By Patricia H. Kushlis
Today’s Post: Round 4
It’s been just over a month since I last wrote about Joan Wadelton’s ongoing battle with the State Department’s Bureau of Human Resources. Since then her struggle against the department’s “cover-up at any cost” has continued unabated. Not only – it turns out – has HR blocked investigations by its own Office of Inspector General (OIG) but it derailed an outside investigation by the Office Special Counsel as well.
Following years of abuse by HR that stymied her previously successful career, Joan filed three grievances with the Foreign Service Grievance Board (FSGB), citing irregularities in the reconstituted promotion boards that reviewed her file in 2003, 2004 and 2005. HR claimed that she was not competitive for promotion despite the fact that during those three years she (while working for then-Senator Joe Biden) created the State Department’s Congressional Liaison Office on Capitol Hill, was one of the first State Department officials on the ground in Iraq and was the first Iraq advisor to the Under Secretary of State for Economic Affairs.
The FSGB’s response was to order State to reconstitute six promotion boards (two each for the years in question). These boards were reconstituted in 2006 — and HR claimed that each ranked Joan at the bottom. She contested these results and in 2010, the FSGB rendered an opinion that all six of the 2006 boards were so severely flawed that no determination could be made as to Joan’s promotion status.
Despite this finding, the FSGB ordered State to reconstitute six more boards — without mandating safeguards to ensure against the same or similar irregularities.
Joan, at that point trusting neither the FSGB nor HR and giving up hope for fair treatment from either based on the previous record, decided not to wait for the results of the newest six boards; so she moved directly to the federal district court. The results of the newest boards were produced by State in 2011 after Joan's case was already in federal district court. The results were identical to the improbably low scores of the 2006 boards. The score sheets — purportedly from the members of the 2011 boards that HR produced to bolster its claim that Joan came in at the bottom every time — show clear signs of tampering.
Based on these questionable documents and corrupt processes, State fired Joan in December 2011.
Joan’s case is currently in federal district court waiting for the ruling as to whether the judge will grant Joan’s discovery request which would allow her to see the original 2011 score sheets and to interview members of the boards who allegedly produced those score sheets. State has made every conceivable argument (and several inconceivable ones) to deny Joan's attorneys access to both.
In fact, State has spared no efforts to beat back Joan's lawsuit. For example, the judge ordered that no motion in this latest round of filings should exceed 15 pages. She made it clear that a litigant producing a motion longer than 15 pages would forfeit that round to the opposing litigant. Joan’s legal team — taking the instructions of this senior judge to heart — made Joan’s first such motion 14 pages long and the second one 10 pages. And State? Well, State came in with a 27 page motion — nearly twice the mandated length.
HR Highjacks Joan’s Office of Special Counsel Investigation
The Office of Special Counsel is a tiny agency created specifically to investigate whistleblower complaints. In the latter part of the Bush Administration, the OSC was a troubled organization. The political appointee who headed the agency was under fire from Congress, NGOs and the press for systematically refusing to investigate all manner of complaints. His staff was — to put it kindly — also underperforming. It was against this backdrop in 2008, that Joan asked the OSC to look into HR fraud regarding her 2006 reconstituted promotion boards.
Perhaps because of its own internal turmoil at the time, the OSC’s investigation of Joan's claims was poorly managed and inconclusive. This weakness may also account for the OSC’s capitulation to State’s demand that it, State, be allowed to supplant OSC involvement in key aspects of the investigation. Or the reason may never come to light.
In 2008, State refused to allow OSC investigators to interview members of the 2006 reconstituted boards – outside and impartial investigators who could have shed light on the many irregularities in the conduct of those boards. Instead, State insisted that State HR and Legal Advisor officials — rather than OSC staff — handle the key witnesses and produce the critical documents. As a result, the very HR officials against whom Joan had made accusations were taking and processing evidence that might have proven their own wrongdoing.
Sound like a Grade-B movie? Well it’s not.
Documents obtained from the OSC under a Freedom of Information Agency (FOIA) request reveal communications between State and the OSC in which State was negotiating with the OSC to ensure – apparently – that the OSC had as little contact as possible with any witnesses in particular or the investigation in general.
Here’s a telling example, the record of conversations in July 2008 Download OSC-State in which OSC attorney Darshan Sheth notes that he and State Department attorney Paul Veidenheimer “agreed that OSC will submit written questions + the bd members will provide answers + swear to the truthfulness of the information.”
In other words, that the OSC — having relinquished its normal role of interviewing witnesses in its own investigation – was to give State a questionnaire for the witnesses, which State would then process. This was because State — as Sheth noted in an e-mail to Joan’s attorney — had “vigorously resisted” OSC in-person contact with potential witnesses.
In a second document, Sheth notes that he “called State attorney David Huitema and that “Huitema said State Dep’t wants to discuss alternatives to full interviews, perhaps signed affidavits or Q+A’s attested to by Sel. Bd members.” That would have been affidavits produced inside the State Department and processed by HR and Legal Advisor officials. Those very same HR officials who, of course, were the targets of the investigation Joan had asked the OSC to initiate.
Remarkably, attorneys in State’s Legal Advisors Office went along with this spectacular conflict of interest –seemingly to keep outside investigators from talking to witnesses who might have contradicted the results of the six suspect 2006 reconstituted boards.
So What Happened When HR Investigated Itself?
For various reasons the 2008 OSC "investigation” focused on just one of the six 2006 boards. Each of the six members of that board allegedly filled out a questionnaire produced by the OSC (at State direction and processed by State) regarding their service on the board.
So what did the six 2008 questionnaires show — two years after the board had met?
One board member who knew Joan wrote in his questionnaire that he had given her the highest score. Four other members who did not appear to recall her had responses that one might expect after such a long time, ranging from “Joan who?” to “I don’t remember much about it” to “What board?”
Then we come to the sixth board member — Lindamarie Koengeter. Her 2008 questionnaire Download LK-OSC revealed a clearer recollection of the proceedings than the other four board members who did not know Joan. Although Koengeter seemingly did not recall Joan either, she claimed to remember ranking her in the lowest “fourth quarter” of candidates.
Seems pretty straightforward. Well not really, because just a year later in Koengeter's 2009 oral testimony at Joan' FSGB hearing when Koengeter was being questioned by George Chuzi, Joan's lawyer and Ira Jaffe was a member of the FSGB panel that heard Joan's case (two excerpts are included in Download LK-FSGB), multiple contradictions emerged and Koengeter's memory of the proceedings in general and Joan in particular, deserted her completely.
For example, in her 2008 OSC questionnaire, Koengeter seems to be saying that Joan’s file lacked the commendable attributes of other candidates. Perhaps most striking is Koengeter’s apparent belief that — while other candidates had been in “challenging working environments” — Joan had not. This is puzzling because Koengeter would have seen Joan’s 2004 performance review covering her initial service in Iraq where she was one of the first handful of State Department employees on the ground in 2003. Part of that performance review reads as follows:
Joan has overcome wartime conditions to put in place measures that ensure that the U.S. government and its policymakers will have crucial economic data. She has taken on tough jobs that others might not want. Traveling to Fallujah to meet with the commander of the 82nd Airborne, she put together a civilian-military team in an effort to integrate economic and other activities there. Fallujah has subsequently proven too tough a case for this alone, but then-CPA Deputy Director of Operations (a retired Army Lt. General) said publicly that her willingness to face the dangers of Fallujah effectively shamed some others into getting out into the field.
If that’s not challenging, please tell me what is.
However, Koengeter, by the time of her 2009 testimony before the FSGB, could not remember if any candidate at all — Joan included — had served in Iraq.
From that point, it gets even stranger. When asked at the 2009 FSGB hearing how — given her memory lapse after the certainty of her responses in the 2008 questionnaire — Koengeter knew that she had given Joan a low mark — she testified that the women under consideration were not as competitive as the men.
Koengeter did not, however, have any memory as to why she reached this conclusion, since she was unable to remember the files of any of the candidates, male or female. So is it possible that the women’s files were distinctly less competitive? Of course it’s possible.
But given that talent is pretty evenly distributed throughout the State Department, and that female entrants into the Foreign Service must be as qualified as the men, it seems improbable. Finally, if Koengeter were so struck by this unusual gender disparity in terms of performance and promotion, why didn’t she mention it in her 2008 questionnaire?
I wrote last summer about the State Department’s continuing “glass-ceiling.” Koengeter’s incorrect observation about differences in competitiveness between men and women in the Foreign Service might have been – or might still be – useful in further exploration of this continuing issue.
Then there are questions about how Koengeter really did rank Joan when she sat on the 2006 reconstituted board. Another panel member — the only other person in the room when Koengeter reviewed and scored the candidate files — testified that both he and Koengeter gave Joan the highest scores.
Moreover, Koengeter herself contemporaneously questioned the final candidate rankings from that 2006 board. See the e-mail Download LK-HR) in which she asks HR official Jacquie Smith “this list (of candidate rankings) has a couple of surprises in it — was this done on an average?” (The record of Joan’s case doesn't show that HR answered Koengeter’s question.) Why, then, did Koengeter question the final rankings? Was it because both she and the person with whom she reviewed and scored the candidates gave Joan high marks? Thereby making the final score sheet HR provided with Joan ranked at the bottom, mathematically impossible?
Even a single top ranking from only one member of the panel in and of itself puts Joan’s bottom ranking into question. And testimony exists that shows at least one panel member – regardless of Koengeter – ranked her highly.
In that same e-mail chain, HR official Lachelle Washington informs Koengeter and other panel members that their panel was "completed today, Wednesday, May 3, 2006." A peculiar example of HR's ability to predict the future since the final candidate ranking document (see the 2006 Board Report Download 2006boardreport) is dated April 26, 2006 — eight days before Washington declared the board had finished its deliberations.
(All final reports of those six boards were addressed to HR official Robert Nolan, who doesn’t seem to have been paying adequate attention to the work of his staff at the time since three of the six boards in question had not met by the dates shown on the final reports corresponding to them.)
So What to Make of This Conundrum?
Something is wrong with this picture. Did Koengeter honestly remember giving Joan a low score as indicated in her response to the questionnaire for the OSC? Or did HR helpfully formulate the responses for her? And what about Koengeter's apparently unanswered e-mail to HR questioning the candidate rankings on the formal panel results reported to Robert Nolan? It’s a mystery — but one demanding further examination. The documents I have are linked to above and included in a list at the end of this post — take a look and decide for yourself.
Why is the Derailing of Joan’s OSC Investigation Important…
After all this time?
Most likely because it demonstrates an absolute determination by several offices in the State Department to shield HR from allegations of wrongdoing. While State’s OIG has consistently protected HR from internal investigations, including the deflection of at least one investigation by an external entity — a separate government agency such as the OSC which was created to help whistle-blowers — takes the question of a cover-up to a much higher level.
The willingness of State’s Legal Advisor to allow an investigation by an outside entity to be handled by the very people that are being accused of wrongdoing, is nothing short of a conflict of interest. As can be seen in the documents, State’s attorneys not only allowed this — they apparently worked to make it happen.
Unfortunately, in the four years since Joan went to the OSC, nothing has changed. State’s Legal Advisor staff is currently working with HR and the Justice Department to defend HR’s questionable documents and shenanigans in federal district court.
That simply should not be happening.
But it is. And inevitably the question arises — how many other outside investigations have been derailed by State officials to cover-up HR abuses? As with the many other circumstances that have arisen in Joan’s case alone, she cannot be the only person affected by this abuse of power.
I will say again what I have said previously — why are my tax dollars going to fund vendettas, corruption and cover-ups at the State Department?
Why is this allowed to go on?
The List of Documents Referenced in this Post:
Score Sheets – http://whirledview.typepad.com/files/joan-score-sheet-3.pdf
2006 Board Report – Download 2006boardreport
Sheth-Viedenheimer July 2008 conversations – Download OSC-State
OSC Questionnaire – Download LK-OSC
Koengeter e-mail to HR/Smith questioning final rankings – Download LK-HR
2009 Koengeter Oral Testimony (two excerpts) at Joan's FSGB Hearing –Download LK-FSGB