@StateDept Issues New Policy For Local Staff at U.S. Missions in Suspended Operations

 

 

The State Department recently issued its policy for locally hired staff at U.S. Mission in suspended operations (see 3 FAM 7170). Suspended operations denote “a U.S. mission or post that has ceased operating. During this period, U.S. direct hire (USDH) personnel are usually removed from post (often evacuated). It is possible that some LE staff may remain working on premises to maintain the facilities. Diplomatic relations with the host government are usually maintained under suspended operations; it is not a revocation of diplomatic relations with the host country.”

3 FAM 7174 Authorization of Caretaker LE staff 
(CT:PER-1039;   05-13-2021)
(Uniform State/USAID/Commerce/Agriculture)
(Applies Locally Employed Staff Only)

a. LE Staff who will continue to work on behalf of the U.S. mission during suspended operations must be designated as “Caretaker LE Staff”. Caretaker LE Staff continue to be subject to all applicable personnel policies (e.g., discipline, performance management, awards, pay increases, etc.).
b. Within thirty (30) calendar days from the date on which a U.S. mission is determined to be in suspended operation status, the regional bureau will submit an action memorandum to the Under Secretary of State for Management requesting approval for retention of and continuation of pay to current LE Staff. The action memo requesting continued employment of Caretaker LE Staff must include specific information establishing the need for continued employment of and sufficient supervision over Caretaker LE Staff and should include, at a minimum, the following information:

(1)  List of proposed Caretaker LE Staff, along with their respective employment sections;
(2)  Duties being performed and an explanation regarding why these duties are mission essential;
(3)  Confirmation of appropriate supervisory controls;
(4)  The extent to which employees will regularly report to the workplace and, if not reporting to the workplace, information on how employees will be performing their duties and communicating with supervisors; and 
(5)  Data on those employees who may require updated work plans or job reassignments. 

c.  Retention of and/or continuation of pay to LE Staff will be subject to review every six (6) months thereafter by the Under Secretary for Management. If approved, the action memoranda will be provided to CGFS/C/PPR/LE. 
d. As noted in 3 FAM 7174(a), Caretaker LE Staff are subject to applicable personnel policies (e.g., discipline and performance management) and any discipline or separation of Caretaker LE Staff should be consistent with 3 FAM 7720 and 3 FAM 7730.

The new guidance says that immediately upon the determination to place a U.S. mission in suspended operation status, LE Staff who are not designated as Caretaker LE Staff will be temporarily placed in excused-leave status (i.e., administrative leave).
According to the FAM, once a determination is made to remove an LE Staff from excused-leave status or to remove an employee’s position from the authorized caretaker list, separation should proceed pursuant to the U.S. mission’s Reduction in Force (RIF) policy and the mission’s Local Compensation Plan (LCP).
No RIF retention register is required, no RIF appeal process is required, and the FAM says that the “U.S. mission should not include information about appeals in the RIF notice provided to LE Staff.”

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More on Operation Allies Refuge With D/MR McKeon, Amb. Jacobson and SSDO #1 On Background

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On July 21, the State Department held a briefing on Operation Allies Refuge where D/MR Brian McKeon and Afghanistan Task Force Director Ambassador Tracey Jacobson gave remarks to the press and a Senior State Department official did a Q&A on background with reporters.  US Embassy Kabul CDA Ross Wilson noted previously  in a tweet that post is “working hard to process SIV applicants and have interviewed more than 1600 along with their family members since April.” D/MR McKeon has the number for approved visas saying, “Since January, we’ve already approved 2,500 Special Immigrant Visas.”
Some 750 Afghan SIV applicants and families will be “paroled” into the U.S. starting next week. They will be located at Fort Lee, VA where they are expected, at least right now, to stay for processing for 7 to 10 days. What happens to them afterwards?
Per 9 FAM 202.3, parole authority is governed by section 212(d)(5) of the Immigration and Nationality Act. Section 402 of the Homeland Security Act of 2002, Public Law 107-296 transfers authority for immigration matters to the Secretary of Homeland Security (DHS), including authorizing parole for an alien into the United States for urgent humanitarian reasons or for significant public benefit.
Note that neither the State Department nor consular officers have the authority to approve or extend any type of parole under any circumstances.  Parole is a discretionary authority of the Secretary of Homeland Security. The FAM says “It should be seen as a last resort for persons with urgent needs to travel to the United States or for cases with significant public benefit.”
The FAM also notes that “parolees who are paroled pursuant to INA 212(d)(5)(A) for urgent humanitarian reasons or for significant public benefit reasons do not receive the type of resettlement assistance that is provided to refugees.” So, how are they supposed to start new lives in the United States without resettlement assistance?
About 4,000 principal applicants and their families will be taken to an unnamed third-country location while they wait for the completion of their SIV application. The SDO told reporters they are “not in a position to confirm any agreements with any of those third countries at this time” when asked about potential relocations to military bases in  Kuwait and Qatar.
The State Department also told reporters that SIV applicants “would have to get themselves to Kabul” adding that  “we don’t have substantial U.S. military presence. We don’t have an ability to provide transportation for them.” Excerpts below:
Related post: USG to Mount ‘Operation Allies Refuge’ to Relocate Afghans Who Aided United States US Embassy Kabul Interviewed 1,600 Afghan SIV Applicants Since April, Interviewed ≠ Issued Visas July 13, 2021
Deputy Secretary of State for Management and Resources Brian McKeon:

“In February, Embassy Kabul reopened for in-person immigrant visa services following an 11-month suspension due to the COVID-19 pandemic. That backlog has since been cleared out and we’re working as fast possible to interview SIV applicants whose appointments were canceled during a recent COVID outbreak in Kabul. Since January, we’ve already approved 2,500 Special Immigrant Visas.”

Afghanistan Task Force Director Ambassador Tracey Jacobson:

Our first priority is to relocate to the United States some 750 Afghan SIV applicants and their immediate families who have completed the majority of the visa process, including a thorough security background check. We are working to bring them to the United States starting next week. They will be paroled into the United States and have their status adjusted by the Department of Homeland Security. During this processing, they will be located at Fort Lee, Virginia, and when they leave Fort Lee, they will join 70,000 Afghans who have received SIVs and started new lives in the United States since 2008.

We are also working to relocate from Afghanistan those applicants who have received chief of mission approval but have not gone so far in their visa processing, including the full security screen. This group includes about 4,000 principal applicants and their families. We will take them to locations outside the United States where they can safely await the completion of their application processing, and we will provide them accommodation and other support during this period, which we are committed to making as short as possible.

QUESTION:  Thanks, guys, for doing this. I think we all have a bunch of questions. I am wondering how long the administration plans to be doing these relocation efforts. Do you expect this is something that will happen over the course of years given some SIV applicants have just applied recently given the U.S. troop withdrawal?

My second question is about safety for these Afghans. What is the U.S. doing, what can the U.S. do to provide them with any safety when U.S. troops withdraw from the country, and how are they being transported to the airport? Is there any support for them given threats from the Taliban? And last question is: How long are they expected to stay at Fort Lee in this final stage? Thanks.

SENIOR STATE DEPARTMENT OFFICIAL ONE:  So working backward, we don’t expect them to stay at Fort Lee for very often, or very long, excuse me. We’ll try to work them through Fort Lee in 7 to 10 day is our hope and expectation. The applicants need to get themselves to Kabul. We’re not going to talk about how they get in and around Kabul and to the airport for security reasons.

The SIV Program is – has eligibility standards, and we have authorized numbers from the U.S. Congress, and so long as we keep having those numbers provided to us by Congress, we’ll keep processing SIV applicants.

QUESTION:  Can you talk about the others in the program and where else they might be going, and how long it will take to get what was originally estimated as as many as 70,000 people, including families, accommodated because obviously their lives are right now in danger? Thank you.

SENIOR STATE DEPARTMENT OFFICIAL ONE:  So the total number of applicants to the SIV Program number just over 20,000, but about half of those have not yet completed the initial stages of the application process, so we’re not in a position to move forward with their case until they do so. So I’m not sure where the 70,000 number comes from. The 4,000 number and their families, they would be targeted for the next phase of bringing people to third country locations, and that process in the third country would take longer because they’re not as far along in the screening process as those who we will bring to the United States.

QUESTION:  Thanks, guys. Let me follow up on what comes next. Can you confirm that there’s the deal pretty much done to move, I don’t know if it’s the next round or the third round, some of these applicants to military bases in Kuwait and Qatar? And can you talk about whether there’s a push on P-2 refugees, whether the number – sorry, the kind of aperture of the person who can apply, whether there’s a push to expand that aperture and including P-2 refugees. And I know you don’t want to talk about some of the details on transport for security reasons, but can you give us any more details on how exactly they will get to Fort Lee this first round? Thanks.

SENIOR STATE DEPARTMENT OFFICIAL ONE:  I’m sorry, Nick, I was – I didn’t understand the last piece of the question. I’m not sure we have many answers that we can give you. We’re talking to third countries about the possibility of temporary relocation, but we’re not in a position to confirm any agreements with any of those third countries at this time.

On the transportation to Fort Lee, we will fly them into the country and bring them by vehicle to Fort Lee. I assume it will be buses.

QUESTION:  Hi there. Thank you for doing this. Let’s see. Is the – because the Afghan SIVs will fly out through the Kabul airport, has there been an agreement finalized to keep that operating under Turkey? I don’t know if their relocations are all supposed to be completed by the time the U.S. withdraws or not. And then you say you’re – do you not yet have any agreement from any other country to temporarily host the Afghan SIVs?

SENIOR STATE DEPARTMENT OFFICIAL ONE:  On the second question, we don’t have agreement with any countries that we’re ready to announce here.

On the airport, obviously, we’ve said the airport needs to be open and functioning as part of a normal country, and we’re grateful for our conversations with our colleagues in Turkey. The DOD is leading those conversations. We’re optimistic that we’ll have the security package that we need at the airport in Kabul.

QUESTION:  Thank you for having this call. A couple of follow-ups as well. Can you say how many there are in total with this group of 4,000 principal applicants who will be moved to third countries? If you include their families, what is that total number?

You said applicants will have to get themselves to Kabul. For many of them, that journey would be dangerous if not impossible. What would you say to the – to security concerns of folks trying to get to Kabul? Thank you.

SENIOR STATE DEPARTMENT OFFICIAL ONE:  So we don’t know for certain how many family members will be brought. The principal applicant can choose to bring the ones that are eligible. We’ve just been doing these rough extrapolations based on an average of three to five per principal applicant based on past practice. In order to come on an evacuation flight, they would have to get themselves to Kabul. Obviously, we don’t have substantial U.S. military presence. We don’t have an ability to provide transportation for them. If they’re, say, in the north of the country and they don’t feel safe staying in Afghanistan, they could go to a neighboring country and finish their SIV application process there.

QUESTION:  Good afternoon. Thank you so much for the call. Just a follow-up question on the Afghanistan fixers who have helped the U.S. press organizations. Would you support the creation of a visa program for those Afghans, Afghans who helped with the U.S. media organizations and who are now seeking safety in the U.S.? I’m asking this because a coalition of U.S. media organizations has sent a letter to the Congress requesting to create such visa program. Would you like to weigh in? Thank you.

SENIOR STATE DEPARTMENT OFFICIAL ONE:   Yes, thank you. We’ve seen the letter from the news organizations and we’ll be responding in due course to them. As I think I’ve responded previously to this question, in terms of other people in Afghanistan who have helped the United States or helped U.S. organizations, whether it’s NGOs or media organizations, we are looking at other options for providing safe options for them outside of Afghanistan.

 

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FSGB: “Automatism” Defense Against Notoriously Disgraceful Conduct Charge Fails

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Via FSGB Case No. 2020031 February 19, 2021
HeldThe Department proved by preponderant evidence that the charged employee committed notoriously disgraceful conduct by engaging in non consensual sexual contact with a colleague in a public Embassy space; the misconduct was not caused by a neurological condition (automatism); there was a nexus between the charged misconduct and the efficiency of the Service; and that the penalty of separation is reasonable.Case
SummaryThe Department charged an unaccompanied married employee with notoriously disgraceful conduct after he went to a pool party at an overseas post, had a few alcoholic drinks, and, after some physical contact with a married colleague who was intoxicated, touched her near her genital area without her consent. The incident was videotaped by security cameras and was observed by employees who were at the pool. The Department argued that intent is not an element of the charged misconduct but should be considered as a mitigating or aggravating factor when the penalty is determined. The agency presented the testimony of an expert witness who opined that the charged employee did not suffer from an automatism at the time of the misconduct. The agency contended that the undisputed evidence proves notoriously disgraceful conduct. The Department argued that separation was the only appropriate penalty for the egregious misconduct, given a fair consideration of the mitigating and aggravating factors and a review of comparator cases.
The charged employee presented a report from an expert witness who opined that at the time of the misconduct, the employee was experiencing a neurological event, called an automatism,which prevented him from having any awareness of, or control over, his actions. The charged employee contended that he is not culpable for the charged misconduct because intent to commit the conduct is a necessary element of the charge.The employee also argued that the Deciding Official did not properly consider mitigating circumstances and the penalty was unreasonable after a review of comparator cases.
The Grievance Board considered the undisputed evidence of the incident that was recorded on the videotape and not contested by the charged employee. The Board further reviewed the testimony of the competing experts and concluded that the opinion of the charged employee’s expert witness was not sound because it was not consistent with the accounts of the witnesses, including the charged employee, and it did not derive from a persuasive differential diagnosis. The Board concluded that the charged employee’s expert witness speculated repeatedly on the possible causes for an automatism,which undermined the plausibility of his ultimate opinion. The Board further found that because intent was clearly established, the issue of whether intent is an element of the charge did not need to be decided. The Board concluded that there was a nexus between the misconduct and the efficiency of the Service because the incident was videotaped, witnessed by several employees, resulted in an almost immediate curtailment and a suspension of the charged employee’s security clearance. Lastly, the Board found that the penalty was within the zone of reasonableness after an appropriate review of mitigating factors and case comparators.
The Board finds that Department “has established by preponderant evidence that the charged employee committed the specified charge of notoriously disgraceful conduct, the misconduct was not the product of an automatism; there is a nexus between the misconduct and the efficiency of the Service; and the penalty of separation is reasonable.”
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.

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Snapshot: Some Considerations in Determining Penalty #DisciplinaryAction

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3 FAM 4375 (“SOME CONSIDERATIONS IN DETERMINING PENALTY”) reads as follows:
The following factors should be considered in determining the appropriate penalty. This list is not exhaustive, and not all factors are applicable to all cases.
(1) Nature of the offense, its seriousness, and consequences;
(2) History of past conduct problems, whether or not discipline was imposed (nature and frequency of past offenses and how recent the occurrences);
(3) Intent (possibility of genuine misunderstanding), willfulness of the conduct;
(4) Enticement or provocation;
(5) Position of employee (nature or relationship between behavior and official responsibilities, sensitivity of position);
(6) Culpability of others;
(7) Contacts with the public and prominence of the position;
(8) Notoriety of the offense or its impact upon the reputation of the Department;
(9) Where and when the misconduct occurred – in the United States or abroad, on duty or off-duty;
(10) Length of employee’s service, level of professional experience;
(11) Quality of employee’s work history;
(12) Past contributions and achievements;
(13) Record of cooperativeness, efforts toward and potential for rehabilitation;
(14) Other mitigating or extenuating circumstances;
(15) Clarity with which the employee was on notice of any rules that were violated in committing the offense;
(16) Consistency of the penalty with those imposed upon other employees for similar offenses and with the table of penalties in 3 FAM 4377; and
(17) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
“These factors are derived from those enunciated in Douglas v. Veterans Administration, 5 Merit Systems Protection Board (MSPB), 313 (1981), which established criteria that agencies must consider in determining an appropriate penalty for an act of employee misconduct.”
Source: FSGB 2020-046; 3 FAM 4375 is available online here.
Note: FSGB cases are not available to read online; each record needs to be downloaded to be accessible. Please use the search button here to locate specific FSGB records.

 

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@StateDept Updates Application of U.S. Citizenship Transmission in Assisted Reproductive Technology

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Via state.gov:

Recognizing the advances in assisted reproductive technology (ART), the State Department is updating our interpretation and application of Section 301 of the Immigration and Nationality Act (INA), which establishes the requirements for acquisition of U.S. citizenship at birth.

Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements. Previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.

This updated interpretation and application of the INA takes into account the realities of modern families and advances in ART from when the Act was enacted in 1952.

This change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements established in the INA. Requirements for children born to unmarried parents remain unchanged.

At the same time, we remain vigilant to the risks of citizenship fraud, exploitation, and abuse. As with all citizenship and immigration benefits we examine, the Department will implement this policy in a manner that addresses these concerns.

8 FAM 304.3 Acquisition of U.S. Citizenship at Birth – Assisted Reproductive Technology has been updated.

8 FAM 304.3-1  BIRTH ABROAD TO A U.S. CITIZEN GESTATIONAL MOTHER WHO IS ALSO THE LEGAL MOTHER AT THE TIME SHE GIVES BIRTH (Birth mother, but NOT genetic mother)
(CT:CITZ-33;   04-03-2020)

a. A child born abroad to a U.S. citizen gestational mother who is also the legal parent of the child at the time of birth in the location of birth, whose genetic parents are an anonymous egg donor and the U.S. citizen husband of the gestational legal mother, is considered for citizenship purposes to be a person born in wedlock of two U.S. citizens, with a citizenship claim adjudicated under the Immigration and nationality Act (INA) 301(c).

b. A child born abroad to a U.S. citizen gestational mother who is the legal parent of the child at the time of birth in the location of birth, whose genetic parents are an anonymous sperm donor and the U.S. citizen wife of the gestational legal mother, is considered for citizenship purposes to be a person born in wedlock of two U.S. citizens, with a citizenship claim adjudicated under INA 301(c).

c.  A child born abroad to a U.S. citizen gestational mother who is the legal parent of the child at the time of birth in the location of birth, whose genetic parents are an anonymous egg donor and the non-U.S. citizen husband of the gestational legal mother, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen mother and alien father, with a citizenship claim adjudicated under INA 301(g).

d. A child born abroad to a U.S. citizen gestational mother who is the legal parent of the child at the time of birth in the location of birth, and who is not married to the genetic mother or father of the child at the time of the child’s birth, is considered for citizenship purposes to be a person born out of wedlock of a U.S. citizen mother, with a citizenship claim adjudicated under INA 309(c).

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State/OIG: Accountability of Official and Diplomatic Passports Needs Improvement

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State/OIG issued its Management Assistance Report: Accountability of Official and Diplomatic Passports of Separating Employees Needs Improvement this week.
According to the OIG, in December 2020, after it announced an audit of official and diplomatic passport records, the Office of Inspector General (OIG) was alerted that a former Department of State employee, a political appointee, allegedly kept their diplomatic passport after separating from the Department and wanted to use it in their new role with another U.S. Government organization.

Specifically: “A politically appointed Senior Advisor separated from the Department in November 2019. In 2020, President Trump appointed the former advisor to a role with another U.S. government organization. A representative from the new organization contacted the appointee’s former Department bureau because the political appointee was in possession of a diplomatic passport. The representative wanted to know whether the appointee could travel on behalf of the new organization using this diplomatic passport. The representative was informed by a bureau official that the appointee should not use the diplomatic passport.”

Excerpt from the MAR:

(U) During an audit of CA’s official and diplomatic passport records, OIG was alerted that a former Department employee had allegedly not surrendered their diplomatic passport upon separation from the Department and wanted to use it in a new role with another U.S. Government organization.24 According to the FAM, entitlement to an official or diplomatic passport ends when the employee separates from the Department, and the passport must be surrendered for cancellation.25

U) OIG found that the former employee’s diplomatic passport was listed as “issued” in ACRQ and had not been electronically cancelled by SIA. Based on that information, OIG performed additional steps to determine whether SIA had cancelled other employees’ official and diplomatic passports once separated from the Department. Specifically, OIG selected a sample of 134 official and diplomatic passports issued to employees who subsequently separated from the Department between November 2017 and September 2020. OIG found that 57 of 134 (43 percent) passports had not been electronically cancelled by SIA after the employee separated. Moreover, of the 57 that had not been electronically cancelled, 47 (82 percent) of the passports had not expired as of February 1, 2021, meaning they could still be valid.

(U) One reason for the deficiencies identified is that Department bureaus and offices did not always maintain proper accountability of passports and could not confirm whether separating employees had surrendered their passports for cancellation. When an employee’s entitlement to an official or diplomatic passport ends, but the passport is not surrendered or cancelled, the individual could misuse the passport, such as misrepresenting themselves as a representative of the U.S. Government. Doing so is a criminal offense.26

(U) Separated Employees’ Official and Diplomatic Passports

(U) Based upon a Bureau of Global Talent Management list of employees who had separated from the Department between November 2017 and September 2020, OIG identified 4,714 official and diplomatic passports associated with those employees. OIG selected a sample of 134 passports to test. 27 OIG found that 57 of 134 (43 percent) passports had not been electronically cancelled by SIA. In addition, of those 57 passports, 47 (82 percent) had not expired, as of February 1, 2021, meaning they could stil l be valid. 28 For example, one employee separated from the Department in December 2017, but the employee’s diplomatic passport was not scheduled to expire until April 2022- more than 4 years after separating from the Department.

OIG apparently followed up with 3 bureaus and 1 office to determine whether 17 former Department employees had surrendered their passport(s) and whether the bureaus or office had requested that SIA cancel the passports in accordance with the FAM. The follow-up revealed the following:

Two former CA employees:  “OIG identified two former CA employees who had diplomatic passports listed as “issued” in ACRQ. According to CA’s employee check-out list, employees are required to return special-issuance passports to SIA that were issued to them and to their family members upon separation and obtain the signature of an SIA staff member. SIA has no record of either of these two passports being returned for cancellation after the employees separated.”

Two former Office of the Secretary employees: “OIG identified two former Office of the Secretary employees who had diplomatic passports listed as “issued” in ACRQ. These two individuals had four passports issued to them. The Office of the Secretary’s employee check-out form requires departing employees to return their special-issuance passports and have the form initialed by the Office of the Secretary’s budget and travel office staff. An Office of the Secretary official stated that the office would have been in possession of three of the identified passports because the office maintains the diplomatic passports of people who travel with the Secretary of State. Because the three passports could not be found in the office, the official assumed that they were physically cancelled and returned to the individual. The Office of the Secretary could not provide information on the fourth passport. The Office of the Secretary official stated that a memorandum would have accompanied each passport to SIA for cancellation, but copies of the memoranda were not maintained .”(what the what? italics added).

Eleven former DS employees:  “OIG identified 11 former Bureau of Diplomatic Security (DS) employees who had diplomatic passports listed as “issued” in ACRQ. These 11 individuals had 16 passports issued to them, including 2 that were issued to a former Assistant Secretary. DS’s employee check-out form requires employees to return to the Employee Services Center or contact SIA about special-issuance passports that were issued to them and to their family members upon separation. A DS official stated that the two passports issued to the former Assistant Secretary were collected before he separated from the Department, but DS had not returned them to SIA. The DS official stated that a former employee, who returned as a PSC, claimed to have lost one passport but there was no comment on her second passport and another employee’s passport had been returned to CA. Three former DS employees had returned four passports in total to their DS offices; however, DS could not locate an additional passport for one of these individuals and an additional two passports for another of these individuals. The DS official further stated that DS did not have records for two of the people associated with two passports. DS may have facilitated the issuance of these passports, but they were not DS employees. DS did not provide information on the remaining 2 of 16 passports.”

OIG recommends that the Bureau of Consular Affairs “improve accountability over special-issuance passports by updating the Foreign Affairs Manual and any other relevant policy documents to require that (a) all Department of State bureaus and offices that participate in the Special Issuance Passport Program either (1) physically cancel special-issuance passports (including secondary passports) issued to a separating employee and email the Special Issuance Agency (SIA) a copy of the physically cancelled data page requesting that the passport(s) be electronically cancelled (along with returning the passport to SIA for destruction if not returned to the separating employee) or (2) if appropriate, file the special-issuance passport with SIA and (b) the Special Issuance Agency confirm that all special-issuance passports issued to the separating employee have been included in the cancellation request and electronically cancel all additional passport(s) as appropriate.”
Consular Affairs concurred with the recommendation, stating that it “will propose updates to the FAM and to the Special Issuance Passport Program.”  The bureau will also “update SIA’s cancellation and destruction SOP to confirm that all special-issuance passports issued to a separating employee have been included in the cancellation request and electronically cancel all additional passports as appropriate.”

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@StateDept Updates 12 FAM 233.4 Suspension of Security Clearance #NoTDYs

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🆕 12 FAM 233.4  Suspension of Security Clearance
(CT:DS-359;   04-27-2021)
a. When derogatory information is received regarding an employee with access to classified information, the director of the Diplomatic Security Service (DS/DSS), based on a recommendation from the senior coordinator for Security Infrastructure (DS/SI), will determine whether, considering all facts available upon receipt of the initial information, it is in the interests of the national security to suspend the employee’s access to classified information on an interim basis.  A suspension is an independent administrative procedure that does not represent a final determination and does not trigger the procedures outlined in 12 FAM 234.
b. Suspension of a security clearance may be appropriate in, but may not be limited to, the following situations:
(1)  Additional time is needed to resolve adverse information that may require additional investigation or for the individual to complete certain requirements to maintain his or her clearance;
(2)  Preparations are being made to revoke an individual’s existing access to classified information and access is suspended while the review of the determination to revoke takes place;
(3)  The individual is pending removal or separation from employment under 5 U.S.C. 7532; or
(4)  The individual has failed to submit required security forms or releases in a timely manner.
c.  In all cases where access is suspended, the individual must be notified, in writing, that his/her security clearance has been suspended.  Upon notification, the individual must turn in his or her Department-issued credentials that provide logical or physical access to classified systems or designated classified spaces/facilities and any and all Special Issuance Agency-issued passport(s) to the Office of Personnel Security and Suitability (DS/SI/PSS).  DS must in turn notify the appropriate human resource personnel or the Industrial Security Division (DS/IS/IND), Defensive Equipment and Armored Vehicle Division (DS/PSP/DEAV), and regional security officer/post security officer, as appropriate, of the suspension.  The executive office within the individual’s employing bureau is responsible for collecting any and all classified devices issued to the employee.
d. Personnel whose security clearances have been suspended may not be placed on temporary duty (TDY) statusExceptions to this policy may be considered on a case-by-case basis by DS/DSS, but are unlikely to be granted, barring exceptional circumstances.  An exception request must be submitted in writing from the individual’s bureau executive director to DS/DSS via DS/SI/PSS.
e. Suspension of a security clearance is an interim measure, and is not a substitute for the revocation procedures described in 12 FAM 234.
f.  The length of the suspension process can vary according to the nature and complexity of the case.  If, for example the suspension of a clearance is based on preliminary facts from a DS criminal investigation, Federal Bureau of Investigation (FBI) counterintelligence or other law enforcement investigation, or an Inspector General investigation, in many cases, those matters must be resolved and prosecutorial decisions rendered before the Department can use the information for administrative action.  Often, relevant evidence and witnesses are located abroad, which can also add time to the investigative process.  Recognizing these constraints, DS will work to resolve suspension cases as quickly as possible.
g. Where deemed appropriate, the director (DS/DSS) may reinstate a suspended clearance subject to conditions, which may include limitations of TDY or regular assignment, or with a warning that future incidents of a similar character may result in revocation of a security clearance.

 

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Why ‘Lack of Candor’ Can Get Federal Employees in Real Trouble

Once a year, we ask for your support to keep this blog and your dedicated blogger going. So here we are on Week #7 of our eight-week annual fundraising. Our previous funding ran out in August 2020. We recognize that blogging life has no certainty, and this year is no exception.  If you care what we do here, please see GFM: https://gofund.me/32671a27.  We could use your help. Grazie!  Merci! Gracias!

According to OPM, “lack of candor”  focuses on an employee’s duty to be forthcoming in responses with regard to all facts and information in their possession. Frederick v. Justice, 52 MSPR 126, 133 (1991); Fargnoli v. Dept. of Commerce, 123 MSPR 330 (2016). 
Federal Times/Legal Matters cited the 1998 case of Lachance v. Erickson, 118 S.Ct. 753: “…. a unanimous U.S. Supreme Court decided that a federal agency may discipline an employee who lies or lacks candor to the agency regarding alleged employment-related misconduct, including falsely denying the offense, such that the agency can discipline the employee not only for the underlying act of misconduct, but also for the lie or lack of candor. It’s the latter (the lie) that almost always results in a more severe penalty than if the employee simply admitted the underlying wrongdoing.” Read in full here.
A most public “lack of candor’ case that made relatively recent news is here.
Below is an excerpt from FSGB Case No. 2014-049. This case is notable because the grievant is a tenured DS agent who got in trouble, among other things, for not being “entirely forthcoming,” the fact that the agency has access to private emails, and how each instance of not being forthcoming becomes a specification in the charge.
HELD: The Department of State carried its burden to prove by a preponderance of the evidence that grievant, a tenured Diplomatic Security Officer, committed the acts with which he is charged. The Board found that a 10-day suspension without pay was reasonable. The grievance appeal was denied.
OVERVIEW: Grievant, a tenured Diplomatic Security (DS) Agent, appeals the Agency’s denial of his grievance in which he sought a reduction of a 10-day suspension, the penalty he received for multiple disciplinary charges. The original charges included: (1) improper personal conduct; (2) misuse of government resources; (3) lack of candor; (4) poor judgment; and (5) failure to follow regulations. Although the deciding official declined to find grievant liable for Charge 4 and although grievant takes responsibility for Charges 2, 3, and 5, he denies the misconduct alleged in Charge 1 and the reasonableness of the penalty. The deciding official determined that the 10-day suspension originally proposed remained reasonable even though one charge was not sustained. The Board concluded that agency satisfied its burden of proving that grievant committed the improper personal conduct as charged, i.e. groping a female, subordinate employee (grabbing her buttocks) at a Marine House toga party in The Board also concluded that the 10-day suspension was reasonable under the totality of the Douglas analysis and that the agency was not obligated to reduce the penalty originally proposed merely because one of the charges was not sustained.

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Snapshot: No Insurrectionists in America’s Diplomatic Service #18USC2383

Once a year, we ask for your support to keep this blog and your dedicated blogger going. So here we are on Week #7 of our eight-week annual fundraising. Our previous funding ran out in August 2020. We recognize that blogging life has no certainty, and this year is no exception.  If you care what we do here, please see GFM: https://gofund.me/32671a27.  We could use your help. Grazie!  Merci! Gracias!

 

Via 3 FAM 2210:

 

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