IEC Journal

Four Year Prison Term for Accepting Bribe

Thanks to the esteemed Steve Epstein for forwarding a tip to a press release concerning a government employee sentenced to four years in prison for what was referred to as a "relatively small" bribe of $189,000.

Shelby's STOCK Act

GovExec article discusses the implications of Congressman Shelby's amendments to the STOCK Act, introduced to address concerns about Congressmen not being covered by insider trading laws.  Under the amendment the impact has been expanded to try to cover many Executive Branch personnel.  As currently contemplated, the law could require:

• Electronic availability of Public Financial Disclosure report
• Posting of all stock trades of certain personnel, where the transaction exceeds $1,000, for all or some financial disclosure filers

See full article at http://www.govexec.com/oversight/2012/02/momentum-builds-require-feds-disclose-stock-trades/41092/.

For details about the various STOCK Act versions, see http://insidertrading.procon.org/view.resource.php?resourceID=004520.

Former DODEA Chief Fired

Stars and Stripes reports on the firing of a senior DoD official who is reported to have "used her power to secure jobs for friends and relatives, received pay to which she was not entitled and engaged in 'unprofessional conduct and speech.' ”

Letters of Recommendation Tip

The ever-generous Mark Stone shared a short explanation of writing letters of recommendation, based on 5 CFR 2635.702(b), worthy of publication in an organization's newsletter:

We routinely answer questions concerning the legality of government employees writing letters of recommendation.  Government ethics rules do not prohibit government employees from writing letters of recommendation.  However, there are conditions that must be met if a government employee would like to use official stationery and his or her official title in the signature block of a letter of recommendation.  In order for a government employee to write a letter of recommendation and to use his or her official title and official stationery, all of the following three conditions must be met.  First, the letter has been requested by the individual, OR by a company or organization that is considering the individual for some type of position or benefit.  Second, the government employee has personal knowledge of the ability or character of the individual. Third, the government employee has dealt with the individual in the course of Federal employment, OR the government employee is recommending the individual for Federal employment.  If you have any questions on this subject, please contact Mr. Smith at 555-1234.

Contact Mr. Stone to be added to his e-mail mailing list (address modified to reduce spam):

Mark --DOT-- Stone --AT-- wpafb -- DOT af --DOT-- mil

Senior Official Resignation Follows USPS IG Report

Federal Times has a lengthy story about the resignation of a member of the Postal Service Board of Governors after an IG report alleged ethical abuses. Here is an excerpt:

The IG report found that Kessler pressed other postal executives to back off a plan to purchase property that the Postal Service was leasing for a post office and vehicle maintenance facility in Sarasota, Fla. The agency had been leasing the property since 1965 and had an option to buy it at any time at a highly favorable price, the IG report said.

In a May 2 statement to Inspector General David Williams, Kessler's attorney said Kessler denied those charges. Kessler received many inquiries from members of the public and forwarded their concerns to the appropriate postal officials, the attorney said.

The statement said Kessler's involvement in the matter was sporadic and limited to a handful of phone calls with Band and emails to arrange those phone calls. Kessler forwarded emails from Band to postal officials and sent follow-up emails, his attorney said.

"There is no indication that Mr. Kessler improperly influenced or even attempted to improperly influence the Postal Service on this matter, nor did he have any reason to do so," the statement said. "Mr. Kessler had no personal, professional or financial interest in the outcome of the dispute."

Federal Times obtained a copy of the IG report through a FOIA request.

In Wake of Scandal, Florida County Expands Reach of Ethics Rules

An article in the Sun-Sentinel describes how voters and elected officials reacted to the ethical scandal that forced Palm Beach County Commissioner Jeff Koons to resign from his post amidst allegations of misuse of office.  Because Koons was the fourth county commissioner to be ousted, voters approved countywide ethics reform, expanding the ethics code to all 38 cities, towns and villages in Palm Beach County.  Koons was prosecuted for his crimes (including extortion) by the Palm Beach County State Attorney's Office, showing that the county and state are beginning to take these missteps much more seriously than in the past.  Finally, the case brought the Government in the Sunshine Law to the forefront, causing local officials to request an exemption from the law's requirements. 

News items of interest:

• State Dept. contracting officer under investigation for steering $52M of contracts to her secret husband.  See full article from Daily Caller at http://dailycaller.com/2011/07/19/state-dept-contract-officer-steers-52-million-to-secret-husband-daughter/.
• MSPB upholds removal of DHS Senior Special Agent, after he failed to establish whistleblower affirmative defense for (1) unauthorized queries of individuals on an official government computer database; (2) unauthorized disclosure; (3) misuse of position; and (4) lack of candor.  See MSPB opinion at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=618847&version=620720&application=ACROBAT.
• MSPB dismissal of OSC case to remove an employee for violation of the Hatch Act is upheld.  OSC failed to comply with Board rules to state "with particularity any alleged violations of law or regulation, along with the supporting facts."  However, OSC may bring a new complaint.  See MSPB opinion at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=621454&version=623336&application=ACROBAT

Soliciting Gifts from Outside Sources

The following pithy notice from an agency ethics office to the workforce struck us as being possibly useful to other agencies as well. We have edited it to remove agency-specific information:

Subject: Reminder On Rules Regarding Solicitation of Gifts from Outside Sources

One of the regular topics of instruction in your annual ethics training is the prohibition on receiving gifts as a result of your status as a federal employee. Gifts include any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. The reason for this rule is to avoid any actions violating the law and ethical standards of public trust or creating the appearance of private gain.

There are limited exceptions when a gift may be accepted, guidance for which is found at the agency's ethics website or by contacting GC.

This notice is a reminder of the specific prohibitions on the solicitation of gifts. Employees shall not, directly or indirectly, solicit a gift or other item of monetary value from a prohibited source; or solicit a gift because of an employee's official position. There are no exceptions to this rule.

A prohibited source includes any person or entity seeking official action from, doing business with, or conducting activities regulated by this agency. This includes, for example, our implementing partners, or other think tanks or entities we interact with in our official positions.

It would also be a violation to solicit a gift based upon your status as an employee of this agency. For instance, soliciting complimentary or "comped" tickets for a dinner or reception hosted by an outside organization would be improper. This also applies even if the goal is to ensure or increase agency participation. The substance or merit of the activity is not a consideration.

Where improper gift solicitation occurs, any solicited gifts must be returned to the donor or the recipient must pay the fair market value. Disciplinary action against the employee making the solicitation may be warranted.

Once again, if you have any questions, please seek guidance at the above web sites or by contacting GC for advice.

 

IG investigation into Defense Education Agency Director

The Inspector General for the Department of Defense substantiated multiple charges against the DoD Education Agency's former Director, including violations of the Joint Ethics Regulation and standards of conduct.  See Federal Times article at: http://www.federaltimes.com/article/20110630/DEPARTMENTS01/106300306/1049/PERSONNEL and IG redacted report at: http://www.dodig.mil/fo/Foia/PDFs/MilesROIforreleaseRedacted.pdf.

Former Army Contracting Officials Charged with ... Filing False Ethics Forms

A Justice press release reports that a former Army contracting official and his spouse were indicted for conspiracy to defraud the US, filing false tax statements, and filing false statements on their Government ethics financial disclosure documents.  See full press release at http://www.justice.gov/opa/pr/2011/June/11-tax-821.html.

Palin Author Investigated Over Propriety of Using E-mails

Frank Bailey, a former aide to Sarah Palin, released a tell-all book this week, chronicling his time working for the former Governor from 2006-2008.  His book is largely based on emails he sent and received during that time.  As a result, the Alaska attorney general's office is looking into Bailey's use of the emails, citing the ethics regulation that bars former public officials from using information acquired during their work for personal gain if the information hasn't been publicly disseminated.  While Bailey's attorney maintains Bailey took great care to ensure compliance with all legal requirements, the issue serves as a reminder to all former public officials to check with their ethics office when planning to embark on a project that involves using information garnered from time in public service. 

Former US Marshal Service employee pleads guilty

Sno H. Rush, formerly an employee of the U.S. Marshall Servie, plead guilty to theft of $104,000 in government funds, and was sentenced to 21 months in prison and 3 years supervised probation. The money was appropriated by misuse of her position and government credit card and used to offset her personal credit card debt.  See US DOJ press release at: http://www.justice.gov/opa/pr/2011/May/11-crm-588.html.

OGE on YouTube

OGE has training videos at YouTube:

1. Criminal conflict of interest statute (18 U.S.C. 208)
2. Impartiality (5 C.F.R. 2635,Subpart E)
3. Gifts from Outside Sources (5 C.F.R.2635, Subpart B)

FBI Office of Professional Responsibility report on Agents behavior

CNN reports on the ethical and inappropriate conduct of FBI employees.  From documents obtained from the FBI Office of Professional Responsibility, it appears that only 325-350 out of 34,300 FBI employees are disciplined each year, which bodes pretty well for their ethical conduct of the agency.  But it also shows some serious lack of judgment and conduct unbecoming a Federal employee.  See report at http://www.cnn.com/2011/US/01/27/siu.fbi.internal.documents/index.html. 

See related articles:

• FBI OPR document at http://i2.cdn.turner.com/cnn/2011/images/01/27/fbi.documents.siu.pdf
• TMP Media report at http://tpmmuckraker.talkingpointsmemo.com/2011/01/fbi_agent_threatened_to_release_sex_tape_with_reporter.php?ref=fpb#. 

"Cycle of Sin" brings down senior Airman

Airman pleads guilty to multiple charges including misuse of position, and fights 13 others including misuse of government communication systems.  See Dayton Daily News article at http://www.daytondailynews.com/news/dayton-news/wright-patterson-airman-pleads-guilty-to-13-air-force-charges-1062915.html?printArticle=y

Former Bureau of Prisons employee sentenced

A former Bureau of Prisons employee was sentenced to 27 months in prison and then 3 years supervised release, plus payment of $5,000, and forfeiture of $25,000, as well as $1,900 in special monetary assessments.  The charges included conflict of interest.  See full DOJ press release at: http://www.justice.gov/oig/reports/press/2010/2010_12_15c.pdf

Interior IG Report Cites Irregularities in Shell Bids

The Wall Street Journal reports:

The federal agency that controls oil and natural-gas production on U.S.-owned land "appeared to give preferential treatment" to Royal Dutch Shell PLC when the company pursued drilling leases on public land during 2005 and 2006, the acting inspector general of the Interior Department said in a report Friday.

Investigators said they found no evidence that Shell broke the law, and "no conclusive evidence" that then-Interior Secretary Gale Norton—who accepted a job with Shell several months after leaving her government post—broke federal conflict-of-interest laws. ...

The Interior Department's inspector general's office had referred the matter to the Justice Department, which declined criminal prosecution. A Justice Department spokeswoman declined to comment. An Interior Department spokeswoman said the department was reviewing the report. Ms. Norton didn't respond to a request for comment.One Interior ethics official wrote Ms. Norton in an e-mail that "the permanent ban might not apply based on your description of how you were involved in this issue while Secretary," according to the report. The ethics official also asked Norton follow-up questions, but Norton "never responded," the report said.  ...

The U.S. Office of Government Ethics concluded that Norton had "played a significant role" in the oil-shale program while secretary and said that her "participation in the program should subject her to the lifetime ban on communicating with the federal government regarding the program," the report said. ...

Politico and Federal News Radio have more.

OGE 2009 Prosecution Survey

The Office of Government Ethics issued DAEOgram DO-10-017 on November 9, 2010 announcing the publication of the 2009 Conflict of Interest Prosecution Survey.   The survey contains summaries of cases involving conflict of interest violations.  The Department of Justice prosecuted the cases. See http://www.usoge.gov/ethics_guidance/daeograms/dgr_files/2010/do10017.pdf

Ethics In the News

Two news articles of interest:

• FBI press release on may indicted for several crimes including unauthorized use of military agency seals to fake official documents. See full release at http://memphis.fbi.gov/dojpressrel/pressrel10/me081910.htm 
• Former NASA official pleads guilty to steers $600K contract to his consulting client, while serving as a Special Government Employee.  See full article at http://www.govexec.com/story_page.cfm?articleid=45971&dcn=e_gvet

MSPB upholds removal for misuse of position etc.

Appellant's appeal of removal from Federal service was denied and MSPB found penalty of removal reasonable.  Of particular interest is the fact that the employee was initially charged with (1) willful forging or falsifying official govt records, (2) misuse of position & (3) failure ot accurately report information his OGE Form 450.

 Management did not pursue the 450 charge which Appellant claimed he could not be held responsible for since he was not aware he had to report outside income.  MSPB find a nexus between management’s loss in confidence in his integrity and thus ability to perform the duties of his position.  See http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=515923&version=517376&application=ACROBAT

Two suspended for aiding & abetting prohibited personnel practice

Two Coast Guard human resources specialists were suspended for aiding and abetting in an officer commit a prohibited personnel practice, in the form of creating a job description that only one person could meet (giving preferential advantage and misusing of their positions). 

See Office of Special Counsel press release at http://www.osc.gov/documents/press/2010/pr10_13.pdf.

See MSPB decision at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=499275&version=500707&application=ACROBAT

MSPB case on misuse of position & violation of the Standards of Conduct

MSPB case upheld Administrative Judge decision which denied appellant corrective action for alleged Whistleblower Protection, because agency established by clear and convincing evidence that it would have reassigned her regardless of the disclosure. 

More specifically, the Inspector General found that: (1) The appellant used her public office for the gain of a private business, Checkers, Inc.; and (2) the appellant violated the Standards of Ethical Conduct by maintaining a close personal friendship with Ms. Dale Spettigue, a principal of Truckers Express, Inc. (TEI), a carrier over which the appellant was exercising the agency’s regulatory authority.

See full decision at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=468766&version=470011&application=ACROBAT 

Former AAFES Official Took Bribes

Here is the lead of a recent DOJ press release press release:

A former Army and Air Force Exchange Service (AAFES) official was sentenced today in U.S. District Court in Columbus, Ga., to three years in prison for his role in a bribery conspiracy involving a multi-million dollar telecommunications contract, and for not reporting the bribes he accepted on his income tax returns.

Federal Judge Impeachment Hearing

Federal News Radio

Witnesses in the congressional impeachment case against U.S. District Court Judge G. Thomas Porteous Jr. paint a jarring portrait of the former Louisiana state judge who was appointed to the federal bench in 1994 by President Bill Clinton.

Multiple Employees Convicted for Accessing Passport Files

A Department of Justice press release reports on the conviction of one State Department employee for illegally accessing passport files, and briefly describes the situations of seven others convicted previously.

Honest Services Fraud

The most recent edition of the Federal Law Enforcement Training Center's Legal Division's newsletter discusses U.S. v. Inzunza (copy of decision via the new Google Scholar's legal research feature):

The quid pro quo required for bribery is a payment made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. Similarly, when the government seeks to prove honest services fraud in the form of bribery, it must prove a quid pro quo. The quid pro quo must be clear and unambiguous, leaving no uncertainty about the terms of the bargain.

Private gain is not an "implied" or "necessary" element of honest services fraud. The intent to defraud does not depend on the intent to gain, but rather the intent to deprive.

The 10th Circuit agrees (cite omitted).

The 3rd Circuit agrees because requiring private gain would merely substitute one ambiguous standard for another (cite omitted).

The 5th Circuit agrees because it has adopted a state-law-violation requirement instead (cite omitted).

The 7th Circuit disagrees, requiring proof of private gain (cite omitted).

EPA Complains About Employees' YouTube Video

FederalNewsRadio has a report about two Environmental Protection Agency lawyers who posted a video to YouTube discussing their views on cap-and-trade legislation:

A few days after an op-ed by the couple was published in the Washington Post, a directive to the couple was sent by the EPA, instructing them to remove the the video from YouTube and edit it to be "compliant with 5 CFR § 2635.807(b)" and that failure to do so "could lead to disciplinary action."

William Bransford, partner with Shaw, Bransford & Roth, tells FederalNewsRadio ...

I think there's a difference between just telling somebody "well I work at EPA" which is really kind of a matter of public record, versus "I work at EPA and because of my position and what I do, I believe this is a good idea," and you're speaking for yourself personally and not necessarily as a member of the EPA.

The real question, said Bransford, is whether the two used their government position to push a personal issue or not. "Just mentioning that you work there," said Bransford, "I'm not sure that it rises to that level, but obviously somebody in their General Counsel's office thinks to the contrary."

A Government Executive story includes the agency's position and the Wall Street Journal's Opinion section has its assessment of the matter.

IG Report on VA official misuse of position

A recent Veterans Administration IG report sustained charges of misuse of position for personal gain against a VA Deputy Assistant Secretary of IT in addition to abuse of authority and prohibited personnel paractices.  See redacted report at http://www.va.gov/oig/51/fy2009rpts/VAOIG-09-01123-195.pdf

Dangers of Endorsing Product

A post at the excellent Project for Government Oversight blog reports on allegations that "a video in which 'Air Force pilots rhapsodize about the fastest, stealthiest, most advanced dogfighter ever built' " could be a violation of 5 C.F.R. § 2635.702, "Use of public office for private gain":

An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations.

Edited April 10 to fix typo.

Dangers of Abuse of Position

The Washington Post reports on an unusual event that shows one reason for emphasizing high ethical standards for federal employees: Many civil service workers are in sensitive positions with the potential to injure vulnerable people. In this particular case, a FEMA employee used information from disaster assistance applications for identity theft. U.S. District Court Judge Reggie B. Walton expressed the community's outrage over such "lowdown" conduct in imposing a sentence of 5 years and 4 months:

"What you did, which is really repulsive, is rather than trying to help these people, you hurt them more. When you see someone on the ground, you don't step on them and hurt them more."