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Beware of the Fine Print

By Susan Smith

Friday, February 10, 2006

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.
A recent Federal Circuit case points to the need to always read the fine print before signing those government forms. (Soler v. Department of the Treasury, U.S.C.A.F.C. No. 05-3331 (non-precedential), 2/9/06)

More than a decade ago, Mr. Soler was terminated from his employment as a revenue agent with the IRS. He appealed to the MSPB where a settlement agreement was hammered out and placed in the record. The termination was rescinded and changed to a voluntary resignation.

Soler agreed not to apply for a job in the future with the IRS, the Department of Treasury, or the corresponding agencies with New York State. In return, the agency agreed not to release information on the termination history unless he applied for one of the restricted positions. Instead, the agency would report to prospective employers that he resigned voluntarily for personal reasons. (The court quotes extensively from the settlement agreement on pp. 2-3 of its Opinion.)

Forward 10 years to find Mr. Soler applying for a customs inspector position with the Department of Homeland Security. He filled out and signed a SF 86 for the required background check. Unfortunately for him, the form included this Release Authorization:

“I Authorize custodians of such records and other sources of information pertaining to me to release such information upon request of the investigator, special agent, or other duly accredited representative of any Federal agency authorized above regardless of any previous agreement to the contrary.” (Emphasis added in the Opinion, p. 3)

You guessed it. Treasury furnished information on the termination history to the background investigator, and Mr. Soler was found unsuitable for employment in the customs inspector position. He went to the MSPB seeking to enforce the earlier settlement agreement, claiming that Treasury had violated it. The Board found that Mr. Soler had released the agency from the non-disclosure provisions of the settlement agreement when he signed the above Release Authorization. (Richard Soler v. Dep’t of the Treasury, No. NY-0752-93-0562-C-3, M.S.P.B. July 28, 2005) (Opinion p. 1)

The appeals court now affirms the Board’s decision, pointing out that Soler had “waived his contractual right under the settlement agreement to hold the agency to its prior undertaking not to disclose information concerning his removal.” (p. 5)

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Readers' Comments

  • The whole concept of a Federal agency entering into an agreement not to provide relevant information to another Federal agency is bizzare....
    Posted: February 22, 2006 12:41 PM
  • Seems a little sneaky to me...but as my good friend Barretta used to say...DON'T DO THE CRIME IF YOU CAN"T DO THE TIME!!...
    Posted: February 16, 2006 9:41 AM
  • Yes, it was. And if you have to use the automated version, it's even worse....
    Posted: February 10, 2006 12:57 PM

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