When We Say, “Do Not Disclose,” We Mean Do Not Disclose

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By on June 11, 2019 in Court Cases with 0 Comments
Close up of a person's hand signing a form labeled 'non-disclosure agreement'

James Ryan was a police officer with the Department of Defense (DoD) Pentagon Force Protection Agency (PFPA) for eight years when he stepped into it. (Ryan v Department of Defense (CAFC No. 2018-1524 (nonprecedential) 2/13/19))

In the course of pursuing a complaint with the Equal Employment Opportunity Commission (EEOC), Ryan was given access to a Report of Investigation (ROI) from the Commission that had a copy of the personnel file of a fellow police officer (referred to by the court’s decision as “SV.”). Before receiving this ROI, Ryan signed a “Notice of Rights and Responsibilities” that read in pertinent part:

v. The ROI contains personal data and is to be treated in a confidential manner. You may not show your copy of the ROI, in whole or in part, to a third party except your designated representative. Violations of privacy safeguards may result in disciplinary action, a fine of up to $5,000, or both (Public Law 93-576).

Ryan flaunted the warning, sending a copy of SV’s file to eight members of PFPA and the PFPA Office of Professional Responsibility, attached to a memo asserting that SV had received a bonus “in exchange for allowing [SV’s duty post] to become a location for unauthorized congregating, food delivery, and eating to take place.” (p. 3) Not stopping there, and without providing any evidence beyond his mere speculations, Ryan denigrated SV’s performance, his personnel file, and incident reports filed by SV in the PFPA’s Record Management System and accessed by Ryan.

The PFPA proposed to remove Ryan based on (1) lack of candor in making unsubstantiated allegations about co-workers, (2) conduct unbecoming by distributing SV’s personnel file in violation of law and policy, and (3) misuse of government computer for accessing SV’s police reports without authority to do so. The deciding official ordered up Ryan’s removal. On appeal the Merit Systems Protection Board, the administrative judge sustained Ryan’s removal. (p. 4)

The appeals court considered Ryan’s argument that the lack of candor charge is not supported by the evidence because he used his intuition as a police officer to deduce that there was a quid pro quo involved with SV’s bonus and he did not intend to deceive any of the recipients of his memo. As the court notes, “Ryan represented the alleged exchange as fact, and the AJ reasonably found that by making an allegation he knew was unsupported, Ryan intended to deceive the recipients…Thus, substantial evidence supports the AJ’s finding that Ryan lacked candor.” (P. 6)

The court also found Ryan’s arguments relating to the second charge “unavailing,” noting he signed the ROI notice warning him of the consequences if he improperly disclosed SV’s personnel file. “Ryan’s cavalier attitude toward the Privacy Act and EEOC rules rendered him a liability to the PFPA, where officers must abide by similar laws to perform their jobs. Furthermore, the record is clear that Ryan was aware that he was barred from sharing SV’s personnel file.” (p. 7)

As to the third charge sustained by the MSPB—unauthorized use of the government computer—the court did not buy Ryan’s argument that because he had general access to the RMS system, and the government did not prove he was prohibited from using it to “satisfy his curiosity,” then this charge should fall. (p. 8) The court pointed to the deciding official’s testimony that Ryan’s use of the RMS system to research SV was unauthorized, as it had nothing to do with his official duties. Ryan himself admitted that when he logged into the RMS system he agreed that his particular use was authorized before it would permit his access. 

After considering several procedural and affirmative defenses, the court sustained the MSPB on each of those and affirmed the decision of the Board. In short, Mr. Ryan’s removal stands.

Ryan v. DoD 2018-1524

© 2019 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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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.

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