Sunday, February 10, 2002

Employee use of computer for porn tests city's policy

One worker was suspended; another was not questioned

By Robert Anglen
The Cincinnati Enquirer

        More than a year after investigators say two top Cincinnati officials used city computers to access Internet porn sites, one employee is still working off his punishment and the other has never been questioned about it.

        An assistant city solicitor and a ranking health department official were identified as the two worst violators of the city's computer policy in a probe by the Office of Municipal Investigations in June 2000.

        One day, for example, one man spent his entire eight-hour shift logged onto adult and teen-age porn Web sites.

        Investigators wanted to take the case to the Hamilton County Sheriff's Office and the FBI because of the amount of time the employees spent on the Internet.

        Given that they were being paid for city work, investigators said the case could involve a misappropriation of city funds. Investigators also wanted to install surveillance cameras to eliminate doubt that someone else was using the employees' computers.

        But documents obtained by the Enquirer show that then-City Manager John Shirey closed the OMI investigation and directed the law and health departments to handle the matter.

        The law department conducted its own investigation and confirmed the abuse. The health department let the matter drop.

        Under city policy, an employee who accesses porn on a city computer can be fired.

        Increasingly, in both the private and public sectors, employers have adopted a zero-tolerance attitude toward accessing porn at work because it can expose them to liabilities.

        “It seems to me that the city is not going to be serious about hostile, offensive environments and sexual harassment,” said Bruce Stickler, a Chicago lawyer who represents more than 400 private and public agencies on employment issues.

        He said the issue goes beyond pornography to one of public trust and taxpayer money — and city officials should have made more of it.

        “That sends a bad message to the public. It sends a bad message to citizens,” he said.

        When the law department got word of the abuse, City Solicitor Fay Dupuis immediately launched an investigation.

        Using computer logs, senior law officials tracked the porn to a computer in the office of Assistant City Solicitor Dave D'Avignon. They found that hundreds of Web sites featuring teen-agers and adults had been accessed, and only on the days that Mr. D'Avignon worked.

        A one-day log — 100 pages long and single spaced — showed that on June 22 he visited his first porn site at 8:19 a.m. and stayed connected to similar sites until 5 p.m.

        When confronted, Mr. D'Avignon quickly admitted to supervisors what he had been doing. Deputy City Solicitor Bob Johnstone said Mr. D'Avignon told them he did not surf the Web every minute of the day, but instead left porn sites running on his computer while he did other work. He said this had been going on for a couple of months.

        “This cost me,” Mr. D'Avignon said Friday. ""I have put this behind me. You make a mistake, you learn from it and move on.”

        Mr. D'Avignon was ordered to undergo counseling and given a four-week suspension without pay.

        “We can't treat something like this lightly,” Ms. Dupuis said. “We did our due diligence in investigating this.”

        But 18 months later, Mr. D'Avignon has yet to serve his full suspension. He has taken the days off in small blocks and is about halfway through.

        Ms. Dupuis said she could not afford to lose Mr. D'Avignon for a month at one time. She described him as a valuable employee whose work is thorough.

        She also said that a review of his work during the time in question showed no drop in productivity, supporting his story that he only looked at porn sites periodically during the day.

        Ms. Dupuis said she wanted to salvage Mr. D'Avignon's career.

        Mr. D'Avignon oversees legal issues for key city departments such as Neighborhood Services and Economic Development. He has been with the city since 1974 and earns $99,527 annually.

        His performance evaluations show that he has continually met or exceeded standards. He has received several commendations for his work on neighborhood projects and development issues. He also is assigned to provide legal advice to City Council's Neighborhood and Public Works Committee.

        A blackmailer threatened to use the pornography incidents to influence Mr. D'Avignon last year during his work with that committee.

        Documents show that last summer, a year after the computer probe was completed, someone threatened to expose the pornography case unless Mr. D'Avignon used his influence in the city's investigation of a West End development group.

        Mr. D'Avignon said he received a phone call from a woman telling him to provide information about a former city employee who was being interviewed by City Council about Genesis Redevelopment. The council wanted to know why Genesis was given more city money after it had been revealed that earlier payments were misspent.

        A few days after the phone call, Mr. D'Avignon received a postcard giving him a deadline and the words: ""addiction public” and “still coaching soccer?”

        Mr. D'Avignon said instead of hiding from it or attempting to meet the caller's demands, he immediately reported the threat.

        “I think I did everything right there,” he said. “You live your life, you try to do your best. You make a mistake. Hopefully, I am a better person for it.”

        OMI and city officials could not determine the identity of the blackmailer.

        Ms. Dupuis said the blackmail attempt had no effect on the Genesis investigation.

        “It is disturbing to think that there is someone trying to influence an employee by using personal information,” she said.

        City investigators said the law department's handling of the porn investigation should have been a model for the health department.

        The law department requested logs from the city's Regional Computer Center for 15 different days. Health officials never requested any logs to follow up on alleged computer abuse by one of its senior employees, OMI investigators said.

        Health Commissioner Malcolm Adcock said his department was in no position to do an investigation, “especially a computer investigation. We relied on OMI.”

        Besides, he said, OMI investigators could not assure him that his employee was the only person who could have used the computer.

        “There was a lot of ambiguity about how well they were able to nail this down,” he said. “By virtue of the fact that there was insufficient amount of evidence to make an allegation, I wasn't willing to move forward with something that was essentially a rumor.”

        The Enquirer is not naming the employee because no case was ever brought against him.

        When contacted by a reporter, the employee said this was the first he'd heard about the allegations against him. He denied using city computers to access porn and wondered whether someone was trying to set him up.

        “I would like to know who was on my computer,” he said. “I am very upset that my name is on a document and nobody ever talked to me about it.”

        The employee, who makes more than $100,000 annually, is a longtime city employee and has received the highest ratings in performance evaluations.

        The city's investigation into the cases started after its Regional Computer Center discovered that porn sites were being accessed through the city's computer server.

        Former Acting OMI Director Kimberlee Gray suggested installing surveillance cameras, but Ms. Dupuis argued against them. Ms. Dupuis was concerned about privacy issues, and said she did not believe a crime had been committed with regard to employee time records.

        Mr. Shirey did not approve the use of surveillance equipment.

        Ralph Renneker, computer center manager, said that immediately following this case, the city subscribed to a service that blocks employee access to most porn sites. But he said it is not foolproof: the service only works to stop access to sites that it recognizes as pornographic.

        Current Acting OMI Director Mark Gissner said the city manager had every right to request the cases be handled internally. And once that happened, he said OMI closed its investigation.

        “Clearly, we view any inappropriate use of city computers as serious,” he said. On a few occasions, employees have been disciplined for sending electronic chain letters.

        Mr. Gissner said the city has seen very few cases of employees accessing Internet porn sites. Even with the new safeguards, he said employees still might encounter pornography by chance.

        “There is always the possibility of an accident,” he said.

        But with regards to this case, he said, “This is not an accident.”


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