ARTICLES
CRIMINAL CONVICTIONS, "OFF-DUTY
MISCONDUCT," AND FEDERAL
EMPLOYMENT: THE NEED FOR
BETTER DEFINITION OF THE
BASIS FOR DISCIPLINARY ACTION
NEAL MILLER*
TABLE OF CONTENTS
Introduction ................................................
I. The Procedural Framework for Disciplinary Actions ....
II. The Prevailing Precedents .............................
A. The Presumption Doctrine Emerges ...............
B. The MSPB Adopts the Presumption Doctrine ......
1. Applying the nexus principle ...................
2. Nexus shortcut .................................
3. Special positions ...............................
C. Handicapped Employee Defense to Nexus Finding.
D. Mitigating Nexus: The Penalty Phase ..............
1. Rehabilitation evidence ........................
2. Alternative penalty .............................
3. Consistency of penalty .........................
4. Explicit consideration of Douglas factors ........
III. Parallel Doctrines ......................................
A. State Employment/Licensing ......................
B. Equal Employment Opportunity ...................
C. Negligent Hiring Doctrine .........................
Policy
Recommendations ...............................
IV.
870
872
874
875
879
881
886
887
888
889
890
891
892
893
894
894
897
901
902
Principal Associate, Institute For Law and Justice, Alexandria, Va. B.A., Dickinson
*
College, 1962; J.D., University of Pennsylvania, 1968.
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A. Overall Assessment ................................
B. Nexus Determinations .............................
1. Typology of convictions ........................
2. Typology of related employment
"interferences". ...............................
3. Other nexus factors ............................
C. Penalty Determinations ............................
D. Summary Assessment and Recommendations ......
902
904
905
907
908
909
911
INTRODUCTION
The Civil Service Reform Act of 1978 (the Act) established the
standards and procedures to be applied in Federal Civil Service disciplinary proceedings.' The Act, a combination of prior law, 2 legislative innovation, 3 and incorporation of judicial rulings, 4 codifies
the principle that a federal employee may not be disciplined or removed for misbehavior off the job unless that misconduct directly
relates to job performance or that of co-workers. 5 The agency must
6
show a nexus between the conviction and the job requirements.
The nexus requirement has generated a considerable body of case
7
law where the issue is the effects upon job performance of off-duty
1. Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified
as amended in titles 5, 10, 15, 28, 31, and 39 U.S.C. (1988) and 42 U.S.C. (1982)).
2. See S. REP. No. 969, 95th Cong., 2d Sess. 50, reprinted in 1978 U.S. CODE CONG. &
ADMIN. NEWS 2723, 2772 (standard for adverse action identical to existing provision). The
pre-Act standard was contained in the Lloyd-LaFollette Act, Act of Aug. 24, 1912, ch. 389,
§ 6, 37 Stat. 539, 555 (codified as amended at 5 U.S.C. § 7513(a) (1988)), and the Veterans'
Preference Act of 1944, ch. 3559, § 14, 58 Stat. 390-91 (codified as amended at 5 U.S.C.
§§ 7513(a)-(b), 7701 (1988)). For a general discussion of the history of civil service reform,
see Case, Federal Employee Job Rights: The Pendleton Act of 1883 to the Civil Service Reform Act of
1978, 29 How. LJ. 283, 287-306 (1986).
3. See 5 U.S.C. § 2302(b)(10) (1988) (prohibiting discrimination based on non-workrelated conduct that does not adversely affect employee's performance); id. at § 7703(c) (defining jurisdiction and scope of review). For a discussion of pre-Act standards, see Comment,
JudicialReview of Dismissals of Civil Service Employees for Off-Duty Misconduct: The Approach of the
Federal Circuit, 34 AM. U.L. REv. 439, 442 nn.24-33 (1985).
4. See infra notes 30-41 and accompanying text (discussing pre-Act interpretations of
Court of Claims and United States Courts of Appeals).
5. See 5 U.S.C. §§ 7501-7514 (1988) (providing that disciplinary action can be taken
where continued employment will jeopardize agency).
6. The Act creates two types of disciplinary actions. Chapter 43 of the Act covers disciplinary action taken for poor performance. 5 U.S.C. § 4301-4315 (1988). Chapter 75 deals
with disciplinary proceedings brought to improve the efficiency of the service. 5 U.S.C.
§ 7501-7514 (1988). The nexus requirement applicable to chapter 75 arises from 5 U.S.C.
§ 2302(b)(10) (1988) which states that an agency may not "discriminate for or against an
employee or applicant for employment on the basis of conduct which does not adversely affect
the performance of the employee or applicant or the performance of others...." Congress
explicitly authorized that criminal convictions would be considered under this provision. See
H.R. CONF. REP. No. 1717, 95th Cong., 2d Sess. 131, reprinted in 1978 U.S. CODE CONG. &
ADMIN. NEWS 2723, 2864.
7. The line between off-duty and on-duty misconduct is often a blurred one. Compare
Taylor v. United States Postal Serv., 23 M.S.P.R. 48, 52 (1984) (upholding removal for off-
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behavior resulting in a criminal conviction. Implementation of congressional intent in adopting the nexus principle was left primarily
to the executive branch. 8 Congress did not enact detailed rules to
enforce this principle, and never explicitly considered amendments
to the then existing "suitability" rules governing off-duty misconduct.9 In the absence of explicit congressional directives, the Act
left further implementation to the newly created Office of Personnel
Management (OPM), which replaces the former Civil Service Commission (CSC). OPM has never acted to revise the CSC regulations
to comply with the Act's nexus requirement. Consequently, guidance on the integration of old rules with new policies has been
accomplished only on a case by case basis. This reliance upon a
common law approach to rule development has not served the efficacious development of the law in civil service disciplinary
proceedings.
To appreciate this conclusion one must understand both the disciplinary process of federal employees and the conflicting substantive rules governing this process. Of special concern is the Act's
grant of diffuse allocations of jurisdiction for establishing disciplinary rules.' 0 This Article first discusses the administrative process
duty sale of narcotics planned on agency premises) with Hebron v. Dep't of Commerce, 36
M.S.P.R. 554, 557 (1988) (finding removal reasonable for off-duty use of marijuana during
lunch break followed by on-duty return to work because of "lingering effects").
8. The Act reorganized the Civil Service Commission and distributed its functions
among the Merit Systems Protection Board (MSPB), the Office of Special Counsel, the Office
of Personnel Management (OPM), the Equal Employment Opportunity Commission (EEOC),
and the Federal Labor Relations Authority (FLRA). See Reorg. Plan No. 1 of 1978, 43 Fed.
Reg. 19,807 (1978), reprintedin 5 U.S.C. § 1155 (1988), and in 92 Stat. 3781 (1978), superceded
by Civil Service Reform Act of 1978, Pub. L. No. 95-454, § 905, 92 Stat. 1111, 1124; Reorg.
Plan No. 2 of 1978,43 Fed. Reg. 36,037 (1978), reprintedin 5 U.S.C. § 1158 (1988), and in 92
Stat. 3783 (1978), superceded by Civil Service Reform Act of 1978, Pub. L. No. 95-454, § 905,
92 Stat. 1111, 1224 (1978) (codified as amended in tides 5, 10, 15, 28, 31, 39, and 42 U.S.C.
(1982)).
The Act established a list of prohibited personnel practices thereby providing specific statutory protections. 5 U.S.C. § 2302(b) (1988). Congress may have been intentionally vague
about the implications of the nexus requirement in its listing of prohibited personnel practices. Congress gave jurisdiction over these practices to the Merit Systems Protection Board
Special Counsel, who was to function as an advocate of employees' rights. See S. REP. No.
969, 95th Cong., 2d Sess. 6, reprinted in 1978 U.S. CODE CONG. & ADMIN. NEws 2723, 2728.
Thus, Congress may simply have intended to provide a new procedure, Special Counsel intervention, rather than a new standard of review. Id This limited interpretation of congressional intent was rejected in Merritt v. Department of Justice, 6 M.S.P.R. 585, 604 (1981)
(finding that Congress intended MSPB and appellate courts to enforce requirement of nexus
between employees' off-duty misconduct and effect on Agency's efficiency). Congress did not
foresee that the Special Counsel would not act as an employee advocate. See Pub. L. No. 10112 (1989) (reestablishing Special Counsel's Office and its relationship with MSPB).
9. CSC Determination, 5 C.F.R. § 731.202 (1978); Federal Personnel Manual Chapter
751, subchapter 1-2(c)(2) (revision of December 21, 1976).
10. See Reorg. Plan No. I of 1978,43 Fed. Reg. 19,807 (1978), superceded by Civil Service
Reform Act of 1978, Pub. L. No. 95-454, § 905, 92 Stat. 1111, 1224 (1978) (codified as
amended in titles 5, 10, 15, 28, 31, and 39 U.S.C. (1988) and 42 U.S.C. (1982)) (allocating
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for adverse personnel actions, including responsibilities for its regulation. The second section reviews legal precedents applicable to
the issue of disciplining a federal employee on the grounds of offduty misconduct resulting in a criminal conviction. Part three considers parallel legal doctrines, including state law public employment issues, equal opportunity, and negligent hiring in tort liability.
The final section synthesizes these doctrines and concludes with
policy recommendations, including guidelines for determining the
relevance of criminal convictions to disciplinary actions and the necessity of considering rehabilitation in these proceedings.
I.
THE PROCEDURAL FRAMEWORK FOR DISCIPLINARY ACTIONS
The supervisor of an employee may start disciplinary proceedings
against a federal employee by issuing a proposal to discipline."' A
deciding official reviews the proposal to discipline and issues the
agency ruling. 12 In most agencies, the proposing and deciding officials are separate individuals,' 3 with the deciding official at a higher
supervisory level than the proposing official.
The employee may appeal an adverse agency decision to discipline to the Merit Systems Protection Board (MSPB). 14 The MSPB
is a quasi-judicial agency established to hear employee appeals from
federal employee disciplinary rule responsibility between MSPB, Office of Special Counsel,
OPM, EEOC, and FLRA).
11. 5 U.S.C. § 7513(b) (1988).
12. 5 U.S.C. § 7513(b)(4) (1988). The Act does not provide for further review by the
head of the agency. IdL Nonetheless such review may occur, because the agency head has
implicit discretion to overrule any actions of his or her managers.
13. The necessity that the two be separate is typically mandated by agency regulation.
There is no due process right to separation between the proposing and deciding individuals
as long as the official is open to evidence from the employee in opposition to disciplinary
action. See Teichmann v. Department of Army, 34 M.S.P.R. 447, 449 (1987) (finding that in
absence of agency regulation to contrary there is no requirement that deciding and proposing
officials be separate persons).
14. 5 U.S.C. § 1205(a) (1988). Reprimands and suspension from employment for a period less than 14 days are not subject to MSPB review. 5 U.S.C. § 7512 (1988). Alternatives to
direct appeal and de novo hearing to the MSPB are arbitration proceedings under union contracts or agency regulations. 5 U.S.C. § 7121(d) (1988). Under 5 U.S.C. § 7701(c) (1988),
the MSPB may review disciplinary actions other than those based upon unacceptable performance utilizing a preponderance of the evidence test for arbitration findings where the employee contends that a prohibited personnel practice under 5 U.S.C. § 2302(b)(1) exists and
the action could have been appealed to the MSPB directly. See, e.g., Smith v. Department of
Navy, 37 M.S.P.R. 560, 563 (1988) (approving jurisdiction for appellant alleging removal for
alcohol abuse violated prohibited personnel practice of handicap discrimination); Carr v. Department of Air Force, 32 M.S.P.R. 665, 667 (1987) (stating handicapped condition of alcoholism meets exception to rule of non-reviewability of arbitrator decision); Ogden Air
Logistics Center v. American Fed'n of Gov't Emp., 6 M.S.P.R. 630, 635 (198 1) (stating exception to rule of nonreviewability of arbitrator decisions). Employee appeals to a union negotiated grievance system are beyond the scope of this discussion, except to the extent that
grievance arbitrators are expected to follow case decisions by the MSPB and the courts on
matters of law.
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disciplinary actions. 15 In proceedings before the MSPB, the burden
of proof is upon the agency proposing disciplinary action. 16
Judicial review of an MSPB decision may take one of two forms.
In most cases judicial review is limited to an appeal to the United
States Court of Appeals for the Federal Circuit.' 7 The Federal Circuit's scope of review is limited to determining whether the record
supports the MSPB determination.' 8 An alternative avenue of review exists for cases where the federal employee alleges discrimination. In these cases, the employee has a discretionary choice to
either file a petition for review with the Equal Employment Opportunity Commission' 9 or to file suit for a trial de novo in the federal
district court. 20 Appeals from the district court follow the usual ap21
peals route.
The standard used to justify agency discipline is the familiar "only
for such cause as will promote the efficiency of the service" that existed prior to the 1978 Act. 2 2 However, Congress restricted this
15. See 5 U.S.C. § 1205(a) (1988) (describing MSPB functions); see also S. REP. No. 969,
95th Cong., 2d Sess. 24, reprintedin 1978 U.S. CODE CONG. & ADMiN. NEWS 2723, 2746 (noting that MSPB will act as quasi-judicial body with power to review abuses and violations of
law).
16. See 5 U.S.C. § 7701(c)(1)(b) (1988) (establishing preponderance of evidence test for
disciplinary actions other than those based upon unacceptable performance).
17. 5 U.S.C. § 7703(b)(1) (1988). Prior to the enactment of the Federal Courts Improvement Act of 1982, appeals from decisions of the MSPB were made to the federal court of
appeals for the jurisdiction or to the Court of Claims. Federal Courts Improvement Act of
1982, Pub. L. No. 97-164, § 127(a), 144(1), 96 Stat. 25, 37-39 (codified as amended at 5
U.S.C. § 7703(b)(1) (1988)).
18. See Hayes v. Department of the Navy, 727 F.2d 1535, 1539-40 (Fed. Cir. 1984) (holding function on appeal limited to determining whether MSPB decision has rational basis supported by substantial evidence). Substantial evidence is "such evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). For a general
discussion of the courts' various standards of review prior to the enactment of the Act, see
Comment,Judicial Review of Dismissals of Civil Service Employees for Off-Duty Misconduct: The Approach of the Federal Circuit, 34 AM. U.L. REv. 439, 445-49 (1985).
19. 5 U.S.C. § 7702 (1988). MSPB decisions involving discrimination claims are reviewable as of the date of the decision unless the employee files a petition for review with the
EEOC. Id. § 7702(a)(3).
20. See 5 U.S.C. § 703(b)(2) (1988) (stating that Federal Circuit does not have jurisdiction over cases brought under Civil Rights Act of 1964, Age Discrimination Act of 1967, and
Fair Labor Standards Act of 1938). Ordinarily, petitions for judicial review of MSPB actions
are filed in the Court of Appeals for the Federal Circuit and are reviewed on the administrative record. See id. §§ 7703(b)(1), 7701(c)(1)-(3). Where a claim of discrimination is coupled
with a non-discrimination claim, however, the entire "mixed case" is filed in the district court.
Id. § 7703(b)(2). On the discrimination claim, the petitioner has the right to have the fact
subject to trial by the reviewing court. Id. § 7703(c). The non-discrimination claim is reviewed on the administrative record. Id. § 7703(c)(1)-(3). Yet another route is to require the
agency to have an administrative trial judge determine the validity of the discrimination claim,
with the right of appeal to the MSPB or the federal district court. See 29 C.F.R. §§ 1613.403,
1613.405(f) (1988).
21. 28 U.S.C. § 1291 (1988).
22. 5 U.S.C. § 7513(a) (1988). The efficiency of the service standard was first adopted in
the Lloyd-LaFollette Act. Lloyd-LaFollette Act of 1912, § 6, 37 Stat. 539, 555 (codified as
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broad language when it specifically adopted the requirement that
adverse actions based upon off-duty conduct be limited to instances
where the conduct affects the job performance of the employee or
co-workers. 25 A criminal conviction may be the basis of an adverse
24
disciplinary action only where this nexus is established.
The Office of Personnel Management's role in these proceedings
is largely technical. 25 OPM has issued guidelines for agencies to refer to when establishing a table of penalties. 26 OPM may also intervene in proceedings before the MSPB to present its position when
27
policy questions presented may have far reaching consequences.
II.
THE PREVAILING PRECEDENTS
Prior to the adoption of the Civil Service Reform Act of 1978,28
several leading court precedents established a nexus requirement in
adverse personnel actions based upon off-duty misconduct. 29 The
nexus requirement was first imposed in Norton v. Macy,30 in which
the district court held that alleged homosexual advances were insufficient grounds for removal in the absence of evidence of the effect
upon agency performance. 3 ' The court determined that an immoral
amended in various sections of 5 U.S.C. (1988). The Veterans' Preference Act of 1944 retained the Lloyd Act's'standards, but also provided for the right to appeal decisions to the
Civil Service Commission. Ch.359, § 14, 58 Stat. 387, 390-91 (1944) (codified as amended at
5 U.S.C. 99 7513(a)-(b), 7701 (1988)). Protections afforded veterans were extended to all
civil service employees. Exec. Order No. 10,988, 3 C.F.R. §§ 521, 527 (1959-1963), superceded
by Exec. Order No. 11,491, 3 C.F.R. §§ 861, 874 (1966-1977), reprintedin 5 U.S.C. § 7101
(1988).
23. 5 U.S.C. § 2302(b)(10) (1988).
24. Id.;see also H.R. CONF. REP. No. 1717,95th Cong., 2d Sess. 131, reprintedin 1978 U.S.
CODE CONG. & ADMIN. NEWS 2860, 2864 (identifying congressional intent to ensure adverse
actions related only to duties and performance of employee).
25. See 5 U.S.C. § 7514 (1988) (authorizing OPM to prescribe regulations which carry
out purpose of Chapter 75 except where MSPB may prescribe regulations).
26. See OFFICE OF PERSONNEL MANAGEMENT, SUGGESTED TABLE OF ACTIONS FOR CORRECTING EMPLOYEE MISCONDUCT, FEDERAL PERSONNEL MANUAL CH. 75 (October 6, 1983).
27. See 5 U.S.C. § 7701(d)(1)(B) (1988). OPM may intervene where Director is of opinion that erroneous decision has substantial impact on civil service law, rule, or regulation and
the jurisdiction of the office.
28. The Act was enacted on October 13, 1978, but its effective date was January 11,
1979. Civil Service Reform Act of 1978, Pub. L. No. 95-454, § 907, 92 Stat. 1111, 1227 (effective date of 1978 amendment).
29. See infra notes 30-41 and accompanying text (discussing pre-Act cases imposing
nexus requirement).
30.
417 F.2d 1161 (D.C. Cir. 1969). In Norton, the National Aeronautics and Space Ad-
ministration (NASA) fired an employee for alleged off-duty and off-site homosexual advances.
The court determined that an immoral or indecent act could not support a dismissal without
further inquiry unless the acts of the employee had some "ascertainable deleterious effect on
the efficiency of the service." Norton v. Macy, 417 F.2d 1161, 1167 (D.C. Cir. 1969). Consequently, the court ruled that in order to uphold the dismissal, some reasonably foreseeable,
specific connection between the employee's potentially embarrassing conduct and the efficiency of the service must exist. l-
31.
Id. at 1165.
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
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or indecent act could not support a dismissal without further inquiry
unless the acts of the employee had some "ascertainable deleterious
32
effect on the efficiency of the service."
A.
The Presumption Doctrine Emerges
After Norton, the federal courts began defining the contours of the
nexus requirement. Two leading cases that further developed the
nexus requirement were Young v. Hampton3 3 and Phillips v. Bergland.3 4 In Young, the Seventh Circuit established a two part test to
determine whether an agency properly disciplined an employee. 35
First, there must be proof that the alleged conduct occurred.3 6 Second, the agency must be able to show a nexus between the disciplinary action and promotion of the efficiency of the service. 37 The
court in Young introduced in dictum the concept of a presumption of
nexus where the conduct was "egregious" and the employee introduces no evidence to rebut the presumption.3 8 The Phillips decision adopted the Young test and limited the presumption doctrine by
holding that only conduct directly related to the employee's duties
could raise the presumption.3 9 The Court of Claims, the predecessor court to the Federal Circuit,4 0 also adopted the presumption of
nexus corollary to the judicial nexus test in Masino v. United States.4 1
Generally, courts did not simply apply a presumption based solely
upon the nature of the crime without regard to the employee's duties. 42 Thus, the case law blurred the distinction between a presumption based solely on the egregious nature of the criminal
32. Norton v. Macy, 417 F.2d 1161, 1167 (D.C. Cir. 1969). The NASA official who fired
the employee was not worried about any possible effect on the appellant's performance. Id. at
1166. The official testified that he fired the employee for homosexual misconduct in order to
avoid embarrassment to the Agency. Id. at 1167.
33. 568 F.2d 1253 (7th Cir. 1977).
34. 586 F.2d 1007 (4th Cir. 1978).
35. Young v. Hampton, 568 F.2d 1253, 1257 (7th Cir. 1977).
36. Id.
37. Id.
38. Id The court did not define the type of conduct which would be sufficiently egregious to raise a presumption of nexus. The court only determined that the effects must be
reasonably deemed "substantial." Id
39. Phillips v. Bergland, 586 F.2d 1007, 1011 (4th Cir. 1978) (dismissing removal of
Department of Agriculture Forest Service employee who assaulted co-worker on premises
while off-duty).
40. See supra note 17 (describing review process of courts prior to enactment of Federal
Courts Improvement Act).
41. 589 F.2d 1048 (Ct. CL. 1978) (sustaining removal of Customs Service employee convicted of possessing and transporting marijuana). The significance, of this holding lies, of
course, in the fact that the Federal Circuit as successor to the Court of Claims hears most
appeals of MSPB decisions, supra note 17.
42. See supra notes 29-39 and accompanying text (discussing development of judicial
scrutiny). But see Cooper v. United States, 638 F.2d 727, 729 (Ct. Cl. 1980) (noting that sexual
misconduct affects employee-employer relationship); Schnakenberg v. United States, 219 Ct.
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offense 4 3 and a presumption incorporating factors suggesting a
nexus between the crime and the job responsibilities, absent extended fact finding. 44
Subsequent to the adoption of the Civil Service Reform Act of
1978, the federal appeals courts continue to espouse the presumption of nexus doctrine, but rarely baldly apply the presumption. For
example, in Hayes v. Department of the Navy, 45 the Federal Circuit
affirmed an MSPB decision upholding removal of a federal employee on the basis of a criminal conviction for assault upon a tenyear-old child. 46 The court went to great lengths to establish that
egregious conduct raises a presumption of nexus;47 however, the
court noted in support of its conclusion of nexus that the employee's job provided him with access to residential housing where
children lived.48 Similarly, the Federal Circuit in Graybill v. United
States Postal Serice49 invoked the presumption doctrine in upholding
the removal of a postal carrier convicted of molesting a child, yet
admitted evidence of co-worker loss of trust and job responsibilities
which brought the employee near local schools. 50 Hence, there was
direct evidence of nexus without the need to presume nexus. 51 This
decision, like many other such rulings, cited Hayes as precedent for
the presumption doctrine. 52 As noted above, the language in Hayes
and similar cases under the Civil Service Reform Act adopting the
presumption doctrine is dictum. 53 The courts employ the presumpCl. 697, 699 (1979) (finding that commission of oral sodomy by force raises presumption that
disciplinary action may be taken for egregious conduct).
43. See, e.g., Yacovone v. Bolger, 645 F.2d 1028, 1032 (D.C. Cir. 1981) (explaining that
nexus need not be explicitly demonstrated where employee is in position of public trust); Doe
v. Hampton, 566 F.2d 265, 274 (D.C. Cir. 1977) (noting that agency need not show explicit
evidence of nexus when evidence rationally supports dismissal); Gueory v. Hampton, 510
F.2d 1222, 1226 (D.C. Cir. 1974) (finding employee conviction of serious crime supports
nexus).
44. See Phillips v. Bergland, 586 F.2d 1007, 1011 (4th Cir. 1978) (noting that presumption existed where conduct directly related to employee's duties); White v. Bloomberg, 345 F.
Supp. 133, 144 (D. Md. 1972), aff'd, 501 F.2d 1379 (4th Cir. 1974) (noting that Agency must
demonstrate rational basis for conclusion that removal will promote efficiency of service).
45.
727 F.2d 1535 (Fed. Cir. 1984).
46. Hayes v. Department of the Navy, 727 F.2d 1535, 1538-39 (Fed. Cir. 1984).
47. Id. at 1535, 1539. The court referred to several pre-Act Court of Claims cases to
establish the proposition. Id. at 1539 n.3.
48.
Id. at 1539. The court stated, however, that its function was not to find nexus, but
only to determine whether there was a rational basis for the agency's finding that nexus existed. Id.
49. 782 F.2d 1567 (Fed. Cir. 1986).
50. Graybill v. United States Postal Serv., 782 F.2d 1567 (Fed. Cir. 1986).
51. Id.
52. Id at 1573.
53. See supra notes 46-52 and accompanying text (citing as dictum all language in Hayes
and Graybilladopting presumption doctrine). But see Abrams v. Department of the Navy, 714
F.2d 1219, 1226 (3d Cir. 1983) (remanding to MSPB to reconsider whether employee intro-
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
877
tion doctrine either to justify a failure to closely assess the evidence
used to prove nexus, or to reference the court's view that nexus is
logically apparent without the need for specific evidence.
Other courts of appeal similarly adopting the presumption doctrine include the D.C. Circuit, 4 the Second Circuit,55 the Fourth
Circuit,5 6 the Seventh Circuit, 57 and the Eleventh Circuit.58 The circuit courts' primary rationale to justify the presumption is the preservation of scarce judicial resources in proving what is patently
obvious. 5
9
The Fifth and Ninth Circuit Courts have adamantly opposed such
a presumption.6 0 The Ninth Circuit rejected any presumption of
nexus in McLead v. Department of the Army, stating that off-duty con-
duct may "speak for itself" but evidence of nexus must still be introduced.6 1 The Fifth Circuit reached a similar conclusion in requiring
the Postal Service to prove by adequate evidence that indecency
with a child adversely affects the efficiency of the Postal Service. 62
In contrast to these decisions, the Court of Appeals for the Third
Circuit applied the presumption doctrine broadly, without any
nexus evidence, in Abrams v. Department of the Navy. 6 3 In Abrams, the
duced sufficient evidence to rebut "strong and secure" presumption of nexus between conviction and efficiency of service).
54. See Yacovone v. Bolger, 645 F.2d 1028, 1032 (D.C. Cir.) (finding postal service
worker charged with petty larceny raises presumption), cert. denied, 454 U.S. 844 (1981);
Gueory v. Hampton, 510 F.2d 1222, 1226 (D.C. Cir. 1974) (finding postal service employee's
manslaughter conviction raises presumption).
55. Borsari v. FAA, 699 F.2d 106, 112 (2d Cir.), cert. denied, 464 U.S. 833 (1983) (finding
that conviction for possession and sale of narcotics raises presumption).
56. Cosey v. Department of the Navy, 689 F.2d 470, 470 (4th Cir. 1982) (finding that air
traffic controller's conviction for possession and sale of marijuana raises presumption).
57. Wild v. Department of Housing and Urban Dev., 692 F.2d 1129, 1133 (7th Cir.
1982) (finding that HUD employee moonlighting as slumlord raises presumption).
58. Boylan v. United States Postal Serv., 704 F.2d 573, 576 (11 th Cir. 1983), cert. denied,
466 U.S. 939 (1984) (finding that suspension and removal from employment of postal carrier
for unauthorized disposal of mail raises presumption).
59. Wild v. Department of Housing and Urban Dev., 692 F.2d at 1133 (noting that
agency need not prove by cumbersome litigation what is obvious); McClaskey v. Department
of Energy, 720 F.2d 583, 589 n.3 (9th Cir. 1983) (stating that Board is relieved from expending resources when relationship between misconduct and efficiency of service is obvious).
60. See Bonet v. United States Postal Serv., 661 F.2d 1071, 1076-77 (5th Cir. 1981) (finding no presumption of nexus simply because off-duty offense is egregious); McLeod v. Department of the Army, 714 F.2d 918, 920-21 (9th Cir. 1983) (noting that MSPB cannot rely on
presumption).
61. McLeod v. Department of Army, 714 F.2d 918, 920-21 (9th Cir. 1983) (finding
lunchtime possession of marijuana did not support nexus); see also McClaskey v. Department
of Energy, 720 F.2d 583, 589 (9th Cir. 1983) (recognizing proof of nexus requirement in
affirming dismissal of Energy Department electrician for unlawful use of purchase
documents).
62. Bonet v. United States Postal Serv., 661 F.2d 1071, 1079 (5th Cir. 1981) (finding that
agency failed to show that civilian employee charged with child abuse required dismissal to
promote efficiency of Postal Service).
63. 714 F.2d 1219 (3d Cir. 1983).
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[Vol. 39:869
employee was convicted on five separate counts stemming from an
assault with a deadly weapon during a poker game.6 4 Testimony
before the MSPB indicated that his conviction did not affect his employment as a ship painter. 6 5 The Third Circuit reversed the MSPB
decision to overturn his removal on the grounds that the MSPB had
improperly required agency evidence relating to interference with
its mission, rather than requiring the employee to provide rebuttal
evidence on this point.6 6 The sole authority cited for this decision
was Gueory v. Hampton,67 itself an idiosyncratic pre-Act decision.6 8
Other circuit courts have not followed the Abrams decision and its
logic may well be questioned. The decision offers little guidance as
to what evidence would be relevant in determining what positive
agency mission could be interfered with in Abrams, much less what
evidence would adequately rebut the presumption of interference.
There is also no precedent for any implicit ruling that presumption
of nexus encompasses agency mission as a separate element, 6 9 distinct from a broad category of co-worker performance. In any case,
the Abrams opinion retreats from a pure presumption position by
citing testimony from the hearing to support its ruling that the
MSPB must consider co-worker issues. 70 The'court's opinion essentially uses the presumption doctrine to return to the pre-Act "ra64. Abrams v. Department of the Navy, 714 F.2d 1219, 1221 (3d Cir. 1983). The appellant was discharged from his position as a painter at the Philadelphia Naval Shipyard for leav-
ing his assigned worksite without permission, for failing to report for scheduled overtime, for
excessive absenteeism, for prior infractions relating to unauthorized absences, and for conviction of several critical offenses relating to an incident in which he shot another person at a
card game. Id The Board affirmed the disciplinary action but held that the Agency had not
established by a preponderance of the evidence a connection between the criminal shooting
and the efficiency of the service. Id. at 1226. The Board concluded, except for one modification, that the appellant's discharge for excessive absenteeism was reasonable. Id.
65. Id. at 1224-26 nn.12-14.
66. Id. at 1224. The Board held that the appellant's evidence showing his conviction had
not impaired his ability to paint ships successfully rebutted the presumption of nexus. Id.
The court of appeals found that the Board did not consider whether the employee's conviction would adversely affect or interfere with the Agency's overall achievement of its responsibilities and the performance of other employees. Id. The court held that this omission
erroneously relieved the appellant of the burden of rebutting the presumption of nexus and
incorrectly imposed upon the Agency the burden of introducing evidence in addition to the
appellant's conviction to establish nexus. Id.
67. Abrams, 714 F.2d at 1227 (citing Gueory v. Hampton, 510 F.2d 1222 (D.C. Cir. 1974)
(finding violent nature of manslaughter conviction formed strong nexus between conviction
and efficiency of service)).
68. Gueory v. Hampton, 510 F.2d 1222, 1227 (D.C. Cir. 1974). In Gueory, the district
court held that, as a matter of law, the agency needed to show specifically how the manslaughter conviction adversely affected the employee's suitability for employment. Id. at 1224. The
court of appeals reversed, holding that the agency did not need to offer additional evidence of
impact. Id. at 1227.
69. See Abrams v. Department of the Navy, 714 F.2d 1219, 1224 (3d Cir. 1983) (citing no
precedent for separate element).
70. Id. at 1224-26.
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
879
tional reason" or arbitrary and capricious tests7 1 used by some
appeals courts to review Civil Service Commission decisions on
72
removal.
B.
The MSPB Adopts the PresumptionDoctrine
The MSPB first reviewed the "nexus" case law prior to enactment
of the Civil Service Reform Act in Merritt v. Department ofJustice.73
The Board concluded that Congress intended to approve the judicial trend requiring evidence of nexus when it adopted the nexus
requirement of section 2302(b)(10). 74 Based on this review, the
Board in Merritt adopted the two-part test explicated in Young v.
Hampton75 and required nexus to be proven by evidence in cases of
off-duty misconduct, except in "egregious circumstances" where a
presumption of nexus "may arise from the nature and gravity of the
misconduct." 76 Rebuttal evidence showing an absence of adverse
impact upon the efficiency of the service may be presented to overcome this presumption. 7 7 The Board in Merritt did not define egregious circumstances except by its reference to two prior cases,
apparently applying the presumption to homicide 78 and child molestation. 79 The Board further stated that the presumption ap71. To satisfy the arbitrary and capricious test, a court must only find a rational connection between the agency's finding of fact and conclusions of law. See, e.g., Young v. Hampton,
568 F.2d 1253, 1257 (7th Cir. 1977) (explaining that judicial review limited to determining
whether agency complied with procedures and was not arbitrary and capricious); McTiernan
v. Gronouski, 337 F.2d 31, 34 (2d Cir. 1964) (remarking that review limited to protecting
employees from arbitrary and capricious decisions); Doe v. Hampton, 566 F.2d 265, 271-72 &
n.15 (D.C. Cir. 1977) (noting that agency dismissals may not be arbitrary and capricious); see
also Comment, Judicial Review of Dismissals of Civil Service Employeesfor Off-Duty Misconduct: The
Approach of the Federal Circuit, 34 AM. U.L. REv. 439, 447 n.51 (1985) (defining arbitrary and
capricious test and discussing its adoption in various circuit courts). While the Second and
Seventh Circuits adopted the arbitrary and capricious test, adoption of the test in other circuits was less straightforward. See id. (recognizing that courts in other circuits often used
arbitrary and capricious test, substantial evidence test, or some combination of both).
72. See Ringquist v. Hampton, 582 F.2d 1138, 1140 (7th Cir. 1978) (holding reinstatement supported only where discharge not supported on rational basis), cert. denied, 440 U.S.
910 (1979); McTieman v. Gronouski, 337 F.2d 31, 38 (2d Cir. 1964) (finding Post Office not
arbitrary and capricious in dismissing employee who performed job functions inadequately).
73. 6 M.S.P.R. 585 (1981).
74. Merritt v. Department ofJustice, 6 M.S.P.R. 585, 590-601 (1981).
75. Id. at 608 (quoting Young v. Hampton, 568 F.2d 1253, 1257 (7th Cir. 1977)). For a
discussion of Young, see supra notes 33-38 and accompanying text.
76. Id. at 605.
77. Id (citing Gueory v. Hampton, 510 F.2d 1222, 1226 (D.C. Cir. 1974)).
78. Merritt, 6 M.S.P.R. at 606.
79. Id. (quoting Gueory v. Hampton, 510 F.2d 1222, 1226 (D.C. Cir. 1974) and Cooper
v. United States, 639 F.2d 727, 729 (Ct. Cl. 1980)). Footnote 40 of Merritt references a "visceral reaction" test of criminal behavior nexus, without adopting such an approach. Id. at
606.
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[Vol. 39:869
proach to nexus would be inappropriate in most cases and reversed
the agency decision to remove Merritt.80
Subsequent MSPB cases confirm the rarity of the presumption
doctrine's utility.8 ' Even Brown v. Department of Treasury,8 2 cited in
Merritt for the presumption's applicability, proof of nexus to a conviction for manslaughter was found reasonable because of coworker fears for their safety.83 Apparently, there are only two reported MSPB cases involving a bare presumption, both dating from
the period of the Merritt decision.8 4 In Parrishv. United States Postal
Service85 and Gamble v. United States Postal Service,86 the Board upheld
agency removal decisions based simply on acts of dishonesty (welfare fraud) and the failure of the employees to rebut the presumption.87 The precedential value of these decisions is problematic,
because the mundane nature of the crimes involved contradict the
Merritt requirement of egregious conduct. 88 The Gamble decision
has been implicitly criticized in a decision of the D.C. Circuit reversing the MSPB upholding of a removal decision in a case involving a
criminal charge identical to that in Gamble.89 The D.C. Circuit accepted the appellant's contention that her conviction bore no relation to her job performance and was not so notorious as to discredit
the agency or otherwise affect the performance of others. 90 Subse80. Id.
81. Brown v. Department of Treasury, 34 M.S.P.R. 132 (1987); Parrish v. United States
Postal Serv., 12 M.S.P.R. 459 (1982); Gamble v. United States Postal Serv., 6 M.S.P.R. 578
(1981), aff'd mem., 681 F.2d 805 (Fed. Cir. 1982).
82. 34 M.S.P.R. 132 (1987).
83. Brown v. Department of Treasury, 34 M.S.P.R. 132 (1987).
84. See Gueory v. Hampton, 510 F.2d 1222, 1226 (D.C. Cir. 1974); Cooper v. United
States, 639 F.2d 727, 729 (Ct. Cl. 1980).
85. 12 M.S.P.R. 459, 463 (1982) (finding conviction for cocaine possession and grand
theft sufficiently raises presumption that efficiency of service impaired).
86. 6 M.S.P.R. 578, 582 (1981)t aff'd mere., 681 F.2d 805, 805 (Fed. Cir. 1982) (finding
deliberate falsification of documents sufficiently raises presumption that efficiency of service
impaired).
87. See Parrish v. United States Postal Serv., 12 M.S.P.R. 459,463-64 (1982) (finding offduty conviction for possession of cocaine and grand theft sufficiently raised presumption that
employee would act dishonestly and impair efficiency of service); Gamble v. United States
Postal Serv., 6 M.S.P.R. 578, 581 (1981), aff'd mem., 681 F.2d 805, 805 (Fed. Cir. 1982) (finding Postal Service employee's participation in welfare fraud scheme raised presumption that
such conduct impaired service of agency).
88. See Merritt v. Department ofJustice, 6 M.S.P.R. 586, 606 (1981).
89. See Gloster v. GSA, 720 F.2d 700, 704 (D.C. Cir. 1983). In Gloster, a custodial employee was fired after conviction of unlawfully receiving welfare payments. Id. at 701.
90. Id. at 704. The court declined to reexamine its decision that a nexus may be presumed. Id. Nor did it consider whether the MSPB was justified in concluding welfare fraud
raises such a presumption in the context of employment. Id The court stated that the presumption may be overcome by evidence showing an absence of adverse effect on service efficiency, in which case the service may no longer rely solely on the presumption, but must
present evidence to carry its burden of proving nexus. Id.
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
881
quent MSPB decisions have required a link between the criminal
conviction and the employee's duties9 ' or the agency mission. 92
While the federal courts and the MSPB disagree about when
agencies may rely on a presumption of nexus, they are in general
agreement on a number of factors that should be considered in offduty misconduct cases involving criminal convictions. 93 One area of
consensus is the statutory requirement relating to the performance
of employee duties and co-worker performance. 94 Expansion of
these simple elements through the common law process has been
accomplished within common sense limits. 95 Thus, two types of
cases have emerged: those applying detailed nexus examinations, 96
and those that use shortcuts based upon common case characteristics resulting from crime or job-related factors. 9 7
1. Applying the neu principle
The Civil Service Reform Act limitations upon the use of criminal
records to discipline workers expressly exempt the situation where
the criminal conviction signifies behavior that directly implicates onthe-job behavior. 98 The rationale behind this nexus provision is the
fear that the employee convicted of a crime will repeat the crime,
possibly while on the job.9 9 The issue then becomes whether the
91. See, e.g., Harrison v. United States Postal Serv., 26 M.S.P.R. 37, 40 (1985) (finding
that postal service employee's conduct involving falsification and deceit inconsistent with service requirement that employees be honest and trustworthy); Trybol v. Department of the
Army, 22 M.S.P.R. 290, 294 (1984) (finding electronics engineer's removal for falsification of
records reasonable in light of responsibilities and duties); Rodriguez v. Seamans, 463 F.2d
837, 843 (D.C. Cir.) (finding falsification of records implicates employee's veracity and trustworthiness), cert. denied, 409 U.S. 1094 (1972).
92. See, e.g., Wenzel v. Department of Interior, 33 M.S.P.R. 344, 354-55, aftd, 837 F.2d
1097 (Fed. Cir. 1987) (finding U.S. Fish and Wildlife Service employee's violation of wildlife
laws inconsistent with agency mission); Borsari v. FAA, 699 F.2d 106, 110 (2d Cir.) (finding
air traffic controller's conviction of sale and possession of drugs inconsistent with agency mission), cert. denied, 464 U.S. 833 (1983); Masino v. United States, 589 F.2d 1048, 1056 (Ct. Cl.
1978) (finding customs inspector's use and transportation of marijuana inconsistent with
agency mission).
93. See infra notes 100-39 and accompanying text (showing development of case law regarding off-duty misconduct cases).
94. See 5 U.S.C. § 2302(b)(10) (1988) (stating employer may not discriminate against
employee for conduct that does not adversely affect performance of employee or performance
of others).
95. See infra notes 105-21 and accompanying text (showing development of case law regarding 5 U.S.C. § 2302(b)(10) (1988).
96. See infra notes 98-139 and accompanying text (discussing cases applying detailed
nexus examinations).
97. See infra notes 14047 and accompanying text (discussing cases applying nexus
shortcut).
98. See 5 U.S.C. § 2302(b)(10) (1988).
99. See H.R. CONF. REP. No. 1717,95th Cong., 2d Sess. 1231, repqintedin 1978 U.S. CODE
CONG. & ADMIN. NEWs 2860, 2864 (recognizing that any conduct relating to job duties is basis
for disciplinary action).
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REVIEW [Vol. 39:869
job environment and duties are conducive to reoccurrence of the
crime. For example, the Federal Circuit approved the removal of a
postal delivery officer who had been convicted of sexual molestation
of a minor where his postal route routinely brought him into un-
supervised contact with minors. 100 Similarly, financial fraud is often
held to risk recidivism because of the nature of the job duties. 10
1
The recidivism rationale is also implied when the Board finds the
convicted employee's supervisors have lost trust in the employee
and are fearful of assigning work to that employee.10 2 Invariably,
loss of supervisor trust is often equated with an inability to perform
the full range of duties previously assigned. The conviction itself
may also affect job performance, without reference to the possibility
of recidivism.' 03 Persons convicted of such serious crimes as sexual
molestation might elicit co-worker or public reactions 1' 4 that would
limit the ability of the employee to work effectively.
The Act also authorizes disqualification where the criminal conviction affects the work of co-workers of the convicted employee.' 0 5
The recidivism rationale is again implicated where the criminal conviction may be of such a serious offense that co-workers are fearful
of their own security.' 0 6 Just as the public response to an employee's conviction can reduce the ability of the employee to work
100. Graybill v. United States Postal Serv., 782 F.2d 1567, 1574 (Fed. Cir. 1986) (noting
that nexus could be presumed to exist between employee's misconduct and efficiency of service), cert. denied, 479 U.S. 963 (1987). The court also found that the Postal Service's evidence
was dearly sufficient to demonstrate the required nexus. Id
101. See, e.g., Fleming v. Department of Agriculture, 24 M.S.P.R. 485, 487 (1984), aff'd
mer., 785 F.2d 322 (Fed. Cir. 1985) (recognizing that Agriculture Department employee's
conviction of receiving and concealing stolen property raises presumption where employee's
duties include management and supervision of government funds); Harrison v. Department of
Treasury, 22 M.S.P.R. 462, 465-67 (1984) (recognizing that computer programmer's conviction of possession of marijuana with intent to distribute raises presumption where employee
has access to sensitive and confidential documents); Smith v. Department of the Navy, 15
M.S.P.R. 690, 692 (1983) (finding agency mission impaired by excessive absenteeism due to
off-duty conviction).
102. See Riggin v. Department of Health and Human Servs., 13 M.S.P.R. 50, 55 (1982)
(finding falsification of government documents breaches employer-employee relationship).
103. Incarceration alone is not sufficient to justify a finding of removal to be in the interest of efficiency of the service. See Bradley v. United States Postal Serv., 32 M.S.P.R. 255, 257
(1987) (recognizing that incarceration does not satisfy nexus presumption); see also Young v.
Hampton, 568 F.2d 1253, 1260 (7th Cir. 1977) (stating that assertion that incarceration
causes absence from work and thus impairs efficiency of service "smacks of'bootstrapping' ").
104. See infra notes 110-20 and accompanying text (describing cases that establish nexus
where work of employee or co-workers is affected).
105. 5 U.S.C. § 2302(b)(10) (1988).
106. See Brown v. Department of Treasury, 34 M.S.P.R. 132, 136 (1987) (recognizing removal reasonable where co-workers expressed apprehension); Cavallaro v. Department of
Transp., 20 M.S.P.R. 701, 703 (1984) (recognizing removal reasonable where co-worker fears
aggressive behavior).
1990]
FEDERAL EMPLOYMENT DISCIPLINARY ACTION
effectively, 107 criminal conviction can similarly affect a co-worker's
functioning. 0 8 Nevertheless, cases describing pure interference
with co-worker performance, other than safety-based concerns, are
not common. One such case is Sherman v. Alexander,10 9 where the
court found that a counselor's conviction of sexual misconduct required case reassignments due to potential client reactions to the
conviction, resulting in an increased workload for co-workers.11 0 In
the absence of such direct evidence, public notoriety of the convictions is a predicate for an inference of potential interference."'
The case law describes one variant of interference with employee
performance as "interference with the agency mission," which is arguably only a subset of co-worker performance. In a non-criminal
conviction case the court upheld the removal of a Department of
Housing and Urban Development employee who managed his wife's
slum property and let the property deteriorate so badly that it became a focus of criminal activity. 1 12 The court found that public
response to an employee who conducted a business antithetical to
that of the HUD agency mission would clearly have negative effects
upon the Department's public image and ability to conduct business. 1 3 Another instance of interference with agency mission involved an Internal Revenue Service employee convicted of
defrauding an insurance company by falsely reporting the value of a
car wrongly claimed to have been stolen." 14 The court found that
adverse publicity generated by newspaper reports of the conviction
interfered with the agency's need for integrity in order to ensure
voluntary compliance with the tax laws." 5 Similarly, criminal con107.
See Stines v. Department ofJustice, 22 M.S.P.R. 511, 514 (1984) (recognizing that
newspaper account of correctional officer's misconduct may diminish public integrity of
agency); Sherman v. Alexander, 684 F.2d 464, 469 (7th Cir. 1982) (noting that newspaper
account of employee's indecent conduct reflects adversely on Army), cert. denied, 429 U.S.
1116 (1983); Gallagher v. United States Postal Serv., 6 M.S.P.B. 482, 485 (1981) (stating that
newspaper accounts detrimentally affected agency).
108. See Sherman v. Alexander, 684 F.2d 464, 469 (7th Cir. 1982) (finding conviction of
off-duty sexual misconduct that affects employee morale raises sufficient nexus), cert. denied,
459 U.S. 1116 (1983).
109. 684 F.2d 464 (7th Cir. 1982).
110. Sherman v. Alexander, 684 F.2d 464,469 (7th Cir. 1982) (finding evidence that combination of improper on-the-job advances and off-duty misconduct created fear, mistrust, and
disruption of morale).
11. See supra note 107 (identifying cases involving adverse newspaper accounts).
112. Wild v. Department of Housing and Urban Dev., 692 F.2d 1129, 1130 (7th Cir.
1983) (noting Wild's actions had violated the basic principles governing the conduct of HUD
employees).
113. Id. at 1133.
114. Fike v. Department of Treasury, 10 M.S.P.R. 113, 116 (1982) (upholding removal of
IRS employee charged with several counts of fraud and misrepresentation).
115. Id at 116-17. The court found that adverse publicity, the fraudulent and dishonest
nature of the conduct, and employee's position as a manager was sufficient to establish nexus.
Id.
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THE AMERICAN UNIVERSITY LAW REVIEW
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victions for behavior opposed to the agency mission have been the
basis of employee removals in cases involving violations of the wild8
life laws, 1 6 income tax reporting and collection, 117 immigration,"1
and drug abuse"19 by employees of agencies enforcing these laws.
The MSPB does not require proof of notoriety of the offense to
show interference with agency mission.' 20 The MSPB has also held
that an agency may properly contact the public and co-workers to
determine the possible impact of a conviction upon working
relationship. 12
Criminal conviction resulting in a supervisor's loss of trust in the
convicted employee is another form of nexus impairing co-worker
performance.' 22 In such a case, the supervisor generally argues that
he or she is unable to utilize appropriately a convicted employee
without constant supervision or limited assignments and thus the
employee interferes with the supervisor's discretion to assign
work.' 23 The case law fails, however, to explain the relationship between conviction, loss of supervisor trust, and nexus requirements
(i.e., impact upon worker or co-worker performance). 24 For example, claims of loss of trust must be based upon some reasonable
finding of a relationship between the employee's duties and the con116. See Wenzel v. Department of Interior, 33 M.S.P.R. 344, 354 (upholding removal of
Fish and Wildlife employee engaged in exploitation of peregrine falcon), aff'd, 837 F.2d 1097
(Fed. Cir. 1987).
117. See Rotolo v. MSPB, 636 F.2d 6, 8 (1st Cir. 1980) (removing clerical employee for
understating income on tax returns); Giles v. United States, 553 F.2d 647, 649 (Ct. CI. 1977)
(removing IRS agent responsible for overseeing delinquent tax returns for failing to file on
time).
118. See Wroblaski v. Hampton, 528 F.2d 852, 853 (7th Cir. 1976) (dismissing Immigration and Naturalization Service (INS) employee for employing aliens subject to deportation);
Morones v. Department ofJustice, 35 M.S.P.R. 285, 293 (1987) (removing INS employee for
harboring illegal alien).
119. See Masino v. United States, 589 F.2d 1048, 1056 (Ct. Cl. 1978) (removing Customs
Service employee for use and transportation of marijuana).
120. See Morones v. Department ofJustice, 35 M.S.P.R. 285, 293 (1987) (noting that in
case involving Immigration and Naturalization Service employee's improper relationship with
illegal alien, lack of notoriety does not rebut presumption).
121. See Wenzel v. Department of Interior, 33 M.S.P.R. 344, 351(1987) (approving use of
ex parte communications from co-workers and other persons who had professional affiliation
with appellant); Cavallaro v. Department of Transportation, 20 M.S.P.R. 701, 704 (1984) (approving agency efforts to determine co-worker response to employee's actions resulting in
conviction).
122. Kruger v. Department ofJustice, 32 M.S.P.R. 71, 74 (1987) (upholding removal of
correctional officers for off-duty possession and use of marijuana).
123. See, e.g., Harrison v. United States Postal Serv., 26 M.S.P.R. 37, 40 (1984) (holding
employee who deceitfully received unemployment benefits could no longer be trusted);
Trybol v. Department of Army, 22 M.S.P.R. 290, 292 (1984) (finding falsification of records
goes to defendant's reliability and trustworthiness); Rodriguez v. Seamans, 463 F.2d 837, 843
(D.C. Cir.) (holding false statements on federal employment form puts in question appellant's
veracity), cert. denied, 409 U.S. 1094 (1972).
124. See Harrison v. United States Postal Serv., 26 M.S.P.R. 37, 40 (1984) (noting agency
merely stated that honesty and integrity were job requisites).
1990]
FEDERAL EMPLOYMENT DISCIPLINARY ACTION
885
viction.125 Work-related effects should be shown, 126 including a
weighing of risks to the government.
27
Thus, in Harrisonv. United
States Postal Service,' 28
the agency "demonstrated that it requires its
employees to be honest and trustworthy" to form the predicate for
its assertion of loss of trust and confidence in an employee convicted of filing false claims for unemployment benefits.' 2 9 In Rhodes
v. Department of Treasuy,'3 0 a criminal investigator convicted of illegal possession of marijuana was found to have lost the trust of supervisors who could no longer use the employee in a position where
he would have to testify in court.' 3 ' Conclusory statements about
loss of trust, however, are insufficient to show nexus.1 3 2 A superior's unreasonable response to a conviction should not be used to
33
bypass the nexus requirement.'
Whatever the logical underpinnings of these limitations upon the
loss of supervisor trust doctrine, the relevant MSPB decisions lack
explicit direction.' 3 4 These cases indicate that the MSPB has accepted allegations of loss of trust only where there is other evidence
indicating an effect upon worker performance. In Hickman v. Depart125. See Gloster v. General Servs. Admin., 720 F.2d 700, 704 (D.C. Cir. 1983) (stating that
no nexus exists where agency fails to show connection between job and deceitful action where
deceit bears no obvious relation to job requirements).
126. IL (reversing removal of custodian for welfare fraud because no work effects shown).
127. Harrison v. Department of Treasury, 22 M.S.P.R. 462, 467 (1984) (stating agency
proof requirements are less for showing risk to government posed by file clerk than posed by
employee with access to computer programming and operations directly related to public
fisc).
128. 26 M.S.P.R. 37 (1985).
129. Harrison v. United States Postal Serv., 26 M.S.P.R. 37, 40 (1985) (emphasizing that
off-duty conduct involving deceit tends to have obvious connection to employee's job and
efficiency of agency employing him).
130. 12 M.S.P.R. 115 (1982).
131. Rhodes v. Department of Treasury, 12 M.S.P.R. 115, 117-18 (1982) (affirmingTreasury Department removal of criminal investigator charged with possession and use of marijuana because of appellant's reduced effectiveness as witness for the government in criminal
cases); see alsoJordan v. Department of the Air Force, 36 M.S.P.R. 409, 414 (1988) (sustaining
removal of employee with access to sensitive material who sold government vehicles on black
market); Robinson v. Department of Treasury, 25 M.S.P.R. 121, 122-23 (1984) (sustaining
removal of plate printer convicted of possession of heroin who had access to materials used in
printing currency).
132. Ahr v. Nelson, 632 F. Supp. 148 (S.D. Tex. 1985) (reversing INS dismissal based on
conclusory statements that appellant's misdemeanor conviction would cause lack of trust).
133. Riggin v. Department of Health & Human Servs., 13 M.S.P.R. 50, 55 (1982) (finding
no nexus between efficiency of service and off-duty conduct where agency only showed that
employee's superior was nervous around employee because of conviction for assault and disorderly conduct).
134. See Averall v. Department of Treasury, 30 M.S.P.R. 327, 331 (1986) (sustaining removal of Navy shipyard employee for off-duty drug use due to industrial danger and risk and
not supervisor's apprehension); Bosari v. FAA, 12 M.S.P.R. 265, 269 (1982) (stating duties of
air traffic controller in sustaining removal for off-duty possession of marijuana and cocaine);
Hickman v. Department ofJustice, 11 M.S.P.R. 153, 156 (1982) (noting correctional officer's
lack of credibility with prisoners in sustaining removal for illegal removal of contraband).
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THE AMERICAN UNIVERSITY LAw REVIEW
[Vol. 39:869
ment of Justice,13 5 the evidence demonstrated that a corrections officer's illegal removal of contraband had "destroyed [his] credibility
with the prisoners."' 13 6 The MSPB thus gave credence to the supervisor's contention that he had lost confidence in the employee's ability to perform.1 3 7 Similarly, the MSPB upheld the Federal Aviation
Administration's contention that it had lost trust in an air traffic controller convicted of possession of narcotics.1 3 8 Nonetheless, there
are no clear MSPB rulings that claims of supervisor loss of trust
must be nexus-based, although several cases cite such claims with9
out explanation.13
2. Nexus shortcut
Some courts presume that nexus exists for certain criminal acts
based solely upon the nature of the crime. Under either the "egregious circumstances" language of Young v. Hampton140 or the "vis14 1
ceral reaction" test suggested in Merritt v. Department of Justice,
only a few crimes appear in decisions citing a "presumption" doctrine. Sexual misconduct with minors is one such crime.1 42 Homicide is a second crime cited in the case law as justifying a
presumption of nexus.' 4 3 While other crimes may also fit within the
135. 11 M.S.P.R. 153 (1982).
136. Hickman v. Department ofJustice, 11 M.S.P.R. 153, 156 (1982) (finding loss ofcredibility among prisoners affects correctional officer's ability to perform job).
137. Id
138.
139.
Bosari v. FAA, 12 M.S.P.R. 265, 269-70 (1982).
See Crofoot v. Government Printing Office, 31 M.S.P.R. 442, 444-45 (1986) (stating
finding that agency lost confidence in worker's honesty and integrity sustained removal of
Government Printing Office employee for notoriously disgraceful conduct), aff'd, 823 F.2d
495 (Fed. Cir. 1987); Teichman v. Department of Army, 34 M.S.P.R. 447, 452 (1986) (sustaining removal for sexual assault arrest because of superior's lack of trust despite believing
appellant was excellent worker); Haldeman v. Department of Treasury, 15 M.S.P.R. 482, 484
(1983) (sustaining removal of secret service agent for off-duty conduct that included public
drunkenness because it evidenced lack of dependability and trustworthiness).
140. 568 F.2d 1253, 1257 (7th Cir. 1977); see supra notes 33, 35-38 and accompanying text
for discussion of Young.
141. 6 M.S.P.R. 585, 606 n.40 (1981); see supra notes 73-80 and accompanying text for a
discussion of Meritt.
142. See Hayes v. Department of the Navy, 727 F.2d 1535, 1539 (Fed. Cir. 1984) (affirming
dismissal of Naval employee convicted of assault and battery of ten year old female child,
court noted crime may be so egregious that it speaks for itself); Stalans v. National Security
Agency, 678 F.2d 482, 485 (4th Cir. 1982) (upholding dismissal of employee found to have
sexually molested minor daughter). Contra D.E. v. Department of the Navy, 721 F.2d 1165,
1169 (9th Cir. 1983) (holding that employee who had pled nolo contendre to charges of sexually
abusing seven year old daughter for three years could not be dismissed on basis of egregiousness of off-duty conduct).
143. See, e.g., Brown v. Department of Treasury, 34 M.S.P.R. 132, 134 (1987) (finding
nexus existed between employee's conviction for manslaughter and "efficiency of service");
Gueory v. Hampton, 510 F.2d 1222, 1226 (D.C. Cir. 1974) (holding that dismissal of employee convicted of manslaughter may promote efficiency of service because crime adversely
impacted his reliability and trustworthiness); Abrams v. Department of the Navy, 714 F.2d
1219, 1224 (3d Cir. 1983) (finding conviction of aggravated assault for shooting person dur-
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
defining parameters of Young or Merritt (e.g. rape), there are no reported decisions doing so.
3. Special positions
A parallel series of case decisions may provide a second shortcut
to nexus determinations. These decisions are characterized by a
declaration that certain jobs require a higher standard of conduct of
employees than do otherjobs. The most common position to which
this "higher standard" applies is that of a law enforcement officer.
Several MSPB cases state that law enforcement personnel are held
to a higher standard of behavior than are other federal employees.144 It is unclear, however, whether this means that law enforcement officers are more vulnerable to disciplinary actions or that
their job duties are such that criminal convictions create nexus
where other, non-law enforcement personnel would not be subject
1 45
to nexus determinations.
A second situation where unique job characteristics justify special
nexus rules involves sensitive job positions. Thus, where the employee is a computer programmer and had access to sensitive information, the MSPB held that a conviction for possession of marijuana
with intent to distribute was job-related. 46 In another case, the
ing poker game raised "strong and secure" presumption that requisite nexus was met). To
rebut the presumption of nexus, defendant must demonstrate that his conviction will not adversely affect the performance of co-workers. lId
144. See Galloway v. Department ofJustice, 29 M.S.P.R. 200, 200-01 (1985) (holding correctional officer to higher standard of conduct than non-law enforcement personnel due to
higher position of trust and responsibility), aft'd, 802 F.2d 470 (Fed. Cir. 1986); Quander v.
Department ofJustice, 22 M.S.P.R. 419, 421 (1984) (affirming dismissal of criminal investigator with Drug Enforcement Agency who was charged with shoplifting while on duty and operating government vehicle while under influence ofalcohol); Barnhill v. Department ofJustice,
10 M.S.P.R. 378, 381 (1982) (sustaining removal of Border Patrol Agent with Immigration
and Naturalization Service who made obscene telephone calls to a woman). State law also
may recognize a distinction between law enforcement and other government employees. See
WASH. REv. CODE ANN. § 9.96A.030 (1987) (exempting law enforcement agencies from application of state law requiring nexus in use of conviction records); McLean v. Department of
Corrections, 137 Wash. App. 255, 257, 680 P.2d 65, 67 (1984) (holding that Department of
Corrections is law enforcement agency and, as such, properly refused employment to applicant with felony conviction).
145. Compare cases involving supervisors, where one might rationally find agencies to
establish a higher standard of conduct. But, of course, the duties of supervisors are far
broader, including, for example, the authority to initiate disciplinary proceedings, than those
of non-supervisors. Hence, nexus requires a higher standard of conduct for supervisors. See,
e.g., Hawkins v. United States Postal Service, 35 M.S.P.R. 549 (1987).
146. Harrison v. Department of Treasury, 22 M.S.P.R. 462, 465 (1984). The court found
that the potential for fraud was great because the employee, a computer programmer who was
responsible for processing claims of lost or stolen government checks, could issue false checks
to himself with the assistance of an employee responsible for distribution of those checks. Id
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 39:869
888
MSPB held that the "unique position of judgment, discretion and
14 7
public contact" can be the basis of a nexus determination.
C.
HandicappedEmployee Defense to Nexus Finding
Under the Rehabilitation Act of 1973 (Rehabilitation Act), 148 the
government must provide reasonable accommodation 14 9 and affirmative action to handicapped employees.1 5 0 A violation of the Rehabilitation Act may provide a handicapped employee an affirmative
defense to a disciplinary proceeding based upon off-duty misconduct. The employee must prove that the Act applies to him or
her' 5 ' and that either the misconduct underlying the disciplinary action is causally related 5 2 to the handicapping condition or that the
agency's use of the disciplinary process is a failure to accommodate
the employee's handicapping condition. 53 A further limitation is
that the employee be a "qualified handicapped individual" such that
54
return to the job will not endanger the employee or co-workers.'
Few MSPB cases involve successful contentions that an agency
discriminated against a handicapped employee. In Robertson v. Department of the Navy, 155 an employee convicted of possession of mari147. Honeycutt v. Department of Labor, 22 M.S.P.R. 491,494 (1984) (finding that shooting of person by intoxicated coal mine inspector during card game demonstrated sufficient
nexus to dismiss employee because employee's interaction with mine owners "could take
place under stressful and adversarial conditions").
148. Rehabilitation Act of 1973, Pub. L. No. 93-112, § 501, 87 Stat. 890 (codified as
amended at 29 U.S.C. § 791 (1988)).
149.
29 C.F.R. § 1613.704 (1988); see also OFFICE OF PERSONNEL MANAGEMENT, HANDBOOx
ON REASONABLE ACCOMMODATION.
150. 29 U.S.C. § 791 (1988). The Act requires non-discrimination in the treatment of
handicapped federal employees. Id "Handicapped person" is defined as an individual who
has a physical or mental impairment which substantially limits one or more of the individual's
major life activities, has a record of such impairment, or is regarded as having such an impairment. 29 C.F.R. § 1613.702(a) (1988). A qualified handicapped person is a handicapped person who can perform the job functions in question, with or without reasonable
accommodations. Id § 1613.702(f) (1988).
151. See McCaffrey v. United States Postal Serv., 36 M.S.P.R. 224, 228-29 (1988) (requiring expert testimony on issue of handicapped status).
152. See Brinkley v. Veterans' Admin., 37 M.S.P.R. 682, 684 (1988) (holding that employee failed to demonstrate causal connection between alleged handicap of drug addiction
and misconduct of stealing drugs); McCaffrey v. United States Postal Serv., 36 M.S.P.R. 224,
230 (1988) (asserting employee has burden of proving that drug dependency condition
caused him to sell drugs to another employee); DeDonato v. United States Postal Serv., 25
M.S.P.R. 286, 293 (1984) (requiring employee to establish causal connection between emotional or psychological problems and sexual misconduct in public place).
153. See MacCormack v. Department of the Air Force, 26 M.S.P.R. 611, 613 (1985) (holding that agency could not have discriminated against alcoholic employee because agency did
not know or have reason to know of handicapping condition).
154. See Averill v. Department of the Navy, 30 M.S.P.R. 327,329 (1986) (finding employee
handicapped by drug abuse but that his work as operator of heavy equipment could endanger
health and safety of others).
155. 29 M.S.P.R. 466 (1985).
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FEDERAL EMPLOYMENT DISCIPLINARY
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889
juana was unable to show that he was a handicapped drug abuser. 156
In DeDonato v. United States Postal Service, 15 7 the MSPB found no evidence of a causal relationship between the acts underlying a conviction for sexual misconduct and the employee's mental handicap.' 58
Moreover, the MSPB in Brinkley v. Veterans Administration159 established that in substance abuse cases, the employee must prove that
there is no mens rea relating to the criminal acts, which otherwise
60
would show nexus.'
When the employee is able to prove handicapped status and causation, the agency is barred under the reasonable accommodation
requirements from instituting disciplinary action. 16 1 Furthermore,
employees in agency sponsored or referred rehabilitation programs
may not be the subject of disciplinary action until the success or
failure of the program is demonstrated.' 62 Considerable disagreement exists, however, with respect to whether an agency must give
deference to the medical reality that one or two treatment relapses
for alcohol or drug abuse is a normal part of the treatment
5
process.16
D. MitigatingNexus: The Penalty Phase
Assuming the factfinder determines that nexus exists, the question then arises as to the appropriate penalty. The available penal156. Robertson v. Department of the Navy, 29 M.S.P.R. 466, 471 (1985) (upholding removal of employee charged with possession of marijuana where employee failed to prove he
was handicapped drug user entitled to accommodation).
157. 25 M.S.P.R. 286 (1984).
158. DeDonato v. United States Postal Serv., 25 M.S.P.R. 286, 293 (1984) (sustaining removal of postmaster who had engaged in sexual misconduct in public restroom).
159. 37 M.S.P.R. 682 (1988).
160. See also Campbell v. Defense Logistics Agency, 37 M.S.P.R. 691, 695 (1988) ("free
will").
161. See 5 C.F.R. § 752.202(b) (1989) (prohibiting suspension of employees where that
would violate prohibited personnel practices described under 5 U.S.C. § 2302 (1988)).
162. Carr v. Department of the Air Force, 32 M.S.P.R. 665, 670 (1987) (holding that
agency failed to reasonably accommodate employee's alcohol condition by terminating employee before employee could complete alcohol treatment program and demonstrate successful rehabilitation).
163. See Whitlock v. Donovan, 598 F. Supp. 126, 137 (D.D.C. 1984) (holding that in spite
of employee's initial failure in alcohol treatment program, agency had on-going duty to reasonably accommodate employee's handicapping condition when continued treatment may
prove beneficial and would not impose undue burden on agency), aff'd mem, 790 F.2d 964
(D.C. Cir. 1986); McElrath v. Kemp, 714 F. Supp. 23, 28 (D.D.C. 1989) (ordering dismissed
alcoholic employee reinstated on leave-without-pay basis during treatment, and leave with pay
when employee demonstrates fitness for work); Callicotte v. Carlucci, 698 F. Supp. 944, 950
(D.D.C. 1988) (concluding that "single instance of rehabilitative failure" does not release
agency of duty to reasonably accommodate employee's handicap of chronic alcoholism).
890
THE AMERICAN UNIVERSITY LAw
REVIEW [Vol. 39:869
ties range from reprimand to remova.1 64 Determination of an
appropriate penalty is not completely discretionary. In Douglas v.
Veterans Administration,1 6 5 the MSPB ruled that an agency must consider specific mitigating and aggravating factors in determining an
appropriate penalty. 16 6 These factors include those considered in
the nexus decision itself, including the nature and seriousness of
offense, job duties, and other individualized decision factors relating
to the employee's work record, potential for rehabilitation, and consideration of alternative penalties. 167 The Douglas factors parallel
the Office of Personnel Management's "suitability" regulations establishing a separate procedure for determining the relevance of
criminal convictions to federal employment of applicants and present employees.16 8 The factors relating to determining rehabilitation
potential are the most difficult to apply.
1.
Rehabilitation evidence
The burden of proof of rehabilitation lies with the employee, not
the agency.' 69 There are few decisions detailing the relative significance of rehabilitation in determining an appropriate penalty. In
part, the absence of decisions on this point is often due to the ab164. 5 U.S.C. § 7512 (1988). Disciplinary actions include removal, suspension for more
than 14 days, reduction in grade, reduction in pay, and furlough of 30 days or less. IL § 7522
(1988).
165. 5 M.S.P.R. 280 (1981).
166. Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-10 (1981) (holding that dismissal
of hospital supply clerk for unauthorized absence from work station was appropriate given
record showing similar past conduct).
167. 5 U.S.C. § 7513(b)(4) (1988) requires an agency to issue a written decision specifying
the reasons for an adverse action against an employee. The court in Douglas relied upon
regulations promulgated by the Office of Personnel Management, prior court decisions, and
Civil Service Commission issuances in developing factors for determining the appropriateness
of a penalty. Douglas, 5 M.S.P.R. at 303-05. See generally 5 C.F.R. § 731.202(b)-(c) (1989);
Francisco v. Campbell, 625 F.2d 266, 269-70 (9th Cir. 1980) (citing several factors in finding
dismissal of Navy education administrator disproportionate to offense of insubordination);
Giles v. United States, 553 F.2d 647, 650-51 (Ct. Cl. 1977) (finding based upon consider-tion
of "all circumstances" that removal of IRS employee who had knowingly failed to file own
state and federal tax returns was not disproportionate to offense); Boyce v. United States, 543
F.2d 1290, 1294 (Ct. Cl. 1976) (reversing dismissal of two IRS employees who unintentionally
failed to file tax returns because they had relied on their husbands and had over 10 years of
satisfactory service). The factors cited by the Douglas court include: (1) the nature and seriousness of the offense; (2) employee's job level; (3) the employee's past disciplinary record;
(4) the employee's past work record; (5) consistency of the penalty with those imposed in
similar cases; (6) impact of the offense on the reputation of the agency; (7) notice that the
employee had of the rules which were violated; (8) potential for the employee's rehabilitation;
(9) mitigating circumstances surrounding the offense; and (10) adequacy and effectiveness of
alternative sanctions. Douglas, 5 M.S.P.R. at 305-06.
168. See 5 C.F.R. § 731.202(b)(2) (1989) (providing that "criminal, dishonest, infamous or
notoriously disgraceful conduct" may be basis for disqualification).
169. Kissner v. Office of Personnel Management, 792 F.2d 133, 134-35 (Fed. Cir. 1986)
(contending that once agency presented prima facie case of proper penalty, burden shifts to
employee to prove rehabilitation).
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FEDERAL EMPLOYMENT DISCIPLINARY
ACTION
891
sence of direct evidence of rehabilitation offered by an appellant
employee. Such evidence may be provided by expert testimony or
by inferring rehabilitation from the criminal court judge's actions in
sentencing the convicted employee. This method is especially useful because the criminal court judge has had a first-hand view of the
character and culpability of the convicted employee. In Grebosz v.
United States Civil Service Commission, 170 the court inferred from a sentence of probation that the trial judge believed the defendant-employee could be rehabilitated.'17 In Turchin v. United States Postal
Service, 17 2 the statement of the trial judge at sentencing about reha73
bilitation potential was even more direct evidence.'
Where evidence of rehabilitation is presented, that evidence may
be sufficient to warrant imposition of a lesser penalty. 74 The MSPB
in Turchin, accepted the testimony of a vocational rehabilitation specialist about the rehabilitation success of the employee as conclusive
of the employee's "great potential for rehabilitation."'' 75 In another
Postal Service case, the testimony of a medical doctor was given
equally significant consideration. 76 Other cases also demonstrate
77
the significance of rehabilitation evidence.'
2. Alternative penalty
A second key Douglas factor is the requirement for consideration
of a lesser penalty. 7 8 While removal is prevalent in the litigated
170. 472 F. Supp. 1081 (S.D.N.Y. 1979).
171. Grebosz v. United States Civil Serv. Comm'n, 472 F. Supp. 1081, 1088 (S.D.N.Y.
1979) (noting that Grebosz's sentence for sale of cocaine of 20 days imprisonment and 5 years
probation reflected the trial judge's view that Grebosz did not pose threat to public). An
inference that the probability of rehabilitation was the basis of a sentence of probation should
be based upon a demonstration that such a factor is typically considered by the court for this
type of crime. Thus, the more serious the crime, the greater the inference where probation
was imposed in lieu of the more typical sentence of incarceration. The establishment of sentencing guidelines may make such an inference more credible by demonstrating the relative
likelihood of probation versus incarceration for the specific conviction.
172. 39 M.S.P.R. 14 (1988).
173. Turchin v. United States Postal Serv., 39 M.S.P.R. 14, 16 (1988) (reversing removal
of employee who had pleaded guilty to shoplifting while off-duty noting rehabilitation expert
concluded employee had been under "transient stress" and subsequently successful
rehabilitation).
174. Id.
175. Id at 16. It would seem conceptually that rehabilitation is an on-going state. Hence,
evidence of present rehabilitative condition is the best evidence of future "potential for
rehabilitation."
176. Broadnax v. United States Postal Serv., 24 M.S.P.R. 319, 324 (1984) (affirming reinstatement of employee noting medical testimony supported contention that violent behavior of employee would not re-occur).
177. See, e.g., Hawkins v. United States Postal Serv., 35 M.S.P.R. 549, 552 (1987) (relying
on testimony of psychiatrist, psychologist, and mental worker as indicative of Hawkins' recovery); Kruger v. Department of Justice, 32 M.S.P.R. 71, 77 (1987) (noting that Kruger may
recover through participation in drug rehabilitation program).
178. See supra note 167 and accompanying text (describing Douglas factors).
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:869
cases, an agency may be able, consistent with its needs, to use a
lesser penalty such as suspension.' 79 In some situations, factors
which support a termination decision may be addressed adequately
through a transfer of the employee to another position; this is espedally relevant where supervisor trust and confidence is the basis for
finding a nexus between the conviction and the efficiency of the service. In cases involving an affirmative defense such as a handicapped condition, 8 0 an agency may be obligated at the penalty
stage to investigate the circumstances of the behavior resulting in
conviction, even though that factor is not controlling on the nexus
decision itself. 81 '
3.
Consistency ofpenalty
A third Douglas factor which may be the subject of litigation rulings is the requirement that the Agency must consider the consistency of the punishment. 182 The major problem in attempting to
assess the state of the law on this point is identifying relevant cases.
This is due to a variety of factors which limit the likelihood that similar cases will occur, much less disparate treatment of these cases.
First, the MSPB has based relatively few disciplinary actions upon
criminal convictions. Many such cases involve United States Postal
Service employees. a83 Therefore, executive branch agencies have a
small pool of cases with which to make intra-agency comparisons.
In addition, the likelihood of similar cases occurring within a single
agency is itself very small. Further, the types of convictions in cases
involving adverse personnel actions against employees var' considerably. At a minimum, a classification of convictions in these cases
would include: homicide, sexual misconduct, sexual misconduct
against children, assault, fraud, theft, drug use, drug sales, and conspiracy. Finally, many agencies lack easy accessibility to the records
of prior proceedings. Agency record keeping of disciplinary proceedings may not permit the identification of the basis for disciplinary action as criminal conviction. The result of all these difficulties
179.
See supra note 164 (describing available penalties found in 5 U.S.C. § 7512 (1988)).
180. See supra notes 148-62 and accompanying text (discussing handicap condition as
defense).
181.
See Cochran v. Department ofJustice, 16 M.S.P.R. 343 (1983) (reducing disciplinary
penalty from removal to 60-day suspension of nurse who threatened employee with knife
because employee's misconduct was due to temporary mental condition).
182. See supra note 167 and accompanying text (describing Douglas factors).
183. There has been no statistical analysis of the exact proportion of MSPB cases involving Postal Service employees. However, the U.S. MSPB Digest has a special listing for Postal
Service cases: Key No. 48. Volume 40 of the MSPR includes over 80 Postal Service cases.
This is about the same number of cases as those involving OPM (which is involved in cases
from all executive branch agencies).
1990]
FEDERAL EMPLOYMENT DISCIPLINARY ACTION
893
is that no rulings exist even on what is the appropriate comparison
base: government-wide, agency-wide or even geographic specific.
Rationales for selection of any of these possible bases for comparison are not difficult,' 8 4 but there are no decisions favoring one
choice over the other.
In the absence of any preferred method for determining consistency in penalty selection, there is an alternative approach for establishing penalty guidelines. The Office of Personnel Management
has issued a model table of agency penalties.' 8 5 Many agencies have
responded with publication of a table of penalties applicable to disciplinary proceedings; however, off-duty misconduct is typically not
86
included in such tables.'
As with other penalty related issues, the burden of proof is upon
87
the employee to prove disparate treatment in penalty imposition.'
The validity of this requirement in situations where data is unavailable has yet to be tested.' 8 8 The Federal Circuit in Parker v. United
Postal Service,' 8 9 has suggested that only intentional disparity is prohibited, citing court holdings in criminal proceedings.' 90
4.
Explicit considerationof Douglasfactors
The MSPB has not required agencies to demonstrate that all of
the Douglas factors have been considered in determining an appro184. In theory, a government-wide penalty structure would seem desirable, given the example of the federal sentencing guidelines in criminal prosecutions. See Mistretta v. United
States, 109 S. Ct. 647, 675 (1989) (upholding constitutionality of Sentencing Reform Act of
1984). Consideration of the likelihood of differences in local mores might dictate otherwise,
especially in view of the doctrine that adverse publicity may require removal to ensure "the
efficiency of the service." See supra note 167 (describing one Doug/as factor as impact of offense on reputation of agency). Differences in local acceptance of some crimes may justify
different treatment of similar off-duty misconduct.
185. OFFICE OF PERSONNEL MANAGEMENT, SUGGESTED TABLE OF ACTIONS FOR CORRECTING
EMPLOYEE MISCONDUCT, FEDERAL PERSONNEL MANUAL CH. 75 (Oct. 6, 1983).
186. See DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, HANDBOOK 752.2 REV.-2, PERSONNEL ACTIONS TAKEN FOR UNACCEPTABLE PERFORMANCE AND MISCONDUCT (Jan. 17, 1984).
The OPM Model Table of Penalties contains reference to only one criminal misconduct:
stealing or possession of stolen property. No distinction is made, however, between government and other person's property. See Suggested Table of Actions, supra note 185, at Nature
of Offense, item 8.
187. See generally Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988)
(requiring similar penalty for two employees apprehended for smoking marijuana); Kings v.
Department ofJustice, 813 F.2d 384, 390 (Fed. Cir. 1987) (affirming agency's discretion unless penalty appears unwarranted in light of all factors); Dominguez v. Department of the Air
Force, 803 F.2d 680, 684 (Fed. Cir. 1986) (deferring to agency unless penalty exceeds bounds
of reasonableness).
188. See infra notes 317-19 and accompanying text (discussing recommendations).
189. 836 F.2d 535 (Fed. Cir. 1988).
190. Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988) (noting that
Air Force may not knowingly apply disparate penalties to similar cases of marijuana use).
894
THE AMERICAN UNIVERSrrY LAW
REVIEW [Vol. 39:869
priate penalty.' 91 In cases where the relevance of any of these factors is not apparent, an agency may ignore it in making a penalty
decision.' 9 2 In other instances, the deciding official's testimony at
the hearing is sufficient to demonstrate adherence to Douglas.'9 3
Where the record is clear that factors such as imposition of a lesser
penalty were not considered, the MSPB will make its own determination about an appropriate penalty.' 94 Agency difficulties in providing information on consistency of penalty determinations would
necessarily imply that it has not considered this issue per the Douglas
requirement. A failure to comply with other Douglas factors, however, does not automatically result in reversal of any disciplinary action taken by the agency.' 9 5 Essentially, Douglas provides some due
process requirements, the significance of any failure being measured by the degree to which "harmful error" results. The result is
that the Douglas requirements do not often lead to MSPB imposition
of alternative penalties.
III.
PARALLEL DOCTRINES
The need for a determination of nexus between a criminal conviction and employment is not limited to the federal personnel field.
Parallel nexus determinations are made in state employment and licensing cases, equal employment opportunity cases, and tort litigation involving claims of negligent hiring by employers of employees
with criminal records. All of these fields may provide insight into
the development of the federal law of nexus.
A.
State Employment/Licensing
A number of states have adopted statutes imposing a nexus requirement similar to that adopted by the Civil Service Reform
Act.' 9 6 For example, Minnesota law specifically provides that evidence of rehabilitation overcomes any nexus based disqualification. 19 7 At least thirteen states have legislation imposing nexus
191. See Parker v. United States Postal Serv., 819 F.2d 1113, 1116 (Fed. Cir. 1987) (affirming MSPB decision and noting that Douglas factors are not exhaustive but helpful to agencies in selecting penalty).
192. See Douglas, 5 M.S.P.R. at 305 (enumerating factors "generally recognized as
relevant").
193. See Parsons v. Department of the Air Force, 21 M.S.P.R. 438, 442 (1984) (rejecting
refusal of agency official to consider Douglas factors other than nature of offense).
194. Id at 441-42.
195. See Douglas, 5 M.S.P.R. at 306 (noting that MSPB's role is to review agency's balancing of relevant factors for reasonableness).
196. These include California, Connecticut, Florida, Hawaii, Kentucky, Maine, Minnesota,
New Mexico, New York, Pennsylvania, Washington, and Wisconsin.
197. MINN. STAT. § 364.03 (1989).
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requirements for civil service employment disqualification.1 98
Twenty-five states require a showing of nexus to support the denial
of state licenses to practice in specific employment positions, ranging from barbers or cosmetologists to attorneys or medical
practitioners. 19 9
In the absence of state statutory standards, the federal courts have
determined that constitutional due process requirements dictate
that a nexus exists between a criminal conviction and a state employment or licensing position. In the leading case of Carterv. Gallagker,200 the United States Court of Appeals for the Eighth Circuit
authorized pre-employment questions directed at conviction
records on the basis that convictions were not a per se bar against
employment, specifically noting that specific convictions were rationally related to the duties of the jobs in question. 2 0 1 Soon thereafter, the Fifth Circuit ruled unconstitutional a city ordinance
20 2
denying employment to veterans without honorable discharges.
Recent decisions have continued to require nexus in civil service
proceedings. 20 3 Nonetheless, courts generally will respect limited
bars against ex-felons when some tenable relationship between specific positions and conviction records exist, 20 4 especially those bars
198. See, e.g., CONN. GEN. STAT. § 7-419 (1989) (requiring agencies to state reasons for
removal of civil service employees); FLA. STAT. § 321.06 (1988) (stipulating that highway patrol may discipline officers only for cause); Wis. STAT. § 63.10 (1988) (mandating that removal
or demotion of employees be based upon showing of cause).
199. These states are Arkansas, California, Colorado, Connecticut, Florida, Hawaii, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri,
Montana, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Virginia, Washington,
and Wisconsin.
200. 452 F.2d 315 (8th Cir. 1973).
201. Carter v. Gallagher, 452 F.2d 315, 326 (8th Cir.) (en banc) (rejecting allegations of
discriminatory practices in hiring by Minneapolis Fire Department), cert. denied, 406 U.S. 950
(1972). The circuit court upheld the district court injunction against the department in asking
arrest record information. Idt; see also Butts v. Nichols, 381 F. Supp. 573, 581-82 (S.D. Iowa
1974) (noting that state violated equal protection clause by excluding all ex-felons from public employment); Osterman v. Paulk, 387 F. Supp. 669, 671 (S.D. Fla. 1974) (holding that
prior use of marijuana was not rational reason to bar employment as clerk for city).
202. Thompson v. Gallagher, 489 F.2d 443,449 (5th Cir. 1973) (noting absence of"general comprehensive scheme which enumerated characteristics deemed to be conducive to
competent performance... and which excluded all those who lacked these characteristics").
203. See Furst v. New York City Transit Auth., 631 F. Supp. 1331, 1338 (E.D.N.Y. 1986)
(holding policy of dismissing ex-felons violates equal protection clause under rationale relationship scrutiny); Kingdem v. City of Alameda, 502 F. Supp. 1108, 1112 (N.D. Cal. 1980)
(finding no rational relationship between employee's ten-year-old conviction for drug violation and employment as janitor); Hunter v. Port Auth. of Allegheny City, 277 Pa. Super. 4,
419 A.2d 631, 638 (1984) (requiring nexus between denials of employment based on applicant's 13-year-old assault conviction and legitimate governmental objective).
204. See Darks v. Cincinnati, 745 F.2d 1040, 1044 (6th Cir. 1984) (concluding city has
rational basis to deny dance hall license to ex-felons); see also Dixon v. McMullen, 527 F. Supp.
711, 720 (N.D. Tex. 1981) (upholding bar against ex-felon as peace officer due to lack of
integrity and trust).
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with limited time applications. 20 5 Cases upholding limited state employment statutes have typically not been faced with an ex-felon
whose conviction is clearly irrelevant with respect to a required
nexus to job performance, e.g., conscientious objector convicted of
20 6
draft evasion.
Few state court decisions interpret state law as establishing a
nexus requirement. State courts are unlikely to consider the federal
precedents in state civil service cases and consequently like results
are often based upon conflicting legal theories. For example, the
Wisconsin state court interpreting a state law forbidding discrimination in employment applied a simplistic, "elements of the crime"
test to find nexus between misdemeanor convictions for patient neglect as a nursing home administrator and a position as a crisis intervention specialist. 20 7 The court held that a factual inquiry into
the circumstances of the crime was not required. 208 Because the
state statute limited inquiry into whether there was a "substantial
relationship" or nexus, 20 9 the court did not consider the second test
210
found in the Civil Service Reform Act: impact upon co-workers.
Although under federal precedents, this would have been sufficient
to warrant dismissal, 21 ' evidence of the notoriety of the conviction
and its impact upon agency mission and performance was not
2
considered. 21
Court decisions involving challenges to denials of state licenses
based upon prior convictions have also applied a nexus requirement. For example, in California, the state supreme court held that
willful failure. to file an income tax return does not require disbar-
ment as a lawyer. 213 In Wisconsin, the state supreme court held that
205. See Schanuel v. Anderson, 708 F.2d 316, 320 (7th Cir. 1983) (recognizing bar against
granting licenses to private detectives serving as armed guards or investigators within 10
years of completed sentence).
206. In the private sector context see Green v. Missouri Pac. R.R. Co., 523 F.2d 1290,
1298-99 (8th Cir. 1975) (holding denial of employment opportunity by railroad to applicant
convicted of draft evasion was discriminatory).
207. County of Milwaukee v. Labor Indus. Review Comm'n, 407 N.W.2d 908, 917 (Wis.
1987). The state court noted that an evaluation of the elements of the crime facilitates a
determination of whether the circumstances of the offense substantially relate to the circumstances of the particular job. Id at 916-17.
208. Id. at 916.
209. Wis. STAT. § 111.32(5)(h)(2a) (1980).
210. See supra note 6 and accompanying text (describing Civil Service Reform Act).
211. See supra notes 100-19 and accompanying text (describing criminal convictions which
have provided basis for dismissing federal employees).
212. For analysis of court's decision, see Note, County of Milwaukee v. LIRC: Levels of Abstraction and Employment Discrimination Because of Arrest or Conviction Record, 1988 Wis. L. REV.
891, 904-08.
213. In re Fahey, 8 Cal. 3d 842,854, 505 P.2d 1369, 1376, 106 Cal. Rptr. 313, 320 (1973)
(contending that conviction for intentional failure to file income tax return does not reflect
state of mind which would impair performance of professional duties of attorney); see also
1990]
FEDERAL EMPLOYMENT DISCIPLINARY ACTION
897
a conviction for introducing misbranded drugs into interstate commerce could not be the basis for denial of a license to practice den21 4
tistry without proof of criminal intent.
Inferences about what constitutes nexus for the state courts may
be drawn from licensing decisions. 2 15 Among the state decisions
upholding license denial or removal are those where the crimes involved elements of fraud and deceit and the licensee would be in a
position of trust such as real estate salesman 2 1 6 or nursing home
administrator.2 1 7 Similarly, proof of a drunk driving conviction may
2 18
be used to bar a license as a school bus driver.
In California, expert witness testimony about the unlikelihood of
recidivism was accorded significant weight in a disbarment proceeding.2 1 9 The evidence, which included testimony about continuing
psychiatric treatment, convinced the court not to disbar an attorney
convicted of an assault upon a former client who had been harassing
2 20
the attorney for an extended period of time.
B. Equal Employment Opportunity
Both the federal courts and the Equal Employment Opportunity
Commission have ruled that dismissal from employment solely on
the basis of a conviction violates Title VII of the Civil Rights Act
which prohibits discrimination in employment. 22 1 In Gregory v. LitHallinan v. Committee of Bar Examiners, 65 Cal.2d 447, 466, 421 P.2d 76, 95, 55 Cal. Rptr.
228, 247 (1966) (holding that conviction stemming from peaceful civil rights demonstration
was no bar to practice law).
214. Lee v. Board of Dental Examiners, 29 Wis.2d 330, 334, 139 N.W.2d 61, 65 (1966)
(suggesting that dental license could be denied if misbranding of drugs were proved to endanger public health).
215. See MODEL SENTENCING AND CORRECTIONs ACT § 4-1005(c), 10 U.L.A. 210 (1985)
(providing that following factors must be considered in nexus determinations: whether job
provides opportunity for commission of similar offenses; whether circumstances leading to
offense will reoccur, whether subsequent conduct makes recidivism likely; time elapsed; continued contact with victim associated persons or organizations). See generally Potuto, A Model
Proposalto Avoid Ex-Offender Employment Discrimination,41 OHIO ST. LJ. 77 (1980) (evaluating
Model Sentencing and Corrections Act of 1978).
216. Coles v. Department of Registration and Educ., 59 Ill. App. 3d 1046, 1051, 376
N.E.2d 269, 272 (1978) (upholding suspension of real estate license where registrant was
convicted of crime involving dishonesty).
217. Braunstein v. Board of Examiners, 105 Misc. 2d 91, 431 N.Y.S.2d 890 (Sup. Ct.),
aff'd, 456 N.Y.S.2d 149 (1980) (affirming revocation of license to practice nursing where individual has been convicted of crime involving fraud).
218. Yeoman v. Department of Motor Vehicles, 78 Cal. Rptr. 251 (Ct. App. 1969) (permitting revocation of school bus certificate when driver has been convicted of drunk driving).
219. In re Mostman, 47 Cal. 3d 725, 734, 765 P.2d 448, 458, 254 Cal. Rptr. 286, 294
(1989) (noting testimony by those who treated petitioner that he has become better at dealing
with emotional pressures).
220. Id. The court also considered the attorney's remorse and sorrow concerning his actions and his candidness and desire to rehabilitate himself. Id.
221. See, e.g., Green v. Missouri Pac. R.R. Co., 523 F.2d 1290, 1298-99 (8th Cir. 1975)
(holding refusal to hire convicts is violation of Title VII); Washam v.J.C. Penney Co., 519 F.
898
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:869
ton Systems, 2 22 the federal courts held that the use of criminal records
in employment results in disparate impact upon minority groups
with higher rates of arrest or conviction than those of white job applicants or employees. 2 23 This decision was based upon evidence
showing that blacks are arrested or convicted at least twice as often
as their presence in the national population. 2 24 Subsequent court
decisions have agreed with the court in Gregory's application of title
225
VII to conviction record use by employers.
The nexus question in race discrimination cases becomes one of
business necessity: whether the absence of convictions represents a
bona fide employment qualification. 2 26 Under this theory, the court
in Richardson v. Hotel Corp. of America 2 27 held that a prior conviction
for theft was a legitimate disqualification for employment as a bellman. 22 8 The hotel employing Richardson maintained a policy of excluding persons convicted of serious crimes from "security
sensitive" positions because of their access to guests' rooms and
luggage. 2 29 The court found this access to guests' possessions a reasonable justification for not hiring those convicted of theft. 230 In
Supp. 554, 561 (D. Del. 1981) (stating that policy of absolute refusal to hire convicts violated
title VII); EEOC Decision 78-35 (1978) (discussing disparate number of convictions among
blacks as opposed to whites); EEOC Decision 80-16 (1980) (following EEOC 78-35).
222. 316 F. Supp. 401 (C.D. Cal. 1970), modified, 472 F.2d 631 (9th Cir. 1972).
223. Gregory v. Litton Sys., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (dealing with company policy of failing to hire frequently arrested job applicants), modified, 472 F.2d 631 (9th
Cir. 1972).
224. Id.
225. See, e.g., Green v. Missouri Pac. R.R. Co., 523 F.2d 1290, 1294 (8th Cir. 1975) (requiring evidence of disparate arrest and conviction rates among relevant job pool of applicants). Green had been convicted as a conscientious objector on religious grounds to the
Vietnam War. Id at 1292-93. The railroad had a blanket policy of excluding all convicted job
applicants regardless of the degree of relevance of the conviction to any legitimate concerns
about work performance or safety. Id at 1293; see also Washam v. J.C. Penney Co., 519 F.
Supp. 554, 561 (D. Del. 1981) (agreeing with other courts' position that absolute refusal to
hire convicts violated title VII); Carter v. Gallagher, 452 F.2d 315, 326 (8th Cir. 1971) (stating
that conviction should not constitute per se bar to employment), cert. denied, 406 U.S. 950
(1972); EEOC Policy Statement on the Use of Statistics on Charges Involving the Exclusion of Individuals
with Conviction Recordsfrom Employment, (July 29, 1987), 2 EEOC Compl. Man. (BNA) N:3291
(1989) (setting forth EEOC agreement with Green and expanding agency's position on proper
and permissible uses of statistics in these cases).
226. See Gregory v. Litton Sys., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (holding that
business necessity makes no conviction requirement not discriminatory); Washam v.J.C. Penney Co., 519 F. Supp. 554, 561 (D. Del. 1981) (stating that defendant could establish business
necessity that certain employees have no convictions).
227. 332 F. Supp. 519 (E.D. La.), aff'd per curiam, 468 F.2d 951 (5th Cir. 1971).
228. Richardson v. Hotel Corp. of Am., 332 F. Supp. 519, 521 (E.D. La.), aff'dper curiam,
468 F.2d 951 (5th Cir. 1971); see also EEOC Decision 79-5 (1978) (holding murder conviction
relevant to position of bill collector where murder was impulsive in nature).
229. Richardson, 332 F. Supp. at 521.
230. Id.
1990]
FEDERAL EMPLOYMENT DISCIPLINARY ACTION
899
addition, the court noted that the defendant applied this policy to
23 1
whites and blacks.
The EEOC summarized its position on the appropriate use of
conviction records in an agency policy statement which requires
both inquiry into nexus and consideration of the length of time between most recent conviction or completion of sentence and the
employment decision. 2 32 This policy statement modified the
EEOC's prior two-step analysis, requiring a showing-that the conviction was job-related, and then that the conviction would adversely
affect the individual's job performance. 2 3 Now the agency must
demonstrate that it based the termination or refusal of employment
due to conviction based on a business necessity comprised of three
factors: "1. The nature and gravity of the offense or offenses;
2. The time that has passed since the conviction and/or completion of the sentence; and 3. The nature of the job held or
sought. ' 23 4 The EEOC stressed in the policy statement that this
new formula in no way alters the Commission's position that convic23 5
tion-based exclusions adversely impact Blacks and Hispanics.
The revised procedure maintains the "business necessity" standard,
but eliminates consideration of employment history and attempts at
2 36
rehabilitation.
Other EEOC decisions suggest indicia that should be used in determining whether the requisite nexus exists. 23 7 In one case, an employer was held to violate Title VII by failing to hire for a position of
photographer an applicant convicted of forgery six years prior to
the application; although the job description included handling
money, strong evidence of applicant's rehabilitation counterbal231. Id.
232. EEOC Policy Statement on the Issue of Use of Conviction Records Under Title VII (Feb. 27,
1987), 2 EEOC Compl. Man. (BNA) N:3281 (1989). Earlier, the EEOC had required additional consideration of employment history and information about rehabilitation. E.E.O.C.
Decision 78-10 (1978) (requiring consideration of various elements in hiring decisions and
placing burden on agency to show grounds for failure to hire in employment discrimination
cases). The 1987 statement does not explain why information about rehabilitation will no
longer be required to be considered.
233. 2 EEOC Compl. Man. (BNA) N:3281 (1989).
234. Id.
235. Id.
236. Id.
237. See, e.g., E.E.O.C. Decision 78-10 (1978) (listing factors other than conviction to be
considered); E.E.O.C. Decision 80-16 (1980) (requiring Commission to address all factors
relevant to inquiry); E.E.O.C. Decision 78-35, 26 Fair Empl. Prac. Cas. (BNA) 1755, 1757
(June 8, 1978) (noting that Commission and courts require examination of several factors
aside from conviction).
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[Vol. 39:869
anced the potential problem. 238 In contrast, in a case involving an
applicant with a lengthy criminal record, the EEOC did not require
the employer to consider evidence of rehabilitation. 2 9 Other decisions have upheld employer refusals to hire based upon convictions
for violent crimes where the work required tactful dealing with the
public. 240 At least one federal court has agreed with the EEOC that
nexus determinations must include more than a simple considera24 1
tion ofjob relatedness.
Three states have extended the equal employment approach to
include statutory protections against discrimination in employment
based upon conviction records: Hawaii, 24 2 New York, 248 and Wisconsin. 24 4 Of these three states, only New York's law specifically
sets forth factors to be included in nexus determinations. 245 This
law requires that in addition to job relatedness, an employer must
consider the time elapsed since conviction, age of person at time of
offense commission, rehabilitation information produced by the applicant, and the safety threat to others. 246 Both Hawaii and Wisconsin law provide that there must be a substantial relationship between
the conviction and the job in question for conviction use by an em24 7
ployer to be lawful.
Thus, the main prohibition against discrimination based on convictions allows employers some leeway. 248 A company' may discharge or refuse to hire a convicted individual when a business
238. E.E.O.C. Decision 80-16 (1980); see also E.E.O.C. Decision 79-17 (1979) (listing factors to be considered in hiring individual with criminal conviction but finding heroin convic-
tion less than two years earlier sufficient grounds to deny bus driver applicant employment).
239. E.E.O.C. Decision 78-35, 26 Fair Empl. Prac. Cas. (BNA) 1755, 1756 (June 8, 1978)
(concluding that where offenses are severe and numerous, agency need not consider employment history or rehabilitation in rejecting applicant).
240. See, e.g., E.E.O.C. Decision 79-05 (1978) (allowing refusal to hire based on homicide
conviction of applicant for bill collector position); E.E.O.C. Decision 78-44 (1978) (allowing
refusal to hire based on assault conviction of applicant for corrections officer responsible for
inmate control).
241. See Lewis v. Western Airlines, 10 Fair Empl. Prac. Cas. (BNA) 535 (N.D. Cal. 1975)
(allowing use as preliminary trigger for in-depth background check); but see Coburn v. State
Personnel Board, 83 Cal. App. 3d 801, 148 Cal. Rptr. 134 (1978) (holding ten year old misdemeanor conviction not relevant to prove criminal disposition before State Personnel Board in
dismissal action).
242. HAW. REv. STAT. §§ 378-1 - 378-9 (1985 & Supp. 1988).
243. N.Y. CORRECT. LAw § 752 (McKinney 1987); N.Y. EXEC. LAw § 296 (McKinney
1982).
244. Wis. STAT. §§ 111.32(1), 111.32(3), 111.322, 111.335 (1985).
245. N.Y. CORRECT. LAW § 753 (McKinney 1987).
246. Id
247. Wis. STAT. § 111.335(1)(c) (1985); HAw. REV. STAT. § 378-3(2) (1985). The Hawaii
law does not make explicit reference to this requirement; its reference to a bona fide qualification would seem to be an equivalent reference. Idl
248. See supra notes 226-47 and accompanying text (discussing justification of business
necessity).
1990]
FEDERAL EMPLOYMENT DISCIPLINARY ACTION
reason dictates. 24 9 Such discrimination must, however, consider
more than a mere passing relationship between the crime and the
job responsibilities. 25 0 Rehabilitation and the lapse of time since
conviction can play a major role. 251 The employer, however, may
still use conviction information when the nature or number of convictions indicates a potentially great threat to the safety of others. 2 52
C.
Negligent Hiring Doctrine
A claim of negligent hiring of an employee convicted of a crime
may be the basis for a tort action seeking damages from the employer where the employee's actions resulted in injuries causally related to the employee's criminal history. 2 53 A prudent employer
would not have hired an employee with a record of particular criminal activity, or would not have assigned the employee such duties
permitting occasion to cause the subsequent injury.2 54 Negligent
hiring is to be distinguished from the doctrine of respondeat superior which holds the employer responsible for an employee's actions
falling within the scope of employment.2 5 5 Unlike respondeat superior's scope of employment analysis, the inquiry in negligent hiring
theory focuses on the causal link between the employer's negligence
in hiring or failing to supervise employees with criminal records and
the subsequent actions of that employee. 2 56
249. See supra notes 226-28 and 238-45 and accompanying text (stating that business necessity justifies action).
250. See supra notes 232-47 and accompanying text (discussing factors to be considered).
251. Id
252. N.Y. CORRECT. LAW § 753 (McKinney 1987); Wis. STAT. § 111.335 (1985); HAw.
REv. STAT. § 378-3(2) (1985); see supra notes 239-40 and accompanying text (discussing egregious behavior exception).
253. See, e.g., Rieser v. District of Columbia, 563 F.2d 462, 477-81 (D.C. Cir.) (finding
employer with knowledge of past sex crimes liable for rape and murder of tenant), vacatedon
other grounds, 580 F.2d 647 (D.C. Cir. 1977); Bates v. Doria, 150 In. App. 3d 1025, 1029, 502
N.E.2d 454,458 (1986) (stating that negligent hiring is well-established cause of action); Guillermo v. Brennan, 691 F. Supp. 1151, 1155-59 (N.D. Ill. 1988) (applying Wisconsin statute
restricting hiring discrimination against convicts to find no negligent hiring).
254. Reiser, 563 F.2d at 478-79; Bates, 150 Ill. App. 3d at 1029, 502 N.E.2d at 458.
255. See, e.g., White v. Hardy, 678 F.2d 485,487 (4th Cir. 1982) (holding that wrong must
be in scope of employment for respondeat superior); Chuy v. Philadelphia Eagles, 595 F.2d
1265, 1276 (3d Cir. 1979) (requiring tort committed within scope of employment); Norton v.
Railway Express Agency, Inc., 412 F.2d 112, 114 (3d Cir. 1969) (holding scope of employment issue for fact finder). Comparable negligence-based cause of action occurs when an
employment assistance worker places a convicted person in ajob who later commits a crime
based upon access gained from thejob. See Reiser v. District of Columbia, 563 F.2d 462, 464
(D.C. Cir.) (claiming parole officer failed to notify employer of prior record), vacated on other
grounds, 580 F.2d 647 (D.C. Cir. 1977); Goergen v. New York, 196 N.Y.S.2d 455, 462 (Ct. Cl.
1959) (holding parole officer failed in duty to reveal violent record of parolee recommended
for employment).
256. Reiser, 563 F.2d at 478-79; Bates, 150 11. App. 3d at 1030, 502 N.E.2d at 458-59.
902
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 39:869
Employer liability for negligent hiring is based upon the reasonableness of the hiring decision considering the employee's reasonably foreseeable risk of harm to third parties. 25 7 The
reasonableness of the hiring must therefore depend upon the existence of any nexus between the applicant's prior conviction record
and the potential threat to public safety that the job position could
create. 2 58 The question of nexus naturally varies with the nature of
the prior conviction and the job duties/opportunities. 2 59 Thus, in
Mays v. Pico Finance Co.,260 the court held that failure to ask about a
prior conviction for theft was irrelevant where the employee later
committed the crime of rape. 26 1 Other court decisions relying on
the absence of nexus to deny relief for negligent hiring include
those involving conviction for non-support irrelevant to later
rape 2 62 and conviction for intoxication irrelevant to theft of an
apartment. 263 With regard to rehabilitation, at least one court has
held such evidence relevant to determining negligent hiring.2 6
IV.
POLICY RECOMMENDATIONS
This review has identified a number of significant problems in the
precedents guiding decisions about the relevance of criminal convictions for off-duty misconduct to employee discipline. These decisions relate to both nexus and penalty determinations. The
following recommendations assess the general trends and potential
areas for remedying these difficulties.
A.
Overall Assessment
This examination of the court and MSPB decisions demonstrates
that the aims of the Civil Service Reform Act's nexus requirement in
disciplinary proceedings have been undercut. The erosion of the
nexus principle stems from the adoption of the presumption doctrine, 2 65 the de facto abandonment of a handicapping condition de257. Reiser, 563 F.2d at 477, 479-80; Guillermo, 691 F. Supp. at 1158.
258. Reiser, 563 F.2d at 477, 479-80; Guillermo, 691 F. Supp. at 1157-58.
259. Reiser, 563 F.2d at 480-81; Guillermo, 691 F. Supp. at 1158.
260. 339 So.2d 382 (La. App. Ct. 1977).
261. Mays v. Pico Finance Co., 339 So.2d 382, 385 (La. Ct. App. 1977).
262. Bradley v. Stevens, 329 Mich. 556, 558, 46 N.W.2d 382, 384-85 (1951).
263. Argonne Apartment House v. Garrison, 42 F.2d 605, 607-08 (D.C. Cir. 1930).
264. Abraham v. S.E. Onorato Garages, 50 Haw. 628, 632, 446 P.2d 821, 825-26 (1966)
(holding that even if employee's prior conviction were known to employer, employer not liable because conviction occurred about four years prior to promotion, during which period
employee performed exemplary service).
265. See supra notes 73-92 and accompanying text (showing presumption doctrine causing
erosion).
1990]
FEDERAL EMPLOYMENT DISCIPLINARY ACTION
903
fense,26 6 and the refusal to require explicit consideration of
mitigating factors in penalty determinations. 26 7 Further, the general imprecision with which the MSPB details its rationale for deci-
reasoned decisions at the agency and
sionmaking seriously impedes
68
2
hearing officer level.
It could be argued that this view overstates the erosion of the
nexus analysis. Courts rarely apply the presumption doctrine, for
example, notwithstanding its numerous citations. 269 The failure of
the courts and the MSPB to articulate clear rules governing such
discipline, however, encourages imprecise consideration of what the
efficiency of the service might mean. Managers are thereby encouraged to use a "velcro kitchen sink approach" in the hope that
"something will stick" and thus justify acting on their predilection
to fire employees with criminal convictions. Thus, judging from the
purpose of the nexus requirement to slow the acknowledged tendency to automatically fire convicted employees, 2 70 the resultant decisions have failed to break this predilection. 2 7 1 Instead, the
decisions create unclear and ambiguous rules which permit virtually
any action, provided the judge or hearing officer applied the magic
formula averring the supervisor had lost trust and confidence in the
convicted employee. Effective structuring of the system to achieve
the purpose of the nexus principle, requires more precise thinking
as to which types of convictions are relevant to what duties, and
which (and how) factors need to be considered in penalty
determinations.
266. See supra notes 148-60 and accompanying text (discussing erosion of handicapped
employee defense).
267. See supra notes 191-95 and accompanying text (discussing failure to require Douglas
factors).
268. See supra notes 182-84 and accompanying text (discussing MSPB requirements for
recordkeeping).
269. See supra notes 46-72 and accompanying text (noting that majority of courts citing
presumption doctrine do so in dicta). Only one court of appeals decision has applied the
doctrine broadly. See Abrams v. Department of the Navy, 714 F.2d 1219 (3d Cir. 1983) (holding that presumption may only be rebutted by showing that off-duty misconduct will not adversely affect employee's own job performance, but job performance of co-workers as well).
270. See supra note 6 and accompanying text (discussing statute's requirements).
271. See supra notes 265-67 and accompanying text (showing erosion of nexus requirements); see also Brown v. Department of Treasury, 34 M.S.P.R. 132, 134 (1987) (finding proof
of nexus based on manslaughter conviction in reasonable worker fears for safety); Gloster v.
GSA, 720 F.2d 700, 705 (D.C. Cir. 1983) (basing dismissal on notoriety of crime among coworkers or clients invalid unless supported by substantial evidence and nexus); Rotolo v.
MSPB, 636 F.2d 6, 8 (1st Cir. 1980) (holding crime opposed to agency mission as sufficient
grounds).
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THE AMERICAN UNIVERSITY LAW REVIEW
B.
[Vol. 39:869
Nxus Determinations
The key policy issue in nexus determination is what factors are to
be considered as evidence of nexus or the lack of nexus. Clearly the
statute foresees consideration of the type of criminal conviction and
an examination of the convicted employee's job duties and responsibilities. 2 72 A comparison of these two elements results in either a
finding of nexus or no-nexus. 273 This minimal calculus of nexus
leaves open the question of what other evidence is relevant, including the degree to which nexus requires the study of aggravating or
mitigating factors contributing to the misbehavior resulting in
conviction.
The question becomes whether the nexus decision should be offense- or offender-based. 2 74 This issue in turn requires consideration of the purpose of disqualification based upon conviction. The
Civil Service Reform Act refers only to the "efficiency of the service" as the objective; 27 5 this is narrowly defined elsewhere to exclude non-job-related convictions. 27 6 Contrarily, the examination of
the negligent hiring doctrine testifies to a historically broader perspective in common use than simply that of on-the-job efficiency
concern: public safety. 277 Hence, the concern for the "efficiency of
the service" includes consideration of evidence about the likelihood
of repeat criminal acts as they relate to both work performance and
public safety.
In adopting section 2302(b)(10) of the Civil Service Reform Act,
Congress rejected any punishment-based rationale for disqualification of applicants and employees based upon criminal convictions. 2 78 The focus upon potential disruption of the workplace as
the sole basis for disqualification testifies to this conclusion.2 7 9 Nor
does the legislative history suggest congressional intent to limit the
nexus test solely to consideration of crime relevance. 280 The necessity to demonstrate impairment of work function from the convic272. See supra note 6 and accompanying text (discussing statute's requirements).
273. See supra notes 73-79 and accompanying text (discussing MSPB application of nexus
doctrine that follows court interpretation that that type of conviction, if related to employee
job responsibilities, results in requisite nexus finding).
274. See STANDARDS FOR CRIMINAL JUSTICE, Std. 23-8.8 (1988). "The direct relationship
test alone does not provide sufficient guidance ....
It tends to focus on offenses rather than
on individual offenders." Id. Commentary at 23-158.
275. 5 U.S.C. § 7513(a) (1988).
276. 5 C.F.R. § 731.202(a) (1989).
277. See supra notes 253-64 and accompanying text (discussing negligent hiring doctrine).
278. H.R. ComN. RP. No. 1717, 95th Cong., 2d Sess. 131, reprintedin 1978 U.S. CODE
CONG. & ADMIN. NEws 2860, 2864.
279. Id
280. Id
1990]
FEDERAL EMPLOYMENT DISCIPLINARY ACTION
905
tion refutes any simple crime-based test. 28 1 Further, the existing
regulations of the Civil Service Commission require far more issues,
including evidence of rehabilitation, to be considered in suitability
determinations. 282 These regulations remain in force, indicating
that the Office of Personnel Management does not view the Civil
Service Reform Act as a basis for their repeal.
Congress, therefore, intended that nexus decisions should be offender, not offense, based. Assuming that the purpose of nexus determinations properly includes the likelihood of recidivism,
measuring or weighing the nexus factors still remains an issue. The
first task is to develop a rational scheme for assessing nexus that
distinguishes between different crimes and different work
responsibilities.
1. Typology of convictions
The criminal conviction is the first element of the nexus calculus
and the one probably least understood. In the employment context,
criminal convictions were, historically, of two kinds: those indicating lack of good moral character (or moral turpitude) and those not
so designated. 283 These crime typologies focused in the employment context on the likelihood of recidivism; for example, crimes
involving fraud may be predictive of future crimes where a similar
opportunity arises from the individual's employment responsibilities. 28 4 In contrast today, the MSPB distinguishes between egre-
gious crimes which raise a presumption of nexus and those that do
not raise a presumption. 285 The broader focus of this typology now
includes interference with the employment itself, not recidivism
2 86
alone.
281. See supra notes 6 and 272 and accompanying text (discussing statutory requirement of
demonstration that off-duty misconduct will impair job performance to establish nexus).
282. 5 C.F.R. § 731.202(c) (1989).
283. See Young v. Hampton, 568 F.2d 1253, 1258-62 (7th Cir. 1977) (rejecting old standard of "immoral, indecent or disgraceful conduct" in favor of nexus approach); Norton v.
Macy, 417 F.2d 1161, 1165 (D.C. Cir. 1969) (rejecting immorality as standard for dismissal for
homosexual conduct).
284. See, e.g., Fleming v. Department of Agriculture, 24 M.S.P.R. 485 (1984), aff'd mer.,
785 F.2d 322 (Fed. Cir. 1985).
285. See, e.g., Parker v. United States Postal Serv., 819 F.2d 1113, 1116 (Fed. Cir. 1987)
(following idea that some conduct speaks for itself, while other types require evidence); Sanders v. United States Postal Serv., 801 F.2d 1328, 1332 (Fed. Cir. 1986) (employing presumption of nexus for egregious conduct, but recognizing other conduct does not give rise to
presumption); Hayes v. Department of the Navy, 727 F.2d 1535, 1539 (Fed. Cir. 1984) (articulating egregious conduct presumption).
286. See supra notes 98-104 and accompanying text (discussing application of nexus and
recidivism).
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Synthesis of these two perspectives results in a crime typology
that exhibits a spectrum-like distribution of crimes. Crimes where
nexus likely exists for most employment comprise one end of the
spectrum (without reference to any presumption); at the other end
are crimes rarely evidencing nexus. 2 7 Distinctions arise in the following manner:
homicides and other major crimes of violence versus lesser violent
crimes; 288 sex crimes, including crimes against children versus
non-sex related crimes; 28 9 fraud and other crimes involving deception and lack of good moral character versus other crimes
against property; 29 0major property crimes versus lesser property
crimes such as shoplifting of low valued items; 29 1 drug dealing
2 92
versus personal drug use.
This simple typology rests exclusively on probabilities. For most
jobs, a nexus relationship can likely be established at one end of the
criminal conviction scale, with little possibility of showing it at the
other end. The key qualification for this typology relates to reliance
on probability for most jobs. Exceptions occur where the job duties
simply lack the requisite nexus for even the most heinous crimes, or
conversely, where official integrity and public visibility are linked to
even minor crimes.
A major factor affecting nexus determinations is recidivism involving conspiratorial crimes. For example, crimes involving fraud
or property theft occasionally involve other parties, creating a conspiracy. Where the opportunities for recidivistic behavior involve
the potential for fraud or theft, distinctions may be usefully made on
the basis of the conspiratorial nature of the predicate crime. Thus,
where an employee's opportunity to commit a property crime in the
future requires assistance from another, the employee must enter a
conspiracy to affect his goal (e.g., a contractor "kickback" to an em287. See, e.g., Green v. Missouri Pacific R.R. Co., 523 F.2d 1290, 1298 (8th Cir. 1975)
(rejecting defendant's employment policy disqualifying every individual convicted of any of.
fense, except a minor traffic offense, as unnecessarily harsh and unjust).
288. See Brown v. Department of Treasury, 34 M.S.P.R. 132, 134 (1987) (stating that illegal taking of life provides nexus, especially in light of co-worker reactions).
289. See Graybill v. United States Postal Serv., 782 F.2d 1567, 1573-74 (Fed. Cir.) (finding
sufficient nexus between sexual misconduct with stepdaughter and job duties to warrant dismissal), cert. deniea 479 U.S. 963 (1986); but see Young v. Hampton, 568 F.2d 1253, 1266 (7th
Cir. 1977) (holding mere fact of marijuana possession insufficient to show nexus).
290. See Fleming v. Department of Agric., 24 M.S.P.R. 485, 487 (1984) (distinguishing
position involving control of government funds as one requiring honesty and credibility affected by conviction for concealing stolen property), aff'dmem., 785 F.2d 322 (Fed. Cir. 1985).
291. See Harrison v. United States Postal Serv., 26 M.S.P.R. 37, 40 (1985) (noting that
falsification to obtain unemployment benefits created obvious nexus with job as postal distribution clerk, but that other forms of deceit to gain property do not automatically do so).
292. Rhoads v. Department of Treasury, 12 M.S.P.R. 115, 117 (1982) (allowing firing for
use of marijuana and lying to IRS agents).
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
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ployee who steers contracts to the contractor). Hence, the prior
conspiratorial or non-conspiratorial nature of the conviction may
predict future recidivism and becomes properly relevant in determining nexus.
2.
Typology of related employment "interferences"
The types of potential on-job interferences from a criminal conviction include those directly relating to the work of the convicted
employee, co-workers, supervisors, and the agency's relationship
with the public.2 93 The types of associated duties range from fiscal
responsibilities, 29 4 to agency representation or service interaction
with the public, 2 95 and law enforcement, 296 and to access to specialized information.2 9 7 Interference relationships might occur as the
following:
* major crimes of violence affecting co-worker fears and employee relations with the public (possibly requiring demonstration of public notoriety of the conviction for this response to
occur);
* other sex crimes interfering with jobs involving unsupervised
contact with vulnerable co-w6rkers or the public;
* fraud and other crimes of deception with positions allowing unsupervised access to public funds, making of false claims or dishonest steering or control of public contracts (taking into
account the conspiratorial nature of the crime as related to certain types of job);
* property crimes with positions allowing the taking of government property or funds;
• regulatory crimes (such as failing to file tax returns) creating
supervisor distrust in jobs where confidence in integrity of government employees is vital to agency mission; ,
* fraud, other crimes of deception, and some regulatory crimes
where job position requires continued good judgment in exercising considerable discretion.
293. See supra notes 99-133 and accompanying text (illustrating various ways to show
nexus).
294. See Fike v. Department of Treasury, 10 M.S.P.R. 113, 116-17 (1982) (affirming removal of IRS manager on conviction for false pretenses in reporting stolen vehicle to insurance company).
295. See Wild v. Department of Housing and Urban Dev., 692 F.2d 1129, 1133-34 (7th
Cir. 1982) (finding that where misconduct related to position in agency and agency mission,
responsibilities in agency relate to nexus).
296. See supra notes 144-45 and accompanying text.
297. SeeJordan v. Department of the Air Force, 36 M.S.P.R. 409, 414 (1988) (stating that
lack of trust caused by misconduct effects supervisor ability to work with employee given confidential nature ofjob), aft'd, 844 F.2d 1398 (Fed. Cir. 1989).
908
3.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:869
Other nexs factors,
The second task in defining the scope of nexus determinations
requires identification of those additional relevant factors which
permit individualized decisionmaking. The explicit inclusion of the
possible danger to public safety as one basis for determining nexus
implies the need to consider evidence of the likelihood of recidivism
and its correlate, rehabilitation. 298 Evidence of rehabilitation may
be shown by the fact that no new criminal charges have been lodged
against the employee for a substantial period of time. There is no
bright line to determine as a function of time, when rehabilitation
has occurred. Recidivism may occur as late as ten or twenty years
after a prior conviction and release from incarceration. 29 9 Nonetheless, most recidivism occurs within three years after return to the
community.3 0 0 Hence, after this period of time, a rebuttable presumption of rehabilitation may be established.
Expert testimony may also be used to demonstrate the unlikelihood of recidivism. 3 0 1 Forensic psychiatrists or psychologists may
be one type of expert on recidivism generally. Through testing and
evaluation, they determine the offender's mental state. 30 2 Where
the criminal behavior is related to a medical or psychological handicapping condition, these experts become especially valuable.3 0 3 In
addition, vocational experts, including probation officers, may tes298. See Douglas v. Veterans' Admin., 5 M.S.P.R. 280, 305-06 (1981) (listing "potential
for the employee's rehabilitation" as factor in determining reasonableness of an agency-imposed penalty for misconduct). The Board noted that this and other factors used in penalty
reviews potentially pertained to establishing or rebutting nexus. lId at n.67. Cf. Turchin v.
United States Postal Serv., 39 M.S.P.R. 14, 16 (1988) (discussing possiblity of recidivism as
factor in determining reasonableness of termination for shoplifting conviction).
299. BUREAU OFJUSTICE STATISTICS, SPECIAL REPORT: EXAMINING RECIDIVISM, 1-2 (1985)
(using rearrest as measure of recidivism). There are no long term studies of recidivism
among probationers.
300. Id at 2 (607); see also Bureau ofJustice Statistics, Recidivism of Prisoners Released
in 1983, 2 (1989) (finding recidivists comprise 68% of property crime offenders, 59.6% of
violent crime offenders, 54.6% of public-order offenders, and 50.4% of drug offenders).
301. See generally J. SMITH, FORENSIC PSYCHIATRY: A PROGRAMMED STUDY GUIDE 143-52
(1983) [hereinafter SMrrH, FORENSIC PSYCHIATRY] (discussing psychiatric testimony on future
criminal dangerousness); 19 AM. JUR. PROOF OF FACTS GovernmentalEntity's Liabilityfor Injuries
Caused by Negligently Released Individual 583, §§ 7, 20, 27, 28-31 [hereinafter Negligent Release]
(describing how to prove and rebut negligent release claim with psychiatric testimony); 21
AM. JUR. PROOF OF FACTS Expert Testimony at Sentencing 645, §§ 33-39 [hereinafter Expert Testimony] (describing type of psychiatric testimony needed at sentencing hearing).
302. SMrrIH, FORENSIC PSYCHIATRY, supra note 301, at 203-13 (describing testing methods
in psychiatric evaluation).
303. SMrrIH, FORENSIC PSYCHIATRY, supra note 301, at 143-52 (stating value of psychiatric
testimony in determining and evaluating potential future behavior); 19 AM. JuR. PROOF OF
FACTS Negligent Release 583, §§ 28-31 (discussing use of psychiatric experts to evaluate potential of recidivism); 21 AM. JUR. PROOF OF FACTS Expert Testimony 645, §§ 38-39 (describing
value of experts to determine likelihood of recidivism and make sentencing recommendation).
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
909
tify about various aspects of nexus.3 0 4 For example, they may testify
about nexus relationships between the conviction and job duties.3 0 5
More specifically, testimony as to the likelihood of work-related recidivism stems from these expert's close relationship with offenders
30
in general, and a specific individual in particular.
6
C. Penalty Determinations
Once nexus has been found to exist between a conviction and the
employment position, an appropriate penalty must be determined.
The MSPB requirements established in Douglas v. Veterans Administration-307 set forth the factors to consider in setting a penalty.3 08 Some
of these elements repeat those of the nexus decision itself,3 0 9 while
others are entirely new.3 10 These elements fall into essentially three
categories: rehabilitation related factors; efficiency of service fac-
tors; and issues of consistency of punishment. Problems exist less
with the scope or content of these elements than in their enforce-
ment. The MSPB rulings do not require agencies to explicitly consider these factors in their penalty determinations, even when the
employee raises the issue. Thus, evidence of rehabilitation potential
need not be considered, 3 1 ' even in cases where the employee has
made an issue of rehabilitation. 3 12 These rulings also fail to note
the potential relevance of alternative remedies for determining the
"efficiency of the service."3 13 Subsequently, where an employee
can
304. See N. Miller, EmployerBarriersto the Employment of Persons with Records ofArrest or Conviction: A Review and Analysis (June 15, 1979) (consultant report to the Assistant Secretary for
Policy, Evaluation and Research, U.S. Department of Labor) at 53-56 and 69-73 [hereinafter
Miller, Employer Barriers] (discussing value of testimony by former employers, friends, judges,
and parole and probation personnel to convicts or arrestees seeking employment).
305. See i at 53-56, 70 (discussing types of testimony useful to employment-seeking convicts and arrestees).
306. See id at 53-56 and 69-71 (relating basis for credential testimony provided by former
employers, friends, judges and parole and probation personnel); Abraham v. S.E. Onorato
Garages, 50 Haw. 628,446 P.2d 821,825-26 (1968) (discussing use of rehabilitation evidence
in negligent hiring cases).
307. 5 M.S.P.R. 280 (1981).
308. Douglas v. Veterans' Admin., 5 M.S.P.R. 280, 305-06 (1981) (listing illustrative factors to be considered in penalty determinations).
309. Compare supra notes 272-306 and accompanying text (discussing key elements of
nexus determinations) with Douglas v. Veterans' Admin., 5 M.S.P.R. 280, 305-06 (1981) (setting out factors to be considered in penalty determinations).
310. Douglas v. Veterans' Admin., 5 M.S.P.R. 280, 305-06 (1981).
311. See Gleason v. Department of the Air Force, 38 M.S.P.R. 547, 550 (1988) (holding
that agency need not consider all mitigating factors in penalty determination); Cavanaugh v.
United States Postal Serv., 34 M.S.P.R. 670, 674 (1987) (finding that under certain circumstances, rehabilitation possibility not relevant factor).
312. See Social Security Admin. v. Davis, 19 M.S.P.R. 279, 283 (1984) (stating also that
evidence of rehabilitation does not negate removal decision).
313. See Thias v. Department of Air Force, 32 M.S.P.R. 46, 49 (1986) (holding that alternative penalty need not be considered).
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 39:869
prove the availability of transfer as an alternative penalty to dismissal, failure to consider this alternative should be considered
relevant.
The most serious failure of these rules relates to their application
at the agency level. In the absence of MSPB or OPM guidance,
agency managers lack adequate expertise to correctly determine appropriate penalties that are consistent with the needs of the service
and the concomitant rights of employees in accordance with other
rulings in like cases. This situation implies that removal decisions
will occur almost automatically at the agency level, because such a
penalty represents the "safe" management response. A lesser penalty potentially subjects the manager to criticism for weakness, favoritism or inconsistency, and second guessing. The documented
bias against convicted employees3 14 which the Act strives to control
at the nexus level3 1 5 remains uncontrolled at the penalty determina3 16
tion point.
The theoretical obligation of the agency to ensure consistency of
treatment stated in Douglas317 illustrates the lack of checks upon
management discretion in penalty selection. In fact, penalty information remains unavailable in most agencies. Department personnel offices do not collect information about disciplinary actions in
regional offices. Indeed, in some agencies even the headquarter's
office fails to collect and record information about disciplinary matters. Hence, it becomes impossible to determine agency precedent.
Given Douglas' affirmative obligation upon the agency to ensure that
the penalty is not inconsistent with prior proceedings, the problem
of data availability may warrant reversal of the burden. At a minimum, a procedural requirement should be established requiring the
agency to prove that it examined the penalties imposed in prior decisions. The Federal Circuit's approach of prohibiting only intentional disparities renders meaningless the disparity prohibition,
because it compounds the difficulty of proving disparity by adding
the second evidentiary requirement of intention. This creates a virtually insurmountable burden.3 1 8 Use of an objective rather than
314. See generally N. Miller, Employer Barniers, supra note 304 (reviewing and summarizing
extensive research on all aspects of employer discrimination against ex-offenders).
315. See supra notes 221-41 and accompanying text (discussing Act's intent and nexus).
316. See supra notes 191-95 and accompanying text (discussing problems in penalty
determination).
317. Douglas v. Veterans' Administration, 5 M.S.P.R. 280, 305-06 (1981).
318. Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988) (stating
that established precedent holds that employee has no protected right to misconduct penalty
equal to another except upon showing of intentional disparity).
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
911
subjective standard of intent would, however, mitigate the intent
requirement.
Solutions to the problem of managerial unfamiliarity with nexus
penalty decisionmaking are not hard to find. Agencies should reqiire managers to use a Douglas factors checklist.3 19 Supplementing
this approach with a requirement that the relevance of each factor
be briefly described in writing would ensure reasoned review by
either the MSPB or the courts.
D.
Summary Assessment and Recommendations
The nexus doctrine adopted by the Civil Service Reform Act remains more aspirational than real. The simple mandate of the Act,
job-related employee misconduct as a requisite before dismissal, has
320
been badly distorted by courts and administrative interpretation.
This distortion results from two major elements: the corruption of
the presumption doctrine,3 2 1 and the emergence of its twin offspring, interference with agency mission and loss of supervisor
trust.3 22 As discussed earlier, both doctrines are subject to the
nexus evidentiary requirement, rather than allowing conclusory allegations to substitute for evidence.3 23 The only appropriate use of
the presumption doctrine stems from the notoriety (or its likelihood) of the conviction; an evidentiary requirement directly opposed to a facile presumption based upon the conviction itself.
Further, claims of supervisor loss of trust should be limited to instances of a reasonable, demonstrable fear of recidivism, not only by
itself but particularly when associated with job opportunities. Generalized fear not based on established nexus, conflicts with the Act's
319. See Jordan v. Department of the Air Force, 36 M.S.P.R. 409, 415-16 (1988) (stating
because agency explicitly utilized Douglas factors, review of penalty determination was conscientious), aft'd, 884 F.2d 1398 (Fed. Cir. 1989).
320. See, e.g., Abrams v. Department of the Navy, 714 F.2d 1219, 1223-24 (3d Cir. 1983)
(holding that conviction created "strong and secure" presumption of nexus and that to rebut
such presumption, employee must prove lack of adverse affect on both ability to perform job
and ability of co-workers to perform their jobs); Merritt v. Department ofJustice, 6 M.S.P.R.
589, 606 (1981) (adopting presumption doctrine for egregious behavior and holding that it
may only be overcome by showing absence of adverse impact on efficiency of service); Gueory
v. Hampton, 510 F.2d 1222, 1226 (D.C. Cir. 1974) (establishing "strong and secure" presumption that off-duty criminal conduct adversely affects efficiency of service); Kissner v.
OPM, 792 F.2d 133, 134 (Fed. Cir. 1986) (holding that falsified application leads to presumption of nexus).
321. See supra notes 33-72 and accompanying text (pointing out emergence of presumption doctrine).
322. See supra notes 122-39 and accompanying text (discussing loss of supervisor trust).
323. See supra notes 283-92 and accompanying text (discussing problems with presumption doctrine).
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requirements. 24 , Thus, the nexus requirement necessitates that
managers explain their reasons for loss of trust; simple allegations
should not suffice to show nexus.
Similar problems exist with respect to the determination of an
appropriate penalty. The MSPB's Douglas decision requirements
rarely receive detailed treatment.3 25 The infrequency of MSPB decisions that specifically discuss rehabilitation as a mitigating factor are
as much the fault of litigants as the MSPB. In either case, increased
attention needs to be paid to the relevance of rehabilitation evidence, as well as to other Douglas factors, especially those requiring
consideration of alternate penalties and prohibition of disparate
3 26
sentences.
To counteract the bias against ex-offenders in the federal service
requires more than mere explication of the nexus requirement. The
Act was directed at reducing the bias against ex-offenders which
generally resulted in managers threatening employees with removal,
even in cases of clear absence of nexus. 32 7 The prospect of several
agency level hearings and MSPB proceedings is daunting to many
employees. Justice delayed often results in justice denied for these
employees, regardless of the ultimate outcome. Hence, there must
be concern about the application of the nexus doctrine at the agency
level to prevent unnecessary litigation and emotionally bankrupting
efforts by managers to discharge faithful workers. Managers need
guidance in how to assess the relevance of criminal convictions to
the efficiency of the service to avert both unfairness to employees
and reversal of warranted dismissals. At present, agency personnel
offices seem to consider themselves service offices, existing solely to
help managers implement decisions. Expanding the role of personnel offices to guide managers in reaching nexus decisions may result
in more equitable decisions relying on appropriate considerations.
These clarifications in the legal doctrines controlling nexus determinations between convictions and job duties of federal employees
324. 5 U.S.C. § 2302(b)(10) (1988); see supra notes 278-82 and accompanying text (discussing Act's intent for nexus).
325. See, e.g., Cavanaugh v. United States Postal Serv., 34 M.S.P.R. 670, 674 (1987) (holding that explicit consideration of Douglas factors not required); Gleason v. Department of the
Air Force, 38 M.S.P.R. 547, 550 (1988) (failing to require analysis of Douglas factors when not
raised by employee); Social Security Admin. v. Davis, 19 M.S.P.R. 279, 282-83 (holding that
agency need not consider every relevant Douglas factor), aff'd sub nom., Davis v. Department of
Health and Human Serv., 758 F.2d 661 (Fed. Cir. 1984).
326. See supra notes 307-13 and accompanying text (discussing Douglas factors in penalty
determinations).
327. See 5 U.S.C. § 2302(b)(10) (1988) (prohibiting discrimination against employees
where conduct does not affect efficiency of service). The implementing regulations also prohibit such actions. 5 C.F.R. § 731.202 (1989).
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FEDERAL EMPLOYMENT DISCIPLINARY ACTION
913
could affect a return to the ideals the Civil Service Reform Act
sought to establish.3 28 Indeed, the efforts of many MSPB commissioners and some federal judges have had so little impact on the
basic nexus doctrine that comparatively minor changes can restore
the appropriate balance between the needs of management and employee's rights to the job.
Finally, this examination of MSPB and court decisions relating to
the relevancy of criminal convictions in agency disciplinary proceedings has also encompassed the legal doctrines in civil service law for
penalty determinations3 2 9 and discrimination against handicapped
employees. 330 The incongruent thinking that characterizes the rulings on criminal conviction nexus seemingly prevails within these
other doctrines,3 3 ' and presumably in yet other areas of civil service
law. Thus, the absence of reasoned opinions applying the clear
principles of the prohibited personnel practices requirements relating to off-duty misconduct is but one aspect of a general disregard
for employee rights under the Civil Service Reform Act. The broad
policy implication of this conclusion is the true implementation of
the "efficiency of the service" standard cannot occur while the
MSPB and the courts permit managerial discretion (often bias) to
act unchecked in applying magic formulas such as lost trust and confidence. In the same vein, OPM, MSPB, and the courts fail to require maintenance of adequate recordkeeping of agency disciplinary
actions. Were Congress to demand accountability of the agencies in
their use of the disciplinary process, lack of records makes such accountability impossible. Thus, whatever the propriety of Congress'
actions in prohibiting arbitrary dismissal of former offenders from
government service, the failure to enforce this prohibition is symptomatic of a far broader failure by the MSPB and the courts to protect federal employees under other provisions of the Civil Service
Reform Act of 1978.
328.
H.R. CONF. REP. No. 1717, 95th Cong., 2d Sess. 131, repinted in 1978 U.S. CODE
CONG. & ADMIN. NEws 2860, 2864.
329.
review).
See supra notes 164-95 and accompanying text (illustrating penalty determination
330. See supra notes 148-63 and accompanying text (discussing handicapped persons
exception).
331. See supra notes 307-19 and accompanying text (illustrating problems in penalty determinations and handicapped persons procedures).
7