Sleeping with Trouble: Extramarital Affairs and Federal Employees

The scandal surrounding CIA Director David Petraeus and his biographer, Paula Broadwell, is highlighting the threats extramarital affairs can pose to federal employees. Some federal employees who engage in extramarital affairs do not believe their personal relationships should have any bearing on their employment, even if that relationship is of a sexual nature with someone other than his or her spouse.  However, what happens in the bedroom can haunt them in the office.

Here are a few ways a federal employee’s consensual extramarital affair can ruin his or her career.

Disciplinary Actions for Misconduct

An agency may discipline an employee who engaged in consensual adulterous behavior for conduct unbecoming of a federal employee. Suspension is the typical punishment for such misconduct, but removal may be justifiable under certain circumstances.

The MSPB case of Miller v. Dep’t of the Army (2005) involved a Department of the Army inspector general investigative specialist who initially told the police she was raped by a co-worker, but the police found this claim to be unfounded. An agency investigation found the investigative specialist, who was married, had a consensual extramarital affair with the co-worker. It proposed her removal for conduct unbecoming of a federal employee (adultery) and making false and malicious statements about a co-worker.

The investigative specialist appealed her removal to the MSPB. An administrative judge sustained the conduct unbecoming charge, noting that her conduct met the definition of “unbecoming” by being “unattractive, unsuitable, or detracting from the employee’s character.” The judge did not sustain the false statement charge and reduced her punishment from removal to a 60-day suspension without pay. It is important to note that in having the extramarital affair, the employee violated Georgia state law which classifies adultery a misdemeanor. According to the New York Times, 23 states criminalize adulterous conduct, and while it is a misdemeanor in most of those states, it is a felony in others such as Massachusetts, Michigan, and Wisconsin.

Employees can also be removed on a charge of improper conduct if their extramarital affair interferes with the agency’s mission. It does not matter if the extramarital affair or sexual misconduct occurred only while the employee was off duty or if the person he or she was sleeping with was not a co-worker. That’s the conclusion the U.S. Court of Appeals for the Federal Circuit reached in Brown v. Dep’t of the Navy (2000). This case involved the program manager of a Morale, Welfare, and Recreation Department (MWR) at a Marine Corps base.

This manager slept with a Marine major’s wife. The manager appealed his removal to the MSPB, but an administrative judge affirmed the penalty, finding his conduct ran contrary to the MWR’s mission and it eroded the agency’s trust and confidence in his ability to perform his duties. The Board denied his petition for review and he appealed to the Federal Circuit. The court affirmed the Board’s decision, but it noted that “this case is a difficult one because the misconduct was private in nature and did not affect [the employee’s] official responsibilities in any direct and obvious way.” While such conduct generally may not merit removal, his job was unlike many other federal civil service positions given the MWR’s mission and its responsibilities and services to military families and commanders.

Security Clearance

Even if federal employees with a security clearance are able to keep an extramarital affair from a spouse, they will have a harder time keeping that secret from the government, especially when their clearance comes up for review. Adultery is the kiss of death for federal employees with security clearances; it is very hard to prove to Defense Office of Hearings and Appeals (DOHA) administrative judge that an employee who engaged in adulterous conduct does not pose a threat to national security given the individuals’ susceptibility to coercion related to the affair.

If Office of Personnel Management or Department of Defense investigators uncover the affair, employees will likely soon after receive a Letter of Intent/Statement of Reasons (LOI/SOR). The LOI/SOR may cite Guideline D (Sexual Behavior) and/or Guideline E (Personal Conduct) of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information as reasons why their clearance is being suspended, denied or revoked. Guideline D cites as a disqualifying condition, “sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress.” Guideline E similarly cites as a disqualifying condition, “personal conduct or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress.” If the affair involves a foreign national, Guideline B (Foreign Influence) may also be cited.

Federal employees facing disciplinary actions for engaging in an extramarital affair or who are at risk of losing their security clearance should immediately contact a federal employment law attorney.

© 2016 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..

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About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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  1. COLEMANSPIKES8888 says:

    Useful piece . I am thankful for the info ! Does anyone know if I could possibly grab a fillable Purchase Order form to edit ?

  2. Tired of Government says:

    As I once read on a T-shirt that someone I saw was wearing; Relax, its just sex!

  3. Tired of Government says:

    I believe that faithfulness to a spouse is a marital problem and has absolutely nothing to do with ones ability to perform their job and adultery should be handled only in the divorce court. You would be surprised at the large number of federal employees that cheat on spouses. If everyone that did got fired we would have a very small government. The government send employees out of town all the time and this encourages the cheating. Also, you would be surprised at how much this cheating actually makes employees do better at work and even get along better with their spouses. Not every spouse is going to divorce them either or even wants to hear that they have cheated. This is not a thing for the government to stick their big noses in.

  4. $15300432 says:

    This is the main reason why Clinton was prevented from receiving classified briefings and allowed Osama BinLaden to walk

  5. Jhn519 says:

    Pretty laughable and rather hypocritical, given the fact that we have presidents and numerous congresspersons who have engaged in notorious and criminal sexual behavior.

  6. Jackpot20 says:

    I believe anyone haveing an affair should be fired. If you can`t trust them to be faithful to thier spouse you can`t trust them with anything.  Get a divorce if you want to screw around.

  7. msgrowan says:

    I served in the military for over 30 years.  Therein, the operative , though crudely stated, informal policy in such matters – which obviously is not, however, uniformly observed (vide General Petraeus, etc.) – was “Don’t get your meat where you get your bread.”  Human nature and the sex drive being what it is, we will inevitably continue to see such cases arise, despite the almost uniformly negative consequences of such behavior.

  8. bee says:

    Forget about Clinton and the past…this is a current problem and wide spread within the government.  I personally know two federal employees that slept their way
    to the top..still in the position collecting a very nice salery that they weren’t (and still aren’t) qualified for.   The federal employees that
    they slept with have also moved up the promotion ladder and are now high level
    federal employees.  Unfortunately I
    reported this and I have had to work in a hostile work environment ever since
    and that was 7 years ago.  The corruption
    and lack of honesty in the government is very disheartening.

     Have the ethics in
    the government changed or has unethical behavior become acceptable and the norm for promotion…. 

  9. Steve Neal says:

    I appreciate the rules being stated as clearly as they really are in this article.  Extramarital affairs are always wrong and those that include coworkers, subordinates, or supervisors are cancerous to any organization. 

    I also agree with a few of the other comments in the stack below; where it seems that some offenders have been fully prosecuted and others have not.  The appearance of multiple standards, depending on one’s grade or office, is just wrong.
    The saying that “Absolute power corrupts absolutely.” is spot-on in today’s leaderships’ extramarital affairs.  They seem to be counting on that old double standard from the very beginning.  They really must believe it is OK or that they won’t get caught, and even when they do get caught, they will just get away with it.   However, I say there’s no “strange” that was ever worth trading for one’s family and career.   They should lose it all, both swiftly and publicly.

  10. Viking01 says:

    As you well know that this does not include Congress, congressional staff.  Your supervirsors are also exempt.  Just you low ranking in the dirt worker bees.

  11. NoDonkey says:

    There is a defined process for firing a federal employee.  It’s not easy, but it can and is done. 

  12. Optimo says:

    I read these articles for entertainment.  They seem to provide little if any value outside of that.  It is unlikely that this article or any other I typically read will produce or prevent actions.  I do enjoy reading all the comments that are posted as if the comment or idea will be the greatest and prompt some great action.  It adds entertainment value. 

  13. eyecurdum says:

    He “did not have sexual relations with that woman, Miss Lewinsky.”

  14. Badfed says:

    No matter what this article says, you basically can’t fire a federal employee.  You may make them become less productive by disciplining them, but the unproductive will always remain on the federal payroll.

    You can never remove and adulterous lying democrat.  (Bill/Hillary Clinton each proved that)

    On an unrelated note…why does anyone every respond to GrannyBunny?

  15. grannybunny says:

    According to sex researchers, 75% of husbands and 50% of wives commit adultery at some point during their marriages.  I would be the last person in the World to condone infidelity; it is a violation of what I believe to be permanent, sacred, vows, and I have experienced — first-hand – the extreme hurt and feelings of betrayal that it can cause.  Nevertheless, absent highly unusual circumstances, it is normally a private matter, affecting only the parties involved, and their families.  In the Land of the Free, it is the ultimate Nanny State for the Government to continue to try to intrude into people’s bedrooms and other intimate areas.  If extramarital affairs make someone an increased security risk, it is largely because employers regard them as grounds for discipline, including removal.  Unless there is a clear — and strong — nexus between the affair and the person’s job, the Government should “butt out.”  That would remove most of the danger of adultery increasing someone’s security risk.

    • NoDonkey says:

      It’s because they are grounds for blackmail.  If you’re sleeping around, your spouse could get half of what you earn and your pension.  It’s not a “nanny state” matter, it’s a matter of responsibility.  Same as if you weren’t paying your bills on time.  There are certain expectations for those who hold security clearances. 

      • grannybunny says:

        It is certainly grounds for blackmail, no small part of which is because of the danger to ones career.  Remove that danger, and the security risk would substantially diminish, just as it has since “Don’t Ask, Don’t Tell” was eliminated in the military.

        • NoDonkey says:

          Read what  I wrote – it’s a grounds for blackmail beyond the career implications.  Child custody, future finances and pension,  all of those will still be there even if one couldn’t be fired for having an extramarital affair.  This goes far beyond “don’t ask don’t tell”. 

          • grannybunny says:

            Being a retired divorce lawyer, I am well aware of the effects of infidelity on divorces.  Since the advent of no-fault divorce, the impact of adultery on child custody and property divisions has radically decreased.  While adultery itself is grounds for divorce, under no-fault, divorce is available anyway, so the existence of adultery doesn’t add anything.  Most states now have statutes mandating equal custody — or at least possession — of children and equal divisions of property, absent egregious circumstances.  In the vast majority of divorce cases, infidelity doesn’t make a major difference in the ultimate outcome. 

          • NoDonkey says:

            Perhaps – but your argument isn’t with me, it’s with those who set the requirements for security clearances.  No matter how you slice it, most people don’t want extramarital affairs revealed, otherwise, they wouldn’t be affairs. 

          • grannybunny says:

            Agreed.

    • ObservingTheProcess says:

      So you consider just being “impeached” with no other consequences to President Clinton as appropriate.   Wow!!!!!!!!! I cannot fathom the security breaches that could have or may have occurred while he did his thing in the Oval Office.    Talk about “war on women.”  This guy had a 1 person battle plan.

      • grannybunny says:

        What consequences would you have considered appropriate?  Being required to wear a scarlet letter A?  Being placed in stocks on the Town Square?  Castration?  While Clinton’s conduct was inappropriate on numerous levels, it involved 2 consenting adults, and Lewinski even bragged to Barbara Walters that she had initiated it.

    • trevor1953 says:

      if the gov selectivley enforces rules they can be made invalis as was the case in my office. The ig constently went after non management employees for even hints of an affair but ignored top management infedelity. in the end, the Ig stopped investigating all these normal human activities

  16. Fred Teed says:

    Talk about duel standards.  I was married to a woman for 23 years and divorced when I found out she was having blatant affairs during the last ten years of the marriage.  This had no effect on the court’s decision to still grant her one half of my retirement pension for the 23 years we were married.  Further, OPM upheld the court’s decision.  There is no justice when you’re a Fed.    

  17. steve5656546346 says:

    We continue to tell ourselves that the most intimate think that you can do with another human being–and the thing which can create new life–is nothing more than a casual recreational activity.  But from time to time we are forced to face the fact that that’s just not so.

    And after trying for years to convince ourselves that sex is meaningless, what do we get?  50 Shades of Gray.  Viagra.  Disease.

  18. Canyon Glider says:

    This article touches on a difficult personal judgement call– however, there are tangible decisions that are made by federal agencies and bureaus who polygraph employees and prospective candidates for TS and TS/SCI positions.  One of the things that is looked for is whether-or-not a person will tell their partner or spouse a “significant” lie or willingly obfuscates the truth (such as when having an extramarital affair).  The rationalization by polygrapher evaluators is that if an employee or candidate can or has the proclivity to lie or easily obfuscate the truth to their closest and/or most valued relationship then they will more-than-likely be able or willing to be deceitful with the government agency or bureau that they work for thereby putting classified information and projects in potential jeopardy.  This one element within a polygraph exam does not necessarily evoke a fail, but it is a significant indicator to an evaluator.

  19. HRSpecialistLMER says:

    Off duty misconduct, whether it be sleeping around or bringing a gun to a bar is not new to the MER world.  If there is a nexus, a correlation between what you are doing outside the office to the office then you can be discplined for it.  Discpline isn’t always removal either and shouldn’t always be the go to choice first thing.  All the information needs to be reviewed, considered and then if warranted action taken.

  20. HR Specialist (l/MER) says:

    Off duty misconduct, whether it be sleeping around or bringing a gun to a bar is not new to the MER world.  If there is a nexus, a correlation between what you are doing outside the office to the office then you can be discplined for it.  Discpline isn’t always removal either and shouldn’t always be the go to choice first thing.  All the information needs to be reviewed, considered and then if warranted action taken.

  21. ObservingTheProcess says:

    Once again the Fifedom peasants are held to a different standard than the ruling class.  Did not our leader (Clinton) commit adultry while in the Oval Office, but was not held accountable and is still receiving a pension?

    • steve5656546346 says:

      Amazing, wasn’t it?

      At the time, I had a lower level employee tell me that she thought that it was Clinton’s private business.  I responded:  “Fine.  Believe that if you like, but just remember that if you do the exactly the same thing you’ll be fired.  Apparently the President is held to a lower level standard.”

      In terms of nexus with employment, the affair was conducted on government property, with a subordinate, sometimes during duty hours, and (according to unrebutted testimony) on one occasion while the President was actually performing his duties.

      • NoDonkey says:

        Exactly and under his leadership, how many military personnel and government employees were fired for doing the same thing he did?  How would a CEO fare with the shareholders if it was revealed he had an affair with an intern? 

        • LaborAttorney says:

          Not sure what your point is because there have been many notorious cases of CEOs having affairs with subordinates.  Some have lost their careers for it while others survived.  Pardon my cynicism but I can’t help thinking that in the government as well as the outside, the ones who lose their jobs for sexual transgressions are the ones management want to fire and they finally found a hook to do it.

    • grannybunny says:

      I hardly think that President Clinton “was not held accountable.”  As you may recall, he was impeached.

      • Viper_060563 says:

        But he still got to hold his office AND retain his pension and security.

      • ObservingTheProcess says:

        Really???!!!!!!! You consider that as being “held accountable”       He was not removed from office, continued to fly Airforce 1 on the taxpayer dollar, remained as Commander and Chief.  What is amounted to was a “slap on the wrist” from the good ole boys.   I really cannot believe that anyone would consider that as being held accountable.  Unbelievable!!!!!!!!!!!!!!!!!!!!

        • grannybunny says:

          The Senate engaged in the same balancing act that employers are supposed to:  assessing whether or not the conduct totally destroyed his effectiveness in the position.  They concluded it did not.  You may or may not agree with their conclusion, but they were our elected representatives, and that is how our system works.  The real punishment for Bill Clinton is the permanent stain the Lewinsky affair left on his legacy.  Twelve years after he left office, we are still talking about it, and it will — likely — never go away.

          • ObservingTheProcess says:

            This is my point exactly!!!!!!  The elected officials should be held to the same accountability as the worker bees.  If one group is going to be fired, the elected officials should be removed from office, in other words fired.  Especially when the discretions occured on official government property and on official government time.

          • Super_Babysitter says:

             He cries all the way to the bank…..

          • HRguru says:

            The balancing test was whether he committed a “high crime or misdemeanor”, it wasn’t a utilitarian balancing test, in theory. In actuality, it was just a political vote.  Anyway, the whole thing was a farce and I believe the origin of a lot of ugliness in DC leading to threatening to imprison political opponents.

          • $15300432 says:

            sorry it was a party line vote and had nothing to do with his ability to function. The fact that Newt was running the country and doing a great job made clinton nothing more than a useless figure head

          • grannybunny says:

            Now there are 2 people who think more highly of Newt than of Clinton:  you and Newt himself!  🙂

        • Itsjustmeagain1 says:

          He was punished more than Newt Gingrich, one of the prosecutors who was having an affair while the impeachment procedures were underway. We again see him running in the Primaries several times. Oh yeah, he was a Republican. Good enough for me.

      • Mdstarsmom says:

        what good does that do he was still allowed to remain in office

      • Tim says:

        Granny, Clinton was impeached for perjury and obstruction of justice. Not for having the sexual affair.

        • grannybunny says:

          And the perjury/obstruction of justice occurred when he was being deposed about his relationship with Lewinsky.  My point is that — absent egregious circumstances, which were lacking — private matters between consulting adults should remain private.

        • rickaroo says:

          Tim, save your breath, she’s a bleeding heart liberal and she knows everything. You won’t ever convince her otherwise.

      • Tinsoldier says:

        President Clinton was NOT impeached.  Congress held some hearings and he was embarrassed and raked over the coals a little.  In the end, NOTHING was done to punish him. 

    • comfortable_with_one says:

      If this article pertained to ALL Government workers, we would have leass than 50 Senators and 100 Congresspersons. Think they could pass a Bill then?

  22. Guest says:

    Hardly anything ever happens when a high official is involved.  Look at former top government leaders Speaker Gingrich and President Clinton… they typically tend to keep their positions and maybe get a slap-on-the-wrist.  There was a woman where we used to work years ago who made it to the top as GS-15 both figuratively and literally speaking.   The gossip mill and the water  cooler was humming all the time.  It’s usually when something is made public that actions are taken by the agency.  It’s not easy to report these people who are still in charge.  And Lord knows,  if you want to keep your job - you keep your mouth shut!
      Besides, many see this as a supposedly private matter between two foolish people.

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