Memo Opposing an Amendment in Section 309,
Suspension or Enforced Leave

To: Brian McKeon
From: Sharon Papp, AFSA General Counsel
Date: March 31, 2003
Re: Section 309 Suspension or Enforced Leave

AFSA opposes the amendment sought by the Department of State in Sec. 309 (a)(1) and (3) in the proposed Authorization Act for FY 2004 and 2005. Such amendment would permit the Secretary to suspend a member of the Foreign Service without pay, or place the member on enforced leave without pay, (1) where there is an investigation regarding the revocation of an employee's security clearance or a suspension of an employee's security clearance and (3) for such other cause as will promote the efficiency of the Service.

The Section-By-Section Analysis that accompanies the proposed amendment states that the "amendment brings the Foreign Service into parity with the Civil Service." AFSA submits that it is not valid to compare Foreign Service employees to Civil Service employees in this regard given the very different conditions of employment faced by Foreign Service employees. Congress recognized the unique conditions faced by Foreign Service employees when it provided the Foreign Service Grievance Board the authority to grant prescriptive or interim relief to employees facing disciplinary action and separation for time-in-class and relative performance. This broad grant of authority to the Grievance Board to award prescriptive relief pending the outcome of the merits of the grievance was based upon Congress's concern to avoid the significant and perhaps irreparable dislocations which interruption of a Foreign Service career may entail. Such authority is also consistent with the Grievance Board's authority to ensure the "fullest measure of due process for members of the Foreign Service" (22 U.S.C. 3901(b)(4) and Congress intent to "minimiz[e] the impact of the hardships, disruptions, and other unusual conditions of service abroad upon the members of the Foreign Service, and mitigating the special impact of such conditions upon their families" (22 U.S.C. 3901(b)(5).

Foreign Service employees make a big sacrifice to serve their country aboard. They give up their ties to the United States and spend their careers in occupations that are not easily transferable to the private sector or, indeed, to other sectors of the public service. Their spouses are often forced to give up their professional aspirations/careers as it is difficult to obtain meaningful employment overseas. Thus, contrary to the norm in the United States where most families consist of two breadwinners, most Foreign Service families exist on the salary of one breadwinner. In addition, those Foreign Service employees who are lucky enough to own a home in the United States, rent their homes out when they go abroad. Upon their arrival in the United States, they do not have homes that they can return to. Placing the sole bread winner in a leave-without- pay status for an indefinite period of time is likely to have the effect of "starving out" the employee, especially in those situations where the family is brought back from abroad and does not have a home to return to.

In addition, given the up-or-out nature of the Foreign Service, gaps in a Foreign Service employee's service will prevent the employee from competing with his or her peers. Such gaps in service may cause irreparable harm to a Foreign Service employee's career opportunities and longevity. Reinstatement with back is not a sufficient remedy because there is no way to fill the gaps in the employee's official performance file. Finally, a Foreign Service employee's corridor reputation may suffer irreparable harm as his or her colleagues will note an employee's removal from the Service.

Civil Service employees are not subjected to the dislocations, reduction in total family income, and career harm faced by Foreign Service employees. Therefore, the objective of creating parity in this situation is not valid.

Sec 309(a)(1) of the amendment would permit the Secretary to suspend a member without pay or placed the member on enforced leave without pay where there is an investigation regarding the revocation of an employee's security clearance or a suspension of an employee's security clearance. Since September 11, 2001, there has been a sharp increase in the number of State Department employees who have had their security clearances suspended pending an investigation and security adjudication by the Bureau of Diplomatic Security (DS). Although DS's regulations state that it attempts to complete investigations and adjudication in cases where an employee's clearance has been suspended within 90 days, unfortunately it is often not able to meet this time table due to work load issues, the complexity of investigations, the difficulty gathering evidence overseas, etc. AFSA is assisting a number of employees whose clearances have been in a suspended state pending investigation or adjudication for lengthy periods of time. We are assisting an employee whose clearance was suspended for three years before DS took any action. Several other employees have had their clearances suspended for over two years pending final action by DS; a number of other clients have had their clearances suspended for over a year. In most cases, the Department is able to find non-sensitive, productive work for these employees pending the outcome of the investigation and clearance adjudication. The proposed amendment would permit the Department to place all of these employees on unpaid leave pending what are usually lengthy investigations/adjudications. More disturbing, the proposal would allow the Department to "cherry pick" certain disfavored employees and place them on unpaid leave, while keeping in a paid status those employees who it valued. For these reasons, we are strongly opposed to Sec 309(a)(1).

AFSA is also opposed to Section 309(a)(3), which would permit the Department suspend a member without pay or place them in an enforced leave status "for such other cause as will promote the efficiency of the Service." The proposed amendment appears to give the Department carte blanche to suspend an employee and has the potential to totally wipe out the concept of prescriptive relief. The proposed amendment does not provide any limits as to what types of actions constitute "such … cause as will promote the efficiency of the Service." Under the proposed amendment, the Department could decide to place an employee designated for selection out based on relative performance in a leave without pay status. If the employee is serving abroad, he or she will be brought back to the United States with his or her family and after 37 days (30 days notice plus 7 days to respond), the Department could place the employee in an unpaid leave status. If the employee is the sole breadwinner for the family (as is often the case in the Foreign Service), the family could not rely on the income of the employee's spouse. In addition, they would be forced to stay in costly hotels as most Foreign Service families rent out their home (if they have one) and cannot evict their tenants on such short notice. Ordinarily, the employee would be able to file a grievance in this situation and get prescriptive relief from separation pending the outcome of the grievance. However, as written, the Department's proposed amendment would preclude the Grievance Board from awarding prescriptive relief to the employee.

While AFSA opposes the amendments proposed in section 309(a)(1) and (3), we do not oppose Sec. 309(a)(2). This amendment would restore the Secretary's authority to suspend a member without pay where there is reasonable cause to believe a member has committed a crime for which a sentence of imprisonment may be imposed and there is a nexus to the efficiency of the Service. AFSA agrees that in this situation, the Secretary should have the authority to place a member in a leave without pay status if there is reasonable cause to believe the member has committed a crime and there is a nexus to the efficiency of the Service.

We also agree with Sec. 309(c)(2) and (4). However, we would oppose any attempt by the Department to bar the award of back pay and interest to an employee who was placed in a leave without pay status or enforced leave status where the Grievance Board determined that there was not reasonable cause to believe the member had committed a crime and/or there was no nexus to the efficiency of the Service. (The Department's section-by-section analysis states: "Decisions as to whether or not to grant the employee back pay upon the resolution of the underlying matter will be at the discretion of the Department.")