Misuse

While the misuse cases keep rolling in, not all result in favorable decisions for the Agency.  In KEHR v. DEPARTMENT OF VETERANS AFFAIRS, DOCKET NUMBER SF-0752-05-0224-I-1, 2005 MSPB LEXIS 2872, May 10, 2005, the MSPB reversed a reduction in grade action against the appellant, who was charged with misuse of position for personal gain.  The Agency alleged the appellant, who was also a veteran, improperly referred himself to a physician through the VA’s fee-basis referral process.  But apparently there were a number of “unwritten procedures” that allowed the appellant to make the referral in question.  The first teaching point here is that the Agency should know not only the written procedures, but also the customary practice of doing business before charging an employee with misuse.  The second point is that if you are going charge misuse “for personal gain”, you literally have to prove that the employee personally gained in some manner from such use.  Detriment to the agency is not synonymous with personal gain to the appellant.

In CARTER v. DEPARTMENT OF THE ARMY, DOCKET NUMBER AT-0752-05-0089-I-1, 2005 MSPB LEXIS 3036, May 13, 2005, the appellant was removed for accessing and viewing sexually-explicit materials on a government computer and typing church-related documents on a government laptop computer.  In this case, the Agency had no problem proving the misconduct and the MSPB affirmed the removal.   In addition to the current misconduct, the agency relied upon prior disciplinary actions: a 14-day suspension and a Letter of Reprimand both for accessing and viewing sexually explicit materials on government computers. Given the appellant's prior disciplinary actions for the same type of offenses, the Board found that the appellant had no potential for rehabilitation. The Board further held that the appellant's pattern of misconduct in accessing and viewing sexually explicit materials on the government network and computer revealed that he could not be trusted in the future to not commit the same misconduct. The Board noted that lesser discipline had not corrected his behavior and although the nature of the misuse of the computer to type church notes was minor, the appellant's misconduct was still egregious.

Finally, supervisors still seem to think it is alright to borrow large amounts of money from their subordinates.  In SIOZON-PETERSEN v. DEPARTMENT OF THE AIR FORCE, DOCKET NUMBER DC-0752-05-0140-I-1, 2005 MSPB LEXIS 206, April 27, 2005, the appellant was removed for accepting a substantial amount of money from a subordinate employee on at least 2 separate occasions.  It was undisputed that the appellant accepted $1,820 from the subordinate on September 27, 2002, and that she accepted an additional $1,000 from the same employee on September 10, 2003.

The Deciding official specifically considered the appellant's "long and successful [20-year] career in federal service;" he also considered the arguments by the appellant's attorney regarding the appellant's "lack of previous discipline, potential for rehabilitation, and [that] the facts and circumstances in the case suggested a lesser penalty." The Deciding Official, however, determined that the offenses were serious for a person working as a contracting officer and supervisor. As a contracting officer, the appellant was required to exercise considerable discretion when awarding and administering contracts for the agency; her actions resulted in binding contractual commitments and the obligation of millions of dollars on behalf of the United States. The Deciding Official further testified that the appellant's actions violated the trust placed in her as a warranted contracting officer.

The Board further noted from the record the appellant's apparent lack of potential for rehabilitation. The appellant had expressed little remorse for her actions, essentially attempting to minimize her misconduct by emphasizing her personal relationship with the subordinate and asserting an interpretation of "official superior" that bordered on the "specious." She has also failed to express any real appreciation that one of the obvious purposes of 5 C.F.R. §  2635.302 is to avoid conflicts of interest and appearances of such conflicts between a supervisor and her subordinate's official duties and private relationships, a purpose not well-served by the two significant gifts from the subordinate to the appellant.