Front Office: Exhibit A for Poor Behavior and Bad Management

NDS had this piece up last week If Something Looks Wrong, It Invariably Is. A good must read, especially if you are a consular officer.  One of the anonymous comments from that post said:  "The real problem is the fact that the State Department does not want to enforce its own rules. If you don't believe me, please go to www.fsgb.gov and look at grievance case 2004-061, from Sana'a, Yemen. This one should have been resolved in the grievant's favor at the agency level instead of having been appealed to the FSGB."

We have always been a curious cat; it’s a surprise we still have all our appendages together.  In any case, we went digging up the case from the FSGB or the Foreign Service Grievance Board.  And ta-da – you can read the PDF file of this case here (original word document converted to PDF for accessibility).  Of course, like all cases in the FSGB website, this one is also scrubbed of post names, dates, or the names of the individuals involved (except in one page, where we have a first name as a clue).

The FSGB document made mention that the “Grievant was Chief of the Consular Section at the American Embassy in {Host City}, {Host Country} during the bombing of the {Terrorist Event} and the 9/11 terrorist attacks in the U.S.”  The immediate terrorist event prior to 9/11 was the bombing of USS Cole at the port of Aden, in Yemen in 2000.  It also cited the US attack on Afghanistan on October 8 (2001) when “core staff stayed in the Embassy 24 hours a day for 3 days.”  Further, it mentions Mildred Patterson “[O]n February 9, grievant’s Career Development Officer informed her that Mildred Patterson (Director, CA/EX) was willing to call the DCM or Ambassador to discuss the leave situation, since grievant was now talking about curtailing over the DCM’s micro-management, perceived harassment, and the annual leave controversy.” Are these good enough clues?

So-- from best I could tell this case came about from an EER covering the rating period around 2000-2002. Now, the folks who are Exhibit “A” for poor behavior and bad management here are senior rank career Foreign Service officers (although I won’t be surprised if the DCM is an FS-01 on stretch assignment).  The grievant was an FS-02 Consular Officer, and the controversial Excursion Tour Civil Servant (ETCS) filled-in an FS-03 position, a four-grade stretch position. An FS-03 is equivalent to a GS-12.  This one went from what -- GS-8 to like GS-12? Holy mother of goat and all her crazy nephews! How’d that happen, I wonder?

I should note that no political appointee ever served as US Ambassador to Yemen. But after reading this case -- makes one think – you know, at least bad behavior from political appointees lasts no more than 4-8 years tops; career officers who are bad managers just get recycled from one post to the next. I wonder where these folks went?  Not all Front Office are like this, of course, but this one is so utterly dreadful and not just because of that Superior Honor Award.   

       

Record of Proceedings | FSGB No. 2004-061

Date:  June 8, 2005 | DECISION - EXCISION

Overview:

Grievant, an FS-02 Consular Officer, appeals the Department of State’s denial of her grievance alleging that her April {Year} to April {Year} Employee Evaluation Report (EER) is inaccurate and falsely prejudicial, causing the Selection Board to low rank her in {Year}.  For relief she requests removal of the contested language from the EER, replacement of the low-ranking with a mid-ranking, a reconstituted Selection Board and an additional year of time-in-class (TIC).

Grievant was Chief of the Consular Section at the American Embassy in {Host City}, {Host Country} during the bombing of the {Terrorist Event} and the 9/11 terrorist attacks in the U.S.  The DCM and Ambassador were her rating and reviewing officers.  For security reasons, the Consulate was closed to the public for all but emergency citizen services for most of the rating period.  However, work continued and grievant was assisted in the Consular Section by TDY officers and local staff.  In late August {Year} an Excursion Tour Civil Servant (ETCS) arrived at post to fill an FS-03 position.  She was in a four-grade stretch position with almost no prior consular experience.  Five of the critical statements in the EER concerned grievant’s integration and management of the ETCS and designating an acting head of section.  The other two dealt with grievant’s need to be more responsive and sympathetic to services required by her colleagues.

Grievant contends that her relations with the DCM were tense because of his attempts to micromanage the Consular Section and Front Office attempts to circumvent visa referral procedures.  The situation deteriorated after arrival of the ETCS because, although she had a difficult personality, shouted at other officers, did not follow orders, etc., she had a special relationship with the Ambassador and unrestricted access to the Front Office, where she complained about grievant.  Grievant alleges that the Ambassador assisted the ETCS with aspects of her EER and directed grievant’s successor to nominate the ETCS for a Superior Honor Award, which she later received.  She asserts that though she consulted with the DCM on matters pertaining to the ETCS, she was never counseled on better integrating her into her section.  Grievant asserts that in early January {Year} she requested annual leave in late February.  Numerous times grievant discussed with the DCM naming the newly arrived Junior Officer who showed promise as acting head of section over the higher ranking, but inexperienced and unreliable ETCS, but he offered no guidance.  Later, he conditioned approval of her leave on her designating the acting head first, as well as insisting that a consular officer be on duty during part of her leave (in addition to the Embassy duty officer).

The Department solicited statements from a number of individuals present at the Embassy during the rating period, but chose to rely on and quote extensively from lengthy statements by the DCM and Ambassador in support of their EER criticisms in reaching its decision to deny the grievance.  Despite the fact that grievant’s counseling certificate was not drafted and signed by the DCM until four months after the session, the agency asserts that grievant was counseled on managing the ETCS.  It contends that even if an inappropriate relationship existed between the Ambassador and ETCS, a skilled supervisor would have been able to rise to the challenge and handle the difficult situation effectively.  It discounts grievant’s claims that it neglected to give any weight to statements from colleagues about the ETCS or grievant’s responsiveness to Country Team needs by maintaining that the statements do not support a conclusion that the relationship was not solely professional and that in a previous decision this Board found that a supervisor has a stronger vantage point from which to evaluate an employee’s performance, having knowledge of the broader picture and the impact of employee actions on the organization.

The Board determined that the grievant had carried her burden of proof.  In contrast to statements by the DCM and Ambassador, whether solicited by grievant or the Department, numerous statements in the record offered by Embassy colleagues, staff and local employees, overwhelmingly support grievant’s positions on the issues.  The Board found that the relationship between the ETCS and Ambassador made it impossible for grievant to adjust her management style to better integrate the officer into the unit.  By all accounts, grievant was an extremely hard-working, discreet, nurturing supervisor who provided guidance and training for her staff.  She was placed in an untenable position of supervising an inexperienced, temperamental employee who did not follow instructions and who was unhappy with the work and restricted security environment.  The Department has offered nothing in support of its position that a skilled supervisor would be able to successfully rise to meet the management challenge presented here.

Criticisms of grievant’s non-responsiveness to Country Team visa referral requests are equally unsupported.  Security checks and visa processing requirements changed drastically in the wake of the terrorist attacks.  Grievant could not issue visas any sooner than when authorization was received from the Department.  Once again, statements by grievant’s colleagues were specific in mentioning the lack of understanding by the Front Office in grievant’s attempts to do things right.

Likewise, the Board found criticisms for failure to more timely designate her back-up or more adequate explanations for the delay to be falsely prejudicial.  The DCM never indicated how far in advance he considered reasonable.  Grievant apparently named her back-up and the DCM approved her leave request one week in advance.  It is uncontested that there were numerous discussions on this difficult issue, yet instead of offering guidance, the DCM conditioned approval of her leave on inappropriate demands, which precipitated Department intervention.

The Board was not persuaded that grievant had been counseled on her management of the ETCS, but even were she counseled, the Board would have found the criticism falsely prejudicial because of the special relationship between the Ambassador and ETCS.  The Board held that it was patently unfair to criticize grievant for a situation the Ambassador created and which the DCM allowed to continue.

The Board found that the EER did not meet reasonable standards of completeness, balance, accuracy and documentation.  The rater and reviewer were biased against grievant to the point that they were unable to give a fair and reasonable assessment of her performance or potential.  The Department was directed to expunge the EER, nullify the low-ranking, replace it with a gap memo and mid-ranking, and extend grievant’s TIC by one year.

Related Items:

Foreign Service Grievance Board: Case 2004-061 | DECISION - EXCISION | Date:  June 8, 2005 | PDF

Foreign Service blog:  Jen and Michael Kolodner's Yemen Stories and Pics (2001-2002)

FS Grievance Board Decides on 2007 SFS Performance Pay Grievance

Foreign Service Grievance Board (FSGB No. 2008-040)

HELD: The Cohort Grievants established by preponderant evidence that they were each eligible for consideration for performance pay when at the end of the 2006-2007 evaluation period, they were members of the Senior Foreign Service whose most recent evaluation covered a period of at least 120 days. The Board concluded that the Department’s policy of reading into its regulations an additional unwritten requirement of eligibility – that employees also have been members of the Senior Foreign Service for at least a period of 120 days by the end of the rating period – is not supported by the regulations that impose no time in-grade requirement for Senior Foreign Service Officers who otherwise meet the stated eligibility requirements.

OVERVIEW:

Sixty-eight Senior Foreign Service Officers (Cohort Grievants, the cohort, grievants) collectively grieved a decision by the Department of State (Department, agency) denying them the opportunity to compete in 2007 for performance pay under the Foreign Service Act (FSA), based upon the Department’s unwritten policy that only employees who had been members of the Senior Foreign Service for a period of at least 120 days by the end of the evaluation period were eligible for review. The Cohort Grievants claimed that a plain reading of the applicable regulations made them all eligible for performance pay reviews even though none had been in the Senior Foreign Service for 120 days by the end of the rating period. The Board concluded that, pursuant to the provisions of 3 FAM 2872.2, eligibility for performance pay review requires only that an employee be a member of the Senior Foreign Service at the end of the rating period and that the latest performance evaluation cover a period of at least 120 days, not that the SFSO have been a member of the Senior Foreign Service for 120 days. Since all members of the cohort met these requirements, all are entitled to appropriate relief.

THE DECISION:
The case is remanded to the agency (State) with the following instructions:

1. Within sixty days of receipt of this decision, the Department shall convene an evidentiary performance review for each member of the grievance cohort by an appropriate SFS selection board (one for generalists and one for specialists).

2. For all members of the cohort who are recommended for performance pay, the Department shall convene a Senior Foreign Service Performance Pay Board (reconstituted PPBs) (one for generalists and one for specialists) to review the performance folders of such employees.

3. The reconstituted PPBs shall employ the same standards and precepts as the 2007 PPBs.

4. The Department shall make whole all grievants who would have received performance pay in 2007 had they not been improperly treated as ineligible. The make whole relief will be determined in accordance with applicable law and regulation, including the Back Pay Act, 5 U.S.C. § 5596.

I have converted the FSGB decision in Word document to a PDF file. Read the whole thing here.

2008 Annual Report on Foreign Service Grievance Now Online

I don't know about you but -- every time I visit the Foreign Service Grievance Board website, I feel sorry for these folks. The FSGB website is like a relic from an Internet cold war, frankly in a lot worse state than the SFRC website. All the documents are still posted in MS Word, the search function is not terribly helpful and there is no option to search/browse its pending or resolved cases. I must say that considering the website/social media improvements at State, this one is the poor, poor cousin indeed, and I'm not sure help is on the way. But they are hopeful, writing:

We hope to continue to improve the process by increased use of conferences to better focus issues at earlier stages of the process and decrease unnecessary paper filings, by improvements to our website (which presently is hampered by budgetary considerations), and by reductions in the length of some of our rulings (to enhance the readability of the decisions and better highlight the analysis that is central to our holdings in a given case).

In any case -- in 2008, 57 cases were filed at the FSGB. Majority of the cases were Employee Evaluation Reports (EERs) related. I could not tell from the report how many cases are currently pending, but 53 cases were closed in 2008, disposed as follows:

Agency Decision Affirmed 16

Agency Decision Reversed 16

Settled/Withdrawn 15

Dismissed 6

Terms explained: "Agency Decision Affirmed means that the grievance filed with the Board was denied and the grievant did not prevail. Agency Decision Reversed means that the grievance was sustained in whole or in substantial part. Dismissals were cases in which the Board found it lacked continuing jurisdiction to proceed. These cases included dismissals due to untimeliness, mootness, and lack of subject matter jurisdiction."

The average time for consideration of a grievance, from the time of filing to a Foreign Service Grievance Board decision was a total of 37 weeks.

The Annual Report which goes to the Director General of the Foreign Service and to both the Senate Foreign Relations Committee (SFRC) and House Foreign Affairs Committee (HFAC) reports that “None of the cases decided in 2008 reversed long-standing Board precedent; however, one case established new ground on the legal issue of estoppel. Additionally, a number of themes emerged that are noteworthy.” Excerpts below:

EERs and OPFs
Employee evaluation reports (EERs) and official performance files (OPFs) are at the heart of the Foreign Service promotion and retention system. Of the cases decided by the Board in 2008, almost one-third involved those issues. This is consistent with the Board’s case load in recent years.

One of the more significant EER cases was FSGB Case No. 2008-006 (December 31, 2008), in which the grievant alleged that he had never been counseled on supposed deficiencies that ultimately led to his being denied tenure. Counseling, confirmed by a written counseling statement, is an explicit regulatory requirement for untenured employees. Although the agency invalidated a key counseling certificate that had been provided after the rating period, it nevertheless found that the rater had provided sufficient oral counseling, and that written counseling during the prior rating period had given the grievant adequate notice that he needed to improve certain skills. The agency also found that the tenure board had drawn its own conclusions with respect to one area for improvement not noted by the rater, and that it could do so without providing counseling.

The Board reversed the agency decision. It found that written counseling outside the rating period did not fulfill the Department’s obligations under the regulations, and that the claimed oral counseling was not proven to have, in fact, taken place. The Board also confirmed its earlier decision that the requirement for counseling applies to agencies as a whole, not just the rater and reviewer, and that the tenure board could not make decisions based solely on its own conclusions regarding deficiencies if the employee had not been counseled on those deficiencies.

A recurring theme in the EER cases was a claim that the EER contained alleged inaccuracies, omissions, errors, or information of a falsely prejudicial character which was or could have been prejudicial to the member. Those claims were often coupled with claims that the EERs had not been processed according to the regulations. In a number of these cases, the challenged material had already led to the employee being low ranked. Several of the cases involved claims that an employee had not been promoted because documents were missing from the employee’s OPF. The Board looks at the circumstances of each case to determine the potential effect of the missing documents.

In FSGB Case No. 2008-036 (November 20, 2008), the Board found that the omission of a Superior Honor Award from an employee’s OPF had not disadvantaged him in consideration for promotion. However, in FSGB Case No. 2008-027 (November 17, 2008), the Board found that a missing Meritorious Honor Award and narrative may have been a substantial factor in grievant’s failure to be promoted or receive a meritorious step increase. That case was remanded to the agency to show that grievant would not have been promoted or received a step increase had the error not occurred. Similarly, in FSGB Case No. 2006-036 (March 17, 2008), the Board found that a missing evaluation may have affected the grievant’s chances of being promoted.

One case did established legal precedent, perhaps of particular interest to IT specialists:

FSGB Case No. 2007-034 (July 30, 2008) was an unusual case that established legal precedent when the Board found that the agency was estopped from denying the grievant incentive pay under the unique circumstances present. The grievant was an Information Technology Specialist who made the decision to accept an employment offer that involved a significant pay cut from his previous salary, only after having been assured by the agency personnel specialist that he would be receiving a 15% incentive payment in addition to his base salary. After the grievant had left his former job, moved his family overseas, and been employed for a month, he was advised that he was not eligible for the incentive pay, since he had earned the certificates needed to qualify before he was employed, rather than after. The Board found that all the elements for equitable stoppel were present: misrepresentation by someone who had actual authority to make the salary offer; good faith reliance by the employee; and financial detriment resulting from that reliance. It also found that the case was distinguishable from Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), in that the payment did not violate law or regulation. The Board sustained the grievance and the agency was directed to pay the allowance retroactively.

Related Item:

• Foreign Service Grievance Board - 2008 Annual Report (pdf)
  Alternate report location (click here)
  
• AFSA's Guidance for filing a Grievance

Update 10/09/09: It looks like this report had been pulled down and is no longer available at the FSGB website. Click here if unable to locate the file at the FSGB site.