— By Domani Spero

Update below.  Scroll down to view comments from AFSA State VP Matthew Asada and AFSA Retiree Rep Edward Marks

FS employees join the American Foreign Service Association (AFSA) for many reasons, one of which is representation by AFSA legal counsel in EEO process or in criminal/administrative cases.  AFSA’s website strongly advised that “employees seek guidance and representation from AFSA or private counsel prior to agreeing to any interview and especially a voluntary interview.

We are hearing that “dramatic changes” are in the works without AFSA membership approval.  The changes reportedly will affect the nature of AFSA, potentially reduce services to members and potentially compromise the privacy of AFSA’s clients.

As we understand it, there are two possible contentious issues:

• All new AFSA cases will now reportedly go through the State-VP who allegedly will “independently decide” whether or not they merit the attention of the AFSA lawyers.

• Names of all AFSA clients will reportedly be added to an AFSA database of cases. The database we’re told will be maintained by the State VP.  The database will allegedly be accessible to two non-attorney staff members and all Board members.

These changes are reportedly intended to “improve AFSA’s service” and “more efficiently use AFSA’s resources” but have apparently already resulted in the resignation of AFSA’s most senior labor-management staff member.

In a letter to AFSA President Robert Silverman leaked to this blog, former State VP Daniel Hirsch expressed serious concerns about these reported changes, writing:

“For as long as I have been an AFSA member, AFSA members have had direct, initial access to AFSA’s attorneys and management specialists, who were the first, and usually the only, people in AFSA to hear the details of a member’s case. AFSA attorneys are legally bound by two sets of laws to maintain client confidentiality, and AFSA clients have routinely been told that no other party will learn the details of their case unless the client authorizes disclosure on a limited case by case basis to named individuals. This ensured in the past that every dues-paying member had access to the free legal advice paid for by their dues, and the right to receive that advice from a party who was objective, knowledgeable, and bound to protect their privacy.
[…]
[T]he idea of having a single, untrained individual serve as gatekeeper to AFSA services also has enormous potential for abuse.
[…]
The inclusion of names on AFSA’s client database is likewise a dramatic departure from past practice. When the database was created during my term, the issue of names was thoroughly discussed by AFSA’s attorneys and by AFSA’s membership staff. All agreed that the inclusion of names would compromise privacy, reduce client trust in AFSA, and serve no useful purpose. It was also noted that the Department’s staff does not include names in their similar databases (using instead case numbers assigned by staff members) and that the inclusion of PII in a database run over State Department computers, without appropriate approvals, is contrary to State Department policy.”

We’ve checked the AFSA website but there’s nothing there about these changes.  So we asked AFSA.  One AFSA Constituency Representative told us:

“No change – AFSA has a duty and a keen interest to represent all as the elected bargaining agent when the employee has been hit by Mgmt. […] But AFSA needs to examine the range and content of its grievance case load and try and figure out what the systemic problems are that are subjects of repeated grievances. We need to use that data to fix the system.  We are trying to fix the leaking pipes and not just keep emptying the buckets every day.  To do that we have to understand the case load and do analysis.  That requires data.”   

On August 29, 2013, we emailed State VP Matthew Asada with the following questions:

I heard that as AFSA’s State VP you will now decide whether or not new AFSA cases merit the attention of AFSA lawyers, is this true?  The AFSA client-lawyers are covered by confidentiality, where does that leave you? What is the rationale behind this change?

There’s also talk that names of all AFSA clients will be put in a database maintained by you and non-lawyer staff of AFSA. Can you understand why this could be troubling to the AFSA membership?

Can you confirm that these new policy changes has already resulted in the resignation of AFSA’s most senior labor-management staff member?

Will AFSA be sending out an ALDAC on these changes to inform its membership?

We did not get a direct response to our questions. We did get an email from Mr. Asada, a rejoiner response to the AFSA Constituency Representative’s email above on August 30:

“As  Tex [AFSA constituent rep] noted, there has been no change to our existing policies. All of us at AFSA are interested in ensuring that we are responsible custodians of AFSA’s resources and that we use those resources – entrusted to us by our members – to advance the overall interests of the Foreign Service and its 16,000 members (several of whom are avid Diplopundit readers).  We want our members to know how we are working on their behalf and communications is a key part of that (we recently brought on Kristen Fernekes as AFSA’s new Director of Communications).”

The response above, unfortunately, reminds us of a teevee talk show where guests often answer with a non-answer. So let’s add more questions, because why not?

• When new clients have to see an AFSA Governing Board Member  who decides whether dues-paying members need to see AFSA’s lawyers or not, instead of having direct access to AFSA’s lawyers, isn’t that a departure from previous practice?  Doesn’t this constitute a change that the membership should be aware of?
• Are AFSA Governing Board Members covered by client confidentiality?  If not, what kind of confidentiality agreement protects AFSA clients?
• Since cases are available in a database accessible to over a dozen people, how safe is that data from accidental disclosure? What protection does AFSA employ to ensure protection from unauthorized disclosures?
• What are the consequences for disclosure of this data?
• Do AFSA members have an option to opt-out from the data collection?

We understand AFSA’s interest in learning from the data of its grievance case load but, wouldn’t it make more sense to look at cases resolved in … maybe the last five years, instead of new cases?

Let’s pause for a moment here and imagine this. Say I have a potential sexual harassment case against an official at the State Department or at AFSA.   I go see if I can get legal help from AFSA. Instead of speaking directly with an AFSA attorney, I have to see an AFSA Veep to make the case why I need legal representation. Before the AFSA Veep decides whether or not I need a lawyer, he/she would have to ask me questions about my sexual harassment case. That means details. Even if I get an AFSA lawyer, that still means the AFSA Veep knows the details of my case. They then put my name in an AFSA database. The database is accessible to about a dozen or so people. If/If somebody leaks my case (even accidentally) to the official identified as the other party in my case, who pays for breach of confidentiality?

See why that is disconcerting?

Finally, elections. Remember in the 2009 elections when there was such a hubbub about the use of an email list during that nasty campaign?  That election went all the way to the Department of Labor and DOL ordered a DOL-supervised AFSA election to avoid another food fight. (See AFSA Received Letter from DOL. 11 Days Ago…).

Yep, that’s one other reason why folks might get a bad feeling about a database.

We tracked down Daniel Hirsch, the immediate past State VP for AFSA who served two terms, for comments.  He sent us the following response:

As a former AFSA VP, I can’t imagine what is meant by “AFSA’s resources.” As AFSA VP I, like my predecessors, managed member resources, paid for by member dues, to ensure that they were available to dues-paying members when needed. Yes, there is more demand now on those resources, because there are more members. More members pay more dues, so AFSA can afford to accommodate the increased demand.That’s why, and how, AFSA hired an additional attorney and an additional legislative assistant last year. 

AFSA is not a for-profit organization, and it has nearly 4 million dollars, and growing, in reserve already. What is responsible about obliging members to violate their right to confidentiality in order to allow one official to decide whether to allow them access to the services they pay for? Does it increase the efficiency of an organization, whose purpose is to help its members, to save money by helping fewer members? On what basis will that decision be made? And what qualifies one official to make it alone? 

If you have an opinion or questions about this matter contact your AFSA Governing Board representatives. If AFSA releases a clarification about these changes or non-changes, we’ll have a follow-up post.

 

Updated on 9/13/13 @1557 EST

Below is an email response from Edward Marks, Retiree Representative, AFSA Governbing Board (same position on last GB):

“You should be careful about jumping into discussions of situations with inadequate or partisan information. Your article is not factual, refecting paniced and uninformed reactions by people with vested interest in the existing situation. A situation which many find inadequate when dealiing with the Department on systemic as well as personal questions. The former VP Daniel Hirsch was a vocal , and distinctly minority, obstacle to all change proposed in the previous Governing Board and obviously is continuing to oppose change today. He has of course his views, but they are distinctly parti pris. Please do not pursue the media habit of of giving equal coverage (although in this case you did not even do that) to two sides without at least identifying the partisan affiliations.”

Below is an email response from Matthew K. Asada | Vice President of the American Foreign Service Association

“Again, there has been no change in structure of AFSA’s legal department nor in the processing of inquiries or cases.  AFSA leadership is constantly reviewing the organization with the intent of improving service, advocacy, fiscal management, etc.  AFSA would be remiss if it did not do this.

Any changes would go to the AFSA Governing Board for decision in accordance with its bylaws.  But again, there has been NO decision to make any such change.

We welcome feedback from our members as to how we can improve service and encourage them to contact us with their ideas and suggestions.”

👀