U/S For Management Directs Task Force to Create New Sexual Assault FAM Guidance

Posted: 5:08 pm PT

 

The message below addressing sexual assault was sent to all State Department employees on November 22, 2016.  Several copies landed in our inbox.  The State Department sent us a note that says they want to make absolutely sure that we have seen this, and gave us an “officially provided” copy.

 

A Message from Under Secretary Pat Kennedy
November 22, 2016

Sexual assault is a serious crime.  It can traumatize victims and have a corrosive effect on the workplace.  The Department is determined to do all it can to prevent sexual assault, and, if it does occur, to support victims and bring the perpetrators to justice.  We are committed to effectively and sensitively responding to reports of sexual assault and to ensuring victims are treated with the care and respect they deserve.

The Department has policies and procedures relating to sexual harassment and workplace violence.  We recognize these policies may not address all issues specific to sexual assault and that sexual assault is more appropriately dealt with in its own FAM section.  At my direction, an inter-bureau taskforce is in the process of creating this new FAM section.  Among the issues the taskforce will take up are reporting processes, confidentiality, sexual assault response training, and potential conflict of interest issues.

As we work to complete a stand-alone sexual assault FAM section, it’s important to note that there are and have been policies and procedures in place to help employees and their family members who are sexually assaulted get the medical care they need and to bring perpetrators to justice.

Medical services are available at post, and personnel from the Bureau of Medical Services (MED) can also provide advice from Washington, DC.  Post’s Health Unit healthcare providers are the first responders for medical evaluation and treatment overseas and will abide by strict patient/provider confidentiality.  An employee or member of the Department community who has been sexually assaulted may also report the incident to MED’s Clinical Director (currently Dr. Behzad Shahbazian) at 202-663-2976 during business hours.  After hours and on weekends/holidays, victims may contact the MED Duty Officer at 202-262-9013 or via the Operations Center at 202-647-1512.

For reported sexual assaults that are committed by or against members of the Department community or occur within a COM facility or residence, RSOs serve as the law enforcement first responders.  Every reported sexual assault is handled as a criminal matter that may be prosecuted in the United States under federal extraterritorial laws.  For more guidance on the handling of such cases, see 16 STATE 56478.

If a victim overseas wants to report a sexual assault to law enforcement authorities, but prefers not to report it at post, he or she can contact the Office of Special Investigations (DS/DO/OSI), via telephone at 571-345-3146 or via email at DS-OSIDutyAgent@state.gov<mailto:DS-OSIDutyAgent@state.gov>.  The DS/DO/OSI duty agents are available 24 hours a day, seven days a week and can investigate an allegation independent of post management.  OSI agents have been trained to handle such cases and will work with the victim and can also provide information about the Victims’ Resource Advocacy Program available at vrap@state.gov<mailto:vrap@state.gov>.

Victims may also report sexual harassment directly to the Office of Civil Rights<http://socr.state.sbu/OCR/Default.aspx?ContentId=6666> (S/OCR) at http://snip.state.gov/f5h or via phone at 202-647-9295 and ask to speak with an Attorney-Adviser.  Pursuant to 3 FAM 1525, S/OCR oversees the Department’s compliance with anti-harassment laws and policies and conducts harassment inquiries.

The working group developing the new FAM section is consulting with other agencies about best practices in such areas as communication, training, and post-attack medical and mental health support and will integrate appropriate elements of these programs to ensure that the Department’s policies on sexual assault are victim centered and effective.

The Department’s position is clear: there is zero tolerance for any form of violence, including sexual assault, within our Department community. We understand these are sensitive and difficult situations, but we strongly encourage victims to come forward so the Department can take the appropriate steps to ensure the victim’s safety and bring the perpetrator to justice.

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Sexual Assault Related posts:

A Sexual Assault Reporting Process Foreign Service Members Deserve: If Not Now, When? Attn: @JohnKerry #16days

Posted: 2:13 am ET
Updated: 11:47 am PT

 

For victims/survivors of sexual assault, please see Sexual Assault in the Foreign Service — What To Do?  Consider below as a follow-up post to The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief.

The following is provided for general information that is intended, but not guaranteed, to be correct and up-to-date. Please do not consider the following legal advice as we are not lawyers; read the full necessary disclaimer below.

The Rape, Abuse & Incest National Network (RAINN) has the following sexual violence statistics:

  • On average, there are 288,820 victims (age 12 or older) of rape and sexual assault each year in the United States
  • Ages 12-34 are the highest risk years for rape and sexual assault
  • 90% of adult rape victims are female
  • 94% of women who are raped experience post-traumatic stress disorder (PTSD) symptoms during the two weeks following the rape.
  • 30% of women report PTSD symptoms 9 months after the rape.
  • 33% of women who are raped contemplate suicide.
  • The majority of perpetrators are someone known to the victim. Approximately 3 out of 4 of sexual assaults are committed by someone known to the victim

Rape notification rates differ depending on whether the victim know the perpetrator — those who knew a perpetrator were often less likely to report the crime, according to RAINN. A report (PDF) published by the National Sexual Violence Resource Center says that many survivors experience great difficulty in disclosing a sexual assault, especially when the perpetrator is known to the victim. The study is focused on rural America where “the propensity to not report may be reinforced by informal social codes that dictate privacy and maintaining family reputation. Sexual assaults in rural areas are mostly hidden crimes, hidden both intentionally and unintentionally by characteristics of a close-knit culture or an isolated lifestyle.”  Rural communities like small towns as places where “everybody knows everybody.” Sounds familiar?

A victim will have little anonymity. It means she, or a friend or family member is likely to be acquainted with or related to the perpetrator and that she may reencounter the perpetrator, even on a regular basis. Furthermore, “the closer the relationship between victim and assailant, the less likely the woman is to report the crime” (Hunter, Burns-Smith, Walsh, 1996). Studies have quite consistently pointed to the importance of the victim-offender relationship in affecting the propensity to report (Pollard, 1995; Ruback, 1993, Ruback & Ménard, 2001). In rural areas, law enforcement is likely to be part of the social network (Sims, 1988; Weisheit, Wells & Falcone, 1994; Weisheit, Wells & Falcome, 1995). This compounds the problem of reporting non-stranger sexual assaults.

We need to point out that in the Foreign Service, particularly overseas, Diplomatic Security law enforcement –as in rural communities and small towns — is part of the social network.

We should also note that a 2002 study by Lisak-Miller indicates (PDF) that a majority of the undetected rapists were repeat rapists. The repeat rapists averaged 5.8 rapes each.

According to the Callisto Project, which provides survivors with a confidential and secure way to create a time-stamped record of an assault in American campuses less than 10% of survivors will ever report their assault. Survivors wait an average of 11 months to report their assault to authorities and up to 90% of assaults are committed by repeat perpetrators.  Callisto’s CEO Jess Ladd told us that someday she would like to make available their product within other institutions (including companies and agencies) and to have a free version that anyone can use to store what happened.  But Callisto is not there yet.


Foreign Service Victims’ Concerns

Among the concerns we’ve heard so far are: 1) lack of clear reporting process, 2) confidentiality, 3) sexual assault response training, 4) potential conflict/undue pressure on investigators/managers who may be friends, colleague, or subordinates of perpetrators, and 5) lack of sexual assault data.

As we’re written here previously DOD and Peace Corps provide restricted and unrestricted reporting for victims, but that does not appear to be the case in the Foreign Service.  The State Department has over 275 posts in about 180 countries. The agency’s Diplomatic Security has Regional Security Offices in most locations but not all.  The State Department has previously told this blog that Diplomatic Security’s Office of Special Investigations  “receives and catalogues allegations and complaints. Allegations are neither categorized by location nor by alleged offense.” Which begs the question, how will the State Department know if it has sexual predators living among its various communities particularly overseas if it does not track these types of offenses?

Due to the lack of clear reporting process — except “report to RSO” or “contact OSI,” victims (as well as this blog) have no way to independently assess what reporting entails. We don’t know what kind of confidentiality is afforded the victims. Among other concerns and questions:

  • When we asked an FS assault victim if there is any good option for reporting sexual assault, we were told bluntly, “There is no good option. That’s what the predator knows.” 
  • When a victim reports to RSO overseas, we know that the RSO is supposed to contact State/OSI, but who else has access to that information?   Embassy/post leadership? Which officials in the embassy hierarchy?  Will the local Health Unit be informed? The CLO? State/MED? DS Command Center?  And will reporting victims be informed in advanced who their information will be shared with and the specific reason for sharing their information?
  • Do DS/OSI investigators travel to the location of the assault to investigate? Time and evidence collection are of the essence in sexual assault reporting.  If yes, how quickly?  Is there a have rapid response team? What should the victim do while waiting for the arrival of DS/OSI investigators? Not shower? Not go to work?
  • In countries where sexual assault victims are jailed for “promiscuity”, what is the State Department’s policy and recommendation to someone assaulted in a place where requesting a rape kit means going to jail? Would the Department work with local authorities to actually protect the victim from prosecution while DS investigates or would they just allow an already traumatized victim to get PNG’d and force them to pack up and leave?
  • How will the victim’s report be transmitted to DS/OSI? Via unclassified email? Via fax? Via phone? In the case of emails, what restricts that information from being forwarded with a click of a mouse, or the record being compromised intentionally or unintentionally?
  • How are victims’ reporting records protected?  What are the consequences for an employee/s with access to the victim’s report who shares it with an unauthorized entity or individual? What if it is shared with a colleague, or a friends, or a family member?
  • What kind of training do RSOs get to enable them to assist sexual assault victims overseas? “Does every single RSO in the world know a designated medical facility to process a rape kit?” Or for that matter, do Health Units at overseas posts even have this information available?
  • Victims who report to RSO or DS/OSI would like to know if the officers receiving their sexual assault reports represent the victims’ interests or State Department interests?
  • What support is available to victims? What can victims expect after they report their assaults?  What consequences will their reporting have on their medical clearance and assignments? What kind of work accommodation will be extended to them, if needed? Who will be their effective has the responsibility to advocate for them if they need to file workers’ comp from the Department of Labor?
  • How are perpetrators — who are not strangers — handled by the State Department?  This is not a hypothetical question.  An OIG investigation indicates that one security officer’s alleged sexual misconduct spanned 10 years and 7 posts.  In that case, the Department never attempted to remove the RSO from Department work environments where the RSO could potentially harm other employees.  DS agents investigating the 2011 allegations reported to DS management, in October 2011, that they had gathered “overwhelming evidence” of the RSO’s culpability.  These agents encountered resistance from senior Department and DS managers as they continued to investigate the RSO’s suspected misconduct in 2011. The OIG found that the managers in question had personal relationships with the RSO.  Folks who work at the State Department should ask questions like who are these senior Department and DS managers who allowed this to happen for 10 years and 7 posts?  Do they have other friends that they have similarly protected? What happened to the victims at 7 posts? What support were available to them?  What responsibility does the State Department have for not removing that employee despite overwhelming evidence of culpability?


FOIA Diplomatic Security’s sexual assault cables?

As readers here know, there is no official guidance in the FAM on reporting sexual assault in the Foreign Service (see The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief). We’ve requested the unclassified cables that were released by DS/OSI in 2015 and earlier this year on sexual assault reporting (15 State 71370;  15 State 79760;  and 16 STATE 5647all reportedly available at DS/OSI intranet). Since the information is unclassified and it could be useful information, we thought we could save time and money by requesting these through regular channels without having to FOIA them. We appreciate the efforts of those who were trying to obtain these for us through regular channels; we understand some folks worked through the weekend to attend to this requests. Thanks, folks!  Late Monday, we got word from a State Department spokesperson:

“Our thanks for your patience while the Department reviewed the practice of releasing State Department internal cables to members of the public or media. At this stage, a decision has been made that we are unable to release cables in this manner.”

Unbelievable! But it is what it is.  We need, therefore, to FOIA these unclassified cables. Given State’s FOIA processing record, we don’t expect to see these cables until 1-2-3-4 years down the road. We might be dead of heartbreak by then.


State/OIG Hotline and Office of Special Counsel

State/OIG has reiterated to us that that their office takes allegations of rape and sexual harassment very seriously and repeated the response they provided us back in August here.  Note that we have already been told that cases like this should not be reported to the OIG Hotline.  Read more here: Another Note About the Burn Bag–There’s No Easy Way of Doing This, Is There?.  State/OIG told us that Department employees who believe they have been subjected to whistleblower retaliation may contact OIG or the Office of Special Counsel (OSC). OIG can help the individual in understanding their rights and may investigate the retaliation, as well as alert the Department to any illegal reprisal.  State/OIG also said: “By no means do we want to discourage anyone from contacting our Hotline, but such a serious crime as a rape needs to be dealt with immediately and that’s why we recommend a call to local law enforcement.”

Continue reading

OPM: Guidance For Agency-Specific Domestic Violence, Sexual Assault, and Stalking Policies

Posted: 12:30 am ET

 

Via OPM:

One in 5 women and 1 in 71 men have been raped at some point in their lifetimes, and nearly 1.3 million women in the U.S. are raped every year. The statistics are sobering – even more so with our understanding that these types of crimes are often the most underreported. It is important to note that victims may experience one of these forms of violence or all three at the same time. Although women are the majority of victims, as the above statistics show, men can also become victims. In addition, these crimes affect people of all backgrounds, including race, income, religion, sexual orientation, gender identity, age, disability, etc.

Sexual Assault

Sexual assault refers to a range of behaviors, including but not limited to, a completed nonconsensual sex act (e.g., rape, sodomy, child molestation), an attempted nonconsensual sex act, and/or abusive sexual contact. Sexual assault includes any sexual act or behavior that is perpetrated when someone does not or cannot consent. A victim of sexual assault may know the perpetrator, such as a co-worker or a supervisor, and/or may be involved in a dating or marital relationship with the perpetrator, or the perpetrator may be unknown to the victim. Lack of consent should be inferred when a perpetrator uses force, harassment, threat of force, threat of adverse personnel or disciplinary action, or other coercion, or when the victim is asleep, incapacitated, unconscious, or physically or legally incapable of consent.

Below is an excerpt from OPM’s guidance for agency-specific domestic violence, sexual assault, and stalking policies:

Domestic violence, sexual assault, and stalking have the potential to affect every Federal workplace across the United States. It is the policy of the Federal Government to promote the health and safety of its employees by acting to prevent domestic violence, sexual assault, and stalking within the workplace and by providing support and assistance to Federal employees whose working lives are affected by such violence.

This Guidance for Agency-Specific Domestic Violence, Sexual Assault, and Stalking Policies provides agencies with direction to enable them to fulfill the goals identified in the Presidential Memorandum on “Establishing Policies for Addressing Domestic Violence in the Federal Workforce,” which was issued on April 18, 2012. As the nation’s largest employer, the Federal Government should act as a model in responding to the effects of domestic violence, sexual assault, and stalking in the workplace. Some agencies have already taken steps to address these issues. By building on these efforts, the Federal Government can further address the effects of domestic violence, sexual assault, and stalking on its workforce, promoting the health and safety of its employees and improving the quality of its service to the public.

Read more below:

The State Department does not/does not have a published sexual assault or stalking policies.  Browsing state.gov shows that the State Department does asks: What is the United States’ Role in Addressing Sexual Violence in Libya and Syria? Also this: Evaluation of Implementation of the United States Strategy to Prevent and Respond to Gender-Based Violence Globally, August 2012 to August 2015. And many more reports related to sexual assault and gender violence elsewhere.

But.

It does not have a published sexual assault and stalking policies for its employees/family members that are publicly available.

An FSO who is sexually assaulted has no easy way to determine the reporting process.  And if a family member not employed at post is assaulted, he/she does not have access to the State Department intranet. Whatever Diplomatic Security cable guidance reside behind the firewall (we’re looking for three cables), their contents could also be useless to sexual assault victims who have no state.gov accounts. So some questions:

  • Was an analysis of the agency’s current ability to handle incidents related to domestic violence, sexual assault, and stalking in its workforce ever conducted as called for by the OPM guidance (see below)? What does this ability look like within an agency with over 275 locations worldwide?
  • OPM called for reporting procedures that provide an effective, confidential, and accessible way for employees to report incidents and concerns. Because the credibility of any reporting procedure will depend on the extent to which reports are handled quickly and efficiently, agency staff responsible for responding to reported incidents should be trained and prepared to handle any such reports. OPM says that agencies should recognize and respect a victim’s right to privacy and the need for confidentiality and autonomy.  According to OPM, the agency should make every effort to provide advance notice to the employee who disclosed information about the fact that the information will be disclosed, with whom it will be disclosed, and why. The agency should also provide the employee with the names and titles of the people with whom the agency intends to share the employee’s statements and should explain the necessity and purpose of that disclosure. What kind of procedure exists at the State Department? What level of confidentiality is extended to sexual assault victims?
  • OPM said that agencies should develop plans that specify which offices will generally respond to different types of incidents and who will be responsible for different aspects of incident responses.  Which offices at State are tasked to do this?
  • What types of workplace flexibilities are available to an employee when the employee and/or the employee’s family member(s) are victims of domestic violence, sexual assault, or stalking?
  • What does the State Department do with employees who are perpetrators and employees who are victims? Since the Office of Special Investigations receives and catalogues allegations and complaints but neither categorized them by location nor by alleged offense, who actually knows how many sexual assaults and domestic violence have occurred in the Foreign Service?

Click here to see the State Department’s Sexual Harassment Policy via the Office of Civil Rights.

For domestic violence, see 3 FAM 1810 | FAMILY ADVOCACY PROGRAM (Child Abuse, Child Neglect, Domestic Violence).

Nada for sexual assault.

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For Foreign Diplomats, Trump WashingtonDC Hotel Is the Place To Be

Posted: 12:25 am ET

 

For those interested in the subject of conflicts of interest and the presidency, here is a good read from the Congressional Research Service:

Does federal law require the President to relinquish control of his or her business interests? Federal regulation of financial conflicts of interest is aimed at preventing opportunities for officials to personally benefit from influence they may have in their official capacity. As a general rule, public officials in the executive branch are subject to criminal penalties if they personally and substantially participate in matters in which they (or their immediate families, business partners or associated organizations) hold financial interests. However, because of concerns regarding interference with the exercise of constitutional duties, Congress has not applied these restrictions to the President. Consequently, there is no current legal requirement that would compel the President to relinquish financial interests because of a conflict of interest.

Read more:

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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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@StateDept Updates FAM For Reporting Domestic Violence — See What’s Missing?

Posted: 12:19 am ET

 

We recently blogged about a diplomat from the Permanent Mission of Germany to the United Nations in New York who is accused of punching his wife but is shielded from arrest by diplomatic immunity (see Manhattan DA Wants Diplomatic Immunity For UN German Diplomat Revoked). How do diplomatic missions handle cases of domestic abuse? According to the AP, the German Foreign Ministry spokesman declined to comment on the allegations and said he wasn’t aware of any request to lift the diplomat’s immunity.

In July 2016, the State Department updated its Foreign Affairs Manual for reporting domestic violence. First, let’s note that the words used in this update is not/not “must” which is mandatory but “should” which simply implies recommendation and advice. “Any person who suspects an employee is involved in domestic violence should report such information…”  Also, let’s note that if the initial report is substantiated, all eight possible actions cited in the updated regs uses the word “may,” which means they’re all recommended optional actions.  For instance, if a report is substantiated, Diplomatic Security “may” refer information to the Bureau of Human Resources (HR) for disciplinary action. Or it may not.

Second, according to 3 FAM 1810,  the Chief of Mission or Principal Officer overseas is responsible for designating a family advocacy officer (FAO) at post, normally the deputy chief of mission (DCM), or the second-in-command at posts where there is no DCM.  Here’s a question: What happens if the perpetrator of domestic violence is the Chief of Mission or the Principal Officer? The DCM, who reports to the ambassador, picks up the phone and convenes the family advocacy team at post which includes the Foreign Service Medical Officer (FSMO), and the Regional Security Officer (RSO). Then one of them calls up the State Department to report the abusive ambassador because the regs say they should?  (Apparently, although not listed, the Regional Medical Officer/Psychiatrist (RMO/P) could also be part of the advocacy team at post).

A DCM would not wash his/her hands on something disgraceful as this, would he/would she? The Medical Officer would not suddenly go on vacation somewhere, right? It would not take um … weeks for Foggy Bottom’s Family Advocacy Committee to provide guidance to post, right?

And, of course, the embassy’s family advocacy folks would protect the ambassador’s spouse because it’s the right thing to do, RIGHT?

Domestic violence affects all people regardless of age, socio-economic status, sexual orientation, gender, race, religion, or nationality. Despite what you might think, the Foreign Service is not an exception.  Physical violence is often accompanied by emotionally abusive and controlling behavior as part of a much larger, systematic pattern of dominance and control. Domestic violence can result not only in physical injury but also psychological trauma, even death.

And yet, the Foreign Affairs Manual appears to be written by folks who could not seem to contemplate that a chief of mission (COM) can cause physical and mental injury to his/her spouse.  Embassies are not democracies; this FAM update offers no protection to the spouse of the most senior official at an embassy. Its language is all bark, and the bite for everyone else — like most things in the Foreign Service —  falls into the “it depends” bucket.

Below is an excerpt from the FAM:

3 FAM 1815  DOMESTIC VIOLENCE
3 FAM 1815.1  Reporting Domestic Violence
(CT:PER-824;   07-19-2016)
(Uniform State/USAID/Commerce/USDA/and Other Participating Agencies)
(Applies to All Civil Service Employees, Foreign Service Employees, and Locally Employed Staff)

a. Domestic violence can often involve criminal misconduct (e.g., assault, battery, rape) and the Department considers it notoriously disgraceful conduct (see 3 FAM 4139.14).  As such, it is grounds for taking disciplinary action against an employee.  Any supervisor or other management official who is aware of incidents or allegations, which may serve as grounds for disciplinary action against an employee, is responsible for taking action on or reporting such incidents or allegations (see 3 FAM 4322.1).

b. In cases where there is evidence or allegations of criminal misconduct, as noted in paragraph a of this section, the Office of Special Investigations(DS/DO/OSI) will coordinate with the Department of Justice and/or U.S. Attorney’s office to determine if the actions reported warrant criminal prosecution.

c.   At post, any person who suspects an employee is involved in domestic violence should report such information to the family advocacy officer (FAO) at post.  The FAO must take the actions required by this section.

d. At the Department locations in the United States, any person who suspects an employee is involved in domestic violence should report such information to DS/DO/OSI.

3 FAM 1815.2  Post Action and Department Guidance
(CT:PER-824;   07-19-2016)
(Uniform State/USAID/Commerce/USDA/and Other Participating Agencies)
(Applies to All Civil Service Employees, Foreign Service Employees, and Locally Employed Staff)

a. Upon receiving a report or obtaining information pertaining to a suspected case of domestic violence, the family advocacy officer (FAO) must immediately consult with the family advocacy team at post.  The family advocacy team must immediately assess and address any health and safety concerns for the victim and the victim’s children, if any.  Where necessary, promptly schedule with the Foreign Service medical officer (FSMO) medical and/or mental health examinations and/or consultations for persons covered under the Department’s medical program.  Prompt and accurate recording of medical information, interviews and, when possible, the collection of physical evidence and photographs documenting physical injuries is critical in all cases.

b. A member of the family advocacy team must immediately contact the Office of Special Investigations (DS/DO/OSI) telephonically and provide, normally within 24 hours, an initial written report containing available information.  The Bureau of Diplomatic Security (DS) is to share such information with the Family Advocacy Committee.

c.  The Family Advocacy Committee assesses the information and provides guidance to post.  Each case of suspected domestic violence must be handled on a case-by-case basis, depending upon the nature of the allegations.  If the initial report is unsubstantiated or if the allegations do not constitute domestic violence, no further action is required.  The matter is considered closed and the files are annotated accordingly.

d. If the initial report is substantiated, action may include one or more of the following:

(1)  Post may call upon local authorities or resources in certain cases;

(2)  DS may dispatch an investigative team to post, and a criminal investigation may be undertaken;

(3)  DS may coordinate with the cognizant legal authorities about prosecution of the case;

(4)  Post may be asked to conduct follow-up inquiries and interviews;

(5)  Post may be asked to call upon shelter and child protection resources or find alternative shelter within the post community for the victim and any children;

(6)  The FSMO may be asked to determine whether counseling or other medical services are needed and recommend a treatment plan.  If required treatment is not available at post, medical evacuation or curtailment of the employee may be considered or ordered;

(7)  The Family Advocacy Committee may coordinate referrals to crime victim assistance programs specializing in domestic violence and crime victim compensation programs; and

(8)  DS may refer information to the Bureau of Human Resources (HR) for disciplinary action.

Per 3 FAM 1810 domestic violence is any act or threat of imminent violence against a victim (other than a child) that results or threatens to result in physical or mental injury to the victim that is committed by a: (1)  Spouse or former spouse of the victim; (2)  Person with whom the victim shares a child in common; (3)  Person who is co-habitating with or has co-habitated with the victim; (4)  Person residing in the household; or (5)  Any person who has a relationship with the victim and has access to the victim’s household.

Below is Leslie Morgan Steiner talking about “crazy love” via TED — that is, madly in love with a man who routinely abused her and threatened her life. Steiner tells the story of her relationship, correcting misconceptions many people hold about victims of domestic violence, and explaining how we can all help break the silence.

 

Related items:

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Is Diplomatic Security, the State Department’s Law Enforcement Arm Trying to Break the Law?

Posted: 4:21 am ET
Updated: 10:37 am PST

 

On October 4, we wrote about DS agents fleeing Diplomatic Security in droves for the U.S. Marshals Service.  We can now report that approximately 70 agents applied to move from Diplomatic Security to the U.S. Marshals Service and some 30 agents have received conditional offers. A State Department official on background shared with us a short-list of DS agents leaving the bureau for the U.S. Marshals Service. The list was reportedly compiled sometime this summer at the direction of the Diplomatic Security Front Office.  There is now an allegation that Diplomatic Security had asked the U.S. Marshals Service to stop accepting DS agents transfers.  Anecdotal evidence appears to indicate that the list is also being used by DS/IP in pre-assignment deliberations.  This comes amidst reports from sources that DSS Director Bill Miller addressed over 100 DSS agents during a brief in preparation for the UN General Assembly (UNGA), and allegedly stated that any DS agent who leaves for the U.S. Marshals would not be allowed back into the agency.

 

DS to Departing Agents: Bye, You Can’t Come Back! Seriously?

On the warning delivered at the UNGA brief, a State Department official who talked to us on background said: “I’m not sure how many people in that audience realized that just uttering those words is a prohibited personnel practice under 5 USC § 2302(b).”   

So we went and look up the actual statute: 5 U.S. Code § 2302 – Prohibited personnel practices

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment;

(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

(10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;

Could the warning  — that any DSS agent who leaves for the U.S. Marshals would not be allowed back into the agency — influence an applicant for the USMS job to withdraw from competition for fear of retaliation?

If an agent in good standing departs the bureau for another federal job, and decides to come back later, can DS legally discriminate against that agent on the fact that he/she previously left the bureau for another agency?

Isn’t asking the U.S. Marshals Service to stop accepting DS agents transfers considered an obstruction to these agents’ right to compete for employment?

It looks like 5 U.S. Code § 2302 is quite clear about this. Interference with the hiring process of a federal employee is not permissible. Unless, Diplomatic Security is treating 5 U.S. Code § 2302 as a suggestion, and compliance as optional.

We understand that it has been a standard practice at Diplomatic Security that any agent who leaves in good standing is often welcomed back if they wished to return, with minor stipulations for reinstatement. We’re told that typically they would have three years to apply for reinstatement, subject to available vacancies, training requirements, and they may be required to take a hardship tour on the first new assignment upon reinstatement. We should note that 3 FAM 2130 actually says “Because recent familiarity with the Foreign Service is a valuable asset that distinguishes former members from new hires, candidates for reappointment may be considered if they have left the Service not longer than 5 years prior to the date on their reappointment request.”

If it is true — that the top law enforcement official at Diplomatic Security delivered a message not only contrary to practice but also against the law — wouldn’t this generate great concern and trepidation among the troops? Shouldn’t this alarm the top leadership at the State Department and in the Congress?

The State Department official on background told us that every year DS has some attrition to FBI, ATF, OIGs, etc.  but the fact that this lateral USMS announcement came out with the intent to hire experienced agents, at grade, and in significant numbers was “the perfect storm for the poor morale and lack of career control that plagues our mid-level agents.”  The conditional offers to the DS agents reportedly compose nearly one quarter of all offers sent out by the USMS.  We were told that no single agency is as widely represented in that offer pool as Diplomatic Security.

Which is probably embarrassing and all, as folks might start asking uncomfortable questions such as —what the heck is going on at Diplomatic Security these days?

Another source told us  this could have been a lot worse had the vacancy announcement lasted longer than 24 hours. The U.S. Marshals vacancy announcement actually opened on June 8, 2016 and closed on June 8, 2016.

So — we asked the Bureau about this reported bar the agents talk with a Q: PDAS reportedly told folks at UNGA that the departing agents would not be allowed to come back to DS. This sounds a lot like a retaliatory threat and would be a prohibited personnel practice under 5 USC § 2302(b).  After multiple emails and days of waiting, we finally got a non-response on October 12 from Diplomatic Security:

“Thank you for your query. We will have no additional comments on this.” 

Note that we have not received previous comments to these questions although we have sent multiple queries. Heaven knows we don’t expect perfection from our State Department but we do, however, expect it to be responsive and accountable for the reported actions of its top officials.

Look, the Bureau of Diplomatic Security (DS) is the security and law enforcement arm of the U.S. Department of State. Which means that an allegation that it is not following the law even in one area cannot stand with just “no comment.” It also cannot just be ignored. We got no clarification, no explanation, no denial.  Maybe State or DS will have comments for the Congressional Oversight folks?

The bureau has several responses we can think of:

#1.  Deny, deny, deny: hey, hey, this is a nothing-burger, go away.

FSprob_nothingtosee

 

#2. Admit in part/deny in part: there was an official brief, but this warning never happened; you’re barking up the wrong tree.

wrongtree

via giphy.com

#3. Aggrieved defense: We are a law enforcement agency, of course we follow the law; are you nuts?

areyounuts

via giphy.com

#4. Pride defense: We are the Diplomatic Security Service, we don’t make a habit of threatening anyone just because he/she wants to be like U.S. Marshal Sam Gerard!

#5. Ideal response not coming: We have no greater resource than our people. We have not, and we will not interfere with our employees right to compete for employment.

 GIF_shakinghead

Next: Why did Diplomatic Security compile a short-list of DS agents leaving for the U.S. Marshals Service?

 

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USDOJ Drops US Embassy Yemen Passport Revocation Case Sans Explanation

Posted: 2:16 am ET

 

On October 13, 2015, the U.S. District Court of the Northern District of California ordered the State Department to return the U.S. passport of Yemeni-American Mosed Shaye Omar which was revoked “based on the involuntary statement he provided at the U.S. Embassy in Sana’a on January 23, 2013.” (See Court orders @StateDept to return Yemeni-American’s improperly revoked U.S.passport). In February 2016, the U.S. District Court of the Northern District of California issued a cross motions for summary judgment: “This lawsuit presents the question of whether the United States government may revoke a United States citizen’s passport based solely on a purported “confession” that the citizen did not write, dictate, read, or have read to him, but did in fact sign. On the record before the Court, the answer is no.” (see more Omar v. Kerry, et.al: Passport Revocation “Arbitrary and Capricious,” New Hearing Ordered Within 60 Days).

On October 5, 2016, the United States Attorney for the Northern District of California asked to drop the case “without prejudice.”  We’re wondering how many more of these revocation cases would mow be dropped and sealed in court.

Via Politico:

Federal prosecutors — acting abruptly and without public explanation — have moved to drop a controversial criminal passport fraud case that critics alleged stemmed from coercive interrogations at the U.S. embassy in Yemen.

Earlier this year, a grand jury in San Francisco indicted Mosed Omar on passport fraud charges linked to a statement he signed during a 2012 visit to the U.S. diplomatic post in the unstable Middle Eastern nation.
[…]

Thursday afternoon, prosecutors submitted a brief court filing asking to drop the criminal case “without prejudice,” meaning it could be refiled. U.S. District Court Judge Charles Breyer will need to approve the dismissal of the case.

Spokesmen for the U.S. Attorney’s Office in San Francisco did not respond to messages seeking an explanation for the sudden move.
[…]
In response to a query Thursday from POLITICO, a spokesman for State Inspector General Steve Linick confirmed that an inquiry is underway into the allegations about improper passport revocations

“In June 2016, State OIG’s Office of Evaluations and Special Projects initiated a review of the Department’s processes of passport confiscations and revocations at the US Embassy Sanaa, Yemen,” spokesman Doug Welty said. He offered no additional details on the review.

If the case against Omar went forward, prosecutors might have been obligated to turn over to the defense some or all records of the IG review. That prospect may have contributed to the proposed dismissal, but there was no direct indication.

Read more:

 

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Oh Damn and Blast! @StateDept’s Administrative Leave Data Is One Hot Mess

Posted: 3:32 am ET

 

According to State/OIG, administrative leave is granted to employees as an authorized absence from duty without loss of pay or use of leave for various reasons unrelated to employee conduct, such as blood donations and weather-related closures. It may also be granted to employees who are under investigation for misconduct.  Senator Charles Grassley asked State/OIG for a description of the State Department’s administrative leave policies and the controls in place to prevent extensive use of administrative leave. On October 3, State/OIG posted online its report, Department of State Has Administrative Leave Policies but Lacks Complete and Accurate Data on the Use of Leave.

In response to the congressional request, the Office of Inspector General (OIG) evaluated the use of administrative leave at the Department of State (Department). The objectives of the evaluation were (1) to describe the Department’s administrative leave policies and (2) to determine the amount of administrative leave Department employees used from January 2011 to January 2015 and the circumstances surrounding the use of such leave.

State/OIG obtained data on administrative leave granted to Department employees from 2011 through 2015 from the Bureau of Human Resources (HR). For several of these employees, OIG also reviewed select records from the Time and Attendance Telecommunications Line (TATEL) system, the Department’s time and attendance tracking system.

Excerpt from OIG report:

  • At the Department of State, administrative leave can be authorized in 26 circumstances not related to conduct. Employees under investigation for misconduct may also be placed on administrative leave if their continued presence in the workplace may pose a threat to the employee or to others, may result in loss of or damage to government property, or may otherwise jeopardize legitimate government interests. Conduct- related administrative leave over 16 hours may only be granted by the Deputy Assistant Secretary of Human Resources.
  • OIG intended to determine the amount of administrative leave used by Department employees from January 2011 to January 2015 and the circumstances surrounding the use of such leave. However, the Department did not provide OIG with sufficient data to make these determinations. Consequently, OIG is unable to make any assessments about the Department’s use of administrative leave. OIG identified two key deficiencies in the data the Department provided: (1) the Department lacks a centralized source of information regarding the justification for why administrative leave is granted and (2) HR data on the hours of administrative leave used conflicts with data from individual employing offices.

Administrative Leave Not Related to Conduct: 26 Circumstances

  • There are 26 circumstances not related to conduct where administrative leave can be authorized. These circumstances include Federal holidays, voting, hazardous weather conditions, packing.unpacking, blood/organ donation, funerals, time zone dislocation adjustment period to name a few and several miscellaneous reasons like group dismissals for a reasonable period due to extreme climatic conditions; civil disturbance; transportation failure; breakdown of heating/cooling systems; natural disaster, etc.; jury duty; and absence due to an injury incurred while serving abroad and resulting from war, insurgency, mob violence or hostile action.  The amount of time authorized by the FAM and the FAH for administrative leave in these circumstances varies from one hour to one year.
State/HR’s Unreliable Data
  • In response to OIG’s request for information on administrative leave granted to Department employees, HR provided a report created by CGFS using TATEL data transferred to the payroll system. According to this data, the Department recorded 8.36 million hours of administrative leave for 33,205 employees from January 2011 to January 2015; however, their data was unreliable. Specifically, OIG identified two key deficiencies in the data that the Department provided. […] Currently, the only way to determine the justification for an employee’s administrative leave is to review the timesheet, ask the employee, or ask the employing bureau. The Department is currently updating its payroll systems, including modernization of its time and attendance systems. Once this project is completed, there will be more information available on specific uses of administrative leave. However, there is no expected completion date for the project.
  • OIG selected the 100 employees with the most hours of recorded administrative leave based on HR’s data and requested the justification from the applicable employing bureaus.17 According to the data provided by HR, these 100 employees recorded over 320,000 hours of administrative leave during the period under evaluation. However, after reviewing the information the bureaus provided, OIG found that administrative leave hours reported by HR were incorrect for 84 of these 100 employees (84 percent). Four of the employees were on work-related travel as opposed to on administrative leave. The other 80 employees were at work on regular duty between January 2011 and January 2015—with the exception of holidays, scheduled sick and annual leave, and weather-related closures—and their time and attendance records maintained by their employing bureau did not support the large amounts of administrative leave indicated by the HR data. OIG interviews with several employees and supervisors corroborated this information.
  • Although HR officials told OIG that timekeeping error was the most likely source of the discrepancies between the HR data and the information provided by the employing bureaus,19 reports from TATEL reviewed by OIG demonstrated that timekeeper error does not explain the entirety of the large balances of the administrative leave indicated by the HR data.20

Administrative Leave Related to Conduct

  • OPM guidance states that administrative leave should be used only as “an immediate, temporary solution to the problem of an employee who should be kept away from the worksite.”13 OPM also recommends that administrative leave “should not be used for an extended or indefinite period or on a recurring basis” and agencies should “consider other options prior to use of administrative leave.”
  • Department policies follow this guidance and contain several controls to ensure that administrative leave is used only as a temporary solution for employees who should be kept out of the workplace. The FAM defines conduct-related administrative leave as leave authorized “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
  • The Deputy Assistant Secretary told OIG that he and his staff carefully scrutinize each request to ensure that there is sufficient documentation that an employee’s continued presence in the workplace poses an actual problem. They also encourage the bureau to explore other alternatives and have, in some cases, referred the issue to the Office of Civil Rights, the Office of the Ombudsman, or the Bureau of Medical Services. The Deputy Assistant Secretary has disapproved administrative leave requests when alternatives exist or when there is insufficient documentation of a problem.
  • Even when HR approves a request for administrative leave, leave is only authorized for a 30 day maximum. According to HR, this incremental approach ensures that it will reevaluate the employee’s status periodically to determine whether administrative leave continues to be necessary. HR identified three main justifications to place an employee on administrative leave for over 16 hours:
  1. loss of security clearance
  2. medical-related issues
  3. violence or threatening conduct

63,000 Hours in a 4-Year Period

  • Despite these deficiencies, OIG found that more complete information exists for employees on conduct-related administrative leave. For example, sixteen of the 100 employees OIG reviewed had accurately recorded administrative leave and 15 of these were conduct-related cases. For each of these cases, HR confirmed that it had followed Department policy in granting administrative leave to ensure that the employee’s continued presence in the workplace posed a serious problem. These employees represented approximately 63,000 hours of administrative leave in the four-year period
  • According to HR, one of the reasons for these large balances is the difficulty in finding alternative work assignments or locations for employees who are on administrative leave because their security clearances have been suspended. The nature of the Department’s work limits the number of positions for which a security clearance is not required. Department offices may have unclassified work that employees can perform, but those employees would have to be escorted and monitored because most offices are secure spaces. Furthermore, employees who have had their clearances suspended may pose a risk even in unclassified areas.

The original report is posted here (PDF), or read in full below (click on the arrow at the lower right hand side of the box below to maximize view).

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@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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