p that does the penalty determination not the agency can ask for anything they want to up to and including removal but it's the board that makes the first decision on most of the service cases the agency course makes the decision the penalty goes up to know i don't think he was wrong but the question here is not in hindsight whether or not privacy act was relevant or had a routine use or exception questions what happened at the e e o c or what was known at least on my or review of what occurred in two thousand and three or so but in two thousand and three there was some type of e e o proceeding where judge adams was told he had to cooperate in an investigation that was not here or there was an investigation limited he declined to do that in this case was not just a general lack of cooperation it involved judge adams concerns under the procedure and his concerns were rooted amid the privacy act does a criminal sanctions only reasonable concern if there is a reasonable construction of the privacy act to create the problem and right when the basis for saying that there is a construction of privacy i agree the problem in the privacy act allows  question the routine user exception in the privacy act depends on the material this included in a record system notice as you mention as found in a federal register someplace on time and what was critical here what should or what could have what would have was all the whole problem is if during the course of this europe or had to agency counsel spoke and that was mr her nervous at the o c her spoke to my client prior to the hearing preparing for the case and said look yes your privacy are concerned we can take care of that here's the agency records system notice here it is from the federal budget take a look but knew before they hear your during the held by the so straight and i don't understand perceive it seems to argue both before and during before the hearing i thought part of the concern in this case was that your client should really not put forth his concerns before the proceeding before incurring hundreds of dollars to travel south so i don't see i mean i don't know how you can argue here that they should have given them in this information before hand if he didn't raise this concern before hand basically didn't prepare his case and he never talked to this would speak for him that was the o c finally now what the agency then did was to take action against my choir and i'm not concerned whether they did or didn't i take action against mr anonymous but it's a legitimate some sort of an obligation then to determine for himself whether there was any proper basis for asserting this privacy act think this of that's a very good question it's a fair question and i think it might be a conclusion on the evaluation of all the evidence that perhaps he should have gone off from the supervisory chain of command to figure out what to do about this in the absence of any contact from the designated agency counsel something he could have done now why didn't he do it explain at the hearing because he had his own would occasionally his agency management and didn't want to go to them relative this case that well that's a good reason or a bad reason or a sufficient reason or no the difficulty here is there were other factors cooperate so i think you have to take it is a factor with respect to whether he should have pushed up the supervisory chain of command even though he was at odds with him at the time that is one factor but you have to take in a mitigation analysis or an analysis of lack of cooperation if you take a look at some of the cases that i've mentioned are pretty good one of philip's recent general services administration credit card problem another one is banned for us and first our housing and urban development the problem with some outside employment you take a look at the the circumstances it was circumstances on one two basis one to see if the other one charge insubordination or in this case for cooperate is sustainable on all circumstances and simplicity it is to take a look at the mitigating factors what happened at the hearing the failure to get a waiver from ascribing the failure to what sean the privacy act notice the failure for the agency simply to introduce all the darn records and let the agency take responsibility under the privacy  his conclusions as to the prosperity goes through the jurisdictional issues and then two pages later at conclusion he's talking about well what about that incident two thousand and three anyway i would have nothing to do with the forest petitioner concedes this morning that the court properly fand that judge adams testimony was would not have violated the privacy act he asserts that there were justifications still for his failure to testify but all of those arguments go to the head pencey and whether it should have been mitigated one thing that puzzling me about how all of this went down was the fact that the records were to her personnel records which is what they were talking about the problems that were not in the record in my calling it wrong the government objected to their going on the record and the judge would have her hearing officer bond that they were not relevant that's correct but it needs a little explanation the agency objected to putting their records before the e e o c hearing because the records pertain to his grades performance when she was in the prior office and the agency said that was not relevant to her selection in seattle office and tied up her to office but the reason that mr smith wanted judge adams testimony rather than or in addition to the records was that he believed the judge adams testimony about ms grace performance would show something different than what was the record puzzling to me if you step back a moment is if the judge or the and the government had already argued and agreed that all of her performance at the earlier point of time was not relevant to anything at issue here why his testimony about that same performance would have even been relevant and if you agree with that it's kind of an odd situation to be in the position of saying we're going to discipline him for being uncooperative because he's not going to testify about stop that arkia when everyone's view is not relevant to this proceeding and any of that well i think that the  which involved mr adams was not relevant to anything going on in the peak that's correct and that b l who agreed with that which is why she agreed that those records shouldn't come in so everything in my right now well i would say that the judge agreed that the agency didn't have to produce the records however the east same ego janet approved judge adams testimony knowing that judge adams when they said that they're not going to admit the record of her performance with this thing period because they're not relevant how does the thought of you know i don't understand well i wouldn't say that i completely understand why he is the judge found also clear that the s c judge had approved judge adams as a witness for mr smith knowing that his testimony was going to go to ms grex performance so the agency is taken at and against mr adams producing agency employees and require them to testify when i when i'm confused about is whether what the age you see decided not to introduce i believe she had been at the current for about eighteen months that's my best recollection sally i think it was at least eighteen months prior to the agency's litigating position was that she was selected based on her performance  the very issue there was some people we perceive yes and that was the that performance was the subject to testimony that the agency wanted to solicit who were at the agency was interested in hearing was objecting to producing records connected to her performance at the prior job by mr smith contended that it was relevant and that he wanted to produce testimony from judge adams going to that performance and the iau judge so they  then must have been that judge adams testimony was completely irrelevant to the position there would be no basis for saying his personal views of different boyd during the period of time is relevant where the as for example if the agency had been over its objections ordered by the e e o c to produce the records the agency could not at that point saying we still want to produce the records because in our king in it's irrelevant just say even though the agency might have believed judge adam your honor respectfully i have to disagree with that the very first question that he was asked was whether ms gregg was one of the best office managers he had ever supervised and he immediately said i have a problem with this i have privacy act and sirens and i managers you worked with and he immediately responded i have a problem with this question and it's going to cause me to violate the privacy act and everything developed after that he was told by the judge that first of all he was not being asked to produce records he was asked for information based on his personal experience and he was also told that even to the extent records might be involved that there was an exception or routine use exception for providing such information  and i can see that there's nothing in the appendix and i don't think there's anything in the record that i recall that is an explicit ruling on the relevance of the scripts prior performance at the time of this he the not only did the c judge make judge adams aware of the fact that what was being sought was his opinion based on personal experience and that even if records were involved there was routine use exception judge adams in fact had been notified by the and he he testifies at the e e o c hearing that he searched that citation and that he read any he saw that it required agencies to ensure that full cooperation is provided by the hearing the agency had directed him to the legal authority for the disclosure of records in easy hearings and he further went on to concede eighty eight of our  explained well that's because i'm giving positive testimony about the spread which is negative testimony would be different and he was further asked well but you didn't even give positive testimony to that misread in the e e o c hearing and you can see that that was true so basically  because of my time is quickly running out it's very clear that judge adams did not have a valid excuse for not answering questions at the years hearing all of his comments about what he knew or didn't know or believe it or didn't leave go to mitigation of penalty the administrative judge spread out his comments on the mitigating factors throughout his opinion we articulated them in their preferred and i think that the the facts do support the imposition of the fourteen day hindsight we take a look at the record system notice which was as we heard about what twenty nine c or four sixteen fourteen says isn't significant these are not ios the records their social security administration as you know i would again to these cases before and these cases it does seem to miss privacy exception i mean somebody might have thought of finding a routine use whether it was him whether it is the o c judge judge we were well it was her dentist somebody  total available to you before you went into this hearing without affected the way you handle yourself here and this is a house with questions it would certainly have given me some additional information but i could have made a more informed decision of being than his counsel calm office ok and things go on all we're asking for is a fair articulated explanation of both the issue of whether we truly failed to cooperate under the circumstances and if he did take a look at the mitigating circumstances those are