DSS Agent Accused of Sexual Assaults Petitions Court Not to Show His Face — Oops, Too Late

Posted: 10:25 pm  PT

 

On April 9,  the Milwaukee Journal Sentinel reported that DSS Agent David Scharlat’s lawyer petitioned the court to order news media to not show Scharlat’s face as part of any coverage of the case, citing his undercover work for the U.S. State Department’s Diplomatic Security Service. Bucher withdrew the petition Tuesday after it was reported in the Journal Sentinel.

The Journal Sentinel’s  reported that there was some confusion over Scharlat’s employment status:

In court Wednesday, Hulgaard noted that the State Department relieved him of all his duties, made him surrender his weapon and badge, and escorted him from a government building to his home in April 2015.

In an April 9 letter to Hulgaard, an acting deputy assistant secretary with the Diplomatic Security Service said Scharlat is presently employed, but that disclosure of his identity would not adversely affect any open case or investigation.

But wait, a State Department official also told the Journal Sentinel that Scharlat was hired in 2001 and “fired in April 2015.” Also this:

“The Department has zero tolerance for sexual assault and takes any and all allegations of sexual assault very seriously,” and has been cooperating with Waukesha County authorities, the official said in an email.”

Can they please get their story straight? He can’t still be “presently employed” and also “fired in April 2015.”

If he is still employed but has no assigned duties, it is likely that this is now an HR administrative case with appeals and whatnots. But three years on, and this admin case is still ongoing? How did Diplomatic Security and Bureau of Human Resources Conduct, Suitability, and Discipline Division, Office of Employee Relations (HR/ER/CSD) handle this case when one of the victims reported this case to the agency? How are all other cases handled? How many are there? Who keep tabs of these cases?

Isn’t it high time for State/OIG to look into the handling of sexual assault and sexual harassment reports at the State Department?  Or should we all write a daily email to our friends in Congress to get GAO to take a look?  Click here for our previous posts on sexual assaults and here for harassment.

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Diplomatic Security Agent Charged With Five Counts of Sexual Assault Over Four Years in Wisconsin

Posted: 3:11 am  ET

 

Diplomatic Security agent David S. Scharlat was charged on March 31 with five counts of felony sexual assault, ranging from first to third degree, in Waukesha County Circuit Court in Wisconsin. According to the Journal Sentinel, Scharlat’s attorney, Paul Bucher, said the allegations “were old, including some that had been dismissed at an earlier civil court hearing, and his client believes the alleged actions were consensual.”

Scharlat is an agent with the U.S. Department of State Diplomatic Security Services. On Friday, a spokesperson for the State Department could not comment on his employment status or the investigation.

In a 2012 federal court filing, Scharlat said he was assigned to the Chicago Field Office and had been with the agency for about 11 years.

Wisconsin Circuit Court records indicate case 2017CV001949 was filed against Scharlat on November 6, 2017:  Waukesha County Case Number Party Sealed by Judge Bugenhagen vs. David Scot Scharlat “The court did not issue an injunction against the respondent in this case. The reasons were stated on the record and may be explained in the final order. No adverse inference should be drawn against the respondent when an injunction is denied or a case dismissed. The fact that a petition was originally filed means nothing.”

Case 2017CV001998 was filed on November 13, 2017 for “Domestic Abuse-Temp Rest Order.” Court record for the November 20, 2017 injunction hearing says:

Petitioner in court. Petitioner in court with Attorney Rebecca M Coffee. Respondent David S Scharlat in court. Attorney Paul E Bucher in court for Respondent David S Scharlat. Atty. Coffee requests to proceed on both case 17CV1998 and 17CV1949. Atty. Bucher objects to proceeding on both filings. Court stated they will proceed on both case but the definition of domestic abuse and harassment to defer. Atty. Bucher moves to dismiss both cases. Court denies the Motion to Dismiss. H.W., sworn in and testified. Atty. Bucher requests all witnesses be sequestered. Court orders all witnesses be seated in the hallway. Court continues case for criminal case to proceed. Injunction hearing scheduled for April 30, 2018 at 10:00 am.

Case 2018CF000482 was filed on March 30, 2018 charging Scharlat with Count 1 3rd Degree Sexual Assault; Count 2 1st Degree Sexual Assault/Great Bodily Harm; Count 3-5 2nd Degree Sexual Assault/Use of Force. Initial appearance is scheduled for April 11, 2018 at 1:15 pm. The Court record notes that “This case has not been concluded. Unless a judgment of conviction is entered, the defendant is presumed innocent of all charges.”

The criminal complaint includes three victims, identified as HLW, MRH and CKT with charges filed “upon a review of the investigative reports of Detective Paula Hoffa, Village of Hartland Police Department, Detective Sergeant Gwen Bruckner of the Town of Brookfield Police Department, and Lieutenant Detective Kristen Wraalstad and Officer of the Town of Oconomowoc Police Department.”

According to the complaint, “Officers made contact with Scharlat about the incident on October 20, 2017 at HLW’s residence and he advised officers that although he had been with HLW at her residence on that evening, he had not had intercourse with her at her residence.” The complaint also says that “The fitted sheet from HLW’s bed from the night of October 20, 2017 was submitted to the State Crime Lab for testing. The results from the DNA testing of the sheet showed that Scharlat’s semen was present, consistent with HLW’s statement.”

Under Count 2,  complaint says that “When questioned about HLW’s level of intoxication and her incapacity/inability to give consent, he stated when they got home from the bar, HLW was not incapacitated but did have trouble walking.”

Under Count 3 and 4, complaint says “On Monday, February 26, 2018 officers had contact with MRH 08/01/1967 who, in a statement deemed to be reliable inasmuch as she is a common, ordinary citizen witness indicates that she had been sexually assaulted by David Scharlat on two occasions.”

Under Count 5, complaint says “Officers had contact with CKT, DOB 03/12/1970 to whom they explained they were investigating an incident that they believed may have some connection to an incident involving her. In a statement deemed to truthful and reliable inasmuch as she is a common, ordinary citizen witness in this case, CKT advised that her rapist and stalker was Scharlat.”

We’ve requested comments from DS/Public Affairs about this case but so far have heard only crickets.

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Suicide Attack With an Explosive Device at U.S. Embassy Podgorica #Montenegro

Posted: 2:37 am ET
Updated: Feb 28, 11:20 pm PT

 

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@StateDept’s Office of Security Technology to Purchase Wearable Radiation Dosimeters

Posted: 3:29 am ET

 

On January 10, the State Department issued solicitation #19AQMM18Q0014 for radiation dosimeters. The small business set-aside firm-fixed price contract is for a base year minimum order quantity/quarter of 450 units, and a maximum order quantity/quarter of 475 units, with four option years of the same minimum/maximum requirements. So 1900 units for the base year or 9500 units total in five years.  The order is solicited on behalf of Diplomatic Security’s Office of Security Technology (DS/C/ST):

The Government requies a wearable device that records exposure to ionizing radiation that does not contain electronic equipment. It is anticipated that the device will be returned to the vendor for reading and reporting back to the Government the amount of radiation exposure recorded on the device (see Radiation Survey Results Report for more information on the reporting deliverable).

The anticipated order quantity is up to 475 devices. The anticipated ordering frequency is quarterly. No less than 450 devices will be ordered per quarter.

Delivery of the device is required 30 days from award of the BPA call to the X-Ray Program Manager (to be identified upon BPA award).

Radiation Survey Results Report: Radiation survey results reports are to be delivered to the X-Ray Program Manager (to be identified upon BPA award) within 30 days of receipt of returned device for those devices with a reading of over 50 milliRem (mR). Electronic copies of the report will be accepted, and is preferred, and electronic archiving options are also acceptable and preferred.

*

The Department of Homeland Security (DHS) did a survey on radiation dosimeters back in 2015 and established the System Assessment and Validation for Emergency Responders (SAVER) Program to assist emergency responders making procurement decisions. Here is what it says about dosimeters:

Dosimeters are radiation safety devices worn to quantify an individual’s accumulated radiation dose incurred from external sources to evaluate the potential for harmful health effects of radiation. Dosimeters differ from other radiation detection devices that are designed for the purpose of preventing a radiological release by alerting a responder to the presence of radiation.

It appears from the State Department solicitation description that they are looking for processed dosimeters (and not self-reading dosimeters or electronic personal dosimeters, the latter generally the most expensive, largest in size, and most have visual, auditory, or vibratory alarms). Below is what DHS says about processed dosimeters:

Processed dosimeters are based on thermoluminescence (TL), optically stimulated luminescence (OSL), or direct-ion storage (DIS) technologies. Thermoluminescence dosimeters (TLDs) and OSL materials contain defects in their crystal structure that trap electrons released by exposure to radiation. In TLDs, the trapped electrons are subsequently freed by stimulation with heat, while OSL uses stimulation with light. In both types, after stimulation, the resulting light emission provides a measure of the radiation dose received. Specialized equipment is used for this readout, either by the user with field-portable or lab-based equipment, or by a dosimetry processing laboratory. A commercial dosimetry service can be contracted to supply dosimeters on a regular basis, read out returned dosimeters, and provide dose tracking and record keeping. TLDs and OSL dosimeters are offered in either a clip-on brooch format or identification card style. DIS devices use an analog memory cell inside a small, gas-filled, ionization chamber. Incident radiation causes ionizations in the chamber wall and in the gas, and the charge is stored for subsequent readout. The DIS dosimeter is read at the user’s site through connection to a web-based system via a universal serial bus (USB) port or Bluetooth connection to a computer or smart phone. The DIS dosimeter is designed to clip to a breast pocket. Processed dosimeters are also considered passive devices in that they do not have an on/off switch, though DIS devices do contain a small inaccessible battery to maintain their charge or for communications. Processed dosimeters are widely used in health and safety programs for radiation workers such as nuclear

Also this:

The purpose of a dosimeter is for worker protection. The potential hazardous effects of radiation depend on the radiation level. For very high doses (hundreds of R), the effects are immediate (“acute”) such as blood and skin damage or infertility, and the severity of the effect increases with dose.4 For lower radiation levels, the effects are not immediately life threatening; the long term accumulated dose is of interest because the probability (but not the severity) of effects such as cancer increase with dose.

Radiation dosimeters are routinely used in occupational radiation environments in the nuclear industry and at medical facilities. In contrast, except for some hazardous material response teams, most emergency responders do not routinely use radiation dosimeters. Responders may need dosimeters in the event of a radiological release such as a terrorist attack involving a radiological dispersal devise or an improvised nuclear device. Since emergency response scenarios span a wide range of potential radiation levels that could be initially unknown, many factors must be considered in the selection of a radiation dosimeter.

The State Department solicitation notes that the Radiation Survey Results Report are to be delivered to the X-Ray Program Manager within 30 days of receipt of returned device for those devices with a reading of over 50 milliRem (mR). More from DHS’s market survey report:

One of the most important factors influencing selection of radiation dosimeters is the magnitude of radiation levels that an instrument can measure – for example, a very sensitive device with a low minimum range is useful for alerting users to the presence of radiation but may go off-scale and not function in a high radiation field. The operational range of a dosimeter will determine how it can be used during the response, and several guidance documents provide reference values that help define what ranges are applicable. For example, the National Council on Radiation Protection and Measurements (NCRP) defined radiation control zone perimeters for emergency response to nuclear and radiological terrorism, where the “cold zone” is the area where the exposure rate is less than or equal to 10 mR/h, the “hot zone” is an area with exposure rate greater than 10 mR/h, and the “dangerous-radiation zone” is at 10 R/h and higher. Accumulated dose guidelines have also been developed by the Environmental Protection Agency (EPA) and the NCRP to guide tactical emergency response decisions, such as 10 rem for property protection operations and 25 rem and higher to conduct lifesaving missions, 5 or 50 rad to decide whether to withdraw from a radiation area.
[…]
The ability to alarm or display instant results may be an important feature to consider in relation to the magnitude of radiation levels. For example, in a dangerous radiation field, a high range electronic device that can measure exposure rates with a real-time display and alarms could help a responder avoid potentially life threatening doses. In a lower radiation field, self-reading and field-readable processed dosimeters could be used to provide near real-time information. In both types of fields and during intermediate and late phase recovery operations, processed personal dosimeters could be used for later verification of field instrument readings and to track accumulated dose for long term health.

Source doc: DHS Radiation Dosimeters for Response and Recovery Market Survey Report | June 2016 (PDF)

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Senators Seek Review/Analysis of @StateDept and @USAID Sexual Harassment and Assault Data

Posted: 2:29 am ET

 

U.S. Senators Ben Cardin (D-Md.), Ranking Member of the Senate Foreign Relations Committee, and Jeanne Shaheen (D-N.H.), Ranking Member of the SFRC Subcommittee on State Department and USAID Management, led the Committee’s Democrats in a letter to Secretary of State Rex Tillerson and USAID Administrator Mark Green on January 17, requesting a review and analysis of data to better understand the scope of sexual harassment and assault issues at the Department and Agency, in order to consider appropriate policy changes to address the problems.

ABOUT TIME.

Note that back in September 2016,  this blog wanted to know the statistics on sexual assault in the Foreign Service, specifically in Afghanistan and Iraq since 2003. We were also interested in overall statistics on sexual assault in the Foreign Service worldwide, during the last 10 years. We did not ask for names, only numbers. We simply asked for an accounting of sexual assault reports since the invasion of Iraq in 2003 to the present, and the worldwide number of reports spanning over 280 overseas posts in the last 10 years. We were sure the data must be available somewhere. How could it not?

This was the State Department’s official response at that time:

“The Office of Special Investigations receives and catalogues allegations and complaints. Allegations are neither categorized by location nor by alleged offense.”

That remains a shocking response.

Without looking at their data by location and offense, or for that matter by individuals accused, how is the State Department to know when there are serial offenders in its ranks? (See The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief).

In its 4th Quarter 2017 report for period ending September 30, 2017, the Office of Civil Rights (S/OCR) does have some information on Equal Employment Opportunity Data required by the No Fear Act.  The public report indicates that reprisal is the number one complaint by basis in FY2017.  Non-sexual harassment went from 72 complaints in 2016 to 103 at the end of FY2017. The comparative report notes 3 complaints of sexual harassment in 2016 and 6 complaints at end of FY2017.

The average number of days in investigation? 207.17 days.

Total Findings of Discrimination after a hearing for sexual harassment? Zero. In 2012.

Also zero in 2013, in 2014, in 2015, in 2016, and through the end of FY2017. Zero.

Apparently, S/OCR does not also count cases reversed by the EEOC like that 2016 case where S/OCR did not find sexual harassment but where the EEOC decided that the complainant was indeed subjected to sexual harassment and ordered the State Department to take remedial actions (see @StateDept to Hold “Harassment in the Workplace” Session But First, Read This FSI Sexual Harassment Case).

S/OCR was recently a presenter in a State Department Q&A session “Should I Report That? How (and when) to Report Workplace Conflict, Harassment & Bias in the Department”.

To read more about our previous posts on sexual assault, click here; for sexual harassment, click here.

Below is the text of the letter to Secretary Tillerson and USAID Administrator Mark Green:

We write to draw to your attention the November 28, 2017 letter signed by over 200 national security professionals who have served, often with distinction, in the State Department, the intelligence community, USAID, and the Pentagon about their experiences of (or serving as witnesses to) incidents of sexual harassment or sexual assault inside our national security bureaucracies.

This letter speaks to what we believe remains a critical issue that too many of our national security institutions have been too slow to address: sexual assault and harassment and its effects on the professionalism and effective functioning of those institutions. These incidents and the pervasive culture that all too frequently excuses these behaviors and actions have had serious and detrimental consequences for the careers and lives of those affected – and by depriving the United States of the service of some of our best and brightest, a deep and negative effect on our national security.

To better address this issue, we would urge you to provide the Foreign Relations Committee a review of your current methods for data collection, oversight, reporting structure, victim protections, analysis and anti-sexual harassment training, including employee feedback on these mechanisms and how they are being implemented. In our oversight capacity, we hope to work with you, to review and analyze the data to better understand the scope of the problem we confront as we consider appropriate policy changes to address it.

The November 28 letter contends that training is all too often “erratic” and “irregular,” and that policies often go unnoticed among staff. In our experiences serving on the oversight committee with responsibilities for the Department of State and USAID we concur with this contention. We would urge that you pay special attention to whether anti-harassment training is adequate, how it is implemented, and how it is enforced, in your respective reviews. We also urge you to examine your procedures for disciplinary actions to ensure that those who demonstrate improper behavior are held accountable for their actions.

The letter also calls for a number of reforms including a clear indication that national security leadership will not tolerate certain behavior, ensuring the full accessibility and functioning of “multiple, clear, private” channels to report abuse without fear of retribution, and ensuring sufficiently regular, mandatory, and instructive training for employees and contractors. We would be interested in your thoughts and comments on these potential areas for reform.

We also urge that you each take the opportunity to work with us to determine what additional resources are necessary to ensure that each report and allegation receives proper attention, that your offices are collecting all the relevant data, that cases are addressed in a timely and confidential fashion, and that training is fully implemented across the State and USAID workforce.

At a moment in our country when we are being reminded anew of the scope and challenge of sexual harassment in the workplace, we are rededicating ourselves here in the Senate to addressing this issue in our own ranks. The Legislative branch faces similar challenges and that while we work to address them, we expect the same from executive branch agencies. For our part, in addition to exploring appropriate oversight and legislative action to ensure that you have the resources and focus that you need to address these issues, we also intend to place additional emphasis on these issues in the confirmation process. We intend to ensure that nominees live up to the highest standards of behavior, and will seek commitments regarding how they intend to address sexual harassment and assault if they are confirmed.

Lastly, we note that the abuses, harassment and assaults noted in the November 28 letter are enabled by an environment in which the diversity of our nation – one of our “secret weapons” and competitive advantages as a nation – is not reflected in the national security workforce. This is especially true at the senior levels. At the State Department, for example, women and men enter the Foreign Service in roughly comparable numbers, but only about one-third of our senior Foreign Service Officers are women. Although women comprise a majority of the Civil Service, the Senior Executive Service remains 61% male and 89% white. Similarly disturbing trends come to light when analyzing the salaries, bonuses and expectations of workplace behavior amongst men and women working in national security roles. We still have a long way to go on gender equality in the national security workforce, and encourage you to share with us as well your vision for how you plan to address deficiencies in recruitment, retention and promotion to assure that your national security workforce is equitably balanced.

The members of our national security workforce should not be forced to spend their time and energy combatting harassment and a culture of tolerance for disrespectful behavior. Rather, they should be free to focus on what they do best – working to keep our nation safe. And we know from numerous studies that a more diverse workforce leads to better outcomes. A 2015 McKinsey study found that a more diverse workforce is more successful through improved decision-making, leadership, and financial progress. We know that to be true in the private sector and we know that to be true for government as well.

Mindful that there are myriad challenges and opportunities to better address sexual harassment in the workplace we do not seek nor do we expect you to develop a cookie-cutter approach to these issues. Rather, we call on you to respect the dignity of each member of our national security workforce by ensuring an environment in which each individual is capable of fully contributing his or her talents to our national security, without obstruction.

The original text of letter is posted here.

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EEOC Case: Investigators Find False Accusations, Agency Refuses to Help Clear His Name

Posted: 3:01 am ET

 

This is an EEOC case about a complainant who was the Consul General at the U.S. Consulate General in Naples, Italy.  The name used here is a pseudonym as in eeoc practice but the details are similar to the ugly, nasty case a few years back that made the news.  Most notable lesson here about the Privacy Act, and the limits of  Diplomatic Security’s willingness to clear somebody’s name when needed.

Via eeoc.gov

Believing that the Agency subjected him to unlawful discrimination, Complainant filed an equal employment opportunity (EEO) claim with the Agency. On November 26, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. This decision on the breached settlement was issued in November 2016. Excerpt below:

Background:

The record reflects that a subordinate of Complainant (Subordinate 1), who resigned in May 2012, and to a lesser extent her spouse made highly charged allegations against Complainant, i.e., entertaining prostitutes, escorts, and married women in his residence during work hours, engaging in fraud or mismanagement of funds, permitting his driver to be fired so his job could go to someone else and as a form of retaliation, throwing metal umbrella pots from his sixth floor residence down to the parking lot below and then jumping on and crushing them, and this was captured on CCTV and in front of the security guards, and so forth. By April 2013, the U.S. Embassy Rome, in consultation with the Bureau of Diplomatic Security, Special Investigation Division initiated an investigation. The investigation was conducted by two Special Agents with the Bureau of Diplomatic Security, and involved 20 individual interviews with Consulate Staff. It concluded that the accusation that Complainant threw metal pots was “false,” and the three other allegations specified above were completely false. The investigation found that the remaining allegations were variously false, completely false, unsubstantiated, not supported by evidence, and one, in essence, grossly exaggerated.

On June 16, 2013, the New York Post and Fox News published highly negative stories about Complainant, writing for example that Subordinate 1, a whistleblower, said Complainant had trysts with hookers, and this was the latest black eye for the scandal-ridden State Department. On June 17, 2013, Complainant was copied on an Agency email chain regarding the New York Post reporting Subordinate 1’s allegation that Complainant insisted a staffer have an abortion and the staffer said she got her “tubes tied” at his instruction. It was indicated in the email chain that the staffer said the article was “all lies” and felt strongly that she should respond to the article by saying something. The above DCM advised that it would be much better for the staffer not to say anything for now – that this could all blow over quickly.

In his EEO claim, according to Complainant, he alleged discrimination when he was denied assignments in line with his experience, ability, and professional background, the DCM knew that allegations against him by Subordinate 1, her spouse and two others were false and failed to take appropriate action, and management held him accountable for the false accusations and denied him support.

By letters to the Agency dated February 1, 2016 and May 10, 2016, Complainant alleged that the Agency misled him into entering into the settlement agreement and breached it. Specifically, he alleged that when he signed the settlement agreement, the Agency knew Subordinate 1’s EEO complaint had been investigated with a finding of no wrongdoing on his part, that she would likely continue to litigate in federal court, and he could have used the EEO decision to exonerate himself. Complainant wrote that after the settlement agreement, Subordinate 1 continued to attack him in the press, with articles appearing in prominent news outlets such as Newsweek and the New York Post. He pointed to a proposed June 2013 Agency press release recounting that the Diplomatic Security Service investigated the allegations and found no violations of U.S. or Italian law, and contended that had the press release been issued this would have rebutted the articles or they would not have been published. He argues that the Agency allowed employees and family members to utilize the EEO process to raise false allegations against him despite the Agency’s conclusion that they were baseless, and in failing to clear his name breached the settlement agreement and made it ineffective and unenforceable.

The Agency found that it complied with the settlement agreement. Regarding term 9.d, the Agency found that Complainant’s submittal of proposed changes to his 2012 EER was a condition precedent to the former DCM reviewing them and considering making changes, and Complainant admitted he did not submit proposed changes because he was too disheartened and depressed. On appeal, Complainant, who is represented by counsel, confirms this, but adds another reason was that he lacked the necessary facts, particularly the EEO decision on Subordinate 1’s complaint.

Regarding term 9.g, the Agency recounted that Complainant stated it was breached because (1) the Agency simply wrote a one page memorandum simply listing the allegations against him and stating they were found to be unsubstantiated rather than discussing things in context to show how his accusers seized on scandal to defame him and hinder his career, (2) the memorandum was only based on facts until October 2013, failing to fulfill its purpose of summarizing the Diplomatic Security investigation,3 and (3) the Agency, in response to his inquiries, could not give him a clear answer on whether he could share the memorandum with family, colleagues, friends, and his Italian attorney, preventing him from doing so. On appeal, Complainant confirms that he raised reasons (1) and (3). He argues that not being able to share the memorandum makes it useless and his reason for entering into settlement negotiations was to restore his reputation.

In determining that it complied with term 9.g, the Agency found that it met its obligation to provide a summary of the investigation, and that there is no evidence the parties agreed to any specific format in or upon the use of the memorandum.

In determining that it did not negotiate the settlement agreement in bad faith, the Agency found that Complainant cited no authority for the proposition that it was obligated to divulge the outcome of Subordinate 1’s EEO case, and there was no evidence it negotiated in bad faith.

On appeal, Complainant adds that he would not have bargained for a memorandum summarizing the results of the Bureau of Diplomatic Security’s investigation had he known he could not use it, this is common sense, and the Agency’s failure to authorize its use is a breach of the settlement agreement. Complainant argues that the Agency breached the settlement agreement by failing to live up to the spirit of the document. He argues that the Agency’s failure, upon his request, to allow the issuance of the proposed press release in the Agency’s name violates the settlement agreement.

In opposition to the appeal, the Agency argues that disclosing Subordinate 1’s employment discrimination investigation would violate privacy right protected information, and it did not negotiate the settlement agreement in bad faith.

Decision

In June 2013, after the New York Post reported highly charged accusations by Subordinate 1 about the way Complainant treated a staffer, an Agency email string on which Complainant was copied showed the staffer wanted to say something rebutting what was reported, but the former DCM opined it would be much better if the staffer did not say anything now – this could blow over quickly. Further, Complainant strongly suggests that he was aware the Bureau of Diplomatic Security investigation was favorable and he certainly knew the Agency had done nothing to publically clear his name. While Complainant wanted the Agency to publically clear his name, he agreed to a settlement agreement that did not have a term explicitly doing this. Instead, the Agency agreed to issue to a summary of the Bureau of Diplomatic Security to Complainant – not the public.

Complainant’s contention that the Agency bargained for the settlement agreement in bad faith is not persuasive. First, as argued by the Agency, it had reason to believe the administrative decision on Subordinate 1’s complaint was protected by the Privacy Act, since administrative EEO records are generally within the scope of the Act. Further, Complainant has not shown he did not already have sufficient information to make a fair bargain when negotiating the settlement agreement.

The FAD is AFFIRMED.

Read the full case here via eeoc.gov.

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#Jerusalem Recognition: Protests and Limited Public Services #USEmbassies

Posted: 12:21 pm PT

 

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Dear Secretary Tillerson: What Are You Going to Do About This? #16Days

Posted: 3:40 am ET
 

 

A new mail in our inbox:

“In reference to a blog posting dated August 8th, you reported on a woman who was raped and stalked by a supervisory special agent.  This employee is still employed and he has struck again.  Why is he still employed yet still committing offenses?”

The new case includes a petition for temporary restraining order/injunction filed on November 13, 2017. It appears that the petitioner in this case did testify but the injunction hearing is scheduled for April 2018.

Back in August, we blogged about an individual who asserted that she was raped and stalked by a supervisory Diplomatic Security agent assigned to one of Diplomatic Security’s eight field locations in the United States:

She said that was interviewed by Diplomatic Security’s  Office of Special Investigations (DS/DO/OSI) in November 2014. She also said that she provided a Victim Impact Statement to DS/OSI in December 2015. The investigation reportedly concluded in February 2016 with no disciplinary action. She informed us that during one telephonic conversations with a Supervisory Special Agent, she felt pressured to say that “I was pleased with the DoS handling of this case.” She presumed that the call was recorded and refused to say it.  She cited another case that was reported around the same time her case was investigated in 2014.  She believed that there were multiple police reports for the employee involving different women for similar complaints.

We’ve asked the Bureau of Diplomatic Security for comments about this case, and whether this was reported to the Office of Inspector General. To-date, we have not received an acknowledgment to our inquiry nor a response to our questions despite ample time to do so.

Read more: A Woman Reported to Diplomatic Security That She Was Raped and Stalked by a DS Agent, So What Happened?

We are aware of at least three different incidents allegedly perpetrated by the same individual who has law enforcement authority. One of these three identifies herself as “Victim #4”.

Per Department of State Authorities Act for Fiscal Year 2017:

1 FAM 053.2-6  Required Reporting of Allegations to the OIG (CT:ORG-411;   04-13-2017)

a. Effective December 16, 2016, section 209(c)(6) of the Foreign Service Act of 1980, as added by section 203 of the Department of State Authorities Act, Fiscal Year 2017 (22 U.S.C. 3929(c)(6)), provides:

REQUIRED REPORTING OF ALLEGATIONS AND INVESTIGATIONS AND INSPECTOR GENERAL AUTHORITY.—

(A) IN GENERAL.—The head of a bureau, post, or other office of the Department of State (in this paragraph referred to as a ‘Department entity’) shall submit to the Inspector General a report of any allegation of—

(i) waste, fraud, or abuse in a Department program or operation;

(ii) criminal or serious misconduct on the part of a Department employee at the FS–1, GS–15, or GM–15 level or higher;

(iii) criminal misconduct on the part of a Department employee; and

(iv) serious, noncriminal misconduct on the part of any Department employee who is authorized to carry a weapon, make arrests, or conduct searches, such as conduct that, if proved, would constitute perjury or material dishonesty, warrant suspension as discipline for a first offense, or result in loss of law enforcement authority.

(B) DEADLINE.—The head of a Department entity shall submit to the Inspector General a report of an allegation described in subparagraph (A) not later than 5 business days after the date on which the head of such Department entity is made aware of such allegation.

b. Any allegation meeting the criteria reflected in the statute should immediately be brought to the attention of the relevant head of a bureau, post, or bureau-level office. (Bureau-level offices are entities on the Department’s organizational chart as revised from time to time, see Department Organizational Chart.)

c.  The first report by any Department entity should cover the period beginning December 16, 2016 (the day the law went into effect), and ending not later than five business days before the date of that report. Thereafter, any additional reportable information is due not later than the five-business day deadline stated in the statute. 

See more: @StateDept Now Required to Report Allegations and Investigations to OIG Within 5 Days

The case of the individual in the August blogpost occurred before the Department of State Authorities Act for Fiscal Year 2017 became law. But this latest case was filed on November 13, 2017.

We’ve asked Diplomatic Security for comment but despite ample time to do so, we only hear radio silence.

NADA

We’ve inquired from State/OIG if DS officially reported this case to them, and we got the following response:

“In response to your inquiry, it is best addressed by the Department.”

What the what?! So we end up asking our dear friends at the State Department’s Public Affairs shop:

We recently received information that the same individual is now alleged to have committed similar offenses in another state. This is not the first nor the second allegation. Since DS never acknowledged nor responded to our request for comment, and State/OIG told us we should direct this question to you, we’re asking if you would care to make a comment. What is the State Department’s response to this case involving an individual, a supervisory DS agent with multiple allegations who remains a member of the agency’s law enforcement arm?

Apparently, our dear friends are still not talking to us.  As of this writing we have not received any acknowledgment or any response to our inquiry.  Should we presume from this silence that the State Department hope that we just get tired of asking about this case and go away?

Anyone care that there is potentially a serial offender here?

In 2014, a woman (identified herself as Victim #4) reported that she was raped and stalked by a supervisory agent of Diplomatic Security.

In April 2015, a case was filed for Domestic Abuse-Temp Rest Order against the same person.  The case was closed. Court record says “The court did not issue an injunction against the respondent in this case. The reasons were stated on the record and may be explained in the final order. No adverse inference should be drawn against the respondent when an injunction is denied or a case dismissed. The fact that a petition was originally filed means nothing.” 

On November 6, 2017, another case for “Harassment Restraining Order” was registered against the same individual and closed. The court sealed the name of the complainant. The court record says  “The court did not issue an injunction against the respondent in this case. The reasons were stated on the record and may be explained in the final order. No adverse inference should be drawn against the respondent when an injunction is denied or a case dismissed. The fact that a petition was originally filed means nothing.”

On November 13, 2017, a “Domestic Abuse-Temp Rest Order” was filed against the same individual, and this case is scheduled for an injunction hearing on April 30, 2018.

2014. 2015. 2017.

A source speaking on background explained to us that once Diplomatic Security completes the investigation, its Office of Special Investigations (OSI) sends the case report to the Bureau of Human Resources Conduct, Suitability, and Discipline Division, Office of Employee Relations (HR/ER/CSD).  This office is under the responsibility of the Director General of the Foreign Service, or in the absence of a Senate-confirmed appointee, under the authority of Acting DGHR William E. Todd, who reports to the Under Secretary for Management (currently vacant), who in turn reports to the Deputy Secretary of State John Sullivan.

“The most concerning cases can take years and remember, the employee is waiting from CSD to hear proposed discipline. Almost everybody appeals that initial decision. Then they appeal the next decision to the FSGB which, not infrequently, dismisses cases or reduces disciplinary action for timeliness. Each step in the process can take multiple years and DS can’t do anything other than remove law enforcement authority when appropriate.”

This one via State/OIG (ISP-I-15-04):

The Bureau of Diplomatic Security, OIG, and/or the Office of Civil Rights (S/OCR) may initially investigate misconduct involving both Foreign Service and Civil Service employees, depending on the nature of the allegation. If an investigation suggests a possible disciplinary issue, the case is forwarded to the Bureau of Human Resources Conduct, Suitability, and Discipline Division, Office of Employee Relations (HR/ER/CSD). Similarly, when a bureau without delegated disciplinary authority or post management determines that misconduct by an employee warrants more than admonishment, they forward documentation to HR/ER/CSD for consideration of disciplinary action. HR/ER/CSD, which has eight staff members, receives about 240 referrals per year.

“Preponderant Evidence” vs “Beyond a Reasonable Doubt” Standard via State/OIG:

HR/ER/CSD and bureaus with delegated disciplinary authority are responsible for determining whether disciplinary action is warranted and for developing disciplinary proposals.

The “preponderant evidence” standard is used rather than the higher standard of “beyond a reasonable doubt” used in criminal cases.4 The Department is additionally required to establish a nexus between the disciplinary action and the promotion of the efficiency of the service.5 For both Civil Service and Foreign Service disciplinary cases, a proposed penalty is based on the review of similar past discipline cases and the application of the Douglas Factors…”

The Office of the Legal Adviser, Employment Law (L/EMP), and DGHR’s Grievance Staff, along with the Office of Medical Services, the Bureau of Diplomatic Security, OIG, DGHR’s Office of Career Development and Assignments, and domestic bureaus or overseas posts, as necessary, cooperate in developing a factual basis for a disciplinary case. HR/ER/CSD and L/EMP clear proposed disciplinary actions from the bureaus with delegated disciplinary authority that involve suspension, termination, or reduction in pay grade for Civil Service employees.

In the 2014 State/OIG report, HR/ER/CSD staff members acknowledge that timeliness is one of their primary challenges and that the case specialists are consistently unable to meet their performance target of 30 days from receipt of a complete referral package to proposal finalization. “The OIG team’s analysis of 891 discipline cases between 2010 and May 2014, for which timeliness data could be extracted from the GADTRK database, revealed that the average time from case receipt to decision letter was 114 days.”

Our source speaking on background elaborated that the reason State/DS has an adverse action list is because it takes so long for the Department to discipline employees, Diplomatic Security “needed a tracking mechanism.” (see Bureau of Diplomatic Security’s “Naughty List” — What’s That All About?).

But. 2014. 2015. 2017.

How many is too many?

How long is too long?

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@StateDept Spox Talks “No Double Standard Policy” and 7 FAM 052 Loudly Weeps

Posted: 2:58 am ET

 

So we asked about the State Department’s “no double stand policy” on December 5 after media reports say that classified cables went out  in the past 2 weeks warning US embassies worldwide to heighten security ahead of a possible @POTUS announcement recognizing Jerusalem as the capital of Israel.

On December 7, the State Department press corps pressed the official spokesperson about a cable that reportedly asked agency officials to defer all nonessential travel to Israel, the West Bank, and Jerusalem. Note that the security messages issued by multiple posts on December 5 and 6 with few exceptions were personal security reminders, and warnings of potential protests.  The Worldwide Caution issued on December 6 is an update “with information on the continuing threat of terrorist actions, political violence, and criminal activity against U.S. citizens and interests abroad.

None of the messages released include information that USG officials were warned to defer non-essential travel to the immediate affected areas. When pressed about this apparent double standard, the official spox insisted that “unfortunately, just as State Department policy, we don’t comment on official – whether or not there was an official communication regarding — regarding this.”

Noooooooooooooooooo!

The spox then explained  what the “no double standard” policy means while refusing to comment on official communication that potentially violates such policy. And if all else fails, try “hard to imagine that our lawyers have not gone through things.”  

Holy moly guacamole, read this: 7 FAM 052  NO DOUBLE STANDARD POLICY

In administering the Consular Information Program, the Department of State applies a “no double standard” policy to important security threat information, including criminal information.

Generally, if the Department shares information with the official U.S. community, it should also make the same or similar information available to the non-official U.S. community if the underlying threat applies to both official and non-official U.S. citizens/nationals.

If a post issues information to its employees about potentially dangerous situations, it should evaluate whether the potential danger could also affect private U.S. citizens/nationals living in or traveling through the affected area.

The Department’s “No Double Standard” policy, provided in 7 FAM 052, is an integral part of CA/OCS’s approach to determine whether to send a Message.  The double standard we guard against is in sharing threat-related information with the official U.S. community — beyond those whose job involves investigating and evaluating threats — but not disseminating it to the U.S. citizen general public when that information does or could apply to them as well.

Also this via 7 FAM 051.2(b) Authorities (also see also 22 CFR 71.1, 22 U.S.C. 2671 (b)(2)(A), 22 U.S.C. 4802, and 22 U.S.C. 211a):

…The decision to issue a Travel Alert, Travel Warning, or a Security or Emergency Message for U.S. Citizens for an individual country is based on the overall assessment of the safety/security situation there.  By necessity, this analysis must be undertaken without regard to bilateral political or economic considerations.  Accordingly, posts must not allow extraneous concerns to color the decision of whether to issue information regarding safety or security conditions in a country, or how that information is to be presented.

As to the origin of this policy, we would need to revisit the Lockerbie Bombing and Its Aftermath (this one via ADST’s Oral History).

The State Department’s official spokesperson via the Daily Press Briefing, December 7, 2017:

QUESTION: So a cable went out to all U.S. diplomatic and consular missions yesterday that asked State Department officials to defer all nonessential travel to the entirety of Israel, the West Bank, and Jerusalem. Normally when you are discouraging American officials from going to a particular area, under the no double standard rule, you make that public to all U.S. citizens so that they have the same information. I read through the Travel Warnings on Israel, the West Bank, and Gaza yesterday, both in the middle of the day and then at the end of the day after the worldwide caution, and I saw no similar warning to U.S. citizens or advice to U.S. citizens to defer nonessential travel to those areas. Why did you say one thing in private to U.S. officials and another thing – and not say the same thing in public to U.S. citizens?

MS NAUERT: Let me state the kinds of communication that we have put out to American citizens and also to U.S. Government officials. And one of the things we often say here is that the safety and security of Americans is our top priority. There are top policy priorities, but that is our overarching, most important thing, the safety and security of Americans.

We put out a security message to U.S. citizens on the 5th of December – on Monday, I believe it was. We put out a security message to our U.S. citizens that day – that was Tuesday? Okay, thank you – on the 5th of December. We put out another one on the 6th of December as well, expressing our concerns. We want to alert people to any possible security situations out of an abundance of caution. That information was put, as I understand it, on the State Department website, but it was also issued by many of our posts overseas in areas where we thought there could be something that could come up.

In addition to that, there is a Travel Warning that goes out regarding this region. That is something that is updated every six months, I believe it is. This Travel Warning for the region has been in effect for several, several years, so that is nothing new. In addition to that, we put out a worldwide caution. That is updated every six months. We had a worldwide caution in place for several years, but yesterday, out of an abundance of caution, we updated it. As far as I’m aware of, and I won’t comment on any of our internal communications to say whether or not there were any of these internal communications because we just don’t do that on any matter, but I think that we’ve been very clear with Americans, whether they work for – work for the U.S. Government or whether they’re citizens traveling somewhere, about their safety and security. This is also a great reminder for any Americans traveling anywhere around the world to sign up for the State Department’s STEP program, which enables us to contact American citizens wherever they are traveling in the case of an emergency if we need to communicate with them.

QUESTION: But why did you tell your officials not to travel to those areas between December 4th and December 20th, and not tell American citizens the same things? Because you didn’t tell that to American citizens in all of the messages that you put up on the embassy website, on the consulate website, nor did you tell American citizens that in a Worldwide Caution, nor did you tell them that in the link to Israel, the West Bank, and Gaza that was put out by the State Department in the Worldwide Caution yesterday. You’re telling your people inside one thing, and you’re telling American citizens a different thing, and under your own rules, you are – there is supposed to be no double standard. Why didn’t you tell U.S. citizens the same thing you told the U.S. officials?

MS NAUERT: Again, unfortunately, just as State Department policy, we don’t comment on official – whether or not there was an official communication regarding —

Image via Wikimedia Commons by Saibo

QUESTION: (Off-mike.)

MS NAUERT: – regarding this. But I can tell you as a general matter, I think we have been very clear about the security concerns regarding Americans. We have put out those three various subjects or types of communications to American citizens who are traveling in areas that could be affected.

QUESTION: I’m going to ask you –

MS NAUERT: In terms of the U.S. Government, when we talk about the U.S. Government deferring non-essential travel, I would hope that people would not travel for non-essential reasons just as a general matter anyway.

QUESTION: But why – I’m going to ask you a hypothetical, which I would ask you to entertain, if you’ll listen to it.

MS NAUERT: I’ll listen to it. I’d be happy to listen to it.

QUESTION: If there were such communication, and you know and every U.S. diplomat who gets an ALDAC, which means every other person who works at the State Department knows that this communication went out – so if there were such communication, why would you say one thing to your own officials and a different thing to American citizens —

MS NAUERT: As our —

QUESTION: – which is what the law and your own rules require?

MS NAUERT: As you well know, we have a no “double standard.” And for folks who aren’t familiar with what that means, it’s when we tell our staff something about a particular area or a security threat, we also share that same information with the American public. I would find it hard to imagine that our lawyers have not gone through things to try to make sure that we are all on the same page with the information that we provide to U.S. Government officials as well as American citizens. And that’s all I have for you on that. Okay? Let’s move on to something else.

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#Jerusalem Recognition: Security Messages and Suspension of Services #USEmbassies

Posted: 1:46 pm PT
Updated: 9:41 pm PT

 

Update: As of 1315 EST on December 6, 2017, the State Department has established a task force to track worldwide developments following the U.S. recognition of Jerusalem as the capital of Israel. The task force is located in the Operations Center and will include representatives from NEA, SCA, EUR, EAP, CA, DS, PM, PA, and H.

On December 6, President Trump recognized Jerusalem as the capital of the State of Israel (see Trump Admin Gets Multiple Warnings That Jerusalem Recognition Could Trigger Dangerous Consequences).

Politico reported on December 4 that the State Department has warned American embassies worldwide to heighten security ahead of a possible announcement. “The warning — delivered in the past week via two classified cables described by State Department officials — reflects concern that such an announcement could provoke fury in the Arab world.”

A day before the expected Jerusalem recognition announcement, the U.S. Consulate General in Jerusalem issued a security message informing citizens that U.S. government employees and their family members are not permitted until further notice to conduct personal travel in Jerusalem’s Old City and in the West Bank, to include Bethlehem and Jericho.  It also notes that official travel  by U.S. government employees in Jerusalem’s Old City and in the West Bank is permitted only to conduct essential travel and with additional security measures. (See Security Message for U.S. Citizens: Jerusalem, Demonstrations on December 6).

On December 6, US Embassy Amman in Jordan reminded U.S. citizens of the need for caution and awareness of personal security.  It also  temporarily suspended routine public services. As well, U.S. government personnel and their family members in Jordan are limiting public movements, including an instruction for children not to attend school on December 7, 2017.(see Security Message for U.S. Citizens: Amman (Jordan), Possibility of Demonstrations, Temporary Suspension of Routine Public Services).

As of this writing, the following posts have issued security messages related to the Jerusalem recognition, some outside the immediate region.  Some of our posts in the NEA Bureau have yet to issue similar messages.

Should we remind folks of their “no double standard policy”?

Generally, if the State Department shares information with the official U.S. community, it should also make the same or similar information available to the non-official U.S. community if the underlying threat applies to both official and non-official U.S. citizens/nationals.  If a post issues information to its employees about potentially dangerous situations, it should evaluate whether the potential danger could also affect private U.S. citizens/nationals living in or traveling through the affected area.

The following security messages via DS/OSAC:

Security Message for U.S. Citizens: Berlin (Germany), Personal Security Reminder

Security Message for U.S. Citizens: Minsk (Belarus), Personal Security Reminder

Security Message for U.S. Citizens: Ankara (Turkey), Demonstrations on December 6

Security Message for U.S. Citizens: Lisbon (Portugal), White House Announcement on Jerusalem

Security Message for U.S. Citizens: Rome (Italy), Personal Security Reminder

Security Message for U.S. Citizens: Madrid (Spain), Personal Security Reminder

Security Message for U.S. Citizens: London (United Kingdom), Possible Protests

Security Message for U.S. Citizens: Rabat (Morocco), Demonstrations

Security Message for U.S. Citizens: Cairo (Egypt), President Trump’s Announcement that the United States Recognizes Jerusalem as the Capital

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