By Barbara Haga
In the past two columns we reviewed cases where misuse of the government vehicle was not sustained. This month we will look at a case where the Board, and the Federal Circuit, upheld the disciplinary action.
Stranded on a Sand Pile
This case is relatively recent and has been discussed in some MSPB updates at training events that I have attended. But, the journey to a sustained removal was a difficult one for the Army, and the facts are so intriguing.
The details of the events and the charges are contained in the Board’s decision Hoofman v. Department of the Army, SF-0752-11-0266-I-1 (2012). The Federal Circuit sustained the Board’s ruling in a non-precedential decision titled Hoofman v. Department of the Army, 2013-3029 (Fed. Cir. 2013). Hoofman was a Construction Control Representative with the U.S. Army Engineer District in Anchorage, Alaska. Late one night, Hoofman was driving home in a government vehicle when, through a chain of events that are not quite clear, he stranded the vehicle on top of a sand pile.
He tried to free the vehicle from the sand pile by switching the gears back and forth but was unsuccessful. In a statement, Hoofman gave an account of what had happened. He said he was driving alone and had not been drinking when the car became stuck. When he could not get the vehicle off the sand pile, he walked to his apartment nearby. He admitted that he consumed alcohol at the apartment. At about 1:00 a.m. he was walking back to the truck and met two individuals and asked for their assistance to get his truck unstuck. The two agreed to help if Hoofman would give them a ride afterwards, to which he agreed. They could not get the vehicle unstuck. Hoofman could not recall when the two individuals got into the vehicle.
The police arrived at the scene at around 1:30 a.m. and observed the vehicle, Hoofman, and two other passengers inside the stranded vehicle. Hoofman refused to submit to a chemical breath test. The next day Hoofman pled guilty to a charge of Refusal of Breath Test, which resulted in the Alaska court revoking his driver’s license, requiring him to use an ignition interlock system and to spend time in jail. The following morning, he contacted his supervisor and requested two weeks of leave due to personal family reasons, but at that point did not tell his supervisor about stranding the government vehicle, the fact that it was impounded, or his arrest. That information was not disclosed until he returned to work nearly two weeks later.
The agency removed Hoofman based on four charges:
- Charge 1: Driving a government vehicle while under the influence of alcohol
- Charge 2: Using a government vehicle for other than official purposes
- Charge 3: Loss of his driver’s license for one year and having to use an ignition interlock device for one year after regaining the privilege to drive
- Charge 4: Attempting to deceive his supervisor.
The Board’s decision noted that Hoofman’s job required him to travel to remote places and to work independently.
In a surprising twist, the AJ did not sustain any of the four charges. The agency used an affidavit from the charging officer who responded to the scene to address charges one and two, and the AJ ruled that that was hearsay and had little probative value and did not sustain those charges. The AJ did not find Hoofman’s request for leave for family reasons as a deception; she ruled that it did not meet the definition of “deceive” and that Hoofman did not personally gain from not providing the information after the vehicle and his arrest when he contacted his supervisor about the leave. The AJ found that, although Hoofman’s license was “revoked” for one year, he did not “lose” his license for one year as charged by the agency because the appellant held a valid driver’s license, albeit one limited to driving with the interlock system, within approximately five months of the incident.
It seems that the AJ made some unusual rulings in this case, but there is a lesson to be learned about properly writing charges in this case. The agency petition for review only challenged the rulings on three of the four charges. The Army did not challenge the AJ’s decision on the charge regarding loss of the driver’s license. Charging loss of the license for one year and adding in the use of the ignition device made the charge complicated beyond what was necessary to show that he would not be able to drive for work purposes.
The MSPB overruled the AJ and sustained Charges 1 and 2 based on admissions made by the employee. The Board relied on the definition of driving under the influence as defined in Alaska’s statute. The key factor here was that Alaska’s courts had defined the term “operate” a vehicle to mean more than driving the vehicle, but the actual physical control of a vehicle with the motor running. The Board noted that this definition did not require that the vehicle be capable of movement. Hoofman did not dispute that he was in the driver’s seat with the engine running when the officer responded. He also admitted that he attempted to remove the vehicle from the sand pile after he had been drinking by engaging the drive and reverse gears. The MSPB also found that there was ample evidence that the employee was under the influence of alcohol based on the fact that he admitted that he had been drinking and declined to take a breathalyzer test. The Board also relied on the charging police officer’s affidavit, which noted that the appellant had bloodshot and watery eyes, slurred speech, a swaying stance, and a strong odor of consumed alcohol.
Charge 2 regarding use for unofficial purposes was supported because Hoofman acknowledged that he offered to give a ride to two unidentified individuals in exchange for their assisting him in removing the vehicle from the sand pile. The Board noted that the fact that he was unable to free the vehicle from the sand pile and complete the unauthorized trip did not disprove the charge.
The Board also found Charge 4 was supported because the AJ misconstrued the agency’s charge. The AJ likened the charge of attempting to deceive the supervisor as a falsification charge, but the Board found it more similar to a lack of candor charge. The decision states, “We find that the appellant should have told his supervisor about his arrest and the impounding of his government-owned vehicle in order to make his stated reason for requesting leave ‘accurate and complete.’” The Board also found that although Hoofman eventually told his supervisor about the incident before the supervisor could find out for himself did not change the fact that the appellant had concealed the matter from him for nearly two weeks.
Based on the three charges the Board sustained the removal, and in a brief decision, the Federal Circuit supported the Board’s ruling.