Federal Agencies Deal With Sexual Misconduct Inconsistently

Federal agencies are operating with no clear definition of sexual misconduct and have doled out inconsistent punishments for those found to have engaged in the behavior, according to a new report from House Republicans.

Dozens of agencies have no “table of penalties” detailing the disciplinary expectation for each type of misconduct, have a table but it does not mention sexual offenses or have failed to update their tables in decades. This has led to inconsistent punishments for employees involved in sexual misconduct both throughout government and within individual agencies, Republican members of the House Oversight and Government Reform Committee found. Discipline has ranged from oral reprimand to dismissals for first offenses, the report noted.

Varying definitions from agency to agency as to what constitutes inappropriate sexual behavior can “make it difficult for the federal government to address this problem in a consistent and comprehensive manner,” the lawmakers said. They cited the Federal Aviation Administration, which maintains a detailed list of 10 different types of prohibited sexual conduct, as a good example of the transparency agencies should provide.

A table of penalties is non-binding and is used in conjunction with the “Douglas factors,” a set of 12 criteria that help agency supervisors determine what punishment to dole out to misbehaving employees. It can help agencies reinforce their disciplinary decisions when employees appeal to the Merit Systems Protection Board, the lawmakers said, while making it clear misconduct has consequences.

“Without a table of penalties, agencies run the risk of inconsistent, arbitrary and inadequate responses to findings of misconduct,” the committee members said. Even the agencies that did maintain a list of prescribed discipline for sexual misconduct often had too broad a range of options for penalties, inconsistent definitions of what constituted the inappropriate behavior, no higher standard for supervisors and outdated punishments.

“The federal government should be encouraging the best and brightest to enter public service, and providing federal employees with a protected working environment is paramount to doing so,” the lawmakers wrote. “The current system of tables of penalties across the federal government is inadequate to help provide this environment.”

Some members of the Trump administration have already taken steps to crack down on sexual harassment in government. At the Interior Department, which has perhaps seen the most high-profile cases of sexual harassment in government in recent years, Secretary Ryan Zinke announced last week new policies to better protect employees after an internal survey found 39 percent of National Park Service employees said they were victims of some sort of harassment in the previous year. The initiative promises to ramp up the agency’s ability to investigate harassment claims and increase accountability for employees by expanding the definition of harassing behavior beyond the current workplace standards.

NPS is not the only Interior component dealing with sexual misconduct issues. An inspector general report released this week found the Bureau of Indian Affairs spent two years looking the other way while employees and tribal members lodged complaints of sexual harassment against another BIA employee. The IG found BIA supervisors, management and human resources officials made “little or no effort” to “investigate the veracity of the allegations or determine the extent of the problem.”

In a letter to agency heads, oversight committee Chairman Rep. Trey Gowdy, R-S.C., made clear he was not trying to paint the federal workforce with too broad a brush.

“The vast majority of federal employees do not engage in conduct unbefitting the civil service,” Gowdy wrote. “However, for those who do engage in sexual misconduct, swift and forceful accountability is warranted and required.”

Rep. Elijah Cummings, D-Md., the ranking member on Gowdy's committee, criticized the chairman for not including Democrats' perspective in the report. He noted that he worked with Gowdy's predecessor, former Rep. Jason Chaffetz, R-Utah, to issue bipartisan reports in the past.

“It's sadly unfortunate that Chairman Gowdy took what had been a bipartisan investigation and felt the need to politicize it by issuing a partisan Republican staff report," Cummings said. "I joined the original document requests on this investigation in good faith, and I would have been happy to consider joining his report had I been given the courtesy of a day or two to simply review it."

The committee’s Republicans made a series of recommendations, including that all agencies should maintain up-to-date tables of penalties. Agencies should better coordinate revoking security clearances of employees engaged in sexual offenses, maintain adequate documentation during their investigations and communicate expected punishments to supervisors and employees, the lawmakers said. The committee also said OPM should, in coordination with the Chief Human Capital Officers Council, create a "nature of offenses” list, a range of recommended penalties and guidance for agencies for their penalty tables.

An OPM spokesman declined to say if the agency would accept the recommendations or answer questions regarding why it has not previously maintained a table of penalties.

“OPM has received the report from the House Oversight and Government Reform Committee and is currently reviewing it,”  the spokesman said.

This story has been updated with comment from Rep. Elijah Cummings, D-Md.