ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.
Top-level federal officials, including members of the Senior Executive Service, must file a financial disclosure form (SF-278) by May 15 each year, disclosing all the gifts they received in the previous year. The reporting rule applies when all the gifts from a single source are worth at least $250 and each gift is worth at least $100.
Officials can request a waiver from the Office of Government Ethics when the relationship between the official and the gift giver, and the motivation behind the gift, is personal. For example, if an official receives a $285 crystal decanter as a wedding gift from a lifelong friend, the official can ask the OGE for a waiver from listing the gift on their SF-278 form.
On Sept. 14, the OGE issued a change to the waiver rule that takes effect Oct. 14. The rule used to say that a waiver can only be granted if the relationship between the official and the friend is "entirely" personal. OGE is taking the word "entirely" out because "in some situations, a filer has a predominantly social relationship with a grantor of a gift, but has met the grantor through a business relationship, often in connection with a spouse's business activities," OGE explains.
Lesson: Some things are still personal.
Office of Government Ethics final rule, Federal Register (Vol. 64, No. 177), Sept. 14, 1999.
Whistleblower Wannabe
In January 1997, the Energy Department laid off Cynthia Veneziano, a GS-14 engineer. Had Veneziano received a "highly successful" performance rating in 1995 rather than the lower "fully successful" rating, she would have avoided a layoff under the government's reduction-in-force rules.
Veneziano appealed the layoff, contending that her supervisor gave her a lower performance rating in 1995 in retaliation for whistleblowing activity. Specifically, Veneziano had refused to follow her supervisor's order to send life cycle asset management data to the DOE inspector general that Veneziano believed was flawed. Veneziano contended that sending the IG flawed data would violate the law.
But Veneziano said her supervisor instructed her to "send the data now and footnote that I'd send more data later." Furthermore, Veneziano did not show what specific law would have been broken by sending flawed data. The U.S. Appeals Court for the Federal Circuit rejected Veneziano's appeal.
Lesson: It's not whistleblowing if there's no wrongdoing.
Veneziano v. Energy Department (98-3070), U.S. Court of Appeals for the Federal Circuit, Sept. 1, 1999.
Memo of Misunderstanding
In 1992 John Stenger filed an Equal Employment Opportunity Commission complaint against his employer, the U.S. Army. The Army agreed to settle the matter by paying Stenger $10,500 and giving him priority consideration for any GS-13 position for which he was qualified. But federal downsizing made it difficult to find a position.
After a year, the Army decided to create a job for Stenger in Corpus Christi, Texas. Stenger was made an environmental protection specialist at the GS-12 level. His job was created under a memo of understanding, which explicitly stated that the position would be abolished after two years and Stenger would leave the Army. It also stated that the Army would not pay for any relocation expenses should Stenger find another job elsewhere. It was Stenger who requested the Corpus Christi climate because, he said, it was better for his son's medical problems.
When the end of his job neared, Stenger found another position at Fitzsimons Army Medical Center, in Aurora, Colo. He requested reimbursement for his relocation expenses, which the Army promptly denied. Stenger filed an EEOC complaint alleging he was discriminated against based on reprisal for prior EEO activity and age. Stenger was 64 years old.
An administrative judge found in favor of the agency, saying the Joint Travel Regulations, which otherwise would have allowed payment of the moving expenses, were made null and void by the memo of understanding Stenger signed. The judge said that Stenger had plenty of time to mull over the memo before he signed it and that the memo was a legitimate nondiscriminatory reason for not reimbursing him.
Lesson: Don't sign an agreement unless you're prepared to abide by it.
John Stenger v. Army, Equal Employment Opportunity Commission (01971612), August 4, 1999.
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