I noted in part one of this article that, in my view, Federal employee misconduct has been in the news all too often in recent years. Accordingly, I have, in tribute to The Rocky and Bullwinkle Show (not the movie), subtitled part two of the article The Federal Agency Follies or Employees and Pornography: A Match Made in Public Relations Hell.
I’ll start in 2008, when the Department of the Interior’s inspector general (IG) found that the Minerals Management Service (MMS) was in bed, sometimes not just figuratively speaking, with the oil and gas industry that it theoretically regulated.
If that wasn’t enough of a blow to the agency’s reputation, MMS has been accused of facilitating the British Petroleum oil spill. According to a Reuters article on May 18, a lawsuit filed by the Sierra Club and the Gulf Restoration Network alleges that MMS granted a waiver, setting aside requirements for documentation outlining what companies would do if a “worst-case scenario” spill were to happen. The lawsuit charged that the documentation is required by law before exploratory offshore drilling is approved. The waiver, which was given in 2008 and is valid through 2013, exempts oil companies that drill in the Gulf of Mexico from disclosing blowout scenarios and response plans.
And while Wall Street was burning, torching the investment accounts and retirement hopes of millions of “Main Street” Americans, at least 28 employees of the Securities and Exchange Commission (SEC) and five contractors were fiddling with pornographic websites on their government computers. Ed O’Keefe’s Washington Post column, “Federal Eye – Keeping Tabs on the Government,” recently pointed out that, according to SEC IG H. David Kotz, staffers in the financial watchdog agency accessed pornographic websites and images by using popular search engines and by successfully disabling Internet filters on their computers. The IG reported that several of the alleged miscreants held senior positions, earning up to $222,418 per year!
The O’Keefe columns went on to note that none of the employees had been fired, according to the SEC. Eight of them resigned and six were suspended for periods lasting from one to 14 days, Mr. Kotz said in a letter to U.S. Senator Charles Grassley (R-Iowa). Five were issued formal reprimands, six received informal counseling or warning letters, and three were facing unspecified disciplinary action at the time of the article.
In a related development reported by O’Keefe, Grassley’s office also distributed a whistleblower complaint sent to his office regarding an assistant regional director at the SEC’s Los Angeles office who received nearly 1,800 access denials for pornography during a two-week period. I can’t help but wonder what the SEC official might have accomplished if he had approached his actual job responsibilities with that level of diligence.
A senior attorney at SEC headquarters in Washington admitted he sometimes spent as much as eight hours viewing pornography from his office computer, according to the report. The attorney’s computer ran out of space for the downloaded images, so he started storing them on CDs and DVDs that he kept in his office. And a staff accountant had more than 600 pornographic images stored on her laptop’s hard drive, according to the IG’s report.
While such misconduct cases often make for entertaining reading, they can have serious consequences with regard to agency mission and funding. For example, on May 20, 2010, Interior Secretary Ken Salazar signed a secretarial order reassigning the responsibilities of the Minerals Management Service to a new Bureau of Ocean Energy Management, Bureau of Safety and Environmental Enforcement, and Office of Natural Resources Revenue.
Meanwhile, back at the Securities and Exchange Commission, Mr. O’Keefe quoted U.S. Representative Darrell Issa (R-California), ranking Republican on the House Oversight and Government Reform Committee, as saying it was “nothing short of disturbing that high-ranking officials within the SEC were spending more time looking at pornography than taking action to help stave off the events that brought our nation’s economy to the brink of collapse. This stunning report should make everyone question the wisdom of moving forward with plans to give regulators like the SEC even more widespread authority.”
The behavior exposed (no pun intended) in the SEC IG’s report violates government ethics rules, but misconduct in which Federal employees access pornography while at work is nothing new, to wit:
- A senior executive at the National Science Foundation spent at least 331 days looking at pornography on his government computer and chatting online with nude or partially clad women without being detected. The
problems reportedly were so pervasive they diverted the agency’s watchdog from its main mission.
- National Park Service employee John A. Latschar, who oversaw the Gettysburg National Military Park, used his office computer to search for and view more than 3,400 sexually explicit images over a two-year period. He was later reassigned to an unspecified desk job.
And the Huffington Post published a July 23, 2010, Ann Flaherty piece titled Pentagon Child Porn Scandal: Security Agencies Were Left at Risk,
Investigators Say. According to the article:
“A major federal investigation has found that dozens of military officials
and defense contractors, including some with top-level security clearances,
allegedly bought and downloaded child pornography on private or government computers.
The Pentagon…released investigative reports spanning almost a decade that implicated individuals working with agencies handling some of the nation’s most closely guarded secrets, including the National Security Agency and the National Reconnaissance Office, which operates U.S. spy satellites.
Defense workers who purchased child porn put the Department of Defense, ‘the military and national security at risk by compromising computer systems, military installations and security clearances,’ a 2007 investigative report said.
The suspects also put the Defense Department ‘at risk of blackmail, bribery, and threats,’ one report added…
Several suspects were convicted and sentenced to prison terms of up to about five years and ordered to pay hefty fines – including one of $150,000. But several suspects identified by investigators were never prosecuted.
In a Virginia case, a contractor working for the National Security Agency was indicted on child pornography charges but fled the country and is believed to be hiding in Libya.
According to federal investigators, a computer repair shop had alerted the police after finding ‘thousands of possible child pornography images’ on a hard drive brought in by a man who worked for the Naval Air Warfare Center in China Lake, California. The suspect died of pulmonary disease in 2009 before he could be charged, a report said…”
Having spent many years in the Employee Relations business, I understand that each allegation of misconduct has to be handled on its own merits, including an analysis of the Douglas Factors – as enunciated by the U.S. Merit Systems Protection Board (MSPB) in the landmark 1981 case, Curtis Douglas v. Veterans Administration—and that the Privacy Act imposes major limits on
the information that can be disclosed about the action an agency takes against an employee.
However, many agencies provide for harsher than normal penalties when the offense involves accessing pornographic websites from employees’ government computers. For example, the Table of Penalties for the U.S. Department of the Interior (DOI) recommends a range of penalties from Written Reprimand to 5-Day Suspension for a first offense involving “Misuse of the Internet in violation of the DOI Internet Use Policy…; misuse of electronic mail; visiting websites or downloading material from the Internet during duty time for non-official use; Sending electronic mail for unauthorized purposes.” But there is a special note under “First
Offense” which reads as follows: “Persons who send or download obscene or sexually related materials over the e-mail or visit obscene websites may be subject to harsher penalties for a first offense, including removal.”
Accordingly, my contention is that, even if it was a first offense, an agency could make a compelling case for removal of a management official who was found to be viewing pornography repeatedly from his/her government computer. Examples might include the executive who was surfing porn sites while being paid $222K a year to do his job, the assistant regional director who allegedly made 1,800 attempts to access pornographic websites over a two-week period (an average of 180 attempts per work day, if my math is correct), and the senior attorney who admitted spending up to eight hours a day viewing pornography from his government computer. In the latter case, I guess it could have been worse – the employee could have claimed overtime for the hours spent indulging in his “hobby.”
I’m not making moral judgments here, except in very limited circumstances. For example, Cornell University’s website notes that “Child pornography, material that depicts minors in a sexually explicit way, is illegal.” The site avers that “Knowingly uploading or downloading child pornography is a federal offense,” and that “Under the federal child pornography statute (18 USC section 2252), anyone under the age of 18 is a minor.” Thus, if a Federal employee is charged with downloading child pornography, even from his/her home computer during non-duty time, the chances are excellent that the agency will propose removal of that employee for the off-duty misconduct, and that the usual requirement to establish “nexus,” meaning the connection between the off-duty offense and the employee’s responsibilities at work, will not come into play. And if you work in a regulatory agency, it is probably wise to avoid sleeping with any of the employees from the regulated industry, even
on your own time.
As for viewing pornography that does not involve children and is not otherwise illegal, can it really be so burdensome to simply ask employees to do that from their own personal computers and while they are not on the clock?
When these lurid cases come to light, it is easy to forget that only a tiny fraction of employees engage in misconduct. Based on my long experience, as an employee and as a consultant, I believe the Federal workforce is a tremendous asset to our nation – highly educated, extremely competent, and dedicated to carrying out agency missions and functions, often despite an
the environment in which the agency’s top political appointees are barely around long enough to articulate an agenda, much less to see it implemented.
Unfortunately, every time allegations of misconduct are significant enough to hit the newspapers, the airwaves and/or the Internet, the image of all Federal employees is tarnished, however unfairly. And when members of the public read about what appears to be minimal discipline, or none, for egregious offenses, such as accessing porn sites with government computers or viewing
child pornography from any computer, they have to be rolling their eyes,
shaking their heads and wondering how Federal agencies could be failing to take effective action against these offenders.
I don’t think the importance of public confidence in Federal agencies can be overstated. I’m old enough to remember when much of the American public thought highly of the Federal Government. Growing up in the 60’s, I was thrilled at President John F. Kennedy’s declaration that “I believe that
this nation should commit itself to achieving the goal, before this decade is
out, of landing a man on the Moon and returning him safely to the Earth.” Now there was a mission statement!
And the United States of America did it! On July 20, 1969, Commander Neil
Armstrong became the first man on the moon. In addition to an astonishing burst of technological creativity, the moon landing required the largest commitment of resources ($24 billion) ever made by any nation in peacetime. At its peak, the Apollo program employed 400,000 people and required the support of over 20,000 industrial firms and universities. The monumental effort was led by the National Aeronautical and Space Administration (NASA), which clearly demonstrated that it had “The Right Stuff.” I’m convinced that the private sector could not have played that role.
I have not heard a single candidate in the upcoming national elections argue for government to play a larger role in American lives, and many candidates are waging campaigns focused on the theme of making government
smaller, more efficient, and more responsive to the American taxpayer. No matter which party is in the majority in Congress after the elections, I think that will be the trend in the foreseeable future.
Against that backdrop, if Federal agencies don’t clean up their act – and I would include in my definition performance problems as well as misconduct – they are likely to suffer the consequences in terms of their missions and their budgets, with reductions in the latter likely translating into lost jobs.
That may mean agencies challenging themselves to elevate their game – from agency leadership down through the management and supervisory ranks to the non-supervisory employees, the front-line folks who often have the most influence over the public’s perception of the agency. Think park rangers, for example, or the folks who handle phone calls and visits at the Social Security Administration or the Department of VeteransAffairs.
If you’re looking for examples of agencies that seem to “get it” in terms of providing effective leadership, establishing a results-oriented performance culture, managing talent and fostering job satisfaction, a good place to start would be the 2010 Human Capital Assessment and Accountability Framework (HCAAF) list of top agency rankings. I pay particular attention to agencies which make the list year after year, such as the Nuclear Regulatory Commission, which has now finished first for three years in a row.
Washington Post.com has a feature called the “Management Tip of the Day.” I’ll close with a tip that was published on October 23, 2008: “When you expect the best from your employees, you get the best…To unleash the power of positive expectations, start by expecting the most from yourself. Superior managers have confidence in their ability to select, develop and motivate employees. Their confidence, in turn, influences their beliefs about their people – and their expectations and treatment of them.”