Police Blotter: Official can't be fired in sex e-mail flap

Pennsylvania court rules that a senior bureaucrat who circulated photos of exposed body parts should be reinstated at a lower level.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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Police Blotter is a weekly News.com report on the intersection of technology and the law.

What: Pennsylvania's Department of Transportation tries to fire a senior bureaucrat who admitted to circulating inappropriate e-mail messages containing nudity.

When: Commonwealth Court of Pennsylvania rules on October 15.

Outcome: State is prohibited from firing bureaucrat, who was a senior highway maintenance manager in York County, Pennsylvania.

What happened, according to court documents and other sources:
Charles Webb was a senior highway maintenance manager with Pennsylvania's Department of Transportation, or PennDOT, making $84,000 a year. He supervised 156 employees and was the highest-ranking PennDOT official in the York County Maintenance Office. His duties included ensuring that his subordinates followed PennDOT's acceptable use policy for the Internet.

Instead of focusing solely on highway maintenance, however, Webb spent time forwarding sexually explicit, salacious and off-color e-mails.

Those included penis jokes, videos of stuffed animals simulating sex, a Microsoft Word document titled "The Benefits of Sex," and a series of photographs (sent to his male subordinates) of women with their breasts exposed or skirts lifted up.

Webb was caught when an anonymous voice-mail message to PennDOT's tip line in January 2006 reported that he was frequently absent from the office and was circulating "derogatory" e-mail messages. The PennDOT technology department subsequently recorded Webb's e-mail correspondence and compiled five CDs of e-mail over a five-week period.

This was consistent with Pennsylvania state policy, which said that authorized employees may monitor e-mail. The 2003 policy, which Webb signed, also prohibited "viewing, accessing or transmitting any material that a reasonable individual may find personally offensive, or inappropriate, including but not limited to sexually suggestive...materials."

At an internal hearing in March 2006, Webb defended sending the messages as a way to boost morale and relieve stress. He was fired a month later for violating the Internet use policy, unauthorized use of PennDOT equipment, and failure to carry out his duties as a manager in a proper and responsible manner. (Before the e-mail messages were discovered, Webb had been disciplined for failure to carry out his managerial duties.)

In a private company, that might be the end of it. In fact, Police Blotter covered a case earlier this month in which an employee of a private hospital was accused of viewing pornographic Web sites but lost his lawsuit for unlawful termination--even though it was possible the bookmarks were planted by malware.

Firing a government under Pennsylvania's Civil Service Act is far more difficult. Webb appealed, and the Pennsylvania State Civil Service Commission held three days of hearings on his case over a four-month period.

In its final order released in January 2007, the Civil Service Commission agreed that some of the e-mail messages could have been inappropriate but said that firing Webb was inappropriate. Instead, the Civil Service Commission ordered that Webb be reinstated and demoted to assistant highway maintenance manager without back pay.

Neither side liked that outcome. Webb wanted his old job and salary with back pay and claimed that the "chain of custody" of the CDs with his e-mail messages was fishy. PennDOT wanted to be rid of him completely.

Both appealed. On Monday, Pennsylvania's Commonwealth Court left intact the Civil Service Commission's recommendations, saying they weren't obviously wrong. That means Webb will get his old job back, minus a one-level demotion. He's currently working for PennDOT as an assistant highway manager in Lancaster.

Excerpts from the court's opinion:
Webb argues he was not trained on the rules and he did not believe they were being enforced. He also claims that he was denied a fair and impartial (hearing) because PennDOT based its decision on (an investigator's) account of what she believed was objectionable without an independent review of the videos and e-mails by other PennDOT officials. Finally, he claims PennDOT ignored his exemplary work record. This court must reject each of these arguments.

First, the record establishes that the Internet and e-mail policy guidelines were sent to all employees, including Internet/E-mail User Agreement, and the January 27, 2003, Policy Memo issued to all PennDOT employees on standards for employee Internet and e-mail use. Webb signed the policies and acknowledged that he read them. The fact that Webb did not actually read them or believe they were enforced does not excuse his conduct. He remained bound by the provisions...

The commission's order demoting Webb, without back pay and without seniority accrual was not an abuse of discretion in light of the evidence. His actions involved an abuse of the authority entrusted to him in his leadership position. The fact that he lost salary and seniority due was consistent with a demotion. There was no abuse of discretion...

Applying the prima facie standard, PennDOT proved Webb violated the Internet and e-mail policies. Webb stored on his H drive jokes and e-mails which the commission found were inappropriate and non work-related. The commission credited the testimony of several of Webb's superiors who felt that Webb did not set a positive role model or lead by example when he violated the computer policies. They testified that they could not rely on and trust Webb to adhere to and uphold and enforce the agency's policies. They believed termination was warranted because Webb condoned his own staff's violations of the very policies he was charged with enforcing...

PennDOT couches the issue in terms of a capricious disregard of evidence, however, PennDOT essentially requests this court to substitute its judgment for that of the commission and find that the videos and e-mails at issue rise to a level that is either sexually suggestive, obscene or pornographic...As long as the commission exercised reasonable discretion in arriving at its findings, this court must affirm.