FOREIGN ADMINISTRATIVE PROCEEDING,

UNCLAS SECTION 01 OF 02 TEGUCIGALPA 000125

SIPDIS

DOJ/OFL, STATE DEPARTMENT FOR L/DL; INFO WHA/EX, USAID/W/GC

PERSONAL INFORMATION

E.O 12958: N/A
TAGS: EAID KLIG KTIA AMGT HO
SUBJECT: FOREIGN ADMINISTRATIVE PROCEEDING,
USAID/TEGUCIGALPA



1. Summary: The purpose of this cable is to notify
Washington legal offices of USAID, the Department of State
and the Department of Justice of an administrative labor
claim filed by a Honduran National. Also, this cable seeks
Department guidance on stopping a GOH pattern of repeatedly
transmitting such cases to the U.S. Mission in Honduras. In
the present case, a Honduran national was offered employment
by USAID/Honduras based on a temporary security clearance,
and subsequently not hired when she failed to obtain a
permanent security clearance. The claim was submitted to the
Ministry of Labor and the transmitted to USAID through the
Ministry of Foreign Affairs of the Republic of Honduras.
The claim seeks a `reconciliation hearing' between USAID's
Executive Officer and the claimant's legal representative.


2. Information related to the claim is listed below:

A. Name of plaintiff(s) and defendant(s):
Plaintiff: Lidia Margarita Fromm Cea; and defendant: USAID.
USAID/Honduras Executive Officer Neil Kester is summoned to
respond to the labor claim.


B. Court or tribunal where the suit was filed and any case
caption and docket number:
Ministry of Labor and Social Security; case number 106.


C. How (mail, hand delivery, diplomatic channels, etc.) and
to whom notice of suit was served (USAID, embassy,
contractor, etc.): Mail through diplomatic channels
addressed to Mr. Neil Kester, Executive Officer of the
Agency for International Development in Honduras.


D. Date of service (on the notice itself) and date service
was received by the mission or embassy:
Date of transmittal is 16 December 2003 and note and
documents were received at USAID on 19 December, 2003.


E. Time period provided in which to appear or respond:
None provided.


F. Description of documents received:
F1. Transmittal Letter from Ricardo-Alonso Flores, General
Director of Diplomatic Ceremony (Ministry of Foreign
Affairs) addressed to Mr. Neil Kester, Executive Officer of
the Agency for International Development which transmits
case no. 106 in reference to the labor claim presented by
Lidia Margarita Fromm Cea, dated 16 December, 2003.
F2. Transmittal Note from the General Secretariat (Ministry
of Foreign Affairs) to the General Direction of Diplomatic
Ceremonial, dated 16 December, 2003.
F3. Document entitled "Solicitation for Conciliation
Hearing" signed by Lidia Margarita Fromm Cea, and naming as
her legal representative German Edgardo Leitzelar Hernandez,
dated 13 November, 2003.
F4. Copy of a letter offering employment to Lidia Fromm,
signed by Neil Kester, Executive Officer, USAID/Tegucigalpa,
dated 5 September, 2003.
F5. Copy of Personal Services Contract Number 522-S-00-03-
00217-00, between Lidia Fromm and USAID acting thru Neil
Kester Contracting Officer. [NOTE: The copy of contract
submitted by Ms. Fromm omits Article VI, which states "The
contract is contingent on Security and Medical Clearances.
If the Security and Medical Clearances are not granted, the
contract will be terminated effective immediately."]
F6. Email from USAID/Honduras Personnel Specialist Vivian
Idiaquez to Lidia Fromm, dated 26 September, 2003 discussing
the grant of a `temporary' security clearance.
F7. Letter from Neil Kester to Lidia Fromm dated 10 October,
2003, informing Ms. Fromm of new information, that her
temporary security clearance would not be converted to a
final clearance, and that the provisional security clearance
had been rescinded.
F8. Letter Fromm/Kester 13 October, 2003.
F9. Letter Fromm to U.S. Ambassador Palmer dated 16
October. F10. Letter Kester/Fromm of 22 October responding
to letters from Fromm.
F11. Ms. Fromm's document listing the succession of events.
F 12. Ministry of Labor receipt of claim dated 14 November,

2003.
F13. Ministry of Labor authorization to transfer the claim
to Ministry of Foreign Affairs dated 12 December, 2003.


G. Copies of all above documents are available as
electronic documents in word format by contacting: Mr. Neil
Kester (nkester@usaid.gov),Executive Officer,USAID/Honduras
- ph.: (504) 236-9320 and fax (504) 236-7776.


3. Short description of the nature of the legal suit,
proceeding, or action: Ms. Fromm was selected by competitive
process to fill an FSN PSC position as USAID/Honduras'
Project Management Specialist for Education. On 11
September, 2003, the Regional Security Office provided an
initial `temporary' security clearance for Ms. Fromm's
initial period, NTE 120 days. Based on the foregoing, and on
Medical Clearance, USAID/Honduras/EXO signed a contract with
Ms. Fromm on 23 September. By 10 October, the RSO had
determined based on further information that Ms. Fromm would
not be eligible for a security certification for full
employment. USAID/Honduras/EXO immediately informed Ms.
Fromm that she would not be eligible for employment under
the authority in the contract, clause A.6.3 which states
"The contract is contingent on Security and Medical
Clearances. If the Security and Medical Clearances are not
granted, the contract will be terminated effective
immediately." NOTE: Ms. Fromm had not yet entered on duty
at the time she received notice that she would not be
granted the full security clearance. On 19 December, 2003,
USAID/Honduras received Ms. Fromm's request for a
reconciliation hearing.


4. Mission observations and proposed course of action.


A. Mission proposes to deny Ms. Fromm's request for a
reconciliation hearing with the USAID Executive Officer on
the basis that Mr. Kester is an accredited diplomatic agent
under Article 31 (1) of the Vienna Convention on Diplomatic
Relations and enjoys complete immunity from criminal
jurisdiction of Honduras and comprehensive immunity from the
civil and administrative jurisdiction of Honduras. In
addition, under Article 31 (2) of the Vienna Convention, Mr.
Kester is not obligated to provide evidence as a witness.


B. Furthermore, the Mission proposes to put the Ministry of
Foreign Affairs on notice to prevent future transmittal of
administrative labor claims such as this one, four of which
have been transmitted in the past year, naming accredited
diplomatic agents in civil matters under practices set forth
in the Honduran Labor Code.


C. Mission proposes to respond by diplomatic note which, in
addition to rebutting the claim from Lidia Fromm, will
provide general terms so that any future such claims that
subject the U.S. Mission administrative labor cases under
Honduran law could be returned to the MOFA with reference to
the present dipnote, and no futher discussion.


5. Am/Embassy Tegucigalpa seeks concurrence with this
proposal, or appropriate alternate guidance.

PALMER