State VP Voice

BY TOM YAZDGERDI

We have previously written about the importance of having professional liability insurance (see the July/August 2016 FSJ, bit.ly/fsj-liability). And our advice remains the same: Yes, absolutely get it!

Liability insurance is intended to provide 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.

Not Just for SFS

This kind of insurance is not just for senior-level Foreign Service members. At every level, consular officers, economic officers, management officers and diplomatic security agents make decisions and take actions every day that can affect the people they work with or the public.

Such decisions or actions could include declining to issue a visa, interacting with American companies, launching a security investigation and more. Foreign Service employees may be investigated or sued for carrying out their official duties.

The State Department encourages the purchase of professional liability insurance, and even has a policy in place to reimburse supervisors and management officials for up to 50 percent or $175 (whichever is less) of the cost of the premium.

Visit bit.ly/liability-guidance for department guidance on this subject. Employees can use the Claim for Reimbursement for Expenditures on Official Business form (OF-1164).

What’s Covered?

Whether legal fees are covered by professional liability insurance policies for testifying before Congress during the impeachment hearings is a question our members have been asking. Disappointingly, we have heard from members who have testified that most have been denied such coverage through their liability policies.

Professional liability policies cover depositions or testimony before Congress or congressional committees only if the policyholder is the subject of the inquiry. However, some providers recognize that a person who is a witness one day may be the subject of an inquiry the next.

In choosing a provider, you should review the policy coverage carefully.

Ask these questions:

• What type of claims do you cover?
• Have you covered testimony before Congress or a committee? If so, under what circumstances?
• Do you provide coverage for security clearance proceedings? If so, under what circumstances?
• Do you provide free legal consultations for pre-complaint or other matters?
• Who does your legal work? (You will want to ensure that the insurance company assigns an attorney who has the requisite legal expertise and experience.)
• What is the financial rating of the underwriter of your company? (You will want to know the underlying financial strength of the company.)
• For those contemplating switching from one insurance company to another: Do you provide coverage for events that occurred prior to the effective date of coverage?
• Do you provide coverage after I leave federal service? For how long?

Who Is My Lawyer?

It is the government’s decision whether to represent the employee. In most cases, your agency will represent you if you are sued for performance of your duties or called to testify before Congress or a committee.

But if the agency does not believe you were acting within the scope of your employment; if your interests and the agency’s do not coincide; or as we have seen during the recent impeachment inquiry, if agency attorneys are not permitted to attend the proceeding, the government may not represent you.

Even if your agency will provide a government attorney, the attorney represents the government, not you. Finally, if your agency is investigating you or proposing discipline against you, it will obviously not represent you.

AFSA represents members in noncriminal investigations by the Office of Inspector General and the Bureau of Diplomatic Security’s Office of Special Investigations, as well as disciplinary cases and grievances.

While AFSA’s staff attorneys are experts in federal employment law, they do not have the specialized expertise required to represent members in criminal cases, civil litigation or in congressional hearings.

While AFSA can represent you in most cases that may arise in the course of your career, we believe it is prudent to have professional liability insurance for those rare instances in which we cannot.

If You’re Denied Coverage

If your insurance company denies coverage, please contact AFSA Labor Management (afsa@state.gov), and we will see how we can assist you.

For more details on PLI, see bit.ly/afsa-liability.

A list of PLI companies is at afsa.org/insurance-plans.