Alex Haines and Victoria Brown achieve a landmark win before the OAS Administrative Tribunal

The OAS Administrative Tribunal has handed down judgment in Griner v Secretary General of the OAS, judgment no. 169. Alex Haines and Victoria Brown appeared for the successful Complainant during a three-day hearing at the OAS’s headquarters in Washington DC in April 2022 before all six judges of the Tribunal sitting en banc for the first time.

In its historic decision, the Tribunal changed the applicable standard of proof for cases of serious misconduct.

The landmark win entirely vindicates Mr Griner, whom the Tribunal ordered be re-instated with back-pay, or be awarded the maximum available under the Tribunal’s Statute; the latter for only the second time in the Tribunal’s history, and for the first time since the 1980s.

The Trump administration’s harassment of international civil servants

After serving two years as the President of the OAS Staff Association, Mr Griner’s continuing contract was terminated following an investigation which was “without merit, without foundation, disproportionate, and therefore an unlawful abuse of discretion” by the OAS following a complaint by President Donald Trump’s Ambassador to the OAS at the time of allegedly orchestrating a misinformation campaign regarding an anti-corruption mission in Honduras.

During a trip the Ambassador made in July 2019 to Honduras, rumours spread of a quid pro quo between the Trump Administration and the then-President of Honduras Juan Orlando Hernandez, in which the US would weaken or terminate the anti-corruption efforts of the OAS in return for increased cooperation in stemming the number of immigrants coming into the United States.  The mandate of the anticorruption mission was not extended, and the Government of Honduras eventually signed an Asylum Cooperation Agreement or “safe third country” agreement (since repealed by President Biden), which forced Central American asylum seekers in the U.S. to wait in third countries while their cases were adjudicated.

Trump subsequently appointed his OAS Ambassador to the position of Assistant Secretary for Western Hemisphere Affairs, but was not confirmed by the Senate, due in part to questions from members of the Senate Foreign Affairs Committee — including its Chair, Senator Robert Menendez (D-NJ) — about his role in opening an investigation against a US citizen in the OAS General Secretariat: see the confirmation hearing (at 6 minutes 45 seconds) and the committee vote (at 35 minutes 31 seconds).

Mr Griner’s case is just one example of the Trump administration’s seemingly focussed harassment of international public officials, which was shown starkly in the animosity towards the United Nations and other international organisations.

The “incomplete, unsubstantiated, and violative of the Complaint’s due process rights” investigation

Following the complaint, Mr Griner repeatedly sought opportunities to demonstrate his innocence. He produced written testimonies under official letterhead from all the diplomats cited in the final report of the Office of the Inspector General (“OIG”), each of whom disavowed the statements attributed to them.  Yet, Mr Griner was never afforded the opportunity to present this overwhelming evidence as the OAS obstructed that at every turn.  Indeed, his case marks one of the few (possibly the first) times an inter-governmental organisation used the Covid-19 pandemic as an excuse to delay and eventually deny due process, in contravention of resolutions approved by its member states.

The Tribunal considered there to be a prima facie case that Mr Griner’s redundancy was a sham in response to the complaint, but were unwilling to say that was definitively the case on the basis of an inference. Nevertheless, the purported redundancy was itself unlawful.

The judgment highlights the extent of the OIG’s and the Secretary General’s (“SG”) malfeasance in stark terms. In an investigation that systemically breached the most basic principles of due process, the OAS failed inter alia:

• to interview the two key witnesses, despite clear opportunities, which the Tribunal considered an “astonishing” failure to corroborate the hearsay statements and “dealt the investigation a discrediting blow”;
• to provide an opportunity for Mr Griner to defend himself, demonstrating an “arbitrary, unreasonable, demonstrably harmful” insistence on an in-person hearing rather than remote, despite significant OAS business being conducted remotely, amounting to “a gross abuse of discretion”. The Tribunal considered this “inadequately-explained failure” to be “one of the most glaring due process violations” and the OAS’s defence of the same to “strain the limits of credulity”;
• to consider or give any weight to the disavowal of the allegation by its alleged source, which instead was “blithely brushed aside… as if nothing had occurred” in disregard of the UN Investigations Manual guidance;
• “disturbingly”, to exercise reasonable discretion following the disavowal, instead both the OIG and the SG demonstrated “gravely deficient reactions” and stood by their conclusions at the hearing despite “a glaring falsehood at the very core of the investigative report that the OIG has yet to explain”; and
• to reach an objectively reasonable conclusion, instead recommending summary dismissal “on such a dubious cushion of evidence” which was “patently unsupported by the facts” and the SG having accepted that conclusion given the “startlingly weak probity” of the OIG report and “paucity of evidence” the Tribunal considered was “troubling”.

Thereafter, in exercising his discretion as to a budgetary reorganisation which resulted in the Complainant’s termination, Mr Griner’s line manager failed:

• to apply “any consideration of the internal law”;
• to use any objective criteria, instead demonstrating a “pattern of uninformed responses and inconsistencies… about his decision-making” resulting in a “flawed and irrationally-applied”, “imprecise, ill-informed and conclusory” process chosen only because it “required the least amount of effort for him as the decision-maker”; and
• to provide any meaningful explanation for the basis of Mr Griner’s termination.

Further matters were criticised in passing, including the OAS’s incorrect interpretation of its own rules, and a memo from the SG’s Chief of Staff to the Reconsideration Committee which was withheld from the Complainant.

The wider impact of the decision

This momentous decision also moves the OAS to align with other, larger international organisations by raising the standard of proof for allegations of serious misconduct. Now, the OAS will be required to demonstrate “clear and convincing evidence” rather than a “preponderance of the evidence”.

The Tribunal also recommended that the OAS consider: (i) revising its own Staff Rules in order to clarify the scope of protections for staff members in respect of termination, (ii) devising and issuing a set of criteria to be applied in reorganisations, and (iii) and producing guidance about communication with donors and other third parties.

Mr Griner’s case made waves in the international public service community, as well as attracting significant interest from Capitol Hill, with US Congress staffers closely following the hearings.

During the three-day hearing – which was conducted in English and Spanish – Alex and Victoria made oral submissions and examined the witnesses, including a US State Department official. Their appearance highlights the reach of the English and Welsh Bar and Outer Temple’s unrivalled experience in international administrative law and international organisations more generally

Find out more

Alex Haines, is a specialist in international law, with particular expertise in the extensive field of international organisations law. Alex was appointed to the Attorney General’s London B Panel of Junior Counsel to the Crown in 2019 and as Sanctions Officer at the Caribbean Development Bank in 2020.

His practice areas include: (i) business crime and corruption including global investigations; (ii) sanctions and export control; (iii) international regulatory and disciplinary proceedings; (iv) institutional law of international organisations including their immunities and international administrative law; (v) international arbitration; and (vi) financial services inquiries (instructed on the Dame Linda Dobbs Review).

He regularly litigates before international tribunals including in Washington DC, New York City, London and Luxembourg. The cases he has been instructed in have involved more than 30 international organisations including the UN (and its specialised agencies, programmes and funds such as UNICEF), the World Bank Group, the IMF, the European Investment Bank, the European Bank for Reconstruction and Development, the African Development Bank and the Organisation of American States.

To find out more, contact Sam Carter on +44 (0)203 989 6669 or Colin Bunyan on +44 (0)20 7427 4886 for a confidential discussion.

Victoria Brown is a civil and commercial practitioner with a particular focus on pensions, employment and commercial disputes. She is ranked as a rising star by the Legal 500 in both Pensions and Employment.

She regularly appears as sole counsel in courts and tribunals and has represented clients in the Court of Appeal, High Court and Employment Appeal Tribunal. Victoria also has significant international experience, and has appeared before the World Bank Administrative Tribunal and the Organisation of American States Administrative Tribunal. Victoria acts for and against individuals, public authorities, FTSE 100 companies, senior executives, major financial institutions and NHS Trusts.

To find out more, contact Sam Carter on +44 (0)203 989 6669 or Colin Bunyan on +44 (0)20 7427 4886 for a confidential discussion.

News 4 Oct, 2022