As Wiley Always Said, ‘Nexus is NOT a Hair Product’

By Deborah J. Hopkins, June 10, 2024

I used this article’s headline in a recent training class on Advanced MSPB Law: Navigating Complex Issues (next held July 9-11). It was a favorite used by FELTG Founder Bill Wiley when explaining the nexus requirement in agency cases involving discipline for employee misconduct.

An agency must establish three requirements when defending an adverse action against an employee under 5 U.S.C. chapter 75:

• It must prove by a preponderance of the evidence that the conduct occurred as charged;
• It must establish a nexus between that conduct and the efficiency of the service; and
• It must demonstrate that the penalty imposed is reasonable.

5 U.S.C. §§ 7513(a), 7701(c)(1)(B); 5 C.F.R. 752.403; Pope v. USPS, 114 F.3d 1144, 1147 (Fed. Cir. 1997).

A nexus, generally defined, is a link or connection between the misconduct and the employee’s job or the workplace; as seen under the second requirement above, the concept of nexus is often referred to as the “efficiency of the service” standard.

As we’ve discussed in a previous article, the MSPB generally recognizes three independent means by which an agency can show a nexus when the agency wants to impose discipline, particularly for off-duty misconduct:

• A rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct (for example, cases involving harm against children);
• The misconduct affects the employee’s or co-workers’ job performance, or management’s trust and confidence in the employee’s job performance (for example, management has lost trust in the employee’s ability to make good decisions because the employee was arrested for driving under the influence of alcohol); or
• The misconduct interfered with or adversely affected the agency’s mission (for example, an employee of an agency’s morale, welfare and recreation division has an affair with an officer’s wife while the officer is deployed overseas).

A lead case on nexus for off-duty conduct, that every agency rep and union official should read, is Kruger v. DOJ, 32 M.S.P.R. 71 (Jan. 8, 1987). The case involved three Federal Bureau of Prisons employees who were reported to be smoking marijuana outside a local bar. After the agency’s investigation confirmed the events as alleged, the employees were removed on charges of “possession and use of marijuana on July 10, 1985, outside a local public tavern while off duty.” Id. at 74.

The agency justified the removal because, in part “as correctional officers, appellants have close contact with inmates and they are responsible for protecting property and inmate safety, enforcing security policies, regulations, and laws (including the laws proscribing narcotics and contraband), and assisting with inmate rehabilitation.” Id. at 74-75.

On nexus, DOJ showed that the appellants’ use of marijuana impacted agency mission because it was “antithetical to the agency’s law enforcement and rehabilitative programs that they are responsible for monitoring.” Id. The agency also showed that the notoriety of the conduct by the public “would impair the efficiency of the agency by undermining public confidence in it, thereby making it harder for the agency’s other workers to perform their jobs effectively.” Id.

The Board found the agency showed by preponderant evidence there was a nexus linking the off-duty misconduct with the efficiency of the service. It also, however, found removal was unreasonable and relied on the following Douglas factors in justifying a mitigation to a 60-day suspension:

• None of the appellants had any prior discipline.
• Length of service: Kruger had approximately 12 years of service and the other two appellants each had seven years.
• The appellants all had either fully successful or outstanding performance.
• The appellants’ truthful admissions of their misconduct on initial inquiry by the agency “indicate that they will not subsequently act in a dishonest or otherwise improper manner with the agency.” at 77.
• The public was not aware of the events since no criminal charges were filed.

Shocking, perhaps, considering this was the 1980s and marijuana laws were quite different (and much stricter) back then. Check out the case for yourself and let us know if you have any thoughts or questions. We always enjoy getting messages from you. Hopkins@FELTG.com