By Barbara Haga
I am sure that most readers are generally familiar with the statutory penalties associated with misuse of government vehicles. I thought that a look at some cases that involve that charge and related forms of misuse might be a good topic to explore. There are lessons here about careful crafting of charges.
The statutory penalty appears in 31 USC 1349. Enacted in 1982, the relevant sections include the following:
- 1349. Adverse personnel actions
(b) An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle or aircraft owned or leased by the United States Government (except for an official purpose authorized by section 1344 of this title ) or otherwise violates section 1344 shall be suspended without pay by the head of the agency. The officer or employee shall be suspended for at least one month, and when circumstances warrant, for a longer period or summarily removed from office.
(§ 1344 discusses when passenger vehicles may be used for transportation for a government employee from the residence to the place of employment and other related usage such as travel to a transportation terminal).
We will look at two Federal Circuit cases which outline what is required to establish willful use and reckless disregard, or actually in these two cases what didn’t establish those things. These cases look at two different scenarios – one when an employee was authorized by a supervisor to use the vehicle and then the supervisor was disciplined and one when the employee used the vehicle assigned to him for a purpose judged to be unofficial.
Supervisor Authorizing Employee to use Vehicle
The case is Felton v. Equal Employment Opportunity Commission, 820 F.2d 391 (Fed. Cir. 1987). Felton was the acting Area Office Director of an EEOC Regional Office. A clerical staff member’s car broke down on the expressway on the way to work. She got a ride to work and subsequently asked Felton to use the office’s government vehicle to return to the car to secure it before it was towed for service. Felton approved use of the vehicle and was suspended for 30 days thereafter. She testified in her appeal that she authorized the use of the vehicle because the employee was the only typist, there was a large backlog at the time, and that use of the vehicle allowed resolution of the problem with the vehicle in the most expeditious means possible. The AJ found that the Felton knowingly, consciously, and willfully authorized the use of the vehicle for other than an official purpose and sustained the suspension. The full Board denied the petition for review and Felton challenged the action at the Federal Circuit.
The Court reversed the suspension, finding that there was no evidence to support a finding that Felton knew or should have known that the use of the vehicle in the circumstance of this case would be held to constitute use for a nonofficial purpose or that she acted in reckless disregard of whether the use was or was not for an official purpose. The analysis included examination of both points.
The decision explains how “willful” should be reviewed. The Court wrote:
Had the word “willful” been omitted from the statute, the statute would apply to any authorization for any nonofficial purpose. It would have made all unwitting, inadvertent and unintended authorizations for nonofficial use a violation of the statute. See Morissette v. United States, 342 U.S. 246, 270 (1952). Such is not the case here. That Felton’s authorization was a conscious and intentional act was admitted, but a knowing authorization of an unofficial use requires more than mere intent to do the act which lays the foundation for the charge. The requirement of knowledge applies to the unofficial nature of the use as well to the authorization. She knew and intended to authorize the use, but there is no evidence that she actually knew that the use would be characterized as “nonofficial.”
The Court also found that Felton’s authorization was not in reckless disregard of whether the use was for other than official purposes. In this they reviewed the content of the EEOC order on use of motor vehicles. The policy stated: “What constitutes official purposes is a matter of administrative discretion to be exercised within applicable laws. The general rule may be stated that where transportation is essential to the successful operation of an authorized agency purpose, such transportation will be considered as official use.” The Court found it reasonable that Felton could conclude that that the use authorized in this case would promote the successful operation of the agency.
What the Court did find was that Felton made a poor management choice. The AJ outlined other options Felton had, such as denying use of the vehicle and leave for the purpose of going back to the vehicle. The AJ relied on these management alternatives to support a finding that the decision was made in reckless disregard of whether the use was official. The Court’s decision takes the opposite approach. The Court found that Felton’s testimony made it clear that she acted in good faith in attempting to solve an office emergency. The decision states, “Poor management judgment in selecting an alternative to solve an office emergency does not rise to the level of ‘reckless disregard.’” [Editor’s Note: And why any agency would ever charge willful misuse of a government vehicle under this statute is beyond my understanding. Charge “Misuse of Government Property” and save yourself all this heartburn.] Haga@FELTG.com