FSGB: Extra/Marital Drama With Three Women, Two Pregnancies, and a Reduced 12-Day Suspension

 

Via ROP/FSGB 2020-036/September 21, 2021:

Held – The Department of State (“Department”) met its burden of demonstrating by a preponderance of the evidence that grievant committed the misconduct with which he was charged; that the discipline proposal was timely and without procedural defect; and that the proposed penalty was reasonable and proportionate to the misconduct.

Case Summary – Grievant was serving as a Diplomatic Security (“DS”) Special Agent (“SA”) at an overseas post with his then-wife. He was engaged in extramarital affairs with two women employed at the embassy (both of whom became pregnant), failed to report these relationships, failed to report out of country travel with one of the two women, and threatened and intimidated the other woman, prompting two investigations and his voluntary curtailment from post. Two years later, while participating in a meeting concerning the medical evacuation (“medevac”) of his new wife, grievant was accused of bullying and intimidating behavior toward personnel from the Bureau of Medical Services (“MED”), prompting a third investigation. On December 8, 2017, the Department proposed a 30-day suspension without pay, on five charges with 22 specifications. On January 23, 2019, the Department sustained the proposed 30-day suspension. Grievant filed a grievance, challenging the validity of the charges and the severity of the penalty. In the agency-level grievance decision, the Department sustained four charges with 13 specifications and reduced the suspension to 12 days.

Grievant alleged that much of the conduct reflected misunderstandings. He stated that his first marriage was failing when he arrived at post and he eventually married, and remains married to, one of the two women with whom he had affairs. He contended that the investigations into his alleged misconduct were marred by the bias and unprofessional conduct of post’s Regional Security Office as well as being unduly delayed, causing him personal and professional harm. He argued that the alleged misconduct at the MED meeting resulted from mistreatment of his family by MED and should be dismissed. Grievant also alleged that the discipline was untimely, coming almost six years after the first alleged act of misconduct until the Department’s agency-level decision, an unreasonable period of time that impacted his ability to grieve a flawed process and manage his career. Grievant also argued that the Department did not meet its burden of proving the charges, appropriately weigh mitigating factors, or offer timely or proportionate discipline. Grievant argued that the charges should be dropped, or the penalty substantially reduced.

The Department responded that the complexity of the case and number of incidents leading to successive investigations, justified the time necessary to propose discipline. The agency also rebutted allegations that the discipline process was procedurally flawed, asserting that it properly assessed the charges and grievant’s misconduct, considered all mitigating factors, and levied a penalty that was both fair and proportionate.

The Foreign Service Grievance Board (“Board”) found that the Department met its burden of proving all charges and specifications. The Board found no procedural errors and concluded that the charges were not stale and the delay not prejudicial. The Board upheld the Department’s penalty determination process, including an assessment of all mitigating factors and review of appropriate comparator cases. The grievance was denied in full.

According to the ROP, the grievant was advised on January 25, 2017, “This case is still ongoing pending additional information.”8 Notwithstanding this notice, in February 2017, grievant was promoted to FS-03, still as an ARSO, retroactive to November 2016.9″
The small prints:
1 Although grievant was once tenured as a DS SA and promoted to FS-03 in that capacity, he subsequently changed careers to FSO generalist at a reduced grade of FS-04 and he remains untenured in that capacity.
9 The Department reported that grievant’s name was “temporarily removed from the rank order list of employees recommended for promotion by his 2016 FS Selection Board pending a standard vetting check …. [D]ue to his then-pending discipline cases, [he] should have been continually reported [as ineligible for promotion] in the ensuing vetting checks …. [I]t appears that [grievant’s] name was not properly reported [in early 2017] … resulting in the erroneous reinstatement of his name to the promotion list.” See Agency Amended Response to Board Request for Information, at 3-4.
ROPs available to read via FSGB.
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.

 

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FSGB: “Automatism” Defense Against Notoriously Disgraceful Conduct Charge Fails

13 Going on 14 — GFM: https://gofund.me/32671a27

 

 

Via FSGB Case No. 2020031 February 19, 2021
HeldThe Department proved by preponderant evidence that the charged employee committed notoriously disgraceful conduct by engaging in non consensual sexual contact with a colleague in a public Embassy space; the misconduct was not caused by a neurological condition (automatism); there was a nexus between the charged misconduct and the efficiency of the Service; and that the penalty of separation is reasonable.Case
SummaryThe Department charged an unaccompanied married employee with notoriously disgraceful conduct after he went to a pool party at an overseas post, had a few alcoholic drinks, and, after some physical contact with a married colleague who was intoxicated, touched her near her genital area without her consent. The incident was videotaped by security cameras and was observed by employees who were at the pool. The Department argued that intent is not an element of the charged misconduct but should be considered as a mitigating or aggravating factor when the penalty is determined. The agency presented the testimony of an expert witness who opined that the charged employee did not suffer from an automatism at the time of the misconduct. The agency contended that the undisputed evidence proves notoriously disgraceful conduct. The Department argued that separation was the only appropriate penalty for the egregious misconduct, given a fair consideration of the mitigating and aggravating factors and a review of comparator cases.
The charged employee presented a report from an expert witness who opined that at the time of the misconduct, the employee was experiencing a neurological event, called an automatism,which prevented him from having any awareness of, or control over, his actions. The charged employee contended that he is not culpable for the charged misconduct because intent to commit the conduct is a necessary element of the charge.The employee also argued that the Deciding Official did not properly consider mitigating circumstances and the penalty was unreasonable after a review of comparator cases.
The Grievance Board considered the undisputed evidence of the incident that was recorded on the videotape and not contested by the charged employee. The Board further reviewed the testimony of the competing experts and concluded that the opinion of the charged employee’s expert witness was not sound because it was not consistent with the accounts of the witnesses, including the charged employee, and it did not derive from a persuasive differential diagnosis. The Board concluded that the charged employee’s expert witness speculated repeatedly on the possible causes for an automatism,which undermined the plausibility of his ultimate opinion. The Board further found that because intent was clearly established, the issue of whether intent is an element of the charge did not need to be decided. The Board concluded that there was a nexus between the misconduct and the efficiency of the Service because the incident was videotaped, witnessed by several employees, resulted in an almost immediate curtailment and a suspension of the charged employee’s security clearance. Lastly, the Board found that the penalty was within the zone of reasonableness after an appropriate review of mitigating factors and case comparators.
The Board finds that Department “has established by preponderant evidence that the charged employee committed the specified charge of notoriously disgraceful conduct, the misconduct was not the product of an automatism; there is a nexus between the misconduct and the efficiency of the Service; and the penalty of separation is reasonable.”
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.

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What was the cause for “universal revulsion and anger” at one post?

13 Going on 14 — GFM: https://gofund.me/32671a27

 

Via FSGB Case No. 2020-009 | Interim Decision | February 4, 2021
Held –The Department of State (“Department) met its burden of proving that grievant committed one specification of Improper Personal Conduct, and one charge of Notoriously Disgraceful Conduct. The Department also established that the conduct showed poor judgment and lack of discretion, and that such misconduct had an impact upon the efficiency of the Service. The Department did not meet its burden of proving the charge of Inappropriate Comments and one specification of Improper Personal Conduct. The case was remanded to the Department to re- determine an appropriate consequence in light of the Board’s findings.
Case Summary – Grievant, a married Senior Foreign Service officer, while serving as Management Counselor at the U.S. Embassy REDACTED, was accused of sexual harassment based on inappropriate statements he reportedly made to female colleagues and conduct considered professionally improper. Grievant also appeared in a video published on a local website showing grievant and a local national woman seated together in the driver’s seat of a vehicle on a public road. The website article identified grievant as a foreign diplomat and commented on foreign diplomats and young host country women. Grievant later admitted to having an extramarital affair with the woman in the video, who was employed as a nanny by one of grievant’s subordinates. Grievant requested a voluntary curtailment because of the negative response by members of the embassy community concerning the video and to attend to a family illness.
The Department’s Office of Civil Rights (S/OCR) investigated the sexual harassment allegations and forwarded its report to the Bureau of Human Resources (HR). Based on the findings of the S/OCR and after consideration of a description of the video showing grievant with the foreign national woman in the car, the Department proposed to suspend grievant for eight days without pay as discipline for Inappropriate Comments (three specifications), Improper Personal Conduct (two specifications), and Notoriously Disgraceful Conduct.
Grievant challenged the suspension proposal, however, it was sustained by the Department. After a grievance was denied, grievant appealed to the Foreign Service Grievance Board that found that the Department met its burden of proving that grievant committed one of two acts of Improper Personal Conduct and he engaged in Notoriously Disgraceful Conduct. The Board remanded the case to the Department for reconsideration of the proposed discipline in light of the Board’s decision.

Charge 3: Notoriously Disgraceful Conduct

The Department contends that grievant’s conduct, captured in the video which showed a young woman sitting in front of grievant in the driver’s seat while driving a car, had a negative impact upon mission morale. The Department noted that this video appeared on a popular local website and the existence of the video and its content were widely known within the mission. Grievant also admitted that he was having an extramarital affair with the woman who appeared with him in the video who was employed as a nanny for the family of one of grievant’s subordinates in the mission. The Department cites a statement by the CLO that both grievant’s family and the post family that employed the woman who appeared in the video were deeply affected. Grievant claims that his wife was aware of the relationship and argues that the video did not explicitly show his involvement in a sexual relationship. Nonetheless, the Department concluded that the video exposed the close relationship grievant was engaged in with the nanny of his subordinate, thereby embarrassing his colleagues, his family, and the mission.
[…]
With respect to the Charge of Notoriously Disgraceful Conduct, the Department notes that grievant admitted to having an extramarital affair with the woman in the video and the S/OCR report specifically corroborated that the video was publicized in the media in the host country. The Department argues that the physical closeness exhibited between grievant and the woman in the video, the nanny of one of his subordinates, and grievant’s admission that he was engaged in an affair with the woman, demonstrated his failure to maintain the high standard of conduct required of Foreign Service employees representing the U.S. abroad. The Department also points out that all new Foreign Service employees are briefed about their role representing the U.S. government abroad and the expectation that each maintain the highest standard of conduct demonstrating integrity, reliability and prudence whether at work or during their non- work hours. Further, the publication of the video resulted in embarrassment to others in the mission and disrupted grievant’s effectiveness as Management Counselor because his colleagues and supervisees refused to work with him. In fact, the Department points out that the publication of the video partially motivated grievant to request voluntary curtailment from post, thereby detrimentally affecting management operations at post.
[…]
Grievant maintains that the disciplinary action against him is unwarranted and that the statements upon which the charges and specifications are based are factually inaccurate and mischaracterized. He argues that the Department cannot meet its burden to establish that he engaged in Notoriously Disgraceful Conduct (Charge 3). Moreover, grievant argues that the proposed discipline is excessive for the alleged offenses, that the DO did not give adequate weight to several mitigating factors in his case, and that the penalty, therefore, is unreasonable.
[…]
Grievant maintains that the Department cannot meet its burden of proving that he engaged in Notoriously Disgraceful Conduct, as defined in the regulation. Grievant acknowledges that he did have an extramarital affair but maintains that it was discreet, not conducted publicly, not disgraceful but, instead, it was a meaningful relationship.

[…]
The FAM definition of notoriously disgraceful conduct is normative; that is, it is defined by the reaction to the conduct. In the instant matter, grievant is charged with engaging in an extra-marital affair with a local national woman, which was publicized by inference in a video on local media. Thus, grievant’s conduct is notoriously disgraceful because, were it widely known, it would embarrass or discredit him, the embassy, and the United States, or would subject them to censure or opprobrium. Grievant’s argument that the video was posted to a non- mainstream sensationalist website is unavailing, as the Department does not need to prove that grievant’s extramarital affair was in fact widely known or published by a widely-accessed medium, only that, if known, it would cause the concerns described in the regulation. In fact, though, the Department describes the internet website where the video was posted as popular and the record shows that it was sufficiently well-known that the embassy community quickly saw it, identified grievant and the nanny, and reacted negatively. Judging from the strong negative reaction, described by the Deputy Chief of Mission as “universal revulsion and anger,” we are satisfied that if evidence of the affair and the circumstances were widely known in the host country, a socially conservative country, the embassy and the United States would have been embarrassed and likely censured.
[…]
According to the S/OCR investigator, interviews with the Management staff revealed that the disclosure of the video made grievant’s “relationship with his subordinates irreparably bad [and] … brought forth a torrent of further negative reporting from across the mission about [grievant’s] behavior and his interpersonal skills.” Agency-Level Grievance Decision at 15. In the aftermath of the release of the video, grievant agreed to work from home and discontinued any contact with his subordinates or others at the embassy. Grievant also admitted that he ultimately voluntarily curtailed from post in part due to release of the video, even though the official rationale was listed as his mother’s health situation. The embassy had the unanticipated absence of a key senior official who supervised a large staff and provided administrative services to 15 U.S. government agencies. It is clear to the Board that the evidence supports the Department’s conclusion that grievant’s appearance in the video and his extramarital affair with a subordinate’s nanny led to his discredit as a senior embassy official within the mission and possibly in the wider community; adversely affected the embassy’s ability to carry out its responsibilities when grievant could no longer perform his job.

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

Posted: 12:48 am EDT
Updated: 3:07 pm EDT
[twitter-follow screen_name=’Diplopundit’ ]

 

In March 2012, AFSA’s General Counsel Sharon Papp reported about a State Department proposal related to the “state of affairs” in the Foreign Service ….no, the other kind of affairs:

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

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

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

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

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

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

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

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

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

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

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

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

[protected-iframe id=”60ad9e8b18f491d0b315211a9a123f7b-31973045-31356973″ info=”//giphy.com/embed/R2s69ZdZjx4I0?html5=true” width=”400″ height=”200″ frameborder=”0″]
Can’t you see I’m busy? Besides I did not/did not see anything!

 

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

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

So —

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

Which.Is.It? Will accept breadcrumbs …

#

DS Agent Charged With “Notoriously Disgraceful Conduct” Gets Three Days Suspension

— Domani Spero

Remember back in 2010 when HeraldNet reported that a federal agent was arrested for assault in the Snohomish County of Washington State? Quick recap:

“The man was arrested June 17 for investigation of second-degree assault. Deputies seized 15 guns from the home, including his duty weapon, according to a police affidavit filed in Everett District Court.

He told investigators that he is an agent with the U.S. Department of State in Seattle. His wife told authorities that he is a diplomatic security officer.”

See DS Agent Arrested After Wife Reports Assault.

The agent’s name was never publicly released.

But — there is a grievance case (names redacted, of course) that is identical in details and timing to the reported case.  A Motion to Exclude order by the Foreign Service Grievance Board (FSGB) on the grievance filed by an unnamed FS-03 Diplomatic Security (DS) Special Agent provides details about a 2010 disciplinary case for “notoriously disgraceful conduct.”  While we cannot say with certainty that this is the exact same case, the 2010 news report made mention that the  “woman complained of blurred vision and head pain” while the 2010 FSGB case mentions that the “Grievant’s wife complained of blurred vision and head pain.”The news report and the grievance case both notes that the incident happened on June 17, 2010 and that the wife was taken to a hospital (location not unidentified in the grievance records).

Below are details extracted from the redacted FSGB 2012-045  ROI dated June 30, 2010, publicly available via FSGB.gov

Grievant is a married DS Special Agent with two children, aged approximately [REDACTED]. On June 17, 2010, while he was assigned to the Diplomatic Security Field Office, grievant was involved in a violent altercation with his wife in his home while his children were at home.

Grievant’s wife called the police who, after interviewing both adults, arrested grievant and charged him with assault in the fourth degree. In a statement provided to the Sheriff’s Office immediately following the incident, grievant reported that he and his wife had had an argument over the contents of messages on his government issued cell phone. Grievant reported that his wife grabbed his phone and when he grabbed it back, she slapped him in the face. Grievant claimed that he stood up from a seated position on the bed in the master bedroom and stretched out his arm to prevent his wife from striking him again, which resulted in her falling backwards and hitting her head on the floor.

Immediately following the incident, grievant’s wife provided a sworn statement to the law enforcement responders in which she claimed that after she slapped grievant, he picked her up and “body slammed” her to the floor, then grabbed her head striking it against the floor four to five times. Grievant’s wife complained of blurred vision and head pain and was taken to the hospital. A CT scan of her head was taken that revealed a palm-sized “subarachnoid hemorrhage within the inter-hemispheric fissure and right cingulated sulcus,” which was described as a bleeding within the brain. Notes on her medical record indicated, “[H]ead slammed into floor repeatedly.” Grievant’s wife was transferred to a second hospital for further examination and evaluation by a neurologist. The neurologist ordered her hospitalized overnight for observation and assessed her condition as “traumatic subarachnoid hemorrhage.”

In a follow up visit on June 19, the Sheriff’s Office took photographs of grievant’s wife, noting two bruises on the left side of her face, near her eye and cheek, that were approximately the size of a quarter. She then sought another CT scan to determine if her cheekbone was broken, but it was not.

As a result of the altercation with his wife, grievant was placed on limited duty status and was restricted from using his government-issued firearm and DS credentials. Grievant’s security clearance was suspended from September 10, 2010 until April 17, 2012. Reports of the incident appeared on a local television news program and three internet sites. In these media reports, grievant was identified as a DS Agent with the Department of State in [REDACTED]. The articles described the altercation and one mentioned the injuries sustained by grievant’s wife.

According to the Record of Proceeding (ROP), the grievant entered into an Order of Continuance of the assault charge that deferred all court proceedings arising from his arrest for twelve months on December 14, 2010.  On May 4, 2011, after grievant fully complied with the terms and conditions of the continuance order, the case against him was dismissed.

On December 19, 2011, the Director of Employee Relations proposed to suspend grievant for five days without pay and place a letter of suspension in his official performance file for two years or until review by two promotion boards. Grievant appealed this decision and on March 4, 2012, the Department upheld the charge of Notoriously Disgraceful Conduct, but reduced the suspension to three days.

The case is available on pdf file here.

Here is what 3 FAM 4139.14 says about Notoriously Disgraceful Conduct: “that conduct which, were it to become widely known, would embarrass, discredit, or subject to opprobrium the perpetrator, the Foreign Service, and the United States. Examples of such conduct include but are not limited to the frequenting of prostitutes, engaging in public or promiscuous sexual relations, spousal abuse, neglect or abuse of children, manufacturing or distributing pornography, entering into debts the employee could not pay, or making use of one’s position or immunity to profit or to provide favor to another (see also 5 CFR 2635) or to create the impression of gaining or giving improper favor.”

It looks like the judgment of “notoriously disgraceful conduct” does not even require that one be publicly identified, just that the potential that the incident be widely known exist (note specific mention of media reports, one tv program and three Internet sites).

* * *

Zero-Tolerance Policy on Prostitution, Read it in the FAM or the Grievance Board

Well, it was not Secretary Panetta’s fault. He was on an official trip, which occasionally means a press conference.  And of all the questions that local reporters could have asked, one has to bring up that one about prostitutes in Brasilia and the U.S. Marines. So the journos got busy and over at the State Department, the official spokesperson got even busier.

Via the State Department Daily Press Briefing, April 25:

QUESTION: I have a question on South America —

MS. NULAND: Yeah.

QUESTION: — for what Americans might consider the ongoing soap opera involving the Secret Service, except this doesn’t involve the Secret Service. We’re talking about three U.S. Marines who apparently have been punished as well as an employee of the U.S. Embassy in Brasilia who apparently were implicated in tossing a prostitute out of a moving car sometime last year. And I wanted to find out, since we know that the Marines have been punished, who was the employee of the Embassy? Was this person an American? Was this person a local hire? What can you say about a pending lawsuit now, apparently, against the Embassy?

MS. NULAND: Well, first of all, your report of the incident in question is not accurate in terms of what actually happened. Second, this is something that happened back in December. There was a State Department employee involved. The – we did cooperate fully with the appropriate Brazilian authorities, including with the civil police. None of the Americans involved in the incident are still in Brazil. The civil police, as I understand it, are still working on their case, and no charges have been brought by the Brazilian authorities.

QUESTION: When you say that none of the people involved are still in Brazil, does that imply that the Embassy employee is an American?

MS. NULAND: Correct.

QUESTION: And does that person still work for the U.S. Government?

MS. NULAND: I do not have the answer to that. I believe so. But as you know, we don’t talk about our personnel for privacy reasons.

QUESTION: What is the policy? Much has been made about the Secret Service reviewing its standards of behavior for its employees when they’re detailed overseas. What is the standard for the State Department and its employees and how they’re expected to behave, conform to local laws overseas?

MS. NULAND: We have a zero-tolerance policy for any kind of conduct of the kind that was of – that involves prostitution or anything of that nature. I can give you the Foreign Affairs Manual regulations, if that’s helpful to you.

QUESTION: Mm-hmm.

MS. NULAND: Not only for the reasons of morality and local law, but also because any kind of conduct of that kind exposes our employees to blackmail and other things.

QUESTION: Even though that a country like Colombia may have legalized activity in this (inaudible)?

MS. NULAND: Correct.

QUESTION: Just a couple things on that. What about the description that you were read of the incident isn’t correct?

MS. NULAND: Well, Ros talked about somebody being thrown out of a car and this kind of thing. That is not what happened in this case.

QUESTION: What did happen?

QUESTION: Because that’s the description that the Secretary of Defense offered to reporters who were traveling with him. So —

MS. NULAND: Our information is that after four Embassy personnel left the club, the – a woman involved in this incident attempted to open a car door and get into a closed and moving vehicle. She was not able to do so. She fell and she injured herself. All of the Embassy personnel involved in this incident were interviewed by the Brazilian civil police. We have also conducted our own investigation into the incident, and we’ve taken all the appropriate steps regarding the individuals involved consistent with our laws and our regulations.

QUESTION: Did these – did any of these – in particular, the Embassy employee, did they violate any rule?

MS. NULAND: Well, as I said, they haven’t been charged by Brazilian authorities.

QUESTION: Right. But I mean any of the FAM rules.

MS. NULAND: I’m not going to get into the precise adjudication of the case for reasons of privacy with regard to our employee.

QUESTION: Well, yeah, but you said that none of the people are still in the country.

MS. NULAND: Correct.

QUESTION: But someone can be moved without being punished. I mean, you could be transferred just simply because this person – for another reason. So do you know if there was any – was there any reprimand or punishment handed out, and was there any reason to? Did they – did these people do anything wrong?

MS. NULAND: Again, my information is that we conducted our own investigation of this issue, and we took the appropriate steps. What I’m not at liberty to get into is what steps those might have been, given the privacy issues involving the employee. And that’s our policy that we don’t talk about disciplinary steps taken with employees.

QUESTION: Well, the Secret Service didn’t either until just recently.

MS. NULAND: I understand that.

QUESTION: Well, that’s why it’s important to know whether they actually did something wrong or they were just transferred or moved to – or demoted or whatever. I mean, maybe – I mean, the description that you just read, it sounds like it could be perfectly plausible that these people didn’t do anything wrong at all. So that’s —

MS. NULAND: And it may well be. I just don’t have information with regard to the case beyond what I’ve just given you.

QUESTION: Well, I would suggest that the Department might want to come clean on this, considering the interest in the – in that. The other thing is that in the FAM, it talks about – it said “notorious behavior” or something like that. But it only talks about that being a problem if it were to become publicly known.

MS. NULAND: Well, I don’t have the FAM in front of me. I think I should get it for you.

QUESTION: So I’m not sure I – okay. But I’m not – I’m curious as to – you say it’s a zero-tolerance policy, but it’s not clear to me that it is, in fact, zero tolerance if the only way it gets you into trouble is if other people find out about it.

MS. NULAND: But the problem – but this is the problem. This is why you have to have a zero-tolerance policy, because at any given time, if you open yourself up to such behavior, it could become known. And you can’t, as somebody engaged in behavior of that kind, predict when that might happen. And so you’re immediately vulnerable, and so is the U.S. Government. So that’s why we have the regulations that we have.

QUESTION: Okay. Can we —

QUESTION: Is there a lawsuit pending against the U.S. Government?

MS. NULAND: As I said, we have – I have information to indicate that there have been no charges filed by the – in Brazil.

QUESTION: FAM stands for foreign manual?

QUESTION: Wait, wait. I just want to make sure that you understand that – what I’m trying to get. I want – basically, I want to know if the people involved in this violated that FAM regulation.

MS. NULAND: I understand that, and I – my expectation is that we are not going to talk about an individual personnel case from the podium.

QUESTION: I’m just curious as to what FAM stands for.

MS. NULAND: Sorry. Foreign Affairs Manual, which are our published rules and regulations for ourselves. But anybody who’s interested in those, we’ll get them for you. I did have them a couple of days ago. I don’t have them here.

The April 26 DPB is here where Ms. Nuland gave a shout-out to all the Take Your Kids to Work kids and the Columbia University students who attended the Daily Press Briefing before wrestling with more non-G rating questions.

MS. NULAND: I can’t, based on one press article, evaluate what a “business like this” is. I’m not sure what this establishment involves itself with, what else might go on there. But what I can tell you is, as we discussed yesterday, under the Foreign Affairs Manual, members of the Foreign Service are prohibited from engaging in notoriously disgraceful conduct, which includes frequenting prostitutes and engaging in public or promiscuous sexual relations or engaging in sexual activity that could open the employee up to the possibility of blackmail, coercion, or improper influence. So the degree to which any employee requires investigation, that’s the standard that they’re held to. And what a subject to be talking about on Bring Your Kid to Work Day. (Laughter.)

The relevant regs that govern this appears to be 3 FAM 4130 STANDARDS FOR APPOINTMENT AND CONTINUED EMPLOYMENT, the only one we could find that mentions “prostitutes” (moral turpitude issues for visas excluded).  More specifically 3 FAM 4139.14 Notoriously Disgraceful Conduct, which states:

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

On April 23, Reuters reports that–

A 2008 State Department cable to overseas missions said “people who buy sex acts fuel the demand for sex trafficking” and that “irrespective of whether prostitution is legal in the host country, employees should not in any way abet sex trafficking or solicit people in prostitution.”  Using prostitutes is grounds for disciplinary action, which may include firing, the State Department said. Adultery can also be a disciplinary offense if the spouse is unaware, and it exposes the employee to potential blackmail.

Ms. Nuland talks about the Department’s “zero-tolerance policy for any kind of conduct of the kind that was of – that involves prostitution or anything of that nature.”

We are not into lawyering but zero-tolerance indicates the imposition of automatic punishment for infractions of an articulated rule or regulation with the goal of eliminating such infractions.  Our favorite resource says that “zero-tolerance policies forbid persons in positions of authority from exercising discretion or changing punishments to fit the circumstances subjectively; they are required to impose a pre-determined punishment regardless of individual culpability, extenuating circumstances, or history.” Which to us, means it does not matter if engaging with a prostitute happens once or half a dozen times, the punishment is the same for a little or a whole lot.

And while a Diplomatic Security Director was once quoted saying that the  State Department considers engaging prostitutes a “heinous event, ” the FAM only says one could be subject to discipline including firing.

We have located three prostitution-related cases in the Foreign Service Grievance Board all available publicly online, where the penalties range from a three-day suspension without pay to separation from service.

  • In 2007, an FSO with 20 years in the Foreign Service, with every overseas posting at a hardship post was charged for off-duty misconduct — over a seven-year period he engaged the services of prostitutes 30-40 times in {post 2}, where it is a crime, and 10-20 times in {post 1}.  The Department identified as an aggravating factor that the misconduct could have caused embarrassment and damaged U.S. interests had the FSO been arrested.  The Grievance Board (FSGB) held that a penalty of three-day suspension without pay for improper personal conduct is appropriate under the circumstances (FSGB No. 2007-011).
  • In 2008, the Department proposed the separation of an FS-02 Diplomatic Security (DS) Officer’s based on a charge that carried four specifications, all related to engaging with prostitutes including one who was allegedly an underage girl. At the time of these encounters, officer was posted overseas as the Regional Security Officer (RSO) at a U.S. Embassy (FSGB No. 2008-048). The FSGB held that the Department met its burden to prove by a preponderance of the evidence that DS Agent, should be separated from the Service based on a charge of engaging in “notoriously disgraceful conduct.
  • Last year, an FP-03 FSO who served as Deputy Principal Officer in [City, Host Country] (a two-person American Presence Post), was charged with having an extra-marital relationship without his wife’s knowledge; creating the appearance that he had engaged the services of a prostitute while on official in-country travel; denying the extramarital affair when first interviewed by a federal law enforcement officer; and taking the woman with whom he was having the affair back to her place of work in a USG vehicle after restaurant lunches (FSGB Case No. 2011-009). The FSGB held that “The Department met its burden of proof that FSO engaged in the acts of misconduct underlying the charges […] that there was a clear nexus between his behavior and the efficiency of the Service, and that the proposed penalty of a ten-day suspension is reasonable.”

So unlike what you’d expect under zero tolerance, the punishments above were not pre-determined but appears to fit the cases and circumstances subjectively. And that’s why we thought this DPB is interesting and all.

When we blogged about these cases last March, we thought out loud that it does not seem as if widespread notoriety is even required to demonstrate adverse effect on the efficiency of the Service. The potential for embarrassment and damage to U.S. interests seems as weighty as actual embarrassment and damage.

So if you engage the services of the prostitute and you self report, you get in trouble; if you don’t report it and you’re found out (because eventually they will find out), you get in trouble; if you don’t report it and you’re found out in the press, you get in trouble; if you don’t report it and there’s no press, you still get in trouble for potential damage to the service.

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

And so we end up just as confused — does zero tolerance means that every transgression of this type will have a penalty, but not all transgression of this type is a firing offense?  And if that is so, wouldn’t that make this a flexible zero tolerance plus?

Domani Spero