ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews 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.
Days after he was appointed an asylum officer at the Immigration and Naturalization Service's Los Angeles office, Paul D. Moredock was fired based on remarks he made during a private conversation while on break from a training session.
Moredock told colleagues that he believed INS policy favored Russian Jews over Haitians because Haitian immigrants were more susceptible to AIDS than Russian Jews. Moredock suggested that there could be a genetic link between HIV susceptibility and race. An employee who overheard the conversation took offense, but Moredock said he didn't intend to offend anyone. He asked the offended employee if her reaction was on a "personal or intellectual level."
Soon after, Moredock was fired for making a racial comment. INS has a zero-tolerance policy toward racial comments. Moredock was never asked to explain his point of view because, according to the acting director of the Los Angeles office, managers were too busy.
The Office of Special Counsel stepped in on behalf of Moredock and petitioned the Merit Systems Protection Board for corrective action on his behalf. OSC argued that Moredock's First Amendment rights were violated because he was fired for making private comments on a matter of public concern, the agency didn't give adequate justification for the action and he was not given due process.
The chief administrative law judge at MSPB agreed, ordering INS to reinstate Moredock with back pay, interest and benefits. According to the judge, INS failed to show how Moredock's remarks made him unfit to serve as an asylum officer. The judge also chastised the agency for failing to perform a reasonable inquiry of the matter.
Lesson: You can't have a policy of zero tolerance of the First Amendment.
Paul D. Moredock v. INS, Merit Systems Protection Board (CB-1216-99-0019-T-1), February 2, 2000.
Right to Participate
Speaking of free speech, can a federal agency employee speak on behalf of citizens' groups before other federal agencies?
The Environmental Protection Agency said no when EPA employee Jeffrey Van Ee tried to represent public interest groups on environmental matters before the Bureau of Land Management and other agencies that have a great effect on Van Ee's home state of Nevada. Eighty-five percent of the land in Nevada is owned by the federal government.
EPA disciplined and issued warnings to Van Ee, saying that even though he was a volunteer with the groups, he was violating a criminal conflict-of-interest law by speaking on behalf of outside groups before other agencies.
Van Ee cried foul and sued the EPA in 1995. The case worked its way up to the U.S. Court of Appeals for the District of Columbia. This week, the court ruled in Van Ee's favor.
"Although in a very broad sense, such proceedings may serve to advance the interests of a public interest group," the court explained, ". . . this is hardly the situation that caused Congress to enact a criminal statute to preserve the integrity of governmental service and decisionmaking."
Lesson: Being a federal employee and an activist aren't always mutually exclusive.
Jeffrey Van Ee v. EPA (99-5147), U.S. Court of Appeals for the District of Columbia, February 8, 2000.