The Foreign Service Journal, January 2005

appearance by the Russian young man in federal court in a wheelchair, attended by several handlers. The government opposes this petition, contending that an FSO is not on duty 24/7, as the FSO has been taught. The Department of State takes the position that it is not responsible for protecting the FSO, because the officer was only “com- muting” when the accident occurred. It is of no consequence to the Department of State that the FSO was driving his private vehicle only to save the department money, or that, as consul general, he was entitled to home-to-work trans- portation. The court accepts the position of the Department of State, forcing the FSO to appeal to the U.S. Court of Appeals for the Ninth Circuit. Ironically, had the Department of State certified the FSO as acting within the scope of employment, the case would have been dismissed as to both the FSO and the United States. This is so because the United States has declined to waive its sovereign immunity as to lawsuits that arise in foreign countries. The Russian plaintiff would be left to seek compensation in the courts of his own country — perhaps against the driver of the black vehicle in which he was riding as a hitchhiker, or as a paying rider, at the time of the accident. A Poor Rationale Sadly, this is not some hypotheti- cal case study in a legal tome. It is happening to Douglas Kent — and it could happen to other Foreign Service employees. It simply makes no sense for the United States to send its citizens into harm’s way and not afford them complete protection from the fore- seeable vicissitudes of Foreign Service work. Yet the Department J A N U A R Y 2 0 0 5 / F O R E I G N S E R V I C E J O U R N A L 23 F S K N O W - H O W u AFSA to File Amicus Brief on Behalf of Douglas Kent A FSA has been working with Mr. Kent and his attorneys in connection with his efforts to have the U.S. government certify that his automobile acci- dent in Vladivostok occurred in the “scope of his employment.” Given the importance of this issue to all of the members of the Foreign Service who could find themselves in similar situations, AFSA filed a declaration with the fed- eral district court in California in May 2004 on Mr. Kent’s behalf. In that declaration, we advised the court that State Department-published pol- icy provides that Foreign Service employees are considered to be on duty 24 hours a day. 3 FAM 4376 states: ‘Because of the uniqueness of the Foreign Service, employees are considered to be on duty 24 hours a day and must observe especially high standards of conduct during and after working hours and when on leave or travel status.’ Department of State officials have, in my pres- ence, stated on numerous occasions that given the nature of the representative function, Foreign Service employees are on duty 24 hours a day and that the employees are aware of that obligation. This concept is continuously reinforced during the orientation program for entry-level Foreign Service officers. We also advised the court that we have represented numerous clients who have been proposed for disciplinary action for incidents that occurred outside normal workplace activities, such as traveling on vacation to where the depart- ment had issued a travel warning or going out late at night in a dangerous area in a foreign country. In support of discipline, the State Department argued that the Foreign Service employee was at post “to further the interest of the United States government, not pursue his own pleasures.” The lower court stated: “According to the Foreign Affairs Manual and Ms. Papp’s declaration, Foreign Service employees stationed abroad may be subject to discipline for their con- duct outside the work place, although Ms. Papp stops well short of declaring that employees have been disciplined for the type of conduct involved in the present case.” The lower court got it wrong. In fact, Foreign Service employees have been severely disciplined for automobile accidents occurring in their own auto- mobiles, after hours. On Oct. 6, 2004, the AFSA Governing Board voted unanimously to apply to file an amicus curiae (friend of the court) brief on behalf of AFSA member Douglas Kent in his appeal of the lower court’s decision regarding the scope of his employment. The board also voted to provide $5,000 to his legal defense fund. Given AFSA’s limited resources, the board rarely provides financial support to individual cases. However, in this case, the board felt that the issue was of sufficient importance to our members as a whole. — Sharon Papp AFSA General Counsel