Notoriously Disgraceful Conduct: Is it only the little people who are taken to task?

Posted: 12:48 am EDT
Updated: 3:07 pm EDT
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In March 2012, AFSA’s General Counsel Sharon Papp reported about a State Department proposal related to the “state of affairs” in the Foreign Service ….no, the other kind of affairs:

In 2011, the State Department proposed disciplinary action against a handful of employees for off-duty conduct that it had not sought to regulate in the past (i.e., extramarital affairs between consenting adults). 

When we reviewed several sex-related grievance cases in 2012, we came to the conclusion that from the agency’s view, widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service. Further, the potential for embarrassment and damaged to U.S. interests seems as weighty as actual embarrassment and damage. See: Sex, Lies, and No Videotapes, Just Cases for the Grievance Board

We recently received the following in our mailbox (edited to remove the most identifying details):

The married DCM at the embassy of a major Middle East ally slept with a married ELO whose husband worked for him. He blamed his alcoholism. As “punishment,” he was assigned as DCM at a significant high risk/high threat post. Next up? One of the top jobs at an embassy located in a Western European country.  Where’s the accountability at State? Is it only the little people that are taken to task? 

Well, that is an excellent question given another allegation we’ve received about another front office occupant involved in domestic violence overseas (another story we hope to write another day).

Extra-marital affairs, of course, are not mentioned anywhere in the Foreign Affairs Manual but below is what the regs say on sexual activity (pdf) and what constitutes, “notoriously disgraceful conduct.” Both sections were last updated in 2012, and applies to Foreign Service employees at State and USAID:

3 FAM 4139.1 Sexual Activity
(CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees) 

The agencies recognize that, in our society, there are considerable differences of opinion in matters of sexual conduct, and that there are some matters which are of no concern to the U.S. Government. However, serious suitability concerns are raised by sexual activity by an individual which reasonably may be expected to hamper the effective fulfillment by the agencies of any of their duties and responsibilities, or which may impair the individual’s position performance by reason of, for example, the possibility of blackmail, coercion, or improper influence. The standards of conduct enumerated in 3 FAM 4138 are of particular relevance in determining whether the conduct in question threatens the mission of the employing agency or the individual’s effectiveness.

3 FAM 4139.14 Notoriously Disgraceful Conduct
(CT:PER-673; 04-27-2012) (Uniform State/USAID) (Applies to Foreign Service Employees) 

Notoriously disgraceful conduct is that conduct which, were it to become widely known, would embarrass, discredit, or subject to opprobrium the perpetrator, the Foreign Service, and the United States. Examples of such conduct include but are not limited to the frequenting of prostitutes, engaging in public or promiscuous sexual relations, spousal abuse, neglect or abuse of children, manufacturing or distributing pornography, entering into debts the employee could not pay, or making use of one’s position or immunity to profit or to provide favor to another (see also 5 CFR 2635) or to create the impression of gaining or giving improper favor. Disqualification of a candidate or discipline of an employee, including separation for cause, is warranted when the potential for opprobrium or contempt should the conduct become public knowledge could be reasonably expected to affect adversely the person’s ability to perform his or her own job or the agency’s ability to carry out its responsibilities. Evaluators must be careful to avoid letting personal disapproval of such conduct influence their decisions.

One might argue that an extra-marital affair between two consenting adults is a private matter.  And in most cases, it is; who wants to be the sex police?  But. If the allegations are true, can you really consider it private, particularly in a case that involves the second highest ranking public official at an embassy and an entry level officer (ELO) assigned under his command? Even if the DCM is not the ELO’s rating or reviewing officer —  how does this not affect the proper functioning of the mission? Can anyone exclude undue influence, potential favoritism or preferential treatment?  Which section chief would give a bad performance review to a junior officer who slept with the section chief’s own reviewing officer? Even if not widely known outside the Foreign Service, can anyone make a case that this is not disgraceful or notorious?  For real life consequences when a junior officer has a “special relationship” and “unrestricted access” to an embassy’s front office occupant, read the walking calamity illustrated in this case FSGBNo.2004-061 (pdf).

Look … if widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service for the lower ranks, why should it be a requirement for the upper ranks?  It’s not? Well, how else can we explain a good number of senior officials who allegedly looked the other way?

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Can’t you see I’m busy? Besides I did not/did not see anything!

 

We went and looked up the Foreign Service Grievance Board cases related extra-marital affairs or related to notoriously disgraceful conduct. Here are some quick summaries.

  • In 2011, the State Department handed down a 30-day suspension to a junior officer for “off-color and offensive emails about women he dated, which were widely disseminated” after his private email account was hacked.  State said this constituted “notoriously disgraceful conduct.” (pdf)
  • Another case in 2011 involves an FSO who was told by the State Department: “Given the nature of Foreign Service life, you are aware that you are on duty 24/7. These multiple extramarital affairs involving sexual relations with an estimated 13 women during two separate assignments overseas without your spouse’s knowledge show poor judgment for a Foreign Service Officer.” (pdf) (note: two separate assignments could mean 4-6 years; untenured tours at 2 years, tenured tours typically at 3 years).
  • A Diplomatic Security (DS) Special Agent was suspended for three days for Notoriously Disgraceful Conduct arising from a domestic violence incident with his spouse. (pdf)
  • A married FP-04 Information Management Specialist (IMS), received a 20-day suspension, subsequently reduced to 10 days, for improper personal conduct and failure to follow regulations. The employee served at a critical threat post, and admitted having an extramarital relationship with a local embassy employee as well as engaging in sexual relations with two “massage techs.” (pdf)
  • An untenured FP-04 Diplomatic Security (DS) agent was disciplined for poor judgment and improper personal conduct. The employee brought a  woman to his hotel room and engaged in sex with her. Although the employee voluntarily disclosed the incident and asserted that the woman was not a prostitute, the Department contends that the incident at a minimum gave the appearance of engaging in prostitution and as such violated 3 FAM 4139.14 or Notoriously Disgraceful Conduct. (pdf)
  • A married FS-02 Information Management Officer (IMO) with seventeen years in the Department, with numerous awards and no disciplinary record, was found in his personal vehicle that was parked in an isolated area, and in a dazed condition with injuries suggesting he had been assaulted. He stated that during the prior night he had picked up a woman unknown to him, shared wine with her while driving, pulled over to the side of the road and then had no recollection of what followed, presumably because she had introduced a substance into his drink. During the ensuing investigation, the employee revealed he had picked up four or five women on previous occasions over a four-month period and had sex with them without the knowledge of his wife.  As a result, the Department proposed a ten-day suspension based on the charges of Poor Judgment and Notoriously Disgraceful Conduct. (pdf)
  • An FP-04 Diplomatic Security (DS) agent was given a five-day suspension without pay on the charge of Improper Personal Conduct. The charge is based on an incident in a criterion country in which employee (an unmarried person) engaged in consensual sex with a local woman and gave her $60.00 after the sexual activity had concluded. There was no evidence that the woman was a prostitute and there were no witnesses to their encounter. The employee self-reported the incident immediately to his supervisors, who took no disciplinary action. Eighteen months later, the Department opened an investigation and eventually suspended the employee. The deciding official concluded that employee’s conduct had violated two regulations governing behavior subject to discipline: 3 FAM 4139.1 (Sexual Activity) and 3 FAM 4139.14 (Notoriously Disgraceful Conduct). (pdf)

So —

We have so far been unable to locate FSGB cases of “notoriously disgraceful conduct” involving senior Foreign Service officials; certainly nothing at the DCM or COM level. It could be that 1) our search function is broken; 2) the folks are so risk-aversed and discreet that there are no cases involving a single one of them, or 3) potential such cases were swept under the rug, nothing makes it to the public records of the Foreign Service Grievance Board.

Which.Is.It? Will accept breadcrumbs …

#

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Sex, Lies, and No Videotapes, Just Cases for the Grievance Board

Sharon Papp, AFSA’s General Counsel in her annual report on labor management issues published in the Foreign Service Journal writes that her office “dealt with a bewildering variety of bread-and butter issues over the course of the year.”  She further reports that the labor management staff received between 400 and 450 requests for assistance each week, and the staff is presently working on approximately 200 active cases that are pending in various agency offices or before the Grievance Board.  She then points to several matters of general importance that stand out including the following which attracted some press attention:

In 2011, the State Department proposed disciplinary action against a handful of employees for off-duty conduct that it had not sought to regulate in the past (i.e., extramarital affairs between consenting adults). The department has never sent out a cable or department notice advising employees that, depending on the number of partners, it views such behavior as “notoriously disgraceful conduct” that may subject the employee to discipline.

AFSA has expressed its concern to the department regarding the lack of notice to employees and the tenuous connection between this off-duty conduct and the employee’s job, and we are assisting a number of employees who are challenging such disciplinary actions.

Peter Van Buren, FSO-non grata at the State Department caught this at first blush and blogged about it. Those with thin eyes/ears may want to skip the blog post, otherwise, feel free to read it here.

The report also caught the attention of WaPo’s In the Loop. Excerpt below, with comments from a State Department official and an AFSA rep.  Read in full here:

The State Department would not elaborate on the proposed disciplinary actions or whether employees are ever specifically instructed not to cheat on their spouses. But a State Department official tells the Loop that the concern over what goes on in its employees’ bedrooms is a practical one. “Where an employee is having an extra-marital affair and the spouse does not know, there is a potential for blackmail,” the official said.

A representative of American Foreign Service Association tells the Loop that workers are just looking for clarity about the rules–and consistency in how they’re enforced. “When the State Department wants to make employee rules, it must clearly communicate and announce them… and it must apply [them] fairly and equally to all personnel,” the AFSA representative says.

The State Department official pointed us to a portion of the Foreign Affairs Manual, which governs employee conduct, stating that Foreign Service workers are expected to behave with “integrity, reliability, and prudence.”

“Given the representational nature of employment in the Service…it is necessary that employees observe such standards during and after working hours,” the manual says.

The manual has a few things to say about the sex lives of Foreign Service workers. It specifically calls out for concern “sexual activity by an individual which reasonably may be expected to hamper the effective fulfillment by the agencies of any of their duties and responsibilities, or which may impair the individual’s position performance by reason of, for example, the possibility of blackmail, coercion, or improper influence.”

On the issue of blackmail — vulnerability to blackmail had been used in the past to persecute gays and lesbians in the Federal Government, including in the State Department.  According to David K. Johnson, author of The Lavender Scare: the Cold War Persecution of Gays and Lesbians in the Federal Government, a 1952 procedures manual for security officers contained a nine-page section devoted entirely to homosexuality, the only type of security offense singled out for such coverage.  The book describes what took place “inside security interrogation rooms where thousands of Americans were questioned about their sex lives.” It was referred to as “homosexual purges” which “ended promising careers, ruined lives, and pushed many to suicide.”

In an internal study cited by Dr. Johnson, the Department reportedly articulated several rationales for removing gays and lesbians from the Service, none of which involved the threat of blackmail or any other link to national security. As an aside, the FCO was in a similar boat. Read Ambassador Crawford’s 2010 piece, The love that dared not speak its name in the Foreign Office.

The above is mentioned as a cautionary tale. Concern over what goes on in an employee’s bedroom maybe a “practical one” but it is also a slippery slope. Is the State Department going to have a sex police issuing “tickets” on who slept with whom when?

In any case — back in 2003, a Senior Foreign Service Officer, who was nominated for an ambassadorship (nomination later withdrawn) claimed in a grievance filing that “he has information and beliefs about other senior officers who he alleges had extramarital affairs at overseas posts but were not disciplined by the Department.” Fortunately, he did not list their names in his grievance filing.

There is no publicly available data on how many FS employees were disciplined for extra-marital affairs but if AFSA is paying attention now, it must mean that the “handful of employees” is a large enough pool for the organization to ask for clarity and consistency on how the rules are applied. Is there a correlation in the number of these cases and the surge in war-zone deployments?

I cannot find any mention of extra-marital affairs in the Foreign Affairs Manual but below is what it says on sexual activity; last updated in 1995:

3 FAM 4139.1 Sexual Activity
(TL:PER-303; 11-08-1995)
(Uniform State/USAID/USIA)
(Applies to Foreign Service Employees)

The agencies recognize that, in our society, there are considerable differences of opinion in matters of sexual conduct, and that there are some matters which are of no concern to the U.S. Government. However, serious suitability concerns are raised by sexual activity by an individual which reasonably may be expected to hamper the effective fulfillment by the agencies of any of their duties and responsibilities, or which may impair the individual’s position performance by reason of, for example, the possibility of blackmail, coercion, or improper influence. The standards of conduct enumerated in section 3 FAM 4138 are of particular relevance in determining whether the conduct in question threatens the mission of the employing agency or the individual’s effectiveness.

While there is no publicly available data on disciplinary actions caused by extra-marital affairs, there are several sex-related cases in the Foreign Service Grievance Board (FSGB) where the records of proceedings are publicly available online with the names redacted.

The Senior Foreign Service Officer mentioned above (FSGB 2003-045) appealed the State Department’s decision to suspend him from duty for three days on charges related to his extra-marital sexual activities with two FSN employees of the American Embassy in {country 2}, and poor judgment, relating to sexual activities with foreign nationals in {country 2} and {country 1}.  He was at that time the Administrative Counselor at the U. S. Embassy in {city 2}, and had a sexual affair with a woman that continued after she was hired by the embassy, even though he was her immediate supervisor. He was also charged with poor judgment for having an affair with {name 1’s} sister, who was the receptionist at the American Language Center in {city 2}, {country 2}. And while he was a DCM in {city 1}, he admitted to a one-time sexual encounter with a {country 1}ian national who was an employee at a local hotel. He was charged two years after these incidents occurred. The FSGB decided that the Department’s decision to suspend grievant for three days was reasonable.

In 2007, an FSO with 20 years in the Foreign Service, with every overseas posting at a hardship post was charged for off-duty misconduct — over a seven-year period he engaged the services of prostitutes 30-40 times in {post 2}, where it is a crime, and 10-20 times in {post 1}.  The Department identified as an aggravating factor that the misconduct could have caused embarrassment and damaged U.S. interests had grievant been arrested.  The FSGB held that a penalty of three-day suspension without pay for improper personal conduct is appropriate under the circumstances (FSGB No. 2007-011).

In 2008, the Department proposed the separation of an FS-02 Diplomatic Security (DS) Officer’s based on a charge that carried four specifications, all related to engaging with prostitutes including one who was allegedly an underage girl. At the time of these encounters, grievant was posted overseas as the Regional Security Officer (RSO) at a U.S. Embassy (FSGB No. 2008-048). In his grievance filing, the employee argues that “His behavior at the time was the result of a treatable medical condition, depression and sexual addition, and it is now under control.  He should not be unfairly singled out because of the sexual nature of his misconduct.  Alcohol or substance abusers receive more compassion than the Department has shown him after 26 years of faithful and outstanding service, numerous awards and no prior discipline.”  The FSGB held that the Department met its burden to prove by a preponderance of the evidence that grievant, should be separated from the Service based on a charge of engaging in “notoriously disgraceful conduct.

In 2009, the OIG conducted an investigation of a senior Department manager and a female subordinate who, while engaging in an extra marital affair, engaged in various unauthorized activities including improper personnel practices; improper acceptance of gratuities from contractors to include free tickets to an NFL game and a Broadway show; and contracting irregularities. The case was declined for criminal prosecution. On May 21, 2009, the Bureau of Human Resources issued a proposal to terminate both employees, but later mitigated the action for the subordinate employee to a 14-day suspension. (05-027)

Last year, an FP-03 FSO who served as Deputy Principal Officer in [City, Host Country] (a two-person American Presence Post), was charged with having an extra-marital relationship without his wife’s knowledge; creating the appearance that he had engaged the services of a prostitute while on official in-country travel; denying the extramarital affair when first interviewed by a federal law enforcement officer; and taking the woman with whom he was having the affair back to her place of work in a USG vehicle after restaurant lunches (FSGB Case No. 2011-009).  The FSO filed a grievance where he stated that during the time he was involved with the extra-marital relationship, he experienced “post disaster stress and depression after the earthquake that hit [Host Country].”  He stated that his family was in (Country X) for months, that consequently he was isolated and had no one to turn to, and in “desperation” he allowed his relationship with the woman to develop into something “beyond friendship.”  The FSGB held that “The Department met its burden of proof that grievant engaged in the acts of misconduct underlying the charges […] that there was a clear nexus between his behavior and the efficiency of the Service, and that the proposed penalty of a ten-day suspension is reasonable.”

There are a few things we learned reading through these grievance cases:

1) It appears that from the agency’s view, widespread notoriety is not required to demonstrate an adverse effect on the efficiency of the Service. And the potential for embarrassment and damaged to U.S. interests seems as weighty as actual embarrassment and damage.

2) The Board’s expressed role is to determine whether the [penalty] proposed is a reasonable one, not whether it is the best penalty.

3) Some of these cases run for so long that that employees with suspended clearance can be in a black hole for years.  In one instance, an employee was placed on administrative leave from January [Year #7] until March Year #1], “when DS discovered how much time had passed.” Based on the filing, we conclude that the date is from January 1997 until March 2001.

4) It appears that the FSGB does not consider misconduct that takes place on non-working hours as a mitigating factor for any of these grievances for the following reason: “Because of the uniqueness of the Foreign Service, employees are considered to be on duty 24 hours a day and must observe especially high standards of conduct during and after working hours and when on leave or travel status.”

5) In almost all these cases, the grievants claim that their penalties are “greatly disproportionate and unreasonable” or inconsistent with those of similar offenses.

6) A DS Director [Named Person #8], who testified in one of these cases did state that the Department considers engaging prostitutes a “heinous event.” As in utterly odious or wicked event.

7) In the case of a DS agent dismissed for “notoriously disgraceful conduct,” the Director General at that time testified that:  “I think it’s important to send a message to the entire State Department that. . . you cannot do this.”

8) A  senior FSO who had relations with two FSNs plus, received a three-day suspension, and an midlevel FSO who had an affair with one non-embassy individual received a ten-day suspension.  Trying hard here not to be snarky about the fair and equal application of the rules.

9) The wives were the last to know.

Domani Spero