3 FAM 4370  

LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION - FOREIGN SERVICE

(CT:PER-860;   07-17-2017)
(Office of Origin:  HR/ER/CSD)

3 FAM 4371  PURPOSE OF LIST

(CT:PER-860;   07-17-2017)
(Reviewed and Revalidated)
(Uniform State/USAID/BBG/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)

The purpose of this subchapter is to advise employees, supervisors, and managers of some of the types of employee conduct which can result in disciplinary action.  It is intended that this material be required reading for new employees and that it be referred to during briefings on the behavior expected of employees, ethics, the Department’s leadership tenets, etc.  The Department believes that the more employees know and understand their responsibilities and the professional standards by which they are expected to abide, the less likely it is that they will engage in improper behavior that requires disciplinary action.  Disciplinary action is taken only after it has been determined that discipline, rather than less formal action, such as an admonishment, is necessary.

3 FAM 4372  LIST NOT ALL-INCLUSIVE

(CT:PER-860;   07-17-2017)
(Reviewed and Revalidated)
(Uniform State/USAID/BBG/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)

a. It is impossible to list every possible punishable offense, and no attempt has been made to do this.  Employees are on notice that any violation of Department regulations could be deemed misconduct, regardless of whether it is listed in the table of penalties in 3 FAM 4377.  This table of penalties lists the more common types of employee misconduct, as well as some which are, for the most part, of particular concern to the Foreign Service.  Some offenses have been included mainly as a reminder that the particular behavior is to be avoided, and, in the case of certain types of offenses, like sexual assault, workplace violence and discriminatory and sexual harassment, to understand the Department’s zero-tolerance policy.

b. All employees are on notice that misconduct toward, or exploitation of, those who are particularly vulnerable to the employee's authority and control (e.g., children, subordinates, entry level officers), as well as sexual assault, are considered to be particularly egregious and will not be tolerated. 

3 FAM 4373  PENALTY DETERMINED ON MERIT OF INDIVIDUAL CASE

(CT:PER-811;   04-12-2016)
(Uniform State/USAID/BBG/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)

The broad range of “possible” penalties in this subchapter is intended to serve as a general guideline.  The proposing or deciding official, however, retains the discretion necessary to select the most appropriate action in any particular case in view of all the facts and circumstances.  In deciding whether to discipline an employee and in selecting an appropriate disciplinary action, the proposing or deciding official takes into consideration the constructive purpose of discipline, which is intended to:

(1)  Correct, if possible, unacceptable conduct, attitude, or work habits;

(2)  In every case, ensure that necessary action is taken to help maintain morale and the efficiency of the Service; and

(3)  Be fair and reasonable in its degree of severity.

3 FAM 4374  DETERMINING CORRECTIVE ACTION TO BE TAKEN

(CT:PER-860;   07-17-2017)
(Uniform State/USAID/BBG/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)

The following principles will be observed by supervisors and managers in the first instance, and by proposing and deciding officials when formal disciplinary action is being considered:

(1)  The disciplinary action taken should be consistent with the precept of like penalties for similar offenses with mitigating or aggravating circumstances taken into consideration.  Whether or not offenses are alike will be based on the similarity of the underlying conduct rather than how the charge is worded.  The action taken should be fair and equitable; and if a penalty is warranted, it should be no more severe than sound judgment indicates is required to correct the situation and maintain discipline.  The penalties listed in this subchapter should serve as a guide for appropriate actions for most offenses.  It is entirely possible, however, that an objective review of all facts and circumstances in a given case will indicate that a greater penalty, a less severe penalty, or no penalty should be recommended, as appropriate to obtain the general objective stated herein;

(2)  In determining what action should be taken, it should be established whether the employee knew, or could reasonably be expected to know, what standards of conduct or performance was expected of him or her.  However, at a minimum, Federal employees must understand that they are expected to abide by the law, the Department's regulations, and common-sense standards of conduct;

(3)  Employees in leadership positions or in law enforcement positions must understand that they will be held to a higher standard of conduct and that they are expected to model professionalism, integrity, and responsibility. 

(4)Repetition of the same offense, or related offenses, will be considered in assessing any penalty; as such, repetition may imply a disregard for authority and/or an inability to correct behavior; and

(5)  The decision as to the action to be taken must in no way be influenced by the employee's race, color, religion, sex, national origin, marital status, disability, political opinions or affiliations, sexual orientation, or gender identity.

3 FAM 4375  SOME CONSIDERATIONS IN DETERMINING PENALTY

(CT:PER-860;   07-17-2017)
(Uniform State/USAID/BBG/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)

The following factors should be considered in determining the appropriate penalty.  This list is not exhaustive, and not all factors are applicable to all cases.

(1)  Nature of the offense, its seriousness, and consequences;

(2)  History of past conduct problems, whether or not discipline was imposed (nature and frequency of past offenses and how recent the occurrences);

(3)  Intent (possibility of genuine misunderstanding), willfulness of the conduct;

(4)  Enticement or provocation;

(5)  Position of employee (nature or relationship between behavior and official responsibilities, sensitivity of position);

(6)  Culpability of others;

(7)  Contacts with the public and prominence of the position;

(8)  Notoriety of the offense or its impact upon the reputation of the Department;

(9)  Where and when the misconduct occurred – in the United States or abroad, on duty or off-duty;

(10) Length of employee's service, level of professional experience;

(11) Quality of employee's work history;

(12) Past contributions and achievements;

(13) Record of cooperativeness, efforts toward and potential for rehabilitation;

(14) Other mitigating or extenuating circumstances;

(15) Clarity with which the employee was on notice of any rules that were violated in committing the offense;

(16) Consistency of the penalty with those imposed upon other employees for similar offenses and with the table of penalties in 3 FAM 4377; and

(17) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

3 FAM 4376  DISCIPLINE AND THE FOREIGN SERVICE

(CT:PER-860;   07-17-2017)
(Uniform State/USAID/BBG/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)

3 FAM 4130 sets forth guidelines for deciding an applicant's suitability for the Foreign Service and for taking disciplinary action against a Foreign Service employee.  As explained in 3 FAM 4130, the attainment of foreign policy objectives requires the maintenance of the highest standards of conduct by employees of the Foreign Service.  Because of the uniqueness of the Foreign Service, employees serving overseas are considered to be on duty 24 hours a day, seven days a week, and must observe especially high standards of conduct during and after working hours, and when on leave or in travel status.  Accordingly, the commission after work hours of many of the offenses listed here under "Conduct on the Job" would still be punishable if it affects the ability of the individual or the agency to carry out its responsibilities or mission.  No action against a Foreign Service employee should be considered without a careful review of 3 FAM 4130.

3 FAM 4377  LIST OF DISCIPLINARY OFFENSES AND PENALTIES

(CT:PER-860;   07-17-2017)
(Uniform State/USAID/BBG/Foreign Service Corps, USDA/Commerce)
(Applies to Foreign Service Only)

Nature of Offenses

Penalties

 

Penalties will generally fall within the range of a Letter of Reprimand to Removal except where indicated

Relationship With Public

1. Failure to obtain any required clearance of speech or article involving matters of official concern (see 3 FAM 4170)

 

2. Discourteous conduct to the public confirmed by an immediate supervisor's report of four such instances within a 1-year period (5 U.S.C. 7503(a))

 

3. Making unauthorized commitments for contracts, grants, or cooperative agreements

 

Security Regulations

4. Commission of security infractions or violations (see 12 FAM 550)

 

5. Violation of security regulations relating to reporting contacts with, and/or restricting association with, certain foreign nationals (see 12 FAM 262)

 

6. Violations of other security regulations, guidelines, or instructions such as unauthorized disclosure or exposure of classified/administratively-controlled information, improper handling of classified/administratively controlled information

 

Outside Employment and Interests

7. Engaging in private business activities of a prohibited or unethical nature (see 3 FAM 4120 and 3 FAM 4130)

 

8. Accepting improper dual employment or dual compensation by the U.S. Government

 

9. Solicitation or acceptance by an employee of gratuity or gift which might reasonably be interpreted as tending to influence the performance of official duties

 

10. Violation of regulations relating to acceptance of gifts and decorations from foreign governments (see 3 FAM 4122)

 

11. Engaging, directly or indirectly, in financial or other transactions which create real or apparent conflicts of interest

 

Political Activity



12. Improper political activity (5 U.S.C. 7321, et seq.)

 

* Attendance Related

Suspension or removal

13. Unexcused or unauthorized absence from the job during working hours or on any scheduled day of work (AWOL)

 

14. A pattern of frequent lateness for duty (excessive tardiness)

 

15. Improper use of sick or home leave

 

*(Penalty depends on length and frequency of absences.  Removal may be appropriate for a first or second offense if the absence is prolonged.)  NOTE:  A letter of leave restriction may be issued by an executive director or equivalent prior to the letter of reprimand.

Conduct On the Job

16. Intoxication caused by alcohol or other drugs

17. Disruptive behavior; fighting; threatening or attempting to inflict bodily injury to another; engaging in dangerous horseplay; use of abusive or obscene language to or about another person; creating a disturbance which adversely affects efficiency or which reflects unfavorably on the Foreign Service or agency

18. Making false or unfounded statements concerning another officer or employee of the U.S. Government

19. Safety (nonmotor vehicle):  violations of safety regulations, instructions, or prescribed safe practices, including failure to report accident or injury

20. Safety (U.S. Government motor vehicle operation):  violation of traffic laws, safety regulations or instructions, or safe driving practices, including failure to report accident or injury

21. U.S. Government Property.

Willful or negligent damage or defacement

Willful misuse of, or allowing the use of U.S. Government motor vehicle, aircraft, or watercraft for other than official purposes

 

 

30-day suspension to removal

22. Act of negligence or carelessness in performance of duty resulting in waste of public funds or inefficiency

23. Use, or allowing use, of U.S. Government funds, property, or other resources for unofficial proposes or for private benefit

24. Use of U.S. Government equipment for prohibited activities, including gambling, advertising for personal gain, or viewing, downloading, storing, transmitting, or copying materials that are sexually explicit, while on or off duty or on or off U.S. Government premises

25. Conducting personal affairs while in duty status which negatively affects the efficiency of the Service

26. Sleeping, loafing, or willful idleness while on duty

27. Unauthorized maintenance or use of slush funds, gift funds, or other funds, which are undisclosed or unaccounted for

28. Failure to follow proper instructions

29. Insubordination

30. Misuse of U.S. Government credentials, diplomatic or official passports

31. Misuse of U.S. Government-sponsored or issued credit cards, or untimely payment or nonpayment of balance due, other than disputed charges

32. Improper use of official authority or information

33. Acceptance of voluntary services for U.S. Government contrary to statute

Appropriate administrative discipline including, when circumstances warrant, suspension without pay or removal (31 U.S.C. 1349(a))

34. Use or attempted use of influence or pressure to secure favor in appointment, transfer, advancement, or retention of a relative in the agency

35. Violation of the "no strike" affidavit

Removal

36. Violation of merit principles or procedures with a demonstrable adverse effect on one or more persons

37. Harassing, threatening, or taking reprisal action against an employee as a result of or in anticipation of a grievance, appeal, complaint, or other exercise of rights

38. Misappropriation or misapplication of funds (see for example, 31 U.S.C. 1341 or 31 U.S.C. 1301)

Appropriate administrative discipline including, when circumstances warrant, suspension without pay or removal (see for example, 31 U.S.C. 1349)

39. Gifts to official supervisors; soliciting contributions for gifts or presents to those in superior official positions; accepting gifts or presents from U.S. Government employees receiving lower salaries; or making donations as a gift or present to official supervisors (exception: this does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, retirement, or transfer (22 CFR 10.735-202(e) and 5 CFR 735.202(d))

Removal (required by 5 U.S.C. 7351; see also 5 CFR 735.202(d))

40. Dereliction of managerial and supervisory duty by neglecting to carry out personnel management responsibilities, including failure to address conduct or performance problems, failure to complete required performance ratings or reviews, or failure to address a toxic workplace.

 

Personal Conduct or Character

41. Misconduct in general, to include immoral, indecent, unethical, criminal, infamous, dishonest, or notoriously disgraceful conduct (3 FAM 4130)

42. Fraud (misrepresentation, falsification, or willful omission of material fact in connection with application, employment, or any record, report, investigation, or other proceeding)

43. Conduct demonstrating untrustworthiness, unreliability, or use of poor judgment (3 FAM 4130)

44. Discrimination:  As used in this table, discrimination refers to a specific act taken by an employee in the performance of his or her official duties which discriminates against one or more individuals on the basis of race, sex, religion, color, age, national origin, disability, marital status, political affiliation, or sexual orientation

45. Refusal to answer appropriate interrogation or otherwise cooperate in properly authorized inquiry

 

46. Failure to pay just financial obligation(s) in a proper and timely manner

 

47. Unauthorized sale of personal property while stationed abroad

 

48. Violation of host-country, agency, or Foreign Service post currency exchange laws/regulations

49. Violation of laws, regulations, or policies relative to possession, use, or transportation of firearms or other dangerous weapons

50. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring commercial sex

 

 

51.  Sexual Assault (3 FAM 1700)

 

 

52.  Violation of regulations or policies (including post policies) regarding the payment or treatment of domestic staff (3 FAM 4128)

 

 

Miscellaneous Offenses

53. Failure to maintain records as required in 5 FAM 414.8 paragraph (2)

 

 

54. 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 4378  and 4379  UNASSIGNED