Federal court issues another rebuke to IBB officials accused of mistreating journalists
May 19, 2014
18 minute read
BBG Watch Commentary
In yet another pointed rebuke to senior International Broadcasting Bureau (IBB) officials, top executives and lawyers, some of whom for years have engaged in mistreatment and intimidation of journalists working for the Broadcasting Board of Governors (BBG) media entities, the U.S. Court of Appeals for the District of Columbia Circuit dismissed Friday the latest agency effort to prevent illegally fired Office of Cuba Broadcasting (OCB – Radio and TV Marti) employees from getting justice and getting their jobs back.
In a written opinion on behalf of three judges, United States Court of Appeals for the District of Columbia Circuit Judge David S. Tatel dismissed the BBG’s petition for review for lack of subject matter jurisdiction. In his opinion, Judge Tatel made a number of comments about mismanagement at OCB and attempts by both OCB and IBB officials to dismiss unwanted journalists and then defend their dismissal rather than implement management reforms. These officials have already wasted millions of taxpayers’ dollars trying to keep OCB journalists from returning to work.
There is also a human story connected with actions of IBB officials. Sixteen OCB employees and their families have suffered enormous hardships after these broadcasters were unjustly dismissed in 2009. But agency officials (IBB), some of whom still hold senior positions despite being responsible for more than a decade of mismanagement and dismally low employee morale (one of the lowest among federal agencies), have for several years delayed implementation of legal rulings that went unanimously against them at every level. After the court issued its decision against the agency on Friday, critics have called on IBB executives responsible for mismanagement and prolonging the suffering of illegally fired journalists to resign.
Some former and current BBG Governors said on record or privately that they were opposed to IBB’s legal maneuverings against OCB’s journalists, but former and current BBG members, including new BBG Chairman Jeff Shell, were unable to stop IBB executives, especially after IBB got the Department of Justice (DOJ) involved in the lawsuit. According to Former BBG Governor, Ambassador Victor Ashe, senior IBB officials failed to consult the BBG board on whether BBG should accept or decline the court mediation service. OCB staffers were dismissed illegally through a RIF (reduction-in-force).
Some of the longer-serving BBG members also appear to have no illusions about IBB officials. Ambassador Victor Ashe and two still serving members, Susan McCue and Michael Meehan, had succeeded in initiating reforms at Radio Free Europe / Radio Liberty (RFE/RL), where dozens of journalists had been also unjustly fired in 2012 (some were later reinstated) while IBB officials did nothing to prevent these firings which caused a major PR and public diplomacy scandal for the U.S. in Russia. Ashe, McCue, and Meehan had to take initiative as board members and repair the damage. These and other board members, however, were not able to deal with every crisis cased by the incompetent IBB management — there were simply too many — especially after some of these crises turned into court cases.
[aside]
“It is apparent that there is no serious interest by Dick Lobo (International Broadcasting Bureau Director until November 2013) or Paul Kollmer-Dorsey (Acting BBG General Counsel, now General Counsel) in solving the Office of Cuba Broadcasting lawsuit which has raked up $3 million plus in taxpayer exposure and may reach $5 million plus.”
“They even declined to consult the Board on whether BBG should accept or decline the court mediation service and proceeded to refuse the offer so the trial proceeds. BBG has lost at every step in the way over 3 years. BBG is getting inadequate legal advice and terrible public relations advice while running the meter for the American taxpayer”
– Broadcasting Board of Governors member (now former) Ambassador Victor Ashe, July 29, 2013.
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Former BBG Governor, Ambassador Victor Ashe, while still serving on the BBG board was especially forceful in questioning IBB’s legal tactics against OCB employees and warned repeatedly that these tactics were not only unfair, but represented a tremendous waste of taxpayers’ money. At the time he told other BBG members that they were getting bad legal advice.
In one instance, BBG legal counsel told board members during a public meeting that the U.S. Whistleblower Protection Act of 1989 does not protect government employees who complain to the media instead of alerting law enforcement agencies. The attorney misinterpreted the law. Government employees who expose official wrongdoing to the media are in fact protected by the Act. In another instance, a government official at the Voice of America responded to a citizen’s complaint by asking the United Nations to withdraw press accreditation of an independent American reporter. These incidents happened at a federal agency charged with supporting media freedom and independent investigative journalism. BBG members like Ambassador Ashe were appalled, but some of these officials kept their job, and some even got promoted. No one was held accountable.
Ambassador Ashe issued a statement Friday commenting on the latest court decision against the agency.
“Since I was first on the Board I urged settlement on an issue we inherited. But I was blocked by the BBG’s Legal Counsel. Once again we see the financial costs rising to over $4 million if BBG continues down this path. It is time to settle and treat these employees fairly. They have have suffered long enough,” Victor Ashe said.
After the U.S. Court of Appeals for the District of Columbia Circuit issued its decision against the BBG on May 16, 2014, Tim Shamble, president of the American Federation of Government Employees, AFGE Local 1812, a union representing BBG federal workforce, called for resignations of IBB officials responsible for prolonging “unimaginable hardship on … innocent employees and their families”:
“Agency management is at the end of the road for their legal delay tactics. It is time for someone in upper management to have the courage to end this and bring the illegally-fired OCB employees back to work and make them whole. All those who encouraged and participated in this strategy that caused unimaginable hardship on these innocent employees and their families should be held accountable. In the wake of this definitive decision of the U.S. Court of Appeals for the District of Columbia Circuit, we can only hope that they would surprise us and find the decency to resign,” said Tim Shamble, President of AFGE Local 1812.
The latest decision by the U.S. Court of Appeals for the District of Columbia Circuit against the agency’s top management can now only be appealed to the U.S. Supreme Court. According to one source, some IBB officials have been quoted as saying that they will go all the way to the Supreme Court against OCB journalists.
Opening statement by Judge Tatel, Circuit Judge, in the May 16th, 2014 decision, left little doubt what he thinks about the agency’s management:
TATEL, Circuit Judge: Compared to the charges of cronyism, waste, and mismanagement that dominated this dispute in its earlier stages, the legal issue we confront is quite tame. After an arbitrator found that Petitioner Broadcasting Board of Governors violated both a collective bargaining agreement and federal labor relations law when it laid off sixteen employees, the Federal Labor Relations Authority upheld the arbitrator’s determination. The Board of Governors now petitions for review. Because Congress has barred the courts from hearing challenges to FLRA orders that “involve an award by an arbitrator, unless the order involves an unfair labor practice,” 5 U.S.C. § 7123(a), we must determine whether the order at issue here, which undoubtedly involves an award by an arbitrator, also involves an unfair labor practice. Finding that it does not, we dismiss the petition for lack of subject matter
jurisdiction.
Short of calling the BBG’s legal arguments frivolous, Judge Tatel made a few sharp comments about the agency’s legal case:
TATEL, Circuit Judge: In a comprehensive and blistering opinion, the arbitrator dismissed the Board’s justifications for the reduction-in-force, determining that the layoffs were in fact part of the then-Office director’s “bad faith plan to at least intimidate, if not actually get rid of, his internal critics.”
TATEL, Circuit Judge: Accordingly, given Board counsel’s refreshingly candid concession that he knows of no cases where either the FLRA or any court has found a “covered by” defense relevant to the scope of a contractual duty, Oral Arg. Rec. 2:05–:30, we decline the Board’s invitation to do so here.
Discredited actions of IBB officials have also caught the attention of members of Congress. A bipartisan bill, the United States International Communications Reform Act of 2014 (H.R. 4490), includes damning findings about the agency’s management, which is largely the role of IBB. Democratic and Republican members of the House Foreign Affairs Committee approved these findings unanimously and essentially proposed to the whole Congress and the President to abolish the IBB. Another proposed bill would abolish the Voice of America whose senior officials were accused by members of the House Foreign Affairs Committee, both Democrats and Republicans, also of mismanagement and violations of the VOA Charter. H.R. 4490, however, would preserve VOA but impose management reforms.
Members of Congress noted that the agency ranks at or near the bottom of all Federal agencies in terms of ‘‘overall best places to work’’ and ‘‘the extent to which employees feel their skills and talents are used effectively.’’ “The consistency of these low scores point to structural, cultural, and functional problems at the Broadcasting Board of Governors,” the reform bill’s sponsors concluded. They also found that “the Broadcasting Board of Governors has an overabundance of senior civil service positions, defined here as full-time employees encumbering GS–14 and GS–15 positions on the General Schedule pay scale.” Many of these senior civil service positions are held by IBB officials responsible for the mismanagement of the agency and mistreatment of journalists.
The oversight Broadcasting Board of Governors has been largely powerless and unable to control the IBB bureaucracy under the current legislative setup, which H.R. 4490 is designed to reform. The IBB director was nominated by the President and could not be removed by the board. The director in turn protected his top managers whom the BBG board also could not fire.
Background
Already in November 2011, a federal arbitrator has issued a stunning rebuke against the Broadcasting Board of Governor’s Office of Cuba Broadcasting for using a reduction in force action to eliminate AFGE activists and other employees who had been outspoken critics of the agency. In a 94-page decision on Nov. 19, 2011, Arbitrator Suzanne R. Butler ruled that a former OCB Director had ordered the RIF and conducted it in such a way as to target employees who had spoken out to Government Accountability Office investigators. The award states that “[the] Director knew that, by sequencing certain reassignments of certain employees, he could shield employees whom he regarded as supporters and punish, maybe even get rid of, other employees who had spoken critically to GAO investigators – all under cover of a probably-upcoming budget reduction that could be used to justify a RIF – and no one would ever be the wiser. (He was wrong.)”
Instead of implementing Arbitrator’s decision, the agency went to The Federal Labor Relations Authority (FLRA). The agency’s acting General Counsel Paul Kollmer-Dorsey handled the OCB case. He was later promoted to be General Counsel.
The Federal Labor Relations Authority upheld Arbitrator’s ruling in a case which had been brought initially by the American Federation of Government Employees. FLRA again found that the Broadcasting Board of Governor’s Office of Cuba Broadcasting illegally used a reduction in force action to fire union activists and other employees who had been outspoken critics of the agency.
The FLRA rejected every argument made by the agency. “This decision should put every agency on notice that they cannot use budget shortfalls or funding cuts as an excuse to go after specific federal workers who the agency doesn’t like,” said AFGE Associate General Counsel Leisha Self, who represented the AFGE Local 1812 members in their grievance.
The FLRA’s decision cleared the way for the 16 employees who were separated or otherwise affected during the 2009 RIF to be reinstated without loss of seniority or benefits, but instead of implementing the FLRA’s and the Arbitrator’s decision, the agency’s senior executives and their chief lawyer reportedly pushed for the Department of Justice to get involved and to take an unprecedented step of going to the D.C. Court of Appeals.
The case was argued in March 2014, as described in this AFGE Local 1812 union article:
Several of the illegally RIFed employees of the Office of Cuba Broadcasting (OCB) attended the Appeals Court hearing on Thursday, March 13, 2014 in Washington, D.C.
Salvador Blanco, Attorney Leisha Self, AFGE Local 1812 President Tim Shamble, and Roxana Romero
Salvador Blanco, Luis Guardia, Alberto Muller, and Roxana Romero attended the hearing along with AFGE Local 1812 president Tim Shamble. Attorney Leisha Self argued part of the case on behalf of the Union employees. A decision by judges Garland, Tatel, and Pillard against the Broadcasting Board of Governors (BBG) in this case should finally end the long nightmare that has been inflicted on the 16 employees.
On November 19, 2011 Federal Arbitrator Suzanne R. Butler had ruled that 16 employees at the OCB had been illegally RIFed in late December 2009. Among other things, she had ordered their immediate reinstatement. The BBG refused and instead appealed Arbitrator Butler’s decision to the Federal Labor Relations Authority (FLRA).
The FLRA denied the BBG’s appeal on September 25, 2012 (66 FLRA No.182). The United States Congress established the FLRA as the final arbiter of federal labor disputes but under limited circumstances a decision by the FLRA can be appealed to Court. If an unfair labor practice (ULP) is a part of the decision the Appeals Court has jurisdiction. Both the Arbitrator and the FLRA made clear that the basis for their respective decisions did not involve an ULP.
Salvador Blanco, Luis Guardia, Attorney Leisha Self, and AFGE Local 1812 President Tim Shamble
Undeterred, on November 20, 2012 the BBG appealed to the Court anyway. More than a year later that appeal was heard. In the meantime these employees have been prevented from doing their jobs for over four years. Many have suffered severe financial harm. At least one of the employees has had his home foreclosed on.
If the Court rules that they do not have jurisdiction in this case it virtually would be the end of the line for the BBG. It is very unlikely that they would appeal to the Supreme Court. They would be legally required to implement the Arbitrator’s decision. In the interim, the illegally RIFed employees try to maintain as best they can hopeful in the belief that justice will finally be done.
As IBB executives who were responsible for preventing the return to work of illegally RIFed OCB journalists were collecting their annual $10,000 bonuses and approved their own travels around the world at taxpayers’ expense, OCB employees were experiencing tremendous hardships and suffering.
From the firing of Radio Liberty journalists in Russia to the illegal RIF of OCB broadcasters, BBG Watch continues to document enormous human suffering under the management culture of the International Broadcasting Bureau (IBB). This especially moving and heartbreaking story comes from a former Radio/TV Marti journalist.
Introduction to Roxana’s Story
The affected employees have been out of their jobs for nearly four years.
During the arbitration, agency officials claimed that there was no malice directed against these employees and that the RIF was just an unfortunate necessity. Since the time they were RIFed, several of the employees deprived of their livelihood by what the Arbitrator ruled was an illegally-conducted RIF have fallen upon hard times. Some have applied numerous times for positions for which they were qualified with both the OCB and the Voice of America (VOA) only to be turned down for the positions. Attached to all sixteen of the broadcasters involved in that unnecessary reduction-in-force in 2009, there is a human story.
Roxana’s Story
Roxana Romero was one of those employees and describes what her life has been like as a result of being illegally RIFed.
“Perhaps it was naiveté on my part, but I ALWAYS thought my position as TV Marti’s New York-based correspondent would survive the RIF. I was working out of the number one news market covering the same stories as the big networks and international news agencies: everything from the United Nations Security Council to the aftermath of 9/11, and everything in between. I was the only multi-media employee: self-assigning stories, interviewing subjects, shooting video, writing, translating, editing, and forwarding a daily news package to our studios in Miami. Ahh, but alas, all my hard work, commitment to my craft, and ten-plus years of devotion that were duly noted with numerous recognitions and favorable employee evaluations would not survive the former Director’s wrath!
That was four years ago. I was a lot more trusting then, even though I was 38 at the time. Apparently, I always looked at life and its circumstances through rose-colored glasses. Today, it’s tough to see beyond the grey film. The post-RIF financial and emotional hardships continue to have an astronomical impact on my life. I moved back to Miami months after I was laid off because I couldn’t find a job, and simply could not survive on unemployment wages. I’ve been hospitalized twice in the past three years, diagnosed with migraine clusters brought upon by stress. I’ve gained tons of weight. I lost my property to a short sale. I’ve had to move countless times because I found it difficult to afford the rent.
Yet, despite the setbacks, I’ve tried to move beyond this almost four-year nightmare and pave the way for a better future for myself and my family. But finding a job, despite my extensive experience across many platforms, has proven grueling, especially at the BBG. I’ve applied to a number of jobs within the Agency, including the OCB. My applications have continuously been rejected. Recently, I was interviewed by the VOA-LATAM for the International Broadcaster (Multimedia) (Spanish) position in New York. Even though the responsibilities mirrored the ones I carried out for TV Marti while working in Manhattan, the selecting office indicated that I was “not selected for the position.” People less qualified than I have been hired as contractors or have been switched to other departments to save their employment in the eventuality of a RIF. One full-time position for which my qualifications exceeded the requirements was actually eliminated and given to a contractor.
I finally found a part-time job as a media relations writer in academia. In this capacity, I’ve met two recently-hired contractors working as reporters at the OCB, and an anchor who was brought in not long after the RIF. This month, OCB hired a producer for television. This is all occurring at time of sequestration and the Federal Government conducting furloughs across the board. TV Marti’s news operations were supposedly eliminated because of budgetary constraints. Yet, there is anecdotal evidence that full-time employees and contractors are flying to South America, the Caribbean, and all over the world to cover stories. If OCB needed contractors to fill air time, why didn’t it look to the RIFed employees like me who dedicated their professional careers to upholding OCB’s mission to bring fair and objective news to Cubans on the island?
In spite of all this, I have complete confidence that we will come out victorious once again, all the injustices will be corrected, and the rule of law will prevail. When that moment comes, the real losers will be the taxpayers. They will be the ones who will have to foot the bill for millions of dollars in totally unnecessary expenditures brought about by a group of high-level bureaucrats going to extremes to not admit any wrong-doing, and to spend money that’s not coming out of their own pockets!”
From the firing of Radio Liberty journalists in Russia to the illegal RIF of OCB broadcasters, BBG Watch continues to document enormous human suffering under the management culture of the International Broadcasting Bureau (IBB).
This story comes from a former Radio/TV Marti journalist Salvador Blanco who, we are told, is one of the most beloved personalities in Cuba because of his status as a former political prisoner.
Attached to all sixteen of the broadcasters involved in that unnecessary reduction-in-force in 2009, there is a human story.
Salvador’s Story
By Salvador Blanco, OCB RIFed Employee
Salvador Blanco at the Camera
I am an ex-political prisoner who served time in Cuba’s jails. But that doesn’t matter. I have exhibited 13 documentaries on human rights violations in Cuba and around the world, and the threat of populism in Latin America and in the United States, among others. These documentaries have been played in world venues including the Human Rights Commission in Geneva year after year. But that doesn’t matter. I am equally comfortable as an anchor, reporter, field and line producer, cameraman, editor. But that doesn’t matter, either.
Before I went to work for the Office of Cuba Broadcasting (OCB) – petitioned by none other than its then-director, Pedro Roig – I owned Salvador Productions. With an innate, insatiable thirst to fight for the freedom of the Cuban people, I accepted the job at the OCB for the “love of my country.” My business was booming. I had accounts with different national and international media outlets like ESPN, TV Globo (Brazil), Canal 10 (Australia), BBC, Telemundo, Univision, car manufacturing giants such as Ford, Toyota, and Chevrolet. I also produced work for political campaigns. I thought to myself, “As a federal employee, I can provide my family with excellent benefits like health insurance and retirement.” According to focus groups, I always had positive feedback and even fared outstanding in the annual, federal worker evaluations. But that doesn’t matter, either.
The OCB continues to hire contractors and create jobs for which all of the RIFed employees are qualified, and have not been given any priority. The Agency’s actions continue to apparently violate federal laws. But that doesn’t matter, either.
It’s really my fault for believing that the Broadcasting Board of Governors (BBG) would do right instead of allowing its qualified RIFed employees to live in a legal limbo, because of personal and political interests.
I would like to send a special shout-out to Victor Ashe, former BBG governor, and commend him on his honesty and solidarity with the illegally-RIFed employees of the OCB. I, myself, join in solidarity with the Radio Free Europe/Radio Liberty Russian Service employees who were brutally mistreated and also dismissed from their duties. And to Tim Shamble, AFGE Local 1812 President and Leisha Self, attorney extraordinaire, for their immeasurable talent and dedication to finding justice for all of us who were wronged!
We, the RIFed employees of the OCB/TV Marti, have won two legal cases against the BBG. That Does Matter!
The BBG continues to wage a losing battle against justice. What do they care? They’re not reaching into their own pockets to pay for this drawn-out legal process. Apparently, that doesn’t matter, either.
The real loss is to the citizens of this great country who pay taxes. Ultimately, the monies will come out of your pockets! And that definitely matters!
Tim Shamble, the President of the BBG employee union, AFGE Local 1812, spoke in April 2013 at an open board meeting of the Broadcasting Board of Governors. He pointed out at that time that the International Broadcasting Bureau executives were refusing to settle a suit filed by the Office of Cuba Broadcasting (OCB) employees who were illegally RIFed.
Despite several judgements against the agency and practically no hope that the agency will ever prevail in court, the Office of General Counsel and IBB’s top leadership refused to settle the case while RIFed employees were being threatened with foreclosures on their homes and were otherwise exposed to great hardships. U.S. taxpayers will also be losing millions of dollars because of the delay tactics adopted by these officials.
In painting the picture of the top IBB officials’ contempt for BBG employees and the law, Tim Shamble explained in April 2013 how ironic it was that IBB executive staff was talking to the union about ways of improving dismal employee morale — an initiative the union president welcomed — while ignoring the plight of the illegally RIFed OCB broadcasters. Shamble also pointed out that IBB officials were even refusing to agree in union-management negotiations to the use of such terms as “fairness” and “dignity.” IBB officials participating in these negotiations along with others have been consistently rated in the Office of Personnel Management (OPM) employee surveys as being some of the worst managers in the federal government.
BBG’s Ambassador Victor Ashe took a note of these issues during the April 2013 meeting by asking IBB and OCB officials to make a strong effort to resolve the case of illegal RIFs at OCB and to save U.S. taxpayers’ money. He also indicated that the management’s inability to come to terms with the union on a new contract may also be a waste of taxpayers money in addition to making employee morale even worse than it is. It was clear from looking at the IBB officials that since the money does not come out of their own pockets they could care less and are going to ignore Ambassador Ashe’s comments.
A year later, the apparent determination of a few remaining senior IBB officials (some have left but others still occupy high level positions) to continue their campaign of intimation against the agency’s journalists is truly reprehensible and hypocritical for an agency charged with promoting media freedom abroad. Similar tactics have been employed by them not only at OCB and the Voice of America (VOA), but also had been used earlier to fire outstanding journalists at Radio Free Europe / Radio Liberty (RFE/RL) in the early 2000s and again in 2012.
The management culture of intimidation against unwanted journalists through questionable and illegal administrative measures has continued for years under the same small group of officials holding SES and GS-15 positions. Only very recently the BBG board put in place at IBB a new interim three-person management team in an attempt to reform it. But at least one executive responsible for the appalling treatment of employees over many years was promoted and another one still holds a key bureaucratic position and enjoys foreign travel and all the other perks and benefits of federal employment while RIFed OCB journalists lose their savings, houses, and health.
The previous IBB management team was also responsible for proposing to eliminate numerous programs and programming positions. They were giving themselves $10,000 bonuses and expanding their bureaucratic power-base through a 37% increase in the number of IBB jobs in the last seven years while many experienced journalists were being RIFed. The largest growth among IBB offices from 6 positions in FY2007 to 15 positions in FY2014 (150%) occurred in the agency’s Office of General Counsel.
As programs and programming jobs were being eliminated, IBB officials then employed hundreds of poorly-paid and poorly-trained contractors and violated federal law and regulations in the process, according to audits by OIG and IRS. They have never been held accountable, not even when a new interim management team was installed. But after this latest rebuke from the U.S. Court of Appeals for the District of Columbia Circuit, “all those who encouraged and participated in this strategy that caused unimaginable hardship on these innocent employees and their families should be held accountable.”
As Tim Shamble, President of AFGE Local 1812 said “we can only hope that they would surprise us and find the decency to resign.”
From the firing of Radio Liberty journalists in Russia to the illegal RIF of OCB broadcasters, BBG Watch continues to document enormous human suffering under the management culture of the International Broadcasting Bureau (IBB).
