When is a Law Not a Law?

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By on January 17, 2018 in Human Resources with 0 Comments

Golden 3D question mark symbol appearing next to a judge's gavel on a wooden desk depicting raising questions about the law or a court ruling

I am not a lawyer.  Nevertheless, like many Feds I’ve been obliged to study law and legal cases relating to my field – labor and employee relations.  There are times when my lack of professional background in law becomes apparent.  With this article I am calling on attorneys to help me out, as I’m confused.

“We are a nation of laws,” or so I’ve heard.  Likewise, “No man is above the law” is a refrain echoed over most of my adult life.

So I’m wondering when, under absolutely normal circumstances, a Federal law that’s been on the books for decades can be intentionally ignored? Better put, when is a Federal statute so obnoxious that Feds are entitled to work around it?

Read it and weep

31 U.S.C. § 1349(b) has been around for as long as anyone can remember.  No doubt, an earnest FedSmith reader can tell us when it was originally passed and codified.  It reads as follows:

An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle or aircraft owned or leased by the United States Government (except for an official purpose authorized by section 1344 of this title) or otherwise violates section 1344 shall be suspended without pay by the head of the agency. The officer or employee shall be suspended for at least one month, and when circumstances warrant, for a longer period or summarily removed from office.

I’ve known of this law for close to 40 years.  I have learned over many of those decades that huge proportion of supervisors and managers are unaware of it.  Many of them have more than a decade of management experience.  This ignorance of a statute applying directly to the Federal workforce is compounded by the fact that most of my clients work in the field, where using a “G-car” (on and off of Federal installations) is common.  Seminar participants are shocked to learn that one-month without pay is the minimum punishment for what is often a minor transgression.

In my experience, 31 U.S.C. § 1349(b) is the only “mandatory minimum” penalty in our Federal administrative system.  (Please don’t get me started on “Zero Tolerance” proclamations!)  Not only has this penalty proven extreme for the crime of driving 15 miles from the official route of travel to look in on a friend or take a child to basketball practice, but it has proven counter-productive on several fronts.

A ton of prevention for a pound of cure

Back in the day, I was among those HR specialists imposing this penalty for Navy civilians unfortunate enough to get caught operating a G-car in the wrong place at the wrong time.  Moreover, I’ve heard and read varying interpretations of the term “misuse”.  Students in my Dealing with Performance and Conduct Issues seminars inevitably want to know how far from a motel can they drive for dinner, or whether the statute applies when away from home for over a weekend, etc., etc.

I know of some who are advised to rent personal vehicles for their non-work days away from home in order to preclude the possibility of a Misuse of a Government Vehicle charge.  I’ve even read a court decision which found that a vehicle leased in the employee’s name should not be considered as a government vehicle for purposes of applying this law.  The permutations are endless.

So it’s the law. So what?

What’s got me most confounded is advice that’s been given by colleagues (who have better credentials than mine) to avoid this provision of law.  Consultants and trainers like myself, are advising HR specialists to charge employees with “Misuse of Government Property” rather than “Misuse of a Government Vehicle” in situations where 31 U.S.C. § 1349(b) clearly applies.

I would speculate that all of my colleagues (past and present) would celebrate if this statute were revoked.  I would be among them.  What has me off balance is expert advice that in effect recommends circumnavigating this very specific law in favor of more generic discipline – for the sole reason of avoiding the draconian penalty congress intended.

The distractions of discipline

I’ve always been uncomfortable with government disciplinary actions and traditions.  It seems as if the formalities used by me (past) and other HR specialists (present) when “framing charges” resemble those district attorneys or prosecutors would use in court.  Agency “Tables of Penalties” and legalistic reprimands, suspensions, etc. may impress the uninitiated.  I find them cumbersome, bureaucratic, and silly.

Consider these examples. We in HR have been advised over the years not to charge an employee with “Theft” but rather “Unauthorized Possession of Government Property” in order to avoid litigating over the thief’s intent to steal.  We no longer use the term “Insubordination”, but rather charge the individual with “Disrespectful Conduct” or “Discourtesy”.  These workarounds are inane but necessary in the legalistic world of Federal discipline.

These practices often engender more distractions than positive effects.  We tend to lose sight of the fact that reprimands, suspensions and removals are intended to correct behavior issues and ensure they’re not repeated.  Instead of the employee’s conduct, grievances and appeals commonly focus on whether an agency has “proven the charge”.  When dealing with government vehicle misuse, most HR folks have learned they must prove intent or willfulness.  This emphasis on proving “charges” has preoccupied the HR community; however, what a supervisor and coworkers care about are issues of behavior and non-compliance.

A plea for help

31 U.S.C. § 1349(b) is a stupid-but-specific law.  “Misuse of a Government Vehicle” is a pretty straightforward charge.  While proving the case can be problematic, the law here is clear.  “Misuse of Government Property” could apply to copiers, computers, tools, and any other property owned by Uncle Sam… except vehicles and aircraft, because they are specifically mentioned in statute.

My question is, when is it okay to work around Federal law for our convenience or because we find the law ridiculous because the prescribed penalty is excessive?

While I welcome all answers to this question, there is a complicating factor some readers may be considering as they evaluate it.  Suspensions longer than 14 days are appealable to the Merit Systems Protection Board.  Because a 30-day suspension for “Misuse of a Government Vehicle” is the required minimum according to law, the already excessive price tag of a lengthy suspension is multiplied when the potential for litigation before an Administrative Judge is added to the cost.

The inconvenience of a 30-day suspension and potential for MSPB appeals certainly create an ever greater temptation to avoid the requirements of the law relating to government vehicles.  Whether one could settle an appeal by substituting the more generic charge is a different question.  The initial charge is what concerns me.

So what do those who know have to say?

Educated responses, either in the form of an article in response to this one, or a comment below, will be appreciated.  How should I (and Federal HR specialists across the country) advise our management clients when misuse of a government vehicle is discovered?  Current Feds may want to forward this to their solicitor’s office or office of counsel for their take/opinion.

In the end, it would be useful if the Office of Personnel Management were to weigh in on this matter.  If OPM were to tell us that citing 31 U.S.C. § 1349(b) is optional and that charging an employee with “Misuse of Government Property” (which could lead to a reprimand or short suspension) is an acceptable alternative to the 30-day minimum prescribed in law, my question would be moot.  Waiting for OPM is, however, an occupational hazard for us all.  For now, I’ll be interested to read what attorneys with government positions/experience have to say.

© 2018 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

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About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainingfeds.com.

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