Domestic Assault, Reporting Requirement Under 2 FAM 272, and a Troublesome Comma

Posted: 4:22 am ET
[twitter-follow screen_name=’Diplopundit’ ]

This is a grievance case about a domestic assault, an arrest, and a punctuation:

Grievant is a tenured FP-02 Financial Management Specialist, employed by the Department of State as a Regional Financial Management Officer at the REDACTED at the Executive Office of the REDACTED. He has been employed by the Department since 1997, serving both overseas and domestically.

On June 29, 2013, grievant was arrested in REDACTED on a charge of domestic assault against his wife. Grievant’s former wife reported this arrest to the Department; however, when grievant’s current spouse told authorities that the incident was a misunderstanding, the charges were dropped on July 22, 2013. On August 6, 2013, the Department of Diplomatic Security (DS) obtained a copy of the arrest report and began investigating grievant’s failure to report the incident.

DS issued a Report of Investigation (ROI), dated January 14, 2014 and on December 12, 2014, the Director of the Office of Employee Relations (HR/ERCSD) notified grievant of a proposal to suspend him for a period of five (5) calendar days without pay on a charge of Failure to Follow Policy, citing 12 FAM 272. Grievant submitted a written response to the proposal on February 20, 2015, claiming that he did not realize that he had to report the arrest because the regulation is not clear. In any event, he claimed, the arrest was reported by his ex-wife and the charges were dropped within weeks of the arrest. Finally, he claimed that the penalty was too harsh, in light of his confusion about the mandate. After reviewing grievant’s response, the Deciding Official concluded that grievant knowingly failed to report his arrest immediately after it occurred and that he was on notice of his obligation to report the arrest, both because of the “clarity” of the regulation and because grievant had previously made a mandatory report under this same provision in 2010. In the end, the Deciding Official did not credit the reasons offered by grievant and sustained the charge on April 3, 2015.

Grievant argues that the wording of 12 FAM 272 is “far from clear.” He contends that the Department’s construction of the regulation is unfair because it relies on either removing or ignoring punctuation that totally changes the meaning of the provision.

12 FAM 272 states in pertinent part:

b. Employees must immediately report information of a potentially . . . derogatory nature . . . concerning their . . .

(2) Adverse involvement with law enforcement agencies to include:

(a) Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed, or
(b) Arrests for “driving under the influence” [DUI] or “driving while intoxicated [DWI].

c. Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

[…]
The Department argues that 12 FAM 272 b should be interpreted to require disclosures by cleared employees of any and all arrests, including two traffic offenses — DUI and DWI. The only exception to this rule of mandatory disclosure, according to the Department, is that an employee is not required to disclose “minor traffic violations for which a fine or forfeiture of $150 or more is imposed.”

The agency contends that this regulation required grievant to disclose the fact of his arrest for domestic assault because it was not for a minor traffic violation. The Department concedes that “the specifics of 12 FAM 272(b) could be more precisely worded,” and “the wording of 12 FAM 272(b) could be improved,” but insists that grievant had sufficient notice that he was  required to report his arrest. The Department lastly argues that under both sections 272 b and 272 c, grievant should have reported his arrest immediately, that is, within 72 hours of his “adverse involvement with law enforcement.”

Here is the full section of the Foreign Affairs Manual:

12 FAM 272  REPORTING ADVERSE FINANCIAL SITUATIONS AND CERTAIN ARRESTS
(CT:DS-143;   02-12-2009)

a. Employees should use good judgment and discretion in recognizing and avoiding situations and/or behavior that would call into question their judgment, reliability, and trustworthiness to safeguard information and to hold a position of trust and responsibility.

b. Employees must immediately report information of a potentially derogatory nature to the Director, Office of Personnel Security and Suitability (DS/SI/PSS) concerning their:

(1)  Wage garnishments, credit judgments, repossessions, tax liens, bankruptcies, and/or intentions to file for bankruptcy; or

(2)  Adverse involvement with law enforcement agencies to include:

(a)  Arrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed; or

(b)  Arrests for “driving under the influence” or “driving while intoxicated.”

c.  Arrests must be reported in a timely fashion (i.e., within 72 hours) and must not be delayed pending the conclusion of any judicial action.

d. Employees with information they believe may have a bearing on another individual’s eligibility for access to classified information, as listed in 12 FAM 233.2, should report that information to the Director, DS/SI/PSS.

e. Reporting pursuant to this section should be in writing and directed to the Director, DS/SI/PSS, and may be either faxed to (571) 345-3191 or sent by mail to DS/SI/PSS, Attn: Director, 11th floor, SA-20.  Reports may also be emailed to DSDirectorPSS@state.gov.

f.  Cleared contractors must report information listed in paragraphs b, c, and d of this section to the Industrial Security Division (DS/IS/IND).  See 12 FAM 576.4 for additional adverse information reporting requirements.

The FSGB disagrees with the Department interpretation:

The critical language is “[a]rrests, other than minor traffic violations, for which a fine or forfeiture of $150 or more was imposed. . . .” The Department argues that this language should be interpreted as if the second comma were not there. That is, the agency would have us read the provision to require disclosure of: “(a) [All] arrests, other than minor traffic violations for which a fine or forfeiture of $150 or more was imposed. . . .” We find that while this may have been what was intended, the first rule of statutory construction is to give the words of the enactment their plain and ordinary meaning, presumably as punctuated, unless there is a clear contrary intent expressed.
[…]
We conclude that whatever the intent of the drafters, a clear delineation of what arrests are required to be reported was not captured in the language of the section 272 b(2)(a). We also conclude that both parties’ interpretations leave serious questions about which arrests were intended to be disclosed and which ones did not have to be reported.

12 FAM 270 was last updated on March 9, 2015.

Read the FSGB case below:

#

Advertisements

State Dept Employee Posted at US Embassy London Faces ‘Sextortion’ Charges in Georgia

Posted: 1:41 pm EDT
Updated: 8:09 pm PDT
[twitter-follow screen_name=’Diplopundit’ ]

 

A State Department employee based at the U.S. Embassy in London  was arrested at Hartsfield-Jackson Atlanta International Airport and is now facing charges of interstate threats, computer fraud, wire fraud, and cyberstalking. The employee identified by news reports and court documents as Michael C. Ford reportedly has a home in Alpharetta, Georgia but has worked at the U.S. Embassy in London since 2009. Typical State Department assignments are normally 3 years, sometimes with one-year extensions. The complaint does not say what work Ford has done at Embassy London or his category of employment.

During the Daily Press Briefing of May 21st, the deputy spokesperson for the State Department informed the press that the individual named in this case was a locally hired administrative support employee who was not a member of the Foreign Service.  She also said that as of May 18th, the individual is no longer working at the embassy.
.

.

The Affidavit (pdf) executed by Eric J. Kasik, Special Agent of the Department of State Diplomatic Security Service (DSS) says that on or about April 2015, DSS began investigating a target, later determined to be a U.S. Embassy London employee, Michael C. Ford (“FORD”), for allegedly engaging in a computer hacking, cyber stalking, and extortion.  We should note that the affidavit is intended to show that there is sufficient probable cause to support the complaint.

According to the affidavit supporting the criminal complaint, Diplomatic Security “identified the specific State Department computer that is located at a workstation cubicle located in the U.S. Embassy in London. Personnel from the U.S. Embassy in London told me that the only person who sits at that workstation cubicle and uses that computer is Michael C. Ford. FORD is a U.S. citizen who has worked as an Embassy employee in London since 2009.”

Item #25 on the complaint reiterates what folks already know — that there is no reasonable expectation of privacy in any communications or data transiting or stored on the information system of the State Department.

DSS computer specialists have apparently obtained copies of specific documents or files that were allegedly stored on the employee’s computer in London. Court documents cited one document as example: “a spreadsheet that appears to summarize some of FORD’s more recent criminal activities. Along the far left hand column of the spreadsheet is a list of account names for approximately 250 e-mail addresses.” Special Agent Kasik says that “DSS agents have determined that several of the accountholders appear to attend the same college in Indiana, where they belong to the same sorority. One is a 17-year-old. This leads me to believe that FORD may be targeting college-aged women throughout the U.S.”

The alleged MO is described in item #16 of the Kasik affidavit:

16. The target initially sent Jane Doe Two an e-mail message to her Google e-mail account, posing as a Google representative and claiming that Jane Doe Two’s Google e-mail account was going to be deleted unless she provided her password. Jane Doe Two provided her password, as directed. The target then apparently hacked into Jane Doe Two’s Google account, presumably using the stolen password. He then obtained, presumably from Jane Doe Two’s hacked accounts, two or more private photographs of Jane Doe Two of a sexual nature. He also obtained other PII about Jane Doe Two, including her first and last name, her address, where she worked and went to school, and her parent’s first and last names and e-mail addresses. The target then sent Jane Doe Two several threatening e-mail messages to her Google e-mail account. He admitted that he had obtained sexual photographs of Jane Doe Two and sent her the photographs as proof. He then demanded that she provide her current home address and her parents’ contact information and other PII. He warned her that, if she refused, he would e-mail the photographs of her to a list of others, listing the first and last names of several of her acquaintances. The target also threatened to post her photographs online.

The affidavit is available here (pdf) via patch.com/georgia.

WSB-TV2 Atlanta reports that Ford will be in federal court in Atlanta today for a bond hearing and that his attorneys declined to comment at this point in the case.  Click her to read the report via AP.

The case is  USA v. Ford, CRIMINAL DOCKET FOR CASE #: 1:15-mj-00386-ECS-1 in the U.S. District Court in the  Northern District of Georgia (Atlanta).

#

U.S. Embassy Caracas Issues Security Message on Recent Detention of Several U.S. Citizens in Venezuela

Posted: 00:53 EST
[twitter-follow screen_name=’Diplopundit’ ]

 

We saw this the other night:

 

On March 4, the US Embassy in Caracas issued the following security message on the recent detention of U.S. citizens in Venezuela:

The U.S. Embassy wishes to call to the attention of U.S. citizens traveling to or living in Venezuela the Government of Venezuela’s recent detention of several U.S. citizens in Venezuela. Under the Vienna Convention, if you are arrested overseas, you have the option to request that the police, prison officials, or other authorities alert the nearest U.S. embassy of your arrest and to have communications from you forwarded to the nearest U.S. embassy. In practice, the Venezuelan government frequently fails to notify the U.S. Embassy when U.S. citizens are arrested or detained, and/or delays or denies to U.S. detainees. Please ask friends or family to notify the U.S. Embassy immediately on your behalf should you be detained by government authorities.

This announcement is available on the U.S. embassy website, but is not/not available on the embassy’s Facebook or Twitter feed.  When we inquired from the embassy’s Public Affairs Office, we were told to direct our inquiry to the Consular Section. Like whaaat?

.

 

This can’t possibly be an easy time for what is already a challenging environment, so let that slide for now.  The American Citizen Service at Embassy Caracas did not respond to our inquiry.  A related note, the Diplomatic Security’s Crime and Safety report on Venezuela in 2014 says:

Harassment of U.S. citizens by airport authorities and some segments of the police are limited but do occur. Any incident should be reported to American Citizen Services (ACS) Unit at the U.S. Embassy. The ACS Unit can be reached by telephone at +58 (212) 907-8365 or by e-mail at ACSVenezuela@state.gov.

The recent detention of U.S. citizens in Venezuela is clearly an escalation beyond simple harassment.

The United States does not appear to have a bilateral agreement with Venezuela concerning mandatory notification when it comes to the arrest of U.S. nationals in Venezuela.

However, Venezuela is a party to the Vienna Convention on Consular Relations (VCCR), a multilateral treaty to which the United States and more than 170 other countries are party. This is the same treaty that President Maduro cited in announcing the reduction of U.S. Embassy staff in Caracas (see Venezuela: Nicolas Maduro’s Theory of Everything — Blame The Yanquis!).

Venezuela is also a party to Treaty of Peace, Friendship, Navigation and Commerce with the United States of America, Jan. 20, 1836, 12 Bevans 1038 (entered into force May 31, 1836), a bilateral agreement addressing consular issues with the U.S. since 1836 (see Consular Notification and Access-pdf).

Let’s stop here for a moment and look at Texas. As in Medellin v. Texas. The United States has been cited for failing to provide consular notification in cases brought by Paraguay in 1998, by Germany in 1999,and by Mexico in 2003 before the International Court of Justice.

State Department officials have travelled since 1997 but more extensively since 2003, throughout the United States to give classes and seminars about consular notification and access to federal, state, and local law enforcement, corrections and criminal justice officials.

The obligations of consular notification and access apply to U.S. citizens in foreign countries just as they apply to foreign nationals in the United States. The State Department’s guidance to the arrest of foreigners in the United States is to “treat a foreign national as you would want a U.S. citizen to be treated in a similar situation in a foreign country.”

Because when we don’t, it’s hard to make a  case that other countries should abide by their obligation for consular notification and access when U.S. citizens are arrested overseas.

And as if things are not strange enough in the U.S.-Venezuela relations, take this one:
.

.