Monday, May 11, 2015

The Department of Homeland Security, "Sexually Explicit Images" and the "Government Computer"

But, as the result of events outlined below, the Merit Systems Protection Board upheld his “removal for lack of candor and misuse of government property”.  O’Hara v. Department of Homeland Security, supra.  In the opinion this post examines, the Court of Appeals for the Federal Circuit is reviewing the propriety of that decision. 
As Wikipedia explains, the
Merit Systems Protection Board (MSPB) is an independent quasi-judicial agency established in 1979 to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management.

When an employee of most Executive Branch agencies is separated from his or her position, or suspended for more than 14 work days, the employee can request that an employee of MSPB conduct a hearing into the matter by submitting an appeal, generally within 30 days. In that hearing, the agency will have to prove that the action was warranted and the employee will have the opportunity to present evidence that it was not. A decision of MSPB is binding unless set aside on appeal to federal court. 
The Court of Appeals begins its opinion by explaining that O’Hara was
employed as a Supervisory Detention and Deportation Officer in the Enforcement and Removal Operations Directorate of the Department of Homeland Security's Immigration and Customs Enforcement Agency. On February 28, 2012, an employee reported that O'Hara was viewing sexually explicit images on his government computer.

The Department began an investigation into the matter. It conducted a forensic analysis of the government computers used by O'Hara, which revealed that over a four-month period he had accessed over 500 sexually explicit images, websites, and links, and conducted numerous searches for sexually explicit materials.

During the investigation, O'Hara was interviewed, under oath, and asked several questions about the allegations that he viewed pornographic materials. He, at first, denied that he deliberately viewed such images, but then, after being shown the images discovered during the forensic analysis, admitted that he had accessed them.
O’Hara v. Department of Homeland Security, supra.
On April 12, 2013, the Department of Homeland Security
notified O'Hara of its intention to remove him based on two charges: (1) his lack of candor during his interview; and (2) his unauthorized use of government computers to view sexually explicit images. The lack of candor charge contained two specifications. One asserted that O'Hara was initially less than truthful when he denied viewing pornography on his government computer, because he later admitted having viewed them when confronted with the sexually explicit images.

The second asserted that O'Hara was less than truthful when he stated that he did not think it was a violation to access unblocked sexually explicit images on his government computers, because he had received annual training on what use is authorized on government equipment that explained that such use is prohibited. The unauthorized-use-of-government-computers charge contained seventeen specifications, based on different dates that O'Hara downloaded or viewed sexually explicit materials or conducted sexually explicit searches.
O’Hara v. Department of Homeland Security, supra.
The opinion goes on to explain that O’Hara
submitted a sworn oral reply to the proposed removal. Thereafter, on August 23, 2013, the Department notified O'Hara that it continued to believe the evidence supported the counts against him and dismissed him from his position. O'Hara appealed to the [Merit Systems Protection] Board, contesting guilt on all of the charges and the reasonableness of the removal penalty. 
O’Hara v. Department of Homeland Security, supra.
The Court of Appeals began its analysis of the issues O’Hara raised on appeal by explaining that
[o]ur review of the Board's decision is limited. Under 5 U.S. Code § 7703(c), we must affirm any action, finding, or conclusion that is not: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.
O’Hara v. Department of Homeland Security, supra.
It wen on to note that in his appeal, O’Hara asserted that “the [Merit Systems Protection] Board erred in affirming the lack of candor charge and removal penalty.” O’Hara v. Department of Homeland Security, supra.
The Court of Appeals then began its analysis of O’Hara’s appeal by explaining that the
Board's affirmance of the lack of candor charge was supported by substantial evidence, because the record contains `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Wrocklage v. Dep't of Homeland Security, 769 F.3d 1363 (U.S. Court of Appeals for the Federal Circuit 2014).

As the Board explained, O'Hara's assertion that his lack of candor was due to a misunderstanding is unpersuasive. In defense of his false statement that he had not used government computers to view pornography, O'Hara asserted that he thought Mr. Lam was asking him about distribution and downloading, not viewing.

But this is contradicted by the plain language of the question, which did not ask O'Hara about whether he downloaded or distributed pornographic images, but whether he `viewed’ them. . . . It is also contradicted by his own answers about deleting email messages containing `off-color’ material, J. . . which show that he understood Mr. Lam's questions were not merely about downloading and distributing.
O’Hara v. Department of Homeland Security, supra. 
You can, if you are interested, find the Merit Systems Protection Board’s opinion in this case here. 
The Court of Appeals went on to point out that
[m]oreover, substantial evidence supports the Board's finding that O'Hara lacked candor when he claimed that he did not think that viewing sexually explicit images on government computers is prohibited because the sites where they came from were not automatically blocked. O'Hara admitted he received mandatory training on the proper use of government computers, and thus O'Hara knew or should have known that accessing such materials was prohibited.

Additionally, the Board correctly concluded that it is inherently improbable that O'Hara did not understand that viewing pornography on government computers is prohibited, since he was a GS–13 supervisor with over twenty-four years of government service. Accordingly, substantial evidence supports the Board's affirmance of the lack of candor charge.
O’Hara v. Department of Homeland Security, supra. 
It also found that the Merit Systems Protection Board’s
affirmance of the removal penalty was not arbitrary or capricious. O'Hara argues that the Board erred because it rejected some of his submitted comparators involving last-chance settlement agreements, and because the removal penalty outweighed the disciplinary infraction under the factors set forth by Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981). Both of these arguments are unpersuasive.

As we have explained, `[d]isparate treatment is not shown by comparing a penalty imposed by an agency with one emanating from a settlement agreement.’ Dick v. U.S. Postal Serv., 975 F.2d 869 (U.S. Court of Appeals for the Federal Circuit 1992) (Table).

Thus, the Board did not act arbitrarily or capriciously in refusing to use last-chance settlement agreements as comparators.
O’Hara v. Department of Homeland Security, supra. 
The Court of Appeals went on to explain that it did
not find that the Board acted arbitrarily or capriciously in affirming the Department's removal penalty. Although a removal penalty is severe, it is within the Board's discretion so long as the decision `reflects a reasoned concern for the factors appropriate to evaluating a penalty.’ Kumferman v. Dep't of Navy, 785 F.2d 286 (U.S. Court of Appeals for the Federal Circuit 1986). . . . That is precisely the situation here.

When analyzing the Douglas v. Veterans Admin., supra factors, the Department identified O'Hara's mitigating factors, including his 24 years of government experience and good job performance, his emotional issues resulting from his divorce, and the fact that the offense was not high profile.

However, the Department also identified several aggravating factors, such as O'Hara's prior and fairly recent discipline for misuse of a government-issued travel credit card, his position as a law enforcement officer and supervisory official, the deciding official's loss of confidence in O'Hara's ability to perform his job duties, the fact that O'Hara knew his conduct was prohibited, the deciding official's assessment that he was not a good rehabilitation candidate, and the fact that other sanctions were insufficient to deter his or other employees' future misconduct.

The Department carefully weighed these considerations and determined that removal was appropriate. The Board's review of this analysis shows a reasoned concern for applying the Douglas v. Veterans Admin. factors appropriately, and accordingly we decline to disturb its affirmance of the removal penalty.
O’Hara v. Department of Homeland Security, supra. 
The Court of Appeals therefore held that “because the Board's decision was supported by substantial evidence and was not arbitrary or capricious, we affirm.” O’Hara v. Department of Homeland Security, supra. 

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