D/SecState Biegun Alerts @StateDept Employees to Updated Guidance For Political Activities Restrictions

State Department employees on February 19 woke up to a love letter in their inbox from their new Deputy Secretary of State Steve Biegun. The Deputy Secretary says that he is looking forward to highlighting his priorities relating to people, policy and process but the new email was aimed at tackling “the first issue”, that is, how they can  “work together to ensure we do not improperly engage the Department of State in the political process.”
He writes  that “One of the great strengths of our country is its democratic process, which we proudly showcase in our global engagements.”
(Uhm…okay).
He talks about the political debate going on and the agency’s far-reaching restrictions “designed to ensure our representation overseas is not perceived as partisan.”

It is not lost on any of us that there is a national political debate going on around us that manifests itself daily in news feeds, questions and comments from our foreign contacts, and communications from friends via emails and social media. I have spent my career at the intersection of foreign policy and politics, so I recognize that it can be personally challenging to keep politics outside of daily engagements. This, however, is what our laws and policies require. State Department employees, like all federal employees, are subject to restrictions on engaging in partisan political activity while at work and outside of work. We often talk of Hatch Act requirements, but in truth the Department has more far-reaching restrictions designed to ensure our representation overseas is not perceived as partisan.

Apparently, Mr. Pompeo recently approved “updated guidance  for political activities restrictions that apply to all Department employees.” Further, Mr. Biegun notes that “Department legal requirements and policies, which have been in place for decades, are broad and bear careful review.”
He tells employees that “obligations differ based on your employment status” and reveals that “as a Senate confirmed Department official, I will be sitting on the sidelines of the political process this year and will not be attending any political events, to include the national conventions.”
His message does not say if all Senate-confirmed Department officials will also sit on the sidelines.
He writes that while he is not active on social media, he encourage employees “to think about your own practices and how the guidelines provided by the Office of the Legal Adviser might apply to your social media activity.” Further, he also shared that he intends “to be thoughtful in how I respond to emails from friends that have even the appearance of partisan political content.”
Apparently, there are three new Department memoranda which summarize political activity guidance for each of three categories of Department employees—
(1) All Presidential Appointees and All Political Appointees
(2) Career SES Employees
(3) All Department of State Employees (Other than Career SES, Presidential Appointees, and Political Appointees)
(—as well as special guidance for employees and their families abroad).
The Office of the Legal Adviser has issued three political activities memoranda but they are behind the firewall, so we do not, as yet, know what they say.  He is asking employees “to review the guidelines carefully so that together we can ensure that our Department work is above reproach.”
(Can somebody please FOIA these updated guidance?)
Mr. Biegun also cited 3 FAM 4123.3 (Employee Responsibilities Abroad/Political Activities): https://fam.state.gov/fam/03fam/03fam4120.html — see 3 FAM 4123.3  for Political Activities
He ends his message with:

“I am impressed by the discipline and unfailing professionalism that I see across our Department team on a daily basis, exemplifying the Secretary’s Ethos statement. I hope you will join me in carefully adhering to these restrictions designed to support our nonpartisan foreign policy.”

Oops! We read “Secretary’s Ethos statement” and we nearly fell off our chair like a drunken master.
Ay, caramba!
Bonus report below about the deputy secretary’s boss’ recent 17-minute speech at a city of 3,100 people in Florida and then you all can have a town hall meeting about how to ensure that the Department’s work is beyond reproach.
In any case, it sounds like employees who want to learn more  may attend a special training session by the Office of the Special Counsel scheduled for March 13 in Foggy Bottom. It doesn’t sound like senior State Department officials and advisers who are active and partisan on social media are required to attend the training session. State/D’s message only notes that he is attending the OSC’s session, and it is “a regularly scheduled session available to all employees.”

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State Dept Updates 3 FAM 4140 Guidelines For USG Personnel Taken Hostage

Posted: 1:49 pm EDT
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We’ve previously blogged about the Iran hostages here (see Supremes Say No to Appeal from US Embassy Iran HostagesJanuary 20, 1981: The Iran Hostages – 30 Years LaterNovember 4, 1979: Iranian Mob Attacks US Embassy Tehran; Hostages Compensated $50/DayThe Iran Hostages: Long History of Efforts to Obtain Compensation).

In light of the significant shift in hostage taking by terrorists organizations (media reports say that there are roughly 30 Americans held hostage overseas), President Obama directed a comprehensive review of U.S. policy toward overseas hostage-takings last year.  On June 24, 2015, President Obama approved Presidential Policy Directive (PPD) 30, U.S. Nationals Taken Hostage Abroad and Personnel Recovery Efforts and issued an Executive Order on the recovery of U.S. hostages taken abroad, which directs key organizational changes “to ensure that the U.S. Government is doing all that it can to safely recover Americans taken hostage overseas and is being responsive to the needs of their families.”  According to the Fact Sheet, PPD-30 “reaffirms” the U.S. Government’s dedication to achieving the safe recovery of U.S. nationals taken hostage abroad

On August 28, 2015, President Obama announced the appointment of James O’Brien as Special Presidential Envoy for Hostage Affairs (see President Obama Appoints James O’Brien as First Special Presidential Envoy for Hostage Affairs).

This past June, the State Department also updated its Foreign Affairs Manual related to U.S. Government personnel taken hostage. That affirmation for safe recovery is item one on the updated FAM, a language that had been absent from the rules books for at least 20 years.

Note that per 2 FAH-1 H-115.3, the new version does not comply with the standard FAM colors, which requires that new or revised material be shown in both darkmagenta™ (R139,G0,B139) and in italic. We’ve marked the changes below for easier identification.

3 FAM 4143 GUIDELINES FOR U.S. GOVERNMENT PERSONNEL TAKEN HOSTAGE (pdf via state.gov)

(CT:PER-770; 06-02-2015)
(State/USAID/BBG/Commerce/Foreign Service Corps-USDA) (Applies to Foreign Service and Civil Service Employees) 

a. The U.S. Government will make every effort to recover U.S. Government personnel who are victims of a hostage taking incident while serving abroad.

b. Individuals who are taken hostage should be aware that their captors may seek to exploit their knowledge of sensitive information to the detriment of the United States or their fellow hostages. Individuals should be mindful that whatever they say may be used to mislead or punish their colleagues, and that information obtained from one captive may be used when interrogating another. Captured individuals should not divulge classified or sensitive information and should not discuss sensitive aspects of the work of any fellow hostages.

c. Individuals should be aware that active members of the U.S. Armed Services who are taken captive are subject to different legal authorities and organizational policies when they are captured, due to their possible status as Prisoners of War. For additional information please reference Executive Order 10631.

d. If detained with other captives, it is essential to avoid internal conflicts within the group and maintain a unified approach to the captors (e.g., group agrees not to discuss religion, politics or the economy with the captors).

e. While awaiting rescue, individuals taken hostage should make an effort to:

(1) Eat and drink to preserve their health and seek opportunities to remain mentally active;

(2) Circumstances permitting, build rapport with their captors by humanizing themselves;

(3) Leave evidence of their presence in each location (such as strands of hair, fingerprints, blood, bits of fingernails, etc.); and

(4) Maintain faith in their individual beliefs and have confidence in the efforts of their family and the U.S. Government to obtain their release.

f. If asked to produce evidence of proof of life, such as a photo or a video, it is advisable to do so as it confirms the individual’s continued survival to family and possibly the U.S. Government entities working on your release, and aids in the negotiation process.

g. The decision to attempt escape rests with the individuals concerned based on their judgment, environment, and level of threat. However, the decision should be consistent with the considerations set forth above.

h. In the event of a recovery operation, individuals awaiting rescue should drop to the ground, ensure their hands and face are visible, and identify themselves as American citizens.

i. For more information, Department personnel can follow this link to the High Threat Security Overseas Seminar: Abduction: Prevention, Preparation and Response for Individuals.

j. Hard and fast rules are not always helpful and the U.S. Government recognizes that the ability of individuals to resist extreme pressure differs. But, to the extent possible, one must help one’s colleagues and avoid exploitation. Sound judgment is essential.

Below is the old 3 FAM 4143 guidelines that took effect on November 8, 1995; we have not been able to find a version in effect after 1995 and before it was superseded by the June 2, 2015 version (pdf via the Internet Archive):

3 FAM 4143 GUIDELINES FOR U.S. GOVERNMENT PERSONNEL TAKEN HOSTAGE
(TL:PER-303; 11-08-1995)
(Uniform State/USAID/USIA/Commerce/Foreign Service Corps-USDA) (Applies to Foreign Service and Civil Service Employees)

a. U.S. Government personnel serving abroad are expected to be mature, responsible, and patriotic individuals for whom the concept of service has a real and personal meaning.

b. Individuals who are taken hostage should be aware that their captors may seek to exploit them. Their captors may be seeking information to be used to the detriment of the United States or of their fellow hostages, and are likely to use information obtained from one captive when interrogating another. Individuals should consequently be guided by the knowledge that whatever they say may be used to mislead or punish their colleagues and that their actions may result in reprisals.

c. Captured individuals should not discuss sensitive aspects of the work of their fellow hostages. They should not divulge classified or sensitive information. They should not sign or make statements or take action which they believe might bring discredit to the United States.

d. The decision to attempt escape rests with the individual concerned. However, the decision should be consistent with the considerations set forth above.

e. Hard and fast rules are not always helpful and the U.S. Government recognizes that the ability of individuals to resist extreme pressure differs. But, to the extent possible, one must help one’s colleagues and avoid exploitation. Sound judgment is essential.

Here is also quick guidance per 2 FAH-1 H-112.3 on how to tell if employees have discretion to deviate from the instructions in the Foreign Affairs  Manual. The Foreign Affairs Handbook instructs FAM drafters that “information must be clear, and the discretion of the reader to deviate from instructions must be clear.” Level of discretion is to be described by the use of three auxiliary verbs: “must,” “should,” and “may.”

(1) Mandatory:  “Must” is used to advise the reader that he or she has no discretion to deviate from the instructions. In some cases, the reader will have no discretion, but another person or entity can grant authority to deviate from the instruction. If that’s the case, the person with authority and the circumstances under which the authority may be exercised is identified (by title) or office (by name/symbol);

(2) Recommended: “Should” is used to advise the reader that the instruction is the Department’s preferred approach. However, the word “should” permits the reader to deviate if the reader can accomplish the objective in another way. FAM drafters are told to “clearly specify how much discretion the reader has, and advise the reader if he or she must justify any deviations. Use the term “recommended” if you believe the word “should” will not convey these points adequately in the context of the sentence. Either define the word “should” or hyperlink to this definition at the beginning of subchapters in which the word appears.”

(3) Advisory:  “May” is used to advise the reader that he or she has the option to pursue alternative courses of action. “May” is used when neither law, regulation, nor management policy dictates which of several options to follow.

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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.

Screen Shot 2015-03-18

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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