‘Private Dishonesty,’ Off-Duty Sex, And Discipline

An FBI special agent given the pseudonym of “John Doe” in court proceedings worked as a special agent pilot near an FBI office in Ohio. While Doe was off duty, he had consensual sex with a female member of the FBI’s support staff, whom he was dating. Doe and the woman videotaped their sexual encounters, at her suggestion. Doe also videotaped separate consensual sexual relations at his residence with another female FBI employee as well as with one woman who was not an employee.

This aspect of Doe’s private life became known to the FBI through the actions of the first woman. In October 2002, while Doe was out of town, she entered his house and found the tapes, each with a videotaped partner’s name labeled on it. She contacted Doe and together, with the assistance of a professional counselor, they worked out the problems the tapes revealed about their relationship. Later, she shared her concerns with and revealed the existence of the tapes to counselors in the FBI Employee Assistance Program. From that point rumors spread about Doe and female coworkers at the FBI.

Eventually, the FBI’s Office of Professional Responsibility began to investigate. Doe admitted to videotaping the three women, on occasion without their knowledge or consent. When the FBI terminated Doe, he challenged the termination to the Merit Systems Protection Board. When the Board sustained the FBI’s termination decision, Doe appealed to the United States Federal Circuit Court of Appeals.

The Court reversed the termination and sent the matter back to the Board for further consideration. The focal point of the Court’s decision was a potential collision between the FBI’s disciplinary decision and an internal rule that the FBI “does not investigate relationships based upon the morality of romantic or intimate relationships unless they would realistically be subject to prosecution and thus impact upon the accomplishment of the FBI’s mission.”

The FBI argued that there was a duty of agents to behave honestly at all times, and a potential breach of the duty warranted discipline without regard to whether the employee’s underlying conduct was criminal. The Court was not completely convinced, finding that “the Board has failed to articulate a meaningful standard as to when private dishonesty rises to the level of misconduct that adversely affects the efficiency of the service. Using only ‘clearly dishonest’ as a standard inevitably risks arbitrary results, as the question of termination would turn on the Board’s subjective moral compass. Grounding disciplinary decisions in the nebulous field of comparative morality is too easily used as a post hoc justification. The articulation of a meaningful standard is necessary particularly in light of the apparent conflict between the FBI’s policy on investigating personal relationships and its policies requiring its agents to act with integrity and honesty.

“This Court recognizes the difficulty in drawing the line between the types of conduct that can justify discipline and those that cannot. This conundrum does not justify the Board’s failure to articulate a meaningful standard. This conduct that is private in nature and does not implicate job performance in any direct or obvious way is often insufficient to justify removal from a civil service position.

“Without a predetermined standard to clarify when the Agency may and may not investigate the personal relationships of its employees, it is conceivable that employees could be removed for any number of ‘clearly dishonest’ misrepresentations, from those made to preserve the sanctity of a romantic relationship to cheating in a Friday night poker game. The danger here is twofold; federal employees are not on notice as to what off-duty behavior is subject to investigation and the government could use this overly broad standard to legitimize removals made for personal or political reasons. A clear articulation of a standard is therefore essential to the government’s ability to reasonably and legitimately remove an agent for off-duty conduct relating to personal relationships.”

The Court concluded that “in the absence of a violation of criminal law, the FBI is permitted the disciplining of an employee for off-duty personal conduct only if the conduct impacts the Agency’s ability to perform its responsibilities or if the conduct constitutes violation of an internal regulation.” The Court remanded the case to the Board for reconsideration of its decision under this standard.

Doe v. Department of Justice, 565 F.3d 1375 (Fed. 2009).

This article appears in the October 2009 issue