By William Wiley, June 19, 2018

More precisely, the 500+ page OIG report issued last week regarding possible misconduct at DoJ does not establish Comey’s “insubordination.” As everyone who has attended the FELTG MSPB Law Week seminar (next offered September 10-14 in Washington, DC) knows, charges of workplace misconduct have specific legal definitions. The various aspects of a charge definition are known as “elements” of the charge. To prove a charge like insubordination, an agency would have to prove all the following elements:

  • The willful and intentional refusal,
  • To obey an authorized order of a superior,
  • Which the superior is entitled to have obeyed.

Redfearn v. Labor, 58 MSPR 307 (1993)

The report concludes that Comey acted in an insubordinate manner when he took it upon himself to release certain information without telling his supervisor about an investigation into Hillary Clinton’s use of a non-government computer for government work. That, indeed, may have been a bad thing to do. Perhaps (and here at FELTG, we have no dog in this fight) what he did demonstrates poor judgment. However, I can find nothing that says his superior, Attorney General Lynch, had ordered him not to do that. In fact, the executive summary of the report states just the opposite:

While Lynch asked Comey what the subject matter of the statement was going to be (Comey told her in response it would be about the Midyear investigation), she did not ask him to tell her what he intended to say about the Midyear investigation. We found that Lynch, having decided not to recuse herself, retained authority over both the final prosecution decision and the Department’s management of the Midyear investigation. As such, we believe she should have instructed Comey to tell her what he intended to say beforehand and should have discussed it with Comey.

The report concludes that Comey’s supervisor made a mistake by not giving him an authorized order to tell her what he was about to do. She most likely would have been entitled to have that order obeyed had she given the order. However, she did not. Based on these facts alone, Comey cannot be held to be insubordinate for failing to obey an order that his superior did not give.

You, our beloved reader, might be sitting there thinking, “Oh, Bill. You’ve gone off the deep end again. This is being very picky about a trivial hair splitting.” Well, Smarty Pants, just try running this series of events past judges at MSPB and see how quickly they set aside your charge of Insubordination. You don’t got no stinkin’ order? Then, you don’t got no stinkin’ insubordination. Black letter law. Case closed; e.g., Redfearn, supra.

Had the DoJ OIG office called us for advice on how to frame Comey’s misconduct (888-at-FELTG; operators are standing by), we would have recommended charging “Lack of Candor.” The elements of that charge are:

  • A failure to disclose something that should have been disclosed
  • To make a given statement accurate and complete.

Hoofman v. Army, 2012 MSPB 107

And according to a recent decision out of the Federal circuit, Lack of Candor must be “knowing” so there’s your third element. Parkinson v. DoJ, 815 F.3d 757 (Fed. Cir. 2016)

That charge squarely places the responsibility on Comey to tell the Attorney General what he was about to say to the press. This way, he is being charged with something he had the obligation to do, not being charged with something based on what his supervisor should have done.

There are references in the DoJ OIG report to “well-established Department policies” that Comey failed to follow. Well, that’s fine. Charge him with not following agency policies. However, failing to abide by agency policies is NOT insubordination.

Which leads us to a final point we have made before in our FELTG articles. Agency OIG offices do hugely important work. They are filled with smart, hard-working investigators and lawyers who are trying to do the right thing. However, with rare exception, they are not filled with civil service law experts. That’s not a problem when they are called upon to investigate suspected criminal misbehavior, as is often the case in OIG investigations. But, when it comes to investigations of workplace misconduct in a federal agency, the world would be a better place, and their work would be more legally precise, if OIGs involved a specialist in civil service law in their report development.

James Comey may have done things he should not have done. We leave those decisions to individuals at higher paygrades than we hold here at FELTG (GS-zeros). However, any GS-5 trainee in human resources who has attended our FELTG seminars will recognize that Comey’s actions cannot be framed as a charge of Insubordination.  Wiley@FELTG.com

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