Thou Shalt Not Steal

Even with good cause, taking agency documents is against the law.

Eugene Clark, an employee of the Equal Employment Opportunity Commission, saw that certain documents in the agency's confidential open case file could be helpful in a discrimination lawsuit he was pursuing against EEOC. So without authorization, he took the documents, and his attorney introduced them during district court proceedings in 1989. The EEOC discovered what Clark had done and fired him. And the Merit Systems Protection Board upheld the dismissal.

Many people might be shocked to discover that taking or using agency documents, even when they are shown only to their own lawyers, is a major offense. This rule applies even if the government does not have exclusive possession of the documents, or if the agency already had given copies to the employee or would have been obligated to share the records under the Freedom of Information Act or trial discovery processes. It doesn't matter whether the property is merely a photocopy or intangible information, such as a FedEx number, the amount of a competitive bid or the name of someone who has aided a government investigation. The statute covering theft and conversion of property (18 U.S.C. 641) applies to more than just material that has been physically removed from the premises.

In discrimination cases, some employees have turned to the opposition clauses of the discrimination laws. They claim that taking documents constitutes "opposing" discrimination and therefore is a protected activity. But in O'Day v. McDonnell Douglas Helicopter Co., the Ninth Circuit Court of Appeals in March 1996 said, "We are loath to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer's discriminatory practices; it is not an insurance policy, a license to [flout] . . . rules or an invitation to dishonest behavior."

Sneakiness only aggravates the situation. In upholding the firing of Transportation Department employee Jerry Heath, MSPB noted in 1994 that he took agency property while no one else was around and without the knowledge of his supervisors. The board was not moved by Heath's plaint that he needed the information to defend against the agency's action against him for poor performance, and had told no one but his lawyer. "A violation of a criminal statute, particularly one proscribing the knowing conversion of government property, is a very serious offense," the board said.

This lesson apparently has not been learned by many employees, and in some cases their lawyers. In April 2006, MSPB upheld a lengthy suspension for Social Security Administration employee Stanley Williams, who printed out agency workload reports on co-workers, including names and Social Security numbers. Williams, who had filed a race discrimination case against the agency, provided the documents to his lawyer, who in turn used them during a deposition of Williams' supervisor. Williams' boss and the agency's attorney strenuously objected to the use of the documents. The EEOC judge ruled in favor of the agency, and MSPB upheld Williams' suspension.

In cases such as Williams', an employee sometimes can avoid dismissal if the agency calls the offense "misuse" or "disclosure" of documents rather than theft. But the misconduct still is a serious violation of public trust. Having access to agency information might be tempting when building a legal case, but a better route is the Freedom of Information Act or the discovery process. At least that way, an employee can keep his job.

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