IEC Journal

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."