Urgent Message from AFSA’s General Counsel: Your Rights Are at Risk 

Dear Colleagues,

As members of the Foreign Service, you are rightly held to high standards of conduct, especially while serving overseas, where you are considered on duty 24/7. Diplomatic Security Agents, as law enforcement officers, and those in leadership positions are held to even higher standards given the sensitive nature of their responsibilities.

At the same time, as Foreign Service employees, like all people, you are not infallible. AFSA’s role is to ensure that if you are accused of misconduct or make mistakes, you are afforded due process and that any disciplinary action is fair and consistent with the disciplinary action taken in similar cases. 

A Troubling Pattern of Violations

In recent weeks, AFSA has observed troubling violations of the Foreign Affairs Manual (FAM) and the Foreign Service Act by the State Department.

As AFSA’s general counsel for more than 30 years, I have never seen such blatant violations of the FAM or complete disregard for the requirements of the Foreign Service Act.

As your advocate, I want to alert you to these developments and provide guidance on how to protect yourself from potential abuses of authority.

Disproportionate and Harsh Disciplinary Actions

The Department is increasingly proposing separation for cause in cases that, in the past, would have resulted in only short (1–5 days) or medium (7–14 days) suspensions without pay.

The FAM and Foreign Service Grievance Board (FSGB) case law require the foreign affairs agencies to follow the principle of “similar penalty for like offense.” The FSGB has consistently overturned overly harsh penalties that were inconsistent with precedent.

Despite this, employees are now facing separation proposals for issues such as failure to report a foreign contact, “poor judgment,” relationships within the chain of command, or minor performance concerns that historically would have been addressed with counseling or critical comments in an Employee Evaluation Report.

Due Process Rights Ignored

AFSA has also documented cases where employees’ due process rights have been disregarded. Examples include:

• Unreasonable denial of extensions: Requests for more time to respond to separation proposals have been rejected, even though the FAM requires reasonable requests to be approved. In some cases, previously granted extensions were rescinded with little notice.
• Oral response rights undermined: The Department has scheduled oral responses without coordinating with employees or their counsel, sometimes setting up these meetings when counsel was unavailable. In one case, an employee was separated, effective immediately, without being allowed to present their scheduled oral response. This is unprecedented and an explicit violation of the FAM.
• Premature terminations: Most concerning, as the above example illustrates, the Department has claimed it can terminate employees immediately after receiving their written response to a separation proposal. This directly contradicts both the FAM and the Foreign Service Act, which guarantee employees the right to remain on the rolls in leave-without-pay status pending a hearing before the FSGB. Established case law makes clear that, unless an employee waives his or her right to a hearing in writing, only the FSGB, not the Department, has the authority to determine whether separation is justified.

Protecting Yourself

You can take practical steps to protect yourself from the department’s unfair and illegal actions:

• Maintain professional conduct: Strictly follow rules on foreign contact reporting, workplace relationships, and public communications. Moderate alcohol use, particularly overseas. Use government systems, vehicles, and data only for authorized purposes. Exercise sound judgment at all times.
• Bring representation to interviews: Always have AFSA or private counsel present when interviewed by Diplomatic Security, the Office of Inspector General, or the Office of Civil Rights. You have the right to representation, even though the Department no longer recognizes AFSA as a union. See AFSA’s investigation guidance.
• Maintain AFSA membership: To receive AFSA assistance, you must be a dues-paying member. Since the Department stopped payroll deductions in March, some memberships have lapsed. You can re-join or update payment information here.
• Obtain professional liability insurance (PLI): PLI covers matters that may be beyond AFSA’s scope of representation and provides private counsel for most FSGB disciplinary hearings. Learn more here.

AFSA’s purpose in sharing this information is not to frighten you, but to help you be as ready as possible if you are accused of misconduct or subject to disciplinary action. We also encourage you to share this information with colleagues who are not AFSA members.

AFSA’s OGC staff has decades of experience with investigations, discipline proceedings, and grievances. We are dedicated to ensuring that members receive the fullest measure of due process and that if discipline is warranted, it is fair and reasonable. 

If you have questions or concerns, do not hesitate to reach out to us at ogc@afsa.org.

Thank you for your membership and for your service to our country.

Sincerely,

Sharon L. Papp

General Counsel