An NCIS (Naval Criminal Investigative Service) employee fired for accessing the National Crime Information Center (NCIC) database for personal reasons, got no sympathy from the federal appeals court in her bid to win back her job. (Valdez v. Department of the Navy, C.A.F.C. No. 2010-3035 (nonprecedential), 3/17/10)
NCIS, as fans of the popular TV show readily know, is an agency that gets involved in law enforcement, counterintelligence, and security for the Navy worldwide. For this reason, NCIS has access to the FBI’s NCIC database.
Ms. Valdez admitted to misusing this access to NCIC by running a criminal history on her husband without the agency’s permission. Her story was that her husband needed a job in order to qualify for a mortgage on a home they were buying and that in order to get the mortgage he needed a "clean" criminal record. She decided to check him out on NCIC because, as she later told her supervisor, "desperate times call for desperate measures." (Opinion, p. 2)
Valdez’s managers originally thought about recommending a reprimand and 14-day suspension. However, when faced with her "indifference" to the rules they concluded that she would not hesitate to violate those rules if faced with "another desperate personal situation." (p. 2)
They therefore recommended her removal for her admitted misuse of the NCIC database. Valdez, in her reply, admitted to her offense, apologized, assured management she would never again do such a thing, and agreed that punishment was warranted. But, she added at the end of her oral reply meeting with the deciding official "the only thing that would sway her was her family. What would she do the next time her family was in danger—she didn’t know—she couldn’t say." (p. 3)
The deciding official emphasized this caveat thrown out by Valdez at the oral reply in his decision to remove her. He concluded that because of this statement that "family" might make her do it again, Valdez was not a good candidate for rehabilitation. (p. 3)
In her appeal to the Merit Systems Protection Board, Valdez admitted her wrongdoing, but argued that the punishment should be mitigated. The agency countered that by her misconduct Valdez had put the NCIS agreement with the FBI to use the NCIC in jeopardy, that she had lost the confidence of her supervisors, and that she had left the door open to doing the same kind of thing in the future if family concerns warranted it in her mind.
The MSPB upheld the agency’s removal of Valdez. She then took her case to the Federal Circuit Court of Appeals.
The appeals court "carefully reviewed" the administrative record. However, it found no error and no basis to conclude the Valdez’s removal was "totally unwarranted." In short, Valdez lost.
Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.