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Employer?s setting out the nature of acts of misconduct that adversely impact upon the ?efficiency of the service? critical

Employer?s setting out the nature of acts of misconduct that adversely impact upon the ?efficiency of the service? critical
Doe v. Department of Justice, #2008-3139, 2009 U.S. App. Lexis 10031 (Fed. Cir.)
Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2009 AELE

In an appeal challenging an FBI agent?s termination for videotaping sexual encounters with women without their consent, a federal appeals court remanded the case to the Merit Systems Protection Board for further adjudication.

One judge wrote that he would have reversed the Board outright on the ground that the agency failed to establish a nexus between the charged conduct and the efficiency of the service.The majority held that the Board failed to articulate a meaningful standard as to when private dishonesty rises to the level of misconduct that adversely affects the "efficiency of the service."

The articulation of a meaningful standard is necessary particularly in light of the apparent conflict between the FBI's policy on investigating personal relationships and its policies requiring their agents to act with integrity and honesty.

NYPPL Comment: From time to time disciplinary charges pursuant to Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a Taylor Law contract disciplinary procedure will be filed against a State employee or an employee of a political subdivision of the State alleging that his or her off-duty acts brought discredit on the reputation of the employer. Wilburn v McMahon, 296 AD2d 805, is an example of such a disciplinary action.

In Wilburn, a New York State Trooper, Douglas A. Wilburn, was charged with bringing discredit on the Division of State Police. Found guilty, Wilburn was dismissed from the Division.

Underlying the charge were allegations that that he used his position as a member of the Division to obtained and use information for a personal rather than an official reason.

The Appellate Division said that regardless of the merit of Wilburn?s testimony regarding his motivation, which testimony was specifically rejected by the disciplinary hearing panel, ?the fact remains that he used his position as a State Trooper to obtain information for personal reasons, i.e., purposes unrelated to his law enforcement duties.?

The Doe decision is posted on the Internet at:
http://www.cafc.uscourts.gov/opinions/08-3139.pdf

Full post as published by New York Public Personnel Law on July 29, 2009 (boomark / email).