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
The timelines established in 3 FAM 4400 and the FSGB Policies and Procedures are outrageously long (a minimum of 345 days before the FSGB begins its deliberations on a given case – the final disposition of a case can take years). This fact itself deters employees from attempting to redress legitimate grievances. A Foreign Service career is inherently dynamic, with assignment and promotion decisions changing an individual officer’s circumstances on an annual basis. Yet there is no “fast-track” mechanism for addressing time-sensitive issues. Inherently time-sensitive grievances over promotions and assignments are treated no differently from routine cases pertaining to minor financial issues, with the result that by the time cases are decided, it is often no longer possible to correct the original management errors.
1. Day 1 Grievance filed with HR Grievance Staff1
2. Day 90 Department decision
3. Day 150 Appeal filed with Foreign Service Grievance Board (FSGB)
4. Day 150 Grievant’s first discovery request
5. Day 180 Department response to discovery request
6. Day 210 Supplemental appeal submission filed with FSGB
7. Day 240 Department’s first discovery request
8. Day 270 Grievant’s response to Department’s first discovery request
9. Day 300 Department response to grievance appeal
10. Day 315 Grievant’s rebuttal to Department response
11. Day 345 Record closed2
12. Day 345+x FSGB decision
13. Day 525+x Appeal to District Court
14. Day 525+x+y District Court decision
(1 – Steps 4-8 above which add a total of 120 days (four months) to the process are only necessary because grievants are denied the right of discovery earlier in the process – see Point 6 below. 2 – Unless the FSGB chooses to schedule a hearing, in which case the case wll remain open.)
This lengthy process wastes the resources of offices directly engaged in it (HR/G, AFSA, FSGB), and prevents the Department from making optimal use of officers caught up in it.
Even this timeline, however, understates the problem. It can be extended through multiple rounds of discovery.
Management can disregard deadlines without consequence, and manipulate the process to the disadvantage of the employee. If the Department simply does not issue a decision after 90 days, for example, the aggrieved employee has two choices: (a) await the Department’s decision, however long it may take; or (b) file a “blind” appeal to the FSGB, ignorant of the Department’s arguments. If, after an additional 60 days, management’s decision still is not forthcoming, the employee then loses his/her right to appeal directly to the Board, and becomes hostage to a Department decision that may or may not come.
And then, of course, there are stages of the process with no deadlines at all: “x” represents the amount of time the FSGB can take to issue a decision once the record is closed (this can take months); “y” represents the amount of time the Federal District Court can take to consider and rule on an appeal (this can take years).
6. Rationality: Rationalize the sequencing of the grievance process, to maximize efficiency and to level the playing field
Beyond the sheer length of the process, the sequence of its steps disadvantages the employee and wastes taxpayer resources. The grievant has no right to discovery of relevant information and documents until after s/he has submitted a grievance, after the Department has ruled on its merits, and after s/he has appealed that decision to the FSGB. The rules thus require that a grievant submit the two most important documents of the process – the initial grievance submission and the appeal – with no access whatsoever to documentary evidence and witness testimony relevant to the case.
The Department, which as noted above blurs investigative, adjudicatory and adversarial roles, is subject to no such constraints, and thereby has the aggrieved employee at an enormous disadvantage for at least the first 180 days of the process.
This irrational sequencing often requires grievants to amend their arguments as new evidence is disclosed, preventing them from putting forward the strongest possible case in the all-important first contacts with the Department and the FSGB. It also constitutes an unconscionable waste of resources, both for the taxpayer and for the individual employee.
Evidence might emerge in discovery that strengthens a grievant’s case; conversely, evidence might emerge that convinces the aggrieved employee to drop his/her grievance entirely: by this point, however, the resources of the Grievance Staff, AFSA, the FSGB and the grievant will already have been engaged for six months. Granting both sides a right of discovery from the beginning of the process would discourage frivolous grievances.
It would also strengthen the fairness of the process, and eliminate the need for five of its fourteen steps (see above), shortening the process by four months and saving precious resources.
7. Finality: Empower and encourage the FSGB to take authoritative decisions, which bring cases to genuine closure
As difficult and time-consuming as it is to achieve, even a successful appeal to the FSGB is unlikely bring closure to an individual case. The FSGB lacks authority to grant compensatory monetary damages, and generally refrains from ordering decisive administrative steps. As a result, successful grievants often find themselves right back in the hands of the same HR authorities whose actions caused the damage that started the process in the first place.
Rather than directing a promotion that has been improperly denied, or compensation for a patently unfair performance review, the Board will order the reconstitution of a new Selection Board, or the deletion of the offending review from the officer’s file.
Follow-up action is left in the hands of the HR Bureau itself, meaning at best several more months of ambiguity and at worst a repetition of the entire process. The Board should be granted clear authority to take decisive corrective measures, and encouraged to use that authority to bring cases to real closure. Resolving disputes, one way or the other, and allowing grievants to move on with their lives and careers, should be a top priority of the grievance process.
These are just a few common-sense suggestions and by no means an exhaustive list. Your feedback is essential for building momentum toward coherent reform.