applications for patents in fee which are necessary before trust property can be sold. Transcript at 25. Thus, we find, as did the presiding official, that the "appellant's cries of ignorance of the law must be judged with an appropriate dosage of salt." Initial Decision at 5-6. Nor are we persuaded by the appellant's arguments that his ownership in the land was merely incidental to that of his wife. In fact he admitted that he had a one-half interest in the land. Transcript at 127. Moreover, although he did note his interest in the property to the agency by completing an annual disclosure statement which was approved by the Ethics Officer, the record indicates that the Ethics Officer is located in an office about 150 miles away, Id. at 124, and there is nothing contained in the statement which would have alerted the Ethics Officer that the land was newly purchased or would otherwise have identified the land as trust property. Id. at 123-A-124. Furthermore, contrary to the presiding official's conclusion, the fact that the appellant conveyed his interest in the land to his wife by quitclaim deed upon being advised by the agency that the sale violated the statute does not lessen the seriousness of his actions or cure the violation. Thus, 43 C.F.R. § 20.735-15, which prohibits an employee from having a direct or indirect interest which conflicts with his duties defines "direct interest" as including the holdings of a spouse. Agency Exhibit No. 1. Thus, we find that the charges are supported by the evidence and they are sustained. 5 C.F.R. § 1201.56(a)(ii). In his initial decision the presiding official concluded that the removal penalty in this case would not promote the efficiency of the service. We disagree. In Douglas v. Veterans Administration, 5 MSPB 313,329 (1981), the Board recognized "the agency's primary discretion in exercising the managerial function of maintaining employee discipline and efficiency," but held that the Board must assure that the agency's judgment was exercised reasonably. A penalty should be selected only after a careful weighing and consideration of factors relevant to that determination. Id. at 331-32. In the circumstances of this case, we find no impropriety in the penalty selected. In fact, given the seriousness of the offense committed, the penalty of removal mandated by 25 U.S.C. § 68 and the consistently strict interpretation of the statute by the courts with Congressional approval, the agency could not properly have chosen a lesser penalty. Woody v. General Services Administration, 6 MSPB 410, 411 (1981). Accordingly, the initial decision of the presiding official is REVERSED and the agency action is hereby SUSTAINED. This is the final order of the Merit Systems Protection Board in this appeal. 5 C.F.R. 1201.113(c). Appellant is hereby notified of the right to seek judicial review of the Board's action as specified in 5 U.S.C. § 7703. A petition for judicial review must be filed in the appropriate court no later than thirty (30) days after appellant's receipt of this order. For the Board: ERSA H. POSTON. WASHINGTON, D.C., October 14, 1981 This case comes before the Board on the agency's petition seeking review of two initial decisions which reversed appellant's emergency suspension and removal from the position of a GS-6, Health Care Technician. The Office of Personnel Management has intervened on behalf of the agency. The basic contention in both the agency's petition for review and the intervenor brief is that the presiding official came to erroneous conclusions based upon the evidence of record and the applicable standard of proof. Both the agency and the Office of Personnel Management strongly urge that we look again at the record evidence in light of the nature of the charges against the appellant. We hereby reopen on our own motion pursuant to 5 C.F.R. § 1201.117 to review the evidence of record. These cases are hereby joined pursuant to 5 C.F.R. § 1201.36(a)2). We note at the outset that we will review the evidence of record in connection with the question of appellant's removal. Although the presiding official reversed the emergency suspension based on the merits, it is clear that this suspension could not be sustained under the Board's decision in Cuellar v. U.S. Postal Service, 8 MSPB 282, 287 (1981). In that decision, the Board held that the emergency suspension provisions of 5 C.F.R. § 752.404(d)3) are invalid insofar as they conflict with 5 U.S.C. § 7513(bX1), which requires 30 days' advance notice, "unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed." In the instant case, the agency provided less that 30 days' notice for a suspension of more than 14 days and did not invoke the crime provision. The notice simply stated that appellant's retention on duty would be "injurious to patients," Tab 24. Thus the presiding official's decision with regard to the emergency suspension is affirmed as modified herein.2 There is little dispute with regard to the facts in this case. Basically, the record shows that from a period beginning October 'Pursuant to 5 U.S.C. § 7512(2) a suspension for more than 14 days is an adverse action subject to the provisions of 5 U.S.C. § 7513. 'See Initial Decision, Burnett v. U.S. Soldiers' and Airmen's Home, MSPB Docket No DC07528110429 April 14, 1981). 1979 through October 1980, appellant cashed some thirteen checks made out either to him or to "cash" for a member of the Home, the then 84 year old, Mr. Glenn Bird. The total of the checks cashed amounted to some $1,500, and $1,100 of that amount was cashed between August and October 1980. At the time, Mr. Bird continued to obtain cash through the regular channels, that is, through personnel of the agency's finance office whose duty it was to attend to the financial needs of members who had ambulatory or other difficulties in going to the bank. (These cancelled checks had come to the agency's attention when a search for another check, not here relevant, was made with Mr. Bird's consent by agency security officials.) When first questioned about these checks, appellant stated they were repayments for loans he had made to Mr. Bird. However, he later recanted and indicated that he had cashed these checks for Mr. Bird as a favor due to their friendship of over twenty years.' The agency charged appellant with having made loans and cited all thirteen transactions. The agency charged that these transactions violated several sections of 5 C.F.R. part 735 as well as several agency rules implementing the regulations in part 735. (See, notice of proposed removal, Tab 26.) The presiding official found that appellant had not made loans to Mr. Bird and that the check cashing transactions in and of themselves did not violate any of the cited rules and regulations. Both the agency and the OPM argue before the Board that regardless of whether the transactions involved loans or not, the cited rules and regulations were violated. We note that the gravamen of some of the cited rules and regulations involves illegal financial gain. See, e.g., 5 C.F.R. § 735.202(a)(3) and certain items in the agency Employee Handbook, Part III, Table of Offenses and Penalties cited in the proposed notice of removal at 3. Others involve conduct which might result in or create the appearance of using public office for illegal gain, 5 C.F.R. § 752.201a(a). Still others involve affecting adversely the confidence of the public in the integrity of the Government, 5 C.F.R. § 735.201a(f), and or lack of trustworthiness, Part III, Table of Offenses and Penalties, pages 8-14, item 46. From our review of the initial decision of the presiding official, it appears that her finding that the charges against appellant were not 'Evidence of record shows that Mr. Bird was a long term member of the Home, and frequently encountered appellant in the "GU" clinic where appellant worked and Mr. Bird received treatment. 5 C.F.R. § 735.202(aX3) prohibits solicitation of anything of monetary value from a person who has interests that may be affected by the performance or nonperformance of official duty. Part III, Table of Offenses and Penalties, Page 8-7, item 5, prohibits acceptance by an employee of a gratuity which might reasonably be interpreted as tending to affect the performances of his official duties. Page 8-16, item 53, prohibits accepting any money in any form. supported by a preponderance of evidence' is largely based upon her conclusion with regard to the matter of illegal financial gain on the part of appellant. See, initial decision at 3. In this respect, the contention in OPM's intervenor brief that the presiding official did not make findings on all of the charges is correct, as she did not specifically make findings with regard to the cited rules and regulations not pertaining to financial gain per se. Insofar as the presiding official's finding with respect to appellant's financial gain is concerned, we affirm that finding. There is no evidence in the record supporting appellant's financial gain. In both an interview with agency officials and in his later deposition, Mr. Bird said he always signed the checks and appellant always brought the money back to him. It has in no way been established in the record that Mr. Bird was not mentally alert or that he did not really know whether all of the money was returned. As far as the charges relating to public confidence or general lack of trustworthiness are concerned, we also find insufficient evidence in the record to support these. There is no evidence that anyone in the public or present on the agency premises considered appellant unreliable. Appellant had an unblemished record of over 20 years of service with the agency. The mere charges without more are not sufficient to establish violation of the public trust. In our view, the only violation of rule or regulation sustainable by the transactions on their face is the violation of the regulation found at 5 C.F.R. § 735.201a(a), which provides in pertinent part: An employee shall avoid any action, whether or not specifically prohibited by this subpart, which might result in, or create the appearance of: (a) using public office for private gain. (Emphasis added.) Here we have a situation where appellant cashed checks for a member of the Home as a favor. However, there is no explanation in the record of why the appellant started doing this as a favor in 1979 when it appears he had not done it previously. There is also no explanation why Mr. Bird needed money in addition to that obtained for him by officials in the finance office. Further, Mr. Bird seems to indicate that no checks were made out for more than $100.00 whereas two are for $200.00. It is also unclear why, if appellant's check cashing for Mr. Bird was totally honest, appellant lied about the fact that these checks were repayment for loans, although appellant stated he was frightened and felt coerced by the agency in the initial interview concerning the checks. Finally, it is unclear why so many checks were cashed between August and October, 1980. 'That is, evidence to support a conclusion that the matter asserted is more likely to be true than not true. 5 C.F.R. 1201.56. These circumstances do not, in our view, compel us to a conclusion that appellant took money from Mr. Bird. While, as the agency and the OPM point out, they are somewhat suspicious in nature, it is also clear that the alternative explanations are quite possible. Indeed, the evidence of record before us contains nothing to show that appellant took money or in any way actually profited from these transactions. Thus, it is not clear that the matter asserted (illegal gain) is more likely to be true than not true. See, n.5 supra. Nonetheless, as set forth above, the circumstances of the transactions could be said to create the appearance of using pudic office for private gain. Therefore, we sustain the charge that the transactions occurred and that 5 C.F.R. § 735.201a(a) was violated. Turning to the question of the appropriate penalty, in our judgment, removal would be too harsh and disproportionate to the offense, based on the record before us. Appellant has been employed at the agency for over 20 years, and he has a previously unblemished record. Furthermore, the record does not establish that appellant actually did anything wrong, but merely created the appearance of wrongdoing. The record before us also fails to show that appellant knew that cashing checks as a favor to Mr. Bird, which appellant states was done at lunch time, or after duty hours, could create the appearance of wrongdoing and/or represent a conflict of interest. In instances where the Board has upheld the penalty of removal based upon a conflict of interest, the sustained charges have been far more egregious and flagrant than the sustained charges which the record support in this case. Cf., e.g., Wild v. U.S. Department of Housing and Urban Development, 7 MSPB 434 (1981) and Smith v. Department of the Interior, 6 MSPB 82 (1981). Nevertheless, we have found a regulatory violation representing actionable misconduct. Therefore, we impose a 30-day suspension upon the appellant in order to deter future conduct of this type. As set forth above, the initial decision overturning the emergency suspension is affirmed as modified herein. The initial decision reversing the adverse action of removal is vacated, and a portion of the charge is sustained, but the penalty of removal is mitigated to a 30-day suspension. The agency is hereby ORDERED to reinstate appellant, cancel the emergency suspension and substitute in lieu of removal, a 30-day suspension. Proof of compliance with this order shall be submitted by the agency to the Office of the Secretary of the Board within 20 days of the date of issuance of this order. Any petition for enforcement of this order shall be made to the Board's 'See Douglas v. Veterans Administration, 5 MSPB 313 (1981), which sets forth, at 331-32, these and other factors for consideration in determining whether the agency imposed a reasonable penalty. Washington, DC. Regional Office in accordance with 5 C.F.R. § 1201.181(a). Appellant is hereby notified of the right to seek judicial review of the Board's action as specified in 5 U.S.C. § 7703. A petition for judicial review must be filed in the appropriate court' no later than thirty (30) days after appellant's receipt of this Order. For the Board: KATHY W. SEMONE for ROBERT E. TAYLOR, Secretary. WASHINGTON, D.C., September 17, 1982 |