Demotion Mitigated to Suspension
The agency proposed the removal of Edwards, on three charges: (1) using a government travel credit card for personal reasons, (2) accepting night differential pay to which he was not entitled, and (3) falsification of a report. In particular, the agency accused Edwards of using the government credit card for personal expenses such as cash advances, gasoline purchases and car rentals; Edwards had repaid all personal expenses when the bill came due. These charges occurred while Edwards was detailed to an alternate agency facility 20 minutes further from his residence than his normal duty station. The deciding official sustained all three charges, but reduced the penalty from removal to demotion. The deciding official later testified at hearing that he thought the proper penalty for charge (1) in isolation was a demotion or a long suspension. However, the agency's personnel office later determined that the applicable collective bargaining agreements required Edwards to take a demotion to the lowest seniority-level position within the craft, and retroactively changed Edwards' demotion to the lowest-level posting, a part-time, flexible-schedule mailhandler.
Edwards then appealed to the MSPB. After a hearing, the MSPB administrative judge sustained the charge of using the government credit card for personal reasons, but did not sustain the other two charges. Charge (2) was reversed for lack of specificity, and charge (3) was reversed because the deciding official mistakenly thought that no proof of intent was required to establish a falsification charge—and that he did not believe that Edwards intended to deceive or defraud the agency in filing the allegedly inaccurate report. The administrative judge further sustained the agency's demotion penalty. Edwards then filed a petition for review with the full Board.
The Board sustained the charge of misuse of the credit card, but reduced the penalty. The Board found that the deciding official had failed to properly apply the Board's Douglas factors to consider grounds for mitigating the penalty. The deciding official had not given proper consideration to the mitigating factor of Edwards' lack of notice of the rules prohibiting proper use of the government credit card. A number of agency employees—including Edwards and the proposing official—believed that Edwards' cross-town detail qualified as travel status for purposes of using the government travel card. Agency travel card policies were contradictory on the limits of permissible charges, for example prohibiting charging personal expenses but permitting employees to take cash advances. Under these circumstances, the Board rejected the deciding official's conclusion that Edwards was on notice that his conduct violated the credit card use policy.
The Board further held that the demotion penalty imposed upon Edwards was disparate. At hearing, the deciding official cited two other cases where comparable penalties were imposed. The Board rejected this comparison, noting that the two cases cited involved falsification, not misuse of a government credit card. The Board further found that the demotion penalty exceeded the bounds of reasonableness, for several reasons. First, the penalty ultimately imposed (demotion to a part-time position) was far more severe than the deciding official had actually intended, due to the effects of the collective bargaining agreement. Second, the deciding official had testified that a long suspension was also under consideration as a penalty if only charge (1) was sustained, testimony which the Board found to demonstrate that the penalty imposed was excessive. Looking to this evidence and to its own caselaw on appropriate penalties, the Board held that a 60-day suspension was the maximum reasonable penalty, and accordingly mitigated the demotion. In doing so, the Board expressly distinguished the extreme demotion in this case from cases in other agencies where one-grade demotions to non-supervisory positions are possible.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.