May 9, 2007 4:00 AM PDT

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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18 comments

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damn right
Once he admitted to forging documents, he should have been canned and possibly prosecuted. He can't reasonably expect that anything else would happen, no matter what was on Google.
Posted by alflanagan (115 comments )
Reply Link Flag
What was he thinking would happen?
He should have gotten worst if all that happened was him losing his job. Who cares what was found via a Google Search, if anything the search only validated the decision to fire him. Once he admitted to previous investigations, that would also make the Google Searches mute.
Posted by RavenChylde (16 comments )
Reply Link Flag
Which was exactly his point...
If the search validated the decision to fire him, information obtained in the search may very well have been considered prejudicial (see the paragraph the begins with "ex-parte communications"). That's why he sued in the first place.
Posted by ed_word (1 comment )
Link Flag
David M. Mullins does not deserve a gov job
His abuse caught up with him.
sounds like a bad case of:
"Chronicles of George" at the helpdesk
google that too!
Posted by inachu (963 comments )
Reply Link Flag
In his defense ...
I'm not saying he was a good employee, but the charges to his "government issued" credit card should be irrelevant. He is 100% responsible for any and all charges on that card. Government employees must charge certain things to those cards, but they are responsible for paying the bill regardless of the status of their reimbursement. Any interest fees are their responsibility, and late payments affect their credit.
Posted by GuardBoy98 (15 comments )
Reply Link Flag
I am sick and tired of seeing MD govt cars at sporting events
I see these soccer mom types who drive to Hollywood video or HighSchool sporting events in their Montgomery County Govt issued car or truck and I see it all the time. The most abuse are those near Germantown.
Posted by inachu (963 comments )
Link Flag
This is a funny story
but not for the reasons you think.

1: Why does the government allow cash advances on a corporate card? My company prohibits it at the card vendor level.

2: The government can't tell the difference between a forged receipt and a real one?

3: Doesn't the government pay attention to mileage? If a government vehicle was basically driven across the country shouldn't the mileage indicator reflect that?


All of these would have been mitigated by way of a process audit. To have these glaring gaps in process is laughable, especially considering it's the government. I bet an audit would identify quite a few taxpayer dollars being wasted.
Posted by ReVeLaTeD (755 comments )
Reply Link Flag
But they DO all those things
Obviously, they audit these things. THE GUY WAS FIRED FOR IT. As to the cash advance thing, perhaps this is an easy way to deal with circumstances in which a govt. employee may be doing work where credit cards aren't useful (FEMA type work, for example). I know that our state procurement cards disallow a number of transactions at the vendor level.

Without good working government, you'd have a really ****** life, were you not born to wealth...
Posted by chassoto--2008 (71 comments )
Link Flag
Verry Funny Story
It's also funny when you consider the hundreds of billions of dollars in waste and abuse of taxpayers money every year!

What was this guy thinking?!? You got to be a Congress Critter or Senator to blow taxpayer money. A bridge to nowhere anybody? Is there a building or bridge in West Virginia that doesn't have 'Byrd' on it?
Posted by sreynard (54 comments )
Link Flag
Should prosecute this guy.
Treat, lied and mistreat government property. Should prosecute this man.
Posted by Wander9s (15 comments )
Reply Link Flag
Who's his next employer?
I'd love to know who his next employer will be so I can short their stock. Any company so stupid as to hire withoug Googling won't last, and if this guy thought Googling was a problem before, he's in a world of hurt now.

J. (like that's my *real* name)
Posted by Jack K1 (410 comments )
Reply Link Flag
Most likely some minimum wage job
where they don't do Google searches and don't really pay a lot or would trust him with a company credit card, etc.

The man still has to earn a living or else he will go homeless. No more government jobs, no more good paying jobs, just clerk and retail work for now on.
Posted by Orion Blastar (590 comments )
Link Flag
He sure sounds like a perfect fit for the...
west wing. Tee hee.
Posted by wtortorici (102 comments )
Link Flag
NOAA Name Correction
It is the National Oceanic & Atmospheric Administration (NOAA).

You left the "ic" off of Oceanic.
Posted by PzkwVIb (462 comments )
Reply Link Flag
Award
Mr. Mullins certainly deserves a Chutzpah award.
Posted by cephalis (26 comments )
Reply Link Flag
 

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