Senate Confirmation Fight in the Horizon Once Again? Tick-Tock

 

The 70th Secretary of State is now publicly pushing to have his senior officials confirmed by the Senate. When the Senators returns from their election break, they have less than 20 working days left for the year.  And it looks like judicial nominees are taking precedence. Tick-Tock.

Hey, just a few years ago, the 69th Secretary of State was looking to have his senior officials confirmed, too. And that was months before the mid-terms. One of the nominees, Cassandra Q. Butts even spent 835 days after she was nominated waiting for Senate confirmation; she died waiting. GOP Senators put a hold on the nomination unrelated to her qualification.

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Foreign Service Labor Relations Board Rules For @StateDept in 2014 MSI Case

AFSA has recently informed its members that the Foreign Service Labor Relations Board (FSLRB) has ruled for the State Department in the 2014 Meritorious Service Increase (MSI) dispute. The ruling affects approximately 270 Foreign Service employees: 

AFSA regrets to inform our members that on September 21, 2018, the Foreign Service Labor Relations Board (FSLRB) granted the Department of State’s exceptions (i.e., appeal) and set aside the Foreign Service Grievance Board’s (FSGB) December 8, 2017 Decision, which had found that the Department violated the procedural precepts by not paying Meritorious Service Increases (MSI) to approximately 277 Foreign Service employees who were recommended but not reached for promotion by the 2014 Selection Boards.  AFSA argued that the Department was required to confer MSIs on all eligible employees (up to the 10% limit set forth in the precepts) who were recommended but not reached for promotion.  The Department argued that it had the unilateral discretion to give MSIs to only 5% of employees ranked but not reached for promotion, since 5% was below the 10% limit.

Rather than give substantial deference, as is normally the case, to the FSGB’s interpretation of the parties’ agreement (i.e., the promotion precepts), two of the three FSLRB members (including the Administration’s appointee to the FSLRB) agreed with the Department’s arguments and found that the FSGB had misinterpreted the precepts.  The third member, Retired Ambassador Herman Cohen, dissented from the majority decision.  When a party seeks to establish that an arbitrator (in this case, the Grievance Board) misinterpreted an agreement, the party must provide that the decision “fails to draw its essence from the agreement.”  This is an extremely high burden to meet.  According to the case law, “great deference” is given to the arbitrator’s interpretation of the agreement “because it is the arbitrator’s construction of the agreement for which the parties have bargained.”   In this case, however, the FSLRB chose not to defer to the Grievance Board, ignoring the “great deference” practice.  Unfortunately, the FSLRB’s decision is not subject to judicial review.

AFSA says that it is “extremely disappointed by this decision.” Its notice to members notes that it prevailed in two earlier cases, the 2013 and 2014 MSI disputes. It also informed members that despite this ruling, it plans to proceed with the 2015 and 2016 MSI cases before the Grievance Board.

Excerpt from FSLRB ruling says:

The Grievance Board stated that it was “indisputably true” that, by its plain terms, the phrase “no more than [10%]” in the agreement means that the Agency may award MSIs to “10% or less” of eligible employees.29 As discussed above, the Grievance Board should have ended its analysis there, with the agreement’s plain wording. Instead, the Grievance Board found that, because the parties had different interpretations, the wording was ambiguous.30 But wording that is clear on its face does not become ambiguous simply because the parties disagree as to its meaning.31 Rather, a contract is ambiguous if it is susceptible to two different and plausible interpretations, each of which is consistent with the contract wording. 32 The interpretation adopted by the Grievance Board – that “no more than [10%]” means the Agency must award MSIs to no less than 10% of eligible employees33 – is not consistent with the plain meaning of the agreement’s wording. Consequently, it is not a plausible interpretation of the agreement.

FLRA Chairman Colleen Duffy Kiko who was confirmed by the Senate in November 2017 serves as the Chairperson of the FSLRB. The two other members of the FSLRB are Stephen Ledford, who previously served as the Director of Labor and Employee Relations at the U.S. Information Agency (USIA) and was sworn on his third term with FSLRB in 2015, and Ambassador (ret.) Herman J. Cohen, a career diplomat and specialist in African and European affairs who was appointed to his first term with the FSLRB in October 2015.

In his dissent, Ambassador Cohen writes:

For five years prior to 2014, the year covered by this case, the promotion precepts, negotiated between management and the union, were always the same: MSIs will be awarded to those recommended for promotion at a maximum of ten percent of those on the list, in rank order. With this practice having been followed year after year, it is quite normal that the union had the right to believe that the number would never be less than ten percent pursuant to the negotiated precepts. Ten percent was not part of a sliding scale. It was an agreed amount.

If management had changed that number from year to year, the situation for 2014 would have been totally different. The union would have demanded the right to negotiate that number.

For this reason, management’s decision to unilaterally change the number of MSIs was contrary to the precepts, despite the ambiguous language. Historical practice said that ten percent of those recommended, but not promoted, would receive MSIs. Secondly, management gave a reason for awarding only five percent MSIs in 2014. Management said it was “exercising its budgetary authority” to make the reduction. In other words, the funds were needed elsewhere.
[…]
In the specific year 2014, it appears that the need to save money by reducing MSIs had no relationship to overall budgetary needs. In short, management was saving money on MSIs, and using that “salary money” to pay for 35 sets of ambassadorial furniture, as one possible example. In 2014, management provided no reason to justify this reduction in this highest priority “salary” by higher priority needs elsewhere. Neither, to my knowledge, was there an overall government-wide freeze in MSIs that year.

The case is U.S. State Department v. AFSA. The FSLRB decision is available to read here or see this link: FS-AR-0007Dec 9-21-18

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U.S. Diplomats at Embassy Manila Eat the Most Terrifying Food in the World #fooddiplomacy

 

So cracked.com has a list of the 6 Most Terrifying Food in the World and the U.S. diplomatic mission in the Philippines has a surprise for all of us!

6) Mexico’s Escamoles  – the eggs of the giant black Liometopum ant, which makes its home in the root systems of maguey and agave plants

5) Italy’s Cazu Marzu — this is a sheep’ milk cheese that has been deliberately infested by a Piophila casei, the “cheese fly” which results in “a maggot-ridden, weeping stink bomb in an advanced state of decomposition”

4) Norway’s Lutefisk – this is “a traditional Norwegian dish featuring cod that has been steeped for many days in a solution of lye, until its flesh is caustic enough to dissolve silver cutlery”

3) Korea’s Baby Mice Wine “a traditional Chinese and Korean “health tonic,” which apparently tastes like raw gasoline”

2) Iraq’s Pacha or to put it simply, boiled sheep’ head, and as the cracked writers put it, “Burp while ye may,” the sockets say, “for the same fate will happen to you–and all too soon.”

1) Philippines’ Balut – “duck eggs that have been incubated until the fetus is all feathery and beaky, and then boiled alive. The bones give the eggs a uniquely crunchy texture.”

Below is a video clip of our diplomats in the Philippines eating not #6 or #2; they had to show us how to eat #1, those “crunchy” baby duck eggs!!!

NOTE: We have no/no plans of trying any of them anytime soon, thank you very much but let us know if your post has a video to share.

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Present at the Creation Also (Our Years of Wrecking Ball Diplomacy and Swagger) #grabthisbooktitlenow

 

On October 3, the International Court of Justice, the principal judicial organ of the United Nations issued a ruling on the Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America).  Excerpt via:

(1) unanimously, that the United States of America, in accordance with its obligations under the 1955 Treaty of Amity, Economic Relations, and Consular Rights, must remove, by means of its choosing, any impediments arising from the measures announced on 8 May 2018 to the free exportation to the territory of the Islamic Republic of Iran of (i) medicines and medical devices; (ii) foodstuffs and agricultural commodities; and (iii) spare parts, equipment and associated services (including warranty, maintenance, repair services and inspections) necessary for the safety of civil aviation;

(2) unanimously, that the United States of America must ensure that licences and necessary authorizations are granted and that payments and other transfers of funds are not subject to any restriction in so far as they relate to the goods and services referred to in point (1);

(3) unanimously, that both Parties must refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

The Trump Administration responded by pulling out the United States from the 1955 Treaty of Amity with Iran  (PDF) and from the 1961 Optional Protocol on Dispute Resolution to the Vienna Convention on Diplomatic Relations (PDF). The latter in connection with a case that challenges the USG’s move of the U.S. Embassy from Tel Aviv to Jerusalem, according to NSA John Bolton. Per transcript of the WH Briefing, Mr. Bolton said that “The United States remains a party to the underlying Vienna Convention on Diplomatic Relations and we expect all other parties to abide by their international obligations under the Convention.”

ICYMI, read the following from Chimène Keitner who previously served as Counselor on International Law in the State Department:

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Ex-Amb. to Estonia James D. Melville Writes Why He Quit

 

On June 29, U.S. Ambassador to Estonia James Melville announced on Facebook his intent to retire from the Foreign Service after 33 years of public service. See US Ambassador to Estonia James Melville Pens Resignation on FB Over Trump Policies.  On October 3, WaPo published his op-ed explaining his departure.

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Amb. Prudence Bushnell: Terrorism, Betrayal and Resilience (Book Preview)

 

 

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Mandatory Evacuation On For US Consulate General Basrah in Southern Iraq

In June last year, we blogged about the Tillerson State Department’s plan to close down the U.S. Consulate General in Basrah (see U.S. Consulate General #Basrah, Iraq: Six-Year Old Diplomatic Outpost Faces Closure).

On September 28, the State Department announced Secretary Pompeo’s determination to place the U.S. Consulate General in Basrah on “ordered departure” status. That means post is now under mandatory evacuation. Media reports elsewhere notes post’s “temporary” closure but we could not find a formal announcement for temporary closure, post closure, or suspension of operation.

Per 2 FAM 410, the final decision to open, close, or change the status of a diplomatic mission is made by the President.  The final decision to open, close, or change the status of a consular post, consular agency, branch, or special office is made by the Under Secretary for Management, a position that remains vacant.

A statement from Secretary Pompeo talks about the “temporary relocation of diplomatic personnel“, blames Iran, and cites “increasing and specific threats and incitements to attack our personnel and facilities in Iraq.”

Basrah is located in the southern-most province of Iraq, near the border with Kuwait and Iran and serves the four provinces of the region: Basrah, Muthanna, Dhi Qar, and Maysan.  The U.S Consulate General is adjacent to the Basrah International Airport and the facility, an interim project cost at least $150 million (this includes security and facility upgrades).  Post did not provide visa services or non-emergency American citizen services, both of which are provided by the U.S. Embassy in Baghdad.  Its consular services were limited to emergency American citizen issues.

CIA map

An updated Iraq Travel Advisory says:

The U.S. government’s ability to provide routine and emergency services to U.S. citizens in Iraq is extremely limited.  On September 28, 2018, the Department of State ordered the departure of U.S. government personnel from the U.S. Consulate General in Basrah.  The American Citizens Services (ACS) Section at the U.S. Embassy Baghdad will continue to provide consular services to U.S. citizens in Basrah.

A 2013 State/OG report notes the following about Basrah:

The Government of Iraq would like to reclaim the 108-acre compound that houses the U.S. consulate general—a former British forward operating base 12 miles from Basrah on an Iraqi military compound adjacent to the international airport. The embassy is committed to maintain a presence in the south of Iraq, not least because it is the largest source of new oil to market in the world, and many U.S. companies are pursuing commercial opportunities there. The local government supports a U.S. presence, and the Government of Iraq committed in a 2004 bilateral agreement to provide a permanent site for consulate operations. To date, however, there has been no progress identifying a future site. The U.S. Government does not have a land use agreement for the current compound. The consulate general’s hold on the property remains tenuous.

At the time of the inspection, the Department was completing a $150 million interim construction project to provide basic security and infrastructure upgrades, but the facility and its isolated location are not suitable for a diplomatic mission on more than a temporary basis. Employees live in deteriorating containerized housing units; the compound has no central generator grid or access to city power; all supplies, including food, have to be trucked to the compound; and the security support needed to interact with contacts in Basrah City is costly. Operating costs to maintain the current, oversized facility and its hundreds of guards and life support staff are approximately $100 million per year. The Department has not given priority to or identified funding for a purpose-built facility.

Basrah’s ability to sustain operations is fragile under the best of circumstances because of its location at the end of a supply chain beset by shipping delays, security concerns, and the difficulty in recruiting and retaining U.S. direct-hire staff. As long as the consulate general occupies a sprawling compound that requires nearly 1,200 support staff, efforts to reduce costs and develop a long-term diplomatic presence commensurate with U.S. interests will remain on hold. If the Department cannot decide soon on Basrah’s future, it will at the very least have to fund interim upgrades to make facilities livable.

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Secretary Pompeo Saves $2Billion Weapons Sales From Jeopardy

 

AND NOW THIS, the English version though the original one requires no translation:

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U.S. Embassy Antananarivo: Diplomat Found Dead After Apparent Attack in Residence

 

On September 24, the State Department issued a statement on the death of a U.S. diplomat assigned at the American Embassy in Antananarivo, Madagascar:

We are deeply saddened to confirm that a U.S. Foreign Service Officer was found dead in their residence in the overnight hours of Friday, September 21. Our deepest sympathies go out to the family and the U.S. Embassy Antananarivo community. U.S. investigators have opened an investigation into the matter as have the local Malagasy authorities, and a suspect is currently in custody. Out of respect for the family of the deceased as well as the ongoing investigative process, the Department does not have any additional comments at this time.

According to AFP,  the diplomat was found dead after an apparent attack in his residence in Madagascar’s capital and that the suspect had been arrested. “In the early hours of Sunday morning “after receiving a call from neighbours and private security guards, the gendarmerie night patrol found an American diplomat dead at his home,” police spokesperson Herilalatiana Andrianarisaona told AFP.”

A State/OIG report from May 2015 notes that US Embassy Antananarivo has a total staff of 296, with 57 U.S. direct-hire positions. A previous report dated February 2010 notes that there were 305 locally employed staff, and 275 contract guards.

In April 2010, the embassy occupied a new embassy compound (site acquisition was $3.6 million, and construction was $102.3 million), consisting of a chancery, a warehouse/shops facility, a Marine security guard quarters, and a swimming pool. Embassy housing consists of 38 leased and 2 government-owned residences, 1 of which is the Ambassador’s residence.

The Key Officers List dated September 14 indicates that post does not have a chief of mission and is currently headed by Chargé d’Affaires a.i. Stuart R. Wilson who was originally assigned as DCM to Antananarivo in August 2017.

On August 1, a Travel Alert was issued for Madagascar indicating a change to Level 2 Exercise Increased Caution category due to civil unrest and crime.

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FSJ: MED’s Focus on Clearances and Restricting Access to SNEA #NotSupportForFamilies

We’ve blogged previously about the problems encountered by Foreign Service families with the State Department’s Bureau of Medical Services (see StateDept’s MED Services Drive Employees with Special Needs #FSKids Nuts; Also @StateDept’s Blackhole of Pain Inside the Bureau of Medical Services (MED). The latest issue of the Foreign Service Journal features a piece by James Brush who previously worked as a child psychologist at the State Department.

Via FSJ: James Brush, Ph.D., is a child and adolescent psychologist in private practice in Washington, D.C. He worked at the State Department as a child psychologist with the Child and Family Program division of MED Mental Health from January 2013 through March 2016. Prior to his work at State, he had a private practice in Cincinnati, Ohio, for 26 years. A past president of the Ohio Psychological Association, he continues to be involved as a committee chair. 

Below is an excerpt from The Demise of MED’s Child and Family Program (FSJ)

The Child and Family Program within the Bureau of Medical Services’ Mental Health program was constituted in 2013, when the full team was finally in place after years of planning. I was brought onto the team as one of two child psychologists. By March, we had on board a child psychiatrist director, two child psychologists and three clinical social workers who had experience in treating and managing the needs of children and adolescents.

I was on the ground floor of this program, and our mission was both exciting and challenging. This was the first extensive effort within the State Department to support the specific mental health and developmental needs of children, adolescents and their families living abroad.
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By 2015, three of the psychiatrists who were opposed to the CFP functioning as a comprehensive support program ended up having leadership roles in MED. Dr. Stephen Young took over as the director of mental health. Dr. Kathy Gallardo took over as deputy director of mental health, and Dr. Aleen Grabow was brought in as a child psychiatric consultant. Together, they worked toward limiting the scope of the CFP, limiting the SNEA program and reducing the opportunities for families with disabled children through more restrictive use of child mental health clearances.

Within a year of their tenure in leadership, we lost our child psychiatrist director, the two child psychologists and one clinical social worker. I and the other providers left because Drs. Young and Gallardo changed the mission and scope of the CFP. It became an unpleasant place in which to work, with the emphasis being on clearances and restricting access to SNEA. Support for families was no longer the focus. Rather, support services were being cut and the clearance process was being used to restrict the opportunities of those with disabled children.

The program is now a skeleton of what it was previously, with only one social worker, one child psychologist and one retired Foreign Service psychiatrist. Telemedicine is forbidden. The program now basically performs an administrative function, processing clearances and SNEA requests.

Read the entire piece here.

We understand that State/OIG is aware of some allegations related to the special needs education allowance (SNEA) and is doing “exploratory work”. Well, Dr. Brush’s account should be instructive.  This is not one of the employees battling the bureaucracy on behalf of their children, this is one of the people who used to work at MED.

While we might be tempted to think that the troubling response could be some form of retaliation for blowing this issue up in the media, it is hard to imagine that MED’s policy and focus on restricting access to SNEA and the medical clearance do not have the full blessings of the State Department leadership all the way to the 7th Floor. After all, if State really wanted to resolve these cases, it would have worked with these FS families to accommodate their needs, avoid forcing people into taking loans to pay/repay for special ed needs expenses, and it would have afforded families an appeals process (IT. DOESN’T).

And they certainly would not/not have threatened people who pursue this issue, right? RIGHT?

Perhaps, this is what they mean when they talk about the new Department of Swagger? Take it or leave?

(Thought bubble: How long before the proponents of this policy get promotions, Superior Honor Awards or Presidential Rank Awards?)

While the State Department has lifted the hiring freeze, and the A-100 classes are no longer on a hit and miss schedule, it is not clear to us what the new secretary of state’s position on the previously planned 8% shrinkage of the agency workforce. If that was a WH imperative as opposed to Tillerson’s, it would be hard to imagine Secretary Pompeo going against it.

The CRS report on the Department of State, Foreign Operations and Related Programs: FY2019 Budget and Appropriations dated April 18, 2018 and updated on August 9, 2018 notes the following:

The Department of State released guidance in May 2018 lifting the hiring freeze and allowing the department to increase staffing to December 31, 2017, levels. Subsequent press reports indicate that the department intends to hire 454 new employees beyond end of year 2017 levels but also suggest that hiring must be circumscribed by previous commitments former Secretary of State Rex Tillerson made to reduce its workforce by 8%.

So this brings us to the “take it or leave” scenario for FS employees with special needs children. Since these kids are given limited medical clearances with no appeals (which precludes most if not all overseas assignments), Foreign Service families will be forced to serve either in domestic assignments in order to stay together; serve separately with employees going overseas, while their families stay in the United States, or employees may opt to pay everything out of pocket and not ask for SNEA to avoid getting snared in MED’s clutches.

Begs the questions: 1) How many career employees would stay on when their employer talk the talk about supporting FS families but know it’s just a gum chewing exercise? And 2)  Is this what a slow walk to 8% looks like??

By the way, if there’s an alternate reasonable explanation for all this that does not require our relocation to the parallel universe, Earth, Too, send us an email, we’d love a good chat.

 

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