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Federal Employees News Digest : Oct 28, 2013
October 28, 2013 Vol. 63, No. 15 7 Visit us on the Internet at www.FederalDaily.com After shutdown, Anti-Deficiency Act hazards remain The government shutdown, with all the attention it has recently brought to the Anti-Deficiency Act, had federal officials portray- ing government-issued mobile devices as though they contained explosive materials capable of setting off the 143-year-old law. Not wanting furloughed employees to violate the Anti-Deficiency Act's prohibitions against volunteer work or incurring unauthorized expenses, agencies ordered non-excepted employees to turn off, turn in, or simply not use government-issued devices. If non-excepted employees were to use these devices to check in on work affairs, it would be hard to say just how much of a career-damaging explosion such conduct would create. In fact, the big career-busting Anti- Deficiency Act-related bangs have occurred when the government was not shut down. Several of the shutdown guidances that I've seen did not specify exactly what would happen to a non-excepted employee who used a government-issued mobile device while on furlough. One exception was a National Science Foundation notice sent to Intergovernmental Personnel Act assignees and fellows. It warned that working during the furlough "could result in termination of the assignment agree- ment and/or other adverse actions." The statute provides for Anti- Deficiency Act violators to be subjected to criminal sanctions, though the government usually will not go this route. When the U.S. Court of Appeals for the District of Columbia Circuit examined the issue of Anti-Deficiency Act violations in Clark et al v. U.S. (1990), it "failed to turn up a single prosecution under the Anti-Deficiency Act in its entire existence since 1905." The statute also provides for administrative sanctions, such as suspension or removal, for Anti-Deficiency Act violations. Some violations have yielded lighter penalties. For example, when two Department of the Army employees violated the Anti-Deficiency Act by using operation and maintenance account funds---not military construction funds---to fund four construction projects at a garrison in Bavaria, the agency only reprimanded them, according to the Government Accountability Office's 2012 Anti-Deficiency Act report. The amount related to this violation: nearly $3 million. Concerns over Anti-Deficiency Act violations can also lead to com- plaints about whistleblower retaliation. The Merit Systems Protection Board case Mason v. Department of Homeland Security (2011), for example, involved a Transportation Security Administration finan- cial specialist who claimed that a letter of reprimand he received was issued in retaliation for whistleblower disclosures he made to various people and entities. One of his disclosures related to a $251.87 purchase made on a government purchase card that exceeded its available balance of $13.20. In an email to an acting federal security director, the financial specialist warned this purchase could represent a "possible" Anti-Deficiency Act violation. He also reported this pos- sible violation to the Office of Special Counsel and the Office of the Inspector General. After the OSC declined to pursue his complaint, the financial spe- cialist filed an individual right of action (IRA) appeal with the MSPB. An administrative judge initially found that the disclosure about the possible Anti-Deficiency Act violation was not protected because it concerned a possible violation. Further, the disclosure was part of the employee's normal duties. On appeal, the board partially disagreed with the administrative judge in regard to this disclosure. The "use of qualifying terms like 'potential' and 'possible' to describe the alleged wrongdoing do not preclude a finding that he nonfrivolously alleged that he made a protected disclosure," the board said. However, the board agreed with the administrative judge about the disclosure falling outside the purview of the Whistleblower Protection Act because it was made in the normal performance of job duties. The board noted that the U.S. Court of Appeals for the Federal Circuit had ruled there are exceptions to this rule. Disclosures can be protected "when an employee is obligated to report wrongdoing, but such a report is not part of the employee's normal duties or the employee has not been assigned those duties" or "when an employee with investiga- tory responsibilities reports wrongdoing uncovered during an inves- tigation outside of the 'normal channels.'" Neither exception applied to the disclosure made by the financial specialist, who had been instructed to notify the federal security director of "[a]ny anomalies outside the realm of routine business." Ultimately, the board ruled this disclosure was not protected. It is important to remember that this case predated the enactment of the Whistleblower Protection Enhancement Act, which amended the WPA so that whistleblower disclosures since Dec. 28, 2012, made in the normal course of duty, even to the alleged wrongdoer, are now protected. Federal employees charged with violating the Anti- Deficiency Act or who have been subjected to reprisal for blowing the whistle on actual or potential violations of this law should immedi- ately contact an experienced federal employment law attorney. By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at email@example.com. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
Oct 21, 2013
Nov 4, 2013