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News Round Up

Former Interior Official Pleads Guilty To Conflict Of Interest, Faces Up To 5 Years In Prison
August 19, 2008

The former special assistant to the Associate Director of Minerals Revenue Management, Mineral Management Service (MMS) at the U.S. Department of Interior has pleaded guilty to a felony violation of the conflict of interest law. Jimmy W. Mayberry, age 65, a resident of Strawn, Texas, was charged in a single-count criminal information filed on June 25, 2008. The plea was taken by Judge Henry H. Kennedy of the U.S. District Court for the District of Columbia.
According to the plea documents, when Mayberry was nearing retirement from federal service, he and his supervisor explored ways he could return to work for the Department of Interior after his official retirement. It was decided, according to Mayberry's admission, to create a consulting position which, while created and intended specifically for Mayberry, was required by law to be the subject of open and fair competitive bidding procedures. Mayberry also admitted that in his official capacity before retiring, he created the "statement of work" that would subsequently be used to define the position and evaluate the bids of Mayberry and his competitors. Mayberry was the only applicant out of all bidders for the position to receive a grade of "excellent" on every qualification category and was awarded the contract.

The case was investigated by the Interior Department's Office of Inspector General. The prosecution is being handled by the Public Integrity Section, which is part of Justice Department's Criminal Division.

Mayberry faces a maximum sentence of five years in prison, a fine of $250,000 and supervised release following his incarceration. The sentencing has been set for November 14, 2008, before Judge Kennedy.




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Despite Mandate, Only 30% of Government Devices Are Encrypted
August 19, 2008

A recent Government Accountability (GAO) report has found that federal agencies need to do more to encrypt and protect sensitive information. The report identified commercially available technology, reviewed laws and policies on sensitive information, and examined 24 federal agencies. It recommends that Office of Management and Budget (OMB) policies be clarified and that selected agencies strengthen their efforts.

GAO found that the extent to which 24 major federal agencies reported that they have implemented encryption and developed plans to implement encryption of sensitive information varied across agencies. From July through September 2007, the major agencies collectively reported that they had not yet installed encryption technology to protect sensitive information on about 70 percent of their laptop computers and handheld devices. Additionally, agencies reported uncertainty regarding the applicability of OMB's encryption requirements for mobile devices, specifically portable media.

GAO explained that while all agencies have initiated efforts to deploy encryption technologies, none had documented comprehensive plans to guide encryption implementation activities, such as installing and configuring appropriate technologies in accordance with federal guidelines, developing and documenting policies and procedures for managing encryption technologies, and training users. Consequently, the report concluded that federal information may remain at increased risk of unauthorized disclosure, loss, and modification.

To read the report, titled "Information Security: Federal Agency Efforts to Encrypt Sensitive Information Are Under Way, but Work Remains," GAO-08-525.




Authorities Investigating Whether Feds Purchased Phony Degrees
August 19, 2008

Officials from U.S. Immigration and Customs Enforcement (ICE) are investigating whether some federal employees purchased phony degrees from a Spokane, Washington-based diploma mill. ICE agents reportedly are scouring a list of nearly 10,000 names to uncover federal workers who paid for bogus degrees. Some of the e-mail addresses on the list ended in ".gov" and ".mil", indicating federal civilian employees and military members likely were responsible for purchasing fake degrees. Investigators expect that more federal workers may be involved, but used their personal e-mail accounts instead of their government accounts.

The story is being followed closely by the Spokesman-Review newspaper, which acquired the list and posted it on its website. The Justice Department, which also has the list, is refusing to release it to the public, saying it violates department policy.

The diploma mill sold both counterfeit degrees from real universities, as well as fake degrees from fictitious academic institutions. Many on the list who purchased degrees were from outside the U.S., generating national security concerns.

The ringleader of the scheme, Dixie Ellen Randock, 58, was sentenced in July to 3 years in prison for conspiracy to commit mail and wire fraud. She, along with her husband, also agreed to forfeit more than a half a million dollars in cash and a luxury car.




From The Hill – Congress In Recess
August 19, 2008

With Congress in recess, there is no news to report from Capitol Hill this week. We'll give you the scoop when lawmakers return in September.


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Case Law Update – Breast Cancer Survivor Can Proceed With Discrimination Claim Against State Department Based On Her “Record Of” Impairment That Substantially Limited Sexual Relations, D.C. Circuit Rules
August 19, 2008

A breast cancer survivor can proceed with her disability discrimination claim against the U.S. State Department based on her "record of" an impairment that substantially limited the major life activity of engaging in sexual relations, the D.C. Circuit ruled last month.

In this case, the appellant was a candidate for the U.S. Foreign Service. Soon after passing the required entrance examinations and receiving a medical clearance, the appellant learned that she had stage-one breast cancer. Upon hearing the news, the State Department, expressing concern that many of its overseas posts lack the follow-up care it believed the appellant required, revoked her medical clearance, disqualifying her from the Foreign Service. The appellant sued under the Rehabilitation Act of 1973, which prohibits federal agencies from discriminating in employment against disabled individuals - including those with a "record of" a disability. In her complaint, the appellant alleged that her surgical treatment (a mastectomy and simultaneous reconstructive surgery, followed by removal of her ovaries and fallopian tubes) rendered her cancer-free and able to work anywhere in the world without requiring specialized follow-up care. When the district court granted summary judgment to the State Department, the appellant turned to the D.C. Circuit.

In its decision, the D.C. Circuit explained that an individual is disabled under the Rehabilitation Act only if she can show that she: (1) has a physical or mental impairment which substantially limits one or more major life activities; (2) has a "record of" such an impairment; or (3) is regarded as having such an impairment. The appeals court explained that the second disability definition was "tailor-made" for individuals such as the appellant, who claim they once suffered from a physical or mental impairment that substantially limited a major life activity, recovered from the impairment, but nonetheless faced employment discrimination because of it.

The D.C. Circuit went on to state that it is undisputed that the appellant has a history of breast cancer and that breast cancer qualifies as a "physical impairment" under the Act.

The court then turned to the issue of whether the appellant's cancer substantially limited her in a major life activity. Ruling for the first time on the issue for the circuit, the D.C. Circuit held that sexual relations constitutes a "major life activity" for the purposes of the Rehabilitation Act. The appeals court reasoned that sex is (1) "unquestionably" a significant human activity; (2) a basic physiological act practiced regularly by a vast portion of the population; (3) a cornerstone of family and marital life; (4) a conduit to emotional and spiritual fulfillment; and (5) a crucial element in intimate relationships. Thus, "sex easily qualifies as a ‘major' life activity," the court stated.

Having decided that engaging in sexual relations qualifies as a major life activity, the D.C. Circuit next determined whether the appellant sufficiently alleged a substantial limitation on that activity. According to the appellant, her breast cancer treatment rendered her completely unable to engage in sexual relations, the court stated. Due to scarring, her overall post-surgery physical appearance, lack of physical sensation, loss of libido accompanying her medication, or a combination of these factors, the appellant claims that her ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently, the court stated. In its decision, the D.C. Circuit noted that the government failed to challenge the appellant's assertion that she was substantially limited in her ability to engage in sexual relations or that this limitation was anything but the direct result of her cancer treatment. "By failing to do so," the appeals court stated, "the government has effectively conceded - at least for summary judgment purposes - that [the appellant's] claimed impairment did, in fact, substantially limit her in a major life activity."

Thus, the D.C. Circuit found that, viewed in the light most favorable to the appellant, the record shows: (1) the State Department knew the appellant had a record of impairment (breast cancer); (2) the impairment did, in fact, substantially limit the major life activity of engaging in sexual relations; and (3) the State Department denied the appellant employment because of her cancer history.

The appeals court concluded, "The upshot is this: if an employer discriminates against an employee on the basis of a physical or mental impairment, or the record thereof, and if the impairment in fact qualifies as a ‘disability' under the Act, i.e., it substantially limits or once limited a major life activity, then the employer may be vulnerable to a charge of employment discrimination."

Accordingly, the D.C. Circuit reversed the district court's grant of summary judgment to the State Department, and remanded the case to the lower court for further proceedings.

The case is Adams v. Rice, U.S. Court of Appeals for the D.C. Circuit, No. 07-5101, July 18, 2008.




Educate Yourself – Earn A Certificate In Public Leadership
August 19, 2008

If you are interested in earning a unique credential and adding distinction and prestige to your resume, consider earning a Certificate in Public Leadership. This program of study is being offered by the Brookings Institution, and is designed to equip America's best and brightest with a solid grounding in the core competencies required to excel in 21st century leadership. Every executive education class you take will build toward your certificate.

There is no timeline or sequence for Certificate studies. You are permitted to start when you like, select your own curriculum, and finish when it suits you or when budgets allow. The Certificate in Public Leadership is open exclusively to government participants.

In order to be awarded a Certificate in Public Leadership, you must complete a total of 20 course days with Executive Education at Brookings. The curriculum includes two mandatory foundational courses (8 days total): Leading with Integrity: Ethics in Action (3 days, required for all certificate candidates); and Leadership Lab (5 days, GS 13-15) or Executive Leadership in a Changing Environment (5 days, GS 15-SES).

The remaining 12 study days can be spent at any Brookings course, including custom programs. There is no time limit or sequence for completing the 20 days of classroom learning. If you are an alumnus, any courses you have taken since 2004 will be automatically credited to your transcript.




Smile of the Week
August 19, 2008

Morris and his wife Esther went to the state fair every year, and every year Morris would say, "Esther, I'd like to ride in that helicopter." Esther always replied, "I know Morris, but that helicopter ride is fifty dollars, and fifty dollars is fifty dollars." One year, Esther and Morris went to the fair, and Morris said, "Esther, I'm 85 years old. If I don't ride that helicopter, I might never get another chance." To this, Esther replied, "Morris that helicopter ride is fifty dollars, and fifty dollars is fifty dollars." The pilot overheard the couple and said, "Folks I'll make you a deal. I'll take the both of you for a ride. If you can stay quiet for the entire ride and not say a word, I won't charge you! But if you say one word, it's fifty dollars." Morris and Esther agreed, and up they went. The pilot did all kinds of fancy maneuvers, but not a word was heard. He did his daredevil tricks over and over again, but still not a word. When they landed, the pilot turned to Morris and said, "By golly, I did everything I could to get you to yell out, but you didn't. I'm impressed!" Morris replied, "Well, to tell you the truth, I almost said something when Esther fell out, but you know, fifty dollars is fifty dollars!"


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Tip of the Week – Hosting Political Events For Candidates
August 19, 2008

We're approaching that time again in our 4 year general election cycle and have received some questions about the limitations placed on federal employees to engage in partisan political activities. One reader wants to know: Can federal employees host a political event at their home for a partisan candidate?

The answer to that question is governed by the Hatch Act at 5 U.S.C. sections 7321-26 and OPM's implementing regulations at 5 C.F.R. Parts 733 and 734. The exact nature of participation in partisan political events allowed under the Hatch Act depends upon where the employee works and the position held by the employee. All civilian employees in the Executive Branch, except the President and Vice President, are covered by various provisions of the Hatch Act. Employees of the U.S. Postal Service and the District of Columbia government are also covered by the Act, including political appointees. And as we've noted, the Hatch Act places different limitations on what activities you can engage in depending on where you work and what job you hold.

Political appointees or those employees paid from an appropriation for the Executive Office of the President have the greatest latitude under the Hatch Act to engage in political activity both on and off duty. At the opposite end of the spectrum are employees of agencies covered by the original 1939 Hatch Act (listed below) who are prohibited from engaging in any partisan political campaigns or partisan political activity, even the kind of activity our reader asks about. The following agencies and positions are restricted by the 1939 Hatch Act:

• Administrative Law Judges (positions described at 5 U.S.C. section 5372)
• Central Imagery Office
• Central Intelligence Agency
• Contract Appeals Boards (positions described at 5 U.S.C. section 5372a)
• Criminal Division (Department of Justice)
• Defense Intelligence Agency
• Federal Bureau of Investigation
• Federal Elections Commission
• Merit Systems Protection Board
• National Security Agency
• National Security Council
• Office of Criminal Investigation (Internal Revenue Service)
• Office of Investigative Programs (Customs and Border Protection)
• Office of Law Enforcement (Bureau of Alcohol, Tobacco and Firearms)
• Office of Special Counsel
• Secret Service
• Senior Executive Service (career positions described at 5 U.S.C. section 3132(a)(4))

In 1993, the Hatch Act was amended to allow the remainder of the federal workforce in the Executive Branch to engage in some forms of political activity when they are off duty.

As for the specific question from our reader about hosting a partisan political event at home, we first note that all employees covered under the 1939 or 1993 version of the Hatch Act may not solicit, accept or receive political contributions, except in certain limited situations by federal labor or other employee organizations. And all federal employees covered under the 1939 and 1993 versions of the Hatch Act are also prohibited from hosting a fundraiser at their homes.

Though federal employees are prohibited from hosting political fundraisers at their homes, a spouse who is not covered by the 1993 Hatch Act may host a fundraiser at home and the federal employee who is covered by the 1993 Hatch Act may attend. The federal employee covered by the 1993 Hatch Act cannot be listed as a sponsor or point of contact for the fundraiser. In addition, while federal employees covered by the 1993 Hatch Act cannot host political fundraisers at their homes, they may help organize such fundraisers (i.e. at other locations where they are not listed as a sponsor or point of contact), so long as they do not personally solicit, accept or receive political contributions. If a federal employee covered by the 1993 Hatch Act lives in a designated community (such as in the MD and VA suburbs of DC) he/she can accept (not solicit) political contributions on behalf of local partisan candidates.

Beyond hosting or organizing political fundraisers, federal employees covered by the 1993 Hatch Act can speak at a partisan political fundraiser so long as they do not solicit political contributions. An employee who is covered by the 1993 Hatch Act may have his or her name printed on the invitations as a guest speaker, but the employee's official title cannot be used. Further, the reference cannot in any way suggest that the employee encourages or solicits contributions. Employees who are referred to with a general term such as "Honorable" may use this term on the invitation.

As noted above, while the 1993 amendments to the Hatch Act granted expanded rights to participate in political campaigns, federal employees in agencies or positions covered by the 1939 Hatch Act (listed above) are prohibited from engaging in any partisan political campaigns or partisan political activities.

Employees covered by the 1939 Hatch Act are not allowed to solicit, accept, or receive political contributions; or organize, sell tickets to, promote, or actively participate in a fundraising activity of a candidate for partisan political office or of a political party, or partisan political group. Employees covered by the 1939 Act are also prohibited from making campaign speeches on behalf of a partisan candidate.

As for the non-career employee in the Executive Branch, specifically those employees appointed by the President by and with the advice and consent of the Senate, and employees paid from an appropriation for the Executive Office of the President, these employees are governed by many of the guidelines of the 1993 Hatch Act, but can also participate in various forms of political activity both on and off duty, depending upon the class of appointee.

The Hatch Act is enforced by the Office of Special Counsel (OSC).  OSC also provides advisory opinions to federal employees with specific questions about engaging in political activity under the Hatch Act.




This Week on FEDtalk®
August 19, 2008

This week on FEDtalk® radio show, hosts Debra Roth and Jannika Cannon will discuss the Service to America Medals with Partnership for Public Service's Jim Seymour, sponsor Frank Pugliese of DuPont, and Medal finalists Dr. Pomeroy and Dr. Reimschuessel.

The radio show is this Friday, August 22nd, at 11:00 a.m. Eastern Time. You can email your questions to fedtalk@federalnewsradio.com or call in your questions during the show by dialing: 1-866-468-1050 (toll-free).

Those in the Washington, D.C. area can listen to the show on their radios by tuning in to 1050 AM. Click on Federal News Radio for more details.




Delia Johnson Talks About The Difficulties Facing The EEO Process
August 19, 2008

Is the federal sector Equal Employment Opportunity (EEO) process losing its identity and autonomy? That was the question that was addressed during last week's edition of FEDtalk® with Delia Johnson, Director of the Office of Civil Rights at the International Broadcasting Bureau. Johnson, who is also Co-President of the Council of Federal EEO and Civil Rights Executives, spoke with co-hosts Bill Bransford and Lisa Bernstein about the pros and cons of the current state of federal sector EEO and some of the reforms that have been proposed in the recent years to improve the inner-workings of EEO in the federal government.

During the show, Johnson explained that some of the areas in question involve whether there is a conflict of interest for agencies to process EEO complaints filed against them, whether the quality of agency processing of EEO complaints needs more controls, and how improvements can be made with the timeliness of agency processing of EEO complaints. Also discussed was whether federal managers should be given more rights after an EEO complaint has been filed against them, as well as whether they should be given expanded opportunities to more meaningfully participate in EEO proceedings. Johnson said that one of the biggest challenges facing federal sector EEO today is to make sure that EEO offices are provided the autonomy to address the concerns brought to them so they are able to continue to take an unbiased approach and maintain credibility in their agencies.

To hear more about the discussion with Johnson, go to Federal News Radio at the Business of Government section and listen to the show in its entirety.




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FEDmanager’s Weekly Leadership Reflection
August 19, 2008

Leadership is that point of contact where responsibility is accepted.



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