This appeal is from the final decision of the Merit Systems Protection Board (MSPB) in Decision No. AT07528410288 sustaining the removal of petitioner by the Department of Transportation FAA (agency) for off-duty use and possession of cocaine and drug paraphernalia. We affirm.

*fn1 Background

Petitioner an air traffic controller for the FAA was apprehended by the police for possession and use of cocaine while attending a rock concert in Jacksonville Florida. Although no criminal charges were filed the incident was reported by the police to the FAA and following an internal investigation during which petitioner denied the charges petitioner was removed for "use of cocaine and possession of cocaine and drug paraphernalia."

Petitioner appealed his removal to the MSPB arguing that the charges had not been proved that his removal did not promote the efficiency of the service that the penalty was inappropriate for off-duty drug use and that the agency committed prejudicial procedural error in effecting his removal. Following a hearing the presiding official on April 26 1984 rendered a decision sustaining the removal action in all respects. This appeal followed.

Analysis

On appeal petitioner essentially reiterates his arguments made to the MSPB. The finding of the presiding official that the charge of use and possession was proved is fully supported by the evidence of record. Only one of petitioner's challenges to removal merits extended discussion. That argument concerns the penalty of removal itself. Petitioner insists that such penalty is excessive for a one time off-duty use of cocaine and that the agency's policy of terminating air traffic controllers "for any connection" with drugs is arbitrary and capricious.

Our review of an agency's choice of penalty is extremely limited. As recently stated in Schapansky v. Department of Transportation FAA 735 F.2d 477 484 (Fed. Cir. 1984):

Determination of the appropriate penalty is a matter committed primarily and largely to the discretion of the employing agency. Jones v. United States 617 F.2d 233 236 223 Ct. Cl. 138 (1980). Only in the exceptional case in which the penalty exceeds that permitted by statute or regulations or is so harsh that it amounts to an abuse of discretion may its imposition be overturned. Weston v. U.S. Department of Housing and Urban Development 724 F.2d 943 949 (Fed. Cir. 1983). Whether Court would have chosen a different penalty had it been making the initial choice is in the normal case irrelevant.

In this case the agency's table of penalties applicable to employees in any type of position in the agency provides a range of "one-day suspension to removal" for the first offense of:

Use possession purchase or being under the influence of [prohibited] substances where safety of persons or property IS NOT endangered thereby. Penalty is dependent upon the degree of adverse reflection on the public service. FAA Order 3750.5 "Subj: Conduct and Discipline -- Misuse of Alcohol Drugs and Other Substances" Table 1 Item 14b (Oct. 14 1971).

Moreover Order 3750.5 Item 35 provides:

Employees off duty may not possess use consume offer for sale sell or be under the influence of drugs or other substances the possession or use of which reflects adversely on the public service. [Emphasis added.]

Clearly the public's awareness of the use of drugs by an air traffic controller even off-duty use would detract from its confidence in the agency. While this incident may have received no publicity at the time disciplinary proceedings are not secret. Moreover Order 3750.5 provides in Item 4 that in assessing penalties responsible officials must consider inter alia "the involved employee's position in relation to the safety and efficiency of air transportation and job responsibility" as well as "the cooperation of the employee in reporting the use of any substance that he feels may come within the scope of these agency regulations."

In view of the above considerations particularly the nature of petitioner's position and given our strict standard of review we conclude that the agency's choice of removal the maximum allowable penalty was not arbitrary capricious or an abuse of discretion. 5 U.S.C. SEC. 7703(c)(1) (1982).

Conclusion

Each of petitioner's other arguments was fully addressed by the presiding official in his opinion of April 26 1984 and we agree with the reasons set forth in that opinion. Accordingly the decision of the MSPB is affirmed.

AFFIRMED