The

Director

General's Letter

PERSONNEL AND THE RULE OF LAW

No doubt, we will have many occasions during this Bicentennial year to ponder the linkages between the Department of State, Foreign Service of the United States and the nature of our society. More than many Americans we have an obligation to study the relationship between our daily tasks and that which makes us proud to be Americans.

Last June the Secretary said: "Today what is needed is a Foreign Service that understands our goals as a nation, is capable of formulating a strategy for reaching those goals, and possesses the tactical skill necessary to implement that strategy."

As we struggle to reevaluate ourselves and, where necessary, to recast our organization so that we can do a better job of providing service and leadership for the nation in foreign affairs, the Bicentennial can be an important, instructive event.

Any evaluation of our ability to play our role must start with an evaluation of our resources; for us that means our people. The Constitution is a useful

text.

The Fifth Amendment says in part, "... nor shall any person be deprived of life, liberty, or property, without due process of law. . . ." The protection embodied in that brief clause has been considered so important by American citizens, the courts, and the Congress that the concept of "due process" is now applied to a broad range of governmental actions, including those by which the State Department deals with the interests of its own employees.

By Constitutional application and by statute, the Department must ensure due process for selection out, equal employment opportunity, use of documents concerning individuals, and handling of grievances. Through negotiations with employee organizations, due process is recognized in devising the precepts for promotions and suitability standards. By administra

tive decision, the concepts which underlie due process are being extended to our methods of employing new people and of assigning our employees-indeed to the way we do business across the spectrum of personnel management activities.

Clearly, then, the concept is taking root throughout our personnel system. But what is meant by "due process"? It is a legal term of art, not easy to pin down. In the words of the courts themselves, the fundamental idea is "fairness"; and the first requisite of due process is the opportunity to be heard." Decisions are to be made on a basis of essential uniformity" and "reasonableness." In 1951, Justice Douglas noted: "It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule of law and rule by whim or caprice."

root throughout our personnel system.

We all embrace this concept of due process. Yet, for the past five years the Department and Foreign Service have been plagued by dissension rooted in due process arguments. The debates inside the Department have echoed the substance of our national debate about the rights of the individual citizen. The style of our in-house confrontations has often reflected the increasingly litigious aspect of our society at large. Those pressing for greater application of the due process concept in Departmental decisions assert that many of our ills are traceable to the traditional (defined as "closed" or "autocratic" or "paternalistic") ways of doing things in the Department. Those defending the existing system decry the decay of discipline and loyalty in Foreign Service personnel and Departmental employees.

While the results of all this contentiousness within the Department are regarded by most with mixed emotions, it is within our power to turn it to healthy account.

Top management has had to address itself to neglected problems. Employees, themselves divided on the issues, are addressing themselves to problems of understanding between management and employees. We should emerge from this crucible a stronger, healthier institution-more closely attuned to the underlying values of our society-in which individual rights are more fully protected while the institution itself retains the ability both to manage itself effectively and to meet its responsibilities to the nation.

It seems clear to me that enhancing due process in personnel management

will contribute to our continuing pursuit of policy excellence.

The existential problem is to find the proper balance between the rights of employees and the needs of management to produce foreign policy. We cannot expect to find a single formula to yield the right results in all times and conditions, but we can expect that various improvements in procedures will bring us closer and closer approximations to that balance.

One such improvement, central to the whole idea of due process inside the Department, is the new Foreign Service grievance system. On November 29, 1975, President Ford signed the Department's authorization bill; it contains new grievance provisions, produced with active assistance of the Department's management and a great deal of give and take among the foreign affairs agencies, AFSA, and the Congress. The law states its purpose, "to provide officers and employees of the Service and their survivors 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." The keystone of the law is its provision for an orderly hearing of the grievant by an impartial board. We have 120 days to put the grievance law into effect with new regulations and machinery, thereby replacing the current informal mechanism.

We hope to do the job faster than that.

We think that we will have a responsive and fair grievance system, one of the best anywhere in the nation.

We will see that any evidence of systemic frailty that may emerge from the new grievance process is fed back into management, so that grievances function not only remedially, but constructively.

Our Constitution prescribes due process in the limited cases of governmental deprivation of life, liberty, or property. In 1972 the Supreme Court noted that, "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation for it. He must, instead, have a legitimate claim of entitlement to it." A court in the District of Columbia recently found that Foreign Service officers do not have a property interest (in the Constitutional sense) in continued employment in the Foreign Service where selection out for time-in-class is -continued on page 28