What You Need To Know When You Disagree With U.S. Policy
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AFSA has been flooded in recent days with questions from our members about what is and is not allowed regarding the expression of disagreement with a USG policy. While many elements of this issue require complex legal research and analysis, there are some basic facts that are not in question which we wish to bring to your attention right now:
Hatch Act: The Hatch Act continues to apply even though the election is over. Activity supporting or opposing policies, values, or current officeholders would not constitute “partisan political activity” as defined in the Hatch Act unless it supports or opposes the electoral success of a political party, partisan political group (such as a PAC), or an announced candidate for office. The Hatch Act does NOT prohibit federal employees from engaging in non-partisan political activities. (Please read the next bullet on blogs and social media, though.)
Blogs and Social Media: In addition to following the Hatch Act, employees are required to clear personal communication, including blogs and social media postings, through Public Affairs if said communication pertains to current U.S. foreign policy. 3 FAM 4173, 3 FAM 4174, and 3 FAM 4176 go into much greater detail on this requirement. The bottom line, though, is that if you wish to post something pertaining to current U.S. foreign policy (such as the January 27, 2017 Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States”) on your personal social media account or blog, then you must have the post cleared. The appropriate reviewing office then has two business days to get back to you with any objections regarding a social media post or five days for a blog post. If the Department has no objections or does not respond within the allotted time, you can publish the post but still must ensure that it contains no classified material and that it does not claim to represent the official position of the Department or the USG.
Dissent Channel: The State Department’s internal dissent channel, covered in 2 FAM 070, states that the State Department may not punish an employee who uses the dissent channel. It also prohibits raters and reviewers from negatively mentioning an employee’s use of the dissent channel when writing said employee’s EER. The Foreign Service promotion precepts explicitly recognize appropriate dissent as a positive factor to be considered when reviewing employees for promotion.
Walk-outs: Walking out in protest of a USG policy, even just temporarily, would be considered a strike and is prohibited by the Foreign Service Act. Such action can result in separation for cause (read: being fired).
What AFSA Can Do: As with any issue, we will defend your rights under the Foreign Service Act, the First Amendment, the FAM, and any other applicable laws and regulations. That said, AFSA assistance and representation does not always guarantee that an employee ends up with the result that s/he wants.
What You Should Keep In Mind: We would also like to take this opportunity to remind you that we continue to recommend that employees purchase professional liability insurance<http://afsa-nfe2015.informz.net/z/cjUucD9taT02MjU4MjkwJnA9MSZ1PTEwODM4MTAxNTgmbGk9NDA4Mjc3NDU/index.html>, as well as to remind you that you need to be an AFSA member in order for AFSA to assist or represent you in a discipline or legal case.
What Next? Many of the more nuanced questions surrounding these issues are not spelled out in the regs and would be up to interpretation by the Department and the courts, and it would be irresponsible for us to predict how they would play out. Our legal team continues to research and discuss the details of these issues, and we hope to provide additional guidance as it becomes clear, but for now we wanted to address the most common concerns: the dissent channel, social media, and walk-outs.
Last, But Not Least: It is important to note that friends of the Foreign Service on Capitol Hill are showing their support in action. Click here to read a letter to the President from members of the House Committee on Foreign Affairs.
American Foreign Service Association
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