Sex, Lies and Videotape
By Ralph Smith
Wednesday, August 23, 2006
If that were ever true, a new case from the MSPB shows that some federal employees can be as creative as anyone in creating problems--even within an organization that has carefully cultivated a reputation for high integrity and actions.
The first clue is the name of the case: John Doe v. Department of Justice, CH-0752-04-0620-I-2, August 14, 2006. It isn't often that the MSPB gives a "john doe" name to a case. The anonymity of the case has an aura of mystery and suspense. It makes the case sound as though a person was testifying against an organized crime figure and doesn't want to be identified.
In fact, the agency even asked the Board to have the decision sealed. The MSPB considered the request but determined that there was nothing in the case decision that revealed the identity of the people involved. However, the administrative judge (AJ) captioned the case as a "John Doe" because of the sensitive nature of the case facts.
The guts of the case: a Special Agent with the Federal Bureau of Investigation was fired for “Unprofessional Conduct – Videotaping Sexual Encounters With Women Without Their Consent.”
The charge was based on evidence that the appellant videotaped his sexual activities with two FBI employees, as well as with another woman who was not an agency employee. Although one of the FBI employees had consented to videotaping her sexual activities with the appellant on other occasions, the appellant had videotaped her on one occasion when she had not consented and was not aware of the taping. The activities with the other two women, each of whom was videotaped once, had not consented to and were not aware of the events being taped.
The appellant argued that his actions did not justify his removal. The AJ agreed. After holding a hearing, the AJ issued an initial decision finding that the action could not be sustained because the agency did not establish a connection between the appellant’s conduct and the efficiency of the agency’s operations or the performance of the appellant’s duties.
The MSPB quickly dismissed that notion. It found that the agency had established a relationship between the conduct and the agency's efficiency. The Board noted that an agency may establish this relationship by showing that the employee’s conduct:
(1) affected the employee’s or his coworkers’ job performance,
(2) affected management’s trust and confidence in the employee’s job performance, or
(3) interfered with or adversely affected the agency’s mission.
(2) affected management’s trust and confidence in the employee’s job performance, or
(3) interfered with or adversely affected the agency’s mission.
As far as the Board was concerned, the FBI met this requirement.
He was "dishonest" concluded the Board and his actions did not meet the agency's conduct standards expected of one of its agents. The appellant’s failure to live up to these standards caused the agency to lose confidence in the appellant’s honesty and integrity, to question his judgment, and to have “much less confidence in his abilities to perform … any job.”
In addition, the rumors in the office about the tapes were upsetting to the women who were involved and interfered with their ability to do their work.
The final result: The Board overturned the original decision and sent the case back for "further adjudication consistent with this Opinion and Order."
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