The Marijuana Conundrum: Illegal Federally, But Legal in Many States

If this happened in your agency, what would you do?

A District Manager, who is a member of the Career Executive Service, went to a cannabis dispensary with several of her subordinate employees while attending a leadership meeting in Denver.

She purchased a package of chewable gummies containing marijuana because she was experiencing sciatic pain. She shared some of the gummies with her employees in the parking area, and transported the remaining gummies in a government-owned vehicle (GOV), back to her hotel.

Options:

A. No discipline

B. Reprimand

C. Suspension

D. Demotion

E. Removal

If you’re thinking removal, it wouldn’t surprise me. After all, marijuana is still a Federally controlled substance and Federal employees are prohibited from purchasing, possessing, using or distributing it in any form.

A recent nonprecedential MSPB case highlighted this exact conduct. The agency indeed removed the District Manager for “unacceptable conduct: purchase, possession, and distribution of a marijuana product.” (It also charged “unacceptable conduct” because the appellant brought a dog to work and required subordinates to care for the dog while she was in meetings, but that’s not discussed in depth in the case.)

The agency relied on the seriousness of the marijuana offense and the fact that “the appellant held a position of particular prominence as the Hawkeye District Manager, the highest-level position in the district, in which she was subject to a higher standard of conduct.”

The AJ and the Board, however, didn’t see this quite the same way. Some of the mitigating factors identified in the case:

• The AJ determined the “strong language of the charge overstated the magnitude of some of the appellant’s misconduct.”
• There was no evidence that the appellant actually consumed the gummies or that she otherwise engaged in drug use that affected her ability to perform her job duties.
• The appellant shared the gummies with her employees off-duty.
• The “single lapse in judgment in purchasing the gummies,” while illegal under Federal law, was legal in Colorado and did not result in the appellant’s arrest or conviction of any crime.
• The purchase of the gummies occurred only one time.
• The appellant had 33 years of service with no prior discipline.
• The Board questioned the “lack of clarity with which the appellant may have been on notice concerning the implications of purchasing marijuana in a state in which it is legal to do so.”
• During the same conference, a USPS Customer Service Manager also purchased and used an ointment containing cannabis oil and received a letter of warning in lieu of a 14-day suspension.

Upon consideration of these mitigating factors, the Board agreed with the AJ and determined a demotion was the maximum reasonable penalty. Betha v. USPS, CH-0752-19-0116-I-2 (Jul. 5, 2023)(NP). Plenty of case law over the decades has shown sustained removals for similar marijuana-related misconduct, but as evidenced by the recent introduction of the Cannabis Users Restoration of Eligibility (CURE) Act, along with semi-recent guidance from OPM and the Director of National Intelligence, the times may be changing. Hopkins@FELTG.com