MSPB: Board Review Must Be Solely on Grounds Invoked by Agency
The Merit Systems Protection Board remanded a case to the administrative judge because the charges were not reviewed solely on the bases invoked by the agency.
A Department of Commerce Criminal Investigator received a proposed removal based on three charges. The charges were: (1) Unauthorized Possession of Equipment; (2) Conduct Unbecoming a Law Enforcement Officer (4 specifications); and (3) Lack of Candor (6 specifications). After an oral and written reply, the employee was removed, and the deciding official upheld all but specifications 1, 2, and 3 of the Lack of Candor Charge. The employee appealed his removal to a Merit Systems Protection Board administrative judge, who sustained all three charges, but did not sustain specification 4 of the conduct unbecoming charge. The administrative judge also sustained the penalty of removal. The employee appealed to the full Board. On May 6, 2016, the Merit Systems Protection Board granted the employee’s petition for review and remanded the appeal back to the administrative judge for further adjudication.
The Board found that the first charge, Unauthorized Possession of Equipment, was improperly construed by the administrative judge. Where the proposed removal charged the employee with improperly keeping possession of a shotgun following his transfer to the Agency from the Department of Labor OIG (his former employer), the administrative judge sustained the charge because the employee “failed to obtain authorization from the agency” to keep possession. As the Board noted, the Board may only review the agency’s decision on adverse actions on the grounds invoked by the agency, and may not substitute a more adequate or proper basis.
Despite the administrative judge’s error, however, the Board reviewed the record and found that the charge as written was supported by preponderant evidence. While the employee argued that he as an individual obtained the shotgun from Beretta, the Board found that DOL OIG and Beretta were the actual parties to the transaction, and that Beretta would not have loaned the shotgun to the employee in his individual capacity, and had only loaned it to the employee because he identified himself as a firearms instructor for DOL OIG who was requesting the firearm for testing and evaluation for potential acquisition by DOL OIG.
The Board then turned to specification 3 of the Conduct Unbecoming Charge. The Board noted that the Agency’s proposal charged the employee with violation an agency’s regulation that makes agents responsible for the prevention of unauthorized use, accidental discharge, and theft of authorized firearms, and for the responsible storage of the authorized firearm in every instance. But because the shotgun was not an authorized weapon, the Board found that the Agency’s charge could not be sustained because the regulation at issue could not be read to cover any but “authorized” weapons.” The Board found that while misconduct may have occurred, the Board had no power to remedy the Agency’s Proposal on appeal, and could only review the decision on an adverse action on the grounds invoked by the agency. Therefore, the Board did not sustain specification 3 of Charge 2.
Additionally, the Board found that the administrative judge did not fully analyze the lack of candor charge in light of recent case law, and specifically in light of Parkinson v. Department of Justice, 815 F.3d 757, 766 (Fed. Cir. 2016), and Rhee v. Department of the Treasury, 117 M.S.P.R. 640, 11 (2012), which establish that an employee must “knowingly” fail to be fully forthright in order to lack candor. Because the administrative judge made no findings as to whether the “element of deception” was present (or, rather, whether the employee “knowingly” gave incorrect or incomplete information), the Board remanded the issue to the administrative judge to make credibility findings.
For the above stated reasons, the Merit Systems Protection Board remanded the case for further adjudication and a new finding as to whether the sustained misconduct warrants removal.
Read the full case: Fargnoli v. Department of Commerce
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Posted in Case Law Update