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Judgment No. 50
Complaint No. 77 Enrique Méndez v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Alejandro Tinoco, President; John L.A. de Passalacqua, Vice President; and Luis Alvarado, Judge, Has before it for judgment the proceedings on the complaint filed by Enrique Méndez against the Secretary General of the Organization of American States. The Complainant was represented by Ovidio Martínez, attorney, and the Secretary General by Martha Braga, attorney of the Bureau of Legal Affairs of the General Secretariat, all in conformity with Article 22 of the Rules of Procedure of the Tribunal. WHEREAS: I. On August 13, 1979, Enrique Méndez filed a complaint, as authorized by the Statute of the Tribunal. After complying with the requirements as to his personal and official status, the Complainant went on to explain the facts that had given rise to his complaint, and in this regard stated: That on July 19, 1978, Vacancy Announcement No. 49/78 was issued, opening a competition for the position of Chief of the Press Unit, a P-5 post in the Department of Public Information. This Vacancy Announcement listed the minimum requirements and the duties and responsibilities of the post and stated that applications should be sent to the Office of Personnel before September 19, 1978, together with the personal data called for on Form OAS 60. That on August 15, 1978, the Complainant presented to the Director of the Office of Personnel his request to participate in the competition and asked that all the documentation in his personnel file be taken into account. That on November 20, 1978, the Director of the Office of Personnel informed the Complainant that his office had sent the Director of the Office of Public information all the documentation presented by the Complainant and that contained in his personnel file. That on November 21, 1978, the Director of the Department of Public Information informed the Director of the Office of Personnel that on November 17 he had summoned the Complainant to his office and told him that his name was not included in the recommendation from the Office of Personnel to the Department of Public Information because he did not meet the requirements for the post. That this information from the Director of the Department of Public Information was a violation of Staff Rule 104.4, since the Director of the Office of Personnel is not authorized to determine a priori whether a candidate does or does not meet the requirements for a post. That on November 21, 1978, the Director of the Department of Public Information sent the Director of the Office of Personnel his evaluation and choice of the competitors for the post announced in Vacancy Announcement No. 49/78. His evaluation of the Complainant was as follows: "He has been attached to the Department for many years, but he lacks the experience and knowledge to serve as Chief of the Unit." That this supposed evaluation by the Director of the Department, which disqualified the Complainant as a candidate, is totally unfounded, does not analyze the Complainant's merits in the light of the minimum requirements specified in Vacancy Announcement No. 49/78, and is a biased and incorrect assessment of the Complainant's merits as claimed and proved in the competition. This evaluation violates Staff Rule 104.4 and is obvious proof of a deliberate intent to ignore the Complainant's candidacy. That the evaluation of the candidate Juan Carlos Gumucio mentions that he has excellent qualifications, both academic and professional, but does not identify them or analyze them in the light of the minimum requirements specified in Vacancy Announcement No. 49/78. It also attempts to justify the selection of Mr. Gumucio by making reference to the expectations and new guidelines of the Secretary General regarding the future performance of the Press Unit and the Department, but fails to say what these are and does not mention how Mr. Gumucio's qualifications could contribute to them. Further, these alleged expectations were not included among the minimum requirements and in any event would be conditions established by the Director without authority. That on February 1, 1979, the Department of Public Information distributed a circular announcing that Juan Carlos Gumucio had been appointed Chief of the Press Unit of the General Secretariat of the OAS. This circular states that Mr. Gumucio previously worked for the Associated Press in New York and was press counselor of the Embassy of Bolivia to the White House; it also mentioned that he had graduated from the Universidad Católica Boliviana in 1971 and worked as an editor for Bolivian newspapers. That these are the outstanding, excellent academic and professional qualifications of Mr. Gumucio mentioned but not specified in the evaluation made by the Director of the Department of Public Information. It is evident, of course, that Mr. Gumucio's qualifications, as stated in the circular, do not meet the minimum requirements of the competition and are very inferior to the merits claimed and proved by Enrique Méndez in the competition, which do meet them. That the Reconsideration committee signed its final report to the Secretary General on July 17, 1979. Over a long period of more than three months, the Committee did not fulfill its obligations, did not act with all possible diligence, did not demand the production of the documents and evidence requested by the Complainant, did not collect any evidence, never gave the Complainant an opportunity to present the facts and grounds on which he was requesting reconsideration, either in writing or orally, and allowed its legal term to expire; the result of the Committee's behavior, which was in violation of the Staff Rules and the General Standards, is that the Complainant has been denied justice to his rights during the reconsideration process. The facts recorded here are clearly stated in the Committee's final report, signed on July 17, 1979, a copy of which was sent to the Complainant on August 6, 1979. That the report of the Reconsideration Committee contains a set of facts about the refusal of the Office of Personnel and the Bureau of Legal Affairs to turn over to it the documents requested by the Complainant. These facts demonstrate an intent to obstruct the Complainant in the exercise of his right to reconsideration. That these facts constitute proof that the Office of Personnel, the Bureau of Legal Affairs, and the Reconsideration Committee itself committed a number of administrative actions that prevented the Complainant from exercising his right to reconsideration. These actions have had two major adverse effects on the Complainant: first, he was denied the right to view the documents and background information in the file on the competition in which he participated as an international career service staff member so that he could exercise his right to reconsideration and have the Secretary General revoke the decision under challenge; and second, he was unduly delayed in filing this appeal to the Tribunal and was forced to proceed without being acquainted with the documents and background information that would enable him to lay a proper foundation for his complaint. That the Secretary General's responsibility in these matters was made clear in the Complainant's memorandum to him dated July 11, 1979, which brought these matters to his attention and asked him to order an investigation. That the Director of the Office of Personnel did not tell the Secretary General about the memorandum, and in his own memorandum of July 16, 1979, informed the Complainant that "under the circumstances, the General Secretariat does not consider that the type of investigation you request is in order." In this way, the reasons for the action contravening the Complainant's rights have not been investigated and the actions themselves have not been subjected to any penalty, even though they violate the General Standards and the Staff Rules. That the Complainant bases his compliant on articles 16, 17, 38, and 58 of the General Standards to Govern the Operations of the General Secretariat; judgments Nos. 19 and 25 of the Administrative Tribunal; and Staff Rules 104.4 and 112.5. That he prays the Tribunal to revoke and nullify the decision of the Secretary General of February 1, 1979, whereby Juan Carlos Gumucio was appointed Chief of the Press Unit of the Department of Public Information; the decision of the Assistant Secretary General, Officer in Charge of the General Secretariat, confirming the foregoing decision; and the decision not issued by the Secretary General that had the effect of tacitly confirming the appointment of Mr. Gumucio as a result of the competition initiated by Vacancy Announcement No. 49/78. That the obligation he seeks to have met is that the Tribunal rule that, in accordance with the letter and spirit of the General Standards and other applicable provisions, the appointment resulting from Vacancy Announcement No. 49/78 for the post of Chief of the Press Unit of the Department of Public Information should go to the Complainant, and therefore order that he fill the post from the date on which the judgment in this Complainant is issued, with all the effects of that appointment. That the Tribunal set whatever amount it deems appropriate for attorney's fees. II. On September 18, 1979, the attorney for the Secretary General answered the complaint and, after presenting her credentials as representative in accordance with Article 22.1 of the Rules of Procedure of the Tribunal, stated: That the Complainant did not carry out the requirement to submit OAS Form 60, as called for in Vacancy Announcement No. 49/78, and therefore the Tribunal should not accept the Complainant's candidacy in the competition as valid. To do otherwise would be to place Juan Carlos Gumucio at a disadvantage, since he did carry out the formalities called for in the Vacancy Announcement. That the Director of the Department of Public Information carefully examined the applications, taking into account both the "academic training and professional capability" and the "minimum requirements." The result of this examination appears in his memorandum, in which reference is made to disqualified candidates, including the Complainant, and to qualified candidates, including Juan Carlos Gumucio and Wilson Velloso. These candidates were the finalists, and Mr. Méndez was not one of them because he did not meet the minimum requirements. That the Complainant claims that the evaluation made by the Director of the Office of Public Information is biased and incorrect. It is up to him to prove this, in accordance with the procedural principle that the burden of proof is on the plaintiff. That it should be added that the Complainant's statement that Staff Rule 104.4 has been violated is unfounded. The Director complied with that Rule when he evaluated the candidates and recommended the one he considered most qualified. The pertinent part of Staff Rule 104.4(a) is as follows: "Once that evaluation is completed, the Director shall recommend the candidate he considers most suitable for the post." That Mr. Méndez may not take the statement by the Director out of context or disregard his statement that the scores of the candidates Velloso and Gumucio "are the same." Still less can he ignore the fact that the Director said that the comparison was based on the minimum requirements set out in the Vacancy Announcement and only then, for the finalists, was consideration given to the Secretary General's expectations and new guidelines regarding the post. That in examining the candidacy of Mr. Méndez, the Director bore in mind the minimum requirements and the professional ability of Mr. Méndez. However, the other bases of comparison were not needed in his case, since he did not meet the minimum requirements. That the Complainant alleges that the expectations and guidelines are not specified and were established by the Director without authority. Even though the plaintiff bears the burden of proof, it should be pointed out that these expectations and guidelines are clearly spelled out in a memorandum dated December 11, 1978, from the Chief of Staff of the Secretary General, in connection with this competition. The new needs of the Department of Public Information also stem from the "Guide to Activities of the Department of Public Information of the Organization of American States (1977, 1978, 1979)," which was drawn up on the basis of direct consultations with executives in the Organization, representatives of the press and other information media, members of the Missions to the OAS, and interested organizations. That, among other things, the Guide expresses the Department's wish to carry out the recommendations it had been given, for activities that will gradually transform it from its current exclusive concentration on Spanish- language press, radio, and television into a more balanced public information program. This means strengthening parallel efforts in such member states as Brazil, the United States, and those in the Caribbean area; giving outside information media access by means of television, press, radio, magazines, institutional publications, a speakers' service, targeted publicity, seminars, public relations, etc.; and using, up to a point, all four official languages, not just one as in the past. That, in addition, greater attention will be paid to promoting technical assistance and development efforts, and to providing better information services tailored to the needs of the member states of the OAS, as expressed by or through the Missions to the OAS. That this new approach cannot be achieved without a team effort on the part of the Department staff. That for some time a number of groups have expressed concern about the lack of coverage of news on the OAS and Latin America in the United States press; the Guide also contains revealing information on this point. That in the chapter "New Approach to and Reorganization of the Public Information Activities of the Department of Public Information," under the subhead "Background Information on the Reorganization Efforts," the Guide contains a very interesting analysis of the real activities and needs in the press area of the Department of Public Information. That as for the Complainant's allegation that the expectations and new guidelines of the Secretary General are not included in the minimum requirements stated in the Vacancy Announcement, it should be pointed out again that these requirements were considered first. That before 1970 the Organization of American States aroused great interest among journalists because of such situations as Cuba, the Dominican Republic, and El Salvador. The press also took an interest in the technical programs of the Alliance for Progress. That after 1970, however, press interest in the Organization declined notably, giving way to an interest focused on background material. That except when there is a political crisis such as the one in Nicaragua in June of this year or a situation like the one in the Dominican Republic after the recent hurricane, the press is not interested in using the Organization's news releases. That the new directive, which is not the outcome of a whim but rather of historical reality with which the Tribunal must be familiar, is closely linked to requirement No. 2, "Command of Spanish and English (both oral and written);" to requirement No. 3, "Extensive experience as a reporter, writer, or editor in news agencies, newspapers, or other periodicals;" and to No. 4, "Familiarity with Latin American affairs. Proven professional ability and practical experience in mass communications media as a writer, reporter, and editor." That the mere statement by the Complainant that he meets the minimum requirements and has proved he has the merits claimed is not sufficient for his claims to be accepted as true. On the contrary, the Complainant must demonstrate that he meets each and every one of the minimum requirements and that he and Mr. Gumucio are equally qualified. That Article 38 of the General Standards leaves it up to the Secretary General alone to determine whether or not conditions are equal in the case of two or more candidates for a post. Therefore, he can assign the post to the one he considers best qualified--that is, not in equality of conditions. He is not encumbered by any recommendation of the Staff Selection Committee, which is purely and simply an advisory body. Although in the case of Mr. Méndez he endorsed the recommendation of the Staff Selection Committee, the Secretary General need not give any explanation to the other candidates about the criteria used in reaching his decision. That if there had been any intention to deny the Complainant his right to reconsideration, the papers of the Selection Committee would not have been submitted, since, as has been said, Article 38 of the General Standards gives the Secretary General sole power to give the post to the person who, in his sole judgment, has the best conditions and qualifications. He can do this regardless of any recommendation of the Staff Selection Committee, since its function is purely and simply advisory, as the Tribunal itself recognized in Judgment No. 14, Caserta v. Secretary General. But there was no such intention, as is shown by the fact that, even though late, the papers were presented to the Reconsideration Committee. That for all these reasons of fact and law, she is of the opinion that this Tribunal should dismiss the complaint filed by Mr. Méndez in all its parts and rule that the Secretary General was correct in appointing Juan Carlos Gumucio as Chief of the Press Unit of the Department of Public Information. III. On October 2, 1979, the Complainant presented his reply to the Secretary General's answer. IV. On October 17, 1979, the Secretary General presented his response to the Complainant's reply. V. On October 23, 1979, pursuant to Article 14.2 of the Rules of Procedure of the Tribunal, the case was placed on the list of matters pending consideration. Once the opening date for the session corresponding to the fourth quarter of this year was set by the President, the pertinent steps were taken and the Tribunal was composed of Alejandro Tinoco, President; John L.A. de Passalacqua, Vice President; and Luis Alvarado, Judge. It met as scheduled, deliberated on the case sub judice, and decided that, in accordance with Article 17 of the Rules of Procedure, it would take the testimony offered and hold the oral proceedings requested by the Complainant on November 21, 1979, at 10:30 a.m. On the day and at the time indicated, the hearing to take testimony began. It continued into the afternoon of the same day, when the oral proceedings were also conducted, as the record shows. The Tribunal then decided that further evidence was not necessary and, pursuant to Article 27 of its Rules of Procedure, designated one of its members to draft the judgment. Having examined the proceedings, the Tribunal now CONSIDERS: 1. That it is competent to hear the present complaint, pursuant to Article II of its Statute. 2. The fundamental question that the Complainant brings before the Tribunal for decision is whether the Director of the Department of Public Information, the Staff Selection Committee, and the Secretary General wrongly assessed the merits of the Complainant, Enrique Méndez, in comparison with those of Juan Carlos Gumucio, who was selected by the Selection Committee and appointed by the Secretary General to the post of Chief of the Press Unit, Department of Public Information. 3. The Complainant bears the burden of proof: he must demonstrate irrefutably that the selection and appointment procedure has not been complied with, and that he has been denied the substantive rights enjoyed by staff members of the General Secretariat. 4. Article 119 of the Charter of the Organization of American States confers upon the Secretary General, inter alia, the power to appoint the staff members and employees of the General Secretariat, and also provides that that power must be exercised in accordance with the General Standards and budgetary provisions established by the General Assembly. 5. Article 17(b) of the General Standards to Govern the Operations of the General Secretariat provides that preferential consideration shall be given to members of the international career service and, other conditions being equal, to those of greater seniority, in filling vacancies and in continuing in service when reductions are made in the staff of the General Secretariat. 6. It can be seen from the applicable regulations that members of the international career service have preference in obtaining posts when they compete with other staff members or any other candidate, but this priority operates only where conditions are equal between a candidate who is a member of the international career service and a candidate who is not; under these circumstances, the Secretary General has the power to decide whether the competitors meet the conditions for performing the duties of the post. 7. This Tribunal has already expressed the opinion that the Secretary General is authorized to use his own judgment in determining whether or not conditions are equal, but that if a Complainant can demonstrate that this assessment does not make the inequality of conditions sufficiently obvious to counteract the preference for career service personnel in filling vacancies, the Tribunal may, in accordance with Article VII of its Statute, restore the right of the Complainant in any manner it deems appropriate (Caserta v. Secretary General, Judgment No. 14, of June 13, 1975). 8. The present controversy has to do with whether the Complainant has been able to demonstrate during the proceedings that there is an equality of conditions that would justify his being given the preference provided for under the General Standards. To determine whether the evidence produced has been sufficient, this Tribunal has carefully analyzed the written statements of the parties and their appendices, the interrogation of the witnesses, and the oral proceedings. 9. The spirit of the regulations under analysis is that the international career service staff has priority in obtaining vacant posts where conditions are equal. When there are applicants who belong to the career service and applicants who do not, and the conditions are not equal, the post may be awarded to the person favored by this inequality of conditions. In the administrative sphere, the sole authority to determine the equality or inequality of conditions belongs to the Secretary General. However, an applicant who is a member of the international career service may demonstrate in litigation that there is no inequality of conditions that would justify a failure to apply the principle of priority for career service personnel in obtaining vacant positions. If the Tribunal finds this proof sufficient, it will restore the Complainant's right, in accordance with its Statute. 10. In analyzing the background and experience of the Complainant and of the staff member who was appointed, as presented to the Secretary General, and comparing this analysis with Vacancy Announcement No. 49/78 and with the documentary evidence and testimony presented by both parties, this Tribunal has concluded that the Complainant has not presented adequate proof that the conditions are equal enough to call into operation the principle that members of the international career service should be given priority in the appointment of the General Secretariat staff. By virtue of the foregoing, and pursuant to articles II and VII of its Statute, the Tribunal unanimously RESOLVES: To dismiss the complaint in all its parts.
Let notification be given. Washington, D.C., November 29, 1979
Alejandro Tinoco, Esq. / President John L.A. de Passalacqua, Esq. / Vice President Luis Alvarado, Esq. / Judge Domingo E. Acevedo, Esq. / Secretary
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