IEC Journal

Supreme Court: Feds Can Challenge MSPB Decisions in Federal District Court

Government Exec reports:  Federal employees can take their discrimination complaints to federal district court after an initial government ruling, the Supreme Court ruled Monday.   Previously, employees with complaints involving both unwarranted personnel actions and discrimination -- known as “mixed cases” -- were forced to take their case to the U.S. Court of Appeals if they wanted to challenge the decision by the quasi-judicial Merit Systems Protection Board.

The high court’s unanimous decision in Kloeckner v. Solis will reverse the 1978 Civil Service Reform Act’s mandate that procedural rulings by MPSB can be challenged only in appeals court.

Removal for misuse of Govt Credit Card sustained

In a non-precedential decision, the Federal Circuit sustained the MSPB's decision sustaining removal for misconduct--misuse of a govt credit card.  The case, which included remand for procedural issues, includes creative arguments from pro se appellant about not receiving sufficient training on use of the card.  See full decision at: http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3229.pdf 

The removal appeal of the employee implicated in US v. POGO is remanded

Consequences of United States v. Project on Government Oversight, 525 F.Supp.2d, 161, 164 (D.D.C. 2007).  The Dept. of Interior employee, Robert Berman received notice of his proposed removal for misuse of public office for personal gain.  The Federal Circuit suspended its review of the case pending the outcome of the DC Circuit case on whether he violated 18 USC 209 by accepting an award from POGO.  Since that case was remanded for a new jury verdict, so was the personnel removal case. 

See Berman v. Department of the Interior, C.A.F.C. No. 2010-3052 (nonprecedential) (Nov. 7, 2011) at http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-3052.pdf.

Read related article at: http://www.fedsmith.com/articles/articles_display.php?a=3183&p=1

News items of interest:

• State Dept. contracting officer under investigation for steering $52M of contracts to her secret husband.  See full article from Daily Caller at http://dailycaller.com/2011/07/19/state-dept-contract-officer-steers-52-million-to-secret-husband-daughter/.
• MSPB upholds removal of DHS Senior Special Agent, after he failed to establish whistleblower affirmative defense for (1) unauthorized queries of individuals on an official government computer database; (2) unauthorized disclosure; (3) misuse of position; and (4) lack of candor.  See MSPB opinion at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=618847&version=620720&application=ACROBAT.
• MSPB dismissal of OSC case to remove an employee for violation of the Hatch Act is upheld.  OSC failed to comply with Board rules to state "with particularity any alleged violations of law or regulation, along with the supporting facts."  However, OSC may bring a new complaint.  See MSPB opinion at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=621454&version=623336&application=ACROBAT

Higher Standards for Auditors?

The Merit Systems Protection Board routinely holds employees in certain sensitive categories to higher standards of behavior. Law enforcement personnel are one example. The attached decision supports a similar higher standard of behavior for auditors.

Download Woods v. USPS

Is the the term "Conflict of Interest" problematic or just misused?

FedSmith columnist Bob Gilson encountered this question in a follow up a recent follow up to his column which suggested that the new MSPB members had a conflict of interest because of their former positions as union attorneys.  See original article http://www.fedsmith.com/article/2731/certainly-bad-law-maybe-conflicts-interest.html#, and follow up discussion http://www.fedsmith.com/article/2742/federal-sector-ethics-have-all-missed.html#

MSPB Reinstates Fired Chief of Park Police

The Merit Systems Protection Board has reinstated Teresa C. Chambers, former chief of the U.S. Park Police who was fired in 2003 for complaining about staffing shortages in her organization. A Washington Post item has more information.

Misconduct leads to removal

Former Navy employee who misused govt resources (govt vehicle and official time) loses appeal in personnel litigation because he lied to investigators.  See full Federal Circuit decision at http://www.fedsmith.com/articles/records/file/Cases/2010/Delapenia10_3116.pdf.

IEC Presentation Materials - OSC on Hatch Act (Aug 2010)

As promised at today's IEC meeting, here are the materials from the Office of Special Counsel Hatch Act presentation.  Most notably:

• SUBSCRIBE TODAY!  OSC now has a Hatch Act listserve.  You can subscribe by going to listserv.osc.gov (or to skip a couple pages, go to listserv.osc.gov/scripts/wa-osc.exe?SUBED1=HATCHACT&A=1).  Once you submit your email address remember that you must verify your email address to complete subscription.  This will arrive as a confirmation email with a hyperlink.
• OSC updated handouts:
• • Power Point Presentaiton Handout Download OSC Power Point on Hatch Act & Social Media (8-10)
  • Handout on Displaying Photos in the Office Download OSC Can Feds display Presid Photos in office (8-12-10)
  • Updated FAQ Regarding Social Media & the Hatch Act Download OSC FAQ on Social Media (2010-08-10) UPDATED
•  Links to some of the cited OSC cases:

• • Special Counsel v. Pattie Ware: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=505805&version=507249&application=ACROBAT

  • Special Counsel v. Phillip Mark: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=520350&version=521812&application=ACROBAT 

  • Special Counsel v. Paula Acconcia: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=289570&version=289913&application=ACROBAT  

MSPB upholds removal for misuse of position etc.

Appellant's appeal of removal from Federal service was denied and MSPB found penalty of removal reasonable.  Of particular interest is the fact that the employee was initially charged with (1) willful forging or falsifying official govt records, (2) misuse of position & (3) failure ot accurately report information his OGE Form 450.

 Management did not pursue the 450 charge which Appellant claimed he could not be held responsible for since he was not aware he had to report outside income.  MSPB find a nexus between management’s loss in confidence in his integrity and thus ability to perform the duties of his position.  See http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=515923&version=517376&application=ACROBAT

SSA Admin Law Judge loses appeal on his removal

A Social Security Administration (SSA) Administrative Law Judge has lost his job for, among other things, misuse of government resources:

1.  Using his government computer to store explicit photos and run a personal business.

2.  Use of agency letterhead for personal corresponence.

See Steverson v. Social Security Administration, C.A.F.C. No. 2009-3287 (nonprecedential), 6/17/10; http://www.cafc.uscourts.gov/opinions/09-3287.pdf.

Two suspended for aiding & abetting prohibited personnel practice

Two Coast Guard human resources specialists were suspended for aiding and abetting in an officer commit a prohibited personnel practice, in the form of creating a job description that only one person could meet (giving preferential advantage and misusing of their positions). 

See Office of Special Counsel press release at http://www.osc.gov/documents/press/2010/pr10_13.pdf.

See MSPB decision at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=499275&version=500707&application=ACROBAT

Fed. Cir. upholds removal of employee for misuse of govt resources

An NCIS (Naval Criminal Investigative Service) employee fired for accessing the National Crime Information Center (NCIC) database for personal reasons, got no sympathy from the federal appeals court in her bid to win back her job. (Valdez v. Department of the Navy, C.A.F.C. No. 2010-3035 (nonprecedential), 3/17/10)

MSPB case on misuse of position & violation of the Standards of Conduct

MSPB case upheld Administrative Judge decision which denied appellant corrective action for alleged Whistleblower Protection, because agency established by clear and convincing evidence that it would have reassigned her regardless of the disclosure. 

More specifically, the Inspector General found that: (1) The appellant used her public office for the gain of a private business, Checkers, Inc.; and (2) the appellant violated the Standards of Ethical Conduct by maintaining a close personal friendship with Ms. Dale Spettigue, a principal of Truckers Express, Inc. (TEI), a carrier over which the appellant was exercising the agency’s regulatory authority.

See full decision at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=468766&version=470011&application=ACROBAT 

MSPB upholds removal, including ethics related charges

See full case at: Social Security Administration v.

London Steverson,

2009 MSPB 143(2009)

 

ALJ was removed for misuse of Government resources, including

• Misuse of letterhead and title for personal activities

• Misuse of government equipment for personal activities (sexually-oriented material on his government-issued computer and using his government computer to support a personal private business)

Removal sustained (false statement and misuse of equipment)

Former DHS employee fired for lying duirng an official investigation and misuse of government equipment.  See full case at http://www.fedsmith.com/articles/records/file/Hernandez09-3038(2).pdf.

Removal for Misuse of Official Records

IRS employee used official records for personal use and was removed.  http://www.fedsmith.com/articles/records/file/Albritton08-3075.pdf

Supervisor Altered Sign-in Times

How accurate is accurate? The Federal Circuit Court of Appeals recently upheld the discipline of a Postal Service supervisor who had falsified at least 17 time records to show that employees had returned to the office before the 5:00 P.M. (Davis v. United States Postal Service, C.A.F.C. No. 2007-3255, 12/10/07). The supervisor had claimed that he had only been entering correct return times for employees who had returned on time but failed to clock in as they should have. Thanks to Fedsmith for the link.

Removal upheld for employee misuse of phone

Federal Circuit upheld MSPB decision, enforcing removal of employee for misuse of government phone.  See http://www.fedcir.gov/opinions/06-3319.pdf

MSPB Cases from the Fall

As we ring in the New Year, here are some interesting cases to close out 2005 issued by the Merit Systems Protection Board in the Fall of 2005 to include one involving an IRS employee removed for not properly filing her Federal Tax Returns.

Thompson v. Department of Labor-The Board found the penalty of removal for the appellant for twenty-six unauthorized cash withdrawals from automated teller machines using her government travel card, totaling $ 1,619.60--though harsh (she had 30 years of Federal service at the time of her removal)--was within the limits of reasonableness.

Samar v. Department of Navy-The Board found that the appellant's use of the government vehicle to drive to breakfast was not primarily for the benefit of the agency, and therefore, the "minor personal use" exception does not apply in this case.

Dye v. Department of Air Force-The appellant violated the agency’s leave instruction on multiple occasions using sick leave to account for his absence from his civilian position. He also stipulated to four other charges to include misuse of his government travel card for personal use of a whop-ping 85 times amassing a total of over $ 5,000.00 in personal charges. The Board found such mis-use egregious, and that this one charge, standing alone, warranted removal.

Gayle v. Department of Treasury-The appellant was removed for failure to timely file a personal Federal Income Tax Return, Understatement of Federal Tax Liability, and Failure to properly file her Federal Income Tax Return. The Board stated in this case that, "as an employee of the agency the appellant was required to adhere to the Standards of Ethical Conduct for Employees of the Ex-ecutive Branch. Section 2635 of Title Five requires that employees satisfy in good faith their obliga-tions as citizens. There is no question that the IRS requires the public, including its own employees to timely file their tax returns and truthfully disclose their taxable income."

BARBARA THOMPSON, Appellant, v. DEPARTMENT OF LABOR, Agency

DOCKET NUMBER NY-0752-05-0127-I-2

2005 MSPB LEXIS 7095

November 1, 2005

SUMMARY

Ms. Thompson challenged the agency's decision to remove her from the position of Equal Opportu-nity Specialist, GS-12, Office of Federal Contract Compliance Programs (OFCCP), New York Dis-trict Office, New York, New York.

On August 19, 2004, Brenda Montgomery, the appellant's immediate supervisor, issued her a notice of proposed removal. The proposal was based on one charge: misuse of the federal govern-ment travel credit card. There were twenty-six specifications under the charge; Ms. Montgomery alleged that during the period from August 21, 2002 through April 30, 2004, the appellant used the card to make twenty-six unauthorized cash withdrawals from automated teller machines. The al-leged withdrawals varied in amount and totaled $ 1,619.60.

Having reviewed the evidence presented, the Judge found that the appellant made each of the cash withdrawals cited in the twenty-six specifications and that the withdrawals totaled $ 1,619.60. Even if one were to find that she did not know that the credit card was to be used only for official travel, the point remains that--other than her assertions--there was no evidence indicating she used the cash she withdrew for work-related purchases. The Appellant acknowledged that she did not have any receipts. There was no evidence linking any of the twenty-six cash withdrawals to any particular purchase. Moreover, there was no evidence linking any of the cash withdrawals to any visits she made to federal contractors' facilities.

An agency may take an action against an employee only for such cause as will promote the effi-ciency of the service. The Judge found that the agency established that an adverse action against the appellant promoted the efficiency of the service. The deciding official testified that the appel-lant's repeated misuse of the credit card caused him to lose confidence in her. He noted that she held a position of responsibility. He noted that she had access to confidential information such as contractors' payroll records and personnel records.

The Board has articulated factors to be considered in determining the propriety of a penalty--factors such as the nature and seriousness of the offense, the employee's past disciplinary record, and the supervisor's confidence in the employee's ability to perform his assigned duties. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). The Board places primary importance on the nature and seriousness of the offense, its relation to the appellant's duties, position, and respon-sibilities. See Bahrke, 98 M.S.P.R. at 522-23.

In the instant case, the misconduct was serious. See Brown v. Department of the Army, 96 M.S.P.R. 232, 236 (2004), review dismissed, 115 Fed. Appx. 63 (Fed. Cir., Oct. 29, 2004). More-over, it was repeated; there were twenty-six withdrawals of cash. Furthermore, the amount was sig-nificant; the withdrawals totaled $ 1,619.60.

Another aggravating factor was a June 21, 2002 reprimand. The appellant was on notice that misuse of the card could result in the termination of her employment.

As for mitigating factors, the appellant had thirty years of federal service at the time of her re-moval. The Deciding Official testified that he considered her years of service. He testified that her performance was rated as fully successful; he read some of her reports; and he found that they were well written. He testified, however, that her misconduct caused him to lose confidence in her. In light of the foregoing, the Judge found that the penalty of removal--though harsh--was within the limits of reasonableness.

MARK H. SAMAR, Appellant, v. DEPARTMENT OF THE NAVY, Agency

DOCKET NUMBER SF-0752-05-0711-I-1

2005 MSPB LEXIS 6471

October 11, 2005

SUMMARY

The appellant appealed the agency's decision to suspend him for 30 days without pay from his position of High Voltage Electrician, WG-10.

A charge of willful misuse of a government vehicle requires the agency to prove not only that an employee used a vehicle for a nonofficial purpose, but also that the misuse of the vehicle was will-ful. The employee must have had actual knowledge that the use would be characterized as unoffi-cial or have "acted in reckless disregard as to whether the use was for nonofficial purposes." Kimm v. Department of the Treasury, 61 F.3d 888, 891 (Fed. Cir. 1995).

The appellant was a High Voltage Electrician, WG-2810-10, for the Department of the Navy, Naval Base Ventura County (NBVC), Point Mugu, California. NBVC consists of three installa-tions: Point Mugu, Port Hueneme and San Nicolas Island. The appellant's primary duty site was Point Mugu. Under Naval Base Ventura County Instruction 11240.1A, dated May 26, 2004 (In-struction), paragraph 4, the use of government vehicles for meals on an employee's primary duty site was not authorized. The Instruction notified civilian employees that willful misuse of a gov-ernment vehicle (GOV) for other than official purposes subjects them to a minimum 30 day suspen-sion, consistent with the statute. On August 4, 2004, the appellant signed a document acknowledg-ing that he received a copy of the Instruction.
On September 30, 2004, the appellant reported for work at Point Mugu around 6:30 a.m. and picked up a blue utility bed truck. It was undisputed that the vehicle driven by the appellant was a passenger motor vehicle and government vehicle as described in 31 U.S.C. § 1349(b) and the In-struction. The appellant then drove the vehicle to the Point Mugu galley "for food." Ensign James Shefchik, the NBVC Duty Officer of the Day, noticed the vehicle parked at the galley and contacted Public Works, asking that the office determine to whom the vehicle was assigned. Public Works subsequently determined that the vehicle was assigned to the appellant.

The appellant argued that he never received a copy of the Instruction, which specifically prohib-its the use of GOVs for meals on an employee's primary duty site. Thus, the appellant argued that any such misuse could not have been willful. Further, because he was always on call for emergen-cies and eating at the galley on base, the appellant argued that such a use did not constitute a nonof-ficial use of the GOV. As such, he was using the vehicle in a duty status, similar to that anticipated for the Command Duty Officer, or others described in paragraph 7 of the Instruction. Finally, be-cause he has the discretion to take breaks, and he needed to eat at some point, driving his GOV to the galley for breakfast was within the scope of his official duties.

The undisputed record reflected that on September 30, 2004: (1) the appellant's primary duty site was Point Mugu; (2) the appellant drove the GOV to the Point Mugu galley for breakfast; (3) the Instruction explicitly stated that GOVs could not be used for meals on an employee's primary duty site; (4) the appellant signed in to eat breakfast at the Point Mugu galley; (5) the appellant ate breakfast at the Point Mugu galley; (6) there was no base emergency; (7) the appellant was not con-tacted on an emergency basis; and (8) there was no evidence that the appellant had permission from his supervisor to use the GOV to drive to the Point Mugu galley for breakfast. There was no evi-dence that the appellant was authorized by the agency to utilize the GOV for the purpose of driving to the galley, nor was there any evidence that driving the GOV to the galley was in furtherance his duties as a high voltage electrician. With regard to the appellant's argument that he was authorized to use the GOV in this manner pursuant to paragraph 7 of the Instruction, the appellant presented no evidence that he was the Base Command Duty Officer, nor did he present any evidence showing that he was required to be "on call constantly" in the manner described by exception.

Record evidence belied the appellant's contention that he never received a copy of the Instruc-tion. In particular, record evidence established that on or about August 4, 2004, the appellant signed a document stating that he "received" a copy of the Instruction. Further, witnesses at the hearing provided detailed testimony about how they separately informed the appellant and other employees, about the prohibition against driving GOVs to the galley on their primary duty station. Taking all of these factors into consideration, the Judge found that the appellant knew that his use of the GOV on September 30, 2004 was not for an official purpose, or acted in reckless disregard as to whether the use was for a nonofficial purpose.

In some cases involving alleged violations of 31 U.S.C. § 1349, the Board has held that, if use of a government vehicle involved minor personal use, a charge of willful misuse may not be sus-tained under circumstances indicating that the vehicle was used primarily to further agency busi-ness. However, in cases more analogous to the appellant's, the Board found violations of the stat-ute. In Garcia v. Department of the Air Force, 34 M.S.P.R. 539 (1987), the Board affirmed the re-moval of an Air Force journeyman mechanic who used his Air Force vehicle to go on work breaks on two occasions. In Hornbuckle v. Department of the Army, 45 M.S.P.R. 50 (1990), overruled by Walsh v. Department of Veterans Affairs, 62 M.S.P.R. 586 (1994), recons. denied, 67 M.S.P.R. 96 (1995), aff'd sub nom. Erickson v. Merit Systems Protection Board, 89 F.3d 1575 (Fed. Cir. 1996), rev'd sub nom. LaChance v. Erickson, 522 U.S. 262 (1998), the Board affirmed the demotion of an Army foreman for two misconduct charges, one of which was misusing his Army vehicle to stop and pick up lunch for his subordinates. The Board in Hornbuckle noted that the section 1349 viola-tion was "serious" in light of the law's range of penalties, from a minimum "one-month suspension without pay to summary removal." Id. at 53. Finally, the Judge noted that the agency's Instruction specifically prohibited the appellant from using the GOV for meals on his primary duty site. See, e.g., Madrid v. Department of the Interior, 37 M.S.P.R. 418, 423 (1988). After reviewing the record evidence, the Judge found that the appellant's use of the GOV to drive to the Point Mugu galley for breakfast was not primarily for the benefit of the agency, and therefore, the "minor personal use" exception does not apply in this case. Therefore, the Judge affirmed the 30-day suspension.

STEVE A. DYE, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency

DOCKET NUMBER AT-0752-05-0660-I-1

2005 MSPB LEXIS 6041

September 30, 2005

SUMMARY

The appellant was removed on six misconduct charges. The parties stipulated to four charges. With regard to the disputed charges, the agency alleged in Charge 2 that the appellant violated the agency’s leave instruction on multiple occasions during the calendar years 2001, 2002, and 2003 by using sick leave to account for his absence from his civilian position at CENTCOM in April, July, August, September, October, November, and December 2001, during periods in which the appellant was serving active-duty military tours.

The appellant presented no evidence to refute the agency's overwhelming evidence that he, in-deed, claimed sick leave for all of the periods of time that the agency alleges he was serving on ac-tive military duty as cited in the specification to this charge. He merely testified that he did not know it was wrong for him to take sick leave while on active military duty. The appellant testified that he has been in federal service for 20 years, 10 1/2 years in federal civil service and approxi-mately 9 1/2 years in the reserves. The Judge found it inherently improbable that in 20 years of combined federal service, the appellant would not know that it was wrong for him to claim sick leave from his civil service position while serving on active military duty. See Hillen v. Department of the Army, 35 M.S.P.R. 453, 459 (1987). Thus, The Judge not believe the appellant's testimony in this regard.

In Charge 3, the agency accused the appellant of committing larceny by false pretense in con-nection with the temporary duty assignment for training he had at Keesler Air Force Base, Missis-sippi. The appellant does not dispute that he received the three interim payments reflected in charge three on the dates stated in the charge. Likewise, the appellant does not dispute that he failed to in-clude these amounts on his final travel claim, which he filed at Dobbins Air Force Base, Georgia, on August 7, 2003. The appellant claims that his failure to include these amounts in block 9 of the DD Form 1351-2, was not intentional since he had never before completed a travel voucher that in-cluded his receipt of interim payments for temporary duty assignment.

In order to sustain the charge of larceny, the agency must prove a taking and possession of an-other's property in a manner inconsistent with the owner's rights and benefits, with an intent to per-manently deprive the owner of the possession or use of the property. See Peck v. Department of De-fense, 75 M.S.P.R. 244, 248 (1997). With regard to the element of "intent," it is hornbook law that a criminal intent or mens rea is necessary to sustain the charge of theft or larceny. Id. "Under the gen-eral rule, if the existence of a state of mind is incompatible with the intent to steal it will preclude in conviction of larceny." See id., citing 52A C.J.S. Larceny § 25a., p. 447. A taking under a mistake of fact is not larceny.

Therefore, the Judge found that, while the appellant clearly failed to reflect his receipt of the in-terim payments he received on the DD Form 1351-2, which resulted in his receipt of an overpay-ment on his travel reimbursement, the agency failed to prove that such failure by the appellant was done with the requisite intent necessary to sustain a charge of larceny. Accordingly, the found that charge 3 was not sustained.

The Judge considered the testimony of Colonel John J. Diamond, the deciding official. Colonel Diamond testified to the highly sensitive nature of his command's mission, to include its active in-volvement in the prosecution of the nation's present war with Iraq. Colonel Diamond testified that the highly sensitive nature of the command's mission demands that his staff members be dependable and trustworthy. He testified that his trust and confidence in the appellant has been completely eroded, and that any one of the charged offenses could support removal. I agree.

While it is true that the appellant stipulated to 4 of the 6 charges, several of the appellant's acts of misconduct are extremely serious. For instance, the appellant stipulated to charge 4, misuse of his government travel card. The agency's evidence is undisputed that the appellant misused his government travel card for personal use of a whopping 85 times amassing a total of over $ 5,000.00 in personal charges. The Judge found such misuse egregious, and that this one charge, standing alone, warranted removal.

The appellant was extremely remorseful for his misconduct and that did not go unnoticed. In addition, the Judge noted the appellant's noteworthy length of service as well as the fact that, prior to this instance, he had no prior disciplinary action in his record. Despite these otherwise notewor-thy accomplishments, the Judge not simply could not ignore the egregiousness of the sustained mis-conduct in this appeal. Thus, based on the foregoing, the Judge found that the agency-imposed pen-alty is not outside the bounds of reasonableness. The Judge, therefore, affirmed the removal.

SONIA H. GAYLE, Appellant, v. DEPARTMENT OF THE TREASURY, Agency

DOCKET NUMBER PH-0752-05-0077-I-2

2005 MSPB LEXIS 5271

September 23, 2005

SUMMARY

The appellant filed an appeal of an agency action that removed her from the competitive service position of Contact Representative, GS-0962-08-01, which she had occupied continuously for more than one year. The appellant was assigned as a full-time seasonal employee at the Internal Revenue Service (IRS), ACS Local Team 302 Seasonal, PSC South in Philadelphia, Pennsylvania. The ap-pellant had been an employee for approximately 6 and 1/2 years with the agency, and there was no record of prior discipline.

The appellant's removal was based on the following three reasons:

Reason 1: Failure to timely file a personal Federal Income Tax Return

Specification 1: You willfully failed to file your 1999 Federal Income Tax Return by April 17, 2000. You filed your return on December 29, 2000. You failed to show a rea-sonable cause for your non-compliance. Even if you did not willfully fail to timely file your personal Federal Income Tax Return, you still filed your return after the due date.

Reason 2: Understatement of Federal Tax Liability

Specification 1: You willfully understated the amount of tax due on your 2000 Federal Income Tax return. You were assessed additional taxes of $ 1,705.00 as a result of an underreporter contact. Your withholding was increased by 189.00. You entered into an installment agreement with the IRS on February 3, 2003. You had a balance due of $ 1,702.62 as of April 21, 2003. You failed to show a reasonable cause for your non-compliance. Even if you did not willfully understate the amount of tax due, you failed to properly file your 2000 Federal Income Tax.

Reason 3: You failed to properly file your 2001 Federal Income Tax Return

Specification 1: You timely filed your 2001 Federal Income Tax Return. However, af-ter submitting a $ 300.00 payment with your return, you had a balance due of $ 4,685.00. You entered into an installment with the IRS on May 9, 2002. Your account was considered fully paid on October 2, 2002.

The appellant was charged in the alternative with violating sections 1203(b)(8) or 1203(b)(9) of the Restructuring and Reform Act of 1998. Both sections of the statute provide that an agency em-ployee who willfully fails to file a tax return or willfully understates a Federal tax liability shall be removed, unless such failure is due to reasonable cause and not to willful neglect. Generally, will-fulness is a subjective standard that focuses on the knowledge of the taxpayer, not the knowledge of a reasonable person, and it does not require proof of an evil motive or bad faith. United States v. Grunewald, 987 F. 2d 531 (8th Cir. 1993); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988)(citing United States v. Pomponio, 429 U.S. 10, 12 (1976). If there is no admission by the ap-pellant, in these cases, willfulness must be established by circumstantial evidence. The agency cited to the case of United States v. Smith, 890 F.2d. 711, 715 (5th Cir. 1989) where willfulness has been inferred from the background of the individual, i.e., education and experience; and United States v. Dawes, 874 F.2d 746 (10th Cir. 1989), which addressed the issue and determined that it was proper to accept evidence of the prior timely filing of tax returns in determining willfulness.

The evidence of record fully supported the alternative charges as well. The appellant's admis-sions and the circumstances of the case supported a finding that the appellant's conduct was willful. Specifically, she was a GS-8 employee whose duties required knowledge of the fundamental princi-ples of tax laws. Her testimony disclosed that she was aware of the standards required by Restruc-turing and Reform Act of 1998, and she knew that she could be removed for a willful violation of Section 1203(b) of the Act. She did not show that her failures to and timely and properly follow the tax laws were due to reasonable cause and not to willful neglect.

On its face the Act requires that the prohibited act or omission be committed "in the perform-ance of the employee's official duties" or the penalty of mandatory removal will not apply. Id. As to this, the Board's reviewing court resolved this difficulty in James v. Tablerion, 363 F.3d 1352 (Fed.Cir. 2004), holding that a threat to audit for the purpose of extracting personal gain -- another of the prohibited acts or omissions listed in section 1203(b) -- "made 'in the performance of the em-ployee's official duties' means only that an IRS employee makes the threat." Id., at 1358. For the same reasons cited by the Court, the Judge found that a willful understatement of Federal tax liabil-ity and a failure to timely file a tax return are matters which are "in the performance of the em-ployee's official duties." This means that an IRS employee willfully understates her tax liability, fails to file her returns in a timely manner and fails to comply with tax requirements has committed these acts in the performance of her official duties. See id., at 1357-58. For all of the above reasons, the Judge found that the agency has shown that the appellant willfully violated Section 1203(b). The Judge found that she knowingly failed to file a timely income tax return in 1999, and that she understated her Federal Tax Liability on her 2000 return. The Judge found further that even if ac-tual knowledge had not been shown, at very least the appellant acted with reckless disregard for the truth by knowingly filing late returns and understating her tax liability. This would supply the requi-site intent, and would also preclude a finding of "reasonable cause" under section 1203(b)(9).

Normally the Board will review an agency's choice of penalty to determine whether it consid-ered all of the relevant factors, such as those enumerated in Douglas, 5 M.S.P.R. at 305-06, and ex-ercised management discretion within tolerable limits of reasonableness. Id., at 306. In this case, deciding official testified that once she had sustained the Section 1203(b) violation alleged in the appellant's case, and the Review Board had ruled out mitigation, she had no choice but to impose the appellant's removal; and for that reason, she did not consider the Douglas factors when choosing a penalty, either with respect to Reason I or Reason II.

As an employee of the agency the appellant was required to adhere to the Standards of Ethical Conduct for Employees of the Executive Branch. Section 2635 of Title Five requires that employees satisfy in good faith their obligations as citizens. There is no question that the IRS requires the pub-lic, including its own employees to timely file their tax returns and truthfully disclose their taxable income. The preponderant evidence established, that for the tax years noted in the proposal to re-move, Reasons 1 and 2, and sustained in the decision, the appellant willfully filed an untimely re-turn and under-estimated her tax liability. In instances such as this, the agency had good reason to discipline the appellant and removal based on sustaining the alternate charge was warranted.

The appellant argued that removal was too severe for the misconduct and the agency did not seem to take into consideration the fact that she had no prior discipline. However, in this case, re-moval is required by law. The system created by Congress to discourage IRS employees from en-gaging in certain forms of misconduct makes sense. The statute sets forth a strict rule of conduct and if any of the prohibited acts are committed, removal is the penalty, subject only to amelioration by the agency itself, with no judicial review of the decision to grant or withhold relief from the de-fault penalty of removal.
There is a question of whether it is proper to apply Board caselaw in cases such as these, but it is one that the Court has dealt with. In an unrelated case, James v. Tablerion, 363 F.3d 1352 (Fed.Cir. 2004), the Court held that a threat to audit for the purpose of extracting personal gain -- another of the prohibited acts or omissions listed in section 1203(b) -- "made 'in the performance of the em-ployee's official duties' means only that an IRS employee makes the threat." Id., at 1358. For the same reasons cited by the Judge found that failure to timely file a Federal Tax Return and willful understatement of Federal tax liability is in the performance of the employee's official duties and the charge means that an IRS employee like the appellant "willfully" fails to file a timely return and willfully understates her tax liability.

Here, the mitigating information were considered and rejected by the Commissioner before the action took place. The application of Douglas in this setting would conflict with "the policy of strict liability" established under the Act, whereby "if any of the prohibited acts are committed" -- including willful underreporting of Federal tax liabilities, without reasonable cause -- "removal was the penalty, subject only to amelioration by the agency itself, with no judicial review of the decision to grant or withhold relief from the default penalty of removal."

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.

Misuse of Government Credentials

Judge upholds demotion and 14-day supsension of supervisor for presenting credentials to police officer at a traffic stop. Although the supervisor never affirmatively requested a favor from the officer, the Judge agreed with the agency that mere self-identification by a law enforcement officer can result in favorable treatment by another law enforcement officer.

TAMIKO F. STROUD v. DEPARTMENT OF THE TREASURY

DOCKET NUMBERS CH-0752-05-0082-I-1, CH-0752-04-0614-I-1

2005 MSPB LEXIS 1812

March 28, 2005

INTRODUCTION

The appellant filed an appeal from an action effected on June 21, 2004 that suspended her for fourteen calendar days and demoted her from the position of Supervisory Special Agent, GS-14, to the position of Special Agent, GS-13 for failing to secure her government-issued firearm and misusing her government credentials. The Administrative Judge affirmed the agency's action suspending and demoting the appellant.

SUMMARY (Misuse of Government Credentials Charge)

The supporting specification alleges that on January 2, 2002, the appellant was a passenger in a car driven by Dexter Harrison. When the car was pulled over by the police, the appellant displayed her government credentials to the policeman even though she had not been requested her to identify herself.

Police Officer Mike Dempsey, Woodridge Police Department, stated in his investigatory interview that, upon stopping the vehicle in which the appellant was a passenger, the appellant "immediately identified herself as a federal agent" and "on her own initiative" displayed her credentials. He stated he had not requested her to identify herself. The appellant's statements differ from that of the police officer. Officer Dempsey stated he never requested identification from the appellant but that the appellant immediately identified herself as a federal agent.

In her written reply, the appellant appears to agree that she acted in an affirmative manner to identify herself as a federal agent. Even assuming it as necessary for the appellant to display her drivers license, it seems likely she could have done so without revealing her government employment.

The appellant correctly notes there was no evidence she affirmatively requested a favor from the officer. As stated by the Deciding Official, however, mere self-identification by a law enforcement officer can result in favorable treatment by another law enforcement officer. For this reason, a motive existed for the appellant to reveal her employment status. The Deciding Official testified that special agents such as the appellant are well aware they are not to use their government credentials for personal gain.

The Administrative Judge found that, more likely than not, the appellant improperly revealed her government credentials to the police officer. Because misuse of government credentials constitutes an infraction warranting disciplinary action to promote the efficiency of the service, the charge was sustained.

Regarding the penalty the deciding official testified he considered the "Douglas factors" in his consideration of the penalty to be issued. He noted the appellant had been employed for thirteen years with a record of average performance. The appellant had a past disciplinary record consisting of a thirty-day suspension based on her improper use of a government vehicle. The Deciding Official further testified that, as a supervisory law enforcement official, the appellant was held to a very high standard of conduct. See Luongo v. Department of Justice, 95 M.S.P.R. 643, 648 (2004). He stated the appellant was well aware she engaged in improper conduct and there were no mitigating factors lessening the seriousness of that conduct. He further stated he lost trust in the appellant's ability to perform the duties of her position and, for this reason, it was necessary to demote her from her supervisory position and suspend her.

The Administrative Judge found the agency appropriately considered all relevant factors in determining the penalty to be imposed and that its exercise of disciplinary discretion was well within reasonable limits. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981).

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.

Accepting Gifts from Prohibited Sources

Below is a summary of a MSPB case in which a supervisor solicited drug samples from a prohibited source.  Two points of interest in this case are one, that on appeal the Board sustained all of the agency's charges and did not find the Standards of Conduct a mere technicality like the administrative judge; and two, the MSPB credited the agency's ethics training program on putting the employee on notice regarding potential violations in this area.

ALAM SHER, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.

 

DOCKET Number BN-0752-02-0027-I-2

MERIT SYSTEMS PROTECTION BOARD

97 M.S.P.R. 232; 2004 MSPB LEXIS 1824

September 16, 2004

BACKGROUND

Effective November 4, 2001, the agency demoted the appellant from his GS-13 Chief of Pharmacy Service position at its facility in Togus, Maine (Togus), to a GS-12 Clinical Pharmacist position, and suspended him for 45 days, based on charges that he solicited and received free pharmaceuticals in violation of 5 C.F.R. § 2635 and that he refused to provide information relating to an administrative investigation in violation of 38 C.F.R. § 0.735-12. He filed his appeal, raising affirmative defenses of discrimination based on religion (Muslim) and national origin (Pakistani). The administrative judge issued an initial decision that sustained the charges of soliciting and receiving free pharmaceuticals, but did not sustain the charge of refusing to provide information in an administrative investigation. The administrative judge further found that the appellant did not establish his affirmative defenses of religious and national origin discrimination. The administrative judge did not affirm the penalty of demotion and suspension, finding that no penalty was warranted under the circumstances of the case. The agency filed a petition for review. The Board granted the agency's petition for review, sustained the initial decision as to the charges that the administrative judge upheld, but reversed the initial decision as to the charge that the administrative judge did not sustain and the penalty determination.

ANALYSIS

According to the notice of proposed removal, on June 16 and August 16, 2000, the appellant signed a "Free Goods Requisition" form to receive the drug Lipitor in 10-mg., 20-mg., and 40-mg. doses. In December 2000, he informed a Hospital Representative for Pfizer, Inc., that he was taking 40 mgs. of Lipitor and asked the representative if he had any 40-mg. Lipitor samples. On January 25, 2001, he informed a Pfizer salesman that he was using Lipitor in the 40-mg. dosage and asked if the salesman had some Lipitor for him. On January 29, 2001, agency investigators found, in the appellant's briefcase and his office, 672 10-mg. tablet samples of Lipitor which he had received from the Pfizer hospital representative and the salesman. The agency charged that these actions violated 5 C.F.R. § 2635, Standards of Ethical Conduct for Employees of the Executive Branch, Subparts A and B, General Provisions and Gifts from Outside Sources.

In sustaining the charges, the administrative judge found that the Lipitor met the definition of a "gift" and that Pfizer was a "prohibited source," i.e, an entity doing business with the agency. Since the appellant did not challenge the administrative judge's determination to sustain these charges and, after reviewing the record, the Board sustained the charges pertaining to soliciting and receiving Lipitor.

The Board, however, reserved and sustained the charge of refusing to provide information in an administrative investigation. The Board cited to Weston v. Department of Housing & Urban Development, 724 F.2d 943, 947-48 (Fed. Cir. 1983), in which the court stated:

The fifth amendment privilege against compulsory self-incrimination may be asserted in an administrative investigation to protect against any disclosure that an individual reasonably believes could be used in his own criminal prosecution or could lead to other evidence that might be so used. Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed. 2d 212 (1972). In addition, the threat of removal from one's position constitutes coercion which renders any statements elicited thereby inadmissible in criminal proceedings against the party so coerced. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed. 2d 562 (1967). Nevertheless, when an employee is once granted immunity through this so-called Garrity exclusion rule, he may be removed for failure to cooperate with an agency investigation. Gardner v. Broderick, 392 U.S. 273, 278, 88 S. Ct. 1913, 1916, 20 L. Ed. 2d. 1082 (1968); [**9] Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 284-85, 88 S.Ct. 1917, 1919-20, 20 L.Ed. 2d 1089 (1968). Invocation of the Garrity rule for compelling answers to pertinent questions about the performance of an employee's duties is adequately accomplished when that employee is duly advised of his options to answer under the immunity granted or remain silent and face dismissal.

The Board found that the U.S. Attorney’s Office sufficiently provided the appellant with "use" immunity from prosecution under the Garrity rule based on any statement that he made during any subsequent interview regarding "the conduct for which [the appellant] was being considered for prosecution." There was no other activity that the agency was investigating. Furthermore, the assurance came from the U.S. Attorney and not merely from the agency.

In light of sustaining all the charges, the Board found that the agency's penalty of a demotion and a 45-day suspension was reasonable under the circumstances.

When the Board sustains all of an agency's charges, it will give deference to the agency's decision regarding a penalty unless that penalty exceeds the range of allowable punishment specified by statute or regulation, or the penalty is "so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion." Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987); see Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999) (the Board may reject those penalties it finds abusive, but may not infringe on the agency's exclusive domain as workforce manager). This is because the Board must defer to the agency's discretion in exercising its managerial function of maintaining employee [**15] discipline and efficiency. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, P20 (2001); Lewis v. General Services Administration, 82 M.S.P.R. 259, P5 (1999). "It is not the Board's function to displace management's responsibility, but to ensure that managerial judgment has been properly exercised." Lewis, 82 M.S.P.R. 259, P5.

Mitigation of a penalty by the Board is only appropriate where the agency failed to weigh the relevant factors, or the agency's judgment clearly exceeded the limits of reasonableness. Id. The deciding official need not show that he considered all the mitigating factors in determining the penalty. Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 135 (1997). The Board will independently weigh the relevant factors only if the deciding official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon a penalty. Id. If the penalty is unreasonable, the Board will mitigate it to the maximum reasonable penalty. Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 651 (1996).

The administrative judge concluded that the appellant "could not be faulted for honestly believing that there was absolutely nothing wrong with the practice." The administrative judge further credited the testimony of several witnesses that they did not consider samples of drugs as a gift. He found that soliciting and receiving the samples constituted no more than a technical violation of the regulations. He found that there was no evidence that the agency's reputation or integrity was affected or that any adverse consequence resulted from the appellant's actions. The administrative judge determined that no penalty was warranted. The Board did not agree.

The Board found that the deciding official properly evaluated the Douglas factors. The regulation at issue, Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. § 2635, Subpart B, Gifts from Outside Sources, under which the agency charged the appellant, provides that "an employee shall not, directly or indirectly, solicit or accept a gift . . . from a prohibited source." n3 5 C.F.R. § 2635.202(a)(1). A "gift" is defined as "any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value." 5 C.F.R. § 2635.203(b). A "prohibited source" includes "any person who . . . does business or seeks to do business with the employee's agency." 5 C.F.R. § 2635.203(d)(2).

n3 An employee may accept an unsolicited gift of $ 20 or less in value "per source per occasion, provided that the aggregate market value of individual gifts received from any one person under the authority of this paragraph shall not exceed $ 50 in a calendar year." 5 C.F.R. § 2635.204(a). The appellant has not denied that he solicited the sample Lipitor tablets. Thus, the $ 20 exception does not apply.

The record showed that the appellant attended a training session on the Standards of Ethical Conduct and received a pamphlet explaining those Standards generally in August 2000. The agency submitted a copy of the pamphlet that was distributed at the training session. Among the fourteen Principles of Ethical Conduct for Federal Employees set forth in the pamphlet is the following: "An employee shall not, except as permitted by the Standards of Ethical Conduct, solicit or accept any gift or other item of monetary value ...." The pamphlet describes a gift as "generally, anything of monetary value." The pamphlet further gives examples of unsolicited gifts that may be accepted, including a $ 15 pen from a person whose license application the employee is processing, a birthday gift from a brother, and tickets worth $ 16 to a show from a company that applied to the agency for a grant. The pamphlet does not specifically mention drug samples or samples of any kind from a company doing business with the agency. Additionally, witnesses testified without exception that they did not recall the ethics training session including any information that such gifts were prohibited. Even so, The Board found that the plain language of the Standards and the explanatory pamphlet were sufficient to put employees on notice that they were not to solicit items of monetary value from companies doing business with the agency, including pharmaceutical companies.

The agency's table of penalties provided that a penalty from a reprimand to a removal is appropriate for a first offense of accepting gifts or gratuities from individuals or firms doing business or having contractual relations with the agency. Additionally, the United States Court of Appeals for the Federal Circuit has held that removal is warranted when an employee fails to participate in an agency investigation when, as here, criminal prosecution had already been declined. Weston, 724 F.2d at 946-48. Further, the Board has found removal to be a reasonable penalty where the appellant improperly accepted cash payments and interfered with a an official investigation, despite his 17 years of federal service and lack of prior discipline. Hayes v. Department of Labor, 65 M.S.P.R. 214, 219-20 (1994). Considering the circumstances of this matter, and the relevant case law, The Board found that a demotion and 45-day suspension is a reasonable penalty for the appellant's misconduct.

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.

Misuse of Government Credit Card

Below is a summary of a case in which the Board modified an Administrative Judge's mitigation of a penalty to a 60-day suspension and sustained the removal. See Brown v. Department of Army, AT-0752-03-0905-I-1 (January 9, 2004), which is posted under MSPB. This case serves as another example to Agencies to appeal misuse of government resources cases to the Board if the Administrative Judge mitigates the penalty in the case. You probably have a good chance of getting the penalty sustained by the Board.

TOMMY L. BROWN, Appellant, v. DEPARTMENT OF THE ARMY, Agency.

DOCKET NUMBER AT-0752-03-0905-I-1

MERIT SYSTEMS PROTECTION BOARD

96 M.S.P.R. 232; 2004 MSPB LEXIS 751

May 28, 2004

BACKGROUND

On August 31, 2003, the agency removed the appellant from the position of WG-7 Materials Handler at Ft. McPherson, Georgia, for "unauthorized use of [his] Government Issued Travel Card, and failure to observe a written order, rule, or procedure." The Administrative Judge (AJ) found that the agency had charged the appellant with unauthorized use of a government credit card, specifically with making 67 unauthorized charges between February 21 and May 9, 2003; that, as of May 2003, he was over 60 days late in paying $ 61.50; and that he had a balance of $ 1,247, mostly for unauthorized charges. Pursuant to the appellant's stipulation, the AJ found that the agency proved the charge.

The AJ found a nexus between the charged misconduct and the efficiency of the service. She concluded, however, that the agency failed to prove that removal was a reasonable penalty. Therefore, she mitigated the penalty to a 60-day suspension. Board granted the PFR and sustained the removal

ANALYSIS

The agency contended that the AJ did not appropriately defer to the agency's primary discretion to determine the penalty. It asserts that deciding official LTC Daniel Worth considered the relevant factors in deciding to remove the appellant. The Board agreed with the agency.

The AJ acknowledged the many aggravating factors, which Worth considered, in this case. She found that misuse of a government credit card is a serious offense; the offense was compounded by the appellant's failure to timely pay the unauthorized charges; the appellant was clearly on notice that the government credit card was to be used only for government expenses; he had a prior disciplinary record consisting of a 60-day suspension for unauthorized use of a government vehicle, unauthorized use of official time to conduct personal business, and failure to provide truthful responses to his supervisor; and the agency had been subjected to negative press for widespread abuse of its credit card program.

The record did not support the AJ's finding that, nonetheless, several mitigating factors warranted her decision not to defer to the agency's penalty determination. The AJ found that Worth improperly considered the appellant's 26 years of government service, some of which were supervisory, as a negative factor on the basis that the appellant "should have known better," and that, although the appellant was a Warehouse Foreman from 1991 2001, there was no evidence that he either had a credit card during that time or was responsible for overseeing others' use of credit cards. She also found that Worth erred in finding that the appellant's performance was not a mitigating factor. She further found that, contrary to Worth's statement, the appellant did not hold a fiduciary position, and that the appellant's non-supervisory status was a mitigating factor. In addition, the AJ found that Worth erred in apparently not considering the appellant's personal circumstances -- divorce, eviction, and bankruptcy -- to be mitigating factors.

In evaluating whether a penalty is merited, however, the Board examined, first and foremost, the nature and seriousness of the misconduct and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or frequently repeated. Dogar v. Department of Defense, 95 M.S.P.R. 52, P19 (2003). There is no question that the appellant's offense was serious. See, e.g., Doran v. Department of the Interior, 11 M.S.P.R. 270, 273 (1982). Further, the appellant testified that he knew that his actions were "wrong." Moreover, Worth testified that the appellant misused his credit card at least 67 times, he allowed his account to remain delinquent for an extended period of time, and he had still not paid off the bill when Worth made the decision to remove him. Worth also testified that the appellant was in a position in which he was responsible for handling and managing property of value and that the offense involved misuse of property, i.e., government funds.

In that regard, Worth did not specifically testify that he considered the appellant's position to be fiduciary. Rather, in reviewing the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), for evaluating the reasonableness of the penalty, he testified, "the Employee's job -- type of employment including supervisory fiduciary role. Again, the loss of trust that I had in his ability to manage property." His testimony shows that he was referring to his loss of confidence in the appellant's ability to perform his job, an aggravating factor not considered by the AJ. See, e.g., Luciano v. Department of the Treasury, 88 M.S.P.R. 335, P22 (2001), aff'd, 30 Fed. Appx. 973 (Fed. Cir. 2002).
In addition, Worth specifically testified: "I considered every factor that I felt to be pertinent in this situation, which was almost all of the factors." Although Worth noted that the appellant's length of time as a government employee, including as a supervisor, meant that "he should be well aware of the rules," his testimony does not establish that he considered the appellant's length of service to be an aggravating factor. Indeed, Worth later testified that he considered the appellant's long tenure of service and the tensions and stress of his position to be mitigating factors.

Moreover, Worth testified that the appellant did not show remorse for his admitted misconduct and did not exhibit potential for rehabilitation. When asked whether it was a violation to use the travel card for personal expenses, however, the appellant testified, "it's a violation if they catch you." The appellant's response and a review of his testimony in general support Worth's finding that the appellant did not exhibit rehabilitation potential. Lack of such potential is another aggravating factor in determining the penalty. See, e.g., Luciano, 88 M.S.P.R. 335, PP22-23.

The Board also found that Worth did not err to the extent that he declined to view the appellant's personal problems to be mitigating circumstances. In addition, Worth testified that he considered lesser penalties, including a suspension. Because the appellant had already been suspended for 60 days, though, Worth believed that a suspension was insufficient to deter similar conduct in the future. Tr. at 21, 34-35. Again, the Board found no error in Worth's determination. See, e.g., Luciano, 88 M.S.P.R. 335, PP22-23.

Misuse of Government Computers: Quillen v. Treasury

Merit Systems Protection Board sustains removal of Treasury employee after the Administrative Judge mitigated the agency's removal to a 90-day suspension.

STEPHEN J. QUILLEN, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.
DOCKET NUMBER DC-0752-03-0012-I-1
MERIT SYSTEMS PROTECTION BOARD
2004 MSPB LEXIS 736
May 24, 2004

Detailed summary follows:

BACKGROUND

Upon receipt of an anonymous complaint, the agency's Office of Inspector General (OIG) conducted an investigation of the appellant. The agency subsequently removed the appellant from his GS-0334-13 Computer Specialist position effective September 6, 2002, based on two charges: (1) Misuse of government office equipment, with three supporting specifications; and (2) misuse of official government time. The misconduct allegedly occurred between October 1999 and July 2002.

In the initial decision following a hearing, the administrative judge (AJ) found that the agency proved by preponderant evidence its two charges and that there was a nexus between the charged misconduct and the efficiency of the service. However, the AJ found that the appellant's limited use of his government computer to copy his commercial business computer files from one floppy disk to another floppy disk did not constitute sufficient evidence to sustain the agency's third specification in support of its first charge.
Because the AJ did not sustain all of the agency's specifications in support of its charges, she also reviewed the agency's removal penalty to determine whether it remained within the bounds of reasonableness. The AJ found that the agency placed too great a weight on the charged misconduct because the agency did not prove some of the alleged misconduct and it did not present sufficient evidence to support the "magnitude" of some of the misconduct that was proven. The AJ also found that: The appellant had "absolutely no prior disciplinary incidents of any kind on his record before this action"; he had several years of service with superior or outstanding performance evaluations; and he had a good potential for rehabilitation. Thus, the AJ determined that a 90-day suspension was the maximum reasonable penalty in this case.

ANALYSIS

The agency's third specification in support of its first charge -- misuse of government office equipment -- stated, "Despite receiving a direct order in April 2002 to cease and desist from any misuse of Government property, you have continued to use the Government office equipment to support your private commercial business." The AJ found it undisputed that Roger Kodat, Deputy Assistant Secretary in the agency's Office of Governmental Financial Policy, had issued the appellant an April 2, 2002 memorandum advising him that, if he was engaging in the misuse of government property or was using his public office for private gain, he was to cease and desist from that type of behavior immediately. The AJ found that the agency produced records that allegedly showed on-duty computer activity related to the appellant's comic book business from April 2002 through July 24, 2002. However, the AJ accepted the appellant's testimony that the agency's evidence only showed that he had copied his commercial business computer files from one floppy disk to another floppy disk using his government computer during that time period.. The AJ found that this use of government equipment was insufficient to support the agency's third specification because the agency permitted limited personal use of government property when such use involved minimal additional expense to the government and did not overburden any of the agency's information resources.

Treasury Directive 87-04, upon which the AJ relied in finding that the appellant's admitted use constituted authorized "limited personal use," provides, in part, that "employees are specifically prohibited from the pursuit of private commercial business activities or profit-making ventures using the government's office equipment." Moreover, regardless of Treasury Directive 87-04, the appellant was directed in the agency's April 2, 2002 memorandum immediately to cease and desist his misuse of government property and use of public office for private gain. The Board found that the agency's evidence, when coupled with the appellant's admitted use of his government computer in support of his commercial business following the agency's April 2002 memorandum, was sufficient to sustain the agency's third specification in support of its first charge and that the AJ erred in finding to the contrary.

In evaluating the penalty, the Board considered, first and foremost, the nature and seriousness of the misconduct and its relationship to the employee's duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. The appellant's own admissions during his OIG interview established the seriousness of the charged misconduct, the fact that the misconduct was knowing and intentional, and the fact that the misconduct was on-going for an extended period of time. The appellant admitted that he knew that using his government computer for the purpose of viewing pornography on government time was prohibited, but he did it anyway. He admitted to using government provided internet, e-mail, and telephone service inappropriately for non-work related purposes, and he admitted to knowingly falsifying his timesheets as a result of his running his private business interest during work hours, such that he "stole" an estimated $ 63,106.77 in salary. Further, the appellant's hearing testimony established that, even after the agency's April 2, 2002 memorandum ordering him immediately to cease and desist his alleged misuse of government property and use of public office for private gain, he continued to use his government computer to copy his commercial business files. The Board found that the appellant's admissions and the circumstances of this case show that the appellant's misconduct was serious, intentional, repeated, and directly related to his duties, position, and responsibilities as a Computer Specialist.

The AJ found that the appellant had no prior disciplinary actions on his record. The Board found this fact to be of little weight here, however, because the notice of proposed removal indicated that the appellant had been previously counseled regarding his personal use of government office equipment and the deciding official considered the clarity with which the appellant was on notice of the impropriety of such conduct, as well as his lack of a prior disciplinary record. Accordingly, the Board affirmed the agency's removal action.

MSPB-Conflict of Interest Case

The following is a long summary of a recent case in which the agency appealed an adverse finding by an administrative judge. The facts are complicated and it would be worth your time to download the full text of the decision. The case is instructive on how to prove ethics violations with circumstantial evidence and demonstrates how financial disclosure filers can be held accountable for not reporting all their reportable assets and liabilities on their financial disclosure report.

GERALDINE SUAREZ, Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Agency.

DOCKET NUMBER PH-0752-03-0253-I-1

MERIT SYSTEMS PROTECTION BOARD

2004 MSPB LEXIS 743

May 26, 2004

SUMMARY OF DECISION

The agency removed the appellant from her GS-11 Single Family Housing Specialist position with the Department of Housing & Urban Development (HUD), Real Estate Owned (REO) Branch, based on two charges. The first charge was that she violated three provisions of the Office of Government Ethics (OGE) Standards of Ethical Conduct for Employees of the Executive Branch and one provision of the agency's Supplemental Standards of Ethical Conduct with respect to her involvement in a real estate transaction concerning a HUD-owned property ostensibly purchased by Katherine Bowman. The second charge was "Falsification of Financial Disclosure Report/Concealment of a Financial Interest" with respect to the appellant's failure to disclose on required annual financial disclosure forms either her ownership interest in the disputed property or a loan she took out to assist with the purchase and improvement of the property.

After affording the appellant her requested hearing, the administrative judge (AJ) reversed the removal action. The AJ found that the appellant did not violate either the government-wide or agency Standards of Ethical Conduct because there was no evidence that the appellant provided Ms. Bowman with any non-public information or afforded her preferential treatment, engaged in any conduct that created the appearance of a conflict of interest, or acquired a financial interest in the property. The AJ further found that the appellant was not required to disclose her interest in the property because she derived no income from it, and that she had a good faith belief that she was not required to disclose the loan because she believed that the loan balance was less than the reporting threshold of $ 10,000 during the reporting period. The AJ found, therefore, that the agency did not prove either charge by preponderant evidence. The Board REVERSED the initial decision, and AFFIRMED the agency's removal action.

In essence, the AJ found that this case was characterized by "innuendo and inference," some of which she found "compelling," but that, in the end, there was no direct evidence that the appellant engaged in any wrongdoing. To the extent that the AJ discounted the agency's evidence because it was circumstantial, rather than direct, this was error. The agency was only required to prove its case by preponderant evidence, that is, by the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely true than not true. 5 C.F.R. § 1201.56(c)(2). In a case such as this, were there are only two people who were in a position to provide direct evidence in this case, one of whom is deceased, and the other of whom is the appellant, the agency would have to rely on circumstantial evidence to prove its case. The mere fact that there are no eyewitnesses to some of the crucial events does not, in and of itself, mean that the Board cannot draw whatever inferences that the evidence suggests. If the agency provided enough circumstantial evidence to lead the Board to conclude that it is more likely than not that the appellant committed the charged misconduct, this is sufficient to meet the agency's burden of proof, regardless of the absence of any direct evidence. See Smith v. U.S. Postal Service, 69 M.S.P.R. 420, 425 (1996) (circumstantial evidence can constitute proof by preponderant evidence).

The Board found, contrary to the AJ, that the agency proved by a preponderance of the circumstantial evidence that the appellant provided Ms. Bowman with nonpublic information that furthered the private interest of the appellant and/or Ms. Bowman. The appellant certainly knew, through the course of performing her regular duties, what the agency's minimum threshold for accepting bids was. The fact that Ms. Bowman's bid initially did not meet this threshold, but then was altered to exceed to threshold, is compelling circumstantial evidence that Ms. Bowman knew what the threshold was and increased her bid to meet the threshold. Because the threshold was not known to the public, and because Ms. Bowman had a spouse-like relationship with the appellant and was living with the appellant at the time, the Board found it more likely true than not true that Ms. Bowman learned from the appellant what the threshold was.

This was not an arm's length business transaction between casual friends. The appellant and Ms. Bowman were engaged in what the appellant described as a spouse-like relationship. They lived together and had a joint bank account. According to two of Ms. Bowman's relatives, the appellant and Ms. Bowman decided to buy a house together but put it in Ms. Bowman's name since the appellant was a HUD employee and could not put it in her own name. The neighborhood they chose was the neighborhood where the appellant grew up and still lived and where much of her family still lived. The property was paid for entirely by the appellant. The appellant was not completely truthful on her loan application about the purpose of the loan she obtained from the credit union. Ms. Bowman and the appellant concealed that they were living together on the bid application for the property. The amount of the bid was changed to ensure that it exceeded the agency's threshold. Ms. Bowman never repaid any of the $ 20,000 loan, nor even any interest on the amount, although the appellant herself was paying 13.9% interest on the loan to her credit union. Ms. Bowman then deeded the property to the appellant for one dollar within approximately one year of acquiring it. After the appellant acquired the property, she continued to conceal her interest in the property from the agency by not reporting her ownership interest in it or the loan she took out to pay for it on her financial disclosure form.

The second charge was that the appellant falsified her financial disclosure report and concealed a financial interest by not reporting on her financial disclosure form in October 2001 her ownership interest in the property and her liability to the credit union for the remaining balance on the loan. To sustain a falsification charge, the agency must prove by preponderant evidence that the appellant knowingly supplied incorrect information with the intention of defrauding, deceiving, or misleading the agency. Naekel v. Department of Transportation, 782 F.2d 975, 977 (Fed. Cir. 1986); Mendez v. Department of the Treasury, 88 M.S.P.R. 596, P15 (2001). Intent is a state of mind and is generally proven by circumstantial evidence. Mendez, 88 M.S.P.R. 596, P15; Delancy v. U.S. Postal Service, 88 M.S.P.R. 129, P4 (2001). The Board will examine the totality of the circumstances in determining whether the agency has proven intent. Mendez, 88 M.S.P.R. 596, P16; Stein v. U.S. Postal Service, 57 M.S.P.R. 434, 438 (1993). An incorrect statement coupled with the lack of any credible explanation or contrary action by an employee can constitute circumstantial evidence of intent to deceive. Stein, 57 M.S.P.R. at 439.

It is not disputed that the appellant disclosed neither her ownership of the property nor her debt to the credit union. The AJ found that the appellant was not required to report her ownership of the property because she did not consider it to be an investment property in that she derived no income from it. In support of her contention that she was not required to report her ownership interest, the appellant relied on the instructions to OGE Form 450, which require the disclosures of "all assets held for investment or for production of income." In any event, the appellant testified that she did not consult the instructions when she completed the form, although she conceded that the instructions were available to her. Because she did not rely on the instructions at the time, her attempt to rely on an incomplete copy of the instructions at the hearing is not probative of whether she concealed her interest with the intent to deceive the agency. Moreover, OGE Form 450 on its face requires that all assets with a fair market value of more than $ 1,000 must be disclosed unless the asset is the employee's personal residence. The Board found, therefore, that the appellant was required to disclose her ownership interest in the property. Cf. Connett v. Department of the Navy, 31 M.S.P.R. 322, 326-27 (1986) (where the financial disclosure form stated on its face that all interests in real property except for the employee's personal residence must be disclosed, the appellant's failure to disclose interest in rental property was culpable), aff'd, 824 F.2d 978 (Fed. Cir. 1987) (Table).

The appellant contended that she was not required to report the loan because, on the date she completed the disclosure form, the loan balance was less than $ 10,000. On its face, OGE form 450 requires the disclosure of all liabilities with a balance of more than $ 10,000 at any time during the reporting period, except for a mortgage on the employee's primary residence, liabilities owed to family members, and loans for automobiles or household furniture or appliances. The reporting period is the 12-month period preceding the completion of the disclosure form. The agency submitted evidence, which the appellant does not attempt to refute, showing that the loan balance was approximately $12,000 at some point during the reporting period. The Board found, therefore, that the appellant was obligated to disclose the existence of the loan.

Contrary to the conclusions of the AJ, the Board found that the appellant had every incentive to conceal her association with the property from the agency. The appellant had engaged in conduct which, at a minimum, created the appearance of impropriety. Given the unequivocal instructions on the OGE Form 450 itself, the appellant's ownership of the property and her loan from the credit union should have been disclosed. The appellant's post-hoc explanation that the supplemental instructions permitted her not to disclose them, when she did not consult the instructions at the time and has not submitted a complete copy of the instructions, is not credible. Moreover, as noted above, the appellant and Ms. Bowman had taken pains to conceal the appellant's association with the transaction at the time of purchase. The obvious inference from this course of events is that the appellant did not disclose her interest or her liability because she wanted to continue to conceal from the agency that such interest and liability existed in order to continue to conceal her misconduct. Cf. Forma v. Department of Justice, 57 M.S.P.R. 97, 104 (the obvious inference to be drawn from the appellant's misrepresentation of the duration of his employment with one firm was that he did not want the agency to find out about his employment with another firm), aff'd, 11 F.3d 1071 (Fed. Cir. 1993) (Table). Considering the totality of the circumstances, the Board found that the appellant omitted her ownership of the property and her obligation to the credit union with either a reckless disregard for the truth or with a conscious purpose to avoid the agency's learning the truth. See Delancy, 88 M.S.P.R. 129, P6.

The penalty of removal was reasonable. 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).

The deciding official, Director, Home Ownership Center, testified that he is very concerned with the integrity of the HUD home ownership program. He explained that his office sells approximately 10,000 properties per year at an average dollar value of $ 72,000 each, and that the agency sets a high standard for its employees to ensure that public trust in the integrity of the program is maintained. He also testified that it is very important that the agency's employees avoid the appearance of a conflict of interest. More specifically, he testified:

Trust is very important throughout the organization. We're dealing with huge sums of money. We're dealing with contractors that have huge sums of responsibility. And we just have to ensure that the public has the utmost confidence in what we do and how we do it and how we arrive at our decisions. And that trust had vanished in the situation of [the appellant].

Falsification is a serious offense because it strikes at the very heart of the employee-employer relationship. Forma, 57 M.S.P.R. at 105. In addition, the appellant's misconduct calls into question the integrity of the agency's performance of its mission to insure mortgages and, when forced to foreclose on insured properties, to sell the property at the highest net return to the mortgage insurance fund. Cf. Modrowski v. Department of Veterans Affairs, 252 F.3d 1344, 1349-50 (Fed. Cir. 2001) (the appellant's participation in the sale of agency-owned real property to his son-in-law exposed the agency to potential public criticism for self-dealing). Creating the appearance of a conflict of interest constitutes a serious breach of trust. Coons v. Department of the Navy, 15 M.S.P.R. 1, 5 (1983).

The agency regarded the appellant as an excellent performer. Her performance ratings were better than satisfactory, and she received a number of annual performance awards and occasional special act awards. However, these mitigating factors do not outweigh the seriousness of the offense. See Gonzalez v. Department of the Air Force, 51 M.S.P.R. 646, 654 (1991) (despite the appellant's 24 years of service with no disciplinary record, removal was appropriate penalty for the appellant's use of his position for personal gain); Connett, 31 M.S.P.R. at 327-28 (the appellant's long and satisfactory service record was outweighed by the seriousness of the conflict of interest charge); but see Marler v. Department of Veterans Affairs, 58 M.S.P.R. 116, 123-24 (1993) (60-day suspension was appropriate penalty for employee with 39 years of service and no prior disciplinary record where the employee's prohibited financial interest was not directly related to any misuse of knowledge or authority connected with his official duties, he did not attempt to conceal his interest, and was forthcoming with information during the agency's investigation). Under the circumstances of this case, therefore, the Board found that the penalty of removal was reasonable.

Misuse of Gov't Stationary

103 FMSR 343
103 LRP 35539
Lori A. Sutton v. Department of Justice
U.S. Merit Systems Protection Board
DE-1221-00-0213-W-1
DE-1221-00-0276-W-1
August 1, 2003

Case Summary

The agency removed GS-11 administrative services specialist decision based on her altering a personal letter by her supervisor regarding the release of his son's killer. She placed the letter on Department of Justice stationary, copied his signature onto the letter, and then sent it out in franked agency envelopes directed to members of the judicial community, the Federal Public Defender's Office, and a law school dean, without the supervisors knowledge or consent. Additionally, she made misrepresentations to management about the matter during the ensuing investigation. The supervisor had prepared the letter in his personal capacity and had sent copies in nongovernment envelopes with postage at his personal expense to individuals in the law enforcement community (but not judicial community) expressing his disagreement with judicial actions to free the individual charged with shooting and killing his son. After supervisor issued the appellant a letter of reprimand on a unrelated matter, the appellant altered Easter's letter by, inter alia, noting Easter's position as an employee of the U.S. Attorney's Office; she then cut, pasted, and copied Easter's signature to the altered letter; and sent the altered letters in franked government envelopes to various individuals. During an initial investigative interview, the appellant denied having taken such actions under oath but later admitted she had. As a result of the appellant's actions, the agency received concerned inquiries from several recipients, including federal judges. The Board found that appellant's misconduct was egregious and possibly even criminal, given her use of franked government envelopes for such unauthorized purposes.

Downloading Pornography

103 LRP 16369
RICHARD A. VOGEL, Jr., Appellant, v. NATIONAL AERONAUTICS AND SPACE ADMIN, Agency.
DC-0752-03-0134-I-1
March 27, 2003

Case Summary

The appellant was employed as an Industrial Hygienist, GS-690-14, at the Langley Research Center, National Aeronautics and Space Administration (NASA), Hampton, Virginia. By letter dated September 11, 2002, the agency proposed his removal for misuse of his government computer, namely, using the internet to view pornographic websites while at work. The notice of proposed removal cited NASA policy regulations allowing limited personal use of the internet but in no circumstances use of the internet to access sexually explicit material. The notice also cited the appellant's previous 14-day suspension (mitigated from a proposed 30-day suspension) in March 2002 for the same offense. The appellant made a written reply to the charges in which he acknowledged the seriousness of his misconduct and raised the mitigating factor of his diagnosis and treatment for major depression and obsessive/compulsive disorder. By letter dated October 24, 2002, the deciding official determined that removal was the appropriate penalty.
The deciding official also considered that the appellant occupied a position of trust in the agency. The appellant's position description states that he is a technical expert responsible for providing expert advice and guidance on a broad range of industrial hygiene, safety, and occupational health program activities. He interacts on a personal level with a wide variety of occupational health and safety professionals within the government and private industry, including staff at NASA headquarters, officials in military departments, industry representatives, and contractors. The deciding official noted in his review of the Douglas factors that the appellant had significant contact with the public and represented NASA to outside parties. He also served as the Contracting Officer's Technical Representative on an important contract. Two employees of this contractor observed the appellant's viewing of sexually explicit images on his work computer, leading to the charge that was sustained in this appeal. The board found that in these circumstances, the mitigating factor of the appellant's medical conditions was outweighed by the seriousness of his repeated misconduct, and his failure to heed a prior strong warning. The board thus found that the agency showed that its penalty was within the bounds of reasonableness.

Conducting Business at Work

102 FMSR 5124
Richard L. Biniak v. Social Security Administration
U.S. Merit Systems Protection Board
PH-0752-99-0098-I-2(02/04/02)
February 4, 2002

Before: Slavet, Chairman; Sapin, Vice Chairman; Marshall, Member

Case Summary

Although the agency's deciding official improperly relied on instances of alleged misconduct that were not included in the notice of proposed removal, the Board upheld the appellant's removal for using government resources to operate his personal business while on official government time. The agency removed the appellant from his GS-12 Computer Specialist position based on a charge of using the agency's computer equipment, telephones, envelopes, and e-mail system to operate his personal business while on official government time. The agency accused the appellant of operating a financial planning business on government time using government resources. On appeal, the AJ upheld the appellant's removal after finding the agency's witnesses and documentary evidence more credible than the appellant's denials of wrongdoing. The appellant petitioned for review, contending that the agency denied him due process of law. Specifically, the appellant alleged that the deciding official, in deciding to impose the removal penalty, relied on two incidents of alleged wrongdoing, plus three alleged warnings, that were not included in the notice of proposed removal. The Board first found the agency was not required to list in its proposal notice each instance in which it notified the appellant of agency policies regarding personal use of agency equipment or warned him about such misconduct. Next, the Board found the agency's deciding official improperly relied on instances of alleged misconduct that were not included in the notice of proposed removal. To remedy this error, the Board performed its own penalty analysis and concluded that removal was within the bounds of reasonableness. The appellant was spending an average of three hours per day on personal business over an extended period of time, and he did so despite warnings not to engage in such misconduct, the Board said. The nature and seriousness of the offense, its effect upon supervisors' trust and confidence in the appellant, the clarity within which the appellant was placed on notice of the wrongfulness of this type of misconduct, his lack of remorse, and his poor potential for rehabilitation outweighed the mitigating circumstances of the length of his service and his lack of a previous disciplinary record. Accordingly, the Board sustained the appellant's removal.

EXAMPLES OF MISUSE OF GOVERNMENT TIME & EQUIPMENT

o A review of the appellant's telephone calls between January 5 and June 22, 1998, showed that 166 calls were placed to a computer modem, which connected to an internet service provider (the agency had declined the appellant's requests for a modem). A large number of calls were made to financial investment companies and to individuals whom the appellant identified as clients.

o A search of the appellant's work area on July 14, 1998 disclosed numerous items related to the appellant's financial planning business: a binder in which the appellant maintained records of clients and personal investment portfolio account information; copies of worksheets, spreadsheets and other financial documents; copies of a brochure advertising the appellant's financial planning business; and copies of an investment check-up worksheet.

o A search of the appellant's computer and computer disks disclosed at least 3,378 files on the hard drive of the appellant's computer that were unrelated to government business; there were 2,454 temporary Internet files from January through June 1998 (despite the fact that the appellant's requests for Internet access had been denied); 14 of 21 floppy disks in the appellant's work area contained files related to non-agency activities.

o The hard drive of the appellant's government computer contained a number of applications unrelated to his government work: Quicken, an accounting application; Tax 97 and Turbo Tax; Qmodem, a program to run the modem the appellant hooked up to his government computer; and Generatr and Neurax, programs for horse race handicapping.

o In an interview with agency investigators on July 14, 1998, the appellant admitted that, since he started his financial planning business in 1997, he regularly spent approximately 3 hours per day of official government time on the business. In one e-mail message, the appellant stated that he had put in 50 hours for his personal business during one week, but none for the agency.

Gift Solicitation

102 FMSR 7034
Davis Lewis v. Department of Justice
Federal Circuit Court of Appeals
02-3098 (Fed. Cir.); This is an unpublished decision.
May 13, 2002

THE BOARD PROPERLY UPHELD THE DEMOTION OF THE PETITIONER FOR CONDUCT UNBECOMING AN INS EMPLOYEE AFTER HE IMPROPERLY SOLICITED TICKETS FOR A PROFESSIONAL BASKETBALL GAME AND POSTED A MESSAGE ON AN INTERNET SITE IN WHICH HE IDENTIFIED TWO ASYLUM APPLICANTS.

In his capacity as an INS asylum officer, the petitioner adjudicated and granted the asylum application of Kikembe Mutombo, a professional basketball player who then played for the Denver Nuggets. About two years after granting the asylum application, the petitioner contacted Mr. Mutombo's attorney and requested tickets to a game. When the petitioner arrived at the game to pick up the tickets, he learned they had not been set aside as promised. He then presented his INS credentials and badge, requested to speak with a team manager, and identified himself as a friend of Mr. Mutombo. A Denver Nuggets employee then escorted him to a seat in the arena. More than six years after the incident involving the basketball tickets, the petitioner posted a message to a public forum at an internet site, in which he identified two asylum applicants, including Mr. Mutombo. The agency charged that by posting the message, the petitioner violated a regulation that provided in part that "information contained in or pertaining to any asylum application...shall not be disclosed without the written consent of the applicant." On the basis of both charges, the INS demoted the petitioner from his position of supervisory asylum officer to that of asylum officer. He appealed, and the Board sustained the charges and affirmed the demotion. The Federal Circuit affirmed the Board's decision. The regulation prohibited employees from soliciting or accepting gifts, the court said. Moreover, the Board properly relied on the INS Officer's Handbook, which specifically proscribed "use of official certificates or official titles for other than official purposes." The court also rejected the petitioner's argument that his internet disclosure was harmless because Mr. Mutombo did not hide the fact he had been granted asylum. The regulation proscribing such disclosure made no exception permitting "harmless" disclosure of information relating to asylum applications or disclosure relating to applicants who did not hide the fact they had been granted asylum, the court said. It unequivocally prohibited the disclosure of "information contained in or pertaining to any asylum application" without the written consent of the applicant.

MSPB Cases

For those of you who did not attend the last IEC meeting, I have posted summaries of the two MSPB cases that I passed out at the meeting. The first case involves misuse of a government computer for personal gain and the second case involves misuse of the government credit card. In the first case, the MSPB sustained the agency's removal action. In the second case, the employee got his job back.

104 LRP 3327
THOMAS F. CRUISE, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency
U.S. Merit Systems Protection Board, Boston Field Office
BN-0752-03-0066-I-1
January 15, 2004

CASE SUMMARY

On January 31, 2003, the appellant filed a timely appeal from the action taken by the agency in removing him from the position of Criminal Investigator, GS-1811-13, with the agency's Office of Inspector General (OIG), Office of Investigations, Boston Field Division, for Unauthorized Access of SSA [Social Security Administration] records for Personal Gain and/or the Benefit of Another, Misuse of SSA Resources, and Conduct Unbecoming a Federal Law Enforcement Officer.

OIG had received a letter in September 2001 from Karen Tuttle in which she claimed that the appellant had come to her home and acted in such a manner as to cause her to fear that he might interfere with her Social Security benefits; that the investigation into these claims showed that the appellant's son, Patrick Cruise, had filed a lawsuit stemming from his 1999 hospitalization in which his theory was that Ms. Tuttle's daughter, Shawn Schaefer, who worked at the hospital at which he had been treated, improperly disclosed the record of a test that indicated a positive result for drug use to her husband, Merek Schaefer, who worked at the same office of the U.S. Secret Service, in Miami, Florida as did Patrick; that the appellant performed searches on both the "Autotrak" and the SSA's mainframe computer relative to the Schaefers, including Merek Schaefer's brother Keith Schaefer, and Ms. Tuttle, that were not business-related; and that on July 22 and September 4, 2001, using information he obtained as a result of those searches, he traveled to the Schaefer/Tuttle residence in Maryland to discuss matters related to the pending legal action and his son's theory of the case.

The Judge found no trouble concluding that the penalty assessed by the agency was well within the parameters of reasonableness. Both the proposing and deciding officials testified to the aspects of the charges they found to evidence serious misconduct, as well as to the factors weighing in the appellant's favor, such as his length of service, its high quality, and the awards he won for it. Yet, neither found that a lesser penalty was warranted, given factors such as the serious nature of the misconduct for a law enforcement officer and the direct relationship between the appellant's acts and his job. While law enforcement status does not preclude mitigation of a penalty, Ludlum v. Department of Justice, 87 M.S.P.R. 56, 69 (2000), aff'd, 278 F.3d 1280 (Fed. Cir. 2002), a higher standard of conduct and degree of trust are required of an incumbent of a position with law enforcement duties. See, e.g., Cantu v. Department of the Treasury, 88 M.S.P.R. 253, 257 (2001).

The proposing and deciding officials both believed they could not trust the appellant to follow the agency's rules, particularly in a situation where the interests of his family were involved. Such loss of trust may be a significant aggravating factor. See, e.g., Hernandez, 83 M.S.P.R. at 375 (where, as here, the appellant works independently in the field and deals directly with third parties on behalf of his agency, it is essential that agency officials have confidence in his ability to comply with regulations and to follow instructions); Woodford v. Department of the Army, 75 M.S.P.R. 350, 357 (1997) (loss of trust in the appellant's judgment and trustworthiness is a significant aggravating factor); Sanders v. Department of Justice, 65 M.S.P.R. 595, 602 (1994), aff'd, 73 F.3d 380 (Fed. Cir. 1995) (Table) (where trust is necessary to the performance of the appellant's job, and he had been trained in the ethical rules he violated, the misconduct was not inadvertent but was serious).

The appellant claimed that the agency allowed him to continue to work at his normal duties for a period of time so that it would not have to express any misgivings about him to a U.S. Attorney that might adversely affect ongoing government prosecutions in which he was involved. The Judge found that the opinions of individual supervisors are insufficient to overcome the agency's judgment overall concerning the seriousness of the misconduct and the appropriateness of the agency-imposed penalty. Edwards v. Department of the Army, 87 M.S.P.R. 27, 30, 9 (2000), aff'd sub nom. Rodriquez v. Department of the Army, 25 Fed. Appx. 848 (Fed. Cir. 2001). In addition, even assuming that the appellant was allowed to do his regular duties for a period of time, the Judge did not find that this alone suffices to counter the agency's claimed loss of trust. The complaint was filed on September 26, 2001, and the appellant was placed on administrative leave on November 30, 2001. Further, the agency was investigating his misconduct during the period and, in fact, had initially proposed (though never effected) his removal in February 2002. Finally, he was placed on indefinite suspension on July 19 of that year. This record of events does not bespeak an agency that continued to retain trust and confidence in the appellant.

104 LRP 2312
Tommy L. Brown v. Department of the Army
U.S. Merit Systems Protection Board, Atlanta Regional Office
AT-0752-03-0905-I-1
January 9, 2004

Case Summary

A hazardous waste material handler with the Army was removed for misuse of his government issued credit card. In the span of four months, he made 67 unauthorized charges and was delinquent on several of them. The appellant charged everything from furniture and gas to food and drinks following personal difficulties in his marriage. The appellant had worked with the agency for 26 years and had one previous suspension for misuse of a government vehicle. The agency removed him after weighing the Douglas factors. The AJ found the penalty to be outside the bounds of reasonableness and mitigated the removal to a 60-day suspension.

The AJ found that the agency failed to correctly evaluate the mitigating factors. The agency argued that the appellant was a 26-year veteran with the agency who should have known better. The AJ ruled this reasoning was incorrectly applied. The AJ found that the fact the appellant served for 26 years was a mitigating factor due to the length of service and working record. In addition, the AJ put a lot of weight on the fact that the appellant admitted to the misuse. The AJ not only reduced the penalty to a 60-day suspension she also required the agency to pay the appellant back pay and interim relief.

Given that the deciding official failed to appropriately consider the mitigating factors in the case, the AJ found it inappropriate to defer to the agency penalty. Stuhlmacher v. U. S. Postal Service, 89 M.S.P.R. at 279. Moreover, given the relevant Douglas factors discussed in the case, including the seriousness of the offense, the clarity on which the appellant was on notice, the appellant's past-record, and the agency's need to address a wide-spread credit card abuse problem, as well as the mitigating factors of the appellant's long years of service, his at least satisfactory performance record, the non-supervisory, non-fiduciary nature of his position, and the turmoil in his personal life, the AJ found removal exceeded the bounds of reasonableness. Therefore, the AJ found the maximum reasonable penalty was a 60-day suspension.