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THE FOREIGN SERVICE JOURNAL

|

MARCH 2017

61

NOTES FROM LABOR MANAGEMENT

AFSA NEWS

When Your Security Clearance Is Suspended

“In accordance with U.S.

governmentwide standards

set forth in Executive Orders

10450 and 12968, Govern-

mentwide Adjudicative Guide-

lines and Department of State

regulations, the Office of Per-

sonnel Security and Suitability

(DS/SI/PSS) has determined

that your continued access to

classified information is not

clearly consistent with the

interests of national security.

Your Top Secret security clear-

ance is suspended pending

the vetting of a DS investiga-

tion.”

When you started your For-

eign Service career, you never

imagined that you would

receive a notification like that.

Unfortunately, misconduct

or allegations of misconduct

both inside and outside of

work hours could lead to such

a letter.

As noted in 3 FAM 4376,

“because of the unique-

ness 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 in

travel status.”

In AFSA’s experience,

the most common reasons

for suspended clearances

are failure to report foreign

contacts, lack of candor dur-

ing investigations conducted

by Diplomatic Security and

the Office of the Inspector

General, illegal behavior or

behavior which could make

one vulnerable to coercion

(e.g., frequenting prostitutes,

affairs that have not been

disclosed to the employee’s

spouse), failure to pay taxes,

and a pattern of rules viola-

tions.

The Waiting Game

What happens next?

The

short answer is—you wait.

Individuals with a sus-

pended security clearance

have no grievance or appeal

rights from the suspension

decision, because it is con-

sidered an “interimmeasure”

and not an “adverse action.”

Historically, those individu-

als with suspended clear-

ances remain in pay status,

and the department generally

places them in a DG over-

complement status and/or

assigns them to positions

that do not require access to

classified information. With

the December 2016 passage

of the FY17 State Authoriza-

tion Act which includes lan-

guage in Section 415 allowing

“suspension without duties”

for those with suspended

security clearances, this prac-

tice may change.

The Act permits,

but does

not require

, the Secretary

of State to place a member

of the Service in a “tempo-

rary status without duties”

when the member’s security

clearance is suspended.

When read in conjunction

with the Administrative Leave

Act of 2016, this Act does

not appear to significantly

change the existing practice.

However, to date

AFSA has not heard

from the depart-

ment regarding its

interpretation.

If your security

clearance is revoked,

you will be given

notice of the reasons

for the revocation and the

opportunity to respond. If

the assistant secretary for

Diplomatic Security upholds

the revocation, you can

appeal that decision to the

Department of State’s Secu-

rity Appeals Panel. Note: all

foreign affairs agencies have

similar appeal procedures.

How long do you have to

wait for the review of your

case to be completed?

The

short answer is—it depends.

AFSA has seen cases

range from six months to,

in one extreme case, nine

years. Based on cases seen

by AFSA’s Labor Management

Office in the last five years,

the average suspension lasts

21 months.

What is happening during

those 21 months?

Several

things.

Whether it is a decision to

suspend, revoke or reinstate

an employee’s clearance, DS

has a seven-layer internal

process for reviewing and

clearing on a recommenda-

tion to the director of DS.

This internal process includes

reviews by the DS/SI/PSS

and Legal (L/M/DS).

If, following the review,

a determination is made to

recommend suspension or

revocation of the

employee’s clear-

ance, the decision

must be made by

the senior coordina-

tor for security infra-

structure (DS/SI)

and approved by the

director of DS. If the

recommendation is approved

by the director, the employee

is notified of the suspension

or revocation.

Due Process Rights

While there are no griev-

ance or appeal rights from

a decision to suspend their

security clearance, employ-

ees do still have procedural

due process rights, albeit

limited, should their security

clearance be revoked.

These include the right

to representation; the right

to request a copy of the

investigatory file, as permit-

ted by national security and

other applicable law; the right

to refute or rebut the depart-

ment’s case for the revoca-

tion decision; and the right to

appeal any adverse decision

to the Security Appeal Panel.

If you are advised that your

security clearance has been

revoked or is under review, we

strongly urge you to contact

AFSA as soon as possible, so

that the Labor Management

team can help you navigate

the process. Contact infor-

mation is available on the

AFSA website;

www.afsa.org/

member-guidance.

n

—Raeka Safai, Esq.,

Deputy General Counsel

Raeka Safai