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Names often shielded when misconduct occurs

Jul. 22, 2012 - 03:39PM   |  
By SEAN REILLY   |   Comments
Sen. John McCain, R-Ariz., said federal employees should be indentified in misconduct cases.
Sen. John McCain, R-Ariz., said federal employees should be indentified in misconduct cases. (Alex Wong / Getty Images)

A Veterans Affairs Department employee bilks the government $19,000 by falsely claiming locality pay. Some two dozen Securities and Exchange Commission staffers access pornography while on the job. A Transportation Department employee is fired after a bribery investigation.

In all cases, federal employees committed offenses — in some cases, potentially criminal — yet their agencies refused to disclose their identities, saying that would amount to an unwarranted infringement on their right to privacy. Critics counter that federal employees caught doing wrong must be held publicly accountable.

“They’re paid by the taxpayers, so they should be accountable to the taxpayers,” Sen. John McCain, R-Ariz., said in an interview. Anyone found to have abused the public trust, whether a contractor or government employee, McCain said, “should be identified.”

McCain, citing the political clout of federal employee unions, was pessimistic about the chances of changing the status quo. But Sen. Tom Coburn, R-Okla., said that lawmakers are looking at a “total” overhaul of the Office of Personnel Management in the next year or two, “so we’ll be addressing that then.”

Under the Freedom of Information Act, personal privacy considerations are one of nine exemptions agencies can cite in withholding records. Although the Justice Department offers more than 70 pages of guidance on the subject, there are no hard-and-fast rules for deciding when to disclose an employee’s name in cases of misconduct, government lawyers say.

“It’s really case by case,” said Rich Delmar, counsel to the Treasury Department’s inspector general. As a general rule, the office doesn’t publicly release names, Delmar said, but there are exceptions. The higher the employee’s job grade, for example, the weaker the privacy interest. Another factor government lawyers weigh is the significance of the misconduct, Delmar said.

Other IG offices, including at the Veterans Affairs Department, take a similar approach.

In May, for example, VA released an investigative report that identified Patricia Gheen, a Senior Executive Service member found to have helped steer more than $2 million in contracts to a firm that had hired her former boss.

It was a different story, however, when a separate inquiry found that a former Veterans Health Administration employee had improperly claimed more than $19,000 in locality pay for Washington, D.C., after he had moved elsewhere.

The investigative report, obtained by Federal Times under the Freedom of Information Act, blacks out the employee’s name throughout the report on privacy grounds. The employee, a technology transfer specialist, resigned in February, the report indicates. The IG is urging VA to recoup the money.

In misconduct cases involving contract employees, it’s up to the company to decide whether disciplinary action is warranted, said Alan Chvotkin, executive vice president and counsel for the Professional Services Council.

“Almost never is the individual identified because these are personnel matters, and there is no affirmative obligation to disclose,” Chvotkin said.

Since the 1966 passage of the Freedom of Information Act, “I would say there’s been a drift toward protecting more information in the interest of privacy,” said Robert Gellman, a consultant who spent 17 years working on privacy and freedom of information issues as a congressional staffer. “If you give agencies the ability to say no, they’ll jump on it.”

The American Federation of Government Employees has taken no position on the issue, said Ward Morrow, assistant general counsel for the union. But if no criminality is involved, he said, “I’m not sure why making their name public would further any particular public interest, particularly if it’s an administrative or personnel issue.”

Critics say agencies sometimes abuse the way they use privacy protections. “I’ve seen privacy used as [a] blanket excuse to hide the dirty linen,” said Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, an Oregon-based watchdog group.

After an Idaho wildfire killed two Forest Service firefighters in 2003, an internal inquiry found that poor management oversight and other failings contributed to the tragedy. The incident commander was indicted on criminal charges; the Forest Service later announced that it had disciplined six workers, but declined to name them on privacy grounds.

Stahl’s organization sued to reveal their identities, along with those of about 16 other employees mentioned in the report of the internal investigation. Only through full disclosure could the public be confident that the agency “learns from its mistakes and does not allow those responsible for unnecessary death and injury to retain the authority to put others at risk,” a retired Forest Service official wrote in a court filing.

In a 2008 decision, however, a federal appeals court in San Francisco sided with the government. Forest Service employees mentioned in the report were low- to midlevel, the judges said, adding that disclosure could subject them to “embarrassment and stigma.”

Inspectors general for executive branch agencies and the U.S. Postal Service probe thousands of allegations of wrongdoing every year, according to records obtained by Federal Times under FOIA. Last year, those investigations resulted in almost 4,000 firings, suspensions and other disciplinary actions, although that total includes federal contractors and others working on federally funded programs, according to an annual roundup by the Council of the Inspectors General on Integrity and Efficiency.

In 2010 and 2011, for example, the Transportation Department’s IG investigated a total of 20 allegations against employees and contractors ranging from time and attendance fraud to public corruption, records show. But while a summary indicates that one employee was “removed” in relation to a bribery probe, the name is redacted. That was the case even though the employee, James Wood, pleaded guilty last year to accepting bribes from trucking company consultants and is identified in a press release on the IG’s website.

Normally, privacy rights are diminished when employees are criminally charged and their names become public record. Earlier this month, however, another watchdog group sued the Agriculture Department’s inspector general after the agency cited privacy grounds in refusing to release its report on a probe of a former Forest Service law enforcement officer convicted two years ago on sex charges.

Joe Hardy was sentenced to nine months in jail after a Michigan jury convicted him on three counts of fourth-degree criminal sexual conduct and one count of assault and battery, according to an appellate court decision last September upholding the convictions. Hardy, who was acquitted on some charges, had been accused of inappropriately touching three female trainees at a campfire gathering.

But the inspector general has thus far refused to release its own investigative report, saying that Hardy’s consent is needed first.

The agency’s stance is “unexpected and strange,” said Jeff Ruch, executive director of Public Employees for Environmental Responsibility, which filed the suit in federal court in Washington. The group had first sought the report last year because Forest Service employees interviewed during the IG’s investigation wanted to know the findings, Ruch said. Despite the assault and battery conviction, Hardy’s actions were “more of a grope,” Ruch said.

Paul Feeney, deputy counsel for the USDA inspector general’s office, declined comment on the suit, saying in an email that the agency would “respond fully” in court.

The tension between privacy and public accountability took a lurid turn two years ago after the Securities and Exchange Commission’s inspector general found that two dozen SEC employees — some making six-figure salaries — had accessed pornographic websites on government computers between 2005 and 2010.

Kevin Evans, a Denver white-collar defense attorney, filed a FOIA suit to get the employees’ names on the grounds that they had “knowingly and intentionally” used taxpayer-financed property to engage in misconduct.

In a December 2010 decision, U.S. District Judge Christine Arguello threw out the suit, ruling that “the sexual nature of the misconduct reinforces the need to protect the privacy interests of these individuals.” While some of the employees were supervisors, none had jobs with significant policy-making authority, and were responsible for managing a total of only 22 workers, Arguello wrote. Revealing their identities would “do little, if anything,” to advance public understanding of the SEC’s operations, she added.

Evans did not appeal the decision, but contends that Arguello’s interpretation was “warped.” If he were disciplined by the state bar association for accessing pornography on a client’s time, that would be public knowledge, Evans said in an interview.

“Why shouldn’t government lawyers be held to the same standard?” he asked.

But Gellman, the consultant, questioned whether naming the porn-watching employees — some of whom have since left the SEC — would serve much purpose.

“It’s appropriate for them to be disciplined for it,” he said. “Would it add anything to the public debate to identify them?”

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