The Pointless Judicial Ordeal of UN Whistleblowers

International standards establish the right to “an effective remedy”,

“the right to simple and prompt recourse, or any other effective recourse, to a

competent court or tribunal” [1]

Report of the Redesign Panel on the United Nations system of administration of justice A/61/205

On October 29th, 2015, Florin Postica, Senior Investigator at the UN, and Ai Loan Nguyen-Kropp, then Investigator at the UN, marked the sixth anniversary of their ordeal as whistleblowers at the United Nations.

Six years ago on that date, Postica wrote and signed an internal complaint, together with Nguyen-Kropp, alleging that their supervisor, Michael Dudley, then Officer-in-Charge of the Investigations Division in the Office of Internal Oversight Services (ID/OIOS), had tampered with evidence in a potentially criminal case.  The two investigators alleged that Dudley had withheld evidence and altered photographs submitted to him in such a way as to implicate specific UN staff members in the improper distribution of controlled substances through the UN Medical Services Division (MSD).

Postica submitted the internal complaint to Ms. Inga-Britt Ahlenius, then Under-Secretary-General (USG) for OIOS, responsible for UN investigations.

Shortly thereafter, Dudley allegedly threatened to report Ahlenius to the US government and the Secretary-General for incompetence, if she did not protect him.

Reprisal ensued, from which neither Postica nor Nguyen-Kropp was shielded. Dudley ordered Nguyen-Kropp out of her office, claiming that a colleague needed it.  Her former office remained unoccupied for eight months. Harassment and intimidation became routine for Nguyen-Kropp, not only from Dudley but also from some of his staff.

Then, in June 2010, Postica learned informally that he and Nguyen-Kropp were under investigation.  Neither had been officially informed of this.  Because both were UN investigators themselves, the UN sought external agents to examine their work and advertised the investigation to several other inter-governmental organizations.  In the process, their reputations were compromised among colleagues and peers in the small world of international institutions.

Angela Kane, then USG of Management (DM) at the UN Secretariat, contacted the Anti-Fraud Office for the European Union (OLAF) trying to outsource the investigation of Postica and Nguyen-Kropp.  Because Postica was then detailed to a very senior position at OLAF, Kane was cautioned against taking this step, on the grounds that it was threatening to Postica’s reputation, but she proceeded.

With the exception of the International Criminal Tribunal for the Former Yugoslavia (ICTY), all international organizations to which Kane tried to oursource the Postica/Nguyen Kropp investigation declined to take on the tainted exercise.  Among the organizations that declined Kane’s request were the World Bank, OLAF, the European Bank for Reconstruction and Development (EBRD), and the United Nations Children’s Fund (UNICEF).

Michael Dudley then downgraded Postica’s and Nguyen-Kropp’s performance evaluations for 2010.  The unfavorable reviews were a departure from strongly favorable reviews from various supervisors, including from Dudley, himself, in all previous years. Dudley never provided a credible justification for the downgrade.

Finally, in August 2010, counsel for Postica and Nguyen-Kropp filed a retaliation complaint with the UN Ethics Office. Both staff members claimed that they were subjected to a retaliatory investigation for their reporting of wrongdoing by Dudley, who continued to work at OIOS.

Two months later, in October 2010, the Ethics Office issued a finding of prima facie retaliation. Because the case involved Dudley, an OIOS staff member, the Ethics Office convened  an external panel for a full investigation.

The same month, Dudley was informed by Joan Dubinsky, then Ethics Office Director, that he would be investigated for retaliation against Postica and Nguyen-Kropp.

In response, in November 2010: Dudley requested the UN Dispute Tribunal (UNDT) to stop the investigation into his conduct.  He argued inter alia that the critical evidence against him was so voluminous that he could not fairly defend himself.

The UNDT refused Dudley’s request.

In December 2010, Nguyen-Kropp filed an application for relief from retaliation with the UN Dispute Tribunal (UNDT).

Two days later, Postica and Nguyen-Kropp were informed that they would be investigated by an investigator from the ICTY, which agreed to the outsourced investigation, for the way in which they had entered documents into a case file.

Postica and Nguyen-Kropp met with the ICTY investigator and realized that not only was he a former OIOS investigator, but that he was also a candidate for a post in ID/OIOS, over which Dudley exerted influence. The ICTY investigator suggested that they not try to create an issue over this apparent conflict of interest.

On May 2, 2011, Carman Lapointe, now the USG/OIOS verbally informed Postica and Nguyen-Kropp that she had decided not to pursue actions against them for any alleged wrongdoing. She told them that, in her judgment, the investigation instituted by her predecessor should never have taken place and was a poor use of UN resources. They would not be officially cleared, however, until six months later.  The reasons for this delay have never been explained.

The same day, May 2, 2011, the Ethics Office found that no actionable retaliation by Dudley against Postica and Nguyen-Kropp had occurred.  The fact that a protracted and unproductive investigation of their notes in a case file had just ended with no action to be brought against them did not influence the Ethics Office finding. Their retaliation complaint was closed.

Over one-and-a half years had elapsed since Postica and Nguyen-Kropp had reported their supervisor for allegedly tampering with evidence. Harassment had forced both to depart from their assignments with the UN/OIOS, while Dudley remained.

In June 2011, Postica and Nguyen-Kropp filed a UNDT complaint contesting the conclusion that no retaliation against them had occurred.

In November 2011, Lapointe informed Postica and Nguyen-Kropp via official letter that no action would be taken against them resulting from the allegations of misconduct. Two years had elapsed since they had submitted their initial disclosure of Dudley’s wrongdoing.

In April 2013, as the Postica/Nguyen-Kropp UNDT case headed for a hearing, the new Director of Investigations, Michael Stefanovic, cautioned Susan Maddox, counsel for the Secretariat in the retaliation case, that there should be no withholding evidence supportive of Postica/Nguyen-Kropp, as doing so would be out of compliance with a discovery order issued by the Tribunal.

In October 2013, Stefanovic was placed under investigation for an innocuous remark about New Yorkers to a colleague made 18 months earlier.

The same month, October 2013, in a five-day trial, the UNDT heard Postica’s and Nguyen-Kropp’s appeal for relief (UNDT-2013-176).

Over four years after the two investigators filed their report of their supervisor’s misconduct, Postica and Nguyen-Kropp won their first UNDT case requesting relief from retaliation.  At this point, both had endured years of investigation, retaliation and litigation.  In compensation for moral damages “of a high order” as well as damage to their respective careers, they were each awarded $40,000.  Neither Dudley, nor those who may have actively assisted him in the retaliation against the two whistleblowers, was formally disciplined in any way.  Not until April of the following year was Dudley reassigned out of the Investigations Division for reasons not related to the UNDT ruling. The others involved kept their positions.

Two months after the UNDT judgment, the Secretary-General appealed the ruling (UNDT-2013-176).

In a related case heard that summer, the UN Appeals Tribunal (UNAT) ruled that decisions of the Ethics Office were outside of the jurisdiction of the Tribunal.  Over Labor Day weekend in September 2014, the judgment was released and the previous tribunal victories of Postica and Nguyen-Kropp were put into grave doubt.

Six months later, in February 2015, UNAT vacated the favorable UNDT ruling for case 176 during a public reading of judgments.  The UNAT held that it had no jurisdiction to protect staff members from retaliatory investigations not resulting in formal discipline.

Nonetheless, in July 2015, Nguyen-Kropp and Postica filed their last submission in a second case contesting the Ethics Office finding that they were not the victims of retaliation.

The Ethics Office Director who found no retaliation in the Postica/Nguyen-Kropp case resigned in August 2015 with full benefits.

In September 2015, USG Lapointe’s term with the UN ended and she departed with full benefits.

In October 2015, after filing his own retaliation complaint, and an abuse-of-authority complaint, Michael Stefanovic took administrative leave and left the UN.

On November 11, 2015, the UNDT dismissed the Postica/Nguyen-Kropp case citing his obligation to do so as a consequence of the previous UNAT ruling.  Nonetheless, Judge Goolam Meeran wrote in his ruling:

123. The current state of the jurisprudence establishes the total lack of accountability of the Ethics Office and this, in and of itself, seriously undermines the purpose underpinning ST/SGB/2005/21, which is to expose misconduct at all levels within the Organization and to protect those reporting misconduct in good faith.

Epilogue

The UNAT vacated UNDT Judgment 176 by abdicating its jurisdiction over retaliatory investigations, but the UNDT’s findings that the investigations were, in fact, retaliatory were not questioned on the merits. UNDT Judgment 176 established that Postica and Nguyen-Kropp were the victims of sustained and career-wrecking reprisal, which is officially misconduct at the UN—misconduct beyond the reach of a lawful remedy

According to the UNDT judgment, “It is difficult to find a more direct causal link between a protected activity and an adverse action. In addition, the nature of the complaint against the Applicants should have rung alarm bells.”

Nonetheless, no action was ever taken against any of the retaliators identified, even after UNDT Judgment 176 was published, despite the fact that the Director of the Investigations Division requested that Dudley and the two subordinates who participated in the retaliation be placed on leave with pay and investigated for misconduct.

Instead, the Office of Human Resources Management temporarily reassigned Dudley to the Procurement Division, but no sanction for his conduct was ever imposed.

In paragraph 141 of UNDT Judgment 176, the Tribunal ruled: “There is also uncontradicted evidence that Mr. Dudley threatened Ms. Ahlenius to ensure that she protected him. Irrespective of any such threat, as Head of Department, the then USG/OIOS had a duty to act with fairness and resist pressure.”

In the subsequent paragraph, the Tribunal found that:

…[T]he decision to conduct an investigation against the Applicants (Postica and Nguyen-Kropp) and the manner in which it was carried out was tainted by procedural irregularities and manifest unfairness.

Conclusion

Six years after reporting the Officer-in-Charge of the Investigations Division at OIOS for serious misconduct – tampering with evidence and attempting to conceal his actions so as to make it appear that specific UN staff members were guilty of a criminal offense in the US – Postica and Nguyen-Kropp have received no relief.  Efforts to have Nguyen-Kropp reinstated at OIOS have failed, as USG Lapointe maintained that Nguyen-Kropp had voluntarily left her position, irrespective of the extreme mental distress that prompted this “voluntary” departure.  Consequently, Lapointe refused to recognize any special consideration for Nguyen-Kropp as an applicant for the position she had been forced to relinquish to escape reprisal.