On June 27, 2016, Diplomatic Security’s Office of Special Investigations (DS/OSI) began recording interviews in the U.S. of employees under investigation. While FS employees have the right to AFSA representation during such interviews, DS/OSI is not required to inform or remind them of that right at the beginning of each interview. If you take away only one point from this guidance, it should be the following: as soon as you are asked for an interview, contact AFSA for guidance.
DS/OSI to Implement Major Procedural Change
Following the conclusion of negotiations between the Department, AFSA, and AFGE (the American Federation of Government Employees), on June 27, 2016, DS/OSI began audiovisual recording of interviews conducted in the United States of employees (both Foreign Service and Civil Service) who are the subject of both criminal and non-criminal investigations. This represented a major change from past practice, in which DS/OSI had to obtain the employee’s permission to record the interview.
In 2013, the Department authorized DS/OSI to begin conducting overt domestic audiovisual recording of interviews of Foreign Service (and Civil Service) employees under investigation. As this was contrary to the Department’s long-standing policy of not recording its employees without their agreement (known as “the Vance Memo”), AFSA’s 2013-2015 Governing Board fought hard to roll back this exception. Despite AFSA’s attempts, in 2015 the Deputy Secretary for Management and Resources upheld the exception. While AFSA legally was not able to prevent DS/OSI from recording interviews without permission, we did have the authority to negotiate the impact and implementation of such recordings.
Right to AFSA Representation
Under the Foreign Service Act of 1980, as amended, Foreign Service employees have the right (known as the “Weingarten Right”) to be represented by AFSA in an interview if they reasonably believe that it could result in disciplinary action and they request representation. Weingarten Rights are not, however, like the Miranda warning – the investigating office is not required to inform employees of this right at the beginning of each investigation. The Department is required to notify employees of this right only annually, which it does via an ALDAC. AFSA and AFGE fought hard to convince DS/OSI to notify employees of their right to representation. DS/OSI did not agree to do so. Consequently, we urge all AFSA members to reach out to AFSA for assistance immediately upon being contacted for an interview. The investigating office’s decision not to tell you that you have the right to representation does not mean that you cannot exercise your right to such representation. Furthermore, if a member has agreed to an interview and, during the interview, decides he or she would like to have an AFSA representative present, it is not too late for the member to invoke his or her Weingarten right. The interviewing office has two choices: it must either allow the employee a reasonable opportunity to secure union representation or advise the employee that it does not wish to wait until union representation is available and plans to carry on its investigation without interviewing the employee. The employee then has a choice about whether to stop the interview or proceed without representation. We strongly urge employees to stop the interview and contact AFSA.
What Can AFSA Do For You?
The right to representation during investigatory interviews applies to all interviews conducted by agency representatives, including interviews conducted by the Office of the Inspector General (OIG), the Regional Security Office (RSO) at post, other offices within DS, and the Office of Civil Rights (OCR). AFSA reserves the right, however, to decline representation in those rare cases where the allegations involve violation of criminal laws or where AFSA has a conflict of interest. In such cases, AFSA will provide employees with our attorney referral list and work with private counsel, if appropriate.
The presence of AFSA during interviews serves several useful purposes. We ensure that the investigator affords the employee all of his or her rights and conducts the interview in an appropriate fashion. We confer privately with the employee, if necessary, to answer his or her questions or provide guidance. We clarify the employee’s responses or the investigator’s questions, if it appears there is a misunderstanding. We take notes during the interview and review any sworn statements.
Once again, if DS, the RSO, the OIG, or OCR contacts you requesting an interview, call AFSA immediately at (202) 647-8160 or email us at firstname.lastname@example.org or email@example.com. We also encourage you to review our guidance on investigations here. You can find the full text of the agreement signed at the conclusion of the negotiations here.