Police blotter: Fired federal worker sues over googling

Police blotter is a weekly News.com report on the intersection of technology and the law.

What: A government worker claims a department official violated his "right to fundamental fairness" by using Google to research his prior work history in a dispute over the use of government property.

When: U.S. Court of Appeals for the Federal Circuit rules on May 4.

Outcome: Unanimous three-judge panel says no harm was done by using search engine.

What happened, according to court documents:
We've known for years that jurors and judges occasionally use search engines, sometimes in ways that raise novel ethical and legal issues. But how about googling by an employer?

This story starts when government investigators suspected that David M. Mullins was misusing government property. At the time, Mullins was a technician at the National Oceanic and Atmospheric Administration's Weather Forecast Office in Indianapolis, which is part of the U.S. Commerce Department.

Mullins was eventually accused of misuse of a government vehicle, misuse of official time, misuse of a government travel card, and falsification of official travel documents. His supervisor identified 78 occasions when the Commerce Department believed that Mullins had misused a government vehicle.

Some examples: Mullins worked in Indianapolis, but his government-issued credit card showed purchases of gasoline in Tennessee and Ohio. He admitted to unauthorized cash withdrawals from his government-issued credit card. He acknowledged forging travel documents (by sleeping in his car and then printing up fake hotel receipts).

Valeria Capell was assigned to weigh the allegations against the Commerce Department employee and make a decision. She eventually ruled that Mullins' misconduct and lies cost taxpayers $6,419.83 and authorized the department to fire him. There is no evidence in the record that the case was ever referred to the Justice Department for criminal prosecution.

Mullins appealed his dismissal to an administrative law judge, saying that his "right to fundamental fairness" was violated when Capell allegedly used Google to do a search on his name.

Specifically, he argued that his rights were violated when Capell "came across...my alleged prior removal from federal service by the Air Force." He also was fired by the Smithsonian Institution. Mullins claimed that she perjured herself when saying that she was not influenced by his two prior job losses.

The appeals court, however, disagreed. It ruled that the Google searches were not prejudicial and affirmed Mullins' dismissal as a civil servant.

Excerpts from the appeals court's opinion (PDF):
No ex-parte communication occurred when the deciding official, Ms. Capell, discovered for herself that "in 1996, the Department of the Air Force removed the appellant from a civil service position and that in 1997, the Smithsonian Institution told (Mr. Mullins) to 'look for a new job.'" Indeed, the only "communication" that occurred was when Mr. Mullins communicated with Ms. Capell to bring to her attention the negative information about himself "by suggesting he had been subject to board proceedings before."

Ex-parte communications are procedural defects only when they cause prejudice that undermines due process guarantees. Because Mr. Mullins' two prior job losses did not affect Ms. Capell's decision to remove Mr. Mullins, the record shows no prejudice. Indeed, on April 22, 2005, before Ms. Capell discovered Mr. Mullins' two prior job losses, (someone else) had already outlined 102 specifications to support the four charges of misuse and misconduct against Mr. Mullins.

Furthermore, as clearly stated in the initial decision, the (administrative judge) knew the "removal" from federal service actually involved a settlement agreement where the Air Force agreed to pay Mr. Mullins in exchange for withdrawing his removal appeal. The (administrative judge) even noted that the Air Force was reluctant to expunge Mr. Mullins' employment records. Thus, this record shows no violations of due process guarantees.

As a result, this court finds the board's decision to affirm Mr. Mullins' removal is supported by substantial evidence, and substantively and procedurally in accordance with the law.

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