@StateDept Updates List of Personnel Offenses Subject to Discipline, Note Language on Freedom of Expression

Posted: 3:52 am ET
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In January 2017, Congress passed the Department of State Authorities Act: Fiscal Year 2017, which introduced new legislative requirements with regard to the Accountability Review Board (ARB) statute. On July 17, the State Department updated three FAM sub-chapters related to standards of appointment and continued employment, and the list of offenses subject to disciplinary action for both the Foreign Service and the Civil Service.

3 FAM 4130 STANDARDS FOR APPOINTMENT AND CONTINUED EMPLOYMENT

Under 3 FAM 4138, the following update has been added:

  • (12) Conduct by a senior official that demonstrates unsatisfactory leadership in relation to a security incident under review by an Accountability Review Board convened pursuant to 22 U.S.C. 4831; or
  • (13) Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.

Note that 3 FAM 4139.3  Freedom of Expression (CT:PER-860;  07-17-2017) (Uniform State/USAID)
(Applies to Foreign Service Employees)
appears to be a new addition. Further note the language here that says “An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.”

The agencies do not presume to impinge upon any of their employee’s right of expression, but the individual as an employee is obliged to protect or to refrain from unauthorized dissemination of certain types of information which the employee acquires through official duties, such as classified information, privileged financial, commercial, and other business information, and information about individuals protected by 5 U.S.C. 552a (the Privacy Act of 1974).  An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.  Such efficiency may be impeded because information appearing insignificant from a security point of view is highly sensitive by virtue of the source or manner in which it was acquired; or because creation of a poor reputation for discretion and security consciousness seriously impairs the trust and confidence the Service normally enjoys with foreign governments and individuals with whom it must deal in candor and mutual confidence.  The Department’s procedures for the expression of dissenting views on official matters are contained in 5 FAM, and for the agencies the prerequisites for public speeches or writing for publication are found in uniform State/USAID regulations in 3 FAM 4170.

Other additions/update to this subchapter includes Habitual Use of Intoxicating Beverages to Excess, Abuse of Narcotics, Drugs, or Other Controlled Substances, Loyalty and Security, and Financial Responsibility.

3 FAM 4370 says: The purpose of this subchapter is to advise employees, supervisors, and managers of some of the types of employee conduct which can result in disciplinary action.  It is intended that this material be required reading for new employees and that it be referred to during briefings on the behavior expected of employees, ethics, the Department’s leadership tenets, etc.  The Department believes that the more employees know and understand their responsibilities and the professional standards by which they are expected to abide, the less likely it is that they will engage in improper behavior that requires disciplinary action.  Disciplinary action is taken only after it has been determined that discipline, rather than less formal action, such as an admonishment, is necessary.

On duty 24 hours a day:  As explained in 3 FAM 4130, the attainment of foreign policy objectives requires the maintenance of the highest standards of conduct by employees of the Foreign Service.  Because of the uniqueness of the Foreign Service, employees serving overseas are considered to be on duty 24 hours a day, seven days a week, and must observe especially high standards of conduct during and after working hours, and when on leave or in travel status.  Accordingly, the commission after work hours of many of the offenses listed here under “Conduct on the Job” would still be punishable if it affects the ability of the individual or the agency to carry out its responsibilities or mission.  No action against a Foreign Service employee should be considered without a careful review of 3 FAM 4130.

The list is not exhaustive, but these are a few marked additions:

  • 40. Dereliction of managerial and supervisory duty by neglecting to carry out personnel management responsibilities, including failure to address conduct or performance problems, failure to complete required performance ratings or reviews, or failure to address a toxic workplace.
  • 50. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring commercial sex.
  • 51.  Sexual Assault (3 FAM 1700)
  • 52.  Violation of regulations or policies (including post policies) regarding the payment or treatment of domestic staff (3 FAM 4128)
  • 53. Failure to maintain records as required in 5 FAM 414.8 paragraph (2)
  • 54. Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.

See more 3 FAM 4370 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – FOREIGN SERVICE

The subchapter for the Civil Service appears to be entirely new:

It is impossible to list every possible punishable offense, and no attempt has been made to do this.  Employees are on notice that any violation of Department regulations could be deemed misconduct regardless of whether listed in 3 FAM 4540.  This table of penalties lists the most common types of employee misconduct.  Some offenses have been included mainly as a reminder that particular behavior is to be avoided, and in the case of certain type of offenses, like sexual assault, workplace violence, and discriminatory and sexual harassment, to understand the Department’s no-tolerance policy.

The non-exhaustive list includes 51 offenses with penalties meriting a Letter of Reprimand except for the following:

12. Improper political activity (5 U.S.C. 7321, et seq.) – suspension or removal

35. Violation of the “no strike” affidavit – removal (same penalty for Foreign Service)

39. Gifts to official supervisors¾soliciting contributions for gifts or presents to those in superior official positions, accepting gifts or presents from U.S. Government employees receiving lower salaries, or making donations as a gift or present to official supervisors (exception:  this does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, retirement, or transfer (22 CFR 1203.735-202(e)) – Removal (required by 5 U.S.C. 7351) (same penalty for the Foreign Service)

Read more here: 3 FAM 4540 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – CIVIL SERVICE

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Zero-Tolerance Policy on Prostitution, Read it in the FAM or the Grievance Board

Well, it was not Secretary Panetta’s fault. He was on an official trip, which occasionally means a press conference.  And of all the questions that local reporters could have asked, one has to bring up that one about prostitutes in Brasilia and the U.S. Marines. So the journos got busy and over at the State Department, the official spokesperson got even busier.

Via the State Department Daily Press Briefing, April 25:

QUESTION: I have a question on South America —

MS. NULAND: Yeah.

QUESTION: — for what Americans might consider the ongoing soap opera involving the Secret Service, except this doesn’t involve the Secret Service. We’re talking about three U.S. Marines who apparently have been punished as well as an employee of the U.S. Embassy in Brasilia who apparently were implicated in tossing a prostitute out of a moving car sometime last year. And I wanted to find out, since we know that the Marines have been punished, who was the employee of the Embassy? Was this person an American? Was this person a local hire? What can you say about a pending lawsuit now, apparently, against the Embassy?

MS. NULAND: Well, first of all, your report of the incident in question is not accurate in terms of what actually happened. Second, this is something that happened back in December. There was a State Department employee involved. The – we did cooperate fully with the appropriate Brazilian authorities, including with the civil police. None of the Americans involved in the incident are still in Brazil. The civil police, as I understand it, are still working on their case, and no charges have been brought by the Brazilian authorities.

QUESTION: When you say that none of the people involved are still in Brazil, does that imply that the Embassy employee is an American?

MS. NULAND: Correct.

QUESTION: And does that person still work for the U.S. Government?

MS. NULAND: I do not have the answer to that. I believe so. But as you know, we don’t talk about our personnel for privacy reasons.

QUESTION: What is the policy? Much has been made about the Secret Service reviewing its standards of behavior for its employees when they’re detailed overseas. What is the standard for the State Department and its employees and how they’re expected to behave, conform to local laws overseas?

MS. NULAND: We have a zero-tolerance policy for any kind of conduct of the kind that was of – that involves prostitution or anything of that nature. I can give you the Foreign Affairs Manual regulations, if that’s helpful to you.

QUESTION: Mm-hmm.

MS. NULAND: Not only for the reasons of morality and local law, but also because any kind of conduct of that kind exposes our employees to blackmail and other things.

QUESTION: Even though that a country like Colombia may have legalized activity in this (inaudible)?

MS. NULAND: Correct.

QUESTION: Just a couple things on that. What about the description that you were read of the incident isn’t correct?

MS. NULAND: Well, Ros talked about somebody being thrown out of a car and this kind of thing. That is not what happened in this case.

QUESTION: What did happen?

QUESTION: Because that’s the description that the Secretary of Defense offered to reporters who were traveling with him. So —

MS. NULAND: Our information is that after four Embassy personnel left the club, the – a woman involved in this incident attempted to open a car door and get into a closed and moving vehicle. She was not able to do so. She fell and she injured herself. All of the Embassy personnel involved in this incident were interviewed by the Brazilian civil police. We have also conducted our own investigation into the incident, and we’ve taken all the appropriate steps regarding the individuals involved consistent with our laws and our regulations.

QUESTION: Did these – did any of these – in particular, the Embassy employee, did they violate any rule?

MS. NULAND: Well, as I said, they haven’t been charged by Brazilian authorities.

QUESTION: Right. But I mean any of the FAM rules.

MS. NULAND: I’m not going to get into the precise adjudication of the case for reasons of privacy with regard to our employee.

QUESTION: Well, yeah, but you said that none of the people are still in the country.

MS. NULAND: Correct.

QUESTION: But someone can be moved without being punished. I mean, you could be transferred just simply because this person – for another reason. So do you know if there was any – was there any reprimand or punishment handed out, and was there any reason to? Did they – did these people do anything wrong?

MS. NULAND: Again, my information is that we conducted our own investigation of this issue, and we took the appropriate steps. What I’m not at liberty to get into is what steps those might have been, given the privacy issues involving the employee. And that’s our policy that we don’t talk about disciplinary steps taken with employees.

QUESTION: Well, the Secret Service didn’t either until just recently.

MS. NULAND: I understand that.

QUESTION: Well, that’s why it’s important to know whether they actually did something wrong or they were just transferred or moved to – or demoted or whatever. I mean, maybe – I mean, the description that you just read, it sounds like it could be perfectly plausible that these people didn’t do anything wrong at all. So that’s —

MS. NULAND: And it may well be. I just don’t have information with regard to the case beyond what I’ve just given you.

QUESTION: Well, I would suggest that the Department might want to come clean on this, considering the interest in the – in that. The other thing is that in the FAM, it talks about – it said “notorious behavior” or something like that. But it only talks about that being a problem if it were to become publicly known.

MS. NULAND: Well, I don’t have the FAM in front of me. I think I should get it for you.

QUESTION: So I’m not sure I – okay. But I’m not – I’m curious as to – you say it’s a zero-tolerance policy, but it’s not clear to me that it is, in fact, zero tolerance if the only way it gets you into trouble is if other people find out about it.

MS. NULAND: But the problem – but this is the problem. This is why you have to have a zero-tolerance policy, because at any given time, if you open yourself up to such behavior, it could become known. And you can’t, as somebody engaged in behavior of that kind, predict when that might happen. And so you’re immediately vulnerable, and so is the U.S. Government. So that’s why we have the regulations that we have.

QUESTION: Okay. Can we —

QUESTION: Is there a lawsuit pending against the U.S. Government?

MS. NULAND: As I said, we have – I have information to indicate that there have been no charges filed by the – in Brazil.

QUESTION: FAM stands for foreign manual?

QUESTION: Wait, wait. I just want to make sure that you understand that – what I’m trying to get. I want – basically, I want to know if the people involved in this violated that FAM regulation.

MS. NULAND: I understand that, and I – my expectation is that we are not going to talk about an individual personnel case from the podium.

QUESTION: I’m just curious as to what FAM stands for.

MS. NULAND: Sorry. Foreign Affairs Manual, which are our published rules and regulations for ourselves. But anybody who’s interested in those, we’ll get them for you. I did have them a couple of days ago. I don’t have them here.

The April 26 DPB is here where Ms. Nuland gave a shout-out to all the Take Your Kids to Work kids and the Columbia University students who attended the Daily Press Briefing before wrestling with more non-G rating questions.

MS. NULAND: I can’t, based on one press article, evaluate what a “business like this” is. I’m not sure what this establishment involves itself with, what else might go on there. But what I can tell you is, as we discussed yesterday, under the Foreign Affairs Manual, members of the Foreign Service are prohibited from engaging in notoriously disgraceful conduct, which includes frequenting prostitutes and engaging in public or promiscuous sexual relations or engaging in sexual activity that could open the employee up to the possibility of blackmail, coercion, or improper influence. So the degree to which any employee requires investigation, that’s the standard that they’re held to. And what a subject to be talking about on Bring Your Kid to Work Day. (Laughter.)

The relevant regs that govern this appears to be 3 FAM 4130 STANDARDS FOR APPOINTMENT AND CONTINUED EMPLOYMENT, the only one we could find that mentions “prostitutes” (moral turpitude issues for visas excluded).  More specifically 3 FAM 4139.14 Notoriously Disgraceful Conduct, which states:

“Notoriously disgraceful conduct is that conduct which, were it to become widely known, would embarrass, discredit, or subject to opprobrium the perpetrator, the Foreign Service, and the United States. Examples of such conduct include but are not limited to the frequenting of prostitutes, engaging in public or promiscuous sexual relations, spousal abuse, neglect or abuse of children, manufacturing or distributing pornography, entering into debts the employee could not pay, or making use of one’s position or immunity to profit or to provide favor to another (see also 5 CFR, Part 2635) or to create the impression of gaining or giving improper favor. Disqualification of a candidate or discipline of an employee, including separation for cause, is warranted when the potential for opprobrium or contempt should the conduct become public knowledge could be reasonably expected to affect adversely the person’s ability to perform his or her own job or the agency’s ability to carry out its responsibilities. Evaluators must be carefully to avoid letting personal disapproval of such conduct influence their decisions.”

On April 23, Reuters reports that–

A 2008 State Department cable to overseas missions said “people who buy sex acts fuel the demand for sex trafficking” and that “irrespective of whether prostitution is legal in the host country, employees should not in any way abet sex trafficking or solicit people in prostitution.”  Using prostitutes is grounds for disciplinary action, which may include firing, the State Department said. Adultery can also be a disciplinary offense if the spouse is unaware, and it exposes the employee to potential blackmail.

Ms. Nuland talks about the Department’s “zero-tolerance policy for any kind of conduct of the kind that was of – that involves prostitution or anything of that nature.”

We are not into lawyering but zero-tolerance indicates the imposition of automatic punishment for infractions of an articulated rule or regulation with the goal of eliminating such infractions.  Our favorite resource says that “zero-tolerance policies forbid persons in positions of authority from exercising discretion or changing punishments to fit the circumstances subjectively; they are required to impose a pre-determined punishment regardless of individual culpability, extenuating circumstances, or history.” Which to us, means it does not matter if engaging with a prostitute happens once or half a dozen times, the punishment is the same for a little or a whole lot.

And while a Diplomatic Security Director was once quoted saying that the  State Department considers engaging prostitutes a “heinous event, ” the FAM only says one could be subject to discipline including firing.

We have located three prostitution-related cases in the Foreign Service Grievance Board all available publicly online, where the penalties range from a three-day suspension without pay to separation from service.

  • In 2007, an FSO with 20 years in the Foreign Service, with every overseas posting at a hardship post was charged for off-duty misconduct — over a seven-year period he engaged the services of prostitutes 30-40 times in {post 2}, where it is a crime, and 10-20 times in {post 1}.  The Department identified as an aggravating factor that the misconduct could have caused embarrassment and damaged U.S. interests had the FSO been arrested.  The Grievance Board (FSGB) held that a penalty of three-day suspension without pay for improper personal conduct is appropriate under the circumstances (FSGB No. 2007-011).
  • In 2008, the Department proposed the separation of an FS-02 Diplomatic Security (DS) Officer’s based on a charge that carried four specifications, all related to engaging with prostitutes including one who was allegedly an underage girl. At the time of these encounters, officer was posted overseas as the Regional Security Officer (RSO) at a U.S. Embassy (FSGB No. 2008-048). The FSGB held that the Department met its burden to prove by a preponderance of the evidence that DS Agent, should be separated from the Service based on a charge of engaging in “notoriously disgraceful conduct.
  • Last year, an FP-03 FSO who served as Deputy Principal Officer in [City, Host Country] (a two-person American Presence Post), was charged with having an extra-marital relationship without his wife’s knowledge; creating the appearance that he had engaged the services of a prostitute while on official in-country travel; denying the extramarital affair when first interviewed by a federal law enforcement officer; and taking the woman with whom he was having the affair back to her place of work in a USG vehicle after restaurant lunches (FSGB Case No. 2011-009). The FSGB held that “The Department met its burden of proof that FSO engaged in the acts of misconduct underlying the charges […] that there was a clear nexus between his behavior and the efficiency of the Service, and that the proposed penalty of a ten-day suspension is reasonable.”

So unlike what you’d expect under zero tolerance, the punishments above were not pre-determined but appears to fit the cases and circumstances subjectively. And that’s why we thought this DPB is interesting and all.

When we blogged about these cases last March, we thought out loud that it does not seem as if widespread notoriety is even required to demonstrate adverse effect on the efficiency of the Service. The potential for embarrassment and damage to U.S. interests seems as weighty as actual embarrassment and damage.

So if you engage the services of the prostitute and you self report, you get in trouble; if you don’t report it and you’re found out (because eventually they will find out), you get in trouble; if you don’t report it and you’re found out in the press, you get in trouble; if you don’t report it and there’s no press, you still get in trouble for potential damage to the service.

It also appears that the FSGB does not consider misconduct that takes place on non-working hours as a mitigating factor for any of these grievance cases: “Because of the uniqueness of the Foreign Service, employees are considered to be on duty 24 hours a day and must observe especially high standards of conduct during and after working hours and when on leave or travel status.”

And so we end up just as confused — does zero tolerance means that every transgression of this type will have a penalty, but not all transgression of this type is a firing offense?  And if that is so, wouldn’t that make this a flexible zero tolerance plus?

Domani Spero