3 FAM 4360
SEPARATION FOR CAUSE
(CT:PER-1046; 06-15-2021)
(Office of Origin: GTM/ER/CSD)
3 FAM 4361 GENERAL
(CT:PER-1046; 06-15-2021)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. The head of the agency, or their designee, may decide to separate any member from the Service for such cause as will promote the efficiency of the Service under Section 610 of the Foreign Service Act (the Act) (22 U.S.C. 4010).
b. Except as provided in subsection (c), whenever the head of the agency, or their designee, decides under subsection (a) to separate, on the basis of misconduct, any member of the Service (other than a U.S. citizen employed under Section 311 of the Act who is not a family member) who is serving under a career appointment or a limited appointment, the member may not be separated from the Service until the member receives a hearing before the Foreign Service Grievance Board (Board or FSGB), and the Board decides that cause for separation has been established, unless the member waives, in writing, the right to such a hearing, or the member's appointment has expired, whichever is sooner.
c. The right to a hearing in subsection (b) does not apply in the case of an individual who has been convicted of a crime for which a sentence of imprisonment of more than 1 year may be imposed. Conviction includes, but is not limited to, pleading guilty to a crime.
3 FAM 4362 PROPOSING AND DECIDING OFFICIALS
(CT:PER-1046; 06-15-2021)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
3 FAM 4362.1 Proposing Officials
The following officials (or another with properly delegated authority, as appropriate) are authorized to propose separation for cause against an employee:
|
Agency |
Proposing Official |
|
State |
Director General of the Foreign Service and Director of Global Talent; Deputy Assistant Secretary in the Bureau of Global Talent Management with responsibility for Conduct, Suitability, and Discipline |
|
USAID |
Senior Deputy Assistant Administrator for the Office of Human Capital and Talent Management (for USAID employees) or Deputy Assistant Inspector General for Management (for OIG employees) |
|
USAGM |
Director of Human Resources (OHR) |
|
Agriculture |
Foreign Agriculture Service: Managing Director; Senior Director; Deputy Administrator; Associate Administrator; Administrator APHIS: Regional Manager; Associate Deputy Administrator; Administrative Director; Deputy Administrator |
|
Commerce |
Director of Office of Foreign Service Human Capital |
3 FAM 4362.2 Deciding Officials
The following officials (or another with properly delegated authority, as appropriate) are authorized to decide whether to sustain and implement separation for cause against an employee:
|
Agency |
Deciding Official |
|
State |
Director General of the Foreign Service and Director of Global Talent |
|
USAID |
Chief Human Capital Officer, Office of Human Capital and Talent Management |
|
USAGM |
Chief Executive Officer or designee |
|
Agriculture |
Foreign Agriculture Service: Deputy Administrator; Associate Administrator; Administrator APHIS: Deputy Administrator; Associate Deputy Administrator; Associate Administrator; Administrator |
|
Commerce |
Director General or equivalent official or designee |
3 FAM 4363 PROPOSING SEPARATION FOR CAUSE
(CT:PER-1046; 06-15-2021)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
If after consideration of the report of inquiry or investigation, related materials, and the factors specified in 3 FAM 4375, the proposing official determines to propose separation for cause, they must notify the employee in writing:
(1) Of the specific reason(s) for the proposal to separate for cause;
(2) That the employee will be granted a reasonable amount of official time to:
(a) Review only the material relied on in proposing the action; and
(b) Prepare a response to the notice;
(3) That the employee may respond orally and/or in writing and may submit written statements in support of that response to the deciding official;
(4) That the employee’s response will be fully considered by the deciding official;
(5) That subject to 3 FAM 4325, the employee may have a representative of the employee's choosing;
(6) That should the employee choose to designate a representative, such designation must be in writing;
(7) Of any decision to exclude the employee from the workplace during the notice period in accordance with 3 FAM 4323;
(8) That the employee will be granted a reasonable amount of time to acknowledge receipt of the notice of proposed separation for cause;
(9) That if the deciding official decides to separate for cause, no sooner than seven calendar days after the decision is issued, the employee will be placed in a leave-without-pay (LWOP) status pending final resolution, unless the employee has been in an absent-without-leave (AWOL) status in which case the employee will remain in that status pending final resolution. If the FSGB decides that cause for separation has not been established, the employee will be entitled to receive back pay for the period during which they were in an LWOP status reduced by any amounts earned from other employment. Employees who were in an AWOL status are not entitled to receive back pay.
3 FAM 4364 Employee's Response
(CT:PER-1046; 06-15-2021)
(Reviewed and Revalidated)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. An employee whose official duty station is outside the United States has 30 calendar days from receipt of the proposal to separate for cause to respond in writing and/or orally to the deciding official.
b. An employee in the United States has 15 calendar days from receipt of the proposal to separate for cause to respond in writing and/or orally to the deciding official.
c. The employee may submit a written request for an extension of the response deadline. The deciding official will approve the request if it is reasonable.
3 FAM 4365 ACTION BY THE DECIDING OFFICIAL
(CT:PER-1046; 06-15-2021)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. After reviewing the record on which the separation was based, and the employee’s response, if any, the deciding official will decide to:
(1) Withdraw the charges and close the case; or
(2) Take no further action and close the case; or
(3) Admonish the employee; or
(4) Reprimand the employee; or
(5) Suspend the employee for a specific period of time; or
(6) Separate the employee for cause; or
(7) Offer a mutually agreeable alternate resolution, such as a settlement agreement.
b. The deciding official will notify the employee of their decision, in writing, including the specific reason(s) for the decision.
c. If the decision is to separate the employee for cause, the notice will indicate that, no sooner than seven calendar days after the decision is issued, the employee will be placed in an LWOP status pending final resolution, unless the employee has been in an AWOL status in which case the employee will remain in that status pending final resolution.
d. If the employee is entitled to a separation hearing, the deciding official will transmit to the FSGB the notice of their decision to separate, the employee’s response, if any, and the record on which the decision is based. If the employee has waived the right to a hearing or is not entitled to a separation hearing, the deciding official will immediately proceed to implement the separation for cause.
e. If the decision is to reprimand or suspend, the notice must contain the information provided in 3 FAM 4345, paragraph b, or 3 FAM 4355, paragraph b, as appropriate.
3 FAM 4366 HEARING BY THE FOREIGN SERVICE GRIEVANCE BOARD
(CT:PER-1046; 06-15-2021)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. A separation-for-cause hearing before the Foreign Service Grievance Board will be held under the procedures provided in 22 CFR Chapter IX (Foreign Service Grievance Board Regulations) for those employees who are entitled to and do not waive such a hearing.
b. Such a hearing must be in lieu of any other administrative procedure authorized by the Act or any other law.
c. An employee wishing to waive their right to a hearing must do so in writing to the Board and the deciding official.
d. If the employee waives their right to a hearing before the Board, the deciding official will immediately proceed to implement the separation for cause.
e. After conducting a hearing, the Board will decide whether or not cause for separating the employee from the Service has been established.
3 FAM 4367 IMPLEMENTING SEPARATION
(CT:PER-1046; 06-15-2021)
(Reviewed and Revalidated)
(Uniform State/USAID/USAGM/ Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. If the Board decides that cause was established for separating the employee from the Service, or if the employee is not entitled to or has waived their right to a hearing, the deciding official will notify the employee in writing to:
(1) Advise the employee of the date the separation will become effective (generally, no sooner than seven calendar days following the date of notification); and
(2) Make specific reference to the employee’s right to obtain judicial review of the decision under section 1110 of the Act (22 U.S.C. 4140).
b. A copy of the deciding official's decision letter (issued under 3 FAM 4365(b)) will be placed in the performance folder of the employee’s Official Personnel Folder when the separation becomes effective.
3 FAM 4368 EFFECTS OF SEPARATION FOR CAUSE ON PARTICIPATION IN THE FOREIGN SERVICE, CIVIL SERVICE, OR OTHER U.S. GOVERNMENT RETIREMENT SYSTEM
(CT:PER-1046; 06-15-2021)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
Eligibility for retirement benefits under the Foreign Service, Civil Service, or other U.S. Government retirement system may be affected when an employee is separated for cause. Employees should consult the relevant statutes and rules. For the Foreign Service retirement systems, these are section 610(b) of the Act and 3 FAM 6000.
3 FAM 4369 ADVANCE NOTIFICATION OF UNSATISFACTORY PERFORMANCE OF DUTIES
(CT:PER-1046; 06-15-2021)
(Uniform State/USAID/USAGM/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)
a. Before separation for cause of an employee based on unsatisfactory performance of duties can be proposed, the supervisor must notify the employee in writing:
(1) Of the job requirements that the employee is failing to meet satisfactorily;
(2) That the employee has a 90-day period to bring performance to a satisfactory level;
(3) What the employee must do to bring performance to a satisfactory level within the 90-day period; and
(4) That the employee's performance will be reevaluated at the end of the 90-day period.
b. If there is evidence of inexcusable and/or egregious poor performance, the proposing official may waive the requirements of 3 FAM 4364.
c. Separations of career candidates for unsatisfactory performance are governed by 3 FAM 2246, 3 FAM 2256, or 3 FAM 2268 but not by 3 FAM 4360.