Car Regs Not a One-Way Street

n January 1987, an Interior Department employee was driving in a government-owned vehicle (GOV) when he spied the loan officer from his bank. He offered her a ride to a lawyer's office several blocks off his direct route. Two Interior Department employees saw their colleague giving the loan officer a ride and reported him. The employee was suspended without pay for 30 days.

No other type of administrative misconduct carries a penalty as severe as does the willful misuse of a government vehicle, vessel or aircraft. Title 31 of the U.S. Code, section 1349(b), states that an employee who willfully misuses or authorizes the misuse of a government vehicle shall be suspended for at least one month, and could even be fired.

The statute's wording is deceptively simple. The confusion comes in deciding when the rule applies and whether the 30-day suspension can be avoided. Federal managers need to understand what constitutes GOV misuse, both to avoid it and to ensure none of their employees ends up on a lengthy, unpaid vacation.

Some agencies are strict in setting rules for use of GOVs and dealing with misuse, while others are relatively blase. Some inspectors general follow employees around hoping to catch them violating the rules, while others wouldn't stoop to getting involved in such "minor" administrative misconduct.

Personal Use

Sometimes, bad results are a foregone conclusion. After a General Services Administration police officer took a GOV to get beer for the boss, the Federal Circuit Court of Appeals ruled the appropriate uses of government vehicles "do not include frolics and detours-even at the behest of a supervisor-in order to procure alcoholic beverages for on-duty consumption."

Most appeals of employee misconduct cases, such as GOV misuse, wind up at the Merit Systems Protection Board, whose judges' rulings can, in turn, be appealed to the Federal Circuit Court of Appeals.

At the other end of the spectrum is the doctrine of "minor" personal use when the primary use is for government business. For example, a Customs inspector at a border station drove a short distance in a GOV with his girlfriend in order to scold a guard. The guard had told the girlfriend she had to submit to a Customs examination when she entered the United States to bring her boyfriend some food. The Merit Systems Protection Board ruled the personal use was minor and the vehicle was used primarily to further agency business. The inspector "merely allowed [his girlfriend] to ride with him in the government vehicle for the short trip from his duty station to [the guard's] post in order to inquire regarding the proper entry point. . . his inquiry did involve a matter of official concern with respect to proper entry procedures," the board found.

In the same vein, the board reversed the suspension of an IRS employee who had been authorized to use a GOV while on temporary duty.En route from the restaurant where she had eaten dinner to the motel where she was staying, the employee stopped at a disco. The board stated that what constitutes an "official purpose" is not always clear and that a deviation is "simply one of the circumstances to be considered in determining the overall nature of the trip."

Following Orders

Disobeying a supervisor's order about a GOV may well be insubordination, but it isn't necessarily vehicle misuse. For example, a supervisor told an Army employee to park his government car at a GSA lot, but the employee instead drove it to his house to drop off and pick up some work-related equipment. He then headed for a service station, where he intended to put the car for the weekend, and had an accident. The board saw no vehicle misuse, stating that "although the driving of the vehicle to appellant's residence might have involved some minor personal use, it was primarily for the furtherance of the agency's business."

However, employees should not be misled into believing they can park a GOV at home with impunity. In one case, a Defense Investigative Service employee parked his government car at home for two months while his request for domicile parking was pending. In another case, an Immigration and Naturalization Service employee kept his GOV at his residence overnight, even after his supervisor ordered him to return it to a government garage. Both employees received 30-day suspensions, which the MSPB upheld, saying that even if the supervisors' refusals to allow at-home parking were arbitrary and capricious, the employees should have obeyed the orders and then filed grievances.

Willful Misuse

The case of a supervisor at the Equal Employment Opportunity Commission gets to the heart of the willful misuse issue. The office's only typist told the supervisor that her personal car had broken down on the expressway at a time when the caseload was especially heavy. The boss authorized the typist to take a government vehicle back to the breakdown site to secure her own car. The EEOC suspended the supervisor for 30 days. The appeals court reversed the suspension, because even though the supervisor "knew and intended" to do what she did, "there is no evidence that she actually knew that the use would be characterized [by the agency] as 'nonofficial'. . . [the supervisor] acted in good faith in attempting to solve an office emergency." In short, she did not act "with knowledge of or reckless disregard for whether the intended use was for other than official purposes."

On the other hand, the MSPB upheld the 45-day suspension of an Army employee for entering a restricted area of Fort Eustis, Va., in his GOV and using it to kill an injured deer. The employee "voluntarily and consciously" drove into the restricted area without permission and likewise lacked the approval to drive over the deer. The board was not impressed by the employee's profession of humanitarian motives, noting that he could have phoned the post's game warden.

An Air Force officers club manager also failed to get his suspension overturned. He used a government truck to commute, five to seven times in two weeks, while his personal car was being repaired. It was not a one-time emergency like the EEOC typist's breakdown, or even a case where the government could derive some benefit.

Drunken Driving

Being under the influence of alcohol excuses or mitigates certain criminal offenses in many states, but the MSPB regards it as an aggravating factor, especially if someone is killed or injured in an ensuing accident. An Army employee who worked as a caretaker at a national cemetery left the grounds without permission in a government truck to pick up his daughter. En route he struck a light pole, narrowly missing some pedestrians. The board upheld the employee's removal and rejected his claim of handicap discrimination because of his alcohol abuse. The board said the employee had not established a causal connection between his handicapping condition and the charged misconduct.

Even an employee who can establish that his or her free will was so overborne by alcohol or drugs that he didn't know what he was doing, still may not prevail. A Bureau of Alcohol, Tobacco and Firearms employee driving home from a bar in a government car went the wrong way on an interstate highway and struck a car head on. A 2-year-old in the other car was killed. Affirming the employee's firing, the board noted that even though alcoholism is a handicapping condition, the employee was not a "qualified handicapped individual" because his conduct was "so egregious and notorious" that it "struck at the very core of the agency's mission."

Rental Cars

It is a long-held belief that an employee who misuses a rental car can be punished under the willful misuse statute. Not so, says the appeals court. An Interior Department employee on temporary duty rented a car on his government credit card at the government rate and drove 300 miles on personal business. In reversing his suspension, the court ruled that the contract was between the employee and the rental company, that regulations governing government leases were not complied with, and that the government had assumed no liability to pay the charges. In short, the car was not "owned or leased by the government," and the willful misuse statute doesn't apply.

Exercising Mercy

Must an agency exact the harsh penalty of 30 days (or more) when a decent and productive employee suffers a one-time lapse of judgment? Yes and no. If the agency charges the employee with willful vehicle misuse, neither it nor an administrative judge nor arbitrator can mitigate the 30-day suspension. On the other hand, the agency can cite a different violation that doesn't mandate such a harsh penalty. For example, agency provisions covering general misuse of property-everything from telephones to copying machines-carry lighter penalties ranging from a letter of reprimand to a five- or 10-day suspension. Although technically an agency is supposed to apply the charge that most closely fits the offense, it is a rare employee who complains about a three-day suspension when he could have gotten 30.

Clear as Mud

Any hope of a clear understanding of willful misuse disappeared last year when the court decided the case of a Bureau of Alcohol Tobacco and Firearms special agent who transported his 3-year-old son "on a few occasions" to and from a daycare facility while his wife was confined to bed during pregnancy.

An administrative judge reversed the agent's 30-day suspension, noting that the job required him to be on call round the clock, the car had specialized equipment necessary to remain in contact with the office, and the employee worked a lot of overtime. The special agent testified that he deviated 2.6 miles each way to take his son to day care, but if he had used his own car, returned home and picked up his GOV, he would have had a 21.2-mile, 40-minute round trip. The judge said the employee was making the most efficient use of his and the agency's time during his wife's medical emergency, adding that he is a "highly decorated ATF agent with more than 10 years of service, a flawless record and an excellent reputation," and "would be unlikely to violate a rule knowingly" or "lie about his motives."

"Even if [the employee] could have first secured permission to transport his son, his failure to do so given the circumstances does not amount to 'reckless disregard' for the regulations," the court found.

The court found further that the BATF staffer "was authorized to commute to work in his GOV, which contained specialized equipment necessary to remain in contact with the agency."

The agent's adventure stretches credibility to its furthest extent, and most employees lacking his wings and halo, probably would not fare so well. Nonetheless, "willful misuse" is difficult to define and must be judged on a case-by-case basis. Agencies should not assume that every deviation or apparent violation is actionable misconduct. The charge, with its 30-day minimum suspension and possible removal, is a serious one and should not be made before careful deliberation by management, agency counsel, and labor and employee relations staff. Somewhere between the EEOC's well-intentioned supervisor and the Army's deer slayer is the line.