In Nelson v Department of Transportation (CAFC No. 2018-1880 (nonprecedential) 6/11/19), a protection services employee assigned to the Office of the Secretary of Transportation (DOT) skipped out on paying for his parking fees in the agency’s underground garage more than a few times—some 455 times to be exact. This led to a sixty-day suspension and he was demoted from a GS-13 to a GS-12.
Mr. Nelson was a Protective Service Specialist, GS-13, located in the Office of the Secretary. As such, his job required that he have a Special Deputation from the U.S. Marshal Service. Several years into this position, the agency learned Nelson had failed to pay for his parking some 455 times over a three-year period. The lost parking revenue amounted to $4 to 5 thousand dollars. The agency immediately placed Nelson on administrative leave and his Special Deputation was terminated. (Opinion p 2)
Several months later, DOT initiated discipline that led to a 60-day suspension and a one-grade demotion to a position that did not require the Special Deputation that he no longer had. The stated reasons were “Conversion of Government Property” and “Inability to Perform the Essential Functions of Your Position” (the demotion charge). (p. 2)
The Merit Systems Protection Board (MSPB) held a hearing on Nelson’s appeal in which he argued the penalty was too harsh given his unblemished record, his years of service, his remorse, and the fact that he reimbursed the parking fees. The Administrative Judge took all of this into consideration, but found DOT had properly weighed these and other pertinent factors (“the Douglas Factors”) in deciding the penalty. (p. 4)
Nelson took his appeal to court. He did not deny the charges, nor did he deny that his position required the Special Deputation that he no longer had, but he argued the penalty was too harsh. (pp. 4-5)
The court agreed that the Board committed no error when it decided that the penalty was reasonable. The AJ weighed all the required factors in his decision, including that “a law enforcement officer is ‘subject to a higher standard of conduct than other Federal employees.’” (p. 6)
The appeals court has affirmed the MSPB.
Nelson lost his bid to overturn the 60-day suspension and the one-grade demotion. However, many practitioners would argue that Nelson is a lucky person to still have a job after trying to skip out on paying 455 parking fees amounting to several thousand dollars, an action that amounts to a criminal violation, as the court noted. The agency arguably bent over backwards to propose and then decide on a 60-day suspension and a one-grade demotion as opposed to removal for a law enforcement official.