FSGB: “Service Need Differential” Posts Get a Bad Recruitment Ad

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According to the Foreign Affairs Manual, a ‘Service Need Differential’ [SND] is an allowance of 15 percent of base salary for employees serving in Historically-Difficult-to-Staff (HDS) posts with an at least 20 percent hardship differential and a standard two-year tour of duty, when the employee agrees to serve for a third year.  Some of the “at least 20 percent” hardship differential posts includes Albania, Azerbaijan, Egypt, a couple posts in China, and more. Djibouti, Ghana, Haiti, Afghanistan, CAR, Cuba, DRC, and some posts in India are in the 25 percent category. Afghanistan, Somalia, Bangladesh, Chad, Iraq, Pakistan are some of the 35 percent hardship posts. The hardship considered includes physical and social isolation; political violence, terrorism and harassment; medical and hospital availability; environmental conditions and sanitation; crime; climate; housing and infrastructure to name some. See more here.
The grievance case below concerns SND payments to a DS agent who served at one of these “historically-difficult-to-staff” posts.  Instead of the State Department just acknowledging that a mistake had been made in this case, the State Department made the argument that the grievant, “as a mid-level employee with several years of experience and facing his third overseas assignment” should have known better to ask the right questions. Whoa!  The agency is saying, it’s his fault, hey?
Footnote indicates that “with respect to the AO’s [Assignments Officer] indication of the candidate’s SND election in the assignment panel notes, the record indicates that the assignment panel notes did in fact include a comment that grievant’s SND decision was “pending.” However, grievant denies that he made that (or any) SND-related election, or that he communicated to his AO that he had elected to defer his decision until after arrival at post.”
The FSGB decided that the grievance appeal was sustained. The Department was ordered to reimburse grievant for SND he would have received from the date of his arrival at post, consistent with the provisions of the Back Pay Act. 5 U.S. Code § 5596.
Via FSGB Case No. 2020-050

HELD – The Foreign Service Grievance Board found that grievant met his burden to show that the Department failed to implement its Standard Operating Procedure SOP B-22 in the process of assigning him to a Service Need Differential (SND) post, a procedural error that resulted in harmful denial to him of SND payments for a period of time. The grievance was sustained.

CASE SUMMARY – Grievant accepted a handshake for assignment to an SND-designated post. He argued that in the process of assigning him to post, the Department failed to implement any of the “Assignment Procedures” specified in its relevant Standard Operating Procedure, SOP B-22. These included provisions that the Assignment Officer should contact grievant by email, provide information regarding the SND Program (including a specified “standard disclosure” covering SND options and the consequences of each), request the employee to indicate which SND option he/she elects, and relay that election to the assignment panel. The SOP advises that an assignment to an SND-designated post should not be made unless the foregoing provisions are carried out. The assignment panel, on the basis of notes of unspecified origin to the effect that grievant’s SND decision was “pending,” assigned him for a two-year tour-of-duty which made him ineligible for SND unless he should later request, and be granted, an extension of his tour to three years’ duration.

The agency denied that grievant had carried his burden of proving that his Assignment Officer (AO) failed to implement SOP B-22, but that even if the AO had failed to do so, grievant as an experienced, mid-level bidder, should not be absolved of any and all responsibility to understand the SND assignment procedures as they applied to him and to seek clarification and/or assistance if he were confused or concerned about the process. Further, the Department argued that in the agency-level grievance, it had provided to grievant (albeit on different grounds, which are abandoned in the instant grievance appeal), all relief to which he is entitled.

The Board found factually that the provisions of SOP B-22 had not been implemented by the Department in grievant’s case. The Board found further that the language of the Assignment Procedures of SOP B-22 is particularly directive, going as far as to advise that assignment to an SND post should not be made unless its stipulated provisions have been carried out. On the issue of harm, the Board found that the agency’s failure to implement the SOP constituted a significant procedural error which denied grievant the opportunity to receive information, counseling, and assistance stipulated in the policy before the panel assigned him to a two-year non-SND assignment which record evidence established he did not elect. The Board ordered payment of SND from the date of grievant’s arrival at post.

Background:

Grievant is an FP-03 Special Agent with the Bureau of Diplomatic Security (“DS”) who has worked for the Department since 2012. He is currently serving as an Assistant Regional Security Officer (“ARSO”) at post, his third assignment. The matters grieved in the instant action concern the manner of grievant’s assignment to, and extension at, post, as they impacted his receipt of SND payments.
[…]
On January 23, 2019, the Department issued cable , captioned “(PII) TMONE – ASSIGNMENT NOTIFICATION – PERSONNEL ASSIGNMENT ([grievant’s name and social security number redacted] FP-03, 2501, Special Agent) (“TM-1,” “the assignment cable”).3 Among other information pertaining to the position, the TM-1 noted that the assignment was for a 24-month tour with an estimated arrival date at post of August 2019. The cable contained the names of grievant’s Assignment/Training Officer [sic], Assignment Technician, and CDO as points of contact. The TM-1 did not identify the post as an SND- designated post, nor did it provide any information on the SND Program or how to participate therein.
[…]
After being informed, in a general manner, of the SND program by colleagues, grievant reached out on November 25, 2019, to post’s human resources officer (“HRO”) by email and requested “procedures to extend for one year and activate SND[.]”5
[…]
After repeated attempts by grievant to obtain a decision on his extension request and SND, on June 11, 2020, the Department finally issued a cable approving his extension for a third year at post. The extension approval cable noted that his election of a 36-month tour made him eligible for SND but did not provide further specifics such as what the effective date of SND eligibility was. Grievant subsequently was informed that the SND payments would commence as of the date of the extension approval cable, i.e., June 11, 2020.

On July 20, 2020, grievant filed an agency-level grievance, arguing that the Department’s failure to follow its pre-assignment SOP procedures for SND posts, compounded by subsequent delays in processing his extension request, improperly deprived him of a financial benefit (i.e., timely commencement of SND payments). As a remedy, he sought retroactive payment of SND (with interest) starting from the date of his arrival at post.

On September 24, 2020, the Department issued an agency-level decision, granting the grievance in part, and denying it in part. The deciding official (“DO”) stated that she was not persuaded that grievant had shown that the Department had failed to follow SOP B-22, finding further that grievant should not be “absolve[d] … of any and all responsibility regarding initiation of the SND process.” Grievance Appeal Submission (“Appeal”), Attachment 2 at 5. She therefore denied that part of the grievance. However, while noting grievant’s delay of over six months in initiating his extension request, the deciding official found that the Department had also let the request sit “idly” for three months. She consequently granted partial relief, directing that SND should be paid effective March 10, 2020, the date on which post issued its extension request cable.

State Department’s Oh, Dear/Even If Argument

The Department argues that record evidence shows that when the panel initially assigned grievant to post, the notes on which it relied stated that grievant’s SND decision was pending. This is consistent with the portion of the SOP “which outlines the employee’s right to delay his/her SND decision until after their [sic] arrival at post . . . .” Response at 5. According to the Department, grievant has failed to offer any evidence that the AO did not discuss the SND program with him or inform him about the elections. The absence of any comments in the “Remarks” section of his TM-1 assignment cable (which grievant advances as evidence that he was not properly advised of SND options before he was assigned to post) is not dispositive of a failure by the AO or CDO to implement the SOP.

The Department also argues that even if the AO and/or CDO had failed to implement the SOP (which the Department denies), “[grievant] should not be absolved of any and all responsibility regarding the initiation of his own SND process, especially if he sought to enjoy the benefit of receiving payments as soon as he arrived at post.”13

Also, if you’re going to a post no one wants to go, you should know more than your Assignments Officer?

The Department further argues that grievant, as a mid-level employee with several years of experience and facing his third overseas assignment, should have recognized that he was bidding on an SND post, and if he had any questions about SND bidding procedures, he knew or should have known to contact his AO and/or CDO for guidance and assistance. However, we find the details of the SND program are sufficiently arcane that the Department felt the need to emphasize the special responsibilities of human resources personnel. The language of SOP B-22, which grievant could not have been expected to know as it is not a familiar Department FAM or FAH provision, is quite particular. It bears repeating that the principal provisions of the Assignment Process fall to the AO and that the language is uniformly directive, not permissive. The SOP directs the AO to contact the employee by email, and one practical consequence of this requirement is to ensure that there be an official record of the communication. The SOP states that the purpose of the email is to explain the SND program, and to ask that he/she make an election among the various SND options (including no-SND and deferral of decision). The AO is further directed to “use the following standard disclosure when contacting the employee.” Half a page of stipulated language explaining the three SND options, the implications of each, and the FAM authority follow. As noted supra, the SOP states in bold typeface that “No assignment for an SND-designated post should be made” unless the AO has advised the employee of the SND options and their implications. The totality of the Assignment Procedures language bespeaks a particular intent that it be implemented to ensure that bidders such as grievant, regardless of experience, be informed uniformly of the program and its details. Accordingly, we find that grievant should not have been expected to be aware of the requirements of the SND program but should have been able to rely on the unique expertise of his AO and the requirements assigned to the AO to provide the information needed to make a choice before his assignment began. Having considered all of the resources to which the Department has pointed, we find that absent the AO’s briefing and support mandated by the SOP, the information in the other Department sources would not necessarily be sufficient, and might even have been meaningless, without the provision of that required context.

The Grievance Board Finds “Harm”

The Department argues that grievant has failed to prove harm resulting from any violation of the SOP, as he has not presented any evidence that he wished to elect, or would have elected, a three-year SND tour. Our considered view is that the language of the Assignment Procedures of SOP B-22 is of a particular character that bespeaks a concern that the procedures be implemented. That is understandable, inasmuch as the SND Program exists to incentivize candidates to bid on historically difficult-to-staff posts, and the SOP seems obviously formulated to ensure that candidates make informed choices among the unique options of the SND Program within a transparent process. In the instant case, the Department’s failure to implement the particularly directive provisions of the SOP denied grievant an opportunity that he would have otherwise had, and which the SOP seems clearly crafted to provide, to be contacted in writing (email), counseled on the basis of prescribed standard language regarding the SND options and implications, and to have his election solicited and transmitted to the panel as the basis for assignment; failing the foregoing, the SOP says that an assignment should not be made. The harm then to grievant was the lost opportunity.

We would like to make an observation about this finding. In finding that failure to implement the SOP deprived grievant of the opportunity to elect a three-year SND tour under the SOP Assignment Procedures, we do not seek to supply an answer to the counterfactual- hypothetical question of whether grievant would have elected a three-year tour if the AO had in fact implemented the SOP. We acknowledge that there is no contemporaneous evidence that he would have made that election prior to his arrival at post. Nonetheless, the harm we find is not that grievant was denied SND payments in accord with an inferred election to be paneled for three years, but rather that he was denied a procedural opportunity pointedly stipulated in the SOP when the AO failed to inform him about the SND Program and solicit his election after he accepted the handshake and prior to paneling him to a two-year non-SND tour. We see no alternative remedy to compensate grievant for this harm other than to order SND to be paid from the date of grievant’s arrival at post.

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New Biden Nominations: DGHR, EUR, NEA, AF, IO, DS and CSO

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On April 15, President Biden announced his intent to nominate the following individuals for top positions in the geographic and functional bureaus of the State Department.
  • Marcia Stephens Bloom Bernicat to be Director General of the Foreign Service and the Chair of the Board of the Foreign Service (DGHR)
  • Karen Erika Donfried to be Assistant Secretary of State for European and Eurasian Affairs (EUR)
  • Barbara A. Leaf to be Assistant Secretary of State for Near Eastern Affairs (NEA)
  • Mary Catherine Phee to be Assistant Secretary of State for African Affairs (AF) and Member of the Board of Directors of the African Development Foundation (AFD)
  • Michele Jeanne Sison to be Assistant Secretary of State for International Organization Affairs (IO)
  • Gentry O. Smith to be Assistant Secretary of State for Diplomatic Security (DS)
  • Anne A. Witkowsky to be Assistant Secretary of State for Conflict and Stabilization Operations (CSO) and Coordinator for Reconstruction and Stabilization
For the geographic bureaus, President Biden previously nominated Ambassador Brian Nichols to be A/S for Western Hemisphere Affairs (WHA) and Ambassador Daniel J. Kritenbrink for  the East Asian and Pacific Affairs (EAP). With these new nominees for EUR, NEA, AF and IO, we are now waiting for just SCA to complete the line up under the Under Secretary for Political Affairs (P). The nominee for “P”, Victoria Nuland had her confirmation hearing before the SFRC on 4/15/21.
If all these nominees are confirmed, it looks like at the regional bureaus, Foggy Bottom will have  one non-career appointee (EUR), one retired FS (NEA), four active career FS (WHA, EAP, AF, IO) , and one as yet unknown for SCA. During the previous administration, these top geographic bureau positions were all filled with non-career appointees (the assistant secretary for the AF bureau was a retired FS). This is a hopeful start.
The WH released the following brief bio:
Marcia Stephens Bloom Bernicat, Nominee for Director General of the Foreign Service and the Chair of the Board of the Foreign Service

Marcia Bernicat, a career member of the Senior Foreign Service, Class of Minister-Counselor, currently serves as the Senior Official for Economic Growth, Energy and the Environment and as Acting Assistant Secretary for the Bureau of Oceans, International Environmental and Scientific Affairs of the Department of State.  Previously, she was the U.S. Ambassador to Bangladesh, U.S. Ambassador to Senegal and Guinea Bissau, and Deputy Assistant Secretary in the Bureau of Human Resources at the State Department.  She also served as Deputy Chief of Mission at the U.S. Embassies in Barbados and Malawi and as Principal Officer of the U.S. Consulate General in Casablanca, Morocco. Bernicat earned a Master of Science in Foreign Service Degree at Georgetown University and a Bachelor’s Degree at Lafayette College.  Her foreign languages are French, Hindi and Russian and she is a recipient of the Secretary of State’s Distinguished Service Award.

Karen Erika Donfried, Nominee for Assistant Secretary of State for European and Eurasian Affairs

Dr. Karen Donfried currently serves as President of the German Marshall Fund of the United States (GMF).  Before assuming this position in April 2014, Donfried was the Special Assistant to the President and Senior Director for European Affairs at the National Security Council.  Prior to that, she served as the National Intelligence Officer for Europe on the National Intelligence Council.  She first joined GMF in 2001 after having served for ten years as a European specialist at the Congressional Research Service.  When she was at GMF from 2005 to 2010, she first served as senior director of policy programs and then as executive vice president.  From 2003-2005, she worked in the Policy Planning office at the U.S. Department of State, handling the Europe portfolio.  Donfried has written and spoken extensively on German foreign policy, European integration, and transatlantic relations.  She is a Senior Fellow at Harvard University’s Center for European Studies.  The King of the Belgians awarded the Commander of the Order of the Crown to her in 2020 and she became an Officer of the Order of Merit of the Italian Republic in 2018.  Additionally, she received the Cross of the Order of Merit from the German Government in 2011 and a Superior Service Medal from the National Intelligence Community in 2014.  She is a member of the Council on Foreign Relations and the American Council on Germany.  Donfried has a Ph.D. and MALD from the Fletcher School of Law and Diplomacy at Tufts University, a Magister from the University of Munich, Germany and holds a B.A. from Wesleyan University.  She is fluent in German. 

Barbara A. Leaf, Nominee for Assistant Secretary of State for Near Eastern Affairs

Barbara A. Leaf is the Special Assistant to the President and Senior Director for Middle East and North Africa Affairs on the National Security Council.  Prior to this, she was the Ruth and Sid Lapidus Fellow at the Washington Institute for Near East Policy and Director of the Beth and David Geduld Program on Arab Politics.  She previously served as the U.S. Ambassador to the United Arab Emirates, Deputy Assistant Secretary of State for the Arabian Peninsula in the Bureau of Near Eastern Affairs as well as Deputy Assistant Secretary of State for Iraq at the State Department.  She directed the U.S. Provincial Reconstruction Team in Basrah, Iraq and was the Department’s first Director of the Office of Iranian Affairs.  Leaf also has served in Rome, Sarajevo, Paris, Cairo, Tunis, Jerusalem and Port-au-Prince.  She speaks Arabic, French, Italian and Serbo-Croatian.  Leaf has a Bachelor’s degree from the College of William and Mary and a Master’s degree from the University of Virginia. 

Mary Catherine Phee, Nominee for Assistant Secretary of State for African Affairs and to be a Member of the Board of Directors of the African Development Foundation

Mary Catherine Phee, a career member of the Senior Foreign Service with the rank of Minister Counselor, currently serves as Principal Deputy Special Representative for Afghanistan Reconciliation at the State Department.  She was U.S. Ambassador to South Sudan from 2015 to 2017.  Previously, she served as Deputy Chief of Mission at the U.S. Embassy in Addis Ababa, Ethiopia, and as Chief of Staff in the Office of the Special Envoy for Sudan and South Sudan.  She also was the Acting Assistant Secretary of State for International Organization Affairs and Deputy Security Council Coordinator at the U.S. Mission to the United Nations, handling UN engagement in Africa for both portfolios.  Earlier in her career, Phee served as Director for Iraq at the National Security Council and as Senior Civilian Representative of the Coalition Provisional Authority to Maysan Province, Iraq.  She began her career in Amman, Jordan and also worked at U.S. Embassies in Cairo, Egypt and Kuwait City, Kuwait.  She received the Robert C. Frasure Memorial Award for conflict resolution and peacemaking, the James A. Baker, III-C. Howard Wilkins, Jr. Award for Outstanding Deputy Chief of Mission, the Secretary of Defense Meritorious Civilian Service Award, the Order of the British Empire Award, and a Presidential Rank Award.  She speaks Arabic.  A native of Chicago, she is a graduate of Indiana University and holds a Master’s degree from the Fletcher School of Law and Diplomacy at Tufts University. 

Michele Jeanne Sison, Nominee for Assistant Secretary of State for International Organization Affairs

Michele Jeanne Sison, a five-time Ambassador, has extensive experience in advancing U.S. interests through multilateral diplomacy.  Sison has served as U.S. Ambassador to Haiti since 2018.   She also served as Deputy Representative of the United States to the United Nations (with the rank of Ambassador) from 2014 to 2018, where she helped build global coalitions to counter transnational threats to peace and security and advocated for a more effective, efficient, and accountable UN and multilateral system.  She also has long experience with UN peacekeeping and the UN entities responsible for development, humanitarian relief, and human rights in the field.  Previously, she served as U.S. Ambassador to Sri Lanka and Maldives, U.S. Ambassador to Lebanon, U.S. Ambassador to the United Arab Emirates, Assistant Chief of Mission in Iraq, Principal Deputy Assistant Secretary of State for South Asian Affairs, and Deputy Chief of Mission in Pakistan.  Her earlier tours include India, Cote d’Ivoire, Cameroon, Benin, Togo, Haiti, and Washington.  Sison received a B.A. from Wellesley College and is the recipient of numerous State Department awards, including the Distinguished Service Award and the Presidential Rank Award of Meritorious Service.  She holds the personal rank of Career Ambassador, the highest rank in the U.S. Foreign Service.

Gentry O. Smith, Nominee for Assistant Secretary of State for Diplomatic Security

Gentry O. Smith leads The Gentry Group, LLC, a security consulting firm.  A former career member of the Foreign Service, Class of Minister-Counselor, he served as the Director of the Office of Foreign Missions, the Deputy Assistant Secretary for Countermeasures in the Bureau of Diplomatic Security, and the Director of Physical Security Programs in the Bureau of Diplomatic Security at the State Department.  Other State Department postings include assignments as Regional Security Officer at the U.S.  Embassy in Tokyo, Japan, Deputy Regional Security Officer at the U.S. Embassy in Cairo, Egypt, and Regional Security Officer at the U.S. Embassy in Rangoon, Burma.  Smith also served as a Special Agent in the Criminal Investigative Liaison Division, Special Agent on the Secretary of State Protection Detail, and Assistant Regional Security Officer at the U.S. Embassy in Cairo.  He earned a B.A. in political science from North Carolina State University in Raleigh, North Carolina.

Anne A. Witkowsky, Nominee for Assistant Secretary of State for Conflict and Stabilization Operations and Coordinator for Reconstruction and Stabilization

Anne A. Witkowsky most recently served as the Co-Director of the Task Force on U.S. Strategy to Support Democracy and Counter Authoritarianism, a partnership of Freedom House, the Center for Strategic and International Studies, and the McCain Institute.  She has served as Deputy Assistant Secretary for Stability and Humanitarian Affairs in the Office of the Undersecretary of Defense for Policy at the Pentagon and as the Acting Principal Deputy Assistant Coordinator, and Deputy Assistant Coordinator, in the State Department’s Bureau of Counterterrorism.  Witkowsky was a Senior Fellow at the Center for Strategic and International Studies in Washington, DC and earlier served as Director for Defense Policy and Arms Control on the National Security Council Staff at the White House.  She earned a Master in Public Administration degree from the John F. Kennedy School of Government, Harvard University and a Bachelor’s degree from Yale. She has been recognized with a number of awards including the Secretary of Defense Medal for Outstanding Public Service and the Department of Defense Medal for Distinguished Civilian Service.

 

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@StateDept Updated Assignment Restrictions Regs in 2020, Also Where’s the Preclusion Data?

13 GoingOn 14: Help Keep the Blog Going For 2021 — GFM: https://gofund.me/32671a27

Last week, Politico published a piece about hundreds of people of color at the State Department handed “assignment restrictions” due to concerns over split loyalties or being susceptible to foreign influence. See Foreigners in their own country: Asian Americans at State Department confront discrimination. In 2017, The Foreign Service Journal published In Pursuit of Transparency in Assignment Restriction Policies by FSOs Christina T. Le and Thomas T. Wong who at that time were the current and past presidents of the Asian American Foreign Affairs Association (AAFAA). Excerpt below:

Employees’ concerns regarding the assignment restrictions process were plentiful: it was unfair, lacked transparency and was based on ethnic origin or family heritage. Our advocacy to the State Department on the issue began in 2009 and continued in earnest through 2016.

The case was framed by input from countless numbers of employees who came to us expressing real frustration, disillusionment and anger over the lack of transparency and accountability in the process. In some cases, the department had prioritized hiring these officers because of their language skills, only to turn around and preclude them from using those valued language skills overseas.

While assignment restrictions affect many State department employees of different backgrounds, we accumulated substantial anecdotal evidence that it has disproportionately affected employees of AAPI descent. Our data suggested assignment restrictions were levied with race as a factor, with disregard for mitigating circumstances and even based on incorrect facts.

According to the authors, the efforts to confront these issues went back many years: “Mariju Bofill first raised the issue with the Secretary of State in 2009, after consultations with the department’s legal advisor, and continued to raise it during the following three years. Cecilia Choi took the baton in 2012, working with the Bureau of Diplomatic Security to try to come to a fair solution. In 2013, The Washington Post featured an article on the subject, “At the State Department, Diversity Can Count Against You,” highlighting the perspectives of several Foreign Service officers.”
In May 2017, AFSA issued guidance on new provisions governing assignment limitations as negotiated with the State Department; these were reportedly implemented on October 21, 2017 and can be found in 12 FAM 233.5.  The latest update were done on June  24, 2020:

Per FAM, assignment restrictions are conditions placed on a security clearance.  They are used to prevent potential targeting and harassment by foreign intelligence services as well as to lessen foreign influence and/or foreign preference security concerns; for example, if an employee and/or his or her close family members maintain citizenship or dual citizenship with that country or have substantial financial interests or foreign contacts there.  Foreign influence and preference are two of the U.S. Government’s Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.

Assignment restrictions may be determined when the initial clearance determination is made, during periodic reinvestigation, or when an individual’s personal situation changes; i.e., marriage, cohabitation, etc. (see 12 FAM 270).  An individual may be restricted from permanent assignment to a particular country or countries, or in some cases, a desk and/or program where that country or countries are the primary focus.  Desks or other positions may present vulnerabilities for targeting when there is frequent official contact with foreign individuals.  Individuals with an assignment restriction to a country may not serve temporary duty (TDY) in that country for more than a total of 60 days during any 365 day period.

The 2020 FAM update allows for a review within 30 days of receiving the assignment restrictions at an employee’s request, on exceptional circumstances the employee/applicant may also request an additional 15 days review, and there us a review on the assignment restrictions by DS/SI/PSS each time an individual’s continued eligibility for access to classified information is re-adjudicated, typically every five years.
The thing that’s clear in the regs is that the initial assignment restriction is conducted by Diplomatic Security. The  reviewer is also Diplomatic Security. After that review, the decision by DS/DSS becomes final. There is no appeal authority above Diplomatic Security. The State Department’s personnel chief, yes, the DGHR said in a congressional hearing that she “does not know enough about the process to answer the question” (see video below).
The updated regs also do not indicate who tracks, and keep the data about these assignment restrictions. The report on Politico points out that the State Department is required by law to provide to Congress “the number and nature of assignment restrictions and preclusions for the previous three years”. This was part of the Department of State Authorities Act, Fiscal Year 2017 dated December 16, 2016 (see 22 USC 2734c: Employee assignment restrictions).  Which means Tillerson in 2017 or Pompeo in 2018 would have been required to submit preclusion data to Congress dating back at least three years.  And yet, the Politico report said that a State Department spokesperson was unable to say how many diplomats across the department are currently subject to restrictions.
Well, now.  So either the State Department ignored a congressional reporting requirement or the information is available but in a lock box?  Who wants to share?
Congressional representatives like Andy Kim of NJ who previously worked for the State Department has publicly voiced a demand that “we fix this problem.”

Below is the top official in charged of personnel including assignments at the State Department told by the congressman from California to “Maybe you might want to find more about this process since you’re Director General of the Foreign Service and Director of Global Talent and this is affecting your State Department employees … “

 


 

 

Ambassador Daniel B. Smith to be Acting Secretary of State Pending Tony Blinken’s Confirmation

–Update below on State/M

The 70th Secretary of State left Foggy Bottom for good before the presidential swearing-in of January 20. Finally. A short clip here from CNN correspondent Kylie Atwood shows the now former secretary of state leaving through the empty halls of HST, apparently  “to a small round of applause from political appointees.” Whatever. We could see Foggy Bottom’s smoke of relief from our house.
We should note that Rex Tillerson got a polite goodbye when he left in 2018 (see Foggy Bottom Bids Goodbye to Secretary of State Rex Tillerson).
Soon after the now former secretary’s exit, the ‘ethos for some but not for others’ wall decors also came tumbling down.  The new State Department spokesperson Ned Price told the AP’s Matt Lee, “We are confident that our colleagues do not need a reminder of the values we share.
Excuse me, who inherited the swagger swags?
Also on January 20, President Biden announced the acting agency leadership across the Biden-Harris administration pending confirmation of permanent leadership by the U.S. Senate. For the State Department, the Acting Secretary of State is Ambassador Daniel Smith, one of the few senior career officials at the agency with the personal rank of Career Ambassador. Until his appointment to the acting position, he was the Director of the Foreign Service Institute. Prior to that, he was Assistant Secretary of State for Intelligence and Research from 2013 to 2018 and was Ambassador to the Hellenic Republic from 2010 to 2013.
Traditionally, the highest ranking career official, the Under Secretary for Political Affairs (P) is appointed as Acting Secretary of State pending confirmation of the new secretary of state.  This would have been David Hale, a career FSO (also with personal rank of Career Ambassador) who has been on that job since September 2018. That’s not the case this time. It is, of course, the administration’s prerogative who to appoint in an acting capacity.
We’ve seen one reporting that attributes the Hale skip over to the statements he made in December following the reported COVID-19 diagnosis of Pompeo’s wife. At that time, the State Department also “slammed the leak of Susan Pompeo’s diagnosis” according to Fox News. The person who spoke for the State Department and blamed his colleagues for “the persistent culture of leaks” was not the spokesperson.  Should be interesting to read the oral history related to this at some point.
Given that all but two of the under secretary and assistant secretary positions in the State Department were filled with political appointees, January 20 also came with the departure of the top functional and bureau officials in Foggy Bottom. The only two positions encumbered by Senate-confirmed career officials were U/Secretary for Political Affairs (David Hale) and the Director General of the Foreign Service (Carol Perez). As best we could tell, Hale is still U/Secretary for Political Affairs. DGHR, however, is now encumbered by Ambassador Kenneth Merten as the bureau’s senior official according to state.gov.  Update 1/21 11:32 am: Carol Perez is listed as senior official for the U/Secretary for Management (this also skips the Deputy M).
All regional bureaus under the U/Secretary for Political Affairs are currently headed by career officials designated as “senior official” or “senior bureau official.” The same goes for all functional bureaus. Overseas, it looks like all political ambassadors have stepped down, except for a few who are non-FS but are in the Civil Service. The US Ambassador to Moscow John Sullivan, a former Deputy Secretary of State appears to have remained at post as of this writing. When this happens during the transition, it is typically with the approval of the new administration.
President Biden has previously announced the nomination of the following senior officials:
Ambassador Wendy R. Sherman as Deputy Secretary of State
Brian P. McKeon as Deputy Secretary for Management and Resources
Dr. Bonnie Jenkins as Under Secretary for Arms Control and International Security Affairs
Ambassador Victoria Nuland as Under Secretary for Political Affairs
Uzra Zeya as Under Secretary for Civilian Security, Democracy, and Human Rights
Unless we’ve missed the announcement, the nominees for the following positions are still forthcoming:
Under Secretary of State for Economic Growth, Energy, and the Environment
Under Secretary of State for Management
Under Secretary for Public Diplomacy and Public Affairs

 


 

 

 

 

FSGB Case: When “there were no mitigating circumstances” considered despite conditions identified by MED

 

Via FSGB: FSGB Case No. 2019-034, July 2, 2020
Held – The Board found that the Department of State (the “Department” or “agency”) did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official (“DO”) did not consider evidence of his personality problems as a mitigating circumstance. The Board was persuaded by evidence in the record that the agency should exercise its authority to initiate, as an alternative to separation, the option of a disability retirement, pursuant to 3 FAM 6164.3(a).
Case Summary – The Department charged the employee with Improper Personal Conduct based upon a pattern of unprofessional and inappropriate conduct toward colleagues, primarily hundreds of unwanted emails and text messages with sexual content. The Department’s Bureau of Medical Services (“MED”) had conducted a mental health evaluation of the charged employee and concluded that “to a reasonable degree of certainty,” the charged employee exhibited “behavior or symptoms (which may not rise to the level of formal diagnosis) of an emotional, mental or personality condition that may impair his reliability, judgment or trustworthiness.” The DO determined that the charged employee committed the charged offenses and that there were no mitigating circumstances. In finding no mitigating circumstances, the DO attested in the separation hearing that she did not take into consideration either the charged employee’s emotional, mental or personality condition that MED identified or the charged employee’s emails to coworkers that included references to his communications with divine beings as well as references to his own possible mental illness. The DO notified the charged employee of her proposal to separate him from the Foreign Service and provided him the opportunity to reply in person or in writing. The DO recommended separating the charged employee to promote the efficiency of the Service. The charged employee did not respond in person or in writing to the DO’s notification of her proposal to separate him from the Service recommendation or participate in the separation hearing. The Board found the Department did not establish cause to separate the charged employee because the DO did not consider the so-called Douglas Factor #11 on the agency’s checklist that relates to mitigating circumstances surrounding personality problems, and did not exercise the agency’s authority under 3 FAM 6164.3(a) to initiate a disability retirement on behalf of the charged employee as an alternative to disciplinary action.

[…]

We do not claim medical or psychological expertise, but, in our perusal of the record, we found indicators that the charged employee was described as exhibiting personality problems, and possibly more serious mental impairment or illness, from the emails and text messages he sent to former colleagues. For example, in specification 84, the charged employee is charged with offering to help Ms. B draft a complaint and get himself fired and committed to a mental hospital for the rest of his life. Also, in specifications 86 and 87, respectively, the charged employee is alleged to have first made reference to someone wanting him to commit suicide, then later noted asking God if his wife would commit suicide and informing Ms. D that the Virgin Mary told him to inform Ms. D that he knew she was worried that he might kill himself. Further, the charged employee displayed unusual behavior when he emailed Ms. B on June 6, 2017 at 8:31 p.m. that he had declined to see a psychiatrist before consulting attorneys about his options to file a lawsuit.11 That suggests the possibility that someone raised with the charged employee the matter of seeking a psychological consultation or examination.
In addition, DS ROI #1 included a statement by the charged employee’s wife that she believed her husband suffered from mental impairment, requiring medical treatment. The record further contains evidence, according to the spouse, that MED had conducted a thorough mental health evaluation of the charged employee on four separate dates. Similarly, DS ROI #2 concluded that the charged employee had expressed that he heard voices and instructions from God, the Devil, and the Virgin Mary. (See Specifications 6-8, 25, 29, 38, 76 and 87).
[…]
In the instant case, while the agency has provided credible evidence that the charged employee’s conduct does not promote the efficiency of the Service, we find the decision falls short on consideration of so-called Douglas Factor #11 on the agency’s checklist that relates to personality problems as a mitigating factor. We also credit the charged employee’s 19 years of distinguished service before his display of conduct that gave rise to the LOR and the proposal to separate him from the Service.12
Moreover, the Board is unaware of a requirement that a DO must be privy to private medical information or be a medical professional to initiate an application for disability retirement. To the contrary, under 3 FAM 6164.2-3, HR/ER, in consultation with MED, can initiate an application for disability retirement on behalf of an employee if, inter alia, 1) the agency has issued a proposal to remove the employee, 2) the agency has a reasonable basis to conclude that illness may be the cause of the employee’s conduct which renders him unable to work satisfactorily, or 3) the employee is incompetent and there is no guardian willing to file an application on the employee’s behalf. The existence of any one of these three conditions is sufficient for the agency to initiate an action for disability retirement, and the Board finds that the conditions in 1) and 2), supra, are apparent in this case.
Accordingly, the Board is of the view that the agency has not considered all mitigating factors before recommending separation for cause and has not exercised its authority to initiate, as an alternative to separation, the option of a disability retirement for the charged employee where grounds for such a retirement are apparent on the record. Pursuant to 3 FAM 6164.3(a), MED then would determine whether the charged employee is incapacitated for useful and efficient service, which is the standard for disability retirement.

Ex-FSO Tianna Spears: Dear @StateDept, “Hello there, it’s me again”

 

Tianna Spears:
“You held discussions and town halls. As the paint dries, Juneteenth receives recognition, and Confederate statues are destroyed, remember that this is just the beginning.
You ask people of color and Black employees to share their suffering and experiences that were repeatedly dismissed and ignored. There is trauma, mental illness, stolen dreams, nightmares, and whispers that travel around the world in household effects. This isn’t the case just for Foreign Service members that are people of color, but the entire organization.
As employees that are people of color come forward and speak their truth, have you provided paid counseling/ therapy and tangible resources to continue these conversations? You ask my fellow colleagues to do the work for you once again.
You retraumatize.”
Related post: You ask, what is it like to be Black in America? A former @StateDept employee tells her story

Who Sits in @StateDG Carol Perez’s DCM Committee?

Via Foreign Affairs Handbook
3 FAH-1 H-2425.8-3  Deputy Chiefs of Mission (DCMs) and Principal Officers (POs) Assignments (SOP C-2)
(CT:POH-131;   05-01-2008)
(State only)
(Applies to Foreign Service Employees)
a. The DG chairs a committee, known as the DCM committee that reviews and proposes candidates to serve as DCMs and POs at positions overseas.
b. The DG selects members of Department management to serve on the committee.  The committee reviews, in consultation with HR and the relevant bureaus, the eligible bidders on DCM and PO positions.  The committee then decides on a list of candidates to fill the position.
c.  The committee sends the list of DCM candidates to the COM; the COM may select from among the candidates to fill the position.  If there is no COM at post, or in some cases if the COM is to depart post before the DCM arrives, the committee sends the list of candidates to the Assistant Secretary of the relevant bureau.  The Assistant Secretary, in these cases, selects the DCM.
d. The DCM committee itself selects candidates to serve as POs.

 

You ask, what is it like to be Black in America? A former @StateDept employee tells her story

Note: We’ve corrected the posts where she served. 

The following is a personal account of a former State Department employee who worked at the U.S. Consulate General in Ciudad Juarez in Mexico. Tianna S.  joined the State Department in April 2018. She was posted at the U.S. Consulate General in Ciudad Juarez, Mexico (Oct. 2018- March 2019) and then at the U.S. Embassy Mexico City (March 2019- October 2019). She departed post in October 2019, she was 27 years old.  Her departure from the State Department was apparently called an “involuntary separation.” 
Her account said she “was encouraged not to speak to the press about what I experienced and to steer clear of any lawsuit as it had the potential for serious repercussions against my government career.” 
Who provided that encouragement?
Which officials at the State Department or post were aware about these incidents? When she was placed on involuntary separation, did the Bureau of Global Talent Management (State/M/GTM) and DGHR Carol Perez care what precipitated it?
If not, why not?
If yes, what did State’s top talent officer do besides sign off Tianna’s separation documents?
Via What’s Up With Tianna (excerpted with permission). Read the entire piece hereWhat do I want from white people? (An illustration on Being Black in America).
Her piece started with the death of George Floyd:

Your heart will pound heavily as George repeats “I can’t breathe.”

He will die face down in the middle of the street. You will watch another unarmed Black man die on camera, in cold flesh, at the hands of a white police officer. When the video finally ends, a feeling deep in your soul will tell you that the white police officer will not go to jail. Before you press play, ask yourself, how many more?

At one point in her account, she writes,  “You ask, what is it like to be Black in America?” Then she tells us:

I drove my vehicle from my house in Mexico across the United States land border into El Paso, Texas at 2:30PM on Saturday, January 19, 2019. A United States Customs and Border Protection (CBP) official flagged me into secondary inspection, for what marked the 17th instance of further inspection since I arrived in Mexico on October 26, 2018. The official inquired if I was a U.S. citizen, motive of travel in the United States, reason of visit in Mexico, and if the car I was driving was stolen. I sat on a cold bench and endured further questioning. I showed my Diplomatic Passport, stating I worked at the U.S. Consulate General in Ciudad Juarez, and lived there.

“Sure you do,” he laughed.

He probed, asking more questions. A new official appeared and searched my car, tossing around the contents in my backseat and glove compartment. He took his left hand and rubbed it up and down my car windows.

“I’m going to meet my friend in El Paso,” I stated.

“When you talk to a man, you look at the ground. Do you understand me?” He glared at me, face full of disgust. The officers laughed. My shoulders tense.

May I speak to your manager please?” I asked.

The on-duty manager approached, crossing his arms, and asked, “what do you want?” I told him about my negative interaction with the previous officers. The manager laughed and asked the motive of travel into the U.S. I told him I was going to meet a friend for coffee and was asked why I needed to come to the U.S. to partake in that activity.

“I’m a U.S. citizen,” I reiterated.

When I told the manager that I worked for the U.S. Consulate General as a Foreign Service Consular Officer, he laughed, rolled his eyes, and said, “right.” Again, I presented my Diplomatic Passport, U.S. Passport, Mexican Carnet, and Global Entry Card. He laughed again and told me he did not need to look at my identification stating, “it could be counterfeit for all I know.”

Blood pumping. Small and humiliated. The manager never looked at my documentation, nor believed anything that I said, even with substantial proof. He went back in his office after obtaining my first and last name. Upon returning, he told me that I had only been pulled over to secondary about eight times so “why are you complaining?” I was bewildered and still am. I requested his name, only to be met with his reply of “I do not have to give you my name.” He later stated “you don’t need my first name.” His name was Officer Kireli.

When I reiterated that his account of the frequency of secondary inspection was incorrect, the manager scoffed, his team standing behind him almost mocking me.

Just because you say you work at the Consulate, does not mean that you are not smuggling drugs into the country,” he said. Extremely frustrated and irritated, I asked how in the world I would be able to get top secret security clearance to work for the United States Government.

The manager then told me, “I do not know, but I do know what drug dealers and smugglers look like.” When I asked him to explain, the manager stepped forward, attempting to intimidate me, crossed his arms, looked at me up and down, and said, “you know what I mean.” I was furious at his insinuation that I was a drug smuggler and his racially charged implication based off of my appearance. I demanded an apology from the manager for the disgusting and unjust defamation of my name and my character.

The CBP manager took another step forward to stand on top of the platform that the bench sits on, positioning him to be a couple inches taller than me. He placed his hand on his gun, finger around the trigger, and told me to get back in my car.

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@StateDept Discovers Virtual OnBoarding/Oaths of Office/Training, Classes Will Now Continue

 

On April 5, 2020, Ambassador Ronald Neumann and Ambassador Dennis Jett wrote an op-ed on The Hill about the onboarding issue at the State Department which affected two incoming classes cancelled due to COVID-19:

Imagine the following situation: After a year-long hiring process, you get an offer to start your dream job in government. You quit your current position, terminate the lease on your apartment, pack up the spouse and kids and move to Washington to begin your new life.

But the dream quickly turns into a nightmare. No sooner do you check into your hotel than you are informed that your incoming class of new employees has been canceled because of COVID-19. And since you hadn’t formally started the job, you are not eligible for a paycheck. The only assistance your agency offers is a ticket home — the home that is no longer yours in the town where you are no longer employed.
[…]
That is the situation in which 90 people about to become new Foreign Service officers now find themselves. They were supposed to report for duty at the end of March, but the State Department abruptly told them that for an undetermined length of time they have no job.  

A second class of about an equal number of Foreign Service specialists is equally affected, bringing the total to roughly 175. It didn’t have to be this way. The Office of Personnel Management has advised federal agencies how the “on-boarding process” for new employees can be conducted virtually or remotely.
[…]
State argues, however, that even the first seven-week course that the officers take cannot be done remotely. That is simply not the case; there is no reason such training wouldn’t be as effective.

The Neumann/Jett op-ed has 1137 shares and 134 comments. The comment section, as can be expected these days, is like rumble in the jungle.
On May 1, 2020, DGHR Carol Perez also wrote an op-ed on The Hill, apparently timed for Foreign Affairs Day, to report that the State Department has discovered virtual onboarding, and virtual oaths of office, and that the postponed classes will now continue:

Thanks to our imaginative, committed colleagues, along with new flexibilities granted by the Office of Personnel Management and the Office of Management and Budget, the department is now able to carry out virtual oaths of office, virtual onboarding and virtual training for foreign service officers and specialists starting in May and continuing this summer. 

These new recruits will include candidates from the foreign service classes postponed in March and April. And I am pleased to report we already have virtually onboarded three civil service cohorts.

The Perez op-ed has 202 shares and 28 comments. Also a rumble in the jungle, tho, a smaller jungle.

@StateDept Suspends All PCS Travel Through May 31

A couple weeks ago, the State Department issued a guidance cable to all Department personnel concerning permanent change of station (PCS) travel and home leave through May 31, due to the COVID-19 pandemic.
Citing the “myriad uncertainties” and “travel and logistics restrictions”, the State Department  suspended all overseas and domestic PCS travel with very limited exceptions, effective through May 31. Transition from one Washington, D.C. assignment to another does not appear to be affected by this suspension.
This PCS suspension will reportedly be reviewed on May 20 and that this “period may be extended if the situation does not improve.”
The guidance says that exceptions to the suspension of PCS travel may be considered for certain employees like those on curtailments related to health, or mission critical employees (approved by bureau assistant secretary for certain countries, or by the Under Secretary for Management for CDC Level 3 countries or State Department Travel Advisory for Health Level 4 countries), or employees on direct to post transfers.
Diplomatic Security and medical personnel are considered mission critical and those employees are reportedly expected to PCS to their next overseas assignment, unless the Chief of Mission (COM) at the receiving post determines that “health and safety issues outweigh security concerns and prevents their arrival to post.” DS personnel are also told that they should be ready to remain at Post beyond their tour end-date if deemed necessary by their Chiefs of Mission.
The guidance encouraged employees to take their home leave between domestic and overseas assignments. At the conclusion of the home leave, employees are told to “be prepared to telework for their onward assignment at their home leave location.” The guidance further says that all employees are expected to work with their onward post and/or bureau to be assigned suitable duties for telework/remote work following Department protocols. Reiterating a prior cable, the guidance explains what supervisor can grant “weather and safety leave” to U.S. Direct Hires for those regular duty hours for which there is insufficient remote work to assign.
Additional guidance is reportedly expected to be published in the near future.