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Outside Law Practice on Agency Time Gets EPA Attorney Fired

A former EPA attorney challenged his removal for misuse of agency time and resources to carry on an outside law practice by arguing that the agency was inconsistent in levying penalties because it did not fire employees who participated in the annual NCAA basketball tournament office pool. The argument fell on unsympathetic ears.

An attorney with the Environmental Protection Agency (EPA) tried unsuccessfully to defend against his removal by the agency for charges stemming from his private practice of law using government resources. (Jones v. Environmental Protection Agency (CAFC No. 2012-3167 (nonprecedential), 4/3/13))

Mr. Jones was a 17-year attorney with Region 4 of EPA, a GS-14 at the time of his removal. Operating under agency administrative approval to engage in outside employment, Jones represented a co-worker (Mr. Akindele) in a family law matter. When Akindele raised a fee dispute against Jones, another EPA attorney, Richard Glaze, represented attorney Jones. At some point Akindele believed that Glaze had improperly accessed Akindele’s confidential financial disclosure form and provided Jones information from the form. When this mess hit the fan with Akindele’s complaint to EPA, the agency Inspector General’s office looked at Jones’ EPA computer and emails. Lo and behold, the Office of Inspector General (OIG) found information involving Jones’ outside law practice including emails sent and received while Jones was on agency time. They also found “a multitude of inappropriate e-mail messages, some of which attached sexually explicit photographs.” (Opinion p. 3)

During the course of the OIG investigation, Jones submitted a sworn statement denying that he engaged in the outside practice of law at the agency workplace and denying that he had seen Akindele’s confidential financial disclosure form. (p. 3)

EPA removed attorney Jones based on five charges that included lack of candor or misrepresentation of facts, misuse of government property, time and title, and improper access to confidential information. The union representing Jones took his appeal to arbitration; however the arbitrator sustained the charges and Jones’ removal.  Jones took his case to the appeals court where he fared no better.

The court has held that there is substantial evidence supporting the arbitrator’s findings. For example, Jones said in his sworn OIG statement, “I do not practice family law at my workplace;” however the record is replete with numerous emails proving that he did in fact practice family law during EPA work hours. (p. 4)

The court also pointed to the OIG investigation that found “a nearly immeasurable volume of materials relating to [Mr. Jones’s] outside real estate practice and law business.” (p. 4)

As to Akindele’s financial disclosure form, Jones stated he had not seen it yet the evidence convinced the arbitrator that attorney Glaze “had provided Mr. Jones with confidential information from that document.” (pp. 4-5)

These are just a few of the contradictions between Jones’ statements and the evidence cited by the court in sustaining EPA’s removal of attorney Jones.

Jones also challenged the penalty, arguing that EPA employees and supervisors who misused government time and equipment in order to participate in the annual NCAA basketball pool had not been removed and therefore the agency was not consistent in its penalty decisions. The court had no problem with the arbitrator’s conclusion that an annual office basketball pool bore no relationship to engaging in outside business on agency time or sending “inappropriate” emails. (p. 11)

In short, attorney Jones stays fired.

Jones vs. EPA

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.