Category Archives: Grievance

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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DS Agent Charged With “Notoriously Disgraceful Conduct” Gets Three Days Suspension

– Domani Spero

Remember back in 2010 when HeraldNet reported that a federal agent was arrested for assault in the Snohomish County of Washington State? Quick recap:

“The man was arrested June 17 for investigation of second-degree assault. Deputies seized 15 guns from the home, including his duty weapon, according to a police affidavit filed in Everett District Court.

He told investigators that he is an agent with the U.S. Department of State in Seattle. His wife told authorities that he is a diplomatic security officer.”

See DS Agent Arrested After Wife Reports Assault.

The agent’s name was never publicly released.

But — there is a grievance case (names redacted, of course) that is identical in details and timing to the reported case.  A Motion to Exclude order by the Foreign Service Grievance Board (FSGB) on the grievance filed by an unnamed FS-03 Diplomatic Security (DS) Special Agent provides details about a 2010 disciplinary case for “notoriously disgraceful conduct.”  While we cannot say with certainty that this is the exact same case, the 2010 news report made mention that the  “woman complained of blurred vision and head pain” while the 2010 FSGB case mentions that the “Grievant’s wife complained of blurred vision and head pain.”The news report and the grievance case both notes that the incident happened on June 17, 2010 and that the wife was taken to a hospital (location not unidentified in the grievance records).

Below are details extracted from the redacted FSGB 2012-045  ROI dated June 30, 2010, publicly available via FSGB.gov

Grievant is a married DS Special Agent with two children, aged approximately [REDACTED]. On June 17, 2010, while he was assigned to the Diplomatic Security Field Office, grievant was involved in a violent altercation with his wife in his home while his children were at home.

Grievant’s wife called the police who, after interviewing both adults, arrested grievant and charged him with assault in the fourth degree. In a statement provided to the Sheriff’s Office immediately following the incident, grievant reported that he and his wife had had an argument over the contents of messages on his government issued cell phone. Grievant reported that his wife grabbed his phone and when he grabbed it back, she slapped him in the face. Grievant claimed that he stood up from a seated position on the bed in the master bedroom and stretched out his arm to prevent his wife from striking him again, which resulted in her falling backwards and hitting her head on the floor.

Immediately following the incident, grievant’s wife provided a sworn statement to the law enforcement responders in which she claimed that after she slapped grievant, he picked her up and “body slammed” her to the floor, then grabbed her head striking it against the floor four to five times. Grievant’s wife complained of blurred vision and head pain and was taken to the hospital. A CT scan of her head was taken that revealed a palm-sized “subarachnoid hemorrhage within the inter-hemispheric fissure and right cingulated sulcus,” which was described as a bleeding within the brain. Notes on her medical record indicated, “[H]ead slammed into floor repeatedly.” Grievant’s wife was transferred to a second hospital for further examination and evaluation by a neurologist. The neurologist ordered her hospitalized overnight for observation and assessed her condition as “traumatic subarachnoid hemorrhage.”

In a follow up visit on June 19, the Sheriff’s Office took photographs of grievant’s wife, noting two bruises on the left side of her face, near her eye and cheek, that were approximately the size of a quarter. She then sought another CT scan to determine if her cheekbone was broken, but it was not.

As a result of the altercation with his wife, grievant was placed on limited duty status and was restricted from using his government-issued firearm and DS credentials. Grievant’s security clearance was suspended from September 10, 2010 until April 17, 2012. Reports of the incident appeared on a local television news program and three internet sites. In these media reports, grievant was identified as a DS Agent with the Department of State in [REDACTED]. The articles described the altercation and one mentioned the injuries sustained by grievant’s wife.

According to the Record of Proceeding (ROP), the grievant entered into an Order of Continuance of the assault charge that deferred all court proceedings arising from his arrest for twelve months on December 14, 2010.  On May 4, 2011, after grievant fully complied with the terms and conditions of the continuance order, the case against him was dismissed.

On December 19, 2011, the Director of Employee Relations proposed to suspend grievant for five days without pay and place a letter of suspension in his official performance file for two years or until review by two promotion boards. Grievant appealed this decision and on March 4, 2012, the Department upheld the charge of Notoriously Disgraceful Conduct, but reduced the suspension to three days.

The case is available on pdf file here.

Here is what 3 FAM 4139.14 says about Notoriously Disgraceful Conduct: “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.”

It looks like the judgment of “notoriously disgraceful conduct” does not even require that one be publicly identified, just that the potential that the incident be widely known exist (note specific mention of media reports, one tv program and three Internet sites).

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CyberSecurity Month PSA: Installing Mozilla Firefox Could Be Hazardous To Your Career …

– By Domani Spero

On September 30, President Obama proclaimed October 2013 as National Cybersecurity Awareness Month.  In light of that proclamation, we’re highlighting a grievance case by a Foreign Service officer who downloaded and installed the Mozilla Firefox browser which potentially cost him a promotion.  The State Department proposed to issue him a Letter of Reprimand. The officer filed a grievance challenging the issuance of a Letter of Reprimand. For relief, he asks that the decision to impose discipline be rescinded and the discipline letter be removed from his Official Personnel File (OPF). In addition, he requests that the 2011 Selection Board’s decision to promote him be given immediate effect, and that he be reimbursed for attorney’s fees. The Department denied his grievance on March 13, 2012. He appealed that decision to the Foreign Service Grievance Board on May 14, 2012.  On December 2012, the Board found that grievant’s argument was without merit and sustained the proposed discipline.

This case is available publicly (pdf) from the newly relaunched fsgb.gov.  (BTW, the site is now searchable, yay!) As far as we are aware, the State Department still only allows two browsers for official use — Internet Explorer and more recently during Secretary Clinton’s tenure, Google Chrome was approved for department-wide use.   According to the browser stats maintained by w3schools.com, Internet Explorer’s downward use continues to hover around 12% in 2013, while Chrome continues to climb above 50 percent. Firefox’s usage remains at around the 27% mark.

Now some details on this case extracted from the record of proceeding:

Grievant, an FS-03 Officer, installed a software application, Mozilla Firefox Browser, on his workstation in August 2010. Grievant admitted that he installed the software because he was concerned that his savings accounts may have been the subject of identity theft and he wanted to check his credit union account on-line with what he thought was a safer web browser. The Mozilla software was found to be an executable application so that by downloading it grievant violated the Department’s Cyber Security Policy, and such action could have led to disruption of the Department’s cyber infrastructure. Grievant argued that he was unaware that the Mozilla Browser was an executable file when he installed it, and therefore, did not have the intent to violate the policy. The Board found that grievant’s argument was without merit and sustained the proposed discipline.

Anyone with questions about executable files should check the list here and best consult post’s information systems security officer (ISSO).

Also it might not be bad to get acquainted with 12 FAM 590 CYBER SECURITY INCIDENT PROGRAM if you haven’t already.

The government’s charge:

The Department charged the grievant with violating the directives and procedures for Cyber Security contained in 12 FAM 592.2b 8. The charge is based on grievant’s action in downloading the Mozilla Browser on his workstation on August 9, 2010. A revised cyber security program was implemented in 2007 throughout the Department. The Department asserts that grievant’s failure to comply with the cyber security policy could have resulted in damage or risk to the Department’s cyber infrastructure. The Mozilla Browser could compromise the integrity of the system and introduce a virus or malicious code.

Grievant was informed on December 22, 2010 by the Bureau of Diplomatic Security that the installation of the Mozilla Browser by him was a violation of the regulation. Grievant was further advised that the violation determination would be forwarded to the Bureau of Human Resources. Grievant was advised of his right to appeal the finding of a violation by the Bureau of Security, but chose not to do so. He did submit a Statement of Understanding acknowledging receipt of the December 22, 2010 letter and the Department’s security policies.

The Department dismisses grievant’s argument that his action in downloading the Mozilla browser required “mens rea” or a ”deliberate” act on his part to download an application that he knew was not authorized for installation. In his view, the Department has failed to prove that he made such a deliberate decision. He asserts that he did not actually know that the software was not authorized, and that his actions were inadvertent. He explains that he was ignorant that the software was an executable application that was not authorized. He states that he “lacked the knowledge of the difference between a search engine website and web browsing software.” He contends that the Department’s decision to not charge him with the downloading of the Shockwave program demonstrates that his action was not deliberate.

The FSO’s defense and argument:

Grievant has admitted that he installed Mozilla to assist himself with issues concerning his personal savings accounts. He could have used his personal computer to deal with the “spoofing” problems he was having with the possible identity theft matters. Finally, grievant should have reported the “spoofing” problems to the ISSO and checked with that office to determine if he could download Mozilla.

Grievant asserts that the proposed Letter of Reprimand should be rescinded because he lacked the intent necessary to violate the regulation. In 2009 – 2010, grievant was the victim of identity theft. He lost several thousand dollars to the thief, had to cancel his credit cards on two occasions, and was informed that his medical records were among those stolen from an Office of Medical Services database. On August 9, 2010, he received on his agency email four “spoofing” messages purporting to be from his credit union and his retirement fund.

Grievant was concerned that his savings accounts might have been stolen and his Department computer may have been compromised. He installed the Mozilla Firefox browser on his workstation instead of other browsers, such as Google, because he thought that Mozilla was a safer web browser. He was quickly informed by ISSO that Mozilla was not allowed to be downloaded on the Department’s system since it was an executable file. Grievant explained his concerns about his savings accounts and the reason that he downloaded the browser. He stated on several occasions that he did not know Mozilla was an executable file in violation of the regulation, and believed it to be a secure web-based browser. Grievant apologized and accepted responsibility for what he believed was an “inadvertent download of an executable file”.

Grievant argues that he should not be disciplined for downloading the Mozilla browser. In his view, the Department must show that it was his conscious object to download an executable file on to the Department’s network. He admits that his action was prohibited by the FAM, and that he exposed the Department to serious risk by downloading the browser on his workstation. However, he argues that the FAM requires specific intent to violate the regulation, which he did not have when the downloading took place. Grievant argues only deliberate acts, not negligent ones, are punishable under the regulation. He believes it is unjust to punish “a deliberate act that was believed would cause only a permissible result.” His action was negligent and he acted out of ignorance believing Mozilla to be a web based application rather than an executable file. In essence, he states that he believed that he was doing nothing more than accessing a website and that he lacked the knowledge required to make his action of downloading a deliberate violation of the regulation.

Grievant is remorseful and admits that he is fully responsible for his action. He did not know that he was downloading an executable file, and lacking that knowledge he did not have the mental state required by the regulation. Among other things, grievant asks that the decision to impose discipline be rescinded and the Letter of Reprimand be removed from his OPF. In addition, he asks that the Department give immediate effect to the 2011 Selection Board’s decision to promote him.

The FSGB was not persuaded:

Grievant intended to install Mozilla on his workstation. He engaged in a deliberate act. The fact that he was ignorant that it was an executable file in violation of the regulation does not obviate or lessen his culpability. As the Department points out, his action could have resulted in damage or significant risk to the Department’s cyber infrastructure, which could have caused major disruptions and loss of sensitive information. His admitted ignorance or lack of knowledge about Mozilla being an executable file does not excuse his action or his culpability for that action.

This is grievant’s first incident of any kind that caused him to be disciplined. As noted, his record is one of success and accomplishment. Grievant believes that discipline in this case is unjust. However, the proposed Letter of Reprimand is consistent with the penalties imposed in prior cases, and is reasonable under the facts of this case.

One related item, the agency’s cybersecurity was most recently in the news with a BuzzFeed exclusive report that the State Department Lacks Basic Cybersecurity. The report alleges that  “the State Department cable and messaging system, built and maintained — like the troubled ObamaCare system — mainly by large IT contractors, has routinely failed to meet basic security standards.” It further alleges that “There is hackable backdoor access to servers and the potential for spillage of classified information in the unclassified enclave.”  BuzzFeed says that it has  internal docs although those do not appear to be posted online at this time.  Read more here.

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Filed under Diplomatic Security, Foreign Service, FSOs, Govt Reports/Documents, Grievance, Regulations, Security, State Department, Technology and Work, Uncategorized

Former Iraq Envoy L. Paul Bremer Encounters Shoe Hurling Tradition in London

Two shoes went flying targeting L. Paul “Jerry” Bremer, former ambassador and Administrator of the Coalition Provisional Authority of Iraq following the 2003 invasion.  Mr. Bremer who was previously Ambassador to the Netherlands in 1983 and Ambassador-at-Large for Counterterrorism in 1986 still had good reflexes.

After the second shoe flew across the room and he failed to catch it, Mr. Bremer said,  “You should improve your aim if you want to do something like that.”

The shoe hurling incident happened at a meeting organized by a think tank at the British Parliament.  As the shoe hurler was removed from the room, the man could be heard shouting profanity addressed to Bremer, who he said is responsible for destroying his country.

Peace restored, Mr. Bremer who very quickly regained his composure told the attendees, “If he had done that while Saddam Hussein was alive, he would be a dead man by now.”

Well, actually, that would only be true if Saddam Hussein was the target of the shoe attack.

Press reports identified the shoe hurler as Iraqi national Yasser al-Samarani. He was later released on condition of not attending any future meetings or activities held at the House of Commons, according to British media.

Shoe hurling is a traditional Arab gesture of disrespect. This man made an effort to attend the meeting, and waited for his turn to speak to Mr. Bremer and publicly register his disrespect. Mission accomplished. The Iraq war may have been over for the rest of the world, but it will not be over for a long while for people like Yasser al-Samarani.
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Filed under Ambassadors, Americans Abroad, Diplomatic History, Grievance, Iraq