Misuse of Government Resources

Below are summaries of two recent MSPB cases in which the Board sustained the removal of two employees. In order to get a true flavor of both of these cases, I encourage you to download them from Lexis.

PAUL C. CANO, Appellant, v. DEPARTMENT OF THE INTERIOR, Agency.

DOCKET NUMBER SF-0752-03-0622-I-2

MERIT SYSTEMS PROTECTION BOARD

2004 MSPB LEXIS 1609

September 2, 2004

SUMMARY

On June 4, 2001, the appellant was appointed to a Forestry Technician, GS-5, position on a career conditional seasonal appointment. On July 1, 2001, he was converted to a full-time position. On June 30, 2002, he was promoted to the GS-6 level. On May 28, 2003, the agency notified the appellant that it was proposing his removal on charges of Misuse of government property (2 specifications), Failure to follow a supervisor's instructions (2 specifications), and Misrepresentation of facts on official documents (2 specifications). After the appellant responded to the proposal, the deciding official issued a decision sustaining all specifications of the three charges and finding that removal was the appropriate penalty. As summarized below the Administrative Judge sustained all but one specification.

Charge One - Misuse of government property

Specification One-Misuse of a government-issued cell phone

In this specification, the agency concluded that the appellant had made 1,609 unofficial calls between the period in question, at a cost of $ 752.08. SUSTAINED

Specification Two-Misuse of a government issued laptop computer

In this specification, the agency charged the appellant with using his government assigned laptop computer to access unauthorized sites after he had signed a certification acknowledging that he would not connect to the internet for purposes other than fire management-related activities. SUSTAINED

Charge Two - Failure to follow a Supervisor's instruction

Specification One
Under this specification, the agency charged that the appellant disobeyed his supervisor's instruction when he charged meals on his government-issued credit card during a work-related trip to Temecula, California. SUSTAINED

Specification Two

The agency charged the appellant with failing to follow an instruction given to him on April 2, 2003 by his supervisor not to operate a personal or government-owned vehicle in the performance of his duties. SUSTAINED

Charge Three -- Misrepresentation of facts on official documents

Specification One -- Misrepresentation of an official travel document

The agency charged the appellant with submitting a travel document on February 4, 2003 for a work-related trip he had taken to Boise, Idaho, that included a claim of $ 31.00 for meals and incidental expenses incurred on January 25, 2003 and a written request for overtime for that date when he had not actually been on official travel and had not been performing official duties on the date in question. SUSTAINED

Specification Two -- Misrepresentation of your experience on an official training announcement

The agency charged the appellant with submitting an application on January 13, 2003, in response to Versa-Skill Announcement No. RS-064V-03, that indicated he had held the designation of Agency Representative on at least three fires when, in fact, he had never served in that capacity. NOT SUSTAINED

The Administrative Judge found that there was no dispute that the agency has a strong interest in its employees properly using government property, following supervisory instructions, and representing facts accurately on official documents. Thus, the Administrative Judge found a nexus between the sustained charges and the efficiency of the service.

While the Administrative Judge found that the deciding official gave proper consideration to all of the relevant Douglas factors, he noted that one of the specifications in charge three was not sustained, and that, although he sustained both specifications in charge one, the agency did not prove that the appellant misused the government-issued cell phone or the laptop to the extent charged. In addition, he found that the agency only proved a portion of specification one in the third charge. The Administrative Judge found, however, no evidence that the agency would have assessed a different penalty in light of its failure to prove all of the charged conduct. The Administrative Judge ultimately concurred with the deciding official's Douglas factor analysis, particularly her determination that the appellant's conduct was intentional and that he showed minimal, if any, potential for rehabilitation, and he found that the penalty of removal is within the parameters of reasonableness. He therefore affirmed the agency's action.

FRANCHESCA A. PAGE, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.

DOCKET NUMBER CH-0752-04-0508-I-1

MERIT SYSTEMS PROTECTION BOARD

2004 MSPB LEXIS 1725

September 10, 2004

SUMMARY

The appellant was a Revenue Officer, GS-09, at the agency's Small Business/Self Employed Division of the Internal Revenue Service (IRS) in Chicago, Illinois. Effective April 16, 2004, the agency removed her from her position for misusing her government credit card, failing to pay her government credit card account in a timely manner, and making false or misleading statements in a matter of official interest.
As a Revenue Officer working in the area of field compliance, the appellant worked with small business owners and self-employed individuals owing money to the IRS. Her major duties included collecting delinquent accounts, securing delinquent tax returns, conducting tax investigations, counseling taxpayers on their obligations to file and pay taxes, filing and releasing tax liens, performing credit analysis, and evaluating assets. She works independently and met with these individuals at their businesses or homes, sometimes collecting cash.

The appellant enjoyed gambling in casinos. She did not own a vehicle and prevailed upon friends for transportation to and from the casinos she enjoyed frequenting. When other options were exhausted, the appellant began using her government Citibank credit card to rent cars to drive to casinos. When she returned from gambling, she paid the rental car balances in cash, to avoid charges appearing on her government credit card.

On Saturday, May 25, 2002, the appellant rented a vehicle from Avis at approximately 11:45 a.m., using her government Citibank card. This time, she did not have enough cash to return the car without incurring a cost. Hoping to win the car rental money gambling, she kept the car over two months, until Monday, July 29, 2002, incurring a cost of $4,586.53 on her government Citibank card. She did not make any payments toward satisfying this debt and the bill became delinquent. The Board has long considered misuse of a government credit cards a serious offense. See, e.g., Nelson v. Veterans Administration, 22 M.S.P.R. 65, 70 (1984).

The Board found the appellant's credit card misuse and refusal to accept responsibility for the bill extremely troubling in a Revenue Officer. She misused the credit card issued to her for personal gain, which is a serious offense. Even worse, she attempted to conceal the intentional nature of her acts by telling her supervisor she mistakenly used her government credit card, when in fact she had been engaged in a deliberate pattern of using her government Citibank card to rent cars for gambling, and then sought to avoid detection by paying the bill in cash.

The appellant's credit card misuse was compounded by a false statement made during an investigation into her activities. Falsification is a serious offense, reflecting adversely on an employee's reliability, veracity, trustworthiness, and ethical conduct. Seas v. United States Postal Service, 78 M.S.P.R. 569, 578 (1998). Although there is no per se requirement that an agency remove employees who give false statements, the Board has reinstated the penalty of removal where an appellant showed "significant prevarication" during an agency investigation, finding that activity raised "legitimate concerns about his trustworthiness." Dogar v. Department of Defense, 95 M.S.P.R. 52, 61 (2003). Here, the appellant's claim to have a personal credit card and to have made a mistake was designed to mislead her supervisor, if only temporarily, from the truth about how she was using her government credit card.

The Deciding Official considered the appellant's 24 years of service and her claim she is rehabilitating herself from compulsive gambling. Because the Deciding Official considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness, the Board declined to disturb his chosen penalty.