A Small Post in Africa Just Fired “Several Dozen Male Employees”

We received the following in our inbox recently:

The Embassy held a town hall and finally disclosed that several dozen male employees had been separated from employment.

Charges included:

— improper used of government computers

— immoral conduct for posting obscene images and videos to a social media chat group

Criminal investigation is ongoing.

TDY staff have been flown in from other AF posts, NEA and Washington DC.

Outgoing ambassador departs soon; incoming ambassador to arrive in February.

Most of the job vacancies should be listed on the Embassy website in the coming weeks.

So this is a small post.  Since most jobs are expected to be advertised on the embassy website, we can assume that those separated from employment were locally hired staffers. “Several” means more than two and fewer than many.
Let’s say we have about a hundred employees at this post, with half of those male. Several dozens, say three dozens would be 36 employees. If four dozens, that would be the entire male population, half of the locally hired staff, wouldn’t it?
How would embassies ever find out what shenanigans are going on in their computer systems?
Information Systems Security Officers (ISSO) are responsible for implementing the Department’s information systems security program and for working closely with system managers on compliance with information systems security standards. The Bureau of Information Resource Management’s Office of ISSO Oversight, Regional, and Domestic Division, assists, supports, and coordinates the activities of domestic and overseas ISSOs.
In 2017, OIG inspection reports have repeatedly found deficiencies in the performance of ISSO duties. The Management Assistance Report then notes the following:

OIG reviewed information management findings in reports of overseas inspections conducted from fall FY 2014 to spring FY 2016 and found that 33 percent (17 out of 51) reported findings on the non-performance of ISSO duties. Specifically, the reports noted that information management personnel failed to perform regular reviews and analyses of information systems audits logs, user libraries, emails, workstations, servers, and hard drives for indications of inappropriate or unusual activity in accordance with Department standards.

But what if this post was previously:
— informed in 2019 that its unclassified and classified Information Systems Security Officers (ISSO) did not perform all information systems security duties, such as review and analysis of information systems audit logs for inappropriate or unusual activity, as required by 12 FAM 613.4?
— informed that its ISSOs did not brief new employees on their information security responsibilities and the Department’s policies? OIG notes that ISSO briefings are particularly important for LE staff who have never worked for the U.S. Government.
— informed that its ISSOs did not use the Department’s ISSO resources, such as standard operating procedures and checklists, to prioritize and plan their duties?
— made aware that a lack of planning and training as well as competing priorities led the embassy to neglect these duties and this has resulted in the security of the Department’s computer systems at risk?
Who should then be held accountable for this incident?
Or.
Perhaps, it took the embassy this long to finally conduct a systems audit logs and other systems security duties as required, and that’s how they found out about these obscene images?
Who should get an award?
Makes one wonder about that 17 posts who were reported for non-performance of ISSO duties.
What might they find there when they finally do perform those duties?

 

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Barrio Azteca Gunmen Charged With US Consulate Cd. Juarez Murders Found Guilty on All Counts

In February 2014, we blogged about the US Consulate Ciudad Juárez Murder Trial in El Paso. The victims of that 2010 tragic incident were El Paso County sheriff’s detention officer Arthur Redelfs, his wife Lesley Ann Enriquez Redelfs, who worked at the U.S. Consulate in Juárez, and Jorge Salcido Ceniceros, husband of Hilda Salcido who also worked at the consulate.
On February 4, 2022, USDOJ announced that the Barrio Azteca Gunmen who committed the US Consulate Murders in Ciudad Juarez were found guilty on all counts. Excerpt below:

A federal jury in Texas yesterday convicted two members of the violent street and prison gang, Barrio Azteca, on all counts related to the murders of a U.S. Consulate employee, her husband, and the husband of another U.S. Consulate employee.

Jose Guadalupe Diaz Diaz, aka Zorro, 43, of Chihuahua, Mexico, and Martin Artin Perez Marrufo, aka Popeye, 54, of Chihuahua, Mexico, were found guilty at the conclusion of a 13-day jury trial before U.S. District Judge Kathleen Cardone in the Western District of Texas, El Paso Division. The jury found Diaz and Marrufo guilty of conspiracy counts for racketeering, narcotics trafficking, narcotics importation, money laundering, and murder in a foreign country; three counts of murder in aid of racketeering, and three counts of murder resulting from use and carrying of a firearm during and in relation to crimes of violence and drug trafficking.

Evidence presented at trial demonstrated that on March 13, 2010, Diaz and Marrufo served as gunmen on the hit teams that murdered U.S. Consulate employee Leslie Enriquez, her husband, Arthur Redelfs, and Jorge Salcido Ceniceros, the husband of another U.S. Consulate employee. The victims were targeted by the hit teams after departing from a child’s birthday party in Juarez because they were mistaken initially for rival gang members. Diaz shot and killed Enriquez and Redelfs. Marrufo shot and killed Ceniceros.

“The murders of Leslie Enriquez, Arthur Redelfs, and Jorge Salcido Ceniceros are a tragedy,” said Assistant Attorney General Kenneth A. Polite Jr. of the Justice Department’s Criminal Division. “These convictions demonstrate the Department’s commitment to combating violent transnational criminal organizations. I want to thank the Mexican Government for its cooperation including extraditing both defendants to the United States to face criminal charges.”

“Although 12 years have passed since these senseless murders, our office has only strengthened its resolve to seek justice for victims of cartel violence,” said U.S. Attorney Ashley C. Hoff for the Western District of Texas. “These guilty verdicts demonstrate the diligent pursuit of our prosecutors and our commitment to protecting communities from ruthless brutality.”

“These convictions represent the FBI’s commitment to take aggressive action against anyone who takes the lives of innocent American citizens,” said Assistant Director Luis Quesada of the FBI’s Criminal Investigative Division. “Even the most ruthless criminals, whether here or afar, cannot evade justice, and we will continue to hold those accountable who commit brutal acts of violence.”

“Today’s convictions serve as a stark warning to all drug traffickers that we will pursue and prosecute any and all who compromise the safety and health of Americans and those who support our U.S missions abroad,” said DEA Administrator Anne Milgram. “The hardworking women and men of DEA will continue to work with our domestic and global partners to rid our communities of the intimidation, violence, and drug abuse these criminal drug networks inflict.”

At trial, prosecutors presented evidence that Barrio Azteca is a transnational criminal organization engaged in money-laundering, racketeering, and drug-related activities in El Paso, Texas. The gang allied with other drug gangs to battle the Sinaloa Cartel, at the time headed by Chapo Guzman, and its allies for control of the drug trafficking routes through Juarez, Chihuahua, Mexico. The drug routes through Juarez, known as the Juarez Plaza, are important to drug trafficking organizations because it is a principal illicit drug trafficking route into the United States.

A total of 35 defendants were charged in the third superseding indictment and are alleged to have committed various criminal acts, including the 2010 Juarez Consulate murders in Juarez, Mexico, as well as racketeering, narcotics distribution and importation, retaliation against persons providing information to U.S. law enforcement, extortion, money laundering, murder, and obstruction of justice. Of the 35 defendants charged, all have been apprehended and 28 have pleaded guilty. One was convicted by trial, one committed suicide before the conclusion of his trial and three are awaiting extradition from Mexico.

Diaz was extradited from Mexico on Nov. 13, 2019 and Maruffo was extradited from Mexico on Jan. 18, 2020. The extraditions were the result of close coordination between U.S. and Mexican law enforcement authorities, who also cooperated in the investigation and prosecution of this case.

Sentencing is scheduled for May 9. Diaz and Maruffo face a mandatory minimum sentence of life in prison.

A lot of people who worked on this case deserves our gratitude:

Trial Attorney Jay Bauer of the Criminal Division’s Human Rights and Special Prosecutions Section, Trial Attorney Christina Taylor of the Criminal Division’s Organized Crime and Gang Section and Assistant U.S. Attorney Steven Spitzer of the Western District of Texas are prosecuting the case. The U.S. Attorney’s Office for the District of New Mexico and the Criminal Division’s Offices of International Affairs and Enforcement Operations provided significant assistance in this case.

The FBI’s Safe Streets Task Force located at the Texas Anti-Gang Center in El Paso, FBI Albuquerque Field Office, DEA Juarez and DEA El Paso investigated the case. The Bureau of Alcohol, Tobacco, Firearms and Explosives; Immigration and Customs Enforcement; the U.S. Marshals Service; U.S. Customs and Border Protection; Federal Bureau of Prisons; U.S. Department of State’s Diplomatic Security Service; the Texas Department of Public Safety; the Texas Department of Criminal Justice; El Paso Police Department; El Paso County Sheriff’s Office; El Paso Independent School District Police Department; Texas Alcohol and Beverage Commission; New Mexico State Police; Dona Ana County, N.M., Sheriff’s Office; Las Cruces, N.M., Police Department; Southern New Mexico Correctional Facility and Otero County Prison Facility New Mexico provided valuable assistance. 

 

@StateDept Revises Reporting Requirements For All Security Clearance Holders

 

The State Department recently revised the Foreign Affairs Manual (FAM) for information State Department employees are obligated to report to DS/SI/PSS per an Office of the Director of National Intelligence directive.  The change log says that this was a substantial increase in requirements from the last edition.
Also below is the reporting requirement matrix dated January 21, 2022 and the related stats from Diplomatic Security on its Insider Threat Program for 2019 and 2020.
Via 12 FAM 273  REPORTING REQUIREMENTS FOR ALL WHO HAVE ACCESS TO CLASSIFIED INFORMATION OR HOLD A SENSITIVE POSITION
12 FAM 273.1  Applicability
(CT:DS-372;   01-21-2022)

The following reporting requirements are applicable to all covered individuals, defined at 12 FAM 271.3 as individuals who perform work for or on behalf of the Department of State and has been granted access to classified information (Confidential, Secret, or Top Secret) or who occupy a sensitive position, for which the adjudicative determination for the security clearance, sensitive position, and/or access to SCI, was rendered by the Department.

12 FAM 273.2  Reportable Actions by Others
(CT:DS-372;   01-21-2022)
a. All covered individuals have an obligation to report activities of other covered individuals that may be of a potential security or counterintelligence concern.  Persons with information they believe may have a bearing on another individual’s eligibility for access to classified information or to hold a sensitive position must report that information.  This includes, but is not limited to:
(1)  An unwillingness to comply with rules and regulations or to cooperate with security requirements;
(2)  Unexplained affluence or excessive indebtedness;
(3)  Alcohol abuse;
(4)  Illegal use or misuse of drugs or drug activity;
(5)  Behavior that may suggest a mental health issue where there is reason to believe it may impact the individual’s ability to protect classified information or other information specifically prohibited by law from disclosure;
(6)  Criminal conduct;
(7)  Any activity that raises doubts as to whether another covered individual’s continued national security eligibility is clearly consistent with the interests of national security; and
(8)  Misuse of U.S. Government property or information systems.
b. This information may be submitted via the Personnel Reporting Tool, via email DSDirectorPSS@state.gov, or directly to InsiderThreatReporting@state.gov.

Read in full here.

Via State/DS

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Photo of the Day: @StateDept’s First Evacuation Flight Out of Wuhan, PRC, Jan. 29, 2020

 

Via State/DS

DSS regional security office team helps process and board 195 Americans and other passengers for the first evacuation flight out of Wuhan, PRC, Jan. 29, 2020. (U.S. Department of State photo)
In January 2020, as the new and highly infectious coronavirus began spreading through People’s Republic of China (PRC), the local government unexpectedly closed the airport, stopped public trans- portation, and closed the roadways. U.S. diplomats and other personnel posted at the U.S. Consulate General in Wuhan were caught in the lockdown, worried about potential inability to access medical care and support services, and fearful they might not be able to leave Wuhan. DSS revised its evacuation plan quickly to help evacuate Americans on the first airlift out of Wuhan. This laid the groundwork for four additional evacuation flights that brought 600 Americans home by the end of February 2020.

Read more at: https://www.state.gov/the-untold-coronavirus-story.

A Plot To Injure Or Kill Myanmar’s Ambassador to The United Nations

 

Via USDOJ:

Damian Williams, the United States Attorney for the Southern District of New York, announced today the guilty plea of YE HEIN ZAW, a citizen of Myanmar, for his role in a conspiracy to assault and make a violent attack upon Myanmar’s Permanent Representative to the United Nations.  ZAW pled guilty today in White Plains federal court before U.S. District Judge Philip M. Halpern.

U.S. Attorney Damian Williams said: “As he admitted in court today, Ye Hein Zaw participated in a plot to injure or kill Myanmar’s ambassador to the United Nations in a planned attack that was to take place on American soil.  Zaw now awaits sentencing for his crime.  I commend the tireless efforts of our law enforcement partners at all levels of government to ensure the safety of foreign diplomats and officials in the United States and bring the perpetrators of this plot to justice.”

According to the Information to which ZAW pled guilty, the complaint that was filed in this case, and statements made during court proceedings:

Between at least in or about July 2021 through at least on or about August 5, 2021, ZAW, a citizen of Myanmar residing in New York, conspired with others to injure or kill Myanmar’s Permanent Representative to the United Nations (the “Ambassador”).  During the conspiracy, a co-conspirator communicated with an arms dealer in Thailand (the “Arms Dealer”) who sells weapons to the Burmese military, which overthrew Myanmar’s civilian government in or about February 2021.  In the course of those conversations, the co-conspirator and the Arms Dealer agreed on a plan in which the co-conspirator would hire attackers to hurt the Ambassador in an attempt to force the Ambassador to step down from his post.  If the Ambassador did not step down, then the Arms Dealer proposed that the attackers hired by the co-conspirator would kill the Ambassador.

Shortly after agreeing on the plan, ZAW contacted the co-conspirator by cellphone and, using a money transfer app, transferred approximately $4,000 to the co-conspirator as an advance payment on the plot to attack the Ambassador.  Later, during a recorded phone conversation, ZAW and the co-conspirator discussed how the planned attackers would require an additional $1,000 to conduct the attack on the Ambassador in Westchester County, and, for an additional payment, the attackers could, in substance, kill the Ambassador.  In response, ZAW agreed, in substance, to pay the additional $1,000 and to try to obtain the additional money.

ZAW pled guilty to one count of conspiracy to assault and make a violent attack upon a foreign official, which carries a maximum sentence of five years in prison.  The maximum potential sentence in this case is prescribed by Congress and is provided here for informational purposes only, as any sentencing of the defendant will be determined by the judge.

ZAW is scheduled to be sentenced by Judge Halpern on May 10, 2022.

Read more:

First Extradition From Cameroon to US: Fugitive to Serve an 80-Year Prison Sentence

 

Via USDOJ:

In the first extradition from the Republic of Cameroon to the United States, a Texas man was extradited to Houston on Friday to serve an 80-year prison sentence he received in absentia four years ago after he pleaded guilty in two separate cases to conspiracy, health care fraud, money laundering, and tax offenses.

According to court documents, in November 2016, Ebong Aloysius Tilong, 57, of Sugar Land, Texas, and his wife, Marie Neba, went to trial on the conspiracy, health care fraud, and money laundering charges. The trial evidence and court documents showed that between 2006 and 2015, Tilong, Neba, and their co-conspirators used Tilong and Neba’s company, Fiango Home Healthcare Inc. (Fiango), to corruptly obtain more than $13 million by submitting false and fraudulent claims to Medicare for home health care services that Fiango’s patients did not need or receive. The trial evidence and court documents also showed that Tilong and Neba paid illegal kickbacks to patient recruiters to refer patients to Fiango, and that Tilong falsified and directed others to falsify medical records to make it appear as though Fiango’s patients met the Medicare qualifications for home health care. Additional evidence demonstrated that Tilong attempted to destroy evidence and blackmail and suborn perjury from witnesses. After the first week of trial, Tilong pleaded guilty to one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, three counts of payment and receipt of health care kickbacks, and one count of conspiracy to launder monetary instruments.

In June 2017, Tilong pleaded guilty in a separate case to two counts of filing fraudulent tax returns. In connection with this guilty plea, Tilong admitted that he created a shell company called Quality Therapy Services (QTS) to limit the amount of tax that he paid to the IRS on the proceeds that he and his co-conspirators stole from Medicare. According to Tilong’s plea agreement, in 2013 and 2014, Tilong wrote almost $1 million in checks from Fiango to QTS for physical-therapy services that QTS never provided to Fiango’s patients and deducted as business expenses. Tilong admitted that his tax fraud scheme caused the IRS a tax loss of approximately $344,452.

In August 2017, Neba was sentenced to 75 years in prison the Medicare fraud scheme at Fiango. The U.S. District Court scheduled Tilong’s sentencing for Oct. 13, 2017, but court records show that on the morning of his sentencing hearing, Tilong removed an ankle bracelet monitoring his location and failed to respond to phone calls from, or appear in, the U.S. District Court for his sentencing. On Dec. 8, 2017, the U.S. District Court sentenced Tilong in absentia to 80 years in prison for his role in the Medicare and tax fraud schemes.
[…]

In September 2021, the Republic of Cameroon President Paul Biya signed a decree ordering Tilong’s removal to the United States.

On Dec. 10, 2021, U.S. Marshals escorted Tilong from Cameroon to the United States.

The United States is grateful to the Government of Cameroon for its cooperation and support of this extradition request.

Read more:

@StateDept Fails in FSGB Defense Over Coersive (Unlawful) Curtailment

 

The FSGB found that the State Department committed in prohibited personnel practice (“PPP”) violation of 5 U.S.C. § 2302(b)(4) against an FS employee stationed overseas when it coerced his curtailment from post. The Board also found that the curtailment in this case failed to comply with 3 FAM 2443.2. This case is horrifying in how carelessly embassy officials can chuck anyone out the airlock.
Also see FSGB: When Voluntary Curtailment Is NOT Truly Voluntary
According to the FSGB ROP, the Department questioned “whether 5 U.S.C § 2302 applies to Foreign Service Officers, because Title 5 of the U. S. Code applies only to Civil Service Employees.15 However, it concludes that, assuming the provision applies, there is no evidence to support the finding of a violation”.
The Board’s decision says “we address the Department’s question of whether Foreign Service Officers are protected against prohibited personnel practices. […] Under Section 105 (b)(2)(B)(4) of the Foreign Service Act of 1980, all FS members are free from any personnel practice prohibited by 5 U.S.C. § 2302. […] we find that PPP protections apply to Foreign Service Officers under Section 105 of the FSA.
The oldest executive agency then argued before the Grievance Board that the Senior Regional Security Officer’s alleged statement that “all this would go away,” while putting his hand on the investigatory file, “could have merely meant the file itself would be gone or that the Ambassador’s determination to involuntarily curtail him would be obviated by his decision to voluntarily curtail.”
And get this, the Department concludes that the “vague statement” by the SRSO was not deceitful.”
The Department also argued that grievant has “failed to meet his burden to show that the SRSO knew that his statement was untrue or that he acted with an intent to mislead grievant.”
Oh, lordy!
Then covering all its bases — “even assuming that the statement was deceitful, the Department contends that Section 2302(b)(4) only applies to “competition for employment,” which is limited to hiring and promotions and does not apply to the retention of employment.14  Although curtailment is an assignment, it is not a process of hiring or promotion.”
The Department agreed that “it committed a harmless error of its curtailment procedures.”
It sure wasn’t “harmless” on the affected employee and his family, was it?
The FSGB did not buy it.

It is clear that the Board’s analysis found that the SRSO engaged in deceit. The statute prohibits “deceit or willful obstruction.” While obstruction is defined as willful, the drafters did not see a need to use the adjective with deceit. Deceit is willful; it is not negligent or inadvertent.

The Board includes “deceit” in the footnotes:

26 Black’s Law Dictionary (10th ed, 2014) defines deceit: “1. The act of intentionally leading someone to believe something that is not true; an act designed to deceive or trick. 2. A false statement of fact made by a person knowingly or recklessly (i.e., not caring whether it is true or false) with the intent that someone else will act on it. 3. A tort arising from a false representation made knowingly or recklessly with the intent that another person should detrimentally rely on it.”

On curtailments, the Department notes that “under 3 FAM 2443.2(a), the Chief of Mission (COM) has discretion to determine curtailment when it would be in the best interest of the post. While the COM must follow procedures, there is no evidentiary standard, and the curtailment procedures do not require the same rigor as the disciplinary process.”
The Department then makes a shocking or maybe not really a shocking admission:

“..there were serious allegations against grievant, and the COM was not required to determine whether they were true, but only if the curtailment was in the best interests of the post.”

Wait, what? So anyone could make a claim, state an allegation, anyone could start a rumor, and COM is not required to determine whether they were true? How bonkers is that?
Via Record of Proceedings
FSGB Case No. 2019030 | September 29, 2021

The Department’s MFR seeks reconsideration of the Order on two grounds. The first ground for reconsideration is that the Department claims that the Board committed “clear error” by failing to find evidence of two essential elements of a prohibited personnel practice (“PPP”), in violation of 5 U.S.C. § 2302(b)(4), despite finding that the Department committed a PPP. The missing elements, according to the Department, are – a willful or deliberate deception and a competition for a position. The second basis for reconsideration is that the Department claims that the Board committed “clear error” by conflating the curtailment and discipline procedures when it failed to remand to the Department the question of whether it would have curtailed grievant absent the procedural error by failing to follow the Department’s curtailment regulations.

Grievant, an FS-02 Security Engineering Officer (“SEO”), served as the Deputy Officer in Charge (“DOIC”) of the Department’s Engineering Services Office (“ESO”) at the U.S. Embassy in REDACTED (“post”) from August 2016 to January 18, 2017. His rater was the Officer-in-Charge (“OIC”), and his reviewer was the Senior Regional Security Officer (“SRSO”).

The incident that led to a preliminary investigation of the grievant and, subsequently, an in-depth investigation of him by the Office of Civil Rights (“S/OCR”), is an alleged threat made by grievant at the end of December 2016. On January 10, 2017,1 a supervisee claimed that grievant had made an implied threat of physical violence to him, and the SRSO assigned the Assistant Regional Security Officer (“the ARSO”) to investigate and notified the Bureau of Diplomatic Security (“DS”), Office of Special Investigation (“DS/DO/OSI”). On January 12, post management briefed the Ambassador, who decided to exercise his authority under 16 STATE 27226 to curtail grievant from post. Later that day, January 12, the SRSO, grievant’s reviewing officer, held a meeting with grievant, two Human Resource Officers, and grievant’s rater and told grievant that the Ambassador had decided that he would be involuntarily curtailed if he did not voluntarily curtail, and if he voluntarily curtailed, “all of this,” gesturing to the investigative file, “would go away and it would be as if he had been curtailed for family reasons.”2

But the investigation did not, in fact, “go away.”

On January 14, the ARSO issued an RSO Report, which the Accountability and Suitability Board (“A&SB”), which included the SRSO, discussed that day with the Ambassador. The case was referred to the Department of State’s Office of Civil Rights (S/OCR) that same day. On January 16, the Management Counselor prepared a Decision Memorandum (“Decision Memo”) in Support of No-Fault Curtailment, which was sent to the front office. A day later, on January 17, grievant met with the HRO at post and formally accepted a “voluntary curtailment,” and management approved his request that day. On January 18, Grievant curtailed without having been advised of the ARSO’s report or of the referrals to S/OCR and to
DS/DO/OSI.
[…]
GTM/ER proposed to suspend grievant on a single charge of Improper Comments, with three specifications. The Deciding Official (“DO”) sustained only two of these specifications, both dealing with alleged threats. With the dismissal of the third specification, all potential EEO violations were dismissed. The DO reduced the penalty from a two-day to a one-day suspension.”5

Grievant filed an agency-level grievance, alleging that the one-day suspension violated regulations; that his 2017 Employee Evaluation Report (“EER”) contained a falsely prejudicial statement based on the charge; that the RSO Report contained a falsely prejudicial statement that he had been counseled for anger management; that his curtailment was coerced and unlawful under 12 STATE 27212 (“Curtailment of Employee Based on Conduct or Disciplinary Issues”); and that his assignment to a non-supervisory, overcomplement6 position was based on a PPP. The grievance was denied by the Department.

Board found that the Department committed a PPP, in violation of 5 U.S.C. § 2302(b)(4). […]Moreover, even without the PPP finding, the Board found that the curtailment failed to comply with 3 FAM 2443.2, and the Department does not challenge that finding.

[…]
By inducing grievant’s “voluntary curtailment” on an unenforceable assurance, post avoided going through the procedural safeguards of 3 FAM 2443.2, which apply to voluntary curtailments that are initiated at the request of the COM. What the Department does not acknowledge is that the SRSO (importantly, grievant’s reviewing official, the official who had directed the ARSO’s investigation and notified DS/DO/OSI and a member of the A&SB advising the Ambassador) told grievant that if he voluntarily curtailed, it would be “as if he curtailed for family reasons.” That would mean a curtailment under 3 FAM 2443.1 with no prospect of discipline.

The Board denied in full the Department’s Second Motion for Reconsideration and issued six other orders related to back pay, reconstituted Selection Boards, promotion, and interest on back pay.
The Board ordered remedies for violations of 3 FAM 2443.2 and 5 U.S.C. § 2302(b)(4) , remedies for falsely prejudicial language in Grievant’s EER; attorney’s fees request is held in abeyance until final resolution of the remedies.
The remedies ordered include:

2. The Department shall pay grievant “an amount equal to all, or any part of the pay, allowances, or differentials [including overtime], as applicable, which [he] normally would have earned or received” during the period of 18 ½ months of the remainder of his posting at post, had he not been improperly curtailed, less any amounts he earned through other employment during that period, pursuant to 5 U.S.C. § 5596(b)(1)(A)(i), 5 C.F.R. 550, Subpart H..

4. The Department shall hold four reconstituted Selection Boards for the years when grievant’s OPF contained the uncorrected 2017 EER.

5. If grievant is promoted by any of the reconstituted SBs, the promotion should beretroactive to the date a promotion would have been implemented by the SB for which it was reconstituted. The Department shall pay the wage differential from the date of any retroactive promotion.

6. The Department shall pay interest on any back pay awards due under this order.

The conduct of these government representatives at this post should be labeled “notoriously disgraceful conduct”. And the State Department should be shamed for defending this type of unacceptable behavior.  Oh, please don’t tell us these people all got promoted!
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FSGB: When Voluntary Curtailment Is NOT Truly Voluntary

 

This is part 1 of two parts we want to post about this specific grievance case. We want to highlight this part of the curtailment process that’s called “voluntary” because it was not a voluntary one, but a “coerced voluntary curtailment”. We have no idea who are the individuals involved in this case, of course, but we are aware of how the so called “voluntary” curtailment has been misused and far from being voluntary in other cases in the past.
The chief of mission was supposed to “ensure that rigorous standards apply to curtailment requests.” Whatever standards were applied in this case could not be called rigorous by any stretch of the imagination. Good grief, the ARSO wrote a false report! As if that was not enough, a supervisor engaged in deceitful behavior. And State basically shrugged its admirable shoulders, and said who cares?
Record of Proceedings
FSGB Case No. 2019030 | September 30, 2020
INTERIM DECISION  (CORRECTED 10/05/2020)

We find here that the procedures for curtailing grievant violated 3 FAM 2443.2. The due process provisions of the regulation were not
followed. Grievant was given an ultimatum to voluntarily curtail, or he would be involuntarily curtailed, when the Ambassador had limited information and the grievant had not been given any of the due process rights outlined in 3 FAM 2443.2 and the guideline cables provided below.
The applicable FAM, 3 FAM 2443.2 Involuntary Curtailment at Request of Chief of Mission, reads:

a. If the chief of mission determines that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the employee, the chief of mission may ask that the employee’s tour of duty be curtailed immediately.

b. If the employee is an employee of the Department of State, the chief of mission should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service requesting curtailment of the employee. The request must:


(1) Include background information on any incidents that support the request;

(2) Confirm that the employee has been informed of the request and the reasons therefore; and

(3) Confirm that the employee has been advised that he or she may submit comments separately.


c. If the employee requests curtailment, the chief of mission should use the DIRGEN channel to:


(1) Inform the Director General of the chief of mission’s support of the employee’s request; and

(2) Explain fully the circumstances that, in the chief of mission’s judgment, justify immediate curtailment.


d. Except in cases of serious misconduct, criminal activities, or actions that have serious security implications, a chief of mission may offer the employee the alternative of submitting a request for immediate voluntary curtailment. If the employee is an employee of another agency, the request should be submitted to [their appropriate officials]. … The same supporting information required in 3 FAM 2443.2 should be used in requesting curtailment.57

According to the Decision Memo, the Ambassador invoked 16 STATE 27226, issued on March 14, 2016, Chief of Mission Instructions Regarding Conduct and Discipline Abroad, to determine that curtailment was necessary in this case. The summary describes the cable as the
first of two issued that date to provide guidance on conduct and discipline issues. The cable notes that COMs have full legal authority for the supervision of all government executive branch employees in that country.

The other memo issued on the same date, 16 STATE 27212, Curtailment of Employees Based on Conduct and Disciplinary Issues (Checklist), provides detailed procedures for handling curtailments. Among the relevant paragraphs are:

Par. 1. Curtailment may include the employee’s immediate departure from post, and can be voluntary or involuntary. As COM, you must ensure that rigorous standards apply to curtailment requests. Curtailments disrupt lives of employees and entail high professional and monetary cost from the Service in terms of lost productivity, service, and frequently, investment in training. Therefore, this authority must be used with judicious care and restraint.

Par. 2. If you, as COM, determine that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the Service … you may request that the employee’s tour of duty be curtailed immediately. Per 3 FAM 2443.2, you should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service. The curtailment cable request must:

o include background information on any incidents that support the request;

o confirm that the employee has been informed of the request and the reasons therefor; and

o confirm that the employee has been advised that he or she may submit comments separately.

..HR strongly encourages post to share the request cable with the employee so the employee has the full report on which he/she can send comments.

Par. 3. Except in cases of serious misconduct, … you may offer the employee the option to request immediate voluntary curtailment in lieu of involuntary curtailment. If the employee requests voluntary curtailment, he/she should request immediate curtailment through the HR channel in a message addressed to his/her Career Development Officer (CDO) in HR/CDA (see para. 19 [checklist]). As COM, please ensure that you use the DIRGEN channel to confirm your support, or opposition to, the employee’s request and explain fully the circumstances that justify immediate curtailment.


Par. 13. Curtailments should first be vetted by a management team at post. …. Proper vetting throughout the process then allows the COM to be better able to determine whether to move forward with the curtailment request.


Par. 14. In all cases, the DIRGEN cable must include background information on the incident (s) that supports post’s decision. Except for cases of directed curtailment, the cable must confirm that the COM has discussed the proposed action with the employee and also confirm that he/she may submit separately, either by cable via the DIRGEN channel or email to the DG Direct e-mail address, any comments about the curtailment. HR will not approve any curtailment request that comes without supporting information.

Par. 19. D. [H]as the employee had the opportunity to discuss the situation with the DCM?


Par. 20. As applicable, the above elements should be addressed in a DIRGEN cable. The Department is committed to making the curtailment system work for the good of the Service and our employees, protecting both the authority of management and the rights of employees.

Grievant’s decision to curtail was not truly voluntary. Grievant did not initiate the curtailment. The Ambassador, according to what the RSO and HR told grievant on January 12, had decided that grievant had a choice to either curtail voluntarily or involuntarily. In doing so, he was exercising his right under 3 FAM 2443.2d to give the employee the option of taking a voluntary curtailment in lieu of an involuntary one. Given that ultimatum, the only way to prevent the potential adverse career effect was to choose “voluntary” curtailment. According to grievant, he was also given the inducement that if he chose “voluntary” curtailment, “all this,” which he could reasonably understand to mean any type of charge against him, would be withdrawn. Given the lack of denials, we credit grievant that this statement was made. Yet we know that, on January 14, before the curtailment took effect, the ROI had been closed without action by DS and referred to S/OCR. The case was not going away.

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FSGB: Extra/Marital Drama With Three Women, Two Pregnancies, and a Reduced 12-Day Suspension

 

Via ROP/FSGB 2020-036/September 21, 2021:

Held – The Department of State (“Department”) met its burden of demonstrating by a preponderance of the evidence that grievant committed the misconduct with which he was charged; that the discipline proposal was timely and without procedural defect; and that the proposed penalty was reasonable and proportionate to the misconduct.

Case Summary – Grievant was serving as a Diplomatic Security (“DS”) Special Agent (“SA”) at an overseas post with his then-wife. He was engaged in extramarital affairs with two women employed at the embassy (both of whom became pregnant), failed to report these relationships, failed to report out of country travel with one of the two women, and threatened and intimidated the other woman, prompting two investigations and his voluntary curtailment from post. Two years later, while participating in a meeting concerning the medical evacuation (“medevac”) of his new wife, grievant was accused of bullying and intimidating behavior toward personnel from the Bureau of Medical Services (“MED”), prompting a third investigation. On December 8, 2017, the Department proposed a 30-day suspension without pay, on five charges with 22 specifications. On January 23, 2019, the Department sustained the proposed 30-day suspension. Grievant filed a grievance, challenging the validity of the charges and the severity of the penalty. In the agency-level grievance decision, the Department sustained four charges with 13 specifications and reduced the suspension to 12 days.

Grievant alleged that much of the conduct reflected misunderstandings. He stated that his first marriage was failing when he arrived at post and he eventually married, and remains married to, one of the two women with whom he had affairs. He contended that the investigations into his alleged misconduct were marred by the bias and unprofessional conduct of post’s Regional Security Office as well as being unduly delayed, causing him personal and professional harm. He argued that the alleged misconduct at the MED meeting resulted from mistreatment of his family by MED and should be dismissed. Grievant also alleged that the discipline was untimely, coming almost six years after the first alleged act of misconduct until the Department’s agency-level decision, an unreasonable period of time that impacted his ability to grieve a flawed process and manage his career. Grievant also argued that the Department did not meet its burden of proving the charges, appropriately weigh mitigating factors, or offer timely or proportionate discipline. Grievant argued that the charges should be dropped, or the penalty substantially reduced.

The Department responded that the complexity of the case and number of incidents leading to successive investigations, justified the time necessary to propose discipline. The agency also rebutted allegations that the discipline process was procedurally flawed, asserting that it properly assessed the charges and grievant’s misconduct, considered all mitigating factors, and levied a penalty that was both fair and proportionate.

The Foreign Service Grievance Board (“Board”) found that the Department met its burden of proving all charges and specifications. The Board found no procedural errors and concluded that the charges were not stale and the delay not prejudicial. The Board upheld the Department’s penalty determination process, including an assessment of all mitigating factors and review of appropriate comparator cases. The grievance was denied in full.

According to the ROP, the grievant was advised on January 25, 2017, “This case is still ongoing pending additional information.”8 Notwithstanding this notice, in February 2017, grievant was promoted to FS-03, still as an ARSO, retroactive to November 2016.9″
The small prints:
1 Although grievant was once tenured as a DS SA and promoted to FS-03 in that capacity, he subsequently changed careers to FSO generalist at a reduced grade of FS-04 and he remains untenured in that capacity.
9 The Department reported that grievant’s name was “temporarily removed from the rank order list of employees recommended for promotion by his 2016 FS Selection Board pending a standard vetting check …. [D]ue to his then-pending discipline cases, [he] should have been continually reported [as ineligible for promotion] in the ensuing vetting checks …. [I]t appears that [grievant’s] name was not properly reported [in early 2017] … resulting in the erroneous reinstatement of his name to the promotion list.” See Agency Amended Response to Board Request for Information, at 3-4.
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