US embassy cable - 04TEGUCIGALPA125

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