Sammie D. Felton v. Equal Employment Opportunity Commission , 820 F.2d 391 ( 1987 )

BISSELL, Circuit Judge.

Sammie D. Felton (Felton) appeals from the final decision of the Merit Systems Protection Board (Board), Docket No. SL07528610052, 31 M.S.P.R. 481, sustaining her suspension for 30 days from a position with the Equal Employment Opportunity Commission (agency) on the basis that she had authorized a clerical employee to use a government-owned car for nonofficial purposes in violation of 31 U.S.C. § 1349(b) (1982). We reverse.

BACKGROUND

The undisputed facts concerning an incident on June 12, 1984, which gave rise to the adverse action at issue, are:

[0]n that morning, Ms. Mitchell, a Clerk-Typist in the Louisville Area Office in June, 1984, was on her way to work in her personal vehicle when it broke down on the expressway. She was picked up by an acquaintance and dropped off at her office____ [She] called a car dealership to have her car towed to be repaired. She then telephoned her supervisor, Ms. Felton, who was the Acting Area Office Director at that particular time. This occurred between 7:00 and 7:30 a.m., pri- or to the 8:00 a.m. regular starting time for the office.

Ms. Mitchell asked Ms. Felton if she could utilize the government vehicle used by the Louisville Area Office in order to go back to her vehicle on the expressway and secure it. Ms. Felton ... initially ... misunderstood Ms. Mitchell, and thought Ms. Mitchell wanted to take the government car to her home. She ... advised Ms. Mitchell that it was improper to do so. At that point, Ms. Mitchell explained she was not going to her home, but just going to secure her personal vehicle which had broken down on the expressway____ [Although [Felton] normally considered such a request inappropriate, she believed that in order to make it more convenient for the office to have its only typist available to work, it would be to the government’s benefit to allow Ms. Mitchell to utilize the government vehicle. Hence, Ms. Felton admitted she authorized Ms. Mitchell to utilize the car. Ms. Mitchell ... took the government car and started toward the expressway when it also broke down. At that point, she called for assistance to get the government car towed and she also was picked up by an acquaintance who took her to her personal vehicle on the expressway.

Initial Decision at 2-3.

As a result of this incident, the agency charged Felton with “willful authorization of the use of a government vehicle for other than official purposes in violation of agency regulations, General Services Administration (GSA) regulations, and 31 U.S.C. § 638(c)(2),” ^* id. at 3-4, and imposed on Felton the minimum 30-day suspension required by law.

At the hearing before the presiding official, Felton testified as to the reasons she believed that the emergency resulting from Mitchell’s car problem necessitated authorization for Mitchell’s use of the government vehicle: (1) Mitchell was the only typist in the office, (2) the caseload at that time was very heavy due to a large backlog, (3) it would be better for the office if Mitchell secured her personal vehicle as quickly as possible and returned to the office to do her work, and (4) thus, if Mitchell was going to be out of the office anyway to take care of her vehicle, she should be assisted so as to get it accomplished as expeditiously as possible; all of which showed that she (Felton) thoroughly considered the matter and did not evidence a reckless disregard as to whether the use of the government vehicle was for other than official purposes.

Based upon the foregoing, the presiding official found that: (1) Felton was aware of the impropriety of the use of a government vehicle for other than official purposes, id. at 8, (2) there was no doubt that Felton understood that Mitchell would use the government vehicle to drive to her personal vehicle on the expressway in order to secure it so that it could be towed for repair, and (3) this use was not for an official purpose. Thus, Felton was found to have knowingly, consciously, and willfully authorized Mitchell to use a government vehicle for other than an official purpose.

In sustaining the agency’s action suspending Felton for 30 days, the presiding official found that the agency supported its charge against Felton by a preponderance of the evidence and that the penalty imposed was the minimum penalty that could be imposed within the tolerable limits of reasonableness.

This appeal followed the full Board’s denial of Felton’s petition for review of the presiding official’s decision.

OPINION

Section 1349(b) of Title 31, United States Code, provides in pertinent part:

An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle ... owned ... by the United States Government (except for an official purpose authorized by section 1344 ■ of this title) ... shall be suspended without pay by the head of the agency.

Felton contends that (1) it was impossible for the presiding official to find that she violated the statute because she “believed” her authorization was proper, right, or justified, and (2) her authorization was for an “official” purpose since it provided an arguable “benefit” to the government. The agency contends that these arguments are without foundation as the inquiry is not whether Felton intended to violate the statute but instead whether she intended to do the act that violated the law.

The Board has consistently interpreted the term “willfully” in section 1349(b) to mean that a supervisor must “voluntarily and consciously” authorize an employee to use a government-owned vehicle with knowledge of or reckless disregard for whether the employee’s intended use was for other than official purposes. See Cottman v. Department of Labor, 23 M.S.P.R. 688, 690 (1984); Doolin v. Department of Justice, 21 M.S.P.R. 563, 566 (1984); Woody v. General Serv. Admin. 6 MSPB 410, 6 M.S.P.R. 486, 489 (1981); see also Davis v. General Serv. Admin. 5 MSPB 53, 4 M.S.P.R. 525, 526 (1981). Although we hold that this is an acceptable way to articulate a definition of “willful,” see Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128, 105 S.Ct. 613, 625, 83 L.Ed.2d 523 (1985), the presiding official misapplied this standard.

Had the word “willful” been omitted from the statute, the statute would apply to any authorization for any nonofficial purpose. It would have made all unwitting, inadvertent and unintended authorizations for nonofficial use a violation of the statute. See Morissette v. United States, 342 U.S. 246, 270, 72 S.Ct. 240, 253, 96 L.Ed. 288 (1952). Such is not the case here. That Felton’s authorization was a conscious and intentional act was admitted, but a knowing authorization of an unofficial use requires more than mere intent to do the act which lays the foundation for the charge. The requirement of knowledge applies to the unofficial nature of the use as well as to the authorization. She knew and intended to authorize the use, but there is no evidence that she actually knew that the use would be characterized as “nonofficial.”

Nor can it be said that Felton’s authorization was in reckless disregard of whether the use was for other than official purposes. EEOC Order No. 348, at 3 (May 28, 1979) states the agency’s policy on the use of motor vehicles. In discussing official use the Order states: “What constitutes official purposes is a matter of administrative discretion to be exercised within applicable laws. The general rule may be stated that where transportation is essential to the successful operation of an authorized agency ... such transportation will be considered as official use.” Viewing official use as a matter of administrative discretion, we think it clear that an administrator in Felton’s position could reasonably have determined that the use authorized in this case would promote the successful operation of the agency.

Felton’s testimony makes clear that she acted in good faith in attempting to solve an office emergency. Poor management judgment in selecting an alternative to solve an office emergency does not rise to the level of “reckless disregard.” The presiding official appears to have confused the two when he stated: “[H]er excuse that it would promote the efficiency of the service to expedite appellant Mitchell's return to work by allowing her to use the government vehicle, although superficially appealing, is unpersuasive, as there were management alternatives other than authorization of an inappropriate use.” Initial Decision at 8-9. The management alternatives, which the presiding official in his judgment would have utilized to deal with the office emergency, appear to be somewhat less effective in getting the emergency solved, i.e., assuring the presence of the typist in the office. The presiding official stated:

Mitchell was at the office when she telephoned appellant Felton. If appellant Felton was concerned with getting the work accomplished, she could merely have advised ... Mitchell that she could not utilize the government vehicle and that the workload necessitated that ... Mitchell not be allowed to have any leave to secure her personal vehicle. Although appellant Mitchell may have had from 30 minutes to an hour of her own time prior to the 8:00 a.m. office starting time ... Felton could have merely advised ... Mitchell to return to the office no later than 8:00 a.m., or face a possible charge of absence without leave or other discipline.

Initial Decision at 7.

Felton may not have chosen, in the eyes of the presiding official, the best of the management choices available to her, but there is no evidence that Felton acted in “reckless disregard” of whether Mitchell’s intended use was for other than official purposes.

Felton does not dispute that she was aware of the impropriety of authorizing use of a government vehicle for other than official purposes. However, there is no finding, and no evidence to support a finding, that Felton knew or should have known that the use of the vehicle in the circumstance of this case would be held to constitute use for a nonofficial purpose or that she acted in reckless disregard of whether the use was or was not for an official purpose. Without any such evidence, the finding that Felton knowingly, consciously, and willfully authorized Mitchell to use a government vehicle for other than an official purpose is not supported by substantial evidence.

REVERSED.

* Amended by Pub.L. 97-258, 96 Stat. 924 (September 13, 1982) and codified at 31 U.S.C. §§ 1344 and 1349(b) (1982).