The Foreign Service Journal, January 2011

A s Foreign Service members, we take justifiable pride both in serving our nation and in belonging to an elite group of talented and professional people. We seek to uphold the highest standards of integrity, productivity and patriotism throughout the Foreign Service. If colleagues do not measure up to the highest stan- dards, we want them gone. In this vein, I occasionally hear from employees who allege that AFSA impedes the proper purging of bad employees from the Service. I would like to set the record straight. AFSA shares a common desire not only to maintain high standards, but to elevate them. We are, however, committed to obliging the foreign affairs agencies to maintain the same high standards that they expect from their employees. Our role is to ensure that employees are treated fairly, that allega- tions are backed by evidence, and that decisions and actions are balanced and based on consideration of all factors re- quired by law or regulation. While many of our clients have erred, many have done so unwittingly; some have simply found themselves in the wrong place at the wrong time. Oth- ers have made mistakes due to compelling personal reasons or amedical problem, such as alcoholism, depression or Post- Traumatic Stress Disorder. These are often one-off events and should be addressed with those factors in mind. We also push to ensure that the processes used are appro- priate to the concern— that disciplinary matters are treated through disciplinary procedures, security through security procedures and performance issues through performance as- sessment processes. There is a tendency for the department to lock onto a certain desired outcome and improperly mix and match processes, such as using the security clearance or low-ranking system to purge the agency of employees when there is insufficient evidence to separate them for cause. On occasion, employees accused of an act of misfeasance receive no discipline but instead face clearance revocation or low- ranking simply because those processes require less evidence. If an employee is to be fired, suspended without pay or have a clearance suspended, we want to ensure that due process has been followed. We are guided by a number of principles, particularly those laid out in Titles 5 and 22 of the U.S. Code. Under Title 5, agencies may not take adverse actions without meeting a burden of proof to establish the facts, identify a nexus be- tween the facts and the efficiency of the Service, consider mit- igating factors, and apply a penalty proportionate to the alleged infraction. They may not act arbitrarily or capri- ciously, or in violation of any law; they must follow their own rules; and they may not discrimi- nate against employees based on age, sex, race, religion, ethnicity, sexual orientation or disability, among other things. Title 22 in- cludes the Foreign Service Act, and contains additional rules specific to the Foreign Service. Many issues handled by AFSA’s Labor Management staff involve an agency action contrary to the agency’s own rules, one which fails tomeet the burdens of proof described above, or which appears disproportionate to the issue of concern. It is important to understand that administrative actions such as disciplining an employee, revoking a security clear- ance, or recommending an employee for selection out are not constrained by the same safeguards that protect Americans from improper actions in a judicial setting. Cases can be de- cided by officials invested in a particular outcome. Processes are not always transparent, subject to case-level oversight, or even fully recorded. An employee is seen as guilty until proven innocent, with the burden of proof usually placed on himor her. Employees are often unaware of their rights or of the seriousness of their situation until after the process has turned against them, whenAFSA’s ability to help has been di- minished. With regard to performance, until this year when an agreement between AFSA and State lowered the quota to 2 percent, the State promotion boards had tomeet an arbitrary 5-percent quota of low rankings. Many perfectly satisfactory employees were low-ranked, facing possible selection out, solely because the boards had to fill that quota. In some cases, alleged poor performance turns out to be a failure by the agency to provide training or resources or an attempt to blame a lower-ranking employee for a superior’s mistakes. Like all FSmembers, we want to see the Foreign Service be the best it can be, and we have no sympathy for those who abuse their positions. But AFSAwants to ensure that adverse actions are reserved for those who deserve them, and that good or innocent employees are not unfairly included in that category. J A N U A R Y 2 0 1 1 / F O R E I G N S E R V I C E J O U R N A L 51 A F S A N E W S Protecting Your Rights While Maintaining High Standards V.P. VOICE: STATE BY DANIEL HIRSCH Employees are often unaware of their rights or of the seriousness of their situation until after the process has turned against them.