IN THE MATTER OF ARBITRATION
Patent Office Professional Association
FMCS Case No. 00-01666
Robert T. Moore
US Department of Commerce,
Patent and Trademark Office
DECISION AND AWARD
ON THE MERITS
For the Patent Office Professional Association (POPA or Union) :
Raymond B. Johnson POPA Representative
David L. Robertson POPA Representative
For the US Patent and Trademark Office (Agency, Management or PTO ):
William Way, Esq. Associate Counsel, Office of General Counsel, PTO
The parties did not stipulate to an issue, and while the evidence raised important sub-issues which will be addressed, the principal issue is found to be:
Whether the Agency's removal of the grievant from federal service was "for such cause as will promote the efficiency of the service," as prescribed by 5 USC §7513 (a), and was otherwise in compliance with the laws, rules and regulations of the United States and provisions of the parties' Labor Agreement, and if not what should the remedy be?
Applicable Statutory and Labor Agreement Provisions
The statutory and Labor Agreement provisions of importance in this arbitration will be quoted where their relevance and their construction by the courts and the governing agencies charged with their enforcement are discussed.
General Background Facts: The US Patent and Trademark Office (PTO) is an agency within the US Department of Commerce responsible for granting patents and registering trademarks. The Patent side of the PTO is divided into Technical Centers which correspond to the nature of patent applications they examine. For example, a chemical-based patent application goes to one Technical Center while a mechanically-based application would go to another. Once in a Technical Center, the distinction between applications becomes yet more refined until a patent application is assigned to an "Art Unit," and then to an Examiner with specialized knowledge and experience in the primary "Class" and sub-class of the application.
The grievant was a Patent Examiner who began his PTO employment in July, 1996 at the GS 9 level. By education and training, he is an Electrical Engineer. At the time of his removal from service on August 30, 1999, he had advanced to GS 11. His responsibility had been to examine patent applications for devices and processes intended for various types of measuring and testing, which under the PTO Patent Classification System were designated as Art Unit 2858, Class 324 patent applications. Within this Class, the grievant's work was further limited to applications involving, as examples, an "internal combustion engine ignition system or device," or a "material property using thermoelectric phenomenon," or a device "using ionization effects."
Then, within each of these subclasses, such as the last, "a device or process for measuring or testing using ionization effects," the device or process would be further assigned to a sub-subclass such as "for monitoring pressure," with yet another breakdown into whether the monitoring was dependent on measuring fluctuations in the power emissions from (a) "a radioactive substance," (b) "thermionic emissions," (c) "a magnetic field," or still some other source. Altogether, the grievant was responsible for approximately 17 subclasses of Class 324 under each of which were as many as a score of very specific "method" and "purpose" subclasses based on the materials used, the means of making the measurements, or the objectives of the test. 1
What is important is that no patent applications for which the grievant served as an examiner had anything to do with his non-official obsessions. Those obsessions are with alternative sources of energy relying on non-conventional theories which have generally gone unrecognized, or been flatly rejected, in the conventional scientific literature. The more controversial of the grievant's interests are in theories which defy the accepted laws of physics. Central among these, but certainly not his exclusive area of interest, was cold fusion.
The Cold Fusion Controversy: Up until 1989, the possibility of cold fusion was an acceptable scientific topic among physicists and others in the world of nuclear science. That acceptance received a setback in 1989 following the public announcement by two recognized and respected electro-chemists at the University of Utah that they had achieved fusion using a battery connected to palladium electrodes submerged in heavy water (water, the hydrogen component of which has been replaced by its isotope, deuterium). Since less energy was claimed to have been expended by the battery than the amount of energy produced, the realization of a device which could steadily (versus explosively) produce more energy (output) than the amount needed (input) in its production seemed to have been achieved. 2
Scientists elsewhere immediately sought to duplicate this "table top" accomplishment of cold fusion, but with nary a replication. The simple formulation from Utah was a dud. The revolutionary announcement had been premature, and the importance of prior peer review was forever firmly associated with "scientific breakthroughs." It discredited all research into cold fusion and other non-conventional sources of energy, and pushed those who continued to pursue or support such ideas into the fringe or "kook" segments of physics and chemistry. More important, before the year 1989 was out, the US Department of Energy (DOE) pronounced cold fusion to be unworthy of further government financed research.
The grievant is a member of the fringe, though not personally experimenting with cold fusion or any other energy alternative. He is only an outside observer with strong beliefs about the place cold fusion and other yet to be proven sources of energy have in the future mix of the world's electrical power production. However, he does not reject the Newtonian laws of physics as some in the fringe may appear to regularly do. Rather, it is his position that the presently ridiculed theories he champions, or at least believes are sufficiently promising to warrant more serious scientific inquiry, will eventually be found to be consistent with accepted axioms of physics and chemistry, but how that will be done, he insists, just has yet to be discovered. Still, this puts him at odds with most scientists in those two fields.
It also placed him at odds with the prevailing policy of the PTO. Currently, patent applications for alternative or non-conventional sources of nuclear fusion energy, including cold fusion, are routed to Examiner Harvey Behrend. This routing has been going on for more than 16 years pursuant to a June 5, 1989 memo to all Group Directors with the subject; Cold Fusion Applications. It reads:
Although the media attention relating to cold fusion has diminished, we are just now beginning to see a large number of applications relating to this subject. Although we are attempting to identify all of these applications in the pre-examination screening process, there is the possibility that a few applications may slip through without being identified. Please have your examiners be on the look out for any application that may relate to cold fusion. Some of the areas where a cold fusion application might be filed are:
Fuel Cells class 429
Electrochemistry class 204
Power plant class 60
Radiant energy class 250
Helium production class 423
If one of your examiners should receive an application related to cold fusion, he or she should check to make sure the words "COLD FUSION" are stamped on the file wrapper. If not, the application should be referred to Licensing and Review [ ] for marking. Also, any action on one of these applications should be routed through the Group 220 Director's Office and the Office of the Assistant Commissioner for Patents prior to mailing.
The Agency's witnesses avoided directly answering the question of what explicit instructions were given Mr. Behrend and other examiners in the "fusion" group on how to handle applications for cold fusion patents. However, their testimony and demeanor when questioned were clear enough.
Figuratively speaking, Mr. Behrend has a "rejected" stamp he wields on patent applications which claim to achieve cold fusion. That is, whether well founded or not, the PTO has a bias against the concept and theories of cold fusion. Largely because they defy the Newtonian proposition that there is "no free energy" or "perpetual motion" within the bounds of physics, the PTO considers cold fusion to be "inoperable technology." The evidence of this will become more concrete shortly in connection with the grievant's pro-cold fusion activities.
As for those activities, the Agency did not claim in the Proposal to Remove that the grievant's belief in the possibility of "free energy" affected anything he did in accepting or rejecting patent applications assigned to him. Among other things, those applications had nothing to do non-conventional sources of power. All applications channeled to the measurement group depended on conventional sources of electrical, magnetic, and other energy.
The grievant's obsessions with alternative and scientifically controversial energy sources were no secret. And, they were an embarrassment to the PTO. Always as simply a private citizen in a Quixote crusade, he regularly resorted to the Internet and took advantage of public and private conferences and other gatherings where long term and future energy needs were on the agenda. By both means, he advocated greater public and private funding for research and experimentation in the fields of new or non-conventional energy, and sought recognition in the established scientific community of the legitimacy of those fields of research. Without that recognition, the prospects of either private sector investment or public funding were slim to the point of nonexistent. His principal soapbox was the Integrity Research Institute (IRI), a nonprofit organization which he formed and ran as its president with a handful of members and volunteers.
There were and are forces as adamantly opposed to accepting the viability of the principal areas of that research as the grievant is their advocate, especially when the subject is that of "cold fusion," a phrase often used here just as in the PTO memo, to embrace not only that idea, but the full spectrum of searches for free, or at least low cost, sources of energy. The main watchdog out to discredit the grievant and other, more prominent like-minded advocates, was Robert Park. He is the Communications Director of the American Physical Society, a respected association of mainline physicists. Mr. Park is also the author of the popular book, Voodoo Science, which with little mercy, debunks cold fusion and all other concepts of "free energy."
The Removal Proposal: The Removal Proposal was prepared by Sydney Rose, the PTO Labor Relations Specialists responsible for disciplinary matters. It was given to and signed by Margaret A. Focarino, the grievant's second or third line supervisor, on May 7, 1999 and charged the grievant as follows:
On March 9, 1999, you contacted the Department [of Commerce,] Office of Administrative Operations (OAO) by telephone. You spoke to Margaret House, Support Services Staff, and asked her about the procedures for reserving conference space for a private function. You were told that space was not usually reserved for private functions but that you could file a written request [with Telita Holloway?] which would be reviewed and considered. You called again and indicated that you come to the Department to meet with Telita Holloway that afternoon. At approximately 5:00 p.m. that afternoon, you met with Ms. Holloway and indicated that you were a PTO employee. For the next hour and a half, she showed you the Department's auditorium, lobby and various conference room. You never indicated to Ms. Holloway that you were considering reserving space at the Department for a private function to be run by the Integrity Research Institute. However, you reserved the auditorium, lobby and four conference rooms at the Department for April 29, 30 and May 1, 1999, on behalf of the PTO.
You posted information regarding a Conference on Future Energy on the Internet. The website indicated that [ ] the First International Conference on Future Energy (COFE) was 'in cooperation with the U.S. Dept. of Commerce.' The notice contained an electronic brochure form which indicated that the 'Integrity Research Institute under the auspices of the U.S. Department of Commerce at 14th and Constitution, Washington, DC, presents the first COFE in the main Auditorium. Lectures will extend from 9 AM to 5 PM daily and workshops on Saturday from 9 AM to 5 PM.' The posting indicated that the Saturday workshops would cost $30.00 each, and there was a $20.00 charge for videotapes and a $30.00 charge for the book 'Proceedings of COFE'.
You posted a message on the Internet which indicated the following:
Interested in advanced energy technologies that won't produce global warming? Then don't miss attending the First International Conference on Future Energy, cosponsored by the U.S. Department of Commerce and Integrity Research Institute! . . .
The Conference was common knowledge in that Matthew Heyman, Public and Business Affairs, National Institute of Standards and Technology sent Richard Maulsby, PTO Public Affairs, an e-mail on March 22, 1999, in which he provided Mr. Maulsby with information about the conference and [the] promotional materials [ ] 'under the auspices of the U.S. Department of Commerce.'
* * *
Because the [DoC] reservation had nothing to do with official business, I sent you an e-mail indicating the that the reservation had been canceled. You responded that you were surprised by the canceling of a 'PTOS [PTO Society] event.' . . . I was contacted by e-mail from Matthew Kaness, President of the PTOS who indicated that the PTOS was not cosponsoring the COFE and had not been approached about cosponsoring the conference.
On March 29, 1999, you sent me an e-mail in which you indicated that your 'choice of wording was incorrect. COFE was potentially a PTOS event and the approval process had just begun. Our [PTOS] board meeting is another week away and that would have been the next stage in the development of the event.'
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Reason 1: Violation of Conflict of Interest Regulations
Government-wide Standards of Conduct regulations applicable to Agency employees prohibit a Federal employee from using his Government position or title in a way that could reasonably be construed to imply that the Agency sanctions or endorses his personal activities or those of others. 5 CFR 2635.702(b). These regulations also prohibit Federal employees from using public office for private gain or the gain of nonprofit organizations of which the employee is affiliated. 5 CFR 2635.702(a).
You used your employment with PTO in order to reserve the [DoC] space for COFE. Since your were going to charge participants of the COFE for workshops, publications and videotapes, you or IRI would have gained by the participation in a conference for which you reserved space using your PTO employment. Your failure to identify the nature [non-conventional source of energy] of the conference to Agency [DoC] employees and your reserving the space for the conference as a PTO employee represents a violation of the above-cited regulations.
* * *
Reason 2: Misrepresentation
You represented in the information promoting the COFE that the conference was cosponsored by the [US DoC]; was presented in cooperation with the [US DoC] in the Department's main auditorium. You never requested nor received permission from any Agency official to indicate that the conference which IRI was presenting was cosponsored or otherwise endorsed by the Agency.
This was a clear misrepresentation of the Agency's role in the conference (which was no role). Although the posting of this misleading information on the IRI website could be construed to be off duty conduct, there is a direct nexus between this activity and your employment with the Agency.
The misrepresentation of the Agency's role in your conference was conduct prejudicial to the Government as it gave the impression to anyone interested in the conference or reading IRI's website that the conference for which you or IRI would receive money was sponsored by a Government Agency. It gave the impression that a Government Agency was endorsing a particular type of energy producing technology and a conference which you or IRI would financially benefit. The web page posting which stated that the conference was cosponsored by the [US DoC] indicated that the web page was viewed 52,738 times. Furthermore, PTO was contacted by NIST about your claim that the [DoC] was sponsoring your conference. Clearly, your misrepresentation must be viewed as more serious and adverse to the Government in light of the fact that it was widely disseminated.
I also note that when I informed you that your reservation of Department space was canceled, you indicated to me that you were surprised at the cancellation of a 'PTOS event' and that the conference was being presented in cooperation with the [PTOS]. However, the president of that organization indicated that no such authorization was provided nor had the Society been approached to obtain such authorization. You later admitted to me that you had been mistaken in describing the Society's cooperation. Your conduct throughout March demonstrated that you have been untrustworthy and devious in your attempt to obtain the Department's space and then to excuse your behavior.
In proposing your removal, I have considered your lack of prior discipline, your three (3) years of employment with the Agency and your fully successful performance during that time. There have been several incidents in the past for which you were counseled about using your official position in an Internet posting in an effort to recruit 'infinite energy technologists' in order to 'infiltrate' the PTO or bothering a coworker to such an extent that you were banned from a part of the PTO's premises. These counselings should have put you on notice that you could not use your PTO position to advance your personal interests. Because these counselings were informal, i did not consider them in determining the appropriate corrective action to propose.
However, after considering your relatively short career at PTO and the seriousness of your misconduct and the misuse of your position as a PTO employee, I have no recourse but to propose your removal to promote the efficiency of the service.
Production of Documents and Witnesses
The Union Pre-Removal Requests for Evidence and Access to Witnesses : Under the parties' Labor Agreement, Article 12, Disciplinary and Adverse Actions based on Conduct, has two sections of direct relevance:
Section 4 provides in pertinent part:
The employee and/or his representative shall receive all evidence relied upon by the [PTO] in proposing any disciplinary or adverse action. The [PTO] shall also provide the employee, upon request, all evidence that is favorable to the employee and related to the reasons for the proposed action. . . .
Section 5 provides in its entirety:
Where the Office has relied upon witnesses to support the reasons for the proposed action, the Office will make those witnesses available, to the extent it has control over them, for the employee or his/her representative to question.
The May 7, 1999 Removal Proposal flagged as evidence against the grievant both documents allegedly authored by the grievant, and witnesses to whom he allegedly made representations in obtaining the use of DoC facilities for the COFE conference. In preparation for presenting the Deciding Official with a defense of the grievant and a challenge to the severity of recommended removal, the Union filed a request on May 21, 1999, and a supplemental request on June 9, 1999, for numerous documents and access to witnesses.
As both requests explained:
The information requested [ ] is for the purpose of evaluating whether [the grievant] is being treated equitably in terms of either the charge or the proposed penalty.
As will be discussed more fully shortly, the Union relied for authority in making the request principally on 5 USC §7114(b)4 and Article 3, Section 2 of the Labor Agreement, but freely sprinkled reference to Article 12, Section 5 when it came to making available for Union interviews those persons the Agency had relied on for its charges against the grievant.
On July 14, 1999, the Agency responded to the request for documents by claiming either that there were "no records," the request asked for "attorney client privileged information," or "the Union request [was] not specific enough to permit the Agency to make a reasonable judgement as to whether the information must be disclosed under 5 USC §7114(b)(4)." Thus, of 18 documents or records requested by the Union, only portions of four were turned over by the Agency. It claimed that the documents that it produced were all that were required of it under 5 UCS §7114(b)(4).
As for the production of the witnesses to the grievant's alleged conflict of interest and misrepresentations, the Agency refused to make them available to be questioned for the following asserted reason:
The Agency explicitly denies that Article 12 [Section 5] in its entirety constitutes a past practice. Because the Agency has no collective bargaining agreement with the Union and because Section 5 [which was enforced or otherwise found applicable in] the Johnson award does not constitute a past practice, the Agency will not make the individuals requested in either the May 21 or June 8 information request available for questioning.
On July 29, 1999, the Union challenged the truthfulness of the Agency's multiple "no records" responses. For some, it cited specific prior arbitrations establishing Agency record keeping systems, and for those records it sought so as to show a disparity in penalty, it cited one or more prior arbitrations involving the same or similar conduct as alleged to have been engaged in by the grievant. Ms. Rose or others in HR rejected the Union's accusations, and the Agency released no further documents or other information to the Union, nor did it back off its refusal to make the requested witnesses available for interview.
Rather, on August 25, 1999, the Deciding Official, Nicholas P. Godici, then Deputy Assistant Commissioner, signed the Removal Decision. On the matter of the Union's efforts to obtain documents and to interview those person allegedly supplying the incriminating evidence against the grievant, the Decision recited:
On July 14, 1999, The Agency responded to the two information requests [from the Union]. . . . That response clearly indicated that you had two weeks [ ] to prepare, schedule and hold an oral reply [to the Removal Proposal]. . . . Instead of providing a reply by July 29, 1999 (14 days after July 15), your representative submitted a memorandum which . . . disputed information provided by the Agency. It also requested further information and another extension of time to reply. I have reviewed this third request, even though it was late, and I find no reason to provide further information nor to provide any further extension of time for you to reply.
Enter the Arbitrators. On September 8, 1999, the Union gave the Agency its Notice of Intent to Arbitrate, with a copy and fees filed with the FMCS. 3 On November 3, 1999, the parties jointly requested a panel of arbitrators from the FMCS. Two days later, the FMCS provided a panel of seven arbitrators from which the parties selected one of the candidates in early March, 2000.
The first arbitrator declined the appointment, and the parties then selected a second arbitrator, Earl W. Hockenberry, Jr., who accepted his appointment. Straight off, he was confronted with the parties' ongoing dispute over the right of the Union to interview eight witnesses who either the Agency had referenced in the Removal Proposal, or the Union believed had information material to the defense of the grievant. In addition, there was the list of documents which the Union sought either for their bearing on the issue of good cause, or issues over the severity of imposing the ultimate disciplinary penalty of removal.
In a decision and order entered on January 31, 2002, Mr. Hockenberry accepted the arguments of the PTO against its having to produce one of the eight witnesses wanted for interview by the Union, and some documents, largely on the basis of the Union having failed to "establish a 'particularized need' for the information by articulating, with specificity, why it need[ed] the requested information, including the use to which the union [would] put the information and the connection between those uses and the union's representational responsibilities under the Statute [5 USC §7114(b)(4)]." However, as for seven of the eight witnesses sought to be interviewed, and most of the documents and other information sought, Mr. Hockenberry found the Union met its burden and he ordered the Agency to make production.
Despite this order, the Agency continued its refusal to produce the identified seven individuals for interview and to resist production of the documents sought with arguments that it had either produced the materials earlier, or that others were irrelevant. The Agency also continued to claim that certain information sought did not exist, was unavailable, or was outside the possession and control of the PTO.
While these disputes grew and the Agency's positions hardened, Mr. Hockenberry fell ill and asked the FMCS to relieve him of further responsibility for this arbitration. On March 19, 2004, the FMCS, with the agreement of the parties, appointed the third, present arbitrator to assume responsibility for bringing this case to a final resolution on its merits. Again, first on the agenda was the parties's squabble over whether the Agency had complied with Mr. Hockenberry's January 31, 2002 decision and order.
A copy of the decision and order was requested, and each party asked to explain its contention as to whether there had or had not been compliance. The results were clear indications that the Agency had fallen short of compliance with most of the order, and was wanting in its excuses for doing so. In telephone conference calls that followed, the Agency initially indicated that it was inclined to call for the re-litigation of the Labor Agreement and statutory bases of the Hockenberry order.
In response, the Agency was advised that I was familiar through prior service with its position that no labor agreement existed between it and the POPA, and that there was absolutely no likelihood that it could persuade me to produce a decision counter to what every known arbitrator, the FLRA, the MSPB, and the 4th Circuit had found. That would mean that, despite its wish to the contrary, I would find that the Agency was saddled with the Labor Agreement, and especially with Article 12, Section 4 and 5.
The Agency was further advised that I would be delighted to re-litigate whether 5 USC §7114 (b)(4) controls what the Union can and cannot receive, including the right of the grievant and his Union representatives to confront through pre-hearing interviews the witnesses against the grievant. It was made clear that I believe §7114(b)(4) has no bearing on the discovery that is permissible when a removal case arrives before me as an arbitrator. At that point, the rules I would follow under my authority to manage this arbitration would be more akin to the Federal Rules of Civil Procedure, which provide for wide ranging discovery not only of documents and witnesses directly relevant to the issues, but which might lead to the discovery of such relevant evidence.
On understanding these views of the third arbitrator, the Agency rethought its inclination to argue for further restrictions on what and who it had to surrender to the Union for its perusal and oral examination, and decided it was further ahead accepting the limits of the existing §7114(b)(4) based order. As for the Union, it chose to remain mute on the issue of rearguing its demands for all the documents and witness access made while the Removal Proposal was still pending. Instead, it indicated that it would be satisfied with Mr. Hockenberry's narrowly tailored order, because both it and the grievant were anxious to get to a resolution of his removal on its merits.
Accordingly, by an Order of Enforcement and Notice of Likely Consequences of Non-Compliance entered May 13, 2004, the Agency was told to fully comply with Mr. Hockenberry's earlier order and both parties were reminded that treating the disclosure of exculpatory or mitigating information over which management has control or knowledge as a game of "hide and seek" would not be tolerated.
Rather, attempts to do so will be met with sanctions that may well cripple the offending party's case. In short, the parties should have no doubt about the resolve of this arbitrator to assure a fair and complete hearing during which all relevant facts developed by the witnesses' testimony and through documents that are placed in the record with the expectation of a "fair and balanced" presentation of the facts of each party's case from which it will be decided [ ] whether good cause existed for discipline, and if so, whether the penalty of removal was just and fair and otherwise in compliance with the Douglas factors applicable to the situation.
With respect to the specifics of the May 13, 2004 Order, only the production of witnesses for Union interview and one item of documentary evidence remain of consequence. The witnesses ordered produced and the consequences of non-production or non-cooperation were spelled out:
Witness Interviews : On the day after the joint conference call held on May 10, 2002, the PTO should have started to locate and contact the following witnesses as to their availability for [Union] interview. Whether that information is or is not complete on the date of receipt of this Order, the PTO shall contact the [Union] representatives involved [ ] and begin filling in the date and time slots of the following schedule[:]
Production for Interview
Witness Employer and Status Interview Date Duration
Margaret House DoC, retired 1 hour
Telita Holloway DoC, active 2 hours
Catherine Teti PTO, active 3 hours
Matthew Heyman DoC, NIST, active 3 hours
Margaret Focarino PTO, Proposing Official Unlimited
Matthew A. Kaness PTO, quit, may be at UVA 1 hour
Sandra O'Shea PTO, active, 1st Line Supervisor Unlimited
Consequences of Non-Production or Non-Cooperation of a Witness : If any of the above persons is not produced by the PTO for the purpose of being interviewed, or is produced but does not freely cooperate and provide responsive answers to the questions posed to them, the consequences the PTO may expect are:
a. Any reference in the Proposal to Remove, or in the Notice of Removal, to information provided by, or any occurrence involving, a person listed above who is not produced for interview or who fails to cooperate and provide responsive answers to the questions posed by the POPA could:
i. Be stricken and held of no force or effect with regard to establishing good cause for [the grievant]'s removal from federal service, or
ii. Not be heard as a witness on behalf of the PTO.
Document Production. By the date specified, the PTO shall deliver the documents or other materials and information listed below[:]
Request No. Nature of Document Date Ordered
17 Case Files of Prior DoC Conflict of Interest by 06/14/04
Consequences of Non-Production may well be the acceptance of an inference that: "All conflict of interest cases that have ever risen within the PTO or the DoC and its subordinate units have resulted in either no discipline, or discipline which never exceeded a 5-day suspension, and generally resulted in only reprimands or written warnings, even in cases more egregious than that alleged against [the grievant].
* * *
Special Consideration Given Information Request No. 17 . In response to the PTO's claim that all conflict of interest allegations or cases arising within the PTO are referred to the Ethics Officer or Counsel within the Office of the General Counsel of the [DoC], which office also processes or otherwise deals with conflict of interest allegations or cases arising in other bureaus, offices and activities under the [DoC], certain concessions have been made.
First, the date for production of conflict of interest files has been extended to June 14, 2004, [ ]. Second, the names of the individual alleged in any case of having a conflict of interest may be struck or masked, [ ].
Third, by this Order, the PTO can confront the custodian of the conflict of interest records with the consequences which will befall the PTO if it is unsuccessful in delivering the requested materials. If the custodian refuses to cooperate or assist the PTO in the production of the requested materials, either the PTO or [the Union] may obtain from the Clerk's Office of the US District Court in Alexandria, VA a blank form for a civil action subpoena duces tecum, fill in the name and title of the custodian and the other information called for thereon, and attached the best description possible of the materials or files desired, and petition this arbitrator to fashion therefrom and issue a subpoena for the custodian to appear before this arbitrator with the records sought for a determination as to whether good cause in law or otherwise exists for not producing for use in this arbitration the materials sought.
In this connection, and for benefit of both parties as well as the custodian of DoC conflict of interest records and files, enclosed with this Order is a copy of a recent US District Court decision explaining both the authority of an arbitrator to issue such a subpoena, and the procedures the pursuing party must follow to obtain its enforcement by the US District Court having jurisdiction over the custodian [ ].
Removal on Its Merits
Recall that besides the two actionable charges of Conflict of Interest and Misrepresentation, the Removal Proposal referenced two prior counselings by stating:
There have been several incidents in the past for which you were counseled about using your official position in an Internet posting in an effort to recruit 'infinite energy technologists' in order to 'infiltrate' the PTO or bothering a coworker to such an extent that you were banned from a part of the PTO's premises. These counselings should have put you on notice that you could not use your PTO position to advance your personal interests.
Tagged to the end of this reference to prior counselings was the disclaimer that, "[b]ecause these counselings were informal, I did not consider them in determining the appropriate corrective action to propose." Still, accompanying the Removal Proposal sent to the Deciding Official, Mr. Godici, were the full files of the "Job Notice" incident and, for shorthand, the "Behrend Visit," the two incidents referred to in the Proposal. But, in addition, the full investigative file of a third incident, not mentioned in the Proposal, the grievant's "DoE Hearing Testimony" was also given to Mr. Godici, along with other materials on the grievant's cold fusion activities.
More important, while Ms. Focarino, both in the written Proposal and her testimony, professed not to have considered any of the earlier counselings as other than putting the grievant on notice not to mix his private pursuits and interest with his official duties and position, Mr. Godici showed no restraint in the influence he gave these peripheral files, but found the three prior incidents pivotal, and the other materials important, in deciding that the only option he had was the grievant's removal.
These influences were not reflected in the Removal Decision Mr. Godici signed because Ms. Rose drafted both the Removal Proposal for Ms. Focarino and the Removal Decision presented to Mr. Godici. Thus, the latter document does not reflect the importance Mr. Godici actually gave to what he found in the investigative files, but simply states that, "I understand that you have been counseled in the past against using your PTO position to advance your personal agenda or interests."
Instead, the importance of the files sent to Mr. Godici on his thinking and how and why he reached his decision to remove the grievant form federal service was revealed by his testimony. But before getting to that testimony, the actual conduct of the grievant in the three incidents needs to be explained.
The Three Prior Incidents
Incident 1 - The Job Opportunity Notice . Some time in late January or early February, 1998, the grievant prepared a "Notice: Job Opportunity," which found its way onto the Internet. The Notice invited "Infinite Energy technologists" to "infiltrate" the PTO and join the grievant in making "policy changes." Specifically, it declared, "Our goal is to help obtain patent protection for new emerging technology that may be regarded as 'inoperable' by those without your background." In his Notice, the grievant not only gave the normal PTO address for aspiring patent examiners to send their resumes and applications, but:
Also, if you like, many insiders like myself are able to hand-carry resumes to our supervisors. Therefore, I will also accept resumes sent to Integrity Research Institute, 1422 K Street NW, Suite 204, Washington, DC, and pass them on to my PTO supervisor or the appropriate PTO art unit supervisor if possible.
The Notice was prepared on a word processor and according to the grievant, FAXed to friends, one of whom, Eugene Mallove, the editor of an alternative energy
advocacy Internet website, posted the notice on that site with the notation:
The job notice was sent to me by USPTO staffer, [the grievant]. He gave me permission to post this electronically.
A copy of the original FAX version of the notice was brought to the attention of the PTO by an unidentified attorney for a "patent applicant." It was included in a routine supplemental filing received on February 14, 1998 by the patent examiner assigned to the application, the nature of which is unknown and thus the record is missing a possible explanation of why it contained the prominent handwritten notation:
DOCUMENTARY EVIDENCE of Internal PTO Dissent about Art Group 2200 [fusion] policies.
The Internet posting was found on or shortly after February 26, 1998 by the grievant's immediate supervisor, Sandra O'Shea, or Ms. Rose, using a Deja News search engine inquiry for the grievant's name.
Incident 2 - Speaking at a DOE Hearing . In the same or another DejaNews
search of the Internet for the grievant's name, Ms. O'Shea and Ms. Rose learned from a second posting made by Eugene Mallove that the grievant had made a presentation to the Secretary of Energy at a February 19, 1998 public hearing having, not surprisingly, to do with the country's energy resources and needs. The Mallove posting is not in the record but must have included the grievant's advocacy for the need for DOE to recognize the legitimacy of cold fusion and other alternative, non-conventional sources of energy. In any event, on February 26, 1998, Ms. O'Shea sent a memo to the DOE:
This is to inquire about [the grievant's] testimony at the hearing last Thursday [February 19, 1998]. [the grievant]'s [Mallove's?] e-mail message about his testimony got posted on Dejanews. Since he is an employee at the PTO, it would appear from the e-mail that [the grievant] may have represented himself as a patent examiner at the hearing which would [have been] inappropriate. I would like to obtain the transcript of the hearing so that I may make a determination of his behavior. . . .
Dutifully, the DOE provided Ms. O'Shea and Ms. Rose with the transcript, the portion of which covering the grievant's remarks showed:
MODERATOR WALKER: And our final speaker for the evening, [the grievant], who is a Professional Engineer with Integrity Research Institute.
[THE GRIEVANT]: My proposal is quite simple. I would like to propose that the Department of Energy establish a council, a committee, or a department, specifically for overseeing the emerging technologies.
Establishing an office for emerging technologies I feel is the highest priority that will actually change the trend of the national development of known resources. We're talking about non-conventional, cold fusion, zero point energy.
I have copies of the first pages of several patents in these categories. For example, the Patterson cold fusion cell has almost a dozen patents; the Bell Telephone Labs-Lucent Technologies nuclear battery to last 25 years; hydrogen gas fuel cell from Stan Myers, which converts the standard automobile engine into a hydrogen fuel cell; in other words, specifically, 'burning hydrogen gas or running on water,' [ ]; and the Korea vacuum arc discharge.
There are many emerging technologies. I didn't mention the Frank Meads zero point energy patent, the first one that has just come out. I have been lecturing and publishing in this area for 18 years. And, I can honestly say since we just produced a two hour documentary on free energy,['T]he [R]ace to [Z]ero [P]oint,['] these technologies are so prominent now, they basically exist [as] an alternative field.
And having someone prominent, such as Dr. Edmond Storms, a physicist like Dr. Gene [Mallove?], who are not beholding to the existing bureaucratic organizations. I guarantee you'll see a remarkable shift in our evolution in energy technology.
I'd be happy to leave these with you.
SECRETARY PENA: Good. Thank you very much.
Let me say that the President's budget has called for a very substantial increase in R&D and in technology development and deployment. And the Department of Energy, assuming that Congress supports our budget request, will see some significant increases there. And so we are giving some serious thought about how we can be more effective in this area.
Your call for a specific office - -
[THE GRIEVANT]: It has to be emerging technologies.
SECRETARY PENA: Yes.
[THE GRIEVANT]: It has to be that kind of alternative.
SECRETARY PENA: I understand.
[THE GRIEVANT]: Even the military in solicitations [for proposals] uses 'non-conventional.' I actually was instrumental in the 1980s in getting 'non-conventional,' the phrase 'non-conventional' established in [professional] publications. The military then used it to solicit proposals.
That basically activates a whole group of scientists who are not publishing, not receiving recognition in the known press.
SECRETARY PENA: Good idea.
[THE GRIEVANT]: And, therefore, you actually bring them out in the open. You bring them out into the open, where basically they now don't have funding, they don't have the recognition, they don't have the endorsement. Their technologies are too new to [have been] integrated into society with our known laws of physics.
SECRETARY VALONE: I understand.
[THE GRIEVANT]: And, yet, I can't say that honestly because I believe that the physics can be explained. Even the Patterson fuel cell now is being understood slowly, but it's a matter of using the technology [now] and understanding it later.
SECRETARY PENA: Good point.
[THE GRIEVANT]: It's basically what I think our society and our world need. Global warming can't wait for us to understand all of these technologies.
SECRETARY PENA: We speak to this indirectly, not the question of focus you made and a particular office, but the need for us to develop technology that will expand our long term energy options, in Goal 4, Objective 2.
But listen, you made a very good suggestion. We'll give it thought. So, we thank you very much for the idea.
This was the total of the grievant's presentation and the resulting exchange of comments and clarifications between him and Secretary Pena.
Counseling about Incidents 1 & 2 . Since Incidents 1 and 2 occurred within a couple of weeks of each other, and perhaps because their Internet distributions were discovered in the same DejaNews search, both of these incidents were subjects of a March 30, 1998 investigatory interview of the grievant conducted by Ms. O'Shea and Ms. Rose and an additional HR staffer, Ms. Le. The first matter he was questioned about was the "Job Notice" which he admitted writing but denied that he had posted on the Internet as he was being accused of doing by Ms. O'Shea and Ms. Rose. He maintained that he had sent it by FAX and US Mail only to a few friends who he knew were considering federal government employment.
The grievant openly acknowledged that what he had meant by "infiltrate" the PTO was to have friends "who feel that there's an emerging technology that is not being recognized" by the PTO, join the ranks of patent examiners to turn this state of affairs around. As the Notice had put it, "Our goal is to help obtain patent protection for new emerging technology that may be regarded as 'inoperable' by those without your background." In response, the Agency's record of the interview showed that Ms. O'Shea (or maybe Ms. Rose) asked:
Q. [D]o you disagree with 35 USC §101?
A. I agree with 101. 4
It appears that only because in his Notice the grievant provided the IRI address with the promise that he would hand carry the materials to HR, did he received "counseling," that he best confine himself to examining patent applications and leave recruiting to HR.
As for the DOE hearing, as Ms. O'Shea testified, the transcript of the grievant's testimony acquitted him of having identified himself as a Patent Examiner, or worst yet, as appearing on behalf of the PTO, things that she indicated in her request for the transcript she feared. However, rather than forget the whole matter of his testimony, Ms. Rose asked, or was prepared to ask, without reference to either statute or regulation: 5
Are you aware of the ethical violations of being a government official [employee?] and representing yourself as something else [like an interested private citizen] in front of another government agency? 6
Since the grievant had made no misrepresentations to the Secretary of Energy as to who he was or in what capacity he was speaking, and evidently having found no basis for the proposition that it is ethically or otherwise wrong to give your views as a private citizen, Ms. Rose and/or Ms. O'Shea resorted to his time and attendance record. It dis-closed that he had claimed a full eight hours of PTO work on February 19, 1998. While the hearing record is not totally clear, it appears that he either used his lunch hour to go to the DOE to register and get what was the last speaking slot for the hearing, or he skipped lunch and left work early (4:00 PM instead of his scheduled 5:00 PM departure time) to both register and speak.
In any event, the counseling appears to have consisted of reminding the grievant of the necessity of taking annual leave when departing work early for personal business and requiring him to do so retroactively for February 19, 1998. This despite his explanation given in the investigatory interview to Ms. O'Shea, Ms. Rose, and dutifully recorded by Ms. Le, during the following exchange:
Q. The Hearing was on a Thursday, from 1:00 to 5:00pm, no leave was taken for the absence. Why wasn't leave requested?
Q. (When asked by [Ms. O'Shea] ' you attended [the DoE conference] but no leave was taken?')
A. Went during lunch hour, usually take lunch 1-2 pm
Normally I don't take [a] couple of hours for comp time
I was gone perhaps one hour most
Q. ([Ms. Rose] stated [the grievant] was gone 1-2 pm at the DOE; then returned later that afternoon for [another] hour at the DoE).
A. I did not request leave for that one hour. I worked a lot of extra hours and [do] not claim time.
Several hours wait, they did not let me speak right away.
I didn't think about (to take leave). I was gone for less than an hour, must have left around 4 pm
Q. ([Ms. Rose] pointed out that the testimony was over at 5 pm and [the grievant] was the last to speak)
A. I must have left at 4:30 pm.
I realize I should've requested leave
Q. ([Ms. Rose] asked whether he conceives this as government business)?
A. Not at all;
This is the first time I disappeared for an hour and I got caught.
While more will be said later about this matter of "failing to take an hour of annual leave," one aspect of this back-and-forth needs resolving here, lest it be forgotten later. The Agency sought at the hearing to imply from this last answer of the grievant's recorded by Ms. Le that he was saying that he regularly skipped out from work an hour early and only on this occasion was caught. However, the context of the question and the shorthand nature of Ms. Le's transcription strongly suggested that the grievant's answer was with a pause, and thus more in the nature of, "this is the first time I disappeared for an hour, and I got caught," as in "what lousy luck."
The Agency was invited to resolve the question by calling Ms. Le to explain whether a comma was due in the midst of the sentence or not. Since she was not called to testify, and the burden of proof lay with the Agency, it is assumed that the grievant's answer was broken with a pause which should have been reflected by a comma, and that his answer was not one which would tarnish his three years of "fully satisfactory" annual job performance ratings by an admission of habitual time and attendance fraud.
Incident 3, Lobbying Mr. Behrend . Just as the grievant's advocacy of cold fusion was well known within the PTO by those who cared one way or the other, so too was the PTO's policy since 1989, that cold fusion remained an "inoperable" concept and thus inventions claiming to be able to accomplish it were unpatentable, as well as was the role of Patent Examiner Behrend's in implementing that policy.
Since this Agency's position ran counter to the grievant's beliefs in the potential of cold fusion becoming a reality, he visited Mr. Behrend's office in February or March, 1998 to ask him to consider attending a conference on cold fusion. From the dates and sequences of what followed, it appears that Ms. O'Shea learned through word of mouth of the visit. It also appears that the grievant and Mr. Behrend were friends, on a first name basis.
In any event, on April 2, 1998, without talking to Mr. Behrend about his encounter with the grievant, Ms. O'Shea sent the grievant the following "ban and bar" ultimatum with regard to future visits to Mr. Behrend's office:
This is to inform you that you are being restricted from entering 3600 space in [the PTO Building], Suite 401. If you have any reason to enter this space, you must first obtain permission from me and then Mr. Garrett [a supervisor of Mr. Behrend's] will be called and consulted about the appropriateness of your entering the aforementioned space.
Besides having not spoken with Mr. Behrend before sending the ban and bar notice, Ms. O'Shea seems not have consulted with HR. When after the fact she informed Ms. Rose what she had done, Ms. Rose must have told her she needed to "paper" the incident. This led to the following April 14, 1998 written response from Mr. Behrend to what seems to have been Ms. O'Shea's request that he memorialize the grievant's visit to his office:
Re: Recent Conversation with Tom Valone
Tom was one of the examiners in Group 2200 who have dropped by my office from time to time to discuss the subject of cold fusion.
Tom recently brought a publication from a cold fusion advocate for discussion.
During the discussion, Tom asked if I was going to the upcoming cold fusion conference in Vancouver. I told him I wasn't, that the last I heard was that the Examiner's Education Trip Program had been eliminated. Tom indicated he felt it was important enough for me to go to the conference that he would be willing to take care of expenses and donate sufficient leave to me. I told him I didn't believe that such would be possible or permissible.
Three days later, Ms. O'Shea received the following e-mail response to an inquiry she made of Robert Garrett, the second line supervisor of Mr. Behrend:
Subject: Activities of Tom Valone
Examiner Harvey Behrend of TC 3640 examines patent applications in the area of cold fusion. Examiner Behrend's supervisor, Charles Jordan, recently came to me to complain that examiner Tom Valone from your TC has been making visits to examiner Behrend for the purpose of discussing examiner Behrend's examination of cold fusion applications. More specifically, examiner Valone is attempting to convince examiner Behrend that the PTO's longstanding position that cold fusion is inoperable is incorrect. Mr. Behrend has also advised me that examiner Valone, in a recent visit, offered Mr. Behrend money to attend a cold fusion conference in Canada.
Examiner Valone's visits have become an annoyance to examiner Behrend, and I have requested that you instruct examiner Valone to discontinue these activities.
Also on April 17, 1998, Ms. O'Shea received a Memorandum from Charles Jordan, the Supervisory Primary Examiner (SPE) referred to above, and Mr. Behrend's immediate supervisor, the text of which was as follows:
Mr. Harvey Behrend, one of the examiner's in my Art Unit, works in class 376 and examines applications directed to 'cold fusion.' Mr. Behrend reported to me in late February or early March that [the grievant] had contacted him regarding cold fusion and wanted to discuss a publication from a cold fusion advocate. From the gist of the conversation with Mr. Behrend, it appears that [the grievant] was trying to convince Mr. Behrend to change his position, and the position of the Office, on cold fusion. Mr. Behrend also relayed to me that [the grievant] indicated that he felt that an upcoming conference on cold fusion in Vancouver, Canada was so important that he wanted Mr. Behrend to attend and that he would pay the expenses himself and donate leave to Mr. Behrend so that he could attend.
From the conversation with Mr. Behrend it appeared to me that [the grievant] was lobbying against office policy on cold fusion and that his offer to pay for Mr. Behrend to attend the above conference was clearly inappropriate for a Patent Office employee. I immediately informed the Director of Group 3640, Mr. Robert Garrett, of the above conversations and the actions by [the grievant].
The Reasons for Removal
Subsequent to the three incidents for which the grievant received two counselings, and the ban and bar order, his determination to promote scientific and public recognition of cold fusion and other non-conventional energy potentials led him to actions which resulted in his removal, allegedly for Conflict of Interest and Misrepresentations.
The sequence of events started innocently enough. Through his IRI, the grievant arranged a major presentation of alternative energy source theories under the sponsorship of the Department of State. Specifically, by letter of October 16, 1998, the State Department sent the grievant the following:
I would like to take this opportunity to extend a formal invitation to initiate a conference on Free Energy at the Department as a guest of the Open Forum on April 29 and 30, 1999.
The letter went on to explain that, "The Open Forum's Speakers' Program explores new and alternative views on vital policy issues of the day," and that the format would be a series of 45 minute lectures each followed by a period of questions and comments from the audience over the course of seven or eight hours each of two days. It also noted that "the conference will be on the record," and that "C-SPAN and other major media organizations have covered previous sessions of the Open Forum."
The grievant and the IRI immediately set to work promoting and publicizing the upcoming event, dubbed "The First International Conference on Free Energy," or the "COFE," with Internet postings and hard copy brochures. A total of 14 speakers and 30 corporate or institutional exhibitors were lined up and advertised as participants. The April 29 and 30 speakers sessions were to be held in the State Department's Dean Acheson Auditorium at its main building in Washington. As a separate function, the IRI also advertised "workshops" on Saturday, May 1, 1999 at a hotel, led by many of the speakers, on a range of alternative power technologies.
On March 1, 1999, Corazon Foley, the State Department Director of the Open Forum Office sent a final memorandum of understanding to the grievant with the details of the program and security procedures for participants and attendees at the conference. By that date, the grievant had also lined up a cosponsor to underwrite some costs for meals, a speakers' reception, and other overhead.
Then, trouble began. The nature of the COFE and the State Department's sponsorship came to the notice of Dr. Peter Zimmerman, a high ranking science member of the State Department's Arms Control Agency who adamantly opposes as unworkable any technology that claims it produced an energy output in excess of the energy input, and a close colleague of Robert Park.
Dr. Zimmerman protested the Open Forum's invitation to the grievant and its allowing him to put together a cast of renown "pseudoscientists" to appear under the banner of the Department of State to promote junk science. And, by March 8, 1999, he had superceded Corazon Foley as the point person in dealing with the grievant. He immediately demanded that only those speakers whose presentations had received peer reviews and approval would be allowed to appear. This, of course served to throw a monkey wrench into the whole concept of the COFE, which was to serve as a forum for non-conventional ideas about energy sources.
Nevertheless, the grievant spent the next week attempting to satisfy Zimmerman's demand by providing the published works and other writings of the roster of speakers. However, Zimmerman and Park were determined that the State Department invitation would be withdrawn. Four days after Zimmerman had made his demands on the grievant, and while the grievant was scurrying to comply, Park, in his March 12, 1999 newsletter, What's New, trumpeted, "FREE ENERGY: STATE DEPARTMENT WITHDRAWS FROM CONFERENCE. The First International Conference on Free Energy [ ] will not be held under the auspices of the US Department of State."
On March 25, 1999, Zimmerman sent an e-mail to an unknown addressee, proclaiming:
Oh the shame of it all. How dastardly we were to [the] poor [grievant]. He and his Aussie friend are embarrassed and it's all our fault. How can they ever forgive us? How can we ever cleanse our souls of this black mark?
Seeing the writing on the wall, the grievant stopped scurrying about in attempts to satisfy Zimmerman and turned to scurrying to find an alternative venue for the COFE. A sympathetic acquaintance in the Department of Energy started the process of getting DoE facilities available, but as those efforts were on the verge of bearing fruit, Park and/or Zimmerman got wind of the potential arrangement and promptly intervened through their own DoE acquaintance, more highly placed than was the grievant's. The upshot was that the use of DoE space was torpedoed.
In a final effort to obtain a government facility for the COFE, the grievant acted on a suggestion that he seek use of the Department of Commerce main auditorium on Constitution Avenue in Washington. According to a March 25, 1999 memorandum addressed to Ms. Rose from Catherine Teti, the DoC Director, Office of Administrative Operations:
This follows up on our telephone conversation of this afternoon. Given the serious nature of the issue you raised, I consulted with the Support Services staff after we spoke to ensure that the information I conveyed to you was absolutely accurate and complete.
* * *
On the morning of March 9, 1999, [the grievant] telephoned the OAO Support Services reservation line. Margaret House of the Support Service staff fielded [the grievant]'s call. According to Ms. House, [the grievant] asked about the procedures for reserving rooms for a private function. Ms. House advised that we normally do not allow the use of conference space by private concerns but that, if he wished to do so, he would have to submit a written request for the review and approval of the Director, Office of Safety and Building Management. Since Ms. House is relatively new to this function, she further advised [the grievant] that he could contact Telita Holloway, the senior member of the Support Services staff, if he had any questions. [the grievant] rang off but called back later to advise Ms. House that he would be in to see Ms. Holloway at 4:30 that afternoon. . .
At approximately 4:30pm on the afternoon of the March 9, [the grievant] arrived at the Support Services office in person and asked to meet with Ms. Holloway. Ms. Holloway spent approximately 1½ hours (4:30pm - 6:00pm) with [the grievant], discussing scheduling arrangements and showing [the grievant] through the auditorium, lobby and various conference rooms. According to Ms. Holloway, [the grievant] never represented himself as being anything other than a PTO employee and never mentioned that he was requesting the use of the conference rooms for a private function. The clear implication in her mind was that the rooms were to be used for a PTO function and the information entered into our scheduling system reflected that understanding.
Ms. Teti was called as a witness by the Agency. She reaffirmed the information contained in her March 25, 1999 memo to Ms. Rose which, by its date, Ms. Teti had gathered from Ms. House and Ms. Holloway a little more than two weeks after their March 9 encounters with the grievant. She also identified an April 28, 1999 follow-up e-mail that, obviously at the behest of Ms. Rose in her preparation of the Proposal to Remove, she had asked Ms. Ms. Holloway to send her, and upon which the Agency relied in its case against the grievant. It read:
Sometime in March, 1999, [the grievant] came to my office at approximately 5:10pm to discuss with me making reservations for April 29, 30 and May 1. [The grievant] stated that he worked for PTO and that they would like to have a special event held here [ ]. I gave [the grievant] the required forms to have a PTO representative to fill out [ ]. I then took [the grievant] on a grand tour of our facilities. We finished at approximately 5:55pm. I also made reservations for the Auditorium. Lobby and all our conference rooms.
As for Ms. Holloway, neither she nor Ms. House was produced by the Agency for questioning at the hearing. Nor had they been produced by the HR staff in response to the Union's requests for interviews made immediately after Ms. Focarino's May 7, 1999 Removal Proposal, and renewed before the August 30, 1999 Removal Decision. This left the Union "high and dry" in its ability to mount a defense before Mr. Godici.
As mentioned, the matter of the HR's refusal to provide the Union with such basics in a removal case as "the facts and resulting penalties in prior cases of Conflict of Interest," and "access to accusers," were on top of the agenda when Mr. Hockenberry accepted his appointment to hear this case. His reaction was his Production Order, with Ms. House and Ms. Holloway in the lead-off positions on the witness list. At the time, both were still active employees of the DoC. Perhaps knowing that employment status would change, the Agency ignored the Order and neither was made available for pre-hearing Union questioning while the DoC had control over them.
In 2004 the discovery issues remained unresolved when I appeared on the scene and told the Agency by my May 13, 2004 order to fully comply with the prior production order or face the wrath of my sanctions. Even this reading of the "riot act" failed to produce Ms. House or Ms. Holloway. The Agency's excuse was that it lacked current control over Ms. House because of her retirement with no forwarding address. 7 As for Ms. Holloway, the more important of the two since she was the only DoC facilities manager who actually had a face to face discussion with the grievant about what he needed to do to obtain the use of the Department's auditorium for a private function, it appears she had moved on in her career and was now with another agency at an improved salary.
As for the grievant's account of what happened on March 9, 1999, his testimony about his call to Ms. House was consistent with what Ms. Teti related in her March 25, 1999 memo to Ms. Rose, and confirmed in her hearing testimony. Namely, the grievant had called Ms. House and asked about the procedures to be followed for a private function to be held in DoC facilities and that she had referred him to Ms. Holloway as the person with the details and responsibility for reservations of DoC space.
The grievant then called Ms. Holloway and told her he had been referred to her by Ms. House, and that he was seeking information on the procedures for obtaining use of DoC facilities for a private function. She allowed as how she was the person to talk to, and he then asked if he could come to her office to get the details before the day was out. She agreed, and his quick arrival thereafter caused her to ask him where he worked. He told her he worked for the PTO.
Because the grievant was critically interested in whether the main DoC auditorium was available on April 29 and 30, May 1, 1999, the previously set dates for the advertised State Department sponsored conference, he and Ms. Holloway moved to her computer to check availability and found the dates were open. According to him, he told her the function was an energy conference, but gave her no further details nor did she ask him for any, such as what organization was sponsoring this energy conference. Instead she gave him a CD-410, a DoC form specifically designed for reserving the DoC auditorium and other conference room space.
On the CD-410, Ms. Holloway checked off the items which the grievant would need to fill out to make permanent what she indicated in her records as a "tentative reservation" of space and services. The grievant reviewed the checked item and for some wrote in information in his handwriting. Among the filled in (italics) and checked items were:
SECTION I: REQUEST FOR SERVICES (to be completed by Ordering Agency)
1. Requesting Office/Bureau: .
2. Agency Contact: .
(Name) (Room) (Phone)
3. Work Location: Hoover, 1406, 12. [unclear] lobby .
4. Description of Work: April 29 - May 1 9-5pm
Electrician needed For use of auditorium, lobby .
5. Charge to: Acct. Code .
(Agency Accounting Data)
6. Ordering Agency Official: .
(Signature) (Request Date)
* * *
SECTION III: WORK PERFORMANCE AUTHORIZATION/FUNDS AVAILABLE (To be completed by Ordering Agency)
12. Ordering Agency Official: .
(Signature) (Authorization Date)
The front sheet of the marked up CD-410 was retained by the grievant and the underlying carbon imprints left with Ms. Holloway, or discarded. In any event, Ms. Holloway gave him a clean CD-410 to be typed up and returned to her. Also in evidence was a diagram of the DoC lobby outside the auditorium with cost calculations made by the grievant as he talked over cost items with Ms. Holloway, which included, "electrician $300," "security $1200," "catering ?," and "tables $300." A third page had jotted notes of equipment needs, "overhead projector, slide projector, VCR," etc.
The face of the CD-410 shows it was intended for use by an agency, bureau or office within the DoC, or by another outside federal agency. A private organization could use the DoC facilities for a function, but it would have to be with a federal agency's endorsement and guarantee of financial back-up. This would be common throughout the federal government. Conference rooms and other meeting space in federal facilities are made available for all kind of nonofficial functions such as retirement parties, employee association meeting like those held by credit unions and employee funded gyms and physical fitness operations, and even outside organizations activities like Red Cross blood donor drives.
Of course, the grievant's IRI did not have the endorsing and guaranty authority for it alone to finalize the use of the DoC space that Ms. Holloway had tentatively reserved for the COFE subject to the grievant's return of a completed CD-410 with necessary agency endorsements. The grievant decided to seek sponsorship from the Patent and Trademark Office Society (PTOS), a natural selection.
Founded in 1917 as an association of the professional PTO employees (engineers, lawyers, and others post-graduate degree holders), one mission has been the "promotion of the intellectual welfare of its members" through "an educational program for examiners [with] lectures on scientific and engineering subjects, Patent Office practice and Patent Law." Most important to the grievant's immediate needs, the PTOS was a organization endorsed by the PTO which regularly used its facilities for PTOS functions.
Furthermore, the grievant was a member of the PTO Board of Directors and on the Education Committee, the responsibility of which was to "arrange scientific and legal lectures for the examining corps." As an example of PTOS activities involving active PTO participation and endorsement, on the Education Committee's schedule of 1999 events was the following joint PTO sponsorship with private, outside organization:
This year in Houston [TX] on September 24-25, 1999 the PTO will be sponsoring the Fourth Annual Independent Inventors' Conference (IIC). The Patent and Trademark Office Professional Society (PTOS) is very pleased to announce that it has reached an agreement with the PTO and [to] be a co-sponsor of the IIC in Houston.
Beside the Education Committee, the grievant also served on another PTOS committee, the Display Committee which was mandated to "prepare historical displays throughout the PTO and produce patent copies for sale at the gift shop [operated in a PTO building by the PTOS]." Its chairman was a past PTOS president, Richard Stouffer, with whom the grievant had worked long hours in creating and mounting in the Patent Academy an educational display honoring important inventors and explaining the nature of their inventions. The grievant went to Mr. Stouffer for advice on obtaining PTOS, and necessarily, the PTO's sanction for the COFE.
At Stouffer's suggestion, the grievant set in motion one of two approaches. As Mr. Stouffer explained it in a sort of "after action" sent to the grievant by a May 19, 1999 e-mail as he and the Union were attempting to muster evidence for a response to the May 7, 1999 Removal Proposal:
This message is a response to your request for me to summarize what we talked about in our conversation in mid-March, . . . .
* * *
We then turned our discussion to your inquiry about the possibility of getting PTOS sponsorship. I suggested two possible way you might do that. One possible way is you could approach the Education Committee because the conference would, if approved for education Committee sponsorship, be understood by our membership to be an education opportunity for them. If the chairperson of the committee was amenable, she could pass your request on to the Board of Directors as a potential Education Committee event, One aspect I forgot to mention then but did mention in our call of the other day was that any Education Committee event needs approval of the PTO official who oversees all Patents Cost Center training. That person is currently TC1700 Director Rick Fisher. A second possible way was that you could approach the Society President, Matt Kaness. If Matt was amenable, he could approach the Executive Committee (the Society officers) and if they were agreeable, he could bring it up at the next Board of Directors meeting. With both possible approaches, I was pointing out to you the appropriate PTOS channels of authority and communication. They were my suggestions to you that I gave you with the understanding that you would explore them further and that I would not be making any inquiries for you.
As luck would have it, earlier, in January, 1999, Gabriele Bugaisky, the chairwoman of the Education Committee had made a plea to committee members for speakers to fill out the Education Committee's lecture schedule by volunteering to give educational presentations. The grievant had responded in an e-mail to Bugaisky:
My experience has been that outside their area, even Ph. Ds are 'non-specialists,' especially in the areas that I lecture about. However, my Zero Point Energy lecture is the most high tech and includes some quantum mechanics. In general, all my talks are geared to the junior college level since I use to teach at Erie Community College (physics & EE) in Buffalo, NY. Therefore, even non-specialists can understand the content. . . .
Ms. Bugaisky replied by e-mail within an hour, enthusiastically declaring to the grievant:
GREAT!!! Can I clone you????? . . . I'd like to start the tech center specific lectures (open of course to all). It'll probably be easier to get 16/40 approval if the lectures appear to be geared to specific technologies. I'd like to tentatively plan an April presentation, since attendance would probably be sparse in March due to the end of the quarter. 8
Just as natural as the PTOS was a prospective cosponsor, so too was its Education Committee the natural vehicle through which to obtain that co-sponsorship, or at least the endorsement necessary for use of the DoC facility, and it did not hurt that the grievant and Ms. Bugaisky had already agreed on an April presentation. So, when in March, Park and Zimmerman sunk State Department sponsorship of the COFE and closed off the DoE as an alternative, the grievant lay out the situation to Bugaisky and a decision was reached to expand the April presentation with the COFE
After discussions with Bugaisky about obtaining the DoC facilities for this much larger conference with outside presenters and attendees, the grievant sought suggestions and advice from Stouffer on how to obtain the necessary PTO endorsement on the CD-410 form needed by Ms. Holloway to cement the reservation of the DoC facilities. As the grievant explained in a March 16, 1999 e-mail to Stouffer:
. . . I have met with Telita Holloway (202-482-3460) about reserving the [DoC] auditorium [ ] and she provided me with a CD-410 form that needs two signatures and an accounting code. Since I have a sponsor for the event, I can guarantee expense coverage for the security on Saturday and the electrician each day ($15/hr). Gabriele thinks that the funds can be sent through PTOS, but she asked me to speak to you about it.
There followed further face to face and telephone discussions between the grievant and Stouffer and Bugaisky with enthusiasm growing over the prospects of a major educational event for which the PTOS would receive much of the credit with no financial risk. Still, there was the matter of the PTO, as a DoC agency, signing off on the CD-410. Mr. Stouffer explained to the grievant that the man to see was John Hassett, the PTO Financial Officer with whom the PTOS dealt when arranging such matters.
The grievant contacted Mr. Hassett and explained the arrangement made for the COFE and its financial underwriting by an outside grant from Infinite Energy Magazine, with any shortfall being taken up by the employers or companies of inventors who would make presentations of their inventions and products at the conference and during the Saturday workshops. By March 27, 1999, the grievant appeared to have all his ducks in a proper and wholly legitimate row. On that date, Mr. Hassett sent the grievant the following e-mail of instructions:
I know it was probably less than two weeks ago when we earlier discussed PTOS' requirement to use certain facilities at the [DoC Main Building], but to be honest with you I don't recall all the details. For example, I don't recall if you indicated that you have a partially completed CD-410 from the Department or whether you just have a blank form.
Regardless, complete the section of the form that asks for an agency contact and phone number (presumably yourself). Fill in the work location (e.g., auditorium, main lobby, etc.) and the portion of the form that addresses the description of the work that you will be requiring, Include not only the services that you need, put the dates/time they need to be performed.
I recall we discussed costs, but I don't recall whether the price was firm or just an estimate. When sending me the CD-410, please let me know the price and whether or not the cost was an estimate.
As we discussed, don't worry about inserting any accounting information. To facilitate DoC's billing, I'll fund the requirement from my budget and PTOS can write a check to the 'Commissioner of Patents and Trademarks' reimbursing the Office. I'll provide you with a copy of the completed form that I send to the Department [of Commerce].
Send whatever you have my way (PK1-617) and I'll take it from here.
With prompt compliance with these instructions and the forwarding of the completed CD-410 to Mr. Hassett, the grievant had reason to believe that he had obtained all that was necessary to proceed to advertise that the COFE would now be changed from a State Department Open Forum event to a PTOS Education Committee event, technically endorsed for purpose of obtaining the DoC venue by the PTO. He had Ms. Bugaisky's approval, former PTOS President Stouffer's encouragement, and now Mr. Hassett's arrangement for PTO assurance of financial responsibility.
What the grievant did not yet have was the formal approval of the PTOS Executive Committee for PTOS sponsorship. But obtaining that approval was in the works by way of the efforts of Bugaisky. The grievant had not pursued the second prong suggested by Stouffer, a direct approach to the PTOS president, Mathew Kaness. Instead, he had relied on Bugaisky having brought Kaness "into the loop" on the COFE, something she had not yet done as of March 26, 1999.
Without the PTOS Executive Board's stamp of approval affixed, the IRI and web-sites maintained by those who were active supporters of cold fusion and other non-conventional ideas about alternative energy, got out ahead of the curve on the grievant's arrangements. By March 23, 1999, four days before the grievant had cinched a deal with Mr. Hassett, the IRI was announcing on its web-site the:
In cooperation with the U.S. Dept. of Commerce,
THE FIRST INTERNATIONAL
CONFERENCE ON FUTURE ENERGY (COFE)
The announcement went on to list a score of speakers, practically all of whom were considered as controversial or condemned within the ranks of conventional physicists and chemists, identifying their lectures as ranging from such volatile subjects as "new methods for initiating nuclear reactions" and "tabletop nuclear transmutations," to the relatively more acceptable and proven subjects of "American wind energy" and "peroxide power." The IRI posting or another posting, also represented that the COFE was being presented by the IRI "under the auspices of the U.S. Department of Commerce."
On March 25, 1999, a friend of the grievant, Paul LaViolette, who for a short time had been a patent examiner before his removal for failure to produce, on his web-site entitled, "Sphinx Stargate," the general content of which even the most sympathetic of the uninitiated would pronounce "kooky," posted a short notice:
Interested in advance energy technology that won't produce global warming? Then don't miss attending the First International Conference on Future Energy, cosponsored by the U.S. Department of Commerce and Integrity Research Institute! [etc.]
What the grievant and his colleagues may not have fully appreciated was that Robert Park, now joined by Dr, Zimmerman, fresh from their victory in scuttling the State Department sponsorship of the COFE, were hot on the heels of the grievant and the IRI, determined that no imprimatur of government recognition of cold fusion or any other theories rejected by the American Physical Society would be allowed to occur.
Even before the March 23 and 25 Internet postings traceable back to the grievant and IRI, Park got wind of the PTO/DoC expected involvement with the COFE and posted the following in the March 19 edition of his weekly Internet APS bulletin:
FUTURE ENERGY: NEW AGE ENERGY
CONFERENCE MOVES TO COMMERCE.
Booted out of the State Department [ ], it's now the First International Conference on Future Energy (it use to be 'Free Energy') and will be held 'In cooperation with the U.S. Department of Commerce.' But it's the same wacky stuff. . .
Because it is unnecessary to the resolution of the facts of this case, there is no reason to delve into the Agency's reluctance to produce Matthew Heyman, a public affairs employee of the National Institute of Standards and Technology, a sister agency of the PTO under the broad umbrella of the DoC, for a pre-hearing interview by the Union. Let it just stand that Mr. Heyman was of the same mind-set as that of Park and Zimmerman, and that one or both of the latter brought to his attention the imminent embarrassment that they would ensure befell the Department of Commerce and the PTO if the COFE was allowed to go forward in DoC facilities.
Whatever the chain of events, by March 22, 1999, Heyman had contacted his PTO counterpart, Richard Maulsby, and provided him with a copy of the Park posting which included not only the above quoted initial paragraph, but an additional eight paragraphs of "background" consisting principally of attacks on the grievant's history of promoting cold fusion and his, Park's, successful efforts in the past to thwart any public suggestion, and especially any government agency endorsement of the idea that cold fusion had enough merit to warrant serious consideration.
To whom within the PTO Maulsby sent the Park's posting is not clear from the hearing record, but it landed before Ms. Rose and Mr. Godici on or shortly after March 22, 1999. Before then, Mr. Godici had received e-mail copies from third parties of Park's regular reports on the grievant's attempts to find a US government venue for the COFE, and in each, Park prominently identified the grievant as a PTO Patent Examiner.
The Agency's evidence indicated a flurry of activity by Ms. Rose after she obtained on March 25 the information she had requested from Ms. Teti about the grievant's lining up the DoC auditorium. On March 26, Ms. Rose marshaled the assistance of Margaret Focarino, who as already indicated, would become the Proposing Official, and had her advise the grievant that DoC facilities were closed to the COFE. As explained in an e-mail Ms. Focarino sent Ms. Rose:
[The grievant] was not around on [March 26] before I left [ ], so I had to send him an e-mail to the effect that DoC facilities would NOT be available to him for his conference on April 29 th - May 1st, and his response was:
'Peggy, I am surprised by your e-mail effectively canceling the PTOS event. Attached is a summary of the proposed conference which was still in the planning stage.'
The Agency's documentation shows that, caught by surprise, Ms. Focarino sent the following e-mail to the grievant with a copy to the PTOS president, Mr. Kaness:
Is this a PTOS event? If so, why hasn't PTOS cleared this with anyone at PTO? Why was I not informed by you [the grievant], since I would have to agree to your participation in this event?
In response, Mr. Kaness sent Ms. Focarino the following in defense of the PTOS as he understood the jam it was in with her:
The COFE is NOT a PTOS event. I spoke to [the grievant] . . . and I explained to him (1) that PTOS is NOT co-sponsoring the COFE, (2) that as far as I knew, the PTOS had not been officially approached about co-sponsoring the event, and (3) what the proper procedure would have been if we had been officially approached. [The grievant] said he understood and concurred with these explanations when I spoke with him.
As the Removal Proposal recites, the grievant responded to Ms. Focarino:
[My] choice of wording was incorrect. COFE was potentially a PTOS event and the approval process had just begun. Our board meeting is another week away and that would have been the next stage of development for the event.
Consideration of Grievant's Prior Conduct . This arbitration was my second encounter with Mr. Godici. In both arbitrations he established himself as an exemplary manager and a credit to the whole of the civil service. When he testified in this case, he was about to retire from the PTO, leaving as Commissioner of Patents, the Agency's highest career position and one he had reached after 33 years of progression through the ranks and into supervision.
In the best sense of the words, Mr. Godici has been a guardian of the reputation and integrity of the US patent system. That the position of Commissioner can be said to be mandated by the Constitution is a point of justified pride with him and a wellspring of his protective vigilance over the world's most respected and valuable patents. As he testified in explaining where he had come from in arriving at his decision to remove the grievant:
A . . . . [T]he granting of patent rights is a very important decision to be made by this Agency, and the Agency relies on the examiners that we've hired and given the authority to do it in a fair and unbiased manner.
And, you know, patent rights, either granted or not granted, can have a huge impact on the value of a particular business or corporation or entity that's seeking those patent rights, and you have to balance the rights of the applicant [against] the rights of the public, and you want to give the proper patent rights where deserved, but not give them where they're not deserved.
And you have to be completely impartial, because there's a lot of competition within the industries that [receive] patents. . . .
So, the integrity of that decision-making process reflects the integrity of our office, but also the integrity of the whole patent system. . . .
And if we had the reputation of being biased in our decisions of who we granted patents to or that the system was somehow not fully transparent and fair, then, you know, we could harm the whole concept of patenting and the rightful inventor of having exclusive rights for the 20 years of a patent.
Q . . . . [What] impact would it have on the Agency if one of the patent examiners lacked integrity, either through bias or untruthfulness? What impact would there be on the Agency if they lack integrity?
A . Well, I think it then could reflect on the decisions that are made on all [ ] patent examiners we have here. And the fact that if the perception is that the USPTO is not granting patents on a fair judgment based on the patent statutes, but on some kind of arbitrary bias that an examiner might have, then what good are the rest of the 180,000 patents that we issue in any particular year, and it's going to cast a cloud and a doubt on the value of those patents as well as those that were granted by a particular [untruthful] individual.
So, we have to maintain - - The fact that we're a government agency and have these important decisions and grant these exclusive rights, the whole foundation of the system is based on our getting it right and being impartial and being fair with our decisions.
Q . And the same answer if an examiner lacks truthfulness?
A . Well, absolutely. I mean, if there's some hidden agenda or some reason an examiner is doing something that's not fully above-board and fully fair and in alignment with the statutes and so on and so forth, but has some other motive, then, clearly, that's going to be a poor reflection upon our office and the system.
Mr. Godici's views were genuinely held. As a witness, his candor was total, his testimony forthright, and he showed himself not to be easily scripted. What he said was what he meant, and deserving of respect. But despite the disclaimer in the Removal Proposal that the prior conduct of the grievant was not considered in proposing the penalty of removal, it is clear from Mr. Godici's testimony that he gave considerable weight to the facts alleged to underlie those counselings, as well as the DoE testimony episode, and a big chunk of inflammatory material about the grievant's prior efforts to advance the cause of cold fusion and other novel energy production, as well as the damning publications of Park and others on the grievant's State Department Open Forum reservation for the COFE.
That consideration by Mr. Godici was unfair to the point of being a denial of due process. The alleged misconduct for which the grievant was charged was that which occurred during the period of March 9, 1999, when he first contacted Ms. House and Ms. Holloway, through roughly May 7, 1999 when the Removal Proposal was served on him. Since that block of time was what he and the Union were called to account for or otherwise explain, it was not fair to then have the Deciding Official look to evidence of pre-March 9, 1999 conduct for which no serious wrongdoing was found, and to consider the opinions of the likes of Park and Zimmerman who emphatically declared the grievant to be a "nut," to justify the penalty of removal.
After Mr. Godici concluded his direct, cross and redirect examinations, I asked him a series of questions. On the subject of the place the grievant's prior conduct played in deciding whether he should be removed from service, Mr. Godici explained:
WITNESS: Can I just make a very [interrupted] short comment?
ARBITRATOR: That is exactly what I'm inviting.
[WITNESS]: 9 Okay. Well, the way I looked at this case, and hopefully the way that you may have looked at this case, is that this is more than just an argument over trying to reserve some space and whether or not the proper procedures were followed or who said what, and so on and so forth.
I mean, it's pretty clear that something happened down at the Department of Commerce and [the grievant] attempted to set up a conference down there.
The thing that I think is most troubling with respect to this is that there was a series of things, some of which [the grievant] was counseled for, leading up to this event where actually [the grievant] was trying to manipulate, so to speak, the system for his personal interest.
And when, you know, I'm responsible for an agency that is supposed to be completely impartial and administer the laws, when there are actions by persons within the Agency that cast doubt on our ability to be impartial, that the troubling part of this.
And those are the actions that [interrupted].
ARBITRATOR: So, this is like the [grievant's Internet] job announcement?
WITNESS: Exactly. I mean, there are pieces of this that just kept piling up and piling up, and my ability to rely on [the grievant] to do [his] job impartially is destroyed, I think those actions clearly cast some dispersion on the impartiality of the Agency.
So, that was the basis of my decision. And you can get down into the nuts and bolts of what happen when he walked over to the Commerce Department and who said what, but I looked at it as a bigger picture.
This testimony requires that the penalty of removal be vacated and any new penalty be limited under the Agency's Table of Offenses and Penalties to that appropriate to those elements of the two actual charges of conflict of interest and misrepresentation for which the Agency carried its burden of persuasion. It was a denial of the grievant's due process right to confront him with two charges of misconduct occurring during a specific period, and then to have extraneous representations about the grievant and his advocacy of cold fusion, and accounts of earlier incidents involving that advocacy which did not result in discipline, be the determining force in sentencing.
A good portion of the Union's post-hearing brief is devoted to its claims of due process denials in the failure of the Agency (1) to provide information about the two charges for which the grievant's removal was proposed, but also about the alleged counseling, including making Mr. Behrend and his supervisor, Mr. Jordon, available for interview about the grievant's visit to Mr. Behrend's office, and (2) to give the Union an extension of time to answer the Removal Proposal, the extension to start with the receipt of the information and witnesses requested.
Its "harmful error" arguments are not without merit. Still they need not be further addressed beyond the discovery rulings already entered in this arbitration.1 0 The simple fact is that it was enough that in setting the penalty for the two charges, Mr. Godici considered the grievant's pre-March 9, 1999 conduct not only for its value as "notice," but for the content or subject matter of his Internet posting, DoE testimony, and his visit with Mr. Behrend, along with the extensive array of extraneous, but damning, materials tucked into the "supporting files."
Now, it is not Mr. Godici's fault that he considered more than he should have in deciding that only the grievant's removal would save the efficiency of the service. At fault were those in HR who assembled the "file" he got with the Removal Proposal.
Who exactly those persons were is hard to pinpoint. The Agency did not call an HR witness who might have explained how or why the suspect materials got to Mr. Godici. It did concede that Ms. Rose prepared both the Removal Proposal and the Removal Decision, and their wording reflect her appreciation of what could and could not be considered as prior misconduct by Ms. Focarino in proposing, or by Mr. Godici in imposing, removal for the two charges brought against the grievant.
Those documents clearly recognized that the two prior counselings were not candidates for "First" and "Second" offenses under the Agency's Table of Penalties so that the current two charges could be treated as "Subsequent Offenses" warranting removal as a "progressively" severe penalty. That is, Ms. Rose understood that the two charges stemming from the grievant's conduct during March 9 to May 7, 1999 period had to stand on their own as First Offenses and warrant removal under the Table of Penalties solely because of the degree of their seriousness. 1 1
After all, neither "counseling" was a "discipline," but can only be considered as a form of "warning," blunting any claim by the grievant that he was unaware that his March 9 to May 7, 1999 activities constituted an impermissible conflict of interest and misrepresentation of DoC endorsement of the COFE. The counseling sessions could not properly be extended beyond the issue of notice to the question of penalty.
One reason they cannot serve as bases for enhancing a penalty is that counseling, unlike the imposition of discipline, is not a confrontation between an employee and his supervisor that can be challenged through the parties' negotiated grievance procedure, where the factual basis for counseling could be challenged and disproved before someone other than the accusers (Ms. O'Shea and Ms. Rose in one case, and Ms. Focarino in the other).
The presence of a Union representative at the questioning of the grievant about the Internet job posting and his DoE testimony does not substitute for the progressively higher levels of review at which the factual basis for the counseling can be contested. Furthermore, there is no evidence that prior notice was given the grievant or his representative as to what was coming when the grievant was summoned for questioning. Instead, it appears from the notes taken by the Agency during what it styled the "Weingarten Interview" that the grievant was simply told by Ms. Rose and Ms. O'Shea what he was guilty of doing, and then "counseled" that he should leave recruiting examiners to HR personnel, and as for the excessive time he used in scheduling and giving his testimony at the public DoE hearing, he was obliged to take a retroactive hour of annual leave.
That the grievant and his representative had a "chance" to argue with the accusers does not render the Weingarten session either "discipline" or some other penalty enhancement event under the Table of Penalties. When it came time to impose a penalty for the later alleged conflict of interest conduct and misrepresentations, the prior counseling had no proper role. So, to have allowed Mr. Godici to mull over material outside the confines of the two charges for which removal was proposed, jinxed the Agency's case.
Certainly, Ms. Rose would not be expected to have included the venomous materials generated by Park about the grievant's altogether proper and legitimate dealings with the Department of State, and his efforts thereafter to save the COFE by staging it with DoE support, both forums Park was determined would not host the COFE She knew the need to keep from a deciding official irrelevant materials, especially prejudicial material. But, who precisely to blame for the packet given Mr. Godici is not important.
Whoever assembled the materials knew, and was pandering to, the PTO's and Mr. Godici's decidedly negative views of cold fusion. In his testimony, Mr. Godici admitted he had been disturbed by what he had found in the files about the grievant's obsessions with non-conventional energy sources. While the parallel and divergence were not drawn through direct testimony, there was no mistaking that the grievant's advocacy was not on a par in Mr. Godici's eyes with an examiner's advocacy of youth soccer, the Girl Scouts, butterfly collecting, or an arcane subject like the true ethnicity of the Pazyryk carpet. They just do not have the eye-catching controversy that the words "cold fusion" evoke.
In a line of testimony which started off with an Agency counsel's question of whether he had read the transcript of the grievant's statements addressed to the Secretary of Energy during the DoE conference, and thereafter with follow-up questions from me, Mr. Godici related his thoughts:
Agency Counsel . And did you see any evidence of a personal agenda in his conduct [at the DoE hearings]?
A . Well, I think that, on the based of the documents that I reviewed in the file, he had absolutely some personal interest in, I'll call them, 'alternative energy' theories, and I think that was the subject matter of that conference, and it may have been the subject matter of [his] testimony.
* * *
Arbitrator . But how would that - - How would alternative energy interest and the espousing, you know, support for research or whatever the Department of Energy's conference was all about, how would that, - - standing up and saying something about it –?
A . That's disturbing to me in that a person has these personal views on this type of technology to the extent that they have a Web site and they are posting things on the Web and attending this conference and testifying, and so on and so forth.
And there's other parts of the file that show his visiting the examiner that actually has responsibility for those types of applications and trying, you know, talk to [him] about allowing those types of applications.
We're getting to the point, I think, where clearly, there's a demonstrated personal agenda to try to get that technology recognized and patented and so on and so forth.
And, again, you're stepping out of the shoes of an impartial government examiner trying to decide correctly, you know, is this the right thing to patent or not the right thing to patent, and you are kind of clouding it with your overview of your prejudice that you are in favor of this kind of technology.
Arbitrator . Well, now, in that regard, I can see, you know, going to an examiner that is in charge of - - for just a shorthand term - - 'perpetual motion,' and trying to influence him with regards to a specific patent application, that is one problem.
But going to the Secretary of Energy, who's having a conference on energy sources, whatever [the Secretary] was doing, and advocating that they look to various things - - [interrupted].
Agency Counsel . [Whose following statements provide an example of the previously mentioned difficulty in scripting Mr. Godici, or even forcefully prodding him along toward a desired response], Well if I - -
Arbitrator . Just a second. I get to ask the questions.
Agency Counsel . Okay. All right. I was just - - You know, I was just going to say that the reason - - I mean, I think you remember the reason why the Agency counseled the grievant. It wasn't because of his testimony. It was because he went there during government time. So - -
Arbitrator . Well, yes. But, see, he [Mr. Godici] has just testified that he was disturbed by him going there and what he said there and that he was advocating things, so you are interrupting me and you're keeping me from finding out why he was disturbed.
Agency Counsel . Well, that wasn't a part of the Agency's case, but anyway - -
Arbitrator . Oh[?] Okay. All right. So, that - -
Agency Counsel . My question was with respect to personal interest versus government interest, but I think you asked a follow-on question.
Arbitrator . I did. But that's because he - - [Turning to Mr. Godici] Didn't you say that you were somewhat disturbed that he was espousing at this energy conference?
A . Not in response to the [Agency's] question.
Q . No. In response to - -
A . But in response to your question, I did; yes.
* * *
A . Well, you know, the bottom line is, if you piece these things together, the trying to influence the other examiner, posting on the Internet trying to recruit examiners to infiltrate the office, testifying, and so on and so forth, it's clear this person has a very strong belief and a personal agenda.
And you pull all these things together and it's - - all of that combined leads me to be disturbed with respect to the strong belief and the strong personal agenda.
But, enough is enough of this. The point is that the HR "packager" of the file sent to Mr. Godici knew a hot button with him and made sure there was enough material in that file to assure it was pushed, and that the grievant would be canned. 1 2 However, in his or her zeal to accomplish this objective, Mr. Godici was led across the line into a denial of the grievant's due process rights.
Again, the grievant had the right to expect Mr. Godici to adhere solely to the facts of the two charges set out in the Removal Proposal in determining whether his PTO employment should be terminated, uninfluenced by considerations of either the grievant's prior conduct for which he was not disciplined, or what others with their own "private agenda" thought of the grievant and cold fusion or other novel ideas about energy which he advocated.
The Agency's Reliance on Hearsay . This brings the Discussion back to the merits of the two specific charges which confronted the grievant and the Union. To sustain those charges, the Agency relied on hearsay rather than the witnesses who could testify to the specifics of the crucial events or incident and then be open to the crucible of truth, cross examination by the accused. This could never have happened in a court of law. But what gets into an arbitration record as reliable proof of a material fact is not governed by the Federal Rules of Evidence or the common law.
Hearsay evidence is likely to be accepted in arbitration without having strictly met one of either the modern or classic exceptions to the rule which otherwise bars its use. Simply because it is hearsay and its use is not squarely within an accepted exception to the rule, is not a basis for rejection, but only a basis for heightened concern.
The reason for that concern is that unlike direct testimony, where its reliability can be assessed through observance of the degree of apparent candor and the general demeanor of the witness, coupled with whether the testimony fits within the mosaic of the case, the tender of hearsay triggers not only a need for a more persuasive demonstration of the hearsay's mosaic fit, but yet extra scrutiny which the lack of the witness' direct testimony requires as a substitute for observations. This extra scrutiny consists of intertwining assessments of the hearsay's reliability and the fairness of its use.
The first burden confronting the Agency in obtaining acceptance of any of its proffered hearsay was to establish its reliability. This meant that the circumstances under which a statement was obtained should be such that common experience would ascribe a high degree of likely truthfulness and accuracy, a model example being a "death bed confession of wrongdoing" where the prospect of an immediate meeting with one's maker precludes lying about much of anything. That is why such confessions are considered exceptions to the strictest of hearsay rules. Conversely, if the circumstances were such that common experience would cast doubt over its likely truthfulness or complete accuracy, a hearsay statement should be rejected.
Here, with Park's Internet posting in hand and his demonstrated ability to embarrass cabinet level agencies, Ms. Rose's and Ms. Focarino's understandable anxiety produced telephone calls and e-mails which were easily interpreted by their recipients as demanding damning evidence against the grievant less the failure to produce render Ms. Teti, Ms. House, Ms. Holloway, Mr. Kaness, or anyone else who aided, assisted, advised or otherwise had contact with the grievant, equally damned.
This is not to say that either Ms. Rose or Ms. Focarino intended such an interpretation. Ms. Focarino testified about her roles both as the proposing official and in the gathering of the facts leading to her proposal. She obviously possessed the objectivity and sense of basic fairness which seems to be distinguishing traits of higher PTO management. But like Mr. Godici, she was protective of the good reputation of the PTO's examiner corps, a reputation earned in part by the faceless nature of that corps. An examiner who stood out from the rest and became publicly identified as controversial was a threat to which she reacted swiftly and proactively.
As previously noted, because Ms. Rose has apparently left the PTO, she was not available as a witness or to perform her usual role of assisting counsel in the presentation of the Agency's case. However, independent of previously gained impressions of her professionalism and competence, she has an admirable reputation for doggedly pursuing disciplinary cases and carefully assembling as strong a record as the facts can bear. Much of her skills and keen mind in this regard were just discussed, but to those qualities must be added her no-nonsense attitude as both a fact-gather and a director of other fact-gathers.
Now, back to the Agency's evidence. Starting with an assessment of the reliability of the written and testimonial hearsay statements of Ms. Teti, recall that in her March 25, 1999 Memorandum to Ms. Rose, she declared that, "This follows up on our telephone conversation of this afternoon. Given the serious nature of the issue you raised, I consulted with [Ms. House and Ms. Holloway] after we spoke. . . (emphasis added)."
This opening declaration of Ms. Teti is detrimental to establishing the reliability of the hearsay statements of Ms. House and Ms. Holloway contained in the rest of her memorandum to Ms. Rose, and also taints Ms. Holloway's later e-mail of April 28, 1999. That latter hearsay was obtained on the eve of the Removal Proposal, and certainly Ms. Holloway understood it was expected to be consistent with her previous response to Ms. Teti's earlier querying.
The biggest problem for the Agency was the circumstances under which these hearsay statements of House and Holloway were obtained. Ms. Teti is the GS 15, Director, Office of Administrative Operations within the Office of the Secretary of Commerce, while Ms. House was a GS 5 Supply Technician, and Ms. Holloway was a GS 6 Facilities Assistant. In the federal service, this is a wide difference in grade, not to say anything about the more obvious gulf in job titles. Without direct testimony of either House or Holloway to dispel concern, it is hard to dismiss the notion that their reactions to being summonsed late in the day by their boss to account for their interactions with the grievant two weeks earlier were ones of apprehension, if not fear, that they had done something wrong.
Understand that the party relying on hearsay has the burden of satisfying the arbitrator of its "reliability." On that score, the hearsay statements of House and Holloway related in Ms. Tati's apprehensive memorandum left the Agency with a long row which it failed to hoe in persuading me that they were reliable and acceptable substitutes for live testimony. The circumstances under which the hearsay statements of House and Holloway were obtained did not serve to impart enough, if any, assurance of"reliability" sufficient to overcome the impression of "coercion."
While this alone did not force a rejection of the Agency's reliance on the hearsay statements of House and Holloway to convict the grievant on the charges of Conflict of Interest and Misrepresentation, it was a blow to the Agency's prospects of success, and the effects of that blow spilled over onto the question of fairness.
That question again boils down to whether the grievant was accorded or denied "due process." Fundamental to due process is that an accused has the right to confront his accusers. In this case, the accusers were House to a minor extent, but in so far as substantiating the two charges brought against the grievant, Holloway. It was her hearsay statement relayed by Ms. Teti that the grievant "never represented himself as being anything other than a PTO employee and never mentioned that he was requesting the use of the conference rooms for a private function," that the grievant most need to confront, and through the Union exercise his right to cross examine.
The right to confront these witnesses did not start in the hearing room with arbitration in progress. It emerged not only as a due process right, but as a right under the parties' Labor Agreement the moment the grievant received the Removal Proposal, the "death penalty" on the Agency's Table of Penalties." Section 5 of Article 12, Disciplinary and Adverse Actions Based on Conduct, provides:
Where the Office [PTO] has relied upon witnesses to support the reasons for the proposed action, the Office will make those witnesses available, to the extent it has control over them, for the employee or his/her representative to question.
Because Ms. Holloway was not produced by the Agency for either a predetermination or a pre-arbitration interview when she remained a DoC employee, the Union never learned what her answers might have been to an array of exonerating questions such as, "Didn't you explain to the grievant, and check off on the CD-410, what was needed in the way of PTO endorsement to use DoC facilities for a private function?"
Ms. Teti's memorandum to Ms. Rose was ripe with pieces of hearsay that did not fit the factual mosaic of the case as it was evolving. And that is not to say anything about the internal improbabilities that the grievant "asked [Ms. House] about the procedures for reserving rooms for a private function," but never told Ms. Holloway that would be his purpose in coming to see her, or that when the grievant called the second time "to advise Ms. House that he would be in to see Ms. Holloway at 4:30 that afternoon," Ms. House did not at that point call Ms. Holloway, her immediate superior, at least grade wise, and give her a "head's up" as to the grievant's impending visit and its purpose.
These fairness problems of accepting the hearsay statements of Ms. House and Ms. Holloway, which demand cross examination and dissecting, must be coupled with the weakness of their reliability caused by the likelihood that Ms. Teti's anxious inquiries prompted Ms. House and Ms. Holloway to distance themselves as far as possible from being seen as having actively assisted or encouraged the grievant in his quest to find DoC lodging for the COFE. In the case of Ms. Holloway, who knew she had probably told him he needed agency endorsement for reservations no matter the official or private nature of the function, the only out was to portray herself as misled or manipulated by the grievant. She knew he had the CD-410 and the information needed for its completion, all of which she had given him.
The severe weakness in reliability of the hearsay statements of Ms. House and Ms. Holloway, coupled with the decided lack of fairness of their use without an opportunity for the Union to test their veracity, would ordinarily compel their rejection. And, pretty much would take with them most of the Agency's case for disciplining the grievant for any kind of conflict of interest or misrepresentation in his dealings with the DoC. However, their total rejection would deprive this case of a necessary framework within which to examine the conduct of the grievant.
That leaves Mr. Kaness' e-mail statement sent to Ms. Focarino to be dealt with here, with other, less important hearsay to be analyzed as they arise. On Mr. Kaness' e-mail largely rests the Agency's "Misrepresentation" case, or at least the starting point for that case. As will be explained, questioning the reliability of its use arise not only because of circumstances surrounding how it was obtained, but simply because Mr. Kaness did not know what he was talking about when he took it upon himself at 5:09 PM on Saturday, March 27, 1999 to defend all the elected and appointed officials and committee chairs in the PTO from any involvement with the grievant and the COFE.
But first a common sense reliability question presents itself. Just what is one to expect from Mr. Kaness in response to Ms. Focarino's e-mail to him demanding, "Is this a PTOS event? If so, why hasn't PTOS cleared this with anyone at PTO?" ---- It would take a naivety greater than will be conceded here for anyone to be surprised by Mr. Kaness' response, which all but screamed in defense of his organization that, "The COFE is NOT a PTOS event." Like an out of the blue inquiry, "Is PTOS publicly tormenting small animals on the front steps of the office to defy PETA? If so, why hasn't PTOS cleared this with anyone at PTO?" Well, of course, in the face of the urgency of such a question sent on a Saturday afternoon, the natural response, if you had any concern at appearing to have control over your organization as its president, would be an urgent response like, "The SMALL ANIMAL TORMENTING is NOT a PTOS event."
To either hasty response, Mr. Kaness would have been well advised to have thrown to the wind any concerns with appearances of control, and added, "as far as I know, but I'll check." As it was, he neither included that tag-on to his near terror-stricken e-mail response to Ms. Focarino, nor did he conduct any immediate follow-up inquiries with his Board of Directors, or especially with the PTOS committee chairs. Instead, he remained at this critical point without a clue as to the depth of actual PTOS involvement in working toward the staging of the COFE at the main office facilities of the DoC. If he had calmly, not hysterically, touched base just with Gabriele Bugaisky, he would have learned of her collaboration with the grievant in arranging for PTOS co-sponsorship of the COFE as an Education Committee event on its April schedule,
That knowledge alone would have forced Mr. Kaness to send a quick follow-up e-mail to Ms. Focarino, retracting his earlier, emphatic assurance that, "The COFE is NOT a PTOS event," with a statement something to effect that:
My choice of wording was incorrect, COFE was potentially a PTOS event and the approval process had just begun. Our board meeting is another week away and that would have been the next stage of development for the event.
However, since it was Mr. Kaness who was ignorant of the facts, it was the grievant who sent that e-mail explanation to Ms. Focarino in response to his "cc" copy of her demanding e-mail addressed to Mr. Kaness.
Despite evidence of record at the close of the hearing that firmly established that both the grievant's and Mr. Kaness' "choice of wording was incorrect," it is the head of the grievant that the Agency comes down on in its post-hearing brief with the assertion that this flow of e-mails was an indication that the "Grievant Lacks Credibility." This assertion ignores, as did the failure of any other timely post-March 27, 1999 inquiry by Mr. Kaness, what the rest of the arbitral record disclosed.
Before beating up on Mr. Kaness any further at this point, I'll acknowledge that in so far as the record before me is concerned, the first evidence of Ms. Bugaisky's participation with the grievant is found in the back and forth e-mails between them placed in evidence by the Union. Mr. Kaness' was almost certainly ignorant of their existence on the Saturday afternoon of March 27, 1999 when the e-mail from Ms. Focarino hit the fan and spewed its accusations all over him. He also was equally in the dark about the assistance and encouragement of Richard Stouffer, his chairman of the Display Committee, was providing the grievant.
He certainly did not know that seven hours and 42 minutes before he proclaimed PTOS's total innocence to Ms. Focarino, duly elected and empowered Board members and Committee chairs had ensnared John Hassett, the PTO's financial officer, into facilitating the use of the DoC facilities so desired by the grievant. Recall that by an e-mail on that same March 27 Saturday, at 10:27 AM, Mr. Hassett had provided the grievant with instructions for completing the CD-410 and had assured him, "Send whatever you have my way and I'll take it from here."
Had Mr. Kaness known this, he would have fainted, and that he knows it now may well explain why, after he quit the PTO with no reason provided by the Agency for the record, he absolutely refused to appear as a witness in this arbitration on behalf of either party. The important point, however, is that his March 27, 1999 e-mail declaration that, "The COFE is NOT a PTOS event," is rejected not only because the circumstances of it extraction bar its meeting the test for allowable hearsay of "likely reliability," but because at the time he made it he simply was not in a position, information-wise, to have done so.
This is so despite what appears to have been the Agency's attempt to demonstrate that Mr. Kaness undertook a thorough investigation of PTOS involvement in the matter of the COFE. This undertaking was in preparation for the Society's own disciplining of the grievant. It, and the resulting Society whacking of the grievant, were almost certainly prompted by Ms. Focarino, Ms. Rose, or someone else in HR, as evidenced by its timing. But, Mr. Kaness may also have been spurred further into his defensive mode after the Removal Proposal was served on the grievant and he circulated copies to other examiners, thereby drawing the PTOS into the public swirl of controversy over the COFE, since those occurrences are noted in his investigative report.
This item of Agency evidence I question here is an August 26, 1999 Memorandum to the grievant from the "PTOS EXECUTIVE BOARD informing him that he had been booted off the PTOS Board of Directors after an investigation disclosed "cause" to do so under the Society's Constitution. The author was Mr. Kaness as evidenced by its references to "you told me" and "I asked you," etc.
His handiwork is a "whitewash" that not for a moment could withstand the scrutiny of Union cross examination (or discrete inquiries from me) of its author and the persons whose self-serving e-mailed attempts to divorce themselves or otherwise place as much distance between them and the grievant's activities as possible, all having a remarkable resemblance in their panicked tone to that of Mr. Kaness' March 27 missive to Ms. Focarino. Even without cross examination, the Union's documents generated by the same authors before the cancellation of the use of DoC facilities for the COFE, puts the lie to practically every crucial PTOS guilt-denying statement and lame attempt to shift blame solely to the grievant for the PTOS's plight in the eyes of the PTO.
If the Agency's intent was to shore up Mr. Kaness' March 27 e-mail denial of PTO involvement, this post factum work product of his is as worthless as his original e-mail for the same inability to find in it any factors that serve to assure its likely reliability. It is a cowardly and disgraceful document, the timing of which serves to confirm the kow-towing dependence of the PTOS on the continued good graces of the PTO. It was dated and likely distributed, just four days in advance of Mr. Godici's Removal Decision. Whether Mr. Godici read it, and whether it played a role in his signing off on that Decision, are unimportant, and in any event, the record does not firmly resolve those questions.
But enough about the actions and motivations of what can be fairly referred to as "poor Mr. Kaness, the involuntary foil." If there's a lesson to be drawn from the Agency's reliance on his March 27 e-mail, it's that in determining to discipline an employee for his or her conduct with only a hearsay statement, the Agency should carefully weigh the statement's "reliability" against the evidence the grievant's representatives can produce in demolition of that hearsay.
In this instance, what the Agency missed in Mr. Kaness' "investigation" is that the grievant used it to make a dry run of the same evidence that he would, and did, use in this arbitration. The point being that the Agency had advance notice that the Bugaisky, Stouffer and Hassett e-mails were coming and that they would undermine Mr. Kaness' March 27 disclaimer that, "The COFE is NOT a PTOS event."
Despite the warning, the Agency did not back off from its claims of purposeful deception in representing to Ms. Focarino that the COFE was "Sponsored by the Patent and Trademark Office Society." Instead of arguing in its post-hearing brief for disciplining the grievant on the basis of that of its evidence of "misrepresentations" that emerged unscathed from the fray of the hearing, that the COFE was being presented "[i]n cooperation with the U.S. Department of Commerce," and more egregiously, "under the auspices of the U.S. Department of Commerce," it continued to press its arguments that removal of the grievant was justified on the basis of his representations to Ms. Focarino that the COFE was variously being "cosponsored," "potentially cosponsored," "in the planning stage of co-sponsorship," etc. by the PTOS, practical all of which were made before or while the various pertinent PTOS Board members and committee chairs were being coward into withdrawing or denying their involvement with the grievant and the attempt to stage the COFE inside the DoC.
The Merits. The grievant has few of the qualities admired in Mr. Godici. His testimony was deceptive, manipulative, and revealed the serious character flaw of an inability to own up to his actions and those of others which he had authorized or otherwise sanctioned. This lack of forthrightness is remarkable for a person widely identified as an "advocate." By definition, an advocate publicly and without shame identifies with his cause and lets the consequences of his championship fall as they may.
And while this is not the forum to decide about the viability of cold fusion or any other non-conventional form of energy, there is nothing wrong in being in the forefront of ideas and theories whose time may have not yet arrived, and may never. However, being out front did expose the grievant to attacks and bedevilment from the ranks of conventional physicists and chemists whose hope is that none of those ideas and theories get footholds in their worlds.
There is a certain initial bafflement about why an organization of professional scientists like the American Physical Society (APS), through spokesmen like Robert Park, would be so adamantly opposed to the further exploration of cold fusion and other contrarian ideas to expend the time and energy they did to defeat at every turn the presentation of the COFE in a forum which might suggest a federal government interest in the subject matter of that conference. However, the bafflement is easily dispelled.
The federal government's budget pie for research and development in the areas of theoretical physics and chemistry is limited and, by and large, only traditional physicists represented by organizations like the APS, and its counterpart for conventional chemists, have been invited to sup on that pie. The last thing they want is any new guests invited to the table.
It's as simple as that, and it takes little "reading between the lines" to find that message and the accompanying call for like minded physicists to "circle the wagons" in a talk by Zimmerman to fellow traditional physicists, apparently given after he and Park had successfully scotched first the State Department sponsorship of the COFE, then the use of DoC facilities, and had seen the removal of the grievant from PTO service:
Pseudoscience, and particularly 'pseudophysics' is alive and thriving as we approach [the year 2000]. Not only have many 'inventors' of cold fusion spin-offs been making money from investors, but they and 'inventors' of various kinds of 'zero point energy' devices, perpetual motion machines, and other wonders such as 'hydrinos,' have found friends in the United States Senate. And at least one Nobel Laureate in physics has come to their aid. The Web has been a powerful organizing force as well.
Some [government agencies], including my own Department [of State] and the Patent Office have fought back with success, but always at great cost in time and energy. Pseudophysicists and their friends have money, influence, and sometimes clout. They have not hesitated to use threats, personal attacks, and the full machinery by which government is made accountable to the public to strike at those who expose technical fraud. Encounters with pseudophysicists are like grabbing a hot wire: after the first contact it is hard to get free, and it can inflict serious injury. But you, and I, and all our colleagues in the APS must do what we can to ensure that U.S. policy is not manipulated by pseudoscience, to make certain that taxpayer money is not wasted on nonsense, and to restore public confidence in real science. This will take efforts at public education, work, and as I have learned in the last year, not a little bit of courage. APS and FPS should be in the thick of the battle.1 3
Whether the "pseudophysicists" of Zimmerman's fears should or should not receive a slice of the pie is as far afield of arbitral resolution in a labor relations/statutory discipline dispute as is the potential of cold fusion. But, the fray between those like the grievant, frustrated with the hindrances to the recognition of such fruits as there may be of the technology they champion, and those devoted to maintaining all existing hindrances, and to raising as many new ones as they can concoct, seems to have affected the grievant's candor.
The fray has led to repeated mauling of the grievant in the weekly Internet postings of Park. While these and other adverse experiences of the grievant, including his removal, may explain his defensiveness, they don't excuse the lack of veracity in much of his testimony. Faced with the testimony of Mr. Godici and Ms. Focarino, especially their candor without apology in explaining why the element of the grievant's perceived deceptions and blame shifting affected their recommendations and actions, it was time for the grievant to stand up and account for himself.
As it was, his continued refusal before me to accept responsibility even for the relatively small matter of authorizing the Internet postings of the 1998 job vacancy notice, and the later larger matter of the Internet COFE ads, along with his general demeanor throughout his testimony, left the trustworthiness of the rest of his testimony both questionable and troubling.
A principal reason for Mr. Godici's decision to remove the grievant was his loss of confidence in the grievant's candor, trustworthiness, and thus in the certainty of his integrity. The soundness of expecting these quantities in a subordinate as a necessity of an efficient and productive supervisor/subordinate relationship is beyond question. If an absence of these qualities impacted the trustworthiness of the grievant's determinations in allowing or rejecting patent applications for measurement devices, even only to the extent of an excessive amount of SPE time devoted to "watching" his work, it might well be a basis for a job performance termination.
But the grievant's sidestepping of personal responsibility, and his lack of candor and equivocations in what he had to say when cornered in cross examination, cannot serve as a basis for sustaining discipline for the offenses of Conflict of Interest and Misrepresentation with which he was charged. Among other things, like the pre-March 9, 1999 for which he was not disciplined and which the Removal Proposal cited solely as having placed the grievant on notice not to mix his private activities with his official functions, what occurred in the hearing was also outside the March 9 to May 7, 1999 period for which he was and is being held accountable under the Removal Proposal.
What happened before me, and the effect it had on my judgment of his character, did not relieve the Agency of its burden to prove the specifics of its two charges by a preponderance of the evidence. The grievant's obfuscation and lack of directness did, however, place a heavy burden on him and the Union to back up his testimony with hard, collaborating, documentation.
Without independent substantiation, his testimony was worth little. It required at every critical point, both when heard and later reviewed, a laborious hunt to confirm a recollection that there was something consistent with his testimony in the hundreds of pages of more than 50 exhibits. These moment-to-moment searches were hurriedly conducted in the midst of the hearing, and terribly time consuming later.
However, when push came to shove, the documents mustered by the grievant and Union overcame the shortcomings of his candor and general demeanor to defeat the Agency's efforts, crippled as they were by reliance on hearsay and the inability to produce and subject to cross examination the witnesses said to have made the statements or described the events in issue, to prove by a preponderance of the evidence that the removal of the grievant was for good cause, consistent with the Agency's Table of Offenses and Penalties, or necessary for the efficiency of the federal service.
The Pre-March 9, 1999 Counseling . But for the Agency's insistence in its post-hearing brief on arguing that removal was the only appropriate discipline under all of the facts of record, specifically including the facts surrounding the grievant's earlier conduct which led to the double counseling session against his getting involved in recruiting new examiners and using duty time for a personal activity, and what he was up to that provoked the ban and bar order to keep away from Mr. Behrend, nothing more should need saying than what has gone before. However, since the Agency has devoted so much attention to the facts of the pre-March 9, 1999 incidents, a few observations seem needed.
With regard to the job vacancy notice, the grievant admitted he wrote it and sent copies by US mail and/or FAX to friends, among whom had been Dr. E. F. Mallove, a fellow advocate of cold fusion and editor and publisher of Infinite Energy magazine, which later would be a financial cosponsor of the COFE. What he denied was that he had authorized Dr. Mallove to publish it on the Internet. Like all his denials, only those backed up with direct or strong circumstantial evidence were deserving of belief, and here there was no such evidence.
To the contrary, clear from the grievant's testimony and demeanor (1) when the subjects of cold fusion came up, he was not a joking man; (2) he was strongly opposed to the PTO's anti-cold fusion policy reflected in its June 5, 1989 memo; (3) among fellow examiners, he had few, if any like-minded ones who would join in the effort to accomplish the unlikely feat of changing PTO policy on cold fusion and other "emerging technologies;" and (4) he seriously desired to recruit fifth-column allies into the ranks of examiners.
Accordingly, his denial of responsibility for the Internet appearance of the job recruitment notice does not fit the mosaic of the evidence, while Dr. Mallove's hearsay statement appearing in that posting (declaring that the recruitment notice was authorized by the grievant) provides a good fit and has the ring of truth.
As for the Agency's response to the grievant's job posting, he deserved the resulting counseling he received. But, again, since the incident did not result in discipline, and was only referenced in the Removal Proposal for it's "notice" providing qualities, it had no place in being, as Mr. Godici testified, one of the "pieces of this that just kept piling up and piling up, and my ability to rely on [the grievant] to do [his] job impartially [was] destroyed."
From the facts of the second counseling and the bar and ban order, the Agency tries to wring too much. Absent an abuse which affects an examiner's "productivity," it is a preposterous proposition to suggest that PTO supervisors "counsel" any examiner who takes an extended lunch hour to conduct private business, or who leaves work early to attend a child's softball game or some other wholly personal activity. It is unimaginable that a counseling for such an incident would be given an examiner who, like the grievant, consistently meets his "goals" in the number of patent applications he processes, and also like the grievant, always receives a "fully satisfactory performance rating," which is all but exclusively based on meeting those goals. 1 4
It is no secret that patent examiners are forced to be goal driven, and there is no escaping that their status as professionals with GS 9 and higher ratings which generally exempt them from mandatory FLSA overtime payments, and do not "compel" them to request the "comp time" they might be entitled to, are features of their positions which are fully exploited by the PTO. Evidence of the necessity for examiners to work more than a 40 hour week crop up everywhere: (1) their offices are accessible 24/7, (2) when Ms. Focarino e-mailed Mr. Kaness to call him on the carpet, she had no difficulty locating him in his office on an early Spring Saturday, and (3) when Ms. Bugaisky and the grievant were exchanging e-mail on setting a PTOS Education Committee presentation by the grievant, she told him, "I'd like to tentatively plan an April presentation, since attendance would probably be sparse in March due to the end of the quarter" when the regular three-month tallies would be made of examiners' case completions.
With the disruption and destruction of the private and family lives of examiners caused by the PTO's goals systems, it is amazing to have chastise the grievant over skipping out on an hour of government time and, as Ms. O'Shea testified:
Well, we [she and Ms. Rose] told him that he needed to request leave that day and he didn't follow the proper leave procedure which is requesting leave in advance. Rather than charging him with AWOL, I think we did permit him to take an hour's leave for that afternoon.
A pointed question about this "counseling" is, would it have been administered to the grievant, or any other examiner who also met his goals, but for the cold fusion subject matter of his DoE testimony? Because strict enforcement of a 9:00 to 5:30, with 30 minutes for lunch, or some other eight hours of duty time, would be so destructive of morale, Management's answer has to be, "No, of course not."
Still, Ms. O'Shea would concede only that long lunch hours taken to conduct personal business were ignored, and insisted that at the time the grievant left an hour early to be the last speaker at the DoE conference, all examiners who departed early or arrived late without first getting her permission (up to 59 minutes of which she claimed she could excuse), were required to charge the early absence or tardiness against their leave bank. However, she agreed that this forced charge of an hour or two to annual leave would be reflected in employee leave records, and it was made clear to the Agency that it had best substantiate her testimony by submitting examples of such.
Since the Agency failed to produce any leave records or other evidence supporting Ms. O'Shea's testimony, her testimony on this point was found to be incredible. The record as a whole established that this incident was a bootstrapping of a non-event into a "counseling," and was designed to be included with the justifiable counseling over the job vacancy notice so as to eventually influence a deciding official should the occasion arise for a serious disciplining of the grievant over his cold fusion activities.
The counseling would never have occurred but for Ms. Rose's keen appreciation of what would fly and what would bomb in seeking to discipline the grievant for attending the DoE and speaking about the need for separate DoE consideration of emerging energy technologies, free of the bias and prejudges of mainline physicists and chemists. To discipline the grievant over expressing his views in public was the real objective of Ms. O'Shea and Ms. Rose, as Ms. O'Shea made clear. And, although frustrated by the "clean" transcript of his remarks to the Secretary of Energy, one or both of them made sure that the transcript remained a part of the counseling record.
Equally troubling are the motives behind the ban and bar order forbidding contact by the grievant with Mr. Behrend. To raise another pointed question, the following observations are needed: (1) the ranks of patent examiners are made up all but exclusively of engineers (electrical, mechanical, nuclear, civil, etc.); (2) if they were not naturally scientifically curious, the PTO would be a strange place to make careers; (3) although at times it may seem so, examiners are not chained to their work stations, forbidden to exchange ideas, theories, experiences, and views.
Assume also that, (4) patent examiners mirror the split in the American public in general on the issue of abortion; (5) the PTO has a policy of allowing patents on new and improved inter-uterus devices (IUDs); and (6) among the Pro-Life faction of the examiners there are two or three with a religiously inspired mind-set against IUDs because they see their function to be the interruption of conception after the junction of sperm and egg.
The pointed question is, would a ban and bar order be entered to prevent an anti-IUD examiner from proselytizing the examiner responsible for IUD patent applications without a lot more solid evidence of a "business justification" than the hearsay used to sanctify the ban and bar of the grievant from visiting Mr. Behrend?
In pondering the answer, recall that evidence of the grievant's activities consisted of post factum e-mails solicited by Ms. O'Shea, and that the one from Mr. Behrend did not indicate that he had any complaint against the grievant's visits, a fact Ms. O'Shea testified she thought resulted from "examiners not wanting to get other examiners in trouble," but which just as likely resulted from his not being bothered by the grievant who possesses a good, if overly serious, conversational manner. In part, Mr. Behrend reported: "Tom was one of the examiners in Group 2200 who have dropped by my office from time to time to discuss the subject of cold fusion." 1 5
As for the e-mails from Mr. Behrend's first and second line supervisors, they were hearsay and double hearsay which the Agency was forced to rely upon because, like others of what ordinarily would be its live witnesses, they have left the PTO and could not be compelled, and evidently would not voluntarily agree, to appear. These cajoled hearsay statements and accounts of dubious misconduct by the grievant fail to satisfy the criteria of "reliability" and "fairness" for use to establish the truth of Ms. Focarino's Removal Proposal allegation of the grievant's "bothering a coworker to such an extent that you were banned from a part of the PTO's premises." So, about all these e-mails served to establish was that Mr. Garret, the second line supervisor, was disturbed that the grievant was "attempting to convince examiner Behrend that the PTO's longstanding position that cold fusion is inoperable is incorrect," and that Mr. Jordon, the first line supervisor, was bothered that "it appears that [the grievant] was trying to convince Mr. Behrend to change his position, and the position of the Office, on cold fusion." 1 6
Back to the point in question. Even if anti-IUD examiners appeared in a continuous succession, rather than dropping by from time to time as had the grievant and the couple of other cold fusion advocates, and seriously disrupted the work of the IUD examiner with their Pro-Life arguments against PTO policy, it's doubtful this real problem would be tackled with ban and bar orders comparable to that issued the grievant.
The reason is obvious, unlike proponents of cold fusion whose numbers are limited, there are phalanx upon phalanx of Pro-Life advocates who could bring their collective political might down on the PTO to an extent that Park and Zimmerman could only wish they possessed. Once word of the stifling of Pro-Lifers got beyond the confines of the PTO campus, it takes little to imagine the chorus of claims that "Christians suffer," "PTO squashes protest of devices of death," etc.
Any ban and bar order directed against examiners advocating a change in PTO policy based on their religious beliefs could also entangle the order in the White House issued Guidelines on Religious Exercise and Religious Expression in the Federal Workplace. However, there are non-religious issues that plausibly, or at least theoretically, could compel strongly motivated patent examiners to attempt to persuade others that the PTO policy they adhere to was incorrect and should be challenged by their proposing to their SPE the approval or disapproval, depending on which would be contrary to the questioned policy, of patent applications on the subject in question. 1 7
One such subject likely to draw adversaries of near equal strength in their ability to muster protesters for or against a ban and bar order, would be applications for devices that allow for the faster firing of firearms, short of rendering the weapons prohibited "machine guns." Whether PTO policy was to approve or reject such devices, to avoid embroiling the PTO in a galvanizing and publicity generating dispute between the NRA and gun control advocates, the PTO would carefully devise something short of a blanket ban and bar order like that issued the grievant.
Conflict of Interest . From the beginning, the first charge against the grievant has presented a legal framework within which it is hard to fit the facts of the Agency's case so as to keep those facts separate from the facts of the second charge of Misrepresentation. Likewise, the second charge cannot really be separated from regulatory elements of the Conflict of Interest charge. Both Ms. Focarino and Mr. Godici were hard pressed to explain where one charged ended and the other began. This was understandable since neither had written the document they signed. The author was Ms. Rose and she was no longer around to explain what her thoughts had been.
The full text of the reasons set out in the Removal Proposal for charging a Conflict of Interest was:
You used your employment with PTO in order to reserve the [DoC] space for COFE. Since your were going to charge participants of the COFE for workshops, publications and videotapes, you or IRI would have gained by the participation in a conference for which you reserved space using your PTO employment. Your failure to identify the nature [non-conventional source of energy] of the conference to Agency [DoC] employees and your reserving the space for the conference as a PTO employee represents a violation of the above-cited regulations.
I would also note that you intended to use [DoC] space to put on a conference. Under 5 CFR 2635.704, Federal employees such as yourself are required to protect and conserve Government property and not to use property for other than authorized purposes. Although your reservation of Department space was canceled after it was learned that you had reserved the space under false pretenses, it was clear that you intended to violate this regulation in addition to the ones already cited. Since you did not get a chance to violate this regulation because of the vigilance of Agency employees, I have not factored it in to my decision to propose a removal, but cite it as evidence of the seriousness of your misconduct.
The conflict of interest charge relies on 5 CFR §§ 2635.702(a) and (b) which prohibit "Use of public office for private gain." In what appears to be their pertinent parts, §2635.702(a) provides:
An employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a non-governmental capacity.
And, §2635.702(b) provides:
Except as otherwise provided in this part, an employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another.
The problem is that the specifics developed by the Agency concerning the grievant's contacts and discussions with Ms. House and Ms. Holloway are not inconsistent with the grievant's account of events. If that account is to be believed, he did not violate either §2635.702(a) or (b) to the extent the Agency charged. Of course, for the reasons already discussed, except where consistent with the Agency's evidence, or backed up by documents generated by others, the grievant's testimony would carry little weight.
Starting with the grievant's telephone contacts with Ms. House, the facts the Agency relies on are those related as hearsay by Ms. Teti in her memorandum to Ms. Rose:
On the morning of March 9, 1999, [the grievant] telephoned the OAO Support Services reservation line [and spoke to Ms. House]. According to Ms. House, [the grievant] asked about the procedures for reserving rooms for a private function. Ms. House advised that we normally do not allow the use of conference space by private concerns but that, if he wished to do so, he would have to submit a written request for the review and approval of the Director, Office of Safety and Building Management. Since Ms. House is relatively new to this function, she further advised [the grievant] that he could contact Telita Holloway, the senior member of the Support Services staff, if he had any questions. [The grievant] rang off but called back later to advise Ms. House that he would be in to see Ms. Holloway at 4:30 that afternoon. . . [emphasis added].
This hearsay account is consistent with the grievant's account including that (1) he specifically told Ms. House that he was seeking DoC rooms for a "private function," and (2) he made no mention that he was a Patent Examiner or otherwise affiliated with any part of the DoC. This would explain why Ms. House said that "normally" DoC facilities were not available for use by "private concerns." But that she did not rule out that a private function could be arranged, explains why she told the grievant that approval would have come from the Director of Safety and Building Management. Likewise, that Ms. House was responding to an inquiry about a private use and the paperwork needed explains why she did not refer the grievant directly to the Director of Safety, but instead to Ms. Holloway for further information.
To the extent the foregoing account of the grievant's activities reveal no violations of either 5 CFR §§ 2635.702(a) or (b) because it is based on conjecture that falls in favor of the grievant, that is a consequence of the Agency's inability to produce Ms. House as a witness, subject to cross examination. It is also a consequence of the Agency's refusal to make her available for a Union interview which would have fleshed out the content of her telephone conversations with the grievant, the details of which might have been more favorable to the Agency than the conjecture.
Of course, the possibility of the Agency obtaining anything favorable from a Union interview of Ms. House would be close to zero. No doubt Ms. Rose had exhausted Ms. House's usefulness in providing evidence leading to a 5 CFR §§ 2635.702(a) or (b) conviction of the grievant. This conclusion is not based on doubtful speculation, but evidence of Ms. Rose's competence and unwavering focus on dealing with the grievant.
While ostensibly the February 26, 1998 request for the DoE transcript of the grievant's comments made to the Secretary of Energy came from Ms. O'Shea, there is no doubt it was written by Ms. Rose. Just as her expressed concern to the DoE was that the grievant had "represented himself as a patent examiner at the hearing which [would have] been inappropriate," so too in the telephone conversation which Ms. Rose had with Ms. Teti, and which Ms. Teti referenced in her memorandum, Ms. Rose certainly expressed the same concern and told Ms. Teti that she was in pursuit of evidence that the grievant had used "his Government position or title or any authority associated with his public office in a manner that [was] intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a non-governmental capacity," in violation of a 5 CFR §§ 2635.702(a) or (b).
Had Ms. Teti secured such evidence from Ms. House, she certainly would have included it in her memorandum. Since it was not there, and there was no creditable testimony to the contrary, the grievant must not have told her where he was employed, but just as he had at the DoE hearing, presented himself as simply "Joe Blow, off the street," making an inquiry as a private citizen of Ms. House about the possible use of the DoC auditorium and other adjacent facilities for a "private function."
Furthermore, as a consequence of the Agency's failure to produce Ms. House for questioning at the hearing, it is presumed that after the grievant made the follow-up call to her announcing that he was going to see Ms. Holloway on the basis of her recommendation, Ms. House gave Ms. Holloway the "heads up" call already presumed, and explained that the grievant, who was on his way to see her, was seeking as a private citizen to use the DoC auditorium and nearby meeting rooms for a wholly private function.
When grievant arrived so soon after calling Ms. Holloway, she was surprised and asked him where he worked that he could arrive so soon. This was the first time he told either Ms. House or Ms. Holloway that he worked at the PTO. After this initial conversation and having determined that the auditorium and other sought after rooms were not committed to another use on the dates he wanted, the grievant explained to Ms. Holloway that the private function he wanted to stage was a conference on energy that would be attended by non-government employees, this latter point being confirmed by the number of extra security guards needed, presumably to check identification and pass the attendees through metal detectors and other security procedures normally waived or lessened for credential carrying federal employees.
In any event, the Agency has not carried its burden of establishing by a preponderance of the evidence its critical allegation that the grievant, "never indicated to Ms. Holloway that you were considering reserving space at the Department for a private function to be run by the Integrity Research Institute." Rather, whether Ms. Holloway, as a GS-6 facilities scheduler, understood the controversy surrounding "alternative energy sources," cold fusion, and the IRI in the rarefied worlds of theoretical physics and chemistry, the documents and testimony of record, and to the extent needed to fill any void, the inferences which the Agency must bear for it failure to produce Ms. Holloway, is that she fully understood that the grievant was seeking to stage a private function which would need services and equipment for which his private organization, the IRI, would have to reimburse the DoC.
Pursuant to the "customer friendly" mantra of the DoC support services staff reflected in its internal documents, Ms. Holloway also was trying to be helpful in finding a way for the grievant to firm up the tentative reservations and stage his event. It was she, and not he, who brought up the matter of obtaining PTO involvement as a DoC agency which could provided the financial security or "accounting code" which would make matters easier to handle, and this is reflected by the items on the CD-410 which she checked off and instructed the grievant that he would need to obtain.
Having not produced Ms. Holloway as a witness, the Agency is burdened by the reasonable interpretation of the meaning of the CD-410 check marks and notations, and the adverse inferences drawn as to Ms. Holloway's participation in assisting the grievant to find a legitimate way to use the DoC facilities he sought. These adverse inferences are less severe than the promised penalty for the Agency's not producing Ms. Holloway for a Union interview, something it certainly could have arranged at the time of the Union's initial request when Ms. Holloway remained a DoC employee.
More, important, since neither Ms. House nor Ms. Holloway flat out told the grievant that it was impossible for a "private event" to be held in the DoC facilities, but only that it was "not usually" done, the presumption is that when it is done it is done in the exact way that Ms. Holloway indicated when she sent the grievant off with the annotated DC-410. What she did was what the then latest (01/21/99) Support Service Staff Process Review called for, namely:
Requests from non-Commerce entities
No outside (non-federal) groups may use [DoC] conference facilities without a Commerce sponsor.
Thus, in all of his dealings with Ms. House and Ms. Holloway, the grievant never represented himself as having authority on behalf of the PTO to reserve the DoC auditorium. On the contrary, it is clear from the check marks placed on the CD-410 by Ms. Holloway and the notations on it made by the grievant, that he had told her that he had no such authority. With the burden on the Agency to establish by a preponderance of the evidence that the grievant had used "his Government position [ ] to coerce or induce another person [ ] to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a non-governmental capacity" to establish a violation of either 5 CFR §§ 2635.702(a) or (b), its efforts fell short without Ms. Holloway's clarifying testimony.
As for the Agency's tacked-on allegations of potential monetary gains, which is a more customary element of 5 CFR §§ 2635.702(a) and (b) charges, the fact that the grievant and IRI were going to charge a workshop entrance fee of $30 for each workshop attended, and offer at $30 each a post-conference "bound edition of the Proceedings of the COFE ," and the sale of other books and pamphlets, is not enough. The Agency needed to prove its profit allegations, but made no effort to do so. There no evidence that the proceeds of these charges, even with the funds or grant received from the IRI's cosponsor, Infinity Magazine, would exceed the obvious cost of the "additional security" and other necessities, including the "vanity publication" cost of any "bound editions" of the IRI sales items.
As suggested by the record as a whole, especially by the claims in the flyer and Internet posting that the COFE was being "sponsored" and presented "in cooperation with" and "under the auspices of" the US Department of Commerce, what the grievant and his IRI sought was not monetary gain, but the appearance of public recognition by a federal agency of the legitimacy of cold fusion and other non-conventional energy sources. But, this is speculation made murky by the Agency's insistence that the grievant was looking to make money, and when the Agency has the burden of proof by a preponderance of the evidence, an arbitrator's speculation is no substitute for solid evidence, and Park's claims about the grievant's motives don't fill the void.
Besides, if the Agency intended to establish a 5 CFR § 2635.702(b) violation on a "nonprofit, just glory" basis, still missing is proof that the grievant used "his Government position or title, or any authority associated with his public office," to gain the appearance of government endorsement of "his personal activities or those of another." One thing established by the record as a whole, starting with the transcript of the grievant's DoE testimony, is that he took care not to mention his PTO employment in his advocacies of non-conventional energy. His proselytizing was either as a private citizen off the street, as at the DoE, or through the IRI web site and the peddling of his various books and pamphlets. There is no evidence that he ever said or published anything like, "I am a patent examiner with the PTO, so I know these theories are viable."
Only in his Internet job vacancy notice, and in his response to Ms. Holloway's inquiry, did he reveal his PTO employment, and as explained, he was not disciplined for the former, and the latter, when placed in context, was an evidentiary "non-event" as far as an assertion of authority is concern. For that matter, so too is the former.
Misrepresentation . Unlike a federal employee misrepresenting his official authority which he did not possess, which would be tantamount to flat lying and require an element of intent under 5 CFR § 2635.702, there is no regulatory authority to look to in defining what constitutes a "misrepresentation" for which an employee can be removed in the interest of preserving the efficiency of the federal service.
At the hearing, the Agency suggested that an actionable misrepresentation is a representation not backed by fact, whether it was known or unknown by the grievant at the time not to be true, and that "misrepresentation" is not an "intent offense." An example occurred during the cross examination of Mr. Godici, about the allegations in the Conflict of Interest charge that the grievant, "used [his] employment with PTO in order to reserve the Department space," and his "failure to identify the nature [cold fusion] of the conference to Agency employees and your reserving the space for the conference as a PTO employee," and, that he "had reserved the space under false pretense," when Agency counsel raised an objection:
UNION REP: Is there any evidence that [the grievant] intentionally deceived the Department of Commerce personnel as to the PTO sponsorship?
AGENCY COUNSEL: Objection, because that has not been charged.
UNION REP: My goodness.
AGENCY COUNSEL: Relevance. There's no intent offense charged here. Misrepresentation goes to promoting the conference with the cosponsorship [and] under the auspices [representations]. With respect to DoC, there is no intent offense charged. The [Union's] question goes to intent.
ARBITRATOR: So that the intent is - - In other words, he's in trouble even if it was an unintended, simple mistake.
AGENCY COUNSEL: It could be negligence.
The Agency's counsel did go on to say that the Misrepresentation charge was "an intent charge," but the seeds of confusion as to whether the Agency thought it was immaterial whether the grievant intended to misrepresent when he made statements that later proved untrue. For good reason, the Agency backed off such a position in it post-hearing brief. Still, the issue deserves to be laid to rest less it reappear elsewhere.
The MSPB views falsification and misrepresentation as serious offenses. After all, an agency is entitled to have employees who are candid and trustworthy, not deceiving or dishonest. As the Board sees it, an employee who knowingly gives false or inaccurate information to his superior "strikes at the very heart of the employee/employer relationship." Bradley v. VA, 39 MSRP 598, 604 (1989). Accordingly, its position is that falsification or misrepresentation warrant severe penalties. However, because of the severity of the penalty imposed in the misconduct cases that come before it (15 days suspension to removal), the Board has held agencies to proof by at least the preponderance of the evidence required by 5 USC §7701(c)(1)(B), that the employee intentionally provided incorrect information. Arenz v. Dept. of the Army, 51 MSPR 88 (1991).
Early on, the Federal Circuit affirmed this position in passing on MSPB decisions, holding that "[t]o sustain a charge of 'submitting false information,' the agency must prove by a preponderance of the evidence that the employee knowingly supplied wrong information, and that he did so with the intention of defrauding [or deceiving] the agency." Naekel v. Dept. of Transportation, 782 F,2d 975, 977 (Fed. Cir. 1986).
More on point in the present case are the instructions provided by the Board in Nelson v. USPS, 79 MSPR 314, 321-22 (1993):
The requisite intent may be established by direct or circumstantial evidence. See Deskin v. USPS, 76 MSPR 505, 510 (1997). That the employee supplied incorrect information cannot itself control the question of intent, and plausible explanations are to be considered in determining whether the misrepresentation was intentional. See Forma [v. Dept. of Justice, 57 MSPR 97,] at 103 [(1993)]. The lack of any credible explanation for the misrepresentation can constitute circumstantial evidence of an intent to deceive. See Scott v. Dept. of Justice, 69 MSPR 211, 226 (1995), aff'd, 99 F. 3d 1160 (Fed.Cir. 1996) (Table). In addition, such intent may be inferred when the misrepresentation is made with reckless disregard for the truth or with a conscious purpose to avoid learning the truth. Hernandez v. Dept. of Educ., 42 MSPR 61, 69 (1989). The issue of intent must be resolved based on the totality of the evidence. Deskin, 76 MSPR at 511.
But, even if intent were not a required element of the offense of misrepresentation, there is a simpler, more logical than legalistic, consideration that comes into play here. How can a state of affairs be misrepresented unless at the time of the alleged misrepresentation, the facts represented were absolutely not true? To answer takes us back to the interplay and intermingling of the facts of the Conflict of Interest charge with the facts of the Agency's Misrepresentation case.
The starting date and the event out of which both charges evolved was the grievant's October 16, 1998 invitation from the State Department "to initiate a conference on Free Energy" to be presented on April 29 and 30, 1999 under that Department's auspices as part of its Secretary's Open Forum program.
Everything the grievant, his IRI, and his friends publicized about the State Department's sponsorship of what had become the COFE (then "Conference on Free Energy," and later "Conference on Future Energy") was completely correct. He had been given carte blanche by his State Department sponsors to design the conference and to invite and arrange the speakers and other presenters. Furthermore, as long as it was at the IRI's and private contributor's expenses, or from participant's entry fees, he was free to conduct workshops on the following Saturday, May 1, 1999, in government facilities.
There was no showing of any conflict of interest or misrepresentation concerning any aspect of the grievant's representations about the State Department involvement in the COFE. Furthermore, the State Department experience established that it was not unusual for a department of the Federal Government to sponsor and host what otherwise was an event driven by an outside, non-profit organization, for its benefit ( e.g. not unlike the already mentioned Red Cross blood drive). Only because of the equally private interest driven efforts of Park and Zimmerman to nix the grievant's State Department invitation, less it lead to any of the listed COFE speakers ending up later being served a slice of the federal government's R&D funding pie, was the COFE as a State Department event placed in jeopardy.
When in late January, 1999, Park and Zimmerman were successful, the grievant found himself deprived of State's Dean Acheson Auditorium, and left to scramble for an alternative site and sponsor. He first turned to friends at the Department of Energy for use of DoE facilities, but was countered by Park and Zimmerman's better placed DoE friends. This last rebuke set in motion the grievant's quest for the DoC facilities.
By then, the grievant was under a severe time constraint to rearrange a site. This, the record suggest, caused him to reverse his regular sequence of lining up a sponsor and then determining the availability of the site. He had only seven weeks or so to either salvage or scrub his previously announced April 29, 30 and May 1, conference and workshop dates. So, on March 9, he turned first to Ms. House and Ms. Holloway to nail down the site.
If from his past experiences with State and the DoE, the grievant did not realize that he would need a government sponsor or guarantor to obtain use of a federal facility, Ms. Holloway made the need clear. She gave him a CD-410, a form which on its face is an intra and inter agency facility utilization form, but since he was seeking the DoC auditorium and other rooms for a private function, she checked off and explained the items he had to get from a government guarantor.
At this point, serendipity played its role, the grievant in fulfilling his duty as a member of the PTOS Board of Directors to "get involved" in formulating and bringing off Society public service and educational activities, he had volunteered his services to Ms. Bugaisky to present his "Zero Point Energy" lecture as a PTOS Education Committee function, primarily for PTO personnel. Ms. Bugaisky's response had been immediate, enthusiastic, and deeply thankful. To fill the void in her committee's schedule, while purposefully avoiding the month of March and the end of the "goal accounting" quarter for patent examiners, they agreed on an April presentation.
So, the grievant knew exactly where to go when he left Ms. Holloway with instructions on how to obtain the DoC facilities for the COFE. It was to Ms. Bugaisky and Mr. Stouffer, his mentor, friend, and a the past PTOS president. As already related, Ms. Bugaisky agreed to substituting the much grander COFE with its already lined up smorgasbord of new technology speakers for the April lecture to be given by the grievant alone.
To counter the evidence of Ms. Burgaisky's enthusiastic involvement in setting up PTOS sponsorship of the COFE, the Agency produced an e-mail sent by her to Mr. Kaness on Monday morning, March 29 following the storm caused after Mr. Kaness' learning of the IRI flyers claiming PTOS and Education Committee sponsorship, and, of course, his receiving Ms. Focarino's Saturday, March 27 e-mail, calling him and all of the PTOS on the carpet. Showing the same lack of intestinal fortitude that Mr. Kaness would later demonstrate in bouncing the grievant off the PTOS Board, she proclaimed, in the same style she had used in January to welcome the grievant's offer to put together an Education Committee presentation:
Matt, are you serious that Tom was advertising this as an Education Committee event???? He's a member of the committee, but I nixed any sponsorship by the committee because the event was not occurring on grounds here (i.e., would not benefit the members), because he pretty much demanded a split second decision after he quickly rattled off the topic of the event and because there was not enough time for PTOS to determine whether there could be any official co-sponsorship - - apparently he needed to use us as a conduit to funnel money from the sponsors to DOC, something similar to what was done last year with the Independent Inventors Conference. He was determined to go ahead anyway, so I referred him to Rich Stouffer to find out if there was any precedent for such an event and to Renee to see if there was any way that the money issue could be handled. I'm more than a bit disturbed by how this is turning out.
As with Mr. Kaness himself, neither hide nor hair was seen of Ms. Bugaisky at the hearing in this case, and no doubt, for equally as good reason. And, for equal as good reason, the Agency proposed use of her e-mail as hearsay fails the basic tests of "reliability" and "fairness."
Now, back to the story. With plenty of precedents -- from the PTOS's gift shop operated inside a PTO building, to obtaining the PTO's co-sponsorship of the Independent Inventors Conference in Houston, and other ventures in the Washington area over the years -- obtaining the PTO guaranty (PTO financial code) and the transfer of IRI money (by check payable to the Commissioner of Patents) would seem a snap. This was especially so with the PTO's financial officer's detailed instruction for completing the CD-410 on behalf of the PTO, and returning it for his signature and delivery to Ms. Holloway, or whoever, back at the DoC.
And so it would have been a sure thing, and a totally normal arrangement for the COFE to be staged in DoC facilities, but for Park's engineering the third, and final, train wreck of the grievant's aspirations with all the subject matter approval implications of such housing so feared by Park and the cozy club members he represented. That the wreck had occurred was unbeknownst to the grievant when it happened, and thus posed the now classic questions, "what did the grievant know, and when did he know it?'
It was by the e-mail sent by Ms. Focarino to the grievant at 11:42 AM, on Friday, March 26, 1999, "Re: Conference On Future Energy," that he learned:
I have been asked to inform you that the Department of Commerce will NOT be allowing you to use any of the facilities at DOC that you requested for your conference beginning on April 29th. I will be in contact with you in the near future in reference to this and you will be notified in advance if any investigatory meeting is to be held.
This e-mail notice of the unavailability of the DoC facilities was given without an explanation as to why. It had been sent hastily because, according to Ms. Focarino's e-mail to Ms. Rose, the grievant could not be located before Ms. Focarino was scheduled to leave. In any event, by 8:31 PM that same Friday, the grievant had seen her e-mail and knew that a COFE wreck was impending. As a last gasp attempt to avert the wreck, he responded to her with his own e-mail, "I am surprised by your e-mail effectively canceling the PTOS event."
With the involvement and approval of Ms. Bugaisky and Mr. Stouffer, both PTOS Board members, and with Mr. Hassett pushing the CD-410 paperwork, this was not a misrepresentation at the time of its assertion. There was no convincing Agency proof of an intent to deceive with false information. The COFE was a PTOS Education Committee project, on track for routine PTOS Executive Committee approval and pro forma PTO underwriting.
It only became a "non-PTOS event" when the president of the PTOS asserted authority to overrule the chairwoman of the Education Committee, and in his panicked response to his copy of Ms. Focarno's e-mail of Saturday, March 27, 1999, sent at 4:26 PM to the grievant, demanding, "Is this a PTOS event? If so, why hasn't PTOS cleared this with anyone at PTO?"
It was with Mr. Kaness' e-mail response, copied to the grievant, that the latter learned that, "The COFE is NOT a PTOS event," a notice he saw no later than at 5:09 PM, Saturday, March 27, 1999. Until this receipt, there was no intentional misrepresentation of PTOS endorsement, including in his earlier, Friday, March 26. 1999 e-mail to Ms. Focarino at 8:31 PM.
Likewise, no misrepresentation by the grievant can be found in the e-mail report from Ms. Teti to Ms. Rose on Wednesday, March 31, 1999, at 8:30 AM, evidently in response to Ms. Rose's sweep for evidence against the grievant, which attached the following hearsay e-mail sent by Ms. Holloway to Ms. Teti, Tuesday, March 30, at 5:35 PM:
I spoke to [the grievant] on [Monday] 3/29/99 regarding the cancellation of his reservation. He told me that he was glad I called. He had to cancel his reservation because his supervisor was not in the loop, I asked what the event was for and he said that it was the PTO Society.
Although a hearsay report not subject to cross examination scrutiny, on its face it is favorable to the grievant. After the events of the weekend which brought down the COFE, he had good reason to have been glad that Ms. Holloway had called so he could explain, that despite all her "customer friendly" help to arrange use of DoC facilities for his "private function," it had to be canceled. It was a courteous thing for him to do in light of the assistance she had provided on March 9, which the record suggests had been on her own time, past her normal end duty day.
As for his ascribing the cause to have been because "his supervisor was not involved in the loop," Mr. Focarino made that a cause when in her Saturday e-mail to the grievant, she had demanded, "Why was I not informed by you Tom, since I would have to agree to your participation in this event?" And, it was she who had informed him on Friday, March 26, that, "DOC facilities would NOT be available to him for his conference. . . ."
Likewise, when viewed in the context of events, the grievant's follow-up e-mail sent to Ms. Focarino at 11;51 AM, Monday, March 29, 1999, as the dust was settling after the Saturday declaration of Mr. Kaness that, "[t]he COFE is NOT a PTOS event," there was nothing incriminating or sinister in his message:
My choice of wording was incorrect. COFE was potentially a PTOS event and the approval process had just begun. Our board meeting is another week away and that would have been the next stage of development for the event.
Since he had not been one of the addressees on a Friday, March 26, 1999 e-mail sent at 9:51 PM by Mr. Kaness to what appears to have been every other Board member except the grievant, the grievant was unaware that Mr. Kaness had pretty well announced that there would never be any PTOS approval of the COFE. Thus, to the extent the Agency sought to use this message as either an instance of further misrepresentation or an admission of a prior intent to deceive Ms. Focarino, it failed to carry its burden of proving either proposition by a preponderance of the evidence.
Then, there is a memo, "Re: Proposed Conference," from the grievant to Q. Todd Dickinson, who the Agency identifies in its brief as the "USPTO Under Secretary." The memo states its purpose to be, "To keep you informed, the PTOS has been working with me, as part of the education committee, to present an unofficial, open-to-the-public education event called [COFE, now scheduled for] the Commerce auditorium," a rather forceful rebuke to the Agency's claim that the grievant was keeping the PTO in the dark.
Despite this, and despite the document bearing the "DATE: 3-23-99," the Agency claims in it brief that the " next time [the grievant] claimed sponsorship where none existed was on March 29, 1999. On that day, the same day that he sent the retraction to Director Focarino, [the grievant] nevertheless sent [the memo to Mr. Dickinson in which he] stated unequivocally that a 'sponsor has also been secured,' and attached a conference brochure clearly announcing 'Sponsored by the [PTOS].'(emphasis added)"
Because the Agency represents that the memo was sent three days after, rather than three days before, Mr. Kaness' declaration that "The COFE is NOT a PTOS event," the picture the Agency seeks to paint of deception and misrepresentation by the grievant is seriously flawed. Like with the grievant's initial response to Ms. Focarino, when the memo was sent on March 23, 1999, the COFE was still on track to being a PTOS sponsored event held in DoC facilities with the necessary PTO signed CD-410, and the grievant and the IRI did have the Infinite Energy Magazine as a financial underwriter and cosponsor. For these reasons, as evidence of further misrepresentations by the grievant, it's a thudding dud and flat rejected. 1 8
However, there is one aspect of the Agency's Misrepresentation charge that the grievant cannot escape. He always knew, before, with, and after, the posting of the Internet notices and the issuance of flyers between about March 22 and 26, 1999. It was that in no way was the Department of Commerce a "cosponsor" of the COFE, and to represent otherwise was a misrepresentation.
The matter is not complicated, if the DoC allowed the use of its facilities for a retirement party, or an employee's wedding reception, or an Internal Revenue Service award ceremony because the IRS offices down the street have no auditorium, it would be a misrepresentation to hold out that either the party, the reception, or the award ceremony was "cosponsored" by the Department of Commerce, much less that the employee's retirement. the other's entry into matrimony, or the IRS awards were events "blessed" by the Department or otherwise characterized as being "under the auspices" of the Department.
Falling flatter than any rejected argument of the Agency is the repeated argument in the Union's post-hearing brief, although it occasionally varies the wording, that there was no evidence that the grievant had either authored or authorized the Internet postings.
The grievant's acknowledgment that his former fellow patent examiner, Paul LaViolette, whose job at the PTO the grievant had encouraged, was a friend with the same fervent belief in cold fusion and other non-conventional sources of energy, might not alone have carried the Agency's burden of proof by a preponderance of the evidence that in Mr. LaViolette's post-PTO employment as the editor of the Sphinx Stargate Website, the grievant had authorized, and probably requested, that Mr. LaViolette post the notice found by the PTO:
Interested in advance energy technology that won't produce global warming? Then don't miss attending the First International Conference on Future Energy, cosponsored by the U.S. Department of Commerce and Integrity Research Institute! [etc.]
What carries the day for the Agency is direct evidence of the grievant's authorship of the IRI posting. Prior to the Agency's "3/23/99, 10:37 AM," discovery of the IRI Internet posting, the grievant sent Mr. Stouffer an e-mail on March 16 with an attached "proposed flyer." Besides prominently stating what was not incorrect at the time, "Hosted by PTOS and Integrity Research Institute," the proposed flyer went on to proclaim, "the Integrity Research Institute under the auspices of the U.S. Department of Commerce at 14th and Constitution, Washington, DC, in the main Auditorium presents the first COFE."
So too did the IRI posting discovered by the Agency a week later include the same wording, with only a slight juxtaposition of words, "under the auspices of the U.S. Department of Commerce at 14th and Constitution, Washington, DC, presents the first COFE in the main Auditorium." This marked similarity between what he told Mr. Stouffer was his proposed language and what appeared in the IRI posting, plus the stark fact that he was president of the IRI, an admittedly one person run entity, nails the grievant as both the author and force behind the IRI posting. So also, circumstantially, does it further drape him with responsibility for Mr. La Voilette's posting.1 9
The Agency also established a nexus between these misrepresentations and the need to discipline the grievant in order to maintain the "efficiency of the federal service." His misconduct was disruptive of the good order of the official functions of the PTO, taking personnel from their normal duties to determine and nullify the effects of his misconduct, cancel the tentative reservation of the DoC facilities, and otherwise distance the DoC and PTO from the grievant's COFE.
However, the Agency failed to justified the severity of the discipline imposed. Putting aside the problem of the improper, and most likely harmful error of the predetermination materials put before Mr, Godici by HR, and based only on (1) what the Agency was able to carry of its burden of proof by a predominance of the evidence; (2) the "first offence" nature of the grievant's transgressions under the Agency's Table of Offences and Penalties; and (3) an appropriate application of the Douglas factors, the penalty of removal must be mitigated to that of a 60 day suspension without pay.
In arriving at this determination, assessments have been made of the following Douglas factors:
Nature and Seriousness of the Offense . While all misrepresentations made by an employee that adversely implicate his agency are to be treated as serious if for no other reason than the expectation that an employee will always be honest, the negative consequences of the grievant's misrepresentation that the COFE was being cosponsored by the DoC, as alleged in the Removal Proposal, were not proven. Specifically, there was no substantiation that those members of the public who might have read the misrepresentation on the Internet caused them to have a negative view of the DoC or PTO, or caused any significant number to come to believe, much less to care, that those agencies endorsed some kind of private commercial activity, or "a particular type of energy production." 2 0 More will be said under another of the factors about the segments of the general public that cared at all about the COFE and where it was held and who cosponsored what.
But before leaving the present factor, it needs to be noted that there was no evidence, or even an accusation, that the misrepresentation or his advocacy of cold fusion had any impact or relationship to the grievant's duties as a patent examiner in the Art Unit to which he was assigned. Accordingly, the seriousness of the offense is entitled to weight, but significantly less than that claimed by the Agency.
Grievant's Job Level and Type . Since the grievant is not a supervisor or in a publicly prominent position, these are not significant factors beyond establishing that, by reasons of his education and degree of responsibility intrusted to him, he should have known better.
Past Disciplinary Record . Since the grievant had no prior record of formal discipline, this factor should have been given more weight by the Agency than it evidently was, and has been considered here to be of major significance.
Past Work Record . The grievant's consistent "fully satisfactory" annual appraisals are also considered of significance in mitigation of the grievant's removal. He has not been a "marginal" patent examiner.
Effect on Supervisory Confidence . The testimonies of Mr. Godici and Ms. Focarino were taken seriously and their loss of confidence and general trust in the grievant are concerns that warrant as significant penalty as the Agency's Table of Offences and Penalties and considerations of the other factors will justify. But, in establishing the weight to be given this factor, recognition must be given to the fact that the misconduct proven here was not convincingly shown to justify questioning the grievant's "ability to perform his assigned duties."
Consistency of Penalty . There was no evidence of prior discipline for a misrepresentation comparable to that of the grievant. There was evidence of prior Conflict of Interest cases, elements of which involved misrepresentations, but misrepresentations made to the Agency, and not about the Agency, to secure a benefit for either the employee or someone of significance to him.
Of concern here is that at both the predetermination stage, when the Union was scrambling to assemble a defense for presentation to Mr. Godici, and at the discovery stage before Mr. Hockenberry and me, the Agency repeatedly maintained that it had no records of prior Conflict of Interest or Misrepresentation cases.
This was a transparent falsehood because (1) the Union was able to produce from its own arbitration records the cases placed in evidence, and (2) when initially requested, Ms. Rose was actively involved in this case, and a disparagement of her keen intelligence cannot be allowed as would occur if it were accepted that she had a "blank institutional memory." Much for these reason, the Agency was warned in my May 13, 2004 Order of Enforcement and Notice of Likely Consequence of Non-Compliance, that:
All conflict of interest cases that have ever risen within the PTO or the DoC and its subordinate units have resulted in either no discipline, or discipline that never exceeded a 5-day suspension, and generally resulted in only reprimands or written warnings, even in cases more egregious than that alleged against [the grievant].
The full force of this threat will not be carried out, but the Agency must mend its ways in both predetermination and pre-arbitration discovery responses to Union requests for evidence that could serve to vindicate an employee or to mitigate against a proposed penalty. The sanction that will be imposed in this case is a refusal to consider a penalty more severe than the 60-day suspension which will be imposed.
Besides the due process problems created by its past conduct in the course of discovery in this case, this sanction should be considered a consequence of the Agency's misplaced insistence on a hard-line, defense-crippling approach to responding to its Labor Agreement. It needs to abandon its reliance of 5 USC §7114(b)(4), since few arbitrators can be expected to give deference to this "negotiation" statute over the explicit "discovery" provisions of its Agreement. 2 1
The cases produced by the Union reveal more egregious misconduct, or at least morally questionable, involving misrepresentation for which the discipline imposed never exceeded a 14-day suspension. Perhaps the most impressive or interesting of the Union's repertoire of prior misrepresentation-tinged cases was that involving a GS 14 primary examiner who fell into a "personal relationship" with a patent applicant whose application was either before him or had been.
To further ingratiate himself in his personal relationship and enhance such favors as Ms. Green was bestowing, besides a Christmas gift, flowers, cards, and a certified check for $2,000 "to help Ms. Green with financial difficulties and costs associated with her international patent application," he assisted her in preparing that international application with patent searches using PTO resources. In the course of that effort, when a need arose for a translation of a Dutch patent, he obtained it by misrepresenting to the Agency that he needed it in his own PTO work. The cost which the Agency paid its translation contractor for the translation was $223.36.
In a November 23, 1998 Suspension Proposal, for these and other less glamorous transgressions committed in the course of the relationship with Ms. Green, a mere (when compared to the treatment accorded the grievant) 30-day suspension was recommended. However, even that was not adopted.
In the January 4, 1999 Suspension Decision, the primary examiner received a 14-day suspension, mitigated in part by his clean prior record, a check tendered the deciding official for the $223.36 translation, and a plea that a 30-day suspension without pay would place him under a "financial hardship," no doubt compounded by his previous $2,000 giveaway. Still, on balance, the Douglas factors discussed in that case were not more favorable to the primary examiner than those favorable to the grievant here.
To borrow a frequently uttered phrase of the Union representative handling the present case when startled by a hearing revelation, if a 14-day suspension for a Misrepresentation surrounded by as much reprehensible, peripheral stuff as was alleged in the Suspension Proposal, all of which the accused examiner admitted while throwing himself on the mercy of the deciding official, is the most the evidence shows has ever been meted out by the PTO, then, "My Goodness! The PTO penalty bar sure could use being raised."
If it were not for the Agency's failure to demonstrate a range of imposed and upheld penalties for misrepresentations, or what it might argue were cases of comparable seriousness in offenses, practically anything, which exceeded the 14-day suspension in what the Union refers to as the "Green case," the grievant's mitigated penalty would have been no less than a 60-day suspension, with a probability of 180 days if support were found in MSPB cases for such an arbitrator's action. But, because of the Agency's failure, the Douglas factor in question pretty much precludes me from "raising the bar" for proven Misrepresentations charges at the PTO more than the slightly greater doubling of the previously established "Green case" standard which I adopt.
Before leaving this factor, a parting shot at the Agency's repeated denial of any record of prior Conflict of Interest or Misrepresentation cases in which discipline was imposed, please note the date of the Green 14-Day Suspension Decision. It was January 4, 1999, only six months, three days, before the steamrolling of the grievant in the present case got underway with Ms. Focarino's May 7, 1999 Removal Proposal. Also, the Union had used the Green case for disparate penalty purposes in another arbitration heard ahead of this one.
Now, it is one thing to play games with the Union and risk what may come of it, but it is another thing to show contempt for arbitrators like that shown Mr. Hockenberry and me by carrying the game into its pleadings filed in this arbitration.
Not for a minute do I believe that the Agency's counsel appearing before me was a part of the game played out by HR. But, if he and the General Counsel do not knock heads in HR, including to the point of Removal Proposals for Misrepresentation for those HR personnel who have brought, or may bring, disrespect and distrust of the PTO and DoC among arbitrators, a group a heck of a lot more important to those agencies than any group of persons who were adversely affected in their opinions of either by the misrepresentations of the grievant, then they will deserve losing to one degree or another every adverse action case that goes to arbitration.
Until the Agency can demonstrate that the notice proposed herein has been posted in HR, with perhaps that every HR employee being required to sign a copy as part of a refresher course on ethics, and that some discipline for the fiasco in this case has been imposed, even if no more than written reprimands for those still on staff who had a hand in what was filed in this arbitration, every arbitrator accepting a PTO case should be wary of accepting at face value any representation made by the PTO. Harsh as this is, the Agency simply must stop ignoring the fact that the POPA has a Labor Agreement with it and that, by golly, it's bound by that Agreement and every facet of due process which it and the laws import. Again, Stop it! To outshine the grievant in deception and lack of forthrightness, is nothing to be proud of.
Consistency of the Penalty With the Agency's Table of Penalties . A 30-day suspension will be consistent with the Agency's Table of Penalties, which for a First Offense of Misrepresentation runs the whole gauntlet from "written reprimand to removal." A major problem with Mr. Godici's acceptance of the Removal option was that beyond declaring that he had considered the Douglas Factors, there was explanation as to exactly what facts about each did he consider and what weight did he accord them. However, comfort can be taken in the thought that had he had before him the facts and testimony placed before me, he would not have removed the grievant, but imposed a reduced penalty.
During the course of his testimony when he was asked what I should do with the problems created by all the hearsay on which the Agency was dependent and the resulting lack of a chance to cross examine, he told me he knew I'd do my best, and I have tried to live up to his trust.
Notoriety of the offense or its Impact on the Agency's Reputation . "Notoriety" is a word that implies a widespread reception as "true" the misrepresentations made by the grievant and further, that the audience gives a wit about it. Given that the Agency had the burden of proof on this factor, and lessening that burden to only probability, it's a disaster.
Basic statistics dictate that of a representative sample of a population, any measure of it will assume a "bell shape" representation of the population as a whole. For example, manufactures of shoes for American adult males take very seriously that any sampling of foot sizes of the target population discloses that the median American adult male foot size is an 11, and that the proportion of greater or lesser foot sizes will trail off along either side of the curve in geometrically, not mathematically, descending proportions to the point that they had better not be producing more sizes 5 or 15 than the market is likely to bear.
So too can the questions of "notoriety" and "impact on reputation" be viewed. Using a 1 to 10 scale of attitudes or feelings about the COFE's notoriety, even if limited to a random sample drawn from the best educated of the public (Law Decrees, Masters and Doctorate holders, etc.), the curve will be followed. If a second sample were randomly drawn from patent applicants and their advocates and detractors who care whether the DoC, PTO or PTOS, endorsed, cosponsored, or gave its auspices to a conference on the virtues of cold fusion or any other discredited theory of energy production, the distribution of those that would favor the conference in one degree or another (the pros with 1s thru 3s), those who basically don't care (neutrals 4 - 7s), and those who would oppose it in one degree or another (the cons 8 - 10s), would also form a bell curve pattern.
In the present case, whether looking to the "well-educated" or the subclass of patent applicants and their advocates and detractors, the vast majority of both would be in the neutral 4-7 group, occupying the center of the bell curve. Many of them would have no idea what cold fusion is about and could be expected to have questions somewhat like, "What is cold fusion, and does it affect my refrigerator?" The pros and the cons would be on either end of the outstretched tails of the bell curve.
Since there have been no such opinion samplings taken, the precise results cannot be determined. But real life experience and general observations of the infrequency of the subject appearing in the general media, are enough to form a hypotheses. Those sympathizing with the grievant in bemoaning the demise of the COFE would be on one end as, figuratively, male shoe sizes under 5, and those celebrating with Park and Zimmerman on the other side would be comparable to male sizes 15+. In both instances, rare. The combined total of both would not be expected to exceed 1.0% (one percent) of the well-educated, and 2.0% of the specialized patent savvy subgroup.
To place the hypothesized expectations in a PTO public perception context, while those in the pro group with the grievant, and those in the con group with Park and Zimmerman, are fierce in their opposition to the other group's views, their dispute amounts to no more than a tempest in a teapot in the great scheme of things. 2 2
This is especially so since the Agency failed to produce any reliable numbers or estimates as to the breadth of the public's knowledge of the grievant's misrepresentation of DoC, PTO or PTOS involvement in the COFE. There is no evidence that the Washington Post, or any other popular print or broadcast news media, carried a word about the COFE or the teapot tempest surrounding it.
In short, get real! The number of people who might have seen the grievant's misrepresentations, and cared one way or another about PTO, DoC or PTOS involvement, is minuscule, and to ascribe significance to any "Notoriety of the offense or its Impact on the Agency's Reputation," would be ridiculous. And, if this were not so, it was the Agency's burden to prove otherwise.
Clarity to which the Grievant was on Notice . This factor cuts badly against the grievant. Not only was he on verbal notice from Ms. Rose and Ms. O'Shea to keep his cold fusion, emerging technology views free and clear of his position as a PTO patent examiner, he had visual notice of the extent to which they were willing to go to find an impermissible mixing. That they desperately combed the DoE transcript in search of his having spoken to the Secretary of Energy with the tiniest suggestion that he spoke for the PTO, should have been a forceful notice that his every outside cold fusion activity was under scrutiny, and with the ban and bar order from Ms. Focarino, unmistakable alerts that they were lying in wait for any misstep.
Potential for Rehabilitation . This is probably the most important and most troubling factor. During the course of the hearing, the grievant expressed no degree of remorse. But then again, until the rather lengthy testimony was heard and the massive amount of paper evidence digested, it was not at all clear what he had to be remorseful about. As it turned out, this Decision and Award identifies only the public dissemination of his misrepresentations that the DoC was a sponsor of the COFE, and that COFE was being presented under its auspices, as matters demanding discipline.
Up to now, the grievant and the Union have relied on the lack of any Agency evidence that he was the one that actually pressed the computer "enter" key that transmitted his handiwork into the ether of the world of the Internet. Unless he, with the guidance of his Union representatives, accepts responsibility for his misrepresentations and their dissemination, the prospects for his rehabilitation are dim.
On the other hand, only if the message of this Decision is lost on the grievant, he can prove himself a model of "rehabilitation," and return as a productive patent examiner. But, he must understand that message. The PTO is out to get him for his advocacy of cold fusion and will clobber him with a Removal Proposal which next time around, perhaps with guidance provided herein, it will be able to make stick. Screw up once more in publicly evidencing his advocacy of cold fusion which in its appearance implicates the DoC, PTO, or any other federal agency, the grievant should understand that his employment as a patent examiner is at an end.
Mitigating Circumstances . Guidelines for this factor traditionally call for consideration of "unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter." Of these, "job tension" is a way of life for examiners, and while the PTO goal system might be viewed by outsiders as contributing to an "unusual" sweatshop atmosphere, there is no evidence that it had anything to do with the grievant's misconduct. There is evidence that the grievant has "personality problems" in his inability to accept responsibility for his actions and those of others which he sets in motion, but it is not a mitigating circumstance as much as it is an exasperating circumstance which the grievant must address, both to hold his PTO job as well as to be the effective voice of emerging technology he would like to be in his out-of-office activities.
There is also no evidence of a mental impairment which led to the grievant's misconduct. What there is evidence of is "harassment, or bad faith, malice or provocation on the part of others involved in the matter," and it came in bundles. The activities and motives of Park and Zimmerman have been extensively recounted and explained, and with regard to the cancellation of grievant's State Department, Secretary's Open Forum presentation, deplorable. The malice shown by Park in his solely economic driven campaign to block any of the nontraditional scientists from receiving recognition by any government agency as having an idea worthy of a slice of government R&D funding may be a point of pride within the APS. But to an outsider who champions free and open exploration of any scientific thought, no matter how far out on the fringe, his conduct is outrageous. The worth of a new idea is to be determined in the democratic and open arena of competing thoughts, and not blocked from the arena by the greedy economic self-interest of those already in the limelight.
Seemingly lost on those with control over slicing the government pie who are persuaded by the relentless drumbeat of the Parks and Zimmermans, is that those questing for "free energy," whether through cold fusion or by way of some other "emerging technology," may be similar to the alchemists of centuries back who never turned base metals into gold, but were the forerunners of modern chemistry, got the Periodic Table of Elements off to a start, and among all things, discovered how to duplicate Asian porcelain which at the time was worth more than its weight in gold. So too, those in pursuit of "free energy" could well spinoff useful advances in knowledge while failing to achieve their "holy grail."
This gratuitous thought in passing leads to another. Clearly, the grievant was "bugged" by the PTO's 1989 Cold Fusion Memo, and because the bug is arguably justified, both the bug and the memo constitute mitigating circumstances. However, they
have little mitigating force. They are more like the PTO's goal system. The grievant must accept the Agency's policy as part of the "usual" job tensions of the PTO; for him, a like-it-or-leave situation.
Still, I was struck by the discomfort of Mr. Godici as he struggled to explain why the blanket exclusion of cold fusion remains in effect when during the intervening 16 years since its adoption, certainly some better understandings and approaches to cold fusion and its related technologies must have occurred which, ordinarily and but for the ban, would meet the new and useful criteria for a patent, or constitute what I'll call, a "non-obvious improvement of existing technology." Of course, this was not the exact question put to him, but it was the sum and substance of the "conversation" (more formally known as testimony) had about Mr. Behrend's role and his automatic REJECTED stamp.
None of Mr. Godici's answers was totally satisfactory, and the urge, not well restrained, to say, if not scream:
Hold it a minute! Isn't time to go back to the earlier days of the PTO when inventors had to produce working models of their devices? It can't it be an applicant's option, and while the days of obvious and easily visible confirmation of claim's have come and gone, the PTO has the National Institute of Standards and Technology to test and verify or reject claims of subtle, hard to grasp accomplishments. And, if the NIST lacks that capability, there are DoE and scores of DoD labs that in collaboration with the PTO could undertake the task.
This is not to suggest that the PTO open the floodgates to every kooky idea out there, but rather that it loosen the apparently nondiscriminating, blanket nature of the 1989 memo, and that Mr. Behrend be allowed, or encouraged, to wield his stamp less frequently and more selectively.
Adequacy and Effectiveness of Alternative Sanctions . What has been said about the prospects for the grievant's rehabilitation largely addresses this factor, but there is an additional observation warranted here. For sure, the ultimate penalty of removal would deprive the Agency of a "fully satisfactory" performing examiner who regularly met his goals, and never let his private obsessions influence any official actions he took with regard to the patent applications assigned him for examination. That cannot be ignored, nor can the likelihood that the 30-day suspension, and the hardships of his last six years, many aspects of which cannot be undone solely with a 5 USC §5596 back pay recovery, will have and have had their chastening effects.
For the above stated reasons, the grievant's removal was not for good cause nor in furtherance of the efficiency of the federal service, and must be mitigated. Thus:
1. The grievance is sustained in part and the removal of the grievant shall be mitigated and reduced to a 30 calendar day suspension without pay for the offense of Misrepresentation, with the 30 days already served, and the grievant immediately returned to his position as a patent examiner at an interim pay and with annual and sick leave accumulation levels no less the levels he held at the time of his removal. For no reason other than at the request of the grievant, shall his return to service be later than 30 days from the date of this Decision and Award, even if there are questions or disputes between the Agency and POPA which have not been resolved in accordance with the procedures set out below.
2. All reference to the removal shall be permanently expunged from the grievant's personnel file, to be replaced by a suspension of 30 calendar days without pay.
3. Because the grievant's removal was an unjustified or unwarranted personnel action which has resulted in the withdrawal of his pay, and any allowances or differentials, he is entitled to a recovery with interest, subject to such adjustments as the law allows for his interim earnings, of those withdrawals under 5 USC §5596, as well as to have all lost annual and sick leave restored. Subject to any determination to the contrary made in the course of the further proceedings provided for below, the grievant's 5 USC §5596 recovery shall be calculated on the basis of any and all promotions and grade step advancements to which he would have been entitled if his job performance and proficiency had continued at the same level for which he had been rated during the course of his employment with the PTO prior to his removal, all of which shall be presumed.
Jurisdiction of this arbitration is retained for the following purposes and in accordance with the schedules indicated:
1. Notification of the Grievant's Return to Service. Within 14 days of receipt of this Decision and Award, the Agency shall report the date of the grievant's return to service and the interim General Schedule (GS) pay grade and step level at which he resumes service. If the grievant has not been returned to service within 14 days of this Decision and Award, the Agency shall report the reason or reasons why not and the date set for his return and the interim GS pay and step level at which he will reenter federal service.
If the Union has any objection to the date and interim GS pay grade and step level set by the Agency, it and the Agency shall have 7 days from the date of the Agency's report to meet (which they are hereby ordered to do) and resolve their differences by agreement so that the grievant will be returned to service within 30 days of the date of entry of this Decision and Award.
Should those efforts fail or an agreement not yet be reached by the end of the 14 day period, the Union and the Agency shall separately file reports detailing their differences and advising whether I will have to intervene. If either report calls for my intervention, the party requesting that intervention shall arrange a conference call with the other party and me during which the disputed matters shall either be resolved on an interim or permanent basis, or after further proceedings are scheduled.
2. Determinations of Back Pay Recovery and Current Pay Grade and Job Title of the Grievant's Reinstatement, etc. Should the parties not have agreed to any aspect of the grievant's 5 USC §5596 recoveries within 60 days of the date of the Decision and Award, by the 61st day, they shall initiate a joint telephone conference call with me to set a hearing date on the open questions.
3. Protection of the Integrity of this Arbitration. It would appear that there were persons within the PTO who assisted the grievant in his efforts to obtain the use of the DoC facilities about whom the Agency was unaware before the hearing in this case. I expect nothing untoward to befall any of them, but that everyone involved in this case will place it behind them and get on with their lives and the collegial harmony for which the PTO is justly known.
If my expectations prove wrong, be assured I will take all such actions as I may posses the power and authority to correct my error
4. Correction of Typographic, Numerical, and Other Errors which will Not Change the Award.
DONE, this 30th day of July, 2005.
Robert T. Moore
1 The identification of the grievant's assigned Art Unit or Group may be off the mark. The testimony and documented evidence is confusing when it comes to numerical, versus subject matter, unit designations. It appears that when some events in issue occurred, the Patent side of the PTO had an organizational structure based on "Work Groups," which at a point in time not firmly established in the record, was changed to a structure based on "Technical Centers" and a whole new numbering system. Thus, the grievant is referred to in the record as being in Art Unit 2200 and at other points as being in 2858. That seems to reflect only a numerical change without a change in his duties or the nature of the patent applications he examined. To avoid confusion, the unit to which the grievant was assigned will be referred to as the "measurements group."
2 If recollection serves, the claimed accomplishment was heralded in news media around the world for its promise of free energy. If true, it would unshackle the industrial nations from their dependence on fossil fuels and reverse the deforestation of the developing nations of sub-Sahara Africa and the Indian subcontinent. It appeared that the earth's environment would be saved and electricity would light every home in the poorest countries of the world. Its implications were just startling.
3 Because the grievant was removed for misconduct, 5 USC §7512 kicked in and the grievant had available under §7121(e)(1) the option of either appealing his removal to the Merit Systems Protection Board (MSPB) or filing a grievance and proceeding through the parties' negotiated grievance procedure to arbitration. The grievant irrevocably elected the grievance procedure and arbitration when, on his behalf, the Union filed its Notice of Intent to Arbitrate which, in effect, challenged his removal as being without good cause and excessive under a proper application of those of the Douglas factors appropriate to his case.
4 Article 1, Section 8, Provision 8 of the US Constitution, in the exercise of national sovereignty, empowered the Congress to enact laws,"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The present day version of the resulting Congressional enactment is found at 5 USC §101, which provides:
Whoever invents or discovers any new and useful process, machine manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this Title.
The constitutional and statutory use of the word "useful" has been construed by the courts to mean that an invention must be able to achieve the results claimed, or in other words, be "operable." Until recent times, a patent applicant had to submit a working model which could accomplish the claims sought to be patented. A working model can still be called for under 35 USC §114, but the testimony indicated that a request is never made for devices, processes or methods for achieving cold fusion. Rather, an application is dependent on the physics or chemistry of the claimed invention. If it violates known laws of either, the application is doomed as "inoperable."
5 In evidence is the package of documents supporting the grievant's proposed removal prepared by HR for the deciding official. That package contains a seven page document which sets forth questions which appear to have been prepared in advance by Ms. Rose to be asked of the grievant. After the interview was concluded, the pre-prepared questions seemed to have been typed out again and, where the grievant responded, his answer was also typed in. Likewise, where Ms. Rose or Ms. O'Shea asked a follow-on question it was included with an indication of such and the grievant's answer. Yet, there are questions without responses leaving it unclear whether they were asked, or if asked, were unanswered, or if answered, the answer was not recorded. The grievant's responses and Ms. Rose's added questions were written in by the other Art Group Supervisor identified as Nancy Le. Neither Ms. Le nor Ms. Rose (who it is understood is no longer a PTO employee) was called as a witness, so neither of these ambiguities in the document could be resolved, nor could a more important one about an intentional, or unintentional, missing comma. Finally, in her testimony, Ms. O'Shea indicated that the notes in evidence were taken by her, but their context and accompanying handwritten notations indicate that Ms. Le was the scribe and that Ms. O'Shea was mistaken in claiming authorship. In any event, Ms. O'Shea, who did testify, was unable to satisfactorily resolve the anomalies.
6 Where she got this idea remains unexplained. No statute was cited by the Agency as barring such conduct, and the Standards of Ethical Conduct for Employees of the Executive Branch, found at 5 CFR Part 2635, and on which the Agency otherwise relies heavily, makes no mention of failing to identify an employee's government position before making a public comment or suggestion to another Agency as being an ethics offense.
7 The Agency was told that it was unacceptable for it to rest on the proposition that a career employee of DoC "simply disappeared" upon retirement and left not only all of DoC Management, but also her former colleagues in the dark as to her future plans and location. That is not what happens in real life, and even if that highly improbable situation existed, the Agency could resort to the OPM, Retirement Operations Center, PO Box 45, Boyers, PA 16017-0045, with an explanation that the Agency's ability to sustain a misconduct removal might well hinge on the Agency's locating Ms. House and seeking her cooperation, and possible presence as a witness in an arbitration hearing. Still, no Ms. House for the Union to question or for the Agency to bolster its case.
8 "16/40 approval" refers to procedures under Article 8, Section 3 of the parties' Labor Agreement and is shorthand for a Patent Examiner being allowed up to 16 hours of excused absence annually to attend PTO approved conferences and up to 40 hours annually of comp time for that purpose. Both the 16 hours and the 40 hours constitutes direct PTO financial contributions in the form of "paid hours" given examiner for their exposure to new engineering, scientific, and legal developments and ideas .
9 The transcript labels the speaker as the ARBITRATOR, but the context and content of the transcribed testimony makes clear that it was Mr. Godici's remarks made in response to my invitation to proceed to enlighten me which were transcribed, and not further remarks of mine.
10 Obviously, the Agency's refusal to furnish materials and the witnesses on which it relied in proof of the principal charges of Conflict of Interest and Misrepresentation, as well as for proof of its peripheral claim that "notice" was given the grievant through the two identified "counselings" sessions, violated the parties' Labor Agreement. Arbitrator Hockenberry so held and I found no reason to disagree. But, that pre-removal, or predetermination, denial of evidence in and of itself might not be a sufficiently firm basis for vacating the removal since my enforcement of Mr. Hockenberry's disclosure order could be viewed, should an objection be taken to vacating the removal on that basis, as sufficiently corrective of the due process flaws to have set the stage for the de novo trial of the facts expected in arbitration, provided the order had been fully complied with.
11 As noted, Ms. Rose has left the PTO and did not testify in this case or otherwise appear. However, like with Mr. Godici, she appeared before me in an earlier case and there established an image that I cannot remove from my mind in assessing her extensive participation in the development of this case. That impression is wholly favorable with the most indelible memory being those of her professionalism, determination, and extraordinary "smarts."
12 Mr. Godici obliged HR with the identification of that hot button before the package was assembled. When word came to Ms. Rose and Ms. Focarino about the Internet postings advertising the COFE, and saw Park's ranting and raving over DoC involvement, quite properly, Ms. Focarino advised her boss, Mr. Godici, about these developments. In a March 23 e-mail from Ms. Focarino back to Ms. Rose, principally thanking her for information from Ms, Teti, she remarked, "I talked with Nick [Godici] and he just wants to make sure that DOC will pull the plug on the use of the auditorium."
13 Eight months after the grievant's removal, Zimmerman's partner, Park, was still crowing over his accomplishment of having eliminated a heretic from the ranks of the PTO, that all important bastion of defense since 1989 against government recognition of cold fusion through the grant of a patent on any technology related thereto. The March, 2000 edition of the APS News carried a front page article, "That Voodoo You Do," congratulating Park for his years of accomplishments in defeating attempts of non-conventional physicists to saddle up to the table and have a slice of the taxpayers' funded pie, and giving him a special pat on the back:
Similarly, Park's efforts to expose the fraudulent claims of free energy schemes - a movement which has achieved nearly cult-like status - led to a removal of State Department sponsorship of a free energy conference last April, and an investigation by the Patent and Trademark Office resulting in the dismissal of the U.S. patent examiner who organizes the conference.
14 The Agency's attempt to portray the grievant as an abuser of early departures is rejected, not only because the notes of his statement made to Ms. O'Shea and Ms. Rose that, "this is the first time that I disappeared for an hour and I got caught," is subject to two different interpretations, but (1) even under the Agency's preferred interpretation, it does not constitute an admission of a "regular practice," and (2) if he were a true time and attendance abuser it would have been known to Ms. O'Shea, his immediate supervisor, either by her direct observation or his resulting failure to meet his "goals," and she would have certainly shared that information in her testimony.
15 Ms. O'Shea identified two other cold fusion advocates who had visited Mr. Behrend and who
Mr. Behrend was likely referring to in his message. However, six years after the grievant's removal, both of the others also had been removed, one for misconduct and the other for failing to produce. The latter challenged his removal as impermissible discrimination on the basis of his religious type belief in cold fusion, and the EEOC had preliminarily allowed his claim to go forward. Despite my warning that it best not try that with me, in its post-hearing brief, the Union advanced the same claim on behalf of the grievant. Fortunately, the rest of his case makes it unnecessary to determine whether in the absence of an alter and any special vestments, a belief in cold fusion is any more of a religion intended to be protected under Title VII from discrimination than an equally fervent belief in the curative effects of the color blue. Both are more the type of subjects protected by the free speech provision of the Constitution, an issue which will be touched on briefly in another footnote. But, if I'm wrong and a belief in cold fusion is entitled to Title VII protection on a par with a religion, then the facts establish in more ways than one that the grievant's removal was motivated by PTO's disdain of cold fusion and its institutional hostility toward those who believe in it.
16 Of course, both also questioned the propriety of the grievant offering to cover the costs and transfer leave so Mr. Behrend could attend the Vancouver cold fusion conference. But, the Agency produced neither evidence nor argument establishing any impropriety.
17 As its title indicates, the Guidelines on Religious Expression are aimed at freedom of religious thought, but apropos of the grievant's beseeching Mr. Behrend to rethink cold fusion and the need to challenge PTO policy, the Guidelines, in equating religious views with free speech in general, reminds agencies of a point that seems to have been forgotten in its dealings with the grievant, that:
As a general rule, agencies may not regulate employees' personal religious expression on the basis of its content or viewpoint. In other words, agencies generally may not suppress employees' private religious speech in the workplace while leaving unregulated other private employee speech that has a comparable effect on the efficiency of the workplace -- including ideological speech on politics and other topics -- because to do so would be to engage in presumptively unlawful content or viewpoint discrimination. Agencies, however, may, in their discretion, reasonably regulate the time, place and manner of all employee speech, provided such regulations do not discriminate on the basis of content or viewpoint.
Here, with no expression from Mr. Behrend of annoyance or disruption being caused by the grievant's visits (the inference drawn from his absence as a witness being that he had none), and with the e-mails from his superiors making clear they wanted the grievant silenced because of the "content and viewpoint" of his cold fusion discussions, the PTO violated the Guidelines with its ban and bar order handed the grievant, since it presented no proof of a general Agency regulation barring all workplace debates, arguments, or simple discussions, of controversial patent policies or practices.
18 There is more which probably could be said about this memo and the use HR may have made of it. It is one thing to make an erroneous argument in arbitration which the arbitrator catches, but it would be harmful error and a due process denial if this same memo was included in the materials provided by HR to Mr. Godici as proof of a misrepresentation made by the grievant to a major PTO manager, or as a basis for finding that there was no hope of the grievant's "rehabilitation" under Douglas, and thus there was no alternative to his removal. Most important on these scores is the glaring lack of mention of this memo or Mr. Dickinson in the Removal Proposal, so like the other material wrongfully placed before Mr. Godici, if this memo was included with the misrepresentation of its date, the grievant and the Union were denied an opportunity to question the HR assertions.
19 The grievant cannot get off the hook by tracing the origin of the wording back to his State Department flyers and postings, and claiming that someone else at the IRI must have done it by substituting the DoC for the DoS, since only he sent the e-mail attachment to Mr. Stouffer. It was this sort of blame-shifting, lack of candor, and inability to accept responsibility, which made him such an irritating witness.
20 The Agency's reliance on the Sphinx Stargate website claim that the page with the misrepresentation about DoC cosponsorship was visited 53,111 times in the few days it was posted, was not proven reliable. There was no evidence, such as the Agency viewing the web page more than once and getting a changed hit number each time, that this number was more than website "puff." Even if it were established that the number was an accurate "hit count," the Agency's own experience in searching for the grievant's quite uncommon name which has no English dictionary meaning, using a specialized search engine designed to search "news items," produced numerous "false hits," many with sexual content, that had no relationship to the grievant, but each of which would have ticked off an addition score on any hit counter.
21 Consistent with this thought and the pronouncements of other arbitrators, for the good of the Agency, on the walls of its HR offices should be posted the following NOTICE:
With all disciplinary proposals, but especially those governed by 5 USC §§4303 and 7512, Union requests for documents and records and for access to potential witnesses or other persons for purpose of interview, shall be fully honored if there is even a remote possibility the requested document, record, witness or other person has information that bears on the factual merits of the charges made against the employee proposed to be disciplined, or on the equitable and Douglas factors considered in determining the severity of the penalty proposed. This shall absolutely be so where:
1. A requested document or record is in the custody or control of the PTO or DoC, or if outside the immediate possession or custody of the PTO or DoC, can be recovered, recalled or reconstituted in whole or in part by the PTO and DoC.
2. A requested witness or other person is an employee of the PTO, DoC or other government agency, and has participated or cooperated in the PTO or DoC investigation of the employee proposed to be disciplined, or the person may have information the Union indicates it wishes to explore in developing a defense of the employee proposed to be disciplined.
3. A requested witness or other person is not an employee of a government agency which can be called upon by the PTO or DoC to assist in producing the requested person for a cooperative interview by POPA, POPA representatives shall be given all information in the possession of the PTO or DoC, or which it can obtained from any source, as to the current whereabouts of that person.
For surely as the Lord made little green apples, an arbitrator will find the withholding of such documents or records, or the failure to produce a requested witness or other person for interview, constitutes a denial of due process, and a likely "harmful error," which will serve as a basis for granting a grievance if the proposed discipline is adopted, leaving an otherwise sound and solid discipline case overturned and down the tubes.
22 Today, the flood tide of scientific opposition against cold fusion and other non-conventional energy technology appears to have turned, with the ebb tide running in support of further research. In February, 2002, the US Navy disclosed its "Decade of Research at Navy Laboratories," and "approved for public release" its Technical Report No. 1862 on Thermal and Nuclear Aspects of the Pd/D2O System . The genie was out of the bottle; 10 years of government funded research had been underway in the realm of cold fusion. Then, in 2004, fifteen years after seemingly having rung the death knell over cold fusion, the DOE Office of Science set in motion a reassessment of whether its earlier judgement, like the original Utah "birth" announcement, had also been premature, a major step toward the reestablishment of the legitimacy of cold fusion research. However, these 2002 and 2004 events came too late to have any effect upon the grievant's removal which occurred August 25, 1999 on the basis of conduct taking place earlier that year.