A blog mistake hounds an FSO: Despite a good reputation for work, “there was the blog thing.”

Posted: 3:43 am EDT
[twitter-follow screen_name=’Diplopundit’ ]

 

There are over 500 Foreign Service blogs by State Department employees and family members. Long-time readers of this blog may remember the tigers who bite bloggers (see Foreign Service Blogging: Tigers Have Teeth, Rather Sharp … Rawr!!!).

When I wrote that Rawr piece in 2011, I wrote this:

I have not seen or heard of Tigers actually yanking anybody’s clearance due to an offending blog. I am aware of private sessions of discouragements, issues with onward assignments, and of course, threats of various colors and stripes among directed at FS bloggers.  And as far as I know, they have not technically kicked out anyone who blogs either —  unless you call the “push” to retirement a payback kick.

Well, State did yank Peter Van Buren‘s clearance afterwards, but it was for more than just a blog.  Occasionally, I get a request to cite a case where identified individuals got into real trouble due to blogging in the Foreign Service. Except for a small number of cases (PVB, ADA and MLC), I’ve refrained from writing about the blog troubles out of concern that writing about them makes it worse for the individual bloggers. In many cases, the bloggers themselves quietly remove their blogs online without official prompting. Out of the abundance of caution.

A recent FSGB case decided in January 2015 shows a charge of “Poor Judgment” against an FSO based on a post in her personal blog written in October 2008.  That’s right. The blog post was online for barely a day and was taken down in 2008. To be clear, the poor judgment charge related to the blog is just half the charges filed against this employee.  But in January 2013, State proposed a five day suspension for the FSO. Excerpt from the FSGB record of proceeding available online:

The Improper Personal Conduct charges are based on grievant’s personal relationships in the summer of 2008 with two individuals to whom she had previously issued non-immigrant visas, and the Poor Judgment charge is based on a post in her personal Internet blog in October of 2008.
[…]
During a flight to the United States during the spring of 2008, grievant unexpectedly encountered another citizen of Country X (Citizen B) for whom she had issued a visa, fell into conversation with him, and exchanged contact information. Upon her return to Country X, grievant was hospitalized in June 2008. While in the hospital, she received a call from Citizen B, who said he would ask his family members to visit her. They did so. Soon after Citizen B returned to Country X, grievant invited him to lunch. Thereafter, the two conducted an intimate relationship for about three weeks.

Later, Citizen A contacted grievant requesting her assistance in issuing a visa to his new wife. Grievant told him she could not be involved in his wife’s visa application process because she knew him. Consequently, another Consular Officer adjudicated and issued the visa for Citizen A’s new wife. Shortly thereafter, grievant posted on her personal blog (using Citizen A’s initials) a comment saying, in effect, that sharing a bottle of wine with someone could be disastrous, especially when that person shows up at your workplace seeking a visa for his new bride. Within a day of this blog posting, grievant was warned by a colleague to take it down, and grievant did so.
[…]
In a letter issued on January 31, 2013, the Department of State proposed to suspend grievant for five workdays, based on three charges that arose from conduct occurring in 2008. Ultimately, the suspension was reduced to three workdays. Grievant’s appeal raised issues of timeliness as well as challenges to the substance of the charges. Grievant is a class FS- 04 Consular Officer who was serving abroad in 2008. In May 2009, a co-worker at her Embassy complained to the RSO that grievant had become too close to some visa applicants and their attorneys and was maintaining improper personal relationships with them. The Office of the RSO investigated the allegations and eventually referred the matter to the Consular Integrity Division (CID). In its report of October 2009, CID found no wrongdoing and returned the matter to post. Nonetheless, the RSO referred the complaint of the co-worker to DS for investigation, but did not do so until January 2011. DS, for no articulated reason, did not assign the case to a field agent until September 28, 2011. DS then did not complete its investigation and forward the matter to HR until late October or early November 2012.

The Board concluded that there was no fact-based excuse for the delay at the RSO level and that there was no evidence of necessity for the length of time engulfed in the DS investigation. The Board found that the grievant had been harmed by the overall delay, caused by two different bureaucracies in the Department. The Board identified the harm as the statistically diminished promotability of this particular officer, given her combination of time-in-service and time-in- class.

The FSGB explains in the footnotes that 1) “She [grievant] was unmarried and remained unmarried through at least the date of her suspension. We mention her marital status only because in other disciplinary cases, an officer’s married status has been deemed a risk for coercion if someone knowing of the sexual misconduct threatened to reveal it to the officer’s spouse. Here, however, it does not appear that the grievant’s marital status was relevant to the selection of penalty or the choice of the charges. Noting grievant’s marital status may obviate confusion, if anyone examining other grievances or appeals should consider this case for comparison purposes.” 2) “Because of sensitivity surrounding the country in which grievant served her first tour, both parties refer to it as “Country X…”

In its decision last January, the FSGB held (pdf) that “grievant had shown by a preponderance of the evidence that the Department’s delay of over three years in proposing grievant’s suspension was unexcused and unreasonable and that grievant’s promotional opportunities had been harmed as a result of the delay. Grievant is entitled to reversal of the three-day suspension for charges of Improper Personal Conduct and Poor Judgment, as well as removal of the suspension letter from her OPF. Grievant is entitled to promotion to the FS-03 level, as recommended by the 2013 Selection Boards, retroactive to 2013.”

While this case was resolved on the FSO’s favor, I’m taking note of this case here for several reasons:

1) According to the redacted report published online, the misconduct was reported to the agency by one of grievant’s co-workers on May 20, 2009.  An embassy is a fishbowl.  Anyone at post familiar with one’s activities, in real life or online can file an allegation. If you write a blog specific to your post, people at post inevitably will connect you to it. A single blogpost, even if taken down, can reach back and bite. Across many years.  State’s position is that grievant’s argument that the Department had no regulations or guidelines about personal blogs in 2008 “does not make her posting any less wrong.” Interestingly, that official line doesn’t seem to apply when it comes to the former secretary of state’s use of private email.

2)  Even if an allegation is dismissed by the Consular Integrity Division (CID), it does not mean the end of it, as this case clearly shows.  After the case was dismissed by CID, the case was forwarded to Diplomatic Security for another investigation.  “Counting from the date on which the behavior was reported (as specific misconduct) to the agency to the date of proposal of the five-day suspension, the period of delay in dispute is three (3) years and eight months.” While I can understand what might have prompted the initial complaint, I’m curious about the second referral.  I’d be interested to see comparable cases to this. I’m wondering if this case would have been referred to a second investigation if she were a male officer? Absolutely, yes, no? But why a duplicate investigation?

3) When grievant departed Country X for a new post,  her continued blogging activity prompted other Consular (CID) investigations.  Since there are no public records of these incidents until the cases end up in the FSGB, it is impossible to tell how many FS employees have been referred to CID or DS for their blogging activities. Or for that matter, what kind of topics got them in trouble.  I am aware of cases where FS bloggers had difficulties with onward assignment, but those were never officially tied to their blogging activities; that is, there were no paper trail pointing directly at their blogs.  This is the first case where we’re seeing on paper what happens:

Grievant states in the ROP that “while in [REDACTED] she did not receive any of the initial positions she bid on. Eventually, she was told that even though she had a good reputation for her work, “there was the blog thing.” Also, she recalls that a “handshake” offer of a Consular Chief position in [REDACTED] was rescinded. She attributes this to an unnamed official’s claim that “Embassy decided they did not want me after CID told them about my history (presumably the blog, and my time in Country X).”

4) Beyond the consequences of not getting onward assignments, here’s the larger impact:  “In 2015, the first year her file would be reviewed without any discipline letter, grievant would have been in the Foreign Service for nine years and in class FS-04 for seven years. In point of fact, these lengths of time in service and time in class fall far above the average promotion times for officers moving from grade FS-04 to FS-03.[…]  We conclude, under the totality of circumstances, that the untimely suspension prejudiced her chances for promotion to FS-03 in the years 2015-2018.”

5) Beyond the blog thing — the FSO in this grievance case was an untenured officer serving her first tour at a “sensitive” country the FSGB would only refer to as Country X. When the FSO argue that she was never counseled at post regarding these relationships (other half of charges is for Improper Personal Conduct), the State Department contends that “any lack of counseling “does not erase the perception of impropriety [grievant’s] actions could create if made public, nor does it serve as an implicit concession that [grievant’s] actions were somehow appropriate.”   \

Well, okay, but ….. 3 FAM 4100 is the rules for the road when it comes to  employee responsibility and conduct. Which part of the current A100 or leadership and management classes are these FAM sections incorporated?  While I can understand the  department’s contention above, it also does not absolve the agency from its responsibility to provide appropriate counsel and training, most especially for entry level officers. Or is this a gap in the training of new employees?  When a new, inexperienced officer is first posted overseas, who can he/she ask about delicate issues like this? Is there a Dear Abby newbies can write to or call for counsel at the State Department without the question trailing the employee down every corridor?

#

Advertisements

‘Foreign Service Problems’ Gets a Tumblr — 48 Pages of Hilariousness, Laugh or Else!

— Domani Spero
[twitter-follow screen_name=’Diplopundit’ ]


“The best way to treat obstacles is to use them as stepping-stones. Laugh at them, tread on them, and let them lead you to something better.” 

― Enid BlytonMr Galliano’s Circus

 

The Tumblr for Foreign Service Problems has been around for many months now. Sometime this past spring it also joined Twitter. Yes, it is hysterical and absolutely spot on. Below are some of our favorite entries to delight your day. Unless, the Foreign Service has also ruined your sense of humor, in which case, we pray you get it back — fast! or that could quickly be a future entry.  With permission from @FS_Problems:

Screen Shot 2014-12-21 at 3.41.44 PM

_______________

When someone mistakes you for being the Ambassador’s personal household help rather than a Foreign Service Officer or Specialist

— FS Problems (@FS_Problems) December 15, 2014

FSprob_butler

_______________

When you’re finally somewhere where you don’t have to soak your vegetables in bleach before eating them.

— FS Problems (@FS_Problems) July 13, 2014

FSprob_veges

_______________

When you hear someone complain that their free housing that has more bedrooms than they have family members and is in an expensive city, isn’t big enough.

— FS Problems (@FS_Problems) August 1, 2014

FSprobhousing

 

_______________

When someone asks GSO, who has no control over the furniture contract, why the Drexel Heritage furniture is so ugly…AGAIN.

— FS Problems (@FS_Problems) May 22, 2014 (Note: GSO for General Services Office)

FSprob-furniture

_______________

When someone is rude to an FS spouse at a reception because the spouse “isn’t important enough.”

— FS Problems (@FS_Problems) May 18, 2014

FSprob_spouse

_______________

What posts say about life at post and the job when they’re trying to lure bidders into accepting a handshake.

— FS Problems (@FS_Problems) October 27, 2014

FSprob_bidding

_______________

When the ELO you’re supervising complains about having to do a visa tour in a visa waiver country when you served at a visa mill before applications were electronic.

— FS Problems (@FS_Problems) December 14, 2014 (Note: ELO for entry level officer)

FSprob_elos

_______________

When you see incompetent people on the promotion list, while excellent people get passed over for promotion.

— FS Problems (@FS_Problems) October 2, 2014

FSprob_promotion

_______________

What you do when your boss is looking for someone to work the Shopdel coming to post over Christmas.

— FS Problems (@FS_Problems) December 5, 2014 (Note: Shopdel, a variation of a CODEL, that is, a congressional delegation mainly for shopping).

FSprob_shopdel

_______________

When someone at home assumes you can get away with anything since you have diplomatic immunity.

— FS Problems (@FS_Problems) November 8, 2014

FSprob_immunity

 _______________

When a family member back home insists that you must be a spy, because who ever heard of the Foreign Service anyway?

— FS Problems (@FS_Problems) August 20, 2014

FSprob_spy

 _______________

When you watch Madam Secretary and can’t stand the inaccuracies.

— FS Problems (@FS_Problems) November 3, 2014

FSprob_madam

_______________

When you think you might disagree with an official policy.

— FS Problems (@FS_Problems) September 22, 2014

FSprob_policy

_______________

Foreign Service truth that they don’t tell you in orientation.

— FS Problems (@FS_Problems) June 13, 2014

FSprob_truth

_______________

When things are going to hell in a handbasket at post but Washington refuses to acknowledge anything’s wrong.

— FS Problems (@FS_Problems) October 21, 2014

FSprob_nothingtosee

_______________

What post management says when you’re put in charge of the 4th of July party and given a piddly budget.

— FS Problems (@FS_Problems) October 9, 2014

FSprob_4july

_______________

When you know that you won’t be promoted before you TIS/TIC out and just don’t care any more.

— FS Problems (@FS_Problems) August 22, 2014 (Note: TIS for time-in- service, time in a combination of salary classes, computed from date of entry into the Foreign Service;  TIC for time-in-class, time in a single salary class).

FSprob_tis

_______________

And oh, look, we made it there, too…

That’s really sweet.  Thanks @FS_Problems! Stay sharp.

 * * *

 

 

 

 

BlogHer Voices of the Year: Two Foreign Service Bloggers Running in the Op-Ed Category

Two Foreign Service bloggers are currently in the running for the op-ed category in BlogHer’s Voices of the Year initiative.

One is Donna S. Gorman of Email From The Embassy for her piece from September 13, 2013 simple titled, Here in Jordan.  “I wrote this post after an attack on the U.S. Consulate in Benghazi left 4 Americans dead, including our Ambassador to Libya. I wanted to give a voice to those who died that night, so that Americans back home would understand the enormity of the sacrifice our diplomats – my friends, colleagues and loved ones – make on their behalf every day.” Excerpt below:

It was a scary, scary night, followed by many sad and scary days after the incident was over. It ended with blood spilled, and cars crashed, and magazines emptied. It ended with us being evacuated from post, not sure if we’d ever be allowed back. It ended with me finally truly understanding what kind of life we were living, when everything can change without a moment’s notice, when the people you love are out there, somewhere, doing things you can only imagine, to stop the bad guys from hurting the good guys. It ended with me realizing that my husband could have died, could still, at any time, die, because of the work he does, because he chooses to run into situations from which other people run away.

Continue reading, Here in Jordan. 

If you want to vote for Donna, click here: http://www.blogher.com/here-jordan-0 .

The other blogger is Jen Dinoia of  The Dinoia Family for her piece on May 16, 2012 titled, Wanted: Stories of the ‘Real’ Foreign Service. This is that blog post about her blog not being FS enough (remember nipplegate?): “I was asked to be on an official Department of State blog roll three years ago.  Last year, I was unceremoniously bumped off and learned it was because I discussed my experience with breast cancer (reconstruction, actually) in too much detail and it was not relevant to FS life.  The blog post is my rebuttal and opinion on why I feel it is extremely relevant.”  Excerpt below:

Sunday evening, when I noticed the blog missing, I wrote to the online specialist who had contacted me way back when.  The next day I heard from a new community specialist.  I was told in no uncertain terms that my blog does not have “content relevant to the U.S. Foreign Service”.  When I replied back with a description of the content that is more than related, I received a response from yet another new person.  The response from that person?

Hopefully, you can understand that some topics covered in your blog are very personal in nature, e.g. nipple cozies, and wouldn’t necessarily resonate with the majority of potential candidates who are interested in learning about the FS life overseas. Through our years of recruitment experience, we found that FS prospects want to learn more about the work that’s conducted, the people and cultures with whom they will interact, the travel experiences, and the individual stories our employees* have to share.  

Read her full post here.

If you want to vote for Jen, click here: http://www.blogher.com/wanted-stories-real-foreign-service

You must be logged in to vote for either one. You can also vote by signing in using FB, Twitter, Google, WordPress, Blogger and LiveJournal.

Good luck! ¡Buena suerte! Buona fortuna!

— DS

 

 

 

The Foreign Service is like your husband’s crazy college girlfriend … Va Va Voom — oh, but …

One of our favorite Foreign Service writers, Kelly of Well, That Was Different has her blog fingers right on the button on this.   When the Foreign Affairs Fudge Factory (by John Franklin Campbell) or The Theory of Public Bureaucracy (Politics, Personality, and Organization in the State Department)  (by Donald Warwick) ever gets updated for the 21st century, there definitely needs to be a section for the crazy old girlfriend’s schizophrenic outbursts and not too endearing qualities. Kelly writes:

The Foreign Service is like your husband’s (‘scuse the masculine, but that’s how it is for us) crazy college girlfriend. She is sexy as hell, which is how she seduced your husband in his young and foolish student days. But, she is also bipolar and totally narcissistic.

She can be really nice when she wants to be, or more accurately, when it’s in her interest to do so. Every couple of years, she comes knocking at the door, all charming and cute, with slick promises of promotion, money, and other goodies, and chances are, your husband will be suckered once again.

She even has long periods of sanity sometimes—at least I think I remember one of those. (It lasted about 8 years.)

The manic phases are interesting. Sometimes, she even gets a wild hair and builds a huge mansion in, like, the worst neighborhood on the planet, then expects everyone to be totally excited to work and live there.

But look out when she is on a downswing. You are just cannon fodder then, and she’ll be seriously pissed if you don’t toe the line. She gets especially cranky when she’s running out of money, or someone is giving her a hard time. She doesn’t take criticism very well. In fact, her general approach is to deny that there is a problem. Being basically insane, she may actually believe this to be true.

 

Tee-he! Can’t help but appreciate the sustained simile.  Continue reading In Which I Am Shocked To Discover That I No Longer Absolutely Loathe Foreign Service Bidding.

 

 

 

State Dept v. Peter Van Buren: ACLU Gets Into the Ring Over First Amendment Right

If you have been reading this blog for a while, you know that I’ve been following Peter Van Buren’s case for some time.  While I do not always agree with everything that Mr. Van Buren says and writes, I am offended by his selective treatment by the State Department that can only be described as retaliatory.

Mr. Van Buren, of course, is not the only recipient of such selective treatment in the State Department.  He’s just the loudest and the most vocal Exhibit A under the 21st Century Statecraft tab.  Other FSOs and family members have been similarly penalized for running afoul of  the department’s movable blogging and social media rules. One I know for sure, have been pushed into retirement, others suffer consequences in future assignments. Even non-blogging FSOs were threatened for the blogging activities of their spouses. For sure, very few threats come in written form but in a culture where corridor reputation is key to every assignment, no written memo is needed to screw up a future assignment in the Foreign Service.

On May 15, the American Civil Liberties Union (ACLU) got into the ring in Mr. Van Buren’s public fight with the State Department.  ACLU, the 92 year old institution told the State Department, the first agency created under our Constitution that “public employees don’t give up their First Amendment rights in exchange for a job with the government.”

The ACLU writes in its blog:

[T]he State Department has proposed firing Mr. Van Buren under the guise of a procedural rule, creating the strong appearance of unlawful retaliation. Government employees have the First Amendment right to speak as private citizens on matters of public concern. There’s no question that the subject of Mr. Van Buren’s book, blog posts, and news articles — the reconstruction effort in Iraq — is such a matter. And, government employees are often in the best position to know what ails the agencies that they work for.
[…]
The State Department is attempting to justify the firing by claiming that Mr. Van Buren failed to comply with the agency’s prepublication review policy. The State Department’s policy requires all employees to submit everything they write for prepublication review, regardless of whether they are writing in their official or personal capacity. This policy, especially as applied to blog posts and articles, raises serious constitutional questions. By forcing employees to submit all their writings for prepublication review — even articles and blog posts written on their own time — the State Department is effectively shutting its employees out of any meaningful participation in critical public debates. There is no justification for such an expansive prior restraint.

Continue reading, The First Amendment Applies to Foreign Service Officers, Too.

But writing a blog post is not enough.  The ACLU also wrote a letter to Patrick F. Kennedy, the Under Secretary for Management with courtesy copies to Linda Thomas-Greenfield, the Director General of the Foreign Service and Director of Human Resources; Jesselyn Radack & Kathleen McClellan, Government Accountability Project (who represents Mr. Van Buren in his Office of Special Counsel case) and Raeka Safai of the American Foreign Service Association.

Below is an excerpt from ACLU’s letter to Mr. Kennedy:

This proposed termination for Mr. Van Buren’s speech raises substantial constitutional questions and creates the appearance of impermissible retaliation for Mr. Van Buren’s criticism of the State Department. The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the government’s interest, as employer, in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

The government bears an even greater burden of justification when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”). By those standards, the State Department’s actions here appear to be unconstitutional.
[…]
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). In his book, blog posts, and articles, it is clear that Mr. Van Buren is speaking in his own voice and not on behalf of the State Department. Writing blog posts and articles from home, on his own time and on his personal computer, is a paradigmatic example of speech that public employees may legitimately engage in as private citizens. Pickering, 391 U.S. 563 (unconstitutional to discipline teacher for writing letter to the editor); Garcetti, 547 U.S. at 423 (citing op-eds as private citizen speech).

On prospective restrictions for all present and future diplomats, the ACLU writes:

[T]he State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTEU, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identified harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of  demonstrating that its policy is constitutional.

There is no justification for such an expansive prior restraint on State Department  speech. The State Department’s policy affects all employees and is broadly written to include all “matters of official concern.” This encompasses a vast amount of speech – including Mr. Van Buren’s and that of numerous other State Department bloggers – that would in no way harm the “actual operation of the government.” The overbreadth of the State Department’s policy is abundantly clear when compared with the practice of the Department of Defense. Hundreds of active-duty soldiers, many with access to classified and sensitive information, post articles and maintain personal blogs without pre-clearance and without posing any harm to military operations.

Further, the State Department’s pre-publication requirement covers even more speech than necessary to serve the government’s stated interests –to protect classified information and to prevent views of employees from being improperly attributed to the government. 3 FAM 4172.1-1. As such, the policy is not carefully drawn to ensure that it does not unnecessary chill a vast amount of protected speech, nor is it tailored to address the identified harm. See Harman v. City of New York, 140 F.3d 111, 123 (2d Cir. 1998).

You can read the entire letter from the ACLU to Mr. Kennedy here.

The ACLU makes a very compelling argument and I think for the first time, the constitutionality of that broad umbrella of all “matters of official concern” take center stage. It’s a good thing to shine a light on that dark folder. Let’s see what happens.

On a related note, the American Foreign Service Association (AFSA) in February released its guidance for personal use of social media.   The union represented Mr. Van Buren in his grievance case within the State Department but has been largely silent in this very public fight.  Mr. Van Buren has now asked  AFSA if the union is willing to press State into a rational set of regulations on social media:

“We all know that many FSOs and their spouses/partners have been unofficially penalized for blogging, and pushed into going off line. At the same time, we also know there are many, many blogs out there by FSOs and others and that the number grows. Anyone think social media is going to be less a part of life in the next ten years?

I have taken an extreme position on these issues, and know that you have not always (or often?) agreed with what I wrote. That is in fact how it should be, because the issue at hand should not be about the content per se, but the right to write it.

I fully agree that State needs rules about social media; they currently really have none that are realistic and implementable and in fact are considered unconstitutional by America’s leading First Amendment group.

Would AFSA now be willing to make a public statement along these lines and use my case to press State into a rational set of regulations on social media?

So — I’m sitting here, after midnight, pondering — is AFSA up for this challenge? Guess, we’ll have to wait and see …

Domani Spero