Judicial Actions Involving Foreign Service Grievance Board (FSGB) Rulings in 2015

Posted: 12:15 am ET
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Below are three appeals of FSGB decisions that were filed in the District Court for the District of Columbia in 2015 and a few other cases currently pending in court. All extracted from the 2015 FSGB Annual Report:

  • In May, Paul Fritch appealed the Board’s decision in FSGB Case No. 2013-005. The circumstances of that case, as with two other appeals filed by Mr. Fritch with the Board, revolved around his transfer to the Organization for Security and Cooperation in Europe (OSCE) for seven years, and reemployment by the Department of State. Mr. Fritch’s district court appeal claims that the Department, affirmed by the Board decision, denied him benefits upon his return to which he was entitled by law, including promotion opportunities, housing expenses, lost contributions to his Thrift Savings Plan account, and position seniority. A decision is pending. (Also see  How many people should be put through a wringer before, oh you know …. and  Secondments to international organizations and promotions? Here comes the boo!).
  • In November, SharLyn Foo appealed the Board’s decision in FSGB Case No.2014-018, described above under financial cases resolved last year. The Board affirmed the Department’s denial of a waiver of repayment of annuity payments in excess of $300,000 deposited into Foo’s deceased mother’s account over more than a decade. A decision is pending.
  • Also in November, La Rufus Mitchell filed an appeal of the Board’s decision in FSGB Case No. 2014-003. Ms. Mitchell claims that the Department violated the Americans with Disabilities Act and the Rehabilitation Act when it separated her for not having passed the timed running test required for Diplomatic Security Agents. The Board had upheld the Department’s decision. (See the case description under Separation cases, above, for greater detail.) A decision is pending.
  • Appeal to the Foreign Service Labor Relations Board (FSRLB) | In October, the Department of State filed an appeal to the FSRLB of the Board’s decision in the implementation dispute filed by AFSA in FSGB Case No. 2014-028. The FSGB found that the Department had violated negotiated Procedural Precepts when it failed to pay Meritorious Service Increases (MSIs) to members of the Foreign Service in 2013. The Department has alleged that the Board relied on erroneous facts and factual premises not in evidence, and disregarded the express terms of the collective bargaining agreement when it based its decision on past practice. (See Implementation Disputes, above, for greater detail.) Also see Burn Bag: @StateDept announces its disappointment … 👀 OMG! It’s nice to feel valued!

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State/OIG Reviews Former FSO’s Allegation of Improper Denial of Promotion

Posted: 3:48  am EDT
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On July 31st, State/OIG posted online its review on an FSO’s allegation of improper denial of promotion:

The Office of Inspector General (OIG) conducted this review to assess a former Department of State (Department) employee’s (complainant) allegations of an improper denial of promotion. Specifically, in September 2013, the complainant alleged that (1) the Department’s Bureau of Human Resources (HR) fraudulently tampered with or manipulated six reconstituted promotion boards conducted in 2010 and 2011 and (2) HR fraudulently altered documents generated by these six boards to prevent the complainant from being ranked for promotion. OIG interviewed former board members and consulted with a forensics expert, and found that the evidence does not support the complainant’s allegations.

According to the footnote in this report, on August 18, 2011, the FSGB issued its final decision, concluding that the Department fulfilled its responsibility of proving that the complainant would not have been promoted during the years at issue even if the alleged procedural errors had not occurred. The complainant appealed to the Federal District Court and challenged both the FSGB interim decision (which resulted from its order to conduct the six final boards), and the FSGB final decision. The complainant filed a Federal appeal in U.S. District Court on January 7, 2011, which has now been temporarily suspended at the complainant’s request.

This case does not include the name of the foreign service officer but we think this is the Joan Wadelton’s case that has been through the Foreign Service Grievance Board and is the subject of a litigation in the U.S. District Court of the District of Columbia.

Reading through this report, we are struck by OIG being “unable to review any notes or score sheets generated by the 2006 boards because Department policy required treating them as working files; as such, they were destroyed once the rankings were finalized.” Although it appears State/OIG reviewed other scoresheets and consulted with a DHS expert to conduct forensic analysis. The report says that the review could not substantiate the complainant’s allegation that HR fraudulently altered documents associated with her 2010 to 2011 reconstituted promotion boards.

We don’t understand this policy of destroying working files, particularly on cases such as promotions. What’s the rationale for doing so? Anyone want to school me on this?

Read it here: ESP-15-06_Improper Denial of Promotion Allegation.

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Related posts:

Foreign Service Grievance Board Annual Report 2014 — Noteworthy Cases

Posted: 1:30  am EDT
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The Foreign Service Grievance Board recently released its 2014 annual report:

A primary goal of the Board continuing during this past year (and in prior years) has been to improve its timeliness in terms of issuing its orders and decisions. The Board is acutely aware of the short timeframes that impact the careers of Foreign Service employees, and especially the schedules of various agency-appointed boards that grant tenure, decide on promotions, rank (and “low rank”) employees, and make other career-defining personnel decisions. While the Board does not fully control the entire grievance appeal process, e.g., the period during which the parties engage in sometimes lengthy discovery or file time- consuming motions, it has put in place procedures to expedite where possible those actions it does control.
[…]
The three-member panels selected to decide grievance appeals continued to work effectively during the year, producing several orders and decisions with significant issues of first impression or complexity. Social media has had an impact on some of the Board’s grievance appeals, and is likely to expand as a growing presence in both professional and personal interactions among Foreign Service employees. The increased exposure of what may have been considered private communications in the past has produced challenging questions regarding standards for personal and professional conduct of Foreign Service personnel, including the issue of what is a reasonable expectation of privacy; similarly, rapid changes in technology, in particular the growth of digitally based communications and cyber tools such as cloud computing, have altered methods of information storage, access and security that undoubtedly affect Foreign Service operations. These developments, along with rapidly evolving social and demographic changes, both within the Foreign Service and the society at large, are likely to influence to some degree future grievance disputes. A major challenge for the Board is to maintain its level of institutional and technological awareness to keep pace with the dynamic environment in which future dispute resolution will be necessary.

See the stats here:  Snapshot: Foreign Service Grievance Board Annual Report 2014 – Statistics

According to the 2014  report, the largest number of grievance appeals by office were those filed by employees of the Department’s Bureau of Diplomatic Security (31% of the total). The Board is now seeing cases on disability, Post Traumatic Stress Disorder (PTSD), or other medical condition that affected the employee performance or conduct that resulted in a separation recommendation.  The average time for disposition of a case, from time of filing to Board decision, withdrawal, or dismissal, was 45 weeks. This is two weeks longer than the average time of disposition in 2013. The Board currently has 19 members, with 12 retired foreign affairs members and 7 legal professionals.

Below is an excerpt from the report:

Fifty-three new cases were filed with the Board in 2014, comparable to the number filed the previous year (54). Over the past six years, the number of new cases has ranged from a high of 74 to a low of 43. Of the 2014 cases, 47 cases were filed by employees of the Department of State (or survivors of State Department employees); five by employees of USAID; and one by AFSA. No cases were filed by employees of the other agencies under the Board’s jurisdiction.
[…]
Timeliness of disciplinary actions, as governed by agency regulations, also continued as an issue of concern to employees. In three new cases filed, the employees alleged that delays ranging from 14 to 36 months violated Department regulations and disadvantaged them. Two cases involving timeliness were decided by the Board this year. In the first case, the Board found that a three-year delay was prejudicial to the employee and dismissed the charges. In the second, a two-year delay was deemed not to be prejudicial, but the charges were dismissed as not proven.

Eight of the new cases filed involved a claim that a disability, Post Traumatic Stress Disorder (PTSD), or other medical condition affected the employee performance or conduct that resulted in a separation recommendation. Four involved allegations of alcohol abuse. The largest number of grievance appeals by office were those filed by employees of the Department’s Bureau of Diplomatic Security (31% of the total).

A number of individually noteworthy cases were filed in 2014:

    • A USAID case involved the starting salary of a new hire, whose documentation of his previous salary while self-employed was alleged to be fraudulent. The grievant was one of several USAID new hires who were issued bills of collection for overpayment of salary following an agency audit of the starting salaries of new hires. Regulations for establishing starting salaries primarily took into account standard salary histories, and did not address factors stemming from self-employment or lower salaries/stipends earned while an applicant was earning an advanced degree.
  • The daughter of a State Department employee contested a bill of collection issued by the Department for $311,000 in overpayment of a survivor annuity and denial of a waiver for the overpayment. The grievant was unaware that she needed to notify the Department upon the death of her mother. Survivor annuity payments were deposited into a joint account for several years before the error was discovered.
  • AFSA filed an implementation dispute challenging the Department’s decision to deny payment of Meritorious Service Increases (MSIs) to outstanding employees identified by the selection boards in 2013. AFSA maintained that its agreement to defer such payments during sequestration of the budget in 2013 did not extend to a discretionary decision by the Department to withhold such payments permanently after the funds were available.
  • A former president of AFSA contested the propriety of an email sent out by senior Department staff criticizing her for an op-ed piece she had co- authored with two former ambassadors. The op-ed piece, published in the Washington Post, expressed the authors’ perception that State was inappropriately placing an increasing number of civil service and political appointees in the highest leadership positions. The grievant also challenged the failure of one of the authors of the email to recuse herself from service on the grievant’s promotion board that year.
  • A retired Foreign Service Officer filed a grievance alleging that remedies granted to him pursuant to the first grievance ever filed, in 1972, under authorities preceding the establishment of the Foreign Service Grievance Board, had never been implemented. He is seeking monetary relief.
  • A grievant who in 1998 claimed bias on the basis of sexual orientation and a procedural error, and who appealed the FSGB decisions to both the district court and court of appeals, filed a new grievance claiming that Time-In-Class (TIC) and Time-in-Service (TIS) extensions awarded in that case had never been properly implemented, resulting in his impending separation for expiration of his TIS.

Discipline

The Board resolved 12 appeals from discipline imposed by the Department of State. There were no appeals from disciplinary decisions of other agencies. In discipline cases, the agency has the burden to prove that the charge is factually correct; has a nexus to employment; and that the penalty is appropriate. The appeals covered a range of issues: alcohol and/or weapons-related incidents (five cases); filing false claims for reimbursement; false statements given to explain an absence from work; failure to maintain control of a diplomatic pouch; interfering with an investigation; the appearance of prostitution (two cases); and a security violation. In eight of the cases the charged employee alleged that the penalty was too harsh. In five of the discipline cases the Board affirmed the Department’s decision; in two it found in favor of the charged employee; in one it partially affirmed and partially reversed; and four cases were settled before reaching a decision on the merits. Nine of the cases involved employees of the Office of Diplomatic Security.

In one discipline case and a handful of others, the employees claimed that the incidents were related to the stress of service at hardship posts. As more employees are assigned to posts in countries where violence is endemic, the Board will be sensitive to similar conditions in appeals arising from this issue.

EER/OPF/IER

Eighteen appeals involving inaccuracies, omissions, prejudicial statements, or prejudicial errors in employees’ Official Performance Files that could affect their promotion and/or tenuring competitiveness were decided by the Board. The Board affirmed the agency decision in ten of the cases; reversed in two; and partially affirmed, partially reversed in three cases. Two appeals were settled, and one was withdrawn.

Two of the appeals contested IERs issued by the Office of the Inspector General, one involving an ambassador and the second a public affairs officer. In the first, the Board found that the right to counseling applied equally to ambassadors as to other employees. Although the bar may be higher in what an ambassador is expected to know, the Board found that in this particular case the ambassador had no reason to know of the deficiencies identified in the IER, and, therefore, lack of counseling by her supervisors prior to inclusion of the criticisms in the IER and her OPF was not harmless error. The Board also found that several comments in the IER about another, identifiable employee should not have been included in the ambassador’s OPF. The Board ordered that the IER be removed from the ambassador’s OPF. The second case was settled and withdrawn prior to a decision on the merits.

See The Buck Stops Where? Ambassador Files Grievance Over an OIG Evaluation Report

Assignment

In general, the Board does not have jurisdiction over assignment actions. However, the Board may hear appeals in which the employee alleges a procedural violation of the assignment process. Two such cases were resolved last year. The first case stemmed from the 2012 violence in Benghazi. The employee alleged that he was removed from his position based on ill-founded conclusions by the Benghazi Accountability Review Board, and that he had been made a scapegoat as part of a politically motivated damage control effort. Prior to the conclusion of the appeal process, the grievant retired from the Department. The Board found that most of the remedies he had requested were no longer viable post-retirement, and it therefore drew no conclusions based on the merits. In the second case, the Board also found that the requested remedy, a change in eligibility requirements for long- term training, was outside its authority and dismissed the case for lack of jurisdiction.

See The Cautionary Tale of Raymond Maxwell: When the Bureaucracy Bites, Who Gets The Blame?

Financial

Eight appeals involving financial claims were resolved by the Board last year, each presenting different, complex issues:

  • In an appeal challenging denial of a medical evacuation allowance, the Department followed a long-established Standard Operating Procedure in denying medical evacuation for a high-risk pregnancy prior to the 24th week of gestation. The employee was directed to seek instead the lower separate maintenance allowance, even though all medical personnel agreed that grievant’s spouse needed to return to the U.S. in the 10th week of pregnancy.  The Board found that the Department’s practice was inconsistent with its own regulations and directed the Department to recalculate grievant’s per diem based on the medical evacuation rate.See High Risk Pregnancy Overseas: State/MED’s SOP Took Precedence Over the FAM? No Shit, Sherlock!
  • Six Security Engineering Officers (SEOs) challenged the Department’s decision to limit hiring of their class to an FP-06 pay level, while hiring preceding classes with similar qualifications up to the FP-04 level. In addition to charging a violation of merit principles, the grievants claimed that there were no jobs available at the lower level, so they were unjustly required to work at a higher pay grade than they were being paid. The case was resolved with respect to four grievants when they withdrew their appeals. The appeal of the other two is pending.
  • A career Civil Service employee was given a Limited Non-career Appointment in the Foreign Service, then granted a conversion to career Foreign Service. While in the U.S. working to satisfy the language requirement for a pending overseas FS assignment, grievant’s position was first designated FP-02, then retroactively downgraded to GS-12. The Department required her to reimburse the overpayment in salary resulting from the initial designation. The Board found that, while the Department’s regulations regarding conversions are unclear, in this case the downgrade without notice was an improper application of the relevant laws and regulation, and the employee was entitled to recover the funds repaid to the Department.
  • The Department denied a cash award to an employee for a suggestion he had made and that it had implemented. The primary basis for denial was that grievant had received a cash award for a similar reason, and thus was not permitted a second cash award for the suggestion. Grievant also claimed that the official who denied the award was the deciding official in a disciplinary action pending against him, and thus should have recused himself. The Board found that the two awards were for different purposes and thus not prohibited by the regulation, and agreed that the deciding official should have recused himself from the award decision. It remanded the case to the Department to reconsider its original decision.
  • A Diplomatic Security agent was required to surrender his law enforcement credentials and was denied law enforcement availability pay (LEAP) when the Secret Service investigated him regarding a collectible coin that he had purchased and sold, which turned out to be counterfeit. The investigation remained pending for a number of years, with no charges brought against the agent. During that time, his LEAP pay remained in abeyance. The Board found that although the Department did not have regulations addressing these circumstances, it had implemented a clear and consistent policy and did not act arbitrarily in denying grievant LEAP pay.
  • A retired criminal investigator with the USAID Inspector General’s Office alleged that the State Department miscalculated his retirement annuity by applying a pay cap imposed by the USAID IG through a 2006 memorandum. The Board found that the Department’s reliance on the memorandum was proper, and denied grievant’s claim to a higher annuity. The grievant has appealed this decision to the D.C. district court.

Judicial Actions Involving Board Rulings

One new case was filed in the District Court for the District of Columbia last year. Gregory Picur, retired from USAID’s Office of Inspector General, appealed the Board’s decision to uphold the Department’s calculation of his retirement annuity. A decision is pending.

Three other cases are pending decisions in federal court:

    • The five plaintiffs in Richard Lubow, et al. v. United States Department of State, et al. (923 F. Supp. 2d 28 (D.D.C. 2013)), retired and active duty Diplomatic Security agents who served in Iraq in 2004, appealed a district court decision granting summary judgment to the Department. The plaintiffs had grieved the Department’s application of a cap on their premium pay during their time in Iraq and its decision not to grant them a waiver of repayment of the amounts they had been paid in excess of that cap. The Board had affirmed the Department’s decision applying the cap and denying the waiver.
      (note: a ruling was issued on this case this past week, we will post separately)
    • In November 2012, Jeremy Yamin petitioned the D.C. district court to review a FSGB order denying in part his request for attorney fees incurred in a grievance appeal.
  • In January 2011, Joan Wadelton appealed a Board decision ordering six new reconstituted selection boards be convened as the remedy for three prior grievances. Ms. Wadelton’s appeal contests the Board’s decision to order a new round of reconstituted boards, rather than direct a promotion, as she had requested. Ms. Wadelton is separately engaged in litigation against the Department concerning compliance with three related FOIA requests she filed seeking certain Department records about her. The Department has completed its production of documents pursuant to those requests and is currently engaged in briefing related to motions for summary judgment. (see  Former FSO Joan Wadelton With Truthout Goes to Court Over FOIA Case)

One of the “other” cases adjudicated by the Board.

[T]he employee had been assigned to a senior job in an international organization for five years by virtue of separation/transfer with reemployment rights. Under that particular arrangement, his OPF was not reviewed for promotion for those years, and he was reemployed by State at the same grade as when he had left. Grievant contested the legality of that policy. The Board found that, although there was confusion within State about the ramifications of different transfer/secondment actions and grievant had not always been given consistent information, the precepts were clear and no remedy was warranted. Grievant has two related cases pending. (see Secondments to international organizations and promotions? Here comes the boo!).

The full report is available here.

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Former FSO Joan Wadelton With Truthout Goes to Court Over FOIA Case

Posted: 1:0808 am EDT
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We didn’t know this but former FSO Joan Wadelton was joined by non-profit organization, Truthout in her FOIA lawsuit (pdf) against the State Department. Her formal complaint includes the following:

Over the past decade, Wadelton has collected evidence demonstrating that the type of treatment she received from HR was not unique to her, but instead was the product of a systematic manipulation of the selection board promotion process by a circle of current and former high-level HR managers to advantage themselves and their allies and to disadvantage those they did not favor.

See more here.

Since this is a FOIA case, the Clinton emails made their first walk-in part. We expect that these emails will be cited in many more cases in the court system before too long.

Via Politico:

The saga stemming from revelations about Hillary Clinton’s use of a private email account as secretary of state made its way into a federal courtroom in Washington Wednesday afternoon in an ex-foreign service officer’s lawsuit for records related to her dismissal.

The discussion of the State Department’s email issues—including a disclosure last week that the agency did not automatically archive the email of many top officials until February of this year—came at a hearing on a Freedom of Information Act suit filed by former State employee Joan Wadelton.
[…]

“The State Department has proposed filing a motion for summary judgment in August 2015, stating it requires nearly six months to compile a Vaughn index for approximately 450 documents. The Court is not convinced, without a further and clearer showing of necessity, that six months is needed to complete this task,” wrote Chutkan, an Obama appointee. She ordered the government to offer a written explanation by March 30 of why that many months are needed.

Wadelton’s complaints about favoritism and irregular employment practices at State have been covered by various diplomacy-related blogs and news outlets, including here at the Atlantic.

The Vaughn Index is an itemized index, correlating each withholding with a specific FOIA exemption and a justification for that justification. This document is prepared by the agency, in this case, the State Department, to justify any FOIA withholdings made.

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Related posts:

Joan Wadelton: Time To Fix The State Department (via WhirledView)

Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to Congress (diplopundit.net)

Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time! (diplopundit.net)

GAO Examines Foreign Service Promotion Process — Strengthened But Documentation Gaps Remain) (diplopundit.net)

U.S. District Court for the Court of the District of Columbia | Wadelton v. State Department, 4/25/13 (pdf)

Wadelton Case | The FOIA Project

WADELTON et al v. DEPARTMENT OF STATE | Complaint 4/1/2013 (pdf)

 

Joan Wadelton: Time To Fix The State Department (via WhirledView)

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— Domani Spero

We have previously posted about the case of FSO Joan Wadelton. (See Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to CongressGAO Examines Foreign Service Promotion Process — Strengthened But Documentation Gaps Remain). She is now on her tenth year of a legal dispute with the Department of State’s Bureau of Human Resources (HR). She recently guest posted at WhirledView and put her views on the record  “about how to correct the systemic failings that I have encountered over the last 10 years in the Bureau of Human Resources, the Office of Inspector General (OIG) and the Office of the Legal Advisor.” Quick excerpt below:

The pervasive lack of oversight has led to near total impunity for those guilty of incompetence, cronyism and corruption within State.  A small group of career officials has taken advantage of this to gain control of the bureaucracy’s administrative functions.  Their pernicious influence has persisted for years.

The longevity of the group has been made possible by its control of the personnel system.  Senior managers at State stay in place for years – and when they do retire, they are rehired in a lucrative pay status, allowing them to remain in senior positions for more years.   Thus, the same people turn up repeatedly in ambassadorships and assistant secretary and deputy assistant secretary jobs.

Not only does this discourage fresh thinking, it has bottled up the personnel system at the top.  With the jobs at the higher ranks endlessly filled by the same people, the cohort five or 10 years behind them in the career service cannot move up to become the next generation of leaders.  And as a consequence, many FSOs are forced to retire at the peak of their expertise.

Members of this inner circle have used their control of HR to give themselves and their friends promotions, prestigious assignments, cash bonuses and jobs for family members.  Conversely, they have used HR as a weapon against employees they dislike – including removing them from promotion lists and blocking plum assignments and cash bonuses – no matter how qualified those disfavored people might be.

Ms. Wadelton  was a Foreign Service Officer from 1980-2011.  She served in Africa, Latin America, Russia and Iraq.  In addition to assignments in the State Department, she was an advisor to the Senate Foreign Relations Committee and a director of the Office of the US Trade Representative.

Continue reading Time to Fix the State Department.

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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

 

 

 

 

 

 

 

 

 

 

 

 

 

Quickie: The State Department Needs a Watchdog—Now, Not Later (The Atlantic)

D.B. Grady, coauthor of Deep State: Inside the Government Secrecy Industry and online at dbgrady.com pens an April 23 article for The Atlantic on the many dysfunction at the State Department. The article specifically highlights State’s lack of permanent IG and the case of former FSO, Joan Wadelton (with links to this blog). Quick excerpt below:

The U.S. Department of State has not had a permanent, Senate-confirmed inspector general (IG) since 2008. This is the longest vacancy of any of the 73 inspector general positions in government, and the effects of this are all but impossible to ignore. Whether it’s the boondoggle that is the Jeddah New Consulate Compound, or the tragic attacks in Benghazi, the “systemic failures and leadership and management deficiencies” (as an independent panel called it) of the State Department are in need of repair. That’s not going to happen until an IG candidate is found, vetted, and installed.

To understand the importance of the position, it’s useful to look at what the job entails. A good inspector general is an agency’s fail-safe. A bureaucracy will always operate in its own self-interest. Budgets, portfolios of responsibility, head-counts, and independence from oversight are prime motivators for any organization. Accordingly, the leadership of the little kingdoms within a bureaucracy will always work to protect and perpetuate themselves.
[…]
After Wadelton and others approached Congress to correct these problems, Ileana Ros-Lehtinen, the Chair of the House Foreign Affairs Committee, and Howard Berman, the Ranking Member, signed a bipartisan letter to the GAO tasking it with following up on the 2010 Inspector General’s report and reporting back whether had been fixed. In July 2012, the GAO began its investigation, which is still ongoing. Wadelton was one of the first people that they interviewed.

Continue reading, The State Department Needs a Watchdog—Now, Not Later

Really glad to see that Congress is paying attention and that the GAO is once more taking a look. (see  Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!  We’ll also be in the lookout for the resolution of the court case, Wadelton v. Clinton et.al and the results from the GAO.

— DS

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Joan Wadelton’s Appeal Makes it to FSGB 2011 Annual Report to Congress

In May, we posted about the case of FSO Joan Wadelton from Patricia Kushlis’ troubling blog post (see Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!).  Ms. Wadelton’s case made it to the FSGB’s 2011  Annual Report to Congress:

Appeal of Joan Wadelton. On January 7, 2011, Joan Wadelton, a Foreign Service Officer with the Department of State, filed a Complaint in the District Court for the District of Columbia, asking that it review the Board’s decision resolving a 2008 grievance appeal. Ms. Wadelton had filed three grievances prior to the 2008 appeal contesting the results of six selection boards which had not promoted her. As a result of those grievances, all six boards were reconstituted and Ms. Wadelton’s file was again reviewed for promotion. None of the six reconstituted boards promoted her. Ms. Wadelton then challenged the results of the reconstituted boards in the 2008 follow-on grievance. In its decision, the Board found deficiencies and irregularities in the operations of all six reconstituted boards, rebutting the presumption that they were conducted with regularity, and ordered that six new reconstituted selection boards be convened. Ms. Wadelton’s complaint challenges the Board’s decision to order a new round of reconstituted boards, rather than direct a promotion, as she had requested.

So Ms. Wadelton contested the results of the six selection boards, and State reconstituted all six boards.

Then Ms. Wadelton challenged the reconstituted boards, and FSGB ordered State too reconstitute six new selection boards.

The Grievance Board “found deficiencies and irregularities in the operations of all six reconstituted boards” so it ordered State, that is, the same HR Bureau to reconstitute six new selection boards.  Because that makes a lot of sense. It did not say if the deficiencies and irregularities were isolated to these six reconstituted boards or if they are systemic to the bureau and the process.

Hopefully the new boards are better at math so the promotion scorecards won’t be as messy, yes?  Or maybe, since this is now a case in the District Court for the District of Columbia, we’ll hear much more about the perplexing promotion scorecard process and how they get so messy.

Domani Spero

 

 

Joan Wadelton’s Case: That’s One Messy Promotion Scorecard, Next Up – It’s GAO Time!

In March 2012, Patricia Kushlis of WhirledView published a blog post titled, State Department Human Resources — A System Run Amok. Excerpt below: 

I have been writing about corruption and cronyism in the State Department’s Human Resources Bureau for the last several years .

My reporting has consistently led to one conclusion — that State’s personnel system — which affects both Civil and Foreign Service employees — has run amok.  Nowhere is this better illustrated than in the case of Joan Wadelton.
[…]
Joan’s troubles began in 2000.  That was 12 years ago.  Her case is complicated.  I have followed its macabre twists and turns since 2008.  They never cease to amaze.  I have not written about them until now, however, because Joan preferred that her story remain private — she had hoped to settle quietly — until, that is, now.

Joan has a stellar record — I have seen her personnel file which is filled with glowing performance reviews and awards — and nary a black mark in sight.  Her service includes two stints in Iraq — she was one of the first State employees on the ground in 2003 and was commended for taking the first economic reconstruction team into Fallujah.  She created the State Department’s Congressional Liaison Office — a project she started while on a detail to Senator Joe Biden and completed under the tenure of Colin Powell, for whom it was a high priority.  She also served as the first Iraq advisor to the Under Secretary for Economic and Business Affairs and reshaped the US government’s intellectual property policy while Director of State’s Office of Intellectual Property Enforcement.  Most recently, Joan was in the prestigious Office of Policy Planning, where she managed a program she had created to promote Africa’s businesswomen, drawing kudos from Secretary Clinton.  This last assignment is in itself a strong indication of her continued high value to the Department.

In the end, Joan’s accomplishments and successive strong recommendations for promotion in her annual performance reviews didn’t matter.  On December 16, 2011, the Department — based on evidence that could most charitably be described as irregular — fired her, claiming that she had not been promoted into the Senior Foreign Service.

In fact, Joan’s challenges to State’s antiquated and opaque personnel system and her whistleblowing about HR’s misdeeds were her undoing.   For years, a rotating case of Foreign and Civil Service employees have apparently used the personnel system for personal gain, to promote their friends, to punish those they dislike and to retaliate against anyone who defies them.  Joan’s refusal to hand off her prestigious Congressional liaison office project to HR to pass to its cronies, resulted in an immediate (although fortunately futile) retaliatory effort by HR to put her on leave without pay.  This conflict proved to be the start of years of run-ins with HR management who have blocked assignments, lost files, invented fraudulent documents and tampered with results of promotion boards to make it appear as if she had never been promoted.

Below is a screen grab of one of the score sheets. You can view the whole scorecard via WhirledView here.

Extracted from Promotion Score Sheet posted by WhirledView
(click image for larger, more messy view)

Read in full here.

On May 2, WhirledView has a follow up post with the new Director General of the Foreign Service and Human Resources, Linda Thomas-Greenfield, in the mix:

By odd coincidence, HR contends that she sat on one of Joan’s 2006 reconstituted promotion boards.  What is claimed to be Thomas-Greenfield’s signature is shown on a document dated March 9, 2006, which — according to HR – is purportedly the final candidate rankings by that board.  And yet, we have e-mails between Melinda Chandler (an HR grievance attorney) and Thomas-Greenfield, in which Thomas-Greenfield does not recall participating in this 2006 board (although she is quite specific about her participation in a 2004 board).

In response to that e-mail, Chandler cites a commendation Thomas-Greenfield received for sitting on Joan’s 2006 board.  According to Chandler, this commendation was issued on March 1, 2006 — eight days before the board supposedly met (echoing HR’s formalization of the final results of three of Joan’s six reconstituted 2006 boards before those boards had supposedly met).  A rather unique soothsaying ability HR seems to possess.

Read the follow up post here.

One could argue that a case like this, as messy and as lengthy, going now for eight years, undermines not only the proper functioning of the Service, but also undermines trust and perception of the fairness of the promotion system in the Foreign Service.  Also, are the folks who sit in these boards really as bad in math as I am? I mean, look at those score sheets, any third grader can print and add more neatly than that.

Seriously.

It seems logical and rational to me that a bureau like Human Resources should not/not be allowed to investigate itself against claims of wrong doings.  Dude, that would be like having BP investigate itself over the Deepwater Horizon oil spill, wouldn’t it?   And if the State Department Inspector General Office is similarly tainted with allegations of well, being missing in action, and all, there ought to be another option.

How much does this eight-year saga cost to the U.S. taxpayers? WhirledView counts that since 2004, there’s the salaries and other expenses by HR bureau attorneys, various managers and their staffs; investigators and other staff in the State OIG; attorneys, investigators and other staff in the Office of Special Counsel; judges and other staff at the Foreign Service Grievance Board; attorneys and other staff in the State Department’s Office of the Legal Advisor; attorneys and other staff at various levels of the Justice Department and a very senior federal judge and her clerks and other staff. Judges, lawyers, managers are all well-paid; eight years adds up to a nice bundle that could do a nice repair to my elementary school next door.

And there is that item about Ms. Wadelton who was reportedly asked “to report all contacts she has with the Hill concerning HR wrongdoing” to the HR Bureau. Whisky-Tango-Foxtrot! What FAM citation is that in?

Since the Government Accountability Office (GAO) investigates how the federal government spends taxpayer dollars, this seems like an excellent case for investigation; no not just this case but also the promotion and assignment system in the Foreign Service. Who seez that folks can’t get promoted without hardship assignments, or AIP-assignments, or whatevers?  Don’t look now but some ambassadorial appointees have skipped the traumatic tours on the way to their embassies!

The main reason why the GAO ought to take a look at this is — because you want the right people on the right bus, but —

–what if the bus seats are sorta reserved?

— or if drivers cannot even do simple math?

— or loud complainers get thrown in the ditches?

— so the peaceful bus can chug along, in peace….

— so complainers learn quickly that ditches are dark and dirty, and never to try that again?

— but if they do, then the fight goes on, and on, and gets litigated — to godawful death?

The State Department as a bureaucracy only responds to two things with some non-tortoise speed – the court system, and Congress. Without congressional brakes in place, cases like this will be litigated to yes, godawful death. Squish! And we, the people are the losers.

Domani Spero

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