18 OCTOBER 2024 | THE FOREIGN SERVICE JOURNAL I have respect for the dedicated officials undertaking these cases, but they manage crushing caseloads without sufficient resources within systems that lack the basic elements of due process. The reforms I recommended in 2021 are straightforward. They were not implemented but should be now. Right to Be Heard and Review Evidence. Most antithetical to the basic principles of due process is that employees are not given the opportunity to provide evidence and be heard before department officials make decisions. This not only prevents the department from understanding all the facts necessary to render a fair decision but also puts the employee in the unfair position of challenging narratives already solidified without the benefit of relevant information. In this way, the burden is unwittingly shifted to the employee, who must prove that the department’s conclusions are incorrect, instead of requiring the department to determine that misconduct occurred after hearing all the facts. Also, it is self-evident that the department should not withhold relevant documents (in my case, documents that were the very basis of the department’s case) from an employee. Transparency. State should provide employees with fair and timely notice when they are alleged to have committed In providing the memorandum, the department failed to include its two unclassified attachments (saying they were “lost”), one of which contained cleared talking points on the topic for the mission’s use and the very messages I had shared. It took several months to obtain a copy of those attachments. b Currently, in security clearance and discipline cases, the department collects facts and information, sometimes without informing individuals that their conduct is under review. It prepares its conclusions of fact in a Report of Investigation and then determines whether misconduct has occurred and, if so, what penalty is appropriate. Only after making these decisions does the department allow an employee to offer their own evidence—essentially as an appeal of a decision that has already been made (without the benefit of the employee’s perspective and evidence). The employee is then asked to convince the supervisors of decision-makers in various offices that the offices should reverse themselves, overcoming all the bureaucratic inertia that comes with defending decisions already made. What became clear throughout my ordeal is that we have established systems that do not serve our institution, our diplomacy, or our employees. One might assume that if there had been concern in Washington about my use of a specific phrase at the time of the interview, someone would have raised that concern with me or the chargé right away. That did not happen. Instead, I was not made aware of the department’s concerns until two years later. By that time, I and the other officials involved had left post and no longer had access to our emails except the few we had burned onto disks (for those new to the department, I realize this will seem quaint). I was not informed until 2021—three years after the original media interview— why and how the department, based on its regrettably erroneous and incomplete understanding of the facts, had decided that my use of the phrase was grounds for discipline. b The department based its understanding of the phrase I used on an action memorandum to the Secretary from 2017, but would not provide me with a copy of that memorandum or its analysis of why my use of the phrase might be problematic. I would later learn that the department did not speak to the officials involved in drafting the action memorandum, nor seek to understand the context of our diplomacy or determine whether there were other contemporaneous unclassified documents that used the same phrase. When the department refused to share the action memorandum, AFSA filed a successful unfair labor practice action with the Federal Labor Relations Authority (FLRA). Only then did the department provide AFSA and me with a copy of the memo and agree, as well, to send an ALDAC cable committing to avoid similar future unfair practices. Jennifer Davis in the peace garden the U.S. Consulate Istanbul staff created in appreciation for her efforts to protect them and wrongfully detained colleagues, 2019. U.S. CONSULATE ISTANBUL
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