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by the Office of Personnel Management, violations of conduct standards, including the "appearance of improprieties" standard, have been found by federal courts to have constituted just "cause" for removal. Federal Personnel Manual, Chapter 752, Part 3-2 "Merit of the Adverse Action", Paragraph (c).

The Merit Systems Protection Board (MSPB), to which agency adverse actions against employees may be appealed, has upheld the disciplining by an agency of federal employees on the basis that such employees' conduct

created the "appearances" of certain improprieties.

Moffer v. Department of the Interior,

In the decision of 2/

MSPB 134 (1981), the Board upheld

an agency's disciplinary charge against an employee that such employee's actions "created the appearance of using his office for private gain." 8 MSPB at 135. The Board, in fact, found that the presiding officer had erred in not considering the "appearance" of impropriety standard as charged by the agency:

We find error in the presiding official's conclusion with respect to
the agency's third charge relating to the appellant's alleged misuse
of his office for private gain. In this respect, the appellant was
charged with violating 43 C.F.R., Part 20, Section 735–32(d)(1), which
provides, in pertinent part:

An employee must avoid action, whether or not specifically
prohibited by this subpart, which might result in, or create the
appearance of

1. Using public office for private gain; [Emphasis added.]
In reaching his decision on this charge, the presiding official
discussed the evidence and concluded that the agency had failed to
prove that the appellant had used his office for private gain.
However, he erred in failing to consider or rule on whether the
appellant, in knowingly engaging in a real estate transaction with
the Indian seller, created the appearance of using his office for
private gain. 5 C.F.R. § 1201.111(b)(1). The record clearly supports a
finding that the appellant's participation in the transaction created
the appearance of his use of his federal office for private gain. Such
conduct was prohibited under the agency's regulations.

2/ See Moffer v. Watt, 690 F.2d 1037 (D.C. Cir. 1982).

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Similarly, the MSPB upheld a disciplinary action against a federal

...

employee even if the circumstances of the case "do not compel us to a conclusion that appellant took money" or "in any way profited from these transactions" in question, since the circumstances "could be said to create the appearance of using public office for private gain." In Burnett v. U.S. Soldiers' and Airmen's Home, 11 MSPB 559 (1982), the Board explained:

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.

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.

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 public office for private gain. Therefore, we sustain the charge that the transactions occurred and that 5 C.F.R. § 735.201a(a) was violated.

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In Miller v. United States Postal Service, 7 MSPB 413 (1980), the MSPB found certain outside employment activity of a Postal Service employee to provide a basis for disciplinary action since the activity "resulted in, or created the appearance of, a conflict of interest in violation of" applicable regulations. 7 MSPB at 414, emphasis added.

Federal courts have upheld the removal of federal employees based on violations of conduct standards requiring the avoidance of activity which may create the "appearance" of certain improprieties. The courts have shown reluctance to overturn such agency disciplinary decisions, and have generally deferred to the agency's and the executive branch's discretion in such personnel matters, absent a showing of arbitrary or capricious conduct by the agency, as long as discharges for "cause" are supported by substantial evidence (5 U.S.C. § 7703(c)(3)). See, for example, McLiernan v. Gronouski 337 F.2d 31, 34 (2d Cir. 1964); McDowell v. Goldschmidt, 498 F. Supp. 598, 604 (D. Conn. 1980).

In the case of Lowery v. Richardson, 390 F. Supp. 356 (E.D. Okla 1973), the court, in finding that the agency charge against an employee that the employee's conduct created the "appearance of impropriety" was not impermissibly vague, quoted with approval from the decision of the former Civil Service 3/ Commission's Board of Appeals and Review:

The agency charged Mr. Lowery with
"conduct unbecoming a government
representative"; as the agency's rep-
resentative at the hearing said, "with
indiscretion and breach of a fiduciary
position." It was these charges that
the Region found appellant unable to
refute because he had private dealings
with a firm whose work he was in
charge of reviewing.
As the agency
and the Region stated, it is the ap-

3/ This case was decided prior to the passage of the Civil Service Reform

Act of 1978 which established the Merit System Protection Board.

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pearance of impropriety in such rela-
tions that more than anything else
creates the cause of action. This ap-
pearance is why removal is for a
cause that will promote the good of
the service. If the agency were to al-
low one of its fiduciary agents to con-
tinue such conduct, it would lose its
appearance of inviolability. It would
seem to sanction such nonprofessional
relations and its credibility would be
damaged.

In this situation appellant was in a
position of public trust, and any rela-
tions that cast even the appearance of
impropriety on him might damage his
effectiveness in the taxpayers' eyes.

390 F. Supp. at 359, emphasis added.

In Jones v. United States, 617 F.2d 233 (Ct. Claims 1980), the court upheld the removal of a Department of Agriculture employee for the acceptance of a gift of a single bottle of whiskey from the owner of a packing house over which the employee had official responsibility. Even though the allegations did not involve charges that the employee favored the packing house in any official decisions, the court found the removal justified based on agency regulations on acceptance of gifts and the general standard, as explained by the Civil Service Board of Review, that any action by an inspector "which creates even the appearance of a conflict of interest will result in a severe penalty." 617 F.2d at 237.

In addition to disciplinary actions, the United States Court of Claims also found that administrative law judges for the Department of Defense on the Armed Services Board of Contract Appeals were subject to agency conduct standards barring even the "appearance of impropriety" of DOD employees, and that such standards were substantive and actionable such that they justified vacating prior decisions by a judge in contravention of those standards. In Gulf & Western Industries, Inc. v. United States, 671 F.2d 1322 (Ct. Claims 1982), the court explained:

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The

A cardinal principle of judicial conduct is that a judge must avoid not only actual impropriety but also the appearance of impropriety comment to Canon 2 of the American Bar Association's Code of Judicial Conduct warns that "[a] judge must avoid all impropriety and appearance of impropriety." Similarly Canon 2 of the Code of Judicial Conduct for United States Judges, which the Judicial Conference of the United States has approved, states that "[a] judge should avoid impropriety and the appearance of impropriety in all his activities." Although technically these standards may not cover administrative judges who are members of the Armed Services Board of Contract Appeals, the sensitive nature and public importance of the adjudicatory duties those individuals perform require that the same principles should govern their conduct The standards of conduct for employees of the Department of Defense instruct Departmental employees to "avoid any action. . . which might result in or reasonably be expected to create the appearance of ... (d) [1]osing complete independence or impartiality . . . or (f) [a]ffecting adversely the confidence of the public in the integrity of the government." 32 C.F.R. § 40.6 (1980).