The use of government travel cards is sometimes a hot topic for FedSmith readers. Numerous comments posted by readers on cases that relate to the topic of government charge cards have elicited vociferous comments. Certainly, the various third parties that routinely look at how charge cards have been used have found plenty of ammunition to justify their existence by finding numerous examples of waste, fraud and abuse with the various charge cards used by federal employees.
And, apparently, the topic of charge cards is a hot topic within the Merit Systems Protection Board (MSPB) as well. A recent article on Ethics, Credit Cards and Government Leaders highlighted an MSPB decision in which the Board did not think that misuse of a government charge card was a significant problem. As we noted in that article: "The ethics standard on this issue has been set by the MSPB. Unfortunately, it is lowering the ethical bar when government needs to be setting an example of higher standards. Kudos to Chairman McPhie for making the effort and his willingness to stand up for what he thinks is the right move for government."
Now, in an unrelated case, the Board has issued another decision on the use of a government travel card. This one was an appeal from an action taken against an employee of the Department of Transportation (DOT) on charges relating to misuse of a government travel card. The result in this case was different in that the Board upheld an action taken against the employee but reduced the penalty to a 15-day suspension after reviewing the allegations and surrounding circumstances.
The decision was controversial and resulted in an MSPB decision with three opinions.
Here is what happened. In May 2005, DOT proposed to fire an employee based on four separate charges relating to the misuse of his government travel card. The agency’s deciding official upheld two of the four charges and reduced the penalty to a 30-day suspension instead of removal.
The first charge that was upheld by the agency was “Obtaining travel advances through automated teller machine (ATM) withdrawals, which exceeded the amount authorized by your travel authorization,” and consisted of a single specification. The agency’s second sustained charge was labeled “Misuse of Government Contractor-issued Citibank Credit Card,” and consisted of 2 specifications.
The employee appealed to the MSPB. He contended, in part, that he was the victim of discrimination because of his religion and whistleblowing activity.
The MSPB concluded the agency failed to prove either specification of its charge that the appellant misused his government travel card by incurring expenses in excess of certain amounts listed on its travel authorization forms prepared in advance of travel.
The affirmative defense initially made by the appellant that action was taken because of his religion or any actions he considered to be whistleblowing were not factors in the Board’s decision.
But the MSPB concluded the agency proved that the employee covered $580 in reimbursable travel expenses with cash obtained on his government travel card at an ATM instead of charging those expenses directly to the card. Therefore, said the Board, “Some discipline may be imposed because the appellant’s action was inconsistent with the ATM withdrawal limit on his travel authorization.”
In view of previous suspensions against the employee for unauthorized absence during work hours (a 5-day suspension) and failing to follow instructions and making inappropriate comments (10-day suspension), and the facts of this case, a majority at the MSPB concluded that a 15-day suspension was warranted.
As was the case in the article summarized in Ethics, Credit Cards and Government Leaders, Board Member Barbara Sapin did not see where any penalty was justified. In her view, the agency’s limitation on ATM withdrawals was not an instruction to withdraw no more than the specified amount. Instead, she saw the agency as issuing guidelines to be used in assessing potential cash expenditures and an employee was apparently free to ignore the guidelines.
Board Chairman Neil McPhie disagreed with Sapin’s opinion and expanded his view by writing in a separate opinion that “it is too big a stretch to say that it was not misconduct at all for the appellant to exceed the $1300 ATM withdrawal limit set by the agency in the absence of exigent circumstances and without seeking permission to do so. “ Moreover, he concluded in his rebuttal, “The dissent’s suggestion that the appellant would have been left in the lurch if he had stayed within the ATM withdrawal limit is mistaken. The appellant was in Oklahoma City, not some remote outpost where goods and services could only be obtained with cash.”
You can read the entire decision, including all three written opinions, in Richard L. Rosenberg v. Department of Transportation, 2007 MSPB 72 (March 15, 2007)