The Foreign Service Journal, March 2008

62 F OR E I GN S E R V I C E J OU R N A L / MA R CH 2 0 0 8 A F S A N E W S M ore than a decade ago, AFSA General Counsel Sharon Papp and StateDepartmentGrievance Staff Director Joanne Lishman invited the former chief administrative lawjudgeof the Merit Systems Protection Board, Edward J. Reidy, to join the Foreign Service Grievance Board and, later, to assume its chairmanship. Reidy recently stepped down fromthe board after 13 years of ser- vice, more than a decade as the chair. AFSA commends Judge Reidy for his tireless efforts to ensure that theGrievance Board issues just, prompt, well-reasoned and fair decisions, and for his dedication in striving to ensure that the FSGB has all of the resources and legal authority need- ed to fulfill its vital role in protecting the rights of all members of the Foreign Service. Chapter 11 of the Foreign Service Act of 1980 established the FSGB as an inde- pendent bodyofmembers fromoutside the active Foreign Service, charged with adju- dicating grievances filed by FS members. Membership on the FSGB has fluctuated between 18 and 27 over the last decade. Each member, including the chair, is appointed by the Secretary of State, based upon the recommendations of AFSA and the foreign affairs agencies, for two-year renewable terms. The FSGB reviews griev- ances on awide variety of issues, as autho- rized by law, including separation from employment, disciplinary actions, com- plaints relating to the employee’s working environment, prejudicial information in the employee’s personnel records and denial of financial benefits. Unless a Foreign Service member is facedwith theprospect of filing a grievance, it is unlikely that he or she is aware of how the FSGB functions. Judge Reidy helped fill the Journal in on the process, explain- ing that theFSGBoperates inpanelsof three members, usually consisting of an arbitra- tor (sometimes a lawyer, sometimes not) and two retired members of the Foreign Service. Eachpanel reviews the submissions (usually written, occasionally oral) in the assignedcases, discusses the case andarrives at adecision. Panels strive to render adeci- sion within 90 days of when the last brief is filed in the case, though this is frequent- ly not possible. Judge Reidy believes the FSGB’s great- est strength is rooted in its independence: “It functionswholly apart fromany agency influence. And to their credit, the [foreign affairs] agencies have honored that. The boardhas abroadrangeof remedial author- ity, and it can direct an agency to take that action as required. That, too, is a strength of theFSGB. At bottom, the grievancepor- tion of the Foreign Service Act is remedi- al in nature. Sowhat the board can do for the parties is most significant.” Unlike the MSPB that handles Civil Service personnel appeals, the FSGB does not have enforcement authority. Reidy acknowledges that this lack of authority is a matter of considerable interest and importance. He believes that by the very natureofitsadjudicatoryfunction,theFSGB has inherent authority toenforce. “I always considered that there was solid precedent to support that. I am far fromcertain that it does not remain an issue still to be clar- ified. Totheircredit,theforeignaffairsagen- ciesoverwhelminglygrant the reliefordered. Admittedly, there are times they do so but are holding their noses.” Reidy explains that FSGBmembers take their deliberations very seriously, aware that careershingeonthem. Most grievances end with the final FSGB decision and are not appealed to federal court. On very rare occasions, State and USAID have refused to implement an FSGBdecision. In these cases the grievant has been forced to go to federal court to have the decision implemented. AFSAhas sought legislative changes to provide enforcement authority, but the State Department continues to object, for rea- sons that are unclear to AFSA. Reidydescribes the relationshipbetween AFSA and the Foreign Service Grievance Board as “one of mutual respect. Where a grievant was not representedby an [out- side] attorney, he or she was not without support. So the assistanceofAFSAwas very important. The law involved is somewhat complex. Going it alone is not advisable. I seeAFSA’s role as quite imperative. There are [also] times whenAFSA has been able todiscourage a grievance simply by telling the grievant there is no realistic likelihood of success.” Whenaskedwhat advicehewouldhave for an employee considering filing a grievance, Reidy said: “Go for it. Do not hesitate. But by nomeans do I suggest fil- ing a silly grievance. Neither do I suggest that the agency is beset with errors. They happen. Nothing intentional for themost part, but sloppy work or lack of familiar- ity with the rules. I cannot help but won- der how widespread [within the Foreign Service] awareness of the FSGB is. It exists not only for the employee but for the for- eign affairs agencies, as well. It is truly a neutral body. And to be credible, it must remain so.” When asked to comment on Judge Reidy’s decadelong leadership of the FSGB, Grievance Staff Director Joanne Lishmanofferedhighpraise: “I commend himfor 13 years of dedicated service to the FSGB, his intellectual rigor, his commit- ment to quality and consistency of deci- sionmaking, the high standards he set for the Grievance Board, and his unfailing courtesy to the union, the department and, most importantly, the employees who brought their cases before the board.” The new Foreign Service Grievance Board chairman is Ira Jaffe, a well-regard- ed arbitrator and lawyer, who brings exceptional experience and qualifications to the position. He follows in an honor- able traditionof distinguishedFSGBchairs —Bloch, Oldham, DiLauro andReidy— that began in 1980. AFSA looks forward to working with Chairman Jaffe. A JOB WELL DONE: FSGB CHAIR EDWARD REIDY An Inside View of the FS Grievance Board BY SHAWN DORMAN