Teresa Chambers

Reasons Why Actions Taken Against Her Cannot be Sustained

Outline -- Closing Argument

September 14, 2004

On December 17, 2003, the Department of Interior filed six charges against United States Park Police Chief Teresa Chambers and proposed that she be terminated from her position.  Nearly seven months later, on July 9, 2004, the Department of Interior issued a decision to uphold the charges and termination but withheld the reasons for its findings – the explicit findings of fact on which the agency decision-maker based his decision to sustain each charge and remove Chief Chambers.

An examination of the facts elicited in the record of this case and the applicable law would not allow a rational decision-maker to sustain the action taken against Chief Chambers based on a preponderance of the evidence:

“Charge 1. Improper Budget Communications”

A. This Charge Provides No Grounds for Misconduct.

1. The cited rule does not apply to Chief Chambers’ conduct.  Ms. Chambers’ communications with Congress were proper and invited and Ms. Chambers did not intrude into agency budget formulation and presentation.

2. Agency Officials in depositions stated that Chief Chambers did nothing improper in speaking with the appropriation staff member, as did the Congressional staff member involved.  Ms. Chambers had an obligation to respond to questions from Congress honestly and completely.

3. The Department of Interior has no identified policy against its employees directly contacting Members of Congress or their staff.

4. The cited provision that frames this charge is descriptive, not prescriptive, in that it is not a prohibition and does not provide the basis for a charge of misconduct.

B. The Facts on the Record Do Not Support this Charge.

1. Ms. Weatherly initiated the conversation that brought out the discussion at issue after Chief Chambers told Ms. Weatherly that she, Chief Chambers, had already gotten the information she sought.

2. Ms. Weatherly testified that she did not find it improper or inappropriate for Chief Chambers to communicate directly with her.

3.  Her superiors encouraged Chief Chambers to get to know Ms. Weatherly.

4. Ms. Weatherly testified that the conversation with Chief Chambers did not cause her to question the veracity of Park Service Director Mainella’s commitments to implement key recommendations from a Congressionally mandated study nor did it damage congressional relations with the agency.

5. Chief Chambers’ contemporaneous notes of the conversation (the only written record of the conversation) are at variance with the allegations in the charge.  Ms. Weatherly did not contradict Chief Chambers’ account of their conversation.

C. Chief Chambers’ Conduct Is Legally Protected

1. The Lloyd-LaFollette Act safeguards communications by executive branch staff with Congress.

2. Chief Chambers disclosed dangers to the visiting public and to the national icons to Ms. Weatherly.  Those disclosures are protected by the Whistleblower Protection Act.

3. Statements by Chief Chambers concerning dangers to the visiting public and to the national icons carry a high level of protection under the First Amendment, as speech on a matter of important public concern.

4. Ms. Chambers’ requests for Congressional action, if any, are protected by the First Amendment right to petition government for redress.

5. Department or OMB policies must give way when in conflict with the superior authority of the federal statutes and the Constitution.

“Charge 2. Making public remarks regarding security on the Federal mall, and in parks and on the parkways in the Washington, D.C., metropolitan area.”

A. This Charge Fails to State a Legal Basis for Misconduct

1. Public remarks regarding “security” are nowhere prohibited in the Department of Interior.  No rule or order classifying in any manner the information attributed to Chambers in the Washington Post has been identified by the Agency.

2. The Department of Interior does not even have a definition of “law enforcement sensitive” information.

3. Chief Chambers and her staff are authorized to decide what law enforcement material may be released to the public.

4. Deputy Director Murphy admits that not all material in documents marked sensitive is sensitive, such as the location of porta-potties and other readily discoverable matters, and even though a document is stamped “Law Enforcement Sensitive,” that information may be properly released.  DOI attorney Myers also recognized this concept, which is widely used in the government in the redaction of documents to be released to the public, that not all information in a document stamped sensitive is prohibited from release.

5. Chief Chambers followed the written guidance provided to departmental spokespersons in answering questions in the Washington Post interview – to respond truthfully.

B. There Is No Evidence that Chief Chambers’ Interview with the Washington Post Compromised a Legitimate Security Interest

1. Chief Chambers disclosed only what was in plain sight.  As a seasoned law enforcement professional, Chief Chambers was in a far better position than any of her accusers to determine what was truly sensitive information.  Assistant Chief Holmes agreed in his deposition that numbers and placement of officers that are in plain sight is not a matter that is sensitive or prohibited from release.

2. The staffing details were provided to the Post by the Fraternal Order of Police (FOP), not Chief Chambers who simply responded honestly to questions from the Post.

3. The cited portions of the Washington Post interview were paraphrases by the reporter, not direct quotes from Chief Chambers.  Interior officials did not confirm with Sgt. Fear or Chief Chambers what was actually said and by whom before taking action against Chief Chambers and made inadequate and unsuccessful inquiries with the Post.

4. The only document relied on by the Agency regarding the “security” sensitive status of the information discussed in the Post is a report sent to Parkinson by Chambers stamped “law enforcement sensitive” by Lt. Beck without any delegated authority or guidelines and based on information and reasons other than the type of data referenced in the Post.  This document relied on by the Agency in any case does not purport to classify any information generically – it is just that document that is classified, and the document does not purport to state a rule as to what information should be classified as sensitive or even to define the term sensitive.

C. Chief Chambers’ Conduct Is Legally Protected

1. Chief Chambers’ disclosures of dangers to the visiting public and to the national icons to the Post and media are protected by the Whistleblower Protection Act.

2. Statements by Chief Chambers concerning dangers to the visiting public and to the national icons carry a high level of protection under the First Amendment, as speech on a matter of important public concern.

“Charge 3. Improper disclosure of budget deliberations.”

A.        This Charge On Its Face Is Not Supported by the Evidence

1.      The agency falsely asserts that Chief Chambers stated a budget amount for a given purpose that is presented in the President’s budget or the underlying documents – i.e. 8 million dollars for a total requested increase.  However what Chief Chambers identified in response to questions from the Post reporter who already had information on staffing from the FOP was that she needed approximately a $27 million increase for FY 05 for the USPP to properly perform its mission of protecting the public and icons, not $8 million.

2.      The Agency Charge does not assert the existence of or even identify any budget document that contains the numbers Chief Chambers is said to improperly have mentioned to the Post.

3.      Agency witness Bruce Sheaffer (the NPS Comptroller) asserts he saw such a document but did not produce it, nor did the Agency produce it.  Under federal law, when an agency fails to produce material documentary evidence under its control, the law provides that the Judge may draw an adverse inference that this evidence – had it been produced – would have been against the agency.  Appellant Chambers asks the Administrative Judge to draw such an adverse inference here.

4.      Agency documents that were produced for the USPP FY 05 increase show that the USPP requested $42 million, the NPS requested 3 million, and the Office of Management & Budget passed back 3 million dollars – none of these figures match the alleged budget number ($8 million) “disclosed” in the Post.

2. The Agency Did Not Conduct A Good faith Investigation to Determine Precisely What Chief Chambers Said to the Washington Post.

The portion of the Washington Post article in question did not quote Chief Chambers but paraphrased her remarks.

1. Press officer John Wright in his deposition admitted that he did not complete his inquiry with the Post as to what Chief Chambers did and did not say.  The reporter merely told him that the paper stood by its story and would not elaborate further.  Mr. Wright did not include the fact that he failed to get confirmation from the reporter of the Chief’s words in the affidavit he prepared for Paul Hoffman.

2. Paul Hoffman, the deciding official, in his deposition stated that he saw no need to ask Chief Chambers exactly what she said to the Post.

3. Paul Hoffman did not choose to interview Sgt. Scott Fear, the USPP press officer who was present for the interview, to determine what was said.  Sgt. Fear’s recollection corroborates Chief Chambers’ account of what she said.

4. Mr. Murphy himself claims to have been misquoted by the press and thus should have been cautious about blaming Chief Chambers for every statement in the Post article.

5. The Agency failed in its legal obligation recognized in MSPB case law to verify independently that statements asserted in the media are correct before relying on them as the basis for disciplinary action.

a.      Chief Chambers’ Comments to the Post Are Legally Protected

Chief Chambers’ statements to the Post are protected by the First Amendment and the Whistleblower Protection Act.

“Charge 4. Improper Lobbying.”

A.     The Charge Does Not Match the Facts of the Case

2. Speaking to the press about concerns or needs for an agency does not constitute prohibited lobbying.  Deputy Secretary Griles, a former lobbyist and long-time Interior employee, himself confirmed this in his deposition.

3. At the time of the interview, November 20, 2003, there was no pending legislation concerning the upcoming budget for the U.S. Park Police, as the President’s proposed budget had not yet been unveiled.  It is impossible to be “promoting or opposing legislation” when the legislation does not exist.

4. This charge is at variance with Charge # 3 in that she is alternatively accused of trying to influence formulation of budget legislation as well as passage of that yet to-be-developed budget with the same comments.

B. Chief Chambers’ Comments to the Post Are Legally Protected

1. Chief Chambers’ statements to the Post are protected by the First Amendment and the Whistleblower Protection Act.

2. To the extent they were deemed to be communications to Congress, these statements are protected by federal statutes including the Lloyd-LaFollette Act.

“Charge 5. Failure to carry out a supervisor’s instructions”

1. Mr. Murphy confuses his desires with clear communications of an instruction (a “My wish is your command” syndrome).

2. None of these instructions were ever committed to writing.  In fact, Mr. Murphy has failed to produce any written indication that he gave Chief Chambers unambiguous instructions.

3. Deputy Director Murphy failed to act on any concern regarding the detail of Ms. Blyth or other alleged orders not followed with Chief Chambers for several months.  Murphy raised them as a basis for discipline for the first time on the very day of the Washington Post article.

            Specification 1. Detail of Pamela Blyth

a.       This was an instruction given to Ms. Blyth, not Chief Chambers.  In fact, Chief Chambers did not learn to what position Ms. Blyth was to be detailed or when until after the information was given to Ms. Blyth via a telephone call from Don Murphy.

b.      Chief Chambers had no authority to implement an instruction to assign an employee to a unit outside her command.  Only a person of higher rank, such as Mr. Murphy, could order persons to be so moved.

c.       This specification contradicts Charge 6.  If, as Charge 6 alleges, this order was rescinded, how could Chief Chambers be charged with failure to follow an order that was inoperative?  The gist of this charge, which is not misconduct, is that Ms. Chambers had the audacity to disagree with Murphy during the formative stages of the discussion of the proposed detail.  

Specification 2. Psychological Examinations for Deputy Chiefs Beam and Pettiford

a.        There was never any order given by Murphy to the Chief that was not followed and none has been produced.

b.      Murphy gave his order not to Chief Chambers but to the deputies on June 16, 2003.  Compliance by the deputies promptly followed and any further delay in conduct of the tests was outside the Chief’s control. 

c.       Chief Chambers acted promptly to facilitate communication of Mr. Murphy’s order to the deputies once given. 

d.      Chief Chambers had asked via Agency counsel to recuse herself from this decision.  Chief Chambers’ recusal was communicated to Mr. Murphy on June 6, 2003. 

Specification 3. Failure to Meet with a Deputy Solicitor

a.       Murphy admits in his deposition to Hoffman that he cannot remember if he ever gave an order to Chambers to meet with attorney Myers or even to cooperate with Myers. 

b.      Murphy was given an opportunity after his deposition to submit additional proof and failed to do so.

c.       The Chief was not handling meeting arrangements with Myers but Lt. Beck was.  In his deposition, Lt. Beck recalls trying to set up a meeting but that there was a conflict in Mr. Myers’ schedule.

d.      Weeks later, the Chief met with Myers and his supervisor, DOI attorney Hugo Teufel.  No concern was raised about any outstanding issue concerning the “tractor man” incident or the Organization of American States.  In addition, Myers did not raise the earlier concern before Murphy charged Chief Chambers with this offense, nor did Myers mention the later meeting with Chief Chambers in his testimony.

“Charge 6. Failure to Follow the Chain of Command”

1.      This Charge Has No Legal Basis

1. Neither the Department of Interior nor the National Park Service has a rule or written policy requiring adherence to a chain-of-command in internal communications.

2. Deputy Secretary Griles admitted that there was nothing wrong in Chief Chambers appealing to him outside the chain.  He welcomed such communications. 

3. Mr. Murphy himself acted outside the chain of command regarding Ms. Chambers but has tried to conceal that fact.  See Agency Hearing Exhibit 3 (documenting Mr. Murphy going outside the chain of command, around Director Mainella, to Assistant Sec. Manson to scheme to remove Ms. Chambers in a series of communications that Murphy describes as him “talking to himself”). Murphy lied on the stand to avoid being impaled on his own sword – the chain of command sword he crafted to use against Chief Chambers.  He could not now admit that he himself had done that which he asserted as a basis for firing Chief Chambers – or either he too would be fired or his case against Ms. Chambers would be seen for the unfounded pretext that it is.  In the process of this denial, Murphy destroyed his own credibility.

4. Mr. Griles did not direct that any discipline be taken against Ms. Chambers for having appealed to him and was unaware that action had been taken against Chambers on that basis.

2.      This Charge Has No Factual Basis

1. Chief Chambers made an effort to go through the chain of command, had already exhausted her appeals to Murphy and Mainella, and left a voice message for Assistant Secretary Manson.

2. Mr. Griles called a meeting after the detail was cancelled that included Chief  Chambers’ chain of command.  Mr. Griles testified that he thought the meeting had resolved the issue.

3. The result or resolution emanating from that meeting was supposed to have been a series of follow-up meetings between Chief Chambers and her chain of command to work out the logistics of meeting budget preparations.  These follow-up meetings never occurred due to inaction by Chambers’ superiors.

Inappropriate Penalty Assessed

1. The Agency Admits That the Nature and Seriousness of the Charges Do Not Merit Termination.

1. On December 12, 2003, Deputy Director Murphy offered to forego filing any of these charges if Chief Chambers would agree to allow Mr. Murphy to screen all of her future media and Congressional interviews.  Why would these charges merit termination if the agency was willing to drop the entire matter in return for Chief Chambers’ agreement to a gag order?

2. Ms. Mainella stated in her deposition that, if it were in her power as director, she would reinstate Chief Chambers on an agreement that Ms. Chambers follow the rules once explained to her.  Ms. Chambers would agree to reinstatement on such a condition that she follow the rules (excepting those in violation of law) once explained.

3. Mr. Hoffman, the deciding official, admitted in his testimony that three of the charges were not serious enough to justify removal.

2. Chief Chambers was Not On Clear Notice of the Agency’s Perceived Rules/ Expectations Concerning the Conduct in Question.

1. No other federal employee, let alone Interior employee, has been charged with offenses involving media and Congressional disclosures.  The “rules” -- such as they are in this case -- have been applied only against one person: Chief Chambers.

2. Chief Chambers only received cursory training in federal ethics rules (none of which are at issue in this case).

3.  Upon Ms. Chambers’ hire from outside the federal government, the official tasked by DOI with providing Chief Chambers with training and orientation information on federal rules and practice, Major Michael Fogarty, did not do so.  In fact, Chief Chambers only discovered Major Fogarty’s training assignment while reviewing agency’s discovery materials in preparation for this hearing.

4. No specific training concerning the subject matter of these charges was ever provided.  Even more basically, Chief Chambers had no notice of perceived violations in advance of discipline.

3. The Agency Considered Improper Factors in Determining the Penalty Assessed.

In analyzing the “notoriety” of the offenses, Mr. Hoffman cited “numerous newspaper articles and radio and television news stories” as well as the time that NPS employees spent responding to “letters and telephone calls” concerning the case.  Chief Chambers cannot be held responsible for the public outrage and resultant media coverage caused by the agency’s clumsy and blatantly illegal acts. 

The “notoriety” resulted not from the Washington Post story on December 2 but in the agency’s horrendous overreaction to that story.  In other words, the notoriety was generated by the agency, not Chief Chambers.

4. The Agency Falsely Asserted That the Penalty Given to Chief Chambers Was Consistent With Penalties Imposed Upon Other Employees for Similar Offenses.

1. According to materials submitted for the record, the former Chief of the U.S. Park Police maintained that he had made comments in a similar vein concerning budgetary needs and staffing levels to the news media as those made by Chief Chambers without any discipline or even warning of potential discipline.

2. Jeff Capps, the then-FOP Park Police Lodge President who directly provided budgetary and staffing information to the Washington Post was not disciplined or even counseled about possible misconduct.

3. According to the depositions of the NPS “human resources” specialist, David Davies, no other NPS employee in his experience had ever been disciplined for making comments to the media either in a personal capacity or as an official spokesperson.

5. Prior to the Washington Post Interview, Chief Chambers Was Highly Regarded for her Performance and Dependability.

1. Don Murphy admitted in deposition and testimony that none of the issues he raised in his proposed discipline of Chief Chambers was in the performance evaluation he had prepared for her (but never delivered).

2. Mr. Murphy called NPS “Human Resources” specialist Steve Krutz to his office on the morning of December 2, 2003, when the Post article came out, with the newspaper open to the article on his desk, and directed Krutz to immediately draft disciplinary action against Chief Chambers using a laundry list of stale complaints regarding the Chief that Murphy had been keeping in his personal file.  Krutz then worked until 8 pm that night drafting what was a proposed removal based on the laundry list Murphy provided him.

3. In her deposition, Director Mainella expressed admiration for the skill and intelligence that Chief Chambers displayed in handling the media and the public profile of the agency.

4. No specific written expectations were given to Chief Chambers in a job description.  She received no performance appraisal and no notice of performance standards was given.

6. Chief Chambers’ Future Ability to Perform Should Not Be in Question.

1. Director Mainella testified that, if it were her power, she would readily reinstate Chief Chambers.

2. Chief Chambers believes in law enforcement, she believes in following the law and following the rules – but she cannot follow rules of which she is never informed.

3. Paul Hoffman rests his conclusion that Chief Chambers could not perform to her “inability to see that you have engaged in misconduct and your lack of contrition.”  This conclusion not only begs the question but also rests on the improper assumption that by exercising her right to respond to accusations Chief Chambers forfeits her right to reinstatement.

7. Chief Chambers Acted in the Public Interest and Not for Any Private Gain.

1. Chief Chambers acted to address a real threat to, and a real vulnerability of, the national monuments and the public, in light of the events of September 11, 2001, brought to her attention unambiguously by the Inspector General.  As part of that response, Chief Chambers informed the public of dangers they faced as a result of limitations of staff and funds placed upon the U.S. Park Police.

2. Chief Chambers acted out of concern for the safety of her own officers – one of whom died in part due to insufficient staffing to secure an accident scene.  As Chief of the U.S. Park Police, Teresa Chambers has an obligation to protect the health and well being of the officers serving under her.  Chief Chambers spoke up to draw attention to the needs of her officers for safe and effective performance of their duties.

3. Agency expectations for an official of such a high rank such a high rank should include honesty, devotion to mission and a willingness to act forthrightly to protect lives.

Chief Chambers Denied Due Process

The Agency decision was made on basis of extensive depositions and documents submitted and considered after Chief Chambers had submitted her own response to what she was told was the information upon which she was told the Agency would rely.  Chief Chambers was never put on notice of this voluminous ex parte information or given an opportunity to respond to it before the Agency decision to remove her.

Mr. Hoffman’s adoption of each of Mr. Murphy’s six charges against Ms. Chambers was based on reasons (fact findings) that were deleted and hidden from Ms. Chambers and the public to this day, and was based on an after-the-fact investigation that led to voluminous testimony and documentary submissions by numerous witnesses that Chief Chambers was not informed would even take place.  Denying Chief Chambers a chance to respond to this material prior to a decision being rendered is in violation of the Due Process guarantee of the Fifth Amendment of the U.S. Constitution.

CONCLUSION

The removal of Chief Chambers was unjustified in fact and law.  It was retaliatory, in violation of the Whistleblower Protection Act as well as the First Amendment and federal statutes protecting communications with Congress. 

As the evidence makes clear, Chief Chamber’s “crime” was going “off message.”  But candor is not misconduct and honesty is not grounds for termination. Contrary to the Agency’s claim, Chief Chambers did exactly what the Constitution, the Congress and the American public would have expected of her.

For all the reasons stated in Appellants pretrial submission and in light of the full record in these appeals, the actions by the Agency in this matter should be reversed as being unsupported and contrary to law.