No Impeachment for Lower-Level Philanderers; Pink Slip, Maybe

If Bill Clinton were a senior federal bureaucrat instead of president of the United States, he probably could have had a discreet fling with a willing subordinate and not risked his job.

But if the liaison had become a public scandal and if his secretary had played a role as a go-between and if agency police had been aware of trysts in the office, he might well have been sacked for letting sex interfere with his work. And if he had lied to superiors or to investigators, his risk of being fired would have been greater still.

Lawyers who represent civil servants in employment disputes say their clients are routinely held to a higher standard than the one being applied to Clinton.

If Clinton were a civil servant, Washington lawyer William Bransford said, “there’s no doubt in my mind that there would be grounds for charges. The removal would be upheld and the employee would not be put back in his job.”

Some government workers are already asking whether Clinton’s case might lead to greater sexual liberty for rank-and-file bureaucrats.

Don’t count on it, said Bransford, who represents many civil servants. “Some employees who get into this sort of trouble in the future will say, ‘But the president did it, why can’t I?’ I think that defense will be rejected. There’s a general belief that this sort of action impacts on [job performance] and people shouldn’t engage in it.”

Senior Executive Fired in Similar Case

In recent cases, civil servants have been held to a higher standard than the public seems to be applying to Clinton’s fling with Monica S. Lewinsky.

In 1992, a senior civilian executive in the Army with 23 years of unblemished service was fired for a consensual adulterous affair with a subordinate. Like Clinton, records show, he argued that it was nobody else’s business. Like House Republicans, his superiors were antagonized by his unwillingness to acknowledge a personal failing.

And on Jan. 21, the day that the Lewinsky scandal broke into headlines, the Supreme Court ruled that federal employees could be fired for denying misconduct that was later proved to have occurred. Ironically, the Clinton administration had pressed for that decision.

“I wonder whether the president would want to be judged today by these same standards,” said Washington lawyer Jessica Parks, a former member of the Merit Systems Protection Board, which arbitrates personnel disputes. “It’s a double standard.”

A double standard may be inevitable. Alone among the 2 million Americans who work for the federal government’s executive branch, the president and vice president answer not to the rules governing the bureaucracy but to the Constitution and the voters.

Political appointees--the roughly 3,000 workers from Cabinet officers to confidential secretaries--may be fired for any reason or no reason at all. Uniformed members of the military must abide by rules against adultery and romantic relationships between superiors and subordinates.

Civil Servants Have Freer Rein

But for the 1.8 million civilian bureaucrats, there is no government-wide policy barring consensual sex with co-workers. As in any other workplace, civil servants are apt to fall in love--and if marriage is the result, they might invite their bosses to the wedding.

Affairs between bosses and subordinates are another matter. “A senior government executive who engages in a consensual sexual relationship with an immediate subordinate is playing with fire,” Bransford said.

A key test is a relationship’s effect on workplace “efficiency.”

“That’s one of the magic phrases,” said Joel Bennett, a lawyer who represents federal workers. “Does the conduct complained of impair the mission of the agency?”

If a scandal creates bad publicity, if government resources are used to advance the relationship or if office morale suffers, the “efficiency” of the agency can be deemed to be compromised. Repercussions can range from counseling to a reprimand, suspension or outright dismissal, depending on the severity of the case.

In the case of the fired Army executive, use of office e-mail to send love notes to his subordinate and make disparaging comments about her direct supervisor were seen by agency superiors as sufficiently damaging to warrant firing.

The executive, fired according to civilian personnel rules, was the personnel chief for the Army’s training command at Ft. Monroe, Va. Both he and his partner were married to other people at the time of their affair.

He appealed to the Merit Systems Protection Board, arguing that the relationship was private and that everybody used e-mail for personal correspondence. The board came down against him, and its verdict was upheld by a federal court.

“The appellant still does not understand the serious nature of his misconduct,” the board ruled in June 1993. “He does not appear to understand that he is held to a higher standard because of his [senior executive] status.” Given his duties as a personnel officer, he “should have known better.”

The Supreme Court has left very little room for government employees to wiggle out of misconduct charges through artful deception. Even a simple denial (such as Clinton’s “I did not have sexual relations with that woman”) can get a prevaricator in trouble.

“An employee owes a duty of honesty to his own agency and the agency has a right to expect that,” said lawyer Peter Broida, author of textbooks on government labor law. “If you used a government car to go buy a six-pack of beer, it might earn you a suspension. But if you lied about it, the agency might fire you.”

Some Agencies Even Police Outside Matters

Certain agencies, particularly those involved in law enforcement or national security, have even disciplined employees for lying in outside matters, such as divorce or local police cases.

The Supreme Court ruling denying a “right to lie” to federal workers stemmed from several cases, including one that dealt with workplace sex.

A female aide at a veterans’ hospital in St. Cloud, Minn., was accused of having an affair with a married man when he was a patient at an alcohol treatment center.

Although she admitted to a relationship while the man was an outpatient, she denied to agency investigators that they had had sex when he was in the hospital. The man said otherwise, and her supervisors wanted to fire her.

The case went to the Supreme Court because lower court rulings did not then allow the government to fire an employee merely for denying misconduct. The Supreme Court said false statements to superiors or investigators are grounds enough.

“Our legal system provides methods for challenging the government’s right to ask questions--lying is not one of them,” wrote Chief Justice William H. Rehnquist. “A citizen may decline to answer the question, may answer it honestly, but he cannot knowingly and willfully answer with a falsehood.”

The woman, a low-ranking aide whose job was checking the wards at night, ultimately was given a second chance. For her, the Merit Systems Protection Board ruled that a 90-day suspension was more appropriate than dismissal.

Her lawyer said she was transferred later to a library job that did not involve dealing with patients and that she hopes to retire from that job.