There has been talk in the halls of Congress that we need a specific legislative ban on federal employees viewing pornography while at work so we can put a stop to it. In this recent case ICE fired an employee for doing just that as well as for not being truthful when asked about it by the investigator. (O’Hara v. Department of Homeland Security CAFC No. 2015-3044 (non-precedential ) 4/24/15) Here’s how the court’s opinion explained the facts:
Sean O’Hara was a Supervisory Detention and Deportation Officer with ICE and apparently had a lot of spare time on his hands when he was at work. Based on a tip from a co-worker, the agency investigated O’Hara’s use of his government computer. Its analysis concluded that O’Hara had “accessed over 500 sexually explicit images, websites, and links, and conducted numerous searches for sexually explicit materials” over a four-month period. As if that was not bad enough, when investigators sat O’Hara down to question him under oath, he denied that he looked at stuff like that while at work. When confronted with the evidence, he ended up admitting that he did. He told investigators he did not think it was prohibited since the images he accessed were “unblocked.” (Opinion pp. 2-3))
The agency fired O’Hara based on lack of candor and unauthorized use of government computers. The lack of candor charge cited O’Hara’s initial denial as well as his statement that he thought it was okay since the sites were not blocked. The unauthorized use charge was backed up with 17 specifications of various dates on which he viewed and/or downloaded images. (p. 3)
O’Hara did not fare well with the Merit Systems Protection Board, which affirmed the charges and specifications and upheld his removal. He took his case to the appeals court where he argued that the MSPB should have thrown out the lack of candor charge and should have found removal unreasonable.
O’Hara claimed he had misunderstood the investigator’s question about his use of the computer—he thought the question was about distributing and downloading pornography, but not whether he viewed it. This is where a transcript of the interview hurts his case, as the court found O’Hara’s contention “contradicted by the plain language of the question…” (p. 4)
As for his contention that he thought it was okay to look at this stuff on his computer since the sites were not blocked, the court noted that he had received mandatory training on proper use of government computers and therefore knew or should have known this was a no-no. Moreover since O’Hara “was a GS-13 supervisor with over twenty-four years of government service” the court agreed with MSPB that it was “inherently improbable that Mr. O’Hara did not understand that viewing pornography on government computers is prohibited….” (p. 4)
Like the MSPB, the court rejected O’Hara’s contention that removal was too severe. He remains fired.
