Secretary of State’s Security Detail Who Asserted He Was Drugged, Robbed, and Kidnapped Gets 14 Day Suspension

Posted: 2:31 am EDT

 

This case is about a member of the security detail of then Secretary of State Hillary Clinton who asserted that he was drugged, kidnapped and robbed during a trip overseas in June 2012. The State Department says that “the grievant consumed nine alcoholic beverages the night before the meeting and the flight, left his hotel alone at 2:30 a.m. the morning of the meeting and flight, and remembers nothing after that until he allegedly awoke at 10:15 a.m. in a car with three strangers in a wooded area 25 km. from his hotel.”  

Public records indicate that the then secretary of state was on foreign travel to Oslo and Tromso, Norway from June 1-2, 2012.

The following is excerpted from the Record of Proceeding from FSGB No. 2014-043:

Grievant joined the Department in 2011. The instant grievance arises from events on the evening of June 1 and morning of June 2, 2012, in and around (REDACTED), while grievant was assigned to temporary duty (TDY) as a member of then-Secretary of State Hillary Clinton’s Security Detail (SD) during the Secretary’s official visits to (REDACTED) and (REDACTED).
[…]
Grievant, an untenured Special Agent in the Bureau of Diplomatic Security, grieved the Department’s Decision to suspend him for 14 days without pay and place a discipline letter in his Official Personnel Folder for Failure to Report for Duty. The Department charged him with failure to report for a morning meeting and missing a flight from REDACTED to REDACTED on June 2, 2012, while a member of Secretary Clinton’s Security Detail. As aggravating factors, the Department cited the fact that grievant consumed nine alcoholic beverages the night before the meeting and the flight, left his hotel alone at 2:30 a.m. the morning of the meeting and flight, and remembers nothing after that until he allegedly awoke at 10:15 a.m. in a car with three strangers in a wooded area 25 km. from his hotel. Grievant was removed from the Security Detail and sent home from REDACTED, with other members of the Detail picking up his assignments in REDACTED. Grievant asserted the affirmative defense that he was drugged, kidnapped, and robbed, making it impossible for him to report for scheduled duty. He further complained that the Department’s investigation of the incident was biased and procedurally flawed, that he has been improperly harmed by the Report of Investigation, that the Department mischarged him, that his “off-duty” conduct should not constitute an aggravating factor, and that the penalty was unreasonably harsh and inconsistent with penalties meted out for similar or lesser offenses in recent years.
[…]
Grievant states that at approximately 10:15 a.m. on June 2, he awoke in the rear passenger seat of a car parked in a wooded area with three other sleeping men whom he could not identify but who looked “vaguely familiar.” He exited without waking the others and followed a path to a road. At approximately 11:00 a.m., grievant contacted an SD team member and was instructed to flag down a public bus and proceed to the nearest railway station. After being picked up by the ASAIC, the Assistant Regional Security Officer, and a local national, grievant stated that he felt very groggy, “more than just hung over.” They took him to a local medical center for evaluation, and then to a police station, where grievant filed a report of the incident, noting that $80 and a credit card were missing from his wallet (though other credit cards and grievant’s BlackBerry were still in his possession).

As the circumstances of grievant’s disappearance were unclear, and his report of feeling groggy raised questions about his neurocognitive condition, the Department removed him from the SD and ordered him to return to the U.S. Blood and urine tests from the medical center came back negative for the substances screened (so-called “date-rape drugs” Oxazepam, Benzodiazepine, and Creatine), and the (REDACTED) police ultimately dismissed grievant’s complaint that he had been robbed “by unknown perpetrator” for lack of evidence.  (Note: Grievant argues in the FSGB case that “although tests at the medical center detected no drugs in his system, the tests did not screen for common “date rape” drugs GHB, Ketamine, and Rohypnol and thus do not disprove that he was drugged.)”
[…]
On the other hand, the Department asserts that grievant has produced no evidence in support of his affirmative defense (i.e., that he was “likely” the victim of a crime that prevented him from reporting for duty). There is no witness testimony establishing that he was kidnapped, drugged, and robbed. The tests performed at the medical center produced no evidence that grievant was drugged, and grievant’s complaint that the screening was not comprehensive for all common “date rape” drugs, even if true, in no way establishes that he was in fact drugged (italics added).

Wait, but if he was tested for all common date drugs, and it shows, wouldn’t that have provided some evidence that something happened to him beyond just the alcoholic drinks?

The Foreign Service Grievance Board says that “consistent with its obligation to promote the efficiency of the Service, the Department must have latitude to determine how best to conduct an investigation and frame an ROI. We are not persuaded by the evidence or arguments submitted by grievant that the Department abused its discretion or violated applicable law or regulation in carrying out its investigation of grievant’s failure to report for duty or in formulating its conclusions in the ROI.”

It held that “the Department has met its burden of proving that the charged misconduct (Failure to Report for Duty) occurred, that a nexus exists between grievant’s misconduct and the efficiency of the Service, and that the proposed punishment is proportionate to the offense. Grievant has failed to meet his burden of proof with respect to the affirmative defense he asserted” and denied the  grievance appeal by the special agent.

Read in full here:

If the document embed does not display in full, the FSGB file is accessible here as PDF.

 

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This Kind of Language Can Get One Suspended Without Pay in the Foreign Service

Posted: 1:25 am EDT

 

In FSGB Nos. 2014-041, the grievant, an FS-02 Foreign Service Officer with the Department of State, appealed the agency-level grievance decision upholding her three-day suspension without pay for improper personal conduct and poor judgment.  While the FSGB reduced the penalty to a Letter of Reprimand, the FSO had to grieved the case before the reduction of penalty:

While grievant was serving as Public Affairs Officer (PAO) at a U.S. Embassy, the Assistant Public Affairs Officer (APAO) filed an Equal Employment Opportunity (EEO) complaint alleging that grievant made numerous inappropriate and insensitive comments (many of which she overheard) – including several references to the national origin of some local and American employees; that she used harsh and profane language that made others uncomfortable in the workplace; and that she exhibited behavior that lacked professionalism, cultural sensitivity and good judgment. The EEO complaint triggered an Office of Civil Rights (S/OCR) investigation during which about a dozen local and American employees of the embassy were interviewed and signed affidavits. The S/OCR report was forwarded to the Office of Human Resources (HR/ER). The Department proposed to suspend grievant for five days without pay based on charges of improper personal conduct (seven specifications) and poor judgment (four specifications). The Deciding Official did not sustain three of the four poor judgment specifications and mitigated the penalty to three days. Grievant filed an agency-level appeal, which was denied.

Here are the things the FSO said which made the Department charged the employee with improper personal conduct and poor judgment:

Specification 1 – Grievant asked the APAO: “What’s the name of the Chinese guy who came to borrow a recorder, who speaks bad English?”

Specification 2 – After a telephone conference with State Department staff in Washington, grievant said to the APAO: “What the hell is that woman doing in that position! She’s not even a real American!” On the following day, grievant allegedly said again: “but this woman is not a real American!”

Specification 3 – In describing to the APAO an event at a previous post involving a naturalized U.S. citizen, grievant stated: “. . . she has a U.S. passport, but she is not a true American. She was Asian. In fact, I think she was Vietnamese.”

Specification 4 – The APAO overheard grievant say – in responding to a question from an  REDACTED employee of the Embassy about the children born to immigrants to the U.S.: “[T]hose immigrants are coming to the U.S. and having babies. Even though they grow up in the States, they are not culturally American.” Her comment in the workplace where she could be overheard was inappropriate.

Specification 5 – In the presence of an American colleague, the APAO, and other local embassy employees grievant shouted into her cell phone, “You f—ing c–t! You already ate?! You didn’t wait for me!” Her use of profanity was inappropriate.

Specification 6 – An American colleague stated that at a social event hosted by a senior Embassy official he had asked what the hostess meant in saying that as a college student she had been a “little sister” in a fraternity. Grievant explained to him – in earshot of several expatriates — that “it means you don’t have a gag reflex.” The American colleague interpreted this to mean that the “little sister” was obliged to perform oral sex on members of the fraternity. In this situation grievant’s comment was inappropriate.

Specification 7 – An English Language Fellow (ELF) reported that in a conversation with the ELF in an embassy vehicle driven by an  REDACTED employee of the embassy, grievant referred to REDACTED as “stupid” and “slow.”

The FSGB in this case finds that “the Department has not proved seven of eight specifications, included in two charges that were the bases for its decision to suspend Grievant for three days. With respect to the penalty, the Board finds that it has inappropriately applied the charge of Discriminatory Harassment as an aggravating factor with respect to the sole specification that has been sustained. The Department is directed to reduce the penalty to no more than a Letter of Reprimand, and to advise the Board of its actions within 30 days of receipt of this Decision.”

Read in full here (PDF) or read below:

 

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False 360 Feedback Input in a Denial of Tenure Case Makes It to the Grievance Board

Posted: 3:32 am EDT

 

We’ve written previously about the 360 degree feedback tool as practiced by the State Department, most recently last fall when a Speaking Out piece was published in the Foreign Service Journal urging that the Department reevaluate its use of the 360-degree reviews (see The State Dept’s 360 Degree Feedback as Placement Tool, and Probably, a Lawsuit Waiting to Happen).

In a recent Foreign Service Grievance Board (FSGB) case, an FS-2 officer who works for USAID, appealed the denial of his grievance in which he challenged the denial of tenure by the 2014 Tenure Board, on the grounds that a principal document on which it based its decision was fatally flawed. And it includes an example of the 360 feedback gone wild.

The 2013 Tenure Board had deferred grievant for tenure consideration for one year. Grievant alleges that the recommendation for deferral was based mainly on anonymous, negative 360 degree input that was the polar opposite of grievant’s accumulated Appraisal Evaluation Forms (AEFs) and other, positive 360 degree information. When the 2014 Tenure Board rejected grievant for tenure, the Agency decided to terminate him. The centerpiece of his grievance and appeal is the 2014 Tenure Board’s alleged improper reliance upon a single, stale and flawed 2013 TEF. Furthermore, grievant complains that the Agency denied him substantive due process because it failed to provide him with reasonably specific and timely notice of his deficiencies and an opportunity to improve his job performance before the denial of tenure.

Grievant joined the Foreign Service in May 2009 as an FS-2 officer, as part of the USAID’s recruitment program to attract mid-career professionals under the Development Leadership Initiative (“DLI”).

The AEFs Before the Tenure Board.  The package of information considered by the 2013 Tenure Board included a collection of three AEFs, covering grievant’s performance from April 1, 2009 through March 31, 2010 , from April 1, 2010 through March 31, 2011 , and from April 1, 2011 through March 30, 2012. All three were uniformly positive, and they did not include any complaints that grievant was not performing adequately in any skill areas or that he was deficient in any work objective.
[…]
The 2013 TEF. This document is found in the record as Attachment J to grievant’s Appeal Submission. The author of this January 3, 2013 TEF (hereinafter REDACTED) was the Director of the agency’s REDACTED Office in USAID/Washington. He described himself as “the employee’s Office Director for five months,” indicating that he was evaluating grievant’s performance for the period of July 2, 2012 to December 19, 2012. He stated specifically that he “relied heavily on the 360 degree input provided by senior tenured officers who observed the employee’s performance in his two overseas assignments and his short stay in AID/W.” His reference to “360 degree input” denotes a certain type of information that a rater is permitted to obtain in preparation of an AEF. The use of 360 degree sources is also permissible in the preparation of a TEF.*3

In the Precepts for the Employee Evaluation Program (ADS Chapter 461) , “360 degree sources” are defined as: “Customers, peers, other managers, subordinates, and other individuals with whom or for whom an employee may have worked who can provide feedback, from their various perspectives, about the employee’s performance during any period of performance currently being evaluated.” The Precepts contain instructions for how a rater and rated employee must collaborate to select the particular 360 degree sources, some of whom are required to be solicited even if they do not respond.

According to the Record of Proceeding, at that time that the supervisor wrote the TEF, the Precepts did not explicitly direct or authorize the inclusion of 360 degree information in a TEF, although such authorization had become explicit by the time the 2014 Tenure Board made its decision. See ADS Chapter 414mad, 3.3.3 (“Responsible officials should use all appropriate sources of information in preparing the TEF, including AEFs, Appraisal Input Forms (AIFs), and 360 feedback.”).

The grievant argued that he was harmed by the underlying falsity of some of that information – compounding the impropriety. Grievant stated that some of the negative 360 comments were “literally false information that during the tenure process no one questioned or compared to the accurate facts as reflected in grievant’s OPF.”

Grievant identifies two examples of prejudicially false information that came to light:

One, grievant learned that one of the originally unnamed 360 degree sources was REDACTED who was a Civil Service supervisor of a technical office in the REDACTED in Washington, D.C. The underlying 360 degree source material that sent to was a memorandum of December 11, 2012. In it, he opined that grievant did not have the ability to function at the FS-01 level.  REDACTED added, “The fact that he has been curtailed in his first two overseas assignments in REDACTED and REDACTED by the Agency reinforces [sic] my recommendation.”9 The unchallenged information in the Record of Proceedings in this appeal shows that grievant left REDACTED  because he volunteered for a CPC (Critical Priority Country) assignment in REDACTED. Then, he left the subsequent assignment REDACTED at the end of one year, because one year was the standard length of time for a CPC assignment. Neither departure from post was involuntary or punitive in any way.

Two, another important false statement about grievant came from a 360 degree source later identified as REDACTED.  In an email of December 10, 2012 to he described himself as grievant’s “mentor” in REDACTED . In part, REDACTED stated,

He [grievant] taxed my experience and skills to the max until I finally requested that he be transferred out of our Mission. To cut to the quick, I would not recommend him for Tenuring [sic], I would rate him as negative on all of the FS Precepts for tenuring and I believe that the Agency would be better served employing [grievant] as a PSC. I did not write his AEF but I did have input and discussed his negative performance with his supervisor . . . . He refused to do rotations stating that he knew all about the Agency, our rules and regulations and how other tech and support offices functioned. . . . I had him removed.10

Grievant identifies several false statements about him in this TEF. One, grievant’s AEFs all confirmed that he completed whatever training rotations had been prescribed for him. […]  Moreover, comments reveal a fundamental misunderstanding of grievant’s status as a “mid-level” career candidate, who after the initial few weeks of orientation, was not subject to the types of rotations that applied to “entry-level” candidates. As mid-level, he was assumed to be knowledgeable in his field and was evaluated as a regular employee, not as a trainee – one who, according to his AEF’s, fully met those expectations.

Golly! You folks at USAID know this is wild, right?

Here is the decision of the FSGB: HELD: The denial of tenure by the 2014 Tenure Board was tainted by the flawed and falsely prejudicial 2013 Tenure Evaluation Form (TEF) and was also issued in violation of several Agency Precepts. The denial of tenure is reversed and the case remanded to the Agency with instructions to expunge the 2013 TEF, as well as the letters deferring and denying tenure, and to place grievant’s updated Official Personnel File (OPF) before the next Tenure Board.

Read the ROI of the case below:

 

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Meet the 17 Members of the Foreign Service Grievance Board (as of October 1, 2015)

Posted: 12:10 am EDT

 

Via FSGB:

Prior to 1971, employee grievances in the foreign affairs agencies were handled informally within the agencies.  The first formal grievance system covering Foreign Service members of the three principal foreign affairs agencies — the Department of State, the Agency for International Development, and the United States Information Agency — was established under Executive Order 11636 of December 24, 1971.

On March 26, 1976 Congress amended the Foreign Service Act of 1946 to establish a permanent grievance system.  Although it retained many of the procedures of the earlier, interim system, the statutory system carried additional functions and authority.  In particular, the new Board could order the suspension of agency actions pending the Board’s decision in cases involving the separation or disciplining of an employee if it considered such action warranted.  Further, the Board’s recommendations to an agency head could be rejected only if they “would be contrary to law, would adversely affect the foreign policy or security of the United States, or would substantially impair the efficiency of the service.”

The grievance system underwent further change pursuant to the Foreign Service Act of 1980 and implementing regulations which went into effect on June 11, 1984.  The Foreign Commercial Service of the Department of Commerce and the Foreign Agricultural Service of the Department of Agriculture were added to the agencies already covered.

Through the years the makeup of the Board has changed from the initial nine members to a membership of nineteen.  Board members are appointed by the Secretary of State and the innovative mix of an almost equal number of professional arbitrators and of other members having Foreign Service experience has remained constant.

Per 3 FAM 4440 (PDF), the Chairperson and other members of the Board shall be appointed by the Secretary of State from nominees approved in writing by the agencies to which this regulation applies and the exclusive representative (if any) for each such agency.  Each member of the Board shall be appointed for a term of two years, subject to renewal with the same written approvals required for initial appointment.

Members of the Foreign Service Grievance Board — 17, as of October 1, 2015:

#1.  Bernadette M. Allen |  Bernadette M. Allen completed her 30-year Foreign Service career in the United States diplomatic corps in May 2010. She served as the United States Ambassador to the Republic of Niger from March 2006 through January 2010. Other overseas postings included Burundi, The People’s Republic of China, The Republic of the Philippines and Canada, as well as temporary duty assignments in Haiti and Japan. Her service years in Washington, DC included desk officer to management level positions in the Bureau of African Affairs, the Bureau of Consular Affairs, the Bureau of Legislative Affairs and the National Foreign Affairs Training Center (see more PDF)

#2.  Barbara C. Cummings | Barbara Cummings earned a B.A. degree in history from Brandeis University in 1978, and a J.D. degree from the George Washington University in 1981. She is a member of the District of Columbia Bar Association. In 1982, she joined the Department of State as a Foreign Service officer and spent her first assignment in Athens, Greece as a vice-consul. After Greece, Barbara was assigned to Jamaica, the United Kingdom, Albania, Canada, Peru and Italy. In 1991, Barbara became the first U.S. Consul to serve in Albania following a 48-year break in diplomatic relations between the U.S. and formerly communist and isolationist Albania. She also had three tours in Washington, D.C. In 1998, she graduated from the National Defense University in Washington, D.C. with a M.S. degree in national security strategy. Her final overseas assignment was as Minister Counselor for Consular Affairs and Consul General in Rome, Italy. She served as Diplomat in Residence for the Washington, D.C., Maryland, Delaware, West Virginia and Northern Virginia region based at Howard University from 2008 until her retirement from the Department in 2010. (see more PDF)

#3.  William J. Hudson | William J. Hudson joined the Foreign Service in 1972 after completing a BA and MA at UCLA and serving two years in the US Army. His assignments have included tours in Africa, the Middle East, and Europe. In the Department he served in HR, as Executive Director for the Bureau of African Affairs and later as Executive Director of the Middle Eastern and South Asian Bureaus. In the latter position he had key responsibility for reestablishing a US Embassy in Kabul, Afghanistan. Mr. Hudson served as US Ambassador to Tunisia from 2003 to 2006. He retired in 2006. Since retirement he has worked for the Department of State in several contract positions, including as A/DAS in the Near Eastern Bureau. (PDF)

#4. Gregory D. Loose | Greg Loose has been a member of the Foreign Service Grievance Board since 2013. He is a retired Foreign Service Officer who was with the U.S. & Foreign Commercial Service for twenty-two years. He held the rank of Minister-Counselor and his overseas postings included Tokyo, Taipei, Ho Chi Minh City, and London. He also served in Washington, D.C. as Regional Director with executive responsibility for U.S. Department of Commerce personnel and operations in Africa, the Middle East, and South Asia. Before joining the U.S. Government, Greg held positions in the banking industry in Los Angeles and Tokyo. (PDF)

#5. J. Robert Manzanares | Mr. Manzanares is a retired career State Department senior Foreign Service officer with the rank of Minister- Counselor. Mr. Manzanares served as Deputy Assistant Secretary in the Bureau of Human Resources from August 2009 through June 2012 where he supervised Performance Evaluations, Employee Relations, Recruitment, Assessment and Employment as well as the Executive Office for the Bureau of Human Resources. Prior to this, he served as the State Department’s Diplomat in Residence located at the University of New Mexico campus in Albuquerque, New Mexico. Mr. Manzanares was also responsible for outreach to the University of Texas at El Paso, and Universities in Colorado and Wyoming.  Mr. Manzanares served as the Acting Permanent and Deputy Permanent Representative of the United States to the Organization of American States. While in these positions Mr. Manzanares held Ambassadorial rank. From 2003 to mid 2006, he was Deputy Chief of Mission and Charge d’Affaires at the U.S. Embassy in Spain. From 2000 to 2003 he was Executive Director to the Executive Secretariat of the Office of Secretary of State under Secretary Powell. He was Executive Director for the Bureau of African Affairs from 1998 to 2000. Previous postings include Abidjan, Ivory Coast; Mexico City, Mexico; Reykjavik, Iceland where he served as Management Officer; and Tel Aviv, Israel, where he was Acting Deputy Chief of Mission and Management Counselor. (PDF)

#6William B. Nance | William Nance has many years of international development experience with USAID, and in the private and non-governmental sectors. He retired from the U.S. Government as a Senior Foreign Service officer at USAID where he served in Washington and in several overseas posts, including his last posting as USAID Representative to Mongolia. Mr. Nance also worked for the Institute of International Education, a non-profit organization, where he was responsible for directing a staff of more than 50 people (40 in Cairo, a dozen in the U.S.) that designed and managed training programs on behalf of USAID/Cairo for some 40,000 Egyptians, over a five-year period. At that same time he managed (from Washington, DC) small local staff offices in Pretoria, Windhoek, and Washington, responsible for designing and arranging training programs for students and professionals from countries in South Africa, Namibia, Indonesia, the Philippines, India, and Panama. (PDF)

#7. Harlan F. Rosacker  | Harlan Rosacker retired from the U.S. Information Agency after serving for eight years as the Director, Office of Personnel. He was a member of the Foreign Service Grievance Board from 2003 until 2008 and was reappointed in 2011. He was appointed to the Foreign Service in 1966 and served in Laos from 1967 until 1969 — as Assistant Cultural Affairs Officer in Vientiane and as Branch Public Affairs Officer in Luang Prabang. After twenty months of intensive Japanese language training in Yokohama, he managed the Embassy’s media relations program in Tokyo from 1971 until 1976. He was transferred to Washington in 1976, spent one year as a Congressional Fellow and then worked as a Career Counselor in USIA’s Foreign Service Personnel Division. In 1980 he converted to the Civil Service and held several positions overseeing USIA’s Civil Service and Foreign Service personnel systems, including Foreign Service assignments, training, labor relations, and policy development. He served as a member of the Board of the Foreign Service and the Board of Examiners. (PDF).

#8. Jeanne Schulz | Jeanne Schulz is a retired member of the Foreign Service (Consular Cone) and an inactive member of the State Bar of California. She was the Executive Assistant to the Head of Mission, Office for Security and Co-operation in Europe (Bosnia and Herzegovina) 1999-2000. Prior to that Ms. Schulz was the Consul General in La Paz, Bolivia 1994-1998 and at Embassy Office Berlin 1989-1994. She served as the Hungarian Desk Officer 1988-1989 and Deputy of Overseas Citizens Services 1986-1988. In Mexico City Ms. Schulz served as the Deputy Chief of Citizens Services 1985-1986 and Head of the Property Unit 1984-1985. Her first overseas tour as a visa officer was in Bogotá, Colombia 1982-1984. Prior to joining the Service, Ms. Schulz was an Attorney-Advisor specializing in construction contract claims with the U.S. Army Corps of Engineers in Sacramento, CA and Frankfurt, Germany and the U.S. Postal Service Headquarters for a total of seven years. She also served as an Assistant Public Defender in Sacramento, CA, for two and a half years. (PDF)

#9. Nancy Serpa | Nancy Serpa, a retired Senior Foreign Service Officer, was appointed to the Foreign Service Grievance Board in October, 2008. She retired from the Foreign Service in April, 2007, after a year as Director of the Office of Performance Evaluation in the Bureau of Human Resources. Prior to that, she was Director of the Office of Recruitment, Examination and Employment (2001-2005) and Deputy Chief of Mission, then Charge d’affaires, in Lagos, Nigeria (1998-2001). Mrs. Serpa joined the Foreign Service in 1973, and served overseas in Cameroon and Zimbabwe, as well as in domestic positions in African Affairs. In 1988, she converted to the Civil Service, and worked in the Bureau of Congressional Relations, the Human Resources Bureau, and was Deputy Executive Director of the Bureau of African Affairs. In 1998 she was reappointed to the Foreign Service before her assignment in Nigeria.(PDF)

#10. Arthur A. Horowitz  |  Arthur A. (“Art”) Horowitz has amassed almost 50 years of diverse experience as an attorney in the fields of labor-management relations and employment discrimination law, both in the Federal and private sectors. Prior to his retirement from the Federal Labor Relations Authority in April 2001, he served as FLRA’s Settlement Judge in unfair labor practice cases, working with the parties to resolve their disputes without resort to litigation in over 82 percent of the 1000 cases referred to him. He also served as FLRA’s EEO Director during that same 6-year period, and previously was the agency’s Associate Solicitor responsible for drafting and supervising the preparation of Appellate and Supreme Court briefs as well as participating in oral arguments in defense of FLRA decisions. Before joining the FLRA as its Chief Counsel for Representation and Unfair Labor Practice Cases, he represented both labor unions and management in negotiating agreements and arbitrating contract disputes. He began his career, after graduating from Harvard Law School in 1964, with the National Labor Relations Board in Washington, D.C. as an appellate attorney. (PDF)

#11. Cheryl M. Long | Cheryl M. Long was appointed to the Foreign Service Grievance Board in 2012. She is a retired judge of the Superior Court of the District of Columbia, nominated by President Ronald Reagan in 1987 and serving from May 26, 1988 until her retirement in 2009. Judge Long tried cases in every division of the Superior Court: Criminal, Civil, Family, Probate, and Tax. She also has sat by designation several times on panels of the District of Columbia Court of Appeals.  Judge Long served for several years in the dual roles of Presiding Judge of the Probate Division and the Tax Division. This involved adjudicating all types of fiduciary matters, determining the fair market value of commercial properties, and deciding unique questions of administrative law. In one of her several tours of duty in the Civil Division, Judge Long presided over one of the Civil I calendars, involving the most complex litigation of employment discrimination, asbestos claims, various commercial disputes, and professional malpractice cases. Her trial experience on the Civil II calendars included jury trials and non-jury trials regarding personal injury, breach of contract, demands for injunctive relief, and other types of lawsuits. (PDF)

#12. William E. Persina | Mr. Persina is a labor arbitrator specializing in federal sector labor and employment law cases. In addition to his current service as a presiding member on the Foreign Service Grievance Board, he is also the Vice-Chair of the Government Accountability Office (GAO) Personnel Appeals Board, which rules on labor and employment law issues concerning GAO employees. He also is Chairman of the District of Columbia Office of Employee Appeals, which hears and decides appeals of District of Columbia government employees who have been the subject of various kinds of adverse personnel actions such as suspension, termination, or reduction in force. Mr. Persina was also the public member on the District of Columbia Police and Fire Retirement and Relief Board from 2010 to 2012. In that position, he participated in deciding disability retirement issues involving District of Columbia first responders. From 2007, when he retired from the Federal Labor Relations Authority (FLRA), to 2010 Mr. Persina was engaged in the private practice of law. (PDF)

#13. John M. Vittone  | John Vittone became a member of the Foreign Service Grievance Board in 2010 after a career of over 40 years as an attorney and a judge with the Federal Government. He joined the Department of Labor as Deputy Chief Judge in 1987, and was appointed Chief Judge in 1996. He also served as the Chair of the Board of Alien Labor Certification Appeals and was a liaison with other agencies within the Department of Labor, other federal agencies, and congressional offices. In 2002 and 2005, Judge Vittone led a delegation of judges, court administrators, and attorneys to Chile under the sponsorship of the Department of Labor’s Bureau of International Labor Affairs. In 2007 and 2009, he travelled to Beijing and Shanghai respectively to participate in Workshops on Administrative Reconsideration/Adjudication sponsored by the China Law Center of Yale University Law School. Prior to joining the Department of Labor, Judge Vittone was a judge with the Department of Transportation and Civil Aeronautics Board where he specialized in international route selection proceedings and airline mergers. (PDF)

#14. Susan R. Winfield | Susan Winfield was appointed a member of the Foreign Service Grievance Board in 2007 and has continuously served in that capacity under three different Secretaries of State. She has participated as a panel chair in the adjudication of approximately eighty-five grievance appeals.  Susan Winfield served as a trial judge of the District of Columbia Superior Court for twenty-one years before taking senior status in 2005. Judge Winfield served in the Civil, Criminal and Family Divisions of the Superior Court where she adjudicated complex criminal, civil and family matters. Judge Winfield also successfully mediated and adjudicated cases involving medical negligence, construction accidents, personal injuries, employment and labor disputes, as well as complicated domestic relations matters. She was appointed to be the Presiding Administrative Judge for the Family Division of the Court for a period of approximately three years. Judge Winfield also sat by special designation on the District of Columbia Court of Appeals. She authored two appellate opinions and participated as a member of the appellate panels on four other cases heard in the Court of Appeals. Judge Winfield continues to serve part-time as a senior judge at the Superior Court on a misdemeanor community court calendar where she practices restorative justice. (PDF)

#15. Garber A. Davidson — Chairman (no FSGB bio available)

#16. Elliot H. Shaller — Deputy Chairman (no FSGB bio available)

#17. Mary H. Witt  (no FSGB bio available)

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Related posts:

FSGB Recognizes Grievant’s “Enduring Dissatisfaction” With @StateDept’s 40 Year Old Grievance Case — Where’s the Medal?

Posted: 1:21 am EDT

 

Charles William Thomas. You may not remember that name. He was a Foreign Service Officer. In April 1971 he shot and killed himself.  The Thomas case led to changes in the promotion and personnel system and helped usher in a grievance program at the Department.  Below excerpted from ADST:

Charles William Thomas was a bright mid-career Foreign Service officer who was selected out because his efficiency report was mixed with a poorer officer of the same name. After his lifelong dream of serving in the State Department came crashing down, Thomas committed suicide and his case became a cause celebre. His wife Cynthia held the Foreign Service and the State Department responsible.
[…]
In 1973, U.S. District Court Judge Gerhard Gesell rendered a decision in Lindsey v. Kissinger declaring the lack of procedural safeguards in State’s selection-out system unconstitutional. A Foreign Service Grievance Board with public members was established in 1976, and procedural safeguards were created through consultations with AFSA.

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In April this year, the Foreign Service Grievance Board (FSGB) dismissed FSGB Case No. 2014-042 after the State Department sought a preliminary ruling on the grievance, contending that “the grievance was untimely filed and not covered under the Board’s jurisdiction.”

This case is notable not only because officials of the State Department of old ignored the Board’s original ruling in 1972, but also because ignoring the grievance has stretched into the current leadership of the State Department.  The unnamed grievant in this case apparently wrote to Secretary John Kerry on May 14, 2014, and again on May 28, asking that he implement the 1972 recommendations of the Grievance Committee. Apparently, the grievant did not even received a response. The current FSGB accepted the grievant’s appeal with an effective filing date of October 22, 2014 but then dismissed it  for untimely appeal.

Grievant is a former Foreign Service Officer (FSO) who was appointed as an FSO Class 6 on November 26, 1954. He had been in grade for eight years as a FSO Class 4 when the 1968 Selection Boards did not recommend him for promotion to Class 3. On January 17, 1969, the Department of State (agency, Department) officially notified him that he would be separated for expiration of time in class (TIC) effective April 30, 1969. Having already learned informally of his proposed termination, grievant met personally with the then Secretary of State on January 2, 1969, and gave him a paper, “Notes for the Secretary.” The notes detailed policy clashes grievant had with his superiors, which he believed had prevented his promotion. The Secretary appointed two senior inspectors to conduct an investigation. The inspectors made grievant’s “Notes” available to his supervisors and on January 8, 1969, the supervisors gave their comments on the “Notes” to the Secretary. The inspectors furnished their report1 to the Secretary on January 15. The submissions led the Secretary not to take any action to stop the separation.

On September 26, 1969, after receiving several extensions of his employment, grievant requested a hearing under 3 FAM 1820 (“Grievances”), becoming the first Foreign Service employee to do so. He charged that his supervisors’ comments introduced untrue, slanderous and misleading statements into the agency’s records.

Grievant was separated on October 4, 1969. He was not eligible to retire and collect an annuity because he did not meet the age requirement.2 The Department helped him secure an immediate civil service position on October 5, 1969 with the Department of Defense.

Following a period during which grievant sought information to support his case, a three-member Grievance Committee commenced hearings on March 3, 1971. On September 27, 1972, the Committee found generally in grievant’s favor. With one member voicing exceptions to some of its eleven recommendations, the Committee recommended, inter alia, that the agency appoint grievant to FSO Class 3, credit the time he spent in government service since his separation towards Foreign Service retirement, and pay his legal expenses. The Committee submitted its report to the Director General instead of the Deputy Assistant Secretary of State for Personnel, because the latter had appeared as a witness and disqualified himself. The Committee suggested that the Deputy Secretary be the final reviewing officer.

The reviewing officers decided not to accept the recommendations. In 1977, grievant filed an appeal3 with the Foreign Service Grievance Board requesting reinstatement, which request was denied because the Board found the appeal untimely.4 On October 13, 1993, two Senators wrote to the Secretary of State on grievant’s behalf.

Noting that grievant’s claim was adjudicated in his favor by the Grievance Committee but never implemented, they suggested that grievant may not have been notified of his eligibility to pursue administrative and judicial remedies provided in legislation. They asked how their committee could be assured that the Department would implement the recommendations in grievant’s case. There is no evidence of the Secretary’s response in the record of proceedings (ROP).

Apparently, the grievant also seek confirmation that his hearing be held “completely within State Department regulations at the time, so that he would not be required to argue before a court that the Department is improperly failing to recognize the legitimacy of its past responsibility for implementing the recommendations which resulted from his hearing.”

Grievant wrote to the current Secretary of State twice and when he did not get a response, he wrote to the FSGB on September 12 and October 16, 2014. He explained that he sought a negotiated settlement of retirement pay in lieu of enforcement of the remedies granted to him in 1972. The Board accepted his appeal with an effective filing date of October 22. On December 12, 2014, the agency asked the Board to make a preliminary determination that grievant’s appeal should be dismissed, on the grounds that the Board lacked jurisdiction.

The FSGB ruling:

We recognize grievant’s unusual position in the history of this Board as well as his enduring dissatisfaction with the outcome of the hearing process. As noted earlier, our analysis today is limited to jurisdiction and does not address the merits of grievant’s case. In accordance with 22 CFR § 904.2, the Board makes the following preliminary determination on jurisdiction: because grievant has not shown that his appeal was made “not later than two years after the occurrence giving rise to the grievance,” nor is there evidence that grievant was “unaware of the grounds for the grievance,” we find grievant’s appeal untimely.

Grievant was separated on October 4, 1969 under the rules deemed unconstitutional in 1973 after the Lindsey v. Kissinger ruling.  The Grievance Committee recommended that grievant be reappointed to a higher position, a recommendation ignored by senior officials in the State Department.  Last year, the FSGB took the case then says this case was filed late, and the Board lacks jurisdiction. But the members recognize the grievant’s “enduring dissatisfaction.”  Yeah, there’s that. And the State Department lumped this case with the trash with no effort to fix or mitigate the alleged wrongs it did to one individual some four decades ago.

Read the 40 year old grievance case below:

 

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Senior FSO Solicits Favorable Comments From Subordinates, Wants GSO “To Grow a Pair”

Posted: 1:53 am EDT

 

An unnamed senior FSO solicited favorable statements about herself from her subordinates and in an email to her supervisor, the DCM, made disparaging remarks that the General Services office “needs to grow a pair.” Both made it to the FSO’s evaluation report which became the subject of a grievance case before the Foreign Service Grievance Board (FSGB Case No. 2014-029).

The FSGB decision: Grievant, has failed to show by a preponderance of evidence pursuant to 22 C.F.R. §905.1 that her 2013 Amended EER documenting her performance while serving as Principal Officer/Consul in contained inaccuracies, omissions, errors, or falsely prejudicial information to such an extent that it must be expunged in its entirety. The appeal is denied in part and granted in part, but only for a remand with instructions to delete one phrase in the Amended EER. No other relief is granted.

Excerpt below:

Grievant is a Senior Foreign Service Officer, class of Counselor (FE-OC). She appeals the Department’s partial denial of her grievance in which she seeks the following relief: expunction from her Official Performance File (OPF) of her 2013 Amended Employee Evaluation Report (EER); extension of her time-in-class by one year; and a reconstituted 2014 SB to consider her file, if in fact she was low-ranked by the 2014 Promotion Board based upon her 2013 Amended EER.

Grievant joined the Foreign Service in 1987 as a Political Officer, and has had tours both overseas and in Washington. She has served in a variety of increasingly senior positions, including Deputy Chief of Mission (DCM)/Charge d’affaires in [REDACTED] Principal Officer in [REDACTED]  and Special Advisor to the Assistant Secretary in the [REDACTED] Bureau in Washington. The recipient of a number of awards throughout her career, she was also recommended for Performance Pay while serving as Principal Officer/Consul General in [REDACTED]. Grievant describes herself alternatively as “autistic” and a person who suffers from a disability known as Asperger’s Syndrome (a condition on what is known as the autism “spectrum”).

The contested statements concern two incidents, the basic facts of which are not in dispute and are summarized below. One incident involved grievant’s solicitation of favorable statements about herself from subordinates. The other incident arose from a remark grievant made to her rater, expressing grievant’s views of her own colleagues and using language that the rater deemed inappropriate.

The Solicitation of Statements from Subordinates. The first incident arose when grievant asked her locally-engaged (LE) assistant to gather from other LE staff written statements in which staff would describe what they liked about grievant, or how they viewed her as a boss. On December 15, 2012, grievant sent an email to her LE assistant asking that “each employee who is able or wants to do so” submit something written stating “if they liked working for me or something they liked about me as a boss.” Grievant asked her assistant (REDACTED) to compile such favorable comments for presentation to the grievant at the time of grievant’s upcoming birthday. In this email, grievant characterized the employee statements as “a gift I can keep with me always.”

When the DCM learned of grievant’s actions, she accused grievant of soliciting a gift from subordinates. The DCM issued a Letter of Admonishment to grievant, citing the email of December 15, 2012 to [REDACTED] asking for a “gift” from subordinates on the occasion of grievant’s birthday.2 In the Letter of Admonishment, the DCM instructed grievant to rescind that request. In an email of January 14, 2013, the DCM transmitted to grievant a copy of the Letter of Admonishment, directing grievant to comply with the instructions in the Letter, and to sign the Letter and return it to her. Grievant responded with a refusal to implement the instructions.

Grievant’s Remarks About Colleagues. The second incident concerns an email grievant sent to the DCM in preparation for a visit by the Secretary of State of [REDACTED]. Locally-engaged [REDACTED] staff would be coming to  [REDACTED] to support the visit. The scarcity of hotel rooms or accommodations for them became a pressing issue. In an email of August 6, 2012, to the DCM, grievant expressed her frustration that [REDACTED] American management staff, the Management Officer, and the General Services Officer (GSO), were not doing enough to secure such accommodations. Grievant wrote, in pertinent part:

For months and even during the current pre-advance, I have been trying to get the people to focus on finding hotel space or working with the government to find hotel space for the support staff. They refused to do so. Instead, they are living under the fantasy that they will be able to force the USG, with less than a month to go, to accredit FSNs as members of the US delegation and they will be able to stay with other members of the US delegation on .

Both you and I know that the USG is not going to accredit FSNs. If you are not accredited, you are not going to sleep on . Even if they want to continue to entertain this fantasy, check out hotels as a plan B. However, MGT says they have a plan B – staying in the Consulate’s non-existent TDY housing (LOL), bunking with Consulate officers (NO!), or sleeping through the night at the Consulate (H$*# to the No!).

One problem is that when the American officers broach the subject with FSNs, the FSNs refuse to look at hotel options, because the FSNs want to be accredited. GSO needs to grow a pair.

The appeal is granted in part and denied in part. Pursuant to the Board’s findings, the sole form of relief granted is that the case is remanded to the Department with instructions to make two modifications to the Amended EER. One, the Department is hereby ordered to delete the words “gift of” in every place in which the Amended EER contains the phrase “gift of positive statements from her direct reports.” Second, the Department is hereby ordered to delete from the section on “Interpersonal Skills” the phrase “and in doing so, did not set the standard for integrity.”

Read in full: 2014-029 06-11-2015 – B – Decision_Redacted (pdf).

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Picur v. Kerry: Court slaps down FSGB annuity decision as “arbitrary and capricious”

Posted: 1:37 am EDT

 

This case is about a USAID/OIG criminal investigator, an annuity calculation, and a Foreign Service Grievance Board decision.

According to court documents, the starting point for computing an annuity payment under the Foreign Service Act of 1980, as amended. See 28 U.S.C. §§ 4041–4069c-1. is section 4046(a)(1), which provides that:

[t]he annuity of a participant shall be equal to 2 percent of his or her average basic salary for the highest 3 consecutive years of service multiplied by the number of years, not exceeding 35, of service credit obtained in accordance with sections 4056 and 4057 of this title[.]

22 U.S.C. § 4046(a)(1). The statute does not define “basic salary” as that term is used in section 4046(a)(1); however, section 4046(a)(8) makes clear that a participant’s “basic pay” for annuity calculation purposes includes the special differential pay that Foreign Service officers are authorized to receive. Id. § 4046(a)(8). Moreover, section 4046(a)(9) provides that, when determining the average basic salary for the highest 3 consecutive years of service—commonly referred to as the participant’s “high three” (see Compl. ¶ 13)—“the basic salary or basic pay of any member of the [Foreign] Service whose official duty station is outside the continental United States shall be considered to be the salary or pay that would have been paid to the member had the member’s official duty station been Washington, D.C., including locality-based comparability payments[.]” 28 U.S.C. § 4046(a)(9).4

Here is a quick summary of the case:

Plaintiff Gregory Picur served as a Foreign Service criminal investigator for the Office of Inspector General of the United States Agency for International Development (“USAID OIG”) from the 1990s until his retirement in May of 2010. The dispute in the instant case concerns the State Department’s calculation of Picur’s retirement annuity, which Picur alleges is incorrect. (See Compl., ECF No. 1, ¶ 14.)1 Generally speaking, Picur contends that the State Department wrongly based its annuity calculation on what the agency says Picur’s salary should have been at the time of his retirement, rather than on the compensation that Picur actually received. (See id. ¶¶ 9–14.) Picur filed an administrative grievance contesting the agency’s calculation of his retirement annuity, but the State Department denied his grievance (see id. ¶ 4), and on appeal of that denial, the Foreign Service Grievance Board (“FSGB”) upheld the agency’s calculation (see id. ¶¶ 5–8), finding that the State Department had determined Picur’s retirement annuity in accordance with agency policies (see, e.g., id. ¶ 35). Picur has filed the instant action against Secretary of State John Kerry (“Defendant” or “the Secretary”), asking this Court to review and to set aside the FSGB’s conclusion as arbitrary, capricious, and not in accordance with law under the Administrative Procedure Act (“APA”).

[…] Defendant argues that the FSGB’s decision should be upheld because the Board examined the relevant evidence and provided a satisfactory explanation for its conclusion. (See Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Br.”), ECF No. 10, at 22–27.) But this Court finds that, when it affirmed the State Department’s annuity calculation, the FSGB did not consider the crucial issue of whether or not the statutory scheme that governs calculation of Picur’s annuity permits the agency to treat the annuity computation process as an opportunity to correct purported prior salary overpayments. In other words, it is clear to this Court that the FSGB ignored a key aspect of the problem that it was deciding in a manner that rendered its decision to uphold the State Department’s annuity calculation arbitrary and capricious in violation of the APA. Consequently, Defendant’s motion for summary judgment must be DENIED, the FSGB’s decision must be VACATED, and the matter must be REMANDED for further consideration.

The court’s conclusion:

Whatever the appropriate statutory analysis, the administrative record in this case makes crystal clear that the FSGB failed to consult any of the statutory provisions that specifically prescribe how an annuity is properly calculated in this context, and it appears to have merely assumed that the State Department has the power to decide that an annuitant’s actual high three salary average is too high for the purpose of an annuity calculation. Consequently, this Court concludes that the Board failed to consider an important aspect of the problem with which it was presented, and thus its decision was arbitrary and capricious for the purpose of the APA. See, e.g., Olsen, 990 F. Supp. at 40 (granting summary judgment for plaintiff where the FSGB “did not properly consider the legality of the [agency’s] policies”); see also Quantum Enterm’t, Ltd. v. U.S. Dep’t of Interior, Bureau of Indian Affairs, 597 F. Supp. 2d 146, 153 (D.D.C. 2009) (holding that where an agency’s “decision [i]s incomplete, [it] violates the prohibition against arbitrary or capricious agency decisions” (citation omitted)).

We are posting the Memorandum Opinion for Picur v. Kerry, Civil Action No. 14-cv-1492 (KBJ) in the the member’s only section of Diplopundit’s forum. Check it out in the forum’s document dump.

The redacted FSGB Record of Proceeding (ROP) for this case is available online here (pdf) via fsgb.gov.

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State/OIG Reviews Former FSO’s Allegation of Improper Denial of Promotion

Posted: 3:48  am EDT

 

On July 31st, State/OIG posted online its review on an FSO’s allegation of improper denial of promotion:

The Office of Inspector General (OIG) conducted this review to assess a former Department of State (Department) employee’s (complainant) allegations of an improper denial of promotion. Specifically, in September 2013, the complainant alleged that (1) the Department’s Bureau of Human Resources (HR) fraudulently tampered with or manipulated six reconstituted promotion boards conducted in 2010 and 2011 and (2) HR fraudulently altered documents generated by these six boards to prevent the complainant from being ranked for promotion. OIG interviewed former board members and consulted with a forensics expert, and found that the evidence does not support the complainant’s allegations.

According to the footnote in this report, on August 18, 2011, the FSGB issued its final decision, concluding that the Department fulfilled its responsibility of proving that the complainant would not have been promoted during the years at issue even if the alleged procedural errors had not occurred. The complainant appealed to the Federal District Court and challenged both the FSGB interim decision (which resulted from its order to conduct the six final boards), and the FSGB final decision. The complainant filed a Federal appeal in U.S. District Court on January 7, 2011, which has now been temporarily suspended at the complainant’s request.

This case does not include the name of the foreign service officer but we think this is the Joan Wadelton’s case that has been through the Foreign Service Grievance Board and is the subject of a litigation in the U.S. District Court of the District of Columbia.

Reading through this report, we are struck by OIG being “unable to review any notes or score sheets generated by the 2006 boards because Department policy required treating them as working files; as such, they were destroyed once the rankings were finalized.” Although it appears State/OIG reviewed other scoresheets and consulted with a DHS expert to conduct forensic analysis. The report says that the review could not substantiate the complainant’s allegation that HR fraudulently altered documents associated with her 2010 to 2011 reconstituted promotion boards.

We don’t understand this policy of destroying working files, particularly on cases such as promotions. What’s the rationale for doing so? Anyone want to school me on this?

Read it here: ESP-15-06_Improper Denial of Promotion Allegation.

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Related posts:

A blog mistake hounds an FSO: Despite a good reputation for work, “there was the blog thing.”

Posted: 3:43 am EDT

 

There are over 500 Foreign Service blogs by State Department employees and family members. Long-time readers of this blog may remember the tigers who bite bloggers (see Foreign Service Blogging: Tigers Have Teeth, Rather Sharp … Rawr!!!).

When I wrote that Rawr piece in 2011, I wrote this:

I have not seen or heard of Tigers actually yanking anybody’s clearance due to an offending blog. I am aware of private sessions of discouragements, issues with onward assignments, and of course, threats of various colors and stripes among directed at FS bloggers.  And as far as I know, they have not technically kicked out anyone who blogs either —  unless you call the “push” to retirement a payback kick.

Well, State did yank Peter Van Buren‘s clearance afterwards, but it was for more than just a blog.  Occasionally, I get a request to cite a case where identified individuals got into real trouble due to blogging in the Foreign Service. Except for a small number of cases (PVB, ADA and MLC), I’ve refrained from writing about the blog troubles out of concern that writing about them makes it worse for the individual bloggers. In many cases, the bloggers themselves quietly remove their blogs online without official prompting. Out of the abundance of caution.

A recent FSGB case decided in January 2015 shows a charge of “Poor Judgment” against an FSO based on a post in her personal blog written in October 2008.  That’s right. The blog post was online for barely a day and was taken down in 2008. To be clear, the poor judgment charge related to the blog is just half the charges filed against this employee.  But in January 2013, State proposed a five day suspension for the FSO. Excerpt from the FSGB record of proceeding available online:

The Improper Personal Conduct charges are based on grievant’s personal relationships in the summer of 2008 with two individuals to whom she had previously issued non-immigrant visas, and the Poor Judgment charge is based on a post in her personal Internet blog in October of 2008.
[…]
During a flight to the United States during the spring of 2008, grievant unexpectedly encountered another citizen of Country X (Citizen B) for whom she had issued a visa, fell into conversation with him, and exchanged contact information. Upon her return to Country X, grievant was hospitalized in June 2008. While in the hospital, she received a call from Citizen B, who said he would ask his family members to visit her. They did so. Soon after Citizen B returned to Country X, grievant invited him to lunch. Thereafter, the two conducted an intimate relationship for about three weeks.

Later, Citizen A contacted grievant requesting her assistance in issuing a visa to his new wife. Grievant told him she could not be involved in his wife’s visa application process because she knew him. Consequently, another Consular Officer adjudicated and issued the visa for Citizen A’s new wife. Shortly thereafter, grievant posted on her personal blog (using Citizen A’s initials) a comment saying, in effect, that sharing a bottle of wine with someone could be disastrous, especially when that person shows up at your workplace seeking a visa for his new bride. Within a day of this blog posting, grievant was warned by a colleague to take it down, and grievant did so.
[…]
In a letter issued on January 31, 2013, the Department of State proposed to suspend grievant for five workdays, based on three charges that arose from conduct occurring in 2008. Ultimately, the suspension was reduced to three workdays. Grievant’s appeal raised issues of timeliness as well as challenges to the substance of the charges. Grievant is a class FS- 04 Consular Officer who was serving abroad in 2008. In May 2009, a co-worker at her Embassy complained to the RSO that grievant had become too close to some visa applicants and their attorneys and was maintaining improper personal relationships with them. The Office of the RSO investigated the allegations and eventually referred the matter to the Consular Integrity Division (CID). In its report of October 2009, CID found no wrongdoing and returned the matter to post. Nonetheless, the RSO referred the complaint of the co-worker to DS for investigation, but did not do so until January 2011. DS, for no articulated reason, did not assign the case to a field agent until September 28, 2011. DS then did not complete its investigation and forward the matter to HR until late October or early November 2012.

The Board concluded that there was no fact-based excuse for the delay at the RSO level and that there was no evidence of necessity for the length of time engulfed in the DS investigation. The Board found that the grievant had been harmed by the overall delay, caused by two different bureaucracies in the Department. The Board identified the harm as the statistically diminished promotability of this particular officer, given her combination of time-in-service and time-in- class.

The FSGB explains in the footnotes that 1) “She [grievant] was unmarried and remained unmarried through at least the date of her suspension. We mention her marital status only because in other disciplinary cases, an officer’s married status has been deemed a risk for coercion if someone knowing of the sexual misconduct threatened to reveal it to the officer’s spouse. Here, however, it does not appear that the grievant’s marital status was relevant to the selection of penalty or the choice of the charges. Noting grievant’s marital status may obviate confusion, if anyone examining other grievances or appeals should consider this case for comparison purposes.” 2) “Because of sensitivity surrounding the country in which grievant served her first tour, both parties refer to it as “Country X…”

In its decision last January, the FSGB held (pdf) that “grievant had shown by a preponderance of the evidence that the Department’s delay of over three years in proposing grievant’s suspension was unexcused and unreasonable and that grievant’s promotional opportunities had been harmed as a result of the delay. Grievant is entitled to reversal of the three-day suspension for charges of Improper Personal Conduct and Poor Judgment, as well as removal of the suspension letter from her OPF. Grievant is entitled to promotion to the FS-03 level, as recommended by the 2013 Selection Boards, retroactive to 2013.”

While this case was resolved on the FSO’s favor, I’m taking note of this case here for several reasons:

1) According to the redacted report published online, the misconduct was reported to the agency by one of grievant’s co-workers on May 20, 2009.  An embassy is a fishbowl.  Anyone at post familiar with one’s activities, in real life or online can file an allegation. If you write a blog specific to your post, people at post inevitably will connect you to it. A single blogpost, even if taken down, can reach back and bite. Across many years.  State’s position is that grievant’s argument that the Department had no regulations or guidelines about personal blogs in 2008 “does not make her posting any less wrong.” Interestingly, that official line doesn’t seem to apply when it comes to the former secretary of state’s use of private email.

2)  Even if an allegation is dismissed by the Consular Integrity Division (CID), it does not mean the end of it, as this case clearly shows.  After the case was dismissed by CID, the case was forwarded to Diplomatic Security for another investigation.  “Counting from the date on which the behavior was reported (as specific misconduct) to the agency to the date of proposal of the five-day suspension, the period of delay in dispute is three (3) years and eight months.” While I can understand what might have prompted the initial complaint, I’m curious about the second referral.  I’d be interested to see comparable cases to this. I’m wondering if this case would have been referred to a second investigation if she were a male officer? Absolutely, yes, no? But why a duplicate investigation?

3) When grievant departed Country X for a new post,  her continued blogging activity prompted other Consular (CID) investigations.  Since there are no public records of these incidents until the cases end up in the FSGB, it is impossible to tell how many FS employees have been referred to CID or DS for their blogging activities. Or for that matter, what kind of topics got them in trouble.  I am aware of cases where FS bloggers had difficulties with onward assignment, but those were never officially tied to their blogging activities; that is, there were no paper trail pointing directly at their blogs.  This is the first case where we’re seeing on paper what happens:

Grievant states in the ROP that “while in [REDACTED] she did not receive any of the initial positions she bid on. Eventually, she was told that even though she had a good reputation for her work, “there was the blog thing.” Also, she recalls that a “handshake” offer of a Consular Chief position in [REDACTED] was rescinded. She attributes this to an unnamed official’s claim that “Embassy decided they did not want me after CID told them about my history (presumably the blog, and my time in Country X).”

4) Beyond the consequences of not getting onward assignments, here’s the larger impact:  “In 2015, the first year her file would be reviewed without any discipline letter, grievant would have been in the Foreign Service for nine years and in class FS-04 for seven years. In point of fact, these lengths of time in service and time in class fall far above the average promotion times for officers moving from grade FS-04 to FS-03.[…]  We conclude, under the totality of circumstances, that the untimely suspension prejudiced her chances for promotion to FS-03 in the years 2015-2018.”

5) Beyond the blog thing — the FSO in this grievance case was an untenured officer serving her first tour at a “sensitive” country the FSGB would only refer to as Country X. When the FSO argue that she was never counseled at post regarding these relationships (other half of charges is for Improper Personal Conduct), the State Department contends that “any lack of counseling “does not erase the perception of impropriety [grievant’s] actions could create if made public, nor does it serve as an implicit concession that [grievant’s] actions were somehow appropriate.”   \

Well, okay, but ….. 3 FAM 4100 is the rules for the road when it comes to  employee responsibility and conduct. Which part of the current A100 or leadership and management classes are these FAM sections incorporated?  While I can understand the  department’s contention above, it also does not absolve the agency from its responsibility to provide appropriate counsel and training, most especially for entry level officers. Or is this a gap in the training of new employees?  When a new, inexperienced officer is first posted overseas, who can he/she ask about delicate issues like this? Is there a Dear Abby newbies can write to or call for counsel at the State Department without the question trailing the employee down every corridor?

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Notoriously Disgraceful Conduct: Is it only the little people who are taken to task?

Posted: 12:48 am EDT
Updated: 3:07 pm EDT

 

In March 2012, AFSA’s General Counsel Sharon Papp reported about a State Department proposal related to the “state of affairs” in the Foreign Service ….no, the other kind of affairs:

In 2011, the State Department proposed disciplinary action against a handful of employees for off-duty conduct that it had not sought to regulate in the past (i.e., extramarital affairs between consenting adults). 

When we reviewed several sex-related grievance cases in 2012, we came to the conclusion that from the agency’s view, widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service. Further, the potential for embarrassment and damaged to U.S. interests seems as weighty as actual embarrassment and damage. See: Sex, Lies, and No Videotapes, Just Cases for the Grievance Board

We recently received the following in our mailbox (edited to remove the most identifying details):

The married DCM at the embassy of a major Middle East ally slept with a married ELO whose husband worked for him. He blamed his alcoholism. As “punishment,” he was assigned as DCM at a significant high risk/high threat post. Next up? One of the top jobs at an embassy located in a Western European country.  Where’s the accountability at State? Is it only the little people that are taken to task? 

Well, that is an excellent question given another allegation we’ve received about another front office occupant involved in domestic violence overseas (another story we hope to write another day).

Extra-marital affairs, of course, are not mentioned anywhere in the Foreign Affairs Manual but below is what the regs say on sexual activity (pdf) and what constitutes, “notoriously disgraceful conduct.” Both sections were last updated in 2012, and applies to Foreign Service employees at State and USAID:

3 FAM 4139.1 Sexual Activity
(CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees) 

The agencies recognize that, in our society, there are considerable differences of opinion in matters of sexual conduct, and that there are some matters which are of no concern to the U.S. Government. However, serious suitability concerns are raised by sexual activity by an individual which reasonably may be expected to hamper the effective fulfillment by the agencies of any of their duties and responsibilities, or which may impair the individual’s position performance by reason of, for example, the possibility of blackmail, coercion, or improper influence. The standards of conduct enumerated in 3 FAM 4138 are of particular relevance in determining whether the conduct in question threatens the mission of the employing agency or the individual’s effectiveness.

3 FAM 4139.14 Notoriously Disgraceful Conduct
(CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees) 

Notoriously disgraceful conduct is that conduct which, were it to become widely known, would embarrass, discredit, or subject to opprobrium the perpetrator, the Foreign Service, and the United States. Examples of such conduct include but are not limited to the frequenting of prostitutes, engaging in public or promiscuous sexual relations, spousal abuse, neglect or abuse of children, manufacturing or distributing pornography, entering into debts the employee could not pay, or making use of one’s position or immunity to profit or to provide favor to another (see also 5 CFR 2635) or to create the impression of gaining or giving improper favor. Disqualification of a candidate or discipline of an employee, including separation for cause, is warranted when the potential for opprobrium or contempt should the conduct become public knowledge could be reasonably expected to affect adversely the person’s ability to perform his or her own job or the agency’s ability to carry out its responsibilities. Evaluators must be careful to avoid letting personal disapproval of such conduct influence their decisions.

One might argue that an extra-marital affair between two consenting adults is a private matter.  And in most cases, it is; who wants to be the sex police?  But. If the allegations are true, can you really consider it private, particularly in a case that involves the second highest ranking public official at an embassy and an entry level officer (ELO) assigned under his command? Even if the DCM is not the ELO’s rating or reviewing officer —  how does this not affect the proper functioning of the mission? Can anyone exclude undue influence, potential favoritism or preferential treatment?  Which section chief would give a bad performance review to a junior officer who slept with the section chief’s own reviewing officer? Even if not widely known outside the Foreign Service, can anyone make a case that this is not disgraceful or notorious?  For real life consequences when a junior officer has a “special relationship” and “unrestricted access” to an embassy’s front office occupant, read the walking calamity illustrated in this case FSGBNo.2004-061 (pdf).

Look … if widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service for the lower ranks, why should it be a requirement for the upper ranks?  It’s not? Well, how else can we explain a good number of senior officials who allegedly looked the other way?


Can’t you see I’m busy? Besides I did not/did not see anything!

 

We went and looked up the Foreign Service Grievance Board cases related extra-marital affairs or related to notoriously disgraceful conduct. Here are some quick summaries.

  • In 2011, the State Department handed down a 30-day suspension to a junior officer for “off-color and offensive emails about women he dated, which were widely disseminated” after his private email account was hacked.  State said this constituted “notoriously disgraceful conduct.” (pdf)
  • Another case in 2011 involves an FSO who was told by the State Department: “Given the nature of Foreign Service life, you are aware that you are on duty 24/7. These multiple extramarital affairs involving sexual relations with an estimated 13 women during two separate assignments overseas without your spouse’s knowledge show poor judgment for a Foreign Service Officer.” (pdf) (note: two separate assignments could mean 4-6 years; untenured tours at 2 years, tenured tours typically at 3 years).
  • A Diplomatic Security (DS) Special Agent was suspended for three days for Notoriously Disgraceful Conduct arising from a domestic violence incident with his spouse. (pdf)
  • A married FP-04 Information Management Specialist (IMS), received a 20-day suspension, subsequently reduced to 10 days, for improper personal conduct and failure to follow regulations. The employee served at a critical threat post, and admitted having an extramarital relationship with a local embassy employee as well as engaging in sexual relations with two “massage techs.” (pdf)
  • An untenured FP-04 Diplomatic Security (DS) agent was disciplined for poor judgment and improper personal conduct. The employee brought a  woman to his hotel room and engaged in sex with her. Although the employee voluntarily disclosed the incident and asserted that the woman was not a prostitute, the Department contends that the incident at a minimum gave the appearance of engaging in prostitution and as such violated 3 FAM 4139.14 or Notoriously Disgraceful Conduct. (pdf)
  • A married FS-02 Information Management Officer (IMO) with seventeen years in the Department, with numerous awards and no disciplinary record, was found in his personal vehicle that was parked in an isolated area, and in a dazed condition with injuries suggesting he had been assaulted. He stated that during the prior night he had picked up a woman unknown to him, shared wine with her while driving, pulled over to the side of the road and then had no recollection of what followed, presumably because she had introduced a substance into his drink. During the ensuing investigation, the employee revealed he had picked up four or five women on previous occasions over a four-month period and had sex with them without the knowledge of his wife.  As a result, the Department proposed a ten-day suspension based on the charges of Poor Judgment and Notoriously Disgraceful Conduct. (pdf)
  • An FP-04 Diplomatic Security (DS) agent was given a five-day suspension without pay on the charge of Improper Personal Conduct. The charge is based on an incident in a criterion country in which employee (an unmarried person) engaged in consensual sex with a local woman and gave her $60.00 after the sexual activity had concluded. There was no evidence that the woman was a prostitute and there were no witnesses to their encounter. The employee self-reported the incident immediately to his supervisors, who took no disciplinary action. Eighteen months later, the Department opened an investigation and eventually suspended the employee. The deciding official concluded that employee’s conduct had violated two regulations governing behavior subject to discipline: 3 FAM 4139.1 (Sexual Activity) and 3 FAM 4139.14 (Notoriously Disgraceful Conduct). (pdf)

So —

We have so far been unable to locate FSGB cases of “notoriously disgraceful conduct” involving senior Foreign Service officials; certainly nothing at the DCM or COM level. It could be that 1) our search function is broken; 2) the folks are so risk-aversed and discreet that there are no cases involving a single one of them, or 3) potential such cases were swept under the rug, nothing makes it to the public records of the Foreign Service Grievance Board.

Which.Is.It? Will accept breadcrumbs …

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