October 6, 2004 - Merit Systems Protection Board Judge Elizabeth Bogle handed down her decision eliminating two of the six administrative charges placed by Donald Murphy, Deputy Director of the National Park Service, and upheld by Paul Hoffman, Deputy Secretary for Fish and Wildlife and Parks. In her decision, she found that the Department of the Interior “has not met its burden of proof of Charge 1, “Improper budget communications,” and Charge 4, “Improper lobbying.” Throughout the written decision, Bogle writes in a fashion that could be misinterpreted as her stating findings she made independently when, instead, she is paraphrasing the testimony of key witnesses or providing a summation of a particular document. Keep this in mind as you read the document. Among other important “findings” by Judge Bogle are: “. . . that in his written decision the deciding official, Mr. Hoffman, did not explain his reasons for sustaining the charges.” (Page 46) “. . . that Mr. Hoffman prepared a draft decision that did explain his reasons, but on the advice of agency counsel, he issued a final written decision that did not contain those reasons.” (Page 46) “Agency witnesses and Ms. Weatherly testified that they did not think it was improper for the appellant to have called Ms. Weatherly . . .” (Page 22) [Ms. Weatherly is the Congressional staffer referenced in Charge 1.] “ . . . the agency has not shown that the appellant’s statement caused Ms. Weatherly to ‘question the veracity of the [National Park Service] Director’s stated intent to carry out the direction from Congress’ because Ms. Weatherly testified that while she agreed with the statement, her conclusions were not based on what the appellant said.” (Page 22) Regarding comments to The Washington Post about needing more officers, “. . . the statements do not identify any pending legislation or promote increasing the United States Park Police’s appropriation to meet the stated staffing needs,” and the judge “do[es] not find that the appellant engaged in lobbying . . .” (Page 30)
And, without giving away strategy for the next steps in the appeal of this matter, HonestChief.com notes that there were some interesting findings and conclusions the judge did not reach: That the incidences of breaking and entering (to the Chief’s office), computer crimes (by illegally accessing and altering data on her computer), larceny (by stealing personally owned equipment), assault (by pepper spraying the partially opened office door of an occupied office), and other acts committed by unknown persons who had access to secured areas of United States Park Police facilities are crimes and not “pranks” as described by Judge Bogle in her decision (Page 31); and that those who commit these acts are criminals and not “pranksters,” a term also used in the decision by Judge Bogle (Page 32).
That, although the judge determined that some of the information given to the Washington Post reporter was “the type of information contained in agency exhibit 4 and that this document was labeled ‘law enforcement sensitive’,” (Page 26) Deputy Director Donald Murphy was referred by Chief Chambers’ counsel to another “law enforcement sensitive” document that included the number of “porta-potties” and their general location. Reluctantly, during his sworn deposition, Murphy had to admit that this was an example of information that could be in a “law enforcement sensitive” document but that was not, in and of itself, “sensitive” in any way.
That Deputy Director Donald Murphy was less than credible when, during his sworn testimony, he tried to convince Chief Chambers’ counsel and the judge that a particular set of notes about Chief Chambers were notes he allegedly had written to himself and shared with no one. When asked to explain the repeated use of the pronouns “you” and “your” and his “signature line” of “Don Murphy – Deputy Director,” Murphy attempted to convince those present that he was, in fact, “talking to himself” in that note and that, as a writer, he “often” refers to himself in “third person.”
That, although the judge says that “Based on the testimony of Mr. Murphy . . . I find that . . . Mr. Murphy instructed the appellant to cooperate” with Randy Myers of the Solicitors Office regarding “the OAS complaint,” (Page 38) Murphy told the Department of the Interior “deciding official,” Paul Hoffman, in an interview with him on February 6, 2004, “ . . . I don’t recall speaking with her [Chief Chambers] directly about this instance.” (Page 94 of 2-6-04 interview.)
That, although the judge wrote in her decision that she concluded that “The appellant . . . was instructed by Mr. Murphy to require [United States Park Police Deputy Chief] Beam and [United States Park Police Deputy Chief] Pettiford to take the exams and she failed to follow his instruction as charged,” (Page 36) she failed to mention that she would not allow the Chief to call these two individuals as witnesses to confirm what the Chief had told them and when.
That, with regard to the letter about National Park Service Deputy Director Donald Murphy and National Park Service employee Steve Krutz’ unethical and, perhaps, illegal activities, the judge says that 5 U.S.C. 2302 (b)(9) protects an employee who “exercises an appeal, complaint, or grievance,” (emphasis added) she concludes that “The appellant . . . has not shown that she engaged in activity protected by 5 U.S.C. 2302 (b)(9)” when “she gave Ms. [National Park Service Director] Mainella a letter complaining about Mr. Murphy.” (Emphasis added.) (Page 43.) HonestChief.com has to wonder how a letter “complaining” about a person would not be considered a “complaint.”
Finally, Judge Bogle says that “ . . . the appellant was unable to identify any similarly situated employees” and, therefore, “failed to meet her burden of proof” on the “affirmative defense” of disparate treatment by attempting to show that “the penalty imposed in her case was more severe than the penalties imposed in the cases of other agency employees.” (Page 48 and 49.) What the judge failed to reveal, however, was that she required an exact comparison – that is, another United States Park Police chief of police – active and not retired – who was working directly under the Deputy Director of the National Park Service. She also failed to mention that, when Chief Chambers’ counsel attempted to show a comparison in behavior of former United States Park Police Chief Robert Langston, Judge Bogle refused to hear the information, stating that unless Chief Langston was “charged” with those offenses, it was not a comparative case. That’s the point, Your Honor, no one charged Chief Langston for the same behavior – a point that HE has admitted openly since these actions were taken against Chief Chambers.
Although Judge Bogle said that Chief Chambers’ conduct “fit a pattern of not listening,” (Page 36), HonestChief.com believes, based upon what we heard during testimony, that the person “not listening” is Judge Bogle. It was clear from the beginning that Judge Bogle wanted this case to go away. She pressured Chief Chambers through her attorneys to settle this matter by taking another position within the Department of the Interior or taking a cash settlement. Chief Chambers should have been insulted by such a suggestion. Judge Bogle went so far as to tell one of Chief Chambers’ attorneys that he should have a “heart-to-heart” talk with his client and told him that she had already decided that certain charges were sustained -- weeks before the hearing began. YOU be the judge. Read the administrative charges, read the appeal submitted to Paul Hoffman (a required process before going to the MSPB) read the depositions and transcript of the hearing as they become available, and read the decision of the judge. None of these charges would have been placed had the Chief chosen not to tell the truth to a reporter on November 20 as reported by him and his paper, The Washington Post, on December 2, 2003. Her candor resulted in the fabrication of charges by Donald Murphy and others to support the otherwise illegal retaliatory acts. Now, the judge in her decision – Page 51 – accuses the Chief of “accept[ing] no responsibility for her conduct and . . . express[ing] no remorse.” She is in error in her assumptions. Chief Chambers clearly accepts responsibility for her conduct in standing up for public and officer safety and for being honest in her communications. And she has expressed remorse that leaders in the Department of the Interior and the National Park Service who hold the future of the United States Park Police in their hands do not value or embody these same traits. We've only just begun; this is far from over !  
 
 
Support Teresa Chambers
Support@honestchief.com |
