The Foreign Service Journal, January-February 2020

58 JANUARY-FEBRUARY 2020 | THE FOREIGN SERVICE JOURNAL STATE VP VOICE | BY TOM YAZDGERDI AFSA NEWS Contact: YazdgerdiTK@state.gov | (202) 647-8160 Professional Liability Insurance: Peace of Mind in a Troubled Time We have previously written about the importance of having professional liability insurance (see the July/ August 2016 FSJ , bit.ly/ fsj-liability). And our adv ice remains the same: Yes, abso- lutely get it! Liability insurance is intended to provide legal rep- resentation and indemnity protection against the risks and financial consequences of a claim or allegation aris- ing 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, manage- ment officers and diplo- matic 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 inves- tigation and more. Foreign Service employees may be investigated or sued for car- rying out their official duties. The State Department encourages the purchase of professional liability insur- ance, and even has a policy in place to reimburse super- visors 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 cov- ered by professional liability insurance policies for testify- ing before Congress during the impeachment hearings is a question our members have been asking. Disappointingly, we have heard frommembers who have testified that most have been denied such cover- age through their liability policies. Professional liability policies cover depositions or testimony before Congress or congressional commit- tees 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 testi- mony before Congress or a committee? If so, under what circumstances? • Do you provide coverage for security clearance pro- ceedings? If so, under what circumstances? • Do you provide free legal consultations for pre-com- plaint 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 rat- ing 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 repre- sent the employee. In most cases, your agency will rep- resent 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 employ- ment; 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 pro- ceeding, the government may not represent you. Even if your agency will provide a government attor- ney, 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 attor- neys are experts in federal employment law, they do not have the specialized exper- tise required to represent members in criminal cases, civil litigation or in congres- sional 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 liabil- ity insurance for those rare instances in which we cannot. If You’re Denied Coverage If your insurance company denies coverage, please con- tact 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. n