Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.
Revelations that an Army combat commander earlier this year unleashed a scam email on civilian agency employees, designed to trick them into disclosing personal financial information, has raised many eyebrows. While the commander reportedly embarked on this faux phishing expedition for cybersecurity purposes, it is always disturbing to see an employer – the government, especially – attempt to trick employees into doing something wrong. And while people lured into doing something wrong by federal agents can raise the affirmative defense of entrapment in criminal proceedings, federal employees tricked into engaging in misconduct generally cannot raise this affirmative defense in administrative proceedings.
Just to be clear, while the Army phishing expedition may at first glance look like a setup, it appears to fall short of the true meaning of entrapment. Entrapment, after all, is a legal theory applicable to criminal law – not administrative law. “Neither mere solicitation nor setting a ‘trap for the unwary’ constitute entrapment,” the Merit Systems Protection Board (MSPB) said in Middleton v. Department of Justice (1983). Instead, as the U.S. Supreme Court said in Hampton v. U.S. (1976), the defense of entrapment comes into play “only when the Government’s deception actually implants the criminal design in the mind of the defendant.”
The Board has repeatedly held, as it did in Perrodin v. Department of Justice (1992), that “entrapment cannot be asserted as an affirmative defense to a charge of misconduct.” Instead, “evidence of a similar nature can be introduced as a mitigating circumstance in connection with the Board’s review of the reasonableness of the penalty.” In other words, an agency’s attempt to induce an employee into committing an offense can be one of the 12 Douglas factors deciding officials should consider when determining the severity of disciplinary actions. But that does not mean the MSPB will always mitigate the seriousness of an offense just because the agency tested an employee’s ability to stick to the rules.
Perrodin, for example, involved a materials handler foreman at a federal correctional facility whom the agency removed for accepting a $100 bill from an inmate. The foreman took the money, hid it in a compartment in his wallet and attempted to leave the facility with it at the end of his shift. When confronted by a Special Investigation Service officer, the foreman initially denied having the $100 bill. He later confessed to possessing it after his hands were placed under a black light that revealed on them traces of theft-detection powder that had been placed on the inmate-supplied bill.
The agency had set up this sting operation because it suspected the foreman of participating in drug smuggling and the inmate who proffered the $100 bill claimed the foreman had asked him for money. “The fact that the appellant received the $100 bill under circumstances orchestrated by the agency, however, does not take away from the seriousness of the appellant’s conduct,” the Board said. “Indeed, it was entirely proper for the agency to conduct an investigation into the source of drugs coming into the prison, and to test the integrity of employees who were suspected of being involved.” The Board found the agency’s sting operation did not merit the mitigation of the removal.
In contrast, Schaffer v. U.S. Postal Service (1988) involved a mail handler whom the agency removed for engaging in activity on agency premises to illegally distribute drugs, smoke marijuana while on his lunch break, and leave agency premises while on the clock. One of the mail handler’s friends was actually a confidential informant who kept “bugging” him for drugs.
The fact that the employee was subjected to these repeated solicitations helped convince the Board the removal was unreasonable. So did the facts that there was no evidence showing his post office had any serious drug problems, that “the agency undertook an investigation to determine whether there were any problems,” and that he did not appear to be “a target of the investigation.” Further, the mail handler did not hold a position requiring a “special degree of trust” and he never actually sold or distributed any marijuana. Ultimately, the Board reduced his penalty to a 120-day suspension.
Years later, while I was serving as chairman of the MSPB, the Board heard Thomas v. U.S. Postal Service (2004), which involved an employee in a position of trust who had smoked marijuana while on agency premises. Initially, an MSPB judge reduced this employee’s removal to a 120-day suspension, similar to the outcome of Schaffer. But the Board reversed this initial decision and sustained the agency’s action. In a decision I co-authored, the Board noted that, unlike Schaffer, the agency in Thomas “played no role in instigating the appellant’s misconduct.”
In the end, federal employees need to remember there is a big difference between an agency’s attempt to test them and trick them into engaging in misconduct. Sometimes a thin line distinguishes the two and an attorney could help them determine where that line falls in their particular situation. I won’t say trust no one – not even an employer – but I will caution that the most effective deceptions come disguised as the most trusted sources.
