"

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...ACCORDING TO THIS CODE OF CONDUCT, YOU SHOULD FIRE ALL FEDERAL EMPLOYEES BUT ME!"

Keyhole kops

Big Brother watching over sex habits

By Marlene Cimons

L.A. Times/Washington Post

WASHINGTON Tom and Marie did not meet at the FBI, although they were both employed there as clerical workers. In fact, their shifts at the bureau were so different that just about the only time they could be together was during the weekend.

Occasionally, Tom would spend the night in Marie's apartment. When their immediate superiors at the FBI discovered this (Tom's bachelor roommates, angry with him over a telephone bill, told them) Tom and Marie were reprimanded and placed on probation.

"They called us in separately and asked us if we had been spending nights together," Tom says. "The man asked me if we'd had sexual relations. I said yes. His questions were really quite personal, and I was getting very angry. I couldn't understand what business it was of his. I told him we were engaged. He said we would most likely be put on probation and that if we hadn't been engaged, we probably would have been fired."

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Fred Bosse, now 26, was completing his second year at Georgetown University school of law in April, 1974. One afternoon he saw a notice in the Georgetown placement office of a job opening in for a third-year law student in the Justice Department's bureau of land and natural resources. He applied.

That summer Bosse and his girl friend shared an apartment in Boston, where he was working for a moving company. A Justice Department official called him there, he says, and told him he would probably get the job. In fact, Bosse says, he was informed that the FBI was about to run a complete security check on his background, one of the final steps before a person is hired.

"I went through the summer feeling pretty glad I was set with a job in Washington," Bosse says. "When I got back there, I called the bureau of land and natural resources to find out when I could start."

The conversation with the administrative head of the bureau, Bosse says, went something like this:

"Our investigation has uncovered the fact that you are living with someone to whom you are not married.”

"That's right."

"It is against out policy to hire anyone under those circumstances.'

"I don't see what that has to do with my ability to do legal research with the Justice Department."

"Why don't you take a few days to think it over. If you want to change your living arrangements, you have the job."

"I don't need a few days. I'm not going to take a job under those circumstances."

*

It appears the government is not only curious about the sexual practices of its employes, but uses such information to determine whether a person is qualified to have, or keep, a federal job.

The cases described above are now in litigation. As is the custom when the government is involved in legal action, neither FBI nor Justice Department officials would talk about them. One knowledgeable Justice Department source, however, did confirm the accuracy of the facts of the Bosse case, and an FBI spokesman reiterated the standard of conduct required of all bureau employes.

"There is a code of conduct outlined in a handbook for all employes," he said. "When we become aware that an employe has violated it, he or she could be subject to disciplinary action. Each case is considered on its own merits. There is no standard that covers everything."

Portions of the pertinent sections read: "No employe shall engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful, conduct, neglect of duty or other conduct prejudicial to the government...

The FBI... expects and requires that high standards of personal conduct on the part of its employes be maintained not only when they are engaged in their official duties, but while off duty..."

Certain questions inevitably arise as these cases evolve. What kind of behavior, for example, is moral and immoral? Who determines this? What connection, if any, is there between an individual's private sex life and his or her ability to perform a job?

The cases of Tom and Marie, who did not wish to be identified by their real names, and

Fred Bosse, are not new, or isolated. They are simply the most current.

In 1967, for example, a woman employed by the Office of Economic Opportunity and her boy friend, with whom she had been living, traveled to Luray Caverns, a Virginia tourist area in the Shenandoah Valley, where they shared a motel room.

"They got into a playful mood and caused a disturbance that resulted in a man being arrested for disorderly conduct," said a lawyer who became involved in the case. "When the OEO heard about it, the woman was told she either had to move out of his apartment or marry him or be fired. They got married."

That same year, Neil Mindel, a San Francisco postal clerk, was dismissed from his job after it was discovered he was living with a woman to whom he was not married. The Civil Service Commission notified him that he did not meet "Suitability requirements" for employment by the federal government because his home situation constituted "immoral conduct.”

Mindel, however, decided to fight back. In 1970, a federal district court in northern California sided with him, holding that termination of his employment because of his private sex life violated his right to privacy under the Ninth Amendment.

The government did not appeal the ruling.

"That was unfortunate," said Lawrence Speiser, former director of the Washington office of the American Civil Liberties Union, now an attorney in private practice, specializing in federal employe cases.

"The decision was very restricted," Speiser said. "The government was probably afraid it would lose on a higher level and a far-reaching precedent, which could have been applied nationwide, would have been set."

In another FBI case, Thomas Henry Carter, lost his job in 1965 after the bureau investigated an anonymous letter it had received which read: "Dear Sirs: Would like to make a com-

What kind of behavior

is moral or immoral?

plaint about a fellow working for the FBI, his name is Tom H. Carter who lives at Kennebeck House or apts sleeping with young girls & carrying on; it annoys me terrible; I wish you can do something about it. Thank you.”

Carter admitted during the legal proceedings that he had spent several nights with the same young woman, but insisted they did not have sexual relations. The government, in papers defending its action, invoked the standard of the "little old lady from Dubuque (who)... will not trust an organization whose agents and employees are allowed to 'sleep with young girls and carry on'.”

D

In the early 1960s, Frederick D. Williams, a criminal investigator with the Internal Revenue Service, was dismissed from his job. According to records, one of the reasons for termination was a nasty divorce, involving charges of his adultery with another woman. In addition, however, the government claimed that Williams had made false statements to the IRS, an issue that seemed to concern the courts more than his marital troubles.

Such incidents have not been confined to heterosexual relationships.

In 1969, the U.S. Court of Appeals for the District of Columbia held that an individual's alleged homosexuality was not sufficient to justify dismissal. A budget analyst for the National Aeronautics and Space Administration, had been discharged from his job after he was arrested by two officers of the local morals squad, and given a "traffic violation notice.” The traffic summons, however, had resulted during an incident when the man allegedly had made a sexual advance to another man.

The core of the contorversy seems to be whether there is a direct connection between an individual's alleged misconduct and the person's competence on the job. Some federal officials have argued in the past that there can be such a link. There is sufficient reason to end the employment, they have said, if, for example, a homosexual bothers others in the office or is in a sensitive job and subject to blackmail.

In the case of heterosexual behavior, however, several have admitted privately that the government's attitude should change.