                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DUANE R. GUNVILLE, SR,                          DOCKET NUMBER
                  Appellant,                         DE-0752-13-0220-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: December 5, 2014
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jeffrey H. Jacobson, Esquire, Tucson, Arizona, for the appellant.

           Teresa M. Garrity, Esquire, Bloomington, Minnesota, 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 that
     sustained his removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.      Except as
     expressly modified by this Final Order, we AFFIRM the initial decision.

                                     BACKGROUND
¶2        The appellant was a police officer with the Bureau of Indian Affairs and
     was removed based on a charge of off-duty misconduct arising from his alleged
     assault of his wife in March 2012. Initial Appeal File (IAF), Tab 4 at 16-23.
     Prior to that, he had been on an indefinite suspension since August 2010 based on
     previous criminal charges of reckless endangerment (prosecuted in tribal court)
     and aggravated assault (prosecuted in district court). Id. at 69-70, 76, 80-84. The
     former charge was dismissed without prejudice in October 2011, and the latter
     dismissed with prejudice in February 2012, after the appellant successfully
     completed the terms of a deferred prosecution agreement. Id. at 64-65. He was
     placed on administrative leave after the March 2012 incident. Id. at 33 n.1. The
     appellant’s criminal trial based on charges arising from the March 2012 incident
     was set for January 2013. Id. at 28.
¶3        On November 16, 2012, the agency proposed the appellant’s removal based
     on a single charge of off-duty misconduct arising from his alleged assault of his
     wife in March 2012. Id. at 32-38. The agency advised the appellant that he had
                                                                                          3

     the right to submit an oral or a written reply within 14 calendar days of receiving
     the notice of proposed removal. Id. at 36.
¶4           The appellant received the notice of proposed removal on November 19,
     2012. Id. at 39. On December 21, 2012, the appellant’s counsel responded in
     writing arguing, inter alia, that: (1) the agency did not have sufficient evidence
     to support the removal insofar as it was based solely on the appellant’s arrest;
     (2) in light of the then-pending criminal prosecution, the administrative action
     violated the appellant’s right to due process and his Fifth Amendment right
     against self-incrimination; (3) there was no nexus between the alleged off-duty
     misconduct and the efficiency of the service; and, (4) the penalty was
     unreasonable under Douglas. 2 Id. at 26-31.
¶5           On January 28, 2013, the prosecutor dismissed without prejudice the
     criminal charges arising from the March 2012 domestic violence incident. IAF,
     Tab 1 at 16. Thereafter, on February 13, 2013, the agency issued the decision to
     remove the appellant. IAF, Tab 4 at 17-23. The deciding official advised the
     appellant that, in arriving at the decision to remove him, he had considered the
     appellant’s written reply of December 21, 2012. Id. at 17. He further stated that,
     “[i]n evaluating the evidence, I also took into account your decision not to
     respond to the substance of the charge against you.”          Id.    The appellant was
     removed from federal service effective February 14, 2013. Id. at 16.
¶6           The appellant filed an appeal with the Board. IAF, Tab 1. He originally
     requested a hearing, but subsequently withdrew that request and the appeal was
     decided on the written record. IAF, Tab 1 at 2, Tab 6. The administrative judge
     sustained the removal. IAF, Tab 13, Initial Decision (ID).
¶7           The appellant has filed a petition for review arguing that the agency
     committed harmful error and violated his constitutional rights in initiating the


     2
         See Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).
                                                                                       4

     removal while criminal charges were pending. Petition for Review (PFR) File,
     Tab 1. The agency has not filed a response.

                                        ANALYSIS
¶8         Where, as here, the agency charged the appellant with off-duty misconduct,
     rather than the substantive criminal offense of assault, the agency must establish
     that the appellant engaged in the off-duty misconduct outlined in its specification,
     rather than the underlying elements of the criminal offense referenced therein.
     See Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 43 (2010), aff’d,
     635 F.3d 526 (Fed. Cir. 2011). Based on the evidence in the record, we find that
     the agency established that the appellant engaged in off-duty misconduct by a
     preponderance of the evidence. See ID at 3-5.
¶9         The record contains a sworn statement from the appellant’s wife, who
     averred, in pertinent part:
           As I walked into the kitchen area Duane grabbed me by the hair to
           the floor and started dragging me to the bedroom, calling me a
           [expletive] and [expletive] . . . . As he had me by the hair he was
           punching [me] all over the head in the hair line and this is where is
           [sic] usually hit me on other occasions. Duane drug [sic] me from
           the kitchen to the bedroom, I was trying to get away and when I did
           he caught me by my ankle and grabbed my phone before I could
           reach it to call the cops . . . . While I was in bedroom before I got
           away Duane struck me in the nose with a closed fist and that is when
           I started bleeding. When Duane seen [sic] the blood he held me
           down by my hair grabbed his phone and called someone he called
           Carla and told her to come beat the [expletive] out of me. I
           continued to struggle to get away and that is when Duane had me
           from behind with his forearm, elbow and started to choke me. I start
           to blackout and couldn’t fight Duane off because he was behind me
           so I thought I was going to die . . . .
     IAF, Tab 4 at 52-54. Although this sworn statement is hearsay, it is well-settled
     that hearsay is admissible in Board proceedings “and may be accepted as
     preponderant evidence even without corroboration if, to a reasonable mind, the
     circumstances are such as to lend it credence.” Kewley v. Department of Health
                                                                                             5

      & Human Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998); Long, 113 M.S.P.R.
      190, ¶ 26.
¶10           The determination of whether hearsay evidence alone is sufficient to sustain
      a charge depends on its reliability and trustworthiness. Long, 113 M.S.P.R. 190,
      ¶ 27.    Hearsay must be evaluated on a case-by-case basis to determine if the
      hearsay is inherently truthful and more credible than the evidence offered against
      it. Id. Thus, the Board evaluates the probative value of hearsay under the factors
      set forth in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981). Those
      factors include the availability of persons with firsthand knowledge to testify at
      the hearing, whether the out-of-court statements were sworn, whether the
      declarants were disinterested witnesses to the events and whether their statements
      were routinely made, the consistency of the out-of-court statements with other
      statements and evidence, whether there is corroboration or contradiction in the
      record, and the credibility of the out-of-court declarant. Id.
¶11           Here, because the appellant did not request a hearing, it is immaterial
      whether persons with firsthand knowledge were available to testify at the hearing.
      Moreover, as stated above, the statement is sworn. See, e.g., Ford v. Office of
      Personnel Management, 69 M.S.P.R. 73, 75 (1995) (sworn statements carry more
      weight than unsworn statements). Further, the averments in the sworn statement
      are consistent with other evidence in the record. In particular, we note that the
      record also contains the report of the investigating officer concerning the March
      3, 2012 incident, which states, in part, that “[u]pon arrival at the Belcourt Police
      Department, I observed [the appellant’s spouse] sitting in a chair by the booking
      area crying, and she had blood on her facial area and she was bleeding from her
      nose.” IAF, Tab 4 at 43-44. 3 Thus, the investigating officer’s statement, which


      3
        We note that, although the proposal notice advised the appellant that he could review
      the materials that the agency relied upon in support of its action, he made no request to
      do so. IAF, Tab 4 at 36.
                                                                                         6

      itself was made in the ordinary course of his duties, corroborates the appellant’s
      spouse’s sworn statements. There is no indication in the record, and the appellant
      does not content, that the investigating officer had any ulterior motive to fabricate
      his account of what happened. Based on this record evidence, we conclude that
      the agency established its charge by preponderant evidence.
¶12         We further agree with the administrative judge that the agency established a
      nexus between the appellant’s off-duty misconduct and the efficiency of the
      agency’s mission, see ID at 9-10; see also Scheffler v. Department of the Army,
      117 M.S.P.R. 499, ¶ 13 (2012) (loss of trust and confidence in the employee can
      establish nexus between off-duty misconduct and the efficiency of the service),
      aff’d, 522 F. App’x 913 (Fed. Cir. 2013), and that the deciding official properly
      weighed the Douglas factors in rendering his decision, ID at 10-13. Although the
      appellant argued below that the deciding official testified at his deposition that he
      did not have the authority to impose a penalty other than removal, see IAF, Tab
      12 at 7-8, we agree with the administrative judge that the appellant’s argument is
      premised on a selective reading of the deciding official’s deposition, and we have
      found no evidence in the record that the deciding official was limited in his
      ability to select a lesser penalty when considering the appellant’s proposed
      removal, ID at 6-8.        The appellant, moreover, has not challenged the
      administrative judge’s findings on this issue on review, and we find no reason to
      disturb them.
¶13         The appellant argues on review that the agency should not have proposed
      his removal while criminal charges were pending against him, and he instead
      suggests that the agency could have indefinitely suspended him pending the
      resolution of the criminal charges. PFR File, Tab 1 at 3. He contends that that
      the agency denied him due process by requiring him to respond to an
      administrative proceeding concerning his proposed removal at a time when
      criminal proceedings against him were pending, and then considering his exercise
                                                                                       7

      of his Fifth Amendment right to remain silent as evidence in support of its charge.
      Id. As explained below, we find the appellant’s arguments unpersuasive.
¶14        In Wallington v. Department of the Treasury, 42 M.S.P.R. 462, 464-66
      (1989), the Board reaffirmed its practice of staying its appellate proceedings
      when the appellant is the subject of a criminal proceeding involving the same
      facts as those at issue in the Board appeal.     See id. at 464.   In reaching this
      conclusion, the Board explained that this practice is rooted in the understanding
      that continuing the Board’s proceedings could constitute an improper interference
      with the ongoing criminal case concerning the same types of conduct.         Id. at
      464-65. Similarly, as the District of Columbia Circuit Court stated in Silver v.
      McCamey, 221 F.2d 873, 874-75 (D.C. Cir. 1955), “due process is not observed if
      an accused person is subjected, without his consent, to an administrative hearing
      on a serious criminal charge that is pending against him. His necessary defense
      in the administrative hearing may disclose his evidence long in advance of his
      criminal trial and prejudice his defense in that trial.” See Securities & Exchange
      Commission v. Dresser Industries, 628 F.2d 1368 (D.C. Cir. 1980) (“the strongest
      case for deferring civil proceedings until after completion of criminal proceedings
      is where a party under indictment for a serious offense is required to defend a
      civil or administrative action involving the same matter.”).
¶15        In the instant appeal, however, it is undisputed that, after the agency
      proposed the removal but approximately 2 weeks before the agency issued its
      decision letter, the criminal charges against the appellant were dismissed. IAF,
      Tab 1 at 16. At that point, any concern that removal proceedings could constitute
      an improper interference with the ongoing criminal case concerning the same
      conduct was no longer present. The appellant did not seek leave from the agency
      to supplement his written response to the agency’s proposal notice during this
                                                                                               8

      2-week period. 4 Under these circumstances, the appellant’s contention, that he
      was improperly required to respond to his proposed removal at a time when
      criminal proceedings against him were pending, lacks merit.
¶16         Nor are we persuaded by the appellant’s contention that that the agency
      effected his removal based upon his invocation of his Fifth Amendment right to
      remain silent. In Kalkines v. United States, 473 F.2d 1391, 1393 (Ct. Cl. 1973),
      the court held that an employee cannot be disciplined for remaining silent unless
      he is informed that his responses and their fruits cannot be used against him in a
      criminal matter. Kalkines, however, is inapplicable under the facts of this case.
      The decision letter does not indicate that the appellant was disciplined in whole
      or in part for remaining silent; rather, it simply states that in evaluating the
      evidence upon which the substance of the charge was based, the deciding official
      took into account, as one factor, the appellant’s failure to contest that evidence. 5

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
             The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to


      4
        Although, as stated above, the agency’s November 16, 2012 proposal notice advised
      the appellant that he had 14 days from the date of receipt to submit a response, it is
      undisputed that he submitted a response on December 21, 2012, and that the deciding
      official considered it. The proposal notice also advised the appellant that he could
      request an extension in writing from the deciding official, but there is no indication that
      the appellant submitted such a request. IAF, Tab 4 at 36.
      5
        The administrative judge noted in the initial decision that the appellant did not assert
      his rights under the Fifth Amendment before the Board. ID at 5. He further stated,
      however, that an appellant has no right to assert the Fifth Amendment right against
      self-incrimination in a Board hearing and, therefore, an administrative judge may draw
      an adverse inference against the appellant for his failure to testify. ID at 5. We
      VACATE this portion of the initial decision and clarify that we do not draw an adverse
      inference from the appellant’s failure to testify in this case; nor have we otherwise
      considered his failure to do so in concluding that the agency established its charge by
      preponderant evidence.
                                                                                  9

request the United States Court of Appeals for the Federal Circuit to review this
final decision.    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.
