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tive decision, the concepts which
tended to our methods of employing
new people and of assigning our
employees-indeed to the way we do
business across the spectrum of per-
Clearly, then, the concept is taking
But what is meant by “due process''?
It is a legal term of art, not easy to pin
selves, the fundamental idea is "fairPERSONNEL AND THE RULE OF Law
ness”; and the first requisite of due
process is the opportunity to be No doubt, we will have many occa heard.” Decisions are to be made on a sions during this Bicentennial year to basis of essential “uniformity” and ponder the linkages between the De **reasonableness." In 1951, Justice partment of State, Foreign Service of Douglas noted: “It is not without sigthe United States and the nature of our nificance that most of the provisions of society. More than many Americans the Bill of Rights are procedural. It is we have an obligation to study the rela- procedure that spells much of the diftionship between our daily tasks and ference between rule of law and rule by that which makes us proud to be whim or caprice.” Americans.
We all embrace this concept of due Last June the Secretary said: “To process. Yet, for the past five years the day what is needed is a Foreign Service Department and Foreign Service have that understands our goals as a nation, been plagued by dissension rooted in is capable of formulating a strategy for due process arguments. The debates reaching those goals, and possesses inside the Department have echoed the the tactical skill necessary to imple substance of our national debate about ment that strategy.''
the rights of the individual citizen. The As we struggle to reevaluate our style of our in-house confrontations selves and, where necessary, to recast has often reflected the increasingly our organization so that we can do a litigious aspect of our society at large. better job of providing service and Those pressing for greater application leadership for the nation in foreign af of the due process concept in Defairs, the Bicentennial can be an im partmental decisions assert that many portant, instructive event.
of our ills are traceable to the tradiAny evaluation of our ability to play tional (defined as "closed” or “autoour role must start with an evaluation cratic” or “paternalistic") ways of of our resources; for us that means our doing things in the Department. Those people. The Constitution is a useful defending the existing system decry text.
the decay of discipline and loyalty in The Fifth Amendment says in part, Foreign Service personnel and De"... nor shall any person be deprived partmental employees. of life, liberty, or property, without While the results of all this contendue process of law. ...” The protec tiousness within the Department are tion embodied in that brief clause has regarded by most with mixed emobeen considered so important by tions, it is within our power to turn it American citizens, the courts, and the to healthy account. Congress that the concept of due Top management has had to address process" is now applied to a broad itself to neglected problems. Employrange of governmental actions, includ ees, themselves divided on the issues, ing those by which the State Depart are addressing themselves to problems ment deals with the interests of its own of understanding between manageemployees.
ment and employees. We should By Constitutional application and emerge from this crucible a stronger, by statute, the Department must ensure healthier institution—more closely atdue process for selection out, equal tuned to the underlying values of our employment opportunity, use of society—in which individual rights are documents concerning individuals, more fully protected while the instituand handling of grievances. Through tion itself retains the ability both to negotiations with employee organiza- manage itself effectively and to meet tions, due process is recognized in de its responsibilities to the nation. vising the precepts for promotions and It seems clear to me that enhancing suitability standards. By administra 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
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