There is a bit of background here.
First there is the judgement in the Nguyen-Kropp & Postica case which was in the public domain, and was the iceberg with which the good ship “OIOS Credibility” had just collided.
Then, after that, there was the Associated Press news report, which was re-printed in an unknown number of newspapers around the world, and was therefore read by Heaven-only knows how many members of the public.
And the reaction from the Under-Secretary-General? Of course, she couldn’t do anything at all, because, she said, “the judgement itself is subject to potential appeal, it would be inappropriate for me to comment publicly on a matter that cannot yet be considered final.” Oh really? How the facts of the case “cannot be considered final” is something that was never explained, but never mind……
From time to time, I also like to refresh my memory on the UN’s concept of ‘accountability’
Anyway, a few days after the Associated Press article, I come in to the office and see a whiteboard bearing a quotation attributed to Albert Einstein which could be considered inappropriate in an investigative agency: “If the facts don’t fit the theory, change the facts.”
Of course, OIOS was not just any old investigative agency, OIOS was the one where the then Acting Director had just been publicly named for interfering with evidence in an investigation…… leaving the staff more than just mildly embarrassed, and senior management of the UN unprepared to do a damn thing about it.
What a farce!
So, I had a go at it:
THIS was the crime of the century.
Was it the funniest joke of all time? Absolutely not, but it was “topically appropriate”, because it was satire, and that is what satire is.
Was it “inspired” by the UNDT judgement? Of course it was, but what was more of a motivation was Lapointe’s email when she said she could not comment. That was an insult to the intelligence of everyone working in OIOS who just wanted to get on with the work the office was supposed to be doing.
The comment came to Dudley’s attention within a very short time of it being written, and he immediately complained to the Director, Michael Stefanovic, stating:
This is shocking behaviour in a division that is supposed to deal with facts and understand fairness. I have the board, the marker used, attribution of the other writing and approximate time.
Spoiler Alert for Mr. Dudley; the whole point is that most people, including UNDT judges, have no trouble understanding FACTS …. particularly the findings of FACT by Meeran J. in paras 34 to 36 of the Nguyen-Kropp & Postica judgement, that Michael Dudley – when employed as the Acting Director of the OIOS Investigations Division – withheld and manipulated photographs supplied as evidence by the complainant in OIOS investigation 0052/09.
It does not matter that the judgement was later vacated by the Appeals Tribunal, the establish facts remain the established facts, and Meeran J’s findings will remain the findings of fact in that case for all time.
Now, Lapointe later insisted that it was not Michael Dudley who complained about me.
Oh really? If he did not, we can only wonder at why he stated:
I have the board, the marker used, attribution of the other writing and approximate time.
Of course this may just have been about an impending shortage of office supplies, but it sounds to me very much like “preserving the evidence.”
Leaving aside the complete silliness of it all, legally, this shows that a chain of events were in play that followed on from at Michael Dudley’s e-mail of 2:56pm on 14 January.
That chain of events is well documented
- Dudley complains to Stefanovic (Director/ID) on the same day as the comment was made on the whiteboard; 14 January.
- Lapointe instructs Stefanovic to interview me. (So it is reasonable to assume, that that act – changing the comment on the whiteboard – was being treated as a possible act of misconduct.)
- Stefanovic called me in and asked if I had made the comment on the whiteboard, and I immediately said YES, freely admitted it and I invited him to charge me with something. When I asked him what exactly he was investigating, his considered response, which was not written down verbatim, was (to the best of my recollection) along the lines of “F*** knows. Carman is my boss. She tells me to talk to you; I talk to you.”
- Following that, I informed Dan Wilson of this latest farcical incident.
- On 17 January, three days later, refering to Michael Dudley already having complained on 14 January, Dan Wilson makes a formal Third Party complaint of harassment, on behalf of Michael Dudley
Wilson’s action raise a couple of interesting questions about the use of a Third Party complaint here, because he never saw the original comment, and while the definition of ‘harassment’ in ST/SGB/2008/5 refers to “improper and unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person”, in this case the “offended party” had already made a complaint about it, so Wilson did not bother to confirm whether or not Dudley claimed to feel offended or humiliated by it. Why should he? Dudley had, after all, already complained about it! One would expect that an element of feeling offended or humiliated could be taken for granted, even though there might be a question of whether he was offended by the comment, or by the fact his name was plastered all over the Nguyen-Kropp & Postica judgement or in any of the hundreds if not thousands of newspapers around the world that had published the Associated Press report of the case.
Does this matter? Well, in the first place there is the question of someone can legally be offended or humiliated as a consequence of facts about his own malfeasance, particularly when that information had been published in a UNDT judgement which was in the public domain, but in the second place, when later interviewed by the Fact Finding Panel, Dudley denied wanting it to be investigated. He described the panel’s investigation as “wrong
Anyway, Lapointe was particularly ticked when I replied – very publicly – to her decision to have me investigated. She could not and would not, of course, answer anything that I raised, but she did deny that it was Michael Dudley who had complained. (She must have just conveniently “forgotten” his e-mail of 14 January.
Be that as it may, there was never any question that it was me who made altered the comment on the whiteboard, but – quick law lesson here – just because I changed what was written there, that does not automatically mean that under all the circumstances, that it automatically meets the legal definition of “harassment.” (If that subtlety is too complicated for you to grasp, don’t worry about it, you are in good company…… like most of the intellectual giants employed in the UN.)
Anyway, moving swiftly on from the “Too Hard” basket, lets start with something easier. The initial question still has to be answered, so ask the audience or phone a friend if you will: Who was really the complainant here?.
If the answer is “Dudley”, there could be just a teensy weensy little problem with that, because it would not look very clever for Lapointe to acknowledge that Michael Dudley’s had complained against someone for making a joke about his own misconduct; when she herself had refused do or even say anything about it, particularly after Dudley had been criticised (in the same judgement as the joke referred to) for retaliating against his own staff, and leave aside the fact that Lapointe was personally implicated in the retaliation against Nguyen-Kropp & Postica, when she failed to follow through and clear them of any wrongdoing; and let us not dwell on the fact that if Dudley was recognised as the complainant, this time he was complaining about someone who had earlier made a misconduct complaint against HIM.
Fact Finding Panel
The panel appointed to investigate this serious criminal atrocity comprised of two OIOS staff members, both of whom knew Michael Dudley – the allegedly “aggrieved party” – and both had had a working relationship with him going back about seven years. Neither of them had ever met me before.
So here is the very simple question; How can an investigation be fair and impartial if the investigators know the person who is (or in this case “who claims to be”) the victim?
Not only would the UN not answer the question, the UN did not consider it worth answering. They neatly side-stepped the salient fact that both panel members knew Michael Dudley. They simply ignored it.
As far as both panel members being beholden to Lapointe; the UN insisted there was “no basis for alleging that the USG/OIOS would seek to unduly influence” the panel.
Hold on a minute.
In the real world, a conflict of interests exists because of the existence of a relationship and the existence of the interests of the parties involved – not whether they were actually pursuing those interests.
….Sorry, that of course is the real world, and this is the UN, and the UN were arguing there was “no basis for alleging that the USG/OIOS would seek to unduly influence” the panel. What they conveniently overlooked was the evidence of the panel asking questions which were totally irrelevant to establishing the elements of the misconduct, but which reflected exactly the wording of a communication between Lapointe and Catherine Pollard (another friend of Mr & Mrs Dudley) and the then ASG/OHRM.
On a balance of probabilities, the Panel asked those questions because Lapointe had told them to. If you were inclined to recognise that for what it was, you could even call it “pressure”.
This would be the same Lapointe as was already insisted I was guilty and must be punished, and wanted me suspended even before she had appointed an investigation panel. She then appointed a “fact-finding panel” comprised of two senior OIOS staff, both of whom reported to Lapointe herself, and thus had a vested interest in giving her the answer that she wanted.
Little bells should start ringing in people’s heads at this stage, reminding them of the legal definition of ‘retaliation‘ under ST/SGB/2005/21….
As if that alone were not enough, add such minor complications as the facts that Lapointe had failed to act on the complaint that l had made against Dudley, and the only thing she had shown any interest in was trying to find out if Florin Postica could be roped into it, and then I had elevated it to the Secretary-General, asking that her failure to investigate my complaint also be looked into….
Of course, if the complaint were one of, say, ‘conspiracy to defraud’ or maybe ‘attempted murder’, it would be fair enough, but after all the negative publicity that had been generated, it was a complaint about a very trivial satirical comment on a whiteboard.
This is beginning to look like the sort of thing where PR Departments have to work overtime…
Undeterred, no sooner has Lapointe got her hands on a formal complaint from Dan Wilson than she tried to have me placed on immediate administrative leave while this major felony was investigated, listing the reasons she considered me already guilty.
It’s very strange but in OIOS, no investigator was ever suspended for interfering with evidence in an investigation, no one was ever suspended for squandering hundreds of thousands of dollars on a witch hunt against Florin Postica, and no one was suspended for possible perjury.
We can only assume Lapointe was very tolerant of such minor indiscretions.
Jokes and satirical comments, however, pointing out facts in the public domain, and drawing attention to a major public embarrassment in which she herself was personally implicated, was a hanging offence.
So, in an office where there were some 20 other unresolved misconduct complaints, Lapoointe immediately fast-tracked this particular investigation, and seriously considered it is appropriate and reasonable to suspend me.
Of course, I am sure this has absolutely nothing to do with her being seriously pissed at me for elevating her failure to address my complaint against Dudley and his accolytes. Oh perish the thought. Wash your mind out with soap for even thinking such a thing…..
By this time, I had truly had enough of the Kafkaesque insanity that passed for “management” in OIOIS, and took the next step; the United Nations Dispute Tribunal, Application # UNDT/NY/2017/017 .
I did that because at the time I had some confidence in the legal system. Ironically enough, that probably proved that perhaps I did need to “improve my judgement” after all – because that turned out to be about as much use as a chocolate fireplace.