Foreign Service Grievance Board Annual Report 2014 — Noteworthy Cases

Posted: 1:30  am EDT

 

The Foreign Service Grievance Board recently released its 2014 annual report:

A primary goal of the Board continuing during this past year (and in prior years) has been to improve its timeliness in terms of issuing its orders and decisions. The Board is acutely aware of the short timeframes that impact the careers of Foreign Service employees, and especially the schedules of various agency-appointed boards that grant tenure, decide on promotions, rank (and “low rank”) employees, and make other career-defining personnel decisions. While the Board does not fully control the entire grievance appeal process, e.g., the period during which the parties engage in sometimes lengthy discovery or file time- consuming motions, it has put in place procedures to expedite where possible those actions it does control.
[…]
The three-member panels selected to decide grievance appeals continued to work effectively during the year, producing several orders and decisions with significant issues of first impression or complexity. Social media has had an impact on some of the Board’s grievance appeals, and is likely to expand as a growing presence in both professional and personal interactions among Foreign Service employees. The increased exposure of what may have been considered private communications in the past has produced challenging questions regarding standards for personal and professional conduct of Foreign Service personnel, including the issue of what is a reasonable expectation of privacy; similarly, rapid changes in technology, in particular the growth of digitally based communications and cyber tools such as cloud computing, have altered methods of information storage, access and security that undoubtedly affect Foreign Service operations. These developments, along with rapidly evolving social and demographic changes, both within the Foreign Service and the society at large, are likely to influence to some degree future grievance disputes. A major challenge for the Board is to maintain its level of institutional and technological awareness to keep pace with the dynamic environment in which future dispute resolution will be necessary.

See the stats here:  Snapshot: Foreign Service Grievance Board Annual Report 2014 – Statistics

According to the 2014  report, the largest number of grievance appeals by office were those filed by employees of the Department’s Bureau of Diplomatic Security (31% of the total). The Board is now seeing cases on disability, Post Traumatic Stress Disorder (PTSD), or other medical condition that affected the employee performance or conduct that resulted in a separation recommendation.  The average time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal, was 45 weeks. This is two weeks longer than the average time of disposition in 2013. The Board currently has 19 members, with 12 retired foreign affairs members and 7 legal professionals.

Below is an excerpt from the report:

Fifty-three new cases were filed with the Board in 2014, comparable to the number filed the previous year (54). Over the past six years, the number of new cases has ranged from a high of 74 to a low of 43. Of the 2014 cases, 47 cases were filed by employees of the Department of State (or survivors of State Department employees); five by employees of USAID; and one by AFSA. No cases were filed by employees of the other agencies under the Board’s jurisdiction.
[…]
Timeliness of disciplinary actions, as governed by agency regulations, also continued as an issue of concern to employees. In three new cases filed, the employees alleged that delays ranging from 14 to 36 months violated Department regulations and disadvantaged them. Two cases involving timeliness were decided by the Board this year. In the first case, the Board found that a three-year delay was prejudicial to the employee and dismissed the charges. In the second, a two-year delay was deemed not to be prejudicial, but the charges were dismissed as not proven.

Eight of the new cases filed involved a claim that a disability, Post Traumatic Stress Disorder (PTSD), or other medical condition affected the employee performance or conduct that resulted in a separation recommendation. Four involved allegations of alcohol abuse. The largest number of grievance appeals by office were those filed by employees of the Department’s Bureau of Diplomatic Security (31% of the total).

A number of individually noteworthy cases were filed in 2014:

    • A USAID case involved the starting salary of a new hire, whose documentation of his previous salary while self-employed was alleged to be fraudulent. The grievant was one of several USAID new hires who were issued bills of collection for overpayment of salary following an agency audit of the starting salaries of new hires. Regulations for establishing starting salaries primarily took into account standard salary histories, and did not address factors stemming from self-employment or lower salaries/stipends earned while an applicant was earning an advanced degree.
  • The daughter of a State Department employee contested a bill of collection issued by the Department for $311,000 in overpayment of a survivor annuity and denial of a waiver for the overpayment. The grievant was unaware that she needed to notify the Department upon the death of her mother. Survivor annuity payments were deposited into a joint account for several years before the error was discovered.
  • AFSA filed an implementation dispute challenging the Department’s decision to deny payment of Meritorious Service Increases (MSIs) to outstanding employees identified by the selection boards in 2013. AFSA maintained that its agreement to defer such payments during sequestration of the budget in 2013 did not extend to a discretionary decision by the Department to withhold such payments permanently after the funds were available.
  • A former president of AFSA contested the propriety of an email sent out by senior Department staff criticizing her for an op-ed piece she had co- authored with two former ambassadors. The op-ed piece, published in the Washington Post, expressed the authors’ perception that State was inappropriately placing an increasing number of civil service and political appointees in the highest leadership positions. The grievant also challenged the failure of one of the authors of the email to recuse herself from service on the grievant’s promotion board that year.
  • A retired Foreign Service Officer filed a grievance alleging that remedies granted to him pursuant to the first grievance ever filed, in 1972, under authorities preceding the establishment of the Foreign Service Grievance Board, had never been implemented. He is seeking monetary relief.
  • A grievant who in 1998 claimed bias on the basis of sexual orientation and a procedural error, and who appealed the FSGB decisions to both the district court and court of appeals, filed a new grievance claiming that Time-In-Class (TIC) and Time-in-Service (TIS) extensions awarded in that case had never been properly implemented, resulting in his impending separation for expiration of his TIS.

Discipline

The Board resolved 12 appeals from discipline imposed by the Department of State. There were no appeals from disciplinary decisions of other agencies. In discipline cases, the agency has the burden to prove that the charge is factually correct; has a nexus to employment; and that the penalty is appropriate. The appeals covered a range of issues: alcohol and/or weapons-related incidents (five cases); filing false claims for reimbursement; false statements given to explain an absence from work; failure to maintain control of a diplomatic pouch; interfering with an investigation; the appearance of prostitution (two cases); and a security violation. In eight of the cases the charged employee alleged that the penalty was too harsh. In five of the discipline cases the Board affirmed the Department’s decision; in two it found in favor of the charged employee; in one it partially affirmed and partially reversed; and four cases were settled before reaching a decision on the merits. Nine of the cases involved employees of the Office of Diplomatic Security.

In one discipline case and a handful of others, the employees claimed that the incidents were related to the stress of service at hardship posts. As more employees are assigned to posts in countries where violence is endemic, the Board will be sensitive to similar conditions in appeals arising from this issue.

EER/OPF/IER

Eighteen appeals involving inaccuracies, omissions, prejudicial statements, or prejudicial errors in employees’ Official Performance Files that could affect their promotion and/or tenuring competitiveness were decided by the Board. The Board affirmed the agency decision in ten of the cases; reversed in two; and partially affirmed, partially reversed in three cases. Two appeals were settled, and one was withdrawn.

Two of the appeals contested IERs issued by the Office of the Inspector General, one involving an ambassador and the second a public affairs officer. In the first, the Board found that the right to counseling applied equally to ambassadors as to other employees. Although the bar may be higher in what an ambassador is expected to know, the Board found that in this particular case the ambassador had no reason to know of the deficiencies identified in the IER, and, therefore, lack of counseling by her supervisors prior to inclusion of the criticisms in the IER and her OPF was not harmless error. The Board also found that several comments in the IER about another, identifiable employee should not have been included in the ambassador’s OPF. The Board ordered that the IER be removed from the ambassador’s OPF. The second case was settled and withdrawn prior to a decision on the merits.

See The Buck Stops Where? Ambassador Files Grievance Over an OIG Evaluation Report

Assignment

In general, the Board does not have jurisdiction over assignment actions. However, the Board may hear appeals in which the employee alleges a procedural violation of the assignment process. Two such cases were resolved last year. The first case stemmed from the 2012 violence in Benghazi. The employee alleged that he was removed from his position based on ill-founded conclusions by the Benghazi Accountability Review Board, and that he had been made a scapegoat as part of a politically motivated damage control effort. Prior to the conclusion of the appeal process, the grievant retired from the Department. The Board found that most of the remedies he had requested were no longer viable post-retirement, and it therefore drew no conclusions based on the merits. In the second case, the Board also found that the requested remedy, a change in eligibility requirements for long- term training, was outside its authority and dismissed the case for lack of jurisdiction.

See The Cautionary Tale of Raymond Maxwell: When the Bureaucracy Bites, Who Gets The Blame?

Financial

Eight appeals involving financial claims were resolved by the Board last year, each presenting different, complex issues:

  • In an appeal challenging denial of a medical evacuation allowance, the Department followed a long-established Standard Operating Procedure in denying medical evacuation for a high-risk pregnancy prior to the 24th week of gestation. The employee was directed to seek instead the lower separate maintenance allowance, even though all medical personnel agreed that grievant’s spouse needed to return to the U.S. in the 10th week of pregnancy.  The Board found that the Department’s practice was inconsistent with its own regulations and directed the Department to recalculate grievant’s per diem based on the medical evacuation rate.See High Risk Pregnancy Overseas: State/MED’s SOP Took Precedence Over the FAM? No Shit, Sherlock!
  • Six Security Engineering Officers (SEOs) challenged the Department’s decision to limit hiring of their class to an FP-06 pay level, while hiring preceding classes with similar qualifications up to the FP-04 level. In addition to charging a violation of merit principles, the grievants claimed that there were no jobs available at the lower level, so they were unjustly required to work at a higher pay grade than they were being paid. The case was resolved with respect to four grievants when they withdrew their appeals. The appeal of the other two is pending.
  • A career Civil Service employee was given a Limited Non-career Appointment in the Foreign Service, then granted a conversion to career Foreign Service. While in the U.S. working to satisfy the language requirement for a pending overseas FS assignment, grievant’s position was first designated FP-02, then retroactively downgraded to GS-12. The Department required her to reimburse the overpayment in salary resulting from the initial designation. The Board found that, while the Department’s regulations regarding conversions are unclear, in this case the downgrade without notice was an improper application of the relevant laws and regulation, and the employee was entitled to recover the funds repaid to the Department.
  • The Department denied a cash award to an employee for a suggestion he had made and that it had implemented. The primary basis for denial was that grievant had received a cash award for a similar reason, and thus was not permitted a second cash award for the suggestion. Grievant also claimed that the official who denied the award was the deciding official in a disciplinary action pending against him, and thus should have recused himself. The Board found that the two awards were for different purposes and thus not prohibited by the regulation, and agreed that the deciding official should have recused himself from the award decision. It remanded the case to the Department to reconsider its original decision.
  • A Diplomatic Security agent was required to surrender his law enforcement credentials and was denied law enforcement availability pay (LEAP) when the Secret Service investigated him regarding a collectible coin that he had purchased and sold, which turned out to be counterfeit. The investigation remained pending for a number of years, with no charges brought against the agent. During that time, his LEAP pay remained in abeyance. The Board found that although the Department did not have regulations addressing these circumstances, it had implemented a clear and consistent policy and did not act arbitrarily in denying grievant LEAP pay.
  • A retired criminal investigator with the USAID Inspector General’s Office alleged that the State Department miscalculated his retirement annuity by applying a pay cap imposed by the USAID IG through a 2006 memorandum. The Board found that the Department’s reliance on the memorandum was proper, and denied grievant’s claim to a higher annuity. The grievant has appealed this decision to the D.C. district court.

Judicial Actions Involving Board Rulings

One new case was filed in the District Court for the District of Columbia last year. Gregory Picur, retired from USAID’s Office of Inspector General, appealed the Board’s decision to uphold the Department’s calculation of his retirement annuity. A decision is pending.

Three other cases are pending decisions in federal court:

    • The five plaintiffs in Richard Lubow, et al. v. United States Department of State, et al. (923 F. Supp. 2d 28 (D.D.C. 2013)), retired and active duty Diplomatic Security agents who served in Iraq in 2004, appealed a district court decision granting summary judgment to the Department. The plaintiffs had grieved the Department’s application of a cap on their premium pay during their time in Iraq and its decision not to grant them a waiver of repayment of the amounts they had been paid in excess of that cap. The Board had affirmed the Department’s decision applying the cap and denying the waiver.
      (note: a ruling was issued on this case this past week, we will post separately)
    • In November 2012, Jeremy Yamin petitioned the D.C. district court to review a FSGB order denying in part his request for attorney fees incurred in a grievance appeal.
  • In January 2011, Joan Wadelton appealed a Board decision ordering six new reconstituted selection boards be convened as the remedy for three prior grievances. Ms. Wadelton’s appeal contests the Board’s decision to order a new round of reconstituted boards, rather than direct a promotion, as she had requested. Ms. Wadelton is separately engaged in litigation against the Department concerning compliance with three related FOIA requests she filed seeking certain Department records about her. The Department has completed its production of documents pursuant to those requests and is currently engaged in briefing related to motions for summary judgment. (see  Former FSO Joan Wadelton With Truthout Goes to Court Over FOIA Case)

One of the “other” cases adjudicated by the Board.

[T]he employee had been assigned to a senior job in an international organization for five years by virtue of separation/transfer with reemployment rights. Under that particular arrangement, his OPF was not reviewed for promotion for those years, and he was reemployed by State at the same grade as when he had left. Grievant contested the legality of that policy. The Board found that, although there was confusion within State about the ramifications of different transfer/secondment actions and grievant had not always been given consistent information, the precepts were clear and no remedy was warranted. Grievant has two related cases pending. (see Secondments to international organizations and promotions? Here comes the boo!).

The full report is available here.

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The Buck Stops Where? Ambassador Files Grievance Over an OIG Evaluation Report

— Domani Spero

 

The following is a Foreign Service Grievance Board case (all names redacted) where an ambassador filed a grievance over a State/OIG Inspector’s Evaluation Report (IER). The Board held that the IER be expunged from the ambassador’s personnel file.

Now, you see why State/OIG stopped doing the Inspector’s Evaluation Reports? We don’t like the fact that OIG no longer issues IERs but we can now understand in real terms why.

This is why. Where does the buck stops?

The President sends a Letter of Instruction to all Chiefs of Mission appointed by the President, and the contents of each letter differs according to whether the COM has a bilateral/country or international organization portfolio. The President’s Letter basically gives a COM full responsibility for the direction, coordination, and supervision of all U.S. Government executive branch employees within the host country or in the relevant Mission to an international organization, except those personnel under the command of a U.S. geographic area military commander or on the staff of an international organization.

We’re shocked it has not been argued yet that ambassadors must first have prior counseling from the President of the United States regarding their performance prior to the issuance of an OIG Inspector’s Evaluation Report. Not that it matters now, since State/OIG has ended the practice of issuing IERs.

Via FSGB Case No. 2013-028

Grievant, a former Ambassador to REDACTED, appealed the Department’s denial of her 2013 grievance, claiming that an IER prepared in November 2011 focused primarily on the performance of her DCM and contained several “inaccurate statements.” Grievant claimed that inclusion of the IER in her OPF was prejudicial because she had not received counseling on the areas of her performance that were criticized in the report. After soliciting feedback from post personnel, the Department expunged portions of two statements in the IER, but otherwise found the remainder to be an accurate reflection of grievant’s performance, as corroborated by numerous statements from identified Mission employees.

The Board determined that grievant was not counseled on matters that were negatively discussed in the IER, nor was she given an opportunity to improve performance problems raised in the report. The Board concluded that regardless of the purpose for the IER, grievant was entitled to be counseled and provided a reasonable opportunity to improve before she could properly be critiqued on performance deficiencies in an IER. The Board held further that grievant met her burden of proving that she was unaware of the shortcomings mentioned in the IER; she had no reason to become aware of these deficiencies; and, therefore, that counseling could not be excused as harmless error. The Board further found that the IER contained a significant number of inadmissible comments about the performance of the DCM, an identified other employee, and was, therefore, written in violation of applicable regulations that govern the preparation of evaluation reports. The Board concluded that the IER is invalid and ordered it removed from grievant’s OPF.

The Foreign Service Grievance Board decision:

HELD: The Department committed a procedural error by placing in grievant’s Official Personnel File (OPF) a prejudicial Inspector’s Evaluation Report (IER) that included inadmissible comments about another identified employee, in violation of agency regulations, and without first counseling grievant on certain performance issues mentioned in the IER, or giving her an opportunity to improve her performance. The IER was ordered expunged from grievant’s OPF in its entirety.

There are clips included in the Report of Proceeding:

“I do believe Ambassador REDACTED was aware that DCM REDACTED activities were exacerbating the rift between the front office and the rest of the mission, but I believe it was a type of willful unawareness, perhaps delusional. . . . If [the Ambassador] was not aware or not willing to admit that this rift existed, she was deluding herself. . . . [In All Hands meetings] . . . to the Ambassador, this kumbaya session was clear evidence that she had her finger on the pulse of the mission. It was a charade, but no one could tell the emperor that he had no clothes.”

Grievant submitted the following statements from post employees:

– “I think she didn’t realize the impact the DCM was causing till [sic] the OIG arrived. . . .”

– “I don’t know if she recognized the seriousness of the problems or not. . . . I don’t know if the Ambassador was aware of them or not.”

– “I believe that Ambassador did not fully recognize the seriousness of problems at Embassy If she had recognized the seriousness of the problems, I believe that she would have addressed them in the beginning and not let things get so out of hand.”

The OIG inspection team leader wrote:

REDACTED showed little awareness of the significant impact on morale cause by front office management practices and actions. She was not aware of the extent of negative sentiment concerning front office communications, nor the depth of employee resentment of the intrusive and imperious management style of the DCM. Although scheduled and conducted numerous regular meetings with employees, staff members told inspectors they volunteered little real feedback to the front office, fearing the reaction and the subsequent damage to their careers.

The best part of this decision is this:

What remains are grievant’s claims that the IER improperly focused on the performance of the DCM and a claim that she had a right to counseling prior to inclusion of negative statements in her IER. As to her complaint about the focus of the IER, grievant points out that although the report was meant to address her management and leadership skills, it is largely directed at the DCM’s behavior and contains several comments that did not pertain at all to her performance. We find that what was at issue in the inspection was grievant’s alleged lack of awareness of, and inattentiveness to, the negative effect on post morale that was purportedly caused by the behavior of her subordinates. Because the concern was how well or poorly grievant was performing as Chief of Mission, we find that the IER should have focused on grievant’s performance vis-à-vis her detection and management of post problems caused by a subordinate.
[…]
We think the rule of fundamental fairness applies equally when the performance of an Ambassador is evaluated in an IER, as when an untenured officer receives his first EER. We conclude that “[c]riticisms included in the final [evaluation report] should not come as a surprise to [any] rated employee.” Accordingly, because we see no difference between the impact of performance criticisms in an EER and an IER on an employee’s career opportunities, we conclude that any employee whose work performance is evaluated in an IER, as in an EER, has a right to be notified and counseled about any perceived deficiencies and given a reasonable opportunity to improve before those deficiencies may be included in either evaluative document.

The parties do not contest that grievant received no counseling about any of the criticisms about her performance that were stated in the IER at issue. Grievant presented evidence that shortly before the OIG began its inspection at post in November 2011, the DAS from the regional bureau (and the Office Director visited and met with Mission employees in October. It is unclear whether these individuals received the same information as the OIG team, but grievant reports that neither of them counseled her on any of the matters later identified as performance weaknesses by the OIG team. If grievant’s superiors were made aware of any shortcomings in her work performance, then they should have, but did not, counsel her about them. If they were unaware of any performance deficiencies, then the Department must concede that grievant’s superiors could not, and did not, counsel her. In the absence of counseling, grievant did not have the opportunity to try to improve.

The Department argues that grievant was not entitled to be counseled on matters about which her supervisors were not aware. We do not agree. The fundamental fairness of a performance evaluation hinges on the provision of notice to the rated employee of his or her deficiencies, coupled with a reasonable period in which the employee can make efforts to improve. If a supervisor is unaware of the deficiencies, it is true that he or she cannot counsel the employee, but, it follows, then, that, unless the employee was independently aware of performance deficiencies, he or she ought not be negatively evaluated on those deficiencies of which neither the employee nor the supervisor were aware.

The Department also asserts that even in the absence of counseling, the criticisms contained in grievant’s IER should not have come as a surprise to her because she should have known of the morale problems existing at post. In support of this assertion, the Department provides numerous statements from Mission employees expressing their beliefs that grievant was aware of the problems raised in the IER, but failed to manage them. Grievant responds that not only did her supervisors not tell her of the employees’ complaints, but the employees themselves did not inform her. She speculates that “[i]n hindsight, I recognize that the DCM may have been shielding and insulating me from staff dissatisfaction.” She also cites a number of employees who stated that they did not think she was aware of how the DCM was behaving or how it was undermining morale.

Bureaucratic high drama,very instructive, read it below:

 

 

 

 

 

 

The Cautionary Tale of Raymond Maxwell: When the Bureaucracy Bites, Who Gets The Blame?

— Domani Spero

 

Last week, we posted a Snapshot: State Dept Key Offices With Security and Related Admin Responsibilities and wondered why Raymond Maxwell’s former office as Deputy Assistant Secretary at the NEA Bureau did not get an organizational box. Our readers here may recall that Mr. Maxwell was one of the bureaucratic casualties of Benghazi.  Diplomatic Security officials Eric Boswell, Charlene Lamb, Steve Bultrowicz and NEA official, Raymond Maxwell were placed on paid administrative leave on December 19, 2012 following the release of the ARB Benghazi Report. On August 20, 2013, all four officials were ordered to return to duty. Mr. Maxwell officially retired from the State Department on November 30, 2013. Prior to his retirement he filed a grievance case with HR where it was denied and appealed the case to the Foreign Service Grievance Board where it was considered “moot and thus denied in its entirety.”

Our blog post last week, also received the following comment from Mr. Maxwell:

“[M]y grievance was found to have no merit by HR, and earlier this month, the FSGB found that the State Department made no errors in the way I was removed from my position, shamed and humiliated in the press, and placed on admin leave for nine months, Further, the FSGB found that I was not entitled to the public apology I sought in my grievance because I had retired. I have two options now. I can spend a great deal of money suing the Department in local courts, or I can let it go and move on with my life. My choice of the latter option neither erases the Department’s culpability in a poorly planned and shoddily executed damage control exercise, nor protects future foreign service officers from experiencing a similar fate. There is no expectation of due process for employees at State, no right to privacy, and no right to discovery.”

We spent the weekend hunting down Mr. Maxwell’s grievance case online; grievants’ names are redacted from the FSGB cases online. When we finally found it, we requested and was granted Mr. Maxwell’s permission to post it online.

The Maxwell case teaches us a few hard lessons from the bureaucracy and none of them any good. One, when you fight city hall, you eventually get the privilege to leave the premises. Two, when you’re run over by a truckload of crap, it’s best to play dead; when you don’t, a bigger truckload of crap is certain to run you over a second or third time to make sure you won’t know which crap to deal with first. But perhaps, the most disappointing lesson of all — all the good people involved in this shameful treatment of a public servant  — were just doing … just doing their jobs and playing their roles in the proper functioning of the service. No one stop and said, wait a minute …. They tell themselves this was such a  sad, sad case; they feel sorry for how “Ray” was treated. It’s like when stuff happens, or when it falls — se cayó. No one specific person made it happen; the Building made them do it. The deciding officials apparently thought, “This was not an easy matter with an easy and obvious resolution.” Here — have a drink, it’ll make you feel better about looking the other away.  See he was “fired” but he wasn’t really fired.  He was prevented from entering his old office, and then not really. Had he kept quiet and did not write those poems …who knows, ey …

We’re embedding two documents below –1) Maxwell’s FSGB case, also available online here (pdf); and 2) an excerpt from the Oversight Committee report that focused on Mr. Maxwell’s  alleged “fault” over Benghazi. Just pray that this never happens to you.

 

 

Below excerpted from the House Oversight Committee report on ARB Benghazi:

 

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Former AFSA Presidents to SFRC: Delay Approval for FSO Dana Smith as Qatar Ambassador

— Domani Spero

 

Eleven former presidents of the American Foreign Service Association (AFSA), the professional association of the United States Foreign Service have written to the Senate Foreign Relations Committee (SFRC) requesting that the Committee postpone consideration of FSO Dana Shell Smith’s nomination as ambassador to Qatar until the Foreign Service Grievance Board (FSGB) has made a decision in the case related to Ms. Smith and another senior FSO, Susan Johnson.  Ms. Johnson, the immediate former president of AFSA served two terms from 2009-2013.

The letter says that the former AFSA presidents, which includes seven former ambassadors, “firmly believe that Ms. Smith  has not demonstrated the judgment or temperament to shoulder the responsibilities of Chief of Mission.” 

Ouchy!

It adds that “Ms. Smith’s actions are central to a formal Grievance brought against the Department of State by Ms. Susan R. Johnson, also a Senior Foreign Service Officer and President of AFSA at the time she co-authored an op-ed that stimulated negative Department reaction.

image via cspan

Excerpt from the letter:

 Ms. Smith and Ms. Valerie C. Fowler, then Principal Deputy Assistant Secretary and Deputy Assistant Secretary respectively, misusing their official positions and authority over senior assignments and career advancement in order to convey personal views, authored a factually incorrect letter-petition sent through State Department e mail to other FSOs in senior positions, publicly attacking Ms. Johnson on an ad hominem basis for the op-ed she co-authored about the declining role of the Foreign Service.

Senior levels of the Department declined to acknowledge the behavior of Ms. Smith and Ms. Fowler as improper, unprofessional and unprecedented.    Instead the Department condoned the impropriety and compounded the Grievance by nominating one of authors of the ad hominem letter to the senior Foreign Service promotion board which reviewed and did not recommend Ms. Johnson for promotion.   This nomination, the letter-petition and the Department’s inaction may have tainted the board and denied Ms. Johnson a fair promotion review.  Individually and collectively, these actions send a chilling message that speaking out about or questioning personnel policies that lead to the weakening of the Foreign Service as a professional cadre may put careers at risk.

Valerie C. Fowler named above is now the Principal Deputy Assistant Secretary for Public Affairs in the R Bureau. PDASes do not need Senate confirmations. As an aside, have you noticed that the R Bureau now has 15 senior officials, all non-career appointees except for five FSOs?

According to her LinkedIn profile, Ms. Johnson is currently a senior fellow at the Academy of American Diplomacy where she is working on the latest AAD study-report on strengthening Foreign Service professionalism. The April 2013 op-ed referred to in the letter to the Senate is online at WaPo (see “Presidents are breaking the U.S. Foreign Service).” That op-ed piece was authored by Ms. Johnson who was then AFSA president, Ronald E. Neumann, a former U.S. ambassador to Afghanistan and president of the American Academy of Diplomacy, and  Thomas R. Pickering, a former undersecretary of state, and chairman of the AAD board.

The Senate letter was from the following former AFSA presidents: Ambassador Thomas Boyatt, Ambassador William Harrop, Ambassador Alphonse La Porta, Ambassador Theodore Eliot, Ambassador Dennis Hays,  Ambassador J. Anthony Holmes, Ambassador John Limbert, and senior  FSOs F. Allen “Tex” Harris, Theodore Wilkinson, Marshall Adair, and Kenneth Bleakley. Their letter specifically requests that consideration be postponed “until the Foreign Service Grievance Board has made a decision in the case and forwarded the file to the Committee.”

WaPo’s Federal Eye has additional details of this “family” feud:

State did not permit interviews with Smith and Fowler. Doug Frantz,  an assistant secretary of state, said the letter asking the committee to delay action on Smith “contained errors.”  He noted that Johnson’s grievance “was filed subsequent to Ms. Smith’s nomination.” He added that Johnson could have requested Fowler’s recusal from the board, but did not.

Though the letter from Smith, Fowler and the others to Johnson was sent by government e-mail, Frantz said it “was intended to be a private communication from AFSA members to the head of their association.” It’s not private now.

We should note that Douglas Frantz was appointed Assistant Secretary for the Bureau of Public Affairs in 2013. Prior to Ms. Smith’s nomination as ambassador to Qatar, she was Mr. Frantz’s top deputy as Principal Deputy Assistant Secretary of State in the Bureau of Public Affairs (2011-2014).

Also, the average time for consideration of a Foreign Service grievance from time of  filing to a Board decision was 41 weeks in 2011 and 33 weeks in 2012.

This could take a whole tour …

Or … maybe not.

Today, the Senate Foreign Relations Committee (SFRC) cleared Ms. Smith’s nomination for the Senate’s full vote.  Unless a Senate hold suddenly materialize, we anticipate that this nominee and a whole slew of ambassadorial nominees will be confirmed as Congress runs off to its summer vacation in August.

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Foreign Service Grievance Board Website Missing — Look 👀 It’s Now on a Milk Carton!

— Domani Spero

For sometime now, we could not find the website of the Foreign Service Grievance Board (FSGB). Today, we look for it again and we found this error message once more.

 

Screen Shot 2014-04-30

We noticed it’s been like that for days.  We don’t know what happened to it or when it actually started with an error like that. So — we thought we’d put it on a milk carton. Was it moved?  Have you seen it behind the firewall? What happened to it?

FSGBmissing

 

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IERs: We’re Not Doing ‘Em Anymore, We’re Doing Something Better — Oh, Smashing, Groovy!

— Domani Spero

We’ve been harping about the termination of the OIG prepared report cards (officially called Inspector’s Evaluation Reports) for ambassadors and senior embassy officials. For career diplomats, these reports used to be sent to the Director General of the Foreign Service (DGHR) for inclusion in the employees’ official personnel files (OPFs) and were accessible to members of the FS Promotion Boards.  For political appointees, these reports were previously sent to the White House.

The OIG spox told us last week that “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.” We’ll have to wait and see what this transparency looks like. We must say, however, that even if  this were true, the fact remains that “senior official performance issues” will no longer be included in the information available to the Promotion Boards. So basically that DCM over there who caused the resignation/retirement/curtailment of FSOs from post for workplace bullying may be penalized in an OIG report that when released to the public may/may not have redactions, but will suffer no consequence when promotion time comes.

Yup, we’re beating this dead horse to death because …

It is true that Inspector’s Evaluation Reports  (IERs) are “non-public documents processed internally within the Department and used for performance evaluations of senior Department leadership”but as we’ve blogged last week, some of these cases do end up in the Foreign Service Grievance Board. And one of these IERs was published in full (stripped of identifying details) in the official record of proceeding.  The consequence in this 2004 case, included the curtailment of the second highest ranking embassy official from post, a year before the scheduled conclusion of his tour. The official subsequently grieved the IER, prepared following a post inspection conducted by State/OIG, alleging that it “did grievous injury to [his] professional reputation and career prospects through distorted and defamatory allegations of managerial negligence.”  In dealing with the various arguments by official/grievant that the IER was false and inaccurate, the Grievance Board found that the official/grievant “failed to shoulder his burden of proof” and denied it in its entirety.

The following IER exhibit is extracted from FSGB 2004-055:

 {Grievant} has served as Deputy Chief of Mission at {Host City} at perhaps the most demanding time in this embassy’s history.  The political and security situation in the nation is highly dynamic, as {blank} insurgents use violence in their efforts to undermine the government, impeding economic development and regional stability.  Tourism has dropped, the safety of remaining Americans has become a constant concern and U.S. engagement with the government of {Host Country} has increased exponentially.  The new U.S. program of military assistance has jumped to $20 million and the budget for longer-term economic and social assistance is at an all-time high of $42 million.  The expansion in U.S. engagement has been matched by dramatic growth of embassy staff.  Over the past year, there has been an increase of more than 50% in State Department American staff – primarily junior officers and specialists in the consular and administrative sections.  This situation demands strong, engaged leadership.  Unfortunately, the management of Embassy {Host City} has not risen sufficiently to meet this challenge.

The ambassador delegated authority for overseeing overall operations of this mission to {Grievant}.  This has included chairing country team meetings, meeting regularly with heads of mission elements, clearing and editing the majority of cable traffic and handling personnel and management problems.  {Grievant} has also had to take center stage in coordinating the assessments of the {blank} threat and communicating and defending that assessment to Washington.  Perhaps, this was too much delegation.  The result has been a daunting workload and a time management problem, with key DCM functions neglected.

Matching the ambassador’s focus on our foreign policy agenda, {Grievant} has worked hard to advance our goals of increased economic and security support to the government of {Host Country} to help combat the {blank} insurgency.  He has been instrumental in helping craft U.S. policy and has carefully coordinated the efforts of embassy sections and agencies working on this priority.  He has also engaged effectively with the {blank} and {blank} embassies to garner their support. {Grievant} worked closely and successfully with the RSO and ADMIN to press Washington for the resources to relocate the vulnerable American Center.  In addition, he successfully worked with the government to overcome legal obstacles to security upgrades at The [sic] embassy’s downtown compound. and [sic] problems related to visas for {Host Country} residents immigrating to the United States.  These are considerable achievements, but they came at a high price.  {Grievant} has generally remained subsumed in policy activities to the detriment of basic management of the embassy.  Tied to his desk, he has not been a visible presence around the mission and has failed to address some key personnel and management problems effectively.

While many staff declared great respect for {Grievant}’ deep experience in {region} and his political skills, their overall assessment of him as a manager and leader was poor.  He received low scores in most categories of OIG questionnaires assessing leadership and direction, with particular weakness in coordination, vision/goal setting, engagement, feedback, judgment and attentiveness to morale.  His lowest mark was in the area of problem solving.

Morale has suffered and employee relations have been strained due to management shortcomings and the intimidating atmosphere some staff face at post.  {Grievant} is not the intimidator.  Quite the contrary, he was appalled at this situation and had consoled officers who were the victims of this behavior.  He did try to diffuse these problems somewhat, but did not deal with them sufficiently.  Poor management practices and the abusive behavior by some key officers to American and local staff were allowed to persist.

Finally, {Grievant} has not provided necessary guidance and mentoring of the many junior officers at this mission.  Indeed, he claimed that – having not had State Department training for a decade – he only became aware of the extent of his responsibilities for them earlier this year, at a management conference in {Embassy}.  Due to the poor management of the post and the abusive atmosphere noted above – some of these junior officers told OIG inspectors that they were now questioning whether they would remain in the Foreign Service.

So now, no more IERs, best try the um …

Pardon me?  You expect that the members of the Promotion Panels will now dig up the unredacted OIG reports when they deliberate the promotability of senior employees?  As Austin Powers, International Man of Mystery used to say, “Oh, smashing, groovy!”  

For reports on performances with redactions, see  the previous OIG reports on US Embassy Islamabad and Constituent Posts, and US Embassy Lebanon; for reports on performances with little or no redactions, see the ones on Luxembourg, Malta, Kenya.

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Joan Wadelton: Time To Fix The State Department (via WhirledView)

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— Domani Spero

We have previously posted about the case of FSO Joan Wadelton. (See Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to CongressGAO Examines Foreign Service Promotion Process — Strengthened But Documentation Gaps Remain). She is now on her tenth year of a legal dispute with the Department of State’s Bureau of Human Resources (HR). She recently guest posted at WhirledView and put her views on the record  “about how to correct the systemic failings that I have encountered over the last 10 years in the Bureau of Human Resources, the Office of Inspector General (OIG) and the Office of the Legal Advisor.” Quick excerpt below:

The pervasive lack of oversight has led to near total impunity for those guilty of incompetence, cronyism and corruption within State.  A small group of career officials has taken advantage of this to gain control of the bureaucracy’s administrative functions.  Their pernicious influence has persisted for years.

The longevity of the group has been made possible by its control of the personnel system.  Senior managers at State stay in place for years – and when they do retire, they are rehired in a lucrative pay status, allowing them to remain in senior positions for more years.   Thus, the same people turn up repeatedly in ambassadorships and assistant secretary and deputy assistant secretary jobs.

Not only does this discourage fresh thinking, it has bottled up the personnel system at the top.  With the jobs at the higher ranks endlessly filled by the same people, the cohort five or 10 years behind them in the career service cannot move up to become the next generation of leaders.  And as a consequence, many FSOs are forced to retire at the peak of their expertise.

Members of this inner circle have used their control of HR to give themselves and their friends promotions, prestigious assignments, cash bonuses and jobs for family members.  Conversely, they have used HR as a weapon against employees they dislike – including removing them from promotion lists and blocking plum assignments and cash bonuses – no matter how qualified those disfavored people might be.

Ms. Wadelton  was a Foreign Service Officer from 1980-2011.  She served in Africa, Latin America, Russia and Iraq.  In addition to assignments in the State Department, she was an advisor to the Senate Foreign Relations Committee and a director of the Office of the US Trade Representative.

Continue reading Time to Fix the State Department.

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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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Snapshot: Foreign Service Grievance Board Statistics — 2012

— Domani Spero

We last posted about this in Foreign Service Grievance Board: Out With The Old, In With The New — Website.  Below are the numbers for calendar year 2012. FSGB did not make this available until about September this year.

Screen Shot 2013-09-28

In 2011, the average time for consideration of a grievance case was 41 weeks, so the Board had been able to shaved off 8 weeks from the process in 2012.

Below is the FSGB’s summary of its cases, extracted from the 2012 annual report posted at fsgb.gov:

EERs/IERs/OPFs 

The Board decided 16 cases in which the grievants contested some aspect of material in their Official Performance Files (OPF), which provide the basis for promotions and other career decisions. The cases included a variety of claims: late and missing awards; falsely prejudicial material; lack of prior counseling on perceived performance deficiencies; and procedural errors. The Board affirmed the agency’s decision in eight of the cases; reversed the agency in five cases; and partially affirmed/partially reversed in one case. One case was dismissed for lack of jurisdiction, and two were settled.

In one case, the Board rever reversed a decision by the agency that the grievant had not met the standards of her class. The Board found that the agency had violated several of its own regulations by not providing grievant written notice of performance deficiencies or adequate counseling. It also found that the record did not support the conclusion that the grievant had not met the standards of her class. The Board made the relatively unusual recommendation in this case that the agency grant the grievant a retroactive administrative promotion.

In another case, the Board found that the many procedural errors incurred in processing the grievant’s OPF for tenure review cast serious doubt on whether the grievant had received a fair review in a year in which he was denied tenure. As a remedy, it directed that the grievant’s OPF be placed before reconstituted tenure and selection boards.

Financial Cases 

The Board resolved 20 cases involving financial disputes this year, as compared to eight cases the previous year. It affirmed the agency decision in 13 of those cases, and partially affirmed and partially reversed in three cases. Three cases were settled and one was dismissed for lack of jurisdiction.

The three cases in which the agency was partially reversed involved reimbursement for the cost of vaccinations; credit for prior work experience in setting initial salary; and reimbursement for the shipment of HHE effects to grievant’s separation address upon his retirement. Six of the cases in which the agency decision was affirmed also involved challenges to the grievant’s starting salary.

One of the more complex financial cases involved the shipment of wood flooring, doors, and door frames by grievants in their household effects. The agency characterized the items as construction materials rather than household effects, and charged grievants for their shipment. The Board upheld the agency’s finding that the items could not properly be considered HHE. (In a separate action, USDA found the wood to be an endangered species that could not be imported legally unless it was part of HHE, and the items were eventually confiscated and destroyed.)

Disciplinary Cases 

The Board decided 12 disciplinary cases this year involving a range of issues: inappropriate behavior toward women; extramarital relationships; lack of candor; drinking while armed; failure to report contacts; unauthorized travel; violation of the agency’s Cyber Security Policy; violation of an embassy vehicle use policy; drunk and disorderly conduct; and misuse of USG equipment. The Board affirmed the agency decision in four cases; partially affirmed and partially reversed in two cases; and reversed in one case. Five of the cases were settled.

Separation Cases 

The Board addressed 12 cases involving the potential separation of the employee. Four of the cases involved separation for cause for misconduct. The other eight involved recommendations for separation by the Performance Standards Board for failure to meet the standards of the class; failure to become tenured; failure to meet an agency’s language requirements; and suspension of the employee’s security clearance. Eleven of these cases were settled and/or withdrawn. In the remaining case, the Board affirmed the agency’s decision to separate the employee for cause. No hearing was held, however, because the employee was living outside the country and failed to respond to repeated attempts by the Board and the agency to schedule a hearing.

Assignment 

Three grievants claimed that assignment actions violated agency regulations and policies. One grievant challenged the agency’s decision to direct a third assignment when his second assignment as a junior officer was curtailed for medical reasons. A second grievant objected to the agency breaking a linked assignment to a follow-on post when he curtailed from Afghanistan under conditions that were considered both medical and voluntary. The Board affirmed the agency decision in both cases. The Board dismissed the third grievance, in which the grievant claimed that the agency had violated merit system principles by not giving him an at-grade assignment, for lack of jurisdiction.

Other 

Five cases fell outside the above categories. These cases involved claims regarding non-selection for a position as an Eligible Family Member; an improperly delayed investigation by Diplomatic Security that resulted in a disrupted career and legal fees; statements made in a Report of Investigation that allegedly discriminated against grievant on the basis of disability and mental illness; improper calculation of grievant’s Time in Service date; and the agency’s improper failure to extend grievant’s retirement travel date. Three of the cases were dismissed for lack of jurisdiction and/or timeliness. One was settled. The Board affirmed the agency decision in the final case.

We will post separately the judicial actions on the 2012 FSGB cases.

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