Second of two parts
A registered sex offender managed to hide his status from the General Services Administration for nearly a full year before the federal agency discovered his child pornography conviction.
The episode exposes gaps in the way the federal government handles sex offender notifications for its employees. The government has no agencywide policy except in limited cases of national security concerns. Some agencies do require mandatory reporting, but they are the exceptions.
It is a reporting loophole that unnecessarily puts children at risk, analysts said, given the high recidivism rate for offenders and the high propensity of people convicted of crimes such as child pornography to also have unreported criminal contact with children.
Mary Leary, a law professor at Catholic University of America who worked at the National Center for Missing and Exploited Children and the National Center for the Prosecution of Child Abuse, said the lack of work notification requirements runs counter to the whole idea of the registry.
“This is very frightening,” she said. “The whole purpose of the sex offender registry is so that people who encounter an offender can be made aware that they committed a sex offense. It also helps the offender remain accountable for their actions. If no one has to notify an employer, that flouts the very purpose of the sex offender registry.”
Donald Edward Davis Jr. had worked at the GSA for four years in maintenance when he was arrested in 2012 for downloading child pornography on his home computer. The videos had kinky-sounding titles and featured girls ages 10 to 15 engaged in sex acts, according to a police report.
Mr. Davis pleaded guilty to two counts of felony possession of child pornography in late October 2012, according to court documents. A judge sentenced him to one year in prison but suspended that in lieu of two years of probation and lifetime registration as a sex offender.
He followed the law and registered in Virginia — but he works at the agency’s headquarters in the District of Columbia.
Limited federal requirements
Federal law does not require workers to tell their employers if they are registered sex offenders unless they work at a school or day care facility, and local law enforcement doesn’t notify businesses or government entities outside the state where the crime occurred.
The GSA became aware that Mr. Davis was a sex offender in late November 2013, according to an inspector general’s report obtained by The Washington Times. That delay is more than 13 months after his conviction and only a few weeks shy of a year after he had registered.
It is unclear how the GSA learned that Mr. Davis was a sex offender. The agency’s personnel security office reported its concerns about Mr. Davis to the inspector general on Nov. 26, 2013, according to the report. An investigator completed a criminal history search about a week later.
Mr. Davis remains a GSA employee. When contacted at work, a man who picked up the phone refused to confirm whether he was Mr. Davis and repeatedly said he didn’t want to get himself or the GSA into trouble.
GSA’s policy is far from unique.
Convicted sex offenders register with the police where they live and are required to provide employment information. But the information is often not shared with law enforcement where the offender works, especially if it is in another state. That means sex offenders who live in one state but work in another are commuting to places where no one knows their status.
“This says, ‘I don’t care about children in other states,’” said Victor Vieth, founder of the Gundersen National Child Protection Training Center. “It says if someone crosses a border, they are no longer anyone’s concern. As a society, we need to get to the point where we are protecting all the children we can.”
In Virginia, which borders five states and the District of Columbia, roughly 200 sex offenders commute to other states for work. At least six Virginia offenders, including Mr. Davis, work for federal agencies such as the Navy, the Pentagon and the Department of Housing of Urban Development, according to the state’s sex offender registry.
Offenders’ convictions include possession of child pornography, sexual battery of a minor, forcible sodomy of a minor, enticement, and unlawful contact of a minor.
State police do perform random worksite visits and employment verification, but those checks stop at the border.
“Employment verification is only required if employment is in the commonwealth of Virginia,” said Corinne Geller, a Virginia State Police spokeswoman. “We have no authority outside of Virginia, so we don’t do a site confirmation or verification outside the state.”
Gerry Shields, a spokesman for the Maryland Department of Public Safety & Correctional Services, confirmed that his state has the same policy.
Some states do require an offender to register even if they are there just for work, but defer the monitoring and notification process to the state where the person was convicted.
Mr. Davis did register in the District, but the Court Services and Offender Supervision Agency is not responsible for notifying anyone, including the GSA, because he lives in Virginia, said agency spokesman Cedric Hendricks.
Risk of recidivism
The public needs to be concerned about the lack of supervision because offenders can pose a threat even if they haven’t been convicted of a physical crime against a child.
“Most of us would never, ever think of exploiting a child, but it already entered his mind to take action towards downloading the images and looking at them,” Mr. Vieth said. “He’s already taken three or four steps towards the sexual violation of a child. That is a real child being raped in front of him, and every time someone looks at these videos, those children are being violated again.”
The 20-year sexual recidivism rate for offenders is 27 percent, according to a 2004 study. Even more alarming is that more than 76 percent of offenders convicted of an internet-related crime against a child also confessed to a contact crime with a minor that was never caught by law enforcement, a Federal Bureau of Prisons study found.
“Anyone who could have done something but didn’t needs to take ownership here,” Mr. Vieth said. “If the GSA failed to be constantly monitoring its employees and asking the right questions, they need to look at that. If law enforcement didn’t notify them, they need to look at that. Anyone who had the power to do something but didn’t must look in the mirror and ask how this can be corrected in the future.”
Any serious effort to address the disconnect would have to start at the federal level because it involves interstate commerce and legal jurisdictions. No one has taken up the issue in Congress.
“This is an egregious problem,” Ms. Leary said. “This absolutely needs to be resolved because the offender did everything he was supposed to do and it still took a year for his employer to find out. The system is failing because it told him to do things and telling his employer was not one of them. I don’t fault him; I fault the system.”
The GSA’s inability to track an employee’s serious criminal conviction surprised human resources professionals and those who advocate on behalf of sex offenders.
“How the government missed that one of its employees was going through a trial for child pornography possession is a little interesting,” said Brenda Jones, executive director of the National Association for Rational Sex Offense Laws, which supports rehabilitation efforts. “It is a little odd that he pleaded guilty and a flag didn’t go up.”
Legal burdens and conflicts
Employers are not required to look at registries because they don’t have a legal duty to be aware that a worker is on the list. In California, state law bars employers from using the registry to make hiring decisions. If a California company is found to use the registry as a reason not to hire someone, it could face a $25,000 fine.
On the other hand, most states recognize negligent hiring lawsuits against employers who knew a worker was unfit for hiring, creating a conundrum for organizations.
Anna Tavis, who teaches human resources at New York University, said it is worth the effort to learn if a worker is a sex offender because it protects employers from liability. She said employers can then anticipate situations in which a worker might be blackmailed and determine whether college-age interns should be placed near the offender.
“If these people are going through the legal process, why isn’t it reported to the employer?” she said. “This is a character flaw that creates a big risk to the business.”
“That strikes me as way too much to ask of them,” she said. “It doesn’t seem efficient at all. The states should be the one to notify the employers.”
With employers too busy to look at registries and law enforcement reporting only in-state offenders, the burden falls on the employee to self-report. Again, no federal law requires employees to fess up to crime.
A spokeswoman for the Office of Personnel Management, which sets policy for federal employees, said it does not require workers to tell agencies that they have been convicted of a crime, including a sex offense, unless they are in a national security position. Only select government positions are subject to periodic background checks.
Several government agencies said they follow the OPM policy, requiring only employees with security clearances to self-report.
Other agencies take more proactive approaches.
‘Public service as a trust’
The Tennessee Valley Authority fired a worker less than two weeks after he registered as a sex offender. The employee was arrested on March 2, 2012, on charges of aggravated sexual exploitation of a minor, according an inspector general’s report. The employee pleaded guilty to the lesser charge of attempted aggravated assault of a minor.
Like Mr. Davis, the worker did not receive jail time but was required to register as a sex offender in Tennessee, which he did on Feb. 22, 2013. He was fired on March 5, 2013, the report said. TVA said the employee failed to notify his supervisor of his arrest, a violation of the agency’s personnel security policy.
Under TVA’s aggressive policy, all 10,000 employees are required to inform their supervisors within two business days if they are arrested or charged with criminal acts. That includes misdemeanors, felonies and even traffic tickets exceeding $200, said Jim Hopson, a spokesman for the TVA.
“We look at public service as a trust, and that’s one of the reasons we have had a policy in place to require reporting of any felony or misdemeanor charge within two days,” he said. “Failure to do so results in disciplinary action up to and including immediate termination.”
Analysts said making employees disclose their troubles is perhaps the cleanest solution.
“I advise my clients to tell their employer,” said G. Allen Dale, a D.C. lawyer who represents defendants accused of sex crimes. “The benefit of doing that is they are going to find out anyway, and if they find out and if you hadn’t reported it, then you are going to get fired.”
Mr. Vieth proposed having probation officers require offenders to tell their employers as a stipulation of parole, even if they are not required to do so under law. If an offender doesn’t tell an employer, he said, then their parole could be revoked.
Ms. Jones cautioned against firing employees just for ending up on the registry because it could backfire.
“To kick someone out because they have a past arrest is inappropriate,” she said. “When you do that, you are destabilizing him. He could be sitting around all day being stressed, which is often a trigger to misbehavior.”
Copyright © 2020 The Washington Times, LLC.