By Patricia H. Kushlis
I have been documenting serious problems with the State Department’s approach to its most precious resource, its human capital since January 23, 2008. These problems, in reality, began well before 2008. This post “Can the Foreign Service Reform Itself?” has been added to the ever lengthening – now nearly book-length – list entitled “The Troubled State of State” affixed to WhirledView’s top left sidebar.
There have been various institutional arrangements established to mitigate the human resources problems at the State Department. Too many of these arrangements are in desperate need of change. One is the pressing need for an Inspector General as Secretary Kerry has recently and rightly stated. Another is the fundamental reform of an institution called the Foreign Service Grievance Board where too often Foreign Service personnel disputes are sent for resolution.
The following recommendations on reform of this board are by an experienced Foreign Service Officer currently caught up in State’s human resources labyrinth. The officer outlines weaknesses of this board and suggests ways they can be mitigated.
As the author rightly points out, “we owe it to ourselves and our country to ensure that, as we promote workers’ rights and respect for the rule of law around the world, our internal governance reflects our values.” Clearly, I think the State Department falls far short. This thoughtful analysis and its recommendations need a considered and careful read:
Fixing the Foreign Service Grievance Process: Seven Simple Reforms
The Foreign Service grievance process, as currently constituted, is crippled by illogical, unnecessarily complex procedures and structural conflicts of interest.
This must change. We owe it to the Foreign Service community to put in place a user-friendly process that resolves disputes quickly, equitably and with dignity. We owe it to the American taxpayer to stop the current system’s massive waste of human and financial resources. And we owe it to ourselves and our country to ensure that, as we promote workers’ rights and respect for the rule of law around the world, our internal governance reflects our values.
Outlined below are seven areas in which the process is out of step with contemporary norms, along with common-sense reform proposals aimed at increasing both fairness and efficiency. It is my hope that these ideas can start a broader conversation aimed at establishing a grievance process that is fairer, more transparent and more efficient.
1. Mediation: resolve cases whenever possible without a formal grievance
In the private and intergovernmental sectors, and elsewhere in the Federal Government, it is common practice to try to resolve disputes quickly and amicably through the intervention of trained external mediators. This strengthens workplace morale by facilitating rapid, mutually acceptable solutions. It also saves money by averting time-consuming administrative proceedings and litigation. State offers no such option.
While the FSGB “encourages the parties to consider and engage in voluntary efforts to settle the case” and offers the services of one of its members to serve as a mediator “[a]t the joint request of the parties,” this offer comes too late in the process to make a difference: after the aggrieved employee has filed a formal grievance with the Department, received an adverse response, and filed an appeal with the Board. If mediation is to work, it needs to be seen as a first, rather than a last resort.
The Department and AFSA should agree on a roster of qualified external mediators, and offer their services to employees upon request as an alternative or precursor to the grievance process. Any costs involved would be more than offset by savings realized through a decreased grievance workload.
2. Objectivity: remove responsibility for initial adjudication of grievances from the Bureau for Human Resources
The Department’s Grievance Staff, which adjudicates employee grievances, sits within the Bureau for Human Resources, which exercises direct responsibility over the vast majority of “grievable” actions and decisions. This constitutes a direct conflict of interest: grievance attorneys who “review” impugned HR decisions report to the same Director General under whose authority those decisions were taken in the first place.
This discourages accountability, and encourages costly and time consuming defenses of even obviously erroneous decisions. Responsibility for the initial adjudication of grievances should be transferred to the Office of the Legal Advisor, or to a special office established under the direct authority of the Secretary.
3. Segregation: Separate responsibility for adjudicating grievances from responsibility for defending the Department’s position
A further conflict of interest is the dual (or even triple) role played by the HR Grievance Staff. The same official who oversees the initial investigation and adjudication of a grievance then turns around and represents the Department when that same case comes before the FSGB. The need to build a case with a view to an eventual defense before the Board represents an insurmountable conflict of interest, which prevents the Grievance Staff from serving as a truly objective finder of fact in the initial adjudication of the grievance. The investigation/adjudication and advocacy functions should be clearly segregated, and assigned to different offices. Ex parte communications between those offices should be strictly prohibited.
4. Perspective: Reconstitute the Foreign Service Grievance Board to eliminate the perception of bias and ensure a broader interpretation of “the Department’s interest.”
The members of the FSGB, while appointed by the Secretary, are recruited by the Bureau for Human Resources, and the Board includes many retired Foreign Service Officers with extensive experience in the HR Bureau. While the Board’s members, individually, may adhere to the highest standards of personal integrity, this practice as a whole, like the placement of the Grievance Staff in HR, perpetuates at least the perception of bias in favor of Department management. Ideally, grievance panels should be composed of distinguished jurists and/or labor relations experts with no direct links to State HR (in most other systems, HR experts are available to the board in an advisory capacity, but do not sit as voting members). Each panel should include an AFSA representative, specifically charged with ensuring that the rights of the grievant are respected throughout the process.
5. Expeditiousness: Shorten procedural timelines, and institute a fast-track procedure for time-urgent cases