                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     STEPHEN MORNINGSTAR,                            DOCKET NUMBER
                  Appellant,                         SF-0752-13-1478-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: November 21, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Peter Cresci, Esquire, Bayonne, New Jersey, for the appellant.

           William L. Sims, Fort Hunter Liggett, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal based on charges of off-duty criminal misconduct and
     failure to maintain a condition of employment. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly 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 Parties may cite nonprecedential orders,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

     fact; the initial decision is based on an erroneous interpretation of statute or
     regulation or 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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was employed as a Supervisory Police Officer at the agency’s
     Directorate of Emergency Services in Camp Parks, California. Initial Appeal File
     (IAF), Tab 15 at 14. In October 2012, the agency received notification that the
     appellant had been convicted in April 2012, of driving under the influence (DUI)
     in Alameda County, California.     IAF, Tab 10 at 77.     The agency initiated an
     investigation and confirmed that the appellant was convicted of DUI and did not
     report the conviction to his supervisors. Id. The investigation also revealed that
     the appellant’s driver’s license had been suspended and that from approximately
     January through October 2012, he could only operate a vehicle if it was equipped
     with an ignition interlock device. Id. at 78. The investigation concluded that the
     appellant drove both his personal and assigned patrol vehicles while his license
     was suspended and that neither vehicle contained an ignition interlock device. Id.
     at 81. On October 3, 2012, the agency placed the appellant on administrative
                                                                                          3

     leave and temporarily decertified him as a police officer under the agency’s
     Individual Reliability Program (IRP). Id. at 83-84.
¶3         In February 2013, the agency proposed the appellant’s removal based on
     charges of off-duty criminal misconduct, with two specifications, and failure to
     maintain a condition of employment. Id. at 70. The proposing official noted the
     appellant’s supervisory and law enforcement status, along with his conviction and
     local media attention garnered by his conviction, as factors supporting his
     removal.     Id. at 71.   The appellant provided a written reply to the deciding
     official. Id. at 17-69. The deciding official sustained both charges and directed
     the appellant’s removal effective July 5, 2013. Id. at 13.
¶4         The appellant initiated a Board appeal challenging his removal. IAF, Tab 1
     at 5. The appellant also raised affirmative defenses of disability discrimination
     and harmful error and alleged that he was denied due process based on the
     deciding official’s receipt of ex parte communications. Id. at 8; IAF, Tab 21
     at 2-4.    After the prehearing conference but before the hearing, the appellant
     withdrew his affirmative defense of disability discrimination. IAF, Tab 24 at 2.
¶5         The administrative judge conducted a hearing and issued an initial decision
     that sustained the agency’s removal action. IAF, Tab 29, Initial Decision (ID) at
     1.   The administrative judge found that the agency proved both charges of
     off-duty criminal misconduct and failure to maintain a condition of employment
     and the nexus of the charged conduct to the efficiency of the service. ID at 5,
     7-8. The administrative judge found that the agency did not deny the appellant
     due process or commit harmful error. ID at 10. She found the penalty to be
     within the tolerable limits of reasonableness. ID at 13-14. The appellant has
     filed a timely petition for review. 2 Petition for Review (PFR) File, Tab 1 at 4.
     The agency has not responded to the petition for review.


     2
       The appellant filed a request for an extension to supplement his petition for review,
     which the Board granted through June 4, 2014. PFR File, Tab 1 at 6, Tab 3 at 1. The
     appellant submitted a request for a second extension postmarked June 10, 2014. PFR
                                                                                          4

     The agency proved the charge of off-duty misconduct.

¶6         The agency submitted the court records from Alameda County, California,
     that reflect the court’s acceptance of the appellant’s no-contest plea for the DUI
     charge on April 10, 2012. IAF, Tab 18 at 37. The appellant admitted in his
     sworn investigation statement that he was arrested for DUI in December 2011,
     and failed to notify his supervisor of the arrest. Id. at 23. The appellant has not
     denied his plea of no contest. See IAF, Tab 22 at 6. Based on the evidence, we
     find the agency proved the charge of off-duty misconduct.
     The agency proved the charge of failure to maintain a condition of employment.

¶7         The administrative judge found that the agency proved that the appellant
     failed to meet a condition of employment. ID at 6-7. This charge contains two
     elements that the agency must prove: (1) the requirement at issue is a condition
     of employment, and (2) the appellant failed to meet that condition. Gallegos v.
     Department of the Air Force, 121 M.S.P.R. 349, ¶ 6 (2014). In addition, when
     the employing agency controls the withdrawal or revocation of the certification or
     approval, then the Board’s authority generally extends to a review of the merits of
     that withdrawal or revocation. Adams v. Department of the Army, 105 M.S.P.R.
     50, ¶ 10 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008).
¶8         On October 30, 2012, the proposing official issued the appellant a notice
     that he was being decertified under the agency’s IRP. IAF, Tab 10 at 83-84.
     Certification in the IRP is a condition of employment under agency regulations.
     Id. at 111. The agency’s regulations provide that if an individual is decertified


     File, Tab 4 (envelope). The Board denied the second extension request because it was
     filed after the due date. PFR File, Tab 5. The original petition for review contains no
     argument other than a request to overturn or modify the initial decision. PFR File,
     Tab 1 at 4. Therefore, we decline to conduct a complete review of the record. See
     Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (before the Board will
     undertake a complete review of the record, the petitioning party must explain why the
     challenged factual determination is incorrect and identify the specific evidence in the
     record which demonstrates the error).
                                                                                       5

      from the IRP, he cannot carry a weapon or perform any law enforcement duties.
      Id.   The agency has proven that the IRP certification is a condition of
      employment and that the appellant failed to meet that condition when he was
      decertified by the proposing official.
¶9          The administrative judge found that the agency properly decertified the
      appellant based upon his misconduct. ID at 6. The agency based its decision to
      decertify the appellant on his DUI conviction and his failure to notify his
      supervisors of the DUI conviction and ignition interlock device requirement.
      IAF, Tab 10 at 83.      The appellant’s no-contest plea on the DUI charge is
      undisputed and documented in court records. IAF, Tab 18 at 37. The appellant
      also admitted that he failed to report the incident to his chain of command. Id.
      at 23. The appellant claimed that a former officer disclosed his conviction in an
      attempt to destroy his career. Id. However, we do not find this allegation, even if
      true, relevant to administrative judge’s determination that the appellant engaged
      in the charged conduct. Based on his conviction and his failure to notify his
      supervisors of the conviction and ignition interlock requirement, we believe the
      agency proved the merits of its certification withdrawal. Therefore, the agency
      proved the second charge of failure to maintain a condition of employment.
      The agency did not violate the appellant’s due process rights or engage in
      harmful error.
¶10         The appellant alleged that the agency denied him due process by not
      providing all the supporting documentation for his decertification from the IRP
      and by not providing a copy of a news video about his DUI conviction. ID at 10.
      The agency, as stated in the proposal notice, considered the news story as an
      aggravating factor. ID at 10. The administrative judge, based on the proposing
      official’s hearing testimony, found that the agency provided the appellant with all
      the supporting documentation for the IRP decertification. ID at 10. She also
      found that the agency was under no obligation to provide a copy of the video to
      the appellant, and the agency met its due process requirements by including
                                                                                             6

      notice that it was considering the news story in the notice of proposed removal.
      ID at 10. She also found the appellant failed to prove harmful error. ID at 10.
¶11        When an agency intends to rely on aggravating factors as the basis for the
      imposition of a penalty, such factors should be included in the advance notice of
      adverse action so that the employee will have a fair opportunity to respond to
      those factors before the deciding official.      Lopes v. Department of the Navy,
      116 M.S.P.R. 470, ¶ 5 (2011).      Our reviewing court has explained that, if an
      employee has not been given notice of any of the aggravating factors supporting
      an enhanced penalty, an ex parte communication with the deciding official
      regarding such factors may constitute a constitutional due process violation
      because it potentially deprives the employee of notice of all the evidence being
      used against him and the opportunity to respond to it.           Ward v. U.S. Postal
      Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).         The Board will consider the
      following   factors,   among    others,   to   determine   if   ex   parte   contact   is
      constitutionally impermissible, whether: (1) the ex parte communication merely
      introduces “cumulative” information or new information; (2) the employee knew
      of the information and had a chance to respond to it; and (3) the ex parte
      communications were of the type likely to result in undue pressure upon the
      deciding official to rule in a particular manner. Bennett v. Department of Justice,
      119 M.S.P.R. 685, ¶ 8 (2013).
¶12        In the present appeal, the agency clearly specified in its notice of proposed
      removal that it was considering the story aired by local media regarding the
      appellant’s arrest and conviction as part of the penalty selection process because
      it damaged the reputation of the police department and the agency. IAF, Tab 10
      at 71. Therefore, the appellant was on notice that the agency was considering the
      news story as an aggravating factor. He even addressed the news story in his
      written response to the deciding official. Id. at 21. Because the appellant was
      aware of the aggravating factor in the notice of proposed removal, the deciding
      official’s consideration of the notoriety caused by the story as an aggravating
                                                                                     7

      factor was not new to him, and the fact the agency did not provide him a copy of
      the video did not deny him his due process rights.
¶13        Even though the appellant’s due process rights were not violated, the Board
      must also review the agency’s action for harmful error.       See Ward, 634 F.3d
      at 1282-83. Harmful error is a procedural error by the agency that is likely to
      have caused the agency to reach a conclusion different from the one it would have
      reached in the absence or cure of the error. See 5 C.F.R. § 1201.56(c)(3); see
      also Salter v. Department of the Treasury, 92 M.S.P.R. 355, ¶ 7 (2002). To show
      harmful error, an appellant must prove that any procedural error substantially
      prejudiced his rights by possibly affecting the agency’s decision.        Salter,
      92 M.S.P.R. 355, ¶ 7. Under Office of Personnel Management regulations, an
      agency is required to provide an employee the opportunity to review any
      materials on which it relied in support of the charges. 5 C.F.R. § 752.404(b)(1).
      Failure to comply with this regulation is procedural error and, if harmful to the
      appellant, would provide a basis for reversal of the action. McNab v. Department
      of the Army, 121 M.S.P.R. 661, ¶ 16 (2014). The appellant has submitted no
      evidence that he ever requested to see a copy of the news video about him. In
      addition, the appellant has not shown that, even if the agency had provided him
      with a copy that it would have reached a different outcome. Therefore, we find
      the appellant failed to prove his affirmative defense of harmful error.
¶14        We also conclude that the administrative judge properly found that the
      agency’s action promoted the efficiency of the service. ID at 7-8. An agency
      may show a nexus between off-duty misconduct and the efficiency of the service
      by demonstrating, among other things, that the misconduct adversely affects the
      appellant’s or coworker’s job performance or the agency’s trust and confidence in
      the employee’s job performance. Scott v. Department of Justice, 69 M.S.P.R.
      211, 243 (1995), aff’d, 99 F.3d 1160 (1996) (Table). Here, as a result of the
      appellant’s misconduct, the agency lost confidence in his ability to perform his
      duties as chief of police. IAF, Tab 10 at 14. The agency also indicated that his
                                                                                           8

      misconduct might influence subordinate police officers to lose confidence in the
      appellant, whose role was to mentor and set a proper example for other officers
      reporting to him. Id.
      The penalty of removal is within the range of reasonableness based on the
      deciding official’s proper review of the Douglas factors.

¶15         Where, as here, all of the agency’s charges have been sustained, the Board
      will review an agency-imposed penalty only to determine if the agency
      considered all of the relevant factors and exercised management discretion within
      tolerable limits of reasonableness.       See Douglas v. Veterans Administration,
      5 M.S.P.R. 280, 306 (1981).       The Board’s function in this regard is not to
      displace management’s responsibility but to assure that managerial judgment has
      been properly exercised.    Id. at 302.    In evaluating a penalty, the Board will
      consider, first and foremost, the nature and seriousness of the misconduct and its
      relationship to the employee’s duties, position, and responsibilities. Gaines v.
      Department of the Air Force, 94 M.S.P.R. 527, ¶ 9 (2003). An agency may hold a
      supervisor to a higher standard of conduct than other employees. Cisneros v.
      Department of Defense, 83 M.S.P.R. 390, ¶ 19 (1999), aff’d, 243 F.3d 562 (Fed.
      Cir. 2000) (Table). In addition, law enforcement officers are held to a higher
      standard of honesty and integrity.           Prather v. Department of Justice,
      117 M.S.P.R. 137, ¶ 36 (2011).      The Board has also found removal to be an
      appropriate penalty for an appellant’s failure to meet the requirements of his
      position. Benally v. Department of the Interior, 71 M.S.P.R. 537, 539-40, 542
      (1996). The appellant’s past work record and 24 years of federal service were
      considered as mitigating factors but are outweighed by the seriousness of the
      misconduct.      ID at 11-14; IAF, Tab 10 at 13-15.             We agree with the
      administrative   judge   that   removal    was   within   the   tolerable   limits   of
      reasonableness, particularly in light of his supervisory and law enforcement
      status.
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                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           10

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
