State VP Voice

BY ANGIE BRYAN

One of the most common questions we hear is “Should I purchase professional liability insurance?” Our response? “Absolutely.”

Professional liability insurance provides legal representation and indemnity protection against the risks and financial consequences of a claim, or allegation arising from the performance of one’s job duties.

Foreign Service members—especially consular officers, diplomatic security agents, management officers and senior managers—make decisions and take actions every day that can affect the people they work with or the public at large. Such decisions could include declining to issue a visa, launching a security investigation and more. Foreign Service employees may be investigated or sued for carrying out their official duties.

Employees have used professional liability insurance to cover costs associated with such things as Office of the Inspector General and Diplomatic Security/Office of Special Investigations inquiries, congressional testimony, defense from a civil lawsuit (foreign or domestic), allegations of wrongdoing and defense against a whistleblower or ethics complaint.

Employees who carry this insurance will have their administrative expenses covered if the claim arises out of any act, error or omission committed by the employee in the course of the performance of his or her official duties. This means the insurance company will appoint a lawyer to represent the employee in any judicial sanction or disciplinary or criminal proceeding instituted against him or her because of his or her job actions.

In addition, the insurance company will be liable for defense costs and any monetary penalties (up to the limit of the insurance policy). The cost of professional liability premiums in such cases is certainly far more palatable for the employee than having to retain a private attorney, whose fees could range from $275 to $375 per hour in this area.

Many employees believe that they don’t need professional liability insurance because their agency will represent them if they are sued as a result of performing their duties. That decision is actually up to the particular agency—if it does not believe that you were acting within the scope of your employment, or if your interests conflict with your agency’s, then it will not represent you.

Your agency will provide a U.S. government attorney if you are called to testify before Congress; but that attorney represents the agency, not you. Of course, if your agency is investigating or proposing discipline against you, it will not represent you.

Even if your agency agrees to represent you, a professional liability insurance policy is useful because the insurance company may assign an attorney to monitor and oversee the defense provided by the government.

Thus, professional liability insurance should be viewed as a “supplemental” insurance policy for those situations where the government will not pay attorney fees or, while paying the fees, may not pay any damage award assessed against the employee.

Some employees think they don’t need professional liability insurance because AFSA will represent them. While that may often be the case, AFSA’s resources are not limitless and must be prioritized. AFSA considers the following to go beyond what AFSA’s limited resources can support: EEO cases, FSGB hearings or appeals to courts.

What’s more, while AFSA routinely helps with non-criminal OIG cases and DS/OSI investigations, as well as disciplinary cases and grievances, AFSA does not represent members in criminal investigations or in civil lawsuits.

For instance, if a Diplomatic Security agent is involved in a shooting incident in the performance of his or her duties that could result in criminal or civil charges, or if a member of the Service is involved in a car accident while on the way to an official function that results in bodily harm to another person, professional liability insurance could provide coverage and representation that AFSA would be unable to provide.

We therefore advise our members to take out professional liability insurance. The State Department actively encourages the purchase of professional liability insurance, and even has a policy in place to reimburse certain employees for up to 50 percent or $175 (whichever is less) of the cost of the insurance premium.

Visit http://bit.ly/28LVTWt for department guidance on this subject. Employees can find the Claim for Reimbursement for Expenditures on Official Business (SF-1164) on the forms page at the State Department intranet site.

While AFSA does not recommend any particular company, we do offer a list of possible providers of professional liability insurance at www.afsa.org/insurance-plans.