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Court on FSGB tenure denial case: “ignores significant parts of record and fails to connect rationally”

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Posted: 1:50 am ET

 

The 2016 Annual report of the Foreign Service Grievance Board only mentions the Aragon v. Tillerson case in passing as follows:

Daniel P. Aragon, a former Foreign Service career candidate at the Department of State, filed an appeal on January 29, 2016, with the District Court for the District of Columbia, challenging the Board’s denial of his appeal in FSGB Case No. 2014-034. Mr. Aragon had contested two EERs and the withholding of tenure and involuntary separation that flowed from those EERs.

This case was filed in 2016. Per Federal Rule of Civil Procedure, the Court substituted as defendant the current Secretary of State,Rex Tillerson, for former Secretary of State John Kerry.

Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia has harsh words for the Foreign Service Grievance Board (FSGB) on this specific case:

The plaintiff, the Foreign Service, and American taxpayers have invested heavily in the plaintiff’s career as a Foreign Service officer, and the FSGB does a disservice when it renders a decision that ignores significant parts of record and fails to connect rationally the underlying facts to its ultimate conclusion. This is what the FSGB did in finding that the May and November 2013 EERs were not falsely prejudicial. For these reasons, the FSGB’s decision is vacated with respect to its conclusion that these EERs were not falsely prejudicial, and this action is remanded to the FSGB for further proceedings consistent with this Memorandum Opinion.21

Quick summary of the case:

The plaintiff, Daniel Aragon, served as an entry-level Foreign Service Officer with the U.S. Department of State for five years, until he was denied tenure and involuntarily separated in 2014. The reason for the tenure denial arose during the plaintiff’s second overseas assignment, when the plaintiff was responsible for supervising an employee, whose undisputed pattern of insubordination, tardiness, abuse of leave policies and performance issues would, in many work environments, warrant termination of employment. Instead, the plaintiff’s management efforts, which were ultimately successful, to bring this employee into compliance with basic workplace rules, has led to the plaintiff’s own termination from a job he “love[s].” AR at 354.1

The plaintiff filed the instant action against the Secretary of State, in the Secretary’s official capacity, after the State Department denied his grievance contesting the performance evaluations on which the tenure denial was predicated, and the Foreign Service Grievance Board (“FSGB”) upheld the State Department’s decision.2 Alleging that the FSGB’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), the plaintiff seeks, inter alia, an order directing the State Department to remove from his personnel file the two performance evaluations on which the denial of tenure was predicated, Compl., Relief ¶ 3, ECF No. 1; an order rescinding the tenure decisions predicated on those evaluations, id.; an order directing the State Department to reinstate the plaintiff retroactively, with back pay and benefits, id. ¶ 4; and an order directing the State Department to place the plaintiff in the same promotional class he would be in had he received tenure in the winter of 2013, id. ¶ 5. Pending before the Court are the plaintiff’s motion for summary judgment, see generally Pl.’s Mot. Summ. J. (“Pl.’s MSJ”), ECF No. 12, and the Secretary’s cross-motion for summary judgment, see generally Defs.’ Mot. Summ. J. (“Defs.’ MSJ”), ECF No. 14. For the reasons set out below, the plaintiff’s motion for summary judgment is granted in part and denied in part, without prejudice, the Secretary’s cross-motion for summary judgment is denied without prejudice, and this action is remanded to the FSGB for further proceedings.

What the what? Excerpt from court’s opinion:

[T]he record shows that the CPS [cultural program specialist FSN] had an “apparent pattern” of abusing sick leave and would disappear from work for extended periods of time. Id. at 42; see also id. at 335 (describing the manner in which the CPS “took sick leave immediately before or after a block of annual leave[, which] suggest[ed] that she was abusing sick leave in order to augment her annual leave”). This apparently lax office culture was extant before the plaintiff’s arrival, leaving him with the task of changing that culture to ensure that employees, such as the CPS, on the U.S. Government payroll complied with the most basic work performance rules of coming to work on time and providing notice of absences.”

Lip service to evidence

The FSGB paid this evidence lip service in the section of its decision summarizing the plaintiff’s claims, see id. at 405, but the Board did not refer to it, let alone grapple with it, in deciding that the AFI concerning the counseling session was not falsely prejudicial for completely omitting any reference to the events giving rise to the counseling session or the context, in which even before the plaintiff’s arrival, the Dubai office had such deficient management that the CPS was able to develop and engage in a pattern of poor work behavior.

Fails to connect rationally …

That prior agency management in Dubai allowed such poor work habits to persist likely made the plaintiff’s effort to enforce the most basic workplace rules more difficult and makes it all the more impressive that the plaintiff was, apparently, ultimately successful in reining in the CPS’s behavior. See, e.g., AR at 42 (noting that after the plaintiff spoke with the CPS about her “apparent pattern of abusing sick leave, . . . there were no further incidents of suspected leave abuse during the rating period”). As the FSGB itself has noted, a supervisor will “almost inevitabl[y]” have “a difficult relationship” with an employee when the supervisor “is trying to effect changes” in the employee’s behavior. FSGB Op. 2006-052 at 13.

Read in full below:

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Snapshot: Foreign Service Grievance Board Annual Report 2016 – Statistics

Posted: 1:19 am ET

 

Via fsgb.gov

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Related posts:

 

 

@StateDept Cites 10 Cases Where Employees Were Placed on Admin Leave, See #10

Posted: 12:41 ET

 

3 FAM 3464 defines “Excuse Absence” (commonly known as administrative leave) as absence from duty administratively authorized or approved by the leave-approving officer and does not result in a charge in leave of any kind or in loss of basic salary. 3 FAM 3464.102 also provides for Conduct-Related Excused Absence “Excused absence may be directed in rare circumstances and when authorized as provided by 3 FAH-1 H-3461.2 when an investigation, inquiry, or disciplinary action regarding the employee’s conduct is pending, has been requested, or will be requested within 2 workdays, and the continued presence of the employee in the workplace may pose a threat to the employee or to others, or may result in loss of, or damage to, U.S. Government property, or may otherwise jeopardize legitimate U.S. Government interests.”

According to grievance records, during the discovery phase of FSGB No. 2015-029, the State Department provided grievant with a spread sheet identifying 10 cases in which employees were placed on administrative leave pursuant to 3 FAM 3464.1.-2.

Via FSGB:  We quote the stated reasons for the administrative leave as follows (with numbering added):

  • 1) Ongoing investigation. Employee admitted to taking extra passport applications from courier beyond allowed quota. . . . (3 separate cases);
  • 2) Arrest based on violation of protective order;
  • 3) Allegations of misconduct and alcohol consumption while at US Embassy;
  • 4) Employee’s clearance suspended – reasons unknown. Employee failed to meet DS for compelled interview;
  • 5) By letter dated 11/14/13, PSS notified her of suspension of clearance. . . . ;
  • 6) Security Clearance suspended by DS. . . . ;
  • 7) DS investigating employee fraud/impersonating supervisor to obtain federal housing benefits;
  • 8) Arrested on child pornography charges. (no indication employee used USG equipment);
  • 9) Incident resulting in death of Ambassador and others. Admin leave while office evaluates appropriate action (3 separate cases);
  • 10) Employee investigated based on allegations of the rape of 2 women.

Grievant lacks any basis for asserting that the AL granted in these other cases did not serve USG “interests.” Those interests are broad, going far beyond the obvious trauma and safety issues as to other employees. Realistically, all 10 cases (based on the brief descriptions given in the record) invoked some type of governmental interest that was rather self-evident, e.g., stopping an employee from impersonating a supervisor or investigating the actual suspension of someone’s security clearance.21 The bottom line is that the Department’s decisions to grant AL to other persons who were subject to various investigations is not even pertinent to the grievant, [REDACTED].

The FSGB finds that “administrative leave is not an entitlement that would provide the grievant with certain safeguards, but is instead a prerogative administered by management to meet the needs of the Service.”

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Sexual Assault Related posts:

 

FSGB and MSPB: Majority of the Grievance Cases Do Not Prevail

Posted: 12:21 am ET

 

Via State/OIG’s archive: Review of the Department of State Disciplinary Process:

Foreign Service and Civil Service employees have the right to file a grievance to contest the penalty in the letter from the deciding official. Initially, the Grievance Staff reviews grievances for the Department and reexamines all case materials. The Grievance Staff reviews about 130 Foreign Service and 20 Civil Service grievances of all types each year. A deputy assistant secretary for DGHR makes a determination on each grievance. That agency-level decision can be further appealed through separate Foreign Service and Civil Service processes. Under 3 Foreign Affairs Manual (FAM) 4430, “upon request of the grievant, the agency shall suspend its action” in cases involving suspension, separation, or termination during the review process. This provision applies only to the Foreign Service.
[…]

Foreign Service Appeals Process

A Foreign Service employee may appeal an agency-level decision to the Foreign Service Grievance Board (FSGB), an independent grievance appeals forum established through the Foreign Service Act of 1980. Foreign Service employees facing separation on grounds of misconduct have a right to an automatic hearing before the FSGB. Attorneys or American Foreign Service Association representatives may represent the employee. The FSGB may uphold the agency-level decision, mandate a lesser penalty, or dismiss the case entirely. In 2013, it took an average of 43 weeks for the FSGB to process a case from filing date to final decision.

Foreign Service employees may request and the FSGB may grant “interim relief” (sometimes called “prescriptive relief”) to suspend disciplinary action while an appeal is in process.

The 1995 OIG audit of the FSGB, in addressing the perception that the FSGB routinely overturns the Department’s disciplinary actions, found that “the grievance system is used by a relatively small number of employees, the majority of whom do not prevail.”10 Data from the 2008–2013 FSGB annual reports indicate that this conclusion remains valid. During this 6-year period, the FSGB adjudicated 63 appeals of disciplinary actions. The FSGB partially upheld and partially reversed the Department in 15 cases and fully reversed the Department in only 4 cases. In eight cases, the nature of the FSGB’s decision is not reported in the annual report.

Civil Service Appeals Process

Civil Service employees suspended for more than 14 calendar days or removed or reduced in grade or pay may appeal to the Merit Systems Protection Board (MSPB), an independent quasi-judicial agency established in 1979 to protect Civil Service employees. Employees covered by a collective bargaining agreement with the American Federation of Government Employees or the National Federation of Federal Employees may file a grievance under the agreement or appeal to the MSPB, but not both. The Civil Service appeals process has no mechanism for interim relief.

MSPB data concerning cases originating in the Department do not disaggregate appeals related to disciplinary matters from appeals of all types. However, relatively few Civil Service cases of all types originating in the Department reach the MSPB. In FY 2012, the MSPB received 29 appeals from Department Civil Service employees: 21 were dismissed for lack of jurisdiction or timeliness, and 4 were settled. The MSPB adjudicated only four and upheld the Department in all cases.

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Snapshot: Douglas Factors

Posted: 3:34 am ET

 

For both Civil Service and Foreign Service disciplinary cases, a proposed penalty is based on the review of similar past discipline cases and the application of the Douglas Factors.  The 12 Douglas Factors are mitigating or aggravating factors that may affect the penalty imposed:

  • The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was repeated frequently.
  • The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
  • The employee’s past disciplinary record.
  • The employee’s past work record, including length of service, performance on thejob, ability to get along with fellow workers, and dependability.
  • The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties.
  • Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
  • Consistency of the penalty with any applicable agency table of penalties.
  • The notoriety of the offense or its impact upon the reputation of the agency.
  • The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
  • The potential for the employee’s rehabilitation.
  • Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, bad faith, or malice or provocation on the part of others involved in the matter.
  • The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the Merit Systems Protection Board established criteria that supervisors must consider in determining an appropriate penalty for misconduct. See the Office of Personnel Management Web site for a complete list (https://www.opm.gov/policy-data-oversight/employee- relations/reference-materials/douglas-factors.pdf).

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Burn Bag: A confidentiality agreement so others don’t find out how f’d up is the system?

Via Burn Bag:

“How is it that — as promotion panels go back for at least the last several EERs normally and in that period someone gets several awards, and gets specifically recommended for promotion every year by their rater and reviewer — they can be low ranked?? And then the injured party grieves and wins immediately but is required to sign a confidentiality agreement so others don’t find out how f’d up the system is … and how often this sort of thing occurs by promotion panels composed of member(s) who should recuse themselves when reviewing the files of someone they don’t like.”

via reactiongifs.com

via reactiongifs.com

 

*EER – Employee Evaluation Report
*MHAs – Meritorious Honor Award
*IRM -Information Resource Management

 

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Whoa! What happened to these Foreign Service Grievance Board (FSGB) files? (Updated)

Posted: 3:26 am ET
Updated: 2:53 pm PT (see below)

An interesting excerpt from an FSGB case:

Grievant “contends that she should not be held to a higher stand (sic) than senior Department officials and a DCM. In two of those cases, very high-ranking officials were found to have been less than candid with the Deputy Secretary of State about their relationships and not to have followed his instructions to “knock it off.””
[…]
FSGB: “However, we find it difficult to conclude that she should be held to a standard higher than that imposed on two of the Department’s most senior managers (Employees 2005-103 and 2005-104), who were both charged, unlike grievant, with lack of candor; who failed to heed direct instructions from the Deputy Secretary of State; and whose conduct led to several complaints being lodged with the Director General of the Foreign Service, as well as curtailments from the office in which they worked. Likewise, we do not agree that grievant, an FS-02, should be punished more harshly than the employee charged in FSGB Case No. 2003- 045, who was, at least during part of the conduct at issue, a Deputy Chief of Mission and thus presumably senior to grievant in the instant case, in both rank and responsibility.”

That perked our interest. So we went looking for FSGB cases 2005-103, 2005-104 and FSGB Case No.2003- 045 using the search and browse function at fsgb.gov.  And lo, and behold, all these files (Record of Proceeding) are missing from the FSGB website (the FSGB case is online, but search function failed to locate it, see explanation below).  We’ve asked the FSGB what happened to these files and why they are not online. We will update this post if/when we get a response.

The Deputy Secretary of State in 2005 is either Richard Armitage who served from March 26, 2001 to February 22, 2005 or Robert Zoellick who served from February 22, 2005 to July 7, 2006, both under President George W. Bush. The Director General of the Foreign Service at that time is W. Robert Pearson who served from October 7, 2003 – February 27, 2006.

Update 2:53 pm PT

In response to our query, FSGB said that the first two numbers we cited (Employees 2005-103 and 2005-104) are not FSGB numbers but numbers assigned by the State Department to employees who faced some sort of discipline; these discipline cases were later presented to the Foreign Service Grievance Board as comparators.  The FSGB website only includes decisions and orders from the Board. It adds:

“We try to post all our decisions and orders online. Sometimes we learn something was missed due to an administrative error, and then we post it as soon as possible when the problem is brought to our attention. We also are reviewing each year’s cases systematically to ensure there are no gaps. We welcome your bringing to our attention any gaps you identify. Please note, however, that a skipped number does not necessarily mean there is something that we are not posting; it could mean that an appeal was withdrawn very early or consolidated with another appeal and given the other appeal’s number before issuance of a decision.”

As to FSGB Case No. 2003-045, it is online and the Board provided us the link here

 

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Related item:
State-13: Foreign Service Grievance Board Records

 

 

 

@StateDept Updates Its Polygraph Policy: Are Results Shared For Security Clearance/Assignment Purposes?

Posted: 1:26 am ET

 

On September 1, 2016, the State Department updated its 12 FAM 250 policy on the use of the polygraph to examine Department employees (including employees on the General Schedule, the Foreign Service, on Personal Service Contracts, Limited NonCareer Appointees, and Locally Employed Staff).  

Per 12 FAM 251.2-2, the Office of Investigations and Counterintelligence (DS/DO/ICI) Counterterrorism Vetting Unit (CCV) administers the polygraph program and is responsible for hiring polygraph examiners, responding to requests for polygraph support, deploying polygraph examiners, and maintaining relevant records.

The update includes the following:
  • Streamlines the polygraph examination process by removing a requirement to seek pre-approval before a DS or OIG agent can ask an employee if s/he is willing to submit to a polygraph.
  • Authorizes a DS agent or Department OIG investigator to alert an employee or contractor, currently subject to a criminal, personnel security, or counterintelligence investigation, that s/he has the option to undergo an exculpatory polygraph examination, rather than limiting exculpatory polygraphs to cases where it is initiated by the individual under investigation.
  • Allow polygraphs of Department employees detailed to federal agencies (in addition to the NSA, CIA, and DIA) when the relevant agency requires a polygraph to be detailed to the position. Polygraphs of employees detailed to agencies other than the NSA, CIA, or DIA will be considered on a case-by-case basis and will require approval from the Under Secretary for Management.
  • Limits the scope of polygraph examinations of Department detailees to other federal agencies to counterintelligence topics for all detailees.
  • Formalize existing processes for polygraph examination of certain locally employed staff, in accordance with the approvals specified in the polygraph policy

Back in May 2015, we questioned the use of the CIA’s polygraph exams of State Department employees (see AFSA Elections: What’s Missing This Campaign Season? Fire, Ice and Some Spirited Debates, Please).

Do you know that Department employees who take the CIA’s polygraph examination for detail assignments will have the  results of their polygraph provided to DS and HR for security  clearance and assignment purposes?  A source told us that “In and of itself, it does no  harm if the CIA retains them for its clearance purposes, but it can  have an unanticipated negative impact when indiscriminately released  by the CIA to third parties, like DS and HR, who use them in violation of the CIA’s restrictions to the Department  and assurances to the examinees.”  If this affects only a fraction of the Foreign Service, is that an excuse not to do anything about it, or at a minimum, provide an alert to employees contemplating these detail assignments?

We’ve recently discovered a newly posted grievance case dated March 2010. We don’t know why this is currently on display upfront on fsgb.gov.  In any case, this is related to the subject of polygraph examination.

On June 24, 2009, grievant, a retired Senior Foreign Service Officer, appealed to the FS Grievance Board the State Department’s (Department) denial of his grievance with respect to the use of the results of a polygraph exam he took in 2003 in conjunction with a detail to the Central Intelligence Agency (CIA). Grievant claims the improper handling and use of the results of that exam violated the Department’s own regulations (12 FAM 250) and resulted in his having been denied a Presidential Appointment as a Chief of Mission (Ambassador).  The ROP includes some interesting interrogatories:

#1: Has the Department ever obtained a Department employee’s polygraph examination results from the CIA for a personnel security background investigation based on the employee’s SF-86 signed release? If so, please describe the circumstances under which this would occur.

The Department objected to answering this interrogatory on the grounds that is was overbroad, immaterial, and irrelevant.

IR #6e for Diplomatic Security Case Officer for the second background investigation: Have you ever requested an employee’s polygraph results from the CIA before? If so, under what circumstances‘?

The Department found this interrogatory overbroad, irrelevant, and immaterial.

Ruling on IR #6e: Under the more ample concept of relevance applied at the discovery stage, the Board finds that the information requested is sufficiently relevant to grievant’s claims or likely to lead to the discovery of information relevant to such claims to compel discovery. The information requested may help to clarify the Department’s practice in applying the regulations governing the use of polygraphs that are issue in this case. We do not find the request to impose such a burden on the Department as to outweigh the potential usefulness of the information requested. The Department is directed to respond.

IR # 7h for Diplomatic Security: Does DS routinely request and receive polygraph examination results on all Department employees who have taken polygraph examinations at the CIA as part of their routine background security investigations?

The Department objected to this interrogatory as irrelevant and immaterial in all respects.

The Department was directed to respond to grievant’s Interrogatories 6e and 7h not later than 20 days after receipt of the order but we have been unable to find the decision on this case.

 

On June 24, 2009, grievant filed a grievance appeal, claiming improper use by the Department (Department, agency) of the results of a polygraph examination he had taken in conjunction with a detail from the Department to the Central Intelligence Agency (CIA).  The grievant makes several specific claims:

1) that the CIA provided the results of the polygraph to a Diplomatic Security (DS) agent in the Department, in violation of Department regulations and CIA policy;
2) that the Department requested and/or received the polygraph results from the CIA, in violation of its own regulations;
3) that the Department improperly used the polygraph results in the course of security update investigations; and
4) that the Department improperly provided information drawn from the polygraph to the Director General (DG), which resulted in the DG withdrawing grievant’s nomination to be a chief of mission. The FSGB Board finds that it has jurisdiction over the claims presented by the grievant.

 

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Domestic Assault, Reporting Requirement Under 2 FAM 272, and a Troublesome Comma

Posted: 4:22 am ET

This is a grievance case about a domestic assault, an arrest, and a punctuation:

Grievant is a tenured FP-02 Financial Management Specialist, employed by the Department of State as a Regional Financial Management Officer at the REDACTED at the Executive Office of the REDACTED. He has been employed by the Department since 1997, serving both overseas and domestically.

On June 29, 2013, grievant was arrested in REDACTED on a charge of domestic assault against his wife. Grievant’s former wife reported this arrest to the Department; however, when grievant’s current spouse told authorities that the incident was a misunderstanding, the charges were dropped on July 22, 2013. On August 6, 2013, the Department of Diplomatic Security (DS) obtained a copy of the arrest report and began investigating grievant’s failure to report the incident.

DS issued a Report of Investigation (ROI), dated January 14, 2014 and on December 12, 2014, the Director of the Office of Employee Relations (HR/ERCSD) notified grievant of a proposal to suspend him for a period of five (5) calendar days without pay on a charge of Failure to Follow Policy, citing 12 FAM 272. Grievant submitted a written response to the proposal on February 20, 2015, claiming that he did not realize that he had to report the arrest because the regulation is not clear. In any event, he claimed, the arrest was reported by his ex-wife and the charges were dropped within weeks of the arrest. Finally, he claimed that the penalty was too harsh, in light of his confusion about the mandate. After reviewing grievant’s response, the Deciding Official concluded that grievant knowingly failed to report his arrest immediately after it occurred and that he was on notice of his obligation to report the arrest, both because of the “clarity” of the regulation and because grievant had previously made a mandatory report under this same provision in 2010. In the end, the Deciding Official did not credit the reasons offered by grievant and sustained the charge on April 3, 2015.

Grievant argues that the wording of 12 FAM 272 is “far from clear.” He contends that the Department’s construction of the regulation is unfair because it relies on either removing or ignoring punctuation that totally changes the meaning of the provision.

12 FAM 272 states in pertinent part:

b. Employees must immediately report information of a potentially . . . derogatory nature . . . concerning their . . .

(2) Adverse involvement with law enforcement agencies to include:

(a) Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed, or
(b) Arrests for “driving under the influence” [DUI] or “driving while intoxicated [DWI].

c. Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

[…]
The Department argues that 12 FAM 272 b should be interpreted to require disclosures by cleared employees of any and all arrests, including two traffic offenses — DUI and DWI. The only exception to this rule of mandatory disclosure, according to the Department, is that an employee is not required to disclose “minor traffic violations for which a fine or forfeiture of $150 or more is imposed.”

The agency contends that this regulation required grievant to disclose the fact of his arrest for domestic assault because it was not for a minor traffic violation. The Department concedes that “the specifics of 12 FAM 272(b) could be more precisely worded,” and “the wording of 12 FAM 272(b) could be improved,” but insists that grievant had sufficient notice that he was  required to report his arrest. The Department lastly argues that under both sections 272 b and 272 c, grievant should have reported his arrest immediately, that is, within 72 hours of his “adverse involvement with law enforcement.”

Here is the full section of the Foreign Affairs Manual:

12 FAM 272  REPORTING ADVERSE FINANCIAL SITUATIONS AND CERTAIN ARRESTS
(CT:DS-143;   02-12-2009)

a. Employees should use good judgment and discretion in recognizing and avoiding situations and/or behavior that would call into question their judgment, reliability, and trustworthiness to safeguard information and to hold a position of trust and responsibility.

b. Employees must immediately report information of a potentially derogatory nature to the Director, Office of Personnel Security and Suitability (DS/SI/PSS) concerning their:

(1)  Wage garnishments, credit judgments, repossessions, tax liens, bankruptcies, and/or intentions to file for bankruptcy; or

(2)  Adverse involvement with law enforcement agencies to include:

(a)  Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed; or

(b)  Arrests for “driving under the influence” or “driving while intoxicated.”

c.  Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

d. Employees with information they believe may have a bearing on another individual’s eligibility for access to classified information, as listed in 12 FAM 233.2, should report that information to the Director, DS/SI/PSS.

e. Reporting pursuant to this section should be in writing and directed to the Director, DS/SI/PSS, and may be either faxed to (571) 345-3191 or sent by mail to DS/SI/PSS, Attn: Director, 11th floor, SA-20.  Reports may also be emailed to DSDirectorPSS@state.gov.

f.  Cleared contractors must report information listed in paragraphs b, c, and d of this section to the Industrial Security Division (DS/IS/IND).  See 12 FAM 576.4 for additional adverse information reporting requirements.

The FSGB disagrees with the Department interpretation:

The critical language is “[a]rrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed. . . .” The Department argues that this language should be interpreted as if the second comma were not there. That is, the agency would have us read the provision to require disclosure of: “(a) [All] arrests, other than minor traffic violations for which a fine or forfeiture of $150 or more was imposed. . . .” We find that while this may have been what was intended, the first rule of statutory construction is to give the words of the enactment their plain and ordinary meaning, presumably as punctuated, unless there is a clear contrary intent expressed.
[…]
We conclude that whatever the intent of the drafters, a clear delineation of what arrests are required to be reported was not captured in the language of the section 272 b(2)(a). We also conclude that both parties’ interpretations leave serious questions about which arrests were intended to be disclosed and which ones did not have to be reported.

12 FAM 270 was last updated on March 9, 2015.

Read the FSGB case below:

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Judicial Actions Involving Foreign Service Grievance Board (FSGB) Rulings in 2015

Posted: 12:15 am ET

Below are three appeals of FSGB decisions that were filed in the District Court for the District of Columbia in 2015 and a few other cases currently pending in court. All extracted from the 2015 FSGB Annual Report:

  • In May, Paul Fritch appealed the Board’s decision in FSGB Case No. 2013-005. The circumstances of that case, as with two other appeals filed by Mr. Fritch with the Board, revolved around his transfer to the Organization for Security and Cooperation in Europe (OSCE) for seven years, and reemployment by the Department of State. Mr. Fritch’s district court appeal claims that the Department, affirmed by the Board decision, denied him benefits upon his return to which he was entitled by law, including promotion opportunities, housing expenses, lost contributions to his Thrift Savings Plan account, and position seniority. A decision is pending. (Also see  How many people should be put through a wringer before, oh you know …. and  Secondments to international organizations and promotions? Here comes the boo!).
  • In November, SharLyn Foo appealed the Board’s decision in FSGB Case No.2014-018, described above under financial cases resolved last year. The Board affirmed the Department’s denial of a waiver of repayment of annuity payments in excess of $300,000 deposited into Foo’s deceased mother’s account over more than a decade. A decision is pending.
  • Also in November, La Rufus Mitchell filed an appeal of the Board’s decision in FSGB Case No. 2014-003. Ms. Mitchell claims that the Department violated the Americans with Disabilities Act and the Rehabilitation Act when it separated her for not having passed the timed running test required for Diplomatic Security Agents. The Board had upheld the Department’s decision. (See the case description under Separation cases, above, for greater detail.) A decision is pending.
  • Appeal to the Foreign Service Labor Relations Board (FSRLB) | In October, the Department of State filed an appeal to the FSRLB of the Board’s decision in the implementation dispute filed by AFSA in FSGB Case No. 2014-028. The FSGB found that the Department had violated negotiated Procedural Precepts when it failed to pay Meritorious Service Increases (MSIs) to members of the Foreign Service in 2013. The Department has alleged that the Board relied on erroneous facts and factual premises not in evidence, and disregarded the express terms of the collective bargaining agreement when it based its decision on past practice. (See Implementation Disputes, above, for greater detail.) Also see Burn Bag: @StateDept announces its disappointment … 👀 OMG! It’s nice to feel valued!

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