SECRET SERVICE’S SILLY SEX STORY
Brace yourself, America—and especially federal employees. The culture war is about to flare to near-nuclear levels over the recent Secret Service Agents’ interaction with a salacious slice of Columbia’s service sector. First there will be accusations that federal employees’ values are not those of normal Americans, and if the agents are not terminated shortly there will be a wave of stories about how hard it is to fire federal employees. A few TV talking heads, perhaps even the misogynistic one with a string of three divorces so far and a predilection for recreational oxycontin, will call us feds godless. So, what could be a better time than to put the Secret Service silliness in its proper legal context.
MSPB has handled several cases of employees being fired for paying prostitutes for sex. A recent one (Woebcke, MSPB 2010) involved another Homeland Security employee, a federal air marshal. His agency removed him not only for pleading nolo contendere to a soliciting prostitution charge, but also because as a result of the arrest he missed his assigned duty flight.
On appeal, the Board reversed the removal and replaced it with a 14-day suspension on the theory that it exceeded the maximum limits of reasonableness, especially in light of the employee’s history of depression. But the Board was also impressed with the similar Homeland Security cases where the purchasing of prostitutes was punished with far less than removal. One two-time offending CBP Officer was let off with a 45-day suspension for sex with prostitutes while on assignment in Thailand, a second got a 30-day suspension for a single offense in Thailand, another got a 10-day suspension for loitering for prostitution stateside, and a fourth, a Border Patrol supervisor, got five days for soliciting sex from an undercover police officer.
The Woebcke case alone should be sufficient precedent for the Secret Service agents to avoid removal if this incident is only about paying for sex, but the question still lingers about whether they should be disciplined at all for partaking of legal prostitution while off-duty. Generally, in that situation the agency must prove four things:
1. The facts alleged in the charge are true by a preponderance of the evidence;
2. That there is a nexus between what the employees did while off-duty and the agency mission or job;
3. That its proposed disciplinary action will promote the efficiency of the service; and
4. That the chosen penalty is reasonable.
Nexus, the second element, requires that the agency show the employee’s conduct(1) affected the employee’s or his co-workers job performance, (2) affected the employer’s trust and confidence in the employee’s job performance, or (3) interfered with or adversely affected the agency’s mission.
There are cases where the termination of federal employees for involvement with prostitutes have been upheld. In fact, the Board upheld one just last week, although the Board pronounced it to be a non-precedential decision. (See Pianim, 2012, who was also accused of a lack of candor) But we have yet to see one of those decisions that was based on evidence rather than conjecture, opinion, and cultural/religious bias. For example, in one Homeland Security case the MSPB judge upheld removal of an air marshal in Germany for visiting a legal brothel there. The judge wrote—
. . . the appellant’s unbecoming conduct, if it had been become known to the German authorities, potentially could have caused them to abrogate the agreement. . . . Thus, at a minimum, the appellant’s unbecoming conduct potentially jeopardized the efficiency of the service. Based on all of the foregoing, I find that the agency established that the appellant’s proven unbecoming conduct of a FAM, not only could have affected the appellant’s and his co-workers job performance in carrying out their mission, it was also inconsistent with the agency’s mission. I therefore find that the agency proved the requisite nexus.
Really? Why would the conduct be considered “unbecoming” in a culture and society where the legislature has said it is legal? Moreover, is it not a classic example of speculative evidence to hold that a nexus or connection exists because “if” something happens something else “potentially” could happen? MSPB has a long record of rejecting speculative evidence. Unfortunately, in all but one of 10 cases, it labeled the employee’s evidence speculative. Agencies rarely are penalized for relying on speculation. (See Sebald for the sole exception, 32 MSPR 164–in removing an employee for medical incapacity, the agency cannot rely solely on the existence of a disabling condition or on speculation that it will affect the employee’s ability to perform his job). MSPB’s approach to justice is closer to that of regimes that permit appeals only after a closed trial and execution of the accused have been held. If anything is unbecoming, it is that kind of justice.
The Board judge went on to repeatedly betray a cultural, if not religious, bias . First, the judge wrote–
Also, he holds a law enforcement type of position and therefore can be held to a higher standard of conduct than an average employee.
However, the judge never identified the conduct rule the employee broke since prostitution was legal and acceptable in that country. Then he wrote–
Even if one assumes that the agency did not have a specific policy or regulation prohibiting the appellant’s conduct, common sense would dictate that a team leader of federal law enforcement officers would refrain from engaging in the conduct at issue at a brothel in the early morning before a mission.
In other words, the judge condoned firing the employee for not using the judge’s or management’s version of common sense. (See Ruben Camacho v. DHS, NY-0752-09-0053-I-1, March 24, 2009) Ironically, Camacho’s visit to the brothel only became known because he believed his money had been stolen. As a law enforcement officer, would it not be common sense to pursue the theft?
From where we sit at the helm of FEDSMILL.com, the Secret Service Agents do not deserve any penalty—assuming the facts are as the press is currently reporting them. They engaged in what was perfectly legal behavior under local laws—as well as in a few American locations, such as near Las Vegas. In fact, given that the agency hires agents, in part, for their willingness to be physically assertive and even risk their lives for others, it borders on the absurd to think that the legal pursuit of sexual contact is unexpected or unbecoming conduct.
America has been through these transitions cultural/religious several times. Alcohol was legal before it became illegal and then legal again. Blue laws barred businesses from operating on Sundays before it was legal. It was even perfectly acceptable for teachers to hit students before it was barred by zero tolerance state statutes.
As for sexual activity, didn’t we just legalize sex between consenting adults as part of the 2003 Supreme Court decision Lawrence v. Texas? Texas prohibited sexual intimacy between same-sex couples while allowing it between different sex couples; the Supreme Court ruled that violated due process with these words.
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.
Do federal employees now have to argue that it would have been fine for the Secret Service Agents to have had extra-marital sex in Columbia for free but not to pay for it? Is management prepared to show how paying for it made all the difference in the world–and removed it from being a common “hook-up”?
If the agents are disciplined, we hope that unions and other employee advocate groups join in any defense they must mount. They should challenge any suggestion that engaging in legal sexual activity, whether money is directly, indirectly or not at all involved, is conduct unbecoming or even that it has an impact on the effectiveness of the government’s operation. While extra-marital sexual activity is a sin in some religions, religious values should not override the rule of law in the country where the activity took place. The U. S. Constitution would appeal to bar our government from attempting to enforce a religious tenet.
We also urge them to take on the oft-alleged argument that having engaged in prostitution the agents are now subject to blackmail. It was used regularly over the last 50 years to fire homosexuals. What strikes us is that if there is one person in the world who knows things about another that could be used to severely embarrass and possibly blackmail that person it is one’s spouse. Wives often know things about a husband that he would do almost anything not to have revealed to friends and co-workers. So, should agents be fired for marrying and opening themselves to that exposure?
We also believe the MSPB and whatever courts get involved should confront the cost to government of any termination. The Secret Service undoubtedly spent hundreds of thousands of dollars to train these agents. The public should not be burdened with having to endure that cost again based on these facts. No manager in his or her right mind would through away a computer or its software because of a one-time problem, e.g., it lost a file. Doing so would we a clear waste of a very useable asset and likely make the manager liable for discipline. So, why toss away an employee for a similar isolated, one-time blip? Would it help if we called employees “Humanware” so that the comparison to hardware and software replacement is more obvious?