High Court Considers Whether Government Workers Have Right to Lie

According to the old story about the cherry tree, Founding Father George Washington could not tell a lie. Should government policy ignore or even perpetuate on-the-job lying by federal employees?

That's the question the United States Supreme Court is considering as it reviews five cases in which the federal Merit Systems Protection Board and an appeals court said that government employees could not get extra punishment for making false statements. The cases, which deal only with public employees, touch on the deeper issue of whether the government should encourage its workers to lie.

In testimony Tuesday, the justices heard a case involving a social worker at a Veterans Administration medical center in St. Cloud, Minn., who had a sexual relationship with a patient and then denied it to her bosses. The government tried to fire the worker, Jeanette Walsh, but an appeals board reduced the penalty to a 90-day suspension, saying she should be punished for the sex - but not for the lie.

Questioning at the hearing by the justices, however, indicates that a majority of them may lean toward the government's position - that employees who lie about their misconduct should be be disciplined more severely than they would have been if they admitted to wrongdoing.

"The moral of this is don't lie," said Chief Justice William Rehnquist.

"That's the moral we hope they derive," replied Solicitor General Seth Waxman, arguing on behalf of the government. Lying, he added, would impede investigators, and letting the appeals board's position stand would remove any incentive for employees to admit to misconduct. It would be "cost-free," he said. A government worker "would be irrational to 'fess up.' "

But Paul Marth, a lawyer speaking for Ms. Walsh and several other workers, said employees should be allowed to falsely deny allegations of wrongdoing without fear that they'll face stiffer punishment. He compared it with pleading not guilty in a criminal case.

Federal workers have little choice but to lie when confronted by allegations of wrongdoing, Mr. Marth continued, because saying nothing brings its own punishment. "A [government] employee does not have a right to refuse to cooperate," he said.

MR. Waxman suggested that accused workers employ another tactic: the faulty-memory excuse. Walsh "could have early on said, 'I don't remember,' [but] she gave a whole false story about a long-term relationship," Waxman said.

Walsh lied to the Department of Veterans Affairs in 1991 when questioned about an 18-month sexual relationship with an alcoholic patient in 1988-89.

Other justices also appeared skeptical about government workers' right to lie. Justice Ruth Bader Ginsburg said that would give federal workers a right "that surely does not exist for private employees." And Justice John Paul Stevens noted that, in criminal cases, covering up an offense often carries a harsher penalty than the offense itself.

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