By Joan Wadelton, Guest Contributor
Joan Wadleton 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. Before joining the Department, Ms. Wadleton was an attorney.
I am now entering my tenth year of a legal dispute with the Department of State's Bureau of Human Resources (HR). A complete account of my case can be found at The Troubled State of State: A System Run Amok. In this article I want to go on the record with my own thoughts 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.
My story illustrates a system gone horribly wrong and not just because my efforts to get a fair hearing were unsuccessful over such a long period. Rather because neither senior officials in the State Department or elsewhere in the US government, nor existing oversight mechanisms, have brought my case to a conclusion, nor have they stopped wrongdoing by Department officials.
These oversight mechanisms include:
– the Department of State's Office of Inspector General – with which I raised my concerns three times over a period of years – and which refused to investigate each time;
– the Foreign Service Grievance Board (FSGB) – which rendered a judgment acknowledging that documents produced by HR in my multiple promotion panel reviews were highly irregular – and then sent me back to HR for a repeat of those reviews -- without instituting any controls over HR staff or procedures. This second round of proceedings produced documents that are blatantly fraudulent (see Joan's promotion panel score sheets);
– State's Office of the Legal Advisor – whose attorneys have supported HR's claims in my case in federal court – although they know or should know them to be false;
– the Office of Special Counsel (OSC) – a tiny executive branch agency created to investigate and remedy government whistleblower complaints when the accused government entity will not do so itself. My request for an investigation several years ago came amidst turmoil caused by the then-agency head, who was eventually removed for refusing to investigate multiple whistleblower claims. The OSC's response to my request was so inept that I did not pursue it;
– the Department of Justice – which has represented the State Department's suspect claims against me in federal court – despite having the discretion to tell State to settle; and
– Congress – (the only bright spot in this saga) – which has made repeated inquiries about my allegations to the State Department over many years; however, State rebuffed every one of those inquiries. Congress also commissioned a very useful study by the GAO of the Foreign Service promotion process.
Although the examples I cite of incompetence and corruption involve only HR, the Office of the Legal Advisor and the OIG, there have been multiple reports concerning irregularities in other administrative areas of State. This situation has developed over a long period of time, through multiple Administrations.
Senior political appointees over many years must bear some blame for not enforcing stricter oversight over the agency in which they serve. However, the current state of affairs is largely the fault of entrenched career officials, whose lack of competence and integrity has profoundly damaged the institution.
Correcting this will take the sustained efforts of the Secretary of State and Congress working together – installing specific and permanent mechanisms to ensure outside oversight, changing laws and regulations, restructuring the Department and cleaning house of corrupt employees.
How did it come to be such a mess?
Above all, the current mess is due to a longstanding lack of rigorous oversight -- both external and internal. In addition, State's insistence that it can manage, audit and investigate itself with no outside oversight allows existing problems to persist.
Thus its five-year refusal (until late last year) to appoint an independent, Senate-confirmed Inspector General (IG). During that time, Harold Geisel, the Acting Inspector General – himself a career Foreign Service Officer – proved resistant to investigating allegations of wrongdoing against various career officials.
Unfortunately, this lack of an effective Inspector General under President Obama followed the disastrous tenure of the political Inspector General appointed by President George W. Bush – Howard Krongard. Krongard left following House hearings to investigate allegations by his own staff that he had consistently covered up findings of irregularities.
In addition to refusing to pursue investigations, the OIG has reported whistleblowers back to the very people they make allegations against, ensuring that those same whistleblowers suffer retaliation. And also ensuring that few employees will report management incompetence and corruption to the OIG.
This failure of internal oversight has collided with a Congress that – while it has in fact investigated and held hearings on significant problems -- has yet to force a recalcitrant State Department to make needed reforms.
Add to that the implosion several years ago of the Office of Special Counsel, a last resort for government whistleblowers to report corruption and seek relief (although new management is reportedly working to restore faith in the agency, its credibility was badly damaged).
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.
In recent years, under the failed management of Howard Krongard and Harold Geisel, the OIG has not intervened to stop such abuses. Whether because of gross incompetence, to protect friends engaged in questionable activities or because the OIG staff itself receives awards and promotions from HR, the OIG has allowed HR to operate virtually unimpeded.
Nor do employees have recourse to effective and transparent dispute resolution. For example, the Foreign Service grievance process is structured to work against the employee. Many employee complaints involve problems with HR – which itself adjudicates disputes at the preliminary levels and provides the attorneys who litigate employee grievances for the Department.
HR also hires and pays (at the SES level) the Foreign Service Grievance Board members – who are presumably disinclined to displease HR with large numbers of rulings in favor of employees.
In addition, Foreign Service grievants must overcome obstacles such as a limited right to discovery of evidence (which the Department has access to) and overlong timelines which permit Department management to delay the resolution of disputes. Finally, HR has for years viewed complainants as the enemy and acted accordingly – using the most aggressive tactics against the most minor grievances.
Mediation – which should be a frequent first step to resolve disputes before the employee finds it necessary to file a formal complaint – is rarely used, or offered by HR in a seemingly random fashion.
The Civil Service Ombudswoman is not a labor relations expert from outside the Department, but comes from inside current management. The Foreign Service has no clearly designated Ombudsman, but needs someone with appropriate experience and no previous ties to State to fill such a position.
How to Fix it – Oversight, More Oversight and Structural Changes
Fixing the State Department will require the collaboration of the Secretary of State and State's oversight Committees in Congress.
Secretary Kerry took a good first step in hiring a new Inspector General (IG) from the outside last fall. The new IG must undertake an immediate housecleaning (including within the OIG) to rid the Department of career officials involved in wrongdoing. This does not mean retiring those officials with comfortable pensions and hefty bonuses; anyone credibly accused of wrongdoing must be handed off to the Department of Justice for prosecution. Failure to do so sends a signal that the State Department does not view criminal wrongdoing as a serious matter, and would open the door to future corruption.
Over the longer term, systemic fixes are needed. Guaranteeing independent oversight of the agency – both internal and external – is the key to any plan to repair it. The Secretary and Congress must find ways – including in new or amended legislation – to close any loopholes that allow the State Department to investigate, audit or in general police itself without multiple fail-safes and outside eyes. Following are a few recommendations drawn from my own experiences.
1) Strengthen External Oversight
Congress must take the lead in forcing needed reforms – for they will never come from within State itself. The Senate Foreign Relations Committee and the House Foreign Affairs Committee must bring State's management problems out in the open – including through hearings to highlight and rectify State mismanagement, new or amended legislation and more rigorous scrutiny of senior appointments.
One impediment to Capitol Hill's ability to reform is that key committees do not always have a coherent overview of the problems at State. State employees air their concerns to a broad range of Congressional offices, including the two oversight Committees, representatives and senators from their home states and the states in which they currently reside. This means that employee concerns are scattered across multiple Congressional offices, thereby obscuring the fact that many employees are making identical allegations.
In order to effectively combat this scattershot reporting from State whistleblowers, Congress should establish a bipartisan, staff-level working group – composed of staffers from both the Senate Foreign Relations Committee and the House Foreign Affairs Committee – to meet with State employees on a regular, confidential basis. This would focus reporting of waste, fraud and abuse to the oversight Committees, whose staffs could then work together to compile, analyze and remedy whistleblower complaints before problems reach critical mass.
2) Make Internal Agency Oversight Independent
The practice of allowing career Foreign Service employees to investigate their colleagues must end. Career staff in the OIG should be walled off from the rest of the State Department, on a promotion track of their own.
Contrary to past practice, the Inspector General himself/herself should never be drawn from the career ranks of State. It is unrealistic to expect that a career official in that position could spend 2-3 years investigating friends and colleagues in an unbiased manner and then return to the career ranks. Even if a rare individual managed to do so, the conflicts of interest are so obvious that the OIG has little credibility with the rank and file.
In addition, the current practice of having FSOs rotate into the OIG for an assignment should be prohibited. Once again, this generates an unacceptable conflict of interest, as those FSOs have the ability to shield their friends and colleagues from transparent investigations.
3) Fix Internal Agency Dispute Resolution
State's internal dispute mechanisms are so broken that they impede employees' abilities to use them to remedy problems. Management's willingness to staff those mechanisms with its own people, as well as to draw out grievances and litigation for years to fatigue and bankrupt employees, discourages whistleblowers from taking on abusive or corrupt managers.
State should replace the current Civil Service Ombudswoman with an independent outsider experienced in labor relations. A Foreign Service Ombudsman position should be created and also filled with a labor relations expert from outside the Department. Congress should demand regular briefings from both to ensure their independence and to stay informed of employee claims of abuse.
The Foreign Service Grievance process is badly broken. Reforms will be needed to repair it and to remove structural barriers to impartiality. Responsibility for grievances should be taken out of HR (whose actions frequently result in those same grievances) and placed in the Legal Advisor's Office. Congress should shorten timelines in the grievance process and institute sanctions in cases where the Department misses deadlines.
Routine use of outside mediation before an employee files a complaint would save the taxpayers, the Department and employees time and money. Establishing criteria for the routine use of mediation (with outside labor relations specialists) – would eliminate the current haphazard and infrequent use. Routine mediation would also diminish the current ability of HR to use the grievance process to punish those employees who file complaints.
Finally, the staffing of the Foreign Service Grievance Board must be reformed. No former (or current) State Department officials should be appointed to the Board – the conflict of interest in having such people adjudicating employee/management disputes is unacceptable. In addition, responsibility for the hiring of Board members should be taken out of HR and given to the Office of the Legal Advisor.
4) Clean-up the Human Resources Bureau
State's personnel system has for years been used as a weapon to punish HR's enemies and to reward management's friends and allies. The level of abuse has become so extreme over the last 10-15 years that outside intervention is necessary to fix it. Congress should mandate that the Office of Personnel Management and/or the GAO rotate personnel experts into HR for the next several years to identify and correct problems.
Steps taken could include a review of all current and recent formal employee complaints to identify abuse or irregularities, the drafting of new regulations, establishment of best practices and reporting of malefactors to the OIG or the Department of Justice for prosecution. At the end of their tenure at State, these outside experts would present their findings and recommendations in an unclassified report to Congress.
5) Ensure that the Office of the Legal Advisor exercises more and better discretion in agreeing to litigate cases brought to it by the Bureaus
A disturbing aspect of my case has been the willingness of the Legal Advisor to support HR in its claims against me in federal court – by using evidence that they know or certainly should know to be fraudulent. To avoid this in the future, there must be regular outside review of cases which the Legal Advisor is litigating in federal court – at a minimum of those cases arising out of employee grievances. The OIG is best placed to do this to do this review.
In addition, the Legal Advisor should mandate regular review by his/her senior staff of employee complaints to uncover and address any allegations of wrongdoing by HR, such as missed deadlines, multiple filings by the Department designed to delay resolution and needlessly raise employees' attorneys fees and more.
The failings of three key components of the State Department – the Human Resources Bureau, the Office of Inspector General and the Office of the Legal Advisor – have combined over a long period of time to damage the agency's logistical operations and policy implementation. The American people are paying billions of dollars for our foreign policy. They deserve better than this.