Posted: 3:49 am ET
Via state.gov (archive):
@StateDept's gender composition last year for Senior Executive Service was 39.50% female and for the Senior Foreign Service was 32.30% female. With all the departures going on, anyone got newer stats? https://t.co/Bt2nadkAL1
— Diplopundit (@Diplopundit) March 2, 2018
Posted: 12:28 pm PT
Updated: Feb 13, 2:02 pm PT
We’ve written previously about staffing and attrition at the State Department in this blog. We’ve decided to put the staffing numbers in FY16 and FY17 next to each other for comparison. The numbers are publicly released by State/HR, and links are provided below.
Since the State Department had also released an update of its staffing numbers dated December 31, 2017 for the first quarter of FY2018, we’ve added that in the table below.
FY2016 saw a high water mark in the total number of State Department employees worldwide at 75,231. There were 13,980 Foreign Service employees (officers and specialists), 11,147 Civil Service employees and 50,104 locally employed (LE) staff members at 275 overseas posts.
The Trump Administration took office on January 20, 2017. On February 1, 2017, Rex W. Tillerson was sworn in as the 69th Secretary of State. With the exception of the month of January, note that Secretary Tillerson was at the helm at State for eight months in FY2017 (February-September 30, 2017), and the first three months of FY2018 (October 2017-December 2017).
With 75,231 overall number as our marker, we find that the State Department overall was reduced by 351 employees at the end of FY2017. On the first quarter of FY18, this number was reduced further by 476 employees. Between September 30, 2016, and December 31, 2017 — 15 months — the agency was reduced overall by 827 employees (including LE employees).
FY2017 did see six, that’s right, six new FS specialists, and 256 LE staffers added to its rolls (see That FSS Number for additional discussion on that six FSS gains). Note that LE staffers are generally host country nationals paid in local compensation plans with non-dollarized salaries.
Data also shows that there were 68 more FS/CS employees overseas. We interpret this to mean 68 more FS/CS employees assigned overseas, and not/not necessarily new hires. The FSO ranks were reduced by 107 officers, and the Civil Service corps was reduced by 500 out of a total of 25,127 American employees by September 2017. The Foreign Service was further reduced by 197 employees, and the Civil Service reduced by 144 employees by December 31, 2017.
Tillerson on Track
Mr. Tillerson goal is reportedly to reduce the department’s full-time American employees by 8 percent by the end of September 2018, the date by which Mr. Tillerson has purportedly promised to complete the first round of cuts. A November 2017 report calculated the 8 percent as 1,982 people with 1,341 expected to retire or quit, and 641 employees expected to take buyouts. The data below indicates that the State Department’s American FS/CS employees at 25,127 in FY2016 was reduced by 948 employees by December 31, 2017, a reduction of 3.8 percent. If the buyouts, as reported, occurs in April 2018, Tillerson would be at 6.3 percent reduction by spring, with five months to get to the remaining 1.7 percent to make his 8 percent target by September 30. And this is just the first round.
In 2016, the State Department already projected that between FY 2016 and FY 2020, close to 5,400 career FS and CS employees (21 percent) will leave the Department due to various types of attrition (non-retirements, retirements, voluntary, involuntary). That’s an average of 1,080 reduction each fiscal year from FY2016-FY2020. Even without a threat of staff reduction, it was already anticipated that the State Department was going to shrink by 1,080 employees every year until 2020. We think that part of this estimate has to do with the graying of the federal service, and the mandatory age retirement for the Foreign Service, but also because of the built-in RIF in the Foreign Service with its “up or out” system. Anytime we hear the State Department trimming its promotion numbers, we also anticipate more departures for people who could not get promoted.
It’s Not a RIF, Just Shrinking the Promotion Numbers
Tillerson made the staff reduction his own by announcing a staffing cut and a buyout. This was obviously a mistake, but what do we know? What this signals to us is a lack of understanding of how the system was intended to work most especially in the Foreign Service. This is a mistake that he could have easily avoided had he not walled himself away from career people who knew the building and the system that he was trying to redesign.
Yes, the reduction in State Department workforce was in the stars whether Tillerson became Secretary of State or not. There is a regular brain drain because the Foreign Service is an “up or out” system. Some diplomats who are at the prime of their careers but are not promoted are often forced to leave. But to get more people to leave, Tillerson does not even need to announce a RIF, he only need to shrink the promotion numbers. A source familiar with the numbers told us that in 2017, 41 FSOs were promoted from FS01 to the Senior Foreign Service (SFS), down from an average over the past five years of 101, or a 60% decrease. Across the Foreign Service, we understand that the average decrease in promotion numbers is about 30% percent.
In the rules books, the Director General of the Foreign Service is supposed to determine the number of promotions of members of the Foreign Service reviewed by the selection boards by “taking into account such factors as vacancies, availability of funds, estimated attrition, projected needs of the Service, and the need for retention of expertise and experience.” This decisions is based on “a systematic, long-term projection of personnel flows and needs designed to provide: (1) A regular, predictable flow of recruitment into the Service; (2) Effective career development to meet Service needs; and (3) A regular, predictable flow of talent upwards through the ranks and into the SFS.”
The State Department does not even have a Senate-confirmed DGHR. The last Senate confirmed Director General Arnold Chacon left his post in June 2017 (see DGHR Arnold Chacón Steps Down, One More @StateDept Office Goes Vacant). Bill Todd who is the Principal Deputy Assistant Secretary is now acting Director General of the Foreign Service & acting Director of Human Resources, as well as “M” Coordinator. The Trump Administration has nominated ex-FSO Stephen Akard to be the next DGHR (see Ten Ex-Directors General Call on the SFRC to Oppose Stephen Akard’s Confirmation).
Burning Both Ends of the Candle
The surprise is not that people are leaving, it is that people that you don’t expect to leave now are leaving or have left. An ambassador who retires in the middle of a three-year tenure. The highest ranking female diplomat who potentially could have been “P” retired. A senior diplomat retiring while at the pinnacle of his diplomatic career five years short of mandatory age retirement. A talented diplomat calling it quits while there’s a whole new world yet to be explored. The highest numbers of departures are occurring at the Minister Counselor level, and at the FS01s and below level (PDF). That said, these numbers as released and shown below, are still within the previously projected attrition numbers for FY2017. The FY2018 numbers is the one we’re anxious to see.
Tillerson’s staff reduction is not even the most glaring problem he gave himself. Basically, Tillerson’s State Department is burning both ends of the candle. The diplomatic ranks were reduced by 225 in December 31 last year but State will reportedly only hire a hundred in FY2018. There are rumors of only hiring at 3 for 1 to attrition. If this is the plan, Tillerson will surely shrink the diplomatic service but by not ensuring a smooth flow of new blood into the Service, he will put the institution and its people at risk. For instance, there are about 2,000 Diplomatic Security agents. Let’s say 21 percent or 420 agents leave the agency between now and 2020, and the State Department hires 140 new agents during the same period. The work will still be there, it will just remain unfilled or the positions get eliminated. A three-person security office could shrink to two, to one, or none. In the meantime, the United States has 275 posts overseas, including high threat/high risk priority posts that require those security agents. What happens then? Are we going to see more contractors? Since contractor numbers are typically not released by the State Department, we won’t have any idea how many will supplement the agency’s workforce domestically and overseas.
The Foreign Service Specialists (FSS) Count
So if we look at the first table below (thanks JR), note that the total Foreign Service Specialists (FSSs) number is 5,821. A State Department release in November 29, 2017 confirms the 5,821 figure. But this figure as you can see here (PDF) includes Consular Fellow gains (previously known as Consular Adjudicators) in FY2017 (231), FY2016 (141), FY2015 (70), FY2014 (35) and FY2013 (37). The numbers are not clear from FY13 and FY14 because the counts were not done at the end of the fiscal year but midyear and end of the year. As best we can tell, the State Department HR Fact Sheet counts Consular Fellows as part of its FSS count in fiscal years 2015-2017.
The result is that the career FSS count is artificially inflated by the inclusion of the Consular Fellows in the count. While the first table below shows an FSS gain of six specialists, in reality, the CF inclusion in the count hides the career FSS losses in the last three fiscal years that ended. Why does that count matter? Because the Consular Fellow LNA appointments max out at 60 months.
Consular Fellows are hired via limited non-career appointments (LNAs). The Consular Fellows program, similar to its predecessor, the Consular Adjudicator Limited Non-Career Appointment (CA LNA) program, is not an alternate entry method to the Foreign Service or the U.S. Department of State, i.e. this service does not lead to onward employment at the U.S. Department of State or with the U.S. government. In fact state.gov notes that Consular Fellows are welcome to apply to become Foreign Service Specialists, Foreign Service Generalists, or Civil Service employees, but they must complete the standard application and assessment processes. So for Congressional folks keeping track of the career Foreign Service numbers, this would be a notable distinction.
Trump’s 2019 Budget and the Next 27% Cut
Trump’s fiscal 2019 proposed budget includes a 27% cut to the State Department. This potentially could get a lot worse; when the Administration starts shrinking programs, and priorities at this rate, it will inevitably create a cascading effect impacting overseas presence and personnel. State Department officials may say no post closures, and no reduction-in-force now but we probably will see those down the road, even if not immediately. Remember when State was shrunk in the early 1990’s? It took a while before people could start picking up the pieces, and the replenishment for the workforce did not happen until almost a decade later. (see The Last Time @StateDept Had a 27% Budget Cut, Congress Killed ACDA and USIA).
Still, we have to remind ourselves that the budget proposal is just that, a proposal, and that Congress has the power of the purse. Is it foolish to hang our hopes on our elected reps?
HR Fact Sheet as of December 31, 2017 (PDF)
HR Fact Sheet as of 9/30/2016 (Archived PDF)
HR Fact Sheet as of 9/30/2015 (PDF)
Below is a bonus chart with the FY2015 staffing numbers (yellow column#1), and the gains/losses between September 2015 to December 2017 (yellow column ##2). We’re sure that Mr. Tillerson’s aides would say that yes, there are staffing losses but look, the State Department’s overall workforce is still larger at the end of 2017 when compared to 2015. And that is true. Except that if you look closely at the numbers, you will quickly note that the gains of 1,346 employees are all LE staffers on local compensation.
Posted: 1:33 am ET
On Monday, December 18, the State Department reportedly announced that Secretary Tillerson approved a number of additional personnel actions as follows:
#1. An A-100 class with a start date of March 19, 2018
#2. A Specialist Class with a start date of April 2, 2018
#3. Resumption of Civill Service lateral movement within the Department beginning January 7, 2018
#4. Resumption of internal Civil Service competitive promotions beginning January 7, 2018
#5. Approval of 30 new Presidential Management Fellows (PMF) hires from the 2016/2017 PMF cohorts
#6. Approval of an additional 20 PMF hires from the 2018 cohort
#7. Conversion of 20 pathways interns to full-time Civil Service permanent positions
“The State Department has now confirmed intent to hire only 101 new FSOs (including 55 Pickering and Rangel Fellows) in 2018, down from 366 in 2016…
That hiring target—101—is the lowest in at least a quarter of a century.“ https://t.co/92ILNZVSK8
— Scott Cheney-Peters (@SCheneyPeters) December 16, 2017
In related news, on December 12, Tillerson announced several immediate changes attributed to the redesign at the State Department (see Tillerson Announces “Immediate Changes” From Redesign, USAID is Now in the GAL – Yay?). The number one item on the list of “wins” was the “Expanded Opportunities for Eligible Family Members” and the announcement that the State Department was “lifting the hiring freeze for 2018 EFMs and providing the bureaus with greater placement flexibility.”
We have since learned from two sources that “lifting” the hiring freeze actually means a 50% lift. We understand that Bureaus will be allowed to fill 50% of their EFM jobs, and they will have the authority to make those decisions themselves, instead of those requests going all the way up the godpod.
Also it turns out USAID is also already in the GAL (the last item on Tillerson’s list of immediate changes)? What’s that? Tillerson’s inner circle celebrating the town hall should not do a happy dance? And no cookies either?
But seriously — what process did the redesign teams go through that resulted in this decision to lift, excuse me, lift the hiring freeze for 50% of 2018 EFMs?
What kind of study are they conducting regarding the rest of the EFM jobs?
What was the decision process for imposing this freeze in the first place, we’d really like to know.
Because unless Tillerson is planning on some post closures, these EFM jobs are needed at our overseas posts whether there’s a redesign or not, whether it’s now or later. The work will still be there: community liaison, mailroom clerk, security escort, security office assistant, general service assistant, etc. Are they going to come back after the “redesign” is completed and say go ahead, you may now hire the other 50% because we’ve figured out posts need them afterall? Or are they going to lift the other 50% the next time Tillerson gets into a dire press patch, and needs another “win”.
So you know, it’s good that 50% of diplomatic spouses waiting for jobs overseas will now be able to fill some jobs but this still doesn’t make sense. To us, this still feels capricious.
Posted: 2:01 am ET
Note: Click on lower right hand arrow on the Cloudup screen to maximize the reading area.
Posted: 1:33 am ET
Updated: 11:01 am PT
The following are clips with the names of Civil Service and Foreign Service employees who retired from the State Department from January to October this year. The names were published in the monthly trade magazine of the State Department. It looks like there are three non-career appointees included in the lists below.
Political ambassadors conclude their appointments at the end of their tours, they do not “retire” from the Foreign Service as they are not career members. (Correction: We understand that if, at the time of conclusion of the non-career appointment, the person has sufficient federal government service (in various capacities during an entire career) and is otherwise eligible for federal retirement benefits, then the person can, in fact, “retire.” We do not know if they get Foreign Service retirement). We’ve asked if these names come from the Bureau of Human Resources but we have not received a response as of this writing. An unofficial source told us that these names come from HR but that there is typically a lag of a couple of months from actual retirement to publication of the name in State Magazine.
The *June and *July/August lists are particularly problematic due to some duplication of names on both lists but we’re posting these here for a snapshot of the departures. This does not include non-retirement separations. Based on these imperfect lists, the total retirements for the first 10 months of 2017 are at least a couple hundred employees each for the Civil Service and the Foreign Service. And we still have a couple months to go.
However, since the federal government manages its records by fiscal year, DGHR should already have the retirements and non-retirement separation data for FY2017 that ended on September 30, 2017. The State Department has always been proud of its low attrition rate, if our HR friends want to tout the FY2017 attrition data, let us know.
Posted: 3:52 am ET
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
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:
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
Posted: 2:59 pm PT
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House Republicans this week reinstated an arcane procedural rule that enables lawmakers to reach deep into the budget and slash the pay of an individual federal worker — down to a $1 — a move that threatens to upend the 130-year-old civil service.
The Holman Rule, named after an Indiana congressman who devised it in 1876, empowers any member of Congress to offer an amendment to an appropriations bill that targets a specific government employee or program.
A majority of the House and the Senate would still have to approve any such amendment, but opponents and supporters agree that it puts agencies and the public on notice that their work is now vulnerable to the whims of elected officials.
Via Federal News Radio:
The House of Representatives voted on party lines and approved the rules package for the 115th Congress. It reinstates the “Holman Rule,” a little-known provision that allows lawmakers to bring an amendment on an appropriations bill to the House floor that may “retrench” agency spending, reduce the number of federal employees in a particular agency or cut the salary or “compensation of any person paid out of the Treasury of the United States.”
Excerpt from the GOP Rules Package from January 3, 2017:
Holman Rule – A new standing order for the first session of the 115th Congress reinstates the “Holman Rule”, most of which was removed from the standing rules in 1983. The standing order functions as an exception to clause 2 of rule XXI to allow provisions changing law in certain limited circumstances. Under this order, a provision in a general appropriation bill or an amendment thereto may contain legislation to retrench expenditures by (1) reducing amounts of money in the bill, (2) reducing the number of salaries of Federal employees, or (3) reducing the compensation of any person paid by the Treasury. To qualify for treatment under this order, an amendment must be offered after the reading of the bill and must comply with all applicable rules of the House, such as germaneness. The purpose of this provision is to see if the reinstatement of the Holman rule will provide Members with additional tools to reduce spending during consideration of the regular general appropriation bill.
FreedomWorks which praised the inclusion of the “Holman Rule” in the rules package that passed the House of Representatives by a vote of 234 to 193 says:
The provision, which is effective only for the first session of the 115th Congress, allows Members to introduce amendments to appropriations bills on the floor of the lower chamber to reduce the size of a federal agency’s workforce or adjust compensation for certain federal employees, who, according to a 2015 study by the Cato Institute, earn an average of 78 percent more than workers in the private sector.
The group also puts out a backgrounder for the Holman Rule, which we are not acquainted of, until today:
Named after Rep. William Holman (D-Ind.), the “Holman Rule” was first adopted by the House in 1876. Holman, a member of the House Appropriations Committee and a fierce opponent of federal spending, introduced the amendment to reduce extraneous spending. The Holman Rule was part of the House rules from 1876 until 1895. It was adopted again as part of the rules in 1911 and survived intact until 1983, when Democrats, who had the majority in the House, nixed it.
Some House Democrats complained about the reinstatement of the Holman Rule prior to the vote on the rules package, foolishly suggesting that it is an attack on federal workers. “Reinstating the so-called ‘Holman Rule’ would allow any Member of Congress to simply offer an amendment that could reduce the salary of any federal employee, or eliminate a federal employee’s position without hearings, testimony, or due process,” Reps. Don Beyer (D-Va.), Steny Hoyer (D-Md.), Gerry Connolly (D-Va.), John Delaney (D-Md.), and Delegate Eleanor Holmes Norton (D-D.C.) said in a press release. “[W]ith this rule House Republicans would instead treat these civil servants like political pawns and scapegoats.”
FreedomWorks notes that “the reinstatement of the Holman Rule is temporary, lasting only for the first session of the 115th Congress, or the 2017 legislative year. But its revival is a trial run that could lead to spending cuts for federal agencies that often run roughshod over congressional authority in Article I of the Constitution, as well as achieve the goal of reducing federal spending as the national debt approaches $20 trillion.”
So a “trial run” for this legislative year, but could become normal in the years ahead. The reinstatement of the Holman Rule was lost in the uproar over the proposed gutting of the Office of Congressional Ethics (OCE). The WaPo report says that as “a concession to Republicans who oppose this rule, leaders designed it to expire in one year unless lawmakers vote to keep it in place.” But the same report quotes House Majority Leader Kevin McCarthy (R-Calif.) saying that “insofar as voters elected Trump with the hope of fundamentally changing the way government works, the Holman Rule gives Congress a chance to do just that.”
“This is a big rule change inside there that allows people to get at places they hadn’t before,” McCarthy told reporters.
Note that WaPo says a majority of the House and the Senate would still have to approve any such amendment to an appropriations bill that targets a specific government employee or program, but that this puts agencies and the public on notice that their work is now vulnerable to the whims of elected officials.
So, we’re now all just waiting to see which congressional representative will be the first to throw a tantrum and attempt to get a federal employee’s salary down to $1.00?
Posted: 12:21 am ET
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Via State/OIG’s archive: Review of the Department of State Disciplinary Process:
Foreign Service and Civil Service employees have the right to file a grievance to contest the penalty in the letter from the deciding official. Initially, the Grievance Staff reviews grievances for the Department and reexamines all case materials. The Grievance Staff reviews about 130 Foreign Service and 20 Civil Service grievances of all types each year. A deputy assistant secretary for DGHR makes a determination on each grievance. That agency-level decision can be further appealed through separate Foreign Service and Civil Service processes. Under 3 Foreign Affairs Manual (FAM) 4430, “upon request of the grievant, the agency shall suspend its action” in cases involving suspension, separation, or termination during the review process. This provision applies only to the Foreign Service.
Foreign Service Appeals Process
A Foreign Service employee may appeal an agency-level decision to the Foreign Service Grievance Board (FSGB), an independent grievance appeals forum established through the Foreign Service Act of 1980. Foreign Service employees facing separation on grounds of misconduct have a right to an automatic hearing before the FSGB. Attorneys or American Foreign Service Association representatives may represent the employee. The FSGB may uphold the agency-level decision, mandate a lesser penalty, or dismiss the case entirely. In 2013, it took an average of 43 weeks for the FSGB to process a case from filing date to final decision.
Foreign Service employees may request and the FSGB may grant “interim relief” (sometimes called “prescriptive relief”) to suspend disciplinary action while an appeal is in process.
The 1995 OIG audit of the FSGB, in addressing the perception that the FSGB routinely overturns the Department’s disciplinary actions, found that “the grievance system is used by a relatively small number of employees, the majority of whom do not prevail.”10 Data from the 2008–2013 FSGB annual reports indicate that this conclusion remains valid. During this 6-year period, the FSGB adjudicated 63 appeals of disciplinary actions. The FSGB partially upheld and partially reversed the Department in 15 cases and fully reversed the Department in only 4 cases. In eight cases, the nature of the FSGB’s decision is not reported in the annual report.
Civil Service Appeals Process
Civil Service employees suspended for more than 14 calendar days or removed or reduced in grade or pay may appeal to the Merit Systems Protection Board (MSPB), an independent quasi-judicial agency established in 1979 to protect Civil Service employees. Employees covered by a collective bargaining agreement with the American Federation of Government Employees or the National Federation of Federal Employees may file a grievance under the agreement or appeal to the MSPB, but not both. The Civil Service appeals process has no mechanism for interim relief.
MSPB data concerning cases originating in the Department do not disaggregate appeals related to disciplinary matters from appeals of all types. However, relatively few Civil Service cases of all types originating in the Department reach the MSPB. In FY 2012, the MSPB received 29 appeals from Department Civil Service employees: 21 were dismissed for lack of jurisdiction or timeliness, and 4 were settled. The MSPB adjudicated only four and upheld the Department in all cases.
Posted: 2:23 pm ET
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On November 29, President Obama signed an executive order that allows the appointment of certain limited non-career appointees into the competitive service. The E.O says “the head of any agency in the executive branch may appoint in the competitive service an individual who served for at least 48 months of continuous service in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.” It looks like LNAs can be appointed to any civil service position at any agency but does not provide for their appointment into the Foreign Service.
Republished below in full, the original text is available here.
PROVIDING FOR THE APPOINTMENT IN THE COMPETITIVE SERVICE OF CERTAIN EMPLOYEES OF THE FOREIGN SERVICE
THE WHITE HOUSE
November 29, 2016.
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. Policy. The Federal Government benefits from a workforce that can be recruited from the broadest and deepest pools of qualified candidates for our highly competitive, merit-based positions. The recruitment and retention of workforce participants who serve in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, Public Law 96-465 (22 U.S.C. 3949), as amended, are critical to our ability to meet consular staffing levels (now in substantial deficit) and thereby enhance our capacity to meet high national security standards and efficiently process visas in accordance with our policy of “open doors, safe borders.” Program participants undergo a rigorous merit-based evaluation process, which includes a written test and an oral assessment and to which a veteran preference applies, and develop advanced- to superior-level skills in languages and in cultural competence in particular regions, skills that are essential for mission-critical positions throughout the entire Federal workforce.
Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that represents all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.
Sec. 2. The head of any agency in the executive branch may appoint in the competitive service an individual who served for at least 48 months of continuous service in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.
Sec. 3. In order to be eligible for noncompetitive appointment to positions under section 2 of this order, such an individual must:
(a) have received a satisfactory or better performance rating (or equivalent) for service under the qualifying Limited Non-Career Appointment; and
(b) exercise the eligibility for noncompetitive appointment within a period of 1 year after completion of the qualifying Limited Non-Career Appointment. Such period may be extended to not more than 3 years in the case of persons who, following such service, are engaged in military service, in the pursuit of studies at an institution of higher learning, or in other activities that, in the view of the appointing authority, warrant an extension of such period. Such period may also be extended to permit the adjudication of a background investigation.
Sec. 4. A person appointed under section 2 of this order shall become a career conditional employee.
Sec. 5. Any law, Executive Order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify a person for appointment under section 2 of this order. Examples of disqualifying criteria include restrictions on employing persons who are not U.S. citizens or nationals, who have violated the anti-nepotism provisions of the Civil Service Reform Act, 5 U.S.C. 2302(b)(7), 3110, who have knowingly and willfully failed to register for Selective Service when required to do so, 5 U.S.C. 3328(a)(2), who do not meet occupational qualifying standards prescribed by OPM, or who do not meet suitability factors prescribed by OPM.
Sec. 6. The Office of Personnel Management is authorized to issue such additional regulations as may be necessary to implement this order. Any individual who meets the terms of this order, however, is eligible for noncompetitive eligibility with or without additional regulations.
Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.