Judgment No. 116

Complaint No. 189
Carmen Saghy v. Secretary General of the Organization of American States

THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,

Composed of Alejandro Tinoco, President; David A. Gantz, Vice President; and Enrique Rojas Franco, Judge,

Has before it for judgment the proceedings on the complaint filed by Carmen Saghy against the Secretary General of the Organization of American States.

The Complainant was represented by Howard B. Teller, attorney, and the Secretary General by Regina Arriaga, attorney of the Secretariat for Legal Affairs, all in conformity with Article 22 of the Rules of Procedure of the Tribunal.

WHEREAS:

I. On October 7, 1991, the attorney for the Complainant filed a complaint against the Secretary General, as authorized under Article II of the Statute of the Administrative Tribunal. After complying with the requirements as to the Complainant's personal and official status, he stated, inter alia:

That on October 28, 1987, the Complainant presented her application to compete for the post announced in Vacancy Announcement No. RC/277/87. She and Lucía Bozzolo were the only candidates for the post.

That on December 4, 1987, the Department of Human Resources sent the Department of Cultural Affairs an evaluation of both candidates in which it concluded that the Complainant did not meet the minimum requirements for the post. As for Mrs. Bozzolo, it concluded that additional information was needed.

That on December 28, 1987, the Director of the Department of Cultural Affairs, Juan Carlos Torchia-Estrada, made a subjective evaluation of the two candidates; that is, he did not interview the Complainant and did not request any references from Mr. James B. McCeney, her previous supervisor.

That at its first meeting, held on January 19, 1988, the Advisory Committee on Selection and Promotion returned the matter with a request that the two candidates be evaluated again, this time with emphasis on the alternative experience mentioned in the Vacancy Announcement as equivalent to a university degree.

That on March 18, 1988, the Director of the Department of Cultural Affairs sent to the Director of the Department of Human Resources a second evaluation of the candidates. The Department of Cultural Affairs had not interviewed the Complainant until March, five months after the competition closed.

That starting in December 1987, Mrs. Bozzolo began to receive an allowance for special duties as a result of her temporary assignment to the duties of the K (P-2) post in competition. The allowance was paid to her for more than a year, which exceeds the time limit set in Staff Rules 105.3(a) and (b) and 103.7(e).

That on April 11, 1988, at its second meeting, the Selection Committee asked the Department of Human Resources to obtain additional information on the candidates from the Department of Cultural Affairs. It also requested that Mrs. Bozzolo present evidence of the courses she had taken. The Department of Human Resources requested this information in a memorandum dated April 27, 1988, and repeated its request on May 26 of that year. Mrs. Bozzolo did not supply the requested information.

That on August 11, 1988, Mr. Paesky, Chief of the Arts Division, sent the Director of the Department of Cultural Affairs, Mr. Torchia-Estrada, a memorandum confirming his conclusion that the Complainant did not meet requirement No. 1, concerning education and experience.

That on September 7, 1988, the Department of Human Resources informed the candidates that all the competitions in progress had been suspended for budgetary reasons, in accordance with resolution CP/RES. 501 (741/88) of June 15, 1988. In spite of this, Mrs. Bozzolo continued to receive the allowance for special duties.

That on September 20, 1988, in accordance with Staff Rule 112.1, the Complainant requested a hearing with the Secretary General on the decision to suspend the competition. On November 30, 1989, since that measure had not been rectified, she submitted a request for reconsideration in accordance with Staff Rule 112.2.

That on March 2, 1990, the Joint Advisory Committee on Reconsideration recommended to the Secretary General that the selection process continue where it had left off. On March 7, 1990, the Secretary General expressed his agreement with that recommendation. On that basis, by a memorandum dated March 12, 1990, the Director of the Department of Human Resources asked the Director of the Department of Cultural Affairs to submit a new evaluation of the candidates.

That at its third meeting, held on March 27, 1990, the Selection Committee did not recommend either of the candidates.
That by a memorandum to the Secretary General dated April 11, 1990, the Director of the Department of Human Resources summarized the history of the post in competition and emphasized that its duties were primarily administrative. On April 16, 1990, on the basis of that memorandum, the Secretary General instructed the Chairman of the Selection Committee to prepare a questionnaire for the Department of Cultural Affairs to answer. On May 8, 1990, the Director of the Department of Human Resources sent the Director of the Department of Cultural Affairs a questionnaire that was not consistent with the Secretary General's instructions.

That on May 16, 1990, the Director of the Department of Cultural Affairs refused to answer the questionnaire, deliberately disobeying the Secretary General's instructions. Instead, he made another evaluation of the candidates, again based on the Vacancy Announcement. On May 23, the Selection Committee met for a fourth time, but again was unable to make any recommendation because of the refusal of the Department of Cultural Affairs to answer the questionnaire.

That on August 2, 1990, because almost three years had passed with no decision on the competition, the Complainant requested a hearing with the Secretary General. On August 28, since she had not received a reply within the statutory time limits, she requested reconsideration. Both requests were denied in a memorandum from the Director of the Department of Human Resources, dated September 7, 1990, on the ground that no final decision had been taken on the matter.

That at the Selection Committee's fifth meeting, held on December 13, 1990, it was again unable to make any recommendation because the Department of Cultural Affairs had not answered the questionnaire. The Committee therefore decided to make its own evaluation. At its sixth meeting, held on January 29, 1991, the Committee, this time composed of different members, selected Mrs. Bozzolo after interviewing only the Director of Cultural Affairs and the Chief of the Arts Division.

That on February 19, 1991, the Complainant was orally informed that she had been laterally transferred, with her post, to the Executive Secretariat for Education, Science, and Culture. On the same date the Director of the Department of Human Resources requested the Director of the Department of Cultural Affairs to send a new job description for the Complainant. Thus far, that request has not been acted upon.

That on learning of Mrs. Bozzolo's selection the Complainant again requested a hearing, and on March 6, 1991, James P. Kiernan was appointed as the hearing officer. He concluded that it would be inappropriate to nullify Mrs. Bozzolo's appointment but repeated the Selection Committee's request that she provided evidence of her studies.

That the Complainant filed a request for reconsideration in accordance with Staff Rule 112.2. On June 4, 1991, the Reconsideration Committee recommended (1) that the Secretary General admit the Complainant to the professional category; and (2) that her salary be paid retroactive to the date on which Mrs. Bozzolo had been appointed to the P-2 post. In a note handwritten on that report, the Secretary General expressed his agreement with the report and asked the Director of the Department of Human Resources whether the Committee's first recommendation was feasible.

That by a memorandum dated July 1, 1991, the Complainant asked the Secretary General to withdraw from her file the certificate from the National Music School of Peru, as it had been issued and signed by an unauthorized person. This incorrect memorandum had been prepared by Dr. Martínez, her former attorney, and presented to her for signature without allowing her sufficient time to review it. Dr. Martínez himself acknowledged this error in writing.

That on July 3, 1991, the Secretary General sent the Director of the Department of Human Resources his decision to confirm Mrs. Bozzolo's appointment and not to consider recommendation No. 1 of the Reconsideration Committee. This decision was based on the fact that the Complainant had presented the certificate as a document in the competition when she knew or should have known that its contents were false.

That on August 30, 1991, the Director of the Department of Human Resources recommended the disciplinary measure of written censure against the Complainant. This disciplinary measure was based on an independent investigation conducted by Regina Arriaga, and was initiated in order to force the Complainant to withdraw the complaint she had filed with the Tribunal. It was with that objective in mind that both Dr. Arriaga and the Director of the Department of Human Resources, Mr. Hernan Hurtado Prem, offered to drop the charges against her and keep the evidence in a sealed envelope.

That the Complainant had obtained the certificate through an intermediary in Peru, but at no time was directly involved in the steps taken to obtain it.

That on September 4, 1991, Mr. Cabrera, Secretary General of the National Music School of Peru, confirmed that the person who had issued the statement of enrollment was authorized to do so and corroborated the Complainant's other allegations about her music training.

That the Complainant meets minimum requirement No. 1, concerning academic training and experience, better than Mrs. Bozzolo, who only completed elementary school and has provided no evidence of a secondary education.

That the Vacancy Announcements contain a footnote stating that (1) candidates are responsible for providing the Department of Human Resources with copies of the diplomas and certificates attesting to their academic background; (2) the Department will verify that this has been done and ask the candidate to present any that are missing; and (3) candidates must present these documents before the closing date of the competition or else it will be assumed that they do not exist and that the candidate therefore does not meet that particular requirement.

That the Complainant complied with that footnote, but Mrs. Bozzolo did not. The Complainant has proved that she has a secondary-school diploma from the Escuela América in Callao, Peru, a bilingual institution recognized by that Government, and has taken courses at George Mason University in the United States.

That the Complainant also has superior experience. Mrs. Bozzolo presented (a) a diploma from the Academia Mecenas stating that she completed a course in bookkeeping and typing, but indicating neither the level of the course nor its content or duration; and (b) a certificate dated 1962 stating that while employed at the duty-free shop at the airport, she attended a customer service course offered by Pan American Airways.

That Mrs. Saghy, on the other hand, has proved that before joining the OAS she worked for more than 15 years, first as a bilingual secretary and then as a bilingual executive secretary, for major business firms in Peru. Her administrative experience is also more solid than Mrs. Bozzolo's, since she worked for 16 years under the supervision of the Treasurer, Mr. McCeney, and was his administrative assistant for six of those years. Moreover, her promotions within the OAS were more rapid.

That Mrs. Bozzolo received a professional post before the Complainant primarily because the various posts she held previously were reclassified without competitions.

That minimum requirement No. 2, at least two years' experience in the cultural field in positions of increasing responsibility within the General Secretariat, was established to favor Mrs. Bozzolo: the Department of Cultural Affairs is the only office where such experience could have been acquired.

That according to the audit conducted in 1986, most of the duties of the announced post were administrative, a fact confirmed in the memorandum to the Secretary General of April 11, 1990, from the Department of Human Resources. Experience in the cultural area, on the other hand, is a purely marginal requisite that the Complainant meets equally with or better than Mrs. Bozzolo.

That Mr. Paesky stated that he felt certain that Mrs. Bozzolo had the general knowledge of music and piano that she claimed, even though she had presented no evidence of her studies at the Hugo Balzo Conservatory.

That with regard to requirement No. 3, the Complainant has passed the TOEFL test and has more than 15 years' experience as a bilingual secretary outside of the OAS, together with another 16 years within it.

That the Department of Cultural Affairs was able to present a biased evaluation concerning minimum requirements Nos. 4 and 5 because no annual performance evaluations of the Complainant had been made in the Office of the Treasurer.

That by not appointing the Complainant the Secretary General violated Article 118(b) of the OAS Charter; articles 12.b, 12.f, 14, 18, 35, 37, 40, 41, and 63 of the General Standards; and Staff Rules 104.5(e) and (f), 104.6(a)(i) and (b)(i) and (ii), 104.12, and 105.3.
That the temporary assignment of the duties of the K (P-2) post to Mrs. Bozzolo violated Staff Rule 105.3 because it was done in order to give her an opportunity to acquire in that post the experience needed to meet the minimum requirements for a P-2. The fact that the temporary assignment lasted more than two years without a competition means that the Department of Cultural Affairs delayed the announcement of the competition until she had acquired experience in the cultural and administrative fields.

That the Complainant's honesty was called into question when she complied with the request from the Department of Human Resources that she complete her documentation. In the meantime, Mrs. Bozzolo's unfounded assertions were accepted without question as documented fact.

That the Secretary General laterally transferred the Complainant in retaliation for her having filed her complaint with the Tribunal. That action is a violation of Staff Rule 105.2(b), which provides that such transfers shall be for the benefit of the Organization and to enable the transferred staff members to broaden their experience and knowledge, which was not accomplished in the case of the Complainant's transfer. Moreover, the new post has neither a job description nor specific duties and, what is even more important, the Acting Executive Secretary has not complied with the Secretary General's instructions that the Complainant is to serve as his secretary. At present the Complainant's work consists of assisting the specialists of the Executive Secretariat for Education, Science, and Culture and performing whatever work they assign her.

That specifically he prays (1) that the Complainant reserves her right to request the Tribunal to order the removal of the disciplinary action from her files, since it was unfounded; (2) that she be appointed to the post in competition or, alternatively, that she be assigned to an equivalent professional post at the K (P-2) level; (3) that she be paid, retroactively, the difference between the salary she has received at the H-18 level and the one she would have received at the K (P-2) level, from the date on which Mrs. Bozzolo began to receive the special duties allowance to the present; (4) that she be paid the additional benefits corresponding to the K (P-2) grade, retroactive to the date on which Mrs. Bozzolo began to receive those benefits as the incumbent of the post; (5) that she be paid an education allowance for her son, based on the grade K (P-2); 6) that she be paid the sum of US$15,000 for attorney's fees; (7) that she be paid a special indemnity of US$20,000 for (a) the excessive delay in the selection process for the K (P-2) post; (b) the transfer to which she was subjected in retaliation for having filed Complaint No. 186; and (c) the unjustified disciplinary action imposed in an effort to prevent this appeal to the Tribunal, all of which caused the Complainant extreme anxiety and tension over a four-year period, especially considering her state of health and the fact that her physicians had ordered her to reduce her tension and anxiety as much as possible; and (8) any other relief that the Tribunal deems fair and necessary.

II. The attorney for the Secretary General answered the complaint in due time and proper form and stated, inter alia:

That Mrs. Bozzolo's transfer to the Arts Division of the Department of Cultural Affairs with her J (P-1) post, on September 15, 1985, was due to changes that occurred that year in the Executive Secretariat for Economic and Social Affairs. On being transferred, Mrs. Bozzolo found that the duties assigned to her were the same as those performed previously by another staff member at the K (P-2) level. Therefore, in a memorandum dated February 28, 1986, she asked the Department of Human Resources to conduct a desk audit. The audit was conducted on September 10, 1986, and established that the level of her duties was K (P-2). As a result, her J (P-1) post was reclassified to K (P-2) effective June 9, 1987. On September 28 of that year, the internal competition for the reclassified post was announced, and the applicants for the post were the Complainant and Mrs. Bozzolo.

That the Chief of the Arts Division interviewed the Complainant in early March of 1988. He did not do so earlier because he agreed with the conclusion in the Department of Human Resources memorandum of December 4, 1987, that the Complainant did not meet the requirements in the vacancy announcement. During the interview Efrain Paesky asked her if she had work experience in the cultural field and told her that a certain amount of music training was needed for the post. After the interview, the Complainant informed the Director of the Department of Human Resources, in a memorandum dated March 9, 1988, of her music studies and other qualifications.

That at its meeting of April 11, 1988, the Selection Committee asked to have this information brought to the attention of the Department of Cultural Affairs so that it could make a new evaluation in the light of the Complainant's background in music. It further requested that the Department of Human Resources ask both applicants for certifications of their studies.

That on April 20, 1988, the Complainant presented to the Department of Human Resources a "certificate from the National Music School in Lima, Peru (1950-1956)" and a "certificate of continued studies with a teacher graduated from the National Music School (1957-1960)." At the time, Mrs. Bozzolo did not submit any additional documents on her studies because she felt that what was already in her personnel file and in the case file, together with her experience of more than 20 years in the General Secretariat and, specifically, the two years spent performing the duties of the post to the complete satisfaction of her supervisors, met the requirements of the Vacancy Announcement.

That on August 11, 1988, the Director of the Department of Cultural Affairs examined the Complainant's background in music and made a third evaluation, in which he confirmed his earlier recommendations. On March 12, 1990, the Director of the Department of Human Resources informed him that the Secretary General had decided to continue with the competition and asked him for a new evaluation of the candidates. On March 19, 1990, the Director of the Department of Cultural Affairs confirmed his recommendation of August 11, 1988, since there was no new information to justify any change of opinion.

That at its third meeting, held on March 27, 1990, the Selection Committee concluded that (a) the evaluation made by the Department of Cultural Affairs was not sufficient to help it make a recommendation to the Secretary General on the two applicants, and (b) the post should be re-audited to determine whether its duties were cultural or administrative. The Committee recommended (1) that the evaluation of the two candidates be made on the basis of the job description the post had had before Mrs. Bozzolo was transferred to the area; and (2) that the General Standards be amended, since competitions for reclassified posts cause difficulties, especially when a post is held by a member of the career service, since, if not selected, he or she can become subject to a reduction in force.

That on April 11, 1990, the Department of Human Resources, as the technical area specializing in classification, sent the Secretary General a memorandum concerning the conclusion in point (b) above, pointing out the negative implications that the Committee's suggestion could have.

That it is untrue that the Secretary General told the Selection Committee what kind of questions the questionnaire should contain or that he said it should be based on the April 11, 1990, memorandum from the Department of Human Resources. It was the Chairman of the Selection Committee who decided that a written questionnaire should be prepared.

That on May 16, 1990, the Director of the Department of Cultural Affairs told the Director of the Department of Human Resources that answering the questionnaire in writing would be very time-consuming. Instead, he analyzed the background of the two applicants in the light of the requirements in the Vacancy Announcement, which is the method regularly employed in the General Secretariat to evaluate candidates. On May 23, 1990, the Selection Committee met and disagreed with that method.

That on December 13, 1990, the Selection Committee met, this time under a new chairman, the present Assistant Secretary General, Ambassador Christopher R. Thomas. At that meeting it was noted that under the previous chairman the Committee had not made a recommendation because the Department of Cultural Affairs had not sufficiently clarified the reasons why it had disqualified the Complainant. It was further decided that at the next meeting the two candidates would be evaluated on the basis of the available documents and a recommendation would be submitted to the Secretary General.

That the Selection Committee met for the last time on January 29, 1991. Acting on the suggestions made by the Secretary General in his memorandum of April 16, 1990, it asked a number of specific questions of the Director of the Department of Cultural Affairs and the Chief of the Arts Division. Finally, it recommended Mrs. Bozzolo, who, on the basis of this recommendation, was appointed by the Secretary General on February 1, 1991.

That the Complainant requested a hearing in accordance with Staff Rule 112.1, in connection with that measure.

That following a suggestion made by the hearing officer on March 6, 1991, Mrs. Bozzolo presented evidence of having completed elementary school and two years of secondary school and of having taken piano examinations at the Falleri-Balzo Conservatory in 1958 and 1962.

That recommendation No. 1 of the Reconsideration Committee in its report of June 4, 1991, that the Complainant be admitted to the professional category, was a gratuitous recommendation intended to make amends for the delay in the selection process. On June 10, 1991, the Secretary General asked the Director of the Department of Human Resources to explore whether the regulations permitted his acceptance of the recommendation.

That three days later, on June 7, 1991, the Tribunal issued its Judgment No. 113, in which it ruled on the delay in the selection process.

That on July 3, 1991, the Secretary General rejected the gratuitous recommendation of the Reconsideration Committee and made his final decision, confirming the appointment of Mrs. Bozzolo, as appears in his memorandum of July 3, 1991, to the Director of the Department of Human Resources, because (a) he had learned that during the competition the Complainant had submitted as genuine documentary evidence a certificate containing false information; and (b) when confronted about it, the Complainant had requested in a memorandum of July 1, 1991, that the certificate be removed from the file, claiming that she had learned that the certificate had been issued by an unauthorized person, which was also untrue.

That, in the light of this situation, the Secretary General asked the Director of the Department of Human Resources to hear the Complainant in connection with this matter and submit to him whatever recommendation he deemed appropriate. On July 31, 1991, the Director recommended written censure.

That the Joint Disciplinary Committee, in its report of October 3, 1991, unanimously recommended to the Secretary General that he come to an agreement with the Complainant within one week and that if no agreement could be reached, she receive a written censure in accordance with Staff Rule 111.1(b)(iii). Since an agreement proved to be impossible, the measure was applied to the Complainant on October 21, 1991. The decision became final when it was not challenged by the Complainant within the 15 days following the date of notification provided for in Staff Rule 112.2.

That according to its own jurisprudence, the Tribunal must firmly uphold the Secretary General's decision to appoint Mrs. Bozzolo unless the Complainant proves that she meets the minimum requirements for the post and that her qualifications are superior.

That, with respect to requirement No. 1 of the Vacancy Announcement, the Complainant submitted a secondary education certificate and proof of having passed two economics courses at George Mason University. Mrs. Bozzolo, for her part, submitted proof of holding a diploma in bookkeeping and typing from the Mecenas Business School and a certificate from Pan American Airlines pertaining to a customer service course.

That the supervisor of the post in competition, Mr. Paesky, identified a knowledge of piano, piano repertory, and public relations as important areas for meeting minimum requirement No. 1. With respect to piano and piano repertory, the supervisor testified that Mrs. Bozzolo had demonstrated suitable musical knowledge. With respect to public relations, Mrs. Bozzolo proved that she had taken a training course at Pan American Airlines, in addition to the experience acquired in her previous post in the General Secretariat.

That the Complainant offered as proof of her music studies only a copy of a certificate from the National Music School of Peru, bearing no date, stating that she had been registered there as a piano student from 1950 to 1956, and another certificate, also just a copy, from a private piano teacher, who states that the Complainant took piano lessons from her while an adolescent and further states that she is issuing the certificate in her capacity as a professor in the National Conservatory of Music. However, there is convincing evidence that the signer of that certificate, whose domicile is not shown on it, was never a professor in the National Conservatory of Music. With respect to the certificate of registration showing six years at the National Music School, there is evidence that the Complainant was registered there in 1951, at the age of nine, and that she did not take an examination.

That minimum requirement No. 2, on experience in the cultural area, is relevant to the duties of the post, which requires the performance of General Secretariat cultural functions such as serving as technical secretary to the Inter-American Cultural Committee and to other technical or intergovernmental meetings. Contrary to the Complainant's assertions, any staff member working on projects of the Executive Secretariat for Education, Science, and Culture could have been in a position to meet that requirement.

That the Complainant's experience in the General Secretariat is as a secretary in the Office of Financial Services (grades G-5 to G-7) and as an administrative assistant to the Treasurer (grade G-8), and she has not been connected with the cultural area. Therefore, she does not meet this requirement. In contrast, Mrs. Bozzolo's career has been in the cultural and administrative area ever since she joined the General Secretariat on August 28, 1967.

That on May 30, 1973, Mrs. Bozzolo resigned from her post in the General Secretariat, and at that time her supervisors attested to her excellent work, her administrative abilities, and her human qualities. On February 27, 1974, nine months after her resignation, she rejoined the General Secretariat as a technical assistant at the same grade, G-5, that she had had before her resignation.

That in her performance evaluations for the periods February 1974 to February 1975 and February 1975 to March 1976, her supervisors rated her an exceptional staff member.

That on November 16, 1976, Mrs. Bozzolo was selected as one of 20 General Secretariat staff members to receive the award for outstanding performance for the 1975-1976 period. In a letter of June 2, 1976, the Secretary General congratulated her on having been found to be "a staff member of exceptional competence and extraordinary merit."

That on May 1, 1977, Mrs. Bozzolo received a permanent appointment as a secretary in the Office of the Secretary General, at grade G-5, after winning an internal competition.

That on April 1, 1979, because of her great efficiency and dedication, Mrs. Bozzolo was promoted to grade G-7 as a secretary in the Office of the Secretary General, at the recommendation of the Advisory Committee on Selection and Promotion. On October 1, 1981, also at the recommendation of the Committee, Mrs. Bozzolo was promoted to the post of executive secretary, grade G-8, in the same office. In that post she had the opportunity to gain valuable experience in public relations.

That on January 25, 1983, Mrs. Bozzolo was transferred with her G-8 post to the Executive Secretariat for Economic and Social Affairs. On January 1, 1984, she was promoted to grade J (P-1) as a result of an audit of her duties and the subsequent reclassification of her post. Both the job description and the audit show that as early as January 1983 she was performing at a professional level, gaining experience in complex administrative support and developing skills very similar and pertinent to those of the post in competition. In the case of the Complainant, on the other hand, the same general audit of posts determined that her duties in the Office of the Treasurer did not merit a J (P-1).

That when she was transferred with her J (P-1) post to the Division of Arts and Youth Affairs of the Department of Cultural Affairs on September 15, 1985, Mrs. Bozzolo began to perform the duties of the abolished K (P-2) post. Both her direct supervisor, Mr. Paesky, and the Director of the Department, Mr. Torchia-Estrada, gave her the highest evaluation rating for the periods October 1985 to May 1986 and July 1986 to May 1987.

That Mrs. Bozzolo has proved that she has written in English in all her posts to the complete satisfaction of her supervisors. She has also demonstrated knowledge of Portuguese and French, languages that are not known by the Complainant and are mentioned as "desirable" in the Vacancy Announcement.

That the Complainant should have asked her supervisor to evaluate her, and her lack of timely action is solely her responsibility.

That the principle of preference on the basis of seniority, in accordance with Staff Rule 104.6(b) favors Mrs. Bozzolo because she has four more years of career service than the Complainant.

That the Department of Cultural Affairs evaluated the candidates four times and did not violate any rule by not answering the questionnaire in writing. Nor did it disobey express instructions from the Secretary General, since he directed that a questionnaire be prepared and that the supervisor be invited to answer the questions before the Committee, which is what was done.

That all this shows that there were no defects that would warrant the annulment of the procedure. Moreover, the Tribunal has already ruled on the delay in the selection process in its Judgment No. 113.

That Mrs. Bozzolo's situation is specifically governed by Staff Rule 103.7(f), which has not been translated into Spanish as amended by Executive Order No. 87-1 of August 25, 1987. It was by virtue of this provision that (a) on June 9, 1987, the post occupied by Mrs. Bozzolo since September 15, 1985, was reclassified to K (P-2); and (b) Mrs. Bozzolo received the allowance for special duties from December 9, 1987, until the selection process was concluded and the Secretary General made his decision to appoint her.

That paragraph (e) of that Rule, which sets a six-month limit on the payment of the allowance for special duties, specifically excludes the case governed by paragraph (f) of the Rule: when the performance of special duties is due to a reclassification of the post.

That the Complainant's transfer was a valid administrative action taken with a view to solving a number of staffing problems. Far from being a reprisal or punishment, that measure had the effect of offering her an opportunity for new experience after having always worked in one area.

That at no time has it been the intention of the representative of the Secretary General or of the Director of the Department of Human Resources to coerce the Complainant to refrain from lodging this complaint.

That the fact that the Complainant was not selected in a competition does not give her a right to occupy another post at the grade level of the post for which she competed, nor does it create an obligation to appoint her to another post. The Tribunal is not competent to determine the Complainant's general aptitude to fill a grade K (P-2) post or to order her appointment to another post at that level, because this would be intruding on the exclusive authority of the Secretary General under Article 119 of the Charter and Article 12 of the General Standards.

That, specifically, she prays that the complaint be dismissed in all its parts.

III. The attorney for the Complainant presented his reply in due time and proper form, and, after repeating what he had previously said, stated, inter alia:

That the selection of Mrs. Bozzolo constitutes only one episode in a long-standing practice of placing her in posts for which she was obviously unqualified. This staff member was given her G-7 and G-8 posts in the Office of the former Secretary General even though both required a high school education and neither permitted an alternative to this requirement. The P-1 specialist post in ECOSOC was also given to her even though the post required a university degree in business administration, accounting, or economics.

That the discretionary authority of the Secretary General should be exercised within the bounds of the General Standards.

That according to the Vacancy Announcement, Mrs. Bozzolo was disqualified by her failure to submit the documentary evidence before the closing date of the competition. Her assertion that she did not submit it because she thought it was in her personnel file runs counter to Staff Rule 104.5(e). Mrs. Bozzolo submitted those documents on March 31, 1991, so long after the fact that they were no longer relevant to the decision to select her for the post. Therefore, they are not pertinent to the decision on this complaint.

That the Tribunal can review the disciplinary action on the basis of principles of equity. The Complainant brought the matter of the disciplinary measure directly to the Tribunal for reasons of procedural economy, since it has a connection with this petition.

That according to Staff Rules 105.9 and 104.5(e) it was the Department of Human Resources, not the Complainant, that was required to submit an evaluation of her duties.

That in its Judgment No. 49, Graneros, the Tribunal confined itself to warning the Secretary General that he should abide strictly by the rules. In this case, however, the appropriate action would be to nullify Mrs. Bozzolo's appointment and appoint the Complainant in her place. Not to do so would be to send a message to the administration that it can continue to violate General Secretariat regulations with impunity.

IV. The attorney for the Respondent presented her response in due time and proper form and, after repeating everything she had previously said, stated, inter alia:

That the fact that Mrs. Bozzolo has gained relevant cultural experience while performing the duties of the post in question, first in grade J (P-1) and then in grade K (P-2), is no reason not to demand that kind of experience as a requirement in the competition. It is prudent and reasonable to require experience relevant to the post when there is already someone efficiently performing its duties.
That there are no grounds for the accusation that the Complainant was selected on various occasions to fill posts for which she was not qualified; what is important is that she meets the requirements for this post.

That, in addition to requirements Nos. 1-4, Mrs. Bozzolo has proved that she meets requirement No. 5(a) of the Announcement, i.e., knowledge of administrative procedures for project execution under the supervision of the division chief. In fact, Mrs. Bozzolo has carried out these procedures for years, even while she was working in the previous grade J (P-1) of the post. The Complainant, on the other hand, does not meet this requirement.

That, in relation to requirement No. 5(c), of the Announcement, it is only necessary to compare the audit report on Mrs. Bozzolo's previous grade J (P-1) specialist post with that of the Complainant's previous grade H (G-8) administrative assistant post to see that the former has more experience in compiling and preparing background information and bibliographic data and in performing baseline studies.

That with respect to requirement No. 5(e), regarding tact and courtesy in dealings with diplomatic mission staff and with other staff members of the General Secretariat, the candidate selected has demonstrated superior qualifications. Although the job descriptions of both candidates contain requirements similar to this one, the letters of recommendation from Mrs. Bozzolo's supervisors and her evaluations show that tact and courtesy have always been natural and salient aspects of her personality.

That Mrs. Bozzolo did not consider it necessary to submit the school certificates because ever since she joined the Organization her certificate in bookkeeping and typing from the Mecenas Business School has been accepted as proof of her training. This certificate obviously means that she completed primary and secondary studies at some level, since without them it would be impossible to take and pass courses at a business school. Moreover, she did not consider it necessary to submit them because since 1984, she had been occupying a professional post without being asked for such certificates.

That the Tribunal is not competent to apply principles of equity, since the General Assembly has expressly specified the situations in which it can do so and this is not one of them. Article VI.4 of the Statute of the Tribunal is an example.

That the Complainant herself has recognized that she did not exhaust the internal administrative procedures, and consequently the Tribunal should refrain from ruling on the disciplinary measure that was applied to her.

That the Complainant makes a series of allegations about the supposed job description of the G-8 post she currently occupies and attaches a copy of it that is not in the possession of the Department of Human Resources. Therefore, the attorney for the Respondent prays that the Tribunal accord no validity to that document.

V. On April 28, 1992, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal, this complaint was placed on the list of matters pending consideration. Once the President had set the opening date for the thirty-sixth regular session, the pertinent steps were taken and the Tribunal was composed of Alejandro Tinoco, President; David A. Gantz, Vice President; and Enrique Rojas Franco, Judge. It met on May 25, 1992, deliberated on the case sub judice, and, in accordance with articles 17 and 18 of the Rules of Procedure, decided by Resolution No. 267 (TRIBAD/441/92) to take testimony and hold the oral proceedings on May 28, 1992.

The testimony was taken and the oral proceedings were held on the date and at the time indicated.

Having examined the proceedings, the Tribunal now


CONSIDERS:

I. COMPETENCE OF THE TRIBUNAL

1. The Tribunal is competent to hear the present complaint, pursuant to Article II of its Statute.

II. EXHAUSTION OF ADMINISTRATIVE PROCEDURES

2. The Complainant has exhausted the internal administrative procedures insofar as the other candidate's appointment to the post in competition is concerned. She has not done so, however, with respect to the written censure imposed on her as a disciplinary action for having presented a document that contained false information.

3. The Complainant did not seek reconsideration of that disciplinary action under Staff Rule 112.2. However, citing its bearing on the present case and procedural economy, she seeks to have the Tribunal examine its motivation and nature, with a view to its nullification.

4. This Tribunal is persuaded that an actual and legal nexus does exist between the ablative act (written censure and the actions being examined in the present case. Nevertheless, the Complainant did not exhaust in due time and proper form the administrative procedures that, under Article VI of the Tribunal's Statute and Staff Rule 112.2, must precede any legal action. By not having appealed the disciplinary measure within the time limit established in those provisions, she has implicitly consented to or accepted its legal and material consequences.

5. The Tribunal cannot, without violating its own regulations, agree to hear a case related to the present proceeding, since it could do so only by joining those cases in the manner, at the time, and according to the procedures established by its rules.

6. For these reasons, the Tribunal considers that it is not competent to take cognizance of the disciplinary action because it was definitive--never challenged via the administrative procedure and therefore not subject to judicial review. Consequently, the Tribunal denies the Complainant's petition that the Tribunal order the written censure removed from her personnel file.

III. THE COMPETITION

7. In Judgment No. 113 the Tribunal ruled on the question of the delay in the selection procedure. In that Judgment, issued with regard to Complaint No. 186, the Tribunal stated that its ruling on that case involved no pronouncement, favorable or otherwise, on the Secretary General's decision in selection No. RC/227/87, which at the time was the subject of another procedure at the internal, administrative level.

8. The object of the present suit is the final decision taken by the Secretary General on July 3, 1991, whereby he confirmed his decision of February 1 of that year to appoint Mrs. Bozzolo to the post of specialist in the Arts Division, grade K (P-2). That decision was taken on June 7, 1991, three days before the Tribunal issued Judgment No. 113.

9. In a document dated May 26, 1992, one day after the opening of the thirty-sixth session of the Tribunal, the attorney for the Complainant reported that the Secretary General had nullified selection procedure No. RC/227/87 and Mrs. Bozzolo's appointment. Attached to that document was a memorandum from the Secretary General to Hernán Hurtado Prem, Director of the Department of Human Resources, dated May 23, 1992; it did not carry the Secretary General's signature, just a simple "OK." The memorandum conveys the Secretary General's decision to void the competition because both the Selection Committee's recommendation of Mrs. Bozzolo and his decision to follow that recommendation had been based on false information provided by the two candidates. According to that memorandum, at the time the decision was taken neither the Secretary General nor the Selection Committee knew that the information was false. The memorandum notes that a Disciplinary Committee had established that Mrs. Saghy submitted false documentation concerning her musical training; it further notes that Mrs. Bozzolo, the candidate selected, had presented false information concerning her secondary education and her musical training and had accepted a disciplinary measure in the form of a written censure. The memorandum concludes that the selection process was defective and should therefore be voided.

10. The Tribunal observes that the selection process was voided on May 26, 1992; in other words, four years and eight months after it began on September 28, 1987. As has been said, the Secretary General cited factors attributable to the two candidates as his reasons for voiding the selection process. He made no mention, however, of the irregularities that had vitiated the selection process from its very outset, all of which were attributable to the General Secretariat, especially the Department of Human Resources and Mrs. Bozzolo's two supervisors, Messrs. Paesky and Torchia-Estrada.

11. The first irregularity was committed by the Director of the Department of Human Resources, Nelson Mello e Souza, who violated the terms of the Vacancy Announcement by failing to determine whether Mrs. Bozzolo met the minimum requirements for the announced post and leaving that determination to the Director of the Department of Cultural Affairs. Had the Director of the Department of Human Resources done his duty under Staff Rule 104.5(e) and ruled from the start that neither of the candidates met the requirements, the subsequent irregularities would not have occurred. Thus, for example, in violation of footnote 2 of the Announcement, the Director (1) failed to require that the candidates provide the Department of Human Resources with information on their academic background (diplomas and certificates); (2) failed to establish whether that requirement had been met and to notify the candidates, before the closing date of the announcement, whether any document was missing so that they could present it before that date; (3) failed to ascertain, before making his evaluation, which documents were missing, so as to see which of them should be regarded as nonexistent; and finally (4) disqualified only Mrs. Saghy but not Mrs. Bozzolo.

12. In the judgment of the Tribunal, the Department of Human Resources should always require that originals of diplomas be authenticated by the competent authorities in the countries and that copies of those diplomas in the staff members' personnel files be authentic. It is not right that almost five years later the Tribunal itself should be forced, owing to the negligence of the responsible officials, to send inquiries to the member states at the request of one party seeking verification of the authenticity of documents submitted by another candidate, Mrs. Bozzolo. This is something the Department of Human Resources should have verified before sending its evaluation of the candidates to the Department of Cultural Affairs.

13. The Department of Human Resources is responsible for applying the Classification Standards, which, according to Staff Rule 102.1(b), regulate the system for classifying posts in the General Secretariat. The Tribunal must interpret the regulations of the General Secretariat in order to perform its function of monitoring their observance. According to the testimony of Lesley Zark, the Classification Standards approved in 1977 are difficult to interpret. They require high-school diplomas for the following general services positions: (1) G-4 (chauffeur, clerk, typist, receptionist, room attendant, transcriber-proofreader); (2) G-5 (clerk and transcriber-proofreader); (3) G-6 (technician, financial technician, personnel technician, management technician, editorial technician, and transcriber-proofreader); (4) G-7 (technician, financial technician, management technician, and editorial technician); and (5) G-8 (principal technician, principal personnel technician, principal management technician, and principal editorial technician). The Tribunal has found no provision that would allow any exception to the minimum educational requirement in the general services category.

14. The Classification Standards require the following for the professional level:

At the P-1 level:

Elementary knowledge of the principles of a recognized profession at a level normally associated with a first university degree specialized in that profession. A university degree not specialized in the relevant profession may provide adequate general conceptual knowledge and general educational background for some posts where on-job training or training provided within or outside of the General Secretariat can provide the specialized skills needed for the job. No experience is required. In some cases, extensive practical experience may be substituted for a university degree, when such experience is relevant to the work of the post in question, has shown a pattern of increasing responsibilities over a substantial period of time, and has given the individual concerned a broad background, range of skills and conceptual knowledge which are comparable to those normally associated with a university degree. In this context, it should be emphasized that the P-1 level is the beginning or entrance level for positions in a professional occupation. As such, it should not be regarded as a level to which senior general services staff are normally promoted in recognition of long careers in the General Secretariat: only exceptional experience of the nature indicated above would impart the background, skills and conceptual knowledge required for work in a professional post.

At the P-2 level:

Elementary knowledge of the principles of a recognized profession at a level normally associated with a first university degree specialized in that profession and at least 2 years of relevant work experience. A university degree not specialized in the relevant profession, in conjunction with 2 years of relevant work experience, may provide adequate general knowledge and general educational background for some posts where on-job training or training provided within or outside of the General Secretariat can provide the specialized skills needed for the job.

At the P-3 level:

Advanced knowledge of the principles of a recognized profession at the specialist level normally associated with a first university degree specialized in that profession and at least 4 years of relevant work experience or with an advanced university degree specialized in that profession and at least 1 year of relevant work experience.

A university degree or advanced university degree not specialized in the relevant profession may provide adequate general conceptual knowledge and general educational background for some posts where on-job training or training provided within or outside of the General Secretariat can provide the specialized skills needed for the job.

At the P-4 level:

Advanced knowledge of the principles of a recognized profession at the advanced specialist level normally associated with a first university degree specialized in that profession or an advanced university degree specialized in that profession and at least 7 years of relevant work experience, or with a university degree specialized in that profession at the highest level (e.g., Ph.D.) and at least two years of relevant work experience. A university degree, advanced degree or degree at the highest level not specialized in the relevant profession may provide adequate general conceptual knowledge and general educational background for some posts where on-job training or training provided within or outside of the General Secretariat can provide the specialized skills needed for the job. With a first or advanced university degree, experience is more important than educational attainments, and is measured not only in years of relevant work but also in terms of a pattern of increasing responsibilities and depth of specialization, and by visible work results.

At the P-5 level:

Advanced knowledge of the principles of a recognized profession at the highest specialist level normally associated with a first or advanced university degree specialized in that profession and at least 12 years of relevant work experience, or with a university degree specialized in that profession at the highest level (e.g., Ph.D.) and at least 7 years of relevant work experience. A university degree, advanced degree or degree at the highest level not specialized in the relevant profession may provide adequate general conceptual knowledge and general educational background for some posts where on-job training or training provided within or outside of the General Secretariat can provide the specialized skills needed for the job. With a first or advanced university degree, and with the highest university degree to a lesser extent, experience is more important than educational attainments, and is measured not only in years of relevant work but also in terms of a pattern of increasing responsibilities and depth of specialization, and by visible work results.

The requirements for D-1 and D-2 posts also figure in the Standards, but will not be discussed so as not to labor this point.

15. The provisions cited above establish specific educational requirements that, when combined with the specific degree of experience required at each level, form the bases of the General Secretariat's post classification system. These detailed regulations spelling out the qualifications needed to fill posts in the professional category are completely undermined by what is said in the introduction to the chapter on the standards for classifying professional posts.

The introduction states, inter alia:

The Professional Scale consists chiefly of professional, scientific, technical or highly specialized positions requiring university education, experience equivalent to university education, or specialized experience and a high level of personal and other qualifications . . . [Emphasis added.]

In the General Secretariat, professional occupations are those in which the duties of positions require the performance of work based upon knowledge of the established principles, concepts, and methods of a recognized profession, science, or cultural area. Professional positions are those in which the work is done on the basis of the theories, concepts, assumptions, principles, and relationships underlying or supporting the methods and practices of a recognized professional, cultural, or administrative occupation. . .

The required training may be attained by graduation from college or university, by acquisition of work experience, or by some cohesive mixture of university education and work experience, provided the training so acquired gives an employee or applicant a grasp or possession of the established concepts and principles in a recognized profession.

Professional knowledge is acquired by means of a relevant educational program, by equivalent experience and training, or by a combination of the two sources and the knowledge so acquired must be conceptual in nature and give a grasp of the principles in an occupation. When the knowledge acquired, whether in an educational institution or by experience, is pragmatic and practical and the application of such knowledge does not require or reveal an understanding of concepts and principles in an occupation it is not professional knowledge. . .

In the Classification Standards for the P-1 level, it is indicated that in exceptional circumstances experience may be substituted for a university education, provided the experience imparts the background, skills and conceptual knowledge required for work in a professional post. This means, of course, that entry into the professional ranks is not barred to those without university education, although it is equally clear that such occurrences would be exceptional. (Emphasis added.)

It should be equally clear that, once the exceptional entry into the professional category by someone without university training has occurred, the individual is not barred from progressing upwards through the professional grades because he or she lacks a university degree. Once the level of experience is judged to provide background, skills and conceptual knowledge required for professional level work, this experience is in effect substituted for the university education requirement. As a consequence, when the Classification Standards for posts above the level of P.1 speak of the "knowledge of the principles of a recognized profession at a level normally associated with" a degree, the word "normal" is utilized to indicate that in unusual situations the required level of knowledge may have been acquired by means other than a university education. Therefore, it is envisioned by the Classification Standards that persons without university education, once admitted to the Professional category, may progress upwards through the professional ranks. (Emphasis added.)

From this introduction, it can be seen that in exceptional cases (which must be justified), it is possible for someone to enter the professional category (at the P-1 level) solely on the basis of experience. Once this exception for entry into the professional category has been made, the person can rise through the ranks even though he or she does not have a university degree.

16. This means that someone who has become a professional in spite of having no university degree or even a complete secondary education can rise to the highest levels on the professional scale simply by virtue of having been admitted; he or she need not meet any of the minimum educational requirements that the Classification Standards set for each level. In reality, the Standards, and especially that introduction, allow for a casuistic, subjective, and biased interpretation of the needs of a post, to the neglect of the objective requirements for academic preparation and to the detriment of the interests of the Organization.

17. The testimony on the 1977 Classification Standards given on May 28, 1992, by the principal specialist in classification of the Department of Human Resources, Lesley Zark, was revealing and disturbing. In response to a question put by the Tribunal, Miss Zark said that the degree requirement for entry into the professional ranks has not been enforced in all cases. She said that when the Standards were written in 1977 and were reviewed by the then Assistant Secretary for Management, he insisted on an alternative to the university education, apparently because his own father, a man who did not have a high-school diploma, was quite a brilliant man, besides being well known and well respected in business. "I think he figured," Miss Zark added, "if his father could make it, other people could too. I offer that in the form of an anecdote--how the Classification Standards arrived at that . . . ."

18. All this confirms the fact that if the Classification Standards now in force, particularly their introduction, are compared with modern principles of management they seem illogical, contradictory, and antithetical to the law. Such principles are intended to make the public service efficient and effective, for which continuing academic training of staff is indispensable.
A university degree cannot be regarded as replaceable by other elements, such as a "combination of relevant studies, training and experience," an alternative that allows someone with only a rudimentary education to qualify. Nor is it acceptable that while a complete secondary education is required for general services posts from grade G-4 up (with no exceptions), the same requirement can be circumvented in the professional category by invoking the exception provided for in the introduction to the Classification Standards.

While the requirements just mentioned are necessary and desirable, they are supplementary; they are no substitute for the one essential, basic, fundamental requirement, which is a university degree, especially in the case of an international organization providing technical services, such as the Organization of American States. If the Organization is to achieve its purposes, the aptitude and professional ability of its staff must be of the highest caliber and must be acquired through education in the science or technique. It must be a prime objective of the Department of Human Resources and its classification, selection, and training areas to encourage career personnel to obtain university degrees.

19. The case of Mrs. Bozzolo illustrates the negative precedent set when exceptions are made, on the basis of a mere introduction, to the academic requirements prescribed in the Classification Standards for each grade.

The job descriptions that the Tribunal has examined in Mrs. Bozzolo's personnel files, supplied by the Department of Human Resources, show the following about the posts she has held: the post of G-5 secretary (1977) required at least a high school diploma; the G-7 post of secretary (1979) also required a high school diploma, with emphasis on secretarial and business courses; the G-8 post as executive secretary (1981) also required a high school diploma; and the J (P-1) post of specialist in the ECOSOC area (1983) required a college degree in business administration, accounting, or economics.

20. In spite of this, Mrs. Bozzolo was appointed to the general services posts listed above (all of which required at least a high school diploma), even though she had only completed an elementary education. It should be noted again that the Classification Standards for general services posts make no allowance for any exception to the diploma requirement. Further, while Mrs. Bozzolo never claimed to have completed her high school education, what was discovered this year was that she had not even completed the two years of high school as she claimed. That discovery and the discovery of the truth about her musical training prompted the decision to void the competition. The fact that she had not completed her high school education, however, did not prevent her from occupying those posts or from being placed in the J (P-1) post, which, as has been shown, required a university degree, and the K (P-2) post that was in competition, whose minimum requirements were tailored to favor her, as will be shown later.

What happened was that Mrs. Bozzolo's G-8 post in the ECOSOC area (Technical Secretariat of CIES/CEPCIES) was reclassified to J (P-1) on January 1, 1984, as a consequence of the desk audit conducted in 1983. On September 15, 1985, Mrs. Bozzolo was transferred, along with her J (P-1) post, to the Department of Cultural Affairs. According to a memorandum she sent to the Director of the Department of Human Resources on February 28, 1986, she began to perform the duties of the K (P-2) post previously held by Grace Bedoya. In June 1986, the duties of that K (P-2) post were transferred to Mrs. Bozzolo's post. The Department of Cultural Affairs sent her new job description to the Department of Human Resources in February 1986. It was signed by Mr. Torchia-Estrada in May 1986 and by María Eugenia Baldwin, of the Department of Human Resources, on September 10 of that year.

21. The K (P-2) post had previously been announced, on October 23, 1984, in Vacancy Announcement (Internal Recruitment) No. IR/36/84. Minimum requirement No. 1 in that Announcement was "University degree in liberal arts plus a minimum of two years of related experience." The Announcement was canceled for budgetary reasons in August 1985, the year when, as was noted above, Mrs. Bozzolo was transferred to the Department of Cultural Affairs. The original minimum requirement, which consisted of the two elements education and experience, was replaced in the job description signed by Mrs. Baldwin with two alternative requirements: "University degree in liberal arts or a combination of relevant courses and experience that provides the knowledge and ability needed to perform the work." That change was obviously intended to tailor the job description to Mrs. Bozzolo's level of education. In this way, the university-degree requirement was replaced by one that was even less stringent than the high school diploma required by the Classification Standards for a G-4 post in general services (chauffeur, clerk, typist, receptionist, room attendant, or transcriber-proofreader). By adding an alternative requirement, the university-degree requirement could be dispensed with and replaced by one that a person with only a rudimentary education or with no education at all could meet.

22. On June 9, 1987, Mrs. Bozzolo's post was reclassified to P-2. On September 28, 1987, the Vacancy Announcement for "Internal Recruitment of Reclassified Post No. RC/227/87, Specialist in the Arts and Youth Affairs Division was published," which is part of the issue in dispute in the present case. On January 1, 1988, Mrs. Bozzolo began to be paid an allowance for special duties. Because of the delay caused by the irregularities in the selection process, she continued to receive the allowance until February 1, 1991, the date on which the Secretary General appointed her to the post in competition. The Secretary General's decision to appoint Mrs. Bozzolo to the P-2 post was confirmed on July 3, 1991.

23. Notice that in the oral proceedings conducted by the Tribunal on May 28 last, it was shown that Vacancy Announcement No. IR/36/84 was used as the basis for preparing Vacancy Announcement No. RC/227/87. However, the second announcement, unlike the first one, gave as minimum requirement No. 1 "University degree in liberal arts or a combination of relevant studies, training and experience that provides the knowledge and ability needed to perform the work." Minimum requirement No. 2 was "Minimum of two years of experience in positions of gradually increasing responsibility in the General Secretariat related to the cultural field." Both requirements appear to have been tailored to Mrs. Bozzolo, who has only an elementary education and acquired the two years of cultural experience in the Department of Cultural Affairs between September 15, 1985, the date on which she was transferred, along with her J (P-1) post, to the Department of Cultural Affairs, and September 28, 1987, the date on which Vacancy Announcement No. RC/227/87 was issued, to which the Complainant also responded. The job description, according to testimony given by Mr. Torchia-Estrada, was prepared by Mr. Paesky, chief of the Arts and Youth Affairs Division.

24. The requirements in Vacancy Announcement No. RC/227/87 were examined by the Selection Committee (at its meeting of March 27, 1990), one of whose members was the current Director of the Department of General Legal Services, William Berenson. The minutes record several members as saying that the duties of the post did not correspond to the minimum requirements and that Mrs. Bozzolo's performance evaluations suggested some disparity between the duties she performed and those that would justify a reclassification of the post to the K (P-2) level. The Committee recommended another desk audit to determine whether the duties of the post were administrative or cultural.

When this case was examined for a fourth time at the meeting of May 23, 1990, one of the Committee members said that the Director had evaluated the candidates using a job description that, according to him, had been defective from the very beginning. He also questioned the validity of the requirements having to do with technical projects, since in his view the functions of the post were administrative and any technical functions were simply to provide administrative support. He added that this was why the consensus at the previous meeting had been to recommend a new desk audit, in order to ascertain the nature of the duties.

As a transcript of that meeting shows, the Chairman of the Committee, Ambassador Valerie T. McComie, former Assistant Secretary General, mentioned the problem of descriptions that are tailored to fit an incumbent's qualifications and performance, especially in cases involving reclassified posts that must be filled through competition. He said that this was a good example of a job description written to fit a specific person and that it was the worst case he had seen in his ten years of experience. He also said that the Department of Human Resources was to blame for the problem, since part of that Department's job was to make certain that the criteria were objective. In the opinion of the former Assistant Secretary General, the process was vitiated, which rendered it impossible for the Committee to make an objective analysis. As he put it, the two candidates could never be on an equal footing because of the way the job description was written; the job description stacked the cards in one candidate's favor.

Finally, the Chairman suggested, as the minutes of the meeting show, that a memorandum be sent to the Secretary General mentioning, inter alia, the evaluation prepared by the Director of the Department of Cultural Affairs, Mr. Torchia-Estrada, who had again based his evaluation on the job description for the post in competition. He suggested that the memorandum state that this "was unacceptable because the job description was the source of the problem, since it was so obviously biased in favor of the incumbent."

He further suggested that the memorandum should say that "the whole selection process must be reviewed to make sure there was no bias in the job description," and that the Selection Committee could not continue to examine the case because no new information had come to light and the Department of Cultural Affairs continued to ignore the questions that the Selection Committee had put to it on various occasions. As the minutes show, all the members of the Committee agreed with the Chairman's suggestions.

25. Before any decision was made on those suggestions, the Secretary General received a memorandum from the Director of the Department of Human Resources, Guillermo A. Belt, dated April 11, 1990, pointing out, inter alia, that to follow them would set a dangerous precedent.

On April 16, 1990, citing Staff Rule 104.2(b)(iv), in view of the purely advisory role of the Selection Committee and the dangerous precedent that a new desk audit would set, the Secretary General returned the case to the Committee, so that it could continue examining it. At the same time, because the Selection Committee's numerous requests for a clarification of the evaluations made by the Department of Cultural Affairs had gone unanswered, he suggested that the Selection Committee prepare specific questions so that a fair evaluation could be made. He further suggested that the supervisor be invited to appear before the Committee.

26. In the judgment of the Tribunal, it was at that point that the competition should have been voided, since there was already sufficient cause to do so. It is true, and the Tribunal has so recognized in its judgments, that, as their names imply, the Advisory Committee on Selection and Promotion and the Joint Advisory Committee on Reconsideration have a purely advisory role in the matters entrusted to them. Accordingly, under Article 118 of the Charter of the Organization and Article 40 of the General Standards, the Secretary General may or may not follow their suggestions and recommendations, since ultimately he alone has the authority to select and appoint staff to fill vacant posts. The same is true of any advice he receives from the Director of the Department of Human Resources or from any other staff member of the General Secretariat. It is always the Secretary General who must take the final administrative measure. Faced with two differing pieces of advice, the Secretary General opted to follow one, obviously in good faith. However, it must be noted that the memorandum from the Director of the Department of Human Resources omitted one crucial element that, had the Secretary General known it at the time, might have caused him to decide differently. In recounting the history of the post, especially the events of 1984, the Director of the Department of Human Resources stated the following:

The requirements in the vacancy announcement issued in 1984 [referring to the P-2 post of specialist, previously held by a staff member on contract] and in the one issued in 1987 [the object of the present suit] differ in that the former required a university degree in liberal arts and "a capacity to manage the administrative affairs of the projects under the supervision of the chief," while the latter requires "knowledge of administrative procedures for the execution of projects under the supervision of the chief."

What that memorandum failed to tell the Secretary General was that there was an essential difference between the two Vacancy Announcements, which was that in the more recent one the university degree in liberal arts ceased to be mandatory and became optional instead.

27. By ordering that a questionnaire be prepared for the Director of the Department of Cultural Affairs to answer and present to the Selection Committee, the Secretary General prolonged, to no avail, a competition that was vitiated ab initio. The new information concerning the false information supplied by the two candidates during the additional time taken up by the selection process and the subsequent actions should, as was said above, have been in the dossier of the competition and should have been demanded by the Department of Human Resources before the closing date, not after. In the case of Mrs. Saghy, furthermore, the documents were unrelated to the requirements in the Vacancy Announcement; they were related to a requirement established ex post facto and unilaterally by the Chief of the Arts Division, Mr. Paesky. This does not, however, diminish the seriousness of Mrs. Saghy's wrongdoing. The false information was cited by the Secretary General as the reason for voiding the competition, though he made no mention of the irregularities committed by the administration and the technical area.

28. The next two meetings of the Selection Committee were chaired by the present Assistant Secretary General, Ambassador Christopher Thomas. On December 13, 1990, the Committee said only that it had been unable to make any recommendation because the Department of Cultural Affairs had never responded to the questionnaire and thus had never explained its reasons for disqualifying the Complainant. At its meeting of January 29, 1991, after interviewing the Director of the Department of Cultural Affairs and the Chief of the Arts Division, the Committee recommended Mrs. Bozzolo, but never insisted that the two candidates presented copies of their degrees and certificates.

29. The Tribunal cannot disregard the fact that in her 23 years of service Mrs. Bozzolo has received excellent evaluations from her supervisors, especially when she was in the general services' category. However, the Classification Standards and Staff Rule 102.1(c) state explicitly that neither seniority nor excellence of work is a factor in classification.

30. In the judgment of the Tribunal, all the facts cited, and others too numerous to mention because of the excessive length of time taken by the competition and subsequent measures, are proof that the Complainant's subjective right to an administrative decision that would appoint the best-qualified candidate has been violated; the Classification Standards have been violated by the issuance of a Vacancy Announcement tailored to one of the candidates; the very purpose of the competition, which is to meet as efficiently as possible the service needs of the Organization of American States, has been defeated; the rules of the competition have been violated; and the Classification Standards have been applied to favor one candidate over another. In short, there has been a violation of the general legal principle that in any competition the applicants or participants must have an equal chance. Taken together, the defects are fundamental and detract from the impartiality that should govern any competitive procedure and the objectivity with which the Secretary General should be advised on matters relating to staff selection. The irregularities cited are proved by the record and confirmed by the testimony during the oral proceedings.

31. As has been said, strict observance of the Classification Standards for each level, whether general services or professional, except in unusual and justifiable circumstances, will make for a more competent career service and an Organization strengthened by its well-trained professionals. This will serve as a stimulus to staff at all levels to continue to educate themselves so that they can provide more efficient service and move up the career ladder, competing on a truly equal footing, all in the highest interests of the Organization. That is the best way to comply with Article 18.a(vi) of the General Standards, which provides that the General Secretariat shall encourage and assist the members of the career service to improve their qualifications. It will also permit compliance with Article 125 of the Charter of the Organization and Article 37 of the General Standards, which state that in selecting the personnel of the General Secretariat, first consideration shall be given to efficiency, competence, and integrity.

32. The present case is an example of how a failure to enforce strictly the regulations governing the selection of personnel and the classification of posts, specifically the Classification Standards of the General Secretariat, can lead staff members to present false documents to prove they have qualifications that they in fact do not have, which is antithetical not only to the efficiency and competence but also to the integrity so essential if the career service is to function properly and in accordance with the regulations that have been cited.

33. This Tribunal has repeatedly said that the General Secretariat must scrupulously observe the administrative procedures set out in the Staff Rules, especially those for the recruitment, selection, and appointment of staff and for transfers, performance, post classification, and the rights of career staff. The rules the General Secretariat has created are self-imposed regulations to avoid arbitrary conduct and injustices. It is ironic that, having issued these rules, the General Secretariat should be the one to violate them. When these violations occur, it is obvious the underlying intent of the action that constitutes the violation was to deviate from the objectivity with which those rules were conceived. To the Tribunal this means that there is at bottom some motive that causes these people to turn away from the proper application of the rules and regulations. Strict observance of those regulations is a subjective right of staff members of the Organization of American States, so that appointments, classifications, and promotions will take place according to objective and impartial criteria.

34. The Tribunal has also pointed out that members of the General Secretariat staff have been filing complaints of various kinds that point in one way or another to irregularities committed in violation of the Staff Rules. The Tribunal has sometimes found these to be defects of form that are inconsequential in the general context of the procedure, and that therefore do not entail the nullity of the act or of the procedure itself. However, the Tribunal has always reserved the right to determine, through its judgments, whether one of these violations is so serious that it contravenes some of the principles that serve as the foundation of the entire procedural apparatus for making decisions on personnel management.

As it noted in Judgment No. 113 and elsewhere, this Tribunal has been seeing more and more complaints brought to the Tribunal in which violations of formal regulations contained in the Staff Rules are alleged and proved, which is an open assault on the principle of due process.

IV. THE TRANSFER

35. By memorandum dated February 19, 1991, the Director of the Department of Human Resources informed the Director of the Department of Cultural Affairs that the Complainant had been laterally transferred from the Office of the Treasurer to the Executive Secretariat for Education, Science, and Culture. At the same time he requested a description of the duties that the Complainant would be performing.

The Complainant contends that she was transferred in reprisal to a post that had no official job description. The fact that the attorney for the General Secretariat acknowledged in her response that the job description presented by the Complainant had not been approved by the Department of Human Resources, and that a new job description approved by the Department of Human Resources was presented to the Tribunal on May 27, 1992, almost 12 months after the transfer, shows that the Complainant's allegation that no official job description existed is true. However, it has not been established that her transfer was in reprisal for having filed the present case with the Tribunal.

36. The testimony of Mr. Torchia-Estrada demonstrates that the Complainant was transferred to perform the duties of principal secretary to the Executive Secretary for Education, Science, and Culture. According to Mr. Torchia-Estrada, the Complainant has been unable to perform those duties because the Executive Secretary has not yet been appointed. In the meantime, Mr. Torchia-Estrada, who has been in charge of the Executive Secretariat since September 16, 1990 (see Memorandum from the Secretary General SG/EO/72/90, dated September 18, 1990), stated that he was not using Mrs. Saghy's services and only recently had assigned her a few secretarial word-processing jobs. It is clear that Mrs. Saghy has been performing duties of a level below her G-8 grade, since the department's specialists assign most of her work, not by the Acting Executive Secretary.

37. Furthermore, and contrary to the argument of the attorney for the Secretary General, this transfer was not made for the good of the Organization and to broaden Mrs. Saghy's knowledge and experience in keeping with Staff Rule 105.2(b). It is obvious that transferring a staff member to serve as principal secretary to a high-ranking official whose post has been vacant since 1990 cannot be beneficial to or in the interests of the Organization. Mr. Torchia-Estrada himself, the Acting Executive Secretary, who made repeated recommendations disqualifying the Complainant, admitted in his testimony that the transfer had not been requested by the Department of Cultural Affairs. Nor was the purpose of the transfer to expand Mrs. Saghy's knowledge, since the testimony of the Acting Executive Secretary shows that rather than serving as his principal secretary, as her job description states, the Complainant has been performing small secretarial jobs, mainly word-processing on the computer. The official job description for the Complainant's present post, signed by the Director of the Department of Human Resources on May 27, 1992, was presented to the Tribunal that same day, at the request of the Tribunal, more than a year after the Complainant was transferred on February 19, 1991. This confirms the fact that until May 27, 1992, there was no official job description for the post.

38. The foregoing demonstrates that although the Complainant continues to receive the salary of a G-8 staff member, her lateral transfer was in violation of the objectives that transfers within the General Secretariat must have under Staff Rule 105.2(b). The transfer was to a post with undefined functions, which was a violation of the following provisions: (1) Staff Rule 102.3(a), which provides that the Department of Human Resources is responsible for guaranteeing that the grade of each post is compatible with its functions and with the level of responsibility, in accordance with the Classification Standards; and (2) Staff Rule 102.3(b), which provides that the directors of departments or offices are responsible for ensuring that all staff members assigned to their departments or offices receive a description of their posts and that their immediate supervisors are responsible for seeing to it that the job descriptions adequately reflect the duties and responsibilities assigned to the staff members under their supervision.

V. CONCLUSIONS

39. As a consequence of all this, the Tribunal, in exercise of the authority conferred on it by Article VII of its Statute, confirms the Secretary General's decision to nullify the selection process and to revoke the appointment of Mrs. Bozzolo both for the reasons given by the Secretary General in his decision of May 23, 1992, and because of the irregularities that the Tribunal has described.
40. It also commands that Vacancy Announcement No. RC/227/87 be canceled and that a new desk audit of the K (P-2) post be carried out to determine its real duties and level. If, as a result of that audit, it is decided that the level of the post is higher than the J (P-1) level of the staff member currently occupying it, i.e., if the finding is that it should be at the K (P-2) level, the Tribunal orders that a new competition be announced, using Vacancy Announcement No. IR/34/84 for purposes of the minimum education required (university degree in liberal arts). If Mrs. Bozzolo continues to perform J (P-1) functions as a consequence of having been admitted to the professional category because of an exception for which the record shows no justification, the Tribunal orders--since the General Assembly, by resolution AG/RES. 1137 (XXI-O/91), suspended the requirement under Article 18.c of the General Standards that career service personnel compete for promotions--that any promotion of Mrs. Bozzolo to a higher grade may only occur when she has met the minimum educational requirement (university degree) for the higher professional grade as established in the Classification Standards. This educational requirement may not be replaced by alternative experience or any other similar or analogous requirement based on the introduction to the Standards.

41. The Tribunal concludes that the irregularities in the selection process and in the Complainant's transfer warrant an indemnity for her, payable by the General Secretariat. It also finds that the Complainant's right to perform duties that are actually at the G-8 level, in the area to which she is assigned or in another area of the General Secretariat, must be guaranteed.

Finally, the Tribunal urges the Secretary General to instruct his officers regarding observance of the regulations governing the relations between the General Secretariat and its staff.

By virtue of the foregoing, and pursuant to Article VII of its Statute, the Tribunal unanimously

RESOLVES:

1. To nullify the selection procedure to which Vacancy Announcement No. RC/227/87 refers and to cancel the Announcement.

2. To order that a new audit of the K (P-2) post be conducted under the conditions stipulated by the Tribunal in Section V of this Judgment.

3. To order that the General Secretariat ensure that the Complainant is given duties to perform that are actually at the G-8 level, in the area to which she is assigned or in another area of the General Secretariat.

4. To deny the petition that the Complainant be assured of her right to petition the Tribunal to order the removal of the disciplinary action from her personnel file, for the reasons explained in Section II of this Judgment.

5. To deny the petition that the Complainant be appointed to the post in competition or, alternatively, that she be assigned to an equivalent professional post at the P-2 level.

6. To deny the Complainant's petition that she be awarded back pay amounting to the difference between the salary she receives in grade H, step 18, and the salary she would have received at the P-2 level.

7. To deny the Complainant's petition that she be paid fringe benefits.

8. To deny the Complainant's petition that she be paid an educational allowance for her son based on the P-2 level.

9. To admit, in part, the Complainant's petition that she be paid attorney's fees, in the amount of $10,000.

10. To admit, in part, the Complainant's petition that she be paid a special indemnity, which this Tribunal sets at $10,000.

11. To deny any other petition that the Complainant may have made during the present proceeding.

Let notification be given.

Washington, D.C., June 5, 1992

Alejandro Tinoco, Esq.
President

David A. Gantz, Esq.
Vice President

Enrique Rojas Franco, Esq.
Judge

Martha Braga, Esq.
Secretary