Out of Control

By Barbara Haga, January 23, 2019

After my last column regarding off-duty misconduct that resulted in removal, I thought it might be worthwhile to look at other cases with related types of situations where, on first glance, it might appear that there were not sufficient grounds to support an adverse action.  There are two that I want to address this month.  Both are about employees who were removed basically because management lost trust in their ability to control themselves if confronted with stressful situations. Both employees were removed for conduct unbecoming.

Unfaithful Husband and Service Revolver

In Mahan v. Treasury, AT-0752-99-0749-I-1 (2001), a GS-13 IRS Criminal Investigator was removed as a result of an incident where she discharged her service revolver in her home. The situation arose when Mahan returned home from a trip and found a “sexually explicit” love letter written to her husband (Horne) by another woman.  She took her government-issued .38 Smith and Wesson from the nightstand as Horne was returning to the house.  She hid the gun in the waistband of her pants.  At that point, she confronted Horne in the kitchen about the letter.  During the ensuing argument, she fired the revolver in the kitchen. Horne agreed to leave (the house was hers prior to their marriage) and walked from the kitchen into the garage. She fired another shot into the floor at the bottom of the steps leading to the garage.  After that she locked the door and called 911.

The police responded, and based on their questioning, they determined that she should be arrested on a charge of assault. The police notified IRS management of the arrest.

The IRS removed Mahan on two charges:

• Conduct unbecoming an agency employee when she fired two rounds in the general direction of her husband using a government-issued weapon.
• Failure to properly account for government property (which apparently had something to do with not properly accounting for the service revolver on multiple custody receipts).

The AJ sustained both charges, but mitigated the penalty to a demotion to the highest non-supervisory, non-law-enforcement position she was qualified for. The Board, however, reinstated the removal. 

A Spanking Incident

This case is Doe v. Navy, AT-0752-15-0206-I-1 (2016). Doe was a security specialist at the Naval Air Station in Milton, Fla. He was removed because his 4-year-old son had “extreme” bruising due to an alleged spanking by his father. A household nanny reported the incident to local police and the Florida Department of Children and Families (DCF). Doe was arrested for aggravated child abuse.  DCF conducted a medical exam which documented extreme bruising to the child’s back, buttocks, hamstring and calves.

Doe admitted that he hit the child with a belt during the relevant period because the child had been violent with a teacher. Doe also told the child not to say anything about his injuries, and that instruction to the child was documented in the police report.  There were three charges in the notice:

1) Conduct unbecoming (related to the spanking incident),

2)  Lack of candor (regarding termination with a private company which he omitted from his resume and OF-306), and

3) Failure to follow leave-requesting procedures.

The AJ upheld the first two offenses, but not the third related to the leave procedures.

Even though not all of the charges were sustained, the AJ upheld the removal and the Board affirmed.

Common Themes/Lessons Learned

In both cases, the employees were in responsible positions where they needed to be able to respond appropriately in emergencies. Mahan, as a criminal investigator, was in a position that required knowledge of criminal investigative techniques, rules of criminal procedures, laws, and precedential court decisions concerning the admissibility of evidence, constitutional rights, search and seizure, and related issues in the conduct of investigations. Investigating crimes could be dangerous work, since she was issued a service weapon to use in the course of fulfilling those duties. According to the deciding official’s testimony, Doe’s job required him to ensure that the installation maintained adequate physical security and that Doe would be expected to obtain a weapon from the agency’s armory and repel any attack on the installation. This level of responsibility was important in the discussion of nexus.

In both cases, the deciding official’s testimony about loss of confidence was key.  In Mahan, the DO testified that “the appellant displayed extremely poor judgment in discharging her revolver without provocation or justification.”  In the Doe decision the AJ found that nexus was established because the Doe’s actions caused management to lose faith in his ability to provide a measured response to stressful situations as he completed his central duties of ensuring security. The DO testified that “…the appellant’s misconduct with his son caused him to question the appellant’s ‘composure’ and his ability to control his emotions in connection with his responsibility for protecting people.”

The events that led to the removals involved off-duty criminal actions, arrests, and questions from the appellants about whether the off-duty misconduct met the states’ definitions of the crimes. Mahan raised a self-defense claim in her initial appeal; however, the AJ found that she fired her weapon in anger and to scare her husband into leaving, not that she was in fear that he might do her bodily harm.

In her PFR, Mahan argued that the IRS should have been required to apply the criminal law of the State of Tennessee to her claim of self-defense.  The MSPB stated that she was charged with conduct unbecoming and thus the law of Tennessee was immaterial to that charge.

Doe argued in his PFR that the Navy should have been required to prove the elements of Florida’s aggravated child abuse statute to sustain the conduct unbecoming charge. Doe was arrested, but not criminally prosecuted for his actions. Doe characterized that as the prosecutor not wanting to pursue the case because of scant evidence, but in his testimony,  Doe had said that he agreed to a pre-trial intervention program to resolve the situation because the state was not willing to drop the case otherwise. The Board ruled that he was charged with conduct unbecoming a security specialist, not with the commission of aggravated child abuse or any other criminal offense, and so the charge stood. Both agencies successfully managed to stay out of that quagmire by properly charging the underlying actions and not the arrests/criminal charges, and by making sure that the DOs stuck to the underlying actions and did not raise the arrests/criminal charges in their testimony.

Unlike last month’s case, these are full Board decisions, although Doe is characterized as non-precedential, or in other words it doesn’t tell us anything new.  What is important for practitioners is that the removal charges in both cases were found within the bounds of reasonableness. Mahan had 18 years of service and no prior discipline, yet the Board restored the removal action.  Member Slavet’s concurring opinion in that decision highlighted several considerations about the events related to the shooting, such as it was an emotionally charged domestic incident, no members of the general public were endangered, Mahan alerted the authorities herself, etc. However, despite all of that, Member Slavet stated, “…although I believe the penalty imposed by the agency was harsh, it did not amount of an abuse of the agency’s discretion.”  Haga@FELTG.com