U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Number 139                    February 2001

Brown v. Department of Navy, No. 00-3003 (Fed. Cir. Oct. 20, 2000)

The Federal Circuit finds nexus sufficient to support removal where an employee responsible for base morale engages in an extra-marital off-duty affair with the wife of a deployed serviceman.

The appellant, an area program manager for the Morale, Welfare, and Recreation Department (MWR), was removed from his civilian position for improper personal conduct. The appellant had engaged in a extra-martial affair with the wife of a Marine officer assigned to one of the units the appellant was charged with supporting while the officer was deployed overseas. An MSPB AJ affirmed the removal, holding that the employee's misconduct was antithetical to the mission of the employee's organization and had adversely affected the Marine Corps' trust and confidence in the employee's job performance. The full Board upheld the initial decision, although the Vice-Chair dissented, stating that the agency had failed to show there was a nexus between the misconduct and the efficiency of the service.

On appeal to the Federal Circuit, the appellant argued his job involved only planning and facilitating entertainment for the Marine units and their families assigned to his area, not "assisting Marines and their families on personal or family-related problems," making his misconduct irrelevant to his task of providing entertainment and recreation. The court rejected this argument, relying on the mission statement of the employee's organization and testimony of several program managers to conclude that the employee's position involved direct support of military families and entailed substantial and regular contact with Marine spouses. The employee also argued that he knew the woman with whom he had the affair prior to being assigned to his current position, thus contending that he did not use his position to enter into the affair. The court also rejected this argument, stating that while the case for nexus would be stronger if the employee had used his position to obtain access to the Marine wife, the fact that the relationship did not develop as result of his official duties does not affect the agency's loss of confidence and trust in him nor the inconsistency between his conduct and the agency mission. The court also rejected the employee's argument that there was no evidence that his job performance was affected by his off-duty misconduct. To this argument, the court stated that management was concerned not about a deterioration in the employee's actual performance, but about a loss of confidence in the employee's unit and in the employee himself due to his patron's knowledge of the affair.

The court noted that this case is a difficult one because the misconduct was private in nature and did not affect the employee's official responsibilities in any direct and obvious way. It went on to note that the employee's position was in an organization responsible for providing support for Marine families, including those deployed overseas, and the trust and confidence of Marine families served by that organization was essential to both the success of that organization and the employee's performance within that unit. The particular context in which this case arose created an untenable situation in which distrust prevailed and the mission of the agency was severely impaired. It found that substantial evidence supported a finding of nexus between the misconduct and both the mission of the agency in general and the employee's job responsibilities in particular. The appellant's removal was upheld.

Whenever the basis for an agency action is off-duty conduct, the agency must clearly establish the nexus between that conduct and the mission of the agency. The court in this case cited several cases where off-duty misconduct, which was found to be inconsistent with the mission of the employing agency, justified an employee's removal. See Allred v. Department of Health and Human Services, 786 F.2d 1128 (Fed. Cir. 1986) (upholding the removal of a HHS accountant, convicted of child molestation, from his position of administering health and social services programs for the disadvantaged, including children) and Giles v. United States, 553 F.2d 647 (Ct. Cl. 1997) (upholding the removal of an IRS revenue officer for failure to timely file their state and federal income tax returns). That the nexus requirement is particularly strict in cases involving non-work related misconduct is discussed in the detailed dissenting opinion to this decision. In the lengthy dissent, the judge argued that (1) there was no evidence that the employee's contact with the spouse was in any way facilitated by or related to the mission of the employee's organization or his performance of his duties, (2) management's loss of trust and confidence must be directly related to the employee's job performance which was shown to have been excellent over the previous rating period, (3) there was an absence of testimony from actual patrons of the functions which the employee planned and organized, and (4) there was no evidence showing any connection between the employee's misconduct and his job performance.

This decision, including the dissenting opinion, is an excellent guide to the issues involved and the burdens an agency must meet in taking action based on off-duty misconduct. The court characterized this case as somewhat unique because of the nature of the employee's misconduct and both his position and the mission of the agency, but the reality is that most cases involving off-duty, non-criminal misconduct turn on a very careful analysis of the relationship between those issues.