What if Congress grants the State Dept the Suspension Without Pay (SWOP) hammer?

Posted: 1:44  pm EDT
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According to the Foreign Affairs Manual, the Act of August 26, 1950 (64 Stat. 476), codified at 5 U.S.C. 7532, “confers upon the Secretary of State the authority, in the Secretary’s absolute discretion, to suspend without pay any civilian officer or employee of the Department (including the Foreign Service of the United States) when deemed necessary in the interest of the national security (see 12 FAM 235.2).”

So when the Senate Foreign Relations Committee passed the Fiscal Year 2016 Department of State Operations Authorization and Embassy Security Act which contains a similar language on security clearance suspension without work and no pay for Foreign Service employees, we were wondering what’s up with that (see S.1635: DOS Operations Authorization and Embassy Security Act, Fiscal Year 2016 – Security Clearance).

Section 610 (2)(c)(1) of S.1635 says that in order to promote the efficiency of the Service, the Secretary may suspend a member of the Service without pay when—

(A) the member’s security clearance is suspended; or

(B) there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed.

The new language indicates suspension without pay (SWOP) whenever the security clearance is suspended for whatever reason. Not just for national security reasons anymore, folks.

The most widely reported FSO with a suspended clearance in recent memory is Peter Van Buren whose TS clearance was suspended for about a year. Under this proposed bill, PVB would not have been assigned to a telework position or paid for the duration of his fight with the State Department. Which means he and others like him would have to quit and find a paying job or starve unless he/she has a savings account that can sustain the investigation for a year or years.

Any FS employee who might dissent or engage in whistleblowing activity, any perceived troublemaker for that matter, can be put on SWOP, and that would be it.  An FSO who experienced first hand the suspension of a security clearance put this in very stark terms:

In practical terms they can remove the employee instantly, without telling anyone why until much later, by which time the employee will have resigned unless they can afford to go for months or years without a salary. And once the employee has resigned, the case is closed, the former employee loses their clearance because they resigned, and with it any right to know the reasons for the suspension. If the employee quits, the Department does not have to justify itself to anyone, and if the Department doesn’t have to pay them, 99.9 percent will quit.

We want to look at the numbers of suspension and revocation, unfortunately, this is something that is not publicly available from Diplomatic Security.  A source speaking on background put the numbers very low at less than 30 suspensions a year and of those probably less than 5 are revocations. Another source long familiar with this issue guesstimate the number as closer to 70-80 suspension per year, and the number of revocations probably at15-20 per year. We are unable to verify these numbers independently.  The higher numbers may be due to greater hiring, as well as to the use of “Scattered Castles,” a computer database that lists all prior security clearance determinations by other agencies which may prompt a suspension and re-investigation of the clearance.  But even if we take the higher numbers of 80 suspensions, that is still a small number compared to the total FS workforce.

A source not authorized to speak on this subject told us that the bulk of security clearance suspensions and revocations involve personal behavior issues ranging from alleged sexual misconduct to alcohol abuse, to failure to report on time a relationship that should be reported. Very few security clearance cases involve a matter that is criminal, so very few result in prosecution.

The question then becomes why? Why would Congress want this? And just as important, why does the State Department support this?

The long history of this section of the bill reportedly dates back to Condoleezza Rice’s term at the State Department. It was allegedly intended to create parity between Foreign Service (FS) and Civil Service (CS) employees.

State can indeed put CS employees on SWOP as soon as clearance is suspended, but the rules also gives CS employees appeal rights to the Merit Systems Protection Board (MSPB). We understand that MSPB records and procedures are public and that it is specifically granted authority to review security clearance cases. The FS employees do not have the same protection with the Foreign Service Grievance Board. The final review adjudicative body, the Security Appeals Panel, not part of FSGB, allegedly does not even keep records of its deliberative process or set precedent for future cases. Currently, the rules on the FAM says: “If the individual is represented by counsel or other representative, the representative does not have a right to have access to or to review any material. However, to the extent authorized by the individual and the Department, the representative may review material that the individual has access to pursuant to subsection (b) above if he or she is properly cleared.”

The numbers of suspension/revocation are low but Congress doesn’t have to talk about the numbers. The members can talk about getting rid of bad apples in the government, which is always popular. In doing so, Congress can look tough on security, tough on the State Department and tough on keeping tabs on government money.

This is not a good idea. If only a quarter of all suspensions end in revocation, isn’t the USG throwing money and lives away? In addition to our concern that this could be use by the State Department to shut-up dissenters or potential whistleblowers, we also have the following concerns:

  • Costs in hiring/training

The USG has a lengthy hiring process for FS employees and typically trains them before sending them to posts overseas. The cost of that investment does not come cheap. Members of the FS also go through language training and spends most of their careers in overseas assignments.The length of time to replace/train/deploy an FS employee is significantly longer than the time to replace a CS employee.

  • FS family logistics

FS members overseas with suspended clearance are normally sent home to a desk job that does not require a clearance or their expertise. Not all FS members have houses to come home to in the WashDC area. They’ll have to pull kids out of schools, and move their entire household. What happens to them in DC if the employee is without work and without pay under this proposal? A suspension in this case would technically be a firing as the FS employee will be forced to find an alternate job that pays. So what happens when the case is resolved without a revocation, will the employee be able to come back? Since the investigation ends when the employee leaves, there is no win here for the employee.

  • Prime targets of hostile intel service

FS employees spends most of their career overseas. By virtue of their positions, they are prime targets of any hostile intel service. They can be subject of a security investigation though no fault of their own.  This is even more concerning with the OPM hack purportedly conducted by a foreign government.  If true that a foreign government now has the personal details of over 20 million security clearance holders, including those in the State Department who used OPM’s e-Qip system, how does one even protect oneself from the potential misuse of that information that can lead to a clearance suspension?

What can you do?

As we have posted earlier, the State Authorization bill was offered as an amendment when the NDAA was debated in the Senate in June but it was not voted on when the NDAA passed on June 18 (That would be H.R. 1735 which passed 215 (71-25)  We understand that both chambers are now starting the process to bring the bill to conference in order to resolve differences.  The State Authorization bill, we are told, will not be part of those discussions.  In order for this to move forward, it will either need to be brought to the floor as a stand alone vote or Corker/Cardin could try again to attach it to another piece of legislation. Given that this is the first authorization bill passed by the SFRC in 5 years, and made it through the committee with bi-partisan support, we suspect that this might not be the end of this bill.

We’re hoping that employees’ fundamental rights and due process do not become casualties particularly in gaining concessions from Congress on the overseas comparability pay (CP) fight. That would be a terrible bargain.  Educate your elected representative on the consequences of this section of the bill. See that AFSA is tracking this matter and talking to Congress.

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Photo of the Day: President Obama Visits the US Embassy Bombing Memorial in Nairobi

Posted: 10:38 am EDT
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Notoriously Disgraceful Conduct: Is it only the little people who are taken to task?

Posted: 12:48 am EDT
Updated: 3:07 pm EDT
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In March 2012, AFSA’s General Counsel Sharon Papp reported about a State Department proposal related to the “state of affairs” in the Foreign Service ….no, the other kind of affairs:

In 2011, the State Department proposed disciplinary action against a handful of employees for off-duty conduct that it had not sought to regulate in the past (i.e., extramarital affairs between consenting adults). 

When we reviewed several sex-related grievance cases in 2012, we came to the conclusion that from the agency’s view, widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service. Further, the potential for embarrassment and damaged to U.S. interests seems as weighty as actual embarrassment and damage. See: Sex, Lies, and No Videotapes, Just Cases for the Grievance Board

We recently received the following in our mailbox (edited to remove the most identifying details):

The married DCM at the embassy of a major Middle East ally slept with a married ELO whose husband worked for him. He blamed his alcoholism. As “punishment,” he was assigned as DCM at a significant high risk/high threat post. Next up? One of the top jobs at an embassy located in a Western European country.  Where’s the accountability at State? Is it only the little people that are taken to task? 

Well, that is an excellent question given another allegation we’ve received about another front office occupant involved in domestic violence overseas (another story we hope to write another day).

Extra-marital affairs, of course, are not mentioned anywhere in the Foreign Affairs Manual but below is what the regs say on sexual activity (pdf) and what constitutes, “notoriously disgraceful conduct.” Both sections were last updated in 2012, and applies to Foreign Service employees at State and USAID:

3 FAM 4139.1 Sexual Activity
(CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees) 

The agencies recognize that, in our society, there are considerable differences of opinion in matters of sexual conduct, and that there are some matters which are of no concern to the U.S. Government. However, serious suitability concerns are raised by sexual activity by an individual which reasonably may be expected to hamper the effective fulfillment by the agencies of any of their duties and responsibilities, or which may impair the individual’s position performance by reason of, for example, the possibility of blackmail, coercion, or improper influence. The standards of conduct enumerated in 3 FAM 4138 are of particular relevance in determining whether the conduct in question threatens the mission of the employing agency or the individual’s effectiveness.

3 FAM 4139.14 Notoriously Disgraceful Conduct
(CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees) 

Notoriously disgraceful conduct is that conduct which, were it to become widely known, would embarrass, discredit, or subject to opprobrium the perpetrator, the Foreign Service, and the United States. Examples of such conduct include but are not limited to the frequenting of prostitutes, engaging in public or promiscuous sexual relations, spousal abuse, neglect or abuse of children, manufacturing or distributing pornography, entering into debts the employee could not pay, or making use of one’s position or immunity to profit or to provide favor to another (see also 5 CFR 2635) or to create the impression of gaining or giving improper favor. Disqualification of a candidate or discipline of an employee, including separation for cause, is warranted when the potential for opprobrium or contempt should the conduct become public knowledge could be reasonably expected to affect adversely the person’s ability to perform his or her own job or the agency’s ability to carry out its responsibilities. Evaluators must be careful to avoid letting personal disapproval of such conduct influence their decisions.

One might argue that an extra-marital affair between two consenting adults is a private matter.  And in most cases, it is; who wants to be the sex police?  But. If the allegations are true, can you really consider it private, particularly in a case that involves the second highest ranking public official at an embassy and an entry level officer (ELO) assigned under his command? Even if the DCM is not the ELO’s rating or reviewing officer —  how does this not affect the proper functioning of the mission? Can anyone exclude undue influence, potential favoritism or preferential treatment?  Which section chief would give a bad performance review to a junior officer who slept with the section chief’s own reviewing officer? Even if not widely known outside the Foreign Service, can anyone make a case that this is not disgraceful or notorious?  For real life consequences when a junior officer has a “special relationship” and “unrestricted access” to an embassy’s front office occupant, read the walking calamity illustrated in this case FSGBNo.2004-061 (pdf).

Look … if widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service for the lower ranks, why should it be a requirement for the upper ranks?  It’s not? Well, how else can we explain a good number of senior officials who allegedly looked the other way?

[protected-iframe id=”60ad9e8b18f491d0b315211a9a123f7b-31973045-31356973″ info=”//giphy.com/embed/R2s69ZdZjx4I0?html5=true” width=”400″ height=”200″ frameborder=”0″]
Can’t you see I’m busy? Besides I did not/did not see anything!

 

We went and looked up the Foreign Service Grievance Board cases related extra-marital affairs or related to notoriously disgraceful conduct. Here are some quick summaries.

  • In 2011, the State Department handed down a 30-day suspension to a junior officer for “off-color and offensive emails about women he dated, which were widely disseminated” after his private email account was hacked.  State said this constituted “notoriously disgraceful conduct.” (pdf)
  • Another case in 2011 involves an FSO who was told by the State Department: “Given the nature of Foreign Service life, you are aware that you are on duty 24/7. These multiple extramarital affairs involving sexual relations with an estimated 13 women during two separate assignments overseas without your spouse’s knowledge show poor judgment for a Foreign Service Officer.” (pdf) (note: two separate assignments could mean 4-6 years; untenured tours at 2 years, tenured tours typically at 3 years).
  • A Diplomatic Security (DS) Special Agent was suspended for three days for Notoriously Disgraceful Conduct arising from a domestic violence incident with his spouse. (pdf)
  • A married FP-04 Information Management Specialist (IMS), received a 20-day suspension, subsequently reduced to 10 days, for improper personal conduct and failure to follow regulations. The employee served at a critical threat post, and admitted having an extramarital relationship with a local embassy employee as well as engaging in sexual relations with two “massage techs.” (pdf)
  • An untenured FP-04 Diplomatic Security (DS) agent was disciplined for poor judgment and improper personal conduct. The employee brought a  woman to his hotel room and engaged in sex with her. Although the employee voluntarily disclosed the incident and asserted that the woman was not a prostitute, the Department contends that the incident at a minimum gave the appearance of engaging in prostitution and as such violated 3 FAM 4139.14 or Notoriously Disgraceful Conduct. (pdf)
  • A married FS-02 Information Management Officer (IMO) with seventeen years in the Department, with numerous awards and no disciplinary record, was found in his personal vehicle that was parked in an isolated area, and in a dazed condition with injuries suggesting he had been assaulted. He stated that during the prior night he had picked up a woman unknown to him, shared wine with her while driving, pulled over to the side of the road and then had no recollection of what followed, presumably because she had introduced a substance into his drink. During the ensuing investigation, the employee revealed he had picked up four or five women on previous occasions over a four-month period and had sex with them without the knowledge of his wife.  As a result, the Department proposed a ten-day suspension based on the charges of Poor Judgment and Notoriously Disgraceful Conduct. (pdf)
  • An FP-04 Diplomatic Security (DS) agent was given a five-day suspension without pay on the charge of Improper Personal Conduct. The charge is based on an incident in a criterion country in which employee (an unmarried person) engaged in consensual sex with a local woman and gave her $60.00 after the sexual activity had concluded. There was no evidence that the woman was a prostitute and there were no witnesses to their encounter. The employee self-reported the incident immediately to his supervisors, who took no disciplinary action. Eighteen months later, the Department opened an investigation and eventually suspended the employee. The deciding official concluded that employee’s conduct had violated two regulations governing behavior subject to discipline: 3 FAM 4139.1 (Sexual Activity) and 3 FAM 4139.14 (Notoriously Disgraceful Conduct). (pdf)

So —

We have so far been unable to locate FSGB cases of “notoriously disgraceful conduct” involving senior Foreign Service officials; certainly nothing at the DCM or COM level. It could be that 1) our search function is broken; 2) the folks are so risk-aversed and discreet that there are no cases involving a single one of them, or 3) potential such cases were swept under the rug, nothing makes it to the public records of the Foreign Service Grievance Board.

Which.Is.It? Will accept breadcrumbs …

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