Grievant Claims @StateDept Failed to Follow Required Procedures, So What Happened Next?

 

Via FSGB 2019 Annual Report, February 2020:
The grievant in FSGB Case No. 2017-051, who was slated for separation, contested statements in an EER relied upon by Commissioning and Tenure Boards (CTBs) that deferred and ultimately denied him tenure. He also challenged the conclusions of the second CTB, as indicated in its counseling statement, on procedural grounds. The Board found one statement in the EER to be falsely prejudicial and ordered it redacted. It also found the second CTB had violated the precepts by failing to take into account that earlier performance weaknesses had been overcome. The Board ordered that the CTB decisions to defer and deny tenure be rescinded.
The grievant in this case raised a third issue that was advanced in several other cases. He claimed that the Department failed to follow required procedures by having CTBs composed of only five members, rather than the six required by the Foreign Affairs Manual (FAM) (including one non-State member). The Department argued that a five-member CTB was a long-running practice to which AFSA had agreed. The Board found that the five-member CTB did not comply with the applicable FAM requirements and provided another ground for relief. The Department has requested reconsideration of this aspect of the decision, which is pending. The Department has since amended the FAM to require only five members.
On April 16, 2019, the State Department updated the composition of the CTB to consist only of five members:
3 FAH-1 H-2246  THE COMMISSIONING AND TENURE BOARD
3 FAH-1 H-2246.1  Composition
(CT:POH-216;   04-16-2019)
(State Only)
(Applies to Foreign Service Only)
The Commissioning and Tenure Board (Board) will consist of five members of the Foreign Service of the Department of State, one from each of the five skill codes/occupational categories (management, consular, economic, political, and public diplomacy), of class FS-01 and above.  The most senior member will serve as the chairperson. Among the members, at least one will be a member of a minority group and one a woman.
Advertisements

Did US Embassy Bangui Go on “Ordered Departure” Without Telling Anyone? (Updated)

Updated 3/28/2020, 8:20 pm PDT | US Embassy Bangui’s Health Alert dated March 26, 2020 says “On March 18, the Department of State ordered the departure of non-emergency U.S. personnel in Bangui.”
We learned last week that the US Embassy in Bangui, Central African Republic “just went on ordered departure.” Apparently this was less about Covid19 and more about a flare-up of violence in the country. To-date, neither the State Department nor the US Embassy has made an announcement about this post’s evacuation status.
On March 20, US Embassy Bangui released the following statement about reduced staffing:

The U.S. Embassy in Bangui announces that it is reducing its staffing in response to increasing travel restrictions, limited health infrastructure and potential disruption of supply chains for essential goods in the Central African Republic.

We call your attention to the State Department’s Global Travel Advisory issued March 19, 2020

The State Department has issued a global travel advisory advising all U.S. citizens to avoid all international travel due to the global impact of COVID-19.  In countries where commercial departure options remain available, U.S. citizens who live in the United States should arrange for immediate return to the United States, unless they are prepared to remain abroad for an indefinite period.  U.S. citizens who live abroad should avoid all international travel.  Many countries are experiencing COVID-19 outbreaks and implementing travel restrictions and mandatory quarantines, closing borders, and prohibiting non-citizens from entry with little advance notice.  Airlines have cancelled many international flights and several cruise operators have suspended operations or cancelled trips.  If you choose to travel internationally, your travel plans may be severely disrupted, and you may be forced to remain outside of the United States for an indefinite timeframe.

U.S. Embassy in Bangui does not provide visa or citizen services  to U.S. citizens in CAR.  U.S. citizens in need of assistance there are advised to contact the U.S. Embassy in Yaoundé, Cameroon.
Note that the Central African Republic is on a Level 4 Do Not Travel Advisory “due to crime, civil unrest, and kidnapping” as of December 12, 2019. The Travel Advisory has not been updated to indicate its evacuation status as of this writing.
A source at a neighboring post is similarly perplexed as they know from colleagues in Bangui that the embassy has gone on ordered departure despite the lack of public announcement.  We were asked if it is possible to have an internal ordered departure and Foggy Bottom knows it but it’s not ‘official’?
These days anything is possible, it seems, but we don’t know how that works without running afoul of 7 FAM 050 No Double Standard Policy. “Generally, if the Department shares information with the official U.S. community, it should also make the same or similar information available to the non-official U.S. community if the underlying threat applies to both official and non-official U.S. citizens/nationals.”
7 FAM 053(f) includes a reminder: “Remember that if post concludes it should warn, or has warned, its personnel or any U.S. Government employees beyond those with a strict need-to-know, whether permanently stationed or on temporary duty abroad, about a security threat, post should share that same information with the non-official U.S. community under the “No Double Standard” policy (see 7 FAM 052).

 

@StateDept’s Rules Governing the Use of Social Media by Eligible Family Members

 

Related to D/SecState Biegun Alerts @StateDept Employees to Updated Guidance For Political Activities Restrictions, we’ found this item from the FLO’s FAQ on the use of social media by EFMs.
Via state.gov/FLO/FAQ
What are the Department’s rules governing the use of social media by eligible family members?
    • 3 FAM 4170 sets out Department policy for employees on public speaking, teaching, writing, and media engagement, including the use of social media. Social media posts pertaining to U.S. foreign policy written in an employee’s capacity as a private citizen must be reviewed/cleared by the appropriate office (3 FAM 4174.3). These provisions apply to Eligible Family Members (EFMs) when they are employed by the Department in any capacity in the United States or abroad, including those EFMs working at post under either an appointment or Personal Service Agreement (PSA) and/or who are members of the Foreign Service Family Reserve Corps (FSFRC). EFMs who are in Intermittent No Work Scheduled (INWS) status or members of the FSFRC in Reserve Status, are employees of the Department and must abide by Department policies.
    • Where review is required, the Final Review Office for FSFRC members at post (even if not currently working in a position at post) is the Chief of Mission or his/her designee. For FSFRC members residing in the U.S., the Bureau of Public Affairs is the Final Review Office. (See 3 FAM 4174.3.)
    • The provisions of 3 FAM 4170 apply only to employees and, as such, do not apply to EFMs who are not currently employed by the Department in any capacity (i.e., not working at post or domestically for the Department or not a member of the FSFRC); however, the general provisions governing outside activities would be applicable, and the non-employee EFM should be cognizant of the general guidance provided in 3 FAM 4125 (Outside Employment and Activities by Spouses and Family Members Abroad). There is no expectation of privacy on social networking sites. Even where users have taken privacy precautions, hackers and other bad actors may still be able to access information.
Links to the Foreign Affairs Manual inserted above. Below is the specific cite linked to by D/Biegun in recent message (3 FAM 4123.3 (Employee Responsibilities Abroad/Political Activities):

3 FAM 4123.3  Political Activities

(TL:PER-491;   12-23-2003)
(Uniform State/USAID/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service, Foreign Service National, and Civil Service)

A U.S. citizen employee, spouse, or family member shall not engage in partisan political activities abroad, other than authorized activities pertaining to U.S. elections.  This provision shall not preclude a locally hired U.S. citizen employee, who also is a national of the country of residence, from exercising political rights deriving from that foreign nationality.

Shall not as in a commanding must not?  Or else what?
Does the recent Pompeo-approved updated guidance for political activities restrictions from the L bureau addresses 3 FAM 4123.3 order and spouses not currently employed?  Does this regs apply to all EFMs or are there exceptions? If so, what are the exceptions? Best to ask now, or later after surprises?

Foggy Bottom’s Fourteen Principles of Ethical Conduct For a Happy Christmas and All Merry Days

Via Santa’s Be Good Not/Not Naughty List: 11 FAM 611.4-4
a. Public service is a public trust; employees must place loyalty to the Constitution, the laws, and ethical principles above private gain.
b. Employees shall not hold financial interests that conflict with the conscientious performance of duty.
c.  Employees shall not engage in financial transactions using nonpublic government information or allow the improper use of such information to further any private interest.
d. Employees shall not, except as permitted by the Standards of Ethical Conduct, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the Department, or whose interests may be substantially affected by the performance or nonperformance of the employee’s duties.
e. Employees shall put forth honest effort in the performance of their duties.
f.  Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the government.
g. Employees shall not use public office for private gain.
h. Employees shall act impartially and not give preferential treatment to any private organization or individual.
i.  Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
j.  Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official government duties and responsibilities.
k. Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
l.  Employees shall satisfy in good faith their obligations as citizens, including all financial obligations, especially those imposed by law, such as Federal, State, or local taxes.
m. Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, gender identity, sexual orientation, national origin, age, or handicap.
n. Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in the Standards of Ethical Conduct.  Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.

#

To our readers and blog friends, we know this has been a difficult year for many.  We feel it every day from the time we wake up to the time we go to bed in an uneasy sleep or nasty nightmares.  There are days when all we want is to grow vegetables on Mars or sleep in a cave. But hey, we’re still here and we appreciate that you’re still here.  We wish you all a happy holidays and send good wishes for the new year. May our homes be always warm in the company of loved ones and good friends.  May we keep faith that there will be better days even in these indecorous and disquieting times. (Excuse me, what? Oh, and may this crazy world not self-destruct in the middle of this darn live show).  Be well, safe travels, and be kind to one another wherever you are.  –DS

 

Turkish Court Rules to Keep USG Employee Metin Topuz in Jail

 

Reuters reported on December 11, that a Turkish court ruled that U.S. Consulate General Istanbul employee, Metin Topuz remain jail “as his trial on espionage charges continues.”
Reuters previously reported in September that the lawyers for Metin Topuz applied in January to the European Court of Human Rights and that  the ECHR has accepted the application.
The AP previously reported that Topuz began working at the consulate in 1982 as a switchboard operator and was promoted to work as an assistant and translator to the DEA’s American personnel in Turkey a decade later.
Topuz was first arrested in October 2017 and has now been incarcerated for over two years. He is still an employee of the U.S. Government. We’ve been wondering what’s going to happen to him. There’ll be another hearing in March. And on and on it goes? Until when?
The State Department has previously updated its Foreign Affairs Manual in 2017 which provides the terms and conditions for authorizing compensation payments for current and former locally employed (LE) staff who are/were imprisoned by foreign governments as a result of their employment by the United States Government.
So for “amount of benefit” which applies to locally employed staff at State and All Agencies under Chief of Mission Authority (includes DEA):

a. State:  Compensation may not exceed an amount that the State Deputy Assistant Secretary for HR determines to approximate the salary and benefits to which an employee or former employee would have been entitled had the individual remained working during the period of such imprisonment.

b. All other agencies:  Compensation may not exceed an amount that the agency head determines to approximate the salary and benefits to which an employee or former employee would have been entitled had the individual remained working during the period of such imprisonment.

c.  Once the compensation amount has been set, each agency will deny or reduce this compensation by the amount of any other relief received by the employee or other claimant, such as through private legislation enacted by the Congress.

Under the section of “other benefits”:

Any period of imprisonment for which an employee is compensated under this section shall be considered for purposes of any other employee benefit to be a period of employment by the U.S. Government, with the following exceptions:

(1)  A period of imprisonment shall not be creditable toward Civil Service retirement unless the employee was covered by the U.S. Civil Service Retirement and Disability System during the period of U.S. Government employment last preceding the imprisonment, or the employee qualifies for annuity benefits by reason of other services; and/or

(2)  A period of imprisonment shall not be considered for purposes of workers’ compensation under Subchapter I of Chapter 81 of Title 5, U.S.C., unless the individual was employed by the U.S. Government at the time of imprisonment.

Just pause and think about this for a moment.  Local employees are typically are not paid in U.S. dollars but paid in local compensation plans/currencies. The United States Government will only pay the amount that the employee would have been entitled to if she were at work (and not in prison). Were Congress to allocate any compensation, USG will deny or reduce the amount claimed beyond the approximate salary.
So compensated for eight hours a day considered a workweek but none for weekends and 16 hours a day spent incarcerated and away from families or being slammed around by prison hosts? (A former Turkish official assigned to NATO arrested and accused as a “Feto” member spoke of tortures and show trials).
Wow!  This is breathtaking and full of heart, we wanna scream.
Also with very few exceptions, most locally employed staff are not covered by U.S. Civil Service retirement. But former USG local employees who gets in the cross-hairs of their governments and imprisoned due to their employment with the U.S. Government, their imprisonment “shall not be considered for purposes of workers’ compensation”. That only applies if they are employed by the USG at the time of imprisonment.
State/HR’s Overseas Employment should be proud of that ‘taking care of local employees’ award.

 

Related posts:

 

AFSA Issues Guidance on the Use of Diplomatic Passports

 

Via afsa.org:

AFSA has seen an increasing number of Foreign Service employees under investigation for possible misuse of their Diplomatic Passports (DPs). To ensure that our members understand the relevant rules for DPs, AFSA issues the following guidance.

General Guidance:

DPs carry the same message from the Secretary of State as do any other passports, i.e. that their bearers be permitted “to pass without delay or hindrance” and be given “all lawful aid and protection.”  However, they also announce that their bearers are abroad on diplomatic assignment with the U.S. government. While traveling abroad with such passports, DP holders not only have a special obligation to respect the laws of the country in which they are present, but they must abide by U.S. government and agency-specific standards of conduct.

In addition to reviewing the guidance below, we suggest all DP holders review the following material:

  • 8 FAM 503.2, Travel with Special Issuance Passports (updated 6/27/2018)
  • 18 STATE 6032, Proper Use of Special Issuance Passports (1/19/2018)
  • 12 STATE 12866, Official and Diplomatic Passports – Notice to Bearers (2/11/2012)

DP Terms of Use:

  • DPs may only be used while their holders are in positions which require such documents, i.e. during official business travel.
  • A DP attests that the bearer is traveling on diplomatic/official business for the U.S. government or is an accompanying family member of such a person.
  • DPs are authorized for any travel on government orders. For example, DPs may be used for R&R or medevac travel.
  • TDY travel should be conducted with DPs and any required visas. DP holders are advised to check with the post in question regarding requirements for entry.
  • DP holders should practice carrying both regular and diplomatic passports while on travel.
  • DPs must be used when entering and exiting the holder’s country of assignment abroad and returning to the U.S. from the country of assignment. Regular (tourist) passports must be used for all personal travel.
  • For all travel, we strongly advise carrying both diplomatic and regular passports and complying with instructions of local immigration authorities, even if those instructions are not necessarily in compliance with this guidance. If this or any other unusual situation occurs involving the use of diplomatic passports, please document the event for your records.

Examples:

  • U.S. diplomat assigned to Country A is taking a personal trip (tourist trip) with his/her family to Country B. The U.S. diplomat, and accompanying family members, must use the DPs for entering/exiting Country A. However, they must use their personal passports (“blue book”) for entering/exiting Country B. Whichever type of passport is used to enter a country must be used to exit that country.
  • U.S. diplomat has completed his/her tour in Country A and is returning to the U.S. with his/her family. The U.S. diplomat and accompanying family members will use their DPs for leaving Country A and entering the U.S.
  • U.S. diplomat assigned to Country A has an official meeting in Country B and then will travel to Country C for tourism. The U.S. diplomat must use the DP to exit Country A and enter and exit Country B. However, the diplomat must use his/her personal passport to enter and exit Country C. The DP will be used to re-enter Country A.

DPs Do Not:

  • Confer diplomatic immunity.
  • Exempt the bearer from foreign laws.
  • Allow the bearer to carry classified or sensitive material across borders.
  • Allow the bearer to avoid questions from foreign immigration or bypass security.
  • Protect their holders from arrest, hazards of war, criminal violence, or terrorism.

To Note:

  • DPs may subject their bearers to increased scrutiny by foreign governments and other entities.
  • Misuse of DPs may be investigated and prosecuted as a violation per 18 U.S.C. 1544.
  • Employees who are found to have misused DPs may also be subject to disciplinary action.
  • Many countries have visa requirements for DPs which exceed those for regular passports.  Guidance can be found here: https://travel.state.gov/content/special-issuance-agency-home/en/spec-issuance-agency.html
  • Taiwan: All travel to Taiwan by executive branch personnel must be with a regular passport.  In addition, executive branch personnel who plan to travel to Taiwan for official purposes must have prior concurrence from the Office of Taiwan Coordination: (202) 647-7711.

More information can be found at the Special Issuance Agency page here.

We understand that the Department of State will issue its own guidance on this topic shortly.

#

Hatch Act With AFSA, December 3, 2019

 

Via afsa.org:

We are now one year away from the 2020 Presidential election – the perfect time to review the provisions of the Hatch Act. If you are uncertain about how the Hatch Act applies to Foreign Service members in Washington and overseas you are probably not alone.

On December 3, come to AFSA headquarters (across Virginia Avenue from the 21st Street entrance to the State Department) to have pizza and drinks and a frank discussion on the Hatch Act. Our presenters will be Ana Galindo-Marrone from the Office of Special Counsel (OSC), Kathleen Murphy from State’s Legal Advisor, and Deputy General Counsel Raeka Safai from AFSA’s Labor Management office. All AFSA members from all Foreign Service agencies are welcome.

For this event to be as useful as possible to our members, we are inviting questions in advance so the speakers can address them in their presentations. There will also be a live question and answer session after the presentations. The presentation will cover traditional area of political activity covered by the Hatch Act and will focus on the Hatch Act and social media as well.

Click here to register for the event. To send in a question you would like addressed in the presentations, please send the question to Sam Miglani at afsaintern@afsa.org with the email title “Hatch Act Topic.” We will try to incorporate as many of your questions into the presentation material as we can.

This event will be recorded and made available for online viewing at www.afsa.org/video. For those who prefer gluten-free refreshments, we will have gluten-free pizza available. See you there!

#

 

SFRC Ranking Member Menendez Calls For OSC Hatch Act Review Into Pompeo’s Kansas Travel

 

 

On October 29, the Ranking Member of the Senate Foreign Relations Committee, Senator Bob Menendez (D-N.J.), sent a letter to the U.S. Office of Special Counsel (OSC), requesting a review to determine whether Secretary of State Mike Pompeo has violated the Hatch Act, a federal law passed in 1939, which limits certain political activities of federal employees. According to OSC, the law’s purposes are “to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.”​​​​ ​​

I write to request an immediate review and assessment of the Secretary of State’s compliance with the Hatch Act, 5 U.S.C. §§ 7321-7326.
[..]
Since March 2019, the Secretary has taken three official trips to Kansas, apparently at the expense of the Department of State. During the latest trip, from October 24 to 25, 2019, the Secretary visited the Wichita State University Tech National Center for Aviation Training, participated in a workforce development roundtable, visited Textron Aviation Longitude and Latitude Production, and met with students from Wichita State University.  

In an interview, he refused to discuss matters related to Ukraine, insisting he was “here today to talk about workforce development. I came here today to talk about the great things that are going on here in Kansas.” The events in Kansas were aimed largely at promoting the President’s “Pledge to American Workers,” which has no discernible relation to the Department of State. According to The Wall Street Journal, he also “discussed the U.S. Senate race in Kansas” with Charles Koch, the head of Koch Industries, and former top contributor to his political campaigns, as well as backer of Pompeo’s prior business.  Textron Inc., the parent company of Textron Aviation, was also a major contributor to then-Congressman Pompeo’s political campaigns. 

For months, public reports have persisted that the Secretary was considering running for U.S. Senate in Kansas.  Many in Kansas perceive his appearances in the state to be a de facto campaign effort.  Indeed, an October 25, 2019 Kansas City Star editorial titled “Mike Pompeo, either quit and run for U.S. Senate in Kansas or focus on your day job,” seems to indicate his actions are already being construed as evidence of a possible candidacy by members of the press and the public in Kansas.  And following his trip, the Department of State’s official twitter handle posted a workforce and Kansas-centric video montage of the Secretary’s visit, which appears to have no nexus to the Department’s official work.    

Secretary Pompeo is not any federal employee. Rather, he is one of the most prominent members of the President’s cabinet. He appears frequently on TV and for interviews, and, as is true for many Secretaries of State, is known and recognized by the American public. Thus, it is even more crucial that he and the Department maintain a clear line between his actions as a federal employee and steward of the U.S. government, and any efforts that could be perceived as political in nature or laying the groundwork for potential campaign activity. I therefore ask that you review his travel and his interactions in Kansas closely, and determine whether any violations have occurred or additional guidance to the Department or the Secretary may be warranted.

The full letter is available to read here.

Sexual Harassment in the Federal Government: Public Comments #FedMeToo

 

This is a follow-up to our posts on the U.S. Commission on Civil Rights’s  examination of sexual harassment in the federal government.  The Commission specifically examined agency-level practices to address sexual harassment at the U.S. Department of State and the National Aeronautics and Space Administration (NASA).
The U.S. Commission on Civil Rights (USCCR) says that the testimony from their May 2019 briefing and public comments “will inform” their 2020 report “to Congress, the President, and the American people regarding the federal government’s response to sexual harassment in the federal workplace.”
USCCR has now made available the public comments sent to the Commission.
Note that S/OCR is one of those offices that report directly to the Secretary of State,
Also, left on its own, we don’t think the State Department would willingly release the victims of harassment, discrimination or assaults from the Non Disclosure Agreements signed.  It is left to the U.S. Congress to mandate such a release, as well as require the Department to make public the cost of these taxpayer funded-settlements each fiscal year.
Individual 2: FSO-01 with 17 years in the Foreign Service and six years of active duty in the U.S. Military

 

Individual 3: Retired FSO (2006-2017) with 16 co-signers

 

Individual 5: FSO for Locally Employed Staff

FSO, assault survivor

Senior Litigator at the Justice Department, stalked by supervisor for over a year
Related posts:

Snapshot: 90-Day Rule For Former Presidential Appointees in the Foreign Service

 

3 FAM 6215  MANDATORY RETIREMENT OF FORMER PRESIDENTIAL APPOINTEES

(CT:PER-594;   03-06-2007)
(State only)
(Applies to Foreign Service Employees)

a. Career members of the Service who have completed Presidential assignments under section 302(b) of the Act, and who have not been reassigned within 90 days after the termination of such assignment, plus any period of authorized leave, shall be retired as provided in section 813 of the Act. For purposes of this section, a reassignment includes the following:
(1) An assignment to an established position for a period of at least six months pursuant to the established assignments process (including an assignment that has been approved in principle by the appropriate assignments panel);
(2) Any assignment pursuant to section 503 of the Foreign Service Act of 1980, as amended;
(3) A detail (reimbursable or nonreimbursable) to another U.S. Government agency or to an international organization;
(4) A transfer to an international organization pursuant to 5 U.S.C. sections 3581 through 3584; or
(5) A pending recommendation to the President that the former appointee be nominated for a subsequent Presidential appointment to a specific position.
b. Except as provided for in paragraph c of this section, a reassignment does not include an assignment to a Department bureau in “overcomplement” status or to a designated “Y” tour position.
c. The Director General may determine that appointees who have medical conditions that require assignment to “medical overcomplement” status are reassigned for purposes of Section 813 of the Foreign Service Act.
d. To the maximum extent possible, former appointees who appear not likely to be reassigned and thus subject to mandatory retirement under section 813 of the Act will be so notified in writing by the Director General not later than 30 days prior to the expiration of the 90-day reassignment period.

#