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Senior Career Candidates will be sub- consideration and approval. An appliject to the foreign language require- cant found by the Board to meet the ments established for their occupa- standards for appointment as a Senior tional category by their prospective Foreign Service Career Candidate shall employing agency. Senior Career Can- be so certified to the Director of Perdidate applicants for the Foreign Com- sonnel of the prospective employing mercial Service must demonstrate pro- agency. ficiency by examination in two foreign (c) Limited non-career appointments. (1) languages. United States Information Other Senior Foreign Service appointAgency Senior Career Candidates, ments may be made on a limited nonother than Senior Specialist Career career basis for individuals who do not Candidates must demonstrate pro- wish to compete for career appointficiency in at least one foreign lan- ments, but for whom a need can be cerguage. Except for the Foreign Commer- tified by the Director of Personnel of cial Service and the United States In- the foreign affairs agency concerned. formation Agency, an applicant may be Such limited non-career senior apappointed without first having passed pointees will be subject to the eligian examination in a foreign language, bility requirements

set forth in but the appointed Senior Career Can- $11.30(b)(1) (i) and (iv). The maximum didate may not be commissioned as a age set forth in $11.30(b)(1)(ii) does not Career Senior Foreign Service officer apply to such appointments. However, unless adequate proficiency in a for- because Foreign Service members geneign language is achieved. This lan- erally are subject to the mandatory reguage requirement will not apply to tirement age of 65, under section 812 of candidates in occupational categories the Act, limited non-career Senior apwhich, in the judgment of the prospec- pointments normally will not extend tive employing agency, do not require beyond the appointee's 65th birthday. foreign language proficiency.

Limited non-career appointees of the (9) Final review panel. (i) The entire Department of Commerce and the file of an applicant recommended by United States Information Agency will the Examining Panel will be reviewed not be subject to the language requireand graded by a Final Review Panel, ments of $11.30(b)(8). Applicants for after the results of the background in- limited non-career senior appointvestigation, medical examination and ments will be subject to the same backlanguage examination received. ground investigation and medical exThe Final Review Panel will decide amination required of career whether or not to recommend the ap- didates, but normally they will not be plicant for appointment, taking into subject to a written or oral examinaaccount all of the available informa- tion, or to approval by the Board of Extion concerning the applicant.

aminers. Processing procedures for (ii) The Final Review Panel shall such applicants will be established by consist of a chairperson who shall be a the Director of Personnel of the foreign Deputy Examiner who is a career Sen- affairs agency concerned. Their apior Foreign Service officer of the pro- pointments normally will be limited to spective employing agency, and at the duration of the specific assignleast two other Deputy Examiners of ments for which they are to be hired, the Board of Examiners. Of the Deputy may not exceed 5 years in duration, Examiners serving on the Final Review and may not be renewed or extended Panel, the majority shall be career beyond 5 years. Senior Foreign Service officers of the (2) Prior to the expiration of their prospective employing agency; and at limited non-career senior appointleast one shall be a career Senior For- ments, if they meet all the eligibility eign Service officer of one of the other requirements set forth in $11.30(b)(1), foreign affairs agencies operating such individuals may elect to compete under the Act.

for career candidate status in the Sen(10) Certification of appointment. The ior Foreign Service by qualifying at file of an applicant recommended by that time for and taking the examinathe Final Review Panel will be sub- tions required of career candidates. If mitted to the Board of Examiners for appointed as career candidates, the

are

can

length of service under their previous pose of presenting or collecting claims limited non-career appointments may during the hours set apart for the be counted under the procedures of the transaction of public business or while employing agency as part of the trial the employees concerned are on duty. period of service prescribed before a ca

(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. reer candidate can receive a career ap

2658) pointment. The total period of limited

[22 FR 10789, Dec. 27, 1957] appointment (non-career and career candidate) of such individuals may not exceed 5 years in duration.

PART 13-PERSONNEL (3) Nothing in this section will limit the right of an individual who has pre

Sec. viously served as a limited non-career

13.1 Improper exaction of fees.

13.2 Embezzlement. senior appointee from subsequently ap

13.3 Liability for neglect of duty or for malplying for consideration as a new appli

feasance generally; action on bond; pencant and being appointed as a Senior

alty. Career Candidate after a limited non- 13.4 False certificate as to ownership of career appointment has expired.

property. (d) Reporting requirement. The Direc

AUTHORITY: Sec. 302, 60 Stat. 1001; 22 U.S.C. tor of Personnel of each foreign affairs 842. agency shall report annually to the Di

SOURCE: 22 FR 10789, Dec. 27, 1957, unless rector General of the Foreign Service,

otherwise noted. Department of State, the number and nature of the limited Senior Foreign § 13.1 Improper exaction of fees. Service appointments (non-career and

Any consular officer who collects, or career candidates) made by that agen

knowingly allows to be collected, for cy under these regulations.

any services any other or greater fees (Secs. 206(a) and 301(b), Foreign Service Act than are allowed by law for such servof 1980 (secs. 206(a) and 301(b), Pub. L. 96 465, ices, shall, besides his or her liability 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and to refund the same, be liable to pay to 3941)))

the person by whom or in whose behalf (48 FR 38607, Aug. 25, 1983)

the same are paid, treble the amount of

the unlawful charge so collected, as a PART 12-COMPLAINTS AGAINST penalty. The refund and penalty may EMPLOYEES BY ALLEGED CREDI

be recovered with costs, in any proper TORS

form of action, by such person for his or her own use. The amount of such

overcharge and penalty may at the disSec. 12.1 No cognizance taken of complaint.

cretion of the Secretary of the Treas12.2 Claimants denied access to employees.

ury be ordered withheld from the com

pensation of such officer for payment $ 12.1 No cognizance taken of com- to the person entitled to the same (22 plaint.

U.S.C. 1189). The Department of State will take no

NOTE: The foregoing relates to improper cognizance of a complaint against an

collection and personal withholding of funds

by consular officers. For procedure where a employee by an alleged creditor, so far

collection, having been erroneously made, as the complainant is concerned, be

has been returned by the officer to the yond acknowledging receipt of his com- Treasury in good faith, making a subsequent munication.

accounting adjustment necessary, see $ 22.4,

Refund of fees of this chapter. (Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)

(22 U.S.C. 2658 and 3926) [22 FR 10789, Dec. 27, 1957)

[22 FR 10789, Dec. 27, 1957, as amended at 49

FR 16989, Apr. 23, 1984) $ 12.2 Claimants denied access to employees.

8 13.2 Embezzlement. Persons claiming to be creditors or Every consular officer who shall recollectors of debts or claims will be de- ceive money, property, or effects benied access to employees for the pur- longing to a citizen of the United

or

omits to perform seasonably the duties imposed upon him or her by the laws regulating the shipment and discharge of seamen, is guilty of any malversation or abuse of power, he or she shall be liable to any injured person for all damage occasioned thereby; and for all malversation and corrupt conduct in office, he or she shall be punishable by imprisonment for not more than five years and not less than one, and by a fine of not more than $10,000 and not less than $1,000 (22 U.S.C. 1199).

States and shall not within a reasonable time after demand made upon him or her by the Secretary of State or by such citizen, his or her executor, administrator, or legal representative, account for and pay over all moneys, property, and effects, less his or her lawful fees, due to such citizen, shall be deemed guilty of embezzlement, and shall be punishable by imprisonment for not more than five years, and by a fine of not more than $2,000 (22 U.S.C. 1198). Penalties of imprisonment and fine are also prescribed for embezzlement in connection with the acceptance, without execution of a prescribed form of bond, of appointment from any foreign state as administrator, rdian, or to any other office of trust for the settlement or conservation of estates of deceased persons or of their heirs or of persons under legal disabilities (22 U.S.C. 1178 and 1179). Acceptance of such appointments is not ordinarily permitted under existing regulations. See $92.81 of this chapter. (22 U.S.C. 2658 and 3926) (22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984)

(22 U.S.C. 2658 and 3926) (22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984)

$ 13.4 False certificate as to ownership

of property. If any consul of vice consul falsely and knowingly certifies that property belonging to foreigners is property belonging to citizens of the United States, he or she shall be punishable by imprisonment for not more than three years, and by a fine of not more than $10,000 (22 U.S.C. 1200).

(22 U.S.C. 2658 and 3926) [22 FR 10789, Dec. 27, 1957, as amended by Dept. Reg. 108.838, 49 FR 16989, Apr. 23, 1984)

PART 16-FOREIGN SERVICE

GRIEVANCE SYSTEM

$ 13.3 Liability for neglect of duty or

for malfeasance generally; action on

bond; penalty. Whenever any consular officer willfully neglects or omits to perform seasonably any duty imposed upon him or her by law, or by any order or instruction made or given in pursuance of law, or is guilty of any willful malfeasance or abuse of power, or of any corrupt conduct in his or her office, he or she shall be liable to all persons injured by any such neglect, or omission, malfeasance, abuse, or corrupt conduct, for all damages, occasioned thereby; and for all such damages, he or she and his or her sureties upon his or her official bond shall be responsible thereon to the full amount of the penalty thereof to be sued in the name of the United States for the use of the person injured. Such suit, however, shall in no case prejudice, but shall be held in entire subordination to the interests, claims, and demands of the United States, as against any officer, under such bond, for every willful act of malfeasance or corrupt conduct in his or her office. If any consul neglects or

Sec. 16.1 Definitions. 16.2 General provisions. 16.3 Access to records. 16.4 Time limits for grievance filing. 16.5 Relationship to other remedies. 16.6 Security clearances. 16.7 Agency procedures. 16.8 Agency review. 16.9 Records. 16.10 Foreign Service Grievance Board. 16.11 Grievance Board consideration of

grievances. 16.12 Hearing. 16.13 Decisions. 16.14 Reconsideration of a grievance. 16.15 Judicial review.

AUTHORITY: Sec. 4 of the Act of May 26, 1949, as amended (63 Stat. 111; 22 U.S.C. 2658); Pub. L. 94-141 (89 Stat. 765); 22 U.S.C. 1037; sec. 10 of E.O. 11636 (36 FR 24901).

SOURCE: 41 FR 13912, Apr. 1, 1976, unless otherwise noted.

a

$16.1 Definitions.

(a) Act means the Foreign Service Act of 1946, as amended.

(b) Grievant means any officer or employee of the Service who is a citizen of the United States; or for purposes of paragraphs (c) (7) and (8) of this section, a former officer or employee of the Service; or in the case of death of the officer or employee, a surviving spouse or dependent family member of the officer or employee.

(c) Grievance means any act or condition subject to the control of the Foreign Affairs agencies (the Department of State, the Agency for International Development, or the U.S. Information Agency) which is alleged to deprive the grievant of a right or benefit authorized by law or regulation or is otherwise a source of concern or dissatisfaction to the grievant, including, but not limited to the following:

(1) Complaints against separation of an officer or employee allegedly contrary to law or regulation or predicated upon alleged inaccuracy (including inaccuracy resulting from omission or any relevant and material document), error, or falsely prejudicial character of any part of the grievant's official personnel record;

(2) Other alleged violation, misinterpretation, or misapplication of applicable law, regulation, or published policy affecting the terms and conditions of the grievant's employment or career status;

(3) Allegedly wrongful disciplinary action against an employee constituting a reprimand or suspension from official duties;

(4) Dissatisfaction with any matter subject to the control of the agency with respect to the grievant's physical working environment;

(5) Alleged inaccuracy, error, falsely prejudicial material in the grievant's official personnel file;

(6) Action alleged to be in the nature of reprisal or other interference with freedom of action in connection with an employee's participation under these grievance procedures;

(7) When the grievant is a former officer who was involuntarily retired pursuant to sections 633 and 634 of the Act within 6 years prior to December 1, 1975, “grievance" shall mean a com

plaint that such involuntary retirement violated applicable law or regulation effective at the time of the retirement or that the involuntary retirement was predicated directly upon material contained in the grievant's official personnel file alleged to be erroneous or falsely prejudicial in character; and

(8) When the grievant is a former officer or employee or a surviving spouse or dependent family member of former officer or employee, "grievance" shall mean a complaint that an allowance or other financial benefit has been denied arbitrarily, capriciously or contrary to applicable law or regulation.

(d) Grievance does not include the following:

(1) Complaints against individual assignment or transfers of Foreign Service officers or employees, which are ordered in accordance with law and regulation (see also paragraph (c)(2) of this section);

(2) Judgments of Selection Boards rendered pursuant to section 623 of the Act, or of equivalent bodies, in ranking Foreign Service officers and employees for promotion on the basis of merit, or judgments in examinations prescribed by the Board of Examiners pursuant to section 516 or 517 of the Act (see also paragraph (c)(2) of this section);

(3) Termination of time-limited appointments pursuant to 22 U.S.C. 929 and 1008, and the pertinent regulations prescribed by the employing agency (see also paragraph (c)(2) of this section);

(4) Any complaints or appeals for which a specific statutory appeals procedure exists (see appendix A for examples). A grievance filed under these procedures may be based on matters for which there is a specific statutory appeals procedure which is applicable to the Foreign Service grievant. Should the jurisdiction of the Grievance Board over a specific grievance be placed into question on grounds that the basis of the grievance is not encompassed within the Board's authority (8 16.1(d)(4) and Appendix A), the Board shall consult with the other statutory body concerned, transmitting the views of the

or

parties concerned before determining whether it has jurisdiction.

(e) Employee organization means any employee organization accorded recognition as the excusive employee representative pursuant to Executive Order 11636 dated December 17, 1971.

(f) Grievance Board or Board means the full Foreign Service Grievance Board, or a Panel or member thereof, as appropriate.

(g) Party means the grievant or the Foreign Affairs agency having control over the act or condition forming the subject matter of the grievance.

(h) Bureau means equivalent organizational elements in State and USIA, and includes offices in AID.

(i) Days means calendar days.

§ 16.2 General provisions.

(a) Statement of purpose. These regulations establish procedures as required by law to provide Foreign Service officers and employees (and their survivors) of the Foreign Affairs agencies, a grievance procedure to insure a full measure of due process, and to provide for the just consideration and resolution of grievances of such officers, employees, and survivors. No regulation promulgated in this part shall be interpreted or applied in any manner which would alter or abridge the provisions of the due process established by the Congress in Pub. L. 94-141, 22 U.S.C. 1037, section 691.

(b) Discussion of complaints. (1) Every effort should be made to settle any employee complaint informally, promptly, and satisfactorily.

(2) Supervisors and other responsible officers should encourage employees to discuss complaints with them and should respond in a timely manner to resolve the complaints.

(3) An employee initially should discuss a complaint with the employee's current supervisor or with the responsible officer who has immediate jurisdiction over the complaint to give that person an opportunity to resolve the matter, before further steps are taken under these procedures.

(c) Guidance. Nothing in these procedures prevents a grievant from seeking guidance from any official who might be helpful respecting the submission of a grievance or its resolution.

(d) Freedom of action. (1) Any grievant, witness, representative or other person involved in a proceeding hereunder shall be free from any restraint, interference, coercion, harassment, discrimination, or reprisal in those proceedings or by virtue of them. The Foreign Affairs agencies recognize their obligation to insure compliance with this section. Any person involved or having immediate knowledge of any alleged breach of this section should call it to the attention of the pertinent foreign affairs agency through appropriate channels for corrective action as necessary. Normally such allegations should be brought to the attention of the senior agency official at the post; and at Washington, DC, to the Director, Grievance Staff for State; Chief, Employee Relations Branch for AID and Chief, Employee-Management Relations Division for USIA.

(2) The grievant has the right to a representative of the grievant's own choosing at every stage of the proceedings. The grievant 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 grievance.

(3) Any witness under the control, supervision, or responsibility of a Foreign Affairs agency shall be granted reasonable periods of administrative leave to appear and testify at any such proceeding.

(4) The Foreign Service Grievance Board established hereunder shall have authority to ensure that no copy of the determination of the agency head or designee to reject a Grievance Board recommendation, no notation of the failure of the Grievance Board to find for the grievant, and no notation that a proceeding is pending or has been held, shall be entered in the personnel records of the grievant (unless by order of the Grievance Board as a remedy for the grievance) or those of any other officer or employee connected the the grievance. The Foreign Affairs agencies shall maintain grievance records under appropriate safeguards to preserve confidentiality ($16.9).

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