The UN Ethics Office is probably the only office in the UN to have less credibility than OIOS/ID, and has the rare distinction of being judicially recognised as being of no practical value in providing any sort of “protection” against retaliation. By a majority decision of the UN Appeals Tribunal, such protection in the UN has been deemed to be a privilege, not a right.
Be that as it may, my first experience of the Ethics Office related to my Annual Appraisal in 2013, where they proved to be about as much use as a chocolate fireplace.
Before getting into that however, we need a very quick lesson in the concept of “retaliation” as it applies in the UN.
The subject is governed by ST/SGB/2005/21 where it states at para 2.1 that any staff member who either (a) reports misconduct, or (b) co-operates in good faith with a duly authorized investigation or audit, that is called a “protected act” and if they then experience retaliation for that “protected act” – they are entitled to protection against retaliation. Hooray – that sounds good. What’s not to like?
The Ethics Office deals with these applications for protection against retaliation. Their mandate is laid out in ST/SGB/2005/21 para 5.2 which states (in fairly clear language) that the Ethics Office shall:
(a) receive complaints of retaliation or threats of retaliation;
(b) keep a confidential record of all those complaints, and;
(c) conduct a “preliminary review” of the complaint to determine if:
(i) the complainant did actually either report misconduct or co-operate with an investigation or audit; and
(ii) there is a prima facie case that that activity was a contributing factor in the retaliation (or threat of retaliation) that they then suffered.
So, when a staff member suffers retaliated after reporting misconduct, they have to contact the Ethics Office about it and all the Ethics Office has to do is basically see if it passes (or more accurately, if it fails) the “sniff test”…
The Ethics Office do not need to launch a formal investigation. They need only do a ‘preliminary review’ to determine whether the misconduct report was a contributing factor in the retaliation. If so, the case should then be passed to OIOS to investigate the retaliation, but leave that aside for the time being
It shouldn’t be rocket science. (1) The staff member reports misconduct, (that is the “protected act”.) (2) The Staff Member suffers retaliation. (3) The Ethics Office take a quick look at it to determine whether the “protected act” was at least a contributing factor in that retaliation. Then, if the Ethics Office thinks it does look like retaliation, the Ethics Office sends it to OIOS for formal investigation.
OK, fine. Even the most intellectually disadvantaged single-celled organism should be able to understand that. So what’s the problem?
Al well….. you see…. the trouble is that the if this was actually implemented, senior managers of the UN would not actually be able to retaliate against those seditious little b****rds who reported them for breaching the rules. Senior managers of the UN don’t like to have to follow rules. They think they are gods, and have no interest in actually being reined in by that terrible and unpalatable thing called accountability – which is a concept the UN considers about as welcome as a cancer diagnosis.
It would be wrong to suggest the UN does not have a concept of accountability. They do, no paper. In practice however, you will find it is in the same category of such concepts as nuclear fusion, extra-terrestrial intelligence and apparitions of the Blessed Virgin Mary in New Jersey. All are technically possible but not so that anyone really has to worry about it…..
So here is a Case Study on how the Ethics Office really behaves.
I had been presented with this ridiculous PIP that portrayed me as totally incompetent.
Nobody would tell me what exactly I had done wrong that would justify the PIP, but they insisted I sign the damn thing, so I complained that it was harassment and an abuse of authority, i.e. I reported misconduct. (Really sharp readers will be saying “protected act” at this stage already.)
Then, in addition to being ostracised and everything else, I got an Annual Appraisal that didn’t even pretend to be even-handed. In their desperation to portray absolutely everything I had done as inept, that Annual Appraisal directly contradicted the comments made at the half-year mark. It contradicted the e-mails sent to me when I first queried the PIP, and went to great length to criticise me for having the temerity to ask what I had done to merit it. As I had predicted, the Appraisal was nothing but a retrospective attempt to distract attention from the fact that Dzuro – who was supposed to be my First Reporting Officer – simply could not answer the questions put to him about the PIP….
That was even before I went through it line by line and rebutted everything it contained. Long on content, the Appraisal was remarkably deficient in actual substance. It was unashamed character assassination that would have made Lavrenti Beria blush, and could be cited as a Case Study at a Psychology Conference on psycopathy in the workplace. My cat would have no intellectual explaining this was R-E-T-A-L-I-A-T-I-O-N.
So, we appear to have a misconduct complaint, and a direct causal connection to an Annual Appraisal that was excessive to say the least.
The question for the Ethics Office was only whether the misconduct complaint was a contributing factor in the Annual Appraisal, and you would have to be deaf, dumb, blind AND stupid not to connect the complaint and the retaliation.
So, after I had finished the rebuttal, which showed the Annual Appraisal to have even less justification that the PIP; I applied to the Ethics Office for Protection against Retaliation under ST/SGB/2005/21.
So far so good?
So what did the Ethics Office do?
Anyone who thinks the answer involves recognising that this was retaliation; go to the bottom of the class….
My application was reviewed by an Ethics Officer by the name of Kevin Waite, who is clearly a linguistic conjurer of some renown. By selective misrepresenting the regulations, Mr. Waite managed to create a loophole that did not actually exist, and then rely on it to dismiss the application.
Remember, the UN Ethics Office is an office that manages to dismiss over 97% of all applications for whistleblower protection; so one has to admire their diligence, if not their morality – or their ethics.
According to the Ethics Office, I was not entitled to protection against retaliation because my misconduct complaint was NOT a valid complaint for the purposes of whistleblower protection because it did not contain “evidence”.
Really? For a start, they were quoting ST/SGB/2005/21 para 2.1(a) which states:
The individual must make the report in good faith and must submit information or evidence to support a reasonable belief that misconduct has occurred.
I do sympathise if Mr. Waite suffers from a medical condition that causes sporadic blind spots in his vision, but he either failed to see, or simply ignored the words “information or.”
This is an interesting insight into the culture of Ethics Office. Forget what the General Assembly actually mandated them to do, the Ethics Office bends over backwards to ignore the retaliation which, thanks to their wilful blindness, is endemic in the UN. They are no more “independent” than OIOS or my left kidney; they are an executive arm of the Secretary-General, and play an important role in discouraging staff members from reporting misconduct.
I had submitted a complaint that was almost 2,000 words in length. The text was neither a recitation of all 64 verses of “The Ballad of Eskimo Nell” nor the lyrics of the Rolling Stones “Can’t get no Satisfaction” but instead narrated the grounds of my complaint; so one would be forgiven for thinking that those 2,000 words might have constituted “information.”
No, Ethics Officer Waite dismissed it saying there was no evidence.
Oddly enough, in those 2,000 words of information, I had referred to an e-mail, sent by a specific person at a specific time on a specific day. One might be forgiven for assuming that that would indicate there was information or evidence to support a reasonable belief that misconduct has occurred.
Moreover, the whole the basis of my complaint was that I was being coerced to agree to the PIP that my First Reporting Officer could not justify. He would not answer the questions that I had asked. He would not tell me what I was supposed to have done that constituted a “performance shortcoming” and because he would not answer my questions, I had no answers.
The Ethics Office were not concerned with my not having answers to my questions. Neither were they concerned with the fairly fundamental difference between, on the one hand, telling someone that they have to improve (even if that were true) in the future, and on the other hand, not being able to show that they are alleged to have done wrong in the past.
The Ethics Office found that the reason for the unfavourable Annual Appraisal was “prior documented performance shortcomings” – the very absence of which had been the basis of the misconduct complaint in the first place.
So, just in case anyone blinked and missed the neat wriggling manoevre here; the Ethics Office stated that the reason I was not entitled to whistleblower protection was because there was “no evidence” of any misconduct on the part of Dzuro and Baldini who could not answer the questions that I asked, but the answers they could not provide were actually the reason for the bad Annual Appraisal, so it could not be “retaliation” anyway.
Somewhere, through the Looking Glass, a Mad Hatter and a White Rabbit explained all of this to Alice while they finished off their second bottle of vodka and passed around a fatty of Afghani Black, and it all made perfect sense. I, sadly, must lack their great comprehension skills.
The only thing that I have to say to the credit of the Ethics Office is that they can move with the speed of a thousand gazelles when it suits them. I submitted the application on Thursday 18 July 2013, and nobody works on the weekend in the UN. Without even bothering to talk to anyone, the Ethics Office replied on Tuesday 23rd. (That promptness is interesting when compared to their lethargy the next time around…..)
Roll on six months.
Christmas 2013 brings the judgement in Nguyen-Kropp & Postica (UNDT/2013/176) and although the question at issue in that case was not primarily one of retaliation, Meeran J. did address the concept of retaliation at some length. It was clearly necessary after all; the UN seemed to have inordinate difficulty understanding what it was….
Now this is interesting because several things have happened since July; I had been the subject of a number of petty complaints – all of them made by Dzuro, Baldini and Dudley, all of whom had been the subjects of the misconduct complaint I had made following the attempt to stuff me with the PIP back in March – and Lapointe was doing absolutely nothing to discourage them. (This was BEFORE the great “possible assault” complaint.)
- If a little bell is ringing in the Law Library in anyone’s head at this stage, don’t worry about it; its not tinnitus. What you are hearing is ST/SGB/2005/21 para 2.1(a).
Now, from having sat through the Nguyen-Kropp & Postica hearing, and listened to the evidence, I could see that I had been subjected to some of the very same retaliatory tactics as had been used against Ai-Loan Nguyen-Kropp, and it was being done by the very same people!
So with the Meeran J’s recent explanation of ‘retaliatory intent’ and a whole new collection of examples of retaliation, on 9 January 2014 I wrote to the Ethics Office and invited them to reconsider that piece of dialectical diarrhoea they had produced the last time.
Oh dear. This boxed the Ethics Office into a corner…… so they had to go back to look at it again.
At this stage, things even looked quite positive, because the file was reviewed by a lady in the Ethics Office who knew what she was doing, and was clearly capable of independent and rational thought. Her name was Katrina Campbell. She has the rare distinction of being the only person I encountered in the UN – through all of this – who was actually competent, diligent and professional. Unlike her colleague Mr. Waite, she actually did meet with me and discussed the various “experiences” I had had…..
Under ST/SGB/2005/21 para 5.3, the Ethics Office has 45 days from receiving a retaliation complaint to complete their preliminary review, so the clock was ticking.
Towards the end of January, I was asked if I would submit a fresh application for Protection against Retaliation “for administrative purposes.” In retrospect, I see that that was a trap, and I fell for it.
The very fact that they asked me to do it after having interviewed me and reviewed the pattern of retaliation I had suffered in the past six months must indicate that they considered there was a prima facie case of retaliation here contrary to ST/SGB/2005/21; the only problem is that Joan Dubinsky did not want to have to admit that. By getting me to agree to submit that fresh Application for Protection against Retaliation, they managed to re-set the clock and give themselves an additional 45 days in which to think of a plan to wriggle out of it.
The Ethics Director, Joan Dubinsky, was caught between a rock and a hard place; she was faced with a prima facie case of retaliation here, but if she admitted that, she was implicating Carman Lapointe in retaliation. Oh dear, that was very obviously NOT good, because apart from it being “misconduct”, Lapointe was not just any old common-or-garden Under-Secretary-General; she was the Under-Secretary-General of OIOS. How embarrassing would THAT be for the Organisation?
Tick tock tick tock, the 45 days is almost up and Dubinsky is feeling the heat. It’s an interesting dilemma for an Ethics Director; doing her job involved pushing her friend under the bus….. what could she do?
Then, showing to the world that she was a contender for the World Wriggling Championships – Dubinsky suddenly remembered a pre-existing “conflict of interests” that she had failed to mention two months earlier – so she had to recuse herself from making a decision…..
This genuinely is quite astonishing. If she had said that two months earlier, I might have been prepared to accept she really had a conflict problem here, but to wait she was almost out of time before “remembering” can only be described as an insult to my intelligence.
I was told that a number of things could happen, such as the matter being refered to another UN agency, or perhaps an external panel might be formed….. but Dubinsky passed the file to Susana Malcorra, the Chef de Cabinet.
So what did Susanna Malcorra do?
Being the friend and protector of Mr & Mrs Dudley, of course Malcorra did the square root of absolutely nothing.
I waited over a year and never received any response to my Application for Protection against Retaliation.
This, after all, is the UN. Never make the mistake of thinking that the Rule of Law applies or that the “internal justice” system is there to do anything other than provide the scaffold on which any “poltically undesirable” UN staff member will be hanged.
Now some people think the UN is corrupt, and that senior officials take bribes.
Tut tut, that would be very naughty.
This story, however, has a post-script because Dubinsky’s pay-off came several months later, thanks to none other than Susanna Malcorra who approved it. Her contract was extended a few months past her 62nd birthday when she should have retired, giving her the required minimum 5 years service in the UN so she could collect a pension.
The UN may indeed be corrupt to the core….. but they always claim to follow the proper procedure, so it must be legal so it cannot be corruption, that is the logic.