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109.00 Appointment as Commissioned Officer - Recall to active duty

Board Members' Recommendation and Decision on Appeal of: Xxxxxxxxxxxxxxxxxxxxxxxxxx
Case Number 211-98

Officer's Request for Relief:

Xxxxxxxxxxx appealed to the Board asking it to reinstate him in the commissioned corps with appropriate pay, allowances and benefits and that he be provided with written apologies from RADM Suzanne Dahlman, Director, Division of Commissioned Personnel (DCP); Kathleen Hawk, ...and Janet Reno, Attorney General, U.S. Department of Justice (DOJ). (The Board members did not consider his request for written apologies since they were not Board for Correction matters.)

Statement of the Issue:

Xxxxxxxxxxx was on detail during his probationary period to the Xxxxxxxx as a dental officer. While there he questioned the competence of his supervisor in practicing dentistry and developed a case against him by copying xxxxx dental records and taking them home. At a later date he was questioned by xxx management concerning his access to dental records and his failure to follow management directions. This led to a confrontation at an administrative investigation during which he failed to answer questions and asserted his constitutional rights was terminated from the commissioned corps.

Arguments bv Officer:

Xxxxxxxxxxx argued the following:

1. He contended that he was terminated from the XXX and the Public Health Service (PHS) for blowing the whistle on his supervisor, Xxxxxxxxxxxxx, the Chief Dental Officer, for failing to meet standards of care in dentistry.
   
2. The XXX and PHS contended that he was terminated for refusing to cooperate during an official investigation and failing to follow orders of his supervisor. While he did not dispute the reason they gave for his termination, he contended that the investigations and allegations against him were fabricated to coerce his resignation or force his termination from the corps.
   
3. All documentation and evidence against him was dated after he made his written request for a peer review of his supervisor. Two weeks prior to his alleged misconduct, he had been recommended for promotion.
   
4. On xxxxxxxx xx, 1996, he informed xxxxxxx xxxxxxx, Health Services Officer (xx xxxxx supervisor), of his concerns regarding the practice of dentistry by his supervisor at the Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. At that time, he informed Xxxxxxxxxxx that he was photocopying excerpts of xxxxx dental records for his review. Xxxxxxxxxxx gave no indication this was a problem or that he should cease such copying.
   
5. On Xxxxxxx 1997, he presented Xxxxxxxxxxx with his documentation and asked for a peer review of his supervisor. On Xxxxxxx 1997, Xxxxxxxxxxx demanded his resignation from the XXX and PHS or face transfer to the xxxxxx xxxxxx xxxxxxx in XXXXXXXX. He refused to resign.
   
6. On Xxxxxxx 1997, he was brought under investigation for allegedly having confidential government documents in his possession (xxxxx dental records). He was instructed to sign a document stating that he could be held criminally liable for his responses, if they were proved false. He was denied his constitutional right to have an attorney present and was detained against his will for several hours. He refused to sign documents and answer questions without an attorney. The investigators tried to force him to sign an affidavit they drafted, but he refused to sign it without the advice of an attorney. Xxxxxxxxxxx was aware on Xxxxxxx, 1996 that he was photocopying evidence for his review, yet he chose to wait until after he made his allegations in writing to request an investigation.
   
7. On Xxxxxxxxx, 1997, he was detained against his will in the xxxxxxxx xxxxxxxxxx area of the xxxxx and brought under investigation by the xxxx xx Xxxxx. They refused his request and right to have an attorney present. He refused to answer questions without an attorney present.
   
8. On Xxxxxxx xx 1997, his duties as a dentist were illegally changed to the duties of a typist for Xxxxxxxxxxx. He was banned from his workplace and forced to work in an unheated warehouse typing forms unrelated to his practice as a dentist. His two-month grievance process was essentially ignored. He documented evidence that the xxxxx lied regarding his appeal on several occasions.
   
9. His appeal to the PHS in Xxxxxx 1997 was sent by registered mail, signed for, and yet lost for several weeks by Xxxxxxxxxxxx. His appeal was given less than two hours of attention on his last day as a commissioned officer in the Public Health Service.
   
10. Xxxxxxxxxxxx, the PHS, and the XXX violated several rules, regulations, and laws to ensure his termination. He had previously submitted documentation of all such violations. Xxxxxxxxxxxxxxxx, a legal officer in the PHS, provided the response to his appeal to the Board for Correction. Sometime between Xxxxxx 1997 and Xxxxxxx 1999, Xxxxxxxxx was apparently stripped of her rank of XXXX and demoted to Xxxxxxxx. This raised serious questions regarding her ability to properly and adequately respond to his request to the Board for Correction. Xxxxxxxxx and xxx xxxx, XXX xxxx xxx, failed to address most of the issues he raised, most notable, the dates of the events.
    
11. The strongest defense of his allegations was the chronology of events. As stated earlier, all evidence against him was obtained and dated after he requested a peer review of his supervisor. He noted that in their response, Xxxxxxxxx and Xxxxxxxxx failed to provide any evidence against him supporting the claims of the XXX and PHS; they simply informed the Board for Correction that he was terminated for failing to cooperate during an investigation. From his evidence, it was clear to him that all this was fabricated to coerce his resignation.
    
12. In xxxx 1997, five individuals testified in Federal Court in xxxxxx, against Xxxxxxxxxxx and his employer the xxx, xxxxxx, on behalf of a former physician at the xxxxxxx xxxxxxxxxxx xxxxxxxxxxx. XXX later settled with this physician for the many years of harassment he endured from Xxxxxxxxxxx. He is currently being sued by other individuals for sexual harassment. He has a long history of employee abuse and harassment and has been transferred from several XXX XXXXXXXXXXX for his actions.
    
13. By requesting a peer review, he acted according to the guidelines established by the XXX and PHS, yet was rewarded with termination.

Arguments by DCP:

DCP argued the following:

1. No error or injustice existed in Xxxxxxxxxxx service record. While on probation his commission was terminated due to documented evidence of misconduct.
   
2. Despite granting his request to call his attorney and to have a staff representative present during questioning, he refused to cooperate with a Federal administrative investigation. He did not dispute this fact but sought to justify his actions.
   
3. Contrary to his assertion, there was no constitutional entitlement to legal representation during the course of an administrative investigation. He was advised that administrative investigations were distinguished from criminal investigations and was reminded of his duty to cooperate with the investigation.
   
4. He violated XXX policies by removing xxxxx dental records and or copies from xxx without authorization.
   
5. Contrary to his assertion, the record contained no documentation indicating that he was authorized to copy or remove dental records from the Xxxxxxxxxxxxxxxxxxxxxxxx.
   
6. In violation of the Standards of Conduct, he failed to follow the lawful orders of his superior with regard to waiting lists and scheduling of patients.
   
7. The XXX took his charges against his supervisor seriously and conducted a full investigation of his allegations. The allegations proved to be unfounded.
   
8. The record indicated that XXX legitimately initiated an investigation due to evidence of his wrongful removal of copies of patients' records from the Xxxxxxxxxxxxxxxxxxx. The timing of the investigation by itself was insufficient to make a finding of retaliation.
   
9. Upon call to active duty, all officers were provided a copy of the Commissioned Officer's Handbook which gave an overview of commissioned corps policies and procedures. Officers were advised that they serve on a probationary status for three years. Officers also were advised to contact their staffing officer in DCP for assistance if there was a problem or conflict with Agency management.
   
10. The divestiture of travel and transportation entitlements was discretionary. Xxxxxxxxxxxx honored the request of XXX administrators after finding that it was in the best interest of all concerned to provide him with travel and transportation benefits. If he feels that it was an error, DCP will accept reimbursement for any travel and transportation benefits which have been paid.

Board Action on Officer's Appeal:

Date of Board Meeting: xxxx xx, 2000

Board Staff:

Norman E. Prince, Jr. Staff Director
Program Support Center
Executive Director
Board for Correction of PHS Commissioned Corps Records

Thomas E. White, Ph.D.
Executive Secretary Board for Correction of PHS Commissioned Corps Records

Members of the Board:

Harold P. Thompson
Chairperson of the Board and Executive Officer Office of Public Health and Science, OS

Findings, Conclusions, Recommendation and Correction to the Record:

Findings

1. The record documented the results of an investigation by DOJ dated Xxxxxxx 1997 sustaining allegations against Xxxxxxxxxxx for: "... failure/refusal to cooperate in an official investigation; failure/refusal to follow orders of a supervisor; and failure/refusal to follow policy" which led to his termination from the corps.
   
2. The record did not document that the investigation initiated by xxx and allegations against him had been fabricated "to coerce his resignation or force his termination from the corps."
   
3. Although he made a request for a peer review of Xxxxxx dental practices on Xxxxxxx 1997 when he presented Xxxxxxxxxxx with a report of his findings, he had discussed them with Xxxxxxxxxxx on Xxxxxxx, 1996 and gave him a list of patients he had been concerned about on xxxxxx 1996. He was in violation of XXX policies when he copied xxxxx dental records and took them home preparatory to his discussions with Xxxxxxxxxxx on Xxxxxxx, 1996 and xxxxx 1996. However, this did not become an issue until after he requested a peer review.
   
4. The record did not document whether or not Xxxxxxxxxxx had informed him on Xxxxxxx, 1996 or on xxxx 1996 that he had been in violation for copying xxxxx dental records and taking them home or that he had been directed to cease doing so.
   
5. The record did not document that Xxxxxxxxxxx asked him to resign or be transferred to the xxxxxx xxxxxx xxxxxxx in Xxxxxxxx. The record did document that he offered his voluntary resignation, but it did not document whether or not his resignation was a consequence of his request for a peer review of Xxxxxx or whether it was ever given serious consideration.
   
6. The record documented that he met with Xxxxxxxxxxx on 1997. He did not answer the question of not he had xxxxx dental records in his or at his home. XXX policy stated:
   
   During the course of an official investigation, employees are to cooperate fully by providing all pertinent information which they may have. Full cooperation requires truthfully responding to all questions and providing a signed affidavit, if requested. Any employee who fails to cooperate fully or who hinders an investigation is subject to disciplinary action, up to and including removal.
   
7. The record also documented that XXX officials met with Xxxxxxxxxxx on Xxxxxxx xx and xx, 1997 to obtain answers regarding xxxxx dental records and to have him sign Form B (Warning and Assurance to Employee Required to Provide Information). He refused to answer questions stating he would have done so with an attorney present. Form B stated:
   
   If you are a member bargaining unit and believe your rights threatened, you may the presence of a representative. If you desire a representative, no further questioning will take place until your representative is present. However, if your representative is not available within a reasonable period of time, questioning may proceed without a representative being present.
   
   He was not a member of the bargaining unit. However, he was permitted to have a representative present during the administrative proceedings which he did.
   
   He refused to sign Form B stating his belief that: "... what I said could be used against me in criminal proceedings. " Form B stated: " . . . if you knowingly and willfully provide false statements or information in your answers, you may be criminally prosecuted for that action. "
   
8. The record did not document any unfair personnel practices by XXX regarding his work assignments.
   
9. The record did not document any unfair personnel practices by DCP regarding his appeal rights.
   
10. The record did not document that his request to Xxxxxxxxxxx asking for a peer review of Xxxxxx had been justified by guidelines provided by XXX or the Public Health Service. He referenced XXX xxxxxxx as one of the guidelines. The Board members did not find copies of these guidelines in the record.
    
    He also cited Title 5, U.S. Code, Chapter 23, Section 2301 (9), as protecting him against reprisal for disclosing information against Xxxxxx. However, this did not apply to members of the uniformed services or to commissioned officers on active duty, including officers detailed to XXX, since they were not employees as defined by the statute.
    
    Finally, he cited XXX xxxxx xxx xxx stating that commissioned officers were subject to all rules, regulations, policies and practices applicable to any other XXX employee. He argued that the XXX Orientation Packet extended this coverage to the Whistle Blower Protection Act. The Board members did not find a copy of the Orientation Packet in the record.
    
11. The DOJ investigation sustained allegations against him for: "... failure/refusal to cooperate in an official investigation; failure/refusal to follow orders of a supervisor; and failure/refusal to follow policy."
    
12. The record did not document any of his allegations resulting in court actions against Xxxxxxxxxxx and xxx or allegations regarding Xxxxxxxxxxx's character or treatment of personnel.
    
13. Xxxxxxxxxxxxxxxxxxxxxxx, accepted the conclusions of the investigative report and on Xxxxxxx xx, 1997 asked xxxxxxx, XXX, xxxx xxx, to arrange Xxxxxxxxxxx termination from employment with XXX and his termination from the commissioned corps. DCP accepted XXX request and notified him of his termination on Xxxxxxxxx, 1997 effective Xxxxxx 1997.

Conclusions

1. The investigative report documented the charges against Xxxxxxxxxxx. DCP's decision to terminate him was within its authority. DCP did not violate CCPM, Subchapter 23.7, INSTRUCTION 1, Section E, 2(b) and 5 by not making any effort to counsel or to assist him since that provision only applied to officers entering the last year of their probationary status.
   
2. He complained that Xxxxxx, his supervisor, failed to meet standards of dental care in treating patients. He came to this conclusion after reviewing xxxxx records. He also attributed part of this failure to XXX lack of persistence in implementing its Quality Assurance and Record review policies. The record did not document that Xxxxxxxxxxx ever discussed his concerns with Xxxxxx before presenting them to Xxxxxxxxxxx.
   
   Following his allegations against Xxxxxx, XXX arranged for a Xxxxxxxxx Xxxxxxxx Dental Consultant to conduct a review of its dental department. The consultant filed a report on Xxxxxxx xx, 1997 concluding:
   
   ...I feel that the dental services at this facility are in accordance with XXX policy. I saw nothing during my review that suggests patient care is not provided at the appropriate level regarding XXX policy and community standards.
   
   His allegations against Xxxxxx proved to be unfounded based on the Xxxxxxxx Dental Consultant's report and the results of Xxxxxx COER evaluation.
   
3. Xxxxxxxxxxx request for a peer review of Xxxxxx dental practices had not been justified by XXX or PHS policies or by statute. There was no authority supporting his decision to copy xxxxx dental records and take them home. His actions violated XXX policy stating:
   
   Employees may not remove information from files or make copies of records or documents, except in accordance with established procedures or upon receipt of proper authorization.
   
   They also violated XXX policy stating:
   
   Employees of the xxx have access to official information ranging from personal data concerning staff and xxxxx to information involving security. Because of the varying degrees of sensitivity of such information, it may be disclosed or released only as required in the performance of an employee's official duties or upon specific authorization from someone with the authority to release official information.
   
4. On his constitutional right to have an attorney present during the administrative proceedings conducted by XXX, the Office of the General Counsel advised the Board as follows:
   
   This is to confirm advice I gave you on the case of Xxxxxxxxxxx, a PHS dentist who was removed from a position at the xxxxx xx Xxxxx. From the information you provided, it appears that the officer was the subject of an administrative review of his employment conduct and not a criminal investigation which could have resulted in criminal charges being brought against him. I have not seen a copy of the form the officer refused to sign. However, the right to have an attorney present does not extend to routine employment meetings even if the meeting could be the first step in taking disciplinary action. We too have a regulatory requirement that employees cooperate in investigations. 45 CFR 73.735-302.
   
5. The request to terminate Xxxxxxxxxxx came during his probationary period. CCPM, Subchapter 23.7, INSTRUCTION 1, required him to serve three years had been on active duty since xxxxxx xx, 1996). The policy gave DCP wide latitude in terminating him from the commissioned corps.

Recommendation and Correction to the Record

Therefore:

The Board members recommended that Xxxxxxxxxxx appeal be denied. This requires no correction to his record.

We certify that the Board members' recommendation and correction to the record reflect their views and actions after considering Xxxxxxxxxxx appeal and that they have concurred in this matter.

We certify, further, that the Case Record, shown as an Attachment, contains all documentation received on Xxxxxxxxxxx appeal; and in addition to applicable statutes, regulations and policies, it was considered by Board members.

Finally, we certify that a quorum was present on xxx xx, 2000 when Xxxxxxxxxxx appeal was considered.

If you approve, please sign below.

Harold P. Thompson
Chairperson of the Board and Executive Officer
Office of Public Health and Science, OS

Date

Reviewed and Approved:

I hereby ( ) approve ( ) disapprove the Board members' recommendation and correction to the record on Xxxxxxxxxxx appeal received and considered in accordance with the authority of Section 221a(a) (12) of the Public Health Service Act (P.L. 96­76 as amended), and 42 U.S.C. 213a(a) (12), extending to the PHS Commissioned Corps the provisions of 10 U.S.C. 1552, and empower the Director, Division of Commissioned Personnel, Human Resources Service, Program Support Center, to implement this decision. He is entitled to review his record to ensure compliance with this decision.

Curtis L. Coy
Director
Program Support Center

Date

Attachment: Case Record

Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.