Category Archives: Leadership and Management

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.
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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:

 

 

 

 

 

 

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Death in the Foreign Service: Why we said “no” to an Embassy Information Sanitation Dude

– Domani Spero

 

In the next couple of weeks, we will try to revisit some of the topics that we have blogged about in the past but did not get a chance to follow-up.

In the last several years, we’ve covered  the deaths of State Department and Foreign Service personnel due to terrorist attacks, natural calamities, suicide, violent crime, and accidents (see In the Foreign Service: Death, Too Close An Acquaintance). Here are some of the blogposts we did,this is not an exhaustive list:

While we did receive a screaming owler one time when we were asking questions about a death in Afghanistan, not once have we ever received an email from a family member of a deceased employee asking us not to mention that their loved ones who died overseas worked for Uncle Sam, or refrain from noting the passing of loved ones who died in the service of our country. Not once.

In June this year, we blogged about a Foreign Service employee at the US Embassy in Moscow who was killed in a gas explosion there:

Two State Department sources confirmed that the employee, an OMS on official orders working at the embassy had died. After the embassy employee was heloed to a local Russian hospital, she was reportedly airlifted by the State Department soon thereafter to a special burn hospital in Linkoping, outside of Stockholm where she died a few days later.

A former co-worker at another post was concerned that there has been no public  statement about the employee’s death. “I would think the death of a diplomat would get something from AFSA or State, even if it was from an accident.”  We sent out several inquiries but no one would speak on the record.  Since the name has not been officially released, and no obit has yet been published, we will refrain from identifying the victim at this time.

This past August, a brief obituary of that employee appeared on State magazine, the official trade publication of the State Department and we blogged about it. Shortly after that, we received an email from an individual using a hotmail account:

Hi, Durron’s family did not want this information to be disclosed to the press. Please honor their request. Personally I share your view, but also honor the family’s wishes.

Moscow is hard post to serve, and the Embassy community was very shocked by this news. I personally know many people who lived in the apartment complex where she died (MFA apartment housing), and I was also shocked by this news. I can’t say any more about this unfortunately. The past year was very hard for Embassy Moscow, especially in light of the death of an FSN who was very much loved by all who worked there. 

The request, as you can see, is polite, even volunteering that the writer shares the blog writer’s view. Then the “guilty hook,” asking that we “honor the family’s wishes.” The writer did not/not present himself as a government  official, and seemed to only appear as an interested third party purporting to pass on the wishes of the deceased employee’s family.

Our correspondent, who could not get the deceased employees straight (Durron was the Consular Affairs employee who died in Florida), was in fact, an embassy official, basically asking us not to make a public connection to the death of the  USG employee who died in Sweden to the gas explosion in a USG (Russian MFA) housing in Moscow. We only knew that the individual is a USG official because of …Googles! Not sure the individual is still at post at this time.

Our gut feeling was that this is legitimate news; we blogged about the fact that an employee of the U.S. Government was injured in Moscow, and subsequently died from those injuries in Sweden. And we waited until there was an official obituary before we put the information together and named the deceased individual.  Three months after the incident.

Deceased individuals are not covered by the Privacy Act. That said, if a USG employee die overseas for whatever reason, should we be obligated to not/not report it if his/her family ask that it not be reported for privacy reasons? That’s not exactly the case here because we were only told second hand that the deceased’s family did not want it reported in the press (except that the death was reported in the publicly available State magazine). But the “what-if” was a dilemma we spent considerable time thinking about for a period of time.

How do you balance the public’s right to know with a family’s request for privacy?

We’ve consulted with a professional journalist we admire, and an authority on media ethics at the Graduate School of Journalism at UC Berkeley.   All agreed that 1) employees sent overseas are on official duty, and that any life-threatening mishap or death they suffer is by definition of public interest, and 2) that we ought to consider the request if it comes directly from a family member, and pull the blogpost down only if the family makes a compelling case that publication caused them or somebody else harm.  One surmised that the request received may have more to do with the State Dept’s own reasons or some fear of official embarrassment.

We did send a response to our “non-official” correspondent basically declining the request since he was not a member of the family.  We informed the writer that we would consider pulling the material down if we hear directly from the family and only if there is a compelling reason for the request. We also offered to write directly to the family if the official would provide us a contact email.  We certainly did not want to be insensitive and we understand that the incident occurred  at a challenging post, but the death of a Foreign Service person abroad is of public interest. That’s the last we’ve heard from that official via hotmail. And we would have forgotten about this except that it came to our attention  that the USG had been more aggressive about sanitizing this information than we first thought.

A journalist from a large media organization subsequently told us that he/she was privately admonished after asking publicly why the State Dept had not expressed condolences on the death of the employee in Moscow. The admonishment came from a USG official who again, cited the family’s privacy. From best we could tell, these contacts/admonishment to the journalist and to this blog came from two separate officials. How many other journalists (not just blogger in pjs, mind you) had been similarly admonished to not report about this death citing the family’s request for privacy?

In the aftermath of this incident in May 2014, we sent an email inquiry to the public affairs office of the U.S. Embassy in Moscow.  Our email got lost in a sink hole and we never heard anything back. We must note that this incident occurred after the departure of then Ambassador McFaul. It also predates the arrival of John Tefft, the current ambassador to Moscow and his the new public affairs officer there.

It goes without saying — but we’ll repeat it anyway —  that we clearly understand that accidents happen. And we’re not looking for a cover-up at every post unless it has to do with the furniture!  But, because there’s always a but — accidents do not absolve the embassy or the State Department from answering questions about the circumstances surrounding an employee’s death or at a minimum, publicly acknowledging that a death of an employee occurred overseas. We will be sensitive and respectful as we have always been, but we will ask questions.

What bothered us about this?  By citing the deceased family’s purported request for privacy, the State Department and Embassy Moscow basically shut down any further questions about the incident. How is it possible to have something of an information blackout on the death of an employee we sent overseas on the country’s behalf?

Whatever happened to that promised investigation?

We understand that then chargé d’affaires (CDA) in Moscow, Sheila Gwaltney  told personnel that they will be informed of the results of the investigation, regardless of the outcome. We sent an email inquiry to the analysis division of OBO’s Office of Fire Protection (OBO/OPS/FIR) requesting for an update to the fire inspector investigation. We received the following response on October 23 from Christine Foushee, State/OBO’s Director of External Affairs:

Thanks for your inquiry.  The investigation you’ve referenced is still ongoing, so we are not in a position to comment on results.

Per 15 FAM 825:

a. As soon as possible after being notified of a fire, OBO/OPS/FIR, will dispatch a team of trained fire/arson investigators to fires that resulted in serious injury or death; those where the cause is arson or is of a suspicious nature; those causing extensive damage or significant disruption to official activities; or those deemed to be of special interest to the Department of State.

b. Fire-related mishaps involving injury, illness, or death that meet criteria for Class A or B mishaps under Department of State policy will be investigated and reported using 15 FAM 964 requirements. An Office of Fire Protection official, in OBO/OPS/FIR, will be assigned to any Class A or B board conducted by OBO’s Office of Safety, Health, and Environmental Management, in the Directorate for Operations, (OBO/OPS/SHEM). In addition to addressing the root causes of the fire event, the mishap board report must evaluate the impact of Department of State organizational systems, procedures, or policies on the fire event. The report also could contain recommendations for specific modifications to such procedures and policies. Both OBO/OPS/FIR and OBO/OPS/SHEM receive copies of the report, and OBO/OPS/SHEM coordinates with the Department of State’s Designated Agency Safety and Health Official (DASHO) to meet 15 FAM 964 requirements. OBO/OPS/FIR reports findings and recommendations for corrective action to the Director of OBO, who informs the Accountability Review Board’s Permanent Coordinating Committee. (See 12 FAM 032.)

We sent another follow up email this week to State/OBO.  The explosion happened in May 2014. Here we are at the end of the year and we don’t know what happened to that investigation. Is this length of time typical of these types of investigations? We will update this blogpost if we hear from the fire people with something to say.

We think this a good opportunity as any to call on the State Department to voluntarily release an annual report of deaths of official Americans overseas.  DOD identifies its casualties — name, rank, age, state of residence, date and place of death, and cause of death — why not the State Department?  At a minimum there ought to be  an annual reporting of all deaths from unnatural causes of USG personnel and family members on government orders under Chief of Mission authority. Diplomatic Security already publishes an annual report,would it be too much to ask that they be allowed to include this information?

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Academy of Diplomacy’s Pickering and Neumann Warns Secretary Kerry About Risk Avoidance At All Cost

– Domani Spero

 

The American Academy of Diplomacy’s chairman, Ambassador  Thomas Pickering and its president, Ambassador Ronald Neuman wrote a letter last week to Secretary Kerry urging his “support to get America’s diplomats into the field and back into contact with local societies.” The group is concerned that the demand that civilian officers operate “at or near zero risk” undermines the effectiveness of American diplomacy and America’s national security interests.

Excerpt below:

As terrorist attacks have grown, security restrictions have become more intense. This has been necessary but is now too dominant in decision making. Many of us have run critical threat posts. We have no illusions about the need to calculate and mitigate risk. But ultimately we must all judge the relative risks of any action against its benefits to the national interest. What we see happening in far too many places are decisions reflecting Washington guidance to avoid risk at all cost. This approach is spreading from critical threat posts to other less threatened posts and personnel, creating a chilling effect for our diplomats attempting to carry out their missions through travel and contacts across a wider range of security environments.

The demand that civilian officers operate at or near zero risk undermines the effectiveness of American diplomacy and, by extension, America’s national security interests. Engaging with the local population and its leaders is crucial to the knowledge essential to sound policy. Failure to do so adequately is a short-term loss for the conduct of diplomacy and a long-term loss for policy formulation. We support the view taken by senior Department officials who have acknowledged the need for accepting prudent risk in the conduct of diplomacy. However, we believe that your own leadership must be engaged to reinforce these statements and the concrete actions need to convey to the field some acceptance of measured risk taking.

The Academy urge more training on risk management not just for officers but also for Chiefs of Mission:

Foreign Service Officers accept worldwide assignment and that includes a measure of risk; that idea needs reinforcement. More tradecraft training for officers borrowing from the best the US government has to offer may be useful. Greater education in risk management certainly is needed for Chiefs of Mission who must be empowered to make critical decisions. Chiefs of Mission are already charged with securing their staffs but need much more training in how to make security judgments. More resources need to be devoted to all these areas. Security officers need to believe that their task is to enable mission performance as safely as possible but not to avoid all risk.

The group believes that “a focused conversation with Congress is required to gain acceptance for the realities of the decisions needed” and tells Secretary Kerry that it is prepared to help in a dialogue with Congress but needs a “specific direction” from the secretary of state for current practices to change.

The American Academy of Diplomacy is currently working on a major study of what is needed to improve the professionalism of American diplomacy and the capacity of Foreign Service Officers.

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High Risk Pregnancy Overseas: State/MED’s SOP Took Precedence Over the FAM? No Shit, Sherlock!

– Domani Spero

 

The Foreign Affairs Manual says that it is the general policy of the Department of State “to  provide all medical program participants with the best medical care possible at post. In a situation where local medical facilities are inadequate to provide required services, travel to locations where such services can be obtained may be authorized.” (see 16 FAM 311).  Elsewhere on the same regs, the FAM says  that “a pregnant patient who is abroad under U.S. Government authorization is strongly encouraged to have her delivery in the United States. The patient may depart from post approximately 45 days prior to the expected date of delivery and is expected to return to post within 45 days after delivery, subject to medical clearance or approval.” (see 16 FAM 315.2 Travel for Obstetrical Care).

A grievance case involving a high risk pregnancy of a Foreign Service spouse was recently decided by the Foreign Service Grievance Board (FSGB).  This is one case where you kind of want to bang your head on the wall. The FAM gets the last word in the Foreign Service, but in this case (and we don’t know how many more), the State Department  ditched the relevant citation on the Foreign Affairs Manual in favor of a longstanding practice on its Standard Operating Procedure (SOP). Specifically, the Department’s Office of Medical Services (MED)  SOP. So basically, MED relied on its interpretation of the regulations contained on its SOP instead of the clear language included in the FAM.

No shit, Sherlock!

Excerpt below from FSGB Case No. 2014-007.

SUMMARY: During grievant’s tour in his spouse became pregnant. She had had five previous pregnancies, none of which resulted in a viable birth. The post medical team (FSMP) and the State Department Office of Medical Services (MED) both agreed that this was a very high-risk pregnancy and that the preferred option was that the spouse return to the U.S. as soon as possible for a special procedure and stay under the care of a single obstetrician specializing in high-risk care for the remainder of her pregnancy. Although MED authorized a 14-day medical evacuation for the procedure, it advised grievant that, under its longstanding practice, it could not authorize further medical evacuation per diem under 16 FAM 317.1(c) prior to the 24th week of gestation. MED instead directed grievant to seek the much lower Separate Maintenance Allowance (SMA).

Grievant claimed that the regulation itself stated only that per diem for complicated obstetrical care could be provided for up to 180 days, and therefore permitted his spouse to receive such per diem beginning in approximately the 10th week of pregnancy, when she returned to the U.S. for treatment. He also claimed that he was entitled to have his airline ticket paid for by the agency as a non-medical attendant when he accompanied his wife back to the U.S., since her condition precluded her from carrying her own bags.

The Board concluded that the agency’s regulation was not ambiguous, and that any clarification meant to be provided by the agency’s longstanding practice was both plainly erroneous and inconsistent with the agency’s own regulations, and arbitrary and capricious. We, therefore, did not accord any deference to the agency’s interpretation of its regulations by virtue of this practice, and relied instead on the language of the regulation itself.

Here is the FAM section on Complicated obstetrical care:

16 FAM 317.1(c):  If the Medical Director or designee or the FSMP [Foreign Service Medical Provider] at post determines that there are medical complications necessitating early departure from post or delayed return to post, per diem at the rates described in 16 FAM 316.1, may be extended, as necessary, from 90 days for up to a total of 180 days.  

More from the Record of Proceeding:

When FSMP contacted MED in Washington, DC, they were given the response that MED does not medevac for obstetrical care until after the 24th week of gestation. The 24th week of gestation is when the medical world deems a fetus viable outside of the womb. Grievant claims both FSMP and the post’s Human Resources (HR) reviewed the FAM and other MED documents to determine how MED handles high risk pregnancies at a hardship post and could not find any reference that limited a high risk pregnancy to the 24 weeks claimed by MED.

Grievant claims he contacted the head of MED and asked for an explanation as to why MED was not following 16 FAM 317.1(c), which allowed for medevac for high risk pregnancies. M/MED/FP responded with the following in an e-mail dated August 27, 2013:

This issue of how early a woman can be medevac’d for delivery comes up regularly. So does the situation of cervical cerclage – up to 80,000 procedures are done in the U.S. per year. While not in the FAM, MED has a long standing internal SOP that the earliest we will medevac a mother for obstetrical delivery is at 24 weeks gestation. 

Grievant claims that his spouse’s pregnancy was high-risk enough to qualify for medical evacuation prior to the 24 weeks’ gestation. Grievant also argues that every medical professional in and in Washington, including MED staff, agreed. Grievant argues that MED’s justification for how they choose which pregnancy to deem OB-medevac-worthy for high risk is ambiguous. Grievant takes issue with MED imposing internal rules that are not published in the FAM. Grievant claims that the alternatives offered by MED were not in accordance with 16 FAM 317.1(c).

What was the official State Department position?

The agency asserts that grievant’s wife was medevac’d to Washington, DC, to receive obstetrical care. MED did not believe there were medical complications necessitating early departure from post or delayed return to post. Thus, the agency claims, 16 FAM 317.1(c) does not apply to her situation.

Did it not matter that the FSO’s wife “had had five previous pregnancies, none of which resulted in a viable birth?”  The Department also made the following argument:

The agency further argues that, in any event, although not compelled by law, the Department’s Office of Medical Services (MED) has a longstanding internal Standard Operating Procedure (SOP) that the earliest MED will authorize a medevac of a pregnant woman for delivery, even in the case of complicated pregnancies, is 24 weeks’ gestational age. This SOP, MED asserts, is based on the medical community’s widely accepted recognition that the gestational age for fetal viability is 24 weeks. 

Ugh!

The ROP states that MED personnel communicating with both grievant and the post FSMP repeatedly relied on the SOP that no medevac would be provided prior to the 24th week of pregnancy as the basis for their guidance. They did not cite grievant’s wife’s particular medical circumstances as the rationale for denying an earlier continuous medevac.

You might remember that the last time MED failed to use common sense, the State Department ended up as a target of a class action lawsuit.

Here is the Board’s view:

It is the Board’s view that 16 FAM 317.1(c) is not ambiguous. It provides for the Medical Director or designee or the FSMP at post to determine if there is a complication requiring early departure or a delayed return, and authorizes up to 180 days’ per diem when such a determination is made. The entire context of the provision is to define what benefits are provided when based upon medical needs, and the provision appears to reflect the individualized medical decision making required in the case of complicated obstetrical care. Although the preceding provision, 16 FAM 317.1(b),8 places a set 45-day limit for per diem both before and after an uncomplicated pregnancy and birth, that limit is also, by all appearances, based on medical analysis of normal pregnancies and deliveries, which lend themselves to such generalizations. Airlines do not allow pregnant women to travel less than 45 days before birth, because of the risks involved. 16 FAM 317.1(b) recognizes and incorporates that medical evaluation under the circumstances of a normal pregnancy. Although not stated explicitly in the record, we assume that the 45 days of per diem permitted after delivery also reflects a medical assessment of recovery times under normal circumstances, which, because they are normal, can be generalized.
[…]
In the Board’s view, the longstanding practice is also arbitrary and capricious and an abuse of discretion. As stated by MED, the rationale for the 24-week practice is that a fetus is generally not considered viable before the 24th week of pregnancy. It is not based on, and does not take into consideration, whether the mother’s need for medical care can be provided safely at post prior to the 24th week, or whether the medical care needed by any fetus of less than 24 weeks to come to full term as a healthy baby can safely be provided at post. It is difficult to see any link at all between the rationale offered by State/MED with the recognition of medical needs established in the regulations.

It is the Board’s conclusion that 16 FAM 317.1(c) is not ambiguous, and that any clarification meant to be provided by the Department’s longstanding practice of requiring the 24-week waiting period in cases of complicated pregnancies is both plainly erroneous and inconsistent with the Department’s own regulations, and arbitrary and capricious. We, therefore, do not accord any deference to the Department’s interpretation of its regulations by virtue of this practice, and rely instead on the regulation itself.

To the extent that the agency is arguing that the SOP is freestanding and applies by its own terms, apart from 16 FAM 317.1(c), again, we conclude that the agency is in error. By the same analysis as outlined above, the SOP conflicts with the provision of the published regulations of the agency. An SOP may not take precedence over a regulation with which it is in conflict.

The Board’s conclusion, based on the record, is that this was a high-risk pregnancy, with risks to both the mother and the fetus, and that the necessary obstetrical care was in the U.S. Under these circumstances, medical evacuation per diem should have been authorized beginning upon the return of grievant’s wife to the U.S., and continuing for 180 days.

Doesn’t it makes you wonder how many high risk pregnant women on USG orders overseas were affected by this longstanding internal Standard Operating Procedure (SOP)?  If planning on getting pregnant overseas, read the redacted ROP below:

 

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US Embassy Hungary: A well managed, productive mission awaits Ambassador Colleen Bell

– Domani Spero

 

So apparently, Senator John McCain led a CODEL to the Munich Security Conference a couple weeks back last February and made a four-hour side trip to Budapest. Bloomberg View’s Jeffrey Goldberg writes that, he suspect, though he could not prove it, that the good senator from Arizona decided to meet with two dozen Hungarian journalists in Budapest mainly so that the delegation would be asked questions about a woman named Colleen Bell.

Who is Colleen Bell? Bell is a soap opera producer — “The Bold and the Beautiful” is her masterwork — who was nominated by Barack Obama’s administration to serve as U.S. ambassador to Hungary. Bell, one of Obama’s larger fundraising “bundlers,” bought this nomination with more than $500,000 of mostly other people’s money.
[…]
In Budapest, they’re highly interested in her. When a reporter, early in the press conference, asked McCain about Bell, a devilish smile played across his face.

“We’re very fortunate,” he said, “to have with us today the chairman of the committee that holds the hearings that these nominees come before, and that is Senator Murphy, and he is very knowledgeable about these issues.”

Three things then happened. First, most everyone at the press conference laughed. Second, one of the people who didn’t laugh, the aforementioned Senator Chris Murphy, a freshman Democrat from Connecticut, approached the podium as if it were covered in rat poison. Third, McCain winked — not at all subtly — at the three American journalists sitting in the front row.

This is a pretty hilarious piece, although definitely not/not hilarious if you are Colleen Bell. Just imagine being in her shoes — you have yet to arrived at your host country and a couple dozen journalists who presumably will cover your tenure in Budapest, were already laughing at your expense.

Screen Shot 2014-12-03

Reax via Twitter:

NYT’s Mark Leibovich, author of This Town, Two Parties and a Funeral — Plus Plenty of Valet Parking! — in America’s Gilded Capital says:

FP’s David Rothkopf thought this is bad news but ….

World News Tonight ponders the how:

Fox News talks credentials:

WaPo’s Daniel W. Drezner reacts to WH spox spin about this nominee. Really a bad sign when the spox pulls out the “I wasn’t part of this decision process” excuse.  The dudester is … who the heck expects the spokesman, even of the White House to be involved in the deliberation of ambassadorships?

Oh, John McCain. The former straight talker, and former presidential contender, is apparently not happy about this nominee according to ABC News. Although, we’re not sure if the senator has been happy about anything since 2008.

“We’re about to vote on a totally unqualified individual to be ambassador to a nation which is very important to our national security interests,” he said.

“I am not against political appointees … but here we are, a nation that’s on the verge of seceded its sovereignty to a neo-fascist dictator getting in bed with Vladimir Putin and we’re gonna send the producer of ‘The Bold and the Beautiful’ as our ambassador,” McCain said. (via)

 

Isn’t our capital city just the most marvelously enchanting reality show ever?

But there’s more.

Today, Reuters is reporting that Hungary’s Foreign Ministry summoned Chargé d’Affaires André Goodfriend, our acting ambassador at the U.S. Embassy in Budapest over comments made by Senator McCain on Tuesday, calling Prime Minister Viktor Orban a “neo-fascist dictator.”

This, we suspect, will not/not be a boring tour. The next time Senator McCain rants about Hungary, the MFA will be calling in the new ambassador. It would certainly help smooth relations if she is likable instead of grouchy.

In any case, Ambassador-designate Colleen Bell, the producer of ‘The Bold and the Beautiful’ will officially be our top American representative in Hungary once that country accepts her credentials. You may not like that, but the Senate confirmed her nomination and she’s one of ours now.  She will not only be the chief of mission at our embassy in Hungary, she will also be responsible for foreign service and other agency personnel and their family members at post. Embassy Budapest employs 95 Americans and 232 locally employed (LE) staff members, servicing five agencies. The total mission funding for FY 2013 was $17.5 million, which includes Department of State (Department) funding of $11.5 million and excludes U.S. direct-hire salaries. The total bilateral assistance for FY 2013 was $1.8 million.

We hope that the ambassador-designate spent the last year while waiting for confirmation to learn more about her host country. She’ll need it.  She will be America’s face in a country where the elected government doesn’t have a lot of fondness for America.  She did graduate with honors from Sweet Briar College with a bachelor’s degree in political economy, a dual major in political science and economics, so she’s not stupid, despite a near disastrous confirmation hearing. The good news is — she’ll assume charge of a mission that has been “A well managed and productive, and led by a talented chargé d’affaires(CDA),” who arrived in August 2013. (The Hungarian right is apparently hoping that CDA Goodfriend would be recalled or replaced).  According to the OIG inspectors, Chargé d’Affaires André Goodfriend effectively leads a collegial and active country team and is preparing carefully for the arrival of a new ambassador.

So — let’s wish the new ambassador well in her new assignment and hope that she be a good steward of Mission Budapest.

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Donald M. Bishop: Sources of State Department Senior Leadership

– Domani Spero

 

Donald M. Bishop, President of the Public Diplomacy Council, served 31 years in USIA and the State Department.  A Public Diplomacy officer, his first assignments were in Hong Kong, Korea, and Taiwan, and he led Public Diplomacy at the American embassies in Bangladesh, Nigeria, China, and Afghanistan.  He served as the Foreign Policy Advisor (POLAD) to two members of the Joint Chiefs of Staff at the Pentagon. The piece below was originally published via the Public Diplomacy Council website and republished here with Mr. Bishop’s kind permission.

Sources of State Department Senior Leadership

by Donald M. Bishop

In recent months, the front pages, websites, columns, blogs, and talking heads rediscovered an old issue — the nomination of individuals who raised funds for a Presidential campaign to be ambassadors.  A few nominees were embarrassed at their Senate confirmation hearings.

This short piece is NOT about ambassadorial nominees.  Rather, let me step back and discuss the naming of political appointees to senior policy positions in the Department of State.

The American Foreign Service Association counts the number of political vs. career appointees as Deputy Secretary, Under Secretary, Assistant Secretary, Special Envoy, Special Representative, Director, Chief, Coordinator, Advisor, and Executive Secretary.  In 2012, 27 were career officers, and 63 were political appointees.  This was the highest percentage of political appointees in policy positions since AFSA began counting.  In 2008 there were 26 senior noncareer Schedule B hires; in 2012 there were 89.

How about Public Diplomacy?  Three bureaus report to the Under Secretary for Public Diplomacy and Public Affairs — Public Affairs (PA), Educational and Cultural Affairs (ECA), and International Information Programs (IIP).  All three bureaus are led by appointees.  The three bureaus have eleven positions at the level of Deputy Assistant Secretary, and six geographic bureaus all have Deputy Assistant Secretaries assigned Public Diplomacy portfolios.   For these 17 positions, the exact count varies with ordinary turnover, but it is safe to say about half are career, and half are political.

No matter the bureau or function, many of these appointees indeed have solid foreign policy credentials.  There are many paths to expertise and several different incubators in foreign affairs, and the Foreign Service is only one.  Many experts have worked in Congress, the NSC and the White House, Presidential campaigns, and at the think tanks at different times in their careers.   At the beginning of their careers, they may have served in the Peace Corps or, less often, the armed forces.

Over the years, I worked with many appointees.  Many brought energy and fresh ideas into the Department.  This essay is not about individuals – many of whom earned my admiration – but rather about organizational dynamics.

I have concluded that an overreliance on political appointees from outside the Foreign Service weakens the conduct of American foreign policy.  These reasons have little to do with the qualifications of the individuals.  If the administration decides that this or that position at the State Department is better filled by a political appointee than by a Foreign Service officer, there are three down sides.

First, the search and selection process, vetting, security clearances, and – for those positions requiring confirmation by the Senate — long waits for hearings and confirmation add up to long vacancies between incumbents.  During the vacancies, someone picks up the slack, for sure, but some other portfolio is shorted.  Even if a career officer serves as “Acting,” the Department waits for the President’s nominee to come on board before launching new initiatives and committing funds.  Preferring political appointees from the outside, then, slows foreign policy down.  Public Diplomacy, in particular, suffered from long periods between Under Secretaries.

Second, whatever their regional or issue expertise, whichever Washington arena gave them their chops, however close appointees may be to the President and his team, they have had no reason to understand “the machinery” or “the mechanics” of the State Department – its funding, authorities, planning, reporting, budget cycle, and incentives.

All organizations have an organizational culture.  For the State Department and the Foreign Service, it encompasses the five cones, the assignment and promotion systems, hierarchies, the “D Committee” which recommends career FSOs to the White House to become ambassadors, and agreements with bargaining agents.  The culture includes such intangibles as policy planning but not program planning, tradeoffs between goals, “buttons to push,” “energy sponges,” “lanes,” “corridor reputations,” and the “thin bench.” The “ship of State” can indeed respond to new priorities, but few appointees have the inside experience to know how to make it turn quickly and smoothly.

All understand, moreover, that if something more is needed – “reform” of the Department, its processes, or the Foreign Service – it can take many years to achieve.  A career officer can commit to a long process of reform and understand the payoff down the road.  A political appointee may understand the need to change the Department’s way of doing business, but what is the incentive for doing so?  The appointee will be on to fresh pastures, through the revolving door, and doing something else soon.  Why take on tasks that will outlast her appointment?

Third, political appointees naturally come to the State Department with a strong intention to advance the President’s agenda.  Their frame of mind is, then, “top down,” meaning that ambassadors, embassies, consulates, and the Foreign Service should take their lead from the White House and become implementers of this month’s or this year’s White House policy initiatives.  If, for instance, the President believes that the United States must promote action against climate change, the political appointees in the Bureaus insure that the Department responds.  As a result, even Embassies in countries with strong environmental records – Western Europe, say — adjust their priorities to respond to the “top down” agenda.

A focus on the administration’s global broad-brush themes, however, inevitably crowds out the attention paid to bilateral issues.  Every Mission spends a large part of its spring in a deliberate process defining specific bilateral strategic goals, but their implementation can be overridden by political appointees and top-down priorities.  Many Public Affairs Officers at overseas posts have noted the shift to a “Washington driven” agenda.  The Foreign Service is always ready to “surge,” so to speak, on the nation’s most important objectives, but it’s not possible to “surge” month in and month out.  When an embassy surges on one administration priority, moreover, it can’t be very effective when yet one more surge is asked for.

I submit, then, that reliance on political appointees weakens not strengthens the achievement of America’s national goals.  Long vacancies slow down the implementation of policy.  Lacking institutional knowledge, appointees increase the friction within the system.  They tip the scales to respond to worldwide, “top-down” rather than bilateral goals.  There will always be a mix of political appointees and career officers in the State Department’s senior policy positions, but in my judgment the nation is better served when there are more of the latter than the former.

 The original post is here, check out the comments.

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State Dept Spox on outages at embassies: “separate”, “unconnected”, “unrelated” — wowie zowie!

– Domani Spero

 

We’ve blogged about the outages at overseas posts yesterday (see State Department’s “Technical Difficulties” Continue Worldwide, So What About the CCD?).  On November 17, US Embassy Albania’s internet connection was down and US Embassy London could not accept credit card payments and its online forms for visa and passport inquiries were not working. US embassies in Moscow, Madrid, Manila, Beirut, Ankara, Cameroon, Oslo and Astana tweeted that they were “experiencing technical difficulties that may result in delays in visa processing.”

Unofficial sources tell us that State Department employees are now able to send email outside the Dept but still no Internet access. The Department’s mobile access site GO (go.state.gov) and Web PASS  (Web Post Administrative Software Suite Explorer) are both still offline.

What’s WebPASS?   via WebPASS Privacy Impact Assessment (2009):

WebPASS Explorer (“WebPASS”) is a suite of business applications used by overseas posts to administer a variety of internal activities. Some but not all applications under WebPASS collect and maintain personally identifiable information (PII) about post employees, their family members, and visitors. WebPASS is web-enabled and operates within the confines of OpenNet, the Department’s sensitive but unclassified (SBU) network.

The main application is Web Post Personnel (Web.PS), which is a database of the American employees (AEs), their dependents, and Locally Employed Staff (LES). Whereas the official record for an AE employee is maintained in Washington, DC, the Web.PS database supports local personnel-related tasks. Its LES-related features support personnel actions for LES staff directly hired at the post such as intake, assignments, transfers, grade increases, and terminations.

After an AE or LES staff is established in Web.PS, some of their basic identifiers (e.g., name, employee type, office) may be pulled electronically into other WebPASS applications that support separate functions such as motor pool operations, residency in government-held real property, and distribution of pharmaceutical medications.

The most sensitive unique identifier in WebPASS is the record subject’s SSN, which is stored in Web.PS.

 

Hey, if Professor Boyd, the American ambassador’s husband in Homeland had access to WebPASS, he could have saved himself some sneaking around just to discover (and tamper) with Carrie’s medication!

In any case, on November 18, the State Department spokesman Jeff Rathke was asked about the recent reported hacking and the outages at our embassies. The official word seems to be that these outages at ten posts (maybe more, but those posts have not tweeted their technical difficulties) are separate, unconnected, unrelated or [insert preferred synonym]  to the “technical difficulties” at Main State. Simply put, you folks stop racking your brains with suspicions, these outages are simply, and purely  coincidental.

Of course, coincidences happen every day, but the more I watch these official press briefings, the less I trust coincidences.

Excerpt:

QUESTION: Hacking?

MR. RATHKE: Yes, Lara, please.

QUESTION: Everybody’s favorite topic. You had talked yesterday from the podium about how the – it’s only the unclassified email systems at the State Department that was affected by this most recent data breach that prompted the suspension of – sorry, I’ve got suspended on my mind – (laughter) – but that prompted the shutdown over the weekend. But there’s been some suggestions that some of the missions and embassies and consulates have had some problems or could have some problems with processing passports or visas.

MR. RATHKE: No.

QUESTION: No? Not at all?

MR. RATHKE: No, no. These are unconnected. I mean, we have a separate system that deals with those types of consular issues – passports, visas, and so forth. Now there may be other technical issues that have arisen in one place or another. Is there a specific –

QUESTION: Yeah. Embassy Beirut, I think, had to –

MR. RATHKE: Yeah. No, that’s unrelated to the outage that we’ve had here.

QUESTION: Well, what’s going on in Embassy Beirut, then?

MR. RATHKE: Well, I don’t have the specifics, but it’s a separate issue. And I – from what I understand, they were able to continue doing their operations today, so it was not any major impediment.

I can give you an update, though, on the outage. I can report that our external email services from our main unclassified system are now operating normally, and for those who feel they are tethered to their Blackberries, they are once again, because the Blackberry service is working. So our unclassified external email traffic is now normal, so we’ve had some progress since yesterday’s discussion. So much of it is now operational. Much of our systems that had connectivity to the internet are now operational. We have a few more steps that’ll be taken soon to reach full restoration of our connectivity.

QUESTION: But just to clarify, no consular services, no client-based services –

MR. RATHKE: That’s a separate –

QUESTION: — have been affected by this outage?

MR. RATHKE: No, not to my knowledge. That’s – those are separate.

Yeah.

QUESTION: Do you have internet access from the unclassified system now?

MR. RATHKE: No, we are not – we do not have internet access at this stage. That will be restored soon, we expect. Sorry, yes?

QUESTION: Anything else major that you don’t have now?

MR. RATHKE: No. No, I think that’s mainly it. But it – this has not stopped us from doing our work, so –

QUESTION: The classified system never went down, correct?

MR. RATHKE: No, it was never affected at any point. So as mentioned yesterday, that hasn’t changed. It was not affected.

 

Congress remains more than interested:

 

And now the FBI is wading into the breaches:

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State Department’s “Technical Difficulties” Continue Worldwide, So What About the CCD?

– Domani Spero

 

The “technical difficulties” at the State Department continue today.  State Department spokesman Jeff Rathke told Yahoo News that  the State Department is still investigating who — or what — launched the attack saying, “I don’t have anything to share at this point on the origins of the intrusion.”

Rathke said the attack only hit unclassified email systems at the State Department — and not business databases that contain information about Americans or, for example, foreign visa applicants. Although the temporary shutdown was previously scheduled, “in this case, the response to this specific incident needed to be more comprehensive than our regular updates.

Congress is apparently interested on what’s going on.

Meanwhile, the Department’s mobile site go.state.gov remains down, and the “technical difficulties” now include, according to tweets from overseas posts, not just inability to use email  but also inability to accept credit card payment for visa and passport services, and unusable contact forms for visa and passport inquiries.


US Embassy Albania


US Embassy London

 

 

U.S. Embassy Manila

U.S. Embassy Beirut

 

US Embassy Turkey

U.S. Embassy Moscow

 

U.S. Embassy Madrid

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Below is the template of the notice used today:

U.S. embassies and consulates are currently experiencing technical difficulties that may result in delays in visa processing and receiving and sending communications. Additionally, applicants who have interviews for student and exchange visitor (F/M/J) visas scheduled for this week should bring proof of payment of the SEVIS fee. U.S. citizens may also experience delays in sending and receiving communications. U.S. citizens requiring emergency assistance should contact the Embassy [INSERT contact info].

 

We doubt if the State Department would have acknowledged this intrusion had the Associated Press not reported it on Sunday. On a related matter, we understand that Consular Affairs’ Consular Consolidated Database has been having problems “lately.”

Can somebody please ask CA if these ongoing problems are related to the technical difficulties from this past summer, or if this is related to the just known intrusion that brought down the email system and the GO site? We’re not terribly technical but curious — if a cyber intruder starts deleting data from the CCD, would anyone notice what’s missing?

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State Department’s Computer Systems Hacked, 5th Known Agency Breach This Year?

– Domani Spero

 

Just the bit of bad news you don’t need to start your Monday:

 

Below via WaPo:

The State Department did not seek to publicize that it had been hacked. On Friday, it announced that “maintenance” would be done to the unclassified network during a routine, scheduled outage. But on Sunday, after the Associated Press first reported the breach, officials acknowledged they had found traces of suspicious activity in their system and were updating security in the middle of a scheduled outage. In a sign of how complete the shutdown was, duty officers were using Gmail accounts.

A senior State Department official, who spoke on the condition of anonymity to discuss the breach, also told WaPo that “none of the department’s classified systems were compromised.”

Would State report publicly the classified intrusion if those systems were compromised?

This report follows the confirmation of a hack at the National Oceanic and Atmospheric Administration which reportedly forced cybersecurity teams to seal off data vital to disaster planning, aviation, shipping, etc. this past September, the reported breach of the computer networks of the United States Postal Service, compromising the data of more than 800,000 employees and a breach at the White House.  In June this year, the WSJ also reported the breach of computer systems at the Office of Personnel Management, which stores data on federal employees.

An unnamed official told nextgov.com that State is bolstering the security “of its main unclassified network during a scheduled outage of some Internet-linked systems.” The site, nextgov.com says it is “unclear why officials waited until this weekend to disconnect potentially infected systems at State.”

As of this writing, the State Department’s mobile access (go.state.gov) is down with the following notice: “The Department is currently experiencing an ongoing, planned outage to upgrade our network.  during this event, mobile access (GO) will be unavialable.  We apologize for any inconvenience this may cause you.  For questions or more information, please contact the IT Service Center at 202-647-2000.”

We understand that GO will be down until further notice and may need to be rebuilt. A mobile copy is currently live at http://m.state.gov.

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In totally unrelated news, and nothing/nothing whatsoever to do with this reported hack — State/OIG on November 7, published its Audit of Department of State Information Security Program.  The report is readable if you don’t mind the redacted parts:

Screen Shot 2014-11-15 at 11.11.19 AM

Below is an excerpt:

Information technology security controls are important to protect confidentiality, integrity, and availability of information and information systems. When they are absent or deficient, information becomes vulnerable to compromise.[REDACTED]
[…]
Although we acknowledge the Department’s actions to improve its information security program, we continue to find security control deficiencies in multiple information security program areas that were previously reported in FY 2010, FY 2011, FY 2012, and FY 2013. Over this period, we consistently identified similar control deficiencies in more than 100 different systems. As a result, the OIG issued a Management Alert in November 2013 titled “OIG Findings of Significant and Recurring Weaknesses in the Department of State Information System Security Program” that discussed significant and recurring control weaknesses in the Department’s Information System Security Program [REDACTED B(5)]

The FY 2013 FISMA audit report contained 29 recommendations intended to address identified security deficiencies. During this audit, we reviewed corrective actions taken by the Department to address the deficiencies reported in the FY 2013 FISMA report. Based on the actions taken by the Department, OIG closed 4 of 29 recommendations from the FY 2013 report.
[…]
We identified control deficiencies in all [Redacted] (b) (5)  of the information security program areas used to evaluate the Department’s information security program. Although we recognize that the Department has made progress in the areas of risk management, configuration management, and POA&M since FY 2013, we concluded that the Department is not in compliance with FISMA, OMB, and NIST requirements. Collectively, the control deficiencies we identified during this audit represent a significant deficiency to enterprise-wide security, as defined by OMB Memorandum M-14-04.
[…]
Although we found the Department’s Computer Incident Response Team (CIRT) Standard Operating Procedures aligned with NIST SP 800-61, Revision 2,39 procedures do not clearly state all the bureaus, offices, and organizations that require notification prior to closing an incident. As a result, DS/SI/CS did not report all incidents to the U.S. Computer Emergency Readiness Team (US-CERT) as required. Specifically, 1 out of 22 (5 percent) security incidents we tested was not reported to the US-CERT, even though it was a Category 4 incident and involved potential classified spillage. If the Department does not report data spillage incidents (potential or confirmed) to US-CERT within the established timeframes, US-CERT may not be able to help contain the incident and notify appropriate officials within the allotted timeframe.

According to State/OIG, Category 4 incidents are incidents involving improper usage of Department systems or networks (that is, a person that violates acceptable computing use policies).

According to OMB Memorandum M-14-04, a significant deficiency is defined as a weakness in an agency’s overall information systems security program or management control structure, or within one or more information systems that significantly restricts the capability of the agency to carry out its mission or compromises the security of its information, information systems, personnel, or other resources, operations, or assets. via

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Related item:

Audit of Department of State Information Security Program; Published On: November 07, 2014; Report Date: November 2014; Report Number: AUD-IT-15-17; View Report: aud-it-15-17.pdf

 

 

 

 

 

 

 

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Burn Bag: Consular Leadership Tenet #5: Something Seriously Wrong With the CCD. Communicate?

Via Burn Bag:

“Why is the CCD [Consular Consolidated Database] such a piece of trash lately and when is Senior CA [Consular Affairs] Management going to communicate honestly with the Field what the problem is?  Anyone with a brain can tell there is something seriously wrong with the system.”

giphy_daleks

by rhetthammersmithhorror.tumblr.com via giphy.com

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