Posted: 3:52 am ET
In January 2017, Congress passed the Department of State Authorities Act: Fiscal Year 2017, which introduced new legislative requirements with regard to the Accountability Review Board (ARB) statute. On July 17, the State Department updated three FAM sub-chapters related to standards of appointment and continued employment, and the list of offenses subject to disciplinary action for both the Foreign Service and the Civil Service.
3 FAM 4130 STANDARDS FOR APPOINTMENT AND CONTINUED EMPLOYMENT
Under 3 FAM 4138, the following update has been added:
- (12) Conduct by a senior official that demonstrates unsatisfactory leadership in relation to a security incident under review by an Accountability Review Board convened pursuant to 22 U.S.C. 4831; or
- (13) Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.
Note that 3 FAM 4139.3 Freedom of Expression (CT:PER-860; 07-17-2017) (Uniform State/USAID)
(Applies to Foreign Service Employees) appears to be a new addition. Further note the language here that says “An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.”
The agencies do not presume to impinge upon any of their employee’s right of expression, but the individual as an employee is obliged to protect or to refrain from unauthorized dissemination of certain types of information which the employee acquires through official duties, such as classified information, privileged financial, commercial, and other business information, and information about individuals protected by 5 U.S.C. 552a (the Privacy Act of 1974). An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service. Such efficiency may be impeded because information appearing insignificant from a security point of view is highly sensitive by virtue of the source or manner in which it was acquired; or because creation of a poor reputation for discretion and security consciousness seriously impairs the trust and confidence the Service normally enjoys with foreign governments and individuals with whom it must deal in candor and mutual confidence. The Department’s procedures for the expression of dissenting views on official matters are contained in 5 FAM, and for the agencies the prerequisites for public speeches or writing for publication are found in uniform State/USAID regulations in 3 FAM 4170.
Other additions/update to this subchapter includes Habitual Use of Intoxicating Beverages to Excess, Abuse of Narcotics, Drugs, or Other Controlled Substances, Loyalty and Security, and Financial Responsibility.
3 FAM 4370 says: The purpose of this subchapter is to advise employees, supervisors, and managers of some of the types of employee conduct which can result in disciplinary action. It is intended that this material be required reading for new employees and that it be referred to during briefings on the behavior expected of employees, ethics, the Department’s leadership tenets, etc. The Department believes that the more employees know and understand their responsibilities and the professional standards by which they are expected to abide, the less likely it is that they will engage in improper behavior that requires disciplinary action. Disciplinary action is taken only after it has been determined that discipline, rather than less formal action, such as an admonishment, is necessary.
On duty 24 hours a day: As explained in 3 FAM 4130, the attainment of foreign policy objectives requires the maintenance of the highest standards of conduct by employees of the Foreign Service. Because of the uniqueness of the Foreign Service, employees serving overseas are considered to be on duty 24 hours a day, seven days a week, and must observe especially high standards of conduct during and after working hours, and when on leave or in travel status. Accordingly, the commission after work hours of many of the offenses listed here under “Conduct on the Job” would still be punishable if it affects the ability of the individual or the agency to carry out its responsibilities or mission. No action against a Foreign Service employee should be considered without a careful review of 3 FAM 4130.
The list is not exhaustive, but these are a few marked additions:
- 40. Dereliction of managerial and supervisory duty by neglecting to carry out personnel management responsibilities, including failure to address conduct or performance problems, failure to complete required performance ratings or reviews, or failure to address a toxic workplace.
- 50. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring commercial sex.
- 51. Sexual Assault (3 FAM 1700)
- 52. Violation of regulations or policies (including post policies) regarding the payment or treatment of domestic staff (3 FAM 4128)
- 53. Failure to maintain records as required in 5 FAM 414.8 paragraph (2)
- 54. Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.
See more 3 FAM 4370 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – FOREIGN SERVICE
The subchapter for the Civil Service appears to be entirely new:
It is impossible to list every possible punishable offense, and no attempt has been made to do this. Employees are on notice that any violation of Department regulations could be deemed misconduct regardless of whether listed in 3 FAM 4540. This table of penalties lists the most common types of employee misconduct. Some offenses have been included mainly as a reminder that particular behavior is to be avoided, and in the case of certain type of offenses, like sexual assault, workplace violence, and discriminatory and sexual harassment, to understand the Department’s no-tolerance policy.
The non-exhaustive list includes 51 offenses with penalties meriting a Letter of Reprimand except for the following:
12. Improper political activity (5 U.S.C. 7321, et seq.) – suspension or removal
35. Violation of the “no strike” affidavit – removal (same penalty for Foreign Service)
39. Gifts to official supervisors¾soliciting contributions for gifts or presents to those in superior official positions, accepting gifts or presents from U.S. Government employees receiving lower salaries, or making donations as a gift or present to official supervisors (exception: this does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, retirement, or transfer (22 CFR 1203.735-202(e)) – Removal (required by 5 U.S.C. 7351) (same penalty for the Foreign Service)
Read more here: 3 FAM 4540 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – CIVIL SERVICE
Is there something in these changes/additions that should shock the conscience somehow? I’m not seeing it.
The freedom of expression language is new, which is odd since there is an entire subchapter on speaking/writing, etc. The items I flagged are new additions to the list (but the list itself is not exhaustive). One item also added as a result of ARB Benghazi.