Legal Briefs: Court TV

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.

When Navy employee Ray Perez found out he was going to be laid off, he resigned. Then he appealed the reduction-in-force to the Merit Systems Protection Board, claiming the agency told him he could do so even though he had quit.

Over Perez's objections, the admininstrative judge held a hearing on the case via videoconference. Witnesses testifying during the hearing denied giving Perez inaccurate information about his appeal rights, and the judge dismissed Perez's appeal for lack of jurisdiction.

Perez then filed an appeal with MSPB. In his affidavit, he said the judge could only see the back of witnesses' heads and an occasional profile view throughout the hearing. With no videotape available to contradict Perez's account, the board agreed that the video hearing did not lend itself to witness credibility.

"Apart from the witnesses' faces, there may have been other demeanor aspects of the witnesses, (e.g. sweating, hand gestures, [and] where their attention was directed on direct and cross examination) that were not captured on the video monitor but which the [judge] could assess in an in-person hearing," the decision stated.

The Board denied the judge's decision and requested that an in-person hearing be held.

Lesson: What you can't see can hurt you.

Perez v. Navy (MSPB DC-0752-98-0846-I-1) MSPB, June 12, 2000.

Rules of Relocation

After 27 years of federal service, Arnett Flowers retired in 1999 from the Federal Correctional Institute (FCI) in El Reno, Okla. Two years earlier, Flowers was transferred to El Reno from the FCI in Tallahassee, Fla., taking on the job as warden there-a senior executive position

. Flowers left his job in Florida on June 10, 1997 and arrived at his new duty station in Oklahoma on June 13. His reassignment was effective June 9, but his senior executive status was not official until June 12.

When SES employees retire, they are entitled to "last move home" benefits-including travel expenses and costs of transportation and temporary storage of household goods, provided they meet certain eligibility criteria. The Bureau of Prisons denied Flowers last move home benefits on the grounds that the transfer from Tallahassee to El Reno was from one non-SES position to another; the SES appointment was merely a change in status at a later date.

Flowers filed his case with the Board of Contract Appeals, whereupon the bureau expanded its eligibility requirement to include those transferring into an SES career position and awaiting confirmation from the Office of Personnel Management.

The Board agreed with the bureau's modification, but said it would have found in favor of Flowers regardless of the revision.

"If having the employee serve in an SES career position is the purpose of the relocation, this condition is met, no matter whether, technically, the appointment occurs on any particular day. Mr. Flowers asserts, and the agency does not deny, that he moved to El Reno in large part because the warden's job there was a career SES position. This satisfies the eligibility requirement at issue," the decision said.

Lesson: When it comes to moving reimbursements, don't pull a fast one on an executive's last one.

In the Matter of Arnett M. Flowers (GSBCA 15267-RELO) GSBCA, May 18, 2000.

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