Index

• Insight by Mike Causey: Sleepy Time Tale
• Lawmakers Seek Remedy to Passport Agency Overload
• Nicholson to Leave Embattled VA
• Capitol Tunnel Workers Win Whistleblower Settlement
• GAO: Staffing Problems Persist at DHS
• Despite Frequent Info Breaches, Few Linked to ID Theft
• In Brief: NALC, USPS Reach Tentative 5-Year Accord
• In Brief: House Passes Largest College-Loan Effort since GI Bill
• In Brief: NTEU Applauds Senate Action on Contracting Out
• In Brief: VA to Pair Mental Health with Primary Care Units
• Informed Investor: Understanding the Government Pension Offset (GPO)
• Rulings Roundup: Navy Specialist Loses Appeal vs. FOIA Computer Search
• You Be The Judge: Does Air Force Craftsman Deserve Firing?

Insight By Mike Causey: Sleepy Time Tale

When does life begin?

That’s a fair question—one that can and does divide people along religious and political lines.

Some would say life begins at birth. Others, at the moment of conception. Or at some point in between. But if you are talking about life as in “awareness,” I would argue that for many—maybe most—people, life begins at age 12, or 15, or whenever you become aware that some rather significant stuff happened before you were born or came of age. Stuff like love, hate, sex, wars, fever blisters.

All of the above, and more, were going on before you or I came along or became aware of things.

I mention this because I read a newspaper story last week, a tribute to Lady Bird Johnson. If you are under 30 and not much up on world affairs and history, she was the wife of President Lyndon B. Johnson. If you haven’t heard of him, ask the person who must be reading this to you to explain.

Anyhow, the tribute told of her good character, her class and genuine decency toward people and her highly successful efforts to beautify and clean up America’s cities, highways and rivers.

She did good work. When you notice how few billboards there are cluttering highways, thank Lady Bird (a childhood nickname that stuck) Johnson. When you admire some of the relatively newer parks in Washington, D.C., thank Lady Bird Johnson. When you notice how clean many rivers—including our own dear Potomac—are (compared to 30 years ago), thank her.

The tribute was neat. And deserved. But as a very-long-time D.C. resident, there are some things that bug me when newcomers, or younger folks, pronounce them as gospel. For instance, the headline in the Lady Bird tribute talked about how “drab” Washington, D.C., was before she arrived. Wrong!

She made it better, to be sure. But so have other people. But it hasn’t been “drab” since the 19th Century. It was modeled after Paris (lots of wide streets and circles), and it has more trees, parks and open space than some small countries. Being located where it is—mid-Atlantic near the ocean and a fair-sized bay (the Chesapeake)—it is both the furthest north AND south that some trees and plants grow. All of those were present before Mrs. Johnson was here. Or Mrs. Nixon. Or Mrs. Lincoln.

The “drab” description was probably inserted by someone who is 30 years old who has been here for six years. At any rate, it was somebody who doesn’t have much of a historical perspective because he/she is judging the situation from his/her own very narrow vantage point. They weren’t here before Mrs. Johnson did her magic, but they somehow assume the town was drab before she—and the writer—got here.

It’s similar to the people who describe Washington as having been a “sleepy Southern town” before they got here. Got news for you folks: While it ain’t Manhattan, or L.A. or Rio, it’s pretty big. And not so sleepy. We proudly boast the third-most-congested traffic in the nation.

Even going back to World War II (which is before most Americans were born), it wasn’t so sleepy. It was full of GIs, expanding government departments, tens of thousands of war workers (most of them young single women). Full of people making money at jobs that were not available a few years before, during the Depression. It wasn’t all that sleepy. The theaters here had vaudeville acts and stage shows that ran around the clock (to accommodate shift workers). Much the same thing happened during the Civil War, which ended in 1865. You can look it up.

A Washington Post editorial writer (and an old friend who shared my irritation) did a wonderful editorial spoofing the sleepy-Southern-town myth. He quoted a 1980 Post story which said that “until the New Deal and World War II...Washington was something of a sleepy Southern town.”

He also found a 1981 New York Times story that said “...but gone is Washington’s antebellum image of a sleepy Southern town, which persisted for almost a century.”

Finally, his editorial cited a 1978 Post story which had the following partial quote: “...when he was hired by the Park Service in 1952...Washington was still a somewhat sleepy Southern town.”

Interesting. It was sleepy. And or drab. Or sleepy and drab—not when the writers were writing, and fighting traffic and going to the theater or the Cherry Blossom Festival—but shortly before they got here. Before them, there was no night life. After they got here, the town started rocking.

Well enough of that. Ma is home fixing the vittles for dinner. Pa and me got to go round up our cattle that graze on the National Mall. Hope it doesn’t take too long. Like most of my fellow citizens of this sleepy Southern town, I sure got me a hankering for some grits and hush puppies. Maybe washed down with a jug o’ corn.

So before we get all citified, y’all come. You hear?”

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Lawmakers Seek Remedy to Passport Agency Overload

The House of Representatives last week passed on a voice vote the Passport Backlog Reduction Act, offering financial incentives to retired Passport Agency employees to return to work.

Facing a backlog of over 500,000 passport applications and processing times of 12 weeks—twice the agency’s norm—Passport Agency officials told FEND they eagerly await the help promised in the bill.

Under existing law, retired passport workers have little incentive to help the beleaguered agency. Beyond a low ceiling of permitted earnings, each retiree’s pension is reduced by whatever they might earn on the job. S. 966—originally proposed by Sen. Charles Schumer, D-N.Y., and spearheaded in the House by Rep. Tom Lantos, D-Calif., would remove this disincentive.

“We think it’s a good thing that the Passport Agency is trying to bring back former workers,” Collin Walle, president of National Federation of Federal Employees (NFFE) Chapter 1998 (which represents all passport workers), told FEND. “We need people with experience to deal with this backlog.”

“I understand why Congress is moving to try this out,” he added. “But they needed to actually hire and train more people years ago—and for now this new bill, to be accurate, won’t help with the present overload.”

Last year, the Passport Agency issued just over 12 million passports. This year, that number is expected to top 17 million—more than a 40 percent spike.

Under post-9/11 federal law, a new rule known as the Western Hemisphere Travel Initiative (WHTI) will soon demand “secure travel documents”—generally a passport—to enter the United States. Previously, many U.S.-based travelers could re-enter the country from Caribbean countries, Mexico and Canada on less secure forms of ID. Originally scheduled to go into effect last January for all air travelers, the WHTI has been suspended until Sept. 30.

“We obviously expected an increase in the number of passport applications after the first phase of WHTI started in January,” Edgar Vasquez, a spokesman for the State Department’s Office of Consular Affairs, told FEND. “What we did not expect is so many people suddenly applying for passports without even having immediate travel plans.”

Walle told FEND he doesn’t think the current backlog was inevitable—the law behind WHTI was passed in 2004. But he also does not blame the department, and believes top officials went to bat for more staff, especially more adjudicators, whose insufficient numbers are causing the current backlog. He said he is not sure where the disconnect occurred.

In any case, Walle said the current crisis is “all prelude,” and that next year the union expects demand for passports will be “between 23 or 25 million.”

“So any new law offering more staff can’t help fast enough now—it won’t help short term, but it might help us adjudicate these millions of applications down the road,” he said.

Still, State Department officials emphasized that even without the proposed help, they are making inroads against the backlog. “We have brought on added staff, and we have volunteers to help in the effort,” State Department spokeswoman Leslie Phillips told FEND. Specifically, Phillips said State had managed to get more than 31,000 hours of volunteer labor between March 1 and July 5 from its staff and other qualified help.

“In June we issued 250,000 more passports than applications received,” Phillips said. “So while we are not where we want to be yet, we are working through the backlog.”

Walle expressed concern that not all of those brought in to help with the backlog are qualified. But the State Department assured otherwise.

“At no point is the process compromised,” Vasquez assured FEND. “We make every effort to adhere to high standards.”

With thousands of frustrated passport applicants calling their representatives on Capitol Hill, the bill is expected to pass and be signed into law soon. “They are kind of hung up in the Senate on Iraq right now,” Lynne Weil, spokeswoman for the House Foreign Affairs Committee, told FEND. “And we have no influence over the Senate’s schedule—but we have good indications that the amended version of the bill will pass soon.”

Walle said he hopes next year goes more smoothly. Passport Agency workers are in their fourth month of mandatory overtime, he said. “Last year we did 140,000 overtime hours—a huge figure,” said Walle. “I don’t have the total, but I would bet everything in the world we have surpassed that this year.”

For more go to www.nffe.org

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Nicholson to Leave Embattled VA

Department of Veterans Affairs (VA) Secretary Jim Nicholson has resigned, effective Oct. 1 at latest, leaving an agency that has been battered during his tenure with questions about the care given to injured vets while senior VA staff received hefty bonuses.

Nicholson made the announcement July 17—saying that he wanted to return to the private sector. Nicholson, a former chairman of the Republican National Committee, has been head of the VA since February 2005.

“The VA is a dynamic organization dedicated to serving our nation’s finest citizens—our veterans,” Nicholson said. “It has been an honor and privilege to lead the VA during this historic time for our men and women who have worn the uniform.” Nicholson will turn 70 next February.

Over the last several years, as VA faced increasing pressures from aging vets—and new vets entering the system from the conflicts in Afghanistan and Iraq—Nicholson had become the target of growing criticism. Veterans were particularly upset with the VA’s chronically slow processing of disability claims by injured or sick veterans. Most common are complaints about lost paperwork, a shortage of VA caseworkers, a caseload of 400,000 pending disability claims and long waits for initial appointments.

Even as the VA continued to sag under the caseload backlog, VA senior executives were awarded a total of $3.8 million in bonuses last year, prompting congressional outrage.

Rep. Phil Hare , D-Ill., who called for Nicholson to step down after he approved bonuses for senior VA personnel, said in a July 17 statement that “the next secretary will inherit a disability claims backlog, staffing shortages at our vet centers, and ongoing challenges at Walter Reed and other medical facilities that care for our wounded soldiers.”

With its $77 billion budget and 235,000 employees, the VA operates an immense network of 1,400 hospitals and clinics—which provide supplemental care and rehabilitation to 5.8 million veterans.

In his defense, Nicholson listed a series of accomplishments during his tenure.

During his term, Nicholson:

• Approved 82 new Community-Based Outpatient Clinics to bring VA care closer to the veterans who need it.
• Directed the hiring of suicide prevention counselors at each of VA’s 153 facilities and established a 24-hour national suicide prevention hotline that will be operational later this month.
• Hired 100 new Patient Care Advocates to help severely injured veterans and their families.
• Led the President’s Task Force  on Returning Global War on Terror Heroes to improve the delivery of services and benefits to servicemembers.

“This is a very big government agency that, among many other things, sees over 1 million patients a week in its health care system, and is doing a world-class job,” Nicholson said.  “The American people can feel proud about the way we are treating our veterans. The President and the Congress have been very supportive and for that I am grateful as well.”

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Capitol Tunnel Workers Win Whistleblower Settlement

Ten workers who service the utility tunnels beneath the U.S. Capitol complex have won an out-of-court settlement resolving claims that their employer, the Architect of the Capitol (AoC), retaliated against them after they complained about unsafe working conditions.

Although details of the agreement were not disclosed, workers’ representatives described it as a triumph. The settlement is “a big victory for federal workers, and in particular for workers in the legislative branch, who have historically had little protection when blowing the whistle on unsafe working conditions,” said David Marshall, an attorney for the workers.

Marshall, along with the Government Accountability Project (GAP), a whistleblower group, represented the so-call “Tunnel Shop” workers—federal employees who maintain the plumbing systems that provide steam and chilled water to Congress, the Library of Congress, the Supreme Court and other federal buildings.

The job is inherently dangerous, and workers went public with their complaints of an unsafe working environment—which included falling slabs of concrete, the absence of emergency communications and the lack of emergency exits—after years of complaints to AoC went unheeded, GAP said.

The agreement is limited and only addresses the workers’ claims that AoC managers conducted a campaign of retaliation against them, including harassment for seeking independent medical examinations, according to a GAP statement released July 16. The workers are not covered by the Whistleblower Protection Act, which applies only to executive branch employees.

The agreement does not cover any physical injuries the workers may have suffered as a consequence of their employment, GAP said. Notably, AoC had known for years that the asbestos levels in the tunnels were unacceptably high, Marshall said, but AoC only started requiring respirators in April after the asbestos danger became public. Some members of the group have worked in the tunnels for 20 years, Marshall said, and medical tests showed that nine out of 10 of the workers had symptoms of occupational diseases, including asbestos-related illnesses. Marshall said the group plans to seek congressional intervention for compensation for any workplace-related injuries they may have suffered.

The group had asked in February that the National Institute for Occupational Health and Safety conduct a Health Hazard Evaluation of their workplace.

The AoC’s spokesperson could not be reached for comment.

To see more, go to: www.whistleblower.org/content/press_detail.cfm?press_id=1092

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GAO: Staffing Problems Persist at DHS

Senior-level staff at the Department of Homeland Security (DHS) are leaving their jobs at a rate that is about twice the government-wide average for such employees, said a new Government Accountability Office (GAO) report.

Attrition rates for DHS Senior Executive Service (SES) positions or those requiring presidential appointment were 14.5 percent in 2005 and 12.8 percent in 2006, much higher than the average SES attrition rate for all cabinet-level departments of 7 percent and 6 percent, respectively, the report said.

“One key challenge DHS has faced is effectively and strategically managing its sizable work force of nearly 171,000 employees,” said the GAO report. “But, as we have previously reported, many human capital challenges remain. They include attracting and retaining a qualified work force; rewarding individuals based on individual, team, unit and organizational results; and ensuring leadership at the top.”

Top agency leadership is not immune from hiring and retention problems facing DHS at large. Not only are the top leaders leaving at a fast clip, but the agency is having trouble filling those same positions, according to another recent study—this one from the House Homeland Security Committee—which concluded that 24 percent of top positions at DHS are vacant, leaving a “gaping hole” in executive resources.

According to the GAO report, “DHS’s Actions to Recruit and Retain Staff and Comply with the Vacancies Reform Act,” during the last two years, more than one-half of the SES employees at DHS headquarters either resigned or transferred to another department. Executives at headquarters, the Transportation Security Administration (TSA) and the Federal Emergency Management Agency had the highest attrition rates. As a comparison, the only agencies with an attrition rate near that of DHS were the Departments of Education and Housing and Urban Development.

Attrition among permanent non-senior DHS employees was 8.4 percent in 2005 and 7.1 percent in 2006—a significant one-year drop, but still much higher than the 4 percent average of all federal agencies.

Looking deeper into the numbers, GAO said there was some good news. The report noted that TSA had the highest levels of turnover due to loss of screeners in 2005. But, if the TSA numbers are eliminated from agency-wide results, DHS turnover rates have actually been at or below those of other agencies. Furthermore, DHS met four out of five of GAO’s management criteria for compliance with the Vacancies Reform Act, said the report. And, DHS managers took advantage of certain workplace flexibilities—such as cash awards and expedited hiring—to recruit and retain employees, the report said.

To see more, go to: www.gao.gov/new.items/d07758.pdf

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Despite Frequent Info Breaches, Few Linked to ID Theft

Although data breaches in the public and private sectors have become increasingly frequent, it is difficult to link those security breakdowns to individual cases of identity theft, said a recent Government Accountability Office (GAO) report examining the issue.

GAO found that breaches of sensitive personal information have occurred frequently and under widely varying circumstances. More than 570 data breaches have been reported in the news media from January 2005 through December 2006, and a House Government Reform Committee survey of federal agencies identified more than 788 data breaches at 17 agencies from January 2003 through July 2006. And among the roughly 17,000 federally supervised banks, thrifts, and credit unions, several hundred have reported data breaches to federal regulators over the past two years

GAO examined the 24 largest—in terms of number of records compromised—data breaches reported in the news media from January 2000 through June 2005, as well as five breaches that involved federal agencies. In the end, however, GAO found it difficult to link data breaches to specific instances of ID theft.

“No comprehensive data are available on the consequences of data breaches,” said the report, which noted that, “representatives of all (law enforcement) agencies told us that their investigations of data breaches do not typically allow them to fully ascertain how stolen data are used.”

“Similarly, they noted that investigations of identity theft do not always reveal the source of the data used to commit the crime,” the report said. And rather then creating new accounts with stolen data, law enforcement officials told GAO that information garnered via the data breaches generally is used in fraud on existing accounts (such as credit card accounts) rather than for unauthorized creation of new accounts.

In examining five breaches that occurred from 2003 through 2005 involving federal agencies—the Department of Justice, Federal Deposit Insurance Corp. (FDIC), IRS, National Park Service, and Navy—GAO found the circumstances behind breaches varied widely. And four of the five incidents were not believed to have resulted in identity theft, officials of those agencies told GAO.

GAO found that at least two of the breaches occurred at vendors or contractors that held sensitive data on agency employees, rather than at the agency itself. In addition, GAO found that a breach reported as having involved the National Park Service actually involved a not-for-profit organization that manages eParks, according to a representative of that organization.

But the breach at FDIC resulted in an estimated 27 cases of ID theft when information inappropriately accessed by a former FDIC intern was used to take out more than $425,000 in fraudulent loans in the names of FDIC employees, according to agency officials, the report said.

The Office of Management and Budget has issued guidance to help federal agencies respond to data breaches. And while no federal law requires that companies or other organizations notify affected individuals, at least 36 states have enacted some form of law requiring that affected individuals be notified when breaches occur.

To see more go to: www.gao.gov/new.items/d07737.pdf

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In Brief: NALC, USPS Reach Tentative 5-Year Accord

The National Association of Letter Carriers (NALC) this month announced a tentative agreement with the U.S. Postal Service (USPS) on a new five-year contract that will guarantee an 8.85 percent wage hike over the life of the deal. The agreement, covering all 222,000 active city delivery carriers throughout the nation, will be submitted as soon as possible for ratification, NALC said in a statement. In addition to the yearly wage hikes, the contract calls for nine cost-of-living adjustments (COLAs) as well as a one-time COLA cash payment of $686 upon ratification, the union said. Also, USPS will pay a decreasing proportion of employee premiums under the Federal Employees Health Benefits Program, from 85 percent currently to 80 percent by 2012. Notably, the proposed contract includes new protections against contracting out city carrier work, including a prohibition of the outsourcing of any existing city delivery services over the term of the agreement. To see more, go to: www.nalc.org/news/bargain/tentagreehigh2007.html

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In Brief: House Passes Largest College-Loan Effort since GI Bill

The House on July 11 passed a massive overhaul of the federal student loan effort designed to make college more affordable for students, families and those serving in public service. It is the biggest such effort since the 1944 GI bill, said Rep. George Miller, D-Calif, chairman of the Education and Labor Committee and author of the legislation, the College Cost Reduction Act (H.R. 2669). The bill was approved by an overwhelming 273 to 149 margin—and a similar measure is expected to be on the Senate floor later this month. The bill would increase the maximum Pell Grant, cut interest rates in half on need-based student loans and offer loan forgiveness to a broad category of public servants. Public servants would receive loan forgiveness of $5,000—providing aid to at least 257,000 first responders, law enforcement officers, public defenders, prosecutors, early childhood educators and others. The bill also provides complete loan forgiveness for public sector employees after 10 years of service. “This bill is a remarkable step forward in our efforts to help every qualified student go to college,” Miller said in a statement. To see more, go to: http://edworkforce.house.gov/micro/ccra.shtml

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In Brief: NTEU Applauds Senate Action on Contracting Out

The National Treasury Employees Union (NTEU) applauded a measure adopted by the Senate Appropriations Committee that it says would level the playing field for federal employees when agencies open privatization competitions. NTEU President Colleen Kelley said on July 17 that the measure, part of the Financial Services and General Government Appropriations Act of 2008 (H.R. 2829), would provide federal employees with the same rights currently enjoyed by private contractors to appeal agency privatization decisions. Currently, federal employees can appeal only to their agency, which made the initial decision to contract out, while contractors can appeal a decision to the Government Accountability Office. “This positive step would bring a much-needed degree of fairness to the federal contracting process,” Kelley said. The committee also approved a 3.5 percent pay raise for federal employees for FY 2008, which is one-half percent higher than President Bush proposed, and equal to the amount passed by the House of Representatives. To see more, go to: www.nteu.org

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In Brief: VA to Pair Mental Health with Primary Care Units

Acknowledging the pending deluge of returning combat veterans with post-traumatic stress disorder and other mental health issues, the Department of Veterans Affairs (VA) plans to start placing mental health programs closer to primary care facilities. VA said that the move is meant to address the reluctance of some veterans to talk about emotional problems by increasing the department’s mental health presence in primary-care settings.

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Informed Investor: Understanding the Government Pension Offset (GPO)

During the 1980s, Congress enacted legislation that affects the amount of Social Security benefits that some federal employees are eligible to receive. The legislation created the Windfall Elimination Provision (WEP) and the Government (or Public) Pension Offset (GPO). A previous “Informed Investor” column (Aug. 14, 2006) discussed the WEP. This column discusses the GPO.

The GPO affects individuals who have paid into a government pension plan and have earned at least 40 quarters of Social Security credit to qualify for their own Social Security benefits, but whose spouses (or former spouses) have paid more into Social Security. The result is that these individuals would receive more in Social Security benefits by drawing off of their spouse’s or former spouse’s Social Security benefits. Examples include federal employees covered by the Civil Service Retirement System (CSRS), and many state and municipal employees covered by state or municipal pension plans.

The GPO reduces a Social Security benefit by $2.00 for every $3.00 in CSRS annuity benefits. The net effect of the GPO is that most CSRS annuitants are unlikely to receive any spousal, former spouse’s, or widow/widower’s Social Security benefits. FERS employees are not affected by the GPO. Nor are CSRS Offset employees who have at least 60 months of “offset” coverage. Those CSRS employees who transferred to FERS before 7/1/88, and those who transferred after 6/30/88 and remained covered by FERS for a minimum of five years also are exempt from the GPO.

The purpose of the GPO is to make sure that spousal Social Security benefits are paid only to those who have little or no Social Security benefits and/or other pension benefits of their own. Spousal benefits were intended for individuals who are financially dependent on their spouses who worked at jobs covered by Social Security.

The GPO affects CSRS annuitants who are collecting on a spouse’s Social Security family benefit. For CSRS annuitants who have worked less than 30 years as a CSRS employee with low to middle wages, the GPO can be particularly devastating. Their CSRS annuity may not be that much because their “high-three” average salary is low, and they may be unable to collect a spouse’s or widow/widower’s Social Security benefit due to the GPO—yet, they are financially dependent on their spouse.

Legislation has been introduced in Congress to minimize the effect of the GPO—especially for CSRS retirees whose annuities are relatively small—but as of the date of this column, none has passed.

Here are some examples that illustrate how the GPO works.

Example 1. Paul is a CSRS annuitant receiving a $2,100 per month CSRS retirement annuity. He is entitled to his own Social Security retirement benefit of $200 a month, reduced because of the WEP. Paul’s wife Rachel is retired from private industry and receives Social Security benefits of $1,500 a month.

 Paul will receive the higher of either the Social Security retirement benefit he earned himself ($200) or the spousal benefit (50 percent) that he earned as a result of being married to someone who earned her own Social Security benefits. Because of the GPO, Paul will receive his own benefit, even though it is less than 50 percent of Rachel’s benefit amount. This is calculated as follows:

2/3 of $2,100 = $1,400 (the offset amount);
50 percent of $1,500 = $750
$750 less $1,400 = 0

Paul receives $200 a month while Rachel is living. If Rachel should die before Paul, Paul would not be entitled to the widower’s benefit of $1,500 because $1,400—the offset amount—is only $100 less than $1,500 and Paul’s own benefit of $200.

Example 2.  Burt is a CSRS annuitant affected by both the WEP and the GPO. He is receiving a monthly annuity of $2,370. Because his wife Helen did not work, she is not entitled to any of her own Social Security benefits and Burt is not entitled to spousal benefits. Hence, Burt is not affected by the GPO. Burt served 10 years in the military earning Social Security quarters, and also worked 10 years in private industry after retiring from federal service. Burt is entitled to a $400 monthly Social Security benefit. This is determined after the WEP has been applied. Burt’s wife Helen is entitled to receive 50 percent of Burt’s Social Security benefit, or $200 per month.

Example 3. If Burt from Example 2 dies first, then Helen will receive 55 percent of Burt’s CSRS unreduced (for survivor benefits) annuity of $2,608, or $1,434 per month. Helen will also be entitled to a widow’s benefit from Burt’s Social Security benefit, up to 100 percent of his benefit before the WEP was applied. Burt’s Social Security benefit amount was $730 per month before the WEP adjustment. If Helen dies first, Burt can request to have his CSRS annuity recomputed to the unreduced (reduced for the survivor benefit) amount. He would also continue to receive the same Social Security benefit of $400 per month as he did when Helen was alive.

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Rulings Roundup: Navy Specialist Loses Appeal vs. FOIA Computer Search

Scott Winters, a GS-11 Civilian Electronics Specialist with the Navy at the Naval Surface Warfare Center (NSWC) in Crane, Ind., had his computer temporarily taken from him so that its hard drive could be copied by service computer specialists. The event took place on Aug. 29, 2005, as part of the Navy’s response to a Freedom of Information Act (FOIA) request.

On examination of the hard drive, an official found evidence of an allegedly inappropriate—and illegal—public Web site Winters had created and operated. The site offered access to over 250 pages of Navy documents, identified the appellant’s duties at NSWC and, according to court documents, “demonstrated his general discontent with his job.”

NSWC found the site demonstrated multiple violations of the “Internet policy at NSWC,” which demands that employees “refrain from usage which reflects adversely on the Department of the Navy,” as well as “limit personal communications and Internet searches to personal time.” A supervisor removed Winters on four specific charges: Using poor judgment at work, wasting excessive government time, misusing government equipment, and—in a statement posted on the Web site—making an “indirect threat to a supervisor.”

Winters appealed his removal to the Merit Systems Protection Board (MSPB), but his appeals to MSPB failed. He then took his case to the U.S. Court of Appeals for the Federal Circuit, which reviewed the case before the MSPB. That appeal offered multiple arguments—legal and factual—as to why Winters should be reinstated. On the legal front, he said that the evidence against him “was obtained in violation of FOIA” law and that the Navy’s contract with an outside company precludes Navy FOIA inspections. Winters further argued that the documents gained by Navy officials came second-hand, and that the information they contained should be evaluated by “an expert witness” rather than by the Navy officials who analyzed them.

The appeals court rejected all four of the foregoing defenses. FOIA standards are far-reaching and discretionary—nothing on Winters’ hard drive was beyond the Act’s reach, the court wrote. As for the agreement with a computer contractor who maintained the machine, such a contract has no bearing and would “not protect agency employees from the agency gathering information in response to a FOIA request,” the court wrote. Likewise, Winters’ argument against the “second-hand” statements of witnesses was invalid, the court wrote, because they had “personal knowledge” of his attendance and habits. No expert witness was needed, the court added, to see that there was a “voluminous amount of non-work related material” on the appellant’s computer.

Winters also argued that he should not be held accountable to the NSWC “computer and Internet usage policies” until after July 2005, at which time he signed an agreement to do so. But the court disagreed, noting he had attended at least four training courses that made the policies clear.

Finally, Winters objected to the Navy’s claim that his potential for rehabilitation was “questionable.” But the appeals court agreed on this point, as on all others, with the service and the MSPB. “Mr. Winters’ conduct was serious and prolonged and the material posted on his Web site demonstrated a deep-seated hostility toward his colleagues and his supervisors,” the court wrote. “Although Mr. Winters apologized for the trouble he had caused, the record contains no evidence that he ‘fully acknowledged his wrongdoing’ or the ‘gravity of his misconduct.’” The appellant’s removal from his job was upheld by the court.

(Winters v. Department of the Navy, U.S. Court of Appeals for the Federal Circuit, Docket No. 2007-3106, 7/11/07)

HR Worker’s Removal of ‘Cluttering’ Fan Brings Suspension

Patricia A. Crepeau, a GS-11 Human Resources Specialist with the Department of Labor (DOL), was suspended for 25 days after removing a co-worker’s property without authorization. According to court documents, she had been previously warned “not to touch anything that did not belong to her.”

On Mar. 10, 2006, Crepeau removed an electric fan belonging to a co-worker who worked in an adjoining work space to her own. Cleaning contractors on the premises testified that she was seen “taking the fan” away.       

Crepeau appealed her removal by noting that the fan was not in her neighbor’s work space, but on a “common file cabinet.” She said she had removed it believing it was “abandoned,” that she was merely keeping the area “uncluttered,” and she did it to prevent “hoarding” by her office mate.

Subsequent appeals made by Crepeau to the Merit Systems Protection Board (MSPB) were unsuccessful, so she took her case to the U.S. Court of Federal Appeals for the Federal Circuit. The appeals court agreed with DOL officials and MSPB that the evidence showed Crepeau had removed the fan late in the evening “to escape detection” and that she knew it was “wrong to remove the fan.”

Finally, the court noted, the appellant had previously intruded into neighboring areas and had been warned accordingly to avoid “bothering her co-worker’s things.” The appeals court affirmed MSPB’s decision, and Crepeau’s suspension stands.

(Crepeau  v. Department of Labor, U.S. Court of Federal Appeals for the Federal Circuit, Docket No. 2007-3130, 7/12/07)

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You Be the Judge: Does Air Force Craftsman Deserve Firing?

“As an experienced mason, I often get calls from civilians in my area who want to hire me off-hours for their projects,” said Addison Johnson,* an expert in the craft with the Air Force. “Sometimes I accept their contracts—but always with the permission of my supervisors.”

“A guy with an auto racing outfit approached me to work on a racetrack after being referred by my boss,” Johnson continued. “Despite the fact that my Air Force supervisor directed him to me, a new commander said the work was illegal, and fired me.”

“Johnson claims his supervisor approved his work at the racetrack,” said Rae Vandeveer, an attorney for the service. “But the military’s rules are clear—you can do limited work in your spare time, but not on taxpayer time with taxpayer materials.”

FACTS: After leaving service with the U.S. Marines, Johnson began civilian employment with the Air Force. In 1990, he took a job as a WG-9 Masonry Worker at Nellis Air Force Base in Las Vegas. According to the record, his work was considered excellent, and he sometimes freelanced to civilian businesses, a practice “conducted with the knowledge of his Air Force supervisors,” according to court documents.

In early 2003, a representative of a company that owned a motor speedway in the area met at the base with officers to coordinate a party for troops returning from the Middle East. After the meeting, the man admired concrete barriers and other structures there, and the master sergeant who supervised Johnson provided the mason’s contact information. Later, the same sergeant approved Johnson’s request to produce a prototype of work for the speedway “on Air Force premises using surplus government material.” The speedway opted not to rebuild its barriers after all, and at this point Johnson believed the matter over.

But in September 2003, the Air Force investigated Johnson—alleging that his speedway prototype represented “unauthorized work.” In July 2004, a new Civil Engineering Squadron Commander proposed firing him, and in September he was fired for “misuse of government property.”

Johnson appealed to the Merit Systems Protection Board (MSPB). The Air Force said the private company’s initials emblazoned on a barrier built on base was clear evidence of illegal profiteering.

But Johnson’s supervising master sergeant testified that officials “knew of and approved of” the project—and noted Johnson’s many accomplishments and favorable Air Force reviews.

The administrative judge (AJ) in the case, unmoved, found that Johnson “used government concrete to build a barrier,” illicitly marked with a private company’s initials, to “solicit personal, private business.” He also ruled the firing “within the bounds of reasonableness.” Johnson appealed to the full MSPB, which rejected his argument, and he took the case to the U.S. Court of Appeals for the Federal Circuit.

Should Johnson remain fired—or be reinstated, since some base officials approved of his outside work?

DECISION: Johnson reminded the appeals court that base officials had for years known of and approved of his outside work. The government’s lawyer conceded that “the record shows there was no objection by the Air Force” to his “outside masonry business”—and that the service had “not warned him concerning disapproval of these activities—including the speedway proposal.” Yet the Air Force insisted that the initials on the barrier made the work illegal.

The appeals court took the appellant’s view. “Whether or not this activity was appropriate, it came to the appellant through persons at the Air Force,” the court wrote. The court added that the “lengthy period” during which base officials condoned Johnson’s outside business and the “lack of warning” also supported the appellant’s case.

The court reversed MSPB’s ruling, citing two key precedents. Under Van Fossen v. Department of Housing and Urban Development (1984), if a “previously condoned activity is no longer condoned,” employees must be served warning before they are subject to the new rules. And in Douglas v. Veterans Administration (1981), “clarity” and advance warning to employees about such offenses is mandatory.

The appeals court remanded the case to the MSPB, ordering Johnson’s reinstatement to his job—but allowing some lesser disciplinary action if the board found it appropriate.

(U.S. Court of Appeals for the Federal Circuit, Civil Action No. 2006-3238, 07/06/07)

Discuss the outcome of this case at www.FederalSoup.com. Click on the "You Be The Judge" Forum.

*Names and dialogue are fictitious, but details are based on a real case.

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Jeri Thorne, General Manager
Phil Piemonte, Managing Editor
Nathan Abse, Staff Writer
Frank Klimko, Contributing Writer
Mike Causey, Columnist
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