3 FAM 4130
STANDARDS FOR APPOINTMENT AND CONTINUED EMPLOYMENT
(CT:PER-860; 07-17-2017)
(Office of Origin: HR/ER/CSD)
3 FAM 4131 Applicability
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
This regulation applies to applicants for employment in
and to employees of the Foreign Service.
3 FAM 4132 Purpose
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
a. This regulation provides guidelines for:
(1) Deciding on an applicants suitability for
appointment in the Foreign Service;
(2) Taking disciplinary action on an employee; and
(3) Deciding on an employees continued employment in
the Foreign Service.
b. The key provisions of this regulation include:
(1) The general considerations of the connection
between:
(a) Conduct respecting effective performance in the
position applied for or in which employed;
(b) Efficiency of the Service; and
(c) The national security or foreign relations of the United States (see section 3
FAM 4135);
(2) An illustrative list of the kinds of conduct which
could be grounds for disciplinary action or separation for cause (see section 3 FAM 4137) or
disqualification of an applicant for employment;
(3) Factors that could be mitigating or aggravating
conditions in judging the seriousness of an offense and in determining the
action to be taken based on the offense (see section 3 FAM 4136);
and
(4) An explanation of certain kinds of conduct (see
section 3 FAM
4138).
3 FAM 4133 Authority
3 FAM 4133.1 General
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
5 U.S.C. 301
22 U.S.C. 2651a and 22 U.S.C. 3905
3 FAM 4133.2 USAID
(CT:PER-860; 07-17-2017)
(USAID Only)
(Applies to Foreign Service Employees)
Department of State Delegation
of Authority No. 293-2 as amended, and 22 U.S.C. 2381(a) authorize the
Administrator to exercise the authorities described in section 3 FAM 4133.1.
3 FAM 4134 SUITABILITY FOR CONTINUED
EMPLOYMENT
(CT:PER-860; 07-17-2017)
(Uniform State/USAID/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service and Civil Service Employees)
Foreign Service employees of the agencies (except for
Foreign Service national employees and non-U.S. citizen consular agents) also
should be aware of and familiar with the contents of 3 FAM 4130, Standards for Appointment and Continued Employment.
Civil Service employees of the agencies who are or are being assigned or
detailed overseas should also be aware of and familiar with the contents of 5
CFR 731.
3 FAM 4135 ACTION AGAINST APPLICANTS
OR EMPLOYEES
3 FAM 4135.1 Applicant
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
The agencies may disqualify an applicant for any of the
reasons in section 3 FAM 4138.
3 FAM 4135.2 Employees
(CT:PER-860; 07-17-2017)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
a. The agencies may discipline or separate an employee
when such action will promote the efficiency of the Service for any of the
reasons stated in 3
FAM 4138 or as provided in:
(1) State: 3 FAM 4100; and
(2) ADS Series 400.
b. In making determinations under this paragraph, the
agencies shall consider, among other factors, those enumerated in 3 FAM 4137.
3 FAM 4136 GENERAL CONSIDERATIONS
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
In making suitability determinations, agencies will give
primary consideration to determining whether the conduct of the individual may
reasonably be expected to:
(1) Interfere with or prevent effective performance in
the position applied for or employed in;
(2) Interfere with or prevent effective performance by
the agencies of their duties and responsibilities; or
(3) Affect adversely the national security or foreign
relations of the United States.
3 FAM 4137 EVALUATION FACTORS TO
CONSIDER
(CT:PER-860; 07-17-2017)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
When evaluating suitability, agencies should consider:
(1) Whether the individuals conduct is such that it
can reasonably be expected to interfere with or prevent effective performance
in the position employed in or being considered for;
(2) Whether the individuals conduct is such that it
can reasonably be expected to interfere with effectively carrying out the
policies and programs of the U.S. Government, including the responsibility to
present a favorable impression abroad of the United States;
(3) Whether the individuals conduct is such that it
can reasonably be expected to affect so adversely other employees as to prevent
the efficient performance of their duties and responsibilities;
(4) The notoriety of the individuals conduct;
(5) The conditions of service applicable to an employee
and the position, function, or service in which an individual may serve or is
serving, including its representational nature;
(6) The sensitivity of the position and the security
clearance required;
(7) The nature, seriousness, frequency, and recency of
the conduct and the age of the individual at the time of the conduct;
(8) Contributing social or environmental conditions,
including the voluntariness of the individuals conduct;
(9) The absence, presence, or sufficiency of
rehabilitation or efforts toward rehabilitation. The individuals
voluntariness and candor in discussing a matter of proper concern with
appropriate authorities must be considered in evaluating the sincerity of the
individuals efforts toward rehabilitation. For details of the agencies
rehabilitation policies concerning alcohol and drug abuse, see 16 FAM 430;
(10) Whether the conduct occurred abroad or in the
United States, at a post of assignment, or in a third country, and during
working hours or while off-duty; and
(11) Any other relevant circumstances pertaining to the
conduct or any other relevant consideration which the employee or the agency
may wish to offer.
3 FAM 4138 STANDARDS OF CONDUCT
(CT:PER-860; 07-17-2017)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
To maintain the efficiency of the Service, the following,
while not all inclusive, may constitute grounds for taking disciplinary or
separation action against an employee, or disqualifying an applicant after due
consideration of the factors in 3 FAM 4137:
(1) Misconduct of applicants in prior employment;
(2) Misconduct, either in itself or as a result of
attendant circumstances, impeding or preventing the performance of duties, or
conduct contrary to the customs, mores, or laws of the local community, as
communicated to employees by the agency or post in writing to the extent
practicable;
(3) Criminal, dishonest, or disgraceful conduct (see 3 FAM 4139.14);
(4) An intentional and material false statement,
deception, or fraud in the examination or appointment process in response to a
proper inquiry;
(5) Refusal to furnish testimony or information to
proper authority in response to specific and relevant inquiry concerning the
individuals job performance, conduct, or such other matters as:
(a) Qualifications for the position, function, or
service under consideration or held; or
(b) Qualification for a security clearance;
(6) Repeated or habitual use to excess of intoxicating
beverages affecting the ability to perform the duties and responsibilities of
the employees position;
(7) Trafficking in or abuse of narcotics, drugs, or
any substance listed under the Controlled Substance Act (21 U.S.C. 812) and/or
trafficking in or abuse of narcotics, drugs, or other controlled substance in
violation of the law of the country or jurisdiction in which the individual was
or is located at the time of the offense (see 3 FAM 4139.6);
(8) Reasonable doubt as to the loyalty to the U.S.
Government of the individual involved;
(9) Conduct which furnishes substantial reason to
believe that the individual may be or is being subject to coercion, improper
influence, or pressure which is reasonably likely to cause the individual to
act contrary to the national security or foreign relations of the United
States;
(10) Conduct which, in the opinion of competent medical
authority, is evidence of an unstable personality, impaired judgment, or
emotional disorder, furnishing substantial reason to believe that the
individual is unsuited for the Service or the position for which the individual
is applying or is unsuited for the Service or the position in which the
individual is serving;
(11) Conduct which clearly shows poor judgment or lack
of discretion which may reasonably affect an individual or the agencys ability
to carry out its responsibilities or mission;
(12) Conduct by a senior official that demonstrates
unsatisfactory leadership in relation to a security incident under review by an
Accountability Review Board convened pursuant to 22 U.S.C. 4831; or
(13) Misconduct or unsatisfactory
performance that significantly contributes to the serious injury, loss of life,
or significant destruction of property, or the serious breach of security in
relation to a security incident, as found by an Accountability Review Board
convened pursuant to 22 U.S.C. 4831.
3 FAM 4139 EXPLANATION OF CERTAIN
ISSUES
3 FAM 4139.1 Sexual Activity
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
The agencies recognize that, in our society, there are
considerable differences of opinion in matters of sexual conduct, and that
there are some matters which are of no concern to the U.S. Government.
However, serious suitability concerns are raised by sexual activity by an
individual which reasonably may be expected to hamper the effective fulfillment
by the agencies of any of their duties and responsibilities, or which may
impair the individuals position performance by reason of, for example, the
possibility of blackmail, coercion, or improper influence. The standards of conduct
enumerated in 3
FAM 4138 are of particular relevance in determining whether the conduct in
question threatens the mission of the employing agency or the individuals
effectiveness.
3 FAM 4139.2 Dishonesty
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
Any intentional false statement or misrepresentation
concerning a material fact on any official form, such as pay or leave records,
travel vouchers, reimbursement of expenses, eligibility for allowances, etc., may
result in disciplinary action or separation. A material fact is defined as a
fact requiring serious consideration by reason of having a certain or probable
bearing in the proper determination of an applicants suitability for
appointment, or an employees suitability for continued service. In addition,
any other activity or conduct, such as theft, forgery, lying, misuse of U.S.
Government property, and the like, which clearly indicates that the individual
is dishonest or unreliable may result in nonselection, disciplinary action, or
separation, whether criminally prosecuted or not, if such activity or conduct
falls also within the specific terms of 3 FAM 4137 or 3 FAM 4138.
3 FAM 4139.3 Freedom of Expression
(CT:PER-860; 07-17-2017)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
The agencies do not presume to impinge upon any of their
employees right of expression, but the individual as an employee is obliged to
protect or to refrain from unauthorized dissemination of certain types of information
which the employee acquires through official duties, such as classified
information, privileged financial, commercial, and other business information,
and information about individuals protected by 5 U.S.C. 552a (the Privacy Act
of 1974). An employee may be held accountable for unintentional as well as
deliberate and unauthorized public expressions whether written or spoken,
which, by violating the confidentiality of privileged information, impede the
efficiency of the Service. Such efficiency may be impeded because information
appearing insignificant from a security point of view is highly sensitive by
virtue of the source or manner in which it was acquired; or because creation of
a poor reputation for discretion and security consciousness seriously impairs
the trust and confidence the Service normally enjoys with foreign governments
and individuals with whom it must deal in candor and mutual confidence. The
Departments procedures for the expression of dissenting views on official
matters are contained in 5 FAM, and for the agencies the prerequisites for
public speeches or writing for publication are found in uniform State/USAID
regulations in 3
FAM 4170.
3 FAM 4139.4 Medical Standards
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
Suitability considerations may also coincide with medical
standards and criteria in certain respects, such as when the conduct
substantially evidences emotional disorder or impaired judgment. Alcohol and
drug abuse are ordinarily matters of medical concern, although they may also
present suitability or security problems (see 3 FAM 4139.5
and 3 FAM
4139.6). As a general policy, conduct which has such medical aspects will
be handled under medical standards, but may also be handled under suitability
or security standards if medical handling is not deemed sufficient. However,
priority consideration should be given in each case to handling such matters
medically rather than in a disciplinary mode.
3 FAM 4139.5 Habitual Use of Intoxicating
Beverages to Excess
(CT:PER-860; 07-17-2017)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
The moderate use of alcohol is generally accepted in our
society and is legal in most jurisdictions. The moderate social usage of
alcohol is generally known to have little significant relationship to a
persons ability to perform effectively and it has no apparent effect upon the
Services ability to effectively conduct its responsibilities. Alcohol abuse
by an individual is considered to be primarily a medical problem and should
ordinarily and generally be handled in that fashion. However, it may be a suitability
or security problem, as when the individual fails to perform duties effectively
or, while under the influence of alcohol, indiscreetly discusses sensitive or
privileged information. To the extent that the individual seeks rehabilitation
and the medical authorities regard the prognosis as favorable, the agencies
will handle such problems under the medical program. Should the individual
fail to respond to a medical rehabilitation program, as determined by the
Office of Medical Services (MED), consideration may be given to the
appropriateness of a disability retirement with the understanding that
alcoholism as a primary diagnosis is not a cause for the finding of a
disability, or the case may be handled as a disciplinary or separation matter.
Security precautions for the alcoholic individual may include denying access to
sensitive information, pending rehabilitation. Alcohol abuse on the part of an
applicant, in the absence of evidence of rehabilitation, will result in denial
of appointment. For further details of the agencies policy on alcohol abuse,
see uniform State/USAID regulations in 16 FAM 430.
3 FAM 4139.6 Abuse of Narcotics,
Drugs, or Other Controlled Substances
(CT:PER-860; 07-17-2017)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
a. Unlike the moderate use of alcohol, drug abuse is
not generally an accepted form of behavior in our society and in most
jurisdictions is illegal. For this reason, employment may be denied or
terminated for those who illegally use drugs, narcotics, or other controlled
substances, including marijuana, LSD, or others that are common and readily
obtainable. The agencies are aware that the application of criminal law to the
possession of marijuana is in a state of flux, and consideration, therefore,
will be given to the actual status of the law in determining whether any action
is warranted.
b. An employee who becomes involved with drugs should
seek medical help. As with alcoholism, the abuse of drugs is considered
primarily a medical problem and is handled as such. As with alcohol abuse,
security precautions for the drug-abusing employee may include denying access
to sensitive information, pending successful rehabilitation. Should the
employee decline or fail to abide by a medical rehabilitation program, the case
may be handled as a disciplinary or separation action. For applicants,
indications of drug abuse, without evidence of cessation or rehabilitation,
will be grounds for denial of appointment.
c. In the case of abuse of drugs, the evidence of
rehabilitation must be evaluated by the Departments Medical Director.
Trafficking in or abuse of narcotics, drugs, or any substance listed under the
Controlled Substance Act (21 U.S.C. 812.), whether or not for profit, is
forbidden and will subject the employee to disciplinary action or separation.
For further details on the agencies policy on drug abuse, see 3 FAM 2110, 3 FAH-1 H-2110,
and 16 FAM 430.)
3 FAM 4139.7 Loyalty and Security
(CT:PER-860; 07-17-2017)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
a. The loyalty and security standards and criteria are
contained in:
(1) State: 3 FAM 2220 and
12 FAM; and
(2) ADS Series 500.
b. Security criteria, particularly as they relate to
the individuals integrity, reliability, or trustworthiness, often coincide
with the more general suitability criteria. To the extent that they do, the
Department will normally choose to resolve cases under suitability criteria and
procedures rather than under security regulations. However, this policy does
not preclude action under 12 FAM when deemed appropriate. Indeed, employees
will at all times remain subject to continuing evaluation by supervisory and
security personnel to ensure that continued security clearance eligibility is
clearly consistent with the interests of national security.
3 FAM 4139.8 Criminal Conduct
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
Conduct which violates criminal laws, whether in the United States or abroad, will subject the employee to possible disciplinary action or
separation. The fact that Foreign Service employees serving abroad may enjoy
certain privileges and immunitiesno matter how these may vary by category or
from country to countrythe Service imposes an added obligation that each
employee scrupulously refrain from activities which, but for diplomatic
privilege or courtesy, would subject the employee to local criminal sanctions.
3 FAM 4139.9 Financial
Responsibility
(CT:PER-860; 07-17-2017)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
Standards and guidelines concerning financial obligations
and conflicts of interest for the agencies are provided in 3 FAM 2210.
Employees are expected to deal responsibly with creditors. In the event of a
dispute between an employee and alleged creditor, this section does not require
the agency to determine the validity or amount of the disputed debt. Under
existing law, an agency may be required in cases of alimony or child support or
of any U.S. court judgment to garnishee the compensation of an employee or to
take disciplinary action for irresponsible behavior. Disciplinary action may
be warranted where an employees failure to pay financial obligations will
result in embarrassment and/or discredit to the agency or Government.
3 FAM 4139.10 The Employees
Obligation to Account for Conduct or Other Matters Directly Affecting
Employment
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
An employee is obliged to account for his or her own
conduct, whether on or off the job, related to the employees responsibilities
and performance of duties, and to answer any questions asked by authorized
officials relating to such conduct. If authorized officials believe that
answers would implicate the employee in a criminal matter, the employee will be
advised of his or her right to remain silent, and of the right of legal
counsel. Whether or not the employee agrees to account for his or her own
conduct, any matter involving possible criminal conduct by an employee will be
referred to the Department of Justice. If the Department of Justice declines
prosecution in favor of administrative action by the agency, the employee may
be re-interviewed concerning his or her own conduct. The employee will be
advised that nothing stated in the interview may be used against the employee
in any subsequent criminal proceeding. If an employee at this time refuses to
account for conduct affecting his or her own responsibilities or performance of
duty, the refusal itself may be considered a basis for disciplinary action or
separation.
3 FAM 4139.11 The Individuals
Obligation to Furnish Information on Fitness
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
The individual is obliged to provide or authorize others
to provide information relevant to a determination of general suitability or
security qualifications. Refusal, upon notice of the purpose of the inquiry,
may warrant denial of appointment or action leading to disciplinary action or
separation upon showing that the inquiry has been authorized.
3 FAM 4139.12 Employee
Representative
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
The employee will be advised of the right to a
representative of his or her own choosing at every stage, including initial
questioning. The employee and representative(s) who are under the control,
supervision, or responsibility of the foreign affairs agencies shall be granted
reasonable periods of administrative leave to prepare, to be present, and to
present the employees case. The employee has a right to have his or her own
representative present at any meeting when the employee is asked by authorized
officials to provide information regarding the employees own conduct, or
information relevant to a question of the employees suitability or security
qualifications, or any other information pertaining to another person which the
employee reasonably believes may result in disciplinary action against him or
herself. Any representative must have an appropriate security clearance in
order to have access to or use of classified information.
3 FAM 4139.13 Allegations or
Complaints About Employees
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
Supervisors or rating officers or other employees with
firsthand knowledge, learning of any conduct covered by the provisions of this
subchapter, or other applicable regulations, are obliged to bring the matter to
the attention of appropriate agency officials. The principal officer of the
employees parent agency at a post abroad, the Director General of the
Department, or the Director, Office of Human Resources (HR) in USAID may
request or conduct any additional investigation deemed appropriate to clarify,
confirm, or refute a complaint or allegation. Information deemed sufficiently
accurate, complete, and serious enough to warrant further consideration will be
referred to the appropriate authority for action.
3 FAM 4139.14 Notoriously
Disgraceful Conduct
(CT:PER-673; 04-27-2012)
(Uniform State/USAID)
(Applies to Foreign Service Employees)
Notoriously disgraceful conduct is that conduct which,
were it to become widely known, would embarrass, discredit, or subject to
opprobrium the perpetrator, the Foreign Service, and the United
States. Examples of such conduct include but are not limited to the
frequenting of prostitutes, engaging in public or promiscuous sexual relations,
spousal abuse, neglect or abuse of children, manufacturing or distributing
pornography, entering into debts the employee could not pay, or making use of
ones position or immunity to profit or to provide favor to another (see also 5
CFR 2635) or to create the impression of gaining or giving improper favor.
Disqualification of a candidate or discipline of an employee, including
separation for cause, is warranted when the potential for opprobrium or
contempt should the conduct become public knowledge could be reasonably
expected to affect adversely the persons ability to perform his or her own job
or the agencys ability to carry out its responsibilities. Evaluators must be
careful to avoid letting personal disapproval of such conduct influence their
decisions.