Use and Misuse (and Beware March Madness)

By Barbara Haga

Looking at the broader topic of misuse seemed a good segue this month, since we have spent a few months on credit card misuse.  As you can imagine, Federal employees have misused a lot of things.  Credit cards, vehicles, agency mail systems, and computers easily come to mind, but there are other cases regarding misuse of agency systems or the information contained in those systems, credentials, and more.

Remember, with misuse cases the required proof is that the “thing” was used for purposes other than those for which the property is made available or other than those authorized by law, rule, or regulation.  There is no requirement to prove intent.  So to paraphrase the famous Detective Joe Friday (and if you are too young to know who that is, my apologies), we “just need the facts, ma’am.”  For misuse to be sustained, we need to show that the thing belonged to the government, its value if it is a thing that is consumed or damaged, what rules controlled its use, and that the employee did something else with it or to it.

But, before we get in to that, it only seems prudent to mention a potential for misuse that it is present with us at this moment.

The NCAA Basketball Tournament

I am getting caught up in March Madness.  My team is doing really well this year and expected to be a first seed in the tournament.  Many years ago I remember taking leave to be able to get home to watch tournament games, but now with online access staying up on developments is much easier.  This year, I have watched them play on a TV in my office while I am “working.”  But, I am not a Federal employee anymore and there are no rules that prevent me from trying to do two things at once!  But, for those of you who spend time dealing with misconduct issues, this has the potential to create some problems in the workplace. (I’m not even going to touch telework!)

It’s not a small thing.  Government Executive ran an article entitled “Feds: Put That NCAA Bracket Away and Get Back to Work” on March 19, 2014, reminding employees of the issues related to gambling in the workplace.  Some agencies send reminders to employees to avoid this seasonal mental illness on premises and during work hours. 

There are a couple of MSPB decisions that mention the tournament.  An EPA Attorney-Advisor was removed for five charges, which included misuse of government equipment and misuse of official time, and lack of candor.  The misuse of the equipment involved e-mails of a sexually explicit nature and also e-mail relating to private legal work which were sent during work hours.  The amount of time utilized in those activities was apparently significant, but there was specific mention of the office basketball pool.  The employee argued that removal was improper, because other EPA employees and supervisors misused government time and equipment by participating in the annual pool.  The arbitrator upheld the removal.  The Federal Circuit, in a non-precedential decision, affirmed the arbitrator’s decision. Jones v. EPA, 2012-3167 (Fed. Cir. 2013)

One employee blew the whistle on his boss regarding an illegal tournament gambling pool that was conducted using government resources.  Once again, these were not low-level employees but Economists.  The allegations regarding the pool were a small piece in a much larger whistleblower case, but this scenario does point out that not everyone is caught up in March Madness and some of those folks could report the activity to the IG as this employee did.  This whistleblower case went to the Federal Circuit and the court vacated the decision to sustain the removal and remanded it to the Board.  Whitmore v. DoL, 680 F.3d 1353 (Fed. Cir. 2012).

Credentials and Misuse of Agency Information System

The case of Stanley Mungaray is an interesting one in that he was in trouble for misuse of more than one thing.  He was a GS-14 Customs and Border Patrol (CBP) International Officer in the Office of International Affairs at their headquarters. Talk about being held to a higher standard – he was in the enforcement business, working in Internal Affairs in their headquarters organization.  His appeal is actually an involuntary retirement appeal since he retired prior to the removal action being effected.  When the Board reviews this type of involuntary separation case part of the analysis is whether the agency had reasonable grounds for threatening to take the adverse action, so the decision goes into detail about the charges.

Mungaray was charged with misuse of the Treasury Enforcement Communications System/Automated Targeting System to perform unauthorized searches on his wife and his son-in-law.  These are systems that keep track of individuals entering and exiting the country and of individuals involved in or suspected of being involved in crimes, and are used in targeting, identifying, and preventing potential terrorists and terrorist weapons from entering the United States.  In addition to these charges, there was a lack of candor charge because when interviewed by Internal Affairs about the inquiries conducted using his unique log-in he said he didn’t believe he had searched records on his wife and denied making a search on his son-in-law.

The other misuse issues involved use of his credentials.  There were two different charges.  The first involved using his badge to get out of a traffic ticket.  He was pulled over in Loudon County, an area northwest of Washington, DC.  While retrieving his registration information, he displayed his government badge to the officer:

He did not receive a citation for speeding as a result of displaying his badge, but the Loudoun County Sheriff’s Department has a practice to request the phone number of the supervisor of any law enforcement officer found to be in violation of local traffic laws and, as a condition of not being cited, to notify the offending driver’s supervisor of the traffic violation. Nevertheless, it is a misuse of position for a CBP employee to identify himself as a law enforcement officer as a means to avoid being ticketed, even for routine traffic stops.

Apparently Loudon County followed through on their policy because the decision mentions “record evidence” of Mungaray’s use of his credentials in this situation.

The fourth infraction while not specifically a misuse charge is a close cousin.  The charge was failure to safeguard those same credentials.  He lost them in a grocery store, but did not report the loss for four days, which violated the agency’s policy.

Mungaray didn’t reply to the proposed removal and did not produce any evidence that the charges were unfounded and thus the Administrative Judge found no jurisdiction over the claim of involuntary separation.  Mungaray v. DHS, DC-0752-15-0622-I-1 (2015)(NP). Haga@FELTG.com