By Barbara Haga, April 10, 2019

Last month, I began a series of columns regarding failures to meet conditions of employment. There are a wide variety of cases out there on these types of conduct actions with a lot of authority for agencies to hold employees to these requirements. This month, we are focusing on licenses and qualifications.

No ‘Faculties’

Sometimes I learn something new working on these columns. This time it is a new use of the word “faculties.”  In the context of this case, it means a license or authorization from a church authority. Unfortunately for this Chaplain (Catholic priest), GS-0060-12, the one person with authority to give him faculties declined to do so.

Chaplain Ezeh was serving as a priest at Joint Base Anacostia Bolling in the Washington, DC, area and had been there for two years. The Archbishop of the Military Services is the sole endorser of Roman Catholic priests serving the Archdiocese of the Military Services, and by a letter dated December 14, 2011, the Archbishop informed the appellant that he had decided to terminate his faculties effective January 15, 2012.  The case did not include any reasons why the faculties were terminated nor was there any response from Chaplain recounted; however, it was stipulated in the initial decision that without these faculties Chaplain Ezeh could not say mass or administer sacraments. The AJ and the Board sustained the removal

Ezeh v. Navy, 114 FMSR 13 (NP) (Sept. 30, 2013).

Disbarred

De Maio was a GS-13 Estate Tax Attorney for the IRS. He was removed because he failed to meet a condition of employment. He was disbarred as a result of some reported unethical behavior which occurred during some private legal work. The Maryland Court of Appeals referred the complaint to a judge of the circuit court for hearing. DeMaio did not appear for the hearing. The circuit court judge concluded that De Maio had violated the Rules of Professional Conduct as charged. The Attorney Grievance Commission filed a recommendation for sanction, in which it urged the appellant’s disbarment. DeMaio filed a response to the recommendation. On February 17, 2004, by unanimous decision, the Maryland Court of Appeals adopted the recommendation and disbarred the appellant.

DeMaio did not notify the IRS. Instead they learned of the matter about a week later from a member of the private bar and referred the matter for internal investigation by the Treasury Inspector General for Tax Administration. The disbarment was confirmed, and the agency proposed his removal in December 2004. Initially, he argued during his oral reply that the charge of failing to maintain membership in a state bar could not be sustained because he was also admitted to practice before the U.S. District Court for the District of Columbia and was a member of the bar of the District of Columbia. He finally acknowledged, however, that his District of Columbia bar membership had been suspended based on his disbarment in Maryland. The agency subsequently confirmed that he was suspended from practicing by the District of Columbia Court of Appeals pending resolution of the issue of reciprocal discipline. The AJ sustained the removal and the Board declined to review it by decision dated January 4, 2006.

De Maio v. Treasury, PH-0752-05-0394-I-1 (August 18, 2005).

Loss of License to Practice Psychology

Cerwonka is an interesting variation in the line of condition of employment cases because it 1) is a very recent Federal Circuit decision, 2) involves a Title 38 issue, and 3) deals with a situation where there was an appeal of the license revocation ongoing when the removal was effected.

The decision in Cerwonka’s employment case was rendered by the Federal Circuit after the initial decision became final. Cerwonka’s license was revoked by the State of Louisiana in February 2017 because of “clear ethical violations” and repeatedly failing to follow the rules and regulations binding upon him as a psychologist. The decision does not provide any details about the underlying misconduct except that the misconduct arose in conjunction with his private practice.  The proposed removal letter noted that 38 USC.7402(f) provides that a person may not be employed as a psychologist with the VHA if his license has been terminated for cause – which had occurred. The VA removed him on  April 1, 2017.

In July 2017, Cerwonka’s appeal of the decision to revoke his license was decided and a Louisiana district court judge reinstated his license, pending further proceedings. The issuing office appealed the decision to the Louisiana First Circuit Court of Appeal. In an April 2018 decision, that court vacated the lower court’s decision and remanded the matter for further proceedings. At the time of the Federal Circuit’s decision, proceedings on the merits of the license revocation remained pending.

What did the Federal Circuit decide? They sustained the removal, finding that the Title  38 statutory provision took precedence over any Title 5 efficiency of the service arguments. The court noted that 38 USC.7402(f) prohibits the VA from employing any psychologist who had a license terminated for cause, without permitting any additional considerations or affording any discretion.  The decision stated that the VA had interpreted this to mean that the immediate removal of an employee who had a license terminated for cause was required and quoted the VA handbook which stated “[a]n employee who fails to meet or who fails to present evidence of meeting the statutory, e.g., 38 U.S.C. § 7402, or regulatory requirements for appointment will be separated.” 

Cerwonka v. VA, U.S. CAFC, 2018-1398 (Feb. 13, 2019).

Tune in next month for further discussion of conditions of employment tied to medical qualifications.  Haga@FELTG.com

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