                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LEOVETTA TAYLOR,                                DOCKET NUMBER
                 Appellant,                          AT-0752-12-0253-B-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: February 23, 2015
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Joyce E. Kitchens, Esquire, Athens, Georgia, for the appellant.

           Marlon A. Martinez, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                           Susan Tsui Grundmann, Chairman
                           Anne M. Wagner, Vice Chairman
                              Mark A. Robbins, Member
                   Member Robbins issues a separate, dissenting opinion.

                                       FINAL ORDER
¶1       The agency has filed a petition for review of the initial decision, which
     reversed the appellant’s removal. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the
     initial decision is based on an erroneous interpretation of statute or regulation or


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                      2

     the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.            5 C.F.R.
     § 1201.113(b).

                                     BACKGROUND
¶2        Effective January 4, 2012, the appellant was removed from her position as a
     Photographer with the Federal Bureau of Investigation (FBI) based on a finding
     that she had operated her privately-owned vehicle while intoxicated or impaired
     by alcohol or a controlled substance, in violation of the FBI offense code. MSPB
     Docket No. AT-0752-12-0253-I-1, Initial Appeal File (I-1 IAF), Tab 14,
     subtab 4(b). Specifically, on December 12, 2010, the appellant was stopped by an
     Austell, Georgia police officer after she backed her vehicle into a concrete post
     outside of a convenience store. Id. at 1. In response to the officer’s questioning,
     the appellant indicated that she had taken an overdose of trazodone, a medication
     for the treatment of depression and insomnia.       Id. at 1-2.   As a result, the
     appellant was transported to the hospital by ambulance, where a blood test was
     administered through which it was determined that she had been drinking alcohol.
     Id. at 2. In fact, the appellant had a blood alcohol level of .316%, over three
     times the legal limit in the state of Georgia. Id. The appellant was arrested and
                                                                                        3

     charged with driving under the influence (DUI), but was ultimately convicted of
     Reckless Driving, Striking a Fixed Object, and a Basic Rule Violation. Id.
¶3        On January 23, 2012, the appellant filed an appeal of her removal, which
     was subsequently dismissed without prejudice. I-1 IAF, Tab 24, Initial Decision
     at 1-2. On May 17, 2012, the appeal was refiled. MSPB Docket No. AT-0752-
     12-0253-I-2, Initial Appeal File (I-2 IAF), Tab 1. After holding the appellant’s
     requested hearing, the administrative judge reversed the appellant’s removal,
     finding that the agency had violated the appellant’s due process rights when the
     deciding official considered information not set forth in the notice of proposed
     removal.   I-2 IAF, Tab 34, Initial Decision at 3-6.      Subsequently, the Board
     reversed the initial decision and remanded the case for a hearing on the merits.
     Taylor v. Department of Justice, MSPB Docket No. AT-0752-12-0253-I-2,
     Remand Order (Feb. 10, 2014).
¶4        On remand, after holding a hearing, the administrative judge issued an
     initial decision, again reversing the removal action. MSPB Docket No. AT-0752-
     12-0253-B-1, Initial Appeal File (B-1 IAF), Tab 16, Initial Decision (ID). The
     administrative judge found that, although the agency had sustained the DUI
     charge, it failed to establish a nexus between the appellant’s off-duty misconduct
     and the efficiency of the service. ID at 3-5. Regarding nexus, the administrative
     judge found that the appellant’s misconduct was: (1) not so egregious as to create
     a rebuttable presumption of nexus; (2) did not adversely affect her or her
     coworkers’ job performance, or the agency’s trust and confidence in her job
     performance; and (3) did not adversely affect the agency’s mission because the
     FBI’s mission does not include the enforcement of drunk driving laws and the
     appellant was not a law enforcement officer. ID at 4-5. The administrative judge
     ordered the agency to cancel the removal, retroactively restore the appellant with
     back pay, and provide her interim relief, if either party filed a petition for review
                                                                                            4

     of the initial decision. 2 ID at 9-10. The administrative judge further found that
     the appellant failed to establish her affirmative defense of discrimination based
     on disability, race, and sex. ID at 6-8.
¶5         The agency filed a petition for review in which it argues that the
     administrative judge erred in finding that it failed to establish nexus because the
     appellant’s conduct was so egregious that nexus should have been presumed, the
     administrative judge failed to consider that management indicated that it had a
     low level of confidence in the appellant’s ability to perform her assigned duties,
     and the appellant’s misconduct in violating the law was contrary to the FBI’s
     mission as a law enforcement agency.          B-1 PFR File, Tab 1 at 8-11.          The
     appellant filed a response in opposition to the agency’s petition, but did not file a
     cross petition for review challenging the administrative judge’s findings that she
     failed to prove her affirmative defense claims. B-1 PFR File, Tab 4.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         The Board generally recognizes three independent means by which an
     agency may show a nexus linking an employee’s off-duty 3 misconduct with the
     efficiency of the service: (1) a rebuttable presumption of nexus that may arise in
     certain egregious circumstances based on the nature and gravity of the

     2
       The appellant retired, effective March 8, 2013, prior to the issuance of the
     administrative judge’s initial decision. MSPB Docket No. AT-0752-12-0253-B-1,
     Petition for Review (B-1 PFR) File, Tab 1 at 17, 19. With its petition for review, the
     agency submitted an affidavit from the Acting Un it Chief of the Payroll/Personnel
     Actions Processing Unit, asserting that it would be an administrative burden to comply
     with the interim relief order and restore the appellant to a paid status because it would
     be difficu lt to ensure that she did not improperly receive retirement benefits from the
     Office of Personnel Management in addition to a salary from the agency. I d. at 17. The
     appellant has not raised any issues of noncompliance with the interim relief order.
     However, given our disposition of this appeal in favor of the appellant, the issue of the
     agency’s compliance with the interim relief order is now moot. See Wingate v. U.S.
     Postal Service, 118 M.S.P.R. 566, ¶ 3 n.1 (2012).
     3
       There is sufficient nexus between an employee’s conduct and the efficiency of the
     service where the conduct occurred in part at work. Parker v. U.S. Postal Service,
     819 F.2d 1113, 1116 (Fed. Cir. 1987).
                                                                                              5

     misconduct; (2) a showing by preponderant evidence that the misconduct affects
     the employee’s or her coworkers’ job performance, or management’s trust and
     confidence in the employee’s job performance; and (3) a showing by
     preponderant evidence that the misconduct interfered with or adversely affected
     the agency’s mission. 4     Kruger v. Department of Justice, 32 M.S.P.R. 71, 74
     (1987). Where an employee’s conduct is contrary to the agency’s mission, the
     agency need not present proof of a direct effect on the employee’s job
     performance. Brown v. Department of the Navy, 229 F.3d 1356, 1362 (Fed. Cir.
     2000).
¶7         As to the first prong of the Kruger test, we agree with the administrative
     judge that the appellant’s off-duty alcohol abuse is not sufficiently egregious so
     as to automatically give rise to a presumption of nexus. 5 ID at 4; see, e.g., Brook
     v. Corrado, 999 F.2d 523, 527-28 (Fed. Cir. 1993) (off-duty drug trafficking
     sufficiently egregious to warrant a presumption of nexus); Graham v. U.S. Postal
     Service, 49 M.S.P.R. 364, 367 (1991) (nexus presumed where the appellant was

     4
       The Board discussed the development and legislative h istory of the nexus requirement
     in Merritt v. Department of Justice, 6 M.S.P.R. 585, 596 (1981), modified, Kruger v.
     Department of Justice, 32 M.S.P.R. 71, 75 n.2 (1987). In that decision, the Board
     extensively quoted comments made during the mark-up of the Civil Service Reform Act
     of 1978, Pub. L. No. 95-454, 92 Stat. 1111, that federal emp loyees should not be
     discip lined for activities that are not job-related, that do not affect the employee’s job
     performance, and that do not affect the performance of others. Merritt, 6 M.S.P.R.
     at 602-03; see House Committee on Post Office and Civil Service, Mark-Up Session on
     H.R. 11280, 95th Cong., 2d Sess. 39-40 (June 21, 1978). The Board also quoted the
     Conference Committee report, which states that conviction of a crime that has no
     bearing on an employee’s performance or the performance of others may not be the
     basis for action against an employee. Merritt, 6 M.S.P.R. at 603-04; see H.R. Conf.
     Rep. No. 95-1717, 95th Cong., 2d Sess. 131 (1978).
     5
        The agency argues that subsequent case law has expanded the definition of
     “egregious,” citing to O’Keefe v. U.S. Postal Service, 88 M.S.P.R. 475 (2001), vacated
     and remanded, 318 F.3d 1310 (Fed. Cir. 2002), and Laniewicz v. Department of
     Veterans Affairs, 83 M.S.P.R. 477 (1999). Such cases, however, involve a penalty
     analysis and not an analysis of whether there was a nexus between the misconduct and
     the efficiency of the service. Thus, the cases cited by the agency are inapposite to the
     instant case.
                                                                                          6

     convicted of sexual abuse in the first degree of a 14-year old girl); Faint v. U.S.
     Postal Service, 22 M.S.P.R. 495, 497 (1984), aff’d, 770 F.2d 179 (Fed. Cir. 1985)
     (assault with a deadly weapon constitutes egregious circumstances warranting the
     presumption of nexus); see also Arthur v. Department of Army, 10 M.S.P.R. 239,
     243 (1982) (conviction of the charge of disorderly conduct is not so egregious
     that an adverse effect on the efficiency of the service by the appellant's retention
     can reasonably be presumed). 6
¶8        Regarding the second prong of the Kruger test, it is undisputed that the
     appellant’s misconduct did not affect her performance and she received favorable
     performance ratings both before and after the misconduct. ID at 4; B-1 PFR File,
     Tab 1 at 9. In this regard, it is significant that the record evidence submitted to
     the Board does not show that the appellant operated a motor vehicle as part of her
     official duties. Nor does the agency challenge the administrative judge’s finding
     that the appellant’s misconduct did not affect her coworkers’ job performance. In
     addition, we find unavailing the agency’s contention that the administrative judge
     ignored testimony by the deciding official that management had a low level of
     confidence in the appellant’s ability to perform her assigned duties. Though the
     deciding official generally testified that the FBI simply could not tolerate having
     employees who work for a law enforcement agency violating the law themselves,
     she did not specifically address how the appellant’s off-duty misconduct affected
     the agency’s trust and confidence in her ability to perform her job duties. B-1
     IAF, Tab 15, June 12, 2014 Hearing Compact Disc (CD) at 1:02 (testimony of the
     deciding official); I-2 IAF, Tab 35, August 1, 2012 Hearing CD at 47:24; 1:10
     (testimony of the deciding official).       Nor did the agency call any of the

     6
       Our finding that the appellant’s misconduct was not so egregious as to create a
     presumption of a nexus should in no way be viewed as condoning her behavior. To the
     contrary, the appellant’s off-duty conduct was extremely troubling and she was
     sentenced to criminal punishment by the State of Georgia. Her conduct did not,
     however, rise to the level so as to create the presumption of a nexus to her government
     job.
                                                                                       7

      appellant’s supervisors to testify on this subject. See B-1 IAF, Tab 12 at 11; see
      also I-2 IAF, Tab 18 at 10.
¶9         Moreover, as the administrative judge correctly noted, the agency’s analysis
      of the Douglas factors specifically states that, “[t]he offense has no relation to
      [the appellant’s] duties, position and responsibilities” and, significantly, that
      “[t]he offense has not affected the employee’s ability to perform her duties at the
      satisfactory level.” I-1 IAF, Tab 14, subtab 4(g) at 2-3; see ID at 4. Although the
      deciding official’s Douglas factors analysis indicated that, considering the
      appellant’s “long line of disciplinary issues” and her “ethical conduct in the
      past,” management did not have a high level of confidence that she would act
      according to FBI principles unless closely supervised, the deciding official did
      not address if or how the appellant’s misconduct diminished the agency’s trust
      and confidence in her job performance, with specific reference to her duties and
      to the impact of her misconduct on those duties. Id. at 3.
¶10        As to the third prong, the agency contended that the appellant’s misconduct
      in violating the law was generally contrary to the FBI’s mission as a law
      enforcement agency.      We note, however, that the appellant is not a law
      enforcement officer, specifically charged with enforcing the law. Although the
      Board has found a nexus between off-duty criminal misconduct by law
      enforcement agents and the efficiency of the service, law enforcement agents, due
      to the nature of their duties, are held to a higher standard of conduct than other
      employees.   See, e.g., Todd v. Department of Justice, 71 M.S.P.R. 326, 330
      (1996). As such, we find that the administrative judge properly found that the
      agency failed to prove that the appellant’s removal for off-duty misconduct
      promotes the efficiency of the service.

                                           ORDER
¶11        We ORDER the agency to cancel the removal action and to restore the
      appellant effective January 4, 2012. See Kerr v. National Endowment for the
                                                                                       8

      Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
      later than 20 days after the date of this decision.
¶12         We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Office of Personnel
      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellant to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶13         We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and of the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask the
      agency about its progress. See 5 C.F.R. § 1201.181(b).
¶14         No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the office that issued the initial decision on this appeal if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
¶15         For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
                                                                                  9

Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.

                  NOTICE TO THE APPELLANT REGARDING
                        YOUR RIGHT TO REQUEST
                       ATTORNEY FEES AND COSTS
     You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
     You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                                P.O. Box 77960
                           Washington, D.C. 20013

     If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                               131 M Street, NE
                                                                                   10

                                   Suite 5SW12G
                               Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.       See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
                                                      DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                  CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if app licable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work durin g the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicab le) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
               DISSENTING OPINION OF MEMBER MARK A. ROBBINS

                                             in

                          Leovetta Taylor v. Department of Justice
                          MSPB Docket No. AT-0752-12-0253-B-1

¶1        I respectfully dissent.
¶2        Although my colleagues agree with the administrative judge’s finding that
     the agency failed to establish nexus, it is problematic for me to find no nexus
     where a Federal Bureau of Investigation (FBI) employee violates the law,
     especially given the special nature of the agency’s mission.    According to the
     FBI’s website:
           The mission of the FBI is to protect and defend the United States
           against terrorist and foreign intelligence threats, to uphold and
           enforce the criminal laws of the United States, and to provide
           leadership and criminal justice services to federal, state, municipal,
           and international agencies and partners; and to perform these
           responsibilities in a manner that is responsive to the needs of the
           public and is faithful to the Constitution of the United States.
     The United States Department of Justice, Organization, Mission and Functions
     Manual:    Federal     Bureau   of   Investigation,   http://www.justice.gov/jmd/
     organization-mission-and-functions-manual-federal-bureau-investigation.
¶3        At the outset, I agree with the agency’s argument that the appellant’s
     misconduct in violating the law was contrary to the FBI’s mission as a law
     enforcement agency. Where misconduct is based on a criminal conviction, as it is
     here, an agency must show a nexus between the conviction and the job
     requirements.    The nexus requirement applicable to disciplinary actions taken
     under chapter 75 stems from 5 U.S.C. § 2302(b)(10), which sets forth that an
     agency may not “discriminate for or against any 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 . . . . ”
     According to Congress, criminal convictions must be considered under this
                                                                                      2

     provision. See H.R. CONF. REP. No. 1717, 95th Cong., 2d Sess. 131, reprinted
     in 1978 U.S. CODE CONG. & ADMIN. NEWS 2723, 2864.
¶4        In the past, the courts and the Board have followed Congressional intent and
     found nexus between an employee’s off-duty criminal misconduct and the
     efficiency of the service due to the nature of the employees’ positions and the
     agency’s mission. See, e.g., Hayes v. Department of the Navy, 727 F.2d 1535,
     1538-39 (Fed. Cir. 1984) (the court affirmed the Board’s decision to sustain the
     firing of a Mechanical Planner Estimator based on his criminal conviction for
     assaulting a child, even though his job did not always require interaction with
     children; the egregious nature of the misconduct raised a presumption of nexus);
     Masino v. United States, 589 F.2d 1048 (Ct. Cl. 1978) (sustaining the removal of
     a Customs Inspector convicted of the personal use and transportation of
     marijuana); Todd v. Department of Justice, 71 M.S.P.R. 326, 330 (1996)
     (correctional counselor’s removal for two driving while intoxicated (DWI)
     convictions, failure to report his arrest, and improper use of his identification
     card promoted the efficiency of the service as it is an extremely serious offense
     when a correctional officer violates federal or state laws against drunk driving
     because it compromises the integrity of personnel in the federal prison system and
     correctional or law enforcement officers are held to a higher standard of conduct);
     Thompson v. Department of Justice, 51 M.S.P.R. 43, 50 (1991) (removal of a
     recreational specialist from a federal correctional institution for off-duty DWI
     conviction and marijuana possession was reasonable because, as a law
     enforcement officer, it was appropriate to hold this employee to a higher standard
     of conduct than other employees and his involvement with illegal drugs was
     antithetical to the duties of his position and the agency’s mission).
¶5        Alternatively, I would find that the agency met its burden of proving that
     the appellant’s criminal misconduct under the facts of this case had a connection
     to the efficiency of the service. To that end, the agency provided evidence that
     established that the appellant’s conduct violated the FBI offense code, the
                                                                                       3

     appellant lied to the arresting officer and said that she had taken an overdose of a
     medication for depression and insomnia, when in fact the results of the blood test
     indicated that she had been drinking excessively, the appellant endangered herself
     and others by driving a motor vehicle while under the influence, and she
     recklessly destroyed property as a result of her drunk driving. In recent years,
     society has begun to take driving while drunk as a serious criminal act.          In
     addition, the deciding official testified that, as a result of the appellant’s
     misconduct, the agency had lost trust in her ability to perform her job duties.
¶6        Based on the above, I would reverse the initial decision and sustain the
     agency’s decision to remove the appellant under the circumstances of this case.



     ______________________________
     Mark A. Robbins
     Member
