PTO commissioner illegally intervened in hiring

Todd Zinser, IG, Commerce Department

wfedstaff | April 17, 2015 7:19 pm

By Dena Levitz
Federal News Radio

A high-ranking official in the U.S. Patent and Trademark Office used her position to ensure the hiring of her relative’s boyfriend, even though the candidate had been previously rejected for the job twice, an inspector general investigation has found.

Deborah Cohn, commissioner of Trademarks for USPTO, reportedly violated a number of federal regulations when she intervened in the hiring process to further the application of the man who was seeking the position of attorney advisor.

According to the IG report, Cohn showed several “lapses in judgment” and violated a number of federal regulations.


“In particular, the OIG obtained sufficient evidence to conclude that Commissioner Cohn violated several federal laws by advancing the applicant’s candidacy twice after his application had effectively been rejected by her subordinates,” the report states. “For example, we found that, after her subordinates did not select the applicant for an initial interview, Commissioner Cohn instructed them to include the applicant on the interview list and later, after her subordinates did not select the applicant to receive an offer, Commissioner Cohn effectively created a new position specifically for the applicant.”

Todd Zinser, inspector general of the Department of Commerce, told Federal News Radio a whistleblower called the Fraud, Waste and Abuse Line, which got the process started. His office then conducted a series of interviews that substantiated the whistleblower’s claims.

“The primary issue here, at hand, is that the official basically used their public office for someone’s private gain,” he said. “The way the federal service is set up you should use your public office for public gain. That didn’t occur in this case. There are also issues about failing to act impartially, showing favoritism. I think there was an obligation on the official’s part to seek ethics guidance and that wasn’t done.”

‘Indisputably’ helping to get the applicant a job

Cohn has served as commissioner for Trademarks since December 2010. Her personnel file states that she currently earns an adjusted salary of $181,500 per year and that in 2013 she earned $179,000 along with a $25,000 cash award. Prior to the role, Cohn was deputy commissioner for Trademark Operations at the USPTO.

The applicant is not named in the IG report, but the investigation found that he has been in a long-term, romantic relationship with Cohn’s relative, living with the relative for three or four years. Cohn, herself, was in ready contact with the man. One example given of their social interactions is that Cohn took the applicant and the applicant’s brother along on a private tour of the West Wing of the White House.

It is “indisputable,” according to the IG report, too, that Cohn had been helping this person try to get a job in her agency since 2010 by networking for him, sending his resume on to others and emailing on his behalf.

Not selected for an interview

In recruiting for the position of attorney adviser, 732 individuals submitted applications, according to the IG report. USPTO human resources specialists first checked each of the applicants for minimum eligibility and then provided a list of individuals who were eligible for interviews.

According to the IG investigation, the applicant did not receive the 40 points required to pass the first screening and was not originally selected for an interview.

Cohn reportedly gave a manager beneath her, who was handling the hiring, a list with names of individuals, including the applicant, that she wanted to receive a first interview.”

Then, after the applicant was interviewed and not selected for the position, “Cohn’s conduct was tantamount to creating a new attorney advisor position specifically for the applicant.”

“We found no evidence to suggest that Manager 1 was given a real opportunity to select any of the 17 candidates whom he ranked higher than the applicant,” the report states.

Legal issues at play

John Mahoney, attorney at law, says Cohn’s actions raise a number of legal issues. The conduct described in the IG report may constitute “prohibited personnel practice” under the federal law.

“If it’s found that she gave unauthorized preference, it could serve as the basis for discipline,” Mahoney said.

The Office of Government Ethics also has a set of standards for all federal employees. One specific area is regulations governing misuse of position.

“It makes it a prohibition for a federal employee to use their public office for either their own private gain or for the private gain of friends, family or people with whom they’re affiliated,” he explained.

Mahoney said the Patent and Trademark Office, as well as the Commerce Department overall, should take the matter seriously.

“If the IG has already determined that this has occurred then it’s incumbent upon the agency to look into that. Then if they believe there’s a preponderance of evidence, it’s their responsibility to take action,” Mahoney said. “Discipline could range from reprimand to a removal depending on other factors like prior history, length of service and how egregious the misconduct was.”

Report redacted, then un-redacted

Initially, the IG report was issued without Cohn’s name or any identifying information about her. Zinser said this was because of threats of a lawsuit.

After the IG issued the redacted version of the report, it got a Freedom of Information Act request, which forced a second look at Cohn’s privacy rights.

“We went through an analysis and determined, under FOIA, the official did not have the same level of privacy rights, and now an un-redacted version is on the website,” Zinser said.

The IG investigation recommends administrative action against Cohn. And, beyond Cohn, the case also points to larger concerns in the Patent and Trademark Office, Zinser said.

Multiple USPTO employees said it’s common practice for employees to provide recommendations for particular applicants during the hiring process “and these recommendations allow candidates to obtain interviews, even if they would otherwise not have received interviews,” the IG report states.

To fix this, Zinser recommends the agency develop a process to ensure that candidates are treated equally and hiring decisions are based solely on merit.


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