Archives for October 2016

How Many Obama Political Appointees are “Burrowing” into Permanent Career Positions?

 CoA Institute questions role of former Obama appointee on the Department of Veterans Affairs Presidential transition team

Washington, DC – Cause of Action Institute (CoA Institute) today sent two Freedom of Information Act (FOIA) requests, one to the U.S. Office of Personnel Management (OPM) and one to the U.S. Department of Veterans Affairs (VA), seeking records on what has become an election-year tradition in Washington D.C.: political appointees at federal agencies attempting to transition to permanent career positions. This practice, commonly referred to as “burrowing,” often entails political employees gaining unfair advantage and using their connections to obtain permanent positions.
Cause of Action Institute Vice President John Vecchione: “Selecting permanent federal government employees based on ideology instead of qualifications is a disservice to American taxpayers and results in less qualified civil servants. Burrowing also provides the outgoing presidential administration the ability to place ideological allies within the federal government permanently, creating a more politicized bureaucracy. American taxpayers have a right to know how many Obama administration political appointees are gaming the system and attempting to transition to permanent positions.”
In an effort to curtail burrowing, OPM in 2009 began requiring any agency attempting to appoint current or former political appointees to a competitive, career position to first obtain approval from OPM. However, it is unclear how often agencies request waivers or how often waivers are granted.
Attempts to burrow during the final year of the Obama administration have already come to light. In the FOIA sent today, CoA Institute has requested records relating to an Obama administration appointee burrowed at the VA.  Gina Farrisee was first appointed by the Obama administration to serve as the VA’s Assistant Human Resources Secretary in September 2013. Nearly three years later, on May 2, 2016, the VA announced that Ms. Farrisee was being named the VA’s Deputy Chief of Staff, a permanent career position.
Ms. Farrisee is also apparently a key member of the VA White House transition team that is preparing the agency for the next administration and that she, together with a current political appointee, will be managing the transition process at the VA.  It therefore appears that the top two roles on the VA transition team are led by current or former political appointees, raising questions about the transparency of that process. CoA Institute accordingly has requested all records relating to Ms. Farrisee’s role on the VA Presidential transition team.
The FOIA to OPM can be found HERE
The FOIA to VA can be found HERE
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CoA Institute Seeks Email Records of Former Secretary of State Colin Powell

Washington, DC – Cause of Action Institute (CoA Institute) has sent Federal Records Act (FRA) notices to Secretary of State John Kerry and Archivist of the United States David Ferriero urging them to fulfill their statutory obligations to recover former Secretary of State Colin Powell’s work-related email records from a private email service provider.

Last month, at a House Oversight & Government Reform Committee hearing about Freedom of Information Act (FOIA) compliance at the State Department, Under Secretary of State Patrick Kennedy testified that his agency had undertaken only minimal efforts to retrieve work-related emails created or received by Secretary Powell on his private AOL email account.  Upon learning that Secretary Powell no longer had access to this account, the State Department merely requested that he contact his email provider to see if any records were still recoverable.  Secretary Powell never responded to that request, and the State Department took no further action, despite a request from NARA to contact AOL directly.  Under Secretary Kennedy justified State Department inaction by claiming that the agency lacks legal authority to take further action to recover agency records from Secretary Powell’s email service provider.

Cause of Action Institute Vice President John Vecchione: “The position that the State Department has no legal authority to take direct action to recover Secretary Powell’s work-related emails is absurd and should not be left unchallenged. American taxpayers have a substantial interest in ensuring that federal records are properly saved, archived, and available to the public through FOIA.  The State Department and NARA must live up to statutory obligations designed to keep the government accountable and transparent, and to preserve a written record of the federal government for future generations.”

The State Department’s position is not supported by federal law.  Not only do the email records in question belong to the State Department—as recently confirmed by the D.C. Circuit in Competitive Enterprise Institute v. White House Office of Science & Technology Policy—but the FRA gives the Secretary of State (as well as the Archivist of the United States) the authority, acting through the U.S. Attorney General, to take necessary legal action to recover alienated records.  The right to initiate action through the Attorney General is a mandatory obligation—in other words, the Secretary and the Archivist are required to initiate actions to recover Secretary Powell’s work-related email.

CoA Institute’s letters include FOIA requests for copies of all of Secretary Powell’s email, as well records concerning what efforts, if any, the State Department and NARA have (or have not) taken to retrieve these records that ultimately belong to the American public—records that would reveal the diplomatic activities of the Bush administration during politically contentious years.

Click here to view the letter to Secretary John Kerry

Click here to view the letter to ARCHIVIST David Ferriero

Report Reveals How White House Evaded Checks, Likely Accessed Confidential Taxpayer Information

Washington, D.C. – Cause of Action Institute (CoA Institute) today released a comprehensive investigative report, Presidential Access to Taxpayer Information. The report covers in detail recent IRS misuse and unauthorized release of confidential taxpayer information and the possible role of a detailee program in the Office of the White House Counsel that may have provided access to the protected information.

The report states:

Following the misuse and unauthorized release of confidential taxpayer information during President Obama’s first term, including the largest breach of taxpayer confidentiality laws by the federal government in United States history, Cause of Action Institute investigated the legal and institutional checks designed to protect against such improper disclosure and the means by which the Obama administration may have evaded those checks.

That investigation revealed that President Obama has circumvented the congressionally created and authorized procedures for accessing confidential taxpayer information—procedures that were designed to be exclusive—by relying on individual consent forms that were never intended for use by the president. The practice has allowed the president to avoid the reporting requirements and limitations placed on presidential access to taxpayer information by the Tax Reform Act of 1976. In particular, the use of individual consents enables the administration to skirt statutory recordkeeping and reporting requirements to Congress, the limitations on the kind of information available for disclosure, and the extent to which such information can be shared within government agencies and offices.

The report reveals that throughout the Obama administration the Office of the White House Counsel employed at least one attorney detailed from the Department of Justice (DOJ) Tax Division.  At least two of those attorney-detailees had intimate knowledge of confidential taxpayer information gained while serving as counsel to the IRS in litigation with nonprofit groups opposed to President Obama’s policies. This information is otherwise restricted from disclosure to the President and other White House officials.

The report shows that neither the DOJ Tax Division nor the Office of the White House Counsel has implemented context-specific training, guidelines, or ethical screens to prevent the inadvertent or deliberate disclosure of confidential taxpayer information by attorney-detailees.

Inherent conflicts of interest in the detailing program make it imperative that Tax Division attorneys who work on detail to the Office of the White House Counsel, especially those who have served as counsel to the IRS in matters involving the political opponents of the president, receive enhanced training and supervision to ensure the safeguarding of confidential taxpayer information. There does not appear to be any such program, specialized training, or targeted guidelines in place.

The report makes several recommendations, including that Congress should amend the Internal Revenue Code to ensure that the exclusive mechanisms created by the Tax Reform Act of 1976 for presidential access to confidential taxpayer information are enforced.

The full report and executive summary can be found here.


The EPA Must Account For Its Actions (Judge Lechner op-ed)


ALFRED J. LECHNER, JR. – 10/07/2016
Federal regulation is the American economy’s silent killer. Every day, the vast bureaucracy in D.C. issues reams of red tape that stifle the creation of new jobs or snuff out good-paying jobs that already exist.

That is why my organization, Cause of Action Institute, has formally petitioned one of the most regulation-happy federal agencies — the Environmental Protection Agency (EPA) — to fulfill its statutory requirement to investigate the careers and opportunities it has crushed.

The Clean Air Act, signed into law by President Lyndon B. Johnson in 1963, contains a little-known provision that enables individuals who have lost their jobs to ask the EPA to examine whether its regulatory actions were at fault. Upon receiving such requests, the agency must conduct an investigation and potentially hold public hearings. Congress specifically included this requirement to better gauge the impact of EPA regulations on the American job market.

Unfortunately, 50 years after the Act’s passage, the EPA has still not set up this process, much less given it teeth. As a result, Americans who wish to request an investigation have no idea where to start; this undoubtedly dissuades many from trying.

Equally concerning, the agency has failed to establish any rules to guide its actions. This enables the EPA to tilt the few investigations it does undertake in its own favor — or ignore requests entirely. [Read More…]

Cause of Action Institute Investigates Arizona Electrical Market

Cause of Action Institute is investigating the battle for retail market share in Arizona between electric power for consumers and businesses regulated and controlled by the Arizona Corporation Commission (“ACC”), and rooftop solar competition, including competition from SolarCity Corp., (“SolarCity”). The ACC is a quasi-executive regulatory agency in the Arizona state government. It is Arizona’s state regulatory body for non-municipal utility companies, including energy, heat, trash, water and communications firms. The ACC also oversees the incorporation of businesses, securities regulation and railroad/pipeline safety.

SolarCity provides technologies for mounting solar panels on rooftops developed by Zep Solar, which it acquired in 2013. Zep is best known for inventing a system that allows solar photovoltaic installers to join panels on the roof more quickly than other installation approaches to shorten installation time. SolarCity was co-founded in 2006 by brothers Lyndon Rive (CEO) and Peter Rive (CTO). Their cousin is Elon Musk, who serves as SolarCity’s Chairman. On August 1, 2016, SolarCity accepted Tesla Motors’ (Musk’s car company) offer to acquire the company for $2.6 billion. As of August 2016, Musk owned 22% of SolarCity stock.

Cause of Action Institute is seeking records and information regarding the FBI’s long-term, ongoing investigation of the financing of certain Arizona statewide electoral races in the 2014 election cycle, and the Arizona Public Service (“APS”), which spent unprecedented millions of dollars over the last three years to allegedly influence the regulators on the ACC. Additionally, CoA Institute is examining the relationship(s) between the Checks and Balances Project of Arizona (“CBP”), SolarCity, Save Our AZ Solar, Energy Choice for America, Renew American Progress, and Elon Musk, including but not limited to, the Bureau’s interactions with Scott Petersen of CBP, and former ACC Commissioner Gary Pierce, as well as any White House involvement in the FBI investigation’s genesis.

You can read the Cause of Action Institute FOIA request here.

Patrick Massari is Counsel at Cause of Action Institute

Editing the Facts of Terrorism to Fit Obama’s Narrative (Judge Lechner op-ed)

the-daily-signalAlfred J. Lechner Jr. | October 04, 2016  

In the early morning hours of June 12, an armed terrorist named Omar Mateen opened fire in a nightclub in Orlando, Florida. The next morning, Americans awoke to the news that 49 people had been murdered—the largest mass shooting in American history.

This heinous act left Americans, as well as the Orlando community, grieving and searching for answers. But for several days after the shooting, the Justice Department knowingly curtailed the release of information about the shooter’s motives. [Read More…]