IEC Journal

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.