Legal Briefs: Firing foulup

ksaldarini@govexec.com, klunney@govexec.com

Every Friday on GovExec.com, Legal Briefs reviews 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.

Joseph Perfetto, a safety technician in his first year of probationary employment with the Navy's Naval Support Activity (NSA) in Naples, Italy, was a top-notch worker, according to his supervisor. So it was a surprise when the director of NSA's Public Safety Department informed the supervisor that Perfetto was to be fired.

Earlier that year, Perfetto, unbeknownst to the supervisor, had filed a grievance against the Public Safety Department director. When Perfetto's supervisor argued that NSA couldn't afford to lose Perfetto, he was criticized for not providing information about the grievance.

The Office of Special Counsel stepped in on Perfetto's behalf and filed a petition with the Merit Systems Protection Board. OSC prepared a 17-page report arguing that NSA's actions were illegal because Perfetto was fired for speaking out against his employer.

Perfetto and the Navy settled the case outside of court. Under the agreement, Perfetto returns to work with full relief, and all references to his proposed termination will be removed from his personnel files.

Lesson: Even probationary employees have rights.

Joseph Perfetto v. Department of the Navy, CB-1214-00-0009-T-1, Merit Systems Protection Board, May 15, 2000.

Going Solo

Even though the Agriculture Department's Office of Inspector General encouraged Renea Webb to carpool with her coworkers to a training session in Maryland, she choose to travel alone, expecting to receive full compensation for her expenses.

Webb, a New Jersey resident, used her own car to travel to Maryland and claimed reimbursement at the rate of 31 cents per mile, the highest rate available in September 1997. The agency, however, only reimbursed her at the rate of 23.5 cents per mile.

According to the Federal Travel Regulation (FTR), employees must use the most cost-effective means available for government travel. Relying on provisions published in an IG office manual, USDA reasoned that Webb was not entitled to the higher rate because she chose to drive alone instead of in a carpool, which was the cheaper alternative.

But the FTR also says that reimbursements at lower rates can only occur in two circumstances, both of which involve the use of a government-furnished car. Since the government did not make a rental car or a government-owned vehicle available for Webb's travel, the Board of Contract Appeals ruled she was entitled to reimbursement at the highest rate available at that time-31 cents per mile. Although carpooling may have been more advantageous for the government, according to the FTR, it is voluntary.

Since the FTR was passed by Congress, it trumps the provisions in the OIG manual.

Lesson: Carpooling can't be compulsory.

In the Matter of Renea A. Webb (GSBCA 15220-TRAV) GSBCA, April 10, 2000

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