Use of a Government Car for This Outside Employment Venture Leads to Removal

How many ways can a federal employee get in trouble in one day? This agent had a very bad day and lost his job.

A recent Federal Circuit case illustrates how a federal employee can get into trouble exercising bad judgment, but then making it that much worse by not coming clean with the agency when caught. (Love v. Department of Justice, C.A.F.C. No. 06-3071 (non precedent), 6/7/06) The facts below are taken from the court’s decision.

Mr. Love was fired from his position as a criminal investigator in the Little Rock office of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. His troubles centered around a fateful, all around bad day when he was on duty and decided to show a rental house he owned to a prospective tenant. He left the office around lunch time in a government vehicle. He drove to the rental house. As luck would have it, he discovered an intruder inside his house. He drew his ATF service weapon and chased the intruder out of the house. The guy fled out a window, and some how the weapon discharged in the general direction of the fleeing intruder.

Love called the police to report the break-in. While he waited for them to arrive, the prospective tenant showed up. So, Mr. Love showed her the house and arranged to meet with her later in the day to give her a rental application. (This, of course begs a totally irrelevant but at this point burning question, at least in my mind—did Love happen to mention to this woman that he had just chased an intruder out of the house or was he afraid that might kill the deal? Unfortunately, the court’s decision does not satisfy my curiosity on this point.)

Conveniently, just after the prospective tenant left the rental house, the police showed up. Love and the officer searched the house, and discovered a second intruder hiding in a closet. (I guess the tenant had not been too concerned about adequate closet space. And, in case you are wondering by now, I am not making these facts up! But, read on.)  The officer collared the second intruder and Love headed back to work, having never once mentioning to the officer that he had drawn his weapon and fired it earlier at the first intruder.

Apparently not one to waste a trip in the government vehicle, Mr. Love stopped to meet the prospective tenant, but she did not show. Love finally returned to his office where he and a fellow agent set out on an assignment across town. While on the way, the police officer called to ask about the matter of Love having fired his gun at the first intruder.

The police officer learned about this from her interrogation of the second intruder. Love admitted he had fired his service weapon and the officer asked him to come to the police station to have a chat about this. At this point Love picked up his personal vehicle and drove to the police station.

When Love returned to work, he ran into his superior and told him about the incident. They had a disagreement about whether Love was required by ATF regulations to report the discharge of his service weapon. Eventually the incident came to light and was investigated by ATF. The investigation led to Mr. Love’s removal based on four charges: (1) mishandling a service weapon; (2) failure to report discharge of a service weapon; (3) misuse of a government vehicle; and (4) lack of candor. ATF dropped the first charge but sustained the other 3 in the removal action.

On appeal to the Merit Systems Protection Board, following a hearing, the Administrative Judge rejected the fourth charge as not supported by the evidence. But the other two charges were upheld.

Love went to the appeals court where he argued that the two charges upheld by the Board were not supported by the evidence. The court disagreed with Love. As to his argument that removal was an unreasonable penalty, the court also disagreed with Love, citing the seriousness of the two charges that were sustained. It did not help matters before the Board or the court that Love had previously been suspended for providing untrue statements and for misuse of a government vehicle.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.