State/OIG Finds @StateDept Revoked Security Clearance in Retaliation For Whistleblowing

 

Via State/OIG

OIG did not substantiate any allegations of whistleblower retaliation related to Department contractors or grantees. However, OIG did substantiate an allegation of a security clearance revocation in retaliation for whistleblowing activity under PPD-19. As required by the Foreign Affairs Manual, OIG reported its findings to the Under Secretary for Management. The report recommended that the whistleblower’s security clearance be reinstated.

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Presidential Policy Directive-19 (PPD-19) PDF

The brief note from State/OIG’s semi-annual report includes little details about a security clearance revocation, not suspension. According to 12 FAM 233.4, suspension is an independent administrative procedure that does not represent a final determination and does not trigger the procedures outlined in 12 FAM 234, which includes revocation.  With revocation, the Department may determine that immediate suspension without pay from employment under 5 U.S.C. 7532 is deemed advisable.

After State/OIG’s referral to “M”, the Under Secretary for Management will reportedly transmit the IG materials to the Security Appeals Panel, “if one is convened in the matter, and to other Department officials as appropriate” according to the Foreign Affairs Manual.

Note that the State Department does not have a Senate-confirmed “M” as of this writing. We want to know if the security clearance is not reinstated per OIG recommendation.

State/OIG’s semi-annual report also does not include information on consequences for the individual/individuals who perpetrated the revocation of this whistleblower’s security clearance in retaliation for whistleblowing activity.

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Officially On: Revocation/Denial of Passport For Americans With Seriously Delinquent Tax Debt

 

The IRS has now posted a notice on its website indicating that it has began sending certifications of unpaid tax debt to the State Department in February 2018. Americans with seriously delinquent tax debt (totaling more than $51,000 (including interest and penalties) , per IRC § 7345 will be certified as such  to the State Department for action. The State Department reportedly will not issue passports to to individuals after receipt of certification from the IRS.

Back in December 2015, we first reported in this blog  about the “Fixing America’s Surface Transportation Act,” or “FAST Act” which includes Section 7345 that provides for the revocation or denial of U.S. passports to applicants with certain tax delinquencies considered ‘seriously delinquent tax debt’ –that is, a tax liability that has been assessed, which is greater than $50,000 and a notice of lien has been filed. That law was passed and the IRS was supposed to start certifying in early 2017 but that did not happen.

According to the recent IRS notice, upon receiving certification, the State Department shall deny the tax delinquent individual’s  passport application and/or may revoke his/her current passport. If the passport application is denied or the passport is revoked while said individual is overseas, the State Department may issue a limited validity passport but only for direct return to the United States. Read more here via IRS.gov

Note that the guidance also says that the State Department is held harmless in these matters and cannot be sued for any erroneous notification or failed decertification under IRC § 7345.  Affected individuals can file suit in the U.S. Tax Court or a U.S. District Court to have the court determine whether the certification is erroneous or the IRS failed to reverse the certification when it was required to do so. “If the court determines the certification is erroneous or should be reversed, it can order the IRS to notify the State Department that the certification was in error.”

The State Department’s statement on this issue is available here with IRS contact details.

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Burn Bag: @StateDept’s Reasonable Accommodation For a Pregnant Diplomatic Courier?

Via Burn Bag:

Pregnant diplomatic courier told to use a portable travel toilet, undress in the presence of LES driver and urinate in the back of the truck. This is the best accommodation her supervisor and DRAD* could come up with. Another example of **pregnancy discrimination that is running rampant in the State Department.

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Physical requirements  via careers.state.gov:

A Diplomatic Courier must have the physical endurance to withstand the physical stresses from working long hours, lack of sleep, extremes of heat or cold, and other discomforts and the physical strength to lift and move heavy and/or oversized items such as diplomatic pouches and crates that may weigh as much as 70 pounds or carry heavy equipment. A Diplomatic Courier is required to perform work that requires regular and recurring periods of prolonged sitting, standing, bending, and stretching and is often required to physically move and transport heavy items; that could involve climbing ladders and working in and around aircraft, trucks, trains, aboard ships, etc. Related activities include crawling, maneuvering, and working in cramped spaces.

3 FAM 3350 | LEAVE AND REASSIGNMENT OF DUTIES FOR MATERNITY AND PATERNITY REASONS

* HR/OAA/DRAD is the Disability and Reasonable Accommodations Division in the Office of Accessibility and Accommodations, Bureau of Human Resources at the State Department

** The Pregnancy Discrimination Act of 1978 is an amendment to Title VII of the Civil Rights Act of 1964.  Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. See more: https://fam.state.gov/fam/03fah03/03fah030110.html#H112

 

They’re Making a List, and Checking It Twice #ManOhManOhMan

When you hear that lists sent to DCM Committees have been adjusted by gender for those appointees who are insisting on a man (!) as their Deputy Chief of Mission (DCM) or Deputy Assistant Secretary (DAS). And you’re still waiting for anyone at DGHR to inform everyone that no committee will entertain any list that promotes, assists, or enables sex discrimination in violation of Title VII.

via giphy

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Office of Special Counsel on Political Inquiries/Political Discrimination During Reassignments

Posted: 12:45 pm PT

 

The Office of Special Counsel who has authority to investigate  5 U.S. Code § 2302 – Prohibited Personnel Practices says that political inquiries of or political discrimination against applicants for career federal jobs are prohibited under the law. Personnel action under this law includes not just appointments but also reassignments, promotions, and reemployments of federal employees. Keep this in your pocket.

Excerpt:

(a)

(1) For the purpose of this title, “prohibited personnel practice” means any action described in subsection (b).

(2) For the purpose of this section—

(A) “personnel action” means—

(i) an appointment;

(ii) a promotion;

(iii) an action under chapter 75 of this title or other disciplinary or corrective action;

(iv) a detail, transfer, or reassignment;

(v) a reinstatement;

(vi) a restoration;

(vii) a reemployment;

(viii) a performance evaluation under chapter 43 of this title or under title 38;

(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;

(x) a decision to order psychiatric testing or examination;

(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and

(xii) any other significant change in duties, responsibilities, or working conditions; with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31;

(B) “covered position” means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action—

(i) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or

(ii) excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration;

(C) “agency” means an Executive agency and the Government Publishing Office, but does not include—

(i) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D);

(ii)

(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

(II) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or

(iii) the Government Accountability Office; and

(D) “disclosure” means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences—

(i) any violation of any law, rule, or regulation; or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(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—

(1) discriminate for or against any employee or applicant for employment

(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16);

(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);

(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));

(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or

(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—

(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

(B) an evaluation of the character, loyalty, or suitability of such individual;

(3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;

(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;

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;

(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—

(i) any violation (other than a violation of this section) of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—

(i) with regard to remedying a violation of paragraph (8); or

(ii) other than with regard to remedying a violation of paragraph (8);

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);

(C) cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(D) refusing to obey an order that would require the individual to violate a law, rule, or regulation;

(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;

(11)

(A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement;

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title;

(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”; or

(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).

This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

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Watch Out For the 90-Day Rule: Mandatory Retirement For Former Presidential Appointees

Posted: 12:54 am ET

 

Yo!

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.

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@StateDept’s Mandatory Harassment Training Overview (Video)

Posted: 3:17 am ET

 

Below is an unlisted video uploaded on February 2, 2018 by the “DMO Team” (?) that talks about the Mandatory Harassment Training ordered by Secretary Tillerson at the State Department. The presenter is Pamela Britton, an Attorney-Adviser from the Office of Civil Rights (S/OCR) at the State Department.

Around the 22 minute mark, the presenter talks about the reporting trends on harassment – saying that it has increased dramatically over the past four years FY2014 (235), FY2015 (320), FY2016 (365), FY2017 (483) but also notes that S/OCR “does not believe that the number of reports are equivalent to the number of actual behavior increasing” or that there’s “an uptick in poor behavior.”  They’re tying the increase in reporting “to the fact that people are now more informed of what to do, how to report, and what should be reported.” Supervisors are reportedly now better informed of their mandatory reporting requirement. Also that there is less tolerance for behavior that may have been tolerated 20 years ago. One more thing to note. Majority of reports are reportedly from overseas, and a significant number of alleged harassers are at the GS-14/FS-02 and higher ranking employees.

This video also cites two EEOC cases from DHS and the U.S. Navy. Whoever put this video together somehow forgot the sexual harassment case at FSI that S/OCR determined was not a sexual harassment case, but where the EEOC eventually found the State Department liable: @StateDept to Hold “Harassment in the Workplace” Session But First, Read This FSI Sexual Harassment Case). And here’s another one: Sexual Assault at a State Dept-Leased Apartment: If This Isn’t Abysmal Failure, What Is It?

 

According to the description posted with this video, on January 12, 2018, Secretary Tillerson mandated all American direct-hire employees receive harassment awareness training within 90 days (by April 12). The Bureau of Human Resources (HR) and the Office of Civil Rights (S/OCR) have made the following video available to ensure that all employees can comply. To ensure accountability with this requirement, all Assistant Secretaries, Chiefs of Mission, Charges, and Principal Officers must certify that all American, direct-hire employees under their supervision have received the training, via memo for domestic employees and front-channel cable for employees stationed abroad. In addition, the Foreign Service Institute, in coordination with S/OCR and HR, will reportedly develop an online harassment awareness-training course, which will be available later in 2018. All locally employed staff, personal services contractors and contractors will be held accountable for completing this on-line training by December 31, 2018.

The video posted says that for questions, please email SOCR_Direct@state.gov. If you would like to report an instance of harassment, please use the reporting link http://socr.state.sbu/OCR/Default.asp…. (links to Intranet site). If you do not have intranet access, folks may send an email to the aforementioned address or call 202-647-9295.

With regards to the harassment training, note that the EEOC in 2016 put out a Report of the Select Task Force on the Study of Harassment in the Workplace (June 2016), which find that much of the harassment training done over the last 30 years has been ineffective in preventing harassment. See https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm,

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EEOC Awards $60K For USNATO Brussels’ Failure to “Reasonably Accommodate” @StateDept Employee

Posted: 2:36 am ET

 

Via eeoc.gov/vol 1/FY18:

Commission Increased Award of Damages to $60,000. The Commission previously affirmed the Agency’s finding that it failed to reasonably accommodate Complainant. Following an investigation of Complainant’s claim for damages, the Agency awarded Complainant $10,500 in non-pecuniary damages. On appeal, the Commission affirmed the Agency’s decision not to award pecuniary damages, finding insufficient documentary proof to support such an award. The Commission, however, increased the award of non-pecuniary damages to $60,000. The Agency conceded that Complainant established a nexus between the harm he sustained and the discrimination. The record evidence confirmed that over a three-year period, Complainant experienced an exacerbation of his pre-existing conditions caused by stress created by the Agency’s discriminatory actions. Complainant stated that he experienced anxiety, irritability, insomnia and loss of consortium, and indicated that he did not go out socially. He also noted that he experienced headaches, and night sweats, and was forced to increase his medication when the Agency refused to accommodate him. The evidence supported Complainant’s assertion that his condition had stabilized prior to the discrimination, and the Agency was liable for the worsening of Complainant’s condition. Irvin W. v. Dep’t of State, EEOC Appeal No. 0120141773 (Oct. 28, 2016).

Here is a quick summary of the case:

At the time of events giving rise to this complaint, Complainant worked as an Information Management Specialist at the Agency’s U.S. Mission to NATO in Brussels, Belgium.  On September 11, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Sjogrens Syndrome, Rheumatoid Arthritis and Anxiety) when the Agency failed to provide him with a reasonable accommodation of his disability. After an investigation, Complainant requested the Agency issued a final decision.  In its decision, the Agency found Complainant established he was subjected to discrimination when he was denied an accommodation.  As relief, the Agency ordered that Complainant be provided with a reasonable accommodation. On July 14, 2011, Complainant appealed the decision, and we affirmed the Agency’s finding on liability, and remanded the matter to the Agency so that it could conduct a supplementary investigation into Complainant’s entitlement to compensatory damages.  After conducting an investigation, the Agency issued its decision on March 12, 2014 awarding Complainant $10,500.00 in non-pecuniary damages. Specifically, the Agency found that Complainant’s pre-existing condition was largely the cause of Complainant’s physical and emotional distress during this time, and that the amount awarded was meant to compensate Complainant for the worsening of that condition.  The Agency disagreed with Complainant’s claim that his condition had stabilized by the time he arrived in Brussels, as evidence revealed he was still on a large dosage of steroids in July 2008, weeks before he began working.  Although Complainant alleged that he suffered from a loss of bone density (Osteopenia) as a result of his long term steroid use, the Agency determined that there was insufficient evidence that this was as a result of the discrimination.  Furthermore, although Complainant suffered emotional distress related to the discrimination, such distress occurred prior to his request for reasonable accommodation, which the Agency could not be held liable for.  In sum, the Agency concluded that Complainant’s condition was inherently unpredictable, and accordingly, his symptoms were unrelated to the discrimination itself.  Accordingly, the Agency concluded that $10,500.00 was an appropriate amount to compensate Complainant for the emotional distress he suffered.  The Agency declined to award any pecuniary damages in response to Complainant’s request.  This appeal followed.
[…]
Based upon the evidence provided by Complainant, we find the Agency’s award of $10,500.00 to be inadequate to remedy the harm caused by the Agency.  The Commission notes that record evidence confirmed that over a three year period, Complainant experienced an exacerbation of his pre-existing conditions for which he sought treatment caused by the stress created by the Agency’s discriminatory actions.  Complainant asserts that he suffered from anxiety, irritability, insomnia, and loss of consortium.  He maintains he did not go out socially, and suffered from headaches, night sweats and loss of bone density.  Most notably, he states he had tapered down his steroid dosage prior to reporting to Brussels, but was forced to increase the medication when the Agency refused to provide him with an accommodation of his disability.  We find the evidence supports Complainant’s position that his condition had stabilized and thus, the Agency is liable for the worsening of his condition. The Commission finds that an award of $60,000.00 is reasonable under the circumstances. See Complainant v. Dep’t of Transp., EEOC Appeal No. 0720140022 (Sept. 16, 2015) (Complainant awarded $60,000.00 where Agency’s failure to accommodate resulted in depression, anxiety, sleeplessness, and exacerbation of existing symptoms); Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720130013 (Aug. 14, 2014) (Complainant awarded $60,000.00 where Agency’s failure to accommodate resulted in exacerbation of post-traumatic stress disorder, depression, stress, and elevated blood pressure); Henery v. Dep’t of the Navy, EEOC Appeal No. 07A50034 (Sept. 22, 2005) ($65,000.00 awarded where Complainant suffered from frustration, negativity, and loss of sleep for a four-year period, as well as physical pain associated with the resulting excessive walking. The discrimination caused significant increase in Complainant’s need for medical treatment, as well as an increase in physical and emotional harm). The Commission finds that this amount takes into account the severity of the harm suffered and his pre-existing condition, and is also consistent with prior Commission precedent. Finally, the Commission finds this award is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases.  See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).

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Coming Soon – Accountability Review Board Havana For Mysterious Attacks in Cuba

Posted: 3:34 am ET

 

The State Department’s new Under Secretary for Public Diplomacy and Public Affairs Steve Goldstein  did a press gaggle on January 9 and was asked about the convening of an Accountability Review Board for the attacks against American diplomats in Havana. He said that he expects announcements of the chair and the members of the board available for release within the next week. He also told the press “We believe that the Cuban Government knows what occurred, and so what we’d like them to do is to tell us what occurred so we can ensure this doesn’t happen again.”

He told members of the media that the USG “is not considering restoring the staff” at US Embassy Havana, and that the State Department is “providing extensive medical care to people that need it,” and that the agency “have also made it clear that if people do not want to serve in that particular embassy, they do not have to.”

When asked about Senator Marco Rubio’s comments that it’s against the law that it took –rather than 60 or 120 days– almost a year to stand up ARB Havana, U/S Goldstein responded:

UNDER SECRETARY GOLDSTEIN: Right. Well, I – we have great respect for the senator, and he shares our concern about trying to reach resolution on this matter. It took time to set up the accountability review board because we were hopeful that we would be able to know what occurred. We were – the investigation has taken longer than we anticipated, and – but it is now time to go forward. And again, we would expect the – I would expect the names to be announced over the next several days. I do have the names, I just can’t – I’m not – I want to make sure that the people have been notified.

QUESTION: — by failing to announce or create this review board back in July, that the – that you had confirmed that people were seriously wounded by March or May, that the law requires if you know that a State Department personnel is seriously wounded, that you create a review board within 60 days or tell Congress why you’re not doing so. That is the clear letter of the law. You did not follow it. That’s what he claims. What is your response to that?

UNDER SECRETARY GOLDSTEIN: Right. We don’t agree with that. The assistant secretary today made clear, and we have said too, that it took us time to get the investigation in place. The investigation is continuing, and we believe that we have the – had the authority to determine when the accountability review board should be set in place. I think let’s not lose focus here. There’s 24 people that had injuries, and those people are receiving treatment, and we’ve had over 20 conversations with the people of Cuba. We’ve – the government investigators have been down four times; they’re going down again within the next few weeks. And so our primary goal at the present time is to find out why this occurred, to prevent it from happening again in Cuba and the embassy of Cuba or in any other place where American citizens are located.

When an ARB should be convened is in the rules book once it was determined that the incident was security-related with serious injury.  For folks who want a refresher, per 12 FAM 030, the Accountability Review Board process is a mechanism to foster more effective security of U.S. missions and personnel abroad by ensuring a thorough and independent review of security-related incidents.

Security-related incidents are defined as “A case of serious injury, loss of life, or significant destruction of property at or related to a U.S. government mission abroad, or a case of a serious breach of security involving intelligence activities of a foreign government directed at a U.S. mission abroad (other than a facility or installation subject to the control of a U.S. area combatant commander), and which does not clearly involve only causes unrelated to security.”

(See U.S. Diplomats in Cuba Sonic Attacks: As Serious as Mild TBI/Central Nervous System Damage?)

12 FAM 032.1 updated in October 2017 notes that the ARB/Permanent Coordinating Committee will, “as quickly as possible after an incident occurs, review the available facts and recommend to the Secretary to convene or not convene a Board.  (Due to the 1999 revision of the law requiring the Secretary to convene a Board not later than 60 days after the occurrence of an incident, except that such period may be extended for one additional 60-day period, the ARB/PCC will meet within 30 days of the incident if enough information is available.) In addition, the ARB/PCC will meet yearly to review the ARB process, existing policies and procedures, and all past ARB recommendations, and ensure that any necessary changes are effected.”

So we gotta ask an uncomfortable question for the Tillerson State Department — is it possible that no ARB Havana was convened because the eight positions who are members of the PCC, an entity tasked with making recommendations to the Secretary was not filled or only partially filled?

Did the ARB/PCC meet on the Havana incidents last year? What recommendations were made to the Secretary? Why are they convening an ARB just now?

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AFSA: FSOs Will Now Compete in a “Scavenger Hunt” to Be Considered for Promotion Into the Senior Foreign Service

Posted: 1:07 pm PT

 
AFSA’s State VP Kenneth Kero-Mentz sent out a message today on the new Professional Development Program and new requirements for promotion into the Senior Foreign Service, Promotion Criteria Changed: Opening Your Window. If you have not seen it yet, see below via afsa.org:

 

Over a year ago, the Department informed AFSA that it wanted to change the criteria for those seeking entry into the Senior Foreign Service under the “Professional Development Program.” While AFSA supported many of the changes included in the PDP, we expressed deep concern about the so-called “service needs” proposal. Currently, those FSOs interested in opening their window must have served at least one tour at a 15% or higher hardship post. The Department told us it wanted to mandate that FSOs complete a tour at a 25% or greater hardship differential post from entry into the Foreign Service (or a tour at an unaccompanied post from entry), AND a second tour at a 20% or greater differential post after tenure.

During the extended negotiations, the Department’s justification for this radical shift changed constantly. Initially, the proposed changes were necessary to fill vacant positions at greater hardship posts. AFSA pointed out that the Department’s own data revealed that vacancy rates at 20% and higher differential posts are actually lower than the vacancy rates at 0% and 15% posts. Next, the Department claimed that the real problem was that there were too few and/or subpar bidders at certain hardship posts in Africa and South Central Asia. We countered that the recent changes to Fair Share rules and bidding privileges will drive more bidders to 20% and higher posts, alleviating that possible concern. But then the Department changed its rationale a third time, arguing that FSOs need to be exposed to service in high differential posts to build the leadership skills necessary for promotion into the SFS.

AFSA fought back, and took the dispute all the way to the Foreign Service Impasse Disputes Panel (FSIDP) where we argued strenuously that this move is unnecessary (based on the Department’s own data), directly contradicts the Foreign Service Act of 1980, harms members of the Foreign Service, and is untenable. Implementing this proposal would result in a less diverse SFS, we argued, and it contravenes both Section 101 of the Act (which states that “the members of the Foreign Service should be representative of the American people”) as well as Secretary Tillerson’s stated goal of a more diverse Foreign Service. Unfortunately, the FSIDP sided with the Department.

Our position has remained consistent: if the Department can identify a realproblem, AFSA is committed to working with the Department to solve it. Not only did the Department fail to provide evidence of a genuine problem, its proposed solution to its ever-evolving alleged problem is contrary to the Act’s SFS promotion criteria in that it undermines the legal authority of the Selection Boards. Adoption of the Department’s proposal guts the SFS promotion process by transferring decisions regarding the future leadership of the Department from the Selection Boards to HR. Instead of competing for promotion on the strength of their performance evaluations, FSOs will now compete in a “scavenger hunt” for the limited number of positions at 25% or higher posts to meet an arbitrary criterion to be allowed to open their windows and be considered for promotion into the SFS by the Selection Boards. We are quite certain this change will lead to unforeseen difficulties, not only for FSOs but also for regional bureaus, especially those with many FSO positions to fill at 15% posts.

This change in criteria will have an adverse impact on many Foreign Service employees who will not be able to meet the requirements due to the lack of available positions and their own or their family members’ personal situations, thus, undermining the diversity of the SFS. We argued—and provided concrete examples—that many of the greater hardship posts are even more challenging to serve in for tandem couples, for those with medical concerns, for families with children with special needs, or for LGBT FSOs where privileges and immunitiesmay not be granted to their spouses and families. And what about for those who are consistently promoted at the first opportunity—our “fast risers”—are they expected to focus only on hardship posts as they move up?

Unfortunately, now that the FSIDP has ruled, the Department announced this change on December 29 with the release of 17 STATE 127376. We believe this change is likely to result in numerous grievances from FSOs who bid, year after year, on greater hardship posts but were not assigned to such posts, and so we urge all FSOs to keep records of bidding. The Foreign Service Grievance Board (FSGB) “has long recognized that agencies are responsible for providing Foreign Service Officers with opportunities to advance their careers… [T]his provides a necessary protection in an ‘up or out’ promotion system and is grounded in the FSA and agency regulations.” Further, “a Foreign Service agency has an affirmative obligation to provide each of its officers with fair and reasonable opportunities for development and retention in the Service… [T]he agency cannot simultaneously engage in a process that deprives its officers of those very opportunities…”

AFSA has repeatedly told the Department that it wants to help solve problems in filling FSO positions at greater hardship posts, if they truly exist, but to date the Department has failed to provide any evidence of an actual problem. While AFSA will continue to be collaborative in its labor management relationship with the Department—and we are pleased that our negotiations with the Department yielded many positive changes in the PDP compared with earlier versions—we will not be complicit in the pursuit of a “solution” for which there is no problem. Further, the Department’s changes to the PDP will further complicate bidding simply because there are not enough hardship positions to meet demand. There is no guarantee that talented FSOs, who have to this point progressed quickly through the ranks, will be able to meet these additional requirements to enter the Senior Foreign Service within the prescribed time frame. Those FSOs unable to meet these new requirements—and, given the scarcity of positions available, that will be many FS-01s—will not be allowed to open their windows unless they can convince HR to grant them a waiver.

With the recent FSIDP decision, the Department is now free to implement this radical change through the Professional Development Program. It is AFSA’s intention to approach discussions with the Department with the goal of minimizing adverse impact of this new policy on our members’ careers to the greatest extent possible. Looking toward the future, we urge all members of the Foreign Service to maintain good records of their bidding efforts, and stay tuned as we work with the Department to ensure that the “waiver” portion of its proposal is developed into a robust, transparent, and well-defined system. In accordance with the Department’s ALDAC, those with policy questions should direct their concerns to careerdevhelpdesk@state.gov and feel free to share your concerns with us as well.

Despite our disappointment, we look forward to continuing with our overall collaborative and positive relationship with the Department.

 

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