The Foreign Service Journal, October 2007

OC T OB E R 2 0 0 7 / F OR E I GN S E R V I C E J OU R N A L 69 of the employee’s resignation. It suspend- ed the remaining issues that were raised in themotion for reconsiderationpending the outcome of a hearing on the voluntariness of the resignation. Facts of the Case In late 2003, the director general pro- posed the separation for cause of an FSO after his top-secret security clearance was revoked based on his inappropriate use of government equipment in2000. [Note: In 2002, the department attempted to disci- pline the employee for the same incident, but the Grievance Board found that the maximum reasonable penalty was an admonishment, a cautionary letter that is not put in the employee’s official file and is destroyed after one year.] Under the Foreign Service Act, employees (other than those who have been convicted of a crime) are entitled to a hearing on separation for cause before the FSGB, unless they waive that right. They are placed in a leave-without-pay sta- tus pending the outcome of the hearing. The FSOin this case didnot waive his right to a hearing, so the parties engaged inpro- tracted discovery and litigation for 19 months. The employee alleged that the Diplo- matic Security Bureau and the Security Appeal Panel committed grave procedur- al errors during the revocationof his secu- rity clearance. For example, DS employ- ees had ex parte communicationswith the panel after the employee and his counsel were excused from the meeting. In addi- tion, the SAP and the director of DS, in revoking the employee’s clearance, relied on witness statements that the employee was not permitted to view. These proce- dural errors denied the employee the right to notice of, and an opportunity to respond to, the reasons for the clearance revocation. The employee also alleged that his fir- ingwould not be in the best interest of the Foreign Service, because he was continu- ing tomake ameaningful contribution to the State Department despite the revoca- tionof his security clearance. Henoted that he hadbeen recommended for promotion to FS-2 in 2000 as well as 2004, despite his lack of a clearance. However, the promo- tionwas held up due to the discipline case discussed above and the subsequent sepa- ration-for-cause proceeding. The employee alsocitedcompellingper- sonal factors that militated against his fir- ing. These included the fact that, at the time, hehadonly threeyears togobefore becom- ing eligible for voluntary retirement, sohis family’s pre-existing medical conditions made it essential that hemaintainhis gov- ernment health insurance. A Legal Catch-22 As the sole breadwinner for his family, the employeeneeded to findother employ- mentwhile fightinghis separation for cause before theGrievanceBoard. He took low- paying, part-time jobs in the private sector until, after 19months ofmandatory leave- without-pay status, he was able to secure a position at another federal agency. When that agency requested that the State Department send over his official person- nel file, State refused, stating that it could not release the file until the employee resigned. Fearing that hewas placing his new job in jeopardy, and under severe financial duress, the employee tendered his resig- nation in2006, but stated inhis resignation letter that he intended topursue his appeal rights before the Grievance Board. Upon receipt of his resignation letter, the acting director general, without prior notice to the employeeor his counsel,withdrewthepro- posed separation for cause, claimed the board no longer had jurisdiction over the case and sought to terminate all of the employee’s appeal rights. Unfortunately, theGrievanceBoarddis- missed the employee’s case, acting on the mistakenbelief that the StateDepartment’s withdrawal of the proposed separation deprived it of jurisdiction over all of the issues that theparties hadbeen litigating for the past 19 months. The department argued, and the board agreed, that prior to going off the rolls of the department, the employee was required to file a separate grievancewith the department alleging all A F S A N E W S New Hearing • Continued from page 61 Continued on page 74 AFSA Creates Legal Defense Fund and Seeks Contributions O ver the years, the AFSA Governing Board has contributed money toward the legal fees of Foreign Servicemembers with cases that are of institutional impor- tance toAFSAand itsmembers. For example, AFSAcontributed$5,000 to assist a Foreign Service officer as he sought to have the U.S. government protect him from a private lawsuit by a Russian national who was injured in a car accident in Vladivostok, where the FSOwas serving as consul general. (For details, see “TheCGIsOnDuty 24/7: Court Agrees,” October 2006, AFSANews .) AFSA also contributed to the legal costs of two USAID employees who were forced to go to court to enforce favorable Grievance Board decisions. To date, these contributions to assist members facing high legal fees have come from the limited resources of AFSA’s Labor Management Office. Many federal unions have legal defense funds in place so that they can finance pri- vate counsel to pursue cases of significance to the union and its membership. While AFSA’s four full-time attorneys work tirelessly to help our members (without charging them), some cases, especially those requiring a hearing, require the time and expertise of private counsel. With this in mind, AFSA announces the creation of its own legal defense fund. Individuals—especially those who have benefited from free legal representation by AFSA — are encouraged to make a contribution to the fund. Please make out your check to “AFSA Legal Defense Fund” and mail it to AFSA (Attn: Legal Fund), 2101 E StreetNW,WashingtonDC20037. Pleasenote that contributions arenot taxdeductible, but we hope that will not discourage you from contributing to this important fund.