IEC Journal

Political Email by Federal Employees

Sending partisan emails on your government email service is getting to be a hot topic for OSC Hatch Act prosecution.  Prior to the 2004 election, OSC sent out an advisory about sending political emails to co-workers and possible Hatch Act violations that could result when such emails are sent to large groups of co-workers.  The OSC filed two cases on this issue in August, prior to the 2004 election, and as of January 14, 2004, has filed two more cases on this issue.

The OSC noted in a press release about these most recent cases:

The U.S. Office of Special Counsel (OSC) filed two similar complaints for disciplinary action against Kansas City, Mo. based Social Security Administration (SSA) employees for sending politically partisan electronic mail messages while on duty, in violation of the Hatch Act.

The complaint against Michael Davis alleges that he sent an e-mail message to about 27 of his SSA coworkers while on duty and in his federal office building. The message contained a widely-circulated picture of President George W. Bush in front of an American flag with the statement “I Vote the Bible.” The text of the message contains several statements in support of President Bush, a negative statement about Democratic Presidential candidate John Kerry, and a statement urging that the reader to “Pass along the ‘I Vote the Bible’ button.”

A similar complaint against Leslye Sims, alleges that she sent an e-mail message to 22 people while she was on duty and in her federal office building. The subject of the e-mail was: “Why I am supporting John Kerry for President?” and is presented as a letter that appears to be written by John Eisenhower, son of President Eisenhower. The e-mail contained several reasons why the reader should vote for Presidential candidate, John Kerry, and not support the Republican Party.

The cases were filed with the Merit Systems Protection Board.   The MSPB decides if disciplinary action is  warranted, with presumptive punishment being removal, but minimum punishment is a 30 day suspension without pay.

For more information see http://www.osc.gov/documents/press/2005/pr05_02.htm

OPM Issues Comp Time Rule

Download fr.05-1457.pdf Today OPM issued interim regulations to implement a provision of the Federal Workforce Flexibility Act of 2004, which authorized compensatory time off for time spent by an employee in a travel status away from the employee's official duty station when such time is not otherwise compensable.  The interim regulations will become effective on January 28, 2005, and comments on them must be received on or before March 28, 2005.

Widely Attended Gatherings: Dollar Amount Has Not Changed

Currently, the maximum value of a gift of free attendance at a widely attended gathering when the gift is from a person other than the sponsor of the event is $285.  (5 C.F.R. 2635.204(g)(2))  The Office of Government Ethics (OGE) has periodically updated this amount so that it is identical to the "minimal value" established by GSA for reporting of gifts from foreign governments.  Although GSA announced in the January 12, 2005 Federal Register (Vol 70, No. 8, page 2318) that the minimal value has been changed to $305 commencing January 1, 2005, this change does not automatically change the $285 gift limit for widely attended gatherings. 

Bottom Line:  $285 remains the gift limit for widely attended gatherings until OGE changes the regulation. 

GSA Increases Minimal Value for Reporting Foreign Gifts

On January 12, 2005, GSA issued a final rule increasing the minimal value for reporting foreign gifts to mean $305 or less as of January 1, 2005.  The final rule is available at 70 Fed. Reg. 2318.

Guilty Verdicts for Ex-FBI Agent and Trader

The New York Times on-line (you must register to use this site) reported today that a Federal Bureau of Investigation (FBI) agent assigned to Indian reservation crimes provided a trader with information about white-collar corporate investigations who then used some of that information on the trader's investment website, enabling him to collect at least $2.7 million from subscribers.  The former FBI agent was found guilty of securities fraud conspiracy charges and the trader was convicted of using confidential information from an FBI agent about criminal investigations to profit illegally in the market.

February IEC Meeting

Our next meeting will be on Thursday, February 3rd from 12:15-1:45pm in the FDIC Auditorium, 801 17th St., NW, Washington.  The nearest Metro stops are Farragut West, 17th St exit, for the Blue and Orange lines, and Farragut North, K St exit, for the Red line.  You may pre-register for this meeting by contacting Pat Carney no later than Monday, January 31st. 

SCHEDULED PRESENTATION:  Having problems understanding some of the investment arrangements listed on the financial disclosure reports of new agency employees?  In particular, are the retirement or termination packages that your new employees received from their previous employers presenting you challenges?  If so, the February meeting may be just the thing for you.  Jeff Green, of OSD, has arranged for an insurance broker to describe some of the retirement products currently being used by big corporations.  His topics will include the plans discussed in the OGE Review Guide as well as new products on the market.

FUTURE MEETING DATE REVISIONS:  There have been a few changes in our previously-announced schedule for 2005.  If you’d like to re-mark your calendars, our revised schedule of meetings for this year is: March 3rd; April 5th; May 5th; June 2nd; July 7th; August 11th; October 6th; November 3rd; and December 8th. Meetings will begin at 12:15 and will last until about 1:45.

FDR Conference Accepting Proposals

The Federal Dispute Resolution Conference is now accepting proposals for presentations at its 20th annual program. This year's event will take place in New York, August 7-11. You can submit proposals via their online form. Proposals are due February 15, 2005.

The core audience  of this annual conference is federal personnel specialists and lawyers who work in in the fields of alternative dispute resolution, equal employment opportunity, human resource development and management, labor and employee relations. Many IEC members are experts in topics relevant to this audience, and presenting at prestigious conferences like FDR is a way to showcase your ability.

Interested in being a presenter but have schedule conflicts this August? The FDR schedule for future years looks like this:

August 20-24, 2006 in San Antonio, TX
July 29, 2007 - August 2, 2007 in San Francisco, CA

IEC Meeting Schedule Changes

Dates for three monthly IEC meetings have been changed due to the unavailability of the FDIC Auditorium.  Please note these changes in your calendar.  All meetings continue to be at the FDIC Auditorium at 12:15 pm.

April 5 (Tuesday) instead of April 7.

August 11 (Thursday) instead of August 4.

December 8 (Thursday) instead of December 1.

For your convenience, a complete amended schedule is appended.

 Revised IEC Meeting Schedule
(As of Jan. 21; latest changes marked in red.)

February 3:   
Financial Disclosure: The World of Troublesome Financial Instruments
(Jeff Green)

March 3:       
OGE Midyear Report
(John Szabo)

April 5 (Tuesday):         
Innovations in Training   
(Laurie Rafferty)

May 5:          
Tricks of the Trade: Memorializing Ethics Advice and Record Retention
(Steve Epstein)

June 2:         
Misuse of Office
(Program Sponsor Needed)

July 7:          
Professional Associations and Non-Federal Entities
(Program Sponsor Needed)

August 11 (Thursday):      
Activities in GSA Buildings, CFC, and other Fundraising
(Pat Carney)

September:   
No meeting due to OGE Conference

October 6:    
Small Group Analysis of Widely Attended Gatherings: Part I
(Eric Rishel and Ed McDonnell)

November 3:    
Small Group Analysis of Widely Attended Gatherings: Part II
(Eric Rishel and Ed McDonnell)

December 8 (Thursday):     
Travel with Lenny
(Steve Epstein)

GSA Raises Foreign Gift Minimal Value

The General Services Administration has raised the definition of "minimal value" under the Foreign Gifts & Decorations Act to $305 or less for the 3-year period 2005-2007. See 70 FR 2317-2318 (pt. V) (01/12/05). A brief note at the OGE web site explains that this affects the gifts and travel reimbursements reporting thresholds under the Ethics Act for the public and (as extended by OGE regulation) confidential financial disclosure systems, including the SF 278 & OGE Form 450 report forms.

GAO's Summary of 9/11 Commission's Recommendations

Today, the General Accounting Office (GAO) released its summary of the 9/11 Commission's recommendations and GAO's opinions as to whether the particular recommendations could be implemented administratively or require legislation to implement.

OFPP Chief Considering Whether to Allow Direct Conversions

The Government Executive reported that the head of OMB's Office of Federal Procurement Policy, David Safavian, is in the beginning stages of reviewing whether the competitive sourcing rules of OMB Circular A-76 should authorize direct conversions from public to private sector work.

DOJ Press Releases

Good ethics trainers know that using real examples of bad conduct makes lessons more credible and interesting. One source is Department of Justice press releases. This example shows how a Department of Agriculture employee abused her postion to provide phony proof of employment for her brother. The Department of Justice web site has links to U.S. Attorneys' Offices around the country. Due to the high concentration of federal employees in the Washington, DC area, that office is a good place to look.

DOD SOCO Newsletter 05-01

DOD Standards of Conduct Advisory 05-01 is available. You can sign up for a free subscription to this excellent update service, presently edited by Eric Rishel. Here's one useful reminder from this issue:

The Office of Government Ethics (OGE) Annual Ethics Questionnaire for calendar year 2004 is due no later than February 1. This year agencies are required to submit their 2004 Annual Agency Ethics Program Questionnaire on-line.

OGE Considers Disclosure Changes

The Office of Government Ethics is soliciting public comments on proposals to improve the financial reporting process. The deadline for comments is Feb. 11, 2005. The Federal Register announcement indicates:

OGE's report will focus on whether to recommend amending the body of information that is statutorily required to be included on the Standard Form (SF) 278 Executive Branch Personnel Public Financial Disclosure Report, as well as whether to recommend changes to the public financial disclosure system itself. Specifically, OGE will analyze whether to recommend changing: the number of asset, income, transaction and liability valuation categories; the various reporting time periods; the dollar thresholds for reporting particular assets, income, transactions and liabilities; the requirements to report most transactions, to identify the type of income earned, and to report the actual dollar amounts of particular types of income; and the level of description and detail required, particularly on Schedules C (liabilities and agreements or arrangements) and D (outside positions and compensation over $5,000) of the SF 278 report form.

IRS Permits CDs for Stock Acquired through Options or Stock Purchase Plans

The Office of Government Ethics announced on January 14, 2005, that 26 U.S.C. 421(d) has been amended effective October 24, 2004.  The amendment allows Federal employees, who are required to divest stocks or options acquired through incentive stock option programs or employee stock purchase plans because of potential conflicts of interest, to treat the gain on the forced sale of the asset as a capital gain, regardless of how long they have held the asset.  Such gains, consequently, are eligible for a deferral of recognition of any gain pursuant to a certificate of divesture.

OSC Press Release Announces New Initiatives

On January 7, 2005, the Office of Special Counsel issued a press release stating that it reduced its backlog of cases and announcing several new initiatives to guard merit systems principles, streamline customer service, and improve case processing.  For example, a new customer service unit will be created to serve the public and Federal employees and OSC operational units, and a new Midwest Field Office will be established in Detroit, MI.

Accepting Gifts from Prohibited Sources

Below is a summary of a MSPB case in which a supervisor solicited drug samples from a prohibited source.  Two points of interest in this case are one, that on appeal the Board sustained all of the agency's charges and did not find the Standards of Conduct a mere technicality like the administrative judge; and two, the MSPB credited the agency's ethics training program on putting the employee on notice regarding potential violations in this area.

ALAM SHER, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.

 

DOCKET Number BN-0752-02-0027-I-2

MERIT SYSTEMS PROTECTION BOARD

97 M.S.P.R. 232; 2004 MSPB LEXIS 1824

September 16, 2004

BACKGROUND

Effective November 4, 2001, the agency demoted the appellant from his GS-13 Chief of Pharmacy Service position at its facility in Togus, Maine (Togus), to a GS-12 Clinical Pharmacist position, and suspended him for 45 days, based on charges that he solicited and received free pharmaceuticals in violation of 5 C.F.R. § 2635 and that he refused to provide information relating to an administrative investigation in violation of 38 C.F.R. § 0.735-12. He filed his appeal, raising affirmative defenses of discrimination based on religion (Muslim) and national origin (Pakistani). The administrative judge issued an initial decision that sustained the charges of soliciting and receiving free pharmaceuticals, but did not sustain the charge of refusing to provide information in an administrative investigation. The administrative judge further found that the appellant did not establish his affirmative defenses of religious and national origin discrimination. The administrative judge did not affirm the penalty of demotion and suspension, finding that no penalty was warranted under the circumstances of the case. The agency filed a petition for review. The Board granted the agency's petition for review, sustained the initial decision as to the charges that the administrative judge upheld, but reversed the initial decision as to the charge that the administrative judge did not sustain and the penalty determination.

ANALYSIS

According to the notice of proposed removal, on June 16 and August 16, 2000, the appellant signed a "Free Goods Requisition" form to receive the drug Lipitor in 10-mg., 20-mg., and 40-mg. doses. In December 2000, he informed a Hospital Representative for Pfizer, Inc., that he was taking 40 mgs. of Lipitor and asked the representative if he had any 40-mg. Lipitor samples. On January 25, 2001, he informed a Pfizer salesman that he was using Lipitor in the 40-mg. dosage and asked if the salesman had some Lipitor for him. On January 29, 2001, agency investigators found, in the appellant's briefcase and his office, 672 10-mg. tablet samples of Lipitor which he had received from the Pfizer hospital representative and the salesman. The agency charged that these actions violated 5 C.F.R. § 2635, Standards of Ethical Conduct for Employees of the Executive Branch, Subparts A and B, General Provisions and Gifts from Outside Sources.

In sustaining the charges, the administrative judge found that the Lipitor met the definition of a "gift" and that Pfizer was a "prohibited source," i.e, an entity doing business with the agency. Since the appellant did not challenge the administrative judge's determination to sustain these charges and, after reviewing the record, the Board sustained the charges pertaining to soliciting and receiving Lipitor.

The Board, however, reserved and sustained the charge of refusing to provide information in an administrative investigation. The Board cited to Weston v. Department of Housing & Urban Development, 724 F.2d 943, 947-48 (Fed. Cir. 1983), in which the court stated:

The fifth amendment privilege against compulsory self-incrimination may be asserted in an administrative investigation to protect against any disclosure that an individual reasonably believes could be used in his own criminal prosecution or could lead to other evidence that might be so used. Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed. 2d 212 (1972). In addition, the threat of removal from one's position constitutes coercion which renders any statements elicited thereby inadmissible in criminal proceedings against the party so coerced. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed. 2d 562 (1967). Nevertheless, when an employee is once granted immunity through this so-called Garrity exclusion rule, he may be removed for failure to cooperate with an agency investigation. Gardner v. Broderick, 392 U.S. 273, 278, 88 S. Ct. 1913, 1916, 20 L. Ed. 2d. 1082 (1968); [**9] Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 284-85, 88 S.Ct. 1917, 1919-20, 20 L.Ed. 2d 1089 (1968). Invocation of the Garrity rule for compelling answers to pertinent questions about the performance of an employee's duties is adequately accomplished when that employee is duly advised of his options to answer under the immunity granted or remain silent and face dismissal.

The Board found that the U.S. Attorney’s Office sufficiently provided the appellant with "use" immunity from prosecution under the Garrity rule based on any statement that he made during any subsequent interview regarding "the conduct for which [the appellant] was being considered for prosecution." There was no other activity that the agency was investigating. Furthermore, the assurance came from the U.S. Attorney and not merely from the agency.

In light of sustaining all the charges, the Board found that the agency's penalty of a demotion and a 45-day suspension was reasonable under the circumstances.

When the Board sustains all of an agency's charges, it will give deference to the agency's decision regarding a penalty unless that penalty exceeds the range of allowable punishment specified by statute or regulation, or the penalty is "so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion." Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987); see Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999) (the Board may reject those penalties it finds abusive, but may not infringe on the agency's exclusive domain as workforce manager). This is because the Board must defer to the agency's discretion in exercising its managerial function of maintaining employee [**15] discipline and efficiency. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, P20 (2001); Lewis v. General Services Administration, 82 M.S.P.R. 259, P5 (1999). "It is not the Board's function to displace management's responsibility, but to ensure that managerial judgment has been properly exercised." Lewis, 82 M.S.P.R. 259, P5.

Mitigation of a penalty by the Board is only appropriate where the agency failed to weigh the relevant factors, or the agency's judgment clearly exceeded the limits of reasonableness. Id. The deciding official need not show that he considered all the mitigating factors in determining the penalty. Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 135 (1997). The Board will independently weigh the relevant factors only if the deciding official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon a penalty. Id. If the penalty is unreasonable, the Board will mitigate it to the maximum reasonable penalty. Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 651 (1996).

The administrative judge concluded that the appellant "could not be faulted for honestly believing that there was absolutely nothing wrong with the practice." The administrative judge further credited the testimony of several witnesses that they did not consider samples of drugs as a gift. He found that soliciting and receiving the samples constituted no more than a technical violation of the regulations. He found that there was no evidence that the agency's reputation or integrity was affected or that any adverse consequence resulted from the appellant's actions. The administrative judge determined that no penalty was warranted. The Board did not agree.

The Board found that the deciding official properly evaluated the Douglas factors. The regulation at issue, Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. § 2635, Subpart B, Gifts from Outside Sources, under which the agency charged the appellant, provides that "an employee shall not, directly or indirectly, solicit or accept a gift . . . from a prohibited source." n3 5 C.F.R. § 2635.202(a)(1). A "gift" is defined as "any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value." 5 C.F.R. § 2635.203(b). A "prohibited source" includes "any person who . . . does business or seeks to do business with the employee's agency." 5 C.F.R. § 2635.203(d)(2).

n3 An employee may accept an unsolicited gift of $ 20 or less in value "per source per occasion, provided that the aggregate market value of individual gifts received from any one person under the authority of this paragraph shall not exceed $ 50 in a calendar year." 5 C.F.R. § 2635.204(a). The appellant has not denied that he solicited the sample Lipitor tablets. Thus, the $ 20 exception does not apply.

The record showed that the appellant attended a training session on the Standards of Ethical Conduct and received a pamphlet explaining those Standards generally in August 2000. The agency submitted a copy of the pamphlet that was distributed at the training session. Among the fourteen Principles of Ethical Conduct for Federal Employees set forth in the pamphlet is the following: "An employee shall not, except as permitted by the Standards of Ethical Conduct, solicit or accept any gift or other item of monetary value ...." The pamphlet describes a gift as "generally, anything of monetary value." The pamphlet further gives examples of unsolicited gifts that may be accepted, including a $ 15 pen from a person whose license application the employee is processing, a birthday gift from a brother, and tickets worth $ 16 to a show from a company that applied to the agency for a grant. The pamphlet does not specifically mention drug samples or samples of any kind from a company doing business with the agency. Additionally, witnesses testified without exception that they did not recall the ethics training session including any information that such gifts were prohibited. Even so, The Board found that the plain language of the Standards and the explanatory pamphlet were sufficient to put employees on notice that they were not to solicit items of monetary value from companies doing business with the agency, including pharmaceutical companies.

The agency's table of penalties provided that a penalty from a reprimand to a removal is appropriate for a first offense of accepting gifts or gratuities from individuals or firms doing business or having contractual relations with the agency. Additionally, the United States Court of Appeals for the Federal Circuit has held that removal is warranted when an employee fails to participate in an agency investigation when, as here, criminal prosecution had already been declined. Weston, 724 F.2d at 946-48. Further, the Board has found removal to be a reasonable penalty where the appellant improperly accepted cash payments and interfered with a an official investigation, despite his 17 years of federal service and lack of prior discipline. Hayes v. Department of Labor, 65 M.S.P.R. 214, 219-20 (1994). Considering the circumstances of this matter, and the relevant case law, The Board found that a demotion and 45-day suspension is a reasonable penalty for the appellant's misconduct.

Article About IEC Journal

The Winter 2005 issue of The Public Lawyer has a nice article about the IEC Journal. With the permission of the copyright holder, we are able to make copies available from this site in PDF format.

The Public Lawyer is published by the American Bar Association's Government and Public Lawyers Division.

Darleen Druyun Begins Prison Sentence

Today's Seattle-Post Intelligencer reported that ex-Boeing and Air Force employee, Darleen Druyun, began her prison sentence for violating federal conflict-of-interest laws at the Marianna, Florida women's prison this past Monday.  She was sentenced on October 1, 2004 to nine months in prison for negotiating a job with Boeing while still working on Boeing's contracts for the Air Force.

USPS Ethics Job Openings

The United States Postal Service currently has two ethics attorney vacancies posted on OPM's USAJOBS.GOV web site.  One is for a full-time attorney (Vacancy announcement no. LD-04-058), and the other is for a part-time (three days per week) attorney (Vacancy announcement no. LD-05-002), both openings are in the government ethics practice at the Postal Service.  The closing date for both is January 31, 2005.

2005 Federal Pay Increase Changes Income Limits

The Office of Government Ethics, on January 3, 2005, published changes in certain income and employment restrictions that were caused by the 2005 Federal pay increase.

For purposes of the outside earned income and employment restrictions in title V of the Ethics in Government Act and other coverage purposes during 2005:

120% of the minimum rate of basic pay payable for grade 15 of the General Schedule (GS) is $107,550.  (Definition of public filer for SF 278:  5 CFR 2634.202(c)).

15% of the annual rate of basic pay for level II of the Executive Schedule is $24,315.  (Outside earned income limitation for covered noncareer employees:  5 CFR 2636.304(a)).

For purposes of coverage by 18 U.S.C. 207(c) in 2005, 86.5% of level II of the Executive Schedule is $140,216.50.

OPM Authorizes Workplace Solicitation for Victims of Asian Tsunami

On December 30, 2004, the Director of the Office of Personnel Management (OPM) authorized agency heads to allow a special solicitation of federal employees at the workplace for victims of the Asian earthquake and tsunami.  With this authorization and the establishment of special solicitations by agency heads, federal employees may make a one-time cash or check donation outside the CFC, which otherwise is the only fundraising permitted in the federal workplace.  www.opm.gov

Post Reports on Debate Over Ethics Changes

The December 31, 2004 issue of the Washington Post has an article summarizing the public debate over recent changes in ethics rules.