– Domani Spero
Eligible U.S. government employees may be detailed or transferred to certain international organizations in which the United States participates. Authority and procedures for such details and transfers are found in: 5 U.S.C. §§ 3343, 358l-3584 and 5 C.F.R. and §§ 352.301 through 352.314. via
This past summer, we learned that for the past several years, the Department and AFSA have agreed to a “procedural precept” for the Foreign Service Selection Boards that explicitly excludes from promotion consideration Foreign Service Officers who have been transferred to some international organizations. We could not find hard numbers on how many officers have been impacted or which IO assignments are excluded.
We did hear that this particular issue (separation to work in an international organization, with re-employment rights) apparently affects “a very small number of people,” and that in the past, officers, typically not willing to rock the boat, have made themselves content with simply accepting a time-in-class (TIC) extension (pdf).
That’s weird, right? This appears to disincentivize U.S. citizen employment in international organizations, something that is apparently a congressional mandate; so much so that an office in the Bureau of International Organization Affairs (State/IO) is actually tasks with promoting such employment. Well, actually the policy for agencies to take affirmative steps in having U.S. citizens work in international organization dates back to President Lyndon B. Johnson’s tenure. Seriously.
We understand that the justification for the exclusion in the Precepts was articulated over five years ago and is contained in a June 23, 2008 AFSA letter:
“The rule prohibiting Selection Board competition of members on certain secondments became effective in June 2004 on issuance of the Procedural Precepts for the 2004 Foreign Service Selection Boards and has been in effect for the past five years [sic]. It was introduced to prevent employees from using secondments to extend their time-in-class and the length of their tours of duty in Missions such as Vienna, Brussels and Geneva while continuing to compete for promotion, performance pay, etc.”
An FSO who is familiar with the process and the exclusion told us that this explanation is “nonsense.” Apparently, this exclusion also applies to personnel transferred to UN agencies in Afghanistan, Darfur, Southern Sudan, Kenya, East Timor, etc. We were also told that the Precept (see (I(B)(6)(j) of the Procedural Precepts), is a “Bush-era ham-fisted attempt” to punish any service outside of Iraq and Afghanistan, with “scant attention paid to broader policy implications or legal norms.”
So in essence, we really want more Americans to serve in international organizations, but if FS employees do serve in those capacities, it is likely that some of them will not be considered for promotion. And since international org assignments can run longer than foreign service tours, that basically puts a career in deep ice; surely a concerning detail in an up or out system like the Foreign Service. And you wonder why there’s not a single stampede for these jobs.
What do the Federal regulations say?
Title 5 (see CFR § 352.314 Consideration for promotion and pay increases) has this:
(a) The employing agency must consider an employee who is detailed or transferred to an international organization for all promotions for which the employee would be considered if not absent. A promotion based on this consideration is effective on the date it would have been effective if the employee were not absent. (pdf)
We were told that the State Department’s Legal Adviser’s (State/L) position is that… “The Precepts are authorized under Title 22, and the Secretary has the authority to prescribe what they say”.
And what exactly does Title 22 says?
22 USC § 3982 (2011) §3982. Assignments to Foreign Service positions
(a) Positions assignable; basis for assignment
(1) The Secretary (with the concurrence of the agency concerned) may assign a member of the Service to any position classified under section 3981 of this title in which that member is eligible to serve (other than as chief of mission or ambassador at large), and may assign a member from one such position to another such position as the needs of the Service may require.
So basically since “L” had apparently ruled that FS Assignments are made under Title 22 (which does not address promotions), and Title 5 (the part of the regs that actually addresses promotion), does not apply — there is no desire to reconcile the conflict between the promotion eligibility of detailed/transferred employees to an international organization contained in Title 5 with the exclusion contained in the Precepts?
Wow! We’re having an ouchy, ouchy headache.
If this interpretation stands, does it mean that the Secretary of State is free to disregard any legal norm, standard or entitlement that is not spelled out specifically in Title 22?
And we’re curious — where does HR/CDA/SL/CDT obtain its legal authority to pick and choose among transferred members on who should and should not be considered for promotion? It appears that 5 CFR 352.314 spells out a clear entitlement to promotion consideration for ALL transferred officers but for the “L” interpretation.
We understand that there is now a Foreign Service Grievance case based exactly on this exclusion in the Precept. If not resolved by FSGB, this could potentially move to federal court as it involves not only adjustment in rank, and withheld benefits but also TSP coverage which has retirement implications. Will State Department lawyers go to court citing “FS Assignments outside DOS” booklet, issued by HR/CDA/CDT over the federal regulations under Title 5?
Perhaps, the main story here is not even about a specific precept, but the fact that Department management is disregarding Federal law and from what we’ve seen — AFSA, the professional representative and bargaining unit of the Foreign Service has been aware of this for years but has no interest in pressing the issue.
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