Monday, September 17, 2012

Personnel is Policy: Gun-grabbers Edition

In the summer of 2000, I was employed by a large government agency in, um, central Maryland.  The employees of this agency had for a long time operated a “trading post”, originally nothing more than a bulletin board in the building where people could post 3x5 cards advertising personally owned stuff they were trying to unload.  At some point, this bulletin board went “online” – this agency was a significant early adopter of Ethernet technology, although at that time it was still mostly confined to the classified network it shared with its affiliates.  The employees ran the bulletin board on this network.  I personally used it to sell a car.

As internet access and usage spread throughout the government, however, government rules began to follow, and the specific authority by which the bulletin board was operated came into question.  The bulletin board operation was briefly suspended, but came back under the auspices of the Civilian Welfare Fund.  Here is the email we all received about its return:

(U) Trading@N$A came up at about 0930 Thursday morning, and one minute later the first ads were being posted.  So this is not news to many; but for anyone who hasn’t cotton the word, Trading is back, under the sponsorship of your Civilian Welfare Fund.  It’s at: . . . .*

Because Trading is now a nonappropriated fund activity, we are allowed a little more leeway in what we may advertise . . . .  The rules are posted; please read and abide by them.  We’ve already received many challenges to the rules from folks who disagree with one or more of them.  It became obvious within the first few minutes that we will not have the resources to answer every complaint.  The rules were developed in cooperation with Agency ethics people and senior management.  They were not developed capriciously, and they ware as liberal as we could make them and stay within the boundaries of propriety and government policy.  Unfortunately, we simply will not have time to justify each rule and engage in an ongoing e-mail dialog with each person who questions it.  A number of people have voluntarily invested, and will continue to invest, their time in bringing back trading.  We hope that this service will contribute in some way to the morale of our N$A family.

Wow!  What rule could generate such opposition as to provoke this kind of preemptive go-to-hell from management at the get-go?

I want to put this issue in the larger context.  The 1990s were pretty rough on firearm ownership.  The decade began with the Brady Bill and the Assault Weapons Ban; large retailers like Wal-Mart and SportsTown began closing their extensive handgun departments.  The internet was still in puberty, and firearms retailers had not yet established much of a presence.  So the prohibition on firearms advertising on a general interest bulletin board was a bigger deal than it would come to seem later.

The decision to ban firearm advertising from the bulletin board was traced to Randi Elizabeth Dufresne, the “Designated Agency Ethics Official”, with the job of making sure that policies followed government ethics rules.  Here was her eventual contribution to the debate:

DAEO Statement:

Trading@N$A is a privilege not an entitlement.  The policies for its use are at the sole discretion of Agency leadership.  Although it is possible for Agency leadership to change these policies, there is no appeal process once a decision has been made.  Although an explanation of the reasons behind the policy against the sale of weapons of Trading@n$a follows, there will not be an extended debate over the merits of these reasons as such debate will make the privilege too administratively costly to continue and Trading@n$a will be shut down again. 

Policy against sales weapons:

“no firearms or other weapons (including non-0functioning) may be sold, rented, or traded through Trading@N$A.”

Reasons for this policy:

1)Firearms or other weapons are distinguishable from other items potentially for sale because they are inherently dangerous when used as intended (an automobile could be dangerous but is not inherently dangerous if used as intended).  The potential liability to the Agency could be greater for such items than for other items.

2) The controversy raging over firearms and other weapons in this country is one in which this Agency does not wish to engage.  Allowing the sale of such items via Trading@N$A would embroil the Agency in that controversy.

3) Firearms and other weapons are not allowed on the Agency installation for legitimate security reasons.  By allowing users of Trading@N$A to post sales of those items some users might infer that the rule against bringing these items on the installation could be ignored in order to effect a transaction begun via Trading@N$A.  The potential danger of this happening even one time greatly outweighs the benefits of allowing such postings.

4) State laws on the sale of firearms are complex and ever changing.  The potential for Trading@N$A to be involved in an illegal transaction is higher for firearms than for other items

#################################
Randi Elizabeth DuFresne
Designated Agency Ethics Official
N$A Standards of Conduct Office
Office of General Counsel

My readers will recognize most of this as a tired rehash of long-standing gun-control nonsense.  I am prepared to concede half a point to number 1:  in 2000, it may have been ambiguous in the law whether the internet created some kind new liability for open forums when they were used to facilitate the sale of legal products that were then misused.   But this threat obviously never materialized, and the rest of the arguments were just post-hoc rationalizing with a sprinkle of executive bullying and wrapped in threats to shut down the bulletin board if anyone argued with her.

We argued nonetheless; indeed, we took our case first to the OIG and then to the director.  I even went so far as to file a FOIA request, but was told that it would cost me, personally, $550 or so just to get an answer, with no guarantee that they would give me any information anyway.  (FOIA laws have been weakened further yet; now agencies are permitted to simply lie about having the information people request.)

One thing about this case is worth noting:  even a minor functionary, well-placed, can be tremendously important.  Notwithstanding her slight notoriety as a pseudonymous author of trashy romance novels, Dufresne’s government career apparently went nowhere.  Indeed, as an ethics lawyer, she didn’t even have formal jurisdiction over the areas of the law (e.g., liability) she opined on.  But once she demanded the prohibition, it became very difficult for anyone responsible for the decision to go against her.  This agency’s employees were vetted especially well, as you can imagine, and were extremely unlikely to commit felony murder with a weapon purchased over the electronic bulletin board.  But where was the professional upside for anyone personally taking responsibility for assuming even that infinitesimal risk?  That reasoning applied even to the director, who referred us back to the General Counsel in a one-line response to our entreaty.

* The trading post is, as near as I can figure, still on the classified network.

1 comment:

Professor Hale said...

Only libs can think taking a side that they approve of is "not getting involved".

Betwen permit and prohibit there is no middle ground. The right answer is to remind "authority" that they have no right to do either.