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View Diary: Criminally Investigating Not the Problem, But Rather the Person Who Raised the Problem (198 comments)

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  •  All penalties for violation of the act appear to (22+ / 0-)

    be civil. Would making willful retaliation in violation of the act a criminal act help?

    It seems to me that our reliance on fines and other civil penalties when officials willfully violate many such laws is ineffective and often simply burdens taxpayers with the resulting fines. I fully understand the need to shield officials and public employees from litigation in connection with duties within the scope of their employment, even when they blunder. When they intentionally violate law I believe we need a much more "toothy" penalty--a criminal option.

    Of course reliance on any code, civil or criminal is fairly useless when the Executive decides the law is so much toilet paper and the political sanction options of impeachment and removal are off the table.

    The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

    by pelagicray on Thu Jan 08, 2009 at 07:53:41 AM PST

    [ Parent ]

    •  The issue there (6+ / 0-)

      Would be in surmounting the nearly insurmountable hurdle of establishing that the government officials involved "acted outside of the scope of their employment".  Further, there is the issue of obtaining full disclosure of information with which to base the case.  The basis going forward from my perspective is in establishing a credible means to enforce the law upon those charged with public sector responsibilities.  The Merit Systems Protection Board and the Office of the Special Council are a waste of time, funding and O2 and are even weaker than the SEC, CFTC or OSHA under the current administration.

      •  I think you are wrong. (8+ / 0-)

        No lawyer here but long intimate with government and once an "official" myself. I don't see that "scope of employment" as an obstacle at all. Otherwise we would never see a government employee go to jail. The intent of the scope of employment protection is to protect people who act in good faith from being subject to harassment or the necessity to buy huge amounts of private liability insurance to perform their legitimate jobs. It is not a shield at all from willful criminal action.

        A contracting official is subject to that shield in making decisions, even erroneous ones in good faith, that may make powerful interests furious and would essentially make one a fool to take the job without the shield. It does not protect a contracting officer engaged in bad faith violations of criminal laws even when engaged in the "scope" of their job.

        I'd see no issue in Congress making a bad faith breach of whistle blower protection a criminal act with substantial penalty. The main problem with enforcement, as always, is that a criminal trial requires a more stringent base in evidence than civil or administrative actions. I'd not want to see those eliminated for that reason. I would like to see a criminal penalty for flagrant, bad faith actors.

        The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

        by pelagicray on Thu Jan 08, 2009 at 10:24:27 AM PST

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        •  Your assessment is the one that held (6+ / 0-)

          Previously.
          All one needs to do is look at every action brought by private citizens against government officials for the past several years to realize that scope of employment has been stretched so far out of all proportion as to be unrecognizable.  Now, instead of the official under question needing to present a reasonable belief that they were acting in good faith the complainant needs to demonstrate clear and convincing proof that the official under question clearly violated not only law, rule & regulation, but acted outside of executive intent.  It takes little vision to understand how the burden has been flipped to such an extent as to present a wall before the bar of justice.

          If you believe me to be in error please provide a case number where I can find a specific instance where my assertion is false.  I have yet to find one from the past decade.  

          •  You are missing the point entirely. (1+ / 0-)
            Recommended by:
            MsGrin

            All one needs to do is look at every action brought by private citizens against government officials for the past several years to realize that scope of employment has been stretched so far out of all proportion as to be unrecognizable.

            Those are civil actions. That is where the "scope of employment" operates. That principle offers no protection for an official violating criminal law.

            A contracting officer cannot be sued even if exercising bad judgment for actions within the scope of duties such as selecting a winner among competitors. That official found to have accepted a luxury car as a "gift" to influence that decision violates criminal law and has no such shield. One high profile case occured in the Bush administration: Darleen Druyun.

            Now, I'll agree that the scope thing has been stretched to breaking, often at local government levels. It seems to me that it once had a sanity test in which the flawed action had to meet some reasonable standard--a mistake, a blunder without bad faith, something anyone might do. I've recently seen it applied to things that pass no such sanity or smell test.

            The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

            by pelagicray on Thu Jan 08, 2009 at 11:09:24 AM PST

            [ Parent ]

            •  let me get this right.... (2+ / 0-)
              Recommended by:
              Simian, MsGrin

              Those are civil actions. That is where the "scope of employment" operates. That principle offers no protection for an official violating criminal law.

              We witnessed just how far violations like 18 USC 242 et. al. especially 18 USC 2441 flew just this past year in the Northern District of Virginia regarding the case of the German citizen who was kidnapped & subjected to extraordinary rendition and held for several months, tortured and released on a dark road in Macedonia.  Donald Rumsfeld skated regardless of the criminal violations inherent in the government actions that he authorized and supervised in part.  I submit that holding a federal official in a policy formulating position accountable for violations of 18 USC regardless if their violations of law were in or outside their official capacity would only happen for crimes like committing mass murder in the workplace AKA "going postal" or if there was no other way to save the government from the embarrassment (Abramoff related).  Heck, even the Dep't of Interior, oil & gas section employees from the Denver office that traded sex, drugs & money for favorable royalty and lease decisions were handled administratively.

              Again, please show me some case references.

              •  Right. The "scope of employment" shield applies (3+ / 0-)
                Recommended by:
                Vitarai, paul94611, MsGrin

                to civil actions. I have never heard of any civil employee having a legal shield against criminal charges. They do have certain immunity from legal actions resulting from acts determined to be within the scope of duty and not criminal in nature. That principle has nothing to do with "the criminal violations inherent in the government actions that he authorized and supervised" you mention.

                What you are talking about is a general failure of our legal system and the "rule of law," a corrupt Executive asserting royal perogative and failure of the Legislative to remedy that by impeachment and removal.

                It is a mistake and confuses issues to conflate one with the other. The civil shield has a purpose. Nobody could afford to serve or be employed by government if exposed to lawsuit and expenses of defending against unlimited lawsuits challenging acts within the legal scope of their duties. The other is simply refusal of the executive branch prosecutors to do their jobs and honor their oaths--whether federal, state or local.

                The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

                by pelagicray on Thu Jan 08, 2009 at 02:14:49 PM PST

                [ Parent ]

                •  We are in agreement.. (0+ / 0-)

                  The key will be the process whereby our political society determines how or if it will address the reestablishment of the rule of law to what is now the reality of royal prerogative in the executive.

                  While there is no formal system of deferment of criminal charges via a shield for civil or military service there has developed a strong disincentive for those that populate the institutions of justice both civil & military from bringing any charges that might detract from the status of the organization to which the person/s are involved.  This is the realization of a process whereby "loyalty to the institution" has been conflated with "protection of the institution from all negative news or publicity".  It is this operative condition that I am addressing from my observations from within the institutions of justice and national security where I spent my entire adult career.

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