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Rulings Roundup: Army engineer loses appeal over misuse of vehicle

An Alaska-based GS-11 Construction Control Representative with the Department of the Army, lost his most recent appeal against a removal action taken by his employer.

Robert Hoofman, an Alaska-based GS-11 Construction Control Representative with the Department of the Army, lost his most recent appeal against a removal action taken by his employer.

According to official documents in the case, the recorded events leading to the removal began on Oct. 23, 2010, with police officers finding Hoofman “in his government-owned vehicle [which] was stranded atop a sand pile.”

The officers stated that Hoofman “was in the driver’s seat with the motor running when [they] arrived and that there were two other individuals in the back seat.” They also said that when they encountered Hoofman, the appellant had “bloodshot eyes” and that the smell of alcohol was present. Hoofman subsequently refused to take a breath test, according to official documents in the case. Police impounded the government vehicle—and charged Hoofman with violating two Alaska state statutes—refusal to submit to a chemical test and driving under the influence.

Hoofman pleaded guilty to violating one of the charges—refusal to submit to a chemical test—and as a consequence initially had his driver’s license suspended for a year with the condition of a breath-test interlock ignition for an additional year. According to the agency, he also was jailed for approximately two weeks, yet informed his supervisor only that he needed “10 days of leave” to handle a “family emergency.”

After the supervisor was informed of the arrest, jailing and impoundment of the vehicle, Hoofman was hit with four serious administrative charges: (1) driving a government vehicle under the influence, (2) using a government passenger vehicle for unofficial purposes, (3) losing his driver’s license (which clearly would affect his job, which involved a great deal of driving), and (4) attempting to deceive his supervisor. The Army subsequently removed him.

Hoofman appealed to the Merit Systems Protection Board. He maintained that most of the police report was misleading and that removal was excessive. He told the administrative judge in the case that he was alone when he got the vehicle stuck in the sandpile and left it there.

Only later, he insisted, he consumed some alcohol and then encountered the two other individuals—who had agreed to help him—while en route on foot back to the car. He said they only tried to get the car out of the sand, and that he did not operate the vehicle on the road. Finally, he noted that in the end his license was only temporarily revoked—and claimed he never tried to deceive his supervisor.

The AJ in the case found in favor of Hoofman’s appeal. First, the AJ concluded that administrative charges (1) and (2) were founded only on “double hearsay evidence,” in the form of the police officer’s report and no corroborating investigation from the Army itself. As to charge (3), the AJ found Hoofman’s license indeed was revoked only temporarily—and that court might permit Hoofman to drive for work purposes. Finally, as to charge (4), the AJ found that the “agency did not prove … [Hoofman] had attempted to deceive his supervisor.” The AJ noted that “on his first day back at work” he informed his supervisor. The AJ reversed Hoofman’s removal.

The Army appealed to the full MSPB, which found the AJ erred on several fronts. On the first charge, the full MSPB noted that under Alaska state law, simply having “physical control” over a vehicle with its engine running while legally intoxicated merits a DUI. On the second charge, the MSPB noted that Hoofman admitted that he had agreed to transport two non-employees, regardless of whether he followed through. On the fourth charge, the MSPB found that whether or not he “intended to deceive,” Hoofman at times “lacked candor”—enough to sustain the charge.

On these bases, the full MSPB revised the AJ’s finding—affirming these administrative charges and Hoofman’s removal.

(Hoofman v. Department of the Army, MSPB Docket No. SF-0752-11-0266-I-1, 9/18/12)

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