ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.
In July 1996, Government Executive published a letter from Deane Zeller, then district manager at the Bureau of Land Management's Salt Lake City field office (See "Letters," July 1996). His letter, in response to "The Great Divide" (April 1996), discussed his views of BLM's affirmative action program.
Other managers at BLM were offended by Zeller's letter and complained to top agency officials. In response, BLM Director Mike Dombeck, now the chief of the Forest Service, sent a memorandum to all BLM employees on Sept. 10, 1996, saying that Zeller's letter was not representative of BLM's official position. Dombeck also sent a response to Government Executive, which was published in the December 1996 issue (See "Letters," December 1996).
BLM also put a letter of reprimand in Zeller's file for using his official title in a letter involving a matter of personal interest. Zeller was then reassigned to what he says is a "meaningless, dead-end job." Zeller's filing of grievances protesting the letter of reprimand and the reassignment with the agency were denied.
This week, the Office of Special Counsel filed a petition with the Merit Systems Protection Board on Zeller's behalf, charging that BLM committed a prohibited personnel practice by violating Zeller's First Amendment rights. OSC wants the agency to officially retract its letter of reprimand against Zeller and give him a meaningful job.
Though BLM says its actions were taken because Zeller used his official title when expressing a personal opinion, OSC alleges the agency was in fact bothered by the opinions Zeller expressed, which clearly did not represent the official views of the agency. OSC noted that another BLM manager expressed her opinions and allowed her title to be used in "The Great Divide," but she was not reprimanded.
The government's set of ethics regulations does not "make a blanket ban on the use of official titles," OSC said. "It only bars the use of official titles when the use of such titles would result in personal gain or imply that the government sanctions or endorses the actions of the employee."
Lesson: Punishing employees for expressing opinions is a tricky business.
Office of Special Counsel petition to the Merit Systems Protection Board on behalf of Deane H. Zeller, Oct. 19, 1999
What You Don't Know
Charles M. Ferguson, an employee at Robins Air Force Base, Ga., asked the General Services Board of Contract Appeals to instruct the Air Force to reimburse him $296.78 for a rental car and part of a commercial airline ticket used to travel to a conference.
Ferguson's request was denied because government-furnished transportation was available in lieu of a rental car, and because he could have taken a military aircraft that left within an hour of his commercial flight.
Undeterred, Ferguson submitted new evidence to the board, hoping for a reversal of the original decision. He showed that he didn't know about the ban on rental cars and that by taking the commercial flight he was able to attend a training course for free that ultimately would help save the agency far more money than the cost of the ticket.
Neither excuse held legal water, the board ruled. Ferguson's use of the rental car and the flight were not essential to government business-period.
Lesson: What you don't know can hurt you.
Charles M. Ferguson v. Department of the Air Force, General Services Administration Board of Contract Appeals (GSBCA 14568-TRAV), October 14, 1999.
Angry Doctor
A doctor at a Veterans Affairs clinic in Florida, Mohammed Yunus, was fired for verbally and physically abusing his subordinates. Yunus appealed his firing to the Merit Systems Protection Board, claiming he was really dismissed for exposing a subordinate's wrongdoing.
The MSPB didn't buy Yunus' story. The boss who fired Yunus didn't even know about his alleged whistleblowing. And besides, the board said, the abuse he inflicted would've justified his firing anyway.
Lesson: Leave the whistleblower reprisal allegations to the real whistleblowers.
Mohammed Yunus v. Department of Veterans Affairs, Merit Systems Protection Board (AT1221990160-W-1), October 7, 1999
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