By Barbara Haga
If only our business had a list of rules that would always produce a successful result. If the MSPB had a checklist (for example, like a pilot has) of things that always had to be followed to ensure your case would be sustained, we would have many more practitioners ready to take on adverse actions, fewer hours of lost sleep over whether everything had been covered, and probably a need for far fewer FELTG classes and newsletters. [Editor’s Note: Of course, that would be a BAD outcome.]
But alas, it isn’t that simple. As I was preparing this column I reread the last one (it helps me avoid repeating myself). Reading about poor Mr. Hoofman, the Army Construction Rep who managed to get his government vehicle stranded on the sand pile, made me think of Wile E. Coyote.
Like Wile E. Coyote, Hoofman tried several different things to get that car back on the road, and unfortunately the efforts became more damaging to his long term career prospects as he went. First, he tried to rock it back and forth by switching the gears from forward to reverse. Then he walked to his apartment for liquid fortification. Later he walked back to the car and picked up two strangers along the way to help. The three of them were all in the vehicle and apparently again tried to rock it back and forth. Their efforts were unsuccessful and then the police arrived and you know the rest if you read the article or the case. (Hoofman v. Department of the Army, 2012 MSPB 107).
Looney Tunes had a list of rules for making Road Runner and Wile E. Coyote cartoons. You may read the full list here: http://time.com/3735089/wile-e-coyote-road-runner/. The universe for those two characters operated within certain principles:
Rule 1: The Road Runner cannot harm the coyote except by going “beep-beep.”
Rule 2: No outside force can harm the coyote—only his own ineptitude or the failure of the Acme products.
Rule 3: The Coyote could stop anytime—if he were not a fanatic.
Rule 9: The coyote is always more humiliated than harmed by his failures.
And Rule 9 leads us to our next case. Only this time it wasn’t Wile E. Coyote who was humiliated, it was a Federal agency.
Settlement Agreements Have to be Lawful
This could be Rule 9 on the Board’s list of rules. It seems so basic. Sometimes we worry about things like language that is unclear – like exactly what was that clean record going to include and not include. We have to be ready to answer whether the person had time to consider the provisions of the agreement, whether they were represented, etc. to avoid anything that would look like duress or coercion. Obviously, agreements cannot be upheld if there is fraud involved by either party.
Occasionally there is an issue of a potentially unconscionable agreement: those agreements that are so one-sided that a court or the Board won’t enforce their provisions. You know, when one side, in our world usually management, is holding most of the cards. Many years ago we had a Navy practitioner who got a little carried away in writing a last chance agreement and he added a provision that if the employee attempted to file an appeal with the Board later out of any alleged violation of the agreement he had to pay the Navy’s costs to defend it. The Administrative Judge was none too amused with that one. That was my first exposure to the term “unconscionable.”
There is another issue with settlement agreements. They have to comply with other relevant statutes, and that leads us to Ross v. Department of Homeland Security, DA-0752-15-0521-I-1 (2016) (NP). This non-precedential decision issued on June 24th is hot off the press.
Statutory Penalty for Willful Misuse
DHS suspended Ross for 30 days for misuse of a government vehicle. The charge was “Willful misuse of a Government vehicle for nonofficial purposes in violation of 31 USC 1349(b).”
Ross appealed and the parties settled. The agency agreed to rescind the 30-day suspension and substitute a 5-day suspension, and Ross agreed to withdraw the appeal. He later challenged the agreement in an appeal to the Board regarding one provision of the agreement relating to his leave status for a period of time relevant to the case. The Board never got far enough to look at that, however, because they found the agreement “not lawful on its face.”
The problem was the charge. With that charge Title 31 requires a minimum 30-day suspension. There is no provision for anything less. By leaving the charge intact, DHS was unable to agree to a 5-day suspension. The settlement should have created a new charge, perhaps inappropriate conduct or failure to follow agency procedure, to avoid this problem.
This understanding of the minimum penalty required has worked to management’s favor in other cases. In Fields v. Veterans Administration, 21 MSPR 176 (1984), there were numerous charges in the 30-day suspension, some of which were patient abuse, misuse of a government ID, willfully falsifying government records, and intentional unauthorized use of a government vehicle for other than official purposes. The AJ did not sustain most of the charges, but did sustain two – one of which was the intentional unauthorized use of the vehicle. Because not all of the charges were sustained, the AJ mitigated the penalty to a 14-day suspension. The agency petitioned for review and the Board sustained the 30-day suspension because of the Title 31 provision, writing, “Since the statute imposes a mandatory minimum penalty for appellant’s offense, the Board lacks authority to reduce the penalty below a thirty-day suspension.”
Mutual mistakes have been found in other agreements. In Farrell v. Interior, 86 MSPR 384 (2000), the settlement agreement provided for payment of overtime hours at a rate that was contrary to law and thus had to be set aside. In Shipp v. Army, 61 MSPR 415 (1994), the agreement set a fixed amount of back pay with deductions only for taxes; the amount of back pay calculated did not take into account that the employee had received wages for another position during the relevant time frame so that amount had to be deducted. For the agency to pay the full amount would have violated the Back Pay Act. In Miller v. Department of Defense, 45 MSPR 263 (1990), the Board set aside a settlement agreement that provided for a year of administrative leave based on a Comptroller General advisory opinion which provide that the use of administrative leave to provide prospective compensation and benefits in the settlement of an appeal was lawful under the circumstances.
The Board found that the settlement agreement for Ross which allowed for a 5-day suspension was also invalid based on a mutual mistake. The appeal was remanded for reinstatement of Ross’ appeal, so DHS would have to defend the 30-day suspension for willful misuse absent a new settlement agreement. [Editor’s Note: Even more reasons never to charge Willful Misuse of a GOV, as we teach in the FELTG MSPB Law Week; too much trouble for no real benefit.]
With this, I am wrapping up the topic of vehicle misuse. So, that’s all folks! [email protected]