116th Congress Regulations for the Use of Deposition Authority and 3 FAM 4170/10 FAM 130

The long-standing governing guidelines at the State Department for public speaking, teaching, writing, and  media engagement is 3 FAM 4170. The provisions of this subchapter apply to all public communications as defined in 3 FAM 4173, such as speaking, teaching, writing, and press/media engagement, including that prepared for electronic dissemination in an employee’s official capacity, or in an employee’s personal capacity if on a topic “of Departmental concern,” as defined in 3 FAM 4173. This subchapter makes no exceptions for special government employees (SGEs).
The most recent update for this subchapter was in March 2017 and it says in part:

The provisions of this subchapter are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by statute or executive order relating to: (1)  Classified information; (2)  Communications to Congress; (3)  Reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or (4)  Any other whistleblower protection.

3 FAM 4170 Overview notes:

The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4)

On March 14, 2019, the State Department also updated 10 FAM 130 REMARKS AND WRITINGS FOR THE MEDIA AND GENERAL PUBLIC.  This subchapter defines “official” as public remarks including speeches, congressional testimony, press statements, and remarks prepared for photo opportunities.
This subchapter’s policy also says that “Official appearances before the media or general public to give formal interviews, speeches, or remarks must be cleared with the Assistant Secretary for Public Affairs.  See 10 FAM 131.4.  See also 3 FAM 4174.2 and 3 FAM 4174.3.” And it says that “former employees remain obligated by law not to disclose classified information, and certain employees may be bound by nondisclosure agreements.  See also 3 FAM 4174.2 paragraph d.”
On the matter of noncompliance, last updated in July 2015 per 3 FAM 4177:  “Failure to follow the provisions of this subchapter, including failure to seek advance reviews where required, may result in disciplinary or other administrative action up to and including separation. … Publication or dissemination of classified or other protected information may result in disciplinary action, criminal prosecution and/or civil liability.
We dug this up due to the forthcoming depositions by State Department officials in the coming days. In one hand, the FAM says that 3 FAM 4170 is consistent and do not supersede, or conflict with an employee’s obligation related to communication with Congress, and yet 10 FAM 130 updated in March 2019, a couple of months after congressional rules on depositions was adopted, specifically notes that congressional testimony is considered “official” remarks and require clearance. Somebody would have to sort this out very soon. Or we’ll know soon enough.
The first depositions in the Impeachment Inquiry will start tomorrow with the scheduled appearance of former U.S. Special Representative for Ukraine Negotiations Kurt Volker (described by NBC News as an “unpaid volunteer” and reportedly classified as a “Special Government Employee”).  Given that he is only the first to be deposed and we expect there will be many more before this is over, we thought we’d also dig up the rules for depositions in the 116th Congress.
Per section 103(a)(2) of House Resolution 6, 116th Congress, the following regulations regarding the conduct of depositions by committee and select committee counsel was printed in the Congressional Record on January 25, 2019. The Congressional Record version is available to read here, and in PDF file here. Perhaps most notable here is #3 regarding the presence of USG observers or counsels during depositions.
This is probably not a bad time to remind folks why Professional Liability Insurance is needed. Read here and here.

1. Notices for the taking of depositions shall specify the date, time, and place of examination. Depositions shall be taken under oath administered by a member or a person otherwise authorized to administer oaths. Depositions may continue from day to day.

2. Consultation with the ranking minority member shall include three days’ notice before any deposition is taken. All members of the committee shall also receive three days written notice that a deposition will be taken, except in exigent circumstances. For purposes of these procedures, a day shall not include Saturdays, Sundays, or legal holidays except when the House is in session on such a day.

3. Witnesses may be accompanied at a deposition by personal, nongovernmental counsel to advise them of their rights. Only members, committee staff designated by the chair or ranking minority member, an official reporter, the witness, and the witness’s counsel are permitted to attend. Observers or counsel for other persons, including counsel for government agencies, may not attend.

4. The chair of the committee noticing the deposition may designate that deposition as part of a joint investigation between committees, and in that case, provide notice to the members of the committees. If such a designation is made, the chair and ranking minority member of the additional committee(s) may designate committee staff to attend pursuant to regulation 3. Members and designated staff of the committees may attend and ask questions as set forth below.

5. A deposition shall be conducted by any member or committee counsel designated by the chair or ranking minority member of the Committee that noticed the deposition. When depositions are conducted by committee counsel, there shall be no more than two committee counsel permitted to question a witness per round. One of the committee counsel shall be designated by the chair and the other by the ranking minority member per round.

6. Deposition questions shall be propounded in rounds. The length of each round shall not exceed 60 minutes per side, and shall provide equal time to the majority and the minority. In each round, the member(s) or committee counsel designated by the chair shall ask questions first, and the member(s) or committee counsel designated by the ranking minority member shall ask questions second.

7.  Objections must be stated concisely and in a non-argumentative and non-suggestive manner. A witness’s counsel may not instruct a witness to refuse to answer a question, except to preserve a privilege. In the event of professional, ethical, or other misconduct by the witness’s counsel during the deposition, the Committee may take any appropriate disciplinary action. The witness may refuse to answer a question only to preserve a privilege. When the witness has refused to answer a question to preserve a privilege, members or staff may (i) proceed with the deposition, or (ii) either at that time or at a subsequent time, seek a ruling from the Chair either by telephone or otherwise. If the Chair overrules any such objection and thereby orders a witness to answer any question to which an objection was lodged, the witness shall be ordered to answer. If a member of the committee chooses to appeal the ruling of the chair, such appeal must be made within three days, in writing, and shall be preserved for committee consideration. The Committee’s ruling on appeal shall be filed with the clerk of the Committee and shall be provided to the members and witness no less than three days before the reconvened deposition. A deponent who refuses to answer a question after being directed to answer by the chair may be subject to sanction, except that no sanctions may be imposed if the ruling of the chair is reversed by the committee on appeal.

8. The Committee chair shall ensure that the testimony is either transcribed or electronically recorded or both. If a witness’s testimony is transcribed, the witness or the witness’s counsel shall be afforded an opportunity to review a copy. No later than five days after the witness has been notified of the opportunity to review the transcript, the witness may submit suggested changes to the chair. Committee staff may make any typographical and technical changes. Substantive changes, modifications, clarifications, or amendments to the deposition transcript submitted by the witness must be accompanied by a letter signed by the witness requesting the changes and a statement of the witness’s reasons for each proposed change. Any substantive changes, modifications, clarifications, or amendments shall be included as an appendix to the transcript conditioned upon the witness signing the transcript.

9. The individual administering the oath, if other than a member, shall certify on the transcript that the witness was duly sworn. The transcriber shall certify that the transcript is a true record of the testimony, and the transcript shall be filed, together with any electronic recording, with the clerk of the committee in Washington, DC. Depositions shall be considered to have been taken in Washington, DC, as well as the location actually taken once filed there with the clerk of the committee for the committee’s use. The chair and the ranking minority member shall be provided with a copy of the transcripts of the deposition at the same time.

10. The chair and ranking minority member shall consult regarding the release of deposition testimony, transcripts, or recordings, and portions thereof. If either objects in writing to a proposed release of a deposition testimony, transcript, or recording, or a portion thereof, the matter  shall be promptly referred to the committee for resolution.

11. A witness shall not be required to testify unless the witness has been provided with a copy of section 103(a) of H.Res. 6, 116th Congress, and these regulations.

 

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Congress Threatens to Compel Testimony of Ex-@StateDept Career Employee Over HRC’s Email Server

Posted: 3:34 am EDT
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We have not heard this name publicly cited before, but Politico is reporting that John Bentel, a 39 veteran of the State Department has now been snared in the Clinton email server saga. Politico says that according to a letter it obtained, Mr. Bentel has declined to be interviewed by GOP staff on the Senate Judiciary and Homeland Security committees. The chairmen of both committees, Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), are reportedly “threatening to consider other ways to compel” Mr.  Bentel to discuss the matter.  Excerpt:

A State Department staffer who oversaw security and technology issues for Hillary Clinton is refusing to answer Senate investigators’ questions about the former secretary of state’s use of a private email server — marking the second time an ex-State employee has declined to talk to lawmakers.

John Bentel, a now retired State employee who managed IT security issues for the top echelon at the department, declined to be interviewed by GOP staff on the Senate Judiciary and Homeland Security committees, according to a letter obtained by Politico.
[…]
The chairmen of both committees, Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), are now threatening to consider other ways to compel him to discuss the matter.

“We are troubled by your refusal to engage with the committees even after repeated overtures of accommodation,” the letter to Bentel and his lawyer reads. “We need to speak with you. … We would, of course, prefer that you meet with us in a voluntary and informal manner, but we will consider other options if faced with a continuing lack of cooperation.”
[…]
On Dec. 4, 2015, Judiciary and Homeland investigators reached out to Bentel’s lawyer to schedule an interview. But Turk told them Bentel had already been asked about the matter when he sat before the House Benghazi Committee. Turk said Bentel told the committee he had “no memory of knowledge” of the server issue and there was “little point” in telling another committee the same thing, according to the letter.

But both Senate panels say Bentel may have been aware of the sever, noting that their investigators have been told that some of Bentel’s subordinates knew about the home setup: “It appears that you were an integral figure in the operations of the Executive Secretariat and that you would have particular and unique knowledge relevant to the committees’ inquiry. Indeed, Department personal have noted that your subordinates in the Executive Secretariat’s office, who reported directly to you, had knowledge of Secretary Clinton’s private email server, which leads one to conclude that you were likely made aware of the server.”

Read more:

There does not seem to be an end in sight for these investigations. Certainly not in 2016.  This is a potential conundrum for folks even in the periphery of the former secretary’s orbit.  One can show up to these interviews and become a story, or one can refused to show up for these interviews and still become a story. Beyond becoming the news of the day, click here for what happens if one refuses to testify.

The law firm, MayerBrown says that Congress can compel the production of documents and sworn testimony from almost anyone at almost any time.  It has a good primer (PDF) on the Congress’s investigative authority and subpoena power:

“Although there is no legal obligation that a party comply with such a request, it is typically in the responding party’s best interest to do so, except where privileged or other sensitive information is involved [snip]. These informal requests present an important first opportunity for the responding party to shape the views and perceptions of the committee staff. Congressional staff members are required to work on a wide range of issues. They will rely heavily on a responding party whom they view as trustworthy to educate them on the issues under investigation. In addition, cooperating with an initial request allows the responding party to demonstrate that it is compliant and respectful, favorably influencing the staff and potentially mitigating the risk that members will publicly attack the responding party for noncooperation.”

Even if there is no immediate possibility of getting snared in these investigations, it’s probably a good reminder to review one’s private Professional Liability Insurance coverage. PLI may not just offer coverage on administrative and disciplinary matters, but also congressional, OIG investigations and civil suits. Outside these controversies, there is one very good reason for a PLI.  The Kent Case demonstrates that while FSOs are considered on duty 24/7, the 24/7 rule “. . . only defines the FSO’s duty to the state–not the states duty to the FSO.”  The case is Kashin v Kent dating back to 1998, decided by the Appeals Court in August 2006, and we think, it’s a must read case for FS employees.

Note that State Department regulations allow the reimbursement of up to 50%, or $175, whichever is less of the PLI cost for eligible covered employees (see 3 FAM 3840 – pdf). Membership with AFSA also affords one legal services when needed.  Check with AFSA. Also check with HR for guidance on PLI coverage.

 

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Congressional Drama Features Ex-Clinton IT Staffer Bryan Pagliano, Good Excuse to Check Your PLI Coverage

Posted: 5:27 am EDT
Updated: 3:03 pm EDT
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Bryan Pagliano worked on Hillary Clinton’s 2008 presidential campaign and reportedly helped manage her server at that time. When Clinton became secretary of state in 2009, Pagliano got a job at the State Department.  This report citing public federal records says that he was classified as a GS-15 in his job as a special advisor and deputy chief information officer at the State Department. He earned around $140,000 per year from 2010-2012.  He was also reportedly paid personally by the Clintons to continue managing the private server from 2009 to 2013.

The State Department confirmed on September 3, that Mr. Pagliano was employed by the State Department from May 2009 through February 2013 as an IT specialist, and that he currently serves as a contractor working in the Bureau of Information Resource Management (State/IRM). The State Department also said that it was not consulted on Mr. Pagliano’s decision to take the 5th.   “He has pleaded the Fifth, so to speak. It’s certainly not an admission of guilt, as we all know, but it’s his constitutional right, so we respect that,” the official spokesperson said.

That’s not the end of it, of course. The House Select Committee on Benghazi is reportedly requiring Mr. Pagliano’s presence, which prompted a stern letter Wednesday from Pagliano’s lawyer, who accused the panel and its chairman, Rep. Trey Gowdy (R-S.C.), of engaging in political theater and abusing its subpoena power, according to the Washington Post. Politico also has a report today noting that Pagliano’s lawyer, Mark MacDougall has said in a letter to two congressional panels that he did not ask any Congressional committees for immunity, but “in the event that any committee of the Congress” does authorize such a judicial order, “Mr. Pagliano will, of course, comply with such an order.”

Even if you’re in no danger of getting snared in the Clinton controversies, isn’t this case a good reminder to review one’s Professional Liability Insurance coverage? PLI covers not just admin and disciplinary matters, but also congressional and OIG investigations. For eligible employees, the State Department regulations allow the reimbursement of up to 50% of PLI cost (see 3 FAM 3840 – pdf).

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