Three Strikes

Consensual sex between co-workers, regardless of their relative power positions, is not harassment nor employee misconduct under federal law and workplace rules. Perhaps the Forest Service should regulate its employees’ consensual sexual relations, but no rules do so now. The status quo is that only harassing, i.e., unwelcome, actions of a sexual nature are barred; consensual sex is not.

This matters when it came to the retired regional forester’s view of what should have happened in regard to Tooke’s consensual affair ten years ago. According to the RF (willieboat007), Tooke’s boss, the forest supervisor, should have “report[ed] this type of Misconduct to Regional Forester,” i.e., herself. She believes that “consent didn’t matter, the Forest Service doesn’t condone this type of conduct.” In fact, the Forest Service is silent when it comes to consensual sex, barring only harassing, “unwelcome” sex. Strike one.

According to the RF, having determined that “misconduct” occurred, an “investigation should have taken place to determine the facts.” Government is allowed to investigate only alleged wrongdoing. Government is not allowed to investigate in the absence of a credible allegation that a law or rule has been violated. In particular, government is not allowed to investigate an employee’s private, consensual sexual affairs. Doing so violates the Fourth Amendment’s right to privacy. If Tooke’s lover had said their affair was “unwelcome,” that fact would justify an investigation (USDA employee relations manual calls for misconduct investigation of “sexual harassment”). But, simply reporting the existence of an affair is insufficient to establish a probability of misconduct. Strike two.

According to the RF, had the investigation revealed consensual sex between Tooke and the “young lady,” the RF would have issued a “letter of warning, letter of reprimand with or without time off and/or removal from the supervisor position, or letter of termination.” In other words, she would have punished Tooke for something that broke no law or rule, based on an investigation that invaded Tooke’s privacy. Strike three.

Maybe the times “they are a changing,” as some have commented on this blog. But, until the law changes, too, government agencies and their managers are required to follow the law as written, not as they wished it were. There’s a reason Tooke received only a “verbal reprimand,” i.e., no disciplinary action at all. He didn’t break any rules.

16 thoughts on “Three Strikes”

  1. Would a quid pro quo scenario, since we know Tony tried to set the young lady up with promotion in a new position (fact), potentially fall under the legal landscape of sexual harrassment as defined by USDA?

    You struck out Andy. You’re defending the indefensible.

    • (file this under: Things I Never Thought I’d Be Parsing Out As a Retiree)

      Billy, I see two potential ideas here. And I’ll use a hypothetical example of “hunting buddies.”

      A real “quid pro quo” would be “if you let me keep the elk, I’ll help you get this position”. My primary point is that there is no need to do this, as buddies traditionally help each other get positions when the person with the influence thinks it’s a good idea.

      In the elk/ recommendation for position scenario, as unlikely as it is, it would be under the aegis of ” agreements agreed to freely by both parties” which couldn’t be about unequal power (harassment).

      Buddies, especially those higher in the organization, always tend to help buddies get promotions that they think they deserve. It’s incredibly hard to tell if this is “only” because they’re a buddy, or because they think the buddy has the right skills/complexion/personality to succeed in the job. It generates a favor buddy network that is linked across the organization and can help you to get things done/find out about things, etc.

      In this context, sexual buddies would be no different than any other variety.

    • Billy — Tooke’s lover has not alleged quid pro quo sex. Without any evidence that the sex was “unwelcome,” we are left to conclude it was consensual; thus, it cannot be quid pro quo.

      Nor is this a case of “bystander” quid pro quo sexual harassment, which is a subset of hostile work environment. A single workplace sexual affair cannot establish third-party sexual harassment, which must be “excessive, pervasive and opprobrious.” In other words, to establish third-party quid pro quo sexual harassment, the demands for sexual favors have to be the notorious norm within the workplace. A single, secret extra-marital affair doesn’t fit the bill.

      I’m not defending Tooke’s moral or managerial decisions; I think he “showed very poor judgment.”

  2. Fair points by both. Makes sense.

    I also think it’s possible that a relationship could have moved into a consensual affair after a quid pro quo arrangement was reached.

    • And vice versa, which is what makes workplace affairs of unequal power so imprudent. When a subordinate wants to break-up and the superior responds with quid pro quo pressure, that’s when consensual turns into harassing.

      • Like when Tony told the young lady in FL that her “career would go down” if she talked about their affair as stated in the investigator’s report?

        • Assuming the truth of the investigator’s report (the existence of which impeaches the retired regional forester’s claim that there was no confidential paperwork associated with this matter), I can envision Tooke’s statement being a well-intentioned warning that some people might believe she slept her way into an undeserved promotion.

          He wasn’t accused of threatening her career if she broke off the affair. That would be quid pro quo sexual harassment.

          • Interesting point on Tony’s statement. I hadn’t thought of that it that way. That is a possibility. Guess we will never know.

          • We won’t know unless we had the direct quote, which we can’t have. So we’ll have to admit uncertainty.. I could see “not talking about it” as a good strategy for any number of reasons. Including the FS gossip network can lose track of what the original “bad vibe” was about, and only remember there was a “bad vibe.”

            Example: Shortly before I retired, I asked my boss why he wasn’t supporting one of my employees for a job when 1) she wanted it, 2) the supervisor on the forest thought she did a terrific job on her detail there and wanted her. He said it was because “”someone” in the WO said she was running a blog” – that is, this very blog. My supervisor did not ask her if the rumor was true. He did not ask me whether the rumor was true. Of course, all you had to do was look at the blog at the time and see that I was me and I was not her.. So that is to say, people have a serious rumor mill within the agency, and it is best to keep your head down, in my experience. In this case, even keeping your own head down was not enough, your reputation could be besmirched because you happen to work on a particular staff.

  3. Then there’s always the trap of a subordinate saying “it’s consensual, until I don’t get my way, then I cry foul”. I witnessed that scenario play out in two different jobs on separate occasions , a good “scared straight” lesson that kept me avoiding any relationship connected to the work place. A strong desire to advance and make money can be good if channeled the right way.

  4. How about we agree if he was married the affair constituted moral failure and lack of judgement. His career should have stopped there in terms of ever expecting more responsibility or a higher grade. If this was the military he would have been bounced out.

    • Yes, the issue here is not whether Tony violated any rules but whether Tony’s behavior should be a factor in his promotion to Chief. Personal factors often come into play, and I think there is a good argument that this one, today, could impair agency morale and function and is therefore fair game.

    • The problem in today’s society is “what is Moral?”. If we go by what one group thinks is moral, then another group will cry discrimination. If we say that its a lack of judgement to have an affair, then we now open the door to investigate all private matters when considering promotion and responsibility. How long do you believe that this will be acceptable? My bet is it will be bounced out by the courts. Will we use the Bible as the moral compass – NO! That has already been decided that there is no place for religion in government. How does one group determine morality for all groups? And if you can’t determine morality, then how can morality be a factor in employment? You are not allowed to judge another’s actions without retribution.
      This is the rabbit hole that our society has gone down in the effort to be politically correct, now we get to live with the consequences of our actions.

      • I seem to remember something that was stated centuries ago which perfectly illustrates the mess of a world we all are forced to live under now. Count on things degrading even further.

        “How terrible it will be for people who call good things bad and bad things good. They think darkness is light and light is darkness. They think sour is sweet and sweet is sour.”

        Then there is the question of what kind of qualities a person has who engages in an affair if married. The excuse justification is it being consentual. But doesn’t such a continued course require qualities like lying, dishonesty, unfaithfullness, untrustworthiness, stealing, etc ??? And how would such a person who is habitual with such traits perform in areas of responsibility regarding budgiting how money is used, keeping honest books, not falsifying research studies, etc ??? This reminds me of another saying:

        “If you are faithful in little things, you will be faithful in large ones. But if you are dishonest in little things, you won’t be honest with greater responsibilities.”

        I’m sure this will blow over most folks heads. Our world really hasn’t changed all that much from centuries ago compared to these so-called enlightened progressive times.

        • Then there is the argument that one’s personal life is theirs and should be off limits………
          Personally, I believe in morals, but my morals are based in religion therefore they are unacceptable in today’s society. Also, I’ve gone thru my career with the belief that integrity is of more value than promotion, and often friendships. Integrity is not how you say you’ll act, or how you act when you have the stage, but how you act when no one is around or when no one cares. At the end of the day (or our life) there are never secrets, just facts that take awhile to come out.

  5. Chief Tooke admitted 2 affair and just now turned the information to CR. Wonder why he would do that? Clearly as some maintain Chief Tooke did nothing wrong. Perhaps this investigation will find as some have stated FS doesn’t have problem w this type conduct. All those employees that didn’t get a pass can file to have there records cleared. Just saying. A person with no agency experience in personnel matters will be correct. Imagine that.


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