This was the first Graffitti-gate application….
Carman Lapointe, in her capacity as Under-Secretary-General of OIOS, who was personally implicated in continuing the retaliation experienced by Ms. Nguyen-Kropp and Mr. Postica, and who refused to take any action to even suspend any of the OIOS staff whose unethical behavoir was laid bare in that judgement, decided that I should be investigated for ‘harassment‘ for this. The comment which was clearly an alteration to a previous (and very questionable) statement, was written on a whiteboard inside the OIOS office. It was a clear reference to one of the findings of fact in the Nguyen-Kropp & Postica judgement that had been reported by Associated Press. It was in a place that was inaccessible to anyone who was not an OIOS staff member and it was removed after a few minutes.
So, the first question is “Does this rise to the level of ‘misconduct’?” I am inclined to think no it doesn’t. It’s far too petty. I also think that anyone with half a brain would recognise this one was a poltically dangerous hand-grenade with a very loose pin……
“Ethical Dan” Wilson was worried about what might happen to him if he was not seen to be sufficiently “loyal” to the party line, so he not agree, and clearly Carman “in it up to my eyeballs” Lapointe had a vested interest in silencing any discussion of the case. Being the Under-Secretary-General, she was the decision-maker, so she decided it was misconduct and should be investigated.
The UN saw nothing amiss with taking this seriously. The enthusiastic imbibers of the UN kool-aid certainly saw nothing even vaguely retaliatory in it, or suspected the merest hint of bias in any way.
The consensus of opinion on Planet Earth, however, is slightly different, because absolutely everyone who has heard this story has recognised that there is an element of farce about it. When I told anyone about it, the most common reaction was, in fact: “Are you [expletive deleted] joking?”
Of course, most of my friends and associates come from a narrow group of people. They are all:
- responsible adults,
- sober and of sound mind,
- with real jobs and real responsibilities,
- professionally accountable for their action, and
- of sufficient maturity is such that they are disinclined to behave like kindergarten children,
In fact, in most if not all cases they are ALL of the above, which may explain why none of them do not work for the UN….
So, I changed the comment on the whiteboard. Big deal. Lapointe had spent the last 12 months ignoring all the grief and stress and retaliation going on under her nose and at last she had an opportunity to get her revenge for going over her head when she threw my misconduct complaint in the bin. She could hardly wait. She wasn’t prepared to act on Michael Dudley’s complaint – that would put him on the hook, and that might not look too clever, so Ethical Dan gave her a let-out so she could decide that this was ‘harassment’.
Great, but the precise legal question is: Was this ‘harassment’ within the meaning of ST/SGB/2008/5, para 1.2?
Interesting question, and of course to answer that, it might help to refer to the wording of ST/SGB/2008/5, para 1.2.
The alleged ‘harassment’ was a reference to the Nguyen-Kropp & Postica judgement which – as far as the UN Secretariat was concerned – was the most salacious and widely read document since ‘Lady Chatterley’s Lover’ was published in paperback. I have no doubt that Michael Dudley would have been “offended and humiliated” by the judgement- but there was not a thing he could do about it.
Second that judgement had been reported in an Associated Press news report, which was re-printed in Heaven only knows how many print newspapers around the world, was available free on (by my count) fifty-five different websites – and would therefore have been read by Heaven only knows how many millions of people around the world. I have no doubt that Michael Dudley would have been “offended and humiliated” by that too – but there was not a thing he could do about that either.
Then, while this was the top of the agenda for discussion in every bar and coffee shop in Midtown where there were more than three UN staff members gathered….. there was a satirical comment written on a whiteboard in the OIOS office that hardly anybody saw.
So here is the question; Could the comment on the whiteboard reasonably cause Dudley to be “offended and humiliated” – or was it just a repetition of information in the judgement and/or the newspaper articles that had already come out?
In addition, given all the hot air generated by the Secretary-General talking about ‘accountability’ in the United Nations: Can someone be offended or humiliated by a reference to their own misconduct? When considering the answer to that question, the question is whether, having had his own misconduct made public for all the world to read about, it was reasonable for Michael Dudley to be “offended and humiliated” because of a comment written on a whiteboard that was only there for a very short time and could not have been seen by more than a dozen people at the most. There was a question of proportionality involved here!
Even that obscures an interesting legal question: Can it be “misconduct” for someone to simply repeat what a Judge has already found to be a Finding of Fact? When considering the answer to that question, please try to remember that we are not living in Nazi Germany, Stalin’s Russia or even North Korea. This is a question being posed inside the United Nations Secretariat itself, that paragon of democracy and Human Rights……
As Anders Kompass was later to learn, to his cost however, Carman Lapointe (who does not have a University degree but rejoices in having a Certificate in Business Ethics) was never concerned with such pesky legal trivialities.
I did not know it at the time but she had already decided I was guilty even before a panel had been appointed.
At the time, however, the legal question was whether or not the decision to appoint a panel to investigate that was reasonable or legal? Or was it retaliation, just like the action taken against Nguyen-Kropp & Postica?
By this time, I was truly and royally unimpressed with the entire fiasco that passed for “management” in the UN so I decided it had to go to the Tribunal. I did that because, at the time, I still had some faith in the legal system.
In retrospect, I would have been better off having faith in Santa Claus…..
First Hurdle; the Management Evaluation Unit
First I went through the process of referring the matter to the Management Evaluation Unit, a singularly pointless exercise as they replied that they could not evaluate the decision because – despite the name of the unit – they could not evaluate a management decision to appoint a Panel because that decision was not a decision within the meaning of the word “decision” for the purposes of the MEU. Yes. Thank you for that…….
Was it worth taking any further? Under the UN system, I knew that this was a “preparatory” decision and that I should have been a good little boy and just waited till the Organisation wasted as much time and money as possible before any legal rights actually crystallised, but so much happened in the following weeks that it was ridiculous; not only was I being investigated because this insignificant comment was being considered harassment, but I had been falsely accused of assault, my attorney’s letter had not even been acknowledged and although I did not know it at the time, I had been accused of acting in a threatening manner by walking past Dudley’s office on my way to have a cup of tea, and then there was the ultimate insult: Dubinsky wriggled out of making a decison on my retaliation application.
It was clear to me that senior staff of the UN cannot be trusted to use common sense, and I was not inclined to keep taking this nonsense.
The real question to be addressed was whether the Tribunal would intervene in a situation that I considered to be a very clear example of “Wedensbury unreasonableness” – something that is probably the single most basic fundamental principle of Administrative Law.
So, on 20 March 2014 I filed an Application with the Tribunal
Then the Secretary-General (“the Respondent”) replied;
Their reply can basically be summarised as no, no, no, no, no, no, no, no, no as they insisted I was just completely wrong in everything.
The Respondent’s primary argument was to try to have the case dismissed on grounds of receivability. (Remember the response from the MEU?) No surprises there. They always try to have cases dismissed (and most of the time they succeed!)
In dealing with the FACTS, the Respondent recited their version of events, which was fine. They tripped over themselves a couple of times and conveniently ignored a few minor hiccups – such as how I was interviewed in respect of a misconduct complaint two days before the misconduct complaint was actually received, but never mind. The depiction of my having spoken to Eddie Yee was represented as though I was threatening him. (Not quite how I recall the incident, which was about it being a lynching of me) but never mind.
It was very clear that I had told the Director OIOS/ID that I welcomed the opportunity to be charged with misconduct over this. (para 15) … Why would anyone do that?
It should not require the brains of a rocket scientist to work out that of I was happy to be charged with ‘harassment’ for this…… there was a reasonable prospect of my having a shed load of evidence I could throw in to my own defence….
Be that all as it may; there are two sides to every story and I was quite willing to argue the facts just as soon as I was given the opportunity.
Pleadings
There are some interesting pleadings in respect of the decision to investigate me being based on what Dan Wilson believed (para 26) , when it was not his decision, but never mind. All of that could be argued later.
What is particularly interesting, however, is the Respondent’s position on the two panel members having a Conflict of Interests. (Paras 29-33)
Ignoring my pleadings about there being a very obvious perceived conflict, the Respondent argued that I had failed to show there was a risk that the USG would seek to influence the panel members.
Hold on a minute. If I believe there is a conflict, and I can show
(1) that both the panel members knew the (allegedly) aggrieved party; Michael Dudley. Whether they loved him or hated him is irrelevant, they knew him, and had worked with him for over 5 years – but they did not know me. How is that not a conflict?
(2) that both the panel members reported to Carman Lapointe the Under-Secretary-General, and she was named – and personally implicated in improper and unethical – in the Nguyen-Kropp & Postica judgement so she could not be entirely impartial in any decision on something that drew attention to that judgement….How is that not a conflict?
(3) I was an investigator in OIOS, I had been reported for misconduct by someone in OIOS and I was being investigated by two other staff members in OIOS. Win, lose or draw; that will simply never pass the sniff test….
Forget all of that; the Respondent’s argument was that there was no conflict of interests because I could not show that the USG might have tried to influence the panel members.
In the real world, a conflict of interests can be deduced from the circumstances, but the UN has a definition of “conflict of interests” not found anywhere else in the civilised world that I know of. In order for a UN Staff Member to prove there was something the UN will recognise to be a “conflict of interests”; the staff member has to show evidence of direct communications between two (or more) senior UN officials, in which this improper “influence” is actually exerted, when the staff member has no access to those communications and is not entitled to disclosure of those communications because without the evidence of that specific communication, they cannot show prima facie evidence of there even being any communications that need to be disclosed. Ipso facto; there is no conflict of interests.
Simply put; in the UN, two parties can have the most patently obvious conflicts of interest, and that is quite acceptable – provided nobody can prove that either of them actually used their relationship with the other party to influence their decision.
Don’t worry that I was being investigated for making a comment about a judgement in which Michael Dudley had been found to have withheld and tampered with evidence in an investigation – but had been “investigated” and magically cleared of any wrongdoing by his own staff – so by that definition, there was no evidence that Dudley had told them to clear him, so there was obviously no conflict of interests there! It was just a co-incidence that an OIOS Section Chief would launch a patently retaliatory investigation, and that that “investigation” just happened to recommend the very course of action that Michael Dudley had demanded a few days earlier. The UN does not see anything illegitimate in being cleared by an investigation carried out by one’s own staff.
- This is probably an appropriate juncture to take a break and have a double brandy, because this sorry story is only going to get worse….
Later, I found evidence to suggest that Lapointe did directly influence the panel. She also wanted me to be suspended – in advance of any investigation – because she thought I was so guilty – which says a lot about how much OIOS respects the principle of being innocent until proven guilty, but never mind that…..
The Respondent was represented by the Administrative Law Section, and specifically by Mr. Stephen Margetts and Ms. Sarabi Lim Baro, so the question floating around is whether they were aware of that evidence at that point and concealed it, which would be grounds for a serious professional misconduct complaint against any practicing lawyer- or whether OIOS failed to disclose it to ALS, which would be incur the wrath of the judiciary in the real world and probably be grounds for a mis-trial, if not contempt proceedings. Either way, it stinks – but this is how the UN manipulates the Tribunal; they do not play with a straight bat.
I then provided my answers to the Respondent. I used to think that answering their argument could be compared to teaching law to new students – or perhaps idiots – but I was the one who was wrong here. I was thinking in terms of the real world, but the UN is about as far removed from reality as is possible to get without actually being committed under the Mental Health Act.
I was dealing with the Organization that sat around wringing their hands while 800,000 people were murdered one at a time in Rwanda, and then concluded that it was nobody’s fault that nothing more was done to prevent it.
For four years they had been denying that there was any wrongdoing in the complaints raised by Ms. Nguyen-Kropp and Mr. Postica too. Why should the UN change that well established habit just because a judge had made a finding of fact that the Michael Dudley had withheld and tampered with the evidence in an investigation?
In this case, there were some interesting legal questions lurking in the background. There were at that time something like 18 other misconduct complaints gathering dust on Lapointe’s desk that and not being actioned, and given that I had established that she failed to act on a harassment complaint that I had made; was the decision to investigate me in advance of all those other complaints actually taken in good faith?
The legal geniuses in the Administrative Law Section insisted that there was absolutely nothing wrong with any of this, which is impressive if you are an ordinary UN staff member being shafted by a boss who just doesn’t like you……. but never mind that either.
So then, nothing happened – at least, nothing happened on this case.
The Panel did carry on with their “investigation” which, despite failing to actually that anyone actually saw the offending comment on the whiteboard, and by overlooking the fact that Michael Dudley – the (allegedly) aggrieved party stated that he did not support the matter being investigated, calling the investigation “offensive and wrong” and suggested that Carman Lapointe had told Dan Wilson to make the complaint, so the Panel manifestly failed to prove the elements of harassment as defined in ST/SGB/2008/5 para 1.2 and ignored all the evidence of bad faith, and of course concluded that this was nevertheless ‘harassment’ ….
At this point, Lapointe’s responsibility under ST/SGB/2008/5 para 5.18c involved making a determination that the report was “well founded”. Given the opportunity to review the report, a Cub Scout who hadn’t quite got his Junior Investigator badge yet would not have been impressed. The Panel’s investigation had more holes than in a Swiss cheese in a fishnet stocking, but Lapointe expressed her “endorsement” of the decision when sending it off to her friend Catherine Pollard, the then ASG/OHRM. That would be the same Catherine Pollard who she had earlier told she wanted me suspended before even starting the investigation, of course, but I’m sure neither of them would let that get in the way of making a fair and balanced decision on the matter.
Anyway, while all that was happening, this case was gathering dust in the UNDT Registry until one day – 6 November 2014 – I was surprised to discover I had not been forgotten at all; the Tribunal issued an Order:
Movement at last! We were to have a ‘Case Management Discussion’
It was, naturally, just a co-incidence that after eight months of nothing happening, this Order was issued just a few days after Takasu had come up with a cunning plan to pass the decision-making responsibility to UNICEF. He wrote to Susana Malcorra, the Chief of Staff on Wednesday 29 October, and it was purely co-incidental that the UNDT issued an Order a week later, on Thursday 6 November.
There is absolutely nothing suspicious in these two dates being just a week apart, and anyone who starts wondering if the Tribunal was giving the Resondent time to get themselves organised should be ashamed of themselves for having such a suspicious nature. It was purely co-incidental and absolutely not a sign of collusion between the Tribunal and the Respondent. Perish the thought!
So, as directed by Order 300, we duly turned up on the appointed day (17 December 2014) and to cut a long story short, the Judge asked if we would like to go off and discuss a settlement and I agreed. Why wouldn’t I?
Silly me, of course, assumed that “discussing settlement” might involve an element of “negotiation.”
That is not what happened. I went to see the ALS Legal Officer handling the case; Stephen Margetts, whereupon I discovered that we had something in common; his concept of “discussing settlement” and my concept of “bullying.” They are one and the same thing.
Anyone who thinks that “negotiation” involves any sort of compromise, or “a bit of give and take” is obviously unfamiliar with the UN definition.This involved Mr. Margetts telling me how much people in the outside world respected the UN, and how it was a very bad idea for me to raise legal action against the Organization because this would think badly of me and they would believe the UN rather than me. He recommended that I withdraw this application immediately
Oh really?
If I had wanted his advice I would not have bothered getting my own, and having heard his advice, he had me wondering whether he was delusional or simply so arrogant that he thought he had the right to tell me what to do.
As far as negotiation was concerned; he was prepared to concede …..nothing at all. I was wrong (or course) and my case was not receivable, so he would – very generously – allow me to withdraw it….. And he would – equally generously – “not object” to my waiting until the very very end of the process (a year or two down the line) when the UN eventually reached “a final decision” when I could then list all of the procedural errors that they had made along the way….
Only in the UN could Counsel for the Respondent tell you, in all seriousness, that he would allow me to sue him, and expect me to think he was doing me a favour. It might have not been quite so much of an insult if he had provided a cup of tea and a biscuit, but there was nothing doing.
Still, I had nothing better to do that day, so turning up to be bullied and have my intelligence insulted was a good use of my time.
I wanted a copy of the Fact Finding Panel’s report. Mr. Margetts insisted that it was ‘confidential’ and I could not have it. Some of the arguments I thought were quite farcical
more to come
And then it was Christmas, and then it was New Year and them one day, I found a surprise in the mail; I learned that there had been an audio recording made of Mick Stefanovic’s interview by the Fact Finding Panel, and it had not been included in the supporting evidence provided to the decision-maker…..
Oops!
Now in the real world, one might expect a judge to take a passing interest in any hint of evidence tampering – but this is the UN, I was being disciplined for making reference to an OIOS Deputy Director withholding and manipulating evidence in an investigation – and now this investigation 
by OIOS – also appears have so tainted with prima facie of …. withholding and manipulating evidence in an OIOS investigation.
This takes real TALENT!
Now, faced with this”own goal”, most people would be asking questions of the “WTF” variety….. but Judge Greceanu is clearly not “most people” and was not going to touch this with a ten foot pole.
It says a lot for the UN “justice system” that it condones the sort of misconduct that would – in the real world – result in investigators not only losing their jobs, but losing their pensions and very probably losing their liberty. Of course, not every jurisdiction considers ‘evidence tampering’ a crime and some well-known investigative agencies have been major exponents of the practice, and these include such well respected agencies as Heinrich Himmler’s Gestapo, Lavrenti Beria’s NKVD, and Pol Pot’s Khmer Rouge ……and OIOS.
more to come
Having had no luck in getting me to withdraw the case; the Administrative Law Section then summarily withdrew from representing the Organization, palming the case off to a couple of unsuspecting lawyers in the HR Legal Unit in Geneva.
Now, in the real world, once a case is before a judge, you have to respectfully request the leave of the court to withdraw from acting, and the judge might want to know the reason why.
In the UN however, Counsel for the Respondent tells the judge that the reason for their withdrawing is confidential and because it is confidential, they are not going to explain themselves, and the judge agrees.
OK, fair enough…… That doesn’t sound in the slightest bit suspicious!
more to come
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So in the end, after all that…… the Tribunal was not interested in anything and the case was kicked on grounds of receivability….. which is a polite way of telling the Staff Member; “Go away, we don’t give a flying damn” and rewarding the Organization for their mismanagement.
Hold on a minute. The case was dismissed on grounds of receivability on 11 August 2015. That is a word that might ring a bell. If you go back to the top of this page, you will note that Counsel for the Respondent tried to have the case dismissed on grounds of receivability when they replied to the original application over a year earlier on 21 April 2014!
What had actually been achieved in all that time?
Pardon me for pointing it out, but the case was before an ad litem judge, and if you don’t know what a ‘make-work scheme’ is, it is probably better that you never renovate your house by hiring builders on a daily rate.