DISCIPLINARY ACTION CHECKLIST - IAFC

DONNA AVERSA
Leonard & Felker, P. L. C.
and
BRENDA TRANCHINA
Human Resource Strategies, L.L.C.
FRI 2009
Fire-Rescue International
August 25, 2009
Dallas, TX
1

SPEAKER BIOGRAPHIES
Donna Aversa is a partner in Leonard & Felker, P.L.C., a law firm based in
Tucson, Arizona. Her practice is focused on working with fire districts regarding a
wide variety of issues including: policy development, implementation and training;
employment issues; litigation; and government regulation and compliance. She is
a regular instructor at the semi-annual Arizona Fire District Association
conferences where she provides training to fire boards, chief officers, and
company officers. Donna spent over ten years as an adjunct faculty member at
the Tucson campus of the University of Phoenix teaching graduate and
undergraduate classes in business law, employment law and ethics. Donna was
a presenter at the International Association of Fire Chiefs’ 2008 FRI.
Brenda Tranchina is the President of Human Resource Strategies, LLC, an
Arizona-based consulting firm specializing in HR management in the fire service.
Understanding that the employment world of the fire service has unique
challenges, Brenda has focused her business in the past 15+ years on partnering
with fire departments to better protect and manage their most important assets:
their employees. An integral part of her practice involves HR policy development,
employee and management training, development and administration of
promotional assessment centers, EEO investigations, employment law
compliance, and coaching/counseling on employee relations matters. Certified
as a Senior Professional in Human Resource (SPHR), Brenda is a regular
instructor at the semi-annual Arizona Fire District Association conferences, a
past instructor at Fire Rescue West, Arizona Fire Chief’s Association, and the
California Special District Institute.
Brenda Tranchina, SPHR
Donna Aversa, Esq.
President
Partner
Human Resource Strategies, LLC
Leonard & Felker, P.L.C.
419 W. Dream Weaver Drive 7440 N. Oracle Road
Tucson, AZ 85737 Tucson, AZ 85704
(520) 297-9351 (520) 742-0440
brendahrs@aol.com
dmaversa@slfpc.com
2

CHECKLISTS FOR WORKPLACE INVESTIGATIONS
INTO EMPLOYEE WRONGDOING
KNOWING WHEN YOU NEED TO INVESTIGATE
[ ] Information “triggers” that can launch an inquiry or an investigation of an
alleged incident may include:
[ ] Anonymous communication (verbal or written)
[ ] Observation of conduct
[ ] Receipt of complaint
[ ] Receipt of outside agency complaint (i.e., EEOC, OSHA, law
enforcement)
[ ] Other report of potential policy/rule violation
[ ] Initial inquiry to determine whether the alleged incident affects the
workplace
[ ] Initial inquiry may:
[ ] Provide adequate information to enable the Department to
determine what occurred and implement appropriate remedial
actions, if necessary; or
[ ] Provide adequate information to enable the Department to
determine no inappropriate occurred, or
[ ] Reveal information that causes the Department to begin a full
investigation
WHO SHOULD INVESTIGATE: INTERNAL VS. EXTERNAL?
[ ] Department policy on internal vs. external investigator
[ ] Past practices
[ ] Nature of the allegation
[ ] Harassment/Discrimination -- Consider an HR or Legal Expert
[ ] Financial fraud/mismanagement -- Consider a CPA/Auditor
3

[ ] Operational Issue (apparatus/equipment damage) -- Consider
internal investigator
[ ] Neutral; unbiased; no level of involvement in the incident
[ ] Trained in conducting workplace investigations
[ ] Experienced in fire service investigations
[ ] Team approach may be appropriate
[ ] Consider investigator’s ability as an effective witness in the event of
litigation?
DEVELOPING THE INVESTIGATION PLAN
[ ] Gather related information
[ ] Allegations
[ ] Written complaint/allegation
[ ] Information from other sources may require investigator to
identify the specific complaint/allegation
[ ] Documents (i.e., memos, letters, E-mails, pictures)
[ ] Departmental policies, procedures, SOG’s, SOP’s, etc.
[ ] Determine the scope of the investigation
[ ] Identify the facts on which to base a determination of whether or
not a policy violation occurred
[ ] Identify potential witnesses
[ ] Outline potential questions related to the alleged policy violation
[ ] It’s not a fishing expedition!
[ ] Evaluate the need for any temporary adjustments to the workplace/work
assignments
[ ] Administrative Leave w/ Pay
[ ] Complainant
[ ] Individual who is the subject of the investigation
[ ] Reassignment or readjustment of schedules
[ ] Give consideration to potential perception of retaliation
4

[ ] Plan the logistics of the investigation
[ ] Timing -- the sooner after the alleged incident, the better
[ ] Location -- use discretion
[ ] On duty vs. off duty interviews
[ ] Determine method of documentation
[ ] Handwritten notes
[ ] Computer typed notes
[ ] Audio recording
[ ] Who will be present?
[ ] Investigator
[ ] Employee
[ ] Union representative (if applicable)
[ ] Employee’s representative
• Depending upon state law/union contract
• Not required to inform employee of the right to have someone
else present
• Not required to allow if there is no potential for disciplinary
action against that employee
• But, why not? What’s the downfall?
[ ] Provide notice of investigation (see sample memo)
[ ] Determine if Garrity Warning should be issued
[ ] Applicable if there is potential for criminal prosecution for the
person being interviewed
CONDUCTING THE INVESTIGATIVE INTERVIEWS
[ ] Determine the order of interviews
[ ] Complainant
[ ] Witnesses
[ ] Subject of the Investigation
[ ] Conduct interviews
5

[ ] Look at the Who/What/When/Where/How?
[ ] Start with general questions, narrow to more specific questions
[ ] May need to ask same question in different ways in order to
determine consistency in the interviewee’s statements
[ ] Have relevant documents available for use in interviews (i.e., policies, E-
mails, bank statements, accident reports)
[ ] Pay attention and document body language, eye contact, other non-verbal
communication
[ ] Ask about facts
[ ] Ask “Is there anything else?”
[ ] Remain neutral
[ ] Do not promise confidentiality
[ ] Remind interviewees not to discuss the investigation with fellow
employees
[ ] Remind interviewees that retaliation will not be tolerated
[ ] Be consistent in your approach
[ ] Stick to the scope
[ ] Revisit your plan and revise as necessary
[ ] DOCUMENT, DOCUMENT, DOCUMENT!
TYING IT ALL TOGETHER -- REPORT OF FINDINGS
[ ] Review and compile investigative notes/tapes
[ ] Review and determine relevancy of documents
[ ] Review and determine relevancy of witness statements
[ ] Assess and document credibility of witnesses
[ ] Based on facts
[ ] Corroboration of other witnesses’ statements or documents
[ ] Observation of non-verbal communications
[ ] Consistency of statements
6

[ ] Prepare written report of findings
[ ] State the scope of the investigation
[ ] List witnesses and documents used as evidence
[ ] Summarize information from each document and witness
[ ] Assess credibility of evidence and its’ relevancy to the matter of the
investigation
[ ] State findings of fact on each element of the alleged
offense/violation
[ ] Include relative documents in report or appendix to the report
[ ] Determine if recommendations for action are to be part of the report; if so,
it should follow the findings of fact
[ ] The report may be a matter of public record
7

DISCIPLINARY ACTION CHECKLIST
[ ] Review investigation report and related documents
[ ] Review disciplinary policy
[ ] Probationary or non-probationary employee?
[ ] Identify the infraction(s).
[ ] Does the conduct impact the workplace?
[ ] Does the conduct violate specific written policy, SOG, SOP,
administrative directive, code of conduct?
[ ] Past practice for similar infractions
[ ] Consistency in discipline
[ ] Prior disciplinary action for this employee
[ ] Relevance
[ ] Considerations in determining appropriate disciplinary action
[ ] Nature and severity of the offense
[ ] Prior offenses, similar or otherwise
[ ] Document reasons for determining appropriate level of discipline
[ ] If investigator gave a recommendation, document reasons for
agreeing or disagreeing with recommendation
[ ] Progressive discipline steps:
[ ] Counseling
[ ] Oral reprimand / admonishment
[ ] Written reprimand
[ ] Disciplinary suspension
[ ] Demotion
[ ] Dismissal / termination of employment
8

DUE PROCESS RIGHTS CHECKLIST
[ ] Follow M.O.U. or other Union contract agreements
[ ] Issue pre-disciplinary notice (Letter of Intent to Discipline)
[ ] State all reasons for intended disciplinary action
[ ] Indicate intended action and associated timing
[ ] Provide opportunity for employee to respond to the charges prior to
implementation of discipline
[ ] State required timing of response, along with notification of result of
failure to respond
[ ] Pre-Disciplinary Hearing -- Allowing employee to respond
[ ] Who may attend?
[ ] Any limitation on participation?
[ ] Loudermill hearing
[ ] Employer must inform employee of his rights to union
representation
[ ] Union representative may speak on behalf of the employee
[ ] Consider employee’s response
[ ] Review facts, policies, past practices
[ ] Make final disciplinary action determination
[ ] Issue Letter of Disciplinary Action
[ ] Reference Letter of Intent to Discipline
[ ] State that information presented was considered
[ ] Uphold/modify/revoke original intended action
[ ] State timing of implementation of action
[ ] Provide notice of right to appeal under policy
[ ] Consider fallout within the department
[ ] Consider fallout in the community
[ ] Prepare for Post-Disciplinary Due Process
9

DISCIPLINARY APPEAL PROCESS CHECKLIST
[ ] Review and follow the policy/union contract
[ ] Appeal rights should be referenced in the notice of disciplinary action
[ ] Reference the appeal process as set forth under policy, or
[ ] Outline the appeal process if no policy/procedure exists
[ ] Require employee to submit request for appeal
[ ] Notify individual/entity responsible for hearing the appeal
[ ] Initiate scheduling of the appeal hearing
[ ] Inform employee of appeal hearing schedule, location, etc.
[ ] Confirm in writing all deadlines set forth under the policy
[ ] Be prepared to present all evidence to be used
[ ] Documents
[ ] Witness testimony
[ ] Arrange for participation of witnesses/subpoena
[ ] Decision “final” or “recommended”
[ ] If “final” decision, follow accordingly
[ ] If “recommended” decision, review all pertinent information and
make final determination to either uphold or modify the original
disciplinary action
[ ] Notify employee of final action
10

SEVEN TESTS OF “JUST CAUSE” FOR TERMINATION
[ ] Did the Department give the employee forewarning or foreknowledge of
the possible or probable disciplinary consequences of the employee's
conduct? Is the existence of a policy or SOP sufficient?
[ ] Was the Department’s policy reasonably related to:
[ ] the orderly, efficient, and safe operation of the Department’s
business, and
[ ] the performance that the Department might properly expect of the
employee?
[ ] Did the Department, before administering discipline to the employee,
make an effort to discover whether the employee did in fact violate or
disobey a policy?
[ ] Was the Department’s investigation conducted fairly and objectively?
[ ] Did Investigator obtain substantial evidence or proof that the employee
violated policy or engaged in inappropriate conduct?
[ ] Has the Department applied its rules, orders and penalties evenhandedly
and without discrimination to all employees?
[ ] Was the degree of discipline administered by the Department in a
particular case reasonably related to:
[ ] the seriousness of the proven offense, and
[ ] the record of the employee’s service with the Department?
11

SAMPLE WORKPLACE NOTICE OF INVESTIGATION
TO:
FROM:
Employee
Fire Chief _____
DATE:
RE:
Upcoming Workplace Investigation
Please be informed that you may be contacted by ______________________ in
the next week as part of a workplace investigation that is being conducted as a
result of a potential violation of Department policy.
Our Department is committed to careful and thorough investigation of policy
violations. You are required to cooperate to the fullest extent possible,
answering questions and providing accurate information as requested in the
investigative process.
Please understand that due to the sensitive nature of the process, this
investigation will be conducted in a manner that protects the privacy of all
involved to the greatest extent possible. In order to maintain the integrity of the
investigation, you are directed to refrain from discussing the investigation with
your fellow employees.
The Department will not tolerate any form of retaliation toward any individual who
participates in good faith in the investigative process.
If you have any questions regarding the investigative process, please feel free to
contact me. Thank you for your cooperation.
12

SAMPLE LETTER OF INTENDED DISCIPLINE
TO:
FROM:
Firefighter
Fire Chief
DATE: May 4, 2009
RE:
Letter of Intent to Terminate Employment
This letter serves to inform you of my intention to terminate your employment
with the XYZ Fire Department. This decision is based upon my recent finding
that your Arizona Driver’s License was suspended for the time period of
November 7, 2008 – February 6, 2009, and again on March 22, 2009. When I
discussed this with you, you acknowledged that you were fully aware of the first
suspension, but had not informed your supervisor. You stated that in settling the
first suspension, the court directed you to take a driver’s education course, which
you failed to complete. You also claimed that you were unaware of the most
recent suspension, and surmised that you had never reported a change of
address to the Motor Vehicle Decision, so you did not receive the notice.
The XYZ Fire Department policy entitled “Standards of Conduct” states that
“failure to maintain current and proper licenses and/or certification required to
perform assigned duties” would subject one to disciplinary action, up to and
including termination. You have violated this policy in both of the instances noted
above. Furthermore, you failed to report that your driver’s license was
suspended and you continued to drive Department apparatus.
Thus, not only have you violated Department policy, but you also violated the law.
Accordingly, you have placed the Department at tremendous risk. Based on
these violations, I have concluded that termination of employment is the prudent
action.
You have the opportunity to respond to this notice within three business days of
receipt if you wish to have a pre-termination meeting in which you may present
any additional information that you believe may impact my final decision. Failure
to respond within three business days will waive your right to a pre-termination
meeting; if I do not hear from you within three business days, I will proceed with
the termination of your employment. You will then be entitled to the appeals
process as set forth in the XYZ Fire Department Human Resource Policy Manual.
13

WHAT IS GARRITY?
The so-called Garrity warnings or Garrity rights arise from a 1967 Supreme
Court case, Garrity v. New Jersey. The United States Supreme Court decided
that a law enforcement officer does not give up his Fifth Amendment Right to be
free from compulsory self-incrimination by becoming a law enforcement officer.
The issuance of a Garrity warning provides a firefighter with use immunity. That
means the firefighter may be compelled to provide statements under threat of
discipline, including discharge, and those statements may not be used in criminal
prosecution against that firefighter.
Caution: If a suspected policy violation raises the potential for criminal
investigation, seek legal advice before undertaking the investigation. Do not
issue a Garrity warning without first consulting the attorney advising the
Department.
Garrity requirements:
• The firefighter must be given an order to answer questions under
threat of disciplinary actions;
• The questions must be specifically, directly and narrowly related to the
firefighter’s duties or fitness for duty; and
• The firefighter must be advised that the answers will not be used
against the firefighter in criminal prosecution.
What is a compelled statement?
The order to answer questions may be oral, written or implied. The best
practice is to have documentation on the issuance of the Garrity warning.
Generally, reports prepared by a firefighter in the regular course of the job
are not compelled statements for purposes of providing use immunity
under Garrity.
Statements given in response to Garrity can still be used for:
• civil litigation against the firefighter,
• disciplinary action against the firefighter,
• disciplinary action against another firefighter,
• criminal prosecution against another person.
14

Is the Department required to give a firefighter Garrity warnings?
Garrity only applies if there is a potential for compulsory self-incrimination.
There is no requirement that the Department issue a Garrity warning. The
Department can give the firefighter the choice of:
• make no statement and have the discipline based on other evidence,
or
• make a voluntary statement which may be used in a criminal
proceeding.
15

SAMPLE GARRITY WARNING
I. At this time, I am going to question you regarding:
___________________________________________________________
___________________________________________________________
II.
III.
IV.
This questioning concerns administrative matters relating to the XYZ Fire
Department. During the course of this questioning, if you disclose
information which indicates that you may be guilty of criminal conduct,
neither your self-incriminating statements nor the fruits of any selfincriminating
statements that you make will be used against you in a
criminal legal proceeding, except your statements may be used related to
perjury or impeachment.
Because this is an administrative matter, you are required to answer my
questions fully and truthfully. Your statements may be used against you
regarding your ability to carry out your job functions and for disciplinary
purposes.
You are entitled to all rights and privileges guaranteed by the Arizona
Constitution and the United States Constitution. You may have an attorney,
union representative or another employee present with you during this
interview.
V. If you refuse to answer all of my questions, you will be subject to a
separate disciplinary action for insubordination.
VI.
VII.
Do you understand the foregoing?
Employee initial: Yes ____ No ____
Do you have any questions about your obligation to answer my questions?
Employee initial: Yes ____ No ____
I, ________________________________, by my signature below, affirm that I
have been advised of the Garrity Warnings and had its meaning explained to me
as set forth above.
Employee: ___________________________________
Date____________
Officer signature: ______________________________
Print name: ___________________________________
Officer signature: ______________________________
Print name: ___________________________________
Date____________
Date____________
16

HOW MUCH PROCESS IS DUE PROCESS?
The Due Process Clause is found in the 14 th Amendment of the United States
Constitution. It provides that certain procedures of basic fairness and notice must
be afforded before an individual can be deprived of life, liberty or property. The
Courts have interpreted this to mean that public employees are generally entitled
to pre-disciplinary and post-disciplinary due process.
Minimum requirements for pre-disciplinary due process:
• The Department must give notice of all the charges against the
employee.
• The Department must provide the intended disciplinary action including
the timing.
• The Department must provide the employee a meaningful opportunity
to be heard in a timely manner prior to the imposition of discipline.
• The Department must provide consequences of the employee’s failure
to respond.
• The Department’s decision must be supported by substantial evidence.
• The more important the individual right in question, the more process
must be afforded.
17

THE WEINGARTEN RULE
Weingarten Rights
An employee may be represented by the union at an investigatory interview with
his or her supervisor (or other management representative) when the employee
reasonably believes that the interview may lead to a disciplinary action.
U.S. Supreme Court Ruling: 420 US 251
The rights of employees to the presence of union representation during
investigatory interviews was announced by the U.S. Supreme Court in 1975 in
NLRB v. J. Weingarten, Inc. Since that case involved a clerk being investigated
by the Weingarten Company, these rights have become known as Weingarten
Rights.
What is an investigatory interview?
Employees have Weingarten rights only during investigatory interviews. An
investigatory interview occurs when a supervisor questions an employee to
obtain information, which could be used as a basis for discipline or asks an
employee to defend his or her conduct. If an employee has a reasonable belief
that discipline or other adverse consequences may result from what he or she
says, the employee has a right to request union representation.
Investigatory interviews usually relate to subjects such as:
• absenteeism
• insubordination
• lateness
• drinking
• sabotage
• theft
• fighting
• work performance
• violation of work
• poor attitude
• damage to state property
• procedures
• violation of safety rules
• falsification of records
• accidents
• drugs
Weingarten Rules
Under the Supreme Court’s Weingarten decision, when an investigatory interview
occurs the following rules apply:
18

Rule 1: The employee must make a clear request for union representation
before or during the interview. The employee cannot be punished for
making this request.
Rule 2:
After the employee makes the request, the employer must choose from
among three options. The employer must:
a. Grant the request and delay questioning until the union
representative arrives and has a chance to consult privately with
the employee; or
b. Deny the request and end the interview immediately; or
c. Give the employee a choice to:
(1) have the interview without representation, or
(2) end the interview.
Rule 3:
If the supervisor denies the request for union representation and
continues to ask questions, he or she commits an unfair labor practice
and the employee has the right to refuse to answer. The supervisor
cannot discipline the employee for such a refusal.
Rights of union representatives
Supervisors often assert that the only role of a Union representative interview is
to observe the discussion, i.e., to be a silent witness. The Supreme Court,
however, clearly acknowledged a union representative’s right to assist and
counsel workers during the interview. Decided cases established the following
procedures:
a. When the union representative arrives, the supervisor must inform
the representative of the subject matter of the interview; i.e., the
type of conduct for which discipline is being considered (theft,
lateness, drugs, etc.).
b. The union representative must be allowed to take the worker aside
for a private pre-interview conference before questioning begins.
c. The union representative must be allowed to speak during the
interview. The union representative, however, does not have a
right to bargain over the purpose of the interview.
d. The union representative can request that the supervisor clarify a
question so the worker can understand what is being asked.
e. After a question is asked, the union representative can give advice
on how to answer.
19

f. When the questioning ends, the union representative can provide
information to the supervisor.
It must be emphasized that if the Weingarten Rights are complied with, the union
representative has no rights to tell workers not to answer questions or to give
false answers.
OSCEOLA COUNTY PROFESSIONAL FIREFIGHTERS LOCAL 3284 WEBSITE
http://www.iafflocal3284.org/items/The%20Weingarten%20Rule.pdf
20

PUBLIC RECORDS
The statutes vary by jurisdiction, but the common theme is that government
records are presumed to be public. The best practice is to assume personnel
documents are, or will become, public record. If not a public record as a matter
of state statute, the personnel records, including investigation reports,
disciplinary records and correspondence, may become public records in the
course of litigation.
The Department should have a policy regarding confidential personal and
personnel information. For example, in all jurisdictions, employee social security
numbers should be exempt from public disclosure. Similarly, employee medical
information should be exempt from public disclosure. If a document contains
information exempt from disclosure, the entire document may not be exempt.
Some records may be disclosed only after confidential information is redacted.
Caution: If the Department receives a public records request that covers
personal or personnel information, seek prompt legal advice before
providing the records.
Under Arizona law, names, positions, salaries of public employees have been
public records. In 2008, the Arizona legislature specifically added disciplinary
records to create an extra level of transparency in government.
A.R.S. 39-128. Disciplinary records of public officers and employees;
disclosure; exceptions
A. A public body shall maintain all records that are reasonably necessary
or appropriate to maintain an accurate knowledge of disciplinary actions,
including the employee responses to all disciplinary actions, involving
public officers or employees of the public body. The records shall be open
to inspection and copying pursuant to this article, unless inspection or
disclosure of the records or information in the records is contrary to law.
B. This section does not:
1. Require disclosure of the home address, home telephone number or
photograph of any person who is protected pursuant to sections 39-123
and 39-124.
2. Limit the duty of a public body or officer to make public records open to
inspection and copying pursuant to this article.
In Nebraska, personal information in personnel records of public bodies other
than salaries and routine directory information are exceptions to disclosure. The
Attorney General issued an opinion that public body evaluations from personnel
21

files and lists of employees receiving bonuses may be kept confidential; however,
the fiscal records that would allow a determination of which public employees
receive a bonus are public. (AG Opinion No. 90015, Feb. 27, 1990.)
22

ARIZONA STATE EMPLOYEE DISCIPLINE RECORDS TO
BECOME PUBLIC RECORDS
June 21st, 2008
House Bill 2159, which was approved by the Arizona Senate and House of
Representatives this week will make state employee disciplinary records open to
the public. Currently, the names, positions, and salaries of state employees are
public records; however, this new bill would create an extra level of transparency.
The bill was created as part of an effort to reform Child Protective Services,
which is a state agency. Sadly, three Arizona children died last year while being
monitored by Child Protective Services. House Bill 2159 is part of an effort to
bring more accountability and transparency to actions of state employees.
House Bill 2159 was part of a series of bills, such as House Bill 2454, which will
make CPS records public in cases where there is a death or nearly fatal injury
without the need for a court order, as is the current procedure. Additionally, this
group of bills is set make other records public, such as proceedings from CPS
cases.
The hope is that this series of legislation will shed light into any problems with the
system, and hopefully prevent further tragedies. To account for certain privacy
concerns, the bill was amended to require all employee phone numbers and
addresses to remain private information.
In addition helping the CPS system, this new bill will shed light on the activities of
all state employees, not just CPS workers. Of course, the other side of the
argument is that making disciplinary records public could create an
uncomfortable environment for state employees, one in which they are constantly
walking on eggshells for fear that any wrong move could become public
knowledge. It’s definitely an interesting dilemma, because on one side, you have
the privacy of the state workers, yet on the other side, you have the rights of the
tax paying public. After all, your taxes pay their salaries, so don’t you have a right
to know what inappropriate activities are occurring on your dime? What are your
thoughts?
While there are advocates on both sides of the debate, for now, it looks like the
rights of the public won. This series of legislation is expected to be signed into
law next week. Make sure to check with the Free Public Records Directory in the
future to find out where these state employee disciplinary records can be found.
23

AN INVESTIGATION GONE BAD!
January 12, 2007
United States Department of Justice
United States Attorney Kevin V. Ryan
Northern District of California
11th Floor, Federal Building
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102
(415) 436-7200
FAX: (415) 436-7234
CONTACT: Luke Macaulay
(415) 436-6757
Luke.Macaulay@usdoj.gov
WWW.USDOJ.GOV/USAO/CAN
First Conviction in Hewlett Packard Pretexting Investigation
SAN JOSE, CALIF. - The U.S. Attorney’s Office and the FBI for the Northern District of
California today announced that Bryan C. Wagner, 29, admitted in federal court to using
fraud and deceit in collecting personal telephone records of reporters and Hewlett-
Packard (HP) officials. In pleading guilty to two felony counts, Wagner admitted today
that he was paid as part of a conspiracy that made fraudulent use of social security
numbers and other confidential information to obtain the personal phone records of
reporters and HP officials, as well as the personal records of these individuals’ family
members.
A criminal information was filed on Wednesday charging Wagner with two felony counts.
According to the allegations, HP engaged the services of Security Outsourcing Solutions
(SOS), a security consulting company located in Boston, Mass., to obtain information
used in what has become know as the "Kona I" and "Kona II" investigations. Kona I
began in approximately April 2005 and Kona II started in approximately January 2006.
According to court documents, one objective of these investigations was to identify
potential leaks from HP officials to news reporters. Co-conspirators pursued a number of
avenues during the investigations including requesting and obtaining confidential
personal information of subjects they targeted, including the board members and
journalists noted above. According to the charges, SOS engaged the services of Action
Research Group (ARG), located in Melbourne, Fla., who in turn engaged the services of
Mr. Wagner to assist with obtaining confidential personal information for the Kona
investigations.
Wagner was charged with being a member of a conspiracy which gathered the personal
and confidential information of HP board members; news reporters at CNET, the Wall
Street Journal, the New York Times, and Business Week; and the family members of
these board members and reporters.
24

Defendant Wagner, of Littleton, Colo., and Omaha, Neb., was charged in participating in
a conspiracy wherein conspirators a) targeted HP subjects as potential leaks, b)
collected and obtained Social Security numbers of many of the Kona subjects, c)
exchanged the confidential personal information with other co-conspirators and others in
order to obtain additional information, d) engaged in fraud and deceit by misrepresenting
their identity to obtain additional confidential information of the HP Kona subjects, and e)
transmitted the confidential personal information to others.
Wagner pleaded guilty today to a charge alleging that conspirators created email
accounts to establish online account access for the telephone services of HP Kona
subjects. Specifically, Wagner admitted that on March 8, 2006, he established an online
telephone service account in the name of a Wall Street Journal reporter and fraudulently
used the reporter’s social security number to access the reporter’s personal telephone
records.
Wagner was charged on January 10, 2007, with one count of aggravated identity theft
and one count of conspiracy to commit the following offenses: a) aggravated identity
theft, b) wire fraud, c) unauthorized computer access to information, d) falsely
representing an assigned social security number, and e) disclosing and using a social
security number. He pleaded guilty today to both counts in a plea agreement that was
filed under seal.
The maximum statutory penalty for conspiracy, in violation of 18 U.S.C. Section 371, is
five years imprisonment, a fine of $250,000 or twice the value of the property involved
(whichever is greater), and three years supervised release. The statutory penalty for
aggravated identity theft, in violation of 18 U.S.C. Sections 1028A and 2, carries a
mandatory minimum two years imprisonment, and a maximum fine of $250,000 or twice
the value of the property involved (whichever is greater), and two years supervised
release.
Mr. Wagner’s sentencing hearing is scheduled for June 20, 2007 at 10:00 a.m. before
U.S. District Court Judge Jeremy Fogel. Mr. Wagner is not in custody.
This case is being prosecuted by the Computer Hacking and Intellectual Property Unit
(CHIP) of the U.S. Attorney’s Office for the Northern District of California. The CHIP Unit,
which is based in the San Jose branch of the U.S. Attorney’s Office, was established in
2000 and was the first federal computer crimes prosecution unit in a U.S. Attorney’s
Office. This model has been followed in other offices and there are now about twentyfive
CHIP Units in U.S. Attorney’s Offices around the country.
Criminal Division Chief Mark Krotoski is the Assistant U.S. Attorney who is prosecuting
the case with the assistance of Lori Gomez and Katherine Huynh. The prosecution is the
result of an investigation by the FBI.
Further Information:
A copy of this press release may be found on the U.S. Attorney’s Office’s website at
www.usdoj.gov/usao/can.
25

Electronic court filings and further procedural and docket information are available at
https://ecf.cand.uscourts.gov/cgi-bin/login.pl.
Judges’ calendars with schedules for upcoming court hearings can be viewed on the
court’s website at www.cand.uscourts.gov.
All press inquiries to the U.S. Attorney’s Office should be directed to Luke Macaulay at
(415) 436-6757 or by email at Luke.Macaulay@usdoj.gov.
26