Removal of 13-Year Employee Upheld by Court

The Internal Revenue takes accessing taxpayer databases without an official business purpose seriously. The first offense can–and does–lead to removal. This 13-year federal employee was fired and the court upholds the removal.

Yet another employee of the Internal Revenue Service has learned the hard way that the agency has no tolerance for its employees accessing taxpayer databases without an official business purpose. (McLeod v. Department of the Treasury, C.A.F.C. No. 2008-3335 (nonprecedential), 6/17/09)
In this latest case, a Tax Examining Technician with a good 13-year employment record nevertheless was fired for accessing the agency’s taxpayer database without official reason or authorization on 15 separate occasions over several years. (Opinion p. 2)
The database is IDRS, the Integrated Data Retrieval System. IRS refers to the offense as UNAX, unauthorized access and inspection of taxpayer records. The agency demonstrated that McLeod went to the annual agency training sessions that outline the requirements and the seriousness of the offense.
The court’s characterization that the offense is “treated very seriously by the IRS…” is an understatement since the agency’s table of penalties calls for removal on the first offense unless the individual taxpayer has given consent. (p. 2)
After weighing the “Douglas Factors” applicable to determining the appropriate penalty, the IRS deciding official concluded that removal was appropriate even considering McLeod’s long unblemished record of employment. McLeod appealed to the Merit Systems Protection Board with no success. He then took his appeal to federal court where he has now fared no better.
The court agreed with the MSPB that the deciding official had properly considered the relevant Douglas factors, stating in its opinion: “The decision to remove someone who is entrusted with access to confidential information based on a misuse of that access does not clearly exceed the limits of reasonableness.” (p. 4)
The court also did not buy McLeod’s argument that he was treated unfairly because a co-worker charged with a UNAX was only suspended for 30 days.
Pointing out that such a defense required McLeod to bear the burden of proving that the co-worker was in the same work unit, had the same supervisors and committed essentially the same misconduct, the court concluded he had not met this burden. In the co-worker’s case two taxpayers had consented to his access to their records, but a joint filer with one of those taxpayers had not, which is how he got in trouble.
The MSPB concluded this fact situation was different than McLeod’s since McLeod apparently had neither consent nor the authority to access any of the 15 records, whereas in the other case the co-worker believed he had the required consent because one of the joint taxpayers had provided it.
The court agreed: “The primary problem with unauthorized access is that taxpayers cannot feel secure that their records will not be misused by tax officials. When a taxpayer has consented to access, this concern is mitigated, and the problem instead is that the tax official is misusing access to assist friends or family. It was not arbitrary or capricious to use taxpayer consent as a distinguishing fact.” (pp. 5-6)

About the Author

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.