@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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@StateDept Updates Its Polygraph Policy: Are Results Shared For Security Clearance/Assignment Purposes?

Posted: 1:26 am ET
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On September 1, 2016, the State Department updated its 12 FAM 250 policy on the use of the polygraph to examine Department employees (including employees on the General Schedule, the Foreign Service, on Personal Service Contracts, Limited NonCareer Appointees, and Locally Employed Staff).  

Per 12 FAM 251.2-2, the Office of Investigations and Counterintelligence (DS/DO/ICI) Counterterrorism Vetting Unit (CCV) administers the polygraph program and is responsible for hiring polygraph examiners, responding to requests for polygraph support, deploying polygraph examiners, and maintaining relevant records.

The update includes the following:
  • Streamlines the polygraph examination process by removing a requirement to seek pre-approval before a DS or OIG agent can ask an employee if s/he is willing to submit to a polygraph.
  • Authorizes a DS agent or Department OIG investigator to alert an employee or contractor, currently subject to a criminal, personnel security, or counterintelligence investigation, that s/he has the option to undergo an exculpatory polygraph examination, rather than limiting exculpatory polygraphs to cases where it is initiated by the individual under investigation.
  • Allow polygraphs of Department employees detailed to federal agencies (in addition to the NSA, CIA, and DIA) when the relevant agency requires a polygraph to be detailed to the position. Polygraphs of employees detailed to agencies other than the NSA, CIA, or DIA will be considered on a case-by-case basis and will require approval from the Under Secretary for Management.
  • Limits the scope of polygraph examinations of Department detailees to other federal agencies to counterintelligence topics for all detailees.
  • Formalize existing processes for polygraph examination of certain locally employed staff, in accordance with the approvals specified in the polygraph policy

Back in May 2015, we questioned the use of the CIA’s polygraph exams of State Department employees (see AFSA Elections: What’s Missing This Campaign Season? Fire, Ice and Some Spirited Debates, Please).

Do you know that Department employees who take the CIA’s polygraph examination for detail assignments will have the  results of their polygraph provided to DS and HR for security  clearance and assignment purposes?  A source told us that “In and of itself, it does no  harm if the CIA retains them for its clearance purposes, but it can  have an unanticipated negative impact when indiscriminately released  by the CIA to third parties, like DS and HR, who use them in violation of the CIA’s restrictions to the Department  and assurances to the examinees.”  If this affects only a fraction of the Foreign Service, is that an excuse not to do anything about it, or at a minimum, provide an alert to employees contemplating these detail assignments?

We’ve recently discovered a newly posted grievance case dated March 2010. We don’t know why this is currently on display upfront on fsgb.gov.  In any case, this is related to the subject of polygraph examination.

On June 24, 2009, grievant, a retired Senior Foreign Service Officer, appealed to the FS Grievance Board the State Department’s (Department) denial of his grievance with respect to the use of the results of a polygraph exam he took in 2003 in conjunction with a detail to the Central Intelligence Agency (CIA). Grievant claims the improper handling and use of the results of that exam violated the Department’s own regulations (12 FAM 250) and resulted in his having been denied a Presidential Appointment as a Chief of Mission (Ambassador).  The ROP includes some interesting interrogatories:

#1: Has the Department ever obtained a Department employee’s polygraph examination results from the CIA for a personnel security background investigation based on the employee’s SF-86 signed release? If so, please describe the circumstances under which this would occur.

The Department objected to answering this interrogatory on the grounds that is was overbroad, immaterial, and irrelevant.

IR #6e for Diplomatic Security Case Officer for the second background investigation: Have you ever requested an employee’s polygraph results from the CIA before? If so, under what circumstances‘?

The Department found this interrogatory overbroad, irrelevant, and immaterial.

Ruling on IR #6e: Under the more ample concept of relevance applied at the discovery stage, the Board finds that the information requested is sufficiently relevant to grievant’s claims or likely to lead to the discovery of information relevant to such claims to compel discovery. The information requested may help to clarify the Department’s practice in applying the regulations governing the use of polygraphs that are issue in this case. We do not find the request to impose such a burden on the Department as to outweigh the potential usefulness of the information requested. The Department is directed to respond.

IR # 7h for Diplomatic Security: Does DS routinely request and receive polygraph examination results on all Department employees who have taken polygraph examinations at the CIA as part of their routine background security investigations?

The Department objected to this interrogatory as irrelevant and immaterial in all respects.

The Department was directed to respond to grievant’s Interrogatories 6e and 7h not later than 20 days after receipt of the order but we have been unable to find the decision on this case.

 

On June 24, 2009, grievant filed a grievance appeal, claiming improper use by the Department (Department, agency) of the results of a polygraph examination he had taken in conjunction with a detail from the Department to the Central Intelligence Agency (CIA).  The grievant makes several specific claims:

1) that the CIA provided the results of the polygraph to a Diplomatic Security (DS) agent in the Department, in violation of Department regulations and CIA policy;
2) that the Department requested and/or received the polygraph results from the CIA, in violation of its own regulations;
3) that the Department improperly used the polygraph results in the course of security update investigations; and
4) that the Department improperly provided information drawn from the polygraph to the Director General (DG), which resulted in the DG withdrawing grievant’s nomination to be a chief of mission. The FSGB Board finds that it has jurisdiction over the claims presented by the grievant.

 

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Senator Grassley Eyes Linda Howard Case, Seeks Answers on TIP Policy and @StateDept Employees

Posted: 1:45 am EDT
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On October 20, 2011, State/OIG issued a report entitled Audit of Bureau of East Asian and Pacific Affairs Compliance with Trafficking in Persons Requirements (AUD/IP-12-02 – pdf). The audit found that Department employees were not uniformly aware of key matters relating to Trafficking in Persons (TIP), including what constitutes TIP activity, the penalties for TIP violations, and where to report allegations of violations. The OIG report notes that although the Department’s code of conduct prohibited employees from acquiring a commercial sex act and using forced domestic labor, it did not specifically address TIP or require employees to report suspected TIP violations.

Based on the report’s findings, OIG made four recommendations to State’s J/TIP. Of these four recommendations, OIG closed Recommendation 3 on July 23, 2013, based on the Department’s decision to designate OIG to receive reports of TIP violations. However, according to its follow-up report of September 2015 (pdf), the other two recommendations —  enclosure of the U.S. Government’s TIP policy in the Department’s Foreign Affairs Manual (FAM), and an expanded code of conduct for employees to cover conduct with respect to TIP activities — remained open.

State/OIG concludes that “by not implementing the recommendations or J/TIP providing an acceptable alternative to fulfill the intent of the open recommendations, the Department is not well-positioned to hold employees accountable for violations of TIP or ensure TIP policies and requirements are understood and followed.”

We missed this — but in September when State/OIG released the follow-up report(officially called Management Assistance Report) related to TIP, Senator Chuck Grassley also fired off a letter to Secretary Kerry asking questions sepcific not just to the OIG report but also the Linda Howard case (see Ex-State Dept Employee Settles Housekeeper’s Claim Over Slavery and Rape).

According to Senator Grassley’s letter, the Howard case “raises questions about the Department’s commitment to holding itself to the same standard by which it judges other countries in assessing their compliance with anti-trafficking standards in its annual TIP report.” Hey, we made it to the footnotes!

Screen Shot 2015-11-15

(click image to read the Grassley letter or click 2015-09-17 CEG to State (Trafficking in Persons)

Among the questions Senator Grassley asked Secretary Kerry are the following:

  1. Regarding the two TIP-related OIG recommendations that remain outstanding since 2011:
    1. Why did the Department fail to implement these recommendations?
    2. Who is responsible for the failure to implement them?
    3. Was former Secretary Clinton or any of her aides including Cheryl Mills, HumaAbedin, or Jake Sullivan informed of any of these recommendations, decisions, or findings? If so, please provide all related records, including emails. If the Secretary and her senior staff were not informed, please explain, why not.
  2. How does the Department ensure that its foreign service officers treat the domestic workers they hire or sponsor in accordance with the TVPA?
    1. As of the date of this letter, how many domestic workers are employed by Department employees worldwide?
    2. Do Department employees stationed abroad need to obtain approval from the Chief of Mission, the Regional Security Officer (RSO), or any other Department official before recruiting and hiring domestic workers? If so, whose approval is needed and what controls exist to ensure the security and safety of those workers as well as national interests? If not, why not?
    3. Is there an independent and confidential reporting mechanism by which these domestic workers may file a complaint with the Department for alleged abuses by Department employees? If not, will you consider adopting such a mechanism?
    4. Do you think implementing OIG’s 2011 recommendations would help Department employees identify and report suspected instances of TIP violations that may be occurring within their own ranks and housing complexes?

The senator is also asking questions specifically related to the State Department’s handling of the Howard case including:

— Did DS or the Department refer these allegations to any other entity, such as the OIG, or any other law enforcement agency? If so, on what date and to whom?

— At any point in time, was Under Secretary of Management Patrick Kennedy, who oversees DS, apprised of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, when, and what was his response? Please provide all related records, including emails. If not, why not?

— At any point in time, was former Secretary Clinton or any of her aides including Cheryl Mills, Huma Abedin, or Jake Sullivan informed of any of the allegations, decisions, findings, or news reports relating to Linda Howard or Russell Howard? If so, please provide all related records, including emails. If not, why not?

There is an FSGB grievance case (read online) that may or may not be related to the Howard case (names have been redacted) but the timeframe and circumstances appears similar, and it looks like DOJ declined to prosecute the case in 2011:

REDACTED (grievant) is a twenty-year Foreign Service employee of the Department of State (Department, agency). While assigned to the U.S. Embassy in REDACTED, she and her husband, an REDACTED national, were the subjects of a Bureau of Diplomatic Security (DS) investigation based on allegations by a household worker of sexual abuse and related crimes. This investigation began in June 2009 and ended with a declination of prosecution by the Department of Justice (DOJ) in March 2011.1 Grievant agrees that she curtailed from post in June 2009 for unrelated reasons.

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Holy Mother of FAM!!! Oh, Mr. Toner, What Have You Done?

Posted: 2:39 am PDT
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On August 31, the State Department’s deputy spox was asked if the Secretary of State is bound by the rules of the Foreign Affairs Manual or not? (see Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?). On September 1, the question was asked again and Mr. Toner promised to get an answer.

On September 3, the question was revisited for the third time, and here is the delightful exchange:

QUESTION: I have a – I’d asked you a question the other day and you said you’d get me an answer to it —

MR TONER: Did I? (Laughter.)

QUESTION: — and the question was whether the Foreign Affairs Manual applies to secretaries of state? Does it?

MR TONER: So – (laughter) – yeah. So I did do some research into this, as did others. It is – the Foreign Affairs Manual is – it is not comprehensive in, nor is it a bible for all Foreign Service officers or civil servants. So – and what do I mean by that? I mean it’s not – for example, there’s things in there about reimbursement of the use of your private vehicle. Certainly, that doesn’t apply to the Secretary of State or many people within the State Department.

So it’s – what’s contained in the Foreign Affairs Manual – and this is – I apologize but this is a kind of an in-the-weeds question – all of that is not necessarily relevant to, for example, ambassadors or secretaries of state or senior Department officials. I mean, if I can say what I think the essence of your question was, and I’m sorry if this is presumptive, but was whether they are bound by the responsibility to protect classified information. That certainly is true, that any Secretary of State, any senior State Department official is bound by that. And I spoke to this the other day, is that any individual, whether you’re the Secretary of State on down, takes that responsibility seriously.

QUESTION: But my question —

MR TONER: Yeah.

QUESTION: I mean, I really – I was not asking whether they were bound by every aspect of it, including those that are not relevant to them. It was whether they’re bound – basically whether they’re bound by the things that are relevant to them.

So to take the one that you raised, which is not whether they’re bound to protect classified information or to take seriously the responsibility to protect classified information, the question would be then, since you raised that as a specific: Are they bound – are secretaries of state bound by the rules in the Foreign Affairs Manual with regard to the handling of classified information?

MR TONER: I would say, as they are pertinent to the – and again, I don’t have the Foreign Affairs Manual in front of me – but as they are pertinent to the responsibility to protect and safeguard classified information, and we’ve talked about this, frankly, ad nauseum about the gradations and how we classify stuff and how we look at it. But as those rules – they apply to everyone in the State Department, including, for example, politically appointed ambassadors, and certainly by a secretary of state who is appointed by the President and, frankly, serves at the pleasure of the President and is not a Foreign Service officer in that regard or a civil servant.

QUESTION: So insofar as the regulations of the Foreign Affairs Manual touch on the protection of classified information, they apply to everyone, including the Secretary of State?

MR TONER: Again, I don’t have it in front of me but – and I’m not trying to parse this, but in a sense I am. Insofar as those regulations apply to the protection and safeguarding of classified information, yes.

QUESTION: Thank you.

QUESTION: Can we go back —

QUESTION: That didn’t seem like a parse to me.

MR TONER: Okay.

Selective application, amirite?

First, Mr. Toner says, “So I did do some research into this…” Excuse me, why the heck is he doing the research on this? What’s the use of the Office of Legal Adviser, if you can’t get them to issue a formal opinion on this matter?

Then he says, “the Foreign Affairs Manual is – it is not comprehensive in, nor is it a bible for all Foreign Service officers or civil servants.”

Oh dear. Quick! If you’re in a disciplinary process, tell your lawyers.

Saying “again, I don’t have the Foreign Affairs Manual in front of me” might be a trick in the PA playbook but it’s not cute, okay?  This question has been asked since August 31st. The FAM is online, and easily retrievable.

He did say that “Insofar as those regulations apply to the protection and safeguarding of classified information, yes,” when asked if  the protection of classified information apply to everyone, including the Secretary of State per FAM.

Hey, did you know that “reimbursement of the use of your private vehicle doesn’t apply to the Secretary of State or many people within the State Department?”

Makes you wonder, for all the stuff where the FAM doesn’t cover the Secretary of State and many other people within the State Department, what alternate rules and regulations govern their workplace, and conduct on and off their jobs?  We’d like to know in case we’re tapped by  President Julian Navarro to find a successor for the libidinous Secretary Larson.

But seriously.

Per 2 FAM 1111.1 the Department of State articulates official guidance, including procedures and policies, on matters relating to Department management and personnel, known collectively as “directives,” in the Foreign Affairs Manual and Handbook Series. Directives include Department administrative organization policies and procedures. These directives derive their authority from statutes, Executive orders, other legal authorities, and Presidential directives, such as OMB circulars, and Department policies.

Per 2 FAM 1115.5-1 the Foreign Affairs Handbook (FAH) series is a supplemental series providing guidelines and procedures for implementing policies and directives contained in the FAM. Materials published in the FAH has the same force and effect as materials published in the FAM.

These directives apply to the Department of State and its operations worldwide (2 FAM 1111.3)

These directives apply to all Department of State and other relevant personnel worldwide (2 FAM 1111.4)

Note that 2. FAM 1111.4 does not make a distinction whether an employee is a career employee or a political appointee who is employed by the State Department.  Also, every time the FAM is updated, a Change Transmittal documents it.  All transmittals includes the following reminder:

Officers are reminded that Department-issued materials not codified in the Foreign Affairs Manual or its supplemental Foreign Affairs Handbook series generally have no regulatory validity (see 2 FAM 1115.2).

Pardon me?  Between 1-10, how confusing is all this? Sigh…

By the way, AFSA did ask a similar question earlier this year concerning this (see AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?). We understand that the State Department had issued a response in the waning days of the previously elected AFSA Governing Board. As far as we are aware, that response has not been released to the AFSA membership. And we have not been able to get a response to two questions we sent to the newly elected president and VP of AFSA.

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Question of the Day: Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not?

Posted: 2:40 am EDT
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Is the Secretary of State bound by the rules of the Foreign Affairs Manual or not? That’s the question asked during the August 31 press briefing at the State Department.

QUESTION: Two other quick things. One is: Do you believe as a general matter that the Secretary of State, whomever he or she may be, is bound by the rules in the Foreign Affairs Manual or not? I mean, it may be that they’re not, that they have sort of a status that’s different and that therefore they have the rights to not follow it.

MR TONER: I mean, I would just say that every State Department employee from the Secretary on down takes the handling of classified information very seriously and is aware of the rules surrounding those classification standards.

In reading these excerpts, it is useful to remember the  State Department’s Most Candid Nugget.  A bit later, another one tried asking this again:

QUESTION: On the thing that everybody is obliged to – I mean, can you not address squarely whether the Foreign Affairs Manual applies to the Secretary of State or not?

MR TONER: I mean, I can say that, again, we, from the Secretary on down, take the handling of classified materials and the rules surrounding those – so I mean in that sense, including the Foreign Affairs Manual but also other regulations, stipulations, training that we undergo in how to handle classified and confidential information.

QUESTION: You take them —

MR TONER: Seriously. I’m sorry.

QUESTION: But does that mean that you’re bound by them?

MR TONER: We’re all bound by – how we treat classified information is, as I said, an important component of the work we do, but I’ve also made clear that when you look at classified material it is not an exact science, it’s not black and white, it’s not always clear, so there’s strong feelings and different beliefs about when something is classified, whether it’s born classified, whether it should be classified later. These are all questions that are being answered in a deliberative and a thorough way that we’re looking at that’s not somehow some cabal of people in a small room somewhere making these decisions. It’s an interagency process. It involves the IC, it involves other agencies as it touches their equities. So that’s our focus.

QUESTION: Mark, since you just said those —

MR TONER: Please, go ahead.

QUESTION: — rules and standards are so important that everyone in this building has to follow them, can you say from that podium categorically that Secretary Clinton followed the rules and the law?

MR TONER: I’m just not going to answer that question. It’s not our goal, it’s not our function in this regard in releasing these emails. Our goal and our sole purpose when we look at these emails is to decide – well, first to publish them according to the FOIA request that we have received. But in doing that, looking at them and deciding whether any of that material needs to be redacted and subsequently classified.

QUESTION: Isn’t it a little odd that the State Department can’t state categorically that the Secretary of State followed the rules?

MR TONER: All I can say is that there are – and I’ve alluded to there – I’ve not alluded to it, I’ve said as much to Arshad: There are other reviews, and that’s really for the inspector general and other entities who are out there looking at some of these broader questions.

Click here for the DPB | August 31, 2015.

The first question starts with “Do you believe …”  They can pin Mr. Toner to the wall with giant thumb tacks but we doubt very much if they can pry a straight answer out of him on this one.  What he believes is immaterial. What the building believes is what counts. And for that, we think you’d have to go ask the Legal Adviser.

Oops, wait! Brian Egan nominated to succeed Harold Hongju Koh is still stuck in the Senate confirmation process. Originally nominated in September 2014, Mr. Egan has now waited 347 days for his Senate confirmation. He had been renominated once before on January 16, 2015 when his nomination was not acted by the Senate last year.

While the Office of the Legal Adviser (without a Senate-confirmed Legal Adviser) has not released an opinion on this subject, it apparently told the OIG that the Foreign Affairs Manual‘s disciplinary provisions do not apply to political appointees as they are “not members of the Foreign Service or the Civil Service.”

The January 2015 OIG report Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security (pdf) includes the following:

[The] Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.

According to the OIG report, the Under Secretary for Management disagrees with this interpretation:

[T]he Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).

Hey, if there’s a shootout between “L” and “M”, who wins?

Okay, first, how can Legal only cites the FAM’s disciplinary provisions? The Foreign Affairs Manual is the rules book for the agency. If the disciplinary provisions do not apply to political appointees, what other parts of the FAM do not apply to them?

Can they ship construction materials with their household effects, for instance? Can they change their workdays so they only have to work Tuesdays through Thursdays and have four day weekends every week? Can they travel first class without using U.S. air carriers? Are they obligated to account for their own conduct, whether on or off their jobs? Are they allowed to accept and retain gifts given to them by foreign governments? Can they speculate in currency exchange? Can their spouses work anywhere they want? Are they allowed to invest in real estate in their host countries? And on and on and on.

So if we follow the Office of Legal Adviser’s opinion to its logical conclusion, the Secretary of State, if a political appointee is also not subject to the FAM, yes?

That’s a dreadful opinion, by the way. It puts a politically appointed secretary of state and politically appointed American ambassadors in the enviable position of rallying the troops with “follow what I say, not what I do.” Because, if that’s the case, political appointees can do anything — fundraise overseas, for example — and not have consequences, while regular employees doing exactly the same thing could be penalized.  Or they/their spouses can ship goodies for private gain using the diplomatic pouch and not have any penalty while a career FSO’s spouse would surely be penalized for doing the same thing. And if political appointees are not subject to the Foreign Affairs Manual because they “are not members of the Foreign Service or the Civil Service” the questions then become 1) why are they in the Foreign Service or Civil Service pay scale? and 2) if not the FAM, which rules are they supposed to adhere to?

Of course, this could also mean that if a Foreign Service officer is appointed Secretary of State, he/she would then be subject to the FAM because he/she is a career member of the diplomatic corps. Not that there’s any great danger of that happening. Lawrence Eagleburger is the only career Foreign Service Officer to have served as Secretary of State (appointed Secretary of State on December 8, 1992, and continued in that position until January 19, 1993). But see why that L opinion is troubling?

In any case, we do think this is an important question that ought to have a simple answer.

Except that it doesn’t.

Is the Secretary of State bound by the rules of the Foreign Affairs Manual? 

During the September 1 DPB, a reporter revisited this once more:

QUESTION: It’s a question that I asked the other day and I’d like to ask if the State Department will take a policy decision on this, not with regard to Secretary – former Secretary Clinton, but with regard to current and past secretaries of state, and that is whether it is the view of the Department that the Secretary of State is bound by the rules laid out in the Foreign Affairs Manual.

MR TONER: Okay. I mean, I —

QUESTION: As a general principle, do they apply to the Secretary of State or not, or do they apply selectively? That’s the question.

MR TONER: Okay. I will get you an answer for that.

We await with great interest Mr. Toner’s answer to this very straightforward question. We hope the reporters would keep asking this question. Every day until we all get an answer.

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AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?

Posted: 1:01  am EDT
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The Daily Press Briefing of March 11  toppled me off my chair when I heard the official spokesperson of the State Department, Jennifer Psaki said from the podium, “The FAM is not a regulation; it’s recommendations.”  (see NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!).

On March 17, the American Foreign Service Association (AFSA) wrote to Arnold Chacon, the Director General of the Foreign Service and the State Department’s top HR official requesting clarity on the applicability of 3 FAM to career and political/non-career employees of the oldest executive agency in the union.

We would be grateful if you could help us understand if there is, in practice or by law, any difference in how these standards apply to and are enforced for non-career appointees as opposed to career employees, both Foreign Service and Civil Service.

AFSA noted the March 10 press briefing, where “Spokesperson Jen Psaki referred to 3 FAM as “guidelines” as distinguished from “law”:

As the Foreign Service, we have always understood the FAM to consist of regulations to which we must adhere. AFSA would like to ask if non-career appointees are formally subject to all of the rules and regulations in 3 FAM.

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Foreign Affairs Manual

 

3 FAM is the section of the Foreign Affairs Manual that covers personnel:

This volume of the FAM sets forth the policies and regulations governing the administration of the personnel system applicable to the Department of State. Regulations adopted jointly by the Department of State and other agencies (e.g. Broadcasting Board of Governors, USAID, Commerce, Agriculture, Peace Corps,) are so identified wherever they appear in this volume. (see pdf)

Volume 3 of the FAM is organized around eight major personnel topics, each of which is assigned a series of nine chapters of 89 subchapters. In so far as is practicable, each subchapter is restricted to a single topic. Since some topics relate to both Foreign Service and Civil Service employees, while others relate to employees of only one of the services, subchapters, or parts thereof, contain a legend, which indicates coverage.

☞Chapters in the 1000 series contain general information on the organization of the FAM and general policies and regulations relating to all Civil Service and/or Foreign Service employees.

☞Chapters in the 2000 series contain regulations and policies, which govern the day-to-day operations of the Foreign Service and Civil Service personnel systems.

☞Chapters in the 3000 series contain regulations and policies which govern Civil Service and Foreign Service pay, leave administration, benefits (e.g. Federal Employees Health Benefits (FEHB), Federal Employees Group Life Insurance (FEGLI), Office of Worker’s Compensation Program (OWCP), Unemployment Compensation for Federal Employees (UCFE), Reasonable Accommodations), allowances and travel. In addition, Chapters in the 3000 series contains special program regulations and policies such as Transit Subsidy Program, Student Loan Repayment Program (SLRP), and Professional Liability Insurance (PLI).

☞Chapters in the 4000 series contain regulations and policies which govern the conduct of Foreign Service and Civil Service employees; provide penalties for misconduct; establish grievance and appeals procedures; and provide for awards for outstanding performance.

☞Chapters in the 5000 series contain regulations and policies, which govern labor management relations in the Department.

☞Chapters in the 6000 series contain regulations and policies, which govern the administration of the retirement program for Civil Service and Foreign Service employees.

☞Chapters in the 7000 series contain regulations and policies, which govern the administration of the Foreign Service National personnel system for Overseas Employees.

☞Chapters in the 8000 series contain regulations and policies, which govern the administration of the various overseas employment programs administered by the Office of Overseas Employment (HR/OE).

If it comes from the podium, it is official.

So it is, of course, understandable that AFSA is concerned when she calls the FAM “guidelines.”  But equally troubling to hear her say from the official podium that the FAM is not regulations but recommendations, as if somehow adherence to it is voluntary and optional. We’ve asked state.gov for a comment and the nice person there told us they’re consulting with their subject matter experts and hopefully will have something for us.

Anyone has an in with the folks at the Office of the Legal Adviser?  Would you kindly please ask them to wade in on this?

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Senior Official’s Spouse Uses Diplomatic Pouch for Personal Business, How’s That Okay?

Domani Spero
[twitter-follow screen_name=’Diplopundit’ ]

 

We’ve heard reports that a spouse of a senior official at a European post is allegedly using the diplomatic pouch for personal business use. One of the perks for diplomatic spouses? Oh, goodness, who said that?

What does the … whatchamacallit, the bureaucratic bible for regular employees/senior officials say about this?

The Foreign Affairs Manual section 14 FAM 742.4-3 spells out clearly the “Prohibition Against Shipping Items for Resale or Personal Business Use:”   Authorized pouch users may not use the diplomatic pouch, MPS, or DPO to ship or mail items for resale or personal business use.

Authorized pouch users are typically embassy employees and family members under chief of mission authority.  MPS stands for Military Postal Service and DPO means Diplomatic Post Office.

According to the regs, the prohibition against using the diplomatic pouch for personal items includes, for example:

(1) Household effects (HHE) and unaccompanied baggage (UAB), including professional materials. See 14 FAM 610 for regulations on shipping HHE and UAB. Shipping HHE or UAB by diplomatic pouch to circumvent HHE or UAB weight limits is a serious abuse of pouch privileges and is subject to punitive action requiring the sender to reimburse the U.S. Government for transportation costs (see 14 FAM 742.4-1). (See 14 FAM 742.4-2 regarding consumables);

(2) Items for personal businesses (such as hair-dressing products);

(3) Items for charitable donation (such as school supplies for an orphanage); and

(4) Items for resale (such as cookies).

 

See … not even for orphanages, and not even something small and perishable as cookies if it’s for resale.  Section 14 FAM 726 (pdf) has the specifics for the Abuse of Diplomatic Pouch and includes where to report abuse of such privileges as well as reporting instructions under 1 FAM 053.2 when reporting to the OIG (pdf):

14 FAM 726.1 Abuse of Pouch Privileges

a. Abuse of the diplomatic pouch is generally one of three kinds:

(1) An authorized sender has sent a prohibited item;

(2) An item has been sent by an unauthorized user; or

(3) An authorized user has sent an item through an improper channel.

b. Suspected abuse of the diplomatic pouch must be reported to the pouch control officer (PCO). When abuse does occur, the PCO must take action to correct the problem. Examples of corrective action are listed below; post management must develop, implement, and publish post-specific remedies for pouch abuse:

(1) For a first offense: Oral reprimand with reminder of pouch policies and restrictions, and possible reimbursement of transportation costs (see 31 U.S.C. 9701) after consulting with A/LM/PMP/DPM. The PCO must document all circumstances surrounding the incident;

(2) For a second offense: Written reprimand with reminder of pouch policies and restrictions; and possible reimbursement of transportation costs (see 31 U.S.C. 9701) after consulting with A/LM/PMP/DPM. The PCO must document all circumstances surrounding the incident;

(3) For a third offense: Suspension and restriction of pouch privileges for a limited amount of time as determined by post management, and possible reimbursement of transportation costs IAW 31 U.S.C. 9701 after consulting with A/LM/PMP/DPM. The PCO must document all circumstances surrounding the suspension;

(4) For a fourth offense: Extended suspension of pouch privileges and possible reimbursement of transportation costs (see 31 U.S.C. 9701) after consulting with A/LM/PMP/DPM. The PCO must document all circumstances surrounding the suspension; and

(5) For on-going abuse: Permanent suspension of pouch privileges, imposed by the Director of A/LM/PMP/DPM and possible reimbursement of transportation costs (see 31 U.S.C. 9701) after consulting with A/LM/PMP/DPM. The PCO must document all circumstances surrounding the suspension.

c. Pouch control officers must advise A/LM/PMP/DPM by email to DPM-Answerperson@state.gov, of pouch violations when they occur. Include the name of individual, organization, parent organization in Washington, registry numbers, classification, and a description of the item(s).

d. The Director of A/LM/PMP/DPM will assist post management in interpreting rules and regulations and making decisions if requested to do so. Abuse or misuse of the diplomatic pouch may be investigated further by appropriate law enforcement officials depending on the seriousness of the incident.

e. Employees and authorized users should report suspected or known abuse of the diplomatic pouch or mail services to the Office of Inspector General (see 1 FAM 053.2 for reporting instructions and provisions for confidentiality when reporting).

 

So if  “everyone” knows that the spouse of senior official X uses the diplomatic pouch for running a personal business, how come no one has put a stop to it?  Perhaps it has to do with the hierarchy in post management?  Who is the pouch control officer and who writes his/her evaluation report?  Who is the pouch control officer’s supervisor and who writes the supervisor’s evaluation report?  If a junior officer’s spouse starts importing spices through the pouch for use in a personal chef business, will the pouch control officer look the other way, too?

We understand that the regs apply to the most junior as well as the most senior employees of a diplomatic mission, and similarly applies to both career and political appointees, and their spouses …. or did we understand that wrong?

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Submit Your Complaint to the OIG Hotline:

Online: Click here

Email: oighotline@state.gov

Mail: Office of Inspector General, HOTLINE, P.O. Box 9778, Arlington, Virginia 22219

Phone: 202-647-3320 or 800-409-9926

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Leadership and Management Principles for State Department Employees

Domani Spero
[twitter-follow screen_name=’Diplopundit’ ]

 

Last week, the Office of Inspector General told us that the State Department has already adopted some of the OIG’s major recommendations, such as updating the Foreign Affairs Manual to address leadership (see Don’t Give Up On Us Baby: State Dept OIG Writes Back on Leadership and Management). So we went and look it up. Updated in January 2014, 3 FAM 1214 (pdf) now includes the Leadership and Management Principles for Department Employees. It covers the State/USAID/BBG/Commerce/Foreign Service Corps-USDA and applies to Civil Service and Foreign Service Employees. Excerpt from the relevant section:

a. The Department relies on all employees to represent the U.S. Government in the course of carrying out its mission. The Foreign Service Core Precepts and the Office of Personnel Management’s Executive Core Qualifications, in addition to existing Leadership and Management Tenets, such as those established by Consular Affairs, Diplomatic Security, Economic and Business Affairs, and Public Diplomacy, set clear expectations for their employees. Additionally, the Department as an institution embraces an overarching set of Leadership Principles. The established Department-wide Leadership Principles apply to and can be used by anyone, regardless of rank or employment status (e.g. Civil or Foreign Service, Locally Employed Staff, or contractors). 

b. Supervisors and managers have a unique opportunity and responsibility to lead by example and foster the highest attainable degree of employee morale and productivity. However, you do not need to be a manager to be the leader. 

The following principles reflects the values the Department believes are important for all employees to cultivate: 

(1) Model Integrity – Hold yourself and others to the highest standards of conduct, performance, and ethics, especially when faced with difficult situations. Act in the interest of and protect the welfare of your team and organization. Generously share credit for the accomplishments of the organization. Take responsibility for yourself, your resources, your decisions, and your action;

(2) Plan Strategically – Develop and promote attainable, shared short and long term goals with stakeholders for your project, program, team, or organization. Provide a clear focus, establish expectations, give direction, and monitor results. Seek consensus and unified effort by anticipating, preventing, and discouraging counter-productive confrontation; 

(3) Be Decisive and Take Responsibility – Provide clear and concise guidance, training, and support, and make effective use of resources. Grant employees ownership over their work. Take responsibility when mistakes are made and treat them as an opportunity to learn. Formally and informally recognize high quality performance; 

(4) Communicate – Express yourself clearly and effectively. Be approachable and listen actively. Offer and solicit constructive feedback from others. Be cognizant of the morale and attitude of your team. Anticipate varying points of view by soliciting input; 

(5) Learn and Innovate Constantly – Strive for personal and professional improvement. Display humility by acknowledging shortcomings and working continuously to improve your own skills and substantive knowledge. Foster an environment where fresh perspectives are encouraged and new ideas thrive. Promote a culture of creativity and exploration;

(6) Be Self-Aware – Be open, sensitive to others, and value diversity. Be tuned in to the overall attitude and morale of the team and be proactive about understanding and soliciting varying points of view; 

(7) Collaborate – Establish constructive working relationships with all mission elements to further goals. Share best practices, quality procedures, and innovative ideas to eliminate redundancies and reduce costs. Create a sense of pride and mutual support through openness; 

(8) Value and Develop People – Empower others by encouraging personal and professional development through mentoring, coaching and other opportunities. Commit to developing the next generation. Cultivate talent to maximize strengths and mitigate mission-critical weaknesses; 

(9) Manage Conflict – Encourage an atmosphere of open dialogue and trust. Embrace healthy competition and ideas. Anticipate, prevent, and discourage counter-productive confrontation. Follow courageously by dissenting respectfully when appropriate; and

(10) Foster Resilience – Embrace new challenges and learn from them. Persist in the face of adversity. Take calculated risks, manage pressure, be flexible and acknowledge failures. Show empathy, strength, and encouragement to others in difficult times;

And here is a detail appended to this section of the Foreign Affairs Manual on spouses; keep this handy should some senior spouse try to twist your arms to do something you’d rather not be doing:

3 FAM 1217 Participation of Spouse
(CT:PER-571; 09-27-2005) (Uniform State/USAID/BBG/Commerce/Foreign Service Corps-USDA) (Applies to Foreign Service Employees Only) 

Unless working as an employee or contractor, participation of a spouse in the work of a post is a voluntary act of a private person, not a legal obligation which can be imposed by any Foreign Service officer (FSO) or spouse. Nonparticipation of a spouse in representational, charitable, or social activities in no way reflects on the employee’s effectiveness on the job.

As always, we’d like to know how this works in real life.

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