Recent MSBP Misuse Cases

The MSPB has been quite busy in misuse cases a little over three months into the new year. Here are three examples:

In KARLA COOPER, v. DEPARTMENT OF JUSTICE, DA-0752-04-0500-I-1, January 28, 2005, the agency removed the appellant from her position for: (1) association with a convicted felon; (2) misuse of position; (3) failure to follow instructions; and (4) lack of candor. The Board noted that the appellant’s length of service, lack of prior disciplinary record, and good work performance were mitigating factors to be considered; however, the Board also found that the seriousness of her conduct and her position as a law enforcement officer militated against mitigating the penalty. (Thanks to Erica Dornburg for contributing this case)

In RICKEY C. MARTIN, v. DEPARTMENT OF JUSTICE, DA-0752-04-0672-I-1, February 25, 2005, the appellant was demoted from a supervisory position for: Unprofessional Conduct; Unauthorized Release of Information; Misuse of Position; Impeding an Investigation; and Providing False Information During an Official Investigation. The Board found that the appellant's conduct was extremely serious and was intentional. In addition, the appellant showed no remorse for his misconduct and took no responsibility for it; thus, he had poor potential for rehabilitation. See Yeager v. General Services Administration, 39 M.S.P.R. 147, 151 (1988). Moreover, the Board has consistently held that supervisors and law enforcement officers are held to a higher standard of conduct than other employees. See, e.g., Cantu v. Department of the Treasury, 88 M.S.P.R. 253, 257 (2001) (higher standard of conduct and degree of trust required for supervisor); Thompson v. Department of Justice, 51 M.S.P.R. 43, 49 (1991) (law enforcement officers are held to a higher standard of public trust and confidence and, therefore, can be held to a higher standard of conduct than non-law enforcement employees). Furthermore, the agency's chosen penalty was consistent with its table of penalties. The Board found that the appellant's demotion was warranted and was neither arbitrary, capricious, or unreasonable and was for such cause as will promote the efficiency of the service.

Both of the above cases may be searched in Lexis under their Docket Numbers. Finally, below is a summary of a misuse of government credit card case. This case is illustrative to show that the agency has to pay attention to the facts and agency policies on use of government resources to ensure that cases are correctly charged in order to sustain an agency’s proposed punishment. In this case, the agency got lucky and the MSPB sustained the agency’s penalty although one of the specifications was not sustained.

GEORGE E. MONTENEGRO, Appellant, v. DEPARTMENT OF COMMERCE, Agency. DOCKET NUMBER DE-0752-05-0066-I-1, 2005 MSPB LEXIS 1052, March 10, 2005

INTRODUCTION

On November 19, 2004, George E. Montenegro timely appealed the action of the agency suspending him for 30 days from the position of Regional Maintenance Specialist. GS-12, with the agency's National Weather Service, Western Regional Office, Salt Lake City, Utah, effective October 30, 2004. The Board affirmed the agency’s action.

SUMMARY OF ANALYSIS AND FINDINGS

The agency charged the appellant with misuse of his government issued credit card. The appellant was ordered to perform a site visit at a National Weather Service facility in Sterling, Virginia, near Washington, D.C., for the period from May 24, 2004, to May 28, 2004. The appellant informed his supervisor that he wished to travel early and return late in order to visit friends and relatives on the eastern seaboard of the United States. The appellant flew to Washington, D.C., on May 22, 2004. The appellant rented a Budget Rental car through Hotwire, an internet travel agency, for the period from May 22, 2004, to May 24, 2004. The appellant also rented a second car from Avis through Hotwire for the period from May 24, 2004, through May 31, 2004. The appellant charged both rental cars to his government credit card. In addition, the appellant used his government credit card to purchase gasoline prior to returning the second rental car on May 31, 2004. The agency contended that the appellant misused his government credit card by putting the rental fees for these two cars, and the gasoline charges for the second rental car on the card.

1. The agency failed to prove that the appellant misused his government credit card for the rental car and gasoline charged during the period from May 24 to May 31, 2004.

The appellant's first-line supervisor and the proposing official in this action, Mr. Joseph Lachacz, testified that, based upon his understanding of agency policy, the appellant should not have used his government credit card for the second car rental and its refueling. The appellant, however, called Ms. Rachael Wivell as a witness. Ms. Wivell is a Transportation Specialist with the National Finance Administration of the National Oceanic and Atmospheric Administration, the National Weather Service's parent agency. Ms. Wivell testified that she is an expert on agency travel policy and, indeed, participated in the drafting of the agency's policy on the use of the government credit card by its employees. Ms. Wivell testified that the appellant did not violate agency policy by putting the rental charges for the second rental car and its gasoline on his government credit card. Ms. Wivell explained that the appellant was authorized a rental car for four days during that period and, although the appellant did not return it immediately upon the conclusion of his government work, he was permitted to leave the rental and fuel charges for the entire rental on his government credit card. Ms. Wivell explained, however, that the appellant was required to prorate the costs on his travel voucher and could not claim reimbursement for the portion of the rental and fuel charges attributable to the time after his government business had concluded. The Board found Ms. Wivell's testimony more persuasive than that of Mr. Lachacz on this question. Mr. Lachacz is no expert on agency travel policy and freely acknowledged as much on the witness stand. In addition, upon questioning by the administrative judge, the deciding official, Mr. James Campbell, acknowledged that by putting the charges for second rental car on the government credit card, the appellant might not have violated agency policy if he had properly prorated his expense report. The Board did not consider whether or not the appellant had correctly prorated the expenses for the second rental car in support of the charge because the appellant was never put on notice that the correctness of his travel voucher was a basis for the suspension action. It is well-settled that the Board will not sustain an agency action based on charges that an agency could have properly brought, but did not. Nazelrod v. Department of Justice, 54 M.S.P.R. 461, 466 (1992), aff'd sub nom., King v. Nazelrod, 43 F.3d 663 (Fed. Cir. 1994).

2. The agency proved that the appellant misused his government credit card for the rental car and gasoline charged during the period from May 22 to 24, 2004. Ms. Wivell testified that the appellant clearly violated agency policy by putting that rental car on his government credit card. The appellant was not performing any official duties during this period. Indeed, he turned the first rental car in and rented a second car for the official portion of his trip. The appellant testified that his use of the government credit card was an accident, and that he had attempted to put those charges on his personal American Express Card. The appellant's claim is irrelevant on the merits of the case, because the charge of misuse of a government credit card is not a specific intent offense, although the appellant's intent or lack thereof is an appropriate consideration on penalty. See Quarters v. Department of Veterans Affairs, 97 M.S.P.R. 511, P5 (2004). In any case, the Board did not believe the appellant's testimony. The appellant claims that the first rental car was put on his government credit card because his government credit card was in his online profile with Hotwire. According to the appellant, he had almost always obtained his rental cars for official travel through Hotwire in the past and, therefore, Hotwire already had his government credit card number. The appellant further testified that he presented his personal American Express Card at the car rental counter. According to the appellant, the rental car company must have failed to imprint or swipe his American Express Card. Finally, the appellant testified that he tried again to ensure that the rental car charges were on his American Express Card when he returned the car. First, the Board found it inherently improbable that Hotwire's online rental service did not allow the appellant to review his transaction, to include the credit card to be used, prior to the rental. Hillen v. Department of the Army, 35 M.S.P.R. 453, 461 (1987). The Board also found it inherently improbable that Budget Rental Car would twice fail to ensure that the charges were put on the appellant's American Express Card if the appellant had actually presented that credit card to them. Rather, the Board belived that the appellant allowed his government credit card either willfully or with reckless disregard as to which credit card he was using. In addition to proving the charge against the appellant, the agency must show that the action taken promoted the efficiency of the service. 5 U.S.C. § 7513(a). The first element of this standard, nexus, is established by the nature of the charge that was sustained. See Quarters, 97 M.S.P.R. at P5. Where all of the agency's charges are sustained, but not all of the underlying specifications are sustained, the agency's penalty determination is entitled to deference and should be reviewed to determine whether it is within the parameters of reasonableness. Blake v. Department of Justice, 81 M.S.P.R. 394, P38 (1999). In this case, the appellant had a prior 10 day suspension for misuse of a government credit card. In addition, the appellant had received a letter of reprimand for failure to follow leave procedures. Plainly, a 30-day suspension is not outside the bounds of reasonableness for a third offense involving willful misconduct where the appellant had already been suspended once for the same thing.