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WILLIAM B. KRUGER, DENNIS J. LAKE, MARK POLLOCK, Appellants,
vs.
DEPARTMENT OF JUSTICE, Agency, and OFFICE OF PERSONNEL MANAGEMENT, Intervenor.
 
Case:
DOCKET NUMBER CH07528510621, CH07528510648, CH07528510649
 
Location:
MERIT SYSTEMS PROTECTION BOARD
 
Date:
January 8, 1987
 
Attorneys:
William B. Kruger, Westfield, Wisconsin, pro se, Michael L. Grotefend, Nekoosa, Wisconsin, for the appellants.
Robert M. Wilansky, Washington, D.C. for the agency.
James F. Hicks, Esquire, Washington, D.C., for the intervenor.
 
Court:
Daniel R. Levinson, Chairman; Maria L. Johnson, Vice Chairman; Dennis M. Devaney, Member
 

ORDER:

The agency has filed a petition for review of an initial decision that reversed the removal actions effected against appellants, because the agency failed to prove a link between apellants' off-duty misconduct and the efficiency of the service. The Office of Personnel Management (OPM) has intervened on petition for review under 5 U.S.C. SEC. 7701(d). For the reasons set forth below, the Board GRANTS the agency's petition for review of the initial decision under 51 Fed. Reg. 25,158 (1986) (to be codified at 5 C.F.R. SEC. 1201.115), *fn1 REVERSES the administrative Court's finding that the agency failed to prove a nexus for effecting the adverse actions, and MODIFIES the agency's selection of the penalty of removal to a sixty-day suspension for each appellant.

BACKGROUND

Proceedings Before the Agency

Appellants Kruger, Correctional Treatment Specialist, GS-11, Lake Correctional Officer, GS-7, and Pollock, Senior Correctional Officer, GS-8, were removed from their positions at the Federal Correctional Institution, Oxford, Wisconsin, effective August 24, 1985. They were removed based on a charge of possession and use of marijuana on July 10, 1985, outside a local public tavern while off duty. Appellants Kruger and Lake, and one or two other unidentified individuals, were observed by a co-worker on the night in issue, who reported their suspected misconduct to the agency.

Each appellant was subsequently interviewed by the agency, and each admitted in an affidavit that he had smoked marijuana with the other appellants on the night in question. Appellant Kruger stated that the marijuana cigarette he smoked with appellants Lake and Pollock on the night in question was his first and only instance of use of marijuana. The agency has not presented any evidence disputing Kruger's sworn assertion, and the agency's notice of decision effecting his removal stated that he was candid and credible in his sworn statement. Appellants Lake and Pollock admitted that they had previously used marijuana during their employment with the agency, and Lake admitted supplying the marijuana that appellants smoked. Lake and Pollock informed the agency's deciding official prior to their removal that they had enrolled in an extensive program of substance control. Proceedings Before the Administrative Court

Appellants petitioned for appeal to the Board's Chicago Regional Office. They waived their right to a hearing and the appeals were consolidated for decision. No claim of handicap discrimination based on drug use raised by any appellant.

After affording the parties the opportunity to develop the record, the administrative Court issued an initial decision finding: (1) that the charge against each appellant was supported by preponderant evidence, based on each appellant's admission of the alleged misconduct; (2) that appellants' off-duty misconduct was not so egregious that a presumption of nexus existed under Merritt v. Department of Justice, 6 M.S.P.R. 585, 605 (1981), and, accordingly, that the agency was required to prove nexus by a preponderance of the evidence; and (3) that the agency failed to carry its burden of proving that the adverse actions were taken for such cause as would promote the efficiency of the service. Therefore, the removal actions were reversed.

ISSUES

1. Did the administrative Court err by finding that the agency failed to show by preponderant evidence a nexus between appellants' off-duty misconduct with the efficiency of the service?

2. Is the penalty of removal within tolerable limits of reasonableness under Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1980)?

ANALYSIS

1. The administrative Court erred by finding that the agency failed to show by preponderant evidence a nexus between appellants' off-duty misconduct with the efficiency of the service.

The Board generally recognizes three independent means by which an agency may show a nexus linking an employee's off-duty misconduct with the efficiency of the service: (1) a rebuttable presumption of nexus that may arise in "certain egregious circumstances" based on the nature and gravity of the misconduct; (2) a showing by preponderant evidence that the misconduct affects the employee's or his co-workers' job performance, or management's trust and confidence in the employee's job performance; and (3) a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency's mission. See, e.g., Johnson v. Department of Health and Human Services, 22 M.S.P.R. 521, 526 (1984); Merritt, 6 M.S.P.R. at 590-606; Gallagher v. U.S. Postal Service, 6 M.S.P.R. 572, 576-77 (1981). Although the board has not heretofore explicitly recognized that nexus under the third category may be proven by showing that an employee engaged in off-duty misconduct that "is directly opposed to the agency's mission," Allred v. Department of Health and Human Services, 786 F.2d 1128, 1131 (Fed. Cir. 1986), we do so now.

Appellants smoked marijuana outside a local public tavern, and they were observed in their misconduct by at least one co-worker. The position descriptions introduced by the agency and the affidavit of the warden of the correctional institution show that, as correctional officers, appellants have close contact with inmates and that they are responsible for protecting property and inmate safety, enforcing security policies, regulations, and laws (including the laws proscribing narcotics and contraband), and assisting with inmate rehabilitation. *fn2

Appellants' off-duty misconduct could cause the public, and their co-workers, to question whether the drug laws were being properly enforced within the correctional facility. Clearly, the public's awareness of the use of unlawful drugs by correctional officers, even off-duty use, would detract from its confidence in the agency. See Stump v. Department of Transportation, 761 F.2d 680, 681-82 (Fed. Cir. 1985).

Moreover, appellants' misconduct draws the quality of the agency's rehabilitative programs into question. Appellants' use of marijuana is antithetical to the agency's law enforcement and rehabilitative programs that they are responsible for monitoring. See Allred, 786 F.2d at 1131. We find that such public perceptions of appellants' misconduct would impair the efficiency of the agency by undermining public confidence in it, thereby making it harder for the agency's other workers to perform their jobs effectively, even though the misconduct might not affect appellants' job performance. See Allred, 786 F.2d at 1132; Wild v. Department of Housing and Urban Development, 692 F.2d 1129, 1132 (7th Cir. 1982).

Appellants' evidence of satisfactory performance before and after their misconduct and the lack of evidence showing that their misconduct was publicized or a matter of notoriety within the community or their correctional institution, while relevant, do not rebut the inference that arises "from the relation between the misconduct and the agency's mission." Wild, 692 F.2d at 1133. See Stump, 761 F.2d at 681-82; Borsari v. Federal Aviation Administration, 699 F.2d 106, 111 (2d Cir.), cert. denied, 464 U.S. 833, 104 S. Ct. 115, 78 L. Ed.2d 115 (1983). The agency is not required to demonstrate a secific impact on appellants' job performance or service efficiency before taking action. See Borsari, 699 F.2d at 112; Merritt, 6 M.S.P.R. at 604. As Court Posner noted in Wild, it would be quite difficult, and generally impractical, for an agency to "prove, by the cumbersome methods of litigation, what ought to be obvious -- that the credibility and effectiveness of the department are undermined" by conduct antithetical to the agency's mission. Wild, 692 F.2d at 1133. Proof that the off-duty misconduct conflicted with the agency's mission suffices. Id. Likewise, when nexus has been established by such proof, there is no need to rely on a presumption. *fn3 Allred, 786 F.2d at 1131. Therefore, the Board finds that the agency has shown by preponderant evidence a nexus linking appellant's off-duty misconduct with the efficiency of the service.

2. The penalty of removal is not within tolerable limits of reasonableness under Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).

In Douglas, 5 M.S.P.R. at 306, the Board held that the purpose of its review of the agency's selection of the penalty is to assure that the agency conscientiously considered the relevant factors and, in choosing the penalty, struck a responsible balance within tolerable limits of reasonableness. The board also compiled a partial list of factors relevant to the Board's determination of the appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305-06. The Board shall apply the most relevant factors in this case.

Appellants' single act of misconduct did not result in their arrest for, or conviction of, any crime. Their use of marijuana, however, is a criminal offense and, even though committed while off duty, directly relates to the agency's mission. As correctional officers, appellants are law enforcement officials who occupy positions of great trust and responsibility and must therefore conform to a higher standard of conduct than those who are not employed in the law enforcement field. See Hickman v. Department of Justice, 11 M.S.P.R. 153, 156 (1982).

Appellants' employment and disciplinary records, however, weigh in their favor. The agency did not cite any prior disciplinary record for any appellant. Appellant Kruger had approximately twelve years of service with the agency, and his last performance rating at the time of his removal shows that he was performing at an outstanding level. Appellants Lake and Pollock each had approximately seven years of service and each was rated as performing at a fully successful level prior to his removal. Appellants' truthful admission of their misconduct on initial inquiry by the agency, their prior good performance records, and their lack of disciplinary records all indicate that they will not subsequently act in a dishonest or otherwise improper manner with the agency.

There is no evidence that the public or the inmate population knew of appellants' offense. However, there is evidence that at least some of appellants' co-workers knew of their offense, and the Federal Circuit has recognized that disciplinary proceedings are not secret. See Stump, 761 F.2d at 682.

In view of our findings above, the Board finds that appellants have potential for rehabilitation. See Douglas, 5 M.S.P.R. at 305. The agency did not dispute appellant Kruger's sworn admission that the night in question was his first and only instance of use of marijuana. Appellants Lake and Pollock truthfully admitted their prior off-duty use of marijuana and informed the agency prior to their removal that they had enrolled in an extensive program of substance control. Accordingly, we believe that the penalty of removal was an abuse of the agency's discretion.

Under Executive Order No. 12,564, 51 Fed. Reg. 32,889 (1986), the President has directed agencies to "initiate action to remove from the service any employee who is found to use illegal drugs and: (1) [r]efuses to obtain Counseling or rehabilitation through an Employee Assistance Program; or (2) [d]oes not thereafter refrain from using illegal drugs." 51 Fed. Reg. at 32,891. Appellants have expressed their willingness to obtain Counseling and rehabilitation, and to refrain from future use of illegal drugs. Thus, we think that Executive Order No. 12,564 and legislation emphasizing rehabilitation, the Federal Employee Substance Abuse Education and Treatment Act of 1986, H.R. 5484, 99th Cong., 2d Sess., 132 Cong. Rec. H9534-35 (1986), reinforce our conclusion that removal is inappropriate.

In view of appellants' potential for rehabilitation and the policies embodied in Executive Order No. 12,564 and recent legislation, the Board finds that a sixty-day suspension of each appellant is the maximum reasonable penalty in this case. See Douglas, 5 M.S.P.R. at 306. Appellants should be afforded an opportunity to undergo and complete rehabilitation consistent with the Executive Order.

ORDER

The agency is ORDERED to cancel the removal action against each appellant, to suspend each appellant for sixty days, and to retroactively restore each appellant effective August 24, 1985. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency is ORDERED to enroll appellants Lake and Pollock in an Employee Assistance Program for assessment and such counseling as may be required in the judgment of a qualified counselor, unless they prove that they have successfully completed a drug rehabilitation program. The agency is ORDERED to refer appellant Kruger to an Employee Assistance Program for assessment and such counseling as may be required in the judgment of a qualified counselor. This action must be accomplished within twenty days of the date of this decision.

The agency is also ORDERED to award back pay and benefits in accordance with 5 C.F.R. SEC. 550.805. See Spezzaferro v. Federal Aviation Administration, 24 M.S.P.R. 25 (1984); Robinson v. Department of the Army, 21, M.S.P.R. 270 (1984).

The agency is ORDERED to complete all computations and issue a check to each appellant for the appropriate amount of back pay within sixty days of the date of this decision final. Each appellant is ORDERED to cooperate in good faith with the agency's efforts to compute the amount of back pay due.

If there is a dispute as to the amount of back pay due, the agency shall issue a check to each appellant for the amount not in dispute within the above time frame. Each appellant may then file a petition for enforcement concerning the disputed amount.

The agency is hereby ORDERED to inform each appellant of all actions being taken to comply with the Board's order and the date on which it believes it has fully complied. See 5 C.F.R. SEC. 1201.181(b). Each appellant is ORDERED to provide all necessary information requested by the agency in furtherance of compliance and should, if not notified, inquire as to the agency's progress from time to time. See id.

Each appellant is hereby notified that if, after being informed by the agency that it has compiled with the Board's order, he believes that there has not been full compliance, he may file a petition for enforcement with the Chicago Regional Office within 30 days of the agency's notification of compliance. See 5 C.F.R. SEC. 1201.182(a). The petition for enforcement shall contain specific reasons why each appellant believes there is noncompliance, and include the date and results of any communications with the agency with respect to compliance. See id.

This is the final order of the Merit Systems Protection Board in this appeal. 5 C.F.R. SEC. 1201.113(c).

NOTICE TO EACH APPELLANT

You may petition the United States Court of Appeals for the Federal Circuit to review the board's decision in your appeal, if Court has jurisdiction. 5 U.S.C. SEC. 7703. The address of Court is 717 Madison Place, N.W., Washington, D.C. 20439. Court must receive the petition no later than 30 days after you or your representative receives this order.

 
Notes:

*fn1 On July 10, 1986, the Board republished its entire rules of practice and procedure in the Federal Register. For ease of reference, citations will be to the Board's regulations at 5 C.F.R. Part 1201. However, parties should refer to 51 Fed. Reg. 25,146-72 (1986) for the text of all references to this part.

*fn2 In Merritt, 6 M.S.P.R. 585, the appellant's off-duty use of marijuana occurred in the privacy of his own home rather than, as in the instant case, outside a local public tavern where appellants' misconduct was observed by at least one co-worker. Unlike the situation in the instant case, the agency in Merritt, further, did not submit the employee's position description setting forth the duties and responsibilities of the position in order to enable the Board to determine that the performance of such duties and the agency's mission were antithetical to the off-duty use of marijuana. To the extent that the Board's legal analysis of the nexus issue in Merritt did not explicitly recognize that nexus may be proven by showing that the employee's off-duty misconduct is antithetical to the agency's performance of its mission, as previously noted, we do so now in the instant case.

*fn3 To the extent that Merritt implied that nexus can only be shown by evidence of an actual impairment of service efficiency or by a rebuttable presumption arising from "egregious" conduct, it was in error.