History has a bad habit of repeating itself, largely due to the obstinate refusal by various idiots to actually learn from past experiences. This is the human condition; the dumbest of the dumb are the ones who will not learn by reading, will not learn by listening, and will not even learn from anyone else’s experience. They simply have to pee on the electric fence for themselves…..
Remember that the accusation made against Micheal Dudley in respect of the 0052/09 investigation was that he withheld evidence in an investigation. He even admitted it, and the judge in Nguyen-Kropp & Postica found that he did.
So, in the course of the investigation of the seditious Graffiti-gate comment, it turned out there was an audio recording of the panel’s interview of OIOS/ID Director Michael Stefanovic.
In the UN, the approved method of conducting an interview in a fact-finding process is simply to write down the answers to the questionnaire. This ensures that interviews are as bureaucratic and slow as possible, and that the written answers can be weighted to reflect the answer the “investigators” want to hear – so while Mick Stefanovic did sign the record of interview, he wrote on the document that that was not the definitive record of the interview, and he referred to the audio recording that was.
- In fairness however, I have to admit that although referred to in the Record of Interview, I missed it and only learned about this recording when my attention was drawn to it later.
Well, the reason the audio recording of the interview was very interesting was because it was nowhere to be found…. when I started asking more questions that nobody could answer!
So, to be quite clear here; I was being investigated for “harassment’ for referring to a finding of fact in a UNDT case where Michael Dudley had withheld evidence in an investigation – and in an attempt to make sure I was suitably punished for that, the Fact Finding Panel had ….. withheld some of the evidence in their investigation.
You could not make that up!
Lapointe of course refused to acknowledge that there was anything wrong here because the audio recording – according to her – was “not evidence”.
Really? It was a contemporaneous audio recording made of a formal interview in an authorised investigation, and was referred to by the witness in that process as being the definitive record of that interview. Never mind all that; the USG/Oversight insisted it was “not evidence”.
Now, when I was a law student, it was universally accepted that in depth study of Monty Python’s Flying Circus is no substitute for actually turning up to lectures and even sitting the exams, but I am the first to admit that a lot has changed since that time. Who knows? Maybe parliament slipped in a quick trick when I wasn’t looking – but I don’t think so. In fact, I’m pretty sure that everywhere – other than possibly in the Lavrenti Beria School of Political Jurisprudence – an audio recording of a witness interview is precisely what we call E-V-I-D-E-N-C-E.
Of course, in a criminal case, not all evidence is actually admissible as evidence. That is true, but for a start; an administrative proceeding is not a criminal case; it is a civil proceeding, so let’s focus on what is admissible evidence in a civil action, then for a second start; let’s not bother because no one was even suggesting the audio recording was not admissible, only that it was simply “not evidence.”
As far as the UN was concerned, the written Record of Interview included a reference to an audio recording, and the written Record of Interview was “evidence” – but although the audio tape did actually exist in the realm of physical reality, it did not exist if it was to be used as evidence. OK. It’s a bit like Schroedinger’s cat. Something can exist and not exist in the same place at the same time, depending on where and if the UN wanted it to exist. Unsurprisingly, the UN was certainly not interested in my questions about what the recording was withheld. That would just be so inconvenient. The real trouble with this damned “evidence” stuff is that it gets in the way when you are just trying to organise a simple judicial execution!
Never mind. If you are not a UN staff member, this doesn’t affect you so don’t worry about it. If, on the other hand, you are a UN staff member…. oh dear …. but before you start to scream and panic; wait, because there’s more!
In the midst of these furious denials that the audio recording was “evidence” of course one thing was overlooked – and that was the audio recording itself. If that recording had been given to the decision maker and he then decided it added nothing to the written record – I would have to accept it – but nobody wanted to do that. Lapointe had the opportunity to listen to the recording so she could compare it to the written record but she had decided in advance what the outcome was going to be. She did not need or want to be confused with the facts.
This is how OIOS makes decisions.
Of course, the Record of Interview was not and was never intended to eb a verbatim transcrip of everything that was said, so anyone with a modicum of curiosity would wonder if there was something on the audio recording that was not reflected in the written record of the interview. That, of course, would require someone to have a modicum of curiosity – and we know what OIOS thinks about curiosity because it written in black and white on the PIP that Lapointe had praised so highly.
Having that incorrigible curiosity streak, of course, when I later received a copy of the recording I did actually listen to it. It should come as no surprise therefore, that about 8 minutes into the interview, Susanna Malcorra’s name came up.
This was in the context of the email that the evidence-withholding Deputy-Director Michael Dudley had sent, when he described the comment on the whiteboard as “shocking behaviour.”
The question to be answered about that e-mail was a simple yes/no proposition; either it was a complaint or it was not a complaint.
The USG/Oversight demanded that I be interviewed about it, and he did not dispute that he was doing that for disciplinary purposes, so that sounds to me like it was a complaint. Dudley even stated “I have the board, the marker used, attribution of the other writing and approximate time” – but we are expected to believe that this was not for the purposes of “preserving the evidence” – but it sounds like a complaint there too.
Anyone with the tiniest bit of common sense could see it was a complaint. It was not a note to the milkman, it wasn’t an idea for a movie but it was the sort of petty nonsense that consumes the working day of senior OIOS officials. It could not be anything other than a complaint!
There are schizophrenics in mental hospitals on powerful psychotropic drugs who wouldn’t have any trouble telling you that was a complaint – but Carman “no degree” Lapointe insisted that Dudley was not the person who complained, and of course it suited Michael Dudley to distance himself from it too.
This is what passes for ‘accountability’ in OIOS.
Never mind, give him the benefit of the doubt and let us assume (for the sake of argument) that his email was not intended to be a complaint for the purposes of ST/SGB/2008/5.
Now it may be entirely coincidental but if you bother to refer to ST/SGB/2008/5, at para 5.11, you will note that there is a requirement that the complaint be copied to the ASG/OHRM “for monitoring purposes.”
Fine, because we are assuming for a second that Dudley’s email was not intended to be a complaint.
So what did Dudley do when he was not complaining about this and not wanting it investigated? He immediately let his friends and protectors know; he informed the ASG/OHRM Catherine Pollard, as well as the Chef de Cabinet Susana Malcorra (who was the one pulling Carman Lapointe’s strings as we know from the Kompass case).
That should come as no surprise. Both Pollard and Malcorra have a long history of insulating Michael Dudley from any attempt to hold him accountable for anything, so any evidence of their improper involvement in a complaint that Dudley was never going to be considered.
I contacted all the parties involved – including Yee & Petersen the panel members – and asked what happened to the audio recording. Why was it not included with the evidence the panel handed over to the decision-maker?
Due process? Fairness? Accountability in the UN?
Don’t make me laugh.
Of course, if Yee & Petersen were doing their job properly, they might have realised that evidence tampering is seriously frowned upon – at least in those accountable democratic jurisdictions where the Rule of Law is a legal concept and not just the name of a pub next door to the law courts.
In practice, sadly, the UN has some difficulty comparing itself to an accountable democratic jurisdiction where the Rule of Law applies. Inasmuch as OIOS models itself after anything, one can be forgiven for drawing comparisons with the Pol Pot’s Khmer Rouge or Stalin’s show trials of the 1930’s; all of which were perfectly legal and meticulously followed the proper procedures of course. It’s just important not to let those pesky little annoyances such as justice or impartiality or exculpatory evidence get in the way of the pre-determined outcome.
The harassment I was being investigated for related to – guess what – my having referred to the proven fact that Michael Dudley had withheld evidence in an investigation. How stupid would the members of the Fact Finding Panel have to be to then go and do them same thing themselves?
Don’t answer that question. Its meant to be rhetorical…. honest!
As it happened, I found out about this missing audio tape when I had a case before the UNDT, so in the course of filing documents in that case (when the Respondent was trying to have the case dismissed on grounds of ‘receivability’ as usual) I requested an Order for the immediate disclosure of the audio recording of the interview of Mr. Michael Stefanovic.
So now we have a situation where a UNDT judge was presiding over a case where a staff member was being investigated for ‘harassment’ for referring to another UNDT judge’s finding of fact that OIOS Deputy Director Michael Dudley had withheld evidence in an investigation, and to support their conclusion that this was indeed ‘harassment’, a Fact Finding Panel of senior OIOS staff had…. well… withheld a piece of evidence.
- Anyone reading this may wish to stop at this point for a stiff drink, or to submit themselves to a voluntary drugs test. Either could be quite justified.
Judges – in general and at least in the real world – tend to be fairly intolerant of disrespect, where they also tend to be fairly intolerant of incompetence and egregious violations of investigative procedures.
This, however, is not the real world. This is the UN where, I am delighted to say, the presiding judge performed a judicial ostrich manoeuvre and my request for an order for disclosure of the audio recording was simply ignored. It was never answered, and the Judge was quite happy to let that one slide as well.
This is the UN and the lesson for the staff member accused of anything is quite clear; you have no more rights that your persecutors decide you should have, and if there is any question about whether those rights apply, your persecutors will be the ones to decide.
Withholding evidence is not a problem because OIOS decides what is and what is not evidence, so if something is “not evidence” it can be withheld because it is of no more legal effect than the menu from the sandwich shop across the street, and everyone should be happy!
Evidence in an investigation can be inculpatory or exculpatory; it can be evidence to show the person is guilty or that he is not. As an investigator, I do not care which it is; both are equally relevant for the decision-maker.
The investigators job is – correction – the investigator’s role should be just to collect all that evidence, without fear or favour, for the decision-maker to make an informed decision based on the facts presented to him.
The decision-maker’s job is to look at all that evidence critically, to consider the inculpatory and the exculpatory evidence equally, and make a decision based on the facts available to him. In that regard, the decision-maker also has an additional interest, because as well as considering whether the evidences supports or disproves a finding of guilt or innocence, any evidence indicative of procedural irregularities also has to be taken into consideration. It is not enough that the evidence shows the subject to be guilty, that evidence must have been collected fairly and if there are indications of evidence being withheld – that is significant.
Of course, that only applies in the real world because in the UN, if OIOS decides that something is “not evidence” then it doesn’t matter what that evidence actually is – it might be an airline ticket showing the subject was not in the country at the time the misconduct was alleged to have taken place, that doesn’t matter – it can be withheld from the decision-maker because it is “not evidence.”
- For the avoidance of any doubt here, I should probably state for the record that I am not now – nor have I ever been – a user or any psychedelic drug or other recreational pharmaceutical. Even if I were; I still don’t think I could make this up. I dont even think the writes or afternoon television soap operas could have made this up….
So, what does this say for the prospects of the ordinary UN staff member falsely accused of something by a boss who has an ulterior motive for getting rid of them? Their prospects are not great.
As far as the UN is concerned of course, this is a win-win situation. In the first place, they are happy that OIOS can stitch anyone up for anything they chose, and in the second place, they are happy that the staff take the hint and are discouraged from coming forward to report any fraud, waster or other abuse they know about…
It is not so great for the poor soul who is victimised for doing his job but this is the UN; nobody cares about the staff member who is actually trying to follow the rules. Success in the UN does not come from following the rules, success in the UN comes from doing whatever your boss wants, keeping both your mouth and your mind firmly shut.
Don’t take my work for it. Forget me. Look at what happened to Anders Kompass. Look at what happened to Lubbad, von der Schulenberg, and look at how OIOS acts towards it own staff; look at what happened to Sirohi, and look at what happened to Nguyen-Kropp and Postica.
Michael Dudley, of course, retains his position in OIOS, somehow having outlived everyone who ever made a complaint against him.