Employee Using Government Material for Outside Employment Fired But Wins on Appeal

An Air Force employee who was fired for misuse of government resources has won his fight to keep his job.

An Air Force employee fired for misuse of government property in his personal side business has convinced the two members of the appeals court panel to overturn his removal. (Crane v. Department of the Air Force, C.A.F.C. No. 2006-3238 (nonprecedential), 7/6/07) The following facts are as reported in the court’s decision.

Crane, a WG-9 mason with the 99th Civil Engineering Squadron at Nellis Air Force Base, Nevada, had a side business doing masonry, which his Air Force supervisors knew about.

The Las Vegas Motor Speedway liked the masonry barriers that Crane had built at the base and asked Crane’s direct supervisor if they could get some just like them built at the Speedway. MSgt Huibregtse put Crane in touch with the Speedway representative. In his testimony at Crane’s removal appeal hearing before the Merit Systems Protection Board, MSgt Huibregtse said he fully understood that Crane had a side business and that Crane would be contacting the Speedway in his personal capacity.

To support his private bid to the Speedway, Crane built a prototype concrete barrier using Air Force surplus materials and stamped “LVMS” into it. He did this under the guise of doing a different kind of barrier using lighter materials as a prototype for the base. However, Crane stamped “LVMS” into the prototype barrier apparently without the knowledge of his superiors.

A few months later the Air Force opened up an investigation into Crane’s use of government materials for his outside business. When a new base commander arrived on the scene, he proposed Crane’s removal for his misuse of the government materials.

Crane appealed the decision to remove him to the Board. The Administrative Judge found that Crane had used government concrete for the private business bid and sustained his removal. Crane took his case to the Federal Circuit.

The majority’s decision turned on the fact that the Air Force has always known about Crane’s side business and had not warned him that it disapproved of these activities. At oral argument the court asked Government Counsel, “But you do know that he was never disciplined or removed or told to cut it out?” to which the Government replied, “There is no evidence in the record as to that, Ma’am. ” (p. 5)

The government acknowledged that Crane’s Air Force superiors knew about Crane’s proposal to the Speedway, knew he was using government surplus material to build a prototype, and that it was Crane’s immediate supervisor that had facilitated Crane’s contact with the Speedway in the first place. But, they argued that by placing the “LVMS” on the prototype Crane stepped over the line since he clearly intended to use the barrier to solicit the private business; therefore, removal was warranted. (p. 6)

This passage best sums up the majority’s problem with the government’s case: “On the record before us, where Mr. Crane’s supervisors knew of and authorized the charged conduct (except for the placement of the initials), and Mr. Crane was not instructed or warned that he had violated various rules, the penalty of separation from the service was not reasonably within the Douglas parameters.” (p. 7, citing Douglas v. Veterans Admin., 5 M.S.P.R. 280, 303 (1981))

The court therefore remands to the Board, orders Crane’s reinstatement, and instructs the Board to determine “any appropriate disciplinary action” with consideration of all the Douglas factors. (p. 8)

There is a dissenting opinion in the case that points out that the condoning of Crane’s outside activities by his bosses is “irrelevant” since he was fired for misuse of government resources, and not for conduct of an outside business. (p. 9)

The dissent believes no warning to Crane was necessary where he “…went ahead and constructed his prototype using government equipment and materials, stamped it with the letters “LVMS,” used it in a proposal to the Las Vegas Motor Speedway (which just so happens to have the initials “LVMS”), never submitted the completed prototype to anyone in his chain-of-command, and then had it destroyed once he learned the Air Force was investigating him for misusing government property.” The dissent concludes, “Mr. Crane should have known better.” (p. 10)

The dissent would give deference to the agency’s penalty decision: “The circumstances of this case clearly do not warrant withholding that deference.” (p. 10)

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.