FSGB: After 15-Day Suspension, @StateDept Wants to Separate Employee For Same Misconduct

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Via FSGB Case No. 2021002
Held Grievant proved by a preponderance of the evidence that the 2019 Foreign Service  Selection Board (“FSSB”) committed procedural error in deciding to lowrank him and to refer  his Official Performance File (“OPF”) to a Performance Standards Board (“PSB”). The Foreign  Service Grievance Board (“Board”) rescinded the low ranking by the FSSB and its referral of  grievant’s file to the PSB. Accordingly, the Board rescinded the recommendation by the PSB to  separate grievant from the Foreign Service.
Case Summary Grievant argued that the 2019 FSSB gave undue consideration of a discipline  letter in his file and committed other procedural errors, in violation of its precepts, when it  determined that his performance was deficient and referred his OPF to the PSB. Grievant  contended that the PSB also violated its precepts by relying improperly on the discipline letter in reaching its decision to recommend that he be separated from the Service.

The Department of State (“Department”) posited that the FSSB properly considered grievant’s  OPF, including the discipline letter, and complied with all precepts when it assessed deficiencies  in grievant’s performance, issued a lowranking statement, and referred his OPF to the PSB. The agency also argued that the PSB also followed its precepts when it assessed grievant’s  performance failures, compared his file to those of 10 randomly selected colleagues of identical rank, and ultimately recommended that grievant be separated.


The Board held that grievant met his burden of proving that the 2019 FSSB committed procedural errors by lowranking him and referring his file to the PSB. Accordingly, the Board rescinded the lowranking and the referral as well as the subsequent PSB decision to recommend grievant for separation.

Excerpt from background of case:

REDACTED (“grievant”) is an FS01 officer who joined the Foreign Service of the Department of State (“Department,” “agency”) in 1998 and began a career with assignments primarily in Africa and Latin America. In July 2016, he was assigned as the Deputy Chief of  Mission (“DCM”) in the U.S. Embassy REDACTED (“embassy,” “post”).

On March 7, 2017, grievant does not dispute that he had multiple drinks at the embassy’s Marine House, followed by additional drinks at a local restaurant, after which, he returned on foot to his official diplomatic residence. On his way home, grievant was approached by a woman who asked if he wanted company. Grievant permitted the woman to accompany him to his residence where they continued drinking and she remained overnight. Grievant admitted that he initiated sexual contact with the woman and brought her to a bed in his guest room. There, he claims he fell asleep, but acknowledged that he did not recall all that happened. Early the next morning, the woman demanded money; grievant refused; and the woman began throwing things in the house. Grievant and the woman engaged in a physical altercation that was overheard by local embassy guards who responded to the scene. The woman was removed from the residence, taking with her grievant’s government-issued Blackberry. During her removal, the woman’s cell phone was damaged. She later returned with two local police officers and threatened to press charges against grievant. Grievant paid the woman $430 upon the advice of the Regional Security Officer (“RSO”) at post. The incident prompted grievant to be involuntarily curtailed from post in April 2017.

On June 9, 2019, Diplomatic Security (“DS”) completed a Report of Investigation (“ROT”) of the incident (“the embassy incident”), finding grounds for one specification on charges of Notoriously Disgraceful Conduct and Poor Judgment.’ During the DS investigation, grievant revealed for the first time that in 2015, he had been arrested REDACTED for driving under the influence (“DUT”). His failure to report this arrest within 72 hours, as required by 12 FAM 272, resulted in one specification of a third charge — Failure to Follow Policy.

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FSGB: “Automatism” Defense Against Notoriously Disgraceful Conduct Charge Fails

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Via FSGB Case No. 2020031 February 19, 2021
HeldThe Department proved by preponderant evidence that the charged employee committed notoriously disgraceful conduct by engaging in non consensual sexual contact with a colleague in a public Embassy space; the misconduct was not caused by a neurological condition (automatism); there was a nexus between the charged misconduct and the efficiency of the Service; and that the penalty of separation is reasonable.Case
SummaryThe Department charged an unaccompanied married employee with notoriously disgraceful conduct after he went to a pool party at an overseas post, had a few alcoholic drinks, and, after some physical contact with a married colleague who was intoxicated, touched her near her genital area without her consent. The incident was videotaped by security cameras and was observed by employees who were at the pool. The Department argued that intent is not an element of the charged misconduct but should be considered as a mitigating or aggravating factor when the penalty is determined. The agency presented the testimony of an expert witness who opined that the charged employee did not suffer from an automatism at the time of the misconduct. The agency contended that the undisputed evidence proves notoriously disgraceful conduct. The Department argued that separation was the only appropriate penalty for the egregious misconduct, given a fair consideration of the mitigating and aggravating factors and a review of comparator cases.
The charged employee presented a report from an expert witness who opined that at the time of the misconduct, the employee was experiencing a neurological event, called an automatism,which prevented him from having any awareness of, or control over, his actions. The charged employee contended that he is not culpable for the charged misconduct because intent to commit the conduct is a necessary element of the charge.The employee also argued that the Deciding Official did not properly consider mitigating circumstances and the penalty was unreasonable after a review of comparator cases.
The Grievance Board considered the undisputed evidence of the incident that was recorded on the videotape and not contested by the charged employee. The Board further reviewed the testimony of the competing experts and concluded that the opinion of the charged employee’s expert witness was not sound because it was not consistent with the accounts of the witnesses, including the charged employee, and it did not derive from a persuasive differential diagnosis. The Board concluded that the charged employee’s expert witness speculated repeatedly on the possible causes for an automatism,which undermined the plausibility of his ultimate opinion. The Board further found that because intent was clearly established, the issue of whether intent is an element of the charge did not need to be decided. The Board concluded that there was a nexus between the misconduct and the efficiency of the Service because the incident was videotaped, witnessed by several employees, resulted in an almost immediate curtailment and a suspension of the charged employee’s security clearance. Lastly, the Board found that the penalty was within the zone of reasonableness after an appropriate review of mitigating factors and case comparators.
The Board finds that Department “has established by preponderant evidence that the charged employee committed the specified charge of notoriously disgraceful conduct, the misconduct was not the product of an automatism; there is a nexus between the misconduct and the efficiency of the Service; and the penalty of separation is reasonable.”
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Snapshot: Some Considerations in Determining Penalty #DisciplinaryAction

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3 FAM 4375 (“SOME CONSIDERATIONS IN DETERMINING PENALTY”) reads as follows:
The following factors should be considered in determining the appropriate penalty. This list is not exhaustive, and not all factors are applicable to all cases.
(1) Nature of the offense, its seriousness, and consequences;
(2) History of past conduct problems, whether or not discipline was imposed (nature and frequency of past offenses and how recent the occurrences);
(3) Intent (possibility of genuine misunderstanding), willfulness of the conduct;
(4) Enticement or provocation;
(5) Position of employee (nature or relationship between behavior and official responsibilities, sensitivity of position);
(6) Culpability of others;
(7) Contacts with the public and prominence of the position;
(8) Notoriety of the offense or its impact upon the reputation of the Department;
(9) Where and when the misconduct occurred – in the United States or abroad, on duty or off-duty;
(10) Length of employee’s service, level of professional experience;
(11) Quality of employee’s work history;
(12) Past contributions and achievements;
(13) Record of cooperativeness, efforts toward and potential for rehabilitation;
(14) Other mitigating or extenuating circumstances;
(15) Clarity with which the employee was on notice of any rules that were violated in committing the offense;
(16) Consistency of the penalty with those imposed upon other employees for similar offenses and with the table of penalties in 3 FAM 4377; and
(17) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
“These factors are derived from those enunciated in Douglas v. Veterans Administration, 5 Merit Systems Protection Board (MSPB), 313 (1981), which established criteria that agencies must consider in determining an appropriate penalty for an act of employee misconduct.”
Source: FSGB 2020-046; 3 FAM 4375 is available online here.
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FSGB: @StateDept Miscalculates Length of Creditable Federal Service in Annuity Case

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USADF is an independent U.S. Government agency established by the U.S. Congress to support and invest in African-owned and African-led enterprises that improve the lives and livelihoods of people in underserved communities in Africa. See the African Development Foundation Act.
Via FSGB 2020-040:

Held – Grievant established by a preponderance of evidence that the Department of State (“Department” or “agency”) committed grievable errors when it miscalculated her length of creditable federal service and erroneously determined that her 2015-2016 employment with the U.S. African Development Foundation (“USADF”) was not federal service.

Case Summary –

Grievant was employed intermittently by the federal government from 1980 to 2016. In July 1984, grievant, previously a Civil Service (“CS”) employee of the U.S. Agency for International Development (“USAID”), converted to the Foreign Service (“FS”). From July 22, 1984 through at least February 24, 1988, USAID’s records show her as a participant in the Foreign Service Retirement and Disability System (“FSRDS”), paying the required seven percent (7%) mandatory employee contribution, receiving no credits under the Old-Age, Survivors, and Disability Insurance (“OASDI”) program, and not contributing to the Thrift Savings Plan (“TSP”). Upon applying for a pension, however, she was informed by the Department that she was four days short of the minimum five years required to qualify for an annuity.

Grievant asserted that she initially planned to resign from USAID on February 24, 1988, but that she decided to remain at post until March 11, 1988, in the FS and a participant in the FSRDS for those 15 days. She submitted two documents to verify her employment end date of March 11, 1988: a USAID-generated Individual Pay and Leave Record that showed employment by USAID for five pay periods in 1988 and a 1988 State Department FSRDS Participant Record from the Department. Both of those documents showed retirement payroll deductions through March 11, 1988. Grievant also complained that the Department did not consider her 2015-2016 employment with the USADF, a U.S. government agency, as federal service.

The Department denied that grievant was employed by USAID from February 25 to March 11, 1988. The Department relied on a USAID SF-50 form stating that grievant’s retirement date was February 24, 1988. The Department argued that its practice was to use an SF-50 as the only primary evidence available to verify creditable service, rejecting grievant’s documents as less persuasive secondary evidence. The Department offered no explanation for omitting grievant’s USADF employment from the calculation of her federal service.

The Board found that the State Department FSRDS Participant Record was a primary source of verification, that it was supported by the USAID-generated Individual Pay and Leave Record and was a more reliable record than the conflicting SF-50 form. The Board noted errors in the SF-50 form and prior SF-50s of grievant. Accordingly, the Board found that grievant proved by a preponderance of evidence that her creditable federal service at USAID ended on March 11, 1988. The Board also found that grievant was in federal service for the 2015-2016 period, as evidenced by SF-50s prepared by USADF.

The Board directed the Department to recommend an appropriate retirement annuity consistent with this decision and present to grievant for her consideration. The parties were ordered to report the Department’s recommendation of an annuity and grievant’s response to the Board within 30 days of this decision. The Board retains jurisdiction of the case.

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FSGB: Informal Meetings Between Grievant and Rater “Did Not Constitute Counseling”

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Via FSGB Case No. 2020-025
Held – The Board held that grievant has established by a preponderance of the evidence that informal meetings between grievant and her rater did not constitute counseling and that the only formal counseling, which occurred six weeks prior to the end of the appraisal year, in the circumstances of this case, was not timely.
Case Summary:

Grievant, an FS-06 Office Management Specialist, was assigned to a challenging, newly upgraded position with not only the responsibility to support the Consul General (CG), as her predecessor had done, but also to support the Deputy Principal Officer (DPO). The position was upgraded to an FS-05 two months after her July arrival at post.

Grievant appealed the denial of her grievance of her April 2017 EER. She maintained that 1) she had not received timely counseling and 2) certain comments in the EER by her Rater and Reviewer, as well as language in the Developmental Area, were inaccurate and/or falsely prejudicial. She contended that her routine meetings with her rater had been supportive, as the rater admitted, and that the Rater had not advised her that the CG and she were dissatisfied with her progress until six weeks before the end of the appraisal period. At that point, grievant recommended being temporarily relieved of supporting the DPO position to allow her time to establish systems to support both positions. She accomplished that goal shortly after the start of the next appraisal period, but her 2017 EER reflected that she was not fully supporting both positions at the end of that rating period.

The Department contended that her ongoing meetings with her Rater to manage her workload and her acknowledgement of her difficulties in doing so meant that grievant was aware of her deficiencies from the informal counseling. Moreover, the Department contended that six weeks was adequate notice of her need to improve.

The Board held that, in the circumstances of this case, where the job had been greatly expanded, grievant was new at post, and her meetings with her rater were generally to discuss routine aspects of the position, her rater had failed to put her on notice that her progress was deficient. As to the timeliness of the formal counseling, grievant established that she was able to devise a plan to meet the requirements successfully, but she was unable to accomplish it before the end of the rating period. Consequently, six weeks was too short to be timely notice of her deficiency.

Because the Department failed in its obligation to provide counseling mandated under 3 FAH-1 H-2253.2, it was unnecessary for the Board to reach the issue of whether the statements were inaccurate and/or falsely prejudicial. As a remedy, and as requested by the grievant, the Board ordered expungement of the 2017 EER and reconstituted Selection Boards.

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What was the cause for “universal revulsion and anger” at one post?

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Via FSGB Case No. 2020-009 | Interim Decision | February 4, 2021
Held –The Department of State (“Department) met its burden of proving that grievant committed one specification of Improper Personal Conduct, and one charge of Notoriously Disgraceful Conduct. The Department also established that the conduct showed poor judgment and lack of discretion, and that such misconduct had an impact upon the efficiency of the Service. The Department did not meet its burden of proving the charge of Inappropriate Comments and one specification of Improper Personal Conduct. The case was remanded to the Department to re- determine an appropriate consequence in light of the Board’s findings.
Case Summary – Grievant, a married Senior Foreign Service officer, while serving as Management Counselor at the U.S. Embassy REDACTED, was accused of sexual harassment based on inappropriate statements he reportedly made to female colleagues and conduct considered professionally improper. Grievant also appeared in a video published on a local website showing grievant and a local national woman seated together in the driver’s seat of a vehicle on a public road. The website article identified grievant as a foreign diplomat and commented on foreign diplomats and young host country women. Grievant later admitted to having an extramarital affair with the woman in the video, who was employed as a nanny by one of grievant’s subordinates. Grievant requested a voluntary curtailment because of the negative response by members of the embassy community concerning the video and to attend to a family illness.
The Department’s Office of Civil Rights (S/OCR) investigated the sexual harassment allegations and forwarded its report to the Bureau of Human Resources (HR). Based on the findings of the S/OCR and after consideration of a description of the video showing grievant with the foreign national woman in the car, the Department proposed to suspend grievant for eight days without pay as discipline for Inappropriate Comments (three specifications), Improper Personal Conduct (two specifications), and Notoriously Disgraceful Conduct.
Grievant challenged the suspension proposal, however, it was sustained by the Department. After a grievance was denied, grievant appealed to the Foreign Service Grievance Board that found that the Department met its burden of proving that grievant committed one of two acts of Improper Personal Conduct and he engaged in Notoriously Disgraceful Conduct. The Board remanded the case to the Department for reconsideration of the proposed discipline in light of the Board’s decision.

Charge 3: Notoriously Disgraceful Conduct

The Department contends that grievant’s conduct, captured in the video which showed a young woman sitting in front of grievant in the driver’s seat while driving a car, had a negative impact upon mission morale. The Department noted that this video appeared on a popular local website and the existence of the video and its content were widely known within the mission. Grievant also admitted that he was having an extramarital affair with the woman who appeared with him in the video who was employed as a nanny for the family of one of grievant’s subordinates in the mission. The Department cites a statement by the CLO that both grievant’s family and the post family that employed the woman who appeared in the video were deeply affected. Grievant claims that his wife was aware of the relationship and argues that the video did not explicitly show his involvement in a sexual relationship. Nonetheless, the Department concluded that the video exposed the close relationship grievant was engaged in with the nanny of his subordinate, thereby embarrassing his colleagues, his family, and the mission.
[…]
With respect to the Charge of Notoriously Disgraceful Conduct, the Department notes that grievant admitted to having an extramarital affair with the woman in the video and the S/OCR report specifically corroborated that the video was publicized in the media in the host country. The Department argues that the physical closeness exhibited between grievant and the woman in the video, the nanny of one of his subordinates, and grievant’s admission that he was engaged in an affair with the woman, demonstrated his failure to maintain the high standard of conduct required of Foreign Service employees representing the U.S. abroad. The Department also points out that all new Foreign Service employees are briefed about their role representing the U.S. government abroad and the expectation that each maintain the highest standard of conduct demonstrating integrity, reliability and prudence whether at work or during their non- work hours. Further, the publication of the video resulted in embarrassment to others in the mission and disrupted grievant’s effectiveness as Management Counselor because his colleagues and supervisees refused to work with him. In fact, the Department points out that the publication of the video partially motivated grievant to request voluntary curtailment from post, thereby detrimentally affecting management operations at post.
[…]
Grievant maintains that the disciplinary action against him is unwarranted and that the statements upon which the charges and specifications are based are factually inaccurate and mischaracterized. He argues that the Department cannot meet its burden to establish that he engaged in Notoriously Disgraceful Conduct (Charge 3). Moreover, grievant argues that the proposed discipline is excessive for the alleged offenses, that the DO did not give adequate weight to several mitigating factors in his case, and that the penalty, therefore, is unreasonable.
[…]
Grievant maintains that the Department cannot meet its burden of proving that he engaged in Notoriously Disgraceful Conduct, as defined in the regulation. Grievant acknowledges that he did have an extramarital affair but maintains that it was discreet, not conducted publicly, not disgraceful but, instead, it was a meaningful relationship.

[…]
The FAM definition of notoriously disgraceful conduct is normative; that is, it is defined by the reaction to the conduct. In the instant matter, grievant is charged with engaging in an extra-marital affair with a local national woman, which was publicized by inference in a video on local media. Thus, grievant’s conduct is notoriously disgraceful because, were it widely known, it would embarrass or discredit him, the embassy, and the United States, or would subject them to censure or opprobrium. Grievant’s argument that the video was posted to a non- mainstream sensationalist website is unavailing, as the Department does not need to prove that grievant’s extramarital affair was in fact widely known or published by a widely-accessed medium, only that, if known, it would cause the concerns described in the regulation. In fact, though, the Department describes the internet website where the video was posted as popular and the record shows that it was sufficiently well-known that the embassy community quickly saw it, identified grievant and the nanny, and reacted negatively. Judging from the strong negative reaction, described by the Deputy Chief of Mission as “universal revulsion and anger,” we are satisfied that if evidence of the affair and the circumstances were widely known in the host country, a socially conservative country, the embassy and the United States would have been embarrassed and likely censured.
[…]
According to the S/OCR investigator, interviews with the Management staff revealed that the disclosure of the video made grievant’s “relationship with his subordinates irreparably bad [and] … brought forth a torrent of further negative reporting from across the mission about [grievant’s] behavior and his interpersonal skills.” Agency-Level Grievance Decision at 15. In the aftermath of the release of the video, grievant agreed to work from home and discontinued any contact with his subordinates or others at the embassy. Grievant also admitted that he ultimately voluntarily curtailed from post in part due to release of the video, even though the official rationale was listed as his mother’s health situation. The embassy had the unanticipated absence of a key senior official who supervised a large staff and provided administrative services to 15 U.S. government agencies. It is clear to the Board that the evidence supports the Department’s conclusion that grievant’s appearance in the video and his extramarital affair with a subordinate’s nanny led to his discredit as a senior embassy official within the mission and possibly in the wider community; adversely affected the embassy’s ability to carry out its responsibilities when grievant could no longer perform his job.

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FSGB: “Service Need Differential” Posts Get a Bad Recruitment Ad

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According to the Foreign Affairs Manual, a ‘Service Need Differential’ [SND] is an allowance of 15 percent of base salary for employees serving in Historically-Difficult-to-Staff (HDS) posts with an at least 20 percent hardship differential and a standard two-year tour of duty, when the employee agrees to serve for a third year.  Some of the “at least 20 percent” hardship differential posts includes Albania, Azerbaijan, Egypt, a couple posts in China, and more. Djibouti, Ghana, Haiti, Afghanistan, CAR, Cuba, DRC, and some posts in India are in the 25 percent category. Afghanistan, Somalia, Bangladesh, Chad, Iraq, Pakistan are some of the 35 percent hardship posts. The hardship considered includes physical and social isolation; political violence, terrorism and harassment; medical and hospital availability; environmental conditions and sanitation; crime; climate; housing and infrastructure to name some. See more here.
The grievance case below concerns SND payments to a DS agent who served at one of these “historically-difficult-to-staff” posts.  Instead of the State Department just acknowledging that a mistake had been made in this case, the State Department made the argument that the grievant, “as a mid-level employee with several years of experience and facing his third overseas assignment” should have known better to ask the right questions. Whoa!  The agency is saying, it’s his fault, hey?
Footnote indicates that “with respect to the AO’s [Assignments Officer] indication of the candidate’s SND election in the assignment panel notes, the record indicates that the assignment panel notes did in fact include a comment that grievant’s SND decision was “pending.” However, grievant denies that he made that (or any) SND-related election, or that he communicated to his AO that he had elected to defer his decision until after arrival at post.”
The FSGB decided that the grievance appeal was sustained. The Department was ordered to reimburse grievant for SND he would have received from the date of his arrival at post, consistent with the provisions of the Back Pay Act. 5 U.S. Code § 5596.
Via FSGB Case No. 2020-050

HELD – The Foreign Service Grievance Board found that grievant met his burden to show that the Department failed to implement its Standard Operating Procedure SOP B-22 in the process of assigning him to a Service Need Differential (SND) post, a procedural error that resulted in harmful denial to him of SND payments for a period of time. The grievance was sustained.

CASE SUMMARY – Grievant accepted a handshake for assignment to an SND-designated post. He argued that in the process of assigning him to post, the Department failed to implement any of the “Assignment Procedures” specified in its relevant Standard Operating Procedure, SOP B-22. These included provisions that the Assignment Officer should contact grievant by email, provide information regarding the SND Program (including a specified “standard disclosure” covering SND options and the consequences of each), request the employee to indicate which SND option he/she elects, and relay that election to the assignment panel. The SOP advises that an assignment to an SND-designated post should not be made unless the foregoing provisions are carried out. The assignment panel, on the basis of notes of unspecified origin to the effect that grievant’s SND decision was “pending,” assigned him for a two-year tour-of-duty which made him ineligible for SND unless he should later request, and be granted, an extension of his tour to three years’ duration.

The agency denied that grievant had carried his burden of proving that his Assignment Officer (AO) failed to implement SOP B-22, but that even if the AO had failed to do so, grievant as an experienced, mid-level bidder, should not be absolved of any and all responsibility to understand the SND assignment procedures as they applied to him and to seek clarification and/or assistance if he were confused or concerned about the process. Further, the Department argued that in the agency-level grievance, it had provided to grievant (albeit on different grounds, which are abandoned in the instant grievance appeal), all relief to which he is entitled.

The Board found factually that the provisions of SOP B-22 had not been implemented by the Department in grievant’s case. The Board found further that the language of the Assignment Procedures of SOP B-22 is particularly directive, going as far as to advise that assignment to an SND post should not be made unless its stipulated provisions have been carried out. On the issue of harm, the Board found that the agency’s failure to implement the SOP constituted a significant procedural error which denied grievant the opportunity to receive information, counseling, and assistance stipulated in the policy before the panel assigned him to a two-year non-SND assignment which record evidence established he did not elect. The Board ordered payment of SND from the date of grievant’s arrival at post.

Background:

Grievant is an FP-03 Special Agent with the Bureau of Diplomatic Security (“DS”) who has worked for the Department since 2012. He is currently serving as an Assistant Regional Security Officer (“ARSO”) at post, his third assignment. The matters grieved in the instant action concern the manner of grievant’s assignment to, and extension at, post, as they impacted his receipt of SND payments.
[…]
On January 23, 2019, the Department issued cable , captioned “(PII) TMONE – ASSIGNMENT NOTIFICATION – PERSONNEL ASSIGNMENT ([grievant’s name and social security number redacted] FP-03, 2501, Special Agent) (“TM-1,” “the assignment cable”).3 Among other information pertaining to the position, the TM-1 noted that the assignment was for a 24-month tour with an estimated arrival date at post of August 2019. The cable contained the names of grievant’s Assignment/Training Officer [sic], Assignment Technician, and CDO as points of contact. The TM-1 did not identify the post as an SND- designated post, nor did it provide any information on the SND Program or how to participate therein.
[…]
After being informed, in a general manner, of the SND program by colleagues, grievant reached out on November 25, 2019, to post’s human resources officer (“HRO”) by email and requested “procedures to extend for one year and activate SND[.]”5
[…]
After repeated attempts by grievant to obtain a decision on his extension request and SND, on June 11, 2020, the Department finally issued a cable approving his extension for a third year at post. The extension approval cable noted that his election of a 36-month tour made him eligible for SND but did not provide further specifics such as what the effective date of SND eligibility was. Grievant subsequently was informed that the SND payments would commence as of the date of the extension approval cable, i.e., June 11, 2020.

On July 20, 2020, grievant filed an agency-level grievance, arguing that the Department’s failure to follow its pre-assignment SOP procedures for SND posts, compounded by subsequent delays in processing his extension request, improperly deprived him of a financial benefit (i.e., timely commencement of SND payments). As a remedy, he sought retroactive payment of SND (with interest) starting from the date of his arrival at post.

On September 24, 2020, the Department issued an agency-level decision, granting the grievance in part, and denying it in part. The deciding official (“DO”) stated that she was not persuaded that grievant had shown that the Department had failed to follow SOP B-22, finding further that grievant should not be “absolve[d] … of any and all responsibility regarding initiation of the SND process.” Grievance Appeal Submission (“Appeal”), Attachment 2 at 5. She therefore denied that part of the grievance. However, while noting grievant’s delay of over six months in initiating his extension request, the deciding official found that the Department had also let the request sit “idly” for three months. She consequently granted partial relief, directing that SND should be paid effective March 10, 2020, the date on which post issued its extension request cable.

State Department’s Oh, Dear/Even If Argument

The Department argues that record evidence shows that when the panel initially assigned grievant to post, the notes on which it relied stated that grievant’s SND decision was pending. This is consistent with the portion of the SOP “which outlines the employee’s right to delay his/her SND decision until after their [sic] arrival at post . . . .” Response at 5. According to the Department, grievant has failed to offer any evidence that the AO did not discuss the SND program with him or inform him about the elections. The absence of any comments in the “Remarks” section of his TM-1 assignment cable (which grievant advances as evidence that he was not properly advised of SND options before he was assigned to post) is not dispositive of a failure by the AO or CDO to implement the SOP.

The Department also argues that even if the AO and/or CDO had failed to implement the SOP (which the Department denies), “[grievant] should not be absolved of any and all responsibility regarding the initiation of his own SND process, especially if he sought to enjoy the benefit of receiving payments as soon as he arrived at post.”13

Also, if you’re going to a post no one wants to go, you should know more than your Assignments Officer?

The Department further argues that grievant, as a mid-level employee with several years of experience and facing his third overseas assignment, should have recognized that he was bidding on an SND post, and if he had any questions about SND bidding procedures, he knew or should have known to contact his AO and/or CDO for guidance and assistance. However, we find the details of the SND program are sufficiently arcane that the Department felt the need to emphasize the special responsibilities of human resources personnel. The language of SOP B-22, which grievant could not have been expected to know as it is not a familiar Department FAM or FAH provision, is quite particular. It bears repeating that the principal provisions of the Assignment Process fall to the AO and that the language is uniformly directive, not permissive. The SOP directs the AO to contact the employee by email, and one practical consequence of this requirement is to ensure that there be an official record of the communication. The SOP states that the purpose of the email is to explain the SND program, and to ask that he/she make an election among the various SND options (including no-SND and deferral of decision). The AO is further directed to “use the following standard disclosure when contacting the employee.” Half a page of stipulated language explaining the three SND options, the implications of each, and the FAM authority follow. As noted supra, the SOP states in bold typeface that “No assignment for an SND-designated post should be made” unless the AO has advised the employee of the SND options and their implications. The totality of the Assignment Procedures language bespeaks a particular intent that it be implemented to ensure that bidders such as grievant, regardless of experience, be informed uniformly of the program and its details. Accordingly, we find that grievant should not have been expected to be aware of the requirements of the SND program but should have been able to rely on the unique expertise of his AO and the requirements assigned to the AO to provide the information needed to make a choice before his assignment began. Having considered all of the resources to which the Department has pointed, we find that absent the AO’s briefing and support mandated by the SOP, the information in the other Department sources would not necessarily be sufficient, and might even have been meaningless, without the provision of that required context.

The Grievance Board Finds “Harm”

The Department argues that grievant has failed to prove harm resulting from any violation of the SOP, as he has not presented any evidence that he wished to elect, or would have elected, a three-year SND tour. Our considered view is that the language of the Assignment Procedures of SOP B-22 is of a particular character that bespeaks a concern that the procedures be implemented. That is understandable, inasmuch as the SND Program exists to incentivize candidates to bid on historically difficult-to-staff posts, and the SOP seems obviously formulated to ensure that candidates make informed choices among the unique options of the SND Program within a transparent process. In the instant case, the Department’s failure to implement the particularly directive provisions of the SOP denied grievant an opportunity that he would have otherwise had, and which the SOP seems clearly crafted to provide, to be contacted in writing (email), counseled on the basis of prescribed standard language regarding the SND options and implications, and to have his election solicited and transmitted to the panel as the basis for assignment; failing the foregoing, the SOP says that an assignment should not be made. The harm then to grievant was the lost opportunity.

We would like to make an observation about this finding. In finding that failure to implement the SOP deprived grievant of the opportunity to elect a three-year SND tour under the SOP Assignment Procedures, we do not seek to supply an answer to the counterfactual- hypothetical question of whether grievant would have elected a three-year tour if the AO had in fact implemented the SOP. We acknowledge that there is no contemporaneous evidence that he would have made that election prior to his arrival at post. Nonetheless, the harm we find is not that grievant was denied SND payments in accord with an inferred election to be paneled for three years, but rather that he was denied a procedural opportunity pointedly stipulated in the SOP when the AO failed to inform him about the SND Program and solicit his election after he accepted the handshake and prior to paneling him to a two-year non-SND tour. We see no alternative remedy to compensate grievant for this harm other than to order SND to be paid from the date of grievant’s arrival at post.

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FSGB Case: Revocation of Top Secret Security Clearance and Separation

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Via FSGB Case No. 2020-002:

Held – The Grievance Board found that because the security clearance of the charged employee had been revoked after final agency review, the Department of State established that the proposed separation of the charged employee was for such cause as will promote the efficiency of the Foreign Service.

Case Summary The charged employee, a Diplomatic Security Special Agent, was notified that his Top Secret security clearance was suspended for failure to cooperate in certain medical assessments. The charged employee’s clearance subsequently was revoked. The charged employee appealed the revocation to the Department’s Security Appeals Panel, which sustained the revocation after consideration of the written submissions of both the charged employee and the Department. Because a Top Secret security clearance is a condition of employment for the charged employee and because the revocation of his clearance was final, the Department proposed to separate the employee for cause. After a hearing on the issue, the Board concluded that the Department had established cause for the separation and evidence that the separation would promote the efficiency of the Service.

Background

On July 11, 2014, the Director of the Office of Personnel Security and Suitability, Bureau of Diplomatic Security (DS/SI/PSS), notified the charged employee, via memorandum that his “continued access to classified information was not clearly consistent with the interests of national security.”1 Accordingly, his Top Secret security clearance was suspended pending the outcome of “ongoing Department medical review.” 2 The charged employee held a position as an FS-02 DS Special Agent who required a Top Secret security clearance to perform his duties.

On October 7, 2015, the Deputy Assistant Secretary for Domestic Operations notified the charged employee by letter that his Top Secret security clearance was revoked. The employee was afforded 30 days to request a review of this decision. It appears that a review was requested because on March 13, 2019, the Principal Deputy Legal Adviser, on behalf of the Security Appeals Panel (Panel) notified the employee by letter that the Panel voted to sustain the decision of DS to revoke his Top Secret security clearance. This letter noted that the Panel had convened on February 19, 2019; that the charged employee had appeared and answered questions; and that the Panel took into account his responses, as well as written materials provided by the employee, his private counsel, DS.3

On August 20, 2019, the Director General notified the charged employee that the Department proposed to separate him for cause, under Section 610 of the FSA as amended, in order to promote the efficiency of the Service. The separation proposal stated that all Foreign Service positions require a Top Secret security clearance because all FS positions are “critical sensitive.” 4 Thus, because his security clearance had been revoked after all final reviews, the charged employee could no longer maintain a condition of his employment.

The charged employee responded by email on September 3, 2019 to the proposed letter of separation, stating, “Separating me from the Department does not seem right to me.” 5 The charged employee offered no other written or oral response to explain, rebut, or mitigate the separation proposal.

On January 6, 2020, the Department submitted the transmittal containing the separation proposal to the FSGB. On February 25, 2020, the Board conducted a pre-hearing conference (PHC) with the parties by telephone, during which the Board, the charged employee and the Department agreed upon procedural ground rules and a schedule of events prior to the hearing.6

The Department indicated at the PHC that beyond the documents submitted with the Department’s separation file in this case, the agency did not intend to submit any other exhibits or call any witnesses at the hearing. The charged employee indicated that he did not wish to call any witnesses or submit any documentation to the Board at the hearing. Thereafter, the parties reached an agreement on joint stipulations of fact to be presented at the hearing.7

On April 2, 2020, a hearing was convened by the Board on the separation proposal. The hearing was held telephonically, due to the CoVid 19 coronavirus pandemic, the President’s order to maximize the use of telework and the Governor of Virginia’s “stay at home” emergency order. At the start of the hearing, the Board advised the parties that it had determined that there was no need for a video-conferenced hearing because the parties had advised that they intended to offer no witness testimony. Neither the charged employee nor the Department objected to the use of a telephonic hearing process.

The Board found that a Top Secret security clearance is required for the employee’s position; therefore, the agency established that the charged employee failed to maintain a mandatory condition of employment. The Board concluded that the Department established cause for the separation on a single charge of Failure to Maintain a Condition of Employment and that separation of the charged employee will promote the efficiency of the Foreign Service.

3 According to the Principal Deputy Legal Adviser’s letter, “the Panel focused in particular on concerns relating to guideline I (‘Psychological Condition’). … [T]he Panel took note of the fact that [the charged employee] did not appear at the medical evaluation which [he] had agreed to undergo, [his] email of November 2, 2018, and [his] unwillingness during [his] appearance before the Panel to offer information that it could use to determine whether DS’s concerns had been mitigated.” The record does not reveal any additional information about the predicate for the security clearance suspension or revocation.

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Why ‘Lack of Candor’ Can Get Federal Employees in Real Trouble

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According to OPM, “lack of candor”  focuses on an employee’s duty to be forthcoming in responses with regard to all facts and information in their possession. Frederick v. Justice, 52 MSPR 126, 133 (1991); Fargnoli v. Dept. of Commerce, 123 MSPR 330 (2016). 
Federal Times/Legal Matters cited the 1998 case of Lachance v. Erickson, 118 S.Ct. 753: “…. a unanimous U.S. Supreme Court decided that a federal agency may discipline an employee who lies or lacks candor to the agency regarding alleged employment-related misconduct, including falsely denying the offense, such that the agency can discipline the employee not only for the underlying act of misconduct, but also for the lie or lack of candor. It’s the latter (the lie) that almost always results in a more severe penalty than if the employee simply admitted the underlying wrongdoing.” Read in full here.
A most public “lack of candor’ case that made relatively recent news is here.
Below is an excerpt from FSGB Case No. 2014-049. This case is notable because the grievant is a tenured DS agent who got in trouble, among other things, for not being “entirely forthcoming,” the fact that the agency has access to private emails, and how each instance of not being forthcoming becomes a specification in the charge.
HELD: The Department of State carried its burden to prove by a preponderance of the evidence that grievant, a tenured Diplomatic Security Officer, committed the acts with which he is charged. The Board found that a 10-day suspension without pay was reasonable. The grievance appeal was denied.
OVERVIEW: Grievant, a tenured Diplomatic Security (DS) Agent, appeals the Agency’s denial of his grievance in which he sought a reduction of a 10-day suspension, the penalty he received for multiple disciplinary charges. The original charges included: (1) improper personal conduct; (2) misuse of government resources; (3) lack of candor; (4) poor judgment; and (5) failure to follow regulations. Although the deciding official declined to find grievant liable for Charge 4 and although grievant takes responsibility for Charges 2, 3, and 5, he denies the misconduct alleged in Charge 1 and the reasonableness of the penalty. The deciding official determined that the 10-day suspension originally proposed remained reasonable even though one charge was not sustained. The Board concluded that agency satisfied its burden of proving that grievant committed the improper personal conduct as charged, i.e. groping a female, subordinate employee (grabbing her buttocks) at a Marine House toga party in The Board also concluded that the 10-day suspension was reasonable under the totality of the Douglas analysis and that the agency was not obligated to reduce the penalty originally proposed merely because one of the charges was not sustained.

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FSGB Case: Why You Should Not/Not Take Your Hard Drive With You When Departing Post

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The FSGB Annual Report for 2021 mentions a disciplinary case where  the Board affirmed the agency’s decision in a case concerning an information security violation (FSGB Case No. 2018-030). So we went and looked up the case which includes Charge 1 for failure to follow proper security procedures:

12 FAM 625.2-2 Removal of Microcomputers, Media and Software
Personnel are prohibited from removing U.S. Government microcomputers or media from Department premises without the prior written approval of the [Information Systems Security Officer] ISSO and additionally, if abroad, the RSO or [Post Security Officer] PSO.

And Charge 2 for failure to safeguard government property:

12 FAM 622.1-7 Protection of Media and Output
… (b)(2) Abroad: Media shipped between posts must be sent at a minimum by controlled shipment.
( c) The data center manager and the system manager must label removable media either UNCLASSIFIED or SBU.

Overview via ROP:
Held – The Department of State (Department, agency) has established via preponderant evidence that grievant violated Department regulation both in removing a Sensitive But Unclassified hard drive from his computer and taking it with him to his next post, and in failing to comply with the requirement to use a controlled shipment in returning it to post. On review, the Board finds that the proposed penalty is reasonable.
Case Summary – Grievant, a removed the Sensitive But Unclassified hard drive from his computer when leaving post in and took it on to his next post without reporting his action or seeking permission from the Information Systems Security Officer or the Regional Security Officer at post. When the RSO in asked him to return the hard drive, grievant mailed it back to post via an uncontrolled shipment, but it never arrived. The Department charged him with Failing to Follow Proper Security Procedures for removing the hard drive without permission, and Failure to Safeguard Government Property, for failing to return the hard drive in conformity with regulatory requirements for a controlled shipment.
Grievant appealed to this Board on the grounds that the Department had failed to prove by preponderant evidence that his stated method of shipment of the hard drive was not, as he contended, compliant with the rules for a controlled shipment; that the Department had failed to take into account the mitigating circumstances of a toxic atmosphere and widespread wrongdoing at post; that the Department had misapplied the appropriate penalty considerations (Douglas factors) and chosen inapposite comparator cases; and that the penalty was disproportionate, as the hard drive was only SBU, in contrast with classified documents involved in the comparator cases.
The Board determined that the Department met its burden of proving the charges of Failure to Follow Proper Security Procedures and Failure to Safeguard Government Property, that the penalty imposed was not inconsistent with comparator cases, and that the Douglas factors were properly applied.

Photo by Pixabay on Pexels.com

Background via ROP:

Grievant is an FO-02 REDACTED who began his Foreign Service career as an REDACTED in 2001. At the time of the initial event giving rise to this grievance, he was serving as head of the management section in REDACTED a position he held from October 2012 until his voluntary curtailment in September 2013.

During the course of his assignment to REDACTED by his own account, a number of conflicts developed between grievant and the Chargé d’Affaires (Chargé), the General Services Officer (GSO), who reported to grievant, the Regional Security Officer (RSO) and other individuals at post. Grievant became frustrated that officials in Washington were not investigating or otherwise responding adequately, in his view, to his allegations of malfeasance, mismanagement and child abuse against various individuals serving in REDACTED Grievant decided to volunteer for an assignment at REDACTED , that required immediate voluntary curtailment from REDACTED.

Just before his departure from post in September 2013, grievant became concerned that a colleague or colleagues would attempt to retaliate against him for his claimed knowledge of irregularities in post management and individual malfeasance, or that a subordinate would file a grievance based on a negative EER written by grievant. He stated that he wished, in his own defense and to expose mismanagement, to bring with him numerous documents and emails proving his allegations, but was unable to “download” or print them, as they were too big. (The documents he stated he would need for this purpose included a .pst file of all emails he had sent or received in his time at post, as well as a number of other unspecified documents.) He therefore decided, under pressure of time, to remove the SBU hard drive from his computer and take it with him.1

Grievant states that he received oral permission to take the hard drive from a local employee in the IT section, whose name he did not know or remember. He chose not to inform or request permission from the Regional Security Officer (RSO) and the Information Systems Security Officer (ISSO) in REDACTED as required by the FAM, because the ISSO was away from post and grievant thought the RSO would refuse him permission because the documents grievant wanted to preserve implicated the RSO in wrongdoing. He stated that he needed to physically take the hard drive in order to “preserve the data” to potentially present to investigating authorities in Washington, and “my thought was to take everything I could should something come up.”2 He then took the hard drive with him upon departing post. After removing the hard drive and leaving post, grievant took no further action to report to any investigating body the alleged irregularities and malfeasance in REDACTED. He explained to the Deputy Assistant Secretary reviewing the proposed penalty that “since no one seemed to care, I didn’t.”3

A local employee subsequently reported his removal of the hard drive to the RSO. At some unspecified point after grievant’s arrival in REDACTED , the Regional Security Officer in REDACTED contacted him to request return of the hard drive.4 However, despite grievant’s assertions that he attempted to return it, the hard drive never arrived back in REDACTED. At some later point, the RSO reported the incident to Diplomatic Security (DS); in a subsequent DS interview on July 15, 2016, grievant stated that he had “attempted to return the drive via packaging sent back to the [REDACTED Embassy [diplomatic] pouch office on board a post support flight [a supply flight between REDACTED and REDACTED operated by a U.S. contracting company], ….”5 He had no further information during that interview about exactly how or when he had done so, or the current whereabouts of the hard drive.

In its decision, the FSGB concluded:

We therefore find that the Department’s choice of penalty, in a case involving both unauthorized removal of a sensitive item of media, and subsequent failure to return it, as required, via a controlled shipment, resulting in loss of the item and potential compromise of personally identifiable information pertaining to the U.S. diplomats serving abroad, is reasonable.64 The Department has a legitimate interest in ensuring the safeguarding and preservation of sensitive agency materials. As such, there is a clear nexus between the proven charges and the efficiency of the Service.

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