By Barbara Haga
Last newsletter, we looked at a case where the supervisor authorized an employee to use a government vehicle for something unofficial, and the supervisor was disciplined for the authorization. This time we are looking at a case where the use was not authorized by any official within the agency. Here the administrative judge (AJ) did not sustain the charge, but the Board reversed and then, the Federal Circuit overturned the Board’s decision.
It was a Really Good Reason
Here is the story behind the case. The appellant, Kevin Kimm, was a GS-13 Criminal Investigator with ATF. According to the Federal Circuit decision, he was a highly decorated investigator. The events in question happened during August of 1992.
His wife was pregnant. She had suffered previous miscarriages and was having contractions roughly two months before her due date. During the first week of August, his wife’s doctor ordered her to avoid all stressful activity, but then revised the order on Tuesday of the following week ordering her to remain on bed rest at all times. The Kimms were the parents of a three-year-old son. Normally, the mother transported the son to day care but after the change in the doctor’s orders, she was not able to do this.
Kimm transported his son to and from day care three or four times during the first week that his wife was on bed rest. Her parents arrived and took care of that thereafter. The deviation in his route to go by the day care center was 2.6 miles each way. If you do the math, making this deviation twice a day four times a week resulted in about 21 miles of extra driving. Assuming he was driving a big SUV, we are talking maybe two gallons of gas used. But, I digress.
It is not clear in the decision how the issue came up, but ATF learned about this. In the ensuing investigation Kimm admitted that he had used the vehicle for this purpose. He stated that he thought he was maximizing the use of his time in using his assigned government vehicle (GOV) during the period where he was working a lot of overtime and involved in a dangerous investigation. He also noted that being in the vehicle meant that he could be available on the encrypted radio and making the detour in the GOV would allow him to get to work much faster since using a personal vehicle and returning home and then getting in the GOV would have resulted in a 40-minute delay because of heavy commuter traffic.
The ATF charged Kimm with “willful use of a GOV for other than official purposes” and suspended him for 30 days.
The Initial and Board Decisions
The AJ decided that the suspension was not warranted, finding “… that the appellant had a good faith belief that he had the discretion to rectify a family emergency and simultaneously maximize the time that he was available to perform his agency functions, and that his belief was not in reckless disregard of the agency’s regulations.” The AJ also found that the use was “minor personal use.”
The Board took a different perspective relying on the specificity of the agency’s directive regarding use of official vehicles. In this case the directive was very specific to the use in connection with law enforcement activities. The directive said that the use of the vehicle to carry an individual only if it was “… deemed essential to completion of the official mission.” Those circumstances were further explained as follows:
Determining whether the transportation of a particular person is essential to the success of the mission demands the exercise of good judgment which will be guided by the following rules: 1) Transportation is not to be furnished to anyone unless the vehicle is being used on an official mission and the presence in the vehicle of each person transported is essential to the completion of the mission. 2) When foreseeable arrests and seizures are to be made, no private person will be transported in a Government vehicle unless there is an emergency and the help of such person is necessary for the protection of the special agent engaged in these activities.
The agency further explained in another document that family members and Bureau employees were not deemed essential. The agency did provide that deviations could be authorized by a special agent in charge or higher official. Kimm did not request such authorization.
The Board did not accept Kimm’s explanation that he was making the most efficient use of his and the agency’s time nor was the use judged to be minor personal use. The Board reinstated the 30-day suspension. (Kimm v. Treasury, 64 MSPR 198, 1994)
The Federal Circuit’s Take
The Federal Circuit’s decision records matters to which the appellant testified. Kimm’s answers included the information about the deviation of a total of roughly 21 miles and his reasoning that saving 40 minutes each day while he was essentially on an around-the-clock investigation. He also testified that there was room under the regulations for minor deviations. “He testified that it was standard practice, for example, to make minor deviations to find a place to eat dinner while on a mission, or to alter one’s route to and from the office, if a death threat had been received. He also testified that the agency was lax in the enforcement of its GOV regulations, and cited a number of incidents that he believed had occurred to support this belief.”
The Federal Circuit found that the AJ’s determination that Kimm did not have actual knowledge that the agency would find the use as nonofficial was persuasive based on the appellant’s straightforward testimony and an improbable case put on by the agency. The Federal Circuit ruled that the MSPB did not articulate a reason for finding otherwise. The Federal Circuit also found that the agency policy left room for judgment by an employee about official use and determined that Kimm properly exercise that judgment. Kimm v. Department of the Treasury, 61 F.3d 888 (Fed. Cir. 1995).
The Federal Circuit did not find reckless disregard in this case nor was it found in the Felton case reviewed last month. There was unofficial use of a vehicle in both cases, but the per se violations did not meet the requirements for imposing the statutory penalty contained in 31 USC 1349. Word to the wise! [Editor’s note: Another word to the wise. Never, ever suspend for 30 days under 31 USC 1349. It does the agency no good, locks the management advocate into satisfying the statutory definition of GOV misuse, and requires that the agency defend its action before MSPB. As we have taught for over a decade in out FELTG seminars, the best practice in a situation like this is to charge “Unauthorized Use of Government Property” or the generic “Violation of Agency Procedures” and suspend for 14 days or fewer to avoid MSPB. Had that been done here, Treasury would have won this case.] Haga@FELTG.com