By Patricia H. Kushlis
See November 17, 2010 Update below
Last March, the State Department’s Office of the Inspector General (the Department is still without an Inspector General since Cookie Krongard left the building under a cloud during the Bush administration) signed off on the results of its investigation of the “integrity and fairness” of the Foreign Service Selection Board Process between 2004 and 2008. This OIG investigation began in July 2009, and ended in October 2009.
The original task - as assigned to the OIG by the Under Secretary for Management – was to investigate the integrity of the process from top to bottom. The OIG, nevertheless, managed to get the job whittled down to an investigation of the system as it applies primarily to Class One Officers and the Senior Foreign Service with a few paragraphs dealing with Foreign Service Specialist complaints and implications of Foreign Service expansion thrown in.
On the surface, the report begins as a total white wash. Its first key judgment concludes that “the processes by which annual Selection Boards promote, low-rank, and award Foreign Service personnel are fundamentally fair and trustworthy.” If you stop reading there, you’ll undoubtedly conclude that all’s right in Foggy Bottom’s Human Resources world whether the bottom is visible through all the murk obfuscating the system’s operations - or not.
Well, read on.
In the report, the OIG points out that the process by which the Office of Human Resources handled the promotion system was largely contained in the heads of the staff who worked there. No manual or set of instructions existed that established in writing the complex tasks undertaken, no records were kept of Selection Board deliberations, and no procedures existed for handling the operation of Reconstituted Boards. Since less is likely known about reconstituted boards - a part of the grievance process - I’ll begin with them. Pay special attention to the sentences I’ve highlighted below.
Here’s the OIG on reconstituted boards:
“A Reconstituted Board is convened if the (Foreign Service) Grievance Board directs such or when a candidate was not properly reviewed due to administrative error (e.g. incorrect skill code, etc). Membership on a reconstituted board comprises solely Foreign Service employees serving in Washington, plus a public member. The five or six members meet for a single day to review files of four officers who were just above and three just below the line for promotion during the year for which results were contested by the person under consideration. The file of that candidate is added to the mix. The identity of the person who is the subject of the reconstituted board is not revealed to the board that rank orders the eight files. If the officer in question is ranked among the top four, he/she is recommended for promotion; if not, the process is closed. Those recommended continue through the vetting process. HR/PE staff said that that there are many reconstituted boards a year, sometimes more than one such board to consider a single candidate. HR/PE does not keep statistics on reconstituted board’s decisions.”
Furthermore according to the OIG:
“Unlike reconvened boards, there is no regulation in place that describes the conditions that cause a reconstituted board to be formed, its membership, purpose, or the outcome of the recommendations. HR/PE has created written instructions for its internal operations, but acknowledged that current regulations do not include any information about reconstituted boards. As the existence and outcome of a reconstituted board affects promotion considerations and recommendations, it should be fully disclosed in Department regulations.” (This is the basis for OIG’s recommendation 9.)
Is the OIG saying that while there are admittedly no regulations governing reconstituted boards, there were in fact "instructions for (HR's) internal operations?" But read carefully -- these "instructions" apparently don't cover the most basic element of such a board -- how many people sit on it. Are there five or six? Not an inconsequential detail. In addition, what does it mean to say that there are “many” such boards each year? What is that number and why was it not specified? Presumably reconstituted boards signal problems with the system or its employees -- yet HR apparently does no analysis of them. Nor is it clear why the outcomes of the “many” boards held each year cannot be tracked.
As I’ve noted in previous “Broom” and other WV posts on HR’s spotty stewardship of State’s Foreign Service personnel system, chaos has been the order of the day in the conduct of the Reconstituted Boards since at least 2004. The March OIG report substantiates my contention with its finding that no regulations existed to govern the system between 2004 and 2009 and recommends that HR fix the problem. I wonder whether this failure existed before 2004 as well.
The problems with reconstituted promotion boards should gain a more public profile when the Foreign Service Grievance Board publishes its decision in a case that came before it last year. In it, the grievant claimed significant irregularities with six reconstituted boards. The Department's case was chiefly that HR had in place solid procedures that it used when processing the grievants’ boards -- a clear contradiction of the OIG's finding above that HR's apparently secret "internal instructions" are a shambles and that no regulations exist.
The Foreign Service Grievance Board found unequivocally for the grievant -- holding that all six reconstituted boards were defective for various reasons. These included that the results of three of them had been reported out before the boards were held, the reconstituted boards' failure to meet together and confer about candidates' files, as well as confusion about whether or not board members had certified final candidate rankings and more.
One must wonder how six out of six promotion boards could exhibit such severe problems -- was it incredible sloppiness, grotesque incompetence -- or something much more?
November 17, 2010 Update:
As it turns out, the Foreign Service Grievance Board returned this case to the Department and mandated HR to assemble six more reconstituted boards – only this time to handle the process correctly. HR -- undaunted by findings by both the OIG and the Grievance Board that its procedures are severely irregular -- claims that the task – something one might reasonably expect to be completed in six weeks – will take a minimum of six months. In addition, HR announced that the grievant – who it maintained was ranked last six out of six times by the original reconstituted boards (regardless of contradictory witness testimony and other evidence) - has been ranked at the bottom again in two new reconstituted boards. Then add in a board that HR reconstituted on its own last year in a bizarre effort to blot out an aggregation of damning evidence, then HR would have us believe that this grievant has been ranked last by nine out of nine reconstituted promotion boards.
That is, nine separate boards composed of nine separate groups of people, evaluating nine separate baskets of files over three years of performance reviews in light of differing functional and conal criteria all reached the same conclusion. This stretches credibility. The process itself is too subjective to make such results believable. And as already shown, there are various ways promotion boards have been and can be compromised (as the March OIG report and other accounts indicate). The most common word I’ve heard used over the years to describe promotions in State’s Foreign Service is “crap-shoot.” Perhaps playing a game with loaded dice is a more appropriate analogy.
Where’s the assurance that this will get fixed and that a clean up is underway? Sadly, the same HR officials responsible for the mess remain in place and I, at least, have seen no evidence that the OIG recommendations for developing and implementing reconstituted board procedures have been implemented.
Whatever it was, the State Department is likely to be called upon in the near future to explain itself to a federal judge and the Justice Department, which represents agencies in appeals in federal court.
Possible Hanky-Panky with the Promotion Lists?
Yet, what is as troubling, if not more so – because it annually affects the careers and lives of every Foreign Service Officer -- is the OIG’s discovery of possible hanky-panky in HR in the rank ordering of candidates by the annual Selection Boards that considered all Class One (GS-15 equivalent) and Senior Foreign Service Officers for promotion to the next higher grade between 2004 and 2009.
Not only are the Boards’ deliberations made to determine promotions to higher grades (see Appendix 4 p. 39 of the report) but also these Boards have the power to determine whether an officer remains in the Foreign Service or has his or her career ended – planned or not.
Here is what the Inspection Report stated:
“At the conclusion of the (promotion) board deliberations, each member is supposed to sign the transmittal memoranda and lists documenting the board’s decisions. Several former board members asserted that HR/PE remitted lists to the Director General absent that board member’s certification or with results at variance with the member’s recollections. Notes taken by board members deliberately are destroyed after a board is dismissed. Thus it was not possible for the OIG to verify to what extent there may be problems in this regard. In some instances, board members may have returned to overseas posts or otherwise be unavailable when lists and reports are in final form. (OIG recommendation: HR should certify that the results of each selection or other performance board have been signed or initialed by each member of the respective board before that board is dismissed.)”
The report continued:
“OIG is aware of instances in which board members were alleged to have either improperly removed documents or attempted to introduce information not contained in a candidate’s record. Such actions would be contrary to the precepts.”
The OIG report states that “several former board members” assert that the board member certification of the process was irregular or that these board members’ impressions of the results (as announced) were different from what they recalled as having voted. Since all records were deliberately destroyed by HR couldn't there possibly still be traceable e-mails sent by and perhaps within HR? Why didn’t the OIG order this next step? And why did the OIG decide that these first- hand accounts the were not worthy of further investigation?
I can understand the importance of HR keeping personnel deliberations private for the sake of the individual candidates involved, but, on the flip side, wouldn’t the preservation of Selection Board records be a wise measure to address allegations such as those in this report? And doesn’t OPM have regulations that require federal agencies to retain personnel records for a certain number of years? Or just might retention of such records serve to demonstrate that the suspicions mentioned in the report are justified?
How many are "several?"
Just what did the OIG mean when it said that "several" -- out of 23 people interviewed -- had doubts about the certifications or authenticity of the final published results of the boards on which they had sat? Did the OIG not find them to be credible witnesses? All were Senior Foreign Service officers in good standing -- people at or near the peak of the career hierarchy, and it's hard to imagine -- given their likely responsible leadership positions in the Department -- that they suffered from either amnesia or dementia.
So if we accept that their accounts are reliable, then the burning question is – just as with “many” reconstituted boards cited above, how many are “several?” Why did the OIG chose not to publish the actual number? Because it was high enough to be shocking? By definition "several" is more than two. But how many more? And even if "several" means just three (13% of the total 23) or even five (21%) -- these are not insignificant numbers or percentages. Or was it even higher - say - seven or eight respondents out of 23?
This single sentence about board members questioning published board results should call into question the results of previous years Selection Boards. How far back, I don’t know – but I have a hunch these dubious practices didn’t just crop up in 2004. Why the seeming complacency on the part of State’s OIG not to delve deeper for the truth? Tampering with official government documents or interfering with official government processes are criminal violations of 18 USC 1001. The OIG must know that -- or does it simply not want to open that can of worms?
A promotion system in which even a single part of the deck is stacked is not just unfair but likely illegal - and certainly lacks integrity. It’s like playing craps at a gaming table in a sleazy casino. AFSA should immediately file a complaint with the Department on behalf of its members - if it has not already done so - as well as draw its members’ attention to this career threatening issue. Transparency, in and of itself, is often an excellent way to halt questionable practices. Nevertheless, it won’t undo what’s already been done. That’s why a more thorough investigation that builds on this OIG report is needed.
How many people over how long a time period have been unknowingly hurt – perhaps forced out of the Foreign Service or denied career enhancing positions as a result of what appears to have been tampering with certain promotion lists by HR – or perhaps individuals even higher in the department’s hierarchy?. Check out Appendix V on p. 43 to see whose finger-prints appear on the lists after they leave HR.
Then again, how many other officers who should not have been promoted but were, have profited at their hapless and clueless colleagues’ expense? This is serious stuff. It should not be ignored.
Presidential Award and Senior Foreign Service Performance Pay Issues – OIG Report Gloss-Over
Moving on to the awards system. The OIG report glossed over those pesky irregularities relating to special incentives awarded to a small minority of officers at the Foreign Service’s very senior levels (awards that magnify the income inequalities between the recipients and those at the mid and lower levels of the hierarchy – FSO-1and below - whose lower ranks disqualify them from competition regardless of job performance).
I described the latest Presidential Award anomaly in a post on September 1, 2010 in which I asked the question how former Assistant Secretary for Consular Affairs, Maura Harty, who resigned from the Foreign Service February 29, 2008 and not under the best of circumstances, qualified for a State Department Presidential 2009 Award – the US government’s top honor for its career staff.
I still do not understand how Harty could have been considered for the award since, according to the March OIG report,
“Initial recommendations for presidential awards (based on the candidate’s performance over the previous 3 year period) are made by the senior promotion boards.” “Those recommendations are submitted in alphabetical order for consideration by the Department Senior Review Board” which is appointed by the Secretary of State.” (p. 14)
Yet Harty was no longer employed by the State Department in 2009 and for 10 months of 2008, time periods which I would think should have been required for eligibility for consideration for the 2009 Award. Is there a loop-hole I’m missing here?
The single reason I can see for the OIG’s omission of HR’s – or HR’s superiors - apparent playing fast and loose with this one is that the OIG investigation was conducted between July 15 and October 6, 2009 whereas the public announcement of the 2009 Presidential Awards did not occur until July 2010. OIG, then, needs to stash this irregularity away for future investigation.
Official Recognition of Shenanigans in Performance Pay Already Exists
But what is stranger is OIG’s gloss over of significant performance pay anomalies under HR’s tutelage that occurred during the 2004-8 period and that were in the public record at the time of the OIG investigation. Please explain to me why the OIG stated that it had “detected no anomalies in the performance pay process” (p. 35) in 2008,” when a cohort of newly promoted Senior Foreign Service Officers had taken on the Department through a complaint filed with the Foreign Service Grievance Board and won in a 2009 decision.
These officers, by the way, discovered that HR had secretly refused to consider them for performance pay because they had not served in the SFS for 120 days “at the end of the rating period that would be considered in evaluating their performance.”
This secretive interpretation by HR - as the Grievance Board indicated - had no legal basis, had been concealed from the affected officers and AFSA and had been ongoing for years. To make matters worse, HR gave itself “unilateral control” over the awards process because it could manipulate the officers’ eligibility by timing their Senate confirmations.
And so it goes.
If you’ve read this far into the murky world of the operations of State’s Office of Human Resources, I strongly recommend that you read the March 2010 OIG report. You may find a number of other important items that I have not included here. Meanwhile, I see this report not as a whitewash, but a smoking gun that could and should trigger additional and wider-spread investigations by Congress and the Justice Department into the operation of a too secretive system and its questionable practices that have been on going for years.
This is another in my continuing series of "Broom" posts. Stay tuned.
Links to previous posts on WhirledView about Human Resources Problems at the State Department are found below:
The Broom’s April Check Up, April 16, 2010
Large Broom Still Needed, February 15,2010
System in Need of a Large Broom: Buyer Beware, December 2, 2009
Clean Up Time at Foggy Bottom, March 9, 2009
Favoritism in the Ranks Saga Continues at State, May 27, 2008
Why the AFSA Survey Was Right, February 26, 2008
Problems A Plenty on the Listing Ship of State, January 23, 2008