Ethics: Investigations and Discipline Presented
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Ethics: Investigations and Discipline Presented by: Jeff Rosenblum, Assistant General Counsel Labor, Employment and Administration Section Federal Deposit Insurance Corporation Jill Weissman, General Counsel Criminal Division U.S.
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01
Ethics: Investigations and Discipline Presented by:
Jeff Rosenblum, Assistant General Counsel
Labor, Employment and Administration Section
Federal Deposit Insurance Corporation
Jill Weissman, General Counsel
Criminal Division
U.S. Department of Justice<br>
Jeff Rosenblum, Assistant General Counsel
Labor, Employment and Administration Section
Federal Deposit Insurance Corporation
Jill Weissman, General Counsel
Criminal Division
U.S. Department of Justice<br>
02
Overview The Players
The Rules
The Process
Real-Life Situations and Case Law<br>
The Rules
The Process
Real-Life Situations and Case Law<br>
03
The Players<br>
04
The Players Agency Ethics Official
Provides prospective advice
Training
Contact person
Liaison with OGE
Post-violation<br>
Provides prospective advice
Training
Contact person
Liaison with OGE
Post-violation<br>
05
The Players Employee
Management
Agency Counsel or Employee Relations<br>
Management
Agency Counsel or Employee Relations<br>
06
The Players Investigative Entities
Office of Inspector General (OIG)
Office of Special Counsel (OSC)
Office of Professional Responsibility (OPR)<br>
Office of Inspector General (OIG)
Office of Special Counsel (OSC)
Office of Professional Responsibility (OPR)<br>
07
The Rules<br>
08
The Rules Standards of Ethical Conduct for Executive Branch Employees
Criminal Statutes
Hatch Act
Rules of Professional Conduct
Agency-Specific Policies and Other Sources<br>
Criminal Statutes
Hatch Act
Rules of Professional Conduct
Agency-Specific Policies and Other Sources<br>
09
Standards of Conduct Impartiality/Appearance (502)
Misuse of Position/Resources (Subpart G)
Gifts (Subparts B and C)
General Provisions (Subpart A)
Public service is a public trust
Satisfy all just financial obligations
Honest effort in performance of duties
Gambling (5 C.F.R. § 735.201)<br>
Misuse of Position/Resources (Subpart G)
Gifts (Subparts B and C)
General Provisions (Subpart A)
Public service is a public trust
Satisfy all just financial obligations
Honest effort in performance of duties
Gambling (5 C.F.R. § 735.201)<br>
10
Criminal Statutes 18 U.S. Code Conflicts of Interest (§ 208)
Post-Employment (§ 207)
Bribery and Illegal Gratuities (§ 201)
Third-party Representation (§ 203/§ 205)<br>
Post-Employment (§ 207)
Bribery and Illegal Gratuities (§ 201)
Third-party Representation (§ 203/§ 205)<br>
11
Hatch Act Government resources (§ 734.306)
Running for office (§ 734.207 and § 734.304)
Fundraising (§ 734.303)
Social Media
Hatch Act Modernization Act of 2012<br>
Running for office (§ 734.207 and § 734.304)
Fundraising (§ 734.303)
Social Media
Hatch Act Modernization Act of 2012<br>
12
Rules of Professional Conduct Unauthorized practice of law (Model Rule 5.5)
Communication with person represented by counsel (Model Rule 4.2)
Candor to the tribunal (Model Rule 3.3)<br>
Communication with person represented by counsel (Model Rule 4.2)
Candor to the tribunal (Model Rule 3.3)<br>
13
Agency-Specific Policies and Other Sources Procurement Integrity Act
Computer Use Policies
Supplemental Ethics Regulations
Executive Order
EO 12674 Principles of Ethical Conduct
EO 13770 Ethics Commitments by Executive Branch Appointees
Emoluments Clause<br>
Computer Use Policies
Supplemental Ethics Regulations
Executive Order
EO 12674 Principles of Ethical Conduct
EO 13770 Ethics Commitments by Executive Branch Appointees
Emoluments Clause<br>
14
The Process<br>
15
The Process Advice and/or Training
Allegation of Wrongdoing
Referral
Discipline<br>
Allegation of Wrongdoing
Referral
Discipline<br>
16
The Process Investigation
Management
OPR
Rules of Professional Responsibility
OIG
Criminal or Serious Administrative Misconduct
OSC
Hatch Act<br>
Management
OPR
Rules of Professional Responsibility
OIG
Criminal or Serious Administrative Misconduct
OSC
Hatch Act<br>
17
The Process Discipline
Agency-imposed
Merit Systems Protection Board
In 2018, OGE reported that there were 1077 disciplinary actions resulting from ethics violations, including:
623 for misuse of position
348 for violations of any of the ”general provisions” in Subpart A
18 for violations of § 208
24 for impartiality violations
Criminal Prosecution
In 2018, 56 referrals were made for criminal violations, only 3 accepted for prosecution<br>
Agency-imposed
Merit Systems Protection Board
In 2018, OGE reported that there were 1077 disciplinary actions resulting from ethics violations, including:
623 for misuse of position
348 for violations of any of the ”general provisions” in Subpart A
18 for violations of § 208
24 for impartiality violations
Criminal Prosecution
In 2018, 56 referrals were made for criminal violations, only 3 accepted for prosecution<br>
18
Real-Life Situations and Case Law<br>
19
Real-Life Situations and Case Law Gifts
Sher v. Dep’t of Veterans Affairs, 97 M.S.P.R. 232 (Sept. 16, 2004) (demotion and suspension for accepting drug samples for personal use)
Phillips v. Dep’t of Homeland Sec., MSPB DC-0752-10-0686-I-3 (Sept. 3, 2013) (nonprecedential)(removal of employee who accepted legal services, home repair and food gifts)
United States v. Echevarria, (D.N.J. 2017) (ICE Deportation officer sentenced to 84 months imprisonment for offenses including accepting cash payments and sexual favors in violation of 18 U.S.C. § 201)<br>
Sher v. Dep’t of Veterans Affairs, 97 M.S.P.R. 232 (Sept. 16, 2004) (demotion and suspension for accepting drug samples for personal use)
Phillips v. Dep’t of Homeland Sec., MSPB DC-0752-10-0686-I-3 (Sept. 3, 2013) (nonprecedential)(removal of employee who accepted legal services, home repair and food gifts)
United States v. Echevarria, (D.N.J. 2017) (ICE Deportation officer sentenced to 84 months imprisonment for offenses including accepting cash payments and sexual favors in violation of 18 U.S.C. § 201)<br>
20
Real-Life Situations and Case Law Misuse of Official Position and Resources
Voorhis v. Dep’t of Homeland Security, 116 M.S.P.R. 538 (July 5, 2011)(removal of employee for making unauthorized queries of agency databases and disclosing information)
Quillen v. Dep’t of Treasury, 96 M.S.P.R. 154 (May 24, 2004)(removal of employee for misusing government resources in support of his commercial business)
Howard v. Dep’t of the Air Force, 680 Fed. Appx. 961 (Fed. Cir. 2017)(removal of employee for using government computer in connection with outside employment as college instructor)<br>
Voorhis v. Dep’t of Homeland Security, 116 M.S.P.R. 538 (July 5, 2011)(removal of employee for making unauthorized queries of agency databases and disclosing information)
Quillen v. Dep’t of Treasury, 96 M.S.P.R. 154 (May 24, 2004)(removal of employee for misusing government resources in support of his commercial business)
Howard v. Dep’t of the Air Force, 680 Fed. Appx. 961 (Fed. Cir. 2017)(removal of employee for using government computer in connection with outside employment as college instructor)<br>
21
Real-Life Situations and Case Law Misuse of Government Property
August 2019: SES GSA official drank alcohol and had sex with White House staffer on roof of agency’s headquarters
OIG report concludes:
“Per 5 C.F.R. § 2635.704(a) an employee has a duty to not allow the use of Government property for anything other than authorized purposes. Having sex in the central office building is not an authorized purpose for use by the public. Further, there is no law or GSA regulation that allows an employee to have sex in the building.”<br>
August 2019: SES GSA official drank alcohol and had sex with White House staffer on roof of agency’s headquarters
OIG report concludes:
“Per 5 C.F.R. § 2635.704(a) an employee has a duty to not allow the use of Government property for anything other than authorized purposes. Having sex in the central office building is not an authorized purpose for use by the public. Further, there is no law or GSA regulation that allows an employee to have sex in the building.”<br>
22
Real-Life Situations and Case Law Professional Misconduct
Kent v. Dep’t of Justice, MSPB SF-0752-05-0051-I-2 (Dec. 29, 2005)(non-precedential)(penalty mitigated to 3-day suspension for improper release of trial memo, poor judgment and unprofessional behavior)
Feld v. Dep’t of Veterans Affairs, MSPB DC-0752-10-0169-I-1 (Dec. 23, 2010)(non-precedential)(removal upheld for attorney who made more than 40 disclosures of confidential information to outside parties)<br>
Kent v. Dep’t of Justice, MSPB SF-0752-05-0051-I-2 (Dec. 29, 2005)(non-precedential)(penalty mitigated to 3-day suspension for improper release of trial memo, poor judgment and unprofessional behavior)
Feld v. Dep’t of Veterans Affairs, MSPB DC-0752-10-0169-I-1 (Dec. 23, 2010)(non-precedential)(removal upheld for attorney who made more than 40 disclosures of confidential information to outside parties)<br>
23
Real-Life Situations and Case Law Conflicts of Interest
Appearance
Dodge v. Dep’t of Transportation, MSPB AT-0752-19-0549-I-1 (Jan. 22, 2020)(non-precedential)(AJ upholds 30-day suspension for supervisor who allowed employees to perform work for him at his home, creating appearance of a conflict)
Phillips v. Dep’t of Transportation, 113 M.S.P.R. 73 (Jan. 11, 2010)(reassignment appropriate due to appearance of lack of impartiality where employee had friendship with employee of a carrier regulated by the office)
Muller v. Dep’t of Justice, MSPB DC-0752-13-0253-I-1 (May 7, 2013)(non-precedential)(30-day suspension for supervisor who created an appearance of preferential treatment for an FBI-contracted company that employed his brother and a social acquaintance)<br>
Appearance
Dodge v. Dep’t of Transportation, MSPB AT-0752-19-0549-I-1 (Jan. 22, 2020)(non-precedential)(AJ upholds 30-day suspension for supervisor who allowed employees to perform work for him at his home, creating appearance of a conflict)
Phillips v. Dep’t of Transportation, 113 M.S.P.R. 73 (Jan. 11, 2010)(reassignment appropriate due to appearance of lack of impartiality where employee had friendship with employee of a carrier regulated by the office)
Muller v. Dep’t of Justice, MSPB DC-0752-13-0253-I-1 (May 7, 2013)(non-precedential)(30-day suspension for supervisor who created an appearance of preferential treatment for an FBI-contracted company that employed his brother and a social acquaintance)<br>
24
Real-Life Situations and Case Law Conflicts of Interest
Fea v. Dep’t of the Army, DC-0752-08-0398-I-1 (Sept. 15, 2008) (non-precedential)(removal upheld for misconduct including violation of § 208 where employee was directly involved in running a company that bid on a contract with the Army and influenced the contracting process in favor of that company)
United States v. Martha Arps (N.D. Texas 2018)(1 year probation and $2,000 fine for employee who pleaded guilty to violation of § 208 when she awarded contract to company owned by her husband)
United States v. Larry Dunkin (E.D. Ark. 2017)(3 years probation and $10,000 fine for employee who pleaded guilty to violation of § 208 when he awarded contract to company partially owned by his wife)<br>
Fea v. Dep’t of the Army, DC-0752-08-0398-I-1 (Sept. 15, 2008) (non-precedential)(removal upheld for misconduct including violation of § 208 where employee was directly involved in running a company that bid on a contract with the Army and influenced the contracting process in favor of that company)
United States v. Martha Arps (N.D. Texas 2018)(1 year probation and $2,000 fine for employee who pleaded guilty to violation of § 208 when she awarded contract to company owned by her husband)
United States v. Larry Dunkin (E.D. Ark. 2017)(3 years probation and $10,000 fine for employee who pleaded guilty to violation of § 208 when he awarded contract to company partially owned by his wife)<br>
25
Real-Life Situations and Case Law Hatch Act
January 2020: Department of Energy employee violated Hatch Act when she provided a tour of a waste treatment plant to a candidate for U.S. Congress to assist her in her campaign. As part of settlement with OSC, employee resigned and agreed to 3-year debarment from Federal employment.
October 2019: Two Defense Logistics Agency employees violated the Hatch Act and reached settlement with OSC. One employee sent partisan political emails, made partisan posts on Facebook, and solicited political contributions; employee agreed to 90-day suspension. Other employee displayed ‘Vote Republican” in a PowerPoint presentation he gave on official duty; employee agreed to 30-day suspension.
February 2018: USPS employee suspended for 50 days for making at least 116 partisan political postings while on duty, nearly all sharing posts from pro-Sanders, anti-Clinton, or anti-Trump accounts.<br>
January 2020: Department of Energy employee violated Hatch Act when she provided a tour of a waste treatment plant to a candidate for U.S. Congress to assist her in her campaign. As part of settlement with OSC, employee resigned and agreed to 3-year debarment from Federal employment.
October 2019: Two Defense Logistics Agency employees violated the Hatch Act and reached settlement with OSC. One employee sent partisan political emails, made partisan posts on Facebook, and solicited political contributions; employee agreed to 90-day suspension. Other employee displayed ‘Vote Republican” in a PowerPoint presentation he gave on official duty; employee agreed to 30-day suspension.
February 2018: USPS employee suspended for 50 days for making at least 116 partisan political postings while on duty, nearly all sharing posts from pro-Sanders, anti-Clinton, or anti-Trump accounts.<br>
26
Real-Life Situations and Case Law Hatch Act
Office of Special Counsel v. DePaolo, MSPB CB-1216-18-0016-T-1 (Sept. 13, 2019): Immigration Judge violated Hatch Act when she promoted then-candidate Clinton’s immigration reform plan during a deportation hearing. MSPB imposed the maximum $1,000 fine and 30-month debarment from federal service (employee had already retired).
Kellyanne Conway (June 13, 2019): OSC issued second investigative report finding Counselor to the President violated the Hatch Act repeatedly during media appearances in her official capacity and asking White House to impose penalty of removal.<br>
Office of Special Counsel v. DePaolo, MSPB CB-1216-18-0016-T-1 (Sept. 13, 2019): Immigration Judge violated Hatch Act when she promoted then-candidate Clinton’s immigration reform plan during a deportation hearing. MSPB imposed the maximum $1,000 fine and 30-month debarment from federal service (employee had already retired).
Kellyanne Conway (June 13, 2019): OSC issued second investigative report finding Counselor to the President violated the Hatch Act repeatedly during media appearances in her official capacity and asking White House to impose penalty of removal.<br>
27
Real-Life Situations and Case Law Nepotism
Implicates 502 (conflict of interest) and 702 (use of public office for private gain), and the anti-nepotism statutes, 5 U.S.C. §§ 3110(b) and 2302(b)(7).
Dalenberg v. Dep’t of Defense, MSPB CH-0752-12-0597-I-1 (March 21, 2013): Demotion upheld for supervisor’s violations of agency nepotism policy.
Smithson v. Dep’t of Air Force, MSPB DA-0752-17-0296-I-2 (Sept. 19, 2018): 30-day suspension for “fostering nepotism and an apparent conflict of interest” in hiring process.<br>
Implicates 502 (conflict of interest) and 702 (use of public office for private gain), and the anti-nepotism statutes, 5 U.S.C. §§ 3110(b) and 2302(b)(7).
Dalenberg v. Dep’t of Defense, MSPB CH-0752-12-0597-I-1 (March 21, 2013): Demotion upheld for supervisor’s violations of agency nepotism policy.
Smithson v. Dep’t of Air Force, MSPB DA-0752-17-0296-I-2 (Sept. 19, 2018): 30-day suspension for “fostering nepotism and an apparent conflict of interest” in hiring process.<br>
28
Real-Life Situations and Case Law Financial Disclosure Forms
Hodge v. Dep’t of Veterans’ Affairs, MSPB PH-0752-16-0163-I-3 (Aug. 28, 2017): Reduction in pay and grade for, among other charges, failing to disclose income from wife’s employment as a “medium” on Form 450.
Gordon v. Navy, MSPB SF-0752-16-0322-I-1 (Sept. 29, 2017): Demotion for, among other charges, failing to disclose ownership of an outside business on Form 450.<br>
Hodge v. Dep’t of Veterans’ Affairs, MSPB PH-0752-16-0163-I-3 (Aug. 28, 2017): Reduction in pay and grade for, among other charges, failing to disclose income from wife’s employment as a “medium” on Form 450.
Gordon v. Navy, MSPB SF-0752-16-0322-I-1 (Sept. 29, 2017): Demotion for, among other charges, failing to disclose ownership of an outside business on Form 450.<br>
29
QUESTIONS??<br>