Category Archives: AFSA

The Odd Story of “Vetting/Scrubbing” the Tenure/Promotion of 1,800 Foreign Service Employees in the U.S. Senate

– Domani Spero

We recently blogged about the hold on the commission, tenure and promotion of 1,705 career Foreign Service employees at the Senate Foreign Relations Committee. (See Is the U.S. Senate Gonna Wreck, Wreck, Wreck, the Upcoming Bidding Season in the Foreign Service?).

We wondered then if this was one more  unintended consequence from the Senate’s “nuclear” option.

Here’s what we were told by AFSA:

“FYI – this has nothing to do with the nuclear option – its strictly about State’s vetting process.”

AFSA then sent us a link of its April 1 notice to its membership: Ask the Senate to Support Foreign Service Employees!

After reading that, we were struck by the following line:

“We urge the SFRC to address issues regarding vetting of names for criminal background checks collaboratively. Simultaneously we ask the SFRC to grant these men and women the commissioning, tenure and promotions for which they’ve been recommended.”

Huh?

We asked AFSA again — what sort of vetting are we talking about here? All these nominees pending on the SFRC have Top Secret clearances and have been vetted by Diplomatic Security.

We got the following response:

“There are some differences in what the State Department does and what DoD does both in substance and information provided to oversight committees. […] it does NOT have to do with DS vetting and TS clearances.  There may be some periods of time and activity that are not being captured by current vetting process and I think State is amenable to working with committee to resolve.”

We did the underline there.  We don’t know what the heck that means!

So nothing to do with the nuclear option.

Nothing to do with Diplomatic Security vetting.

And nothing to do with TS clearances.

Wow!

What a strange mess! Anybody know what this is really all about?

Again from your elected AFSA official:

“Both the State Department and DoD vet/scrub the lists with internal and external agencies before they send the list to the Senate and its respective committees – SFRC, SASC.  This vetting/scrub is what is being discussed.”

Arghhh! Arff! Arff!

AFSA’s letter to the SFRC Chairman Bob Menendez and Ranking Member Bob Corker does not explain how this mess started in December 2013 but provides some details on the groups impacted by the Senate hold:

Now 1800 FS Employees Stuck at the SFRC

“[W]e are writing to convey our deep concerns about the impact that the delayed confirmations of tenure and promotions for career Foreign Service employees is having on U.S. diplomatic operations and U.S. national interests. When we raised this matter back in December 2013, nearly 1,300 individuals were affected by the holds. As of this time, there are approximately 1,800 members of the Foreign Service from four foreign affairs agencies (Department of State, USAID, Foreign Agricultural Service, and Foreign Commercial Service) who await Senate confirmation of appointment, tenure, or promotion.”

200 FS Employees Waiting to Officially Join the SFS

“Of these, over 200 employees of all four agencies are awaiting confirmation of their promotions into or within the Senior Foreign Service. These members are affected financially in two distinct ways. First, the pay increases earned as a result of their promotions cannot be paid until attestation by the president, nor can the promotions be back-dated so as to overcome this loss of remuneration. Second, unless the promotions are confirmed and attested before April 15, 2014, they are not eligible to be reviewed for, or to receive, performance pay. In addition, uncertainty besets the onward assignments of these 200 members. Failure to confirm these officers as members of the Senior Foreign Service affects the ability of consulates, embassies and USAID missions to conduct the business of the United States overseas.”

Over 900 Waiting for FSO Commissions

“Over 900 of the remaining officers are awaiting commissioning as Foreign Service officers and secretaries in the diplomatic service, almost half of whom have been waiting close to a year. Several of them are approaching the limit of their 5-year Limited Career Appointments. If that expires without their being commissioned, they are supposed to leave the Foreign Service in accordance with Section 309 of the Foreign Service Act of 1980 (22 USC §3949.) Moreover, as untenured officers, they are ineligible to receive some pay differentials for positions, which they currently encumber. Overall, this is having a severe effect on their morale and their eligibility for onward assignments. Unfortunately, this prolonged wait and uncertainty is coloring their impressions of public service at the beginning of their careers.”

Over 600 FSOs Without Consular Commissions

“Finally, over 600 new Foreign Service officers, just starting their Limited Career Appointments, have not yet received commissions as consular officers. Without a Consular Commission, these entry-level officers are technically not authorized to adjudicate visas and perform other consular work. In addition, the possession of a Consular Commission is generally a prerequisite to the granting by a host nation of all necessary diplomatic privileges and immunities under the Vienna Convention.”

 

So, when we read this, our immediate reaction was where is the State Department leadership in all this? We know that Secretary Kerry and his top officials are often traveling but  there’s a whole lot of ranking officials in Foggy Bottom who could interface with the leadership and staff of the SFRC. Where is the Under Secretary for Management? Where is the Deputy Secretary for Management and Resources?

But see – what we heard from insiders is that the State Department reportedly said: “AFSA had the lead on fixing this.” 

Well, that’s terribly odd, isn’t it?

Secretary Kerry was at the SFRC on April 8, and made passing mention of the nominations, but we sorta think he’s talking about the top ranking nominees.  We don’t even know if he’s aware that 1,800 of his employees are stuck in the committee:

“I also want to thank everybody on the committee for working so hard to move the nominations, which obviously is critical. I think our – it’s not the fault of the committee, but with a combination of vetting process and public process and so forth and the combination of the slowdown on the floor of the Senate, I think we’re averaging something like 220-some days and some people at 300 days and some over 365 days. So I have literally only in the last month gotten my top team in place one year in, and I’m very grateful to the committee.”

The Secretary did not specifically mention that  Ambassador Carlos Pascual who was nominated to be Assistant Secretary of State for Energy Resources on February 17, 2012 has been stuck in committee with Super Glue for 760 days.

Secretary Kerry also did not specifically mentioned the blanket senate hold during the April 8 hearing that affects about 10% of his agency’s workforce. And really — what do you do with 600 consular officers without their Consular Commissions? Have they been adjudicating visas without their Consular Commissions, and if so, what kind of immunity and diplomatic privileges are afforded these officials overseas?

But wait, like on teevee — there’s more!

We are now also hearing disturbing allegations that the genesis of this mess started long before December 2013, even going back to 2012.

It is alleged that this all started with one name on the promotion list. The original initiator (who apparently is not/not a stranger to AFSA and the State Department) allegedly brought a specific name on the promotion list to the attention of a Senate staffer. It is alleged that the action was taken using personal connections cultivated in the Senate. The key question at that time allegedly revolved around the security clearance of one — one specific individual and resulted in the removal of  this individual’s name from the promotion list.

Now, why would anyone do that?

If we could hire Veronica Mars, she’d definitely bug this  Mr. Initiator guy then we’d have the full story.

It is further alleged that  subsequent to the removal of that one name from the promotion list, the same SFRC staffer also identified several other FSOs who were subjects of “investigations” at some point in their careers. In most cases, these investigations reportedly were in the medium to distant past (as much as 10 or 15 years ago). Our source, clearly frustrated says that the fact that these investigations occurred in the past has not deterred the senator’s office pursuit of these FSOs.

This year’s senate hold reportedly started with an assertion by one senator’s office that the military vets people better than State does, and that the State Department list is “riddled with people” whose actions had been questioned “by OIG and others.”  We don’t know who consists of “others.” Our source familiar with this matter but speaking on background said that one senator reportedly vowed “not to approve any FS name until the matter was resolved.” The same SFRC staffer allegedly involved in the initial promotion list snafu works for this one senator. Senior State Department officials have reportedly demonstrated that, unlike the military, all State employees have TS clearances which include name checks. We’re told that at the senate’s request, the SOP on vetting at the State Department now goes “further” than what is required by the military. We do not know what “further” or additional layers of vetting were added.

The following areas were supposedly contentious:

#1. The automatic exclusion of any employees with criminal convictions.
#2. The separate nomination of any employees with “problems.”

Say, wait — how many State Department employees with criminal convictions have been able to hold on to their Top Secret clearance? One, two, a hundred, five hundred?

The number is .. wait for it …. ZERO.

How many State Department employees under investigation or with criminal convictions have been able to keep their names on the promotion list? Hey, don’t they yank your name from that promotion list as soon as there is an investigation with your name on it?

Employees who previously faced investigations and have successfully prevailed/survived the investigations will now be singled out on the promotion list? Why? Should they also be required to wear  “NOT GUILTY BUT” t-shirts to work?

If these employees have been cleared of wrongdoing, why is the Senate hardballing them?

We do not know the full story about this Senate hold involving some 1,800 FS employees but AFSA and the State Department should know who were the names targeted from the promotion lists and why. And if they don’t know the why, then they should find out, of course. If a Senate staffer who has worked in Congress for years just got out of bed one day and decided he/she wants to put a hold on 1,800 names because the “vetting” and “scrubbing” of names have been unsatisfactory all this time — we should all ask why.

Because.  Motive, motive, motive.

Let’s start at the very beginning… oh, where is Sherlock when you need him?

If  the allegation is true, that this whole merry go round mess was initiated by one Foreign Service insider and got out of hand … now then, you’ve got a mess, Houston. One FS person was initially targeted by another FS person using contacts in the Senate. That’s pretty personal.

It looks like you’ve got a petty little beaver who never left hight  high school …

And he’s representing the United States of America.

On Friday, April 11, AFSA released this: Senate Confirms Tenure and Promotion!

 

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Is the U.S. Senate Gonna Wreck, Wreck, Wreck, the Upcoming Bidding Season in the Foreign Service?

– Domani Spero

 

Do you know how many Foreign Service members are currently awaiting approval for commissioning, tenuring and promotion in the U.S. Senate? 1,705. That’s 1,705 regular folks  in the career service, excluding the ambassadorial nominees.

Some of these names have been submitted since January, and they are all still pending in a dark cauldron brewing in the SFRC.

In a message to its members on March 18, AFSA writes that it “has worked diligently for months on this issue and we would like to alert you that last week, important progress was made in resolving the holds, through the leadership of Senate Foreign Relations Committee Chairman Senator Bob Menendez (D-NJ) and Ranking Member Senator Bob Corker (R-TN).   AFSA is confident that both sides have demonstrated the good will necessary to move the process forward and looks now to an amicable and expedited solution to this situation in the coming days.”

The Senate's side of the Capitol Building in DC.

The Senate’s side of the Capitol Building in DC. (Photo credit: Wikipedia)

End of the month and here we are.  Neither the Chairman nor the Ranking Member of the SFRC has anything to say about this logjam on their website.

These employees are waiting Senate attestation so they are officially commissioned, tenured and promoted. And you know what, the Foreign Service “bidding season” is fast eating up the days in the calendar.

Why this can get complicated?

A good number of these employees pending at the SFRC will be “bidding” for their next assignments.   The Foreign Service is a rotational, rank-in-person system.  As a consequence, there will be “real” FS-01s, for example and “FS-02s” who are supposed to be treated as 01s but who technically are 02s.

The State Department reportedly is telling folks looking at bids to treat “02” bidders as “01s” and so on and so forth because of inaction from the Senate.

Oh crap, how do you sort them all out?

One frustrated official writes, “I can’t see how this won’t have a major impact as we’re evaluating employees.”

Not only that, we imagine that the bump in pay and associated hardship/danger/COLA allowances (a percentage of basic compensation) will also not get taken care of until the Senate officially blesses these names.

Since bad news comes in threes — you should know that Ambassador Arnold A. Chacon’s nomination as Director General of the Foreign Service got out of the SFRC in February 2 but has been stuck since then waiting for a full vote in the U.S. Senate.

WaPo recently reported that President Obama may have learned how to finally break through the months-long Senate logjam on his ambassadorial nominations: he or Vice President Biden must travel to the countries where nominees would be headed.

Unfortunately for the Foreign Service, neither President Obama nor VP Biden has DGHR listed in their immediate schedule.

Below is the list of nominations pending in committee:

  • Feb 10, 14     PN1419    Foreign Service Nominations beginning Scott S. Sindelar, and ending Christine M. Sloop, which 6 nominations were received by the Senate and appeared in the Congressional Record on February 10, 2014.
  • Feb 10, 14     PN1418    Foreign Service Nominations beginning Mark L. Driver, and ending Karl William Wurster, which 59 nominations were received by the Senate and appeared in the Congressional Record on February 10, 2014.
  • Jan 30, 14     PN1384    Foreign Service Nominations beginning Beata Angelica, and ending Benjamin Beardsley Dille, which 381 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1383    Foreign Service Nominations beginning Kevin Timothy Covert, and ending Paul Wulfsberg, which 277 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1382    Foreign Service Nominations beginning Matthew D. Lowe, and ending Wilbur G. Zehr, which 242 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1381    Foreign Service Nominations beginning Gerald Michael Feierstein, and ending David Michael Satterfield, which 196 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1380    Foreign Service Nominations beginning Kate E. Addison, and ending William F. Zeman, which 121 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1379    Foreign Service Nominations beginning Kathleen M. Adams, and ending Sean Young, which 112 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1378    Foreign Service Nominations beginning Julie Ann Koenen, and ending Brian Keith Woody, which 94 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1377    Foreign Service Nominations beginning Susan K. Brems, and ending Ann Marie Yastishock, which 45 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1376    Foreign Service Nominations beginning Scott Thomas Bruns, and ending Janelle Weyek, which 23 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1375    Foreign Service Nominations beginning James Benjamin Green, and ending Geoffrey W. Wiggin, which 11 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 30, 14     PN1374    Foreign Service Nominations beginning Christopher David Frederick, and ending Julio Maldonado, which 3 nominations were received by the Senate and appeared in the Congressional Record on January 30, 2014.
  • Jan 09, 14     PN1317    Foreign Service Nominations beginning Ranya F. Abdelsayed, and ending Fireno F. Zora, which 135 nominations were received by the Senate and appeared in the Congressional Record on January  9, 2014.

We can’t help but think that this is one more  unintended consequence from the Senate’s “nuklear” option.  This WaPo piece on President Obama’s inability to fill many of his administration’s most important jobs is not even hopeful.

Doesn’t this remind you of  wreck ‘em Plants v. Zombies, the DC edition?

 

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2013 Mathilda W. Sinclaire Language Awardees

– Domani Spero

According to AFSA, a generous bequest from retired Foreign Service officer Mathilda W. Sinclaire established a program since 1982 honoring Foreign Service employees who excel in the study of hard languages.  The purpose of Ms. Sinclaire’s bequest was to “promote and reward superior achievement by career officers of the Foreign Service [...] while studying one of the Category III or IV languages under the auspices of the Foreign Service Institute.” The guidelines were reportedly amended and updated in October 2001 to expand eligibility for the awards to any career and career-conditional member of the Foreign Service from the Department of State, USAID, FCS, FAS, BBG and APHIS.  The 10 winners of the 2013 Mathilda W. Sinclaire Language Awards are as follows:

  • Miriam R. Asnes – Arabic
  • Sonnet A. Frisbee – Czech
  • Paul F. Narain – Greek
  • Jacob M. Rocca – Hebrew
  • Timothy Shriver – Hungarian
  • Robert Silberstein – Lithuanian
  • Alan J. Smith – Russian
  • Adam T. Stevens – Vietnamese
  • Matthew Wilson – Bulgarian
  • Bryan G. Wockley – Persian/Dari/Afghan

 

We received an email on this noting … “all but one of whom appear to be men. What’s with that?”  We looked at the list of winners from the previous four years and must note that in 2012 seven of the ten awardees were female.

2012: Anne Casper (Kinyarwanda), Vanna Chan (Lithuanian), Rebecca Danis (Pashto), Spencer Fields (Albanian), Christina Le (Greek), Dan McCandless (Dari), Robert Mearkle (Arabic), Nina Murray (Lithuanian), Roshni Nirody (Japanese), Kristen Pisani (Greek) M/F -3/7

2011: Nancy Abella (Dari), Eric Collings (Uzbek), Sarah Grow (Persian/Farsi), James Hallock (Mandarin), Rebecca Hunter (Albanian), Theresa Mangione (Vietnamese), E. Jerome Ryan, Jr. (Japanese), David Vincent Salvo (Serbian/Croatian). M/F-4/4

2010: Daniel Heath Bailey (Latvian), Eric M. Frater (Vietnamese), Melanie Harris Higgins (Indonesian), Bradley Hurst (Hungarian), Andrew J. Partin (Georgian), Daniel Rakove (Mongolian), Stuart Madgett Smith (Greek), Thomas Venner (Tagalog), Vaida Vidugiris (Greek). M/F-7/2

2009: Joshua Baker (Arabic), Laura Brown (Arabic), Zachary Harkenride (Dari), Vincent Traverso (Dari), Meredith Rubin (Icelandic), William M. Coleman (Japanese), Alan Clark (Mandarin Chinese), Scott Hansen (Mandarin Chinese), Denise Shen (Mandarin Chinese), Alfred Boll (Serbian), Adam Hantman (Thai). (Laura Brown was a previous winner for Bosnian in 2003.) M/F-8/2

Arabic as official language

Arabic as official language (Photo credit: Wikipedia)

It looks like candidates to the Sinclaire Language Awards may be nominated by the language-training supervisors at the FSI School of Language, the language instructors at field schools, or post language officers. According to AFSA’s website, winners are selected by a committee comprising the Dean of the FSI School of Language Studies (or designee), members of the AFSA Governing Board, AFSA Awards Committee and general AFSA membership. Each winner receives a check for $1,000 and a certificate of recognition signed by the AFSA President and the chair of the AFSA Awards committee.

The nomination requires the submission of DS‐651 Language Training Report or DS ‐1354 Language Proficiency Report if appropriate. In addition to the submission of the S/R (speaking/reading) scores, it also requires a nominating statement (not to exceed one page); and, of course, somebody who’s willing to write up and submit the nomination.

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15 Former AFSA Presidents Urge Senators to Oppose Confirmation of Ambassadorial Nominees to Norway, Hungary, and Argentina

– Domani Spero

On March 5, 2014, the AFSA Governing Board resolution says that “AFSA will send letters to the Senate and the White House expressing concern that the recent nominations for chief of mission positions in Norway, Hungary and Argentina appear to be based primarily on their status as financial contributors to political campaigns, which is in violation of the Foreign Service Act of 1980.” 

On Friday, March 7, fifteen former presidents of the American Foreign Service Association (AFSA) wrote to Senators Reid, McConnell, Menendez, Corker, Franken, Klobuchar, McCain, Cardin, Mikulski, Warner, Kaine, Whitehouse  and others, urging the non-confirmation of President Obama’s nominees for ambassadors to Norway, Hungary and Argentina.

Screen Shot 2014-03-09

Below is an excerpt from their letter:

Among the nominees for ambassadorships currently under consideration by the Senate, three have generated considerable public controversy: George Tsunis (Norway), Colleen Bell (Hungary), and Noah Mamet (Argentina). The nominations of Mr. Tsunis and Ms. Bell have been forwarded to the full Senate by the Senate Foreign Relations Committee.

As former presidents of the American Foreign Service Association, the professional association and trade union of career members of the Foreign Service, we urge you to oppose granting Senate consent to these three candidates. Although we have no reason to doubt that the nominees are conscientious and worthy Americans, the fact that they appear to have been chosen on the basis of their service in raising money for electoral campaigns, with minimal demonstrated qualifications for their posts, has subjected them to widespread public ridicule, not only in the U.S. but also abroad. As a result, their effectiveness as U.S. representatives in their host countries would be severely impaired from the start. Their nominations also convey a disrespectful message, that relations with the host country are not significant enough to demand a chief of mission with relevant expertise.

These three nominations represent a continuation of an increasingly unsavory and unwise practice by both parties.  In the words of President Theodore Roosevelt, “The spoils or patronage theory is that public office is primarily designed for partisan plunder.”  Sadly it has persisted, even after President Nixon’s acknowledged rewarding of ambassadorial nominations to major campaign donors was exposed.
[...]
During his 2008 election campaign, President Obama recognized the appropriateness of these guidelines, and promised to respect them. The time for the Senate to begin enforcing its own guidelines set forth in law for U.S. diplomatic chiefs of mission is now.  The nation cannot afford otherwise.

The signatories of the letter are Marshall Adair, Thomas Boyatt, Kenneth Bleakley, Theodore Eliot, Franklyn A Harris, William Harrop, Dennis Hays, J. Anthony Holmes, Lars Hydle, Susan Johnson, Alphonse La Porta, John Limbert, John Naland, Lannon Walker, and Theodore Wilkinson.

One scenario where this might get off  the hot topics column is if the nominees themselves recognize that their confirmation hearing performance and subsequent public ridicule would have an impact on their effectiveness as President Obama’s top representatives in their prospective host countries, and withdraw their names for consideration. This would be the less messy route, but we do not anticipate this happening or it would have happened already.

Another scenario is if we get to see more Senate confirmation hearings bungled under similar circumstances, with the accompanying public uproar, and more mockery from cable news and comedians day in and day out — which might, just might make President Obama think, “enough already.” If that happens, it might also forced him to  revisit his promise that “the days of Michael Brown, Arabian Horse Judge, are over.”  Well, that’s a lot of ifs and mights, so we’re not holding our breath.

There is, of course, the ultimate scenario that we have seen before, and no doubt, we’ll see again — Senators’ offices will acknowledge the former AFSA presidents’ letter and others like it, and then proceed to confirm the nominees (Senate holds for ambassadorial nominees seem reserved for nutty reasons like the case of an ancient boyfriend or the ethnic origin of the nominee’s wife). It is just a coincidence that some nominees are also contributors to the Senate Majority PAC, the party’s Senatorial Campaign, the party’s victory fund or even to the guys from the other party.  Oh, but we are extraordinarily special and exceptional that way — watch.

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State Dept Releases Part of FOIA’ed Ambo Credentials — Showing Soon Online? Mm-hmm.

– Domani Spero

On March 7, the State Department released the “certificates of demonstrated competence” requested by AFSA on July 29, 2013. The fulfilled request did not include the second FOIA request filed on February 28, 2014.  The DPB extract below also has brief FOIA data for FY2013, which we did not have when we blogged about this case yesterday (State Dept on Ambo Nominees’ “Certificates of Documented Competency” — Working On It.

Two sources confirmed to us that AFSA has these documents and is reviewing them. These “certificates” or “reports” are typically a page long, as previously described in our post here (AFSA Threatens to Sue State Department Over Ambassadors Credentials, Again).  It is our understanding that these docs released today are just bio data and are not confidential.  We’ll have to wait and see whether AFSA would share these “certificates” with their members, and the public by posting them as a subsection of the ambassadors page on its website.

Via DPB, March 7, 2014:

QUESTION: Do you have any update on whether you’ve given the certificates of demonstrated competence to the AFSA representatives?

MS. PSAKI: I do. We have – as I mentioned yesterday, there were two different FOIA requests. So we have fulfilled the requests meeting the July FOIA. That was from – requested from January – January 1st, 2013 to the present time, meaning to when it was – when the process of looking at it began, which means it’s through November. So that is a request we’ve met. The February request is separate. We just received it last week. As I said yesterday, and as is the case in any FOIA, we’re working to process that.

QUESTION: Now, when you say fulfilled, does that mean that you agreed and handed over those certificates –

MS. PSAKI: Mm-hmm.

QUESTION: – unredacted?

MS. PSAKI: I don’t have any details on that, but just to – and I know somebody asked this question yesterday, but it’s an important note here because I looked into this. These documents that they’re asking for are about a page or two pages long.

QUESTION: Right.

MS. PSAKI: They are certainly not reflective of the qualifications or even that extensive of a background or any – of any of the individuals.

QUESTION: Right, which kind of begs the question as to why it took so – if they’re only a page or two long, why it takes so long to go – anyway. But –

MS. PSAKI: Well, they only –

QUESTION: – when was –

MS. PSAKI: To answer another one of your questions, Matt –

QUESTION: Okay.

MS. PSAKI: – because I aim to please here –

QUESTION: Uh-huh, yeah.

MS. PSAKI: – the request was not made informally or through any other channels –

QUESTION: Before?

MS. PSAKI: – but through the FOIA. Correct, through the FOIA process.

QUESTION: Would they – oh, I suppose this is a hypothetical question, but would – does it – are – could they have gotten it through an informal request? Or do you – would you have demanded that they go through the FOIA route to get them?

MS. PSAKI: I can’t answer that question. I mean, it’s impossible to answer.

QUESTION: Right. And then –

MS. PSAKI: But we do try to provide information –

QUESTION: Okay.

MS. PSAKI: – and work closely with AFSA.

QUESTION: And when was it fulfilled as – the way –

MS. PSAKI: I’d have to double check on that. I believe it was this morning, but let me double check on that and make sure that’s true.

QUESTION: It was this morning. So you missed their deadline. You were hoping for a little leeway, kind of like the Israelis and the Palestinians.

MS. PSAKI: I’ll check and make sure, Matt. Well, they certainly know when we met it or didn’t meet it, right?

QUESTION: Well, right. I know. Okay.

MS. PSAKI: It’s not a secret to them.

QUESTION: So we need to ask them if they’re satisfied with –

MS. PSAKI: And I can check – well, I can check too when – if it was last night or this morning.

QUESTION: How many tickets – how many tickets were there?

MS. PSAKI: I don’t have any numbers for you. It was any that were applicable in that timeframe.

QUESTION: Do you have in front of you – and I know the building has put these together, but I don’t know if it’s made its way to you – the response to the question that I asked yesterday, just to get it on the record, for how long it takes on average to respond to FOIA requests for the State Department?

MS. PSAKI: I do, Arshad.

QUESTION: I am delighted. Let’s –

MS. PSAKI: Get excited, it’s a Friday.

QUESTION: Let’s put this on the record. (Laughter.) Excellent.

MS. PSAKI: Okay. In Fiscal Year 2013, the average time to process a simple request was 106 days. In the same fiscal year, the average time to process a complex request was 533 days. To show just a factual point here on efforts to improve, in Fiscal Year 2013, the Department received over 18,000 FOIA requests and processed over 21,000. So we processed more than we received, meaning we’re trying to speed up the process.

QUESTION: So – and I had one other question about that, which is that implies that there is a big backlog that you were able to – right?

MS. PSAKI: Mm-hmm.

 

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State Dept on Ambo Nominees’ “Certificates of Documented Competency” — Working On It

– Domani Spero

The American Foreign Service Association was in the news yesterday after announcing that it will file a suit against the State Department if, by end of business day today, it does not get the certificates of demonstrated competence for ambassadorial nominees (see AFSA Threatens to Sue State Department Over Ambassadors Credentials, Again).

The topic made it to today’s Daily Press Briefing with the State Department spokesperson Jen Psaki answering questions about AFSA’s FOIA requests for these documents which were reportedly filed on July 29, 2013 and a second request filed on February 28, 2014.  Ms. Psaki refused to make a prediction of whether State would respond to AFSA’s request by the close of business today.

At about 3pm EST, ABC News tweeted that AFSA is giving the State Department until tomorrow morning to furnish the requested “Certificates of Documented Competency” for ambassador nominees.

When you look at that AFSA FOIA request delay of 7 months and a week, it might be useful to note that in FY2012, the State Department’s total requests in backlog is 10,464.   In fact, according to foia.gov, State has one of the highest backlogs, second only to DHS. In FY 2011, the average number of days to process a simple case was 156; for complex cases, 342. Some cases have been pending for 5 or 6 years (see State Dept FOIA Requests: Agency Ranks Second in Highest Backlog and Here’s Why).  The oldest pending request, as you can see below is 1,922 days.

Screen Shot 2014-03-06

Here is the short version of the March 6, 2014 DPB:

Screen Shot 2014-03-06

via Word It Out

Below is the long version from the March 6, 2014 DPB:

QUESTION: The American Foreign Service Association said yesterday that they were going to be filing suit against the State Department if, by end of business today, you don’t provide certificates of demonstrated competence for ambassadorial nominees. So I just wanted to know if you had any reaction to that.

MS. PSAKI: Sure. Well, AFSA submitted a FOIA request on July 29th 2013 to our website – this is just some details for all of you to be aware of – seeking certificates of a demonstrated competence for every ambassador from January 1st 2013 to the present. We receive, as many of you know, about 18,000 FOIA requests per year. Generally – we generally process requests on a first in, first out basis. So we’re currently actively processing the request in accordance with the statute and the Department’s regulations, which applies to the specific release they put out yesterday.

In terms of broadly speaking, obviously, in nominating ambassadors, we look – the Administration looks for qualified candidates who represent Americans from all walks of life and who show true zeal for serving their country, and we’ve received interest and recruited talented people from all across the country and all kinds of professional backgrounds, whether they are Foreign Service – well, that’s – they proceed through a different process, there, of course, but political appointees who may be from the business sector, who may be from a public service sector. We feel that this kind of diversity helps represent who we are and the United States around the world.

So long story short, we are reviewing their request. We process requests as they come in. Certainly we welcome the comments of anyone and views of anyone on these sorts of issues, but I think it’s important to remind everyone of what we look at when it comes to ambassadorial nominees.

QUESTION: Jen, they submitted this request in July? How many months ago?

QUESTION: January.

QUESTION: No, July 29th, she said.

QUESTION: I thought you said January.

MS. PSAKI: For every ambassador from January 20 –

QUESTION: Oh, sorry, sorry, sorry.

QUESTION: So how long should they expect to wait until you finish processing your request? And why should they even have to submit a FOIA request for this? Why wouldn’t you just – if they asked for it, why wouldn’t you just turn them over?

MS. PSAKI: They were asking for specific documents that are –

QUESTION: Right. But this is not an organization that has a questionable interest in this. It’s an organization that, in fact, represents – I mean, it is the – basically the union for Foreign Service officers, so it’s not really an outside party.

MS. PSAKI: Well, oftentimes, Matt, there’s a processing aspect that needs to take place with these requests, so –

QUESTION: Right, I’m sure that – I’m sure everyone is thrilled, everyone who’s ever filed a FOIA request to the State Department or any other government agency is thrilled, but I think that –

MS. PSAKI: There are many people who do. That’s part of the challenge in processing them.

QUESTION: Right. Okay, so you just threw this in the big pile, in the in-box with every single other request, even though they clearly have some – they have demonstrated interest in this subject. I don’t understand –

MS. PSAKI: I didn’t say we threw it in a pile, Matt.

QUESTION: Yeah, you did. You said you get 18,000 requests a year, so – and –

MS. PSAKI: We do. We process them.

QUESTION: So when they –

MS. PSAKI: But obviously, we’re working to review their request and see how we can meet it as quickly as possible.

QUESTION: But specifically they asked for it to be by the close of business tonight. Otherwise, they’re going to take their – take this to legal action.

MS. PSAKI: I understand that.

QUESTION: Are you saying that you will not be able to get it to them by end of day tonight?

MS. PSAKI: I’m not going to make a prediction of that. We’ll see what happens.

QUESTION: Just – can I have one –

MS. PSAKI: Sure.

QUESTION: Where – you are now processing this specific request, correct?

MS. PSAKI: Mm-hmm.

QUESTION: You’re actually looking at it and trying to satisfy it?

MS. PSAKI: Mm-hmm.

QUESTION: Okay. If you get 18,000 FOIA requests a year, what is the typical time lag for processing a request? Is it, as in this case, I guess, eight months or – is that typical or is it less, is it more?

MS. PSAKI: I don’t have any specific time breakdown for you. I’m happy to see if there’s anything like that we can provide.

QUESTION: And was this one –

MS. PSAKI: We’re – they’re about to start the press avail, but go ahead.

QUESTION: Okay. Was this one jumped to the front of the queue for any reason or no? It was processed –

MS. PSAKI: Well, there are cases where – and they asked for expedited processing, and some cases that question is asked. This didn’t satisfy the specific laid out standards for that, but we’re still working to see if we can process this as quickly as possible.

QUESTION: But it was not – was it jumped ahead or no? Or it –

MS. PSAKI: Well, we’re still working to see if we can process it as quickly as possible.

QUESTION: No, no, that’s not my question, though. My question is whether it got – I understand that they may have requested expedited processing –

MS. PSAKI: Mm-hmm.

QUESTION: – and did not – denied it because they don’t meet the standards, which happens to a lot of people.

MS. PSAKI: And at the same time, we’re still working to expedite – to process this as quickly as possible.

QUESTION: Right. Right. Right. No, but I’m sure you’re doing that with the other 17,199, right? I mean, the question is whether you are doing this faster.

MS. PSAKI: Specifically with this one, we are –

QUESTION: Yeah.

MS. PSAKI: – working to process it as quickly as possible.

QUESTION: But quicker than everything – others’ stuff?

MS. PSAKI: It doesn’t work in that exact way, but we’re working to process it as quickly as possible.

Ali.

QUESTION: And Jen, they said that – AFSA said that they also filed a second FOIA request on February 28th.

MS. PSAKI: Mm-hmm.

QUESTION: So did they express to you their – because I know there was discussion between counsels.

MS. PSAKI: Sure.

QUESTION: So was that part of the aspect, that they didn’t feel that the July request had been processed or addressed within a – expeditiously enough so that –

MS. PSAKI: You’d have to ask them that question. I’m not sure if they are basically about the same thing or not. So I’m happy to check, and you may want to check with them and see what the reason was for the second one.

QUESTION: These documents are – what they’re seeking or these certificates are not classified, are they?

MS. PSAKI: No, but they’re still internal files, and so obviously we go through a process –

QUESTION: Fair enough. But they’re for a very small number of people, 50. Do you have any idea how many pages one of these things is?

MS. PSAKI: Well, it’s every ambassadorial nominee for the last 14 months.

QUESTION: Right.

MS. PSAKI: So –

QUESTION: And how many – well, actually, it wouldn’t have been originally –

MS. PSAKI: 15?

QUESTION: No, because they filed it in July asking for every one that went back to January. So –

MS. PSAKI: But when you meet it, you’re abiding by what the FOIA request –

QUESTION: Fair enough. How many pages is one of these things?

MS. PSAKI: I don’t have a specific number of pages for you.

QUESTION: It seems to me like this is a very limited request from an organization that’s got a very, very important interest in this subject, and that frankly, they should, if they ask, should be allowed to see – without having to go to through the FOIA processing. Was there any – did – do you know – are you aware if they asked outside of FOIA to get this – to get these documents?

MS. PSAKI: They are closely engaged with our chief of staff and deputy secretary of state, and have a range of meetings. So I know that all of these issues have been discussed. In terms of this specific request, I can check if there’s anything we can share on that.

QUESTION: So in other words, you said no. They asked, you said no, you have to submit a FOIA? Is that –

MS. PSAKI: I’m not saying that’s how it all went down. I’m saying they have many channels for having discussions with people in the Administration. And if there’s more to share on whether they made this specific request outside of the FOIA request process, I’m happy to check into that.

QUESTION: Do you have any idea if there is a chance, even a remote chance, that the processing will be finished by 5 o’clock this afternoon?

MS. PSAKI: I’m not going to predict when it will be finished.

QUESTION: Well, I know, but –

MS. PSAKI: Obviously, we’re working to process it as quickly as possible.

QUESTION: I understand that. But is there a possibility that it could be done by 5 o’clock?

MS. PSAKI: There’s always a possibility.

QUESTION: There is. Okay.

QUESTION: How many nominees are we talking about? Have you got a figure?

MS. PSAKI: I don’t have a figure.

Well, then, tomorrow, maybe  – or we’ll wonder who’ll stop the rain …

 

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AFSA Threatens to Sue State Department Over Ambassadors Credentials, Again

Updated on March 6, 10:13 pm PST with the “demonstrated competence” requirement in the FS Act of 1980.

– Domani Spero

Via WaPo’s Al Kamen:

The State Department employees union is demanding that the department turn over key documents on three embattled ambassadorial nominees — and all pending Obama administration nominees, both career Foreign Service and non-career folks — by Thursday evening or face a prompt lawsuit for the materials.

The documents, called “certificates of demonstrated competence,” essentially explain the rationale for nominating  each individual. The 28-member governing board of the American Foreign Service Association (AFSA) voted unanimously to demand the documents.

AFSA had filed a Freedom of Information Act request for the documents in July, but it has not received them.
[...]
Although the board was very concerned about those particular three nominees, “We’re not going to be satisfied with one or two small victories,”AFSA president Robert Silverman said in an interview. “We want the system to be fixed, it’s broken.”

With the certificates in hand, the board, probably by telephone vote, is expected to deal with those three nominees. On the other hand, if AFSA needs to go to court for the documents, it may not get them before the full Senate votes on the nominations.

On AFSA’s Facebook page, the news has yet to generate a wave of response from its membership. Besides over a dozen likes and a few short “bravos,” a couple of concerns were also posted:

One wrote: “While I appreciate the broader issue, and think that it is nice that the press is focused on the service of career diplomats, I wonder how much efforts like this will go to alienate senior leadership in the Department and Administration who might later be called on to advocate for OCP or other issues of concern for the rank and file. I agree the Service would benefit if a few more Ambassadorships went to career diplomats, but I doubt that the senators who right now might applaud the sideshow generated by a lawsuit will feel similarly disposed when a Republican administration is making its appointments.”

Another comment: “While I am concerned about the quality of our Ambassadors I am even more concerned that AFSA has chosen this matter as the defining issue on which to expend its political capital.  I understand your explanation that no publicity is bad publicity but if the choice is to put our support behind an initiative that will benefit a very select few versus a different initiative that will benefit all, i.e. OCP, then I would rather we back the latter. My fellow proletarians may disagree but this seems to me a much wiser use of resources.”

In responding to one FB comment, Mr. Silverman, the AFSA president wrote in part:

“I want to assure you that we are working very closely on this Chief of Mission Guidelines initiative with the senior leadership at State, other Administration and SFRC. That has been the focus since the initiative’s genesis in August. Informally senior State leaders applaud and support this initiative. And we are collaborating closely with State on our single biggest ask of Congress: the third tranche of OCP. From my perspective as AFSA’s president, this collaboration has never been closer. The unprecedented media attention also strengthens AFSA’s voice in general. The goal is to have it help with OCP, and the most urgent issue in front of us – the Senate holds on 1,300 FS members awaiting tenure and promotion.”

Thursday night is reportedly the deadline.  It’ll be an interesting night, or maybe not.

If the State Department releases these “certificates of demonstrated competence” on “all pending Obama administration nominees,” it will, no doubt, be a media field day. We could be wrong, but we don’t think State will roll over a threat that easily.  If it does’t, AFSA will, of course, have to go to court. It won’t be for the first time.  Since we don’t have a drive-thru court, this will certainty take time winding through the federal district court. By the time a hearing is in sight or folks need to appear in court, the ambassadorial nominees potentially would already be confirmed and off to post.

We have not been able to find anything on these “certificates of demonstrated competence” – not in the FAM or anywhere else in state.gov.  Not even in history.state.gov but it is in the FS Act of 1980:(h/t to M!)

Section 304 (4)
(4) The President shall provide the Committee on Foreign Relations of the Senate, with each nomination for an appointment as a chief of mission, a report on the demonstrated competence of the nominee to perform the duties of the position in which he or she is to serve.

Also,  a little digging in ADST’s oral history project gave us an idea on what maybe in these “certificates.” Below is an excerpt from the ADST interview of Charles A. Schmitz who served in the State Department from 1964 to the early 1990′s. He worked in the Director General’s Office from 1976-1978 and served as AFSA Vice President in 1990 when the association took the State Department to court for these “certificates.” Excerpt below, read the full interview here (pdf).

The State Department, in a most conniving, almost criminal way, connived to keep from the public view the description of how bad a lot of these appointees were, in violation of the law. The law requires the State Department to issue a certificate of demonstrated competence for every ambassadorial appointee.
[...]
It is in the Foreign Service Act. It is much ignored, by the way. Pell required it to be written into the law, but then quit taking it seriously. Therefore, the certificate was produced in name only. It was not a certificate of competency at all. It was a brief, usually one page, description of what the person had done. A typical example was of the model…Mr. so-and-so has been a pillar of his community, a successful businessman in running his used car dealership and therefore would make an excellent ambassador of the United States to Spain. It was so bad that these things were not even carefully done. They had typos in them. In one case the last line naming the country was the wrong country.
[...]
Nobody noticed it because they classified it. There is a little operation in the State Department that produced these things. They were not really State Department people, they were White House people sent over to write these things. There were two of them. They then sent them as confidential documents to the Senate Foreign Relations Committee. That is why we sued him. We said that you can not classify somebody’s resume. Under the National Security Act involving classification this is a violation of the act. We, of course, argued that point until we were blue in the face for months and months with the State Department in negotiations. They refused to move on it, so AFSA sued the Secretary of State in the Federal District Court. Before the matter came to hearing, the State Department compromised and provided AFSA all of the documents which it had withheld until that point. It undertook to provide us the documents as the law should require and denied having done anything wrong.
[...]
These things turned out to be laughable in practice. They were slipshod, superficially done, just marking the boxes So we had to expose that in some fashion. And that was important that it was exposed and ultimately, as I said before, what caused a certain amount of embarrassment. This didn’t defeat any of those nominees, but it may have had some effect on other potential appointees, or the nominators anyway who realized it wasn’t going to be just a free ride to nominate anybody as ambassador.

Remember Battlestar Galactica’s “All this has happened before, and all of it will happen again?”  

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State/OIG: No More Ambassador Report Cards Cuz They’re Not as Sexy as Debarments?

– Domani Spero

Update, February 28, 2014, 4:23 pm -This blog post has been updated to include a comment from State/OIG spokesman Douglas Welty.

In late January, we learned that the State Department’s Office of Inspector General  no longer issue “report cards” for ambassadors and senior officials during inspections at overseas missions. (See State/OIG Terminates Preparation of Report Cards for Ambassadors and Sr. Embassy Officials).

The Inspector General Office confirmed to us that the practice of preparing these Inspector’s Evaluation Reports (IERs) ended in April 2013.

According to the State/OIG, the official reason for ending the IERs is as follows; let’s call this Razón número #1:

It was an OIG decision, in part based on the points mentioned below that we will continue to comment on executive direction in the course of each inspection in the published report, and because we have seen progress with implementation of the recommendations in the memo report mentioned before (the 360 reviews noted in our 2012 memo report http://oig.state.gov/documents/organization/198810.pdf).

The OIG told Congress in oh, 2009, that the overriding purpose for the IERs is “to assure that upper level post management is not immune to criticism as a result of their positions of authority and physical distance from their own supervisors.”  The OIG was supposed to also issue “corrective” IERs for other employees, “when information surfaces that the EERs for such employees are inaccurate, either in a positive or negative direction.”

After we blogged about this, we received the following explanation from an unofficial source with connections to the relevant office. Here’s Razón número #2:

“The reason OIG stopped writing evaluations on Ambassadors, DCMs, and senior management is because the Department could not successfully challenge grievances by those Ambs, etc.  Because the evaluations were based on anonymous comments, grievance boards would throw them out.”

So the issue here is accountability versus due process, is it?

According to MSPB, due process under the Constitution requires that a tenured federal employee be provided “written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). The Court has described “the root requirement” of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Id. at 542 (emphasis in original). This requires a “meaningful opportunity to invoke the discretion of the decision maker” before the personnel action is effected. Id. at 543.

But as the cases below show, when these IERs are scrupulously done, the Grievance Board hold that the State Department is justified in keeping them on file.  We thought, it might be useful to dig up a few of these IER cases that ended up in the Foreign Service Grievance Board.

Here is a 1987 Foreign Service Grievance Board case G-093(7):

The inspectors’ Memorandum, Report M-3 laid out in detail what they called “serious problems related to the performance of the [title], [grievant], ” and urged that [grievant's] next post, [post], be warned.  The memorandum pointed to: “(A) difficulty in establishing her authority among junior officers and the FSN staff; (B) inability to resolve a festering personnel problem caused by the marginal performance of one FSN; (C) problems in organizing “her own work so as to prevent dysfunctional slowdowns in ; (D) difficulty in managing the system.”

This was issued as an IG memorandum, and the career counselor (or what you would call the Career Development Officer now) informed the onward assignment post that the inspectors had found grievant’s performance in country X wanting.  The FSGB notes in its decision that “had the inspectors’ findings been prepared in the form of an Inspector’s Evaluation Report instead of a memorandum report, copies would have gone only to [grievant], to her performance file, and to the rating inspector’s file.”

The Board find that “grievant has not shown that the criticisms of her performance in the inspection memorandum or the EER were false or that she should be promoted.” They also  find that a report of her performance problems should not have been sent to her next post.  The FSGB decision directed the Department to instruct Embassy [post] to destroy any existing copies of the [year], letter concerning grievant from his career development counselor.  It denied other relief requested by FSO-grievant.

A couple of examples of grievance cases related to IERs that were thrown out and the grievant prevailed:

FSGB Case No. 2008-018

Grievant, a mid-level career FSO, challenged an Inspector’s Evaluation Report (IER) assessing his performance during a 10-month period when he was chargé d’affaires at [Post].  The IER positively appraised grievant’s overall performance under difficult circumstances, but, based on questionnaire responses from and interviews with a “significant cross-section of American and local employees,” the IER concluded that grievant was prone to outbursts of anger that intimidated some of his staff.  Grievant’s efforts to discover the names and statements of the sources of this criticism were refused by the agency because the employees had been guaranteed confidentiality.  Grievant alleged that the IER was “falsely prejudicial, inaccurate, and highly unjust,” since it was based on a distorted and selective use of comments from a small number of dissatisfied personnel and on anonymous sources he could not challenge and because he had not been counseled regarding the performance criticized.

The Board held:  “Grievant met his burden of proof, establishing that critical comments in an Inspector’s Evaluation Report (IER) were inaccurate and of a falsely prejudicial character.  The agency may not rely on undisclosed anonymous or confidential sources without any independently verifiable evidence in the record to corroborate the criticism in the IER where grievant presents material evidence that directly contradicts that criticism.  The grievance was remanded for the parties to address the question whether grievant would have been promoted in [Year] or [Year], had the erroneous IER not been in his performance folder.”

FSGB 2008-012

The IER stated eleven negative factual findings or conclusions regarding grievant’s managerial performance as head of the [Named Section] during the evaluation period covered by the IER.  These deficiencies consisted, inter alia, of grievant lacking the interpersonal and leadership skills needed to mentor and guide entry level officers (ELOs) and causing or contributing to the resignation or early departure of ELOs in the [Named Section].  The findings and conclusions contained in a “corrective” Inspector’s Evaluation Report (IER) violate grievant’s rights either because they are contrary to the preponderance of the record evidence, they impermissibly have as their basis sources that remain anonymous or confidential, or they violate grievant’s substantive right to be counseled with an opportunity to improve.

FSGB directed the Department “to expunge the IER in its entirety from grievant’s Official Performance File (OPF) and if grievant has been low-ranked as a result of the inclusion of this IER in his OPF, the Department is directed to rescind such low rankings.”

Some examples of grievance cases related to IERs where the grievance was denied and the Board decided that the State Department was justified in keeping the IERs on file:

FSGB Case No. 2010-031

Grievant, an FS-01 officer serving as [Officer] in [Host Country], challenged an Inspector’s Evaluation Report (IER) assessing his performance during a 10 month period.  Mr. [Grievant] urged that the IER be expunged from his OPF because the IER process was procedurally flawed and unfair, five specific statements in the IER were falsely prejudicial and inaccurate, and he was not counseled during the evaluation period or given an opportunity to improve his performance.  If the IER were to remain in his file, it would jeopardize any future promotion.  Based on confidential interviews and questionnaires obtained from fifteen embassy staff members by the Office of the Inspector General (OIG), the IER concluded that grievant was partly responsible for some embassy officers’ consideration of curtailment from the post, that the grievant had trouble making decisions, that he incurred unnecessary delays because of excessive attention to detail, and that he missed deadlines.  Grievant was held responsible for several problems associated with his failure to focus on internal embassy management.

The grievance board denied this grievance in its entirety.  The FSGB held that “Grievant failed to meet his burden of proof to establish that an Inspector’s Evaluation Report (IER) was “falsely prejudicial and contain[ed] inaccurate, misleading statements obtained through improper methodology.”  The agency was justified in relying on anonymous, confidential sources which formed the basis of the criticisms within the IER.  Such information was independently corroborated and verified through questionnaires solicited from the same embassy staff that had provided the confidential information.  Grievant was provided with these subsequently obtained questionnaires, including the names of staff members who completed them.  Grievant failed to produce evidence that would cast doubt on the agency’s evidence, nor did he carry his burden to demonstrate that the IER process was in violation of due process or that he was not counseled appropriately. “

FSGB Case No. 2004-064

Grievant asserted that an IER prepared while he was Chargé at a post included false and inaccurate criticisms of his management style, was prepared in violation of the Department’s regulations, and was based on anonymous information from unverified sources.  He alleged that the Inspection team leader’s ill will toward him resulted in an unfairly biased and unbalanced evaluation.  He claimed that the low ranking he received by the 2004 Selection Board (SB) was based on the IER, and was procedurally defective because the SB did not adhere to the precepts when it low ranked him.

The Board denied the grievant’s appeal.  The FSGB held that “(1) An Inspector’s Evaluation Report (IER) concerning grievant by an OIG team leader was prepared in accordance with applicable procedures and regulations; grievant failed to carry his burden of proving bias of the team leader.  (2) Consideration of the IER as the principal basis for a low ranking by a selection board was proper and in accordance with the precepts.”

FSGB 2004-55

Grievant appealed the Department of State’s (agency) denial of his grievance centered on an Inspector’s Evaluation Report (IER) prepared while he was serving as the Deputy Chief of Mission at an American Embassy.  He alleges that the agency violated applicable law and regulation by the inclusion in his Official Performance Folder (OPF) of a materially false and inaccurate IER.  The IER, prepared following a post inspection conducted by the Office of the Inspector General (OIG), “did grievous injury to [his] professional reputation and career prospects through distorted and defamatory allegations of managerial negligence.”

The appeal was denied in its entirety.  The Board found that grievant had not provided persuasive evidence on argument in support of his contention that the inspection “was intentionally biased and consciously violated the letter and spirit of the OIG mandate and some FAM regulations,” and failed to overcome the presumption of regularity that attaches to the official acts of public officials.  This presumption, established by the federal courts, “supports the official acts of public officers, and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”  Furthermore, specific evidence is required to overcome the presumption that public officers have executed their responsibility properly.

FSGB 2004-056

{Grievant}, an FE-MC officer with the Department of State (Department, agency), appeals the agency’s denial of his grievance concerning an Inspector’s Evaluation Report (IER) that he received while serving as the U.S. Ambassador in {Host City, Host Country}.  He contends that the IER is inaccurate and false, and damaged his personal and professional reputation and career prospects.  The IER, while lauding grievant’s efforts to advance U.S. foreign policy initiatives, criticized his management skills.  For example, the IER found that some officers characterized grievant’s loss of temper, occasional yelling and inattention to management issues as dysfunctional and unprofessional.  Moreover, junior officers found his conduct intimidating and some questioned whether they would remain in the Foreign Service.

The Department maintains that the IER is accurate and that it was written and issued in accordance with applicable regulations.  Because it received letters of support for grievant, some from junior officers expressing second thoughts about what they had told the inspectors, the agency queried other officers who visited the Embassy at the time of or just after the inspection.  The latter officers confirmed the low morale and lack of proper attention to management issues that led to the critical IER.  The Board held that grievant failed to carry his burden of proof.  On many of the issues raised, grievant simply disagreed with the inspectors’ findings without offering any evidence to the contrary.  On other issues, evidence of grievant’s inappropriate behavior was documented by named witnesses, documents of record, and in some cases his own admissions. The grievance appeal was denied.

We hate to think that the State Department with all its smart people is unable to balance accountability with due process and simply gave up on this.  Folks, you’ve litigated the use of official letterhead, in the past; isn’t this more important than the alleged misuse of official letterhead?

Then, while we were not looking, we received an owl delivery with the following howler from Diagon Alley. Enter Razón número #3:

“Don’t hold your breath–IERs went away BECAUSE of AFSA, not despite it.  New IG is mostly interested in cost-savings and debarments (wants to compete with SIGIR/SIGAR); considers leadership/management issues to be Department’s concern, not IG’s; and has been convinced by Hill/GAO that FS experience is problematic.  Inspection division doesn’t know what hit it.”

Oh dear, doesn’t that make you feel totally like  …

via http://replygif.net/127

via replygif.net

So — which do you think again  is the most feasible reason the Inspector General no longer conduct IERs for ambassadors and senior embassy officials?

Eeny, meeny, miny, moe,
Catch La Razón by the toe.
If it hollers,well, say “boo!”
Eeny, meeny, miny, moe.

Damn, my whole brain is crying; yours, too?

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After this blog post went online, the State/OIG spokesman Douglas Welty sent us a statement, published in full below:

In response to your most recent blog posting,” State/OIG: No More Ambassador Report Cards Cuz They’re Not as Sexy as Debarments?”<http://diplopundit.net/2014/02/28/stateoig-no-more-ambassador-report-ca
rds-cuz-theyre-not-as-sexy-as-debarments/>  transparency is a key component of effective IG oversight.  The Inspector’s Evaluation Reports (IERs), which OIG would produce at the Department’s request, were non-public documents processed internally within the Department and used for performance evaluations of senior Department leadership.  Although OIG no longer produces IERs, senior official performance issues that were previously addressed in IERs are now addressed transparently in OIG inspection reports, which are available to all stakeholders.  OIG’s proper oversight role is to use its reports to alert Department management and other stakeholders (e.g., Congress and taxpayers) so that the Department takes proper management action to address them.

Mr. Welty is a great spox but brain’s still crying.  Next week, we’ll have a publicly sourced exhibit on IERs.

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AFSA Releases Underwhelming Ambassador Guidelines For “Successful Performance”

– Domani Spero

We’ve been hearing about the AFSA ambassador guidelines for a while now.  We were prepared to be amazed but frankly, given that AFSA has largely ignored the termination of ambassador report cards, we tried hard to contain our expectations (see State/OIG Terminates Preparation of Report Cards for Ambassadors and Sr. Embassy Officials).

Last week, the State Department’s favorite columnist over at WaPo writes, “The cringe-inducing performances in recent weeks by some of President Obama’s ambassadorial nominees have raised expectations that the American Foreign Service Association will weigh in next week with some revolutionary guidelines to revamp the nomination process.  Don’t count on it. Thoughtful, yes. Explosive, hardly. Our sense of the guidelines, which AFSA began working on last summer, is that they’re fairly anodyne suggestions, not a call for stricter criteria.”

According to Al Kamen, the AFSA board reportedly approved the draft guidelines on a 17 to 5 vote, with all four former ambassadors on the board voting against the guidelines, “apparently feeling the new ones watered down the 1980 Foreign Service Act’s useless section on ambassador selection.”  We also heard complaints that while AFSA has been working on these guidelines since last summer, the AFSA membership reportedly did not get a chance to provide comments and input until Friday last week. What the hey?!

Below is the relevant section of the Foreign Service Act of 1980

SEC. 304 – APPOINTMENT OF CHIEFS OF MISSION

(a)(1) An individual appointed or assigned to be a chief of mission should possess clearly demonstrated competence to perform the duties of a chief of mission, including, to the maximum extent practicable, a useful knowledge of the principal language or dialect of the country in which the individual is to serve, and knowledge and understanding of the history, the culture, the economic and political institutions, and the interests of that country and its people.

(2) Given the qualifications specified in paragraph (1), positions as chief of mission should normally be accorded to career members of the Service, though circumstance will warrant appointments from time to time of qualified individuals who are not career members of the Service.

(3) Contributions to political campaigns should not be a factor in the appointment of an individual as a chief of mission.

We are confident that various administrations since 1980 had their own definitions of what “from time to time” actually means.

So what’s the purpose of releasing these guidelines now?  AFSA says that it offers “this Guidelines paper as a resource to inform the executive and legislative processes of nominating and confirming U.S. chiefs of mission. Chiefs of mission are the president’s envoys to foreign countries and multilateralinstitutions, usually carrying the title of ambassador. They lead our engagement with foreign governments and act as the CEOs of U.S. overseas missions and embassies.”

One retired ambassador who is not an AFSA member asked why ambassadors are even described as CEOs  since they are not — having no bottom line, no shareholders, and no board of directors?  Without all that, we wonder who gets to fire these CEOs to improve “corporate” governance at our overseas missions?

Some of the folks we know who are retired members of AFSA are opposed to the practice of appointing bundlers as ambassadors citing Section 304 of the FSA 1980.   Some see this issue as key to defining an American profession.  Others strongly believe that AFSA as the professional association representing career Foreign Service diplomats, “must–like Cicero–at least take a stand and call out the current system for what it is–plutocratic  corruption.”

Just saw WaPo reporting that AFSA “may oppose Obama ambassador nominees” but that AFSA President Robert Silverman reportedly also “noted that there may be a feeling that AFSA might not “want to get into the middle of a dogfight” while it’s in progress.”

Whose dogfight is this, anyways?  Does AFSA really think that these guidelines would change the current practice of nominating ambassadors ?

At the DPB yesterday, a reporter asked if the State Department believe that an association or the union for current and retired professional diplomats should have any say in the nomination process.  The official spokesperson Jen Psaki replied, “I’d have to check and see … if we have an official U.S. Government position on that question.” Prior to that question, she did say this:

“Obviously, the nomination process, as you well know, happens through the Executive Branch, which has been a traditional process, and input and thoughts comes from a range of resources. And certainly, we support freedom of speech by anyone in terms of what they view nominees should be able to – should – criteria they should meet. But again, these decisions have traditionally been made out of the White House.”

Seriously now, are you hearing what she’s saying?

AFSA says that the Guidelines are “drawn from the collective experience of a group of distinguished former chiefs of mission, both career and non-career, and from legislative and regulatory sources.” Ten ambassadors, all retired; including Ambassador Donald Gips, our former ambassador to South Africa who also served  as head of the WH office for Presidential Personnel.  In that role, Ambassador Gips managed “the selection of several thousand political appointments for the Obama Administration” prior to his appointment to South Africa.  The working group surprisingly did not include a single member of the active Foreign Service.   How well or how badly these missions are managed have a direct impact on the life and work of our diplomats. So we’re curious — how much input did the active membership provide in finalizing the guidelines that the association issued on its behalf?  

AFSA says that the paper is “non-partisan in nature” and offers the following guidelines:

Under “Leadership, character and proven interpersonal skills,” the Guidelines says “A key skill is the ability to listen in order to better understand the host country’s perspectives.”

You know that every bartender worth his/her salt, actually could do this one just as well, right?

Under “Understanding of high level policy and operations, and of key U.S. interests and values in the country or organization of prospective assignment,” the Guidelines says of the  nominee: “He or she demonstrates the capacity to negotiate, and has the proven ability to take on various challenges, including working with U.S. and foreign business communities and other nongovernmental interests, and providing services to U.S. citizens.”

One could argue that Mr. Tsunis, the hotelier nominated for the U.S. Embassy Norway can demonstrate this just as well. As CEO of Chartwell Hotels, LLC which owns, develops and manages Hilton, Marriott and Intercontinental hotels throughout the Northeast and Middle Atlantic states, he presumably worked with U.S. and foreign business communities and provide services to American citizens. Every. Single. Day.

The third item in the Guidelines is Management.  The President of the Garden Club of Oz, as well, “possesses experience in setting goals and visions, managing change, and allocating resources.”

The fourth and last item listed is “Understanding of host country and international affairs.“The Guidelines says of the nominee: “has experience in or with the host country or other suitable international experience, and has knowledge of the host country culture and language or of other foreign cultures or languages.”

Experience as a foreign exchange student count, right?

To be clear, your blogger’s household does not pay any dues to AFSA, so we are not a member of any standing.   But after reading  the AFSA Guidelines officially titled, “Guidelines for Successful Performance as a Chief of Mission,”we also had to wonder — what was AFSA thinking?  Yes, it is doing something, but is it doing the right thing?

In fact, we think folks could wave these AFSA Guidelines around to defend even the most controversial ambassadorial nominees.  Let’s try it.

For example, according to Wikipedia, Colleen Bell, producer of The Bold and the Beautiful, graduated with high honors from Sweet Briar College with a bachelor’s degree in political economy, a dual major in political science and economics. She spent her junior year abroad at the University of St Andrews in Scotland.   Scotland is not Hungary but that is a foreign culture, is it not? You don’t think this is enough for AFSA Guidelines #4?  Doesn’t it say on paper, “of other foreign cultures or languages?” She also produced the world’s most-watched soap opera, viewed in over 100 countries. The show serves 26.2 million viewers, including U.S. citizens. You don’t think that has anything to do with management and understanding of international affairs?

As a taxpayer with a vested interest in the effective functioning of our overseas missions, we have followed AFSA and the Foreign Service closely.  While we are not a voting member of this association, we would have wanted, instead, to see two things from AFSA: 1)  work on strengthening the Foreign Service Act of 1980 through Congress, who is after all, tasked to provide “advice and consent”on ambassadorial nominees under the U.S. Constitution, and 2)  work on the reinstatement of the OIG Inspector Evaluation Reports (IERs)  to promote accountability and successful performance of our chiefs of missions overseas.  The end.

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No Publicity Zone — 2012 Judicial Actions Involving Foreign Service Grievance Board Rulings

– Domani Spero

We’ve  heard from the FS grapevine about an agreement that there will be no publicity of grievance results.  If that’s true, well, that’s a terribly bad agreement, right?

So if you want to keep up with Foreign Service grievance cases that went to court, you can check FSGB’s annual report to Congress which details judicial actions related to Board cases during the year.   We have listed them below from the 2012 report and have included the links to PDF files for all the court rulings but one.  In he future, most of the cases should be available via the GPO but if not available there, you can also try looking them up using pacer.gov (requires registration and payment for document view/download).

Karl Hampton v. Tom Vilsack | PDF

Karl Hampton is a former Foreign Service Officer with the Department of Agriculture who was terminated for cause after a hearing before the Board in 2007. He subsequently filed a Title VII suit against USDA, claiming discrimination on the basis of race, retaliation for engaging in protected activity, and a hostile work environment. Last year the District Court for D.C. granted USDA’s motion for summary judgment on nine of the ten counts alleged, and later dismissed the tenth count. Karl Hampton v. Tom Vilsack, 760 F. Supp. 2d 38 (D. D.C. 2011). Hampton appealed that decision. In a de novo review, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the District Court’s ruling. Karl Hampton, Appellant v. Tom Vilsack, Secretary, United States Department Of Agriculture, Appellee, 685 F.3d 1096; (U.S. App. D.C. 2012).

Richard Lubow, et al., v. United States Department of State, et al., | PDF

The plaintiffs in Richard Lubow, et al., v. United States Department of State, et al., 2013 U.S. Dist. LEXIS 10780, (D.D.C. 2013) were five Diplomatic Security Agents who had served in Iraq in 2004. They grieved the Department’s application of a cap on their premium pay and its decision not to grant them a waiver of repayment of the amounts that the Department had paid them in excess of that cap. The FSGB concluded that, contrary to the Department’s findings, the grievants were not at fault in incurring the overpayments and thus were eligible for a waiver of their debts. However, the Board also found that it was within the Department’s discretion to decline to grant the waivers, and that the Department had appropriately considered the relevant factors and had not abused its discretion in denying the waivers. The District Court affirmed those findings and granted summary judgment in favor of the Department.

Jeffrey Glassman v. the U.S. Department of State (unable to locate this case. See this article from WaPo: Disabled but determined, U.S. diplomat Jeffrey Glassman sues over forced retirement)

In an order dated September 25, 2012, Judge Rosemary Collyer of the District Court of D.C. dismissed three counts of the plaintiff’s claims in Jeffrey Glassman v. the U.S. Department of State, et. al., Civil Action No. 10-1729, as well as both the Department of State and the Foreign Service Grievance Board as defendants, on procedural grounds. Glassman is a former officer of the Department of State who grieved his involuntary retirement, claiming it was a result of his disability and therefore illegal. The Board denied Glassman’s claim. Glassman appealed that decision to the district court, while also independently claiming a violation of the Rehabilitation Act. While dismissing three counts and two defendants, the court ordered the case to proceed on Glassman’s remaining claim, that the Foreign Service precepts have a disparate impact on him and others with disabilities because of their emphasis on unusually difficult or dangerous assignments, in violation of the Rehabilitation Act. The Secretary of State, as head of the agency, remained as the sole defendant.

Richard Baltimore, III v. Hillary Clinton | PDF

In Richard Baltimore, III v. Hillary Clinton, 2012 U.S. Dist. LEXIS 153253 (D.D.C. 2012), former Ambassador Baltimore appealed a decision by the FSGB sustaining charges by the Department of State involving misuse of an official vehicle and failure to report the gift of a rug, that resulted in a 45-day suspension without pay. Baltimore challenged the Board’s decision as arbitrary and capricious. The D.C. District Court upheld the Board’s reasoning and decision.

Yamin v. United States Department of State | PDF

On November 19, 2012, Jeremy Yamin petitioned the D.C. District Court to review the FSGB’s May 23, 2012 order denying in part his request for attorney fees incurred in a grievance appeal. Yamin is a Department of State officer who had received a one-day suspension in a disciplinary action. In his appeal to the FSGB, the Board upheld the charge, but found the one-day suspension to be excessive and reduced the penalty to an admonishment. Yamin requested attorney fees and expenses in the amount of $71,645.48. The Board approved $12,385.03, denying the rest. Yamin requested a review of this decision.

 

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