Burn Bag: A confidentiality agreement so others don’t find out how f’d up is the system?

Via Burn Bag:

“How is it that — as promotion panels go back for at least the last several EERs normally and in that period someone gets several awards, and gets specifically recommended for promotion every year by their rater and reviewer — they can be low ranked?? And then the injured party grieves and wins immediately but is required to sign a confidentiality agreement so others don’t find out how f’d up the system is … and how often this sort of thing occurs by promotion panels composed of member(s) who should recuse themselves when reviewing the files of someone they don’t like.”

via reactiongifs.com

via reactiongifs.com

 

*EER – Employee Evaluation Report
*MHAs – Meritorious Honor Award
*IRM -Information Resource Management

 

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

Posted: 3:43 am EDT
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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?

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Foreign Service Grievance Board Website No Longer Missing!

— Domani Spero
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So we cancelled the milk cartoon announcement.  On May 1st, we had this up: Foreign Service Grievance Board Website Missing — Look 👀 It’s Now on a Milk Carton!  We don’t know when it came back but the FSGB website is now back online at https://www.fsgb.gov/default.aspx.  Yes, you may do the rain dance.

 

FSGBmissing_cancelled

 

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Snapshot: Foreign Service Grievance Board Statistics — 2012

— Domani Spero

We last posted about this in Foreign Service Grievance Board: Out With The Old, In With The New — Website.  Below are the numbers for calendar year 2012. FSGB did not make this available until about September this year.

Screen Shot 2013-09-28

In 2011, the average time for consideration of a grievance case was 41 weeks, so the Board had been able to shaved off 8 weeks from the process in 2012.

Below is the FSGB’s summary of its cases, extracted from the 2012 annual report posted at fsgb.gov:

EERs/IERs/OPFs 

The Board decided 16 cases in which the grievants contested some aspect of material in their Official Performance Files (OPF), which provide the basis for promotions and other career decisions. The cases included a variety of claims: late and missing awards; falsely prejudicial material; lack of prior counseling on perceived performance deficiencies; and procedural errors. The Board affirmed the agency’s decision in eight of the cases; reversed the agency in five cases; and partially affirmed/partially reversed in one case. One case was dismissed for lack of jurisdiction, and two were settled.

In one case, the Board rever reversed a decision by the agency that the grievant had not met the standards of her class. The Board found that the agency had violated several of its own regulations by not providing grievant written notice of performance deficiencies or adequate counseling. It also found that the record did not support the conclusion that the grievant had not met the standards of her class. The Board made the relatively unusual recommendation in this case that the agency grant the grievant a retroactive administrative promotion.

In another case, the Board found that the many procedural errors incurred in processing the grievant’s OPF for tenure review cast serious doubt on whether the grievant had received a fair review in a year in which he was denied tenure. As a remedy, it directed that the grievant’s OPF be placed before reconstituted tenure and selection boards.

Financial Cases 

The Board resolved 20 cases involving financial disputes this year, as compared to eight cases the previous year. It affirmed the agency decision in 13 of those cases, and partially affirmed and partially reversed in three cases. Three cases were settled and one was dismissed for lack of jurisdiction.

The three cases in which the agency was partially reversed involved reimbursement for the cost of vaccinations; credit for prior work experience in setting initial salary; and reimbursement for the shipment of HHE effects to grievant’s separation address upon his retirement. Six of the cases in which the agency decision was affirmed also involved challenges to the grievant’s starting salary.

One of the more complex financial cases involved the shipment of wood flooring, doors, and door frames by grievants in their household effects. The agency characterized the items as construction materials rather than household effects, and charged grievants for their shipment. The Board upheld the agency’s finding that the items could not properly be considered HHE. (In a separate action, USDA found the wood to be an endangered species that could not be imported legally unless it was part of HHE, and the items were eventually confiscated and destroyed.)

Disciplinary Cases 

The Board decided 12 disciplinary cases this year involving a range of issues: inappropriate behavior toward women; extramarital relationships; lack of candor; drinking while armed; failure to report contacts; unauthorized travel; violation of the agency’s Cyber Security Policy; violation of an embassy vehicle use policy; drunk and disorderly conduct; and misuse of USG equipment. The Board affirmed the agency decision in four cases; partially affirmed and partially reversed in two cases; and reversed in one case. Five of the cases were settled.

Separation Cases 

The Board addressed 12 cases involving the potential separation of the employee. Four of the cases involved separation for cause for misconduct. The other eight involved recommendations for separation by the Performance Standards Board for failure to meet the standards of the class; failure to become tenured; failure to meet an agency’s language requirements; and suspension of the employee’s security clearance. Eleven of these cases were settled and/or withdrawn. In the remaining case, the Board affirmed the agency’s decision to separate the employee for cause. No hearing was held, however, because the employee was living outside the country and failed to respond to repeated attempts by the Board and the agency to schedule a hearing.

Assignment 

Three grievants claimed that assignment actions violated agency regulations and policies. One grievant challenged the agency’s decision to direct a third assignment when his second assignment as a junior officer was curtailed for medical reasons. A second grievant objected to the agency breaking a linked assignment to a follow-on post when he curtailed from Afghanistan under conditions that were considered both medical and voluntary. The Board affirmed the agency decision in both cases. The Board dismissed the third grievance, in which the grievant claimed that the agency had violated merit system principles by not giving him an at-grade assignment, for lack of jurisdiction.

Other 

Five cases fell outside the above categories. These cases involved claims regarding non-selection for a position as an Eligible Family Member; an improperly delayed investigation by Diplomatic Security that resulted in a disrupted career and legal fees; statements made in a Report of Investigation that allegedly discriminated against grievant on the basis of disability and mental illness; improper calculation of grievant’s Time in Service date; and the agency’s improper failure to extend grievant’s retirement travel date. Three of the cases were dismissed for lack of jurisdiction and/or timeliness. One was settled. The Board affirmed the agency decision in the final case.

We will post separately the judicial actions on the 2012 FSGB cases.

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