigation.

If you believe you or someone you know may have information regarding Brian Jeffrey Raymond, please complete this same questionnaire, or you may email ReportingBJR@fbi.gov or call 1-800-CALL-FBI.

The FBI is legally mandated to identify victims of federal crimes it investigates. Identified victims may be eligible for certain services and rights under federal and/or state law.

Questionnaire

Additional Resources

 

To-date, we have not/not been able  to find a press release or DSS articles from Diplomatic Security regarding this alleged sexual offender with apparently extensive overseas travel in Mexico and Peru.
Neither US Mission Mexico nor US Embassy Peru carries the FBI press release on its website in English or Spanish seeking potential victims in this case. The USG is seeking potential victims, is it not?

 


 

 

Ex-@StateDept Staffer Charged in 1/6 Insurrection to Remain in Custody Pending Trial

On March 4, former political appointee at the State Department Federico Klein was arrested in connection with the January 6 insurrection (see Three Current/Former @StateDept Employees Float to the Top in Crowded Bad News Cycle).  Klein is really going to be unhappy with his continued accommodations at the D.C. jail. On March 9 the DOJ filed its memo in support of pre-trial detention and the judge agreed to keep him in custody. Excerpt below from the pre-trial detention memo:
The dangerousness of Klein’s participation in the mob that day is only heightened by the fact that, at that time, he was an employee of the Department of State, with an obligation to uphold the Constitution. By law, federal employees are required to take an oath of office, swearing to “support and defend the Constitution of the United States against all enemies, foreign and domestic…” 5 U.S.C. § 3331. Presumably, Klein took that same oath of office when he entered federal employment. Despite his oath to support and defend the Constitution, Klein demonstrated his contempt for that oath, the legitimate functions of the government, and for the Constitution itself when he assaulted officers in an attempt to stop the certification of a lawful election. By his actions on January 6, 2021, Klein abdicated his responsibilities to the country and the Constitution. Despite the trust the country and government placed in Klein’s character, stability, trustworthiness, reliability, discretion, honesty, judgment, and unquestionable loyalty to the United States,5 Klein’s behavior revealed that his true allegiance lies elsewhere. Rather, Klein’s actions established that his own personal beliefs override the rule of law and that he will use violence in an attempt to halt the legitimate functions of the United States government with which he disagrees. Such blatant disregard of the law and the authority of a lawful government, along with his indifference to keeping his own commitments – even when made under oath – weigh in favor of detention. If Klein is unwilling to obey orders while in full view of law enforcement, or to conform his behavior to the law even when he disagrees with it, despite his oath to the Constitution, it is unlikely that he would adhere to this Court’s directions and release orders.
The criminal complaint dated March 2, 2021 charged Klein with the following:
18 U.S.C. § 1752(a)(1) – Knowingly Entering or Remaining in any Restricted Building or Grounds Without Lawful Authority,
40 U.S.C. § 5104(e)(2) – Violent Entry and Disorderly Conduct on Capitol Grounds,
18 U.S.C. § 1512(c)(2) – Obstruction of Justice/Congress,
18 U.S.C. § 231(a)(3) – Obstruction of Law Enforcement During Civil Disorder,
18 U.S.C. § 111(a)(1) – Assaulting, Resisting, or Impeding Certain Officers,
18 U.S.C. § 111(b) – Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous Weapon


 

S/ES Issues Action Memo For Ukraine/Burisma-Related Document Requests, Due August 28

 

 

Memo Justifies Susan Pompeo’s Presence in Middle East Trip During Shutdown

 

Politico’s Nahal Toosi has a new piece about that January 2019 Middle East trip the Pompeos took during the government shutdown (35-day shutdown started on December 22, 2018, until January 25, 2019, a total of 35 days).  She has the receipts — the 6-page action memo sent by M-William Todd, S/ES-Lisa Kenna, NEA-David Satterfield, and L-Jennifer Newstead to the Deputy Secretary of State John Sullivan.
Note that two signatories of this memo have moved on from Foggy Bottom, while the other two are awaiting confirmation to be U.S. ambassador. M-William Todd is a pending nominee to be Ambassador to Pakistan, S/ES-Lisa Kenna is a pending nominee to be Ambassador to Peru, NEA-David Satterfield is the current Ambassador to Turkey, and L-Jennifer Newstead had since left State to join Facebook. The memo was sent to then Deputy Secretary of State John Sullivan who is now the U.S. Ambassador to the Russian Federation.
In this action memo, S/ES “believes that accepting the invitations extended in both Cairo and Abu Dhabi advances foreign policy objectives because the invitations were extended from the highest levels of those governments reflecting the importance the concerned ministers places on the events.”
S/ES also “advises that the Pompeos’ dual representation at representational events in Cairo and the Abu Dhabi also meet the requirements of the current shutdown guidance. S/ES believes that dual representation at the events at issue is necessary because the invitations were extended directly by the ministers, reflecting the importance they place on the event to strengthen bilateral ties.”
NEA “can only note that the invitation to Mrs. Pompeo having been extended and accepted, to decline now could be taken as a lack of courtesy, and that in NEA’s view there is no significant foreign policy interest here save the issue of courtesy.” NEA further states, “Again, NEA notes that to decline the invitation now could be seen as lack of courtesy, but there is no significant foreign policy interest here save the issue of courtesy. We also note that such determinations may be scrutinized, and that there is a risk that Mrs. Pompeo’s travel during a shutdown could attract media attention and potential criticism in the Congress and elsewhere.”
Well, what do you know? Experienced NEA guy’s take turned out to be true.
The memo’s justification cited 14 FAM 532 and says “a family member may participate in a representational event where a clear need for dual representation exists, and should such a determination be made the Department may cover travel and other costs associated with the family member’s participation.”
So we went and looked up 14 FAM 532, and you can read it below or read it in full here.
14 FAM 532.1-1 says that “The authorizing officer is expected to make sparing and judicious use of this authorization.  In all cases, the justification must demonstrate a clear advantage to the United States.” 
The authorizing officer is this case is the Deputy Secretary of State (D), who at that time was John Sullivan. While the Action Memo was cleared by D’s office, the name of the clearing officer was redacted. As all the names were spelled out on the memo, except the signoff for D’s office, we are guessing that this was cleared by a staffer in the deputy secretary’s office, thus the redaction. This is not, of course, uncommon in the State bureaucracy. But we’re wondering just how much judiciousness by an aide went into this exercise?
14 FAM 532.1-1(B)  Outside Country of Assignment
Representational travel outside the country of assignment is restricted to family members of high-level officers and will be authorized only when a clear need for dual representation exists.  Normally, travel will be restricted to eligible family members of chiefs of mission, deputy chiefs of mission, country public affairs officers, and USAID mission directors or USAID representatives.  However, in exceptional circumstances, the eligible family members of a subordinate officer may be authorized such travel.  Typical of the circumstances warranting representational travel outside the country are the following:
(1)  When an ambassador or USAID mission director accompanies a foreign dignitary to the United States on a state visit or as a presidential guest and the dignitary is accompanied by a spouse or other members of the household;
(2)  When a State, or USAID officer attends an international conference or meeting sponsored by a group or organization of nations, such as the United Nations, and the spouses of participants have also been invited to attend; and
(3)  When the President sends U.S. delegations abroad or congressional or other high-level delegations proceed abroad, accompanied by their spouses.
Right.  They’re going to say the FAM is not exhaustive, and this is just guidance. Not  (1), and not (3) but they got it done with typical circumstance (2) because this was a meeting, and a spouse was invited, though the invitation was not by a group or by an international organization. But why quibble with something minor, hey? They made it worked and she got on a trip, as well as other trips, and they could all say, this was blessed by legal and ethics folks. Because why not?  She’s a … what’s that … “a force multiplier.” No more talk of her writing a report, is there?

American Oversight Publishes Heavily Redacted State/OIG Hotline Complaint Regarding Pompeo Conduct

 

In May this year, American Oversight filed an FOIA request to the Department of State seeking “records sufficient to identify any whistleblower complaints containing allegations that concern the conduct of Secretary Mike Pompeo.” It also asked that the request be processed on an expedited basis. “The request was made in light of news on May 15 that President Donald Trump would be ousting State Department Inspector General Steve Linick, the independent watchdog tasked with overseeing the State Department headed by Secretary Mike Pompeo.”
On July 17, 2020, American Oversight published the State/OIG Hotline Complaint, a 4-page heavily redacted document of a whistleblower complaint.
The complaint was not/not submitted anonymously, but the sender marked “no” on the section for willingness to waive confidentiality.
The whistleblower said that they witnessed “concerning activities” in Washington, D.C. , other locations in the U.S. including New York and Florida, and overseas.
A heavily redacted Summary of Incident notes whistleblower “directly witness and/or heard numerous firsthand accounts” followed by two paragraphs of blackened entry.
Under “False or misleading statements” were two paragraphs that were ruthlessly Sharpied.
Under “Direction by” two paragraphs were also under cover of darkness.
The complaint states, “tried on several occasions to obtain clarifications and guidance from senior leadership in S/ES and from the Office of Legal Advisors, but were blocked from doing so.”
Redacted names “were made aware of these concerns on repeated occasions.” “To my knowledge, none of them ever took action to resolve the issues, and several of them specifically directed subordinate staff to continue facilitating questionable activities after the concerns were raised.”
At some point the names of these alleged enablers will be known to the public. Please be alert on what happens to this whistleblower whose identity is known to State/OIG.
S/ES is the Executive Secretariat of the State Department.  The Office of Legal Adviser is currently encumbered by an Acting Legal Adviser since the departure of the Legal Adviser in May 2019.

Secretary of State to be Sole Recipient of ARB Report, Will Also Determine Its Subsequent Distribution.

 

On June 1, 2020, the State Department updated its Foreign Affairs Manual (12 FAM 030) covering the Accountability Review Board (ARB). The chair of the ARB Permanent Coordinating Committee will now be the director of the Office of Management Strategy and Solutions (M/SS). If we remember correctly, this used to be the director of M/PRI (Office of Management Policy, Rightsizing and Innovation (M/PRI). Another update relates to the classification authority of Board Members; they have no original classification authority; M/SS will exercise original classification authority on the Board’s work materials.  On the ARB’s findings, the Board submits its findings to the Secretary of State through M/SS.  The updated regs make clear that “the report will initially be provided solely to the Secretary, who will determine its subsequent distribution.”
The updated regs has not eliminated 12 FAM 036.4  which refers to Reports to Congress (an update from 10-05-2017). Per the ARB statute, the Secretary will, not later than 90 days after the receipt of a Board’s program recommendations, submit a report to the Congress on each such recommendation and the action taken with respect to that recommendation.”
The Secretary is required to submit “a report” to the Congress not later than 90 days but the regs does not require him/her to submit the ARB report. The new regs says the secretary of state will determine the report’s “subsequent distribution.”

12 FAM 035  FINDINGS AND RECOMMENDATIONS

12 FAM 035.1  Findings
(CT:DS-332;   06-01-2020)

a. Examination:  A Board will examine the facts and circumstances surrounding the security-related incident or a visa incident.

b. Written submission:  In its report to the Secretary, a Board makes written findings, which may be classified, as necessary.

c.  Dissemination of findings:  The board submits its written findings directly to the Secretary through the M/SS director, whose role is only to classify the document as appropriate (the Board members do not have original classification authority), and L, whose role is to offer legal advice about the report, including ensuring that the report meets the legal requirements laid out in 22 U.S.C. 4834.  The report will initially be provided solely to the Secretary, who will determine its subsequent distribution.  The Board’s written findings are distributed as directed by the Secretary following the Secretary’s receipt of the Board’s written findings.

12 FAM 034.2-5  Classification Authority
(CT:DS-332;   06-01-2020)

Members of the Board do not have original classification authority.  The director of M/SS will exercise original classification authority for materials originating from Board activities.

12 FAM 032.1  ARB Permanent Coordinating Committee (ARB/PCC)
(CT:DS-332;   06-01-2020)

a. Purpose:  The ARB/PCC will, as quickly as possible after an incident occurs, review the available facts and recommend to the Secretary to convene or not convene a Board.  (Due to the 1999 revision of the law requiring the Secretary to convene a Board not later than 60 days after the occurrence of an incident, except that such period may be extended for one additional 60-day period, the ARB/PCC will meet within 30 days of the incident if enough information is available.) In addition, the ARB/PCC will meet yearly to review the ARB process, existing policies and procedures, and all past ARB recommendations, and ensure that any necessary changes are effected.

b. Membership:  The ARB/PCC will be composed of the following members:

(1)  The director of the Office of Management Strategy and Solutions (M/SS), who will chair the ARB/PCC; or designee

(2)  The Assistant Secretary for Diplomatic Security or designee;

(3)  The Assistant Secretary for Intelligence and Research or designee;

(4)  The coordinator for Counterterrorism or designee;

(5)  The assistant secretary or designee of the relevant regional bureau(s)

(6)  One representative designated by and representing the DNI; and

(7)  The Assistant Secretary for Consular Affairs or designee.

    NOTE:  Designees must have the authority to vote at ARB/PCC meetings on behalf of their principal; they may not defer decisions until they have briefed the principal.

c.  Other participants:  As a result of the State-Justice Memorandum of Understanding (MOU) dated September 20, 2001, the Department of Justice has attended PCC meetings.  The Department’s Deputy Legal Adviser, director of the Bureau of Medical Services, and Executive Secretary of the Executive Secretariat, or his/her designees, will attend PCC meetings.  Also, as determined by the chairperson, representatives of other offices and agencies may be invited to work with the ARB/PCC.  Participants listed in this section do not vote.