FSGB: Selection Boards Cannot Rely Almost Exclusively on Discipline Letters For Low-Ranking

 

Via FSGB Case No. 2021-019 | September 28, 2021
Held – Grievant proved by a preponderance of the evidence that the 2020 Foreign Service Selection Board (“FSSB”) committed procedural error in low-ranking him.
Case Summary – Grievant argued that the 2020 FSSB effectively relied only on a discipline letter in his Official Performance Folder (“OPF”) when deciding to identify him for low-ranking, a violation of its Procedural Precepts. While the FSSB also referenced a Developmental Area (“DA”) from his 2018 Employee Evaluation Report (“EER”), grievant argued the FSSB misinterpreted the DA. Moreover, he maintained, the FSSB was required to substantiate the discipline letter and the DA with examples from his evaluations, which it did not do. Grievant argued that the FSSB cannot low-rank him for failing to demonstrate growth without citing examples from his evaluations for the last five years to substantiate its finding, which it failed to do. Grievant asked that the low ranking be rescinded and he be mid-ranked.
The Department of State (“Department”) noted that the discipline letter was correctly included in grievant’s OPF and therefore was appropriately available for review by the FSSB. The FSSB clearly stated in its low-ranking statement (“LRS”) that it had reviewed the past five years of grievant’s evaluations as required by its Procedural Precepts. The FSSB properly linked grievant’s conduct as discussed in the discipline letter to performance standards, skills, and competencies. The FSSB referred to both the discipline letter and the 2018 EER, meeting the standard for specific references established in the FSSB Procedural Precepts. The expectation of professional growth is implicit in the appraisal process and does not require a separate definition. Grievant also failed to place a rebuttal letter into his file although given the opportunity to do so.
The Foreign Service Grievance Board (the “Board”) found that the LRS relied inappropriately on the discipline letter, without the supporting examples from evaluations which are required by its Procedural Precepts. The LRS made a passing reference to the 2018 DA that came from the same rating period as the discipline letter and was not substantiated by examples from relevant EERs as required by the FSSB Procedural Precepts. The LRS inappropriately faulted grievant for failing to demonstrate growth in two specific areas without citing evidence from his OPF. Grievant’s decision not to submit a rebuttal to the discipline letter is irrelevant.
The Board granted the grievance and ordered the Department to rescind the low-ranking and amend grievant’s record to show mid-ranking.
Details:

REDACTED(“grievant”) is an FO-01 Economic Officer employed by the Department of State (the “Department” or the “Agency”) since 1998. He has served at numerous foreign and domestic posts, and by 2018 had earned three Meritorious Service Awards across his 20-year career.

On May 31, 2017, grievant was assigned as Deputy Chief of Mission (“DCM”) to the U.S.Embassy REDACTED (the “post” or the “country”). Upon his arrival grievant became the Chargé d’Affaires ad interim (“CDA”) of the U.S. Embassy at post, and served in that capacity until January 27, 2018 when a new ambassador arrived. During the time grievant was CDA, he appointed his Management Officer (“MO”) as his Acting Deputy Chief of Mission (“ADCM”) upon her arrival at post in August 2017.

Between September 2017 and January 27, 2018 grievant made a series of inappropriate comments and gestures directed at the MO and an office management specialist (“OMS”), persisting even after being advised he was making others uncomfortable. On April 5, 2019, the Department proposed discipline of a seven-day suspension without pay based upon a June 6, 2018 Sexual Harassment Inquiry received from the Office of Civil Rights (“S/OCR”). After receiving grievant’s written and oral submissions in response to the discipline proposal, the Department mitigated the discipline to a five-day suspension in a letter, dated April 6, 2020, which listed nine specifications of inappropriate comments. Consistent with regulation,1 this letter was placed in grievant’s OPF where it will remain until May 2022.
[…]
Grievant does not challenge the presence of the discipline letter in his OPF. However, he argues that the FSSB is barred by its Procedural Precepts from relying solely on a discipline letter in order to low rank him; that it is required to do more than just allude to reviewing the last five years of his evaluations and must instead cite specific examples from those evaluations linked to his alleged inadequacies. He further contends that the FSSB cannot low rank based on a perceived lack of growth in specific skills, absent examples drawn from his evaluations.

Grievant dismisses the Department’s argument that he could have placed a rebuttal letter in his OPF in response to the discipline letter but failed to do so. The right to submit a rebuttal, he insists, is irrelevant to the procedural error committed by the FSSB.
[…]
This Board finds that the Procedural Precepts are clear regarding the standards for taking the serious decision to low rank an employee for good reason. Affirmations cannot replace the specific examples required by the Procedural Precepts. A void in substantiating failure to perform cannot be compensated with specific examples related to positive performance.
[…]
The Board finds that the FSSB misinterpreted the DA. Grievant arrived at post in May 2017, and the OIG investigators came in October 2017. Any adverse findings by the OIG relating to the embassy’s internal management could not logically be attributed to any failing by grievant in those few months.
[…]
The Board acknowledges the gravity of grievant’s conduct and the importance of considering the discipline letter as part of the FSSB process. However, as we recently decided in FSGB Case No. 2021-002 (June 25, 2021) at 21:

The FSSB precepts also sought to protect employees from being sanctioned twice for the same misconduct by prohibiting sole reliance on discipline letters when the FSSB is making decisions about low-ranking.

By relying exclusively on the discipline letter without any substantiating examples from grievant’s evaluations for the past five years, the FSSB has committed procedural error, and has sought to penalize grievant twice for his conduct.

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Burn Bag: 2017 S-III Selection Board – Who Volunteers … Who Volunteers as Tribute?

Via Burn Bag:

“Given the lack of action by either the DG, HR/PE or AFSA, it is evident all support cronyism and undue influence on the 2017 S-III Selection Board given that a single individual has been chosen by HR/PE to represent DS 50% of the time over the past 6 years. This, despite other qualified candidates volunteering time & again. This wreaks of favoritism, undue influence and undermines the credibility of the Foreign Service promotion process.”

via giphy

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Related item:

3 FAM 2326.1 Selection Boards
3 FAM 2326.1-1 Composition:
f. All selection board members must be approved by the Director General and must not serve on a selection board for two consecutive years.

 

 

GAO Examines Foreign Service Promotion Process — Strengthened But Documentation Gaps Remain

◉  By Domani Spero

 

Congress tasked the Government Accountability Office to look into the State Department’s Foreign Service promotion process.  The GAO conducted a performance audit from July 2012 to July 2013.  According to the July 2013 report, the audit addresses actions taken by State since March 2010 to help ensure the Foreign Service promotion process operates with fairness and integrity. The report examines (1) State’s process for ranking and promoting Foreign Service personnel, (2) procedural changes State has made to its Foreign Service promotion process in response to identified concerns, and (3) the extent to which updated procedures were consistently followed in 2011 and 2012 and whether any notable concerns about the promotion process remain.

Here is the audit’s conclusion:

State’s Foreign Service promotion process is conducted within the context of an up-or-out system and the practice of identifying a set percentage of staff each year for possible separation from the Service. Within an organizational culture that emphasizes performance and career advancement, safeguards to ensure the fairness and integrity of the promotion process are of particular importance. While we found that State had responded to previously identified concerns about its Foreign Service promotion process and taken a number of actions to strengthen internal controls over the process, documentation supporting the full implementation of these controls was sometimes missing. For example, we found that many selection board member oaths were missing from 2012 selection board reports and some boards did not include documentation of recusal requests. In the absence of a fully documented system of controls, there is a risk that intentional or unintentional failures to implement safeguards, by board members or HR staff, will go undetected and uncorrected. A failure to implement safeguards, in turn, increases the risk that promotion results could be intentionally or inadvertently compromised.

Screen Shot 2013-07

The GAO recommends the following:

To improve and better document State’s compliance with key safeguards governing the Foreign Service promotion process, we recommend that the Secretary of State instruct the Director General of the Foreign Service and Director of the Human Resources Office of Performance Evaluation to take steps to ensure that selection board, performance standards board, and reconstituted board reports are complete and fully document compliance with internal controls, including but not limited to signed oaths and recusal memos.

Some details

According to the GAO, the State Department prompted by concerns identified by the OIG and Foreign Service Grievance Board in 2010,  took a number of actions to strengthen procedures governing selection boards and reconstituted boards as follows:

  • New Board Member Oath
  • Revised Recusal Procedures
  • Updated Procedures for Reconstituted Boards
  • Renewed Emphasis on Certifying Board Results
  • Discontinued Annotation of Promotion Lists
  • More Nonspecialists to Serve on Specialists Boards
  • New Procedural Manual for HR Staff

Documentation Gaps

We found that selection boards, performance standards boards, and reconstituted boards complied with many updated procedures in the 2011 and 2012 Foreign Service promotion cycles; however, some selection boards and reconstituted boards had documentation gaps for certain internal controls.[…]  We found that some board reports, which constitute the master record of proceedings, had a number of documentation gaps. As shown in figure 2, there were several instances of missing oaths and incomplete documentation of recusals among the 41 selection boards we reviewed. For example, we found that 2012 selection board reports did not include 45 of 122 required signed oaths from members, or nearly 40 percent of the required total. Subsequent to our file review, State officials provided a portion of these missing oaths and other missing documents from ancillary records.

Discrepancies Explained

We also checked for discrepancies between boards’ rank-ordered promotion lists and official promotion announcements and found a total of 74 names recommended for promotion in 2011 and 2012 selection board reports that did not appear on corresponding promotion announcements. State officials explained that these individuals were not included on promotion lists due to requirements outlined in the FAM relating to the (1) permanent removal of names from promotion lists due to personnel actions such as retirement, and (2) temporary removal of names from promotion lists due to outcomes of the vetting process described earlier. State provided documentation to account for each removed name.

Three Specific Boards

  • Our online data collection tool revealed a limited number of procedural concerns relating to the operations of three specific boards. Our online tool was designed to provide board members with an opportunity to identify whether they observed any actions, behaviors, or concerns that could have compromised their board’s integrity and fairness. Our online tool was sent to 293 of 298 members who served on the 2011 and 2012 selection boards, 2011 and 2012 performance standards boards, and reconstituted boards since October 2011.23 We received 206 completed forms.24 From this total, two responses identified a total of four concerns with the operation of a board in 2011 or 2012. One response claimed that a board member had refused to follow precept instructions to consider candidate service in Afghanistan, Iraq, and Pakistan in a favorable light.25
  • The same response noted that the board did not follow proper recusal procedures in all cases. The second response claimed that an “HR official” had inappropriately instructed a board member. The same response noted that the board did not follow proper recusal procedures in all cases. We obtained permission from one respondent to provide the respondent’s two concerns to State’s HR staff and the OIG for further review and follow-up as appropriate.

Footnote on the report says that “According to State, since January 2011, no State employee has filed a procedural complaint relating to State’s Foreign Service promotion process through the Office of Special Counsel, and one State employee has filed such a complaint through the District Courts.” (That court case is presumably Joan Wadelton’s — See Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to Congress and  Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!)

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Related item:

State Department Has Strengthened Foreign Service Promotion Process Internal Controls, but Documentation Gaps Remain GAO-13-654