Fair game?

Delong vs. HHS

A federal agency fired one of its employees for something she did 25 years ago, underscoring the fact that something you did in the past can be used against you.

The case in point involves Lois Delong, who served as a substance abuse specialist at a unit of the Department of Health and Human Services' Indian Health Service in San Fidel, N.M. Delong worked with adolescents who were receiving treatment for chemical dependency.

On April 19, 1999, HHS issued a notice of proposed action to fire Delong based on Section 3207 of the Indian Child Protection and Family Violence Prevention Act of 1990. This act sets minimum standards of character for federal employees whose positions involve regular contact with American Indian children.

HHS officials interpreted it to mean that they had to fire Delong because she had been arrested in 1974, when she was in college, on assault and battery charges, had pleaded guilty and had been sentenced on those charges. Despite evidence that Delong's job performance had been acceptable, HHS fired her effective June 4, 1999.

Delong appealed her removal to the Merit Systems Protection Board. An administrative judge ruled that HHS wasn't required to fire Delong. Because HHS had not considered Delong's actual suitability for work with Indian children, the judge determined that her removal should not be sustained. HHS appealed to the full board. This suggests to me that HHS was using this provision of the law as an excuse to fire Delong, despite her satisfactory job performance.

The board reversed the initial decision, rejecting the distinction drawn between current and prospective employees, and determined that the statute did not permit HHS to retain a current employee who violated the minimum standards of character set forth in Section 3207. This left Delong no choice other than to appeal to the Court of Appeals for the Federal Circuit.

Delong argued that the board was wrong in interpreting Section 3207 as applying to current employees whose criminal conduct occurred prior to the effective date of the act. Delong said, "I find it hard to believe that some stunt I was involved in way back in college could come back to haunt me, especially seeing as how I've worked real productively around here for 10 years now."

The director of the Indian Health Service said, "You're right, you've been a good employee, and I've looked around to see if I could place you elsewhere on the staff, but I'm afraid we're bound by these strict rules Congress specified we had to observe."

The court sided with HHS and said that the language of Section 3207 required HHS to apply the act's minimum standards of character to current employees and remove from positions covered by the act any employee who fails to meet those standards.

We'll never know why HHS wanted to fire Delong, but you can bet it's not because of something she did 25 years ago.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at miltzall@qis.net.

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