Q: Scenarios and Allegations
The most common allegations of wrongdoing made against AUSA’s include: Allegations of Professional Misconduct; Alleged Abuse of Investigative Authority; Discovery or Other Brady Violations; Misrepresentation to a Court or Other Tribunal; Alleged Failure to Disclose a Conflict of Interest; Ethical Allegations; Alleged Failure to Follow SOP or Other Supervisory Instructions; and Negligent Performance of Duties. The FEDS policy also defends AUSAs in state bar investigations and proceedings arising out of the performance of federal job duties.
Complaints against employees obligating and administering federal funds and contracts come from members of the public, beneficiaries of federal programs, contractors, grant recipients, forensic accountants and auditors, and subordinate and other employees.
Common allegations of wrongdoing against HR Specialists include maintaining confidentiality; adhering to the Privacy Act and Regulations; assisting agency management in pre-selection of a candidate; an allegation of misconduct in performance issues encompassing all areas of concern (i.e. leave and absences, hours of work, drug and alcohol abuse, grievances/complaints/appeals, disciplinary and adverse actions, etc); allegations of misconduct on complex and often controversial conduct-related issues; allegations of misconduct on providing technical guidance, information and assistance on a variety of employee relations duties such as drug testing, grievances, legislation, etc; allegations of misuse of position or authority; EEO complaints; management, OIG and OSC investigations/complaints; whistleblower and ethics complaints; complaint from the public; and other allegations of wrongdoing.
The most common complaints against federal judges leading to investigations and disciplinary actions include allegations of conduct prejudicial to the effective and/or expeditious administration of the business of the courts; agency reprimands for remarks at hearings deemed improper or evidencing 'conduct unbecoming a judge'; allegations of abuse of authority or other professional misconduct; alleged improper courtroom behavior; alleged improper or illegal influence; ethics complaints; and other impropriety involving the performance of your official duties. Each agency has its own process and procedure to deal with judicial complaints—and whatever yours is, having your own objective legal counsel to assist with your defense to these allegations is always prudent, no matter how frivolous or baseless the underlying complaint or allegation may be.
Law Enforcement Officers
Several FBI agents participate in the execution of a search warrant at a home, involving the arrest of a person inside that home. The arrestee then files a Bivens action, seeking damages against the agents personally, alleging that the search of his home and his arrest violated his constitutional rights.
A BOP officer is involved in an altercation with an inmate resulting in serious life threatening injuries to the inmate. The officer needs to hire an attorney to defend against criminal charges for assault and battery.
An attorney manager is sued personally for allegedly retaliating against a subordinate attorney when he reported the subordinate to the state bar for ethics violation. Another manager is sued personally for searching a subordinate employee’s government office desk drawer.
A new manager attempts to change the authorized reporting time and the process for alternate work schedules for her employees. Several employees who were upset about the change in their working conditions filed a complaint against the manager with the Office of Special Counsel (OSC) alleging whistleblower retaliation for their cooperation with a recent Office of Inspector General (OIG) investigation involving their office.
A manager counsels and issues a reprimand to a problem employee. The employee files a complaint with the EEO office alleging gender discrimination and a complaint with the agency’s Office of Inspector General (OIG) alleging whistleblower retaliation for disclosures she made to her management about alleged fraud, waste and abuse in her office.
Physicians and Medical Professionals
With regards to civil exposure, under the Federal Tort Claims Act (FTCA), federal physicians, psychologists and other medical personnel have financial protection from most common malpractice lawsuits. The FTCA does not, however, provide immunity for personal capacity lawsuits or constitutional torts - this means that federal medical personnel can be vulnerable to some types of civil actions / commonly referred to as a Biven's actions for alleged violations of an individual's constitutional rights.
Medical personnel are most at risk for administrative and disciplinary matters resulting from an allegation of negligent performance of duties followed by alleged ethical violations, professional misconduct and abuse of authority. Allegations leading to OIG, OPR, OSC, Internal Affairs, Congressional, Agency and State Medical Board investigations come from patients; special interest groups and industries; politically motivated elected officials; members of the public; co-workers, subordinates, and agency managers. If you are also a manager or supervisor, your policy also covers employee allegations of harassment, discrimination, retaliation, wrongful termination, and whistleblower reprisal.
Failures in regulatory duties, regardless of the reason, result in investigations, proposed disciplinary action, and in some cases the potential of a civil action.
Two federal veterinarians faced proposed removal from the federal service for improper billing and coding along with complaints from plant management. Although both veterinarians argued that the complaints were baseless and actions were consistent with past practice at their facilities, the agency moved forward with removing them both forcing them to appeal and litigate their removals before the Merit Systems Protection Board (MSPB). At this point, one of the veterinarians was forced to resign his federal employment and end his appeal because he could not afford to continue paying attorney’s fees. The other veterinarian, who had a FEDS PLI policy, was provided high-quality legal representation through the policy and the appeal was successful. Other claims warranting legal defense under the FEDS policy include claims alleging failure to ensure humane treatment of animals, failure to ensure the slaughter of animals is within regulation, failure to ensure proper time and attendance procedures were adhered to, and negligent performance of duties resulting in the improper release of infected or contaminated items into the food supply.
A Forest Service employee is an incident commander on a wildland fire that blows up and out of control and tragically claims the life of several Forest Service employees. The fire blew up out of control because of unpredictable weather conditions and the presence of dangerous fuels. As required by federal law, the Department’s Office of Inspector General (OIG) conducts a criminal manslaughter investigation to determine whether the incident commander and other employees were negligent in their fighting or management of the fire and ultimately contributed to the death of their fellow fire fighters. As a result of the OIG investigation, DOJ initiated a criminal prosecution against the incident commander. At the same time, and on a parallel track, the Forest Service conducted its own accident and management investigation to assess accountability and propose disciplinary actions against the involved employees.
Allegations of misconduct in evaluating proposals or awarding contracts, vulnerabilities to foreign pests and diseases, and failures to ensure the protection of animal and public health lead to allegations, investigations, proposed disciplinary actions, and even civil actions.
Department of Energy Employees
Management and oversight failures, failures to prevent unintended public disclosure of U.S. nuclear sites and activities, failure to ensure uninterrupted production of components, failure to ensure safe transportation of radioactive materials, failure to ensure public safety against high-level nuclear weapons are all serious allegations that will lead to allegations of wrongdoing or misconduct, investigations and/or proposed disciplinary actions.
Investigations and lawsuits filed by interest groups challenging the process and pace of EPA especially when the health of children and/or communities is at risk due to a system failure, oversight, lack of action of delay of action.
New policy changes, politically charged responses, and accountability demands for the decisions made before, during and after each new FAA-related incident lead to Accountability Board of Investigations, Office of Security Investigations, Office of Special Counsel complaints/investigations, Congressional investigations and proposed disciplinary actions. The most common investigations involving FAA managers and employees include Accountability Board of Investigations, Office of Security Investigations, Office of Special Counsel, Complaints/Investigation,
Congressional, and other management directed investigations.
FEMA and other Federal Response Employees
Common allegations of wrongdoing against federal response employees include - but are not limited to alleged abuse of authority or position; loss of equipment or damage to government property; failure to follow SOP or other supervisory instructions; negligent performance of duties resulting in injury or property damage; negligent performance and operational errors; fraud, waste and abuse complaints/allegations; whistleblower and ethics complaints; management, OIG and OSC investigations/complaints; EEO complaints; and other allegations of wrongdoing involving the performance of official duties.
HUD employees face allegations of deficient monitoring of lenders, deficient monitoring of contract performance, failure to take remedial action, oversight of pre-endorsement contractors, and entering inaccurate information into the automated tracking system. Because all of these lead to increased risks of fraud, waste and abuse, they result in allegations, investigations, civil and criminal actions against employees.
An IRS employee makes an inadvertent disclosure of tax information and an overzealous TIGTA agent investigates it as a willful 6103 criminal disclosure.
Read Catherine Lunderville’s Story
An IRS manager suspecting a fellow employee of some criminal wrongdoing accesses an IRS-registered Choice Point computer data base to obtain information about the colleague and potential criminal wrongdoing. The matter gets referred to TIGTA who conducts a criminal investigation of the IRS manager under the Computer Fraud and Abuse Act.
The most common allegations of wrongdoing made against IRS managers and employees include No Fear Act investigations; UNAX allegations; 1203 or 1204 investigations; unauthorized 6104 disclosures; TIGTA or OSC investigations/complaints; EEO, whistleblower or ethics complaints; complaints or allegations of wrongdoing made by the public; and other allegations of wrongdoing involving the performance of official duties.
IRS employees responsible for contractual oversight of a system that a government The FEDS policy pays for legal defense up to $200,000 for any disciplinary or judicial sanction proceeding or administrative investigation into alleged misconduct from any act, error, or omission committed by a federal employee while rendering a professional service.contractor fails to deliver in a timely manner. The failure to deliver the system has a significant impact on the agency’s operations. As a result, the agency seeks to hold IRS managers responsible and accountable for the failure of the contractors alleging the managers lacked appropriate oversight and controls. The agency proposes several disciplinary actions against the employees involved to include removal from federal service. As a FEDS policy holder, you would be assigned an attorney to defend you throughout the agency administrative process, as well as any appeal to the Merit Systems Protection Board (MSPB).
Alleged failure to safeguard sensitive information, approving or not approving upcoming site permits or license requests; failures to ensure the public's health and safety, the common defense and security, and the environment in the public's use of source, byproduct, and special nuclear materials, subject the NRC and its employees to various allegations, investigations, inquires from the Congressional appropriations committees, the GAO, the NRC IG, as well as complaints by the nuclear industry and public.
SEC employees are subjected to increased scrutiny as a result of highly publicized regulatory failures such as the Bernie Madoff case and other high profile investigations. Despite the great difficulty that dedicated SEC employees face in trying to uncover regulatory and criminal violations, failures in your regulatory duties, regardless of the reason, could result in investigations, proposed disciplinary actions, and in some cases the potential of a civil action.
Several SSA OIG employees are personally sued for disclosing the names of subjects of criminal investigations to third party witness. In such cases, conflict of interest rules might prevent the DOJ from representing every individual defendant. Depending on the defenses available to the individual defendants, DOJ may exercise its broad discretion to deny you DOJ representation, and also decline to hire private counsel for you. As a FEDS policyholder, you would be provided with an attorney to defend you in the civil action. Also, in this scenario, if there were a civil monetary judgment against you, your FEDS policy pays up to $1,000,000 (or $2,000,000 depending on the policy you choose) of the judgment in the event that the U.S. Government declines to indemnify you.
SSA employees and managers within the Office of Disability Adjudication and Review were the subjects of an OIG investigation for allegedly reproducing evidence from one disability case to another in effort to reduce backlog. As a result of the OIG investigation, the OIG sent a letter to SSA employees and managers notifying them of a potential fine of $5,000 per case under Section 1129 of the Social Security Act, translating to a 3.5 million dollar fine to one supervisor who oversaw more than 700 cases. Section 1129 also has a criminal and administrative (disciplinary) component. If you were a member of FEDS, you would be assigned an attorney to defend you throughout the OIG investigation and any resulting civil or disciplinary process, to include preparing you and attending the OIG investigative interview with you, and negotiating a resolution with the OIG. Your FEDS membership would also entitle you to an attorney to challenge the assessment of any civil fine.
Common allegations of wrongdoing against RMO's and other SSA employees include - but are not limited to alleged Systems Sanctions violations; allegations of improper purchases; alleged violations of the Standards of Conduct; allegations of improper personnel practices; alleged violations of the No Fear Act; EEO, whistleblower and ethics complaints; and various other allegations of wrongdoing involving the performance of official duties.
State Department and FSOs
An officer testified in a federal criminal trial against a defendant that was being prosecuted by the DOJ. During and after the trial, it was alleged by defense counsel and the judge that the officer may have committed perjury on the witness stand. After a lengthy criminal investigation, DOJ filed criminal charges - against the officer that testified - for false statements and perjury.
A traveling member of the public, annoyed about the amount of time it took to get through an airport screening line, filed a complaint with TSA claiming a particular TSA employee was abusive and rude to him. As a result, the agency conducted a management investigation of the incident. As a FEDS policyholder, you would be assigned an attorney to defend you throughout the management investigation process, to include preparing you, and attending the investigative interview with you, and any resulting disciplinary action.
Failures to ensure imported food safety, oversights or errors in making serious food product recalls, and failures to efficiently and effectively handle recalls particularly affecting schools due to the higher risk of complications from food-borne illnesses in young children, are certain to attract public scrutiny resulting in allegations of wrongdoing, investigations, proposed disciplinary actions and/or even civil lawsuits.