Avoid the Circus: Appropriately Consider Notoriety of the Offense
By Dan Gephart, January 15, 2025
Quick facts:
- The eighth Douglas factor is the notoriety of the offense and its impact on the agency’s reputation.
- Notoriety may be considered as an aggravating factor when an employee’s misconduct has been reported by the media and, sometimes, even if it hasn’t been reported.
- The seriousness of the misconduct, the employee’s position, and the agency’s mission are all considerations when analyzing the proper disciplinary approach.
P.T. Barnum reportedly said: “There’s no such thing as bad publicity.” Well, it’s a good thing the Greatest Showman never had to appear before the Merit Systems Protection Board or the Federal Circuit.
For misbehaving Feds, there is such a thing as bad publicity for misconduct – and it could lead to a removal penalty. The eighth Douglas Factor – one of 12 to consider when determining the penalty – is the notoriety of the offense and its impact on the agency’s reputation, and it plays an important role in determining nexus when misconduct occurs off-duty.
A few months back, FELTG President Deborah J. Hopkins shared an awful case involving a Federal employee who lured a 13-year-old boy into his house where he licked the child’s bare feet and toes. It’s not good for your agency’s reputation to have its name attached to this kind of behavior in Newsweek magazine. (Deb’s article was also one of our most-read and shared newsletter stories in 2024). The agency removed him based on two specifications of conduct that were unbecoming and relied on the publicity to prove the nexus.
Sometimes, however, the news doesn’t have to make it to a national magazine for its impact on the agency’s reputation to be considered. Reports in a local newspaper, radio station, or over social media will often count, regardless of circulation, listener ratings, or followers. Even internal agency notoriety can be relied upon.
Potential for publicity
In fact, sometimes the misconduct doesn’t need to be reported on at all.
Take the case of Stump v. DoT, 761 F.2d 680 (Fed. Cir. 1985). An air traffic controller was apprehended by the police for possession and use of cocaine while attending a rock concert in Jacksonville, FL. No criminal charges were filed. However, the police reported the incident to the FAA. After an internal investigation, the employee, who denied the charges, was removed. The employee appealed the removal to the MPSB, who upheld it. So, he appealed to the Federal Circuit.
Now, you’re probably asking: Where’s the notoriety here? Was this in the newspaper? Local TV? No, it wasn’t made public through the media. However, that didn’t matter to the Federal Circuit, which found:
Clearly, the public’s awareness of the use of drugs by an air traffic controller, even off-duty use, would detract from its confidence in the agency. While this incident may have received no publicity at the time, disciplinary proceedings are not secret.
Id. at 681-682.
The court is basically saying it is unnecessary to demonstrate the actual occurrence of publicity to establish the connection between off-duty conduct and discipline. The potential for publicity can establish the nexus.
Consider ‘potential’ carefully
In Knowlin v. VA, DC-0752-17-0703-I-1 (MSPB 2023)(NP), a GS-11 employee with the Veterans Benefits Administration was responsible for assisting service members being separated for medical reasons. The agency proposed the appellant’s removal for “disrespectful, insulting, abusive, insolent, or obscene language or conduct to or about … other employees, patients, or visitors.”
On her Douglas Factor worksheet, the proposing official wrote the appellant’s behavior “could have a negative impact” on the agency and those stationed at the appellant’s location. The behavior “could also be chronicled in the local media which would lead to additional scrutiny on the agency.” Id. at 95-97.
The MSPB found this analysis to be “purely speculative.” Id. at ¶11.
Nearly any misconduct by an employee has the potential for notoriety. In the absence of actual notoriety in the media or in the community, there was no reason to think that this counterfactual scenario should have been of special concern to the agency in this case.
Id.
And worse, the Board found the consideration of the notoriety of the offense to be an
an improper ex parte communication. The agency never let the employee know it was considering the aggravating factor until after it imposed the removal.
There’s a lesson: First off, make sure you provide the offending employee with the appropriate due process by including the Douglas factor analysis in the notice of discipline. Know and effectively apply all of the Douglas factors when determining penalty. And take into consideration the unique circumstances of each case, the egregiousness of the offense, and the agency’s mission.
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