Category Archives: Regulations

Death in the Foreign Service: Why we said “no” to an Embassy Information Sanitation Dude

– Domani Spero

 

In the next couple of weeks, we will try to revisit some of the topics that we have blogged about in the past but did not get a chance to follow-up.

In the last several years, we’ve covered  the deaths of State Department and Foreign Service personnel due to terrorist attacks, natural calamities, suicide, violent crime, and accidents (see In the Foreign Service: Death, Too Close An Acquaintance). Here are some of the blogposts we did,this is not an exhaustive list:

While we did receive a screaming owler one time when we were asking questions about a death in Afghanistan, not once have we ever received an email from a family member of a deceased employee asking us not to mention that their loved ones who died overseas worked for Uncle Sam, or refrain from noting the passing of loved ones who died in the service of our country. Not once.

In June this year, we blogged about a Foreign Service employee at the US Embassy in Moscow who was killed in a gas explosion there:

Two State Department sources confirmed that the employee, an OMS on official orders working at the embassy had died. After the embassy employee was heloed to a local Russian hospital, she was reportedly airlifted by the State Department soon thereafter to a special burn hospital in Linkoping, outside of Stockholm where she died a few days later.

A former co-worker at another post was concerned that there has been no public  statement about the employee’s death. “I would think the death of a diplomat would get something from AFSA or State, even if it was from an accident.”  We sent out several inquiries but no one would speak on the record.  Since the name has not been officially released, and no obit has yet been published, we will refrain from identifying the victim at this time.

This past August, a brief obituary of that employee appeared on State magazine, the official trade publication of the State Department and we blogged about it. Shortly after that, we received an email from an individual using a hotmail account:

Hi, Durron’s family did not want this information to be disclosed to the press. Please honor their request. Personally I share your view, but also honor the family’s wishes.

Moscow is hard post to serve, and the Embassy community was very shocked by this news. I personally know many people who lived in the apartment complex where she died (MFA apartment housing), and I was also shocked by this news. I can’t say any more about this unfortunately. The past year was very hard for Embassy Moscow, especially in light of the death of an FSN who was very much loved by all who worked there. 

The request, as you can see, is polite, even volunteering that the writer shares the blog writer’s view. Then the “guilty hook,” asking that we “honor the family’s wishes.” The writer did not/not present himself as a government  official, and seemed to only appear as an interested third party purporting to pass on the wishes of the deceased employee’s family.

Our correspondent, who could not get the deceased employees straight (Durron was the Consular Affairs employee who died in Florida), was in fact, an embassy official, basically asking us not to make a public connection to the death of the  USG employee who died in Sweden to the gas explosion in a USG (Russian MFA) housing in Moscow. We only knew that the individual is a USG official because of …Googles! Not sure the individual is still at post at this time.

Our gut feeling was that this is legitimate news; we blogged about the fact that an employee of the U.S. Government was injured in Moscow, and subsequently died from those injuries in Sweden. And we waited until there was an official obituary before we put the information together and named the deceased individual.  Three months after the incident.

Deceased individuals are not covered by the Privacy Act. That said, if a USG employee die overseas for whatever reason, should we be obligated to not/not report it if his/her family ask that it not be reported for privacy reasons? That’s not exactly the case here because we were only told second hand that the deceased’s family did not want it reported in the press (except that the death was reported in the publicly available State magazine). But the “what-if” was a dilemma we spent considerable time thinking about for a period of time.

How do you balance the public’s right to know with a family’s request for privacy?

We’ve consulted with a professional journalist we admire, and an authority on media ethics at the Graduate School of Journalism at UC Berkeley.   All agreed that 1) employees sent overseas are on official duty, and that any life-threatening mishap or death they suffer is by definition of public interest, and 2) that we ought to consider the request if it comes directly from a family member, and pull the blogpost down only if the family makes a compelling case that publication caused them or somebody else harm.  One surmised that the request received may have more to do with the State Dept’s own reasons or some fear of official embarrassment.

We did send a response to our “non-official” correspondent basically declining the request since he was not a member of the family.  We informed the writer that we would consider pulling the material down if we hear directly from the family and only if there is a compelling reason for the request. We also offered to write directly to the family if the official would provide us a contact email.  We certainly did not want to be insensitive and we understand that the incident occurred  at a challenging post, but the death of a Foreign Service person abroad is of public interest. That’s the last we’ve heard from that official via hotmail. And we would have forgotten about this except that it came to our attention  that the USG had been more aggressive about sanitizing this information than we first thought.

A journalist from a large media organization subsequently told us that he/she was privately admonished after asking publicly why the State Dept had not expressed condolences on the death of the employee in Moscow. The admonishment came from a USG official who again, cited the family’s privacy. From best we could tell, these contacts/admonishment to the journalist and to this blog came from two separate officials. How many other journalists (not just blogger in pjs, mind you) had been similarly admonished to not report about this death citing the family’s request for privacy?

In the aftermath of this incident in May 2014, we sent an email inquiry to the public affairs office of the U.S. Embassy in Moscow.  Our email got lost in a sink hole and we never heard anything back. We must note that this incident occurred after the departure of then Ambassador McFaul. It also predates the arrival of John Tefft, the current ambassador to Moscow and his the new public affairs officer there.

It goes without saying — but we’ll repeat it anyway —  that we clearly understand that accidents happen. And we’re not looking for a cover-up at every post unless it has to do with the furniture!  But, because there’s always a but — accidents do not absolve the embassy or the State Department from answering questions about the circumstances surrounding an employee’s death or at a minimum, publicly acknowledging that a death of an employee occurred overseas. We will be sensitive and respectful as we have always been, but we will ask questions.

What bothered us about this?  By citing the deceased family’s purported request for privacy, the State Department and Embassy Moscow basically shut down any further questions about the incident. How is it possible to have something of an information blackout on the death of an employee we sent overseas on the country’s behalf?

Whatever happened to that promised investigation?

We understand that then chargé d’affaires (CDA) in Moscow, Sheila Gwaltney  told personnel that they will be informed of the results of the investigation, regardless of the outcome. We sent an email inquiry to the analysis division of OBO’s Office of Fire Protection (OBO/OPS/FIR) requesting for an update to the fire inspector investigation. We received the following response on October 23 from Christine Foushee, State/OBO’s Director of External Affairs:

Thanks for your inquiry.  The investigation you’ve referenced is still ongoing, so we are not in a position to comment on results.

Per 15 FAM 825:

a. As soon as possible after being notified of a fire, OBO/OPS/FIR, will dispatch a team of trained fire/arson investigators to fires that resulted in serious injury or death; those where the cause is arson or is of a suspicious nature; those causing extensive damage or significant disruption to official activities; or those deemed to be of special interest to the Department of State.

b. Fire-related mishaps involving injury, illness, or death that meet criteria for Class A or B mishaps under Department of State policy will be investigated and reported using 15 FAM 964 requirements. An Office of Fire Protection official, in OBO/OPS/FIR, will be assigned to any Class A or B board conducted by OBO’s Office of Safety, Health, and Environmental Management, in the Directorate for Operations, (OBO/OPS/SHEM). In addition to addressing the root causes of the fire event, the mishap board report must evaluate the impact of Department of State organizational systems, procedures, or policies on the fire event. The report also could contain recommendations for specific modifications to such procedures and policies. Both OBO/OPS/FIR and OBO/OPS/SHEM receive copies of the report, and OBO/OPS/SHEM coordinates with the Department of State’s Designated Agency Safety and Health Official (DASHO) to meet 15 FAM 964 requirements. OBO/OPS/FIR reports findings and recommendations for corrective action to the Director of OBO, who informs the Accountability Review Board’s Permanent Coordinating Committee. (See 12 FAM 032.)

We sent another follow up email this week to State/OBO.  The explosion happened in May 2014. Here we are at the end of the year and we don’t know what happened to that investigation. Is this length of time typical of these types of investigations? We will update this blogpost if we hear from the fire people with something to say.

We think this a good opportunity as any to call on the State Department to voluntarily release an annual report of deaths of official Americans overseas.  DOD identifies its casualties — name, rank, age, state of residence, date and place of death, and cause of death — why not the State Department?  At a minimum there ought to be  an annual reporting of all deaths from unnatural causes of USG personnel and family members on government orders under Chief of Mission authority. Diplomatic Security already publishes an annual report,would it be too much to ask that they be allowed to include this information?

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Filed under Americans Abroad, Foreign Service, Huh? News, Leadership and Management, Org Life, Questions, Realities of the FS, Regulations, Security, State Department, U.S. Missions

Twitter Is a Cocktail Party, Not a Press Conference – But What Happened to 3 FAM 4170?

– Domani Spero

 

 Updated 12/16/14 at 9:45 pm: We understand from the “R” shop that 3 FAM 4170 is in clearance now and something about “third time’s a charm!” What’s that about?

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The December issue of the Foreign Service Journal includes a Speaking Out piece by FSO Wren Elhai, Twitter Is a Cocktail Party, Not a Press Conference (or, Social Media for Reporting Officers). The author is currently serving in the political-economic section of Consulate General Karachi. Prior to joining the State Department, he worked at the Center for Global Development, a D.C.-based think-tank, as a policy analyst where he also ran the Center’s Twitter and Facebook pages. Excerpt below:

Current Foreign Affairs Manual regulations require any State Department employee posting anything to a social media site that relates to a matter “of official concern” to go through the same clearance process that would govern a media appearance or a published op-ed.

This is a shockingly vague rule, one that I have been told in training covers even posting quotes from official State Department statements or links to articles that support U.S. policy. It is a rule so vague that any diplomat with a Facebook account will confirm that nearly every one of us violates it on a daily basis.

If you think of Twitter as the digital equivalent of a newspaper, then it makes sense to try to maintain control over what diplomats say there. However, if Twitter is a digital cocktail party, that’s an untenable position. No one would even consider asking diplomats to pre-clear everything they say to people they meet at public events—let alone to seek press office clearance before starting a conversation with a potential contact.

We are paid to know U.S. foreign policy, to present and defend our positions, and to not embarrass ourselves when we open our mouths in public. We are trusted to speak tactfully and to know what topics are best discussed in other settings.

Our policy should treat our interactions online and in the real world on an even footing. Yes, there will be rare occasions when diplomats speak undiplomatically and, just as when this happens in the real world, those diplomats should face consequences.

But just as we don’t limit ourselves to talking about the weather at receptions, we should be able to present U.S. policy and engage with contacts online. To meet people, we need to show up for the party.

Read in full via FSJ here.

On the topic of consequences, Sir James Bevan KCMG, UK High Commissioner to India recently gave a speech to a group of journalists that’s related to this, particularly on how one might be a bit boring on Twitter, and for good reasons:

And we diplomats sometimes have to behave a bit differently from you journalists, or at least have to pretend that we do. There are things which you can do and say which we diplomats cannot, lest we provide you with copy that is good for you but bad for us. 

Some of you have said that my Twitter account @HCJamesBevan is a little bit boring. There’s a reason for that: I like my job and I want to keep it. For a diplomat, being too interesting on Twitter is the quickest way to get sacked. I like India and I want to stay here.

 

Back to the article, the author of the FSJ piece has cited 5 FAM 790 Using Social Media (pdf) on his article, the guidance first issued in June 2010. You might, however, want to check out 3 FAM 4172.1-3 (pdf) Review of Materials Prepared in an Employee’s Private Capacity, which includes matters of “official concern.”  It does look like 3 FAM 4170, the regs for Official Clearance of Speaking, Writing, and Teaching (pdf) has not been updated since 2009, but right now, that’s the official rules.

This past June, AFSA told its members that for more than a year it has been negotiating a revision to the current Foreign Affairs Manual regulations governing public speaking and writing (3 FAM 4170).

“As mentioned in our 2013 Annual Report, our focus has been to accommodate the rise of social media and protect the employee’s ability to publish. We have emphasized the importance of a State Department response to clearance requests within a defined period of time (30 days or less). For those items requiring interagency review, our goal is to increase transparency, communication and oversight.  We look forward to finalizing the negotiations on the FAM chapter soon—stay tuned for its release.”

This long awaited update to 3 FAM 4170 has been in draft mode since 2012 (see State Dept to Rewrite Media Engagement Rules for Employees in Wake of Van Buren Affair. Also check out a related piece we did in February 2013 (see Social Media Schizophrenia Continues on Background, and Oh, Stuff That Loophole, Ey?).

Hey, is it true that 3 FAM 4172.1-7  also known as the Peter Van Buren clause is nowhere to be found in the new version?

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Related post:

 

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Revisiting the Mustafa Akarsu Local Guard Force Support Act

– Domani Spero

 

In December last year, we urged your support for a bill in Congress intended to provide Special Immigrant Visas (SIVs) to a surviving spouse or child of an employee of the United States Government killed overseas in the line of duty (see Please Ask Congress to Support the Mustafa Akarsu Local Guard Force Support Act).

This Act may be cited as the “Mustafa Akarsu Local Guard Force Support Act”.

SEC. 2. SPECIAL IMMIGRANT STATUS FOR CERTAIN SURVIVING SPOUSES AND CHILDREN.

In General.–Section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) is amended in subparagraph (D)– (1) by inserting “(i)” before “an immigrant who is an employee”; and (2) by inserting the following: “(ii) an immigrant who is the surviving spouse or child of an employee of the United States Government abroad killed in the line of duty, provided that the employee had performed faithful service for a total of fifteen years, or more, and that the principal officer of a Foreign Service establishment (or, in the case of the American Institute of Taiwan, the Director thereof) in his discretion, recommends the granting of special immigrant status to the spouse and children and the Secretary of State approves such recommendation and find that it is in the national interest to grant such status;”. (b) Effective Date.–This Act and the amendments made by this Act shall take effect beginning on January 31, 2013, and shall have retroactive effect.

Check out this page showing support for H.R. 1781. Warning, reading the comments posted against this bill will melt your brain and make you want to throw your shoes at somebody.

A comment from a Maine voter says it all:

Some of the ignorant comments I have seen regarding this case make me ashamed. We have an obligation to the families of these guards who make the ultimate sacrifice, and a few nice words and a flag just don’t cut it. We need to do the right thing here.

So, on June 14, 2013, this bill was referred to the Subcommittee on Immigration and Border Security.  As of 12/13/2014 no related bill information has been received for H.R.1781 – the Mustafa Akarsu Local Guard Force Support Act.  The majority of the bills die in committee, and that apparently happened to this one, too.

The 114th Congress will be seated on January 3, 2015 and will run until January 3, 2017.  The GOP has taken control of both the Senate and the House. It is a worthwhile cause to urge our congressional representatives to revisit this bill again when they return in January, with great hope that it will pass this time.

We think it is important to emphasize that this bill, hopefully reintroduced in the 114th Congress, has a very narrow coverage — only for a spouse or child of a USG employee killed in the line of duty, and only if the employee has performed faithful service for at least fifteen years. It also needs the recommendation of the principal officer at post and the approval of the Secretary of State.

If Congress can allocate 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States (see “Lottery” Diversity Visas), we can find no reason why it cannot allocate visas to the next of kin of persons who actually died while protecting United States government officials and properties.

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Contact Congress: http://www.usa.gov/Contact/US-Congress.shtml

We believe this site will also update when the 114th Congress is seated and can be used to contact congressional representatives next year: http://www.contactingthecongress.org

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High Risk Pregnancy Overseas: State/MED’s SOP Took Precedence Over the FAM? No Shit, Sherlock!

– Domani Spero

 

The Foreign Affairs Manual says that it is the general policy of the Department of State “to  provide all medical program participants with the best medical care possible at post. In a situation where local medical facilities are inadequate to provide required services, travel to locations where such services can be obtained may be authorized.” (see 16 FAM 311).  Elsewhere on the same regs, the FAM says  that “a pregnant patient who is abroad under U.S. Government authorization is strongly encouraged to have her delivery in the United States. The patient may depart from post approximately 45 days prior to the expected date of delivery and is expected to return to post within 45 days after delivery, subject to medical clearance or approval.” (see 16 FAM 315.2 Travel for Obstetrical Care).

A grievance case involving a high risk pregnancy of a Foreign Service spouse was recently decided by the Foreign Service Grievance Board (FSGB).  This is one case where you kind of want to bang your head on the wall. The FAM gets the last word in the Foreign Service, but in this case (and we don’t know how many more), the State Department  ditched the relevant citation on the Foreign Affairs Manual in favor of a longstanding practice on its Standard Operating Procedure (SOP). Specifically, the Department’s Office of Medical Services (MED)  SOP. So basically, MED relied on its interpretation of the regulations contained on its SOP instead of the clear language included in the FAM.

No shit, Sherlock!

Excerpt below from FSGB Case No. 2014-007.

SUMMARY: During grievant’s tour in his spouse became pregnant. She had had five previous pregnancies, none of which resulted in a viable birth. The post medical team (FSMP) and the State Department Office of Medical Services (MED) both agreed that this was a very high-risk pregnancy and that the preferred option was that the spouse return to the U.S. as soon as possible for a special procedure and stay under the care of a single obstetrician specializing in high-risk care for the remainder of her pregnancy. Although MED authorized a 14-day medical evacuation for the procedure, it advised grievant that, under its longstanding practice, it could not authorize further medical evacuation per diem under 16 FAM 317.1(c) prior to the 24th week of gestation. MED instead directed grievant to seek the much lower Separate Maintenance Allowance (SMA).

Grievant claimed that the regulation itself stated only that per diem for complicated obstetrical care could be provided for up to 180 days, and therefore permitted his spouse to receive such per diem beginning in approximately the 10th week of pregnancy, when she returned to the U.S. for treatment. He also claimed that he was entitled to have his airline ticket paid for by the agency as a non-medical attendant when he accompanied his wife back to the U.S., since her condition precluded her from carrying her own bags.

The Board concluded that the agency’s regulation was not ambiguous, and that any clarification meant to be provided by the agency’s longstanding practice was both plainly erroneous and inconsistent with the agency’s own regulations, and arbitrary and capricious. We, therefore, did not accord any deference to the agency’s interpretation of its regulations by virtue of this practice, and relied instead on the language of the regulation itself.

Here is the FAM section on Complicated obstetrical care:

16 FAM 317.1(c):  If the Medical Director or designee or the FSMP [Foreign Service Medical Provider] at post determines that there are medical complications necessitating early departure from post or delayed return to post, per diem at the rates described in 16 FAM 316.1, may be extended, as necessary, from 90 days for up to a total of 180 days.  

More from the Record of Proceeding:

When FSMP contacted MED in Washington, DC, they were given the response that MED does not medevac for obstetrical care until after the 24th week of gestation. The 24th week of gestation is when the medical world deems a fetus viable outside of the womb. Grievant claims both FSMP and the post’s Human Resources (HR) reviewed the FAM and other MED documents to determine how MED handles high risk pregnancies at a hardship post and could not find any reference that limited a high risk pregnancy to the 24 weeks claimed by MED.

Grievant claims he contacted the head of MED and asked for an explanation as to why MED was not following 16 FAM 317.1(c), which allowed for medevac for high risk pregnancies. M/MED/FP responded with the following in an e-mail dated August 27, 2013:

This issue of how early a woman can be medevac’d for delivery comes up regularly. So does the situation of cervical cerclage – up to 80,000 procedures are done in the U.S. per year. While not in the FAM, MED has a long standing internal SOP that the earliest we will medevac a mother for obstetrical delivery is at 24 weeks gestation. 

Grievant claims that his spouse’s pregnancy was high-risk enough to qualify for medical evacuation prior to the 24 weeks’ gestation. Grievant also argues that every medical professional in and in Washington, including MED staff, agreed. Grievant argues that MED’s justification for how they choose which pregnancy to deem OB-medevac-worthy for high risk is ambiguous. Grievant takes issue with MED imposing internal rules that are not published in the FAM. Grievant claims that the alternatives offered by MED were not in accordance with 16 FAM 317.1(c).

What was the official State Department position?

The agency asserts that grievant’s wife was medevac’d to Washington, DC, to receive obstetrical care. MED did not believe there were medical complications necessitating early departure from post or delayed return to post. Thus, the agency claims, 16 FAM 317.1(c) does not apply to her situation.

Did it not matter that the FSO’s wife “had had five previous pregnancies, none of which resulted in a viable birth?”  The Department also made the following argument:

The agency further argues that, in any event, although not compelled by law, the Department’s Office of Medical Services (MED) has a longstanding internal Standard Operating Procedure (SOP) that the earliest MED will authorize a medevac of a pregnant woman for delivery, even in the case of complicated pregnancies, is 24 weeks’ gestational age. This SOP, MED asserts, is based on the medical community’s widely accepted recognition that the gestational age for fetal viability is 24 weeks. 

Ugh!

The ROP states that MED personnel communicating with both grievant and the post FSMP repeatedly relied on the SOP that no medevac would be provided prior to the 24th week of pregnancy as the basis for their guidance. They did not cite grievant’s wife’s particular medical circumstances as the rationale for denying an earlier continuous medevac.

You might remember that the last time MED failed to use common sense, the State Department ended up as a target of a class action lawsuit.

Here is the Board’s view:

It is the Board’s view that 16 FAM 317.1(c) is not ambiguous. It provides for the Medical Director or designee or the FSMP at post to determine if there is a complication requiring early departure or a delayed return, and authorizes up to 180 days’ per diem when such a determination is made. The entire context of the provision is to define what benefits are provided when based upon medical needs, and the provision appears to reflect the individualized medical decision making required in the case of complicated obstetrical care. Although the preceding provision, 16 FAM 317.1(b),8 places a set 45-day limit for per diem both before and after an uncomplicated pregnancy and birth, that limit is also, by all appearances, based on medical analysis of normal pregnancies and deliveries, which lend themselves to such generalizations. Airlines do not allow pregnant women to travel less than 45 days before birth, because of the risks involved. 16 FAM 317.1(b) recognizes and incorporates that medical evaluation under the circumstances of a normal pregnancy. Although not stated explicitly in the record, we assume that the 45 days of per diem permitted after delivery also reflects a medical assessment of recovery times under normal circumstances, which, because they are normal, can be generalized.
[…]
In the Board’s view, the longstanding practice is also arbitrary and capricious and an abuse of discretion. As stated by MED, the rationale for the 24-week practice is that a fetus is generally not considered viable before the 24th week of pregnancy. It is not based on, and does not take into consideration, whether the mother’s need for medical care can be provided safely at post prior to the 24th week, or whether the medical care needed by any fetus of less than 24 weeks to come to full term as a healthy baby can safely be provided at post. It is difficult to see any link at all between the rationale offered by State/MED with the recognition of medical needs established in the regulations.

It is the Board’s conclusion that 16 FAM 317.1(c) is not ambiguous, and that any clarification meant to be provided by the Department’s longstanding practice of requiring the 24-week waiting period in cases of complicated pregnancies is both plainly erroneous and inconsistent with the Department’s own regulations, and arbitrary and capricious. We, therefore, do not accord any deference to the Department’s interpretation of its regulations by virtue of this practice, and rely instead on the regulation itself.

To the extent that the agency is arguing that the SOP is freestanding and applies by its own terms, apart from 16 FAM 317.1(c), again, we conclude that the agency is in error. By the same analysis as outlined above, the SOP conflicts with the provision of the published regulations of the agency. An SOP may not take precedence over a regulation with which it is in conflict.

The Board’s conclusion, based on the record, is that this was a high-risk pregnancy, with risks to both the mother and the fetus, and that the necessary obstetrical care was in the U.S. Under these circumstances, medical evacuation per diem should have been authorized beginning upon the return of grievant’s wife to the U.S., and continuing for 180 days.

Doesn’t it makes you wonder how many high risk pregnant women on USG orders overseas were affected by this longstanding internal Standard Operating Procedure (SOP)?  If planning on getting pregnant overseas, read the redacted ROP below:

 

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Secondments to international organizations and promotions? Here comes the boo!

– 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).

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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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State Dept Security Officer Alleged Sexual Misconduct: Spans 10 Years, 7 Posts

– Domani Spero

 

One of the most serious allegations contained in the CBS News report last year include a regional security officer (RSO) reportedly assigned in Lebanon who “engaged in sexual assaults” with local guards.

The memo, reported by CBS News’ John Miller, cited eight specific examples, including allegations that a State Department security official in Beirut “engaged in sexual assaults” with foreign nationals hired as embassy guards and the charge and that members of former Secretary of State Hillary Clinton’s security detail “engaged prostitutes while on official trips in foreign countries” — a problem the report says was “endemic.”

USA Today reported that the regional security officer in Beirut allegedly sexually assaulted guards and was accused of similar assaults in Baghdad, Khartoum and Monrovia. Then-director of Diplomatic Security Service, called the allegations a “witch hunt” and gave agents “only three days” to investigate, and no charges were brought.

It turns out, according to State/OIG that this RSO already had “a long history of similar misconduct allegations dating back 10 years at seven other posts where he worked”

It boggles the mind … the RSO typically supervises the local guard force!

Seven posts! Just stop and think about that for a moment. This was the embassy’s top security officer; a sworn federal law enforcement officer who was responsible for the security of Foreign Service personnel, property, and sensitive information throughout the world.

Below is an excerpt from the State/OIG investigation. We regret if this is going to make you puke, but here it is:

The second DS internal investigation in which OIG found an appearance of undue influence and favoritism concerned a DS Regional Security Officer (RSO) posted overseas, who, in 2011, allegedly engaged in sexual misconduct and harassment. DS commenced an internal investigation of those allegations in September 2011.

However, at the time the investigation began, the RSO already had a long history of similar misconduct allegations dating back 10 years at seven other posts where he worked. A 2006 DS investigation involving similar alleged misconduct led to the RSO’s suspension for 5 days.

OIG found that there was undue delay within the Department in adequately addressing the 2011 misconduct allegations and that the alleged incidents of similar misconduct prior to 2011 were not timely reported to appropriate Department officials.7 OIG also found that, notwithstanding the serious nature of the alleged misconduct, the Department never attempted to remove the RSO from Department work environments where the RSO could potentially harm other employees, an option available under the FAM.8 Notably, the DS agents investigating the 2011 allegations reported to DS management, in October 2011, that they had gathered “overwhelming evidence” of the RSO’s culpability.

The agents also encountered resistance from senior Department and DS managers as they continued to investigate the RSO’s suspected misconduct in 2011. OIG found that the managers in question had personal relationships with the RSO. For instance, the agents were directed to interview another DS manager who was a friend of the RSO, and who was the official responsible for selecting the agents’ work assignments. During the interview, the manager acted in a manner the agents believed was meant to intimidate them. OIG also found that Department and DS managers had described the agents’ investigation as a “witch hunt,” unfairly focused on the RSO. Even though OIG did not find evidence of actual retaliation against the investigating agents, OIG concluded that these circumstances, including the undue delay, created an appearance of undue influence and favoritism concerning DS’s investigation and the Department’s handling of the matter.

Ultimately, in November 2013, based on evidence collected by DS and the Department’s Office of Civil Rights, the Department commenced termination of employment proceedings against the RSO. The RSO’s employment in the Department did not end until mid-2014, approximately 3 years after DS initially learned of the 2011 allegations.

 

The State/OIG report cleared Clinton’s chief of staff, Cheryl Mills, for allegedly interceding in an investigation by the Diplomatic Security Service concerning a nominee to be U.S. Ambassador. The Assistant Secretary of State for Diplomatic Security incumbent referred to below had been snared in the Benghazi-fallout, and resigned in December 2012:

The third DS internal investigation in which OIG found an appearance of undue influence and favoritism involved the unauthorized release in mid-2012 of internal Department communications from 2008 concerning an individual who was nominated in early-2012 to serve as a U.S. Ambassador. (The nominee’s name was withdrawn following the unauthorized release.) DS commenced an internal investigation related to the unauthorized release of the internal communications. The then Chief of Staff and Counselor to the Secretary of State was alleged to have unduly influenced that investigation.

OIG found no evidence of any undue influence by the Chief of Staff/Counselor. However, OIG did find that the Assistant Secretary of State in charge of DS had delayed for 4 months, without adequate justification, DS’s interview of the nominee, and that delay brought the investigation to a temporary standstill. OIG concluded that the delay created the appearance of undue influence and favoritism. The case was ultimately closed in July 2013, after the nominee was interviewed and after DS conducted additional investigative work.

No Undue Influence or Favoritism in Four Cases 

OIG did not find evidence of perceived or actual undue influence or favoritism in four of the DS internal investigations reviewed, and, in two of those four, determined that no further discussion was warranted. However, two cases are discussed further in this review because OIG found one common issue in both cases that requires remedial action—the failure to promptly report alleged misconduct to the DS internal investigations unit for further review.

Three DS special agents allegedly solicited prostitutes in 2010 while serving on the security detail for the Secretary of State. Although managers on the security detail learned of some of the alleged misconduct at or near the time it occurred, they did not notify the DS internal investigations unit, which normally handles such matters. A DS internal investigations agent only learned about the three cases while conducting an unrelated investigation. As a result, no action was taken to investigate the misconduct allegations until October 2011, 18 months after the first alleged solicitation occurred. As a result of the investigation then conducted, the three agents were removed from the Secretary’s security detail, and their cases were referred for further disciplinary action. One agent subsequently resigned; the allegations against the other two agents were not sustained.9

A DS special agent who worked in a domestic field office allegedly falsified time and attendance records over a 17-month period between January 2011 and May 2012. DS management in the domestic field office knew about the allegations but did not promptly report them to the DS internal investigations unit. In May 2012, during the course of an unrelated investigation involving the DS special agent, the DS internal investigations unit learned of the allegations of false time and attendance reporting. An internal investigation was then commenced, and the DS special agent subsequently resigned. DS also referred the matter to the Department of Justice, which declined prosecution of the case.

One footnote:

In the SBU report provided to Congress and the Department, OIG noted that one agent subsequently resigned; the allegations against a second agent were not sustained; and the third agent had initiated a grievance proceeding, which was pending, challenging the discipline determination. However, after the SBU report was issued, the Department advised OIG that the third agent’s grievance proceeding was resolved with a finding by the Foreign Service Grievance Board not sustaining the charges.

One Review Ongoing 

The eighth DS internal investigation reviewed by OIG concerned the use of deadly force during three incidents that took place during counternarcotics operations in Honduras in 2012. OIG has commenced a joint review with the U.S. Department of Justice, Office of the Inspector General. The investigation remains under review, and OIG will issue a separate report on the matter.

The above case was cited in the USA Today report:

“The Diplomatic Security Service said William Brownfield, assistant secretary of State for the Bureau of International Narcotics and Law Enforcement Affairs, “gave the impression” that a probe of the shooting deaths of four Hondurans involving the Drug Enforcement Administration should not be pursued. The case remained open when the memo was written, as the DEA would not cooperate.”

OIG Recommendations – open and unresolved

  1. The Department should take steps (as previously recommended in OIG’s report on the 2012 inspection (ISP-I-13-18)), to enhance the integrity of DS’s internal investigations process by implementing safeguards to prevent the appearance of, or actual, undue influence and favoritism by Department officials.
  2. The Department should clarify and revise the Foreign Affairs Manual and should promulgate and implement additional protocols and procedures, in order to ensure that allegations of misconduct concerning Chiefs of Mission and other senior Department officials are handled fairly, consistently, and independently.

The end.

 

Related posts:

 

Related item:

-09/30/14   Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (ESP-14-01)  [685 Kb] Posted on October 16, 2014

 

 

 

 

 

 

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State/OIG Releases Investigation on CBS News Allegations: Prostitution as “Management Issues” Unless It’s Not

– Domani Spero

 

In June last year, CBS News’ John Miller reported that according to an internal State Department Inspector General’s memo, several recent investigations were influenced, manipulated, or simply called off at the State Department. The memo obtained by CBS News cited eight specific examples.

Memos showed that probes included allegations of:

  • A State Department security official in Beirut “engaged in sexual assaults” on foreign nationals hired as embassy guards
  • Members of former Secretary of State Hillary Clinton’s security detail “engaged prostitutes while on official trips in foreign countries” — a problem the report says was “endemic.”
  • An “underground drug ring” was operating near the U.S. Embassy in Baghdad and supplied State Department security contractors with drugs.
  • The case of a U.S. Ambassador who held a sensitive diplomatic post and was suspected of patronizing prostitutes in a public park.
  • Investigation into an ambassador who “routinely ditched … his protective security detail” and inspectors suspect this was in order to “solicit sexual favors from prostitutes.”
  • “We also uncovered several allegations of criminal wrongdoing in cases … some of which never became cases,” said Aurelia Fedenisn, a whistleblower and former investigator for the Inspector General.

You may revisit that CBS News report here. At that time, State/OIG told us that “On its own initiative, OIG’s Office on Investigations has been conducting an independent review of allegations referred to it by our Office of Inspections.” In a statement to CBS News, State/OIG also said about the investigation: “We staffed it independently and appropriately and they were people hired specific for this review at the end of 2012. They are on staff. We staffed it with the best people we can find at hand to do the job.”

We’ve blog about this previously:

Yesterday, State/OIG finally released its long-awaited report to this investigation, excerpt below:

The allegations initially related to eight, high-profile, internal investigations. […]

In three of the eight internal investigations, OIG found that a combination of factors in each case created an appearance of undue influence and favoritism by Department management. The appearance of undue influence and favoritism is problematic because it risks undermining confidence in the integrity of the Department and its leaders.

This review assesses the Department’s handling of those eight investigations. OIG did not reinvestigate the underlying cases. In conducting this review, OIG interviewed Department employees, examined case files, and reviewed 19,000 emails culled from the Department’s electronic communications network. OIG’s findings are not necessarily indicative of systemic issues affecting all DS cases. However, they reveal issues with current Department policies and procedures that may have significant implications regarding actual or perceived undue influence.

Handling “management issues” relating to a U.S. Ambassador

OIG found that, based on the limited evidence collected by DS, the suspected misconduct by the Ambassador was not substantiated. DS management told OIG, in 2013, that the preliminary inquiry was appropriately halted because no further investigation was possible. OIG concluded, however, that additional evidence, confirming or refuting the suspected misconduct, could have been collected. For example, before the preliminary inquiry was halted, only one of multiple potential witnesses on the embassy’s security staff had been interviewed. Additionally, DS never interviewed the Ambassador and did not follow its usual investigative protocol of assigning an investigative case number to the matter or opening and keeping investigative case files.
[…]
The Under Secretary of State for Management told OIG that he decided to handle the suspected incident as a “management issue” based on a disciplinary provision in the FAM that he had employed on prior occasions to address allegations of misconduct by Chiefs of Mission. The provision, applicable to Chiefs of Mission and other senior officials, states that when “exceptional circumstances” exist, the Under Secretary need not refer the suspected misconduct to OIG or DS for further investigation (as is otherwise required).2 In this instance, the Under Secretary cited as “exceptional circumstances” the fact that the Ambassador worked overseas.3 (underlined for emphasis)

DS managers told OIG that they viewed the Ambassador’s suspected misconduct as a “management issue” based on another FAM disciplinary provision applicable to lower-ranking employees. The provision permits treating misconduct allegations as a “management issue” when they are “relatively minor.”4 DS managers told OIG that they considered the allegations “relatively minor” and not involving criminal violations.

Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.5

OIG questions the differing justifications offered and recommends that the Department promulgate clear and consistent protocols and procedures for the handling of allegations involving misconduct by Chiefs of Mission and other senior officials. Doing so should minimize the risk of (1) actual or perceived undue influence and favoritism and (2) disparate treatment between higher and lower-ranking officials suspected of misconduct.6

But the footnotes!

2* 3 FAM 4322.2 states that incidents or allegations involving Chiefs of Mission that could serve as grounds for disciplinary action and/or criminal action must be immediately referred to OIG or DS to investigate. This section further states that “[i]n exceptional circumstances, the Under Secretary for Management…may designate an individual or individuals to conduct the investigation.” No guidance exists describing what factors to consider in determining what constitutes “exceptional circumstances.”

3* In the SBU report provided to Congress and the Department, OIG cited an additional factor considered by the Under Secretary—namely, that the Ambassador’s suspected misconduct (solicitation of prostitution) was not a crime in the host country. However, after the SBU report was issued, the Under Secretary advised OIG that that factor did not affect his decision to treat the matter as a “management issue” and that he cited it in a different context. This does not change any of OIG’s findings or conclusions in this matter.

4* 3 FAM 4322.3.a provides that a management official “must initially determine whether he, she, or another management official should be the investigating official, or whether the matter should be referred to” OIG or DS for further action. This section further provides that if the official determines that the “alleged misconduct is relatively minor, such as leave abuse or failure to perform assigned duties, that official or another management official may handle the administrative inquiry” and need not refer the matter to OIG or DS.

5* After the SBU report was issued, the Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).

6* During the course of this review, OIG discovered some evidence of disparity in DS’s handling of allegations involving prostitution. Between 2009 and 2011, DS investigated 13 prostitution-related cases involving lower-ranking officials. OIG found no evidence that any of those inquiries were halted and treated as “management issues.”

OIG to M’s “exceptional circumstances”  — what the heck is that?

“…OIG concludes that the Under Secretary’s application of the “exceptional circumstances” provision to remove matters from DS and OIG review could impair OIG’s independence and unduly limit DS’s and OIG’s abilities to investigate alleged misconduct by Chiefs of Mission and other senior Department officials.

Well, it’s shocking that M, DS and the Legal Adviser could not agree on a simple thing. We do think the OIG is exactly right here. Why have an oversight and investigation arm if some higher up can declare no investigation necessary under an “exceptional circumstances”clause, that’s not even spelled out.

The Inspector General is ranked equivalent to an Assistant Secretary.  According to the regs, he reports directly to the Secretary, the Board, the Commissioner and the head of any other organization for which the OIG is assigned oversight responsibility, or to the extent such authority is delegated, to the officer next-in-rank. But 1 FAM 053.2-2 Under Secretary for Management (M) (CT:ORG-312; 07-17-2013)  put in place before the current OIG assumed office, also has this to say:

The Under Secretary for Management (M) is the Secretary’s designated top management official responsible for audit and inspection follow-up and the Secretary’s designee for impasse resolution when Department officials do not agree with OIG recommendations for corrective action.

We’ll have to watch and see how this turns out.  Must add that nowhere in the Foreign Affairs Manual does it say that the Inspector General may not/not investigate matters considered “management issues” under  “exceptional circumstances.”

 

Related item:

-09/30/14   Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (ESP-14-01)  [685 Kb] Posted on October 16, 2014

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Man without a Country? Expatriation of a U.S. Citizen (Via CRS)

– Domani Spero

 

Some Members of Congress have advocated and sponsored bills for expatriation, one way of losing citizenship, as a method of dealing with U.S. citizens fighting abroad for foreign terrorist groups such as the Islamic State in Iraq and Syria (ISIS). In early September S.2779 was introduced in Congress to amend section 349 of the Immigration and NationalityAct to deem specified activities in support of terrorism as renunciation of U.S. nationality.

Below via the CRS:

The current law enumerates seven actions that may result in the expatriation of a U.S. citizen, regardless of whether that person is a citizen by birth or naturalization. These acts demonstrate an allegiance to another nation which may be incompatible with allegiance to the U.S. The most relevant acts for the pending bills include: (1) taking an oath of allegiance to a foreign state or one of its political subdivisions; (2) serving in the armed forces of a hostile foreign state or serving as a commissioned or non-commissioned officer in the armed forces of any foreign state; and (3) serving in any office, post or employment under a foreign state’s government after turning 18 years old, if one is also either a dual national of that state or is required to swear or declare allegiance to that state for the position. For these particular acts, a citizen cannot be expatriated while he is in the U.S. or its possessions. However, acts committed in the U.S. or its possessions can be grounds for expatriation once the citizen leaves the U.S. and resides outside of it and its possessions. Also, a citizen who asserts his claim to U.S. citizenship within six months of becoming 18 years old cannot be expatriated because of serving in the armed forces of a foreign state or making a formal renunciation abroad before a U.S. diplomatic or consular official before the age of 18 years.
[…]

None of the acts listed above result in expatriation unless committed voluntarily and with the intent to relinquish citizenship. These requirements are derived from U.S Supreme Court interpretation of the constitutional requirements for expatriation. In Afroyim v. Rusk, the Court found that the Citizenship Clause of the Fourteenth Amendment prevents Congress from legislating the automatic loss of citizenship acquired by naturalization or birth in the U.S. merely because of specified conduct, without the citizen’s assent. Then, in Vance v. Terrazas, the Court elaborated on its earlier Afroyim decision by holding that the U.S. Government must prove specific intent to renounce citizenship. The current expatriation statute requires that the burden of proof is on the party claiming that expatriation occurred, i.e., the U.S. Government, to establish the claim by a preponderance of the evidence. Any act of expatriation will be presumed to have been done voluntarily, but the presumption may be rebutted by a preponderance of the evidence that the act was not done voluntarily. In Terrazas, the Court upheld these statutory evidentiary standards as constitutional, but in light of Afroyim and the Fourteenth Amendment, it held that no presumption of intent arises from an expatriating act. The Court also indicated that a finding of intent does not require a written, express relinquishment of citizenship, but could be inferred from conduct that was completely inconsistent with and derogatory to allegiance to the U.S. and could be established by a preponderance of the evidence.
[…]
Congress does not have unlimited authority to prescribe acts as potentially expatriating. Certain actions, formerly included in the list of expatriating acts under the current statute or its precursor, were found unconstitutional for various reasons by the U.S. Supreme Court and subsequently repealed. These include desertion from the armed forces in wartime, draft evasion during wartime or a national emergency, and voting in a foreign election. Additionally, the U.S. Supreme Court has held that the Fifth Amendment bars lawfully naturalized citizens from losing citizenship for acts that do not apply to native-born citizens.

Read in full here (pdf).

Also, former FSO Peter Van Buren has a piece related to this at Firedoglake/The Dissenter:  Can the US Seize Would-Be Jihadis’ Passports? that would go well with the CRS material.

 

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EEOC Affirms Class Action Certification For Disabled Applicants to the U.S. Foreign Service

– Domani Spero

 

In October 2010, we blogged that the Equal Employment Opportunity Commission (EEOC) has certified a class action brought on behalf of all disabled Foreign Service applicants against the U.S. State Department.  (see  EEOC certifies class action against State Dept on behalf of disabled Foreign Service applicants).

Related items:

Meyer, et al. v. Clinton (Department of State), EEOC Case No. 570-2008-00018X (September 30, 2010) (certifying class action based upon disability discrimination in State Department’s Foreign Service Officer hiring)

This past June, the EEOC affirmed the class certification for applicants to the Foreign Service denied or delayed in hiring because of their disabilities, based upon the “worldwide availability” policy.  (see Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 (June 6, 2014)).

The State Department Disability Class Action now has its own website here.  Bryan Schwartz in San Francisco and Passman & Kaplan in Washington represented the class. The State Department’s Office of Legal Advisor and Office of Civil Rights represented the department.

Below is an excerpt from the class action website:

The EEOC decision found that the Class Agent in the matter, Doering Meyer, has had multiple sclerosis (MS) in remission for decades, without need for treatment, but was initially rejected outright for State Department employment anywhere in the world because the Department’s Office of Medical Services perceived that her MS might cause her problems in “a tropical environment.” This was notwithstanding a Board Certified Neurologist’s report approving her to work overseas without limitation.
[…]
The Department challenged the judge’s initial certification decision because, among other reasons, Meyer eventually received a rare “waiver” of the worldwide availability requirement, with her attorney’s assistance, and obtained a Foreign Service post. She is now a tenured Foreign Service Officer, most recently in Croatia, and being posted to Lithuania. Meyer’s attorney argued to the EEOC that she was still delayed in her career growth by the initial denial in 2006, and missed several posting opportunities over the course of an extended period, losing substantial income and seniority. The EEOC agreed with Meyer – modifying the class definition slightly to include not only those denied Foreign Service Posts, but those “whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not ‘worldwide available’ due to their disability.”

Schwartz indicated that the case may ultimately have major implications not only for Foreign Service applicants, and not only in the State Department, but for all employees of the federal government abroad who have disabilities, records of disabilities, and perceived disabilities, and who must receive medical clearance through the Department’s Office of Medical Services. He noted that he has already filed other alleged class cases, also pending at the EEOC – one on behalf of applicants for limited term appointments (who need “post-specific” clearance, but are also denied individualized consideration), and another on behalf of employees associated with people with disabilities, who are denied the opportunity to be hired because of their family members who might need reasonable accommodations (or be perceived as disabled).

The Commission had also received an “Amicus Letter” from a consortium of more than 100 disability-related organizations urging the Commission to certify the class.

Read the full ruling at (pdf) Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 from June 6, 2014 where the State Department contends that since this complaint was filed, the Office of Medical Services has changed many of its procedures in assessing “worldwide availability.”It also suggested that “many of those individuals who were found not worldwide available in 2006 maybe currently worldwide available under new definitions and procedures.”

The Commission, however, says that it “is not finding that changes made to the Medical Clearance process subsequent to the filing of the instant complaint have remedied any alleged discriminatory policy.”  

The order states (pdf): “It is the decision of the Commission to certify the class comprised of “all qualified applicants to the Foreign Service beginning on October 7, 2006, who were denied employment, or whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not “world-wide available” due to their disability.”

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U.S. Embassy Yemen Now on Evacuation … No, on Temporary Reduction of Staff Status

– Domani Spero

 

On September 25, the State Department finally ordered the evacuation temporary reduction of USG personnel from the US Embassy in Yemen.  Below is an excerpt from the updated Travel Warning:

The U.S. Department of State warns U.S. citizens of the high security threat level in Yemen due to terrorist activities and civil unrest.  The Department urges U.S. citizens to defer travel to Yemen and those U.S. citizens currently living in Yemen to depart. This supersedes the Travel Warning for Yemen issued on July 21, 2014.

On September 24, 2014, the Department of State ordered a reduction of U.S. government personnel from Yemen out of an abundance of caution due to the continued civil unrest and the potential for military escalation. The Embassy’s ability to assist U.S. citizens in an emergency and provide routine consular services may be limited. Embassy officers are restricted in their movements and cannot travel outside of Sana’a. In addition, movements within Sana’a are severely constrained and may be further constrained by the fluid security situation.

The security threat level in Yemen is extremely high. The Embassy is subject to frequent unannounced closures.  In May 2014, the Embassy was closed for almost five weeks because of heightened security threats.

Demonstrations continue to take place in various parts of the country and may quickly escalate and turn violent. U.S. citizens are urged to avoid areas of demonstrations, and to exercise extreme caution if within the vicinity of a demonstration.

Read in full here.

In related news, the Official Spokesperson of the State Department released a statement emphasizing that “The Embassy did not suspend operations and will continue to operate, albeit with reduced staff” and that “Consular services have not been affected by this temporary reduction in personnel.”

Serious question — when the USG declares that post is on “temporary reduction” or on “temporary relocation” of personnel, which seems to be the trend these days, are affected personnel considered “evacuees” for allowance and travel purposes?  Or are all the affected personnel put on TDY status to their designated safe havens?  We’re having a hard time locating the citation for “temporary reduction”or “temporary relocation” in the Foreign Affairs Manual.

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