Unlawfulness at our Pension Fund: UN Dispute Tribunal to CEO: The UN is not a private corporation! 28 December 2016

Recently there was the General Assembly resolution (A/C.5/71/L.6), the reports of the Board of Auditors (A/71/5/Add.16), the Advisory Committee on Administrative and Budgetary Questions (ACABQ, A/71/621) and the leaked report of the the OIOS audit of the backlog in pension payments (links to articles about these reports are available on this blog). 

The current dispute about the selection of a candidate for a D-1 vacancy in the Pension Fund Secretariat is yet another example of a Chief Executive Officer who operates as if he’s running his own private corporation and that UN Rules and Regulations are dispensable.

The UN Dispute Tribunal has now twice suspended action on a contested decision by the CEO to select a P-5 OIOS staff member for a vacant D1 post in the UNJSPF (Chief, Information Management Systems Service). The UN Appeals Tribunal dismissed the Administration's appeal (Judgment No. 2016-UNAT-709, 28 October 2016). 

The Tribunal found that the hiring managers were biased, the outcome was predetermined and that “the requirement of prima facie unlawfulness” was satisfied.

What happens next?  Does the Management Evaluation Unit (MEU),  expected to make a decision early in January 2017, select the P-5 candidate for the post a third time, finding yet another reason to uphold the selection of the CEO’s favorite OIOS auditor, in flagrant disregard of the Tribunal's determination of bias, predetermination and unlawfulness in the selection process?

Stay tuned. (See more on the story below, including links to the two Dispute Tribunal decisions and the Appeal Tribunal's judgment, all in the public domain.)

When the Fund CEO recently chose an OIOS staff member who has long experience auditing the Fund for a vacant D-1 post (Chief, Information Management Systems Service), he was apparently unconcerned about a perception of conflict of interest.

Here’s the reason for his choice as stated in the 'assessment' provided to the Tribunal: “He is very familiar with the functioning of the UNJSPF based [on] his many years as the Chief, IT Audit assigned to the Pension Fund.” (See the ‘assessment’ and note the five competencies listed in the job opening as ‘Non-Applicable’: client orientation; planning and organizing; professionalism; leadership; managing performance, para. 37, Order. No. 147 (NY/2016), link below)

Subsequent to the two applications to the United Nations Dispute Tribunal by a staff member, Anthony Wilson, at the D-1 level for eight years, and listed on the D-1 roster, the United Nations Dispute Tribunal has twice suspended action on this contested decision, pending management evaluation. (Wilson v. Secretary-General of the United Nations, Case No. UNDT/NY/2016/024, 20 June 2016; and Cases No. UNDT/NY/2016/073, 16 December 2016, links below)

The Tribunal noted that (para. 38, UNDT/NY/2016/024) “it appears that the selected candidate or any other candidates were not evaluated against any of the five competencies listed in the job opening, as they are all indicated as ‘Not Applicable’”.

After the Management Evaluation Unit (MEU) rescinded the contested decision, the Administration filed an appeal with the UN Appeals Tribunal, contending: that the decision was already implemented; Mr. Wilson was treated fairly; there was no irreparable harm to him; and in any case (para. 31 e) “if the Applicant were to establish loss of opportunity such loss would be quantifiable and compensable”(Judgment No. 2016-UNAT-709, link below).  (We'll just pay him off). The appeal was dismissed.

When the Under-Secretary-General for the Department of Management directed that the selection process be recommenced, “comprising a majority of individuals outside of the UNJSPF and with no prior involvement in this recruitment”, the Deputy CEO of the Fund, the hiring manager for the original selection process, was inserted into the Panel. The same P-5 candidate was selected, for the second time.

Before the interview, Mr. Wilson received an anonymous email stating in part that he had no chance of being selected, since “the CEO made it very clear that this post can only go to [the P-5 originally selected candidate] who is always supportive of his misgivings in every audit and would serve him as ‘an internal OIOS member’ in future insights….” (para. 19 or Order No. 147 (NY/2016).

Now the Dispute Tribunal has again suspended the contested decision, finding prima facie unlawfulness in the process, i.e., that “The Applicant has presented a fairly arguable case that the selection decision was influenced by improper considerations, namely that the hiring managers are biased, favored the twice-selected candidate, and have predetermined the outcome of the process." (Para. 50, UNDT/NY/2016/073).

Twice, in the last six months, the United Nations Dispute Tribunal has reminded  the CEO  that the UN is not a private organization, and that “its posts are financed through public funds, which calls for transparency and accountability in the recruitment system.” (Para. 42 of Order No. 147 (NY/2016) and para. 49 of Order No. 276 (NY/2016).

All documents are in the public domain and available to be read in full at the links below:

Stay tuned for more information on the outcome of this process.

http://www.un.org/en/oaj/files/undt/orders/ny-2016-147.pdf

http://www.un.org/en/oaj/files/unat/judgments/2016-UNAT-709.pdf

http://www.un.org/en/oaj/files/undt/orders/ny-2016-276.pdf