Sleeping with Trouble: Extramarital Affairs and Federal Employees

What happens in a federal employee’s bedroom can haunt him or her in the office.

The scandal surrounding CIA Director David Petraeus and his biographer, Paula Broadwell, is highlighting the threats extramarital affairs can pose to federal employees. Some federal employees who engage in extramarital affairs do not believe their personal relationships should have any bearing on their employment, even if that relationship is of a sexual nature with someone other than his or her spouse.  However, what happens in the bedroom can haunt them in the office.

Here are a few ways a federal employee’s consensual extramarital affair can ruin his or her career.

Disciplinary Actions for Misconduct

An agency may discipline an employee who engaged in consensual adulterous behavior for conduct unbecoming of a federal employee. Suspension is the typical punishment for such misconduct, but removal may be justifiable under certain circumstances.

The MSPB case of Miller v. Dep’t of the Army (2005) involved a Department of the Army inspector general investigative specialist who initially told the police she was raped by a co-worker, but the police found this claim to be unfounded. An agency investigation found the investigative specialist, who was married, had a consensual extramarital affair with the co-worker. It proposed her removal for conduct unbecoming of a federal employee (adultery) and making false and malicious statements about a co-worker.

The investigative specialist appealed her removal to the MSPB. An administrative judge sustained the conduct unbecoming charge, noting that her conduct met the definition of “unbecoming” by being “unattractive, unsuitable, or detracting from the employee’s character.” The judge did not sustain the false statement charge and reduced her punishment from removal to a 60-day suspension without pay. It is important to note that in having the extramarital affair, the employee violated Georgia state law which classifies adultery a misdemeanor. According to the New York Times, 23 states criminalize adulterous conduct, and while it is a misdemeanor in most of those states, it is a felony in others such as Massachusetts, Michigan, and Wisconsin.

Employees can also be removed on a charge of improper conduct if their extramarital affair interferes with the agency’s mission. It does not matter if the extramarital affair or sexual misconduct occurred only while the employee was off duty or if the person he or she was sleeping with was not a co-worker. That’s the conclusion the U.S. Court of Appeals for the Federal Circuit reached in Brown v. Dep’t of the Navy (2000). This case involved the program manager of a Morale, Welfare, and Recreation Department (MWR) at a Marine Corps base.

This manager slept with a Marine major’s wife. The manager appealed his removal to the MSPB, but an administrative judge affirmed the penalty, finding his conduct ran contrary to the MWR’s mission and it eroded the agency’s trust and confidence in his ability to perform his duties. The Board denied his petition for review and he appealed to the Federal Circuit. The court affirmed the Board’s decision, but it noted that “this case is a difficult one because the misconduct was private in nature and did not affect [the employee’s] official responsibilities in any direct and obvious way.” While such conduct generally may not merit removal, his job was unlike many other federal civil service positions given the MWR’s mission and its responsibilities and services to military families and commanders.

Security Clearance

Even if federal employees with a security clearance are able to keep an extramarital affair from a spouse, they will have a harder time keeping that secret from the government, especially when their clearance comes up for review. Adultery is the kiss of death for federal employees with security clearances; it is very hard to prove to Defense Office of Hearings and Appeals (DOHA) administrative judge that an employee who engaged in adulterous conduct does not pose a threat to national security given the individuals’ susceptibility to coercion related to the affair.

If Office of Personnel Management or Department of Defense investigators uncover the affair, employees will likely soon after receive a Letter of Intent/Statement of Reasons (LOI/SOR). The LOI/SOR may cite Guideline D (Sexual Behavior) and/or Guideline E (Personal Conduct) of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information as reasons why their clearance is being suspended, denied or revoked. Guideline D cites as a disqualifying condition, “sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress.” Guideline E similarly cites as a disqualifying condition, “personal conduct or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress.” If the affair involves a foreign national, Guideline B (Foreign Influence) may also be cited.

Federal employees facing disciplinary actions for engaging in an extramarital affair or who are at risk of losing their security clearance should immediately contact a federal employment law attorney.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.