On August 24, 2015, State Dept. Spokesman John Kirby told CNN: “At The Time, When She Was Secretary Of State, There Was No Prohibition To Her Use Of A Private Email.” Below is the video clip with Mr. Kirby.
Okay, then. Would somebody please get the State Department to sort something out. If there was no prohibition on then Secretary Clinton’s use of a private email, why, oh, why did the OIG inspectors dinged the then ambassador to Kenya, Scott Gration for using commercial email back in 2012? (See OIG inspection of US Embassy Kenya, 2012).
In the course of its inspection, OIG received reports concerning embassy staff use of private email accounts to conduct official business. On the basis of these reports, OIG’s Office of Evaluations and Special Projects conducted a review and confirmed that senior embassy staff, including the Ambassador, used personal email accounts to send and receive messages containing official business. In addition, OIG identified instances where emails labeled Sensitive but Unclassified6 were sent from, or received by, personal email accounts.
OIG has previously reported on the risks associated with using commercial email for official Government business. Such risks include data loss, hacking, phishing, and spoofing of email accounts, as well as inadequate protections for personally identifiable information. Department policy is that employees generally should not use private email accounts (for example, Gmail, AOL, Yahoo, and so forth) for official business.7 Employees are also expected to use approved, secure methods to transmit Sensitive but Unclassified information when available and practical.8
OIG report referenced two cables, we’ve inserted the hyperlinks publicly available online: 11 STATE 65111 and 14 STATE 128030 and 12 FAM 544.3, which has been in the rules book, at least since 2005:
“It is the Department’s general policy that normal day-to-day operations be conducted on an authorized [Automated Information System], which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information.”
This section of the FAM was put together by the Office of Information Security (DS/SI/IS) under the Bureau of Diplomatic Security, one of the multiple bureaus that report to the Under Secretary for Management.
Either the somebodies were asleep at the switch, as the cliché goes, or somebody at the State Department gave authorization to the Clinton private server as an Automated Information System.
In any case, the State Department’s stance on the application of regulations on the use of private and/or commercial email is, not wobbly jello on just this one subject or on just this instance.
One of those eight cases relate to an allegation of soliciting a prostitute.
The Foreign Affairs Manual (FAM) provides that disciplinary action may be taken against persons who engage in behavior, such as soliciting prostitutes, that would cause the U.S. Government to be held in opprobrium were it to become public.1
In May 2011, DS was alerted to suspicions by the security staff at a U.S. embassy that the U.S. Ambassador solicited a prostitute in a public park near the embassy. DS assigned an agent from its internal investigations unit to conduct a preliminary inquiry. However, 2 days later, the agent was directed to stop further inquiry because of a decision by senior Department officials to treat the matter as a “management issue.” The Ambassador was recalled to Washington and, in June 2011, met with the Under Secretary of State for Management and the then Chief of Staff and Counselor to the Secretary of State. At the meeting, the Ambassador denied the allegations and was then permitted to return to post. The Department took no further action affecting the Ambassador.
OIG found that, based on the limited evidence collected by DS, the suspected misconduct by the Ambassador was not substantiated. DS management told OIG, in 2013, that the preliminary inquiry was appropriately halted because no further investigation was possible. OIG concluded, however, that additional evidence, confirming or refuting the suspected misconduct, could have been collected. For example, before the preliminary inquiry was halted, only one of multiple potential witnesses on the embassy’s security staff had been interviewed. Additionally, DS never interviewed the Ambassador and did not follow its usual investigative protocol of assigning an investigative case number to the matter or opening and keeping investigative case files.
Department officials offered different justifications for handling the matter as a “management issue,” and they did not create or retain any record to justify their handling of it in that manner. In addition, OIG did not discover any guidance on what factors should be considered, or processes should be followed, in making a “management issue” determination, nor did OIG discover any records documenting management’s handling of the matter once the determination was made.
The Under Secretary of State for Management told OIG that he decided to handle the suspected incident as a “management issue” based on a disciplinary provision in the FAM that he had employed on prior occasions to address allegations of misconduct by Chiefs of Mission. The provision, applicable to Chiefs of Mission and other senior officials, states that when “exceptional circumstances” exist, the Under Secretary need not refer the suspected misconduct to OIG or DS for further investigation (as is otherwise required).2 In this instance, the Under Secretary cited as “exceptional circumstances” the fact that the Ambassador worked overseas.3
DS managers told OIG that they viewed the Ambassador’s suspected misconduct as a “management issue” based on another FAM disciplinary provision applicable to lower-ranking employees. The provision permits treating misconduct allegations as a “management issue” when they are “relatively minor.”4 DS managers told OIG that they considered the allegations “relatively minor” and not involving criminal violations.
Office of the Legal Adviser staff told OIG that the FAM’s disciplinary provisions do not apply to Ambassadors who, as in this instance, are political appointees and are not members of the Foreign Service or the Civil Service.5
OIG questions the differing justifications offered and recommends that the Department promulgate clear and consistent protocols and procedures for the handling of allegations involving misconduct by Chiefs of Mission and other senior officials. Doing so should minimize the risk of (1) actual or perceived undue influence and favoritism and (2) disparate treatment between higher and lower-ranking officials suspected of misconduct.6 In addition, OIG concludes that the Under Secretary’s application of the “exceptional circumstances” provision to remove matters from DS and OIG review could impair OIG’s independence and unduly limit DS’s and OIG’s abilities to investigate alleged misconduct by Chiefs of Mission and other senior Department officials.
In the SBU report provided to Congress and the Department, OIG cited an additional factor considered by the Under Secretary—namely, that the Ambassador’s suspected misconduct (solicitation of prostitution) was not a crime in the host country. However, after the SBU report was issued, the Under Secretary advised OIG that that factor did not affect his decision to treat the matter as a “management issue” and that he cited it in a different context. This does not change any of OIG’s findings or conclusions in this matter.
After the SBU report was issued, the Under Secretary of State for Management advised OIG that he disagrees with the Office of the Legal Adviser interpretation, citing the provisions in the Foreign Service Act of 1980 which designate Chiefs of Mission appointed by the President as members of the Foreign Service. See Foreign Service Act of 1980, §§ 103(1) & 302(a)(1) (22 USC §§ 3903(1) & 3942(a)(1)).
During the course of that review, State/OIG said it discovered some evidence of disparity in DS’s handling of allegations involving prostitution. Between 2009 and 2011, DS investigated 13 prostitution-related cases involving lower-ranking officials.
The OIG apparently, found no evidence that any of those inquiries were halted and treated as “management issues.”
Also, have you heard? Apparently, DEA now has an updated “etiquette” training for its agents overseas.
New DEA “etiquette” training for overseas agents: ■ Never call ambassador by his first name. ■ No prostitutes. Etc. pic.twitter.com/aUSZipjtEC
For obvious reasons, we are unable to share the name of the retired diplomat here but we have permission to share this with our readers.
Retired FSO: I was planning on blogging about Hillary’s emails. Title: “If I Did What Hillary Did, I’d Be In Jail.”
Me: Great! Looking forward to reading it!
Retired FSO: But I won’t.
Retired FSO: Just read 3 FAM 4170. I’m retired. I can’t believe I really need to clear my blogposts with PA. I mean, I’d use common sense, you know? I wouldn’t be divulging stuff like, say, our nuclear launch codes, or the chronically malfunctioning air conditioning system at Main State. I’d just focus on how when you become a charter member of America’s political elite, the rules don’t apply to you. That’s all.
Me: Only stuff “of department concern” needs clearance. Max timeframe for blogs, five days.
Retired FSO: But they’ve made me jittery. I don’t fancy jail. They’d probably force me to watch re-runs of “Madame Secretary” every day; let me read only the FAM! The eighth amendment doesn’t allow this kind of cruel and unusual punishment, but Mother State can be as vindictive as a Borgia dowager.
Me: Okay. So, does this mean you’ll stop blogging?
Retired FSO: Nah. Maybe I’ll just write about my pets from now on. Think anybody would read Diplo Doggy’s Adventures?
We acknowledge the reports. While we will not comment on or confirm the specifics of this particular assertion, we know that malicious actors often target email accounts of government and business leaders across the United States.
We’ve also inquired about its response, or guidance to personnel , if any, and the State Department, still on background, would only say this:
We believe it is important for not only government and private sector companies but also individuals to improve their cybersecurity practices. That is why this Administration is working hard to raise our cyber defenses across the board.
Well, we hope they’re talking to employees behind the firewall with more substance than this two-sentence practically useless response.
We have not been able to find anything State Department related-response/guidance on this on the public net, but DOD has some useful reminders posted on the wide-web, no logons required. The first set of slides below is actually a social networking cybersecurity awareness briefing by Diplomatic Security. The slide set appears dated a few years back (uses 2009 examples) and is not available, as far as we can tell, from state.gov. We found this set posted on the slideshare site maintained by the Defense Department. The other two set of slides are on opsec for families and one on geotagging safety for those who posts photos online. both from the DOD site.
Social Networking Cybersecurity Awareness
Social Media Cyber Security Awareness Briefing | OPSEC For Families
On July 27, 2015, two months short of Year 3 since Mr. Van Buren retired, the State Department without much fanfare released its new 3 FAM 4170 rules in 19 pages. For the “FAM is not a regulation; it’s recommendations” crowd, we hope you folks have great lawyers.
My! Look who’s covered!
The updated FAM, same as the old FAM, is divided into two meaty parts — official capacity public communication and personal capacity public appearances and communications. The new version of 3 FAM 4170 is all encompassing, covering the following (not exhaustive list):
— all personnel in the United States and abroad who are currently employed (even if in Leave Without Pay status) by the Department of State and the United States Agency for International Development (USAID), including but not limited to Foreign Service (FS) employees, Civil Service (CS) employees (including schedule C appointees and annuitants returning to work on temporary appointments on an intermittent basis, commonly referred to as “While Actually Employed (WAE)” personnel), locally employed staff (LE Staff), personal service contractors (PSCs), employees assigned to fellowships or details elsewhere and detailees or fellows from other entities assigned to the Department, externs/interns, and special government employees (SGEs).
— Former Department of State employees (including former interns and externs) must seek guidance from A/GIS/IPS for applicable review process information. Former USAID employees (including former interns and externs) must consult the Bureau for Legislative and Public Affairs for applicable review process information.
— Employee testimony, whether in an official capacity or in a personal capacity on a matter of Departmental concern, may be subject to the review requirements of this subchapter. Employees should consult with the Department of State’s Office of the Legal Adviser or USAID’s Office of the General Counsel, as appropriate, to determine applicable procedures.
In practical terms, we think this means that if you get summoned to appear before the House Select Benghazi Committee and is testifying in your personal capacity as a former or retired employee of the State Department, these new regulations may still apply to you, and you may still need clearance before your testimony.
Convince us that we’re reading this wrong, otherwise, somebody poke Congress, please.
Also, does this mean that all retired FSOs who contribute to ADST’s Oral History project are similarly required to obtain clearance since by its definition, “online forums such as blogs” and “a person or entity engaged in disseminating information to the general public” are considered media organizations under these new rules?
Institutional interest vs. public interest
We are particularly interested in the personal capacity publication/communication rules because that’s the one that can get people in big trouble, as shown in the Van Buren case. Here’s the equivalent of our bold Sharpie.
3 FAM 4176.4 says: “A principal goal of the review process for personal capacity public communications is to ensure that no classified or other protected information will be disclosed without authorization. In addition, the Final Review Office will evaluate whether the employee’s public communication is highly likely to result in serious adverse consequences to the efficiency or mission of the Department, such that preventing those consequences outweighs the employee’s presumptively high interest in communicating and the public’s interest in receiving the communication.”
Institutional interest trumps public interest? Where do you draw the line? You can still write a dissent cable as the “3 FAM 4172.1-3(D). No Review of Dissent Channel Communications” included in the 2009 version of the FAM survives as 3 FAM 4171 (e) in the current rules:
Views on matters of Departmental concern communicated through methods of internal communication (including, for example, the Department’s internal dissent channel) or disclosures made pursuant to 5 U.S.C. 2302(b)(8)(B) are not subject to the review requirements of this subchapter.
Which is fine and all, except — who the heck gets to read your dissent cable except the folks at Policy Planning? The State Department is not obligated to share with Congress or with the American public any dissenting opinions from its diplomats. One might argue that this is appropriate, after all, you can’t have diplomats second guessing in public every foreign policy decision of every administration. So, the American public typically only hears about it when a diplomat quits. But given the two long wars in Iraq and Afghanistan, is the American public best served by this policy? And by the way, candid opinion like the case of the six-page memo, entitled “The Perfect Storm,” in the lead up to the Iraq War, is still classified. Why is that?
The new regs also say this:
“To the extent time and resources allow, reviewers may assist the employee in identifying possible modifications or other adjustments to avoid the inclusion of non-classified but otherwise protected information, or the potential for adverse consequences to the Department’s mission or efficiency (including the employee’s ability to perform his or her duties effectively in the future).”
If we weigh the Van Buren book against these parameters, how much of the book’s 288 pages would survive such “modifications” or “adjustments.”
There goes the book, We Meant Well in Afghanistan, Also.
The Peter Van Buren Clause
We’ve come to call “3 FAM 4172.1-7 Use or Publication of Materials Prepared in an Employee’s Private Capacity That Have Been Submitted for Review“ as the Peter Van Buren clause. Below is the original language from the 2009 version of the FAM:
An employee may use, issue, or publish materials on matters of official concern that have been submitted for review, and for which the presumption of private capacity has not been overcome, upon expiration of the designated period of comment and review regardless of the final content of such materials so long as they do not contain information that is classified or otherwise exempt from disclosure as described in 3 FAM 4172.1-6(A).
That section of the FAM appears to survive under the current 3 FAM 4174.3 Final Review Offices, underlined for emphasis below.
c. To ensure that no classified information is improperly disclosed, an employee must not take any steps to proceed with a public communication (including making commitments to publishers or other parties) until he or she receives written notice to proceed from the Final Review Office, except as described below. If, upon expiration of the relevant timeframes below, the Final Review Office has not provided an employee with either a final response or an indication that a public communication involves equities of another U.S. Government entity (including a list of the entity or entities with equities), the employee may use, issue, or publish materials on matters of Departmental concern that have been submitted for review so long as such materials do not contain information described in 3FAM 4176.2(a) and taking into account the principles in 4176.2(b). When an employee has been informed by the Final Review Office that his or her public communication involves equities of another U.S. Government entity or entities, the employee should not proceed without written notice to proceed from the Final Review Office. Upon the employee’s request, the Final Review Office will provide the employee with an update on the status of the review of his or her public communication, including, if applicable, the date(s) on which the Department submitted the employee’s communication to another entity or entities for review. Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.
The Van Buren clause appears to survive, until you take a closer look; italicized below for emphasis:
3 FAM 4176.2 (a) Content of Personal Capacity Public Communications
a. When engaging in personal capacity public communications, employees must not:
(1) Claim to represent the Department or its policies, or those of the U.S. Government, or use Department or other U.S. Government seals or logos; or
(2) Disclose, or in any way allow the public to access, classified information, even if it is already publicly available due to a previous unauthorized disclosure.
3 FAM 4176.2 (b) Content of Personal Capacity Public Communications
b. As stated in 3 FAM 4174.2(c)(1), a purpose of this review process is to determine whether the communication would disclose classified or other protected information without authorization. Other protected information that is or may be subject to public disclosure restrictions includes, but is not limited to:
(1) Material that meets one or more of the criteria for exemption from public disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b), including internal pre-decisional deliberative material;
(2) Information that reasonably could be expected to interfere with law enforcement proceedings or operations;
(3) Information pertaining to procurement in violation of 41 U.S.C. 2101-2107;
(4) Sensitive personally identifiable information as defined in 5 FAM 795.1(f); or
(5) Other nonpublic information, when used in a manner as prohibited by 5 CFR 2635.703.
Can one make the case that the conversations between the writer and his boss in the Van Buren book are “internal pre-decisional deliberative material?” Or that any conversation between two FSOs are deliberative? Of course. State can make a case about anything and everything. Remember, it did try to make the case that the book contained classified information. (see “Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!). Also, we should note that documents marked SBU or sensitive but unclassified are typically considered nonpublic information. Under these new rules, it’s not just classified information anymore, anything the agency considers deliberative material or any nonpublic material may be subject to disclosure restrictions.
3 FAM 4174.2 Overview (2015): Waving the ‘suitability for continued employment’ flag
c. Employees’ personal capacity public communications must be reviewed if they are on a topic “of Departmental concern” (see 3 FAM 4173). Personal capacity public communications that clearly do not address matters of Departmental concern need not be submitted for review.
(1) The personal capacity public communications review requirement is intended to serve three purposes: to determine whether the communication would disclose classified or other protected information without authorization; to allow the Department to prepare to handle any potential ramifications for its mission or employees that could result from the proposed public communication; or, in rare cases, to identify public communications that are highly likely to result in serious adverse consequences to the mission or efficiency of the Department, such that the Secretary or Deputy Secretary must be afforded the opportunity to decide whether it is necessary to prohibit the communication (see 3 FAM 4176.4).
(2) The purposes of the review are limited to those described in paragraph (1); the review is not meant to insulate employees from discipline or other administrative action related to their communications, or otherwise provide assurances to employees on matters such as suitability for continued employment (see, e.g., 3 FAM 4130 for foreign service personnel and 5 CFR 731 for civil service personnel). Ultimately, employees remain responsible for their personal capacity public communications whether or not such communications are on topics of Departmental concern.
More 3 FAM 4170 Fun: Not meant to insulate employees from discipline or other administrative action
3 FAM 4176.1(e) General
e. As stated in 3 FAM 4174.2(c)(1), the review process is limited to three purposes. (See also 3 FAM 4176.4.) Therefore, completion of the review process is not a Department “clearance” or “approval” of the planned communication, and is not meant to insulate employees from discipline or other administrative action related to their communications, including for conducting personal capacity public communications that interfere with the Department’s ability to effectively and efficiently carry out its mission and responsibilities, by, for example, disrupting operations, impairing working relationships, or impeding the employee from carrying out his or her duties. Ultimately, employees remain responsible for their personal communications whether or not the communications are on topics of Departmental concern.
3 FAM 4176.3 Employee must disclose his/her identity to Department reviewers
a. PA reviews all personal capacity public communications on matters of Departmental concern by senior officials at the Assistant Secretary level and above, including Chiefs of Mission. For all other employees wishing to communicate publicly in their personal capacity on matters of Departmental concern, there are two review processes available:
(1) Individuals may, as a first step, submit their requests for review to the Final Review Office (as described in 3 FAM 4174.3(a)). For employees submitting a request to PA, such requests should be submitted via PAReviews@state.gov. The Final Review Office will then consult with the employee’s immediate supervisor(s) and any other offices concerned with the subject matter in accordance with 3 FAM 4176.4(c). The Final Review Office will then make the final determination; and
(2) Alternatively, employees may initially submit their requests for review to their immediate supervisor(s), the Public Affairs Office in their bureaus or posts, and any other Department offices concerned with the subject matter. The materials must then be submitted to the Final Review Office, noting all such reviewers and any comments received. The Final Review Office will then verify those reviews, assess whether other reviews are needed, and make the final determination.
b. Supervisors, Public Affairs Offices, or any other offices involved in the review process must flag for the Final Review Office any view that the proposed public communication may:
(1) Contain classified or other protected information;
(2) Result in serious adverse consequences to the efficiency or mission of the Department; or
(3) Be or become high impact or high profile, for example communication that is controversial, or otherwise involves a sensitive Department priority; and
(4) The Final Review Office will then apply the standard described in 3 FAM 4176.4(a).
c. In all cases, an employee must disclose his or her identity to the relevant Department reviewers.
d. If another U.S. Government entity seeks Department review of a personal capacity public communication by that entity’s employee, the Department office in receipt of such request must coordinate with PA.
3 FAM 4177 Noncompliance may result in disciplinary action, criminal prosecution and/or civil liability.
a. Failure to follow the provisions of this subchapter, including failure to seek advance reviews where required, may result in disciplinary or other administrative action up to and including separation. Violations by USAID employees may be referred to the Deputy Administrator for Human Resources or USAID’s Office of the Inspector General (see 3 FAM 4320). Disciplinary action will be pursued consistent with applicable law, including 5 U.S.C. 2302
b. Publication or dissemination of classified or other protected information may result in disciplinary action, criminal prosecution and/or civil liability.
This is the part where we must remind you that what the former State Department spokesperson said about the FAM being recommendations is a serious bunch of hooey!
Oh, hey, remember the 2-day clearance for tweets …’er scandal?
We wrote about it here and here, and the “ain’t gonna happen 2-day clearance” for social media posting is now part of the Foreign Affairs Manual. Apologies if the 2-working day review timeframe below for social media postings is too shocking for 21st century statecraft innovation purists. These are the rules, unless you can get the current State Department spokesperson to say from the podium that these are merely recommendations that employees/retirees/interns/charforce are free to ignore. We must add that the 2009 version of these rules, required that materials of official concern submitted in the employee’s private capacity must “be submitted for a reasonable period of review, not to exceed thirty days.” The old rules made no distinction whether the submitted material is a book manuscript, an article, a blogpost or a tweet.
screen grab from 3 FAM 4170
Yo! What’s Missing?
The new regs emphasized the need for official clearance for official and private communication “to ensure that no classified information is improperly disclosed.” It however, does not include any guidance on the use of a private server for emails and social media postings where classified information could be improperly disclosed.
A Much Better FAM Version, Hey?
From the organizational perspective, some folks would say that this is a “much better” version of the FAM. We’d call this a much better plug. An insider could argue that this is a “very fine sieve.”
Okeedokee, but what do you think will be its consequences for the rank and file? No one will officially admit this as the intent, but after reading this new version of 3 FAM 4170, this is what we think it really says:
The updated regs also says that “In light of the rapid pace with which many social media platforms are used, all offices, sections, or employees who routinely post to such platforms in their official capacity are encouraged to seek advance blanket authorization to engage for their social media communications, in accordance with 3 FAM 4175.1(c).”
The blanket authorization as far as we can tell only applies to those who are engaged in social media platforms in their official capacities, it makes no similar provision for employees in social media platforms in their private capacities.
Fun With Fido or Grumpy Cat
The new regs helpfully notes that “Employees who, in their personal capacity, wish to communicate publicly on matters that are clearly not “of Departmental concern” (see 3 FAM 4173) need not seek Department review under the procedures outlined herein, and need not use the personal capacity disclaimer discussed below in paragraph (b).”
So, basically, if you blog, tweet or write a book about Kitty Kat or Fidodog, or about their travels and adventures in Baghdad, Kabul, Sanaa, and all the garden spots, you don’t need to seek Department review. That is, as long as Kitty Kat is not secretly arming the rodent insurgents and tweeting about it and Fidodog is not flushing government money down the toilet and blogging about it.
“I have spent most of my adult life avoiding the crazy, the incompetent and the stupid. But, once a year when I have the duty officer tour, they are funneled directly to me. I hate serving as duty officer.”
Via Foreign Service Problems: When you’re the duty officer and you get a call from an AmCit who is sure that the embassy has a helicopter and demands that you send said helicopter to pick them up from their hike because the AmCit is tired of hiking.
On August 5, the Senate Foreign Relations Committee cleared a short Foreign Service list (PN573-4) containing 20 nominees for “appointment as Foreign Service Officer of Class Two, Consular Officer and Secretary in the Diplomatic Service of the United States of America.” On the same day, Senator Grassley [R-IA] filed a notice of intent to object to “any unanimous consent request” relating to these appointments:
The State Department deputy spox was asked about this on August 6, and here is his response:
QUESTION: Well, he said he’s – he said the new holds are on 20 nominees.
MR TONER: I haven’t seen that additional add. I mean, look, we’ve received nearly a dozen letters and requests from Senator Grassley in recent months, and just in – as recently as July 1st we responded to him and then told him that a response that includes a document production was in process, and this response also included substantial responses to his queries on – specific queries on records retention at the State Department. These – as we’ve discussed at length here, these kind of document productions take time, and the Department will be providing information to Senator Grassley in response to the requests in the very near future. And in terms of – I think he sent a letter yesterday. We’re working on a response to his requests from the most recent letter.
According to time.com, the State Department has provided five letters since 2013 in response to Senator Grassley’s inquiries about everything from its use of SGE designations to Clinton’s use of a private e-mail server. But the senator has reportedly accused the department of willfully withholding responsive materials, demonstrating “a lack of cooperation and bad faith in its interaction with Congress.”
So 21 career nominees from 11 states right now. None from Iowa. Just. Pawns.
When I wrote that Rawr piece in 2011, I wrote this:
I have not seen or heard of Tigers actually yanking anybody’s clearance due to an offending blog. I am aware of private sessions of discouragements, issues with onward assignments, and of course, threats of various colors and stripes among directed at FS bloggers. And as far as I know, they have not technically kicked out anyone who blogs either — unless you call the “push” to retirement a payback kick.
Well, State did yank Peter Van Buren‘s clearance afterwards, but it was for more than just a blog. Occasionally, I get a request to cite a case where identified individuals got into real trouble due to blogging in the Foreign Service. Except for a small number of cases (PVB, ADA and MLC), I’ve refrained from writing about the blog troubles out of concern that writing about them makes it worse for the individual bloggers. In many cases, the bloggers themselves quietly remove their blogs online without official prompting. Out of the abundance of caution.
A recent FSGB case decided in January 2015 shows a charge of “Poor Judgment” against an FSO based on a post in her personal blog written in October 2008. That’s right. The blog post was online for barely a day and was taken down in 2008. To be clear, the poor judgment charge related to the blog is just half the charges filed against this employee. But in January 2013, State proposed a five day suspension for the FSO. Excerpt from the FSGB record of proceeding available online:
The Improper Personal Conduct charges are based on grievant’s personal relationships in the summer of 2008 with two individuals to whom she had previously issued non-immigrant visas, and the Poor Judgment charge is based on a post in her personal Internet blog in October of 2008.
During a flight to the United States during the spring of 2008, grievant unexpectedly encountered another citizen of Country X (Citizen B) for whom she had issued a visa, fell into conversation with him, and exchanged contact information. Upon her return to Country X, grievant was hospitalized in June 2008. While in the hospital, she received a call from Citizen B, who said he would ask his family members to visit her. They did so. Soon after Citizen B returned to Country X, grievant invited him to lunch. Thereafter, the two conducted an intimate relationship for about three weeks.
Later, Citizen A contacted grievant requesting her assistance in issuing a visa to his new wife. Grievant told him she could not be involved in his wife’s visa application process because she knew him. Consequently, another Consular Officer adjudicated and issued the visa for Citizen A’s new wife. Shortly thereafter, grievant posted on her personal blog (using Citizen A’s initials) a comment saying, in effect, that sharing a bottle of wine with someone could be disastrous, especially when that person shows up at your workplace seeking a visa for his new bride. Within a day of this blog posting, grievant was warned by a colleague to take it down, and grievant did so.
In a letter issued on January 31, 2013, the Department of State proposed to suspend grievant for five workdays, based on three charges that arose from conduct occurring in 2008. Ultimately, the suspension was reduced to three workdays. Grievant’s appeal raised issues of timeliness as well as challenges to the substance of the charges. Grievant is a class FS- 04 Consular Officer who was serving abroad in 2008. In May 2009, a co-worker at her Embassy complained to the RSO that grievant had become too close to some visa applicants and their attorneys and was maintaining improper personal relationships with them. The Office of the RSO investigated the allegations and eventually referred the matter to the Consular Integrity Division (CID). In its report of October 2009, CID found no wrongdoing and returned the matter to post. Nonetheless, the RSO referred the complaint of the co-worker to DS for investigation, but did not do so until January 2011. DS, for no articulated reason, did not assign the case to a field agent until September 28, 2011. DS then did not complete its investigation and forward the matter to HR until late October or early November 2012.
The Board concluded that there was no fact-based excuse for the delay at the RSO level and that there was no evidence of necessity for the length of time engulfed in the DS investigation. The Board found that the grievant had been harmed by the overall delay, caused by two different bureaucracies in the Department. The Board identified the harm as the statistically diminished promotability of this particular officer, given her combination of time-in-service and time-in- class.
The FSGB explains in the footnotes that 1) “She [grievant] was unmarried and remained unmarried through at least the date of her suspension. We mention her marital status only because in other disciplinary cases, an officer’s married status has been deemed a risk for coercion if someone knowing of the sexual misconduct threatened to reveal it to the officer’s spouse. Here, however, it does not appear that the grievant’s marital status was relevant to the selection of penalty or the choice of the charges. Noting grievant’s marital status may obviate confusion, if anyone examining other grievances or appeals should consider this case for comparison purposes.” 2) “Because of sensitivity surrounding the country in which grievant served her first tour, both parties refer to it as “Country X…”
In its decision last January, the FSGB held (pdf) that “grievant had shown by a preponderance of the evidence that the Department’s delay of over three years in proposing grievant’s suspension was unexcused and unreasonable and that grievant’s promotional opportunities had been harmed as a result of the delay. Grievant is entitled to reversal of the three-day suspension for charges of Improper Personal Conduct and Poor Judgment, as well as removal of the suspension letter from her OPF. Grievant is entitled to promotion to the FS-03 level, as recommended by the 2013 Selection Boards, retroactive to 2013.”
While this case was resolved on the FSO’s favor, I’m taking note of this case here for several reasons:
1) According to the redacted report published online, the misconduct was reported to the agency by one of grievant’s co-workers on May 20, 2009. An embassy is a fishbowl. Anyone at post familiar with one’s activities, in real life or online can file an allegation. If you write a blog specific to your post, people at post inevitably will connect you to it. A single blogpost, even if taken down, can reach back and bite. Across many years. State’s position is that grievant’s argument that the Department had no regulations or guidelines about personal blogs in 2008 “does not make her posting any less wrong.” Interestingly, that official line doesn’t seem to apply when it comes to the former secretary of state’s use of private email.
2) Even if an allegation is dismissed by the Consular Integrity Division (CID), it does not mean the end of it, as this case clearly shows. After the case was dismissed by CID, the case was forwarded to Diplomatic Security for another investigation. “Counting from the date on which the behavior was reported (as specific misconduct) to the agency to the date of proposal of the five-day suspension, the period of delay in dispute is three (3) years and eight months.” While I can understand what might have prompted the initial complaint, I’m curious about the second referral. I’d be interested to see comparable cases to this. I’m wondering if this case would have been referred to a second investigation if she were a male officer? Absolutely, yes, no? But why a duplicate investigation?
3) When grievant departed Country X for a new post, her continued blogging activity prompted other Consular (CID) investigations. Since there are no public records of these incidents until the cases end up in the FSGB, it is impossible to tell how many FS employees have been referred to CID or DS for their blogging activities. Or for that matter, what kind of topics got them in trouble. I am aware of cases where FS bloggers had difficulties with onward assignment, but those were never officially tied to their blogging activities; that is, there were no paper trail pointing directly at their blogs. This is the first case where we’re seeing on paper what happens:
Grievant states in the ROP that “while in [REDACTED] she did not receive any of the initial positions she bid on. Eventually, she was told that even though she had a good reputation for her work, “there was the blog thing.” Also, she recalls that a “handshake” offer of a Consular Chief position in [REDACTED] was rescinded. She attributes this to an unnamed official’s claim that “Embassy decided they did not want me after CID told them about my history (presumably the blog, and my time in Country X).”
4) Beyond the consequences of not getting onward assignments, here’s the larger impact: “In 2015, the first year her file would be reviewed without any discipline letter, grievant would have been in the Foreign Service for nine years and in class FS-04 for seven years. In point of fact, these lengths of time in service and time in class fall far above the average promotion times for officers moving from grade FS-04 to FS-03.[…] We conclude, under the totality of circumstances, that the untimely suspension prejudiced her chances for promotion to FS-03 in the years 2015-2018.”
5) Beyond the blog thing — the FSO in this grievance case was an untenured officer serving her first tour at a “sensitive” country the FSGB would only refer to as Country X. When the FSO argue that she was never counseled at post regarding these relationships (other half of charges is for Improper Personal Conduct), the State Department contends that “any lack of counseling “does not erase the perception of impropriety [grievant’s] actions could create if made public, nor does it serve as an implicit concession that [grievant’s] actions were somehow appropriate.” \
Well, okay, but ….. 3 FAM 4100 is the rules for the road when it comes to employee responsibility and conduct. Which part of the current A100 or leadership and management classes are these FAM sections incorporated? While I can understand the department’s contention above, it also does not absolve the agency from its responsibility to provide appropriate counsel and training, most especially for entry level officers. Or is this a gap in the training of new employees? When a new, inexperienced officer is first posted overseas, who can he/she ask about delicate issues like this? Is there a Dear Abby newbies can write to or call for counsel at the State Department without the question trailing the employee down every corridor?
In March 2012, AFSA’s General Counsel Sharon Papp reported about a State Department proposal related to the “state of affairs” in the Foreign Service ….no, the other kind of affairs:
In 2011, the State Department proposed disciplinary action against a handful of employees for off-duty conduct that it had not sought to regulate in the past (i.e., extramarital affairs between consenting adults).
When we reviewed several sex-related grievance cases in 2012, we came to the conclusion that from the agency’s view, widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service. Further, the potential for embarrassment and damaged to U.S. interests seems as weighty as actual embarrassment and damage. See: Sex, Lies, and No Videotapes, Just Cases for the Grievance Board
We recently received the following in our mailbox (edited to remove the most identifying details):
The married DCM at the embassy of a major Middle East ally slept with a married ELO whose husband worked for him. He blamed his alcoholism. As “punishment,” he was assigned as DCM at a significant high risk/high threat post. Next up? One of the top jobs at an embassy located in a Western European country. Where’s the accountability at State? Is it only the little people that are taken to task?
Well, that is an excellent question given another allegation we’ve received about another front office occupant involved in domestic violence overseas (another story we hope to write another day).
Extra-marital affairs, of course, are not mentioned anywhere in the Foreign Affairs Manual but below is what the regs say on sexual activity (pdf) and what constitutes, “notoriously disgraceful conduct.” Both sections were last updated in 2012, and applies to Foreign Service employees at State and USAID:
3 FAM 4139.1 Sexual Activity (CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees)
The agencies recognize that, in our society, there are considerable differences of opinion in matters of sexual conduct, and that there are some matters which are of no concern to the U.S. Government. However, serious suitability concerns are raised by sexual activity by an individual which reasonably may be expected to hamper the effective fulfillment by the agencies of any of their duties and responsibilities, or which may impair the individual’s position performance by reason of, for example, the possibility of blackmail, coercion, or improper influence. The standards of conduct enumerated in 3 FAM 4138 are of particular relevance in determining whether the conduct in question threatens the mission of the employing agency or the individual’s effectiveness.
3 FAM 4139.14 Notoriously Disgraceful Conduct (CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees)
Notoriously disgraceful conduct is that conduct which, were it to become widely known, would embarrass, discredit, or subject to opprobrium the perpetrator, the Foreign Service, and the United States. Examples of such conduct include but are not limited to the frequenting of prostitutes, engaging in public or promiscuous sexual relations, spousal abuse, neglect or abuse of children, manufacturing or distributing pornography, entering into debts the employee could not pay, or making use of one’s position or immunity to profit or to provide favor to another (see also 5 CFR 2635) or to create the impression of gaining or giving improper favor. Disqualification of a candidate or discipline of an employee, including separation for cause, is warranted when the potential for opprobrium or contempt should the conduct become public knowledge could be reasonably expected to affect adversely the person’s ability to perform his or her own job or the agency’s ability to carry out its responsibilities. Evaluators must be careful to avoid letting personal disapproval of such conduct influence their decisions.
One might argue that an extra-marital affair between two consenting adults is a private matter. And in most cases, it is; who wants to be the sex police? But. If the allegations are true, can you really consider it private, particularly in a case that involves the second highest ranking public official at an embassy and an entry level officer (ELO) assigned under his command? Even if the DCM is not the ELO’s rating or reviewing officer — how does this not affect the proper functioning of the mission? Can anyone exclude undue influence, potential favoritism or preferential treatment? Which section chief would give a bad performance review to a junior officer who slept with the section chief’s own reviewing officer? Even if not widely known outside the Foreign Service, can anyone make a case that this is not disgraceful or notorious? For real life consequences when a junior officer has a “special relationship” and “unrestricted access” to an embassy’s front office occupant, read the walking calamity illustrated in this case FSGBNo.2004-061 (pdf).
Look … if widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service for the lower ranks, why should it be a requirement for the upper ranks? It’s not? Well, how else can we explain a good number of senior officials who allegedly looked the other way?
Can’t you see I’m busy? Besides I did not/did not see anything!
We went and looked up the Foreign Service Grievance Board cases related extra-marital affairs or related to notoriously disgraceful conduct. Here are some quick summaries.
In 2011, the State Department handed down a 30-day suspension to a junior officer for “off-color and offensive emails about women he dated, which were widely disseminated” after his private email account was hacked. State said this constituted “notoriously disgraceful conduct.” (pdf)
Another case in 2011 involves an FSO who was told by the State Department: “Given the nature of Foreign Service life, you are aware that you are on duty 24/7. These multiple extramarital affairs involving sexual relations with an estimated 13 women during two separate assignments overseas without your spouse’s knowledge show poor judgment for a Foreign Service Officer.” (pdf) (note: two separate assignments could mean 4-6 years; untenured tours at 2 years, tenured tours typically at 3 years).
A Diplomatic Security (DS) Special Agent was suspended for three days for Notoriously Disgraceful Conduct arising from a domestic violence incident with his spouse. (pdf)
A married FP-04 Information Management Specialist (IMS), received a 20-day suspension, subsequently reduced to 10 days, for improper personal conduct and failure to follow regulations. The employee served at a critical threat post, and admitted having an extramarital relationship with a local embassy employee as well as engaging in sexual relations with two “massage techs.” (pdf)
An untenured FP-04 Diplomatic Security (DS) agent was disciplined for poor judgment and improper personal conduct. The employee brought a woman to his hotel room and engaged in sex with her. Although the employee voluntarily disclosed the incident and asserted that the woman was not a prostitute, the Department contends that the incident at a minimum gave the appearance of engaging in prostitution and as such violated 3 FAM 4139.14 or Notoriously Disgraceful Conduct. (pdf)
A married FS-02 Information Management Officer (IMO) with seventeen years in the Department, with numerous awards and no disciplinary record, was found in his personal vehicle that was parked in an isolated area, and in a dazed condition with injuries suggesting he had been assaulted. He stated that during the prior night he had picked up a woman unknown to him, shared wine with her while driving, pulled over to the side of the road and then had no recollection of what followed, presumably because she had introduced a substance into his drink. During the ensuing investigation, the employee revealed he had picked up four or five women on previous occasions over a four-month period and had sex with them without the knowledge of his wife. As a result, the Department proposed a ten-day suspension based on the charges of Poor Judgment and Notoriously Disgraceful Conduct. (pdf)
An FP-04 Diplomatic Security (DS) agent was given a five-day suspension without pay on the charge of Improper Personal Conduct. The charge is based on an incident in a criterion country in which employee (an unmarried person) engaged in consensual sex with a local woman and gave her $60.00 after the sexual activity had concluded. There was no evidence that the woman was a prostitute and there were no witnesses to their encounter. The employee self-reported the incident immediately to his supervisors, who took no disciplinary action. Eighteen months later, the Department opened an investigation and eventually suspended the employee. The deciding official concluded that employee’s conduct had violated two regulations governing behavior subject to discipline: 3 FAM 4139.1 (Sexual Activity) and 3 FAM 4139.14 (Notoriously Disgraceful Conduct). (pdf)
We have so far been unable to locate FSGB cases of “notoriously disgraceful conduct” involving senior Foreign Service officials; certainly nothing at the DCM or COM level. It could be that 1) our search function is broken; 2) the folks are so risk-aversed and discreet that there are no cases involving a single one of them, or 3) potential such cases were swept under the rug, nothing makes it to the public records of the Foreign Service Grievance Board.
Joseph Cassidy served 25 years in the Foreign Service. He joined the Service in 1989 and previously served in Georgetown, Nairobi, Windhoek, OSCE, USUN and Baghdad. He also served at IO, DRL, the WH, and as Special Assistant to P, INR and the Executive Secretariat. His most immediate assignment prior to retirement this past spring is Director of Policy and Regional and Functional Organizations at the Bureau of International Organizations. He pens 10 fixes for America’s ailing State Department in Foreign Policy’s Argument column.
Here are the best lines, in no particular order, from his FP piece; in technicolor font, of course, because, why not?
1. “[I]t’s not clear what authority remains for State, other than delivering the diplomatic mail.”
2. “The regional bureau assistant secretaries occupy sixth floor offices beneath the secretary, and the functional bureau assistant secretaries fight like cats in a bag for the next best real estate.”
Image from xlestatx72.tumblr.com via buzzfeed
3. “There are certain exceptions to the rule that upper floors are closer to God (including some temporarily semi-powerful special envoys slumming it on the lower floors), but employees below the sixth floor can’t help but feel like passengers berthed in steerage on the Titanic.”
4. “This centralization of diplomatic interactions by senior officials who are not subject matter experts is a particular temptation at State because high-level diplomacy is, well, fun.”
5. “It is no wonder that senior officials are reticent, even if unconsciously, to devolve responsibility down, or that too many “kiss-up, kick-down” style mid-level managers covet that high-level life and manage as if their subordinates exist only to make them look good.”
6. “Limiting their numbers, and cutting the large number of semi-independent special envoys, can help restore a more sustainable hierarchy, instead of what we have now, which is like fielding a soccer team with nine strikers clustered around the opponent’s goal, and a goalie and single defender lonely in the backfield.”
7. “If the intent is to simultaneously demonstrate haughty disdain and weaselly incompetence, the midday press briefing ritual — badgering reporters cornering a backpedaling, defensive State spokesperson — is the perfect vehicle.”
YouTube is littered with fine examples
8. “[D]ecisions by the sorting hat don’t always match an officer’s interests and experience. And, like trying to move from Hufflepuff to Ravenclaw, changing one’s cone can be as unpleasant as the semiofficial department term for it: “conal rectification.”
9. “The department does have senior leaders with broad talents. But we also have too many who write beautifully but couldn’t organize a grade school lunch line. Others can speak authoritatively, but lack reporting experience beyond writing an annual holiday card, or can balance a budget but possess diplomatic skills more likely to produce enemies than allies for the United States.”
10. “Gryffindor’s quidditch team didn’t operate on the principle of “One Team, Multiple Systems” and neither should State.”
11. “Like the pack dogs in the movie Up constantly distracted by squirrels, too many senior officials spend too much time preoccupied with the urgent rather than the important.”
12. “State’s organizational culture is antiquate and inefficient, concentrating decisionmaking in the hands of a few extremely overburdened top officials.”
CorridorRep.com’s site administrator is Foreign Service Officer Mark D. Perry. (Note: he is not the Mark Perry on LinkedIn). We requested a short bio and here is what he sent us:
Mark D. Perry is a consular-coned Foreign Service Officer who has served overseas in Monterrey, Cairo, and Lima. He is currently working in a domestic assignment at the Buffalo Passport Agency. He enjoys chocolate and looking for ways to make life better through the use of technology. Prior to joining the service, he worked in corporate HR for Tyco International, Ltd.
We cannot give you firsthand assessment of the site but readers writing this blog seems split between “this is great, yay!” or this is a terrible idea.
Mr. Perry told us via email that he has been thinking about this idea for years and floated it to a number of trusted friends. “Some said wow this is great and others said you are crazy,” he writes.
Another feedback we got is along the line of — hey, it only took a minute to figure out who runs this site; if he’s not good at protecting himself … what about my information?
We asked Mr. Perry about that and he explained that he created the LLC not to hide his identity, but to provide some additional legal protection. That is true enough as LLC owners are protected from personal liability for business debts and claims.
We also asked about some readers’ concerns on data security, and here is his response:
I can understand the concerns about data security but I think the potential benefits outweigh these risks. Anything posted here could also be overheard in a cafe or sent by personal email to a friend or already on someone’s Facebook page. All of these are also easy targets for collection. This is nothing new. The site might make it marginally easier but I really do not see much risk in that aspect.
One reader asked about an “opt-out” so we also put that question to Mr. Perry.
[T]here really is not [a] way to prevent someone from rating you. Preventing someone from being rated would be technically close to impossible. Anyone can delete or edit the ratings they have entered for others but could not delete ratings from others about themselves. Anyone can choose not to visit the site so I guess that is one way one could opt out.
The site itself says that “you now have access to honest 360 reviews.” One of the screencaps on the site is a section that says “Will work again with You” with the following options: 1) Supervisor, 2) Subordinate, 3) Colleague, 4) Other and 5) All. We should note that the State Department has been using the 360 degree feedback for years primarily as a placement tool during the assignments process, and as far as we know, not as a developmental tool.See update below.
So think Yelp, Trip Advisor, Amazon and other online rating sites out there, except that the employee is now the rated brand/product. Or perhaps the closest ones would be the student rating sites for teachers/professors performance. Online reviews are popular and have grown prevalent in recent years. There are even online reviews written by ex-convicts! These online reviews have also grown controversial, of course, with some allegations of manipulation (and some real) orchestrated by companies to trick potential customers. The Harvard Business review last year, however notes that “voracious information-seeking has become deeply ingrained in many consumers, and we can envision no scenario in which they will see traditional marketing as a better provider of product information.”
In some ways, corridorrep.com is probably more like glassdoor.com, a career community that depends on everyone being able to share an inside look at a company they know. Corridorrep.com depends on everyone being able to share an inside look about each other; it’s success certainly depends on the participation of enough individuals rating each other. Its stated goal is to have 5,000 reviews. Since we posted about the site, the online reviews have gone from 26 to 83, averaging about six reviews a day in the last 9 days. That’s not a significant number at this time but if the number of posts continue at this rate, we estimate that the site will reach its goal in slightly over a couple of years. The question now is how many of the Foreign Service’s 13,908 employees are willing to participate? Will Civil Service employees and Foreign Service Nationals, who all have state.gov emails also participate?
We understand that the site has become fairly controversial within the FS community. We are sure there are many more questions out there for corridorrep.com. We have offered to host a Q&A at our forum and Mr. Perry has accepted the invitation. He will answer your questions on Saturday, July 18, 7pm EST. This forum is set as “open” so non-registered members of the forum and readers of the blog will be able to post questions of interest. You may post your questions ahead of time here: http://forums.diplopundit.net/?forum=457155.
See you at the forum!
Update: We received the following nugget from an FSO with clarification on current use of 360 at State; our correspondent is not sure if there is a similar process for the Civil Service:
“State’s mandatory leadership and management training that everyone in the Foreign Service has to take each time they are promoted to the next level (at least for promotions to 02, 01 and into the SFS, not sure about below that) has a 360 component. You have to submit 10-15 names to review you anonymously, inlcuding subordinates, peers and bosses (the bosses are not anonymous). The results and comments are shared with you and the FSI instructors and I’ve found it quite useful. You also do one for yourself and seeing the similarities or differences between your self-image of your strengths and weaknesses and how others view you is very instructive.”
A Consular Officer also sent us the following details on the use of 360s at State/CA:
The Bureau of Consular Affairs also uses 360s as a development tool. Its CBAT program collects 360s for bidders and shares the report of the assessors’ input with the bidder. There are fewer questions than on the leadership training 360s mentioned above, but the CBAT does ask “would you work with this employee again?” and offers free text fields for assessors to say whatever they want. In general, the new (2 years old) CBAT process has been received pretty well, although I think some officers have been surprised by frank feedback. And on the leadership training you mentioned, that is also open to Civil Service employees. I think it is mandatory at GS-13/14/15.