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A three-judge Federal Circuit panel last month ruled that a federal employee could be fired for an off-duty adulterous relationship. The result didn’t come easily. One judge dissented strongly, and even the majority explained that, under different facts, such private off-duty conduct would not justify removal. The case involves Michael Brown, a morale program manager at the U.S. Marine base at Camp Lejeune, N.C., and his relationship with the wife of a Marine major. Brown managed Camp Lejeune’s morale, welfare, and recreation department, a civilian job even though Brown himself was an officer in the Marine reserves. His duties included coordinating picnics, dinners, and other social events for Marines and their families. In 1997, Marine authorities fired Brown after they learned he had conducted an adulterous affair with the wife of a Marine major deployed overseas. Brown did not meet the major’s wife as a result of the morale program, according to the court record. They had known each other since 1992, when Brown and the major were stationed together in Quantico, Va. But an administrative judge upheld the firing, finding that Brown’s conduct was antithetical to his program’s mission and eroded the Marines’ trust in his job performance. By a 3-1 vote, the Merit Systems Protection Board affirmed the judge’s ruling last year. On appeal, Federal Circuit Judges William Bryson and Alvin Schall voted to uphold the lower holdings against Brown, but they had reservations about doing so. “To be sure,” Bryson wrote for both judges, “this case is a difficult one because the misconduct was private in nature and did not affect Mr. Brown’s official responsibilities in any direct and obvious way. “In many settings, such conduct would not be sufficient to justify removal from a civil service position.” But Bryson agreed with the administrative judge that the Marines’ “necessary trust and confidence was undermined” by the affair, thereby establishing a nexus between Brown’s conduct and his job performance. Judge Richard Linn dissented, arguing that the Marines failed to prove a connection between Brown’s personal indiscretion and his actual job performance. While not condoning adultery, Linn concluded, “the majority opinion risks being viewed as sanctioning the removal of an employee simply because of a difference in values between that employee and his superiors.” The opinion, Linn added, “grants virtually unbridled discretion to management.” Kevin Grile of the American Federation of Government Employees represented Brown. Grile said he and his client have not decided whether to appeal the ruling further. Marian Sullivan of the Department of Justice represented the government.

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