@StateDept Task Force For New Sexual Assault FAM Guidance – An Update

Posted: 12:57 am ET
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We’ve written about nine blogposts on sexual assaults and/or lack of clear sexual assault reporting guidance in the Foreign Service since August this year (see links below).   On November 22, the State Department finally directed a task force to create a new section in the Foreign Affairs Manual for sexual assault (see U/S For Management Directs Task Force to Create New Sexual Assault FAM Guidance).

Mindful that there are 35 days to go before a new administration takes office, we requested an update on the task force convened by “M” to craft the sexual assault guidance in the FAM.

A State Department spox sent us the following:

“The Department is committed to the work the taskforce is doing to create a sexual assault section for the FAM, work that will continue past inauguration day. Currently, the Department has policies and procedures relating to sexual harassment and workplace violence. Employees and their family members can receive assistance and advice from MED, DS and S/OCR on these issues.

 The taskforce is initially focused on establishing FAM definitions and will then build out the program, communications and training. The group has met with Peace Corps and will soon meet with DOD to understand what each has done on this issue. Both of those agencies dedicated several years to building their programs.

The taskforce includes members from MED, HR/ER and HR/DGHR, M staff and M/PRI, DS/DO/OSI and DS front office, S/OCR, and L. The group has also heard from a number of diplomatic community members at post who were eager to contribute ideas and offer feedback throughout the process. The group welcomes this contribution and feedback.”

 

So 35 days to go but we already know that the new guidance will not be ready until after January 20. We are pleased to hear that the taskforce is consulting with both DOD and Peace Corps who each has its separate reporting mechanism.  We are certain that the bureaucracy will continue to grind despite the transition but we do not want this to fall through the cracks.  If you are a member of the Foreign Service who provided feedback to this taskforce, and if you are a member of the FS community who considers an assault on one as an assault on all, you’ve got to keep asking until this gets done.

The Department’s Anti-Harassment Program is managed by the S/OCR, an office that reports directly to the Secretary of State. It conducts inquiries into allegations of sexual and discriminatory harassment in the Department.  It is not the appropriate office to handle sexual assault crimes. To initiate the EEO complaint process, regulations require that employees contact S/OCR or an EEO counselor within 45 calendar days of the alleged discriminatory act in order to preserve the right to file a formal complaint of discrimination with S/OCR. Email: socr_direct@state.gov.

The Department’s policy on workplace violence is governed by 3 FAM 4150, last updated in April 2012.

workplacev

Under Employees’ Responsibilities, the FAM provides the following guidance:

In the event of an immediately threatening or violent situation, all Department of State employees should:

(1) If the incident takes place in the United States, call 911 when there is an injury or an immediate risk of injury in the workplace;

(2) Alert the appropriate law enforcement or security office at his or her location when there is risk to his or her safety or the safety of others, injury, or immediate risk of injury. In the Washington, DC area dial extension 7-9111 or the appropriate telephone number for the law enforcement or security office at his or her location;

(3) Immediately report threatening or violent behavior to supervisors after securing emergency medical assistance as needed;

(4) Move to a safe area away from the individual(s) making threats or exhibiting violent behavior. Do not confront the individual or individual(s); and

(5) Take all threats and acts of violence seriously.

A close reading of this section on workplace violence, makes one think that perhaps the drafters were thinking of an employee “going postal”. This certainly provides no guidance for victims of sexual assault.  “Take all threats and acts of violence seriously,” of course, doesn’t make sense when one contemplates about a colleague who is also a rapist. It’s important to note that approximately 3 out of 4 of sexual assaults are committed by someone known to the victim; that “friend” or “buddy” is not going to threaten you that he’s going to assault or rape you before he commits the crime.

The workplace violence section has more guidance on what to do with an employee exhibiting violent behavior than what to do with the victims. Immediate actions recommended include review of “whether an independent medical exam should be offered” to the violent employee. Short-term and long-term responses include administrative leave; counseling from supervisor or higher management official; appropriate disciplinary action, up to and including separation; curtailment; and/or medical evacuation. All focused on the perpetrator of workplace violence.

Yes, the Department has policies and procedures relating to sexual harassment and workplace violence; and you can see that they are sorely lacking when it comes to addressing sexual assaults.

 

Sexual Assault Related posts:

 

 

 

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Is Diplomatic Security, the State Department’s Law Enforcement Arm Trying to Break the Law?

Posted: 4:21 am ET
Updated: 10:37 am PST
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On October 4, we wrote about DS agents fleeing Diplomatic Security in droves for the U.S. Marshals Service.  We can now report that approximately 70 agents applied to move from Diplomatic Security to the U.S. Marshals Service and some 30 agents have received conditional offers. A State Department official on background shared with us a short-list of DS agents leaving the bureau for the U.S. Marshals Service. The list was reportedly compiled sometime this summer at the direction of the Diplomatic Security Front Office.  There is now an allegation that Diplomatic Security had asked the U.S. Marshals Service to stop accepting DS agents transfers.  Anecdotal evidence appears to indicate that the list is also being used by DS/IP in pre-assignment deliberations.  This comes amidst reports from sources that DSS Director Bill Miller addressed over 100 DSS agents during a brief in preparation for the UN General Assembly (UNGA), and allegedly stated that any DS agent who leaves for the U.S. Marshals would not be allowed back into the agency.

 

DS to Departing Agents: Bye, You Can’t Come Back! Seriously?

On the warning delivered at the UNGA brief, a State Department official who talked to us on background said: “I’m not sure how many people in that audience realized that just uttering those words is a prohibited personnel practice under 5 USC § 2302(b).”   

So we went and look up the actual statute: 5 U.S. Code § 2302 – Prohibited personnel practices

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment;

(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

(10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;

Could the warning  — that any DSS agent who leaves for the U.S. Marshals would not be allowed back into the agency — influence an applicant for the USMS job to withdraw from competition for fear of retaliation?

If an agent in good standing departs the bureau for another federal job, and decides to come back later, can DS legally discriminate against that agent on the fact that he/she previously left the bureau for another agency?

Isn’t asking the U.S. Marshals Service to stop accepting DS agents transfers considered an obstruction to these agents’ right to compete for employment?

It looks like 5 U.S. Code § 2302 is quite clear about this. Interference with the hiring process of a federal employee is not permissible. Unless, Diplomatic Security is treating 5 U.S. Code § 2302 as a suggestion, and compliance as optional.

We understand that it has been a standard practice at Diplomatic Security that any agent who leaves in good standing is often welcomed back if they wished to return, with minor stipulations for reinstatement. We’re told that typically they would have three years to apply for reinstatement, subject to available vacancies, training requirements, and they may be required to take a hardship tour on the first new assignment upon reinstatement. We should note that 3 FAM 2130 actually says “Because recent familiarity with the Foreign Service is a valuable asset that distinguishes former members from new hires, candidates for reappointment may be considered if they have left the Service not longer than 5 years prior to the date on their reappointment request.”

If it is true — that the top law enforcement official at Diplomatic Security delivered a message not only contrary to practice but also against the law — wouldn’t this generate great concern and trepidation among the troops? Shouldn’t this alarm the top leadership at the State Department and in the Congress?

The State Department official on background told us that every year DS has some attrition to FBI, ATF, OIGs, etc.  but the fact that this lateral USMS announcement came out with the intent to hire experienced agents, at grade, and in significant numbers was “the perfect storm for the poor morale and lack of career control that plagues our mid-level agents.”  The conditional offers to the DS agents reportedly compose nearly one quarter of all offers sent out by the USMS.  We were told that no single agency is as widely represented in that offer pool as Diplomatic Security.

Which is probably embarrassing and all, as folks might start asking uncomfortable questions such as —what the heck is going on at Diplomatic Security these days?

Another source told us  this could have been a lot worse had the vacancy announcement lasted longer than 24 hours. The U.S. Marshals vacancy announcement actually opened on June 8, 2016 and closed on June 8, 2016.

So — we asked the Bureau about this reported bar the agents talk with a Q: PDAS reportedly told folks at UNGA that the departing agents would not be allowed to come back to DS. This sounds a lot like a retaliatory threat and would be a prohibited personnel practice under 5 USC § 2302(b).  After multiple emails and days of waiting, we finally got a non-response on October 12 from Diplomatic Security:

“Thank you for your query. We will have no additional comments on this.” 

Note that we have not received previous comments to these questions although we have sent multiple queries. Heaven knows we don’t expect perfection from our State Department but we do, however, expect it to be responsive and accountable for the reported actions of its top officials.

Look, the Bureau of Diplomatic Security (DS) is the security and law enforcement arm of the U.S. Department of State. Which means that an allegation that it is not following the law even in one area cannot stand with just “no comment.” It also cannot just be ignored. We got no clarification, no explanation, no denial.  Maybe State or DS will have comments for the Congressional Oversight folks?

The bureau has several responses we can think of:

#1.  Deny, deny, deny: hey, hey, this is a nothing-burger, go away.

FSprob_nothingtosee

 

#2. Admit in part/deny in part: there was an official brief, but this warning never happened; you’re barking up the wrong tree.

wrongtree

via giphy.com

#3. Aggrieved defense: We are a law enforcement agency, of course we follow the law; are you nuts?

areyounuts

via giphy.com

#4. Pride defense: We are the Diplomatic Security Service, we don’t make a habit of threatening anyone just because he/she wants to be like U.S. Marshal Sam Gerard!

#5. Ideal response not coming: We have no greater resource than our people. We have not, and we will not interfere with our employees right to compete for employment.

 GIF_shakinghead

Next: Why did Diplomatic Security compile a short-list of DS agents leaving for the U.S. Marshals Service?

 

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