upholding an employee discharge on the basis of homosexual conduct, but not without first finding that the administrative record contained convincing proof that the employee’s removal promoted the efficiency of the service
How later courts described this case
- upholding an employee discharge on the basis of homosexual conduct, but not without first finding that the administrative record contained convincing proof that the employee’s removal promoted the efficiency of the service
Written by the judges who cited it.
The opinion
NICHOLS, Judge
(concurring):
I join in the decision and in the court’s opinion except that I do not agree with the court’s discussion of the recent case of Norton v. Macy, 417 F.2d 1161 (No. 21,625, decided July 1, 1969, in the D.C. Circuit). The court sets forth factual differences between that case and this, and could have referred to further differences, as I will show. Still, the D.C. panel concedes in the most candid manner that the Civil Service Commission could have found that Norton’s conduct was immoral, indecent, and notoriously disgraceful. Thus, I am not sure that the panel would not have reached the same result if Norton had been shown to have done exactly what Schlegel did in the case before us. If the gravamen of the offense was, as I believe it was, exposing the employing agency to disrepute, Norton in making homosexual advances to a total stranger, under the observation of two policemen, could have been deemed more heedless of his employer’s reputation than Schlegel was.
The reasoning of the panel (except, of course, for Judge Tamm who published an able dissent) is I believe as follows: a veteran with career status may not be removed from Federal employment except for a cause that will further the efficiency of the service; homosexual behavior off duty does not normally harm the employing agency except by occasioning embarrassment to it; the avoidance of embarrassment has no logical relationship to efficiency; therefore, such a veteran is privileged, so far as his employer is concerned, to engage in homosexual behavior in his off duty hours as much as he pleases. The court was careful to make it clear its decision would not be precedent when a nexus with efficiency appeared, other than agency embarrassment.
In this context the word “embarrassment” may appear to some the understatement of 1969. The belief and policy of the executive branch, as it emerges clearly in the record now before us, and in the numberless other cases involving homosexuals that stain the pages of our reports, is that the presence of known homosexuals in an executive agency will bring the agency into hatred, ridicule, and contempt, to the grave detriment of its ability to perform its mission. By denigrating this consideration to mere “embarrassment” the court in effect says that public relations are none of an agency’s proper concern, not being related to “efficiency.”
It may well be that defendant’s fear of bad public relations is exaggerated, and that the Government’s handling of its obviously large homosexual problem is not of the wisest. I do not pretend to know. The point is, as Judge Tamm says, the choice as to what measures are required to produce efficiency is properly one for the executive branch to *1383 make. The Norton case, as he observes, represents another taking over by the all-wise judiciary of an area of decision hitherto reserved for the presumptively feeble intellects of the legislative and executive branches.
An agency is not necessarily wrong if it deems that good public relations favor efficiency, and that bad ones detract from it. I believe that myself. Nor is it absurd to fear that a public which loses respect for the employees of an agency will lose respect for the agency itself. It follows that the agency has (or, up to now, had) a right to require its employees to refrain from off duty behavior of kinds the public will regard (however obtusely) as scandalous and disgraceful. Schlegel knew his agency had such a requirement and he deliberately elected to disobey it.
In the instant case, however, the “embarrassment,” though in my view sufficient, is not the sole nexus between the removal of plaintiff and the efficiency of the service. The record shows that many “top secret” papers were passing through his office. How this came about in a mundane transportation service in time of peace is not explained in the record, but presumably the mere travel routing of some military personnel might, if known, imperil their missions. Plaintiff had a “secret” clearance, which was not high enough, and he had to be barred from participating in much of the office work. The request on his behalf for a “top secret” clearance was what led to his downfall. The disclosures in the security investigation would no doubt have caused the lifting of even the “secret” clearance had plaintiff not been fired altogether. Though the point is not spelled out in the record, it seems too obvious to require proof that the usefulness of a civilian employed in a military department is gravely impaired if he cannot be cleared for security. When this impairment is due to the employee’s own misconduct, dismissal does not seem an unreasonable or excessive response. The Norton court noted the absence of any security problem in Norton’s case and it would seem it might well regard the difference in Schlegel’s as crucial.
Furthermore, Schlegel is shown by the evidence to have been engaged in corrupting young soldiers who might have been deemed to be under the parental care of their Service. Their usefulness was impaired, too, by plaintiff’s acts.