§4010. Separation for cause

(a) Authorization of Secretary; hearing prior to separation; waiver of hearing; suspension pending final resolution

(1) The Secretary may separate any member from the Service for such cause as will promote the efficiency of the Service.

(2) Except 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, a member of the Service (other than a United States citizen employed under section 3951 of this title who is not a family member) who is a member of the Senior Foreign Service or is assigned to a salary class in the Foreign Service Schedule and who either (A) is serving under a career appointment, or (B) if separation is to be by reason of misconduct, is serving under a limited appointment, shall not be separated from the Service under this section until the member has been granted a hearing before the Foreign Service Grievance Board and the cause for separation established at such hearing, unless the member waives in writing the right to a hearing or, notwithstanding section 4136(8) of this title, unless the member has been convicted of a crime related to the cause for separation, subject to reinstatement with back pay (for any period during which separation for cause had not been established by such a hearing) if such conviction is reversed on appeal. If such cause is not established at such hearing, the Grievance Board shall have the authority to direct the Department to pay reasonable attorneys fees to the extent and in the manner provided by section 4137(b)(5) of this title. The hearing provided under this paragraph shall be in accordance with the hearing procedures applicable to grievances under section 4136 of this title and shall be in lieu of any other administrative procedure authorized or required by this or any other law. Section 4140 of this title shall apply to proceedings under this paragraph.

(3) Notwithstanding the hearing required by this section, or procedures under any other provision of law, where a member has been convicted of a crime for which a sentence of imprisonment may be imposed, and there is a nexus to the efficiency of the Service, the Secretary, or his designee, may suspend such member without pay pending final resolution of the underlying matter, subject to reinstatement with back pay if cause for separation is not established in a hearing before the Board.

(4) Any member suspended pursuant to subsection (a)(3) of this section shall be entitled to-

(A) advance written notice of the specific reasons for such suspension;

(B) a reasonable time, not less than seven days, to answer orally and in writing;

(C) be represented by an attorney or other representative; and

(D) a final written decision.

(5) Any member suspended pursuant to subsection (a)(3) of this section shall be entitled to grieve such action in accordance with procedures applicable to grievances under subchapter XI of this chapter. The Board review, however, shall be limited only to a determination of whether the conviction requirements of subsection (a)(3) of this section have been fulfilled, and whether there is a nexus between the conduct and the efficiency of the Service.

(6) Notwithstanding the hearing required by paragraph (2), at the time the Secretary recommends that a member of the Service be separated for cause, that member shall be placed on leave without pay pending final resolution of the underlying matter, subject to reinstatement with back pay if cause for separation is not established in a hearing before the Board.

(b) Refund of contributions to Fund; annuity election

Any participant in the Foreign Service Retirement and Disability System who is separated under subsection (a) of this section shall be entitled to receive a refund as provided in section 4055 of this title of the contributions made by the participant to the Foreign Service Retirement and Disability Fund. Except in cases where the Secretary determines that separation was based in whole or in part on the ground of disloyalty to the United States, a participant who has at least 5 years of service credit toward retirement under the Foreign Service Retirement and Disability System (excluding military and naval service) may elect, in lieu of such refund, to an annuity, computed under section 4046 of this title, commencing at age 60.

( Pub. L. 96–465, title I, §610, Oct. 17, 1980, 94 Stat. 2098 ; Pub. L. 100–204, title I, §181(d), Dec. 22, 1987, 101 Stat. 1364 ; Pub. L. 101–167, title V, §586(b), Nov. 21, 1989, 103 Stat. 1252 ; Pub. L. 101–246, title I, §143, Feb. 16, 1990, 104 Stat. 36 ; Pub. L. 102–138, title I, §143(a), Oct. 28, 1991, 105 Stat. 668 ; Pub. L. 103–415, §1(h)(2), Oct. 25, 1994, 108 Stat. 4300 ; Pub. L. 105–277, div. G, subdiv. B, title XXIII, §2313, Oct. 21, 1998, 112 Stat. 2681–827 ; Pub. L. 106–113, div. B, §1000(a)(7) [div. A, title III, §328], Nov. 29, 1999, 113 Stat. 1536 , 1501A-438.)

Amendments

1999-Subsec. (a)(6). Pub. L. 106–113 added par. (6).

1998-Subsec. (a)(2). Pub. L. 105–277, in first sentence, substituted "Except 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, a member" for "A member".

1994-Subsec. (a)(2). Pub. L. 103–415 inserted "(other than a United States citizen employed under section 3951 of this title who is not a family member)" after "A member of the Service".

1991-Subsec. (a)(3). Pub. L. 102–138, §143(a)(1), substituted "a member has been convicted of a crime" for "there is reasonable cause to believe that a member has committed a crime".

Subsec. (a)(4)(A). Pub. L. 102–138, §143(a)(2), substituted "suspension" for "suspension, including the grounds for reasonable cause to believe a crime has been committed".

Subsec. (a)(5). Pub. L. 102–138, §143(a)(3), substituted "the conviction requirements of subsection (a)(3) of this section have been fulfilled" for "there exists reasonable cause to believe a crime has been committed for which a sentence of imprisonment may be imposed".

1990-Subsec. (a)(2). Pub. L. 101–246 inserted before period at end of first sentence "or, notwithstanding section 4136(8) of this title, unless the member has been convicted of a crime related to the cause for separation, subject to reinstatement with back pay (for any period during which separation for cause had not been established by such a hearing) if such conviction is reversed on appeal" and inserted sentence at end that section 4140 of this title apply to proceedings under this paragraph.

1989-Subsec. (a)(3) to (5). Pub. L. 101–167 added pars. (3) to (5).

1987-Subsec. (a)(2). Pub. L. 100–204 inserted after first sentence "If such cause is not established at such hearing, the Grievance Board shall have the authority to direct the Department to pay reasonable attorneys fees to the extent and in the manner provided by section 4137(b)(5) of this title."

Effective Date of 1987 Amendment

Amendment by Pub. L. 100–204 not applicable with respect to any grievance in which the Board has issued a final decision pursuant to section 4137 of this title before Dec. 22, 1987, see section 181(e) of Pub. L. 100–204, set out as a note under section 3946 of this title.

Expedited Separation Out

Pub. L. 105–277, div. G, subdiv. B, title XXIII, §2311(b), Oct. 21, 1998, 112 Stat. 2681–826 , provided that:

"(1) Separation of lowest ranked foreign service members.-Not later than 90 days after the date of enactment of this Act [Oct. 21, 1998], the Secretary of State shall develop and implement procedures to identify, and recommend for separation, any member of the Foreign Service ranked by promotion boards of the Department of State in the bottom 5 percent of his or her class for 2 or more of the 5 years preceding the date of enactment of this Act (in this subsection referred to as the 'years of lowest ranking') if the rating official for such member was not the same individual for any two of the years of lowest ranking.

"(2) Special internal reviews.-In any case where the member was evaluated by the same rating official in any 2 of the years of lowest ranking, an internal review of the member's file shall be conducted to determine whether the member should be considered for action leading to separation.

"(3) Procedures.-The Secretary of State shall develop procedures for the internal reviews required under paragraph (2)."

Definition of "Reasonable Cause"

Section 586(c) of Pub. L. 101–167 provided that for purposes of amendments by section 586(a) and (b) of Pub. L. 101–167, which amended this section and section 4136 of this title, reasonable cause to believe that a member has committed a crime for which a sentence of imprisonment may be imposed was to be defined as a member of the Service having been convicted of, and sentence of imprisonment having been imposed for, a job-related crime, prior to repeal by Pub. L. 102–138, title I, §143(c), Oct. 28, 1991, 105 Stat. 668 .

Section Referred to in Other Sections

This section is referred to in sections 4011, 4071d, 4136 of this title.