First-time Caller, Long-time Loss of Confidence and Trust

By Dan Gephart, July 18, 2023

Sometimes, a Federal employee’s misconduct is so far beyond the pale that it’s impossible to ever again trust that employee. That was certainly the case for a certain IRS contact representative/Howard Stern devotee. Sorry, I meant to say former IRS contact representative. (I don’t know the status of the ex-employee’s Stern fandom).

The employee arrived at work and called the Howard Stern radio show on his personal cellphone. He was put on hold. When the employee’s 8 am shift started, he began handling incoming phone calls from taxpayers on his work phone.

Two hours later, the Stern show took him off hold. The employee didn’t realize this and continued his conversation with a taxpayer, which was now being broadcast live. He unknowingly shared the taxpayers’ personally identifiable information, including her phone number and the amount of back taxes she owed, to thousands of Sirius XM listeners.

Howard Stern shouted the employee’s name to get his attention. The employee then put the taxpayer on hold to talk to Howard Stern, where he “gleefully” identified himself as a Federal employee.

It’s no surprise that the agency removed the employee, nor that the MSPB upheld that removal earlier this year, citing the effect of the employee’s misconduct on his supervisors’ confidence, while questioning his potential for rehabilitation. Forsyth v. Treasury, NY-0752-16-0246-I-1 (Mar. 15, 2023)(NP). Regarding the latter, the employee was directed to make a post-incident call to the Howard Stern show to ask them to not rebroadcast the telephone exchange, which the employee did, while also requesting a tour of the show’s broadcast studio.

A few months back, Ann Boehm extolled the value of Douglas Factor Five in her monthly Good News column. Douglas Factor 5 is consideration of “the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon the supervisor’s confidence in the employee’s ability to perform assigned duties.”

FEMA similarly lost confidence in a Senior Executive Service employee who misused her position to help a friend gain employment at FEMA. The SESer also provided her friend with personally identifiable information of FEMA employees. Clark v. Department of Homeland Security, DC-0752-13-0661-I-1 (Feb. 21, 2023)(NP).

The employee, who worked in the agency’s Chief Component Human Capital Office, pointed to a positive evaluation she received after the incident to argue that her supervisor had not lost confidence in her. The Board held, however, that “the penalty judgment belongs to the agency, not to an appellant’s supervisor … in the absence of an agency’s failure to consider the relevant Douglas factors adequately, a supervisor’s opinions are insufficient to overcome the agency’s judgment concerning the appropriateness of the agency-imposed penalty.”

How much confidence would you have in an employee who “golfed during official duty hours on at least 205 days for which he claimed no annual leave on his official timesheets.” In Sheiman v. Department of Treasury, MSPB No. SF-0752-15-0372-I-2, at 15 (May 24, 2022) (NP),  the Board agreed removal was the right penalty, stating that it was “clear from the deciding official’s testimony that his loss of trust and confidence in the appellant played a major role in his decision.”

The MSPB decisions in this article have been issued within the last couple of years. For guidance on increasing the chances that your removals match the Board’s view on penalty assessment, register for Charges and Penalties Under the New MSPB on August 1. This half-day session is part of FELTG’s weeklong Federal Workplace 2023: Accountability, Challenges, and Trends event. Gephart@FELTG.com