STATES OF AMERICA

MERIT 6Y6T£K£ PROTECTION BOARD

SPECIAL COUNSEL,

Petitioner, DOCKET NUMBER

HQ12068610026

BIL1-IE JEM WADDAKS,

AKi'ONIO REYES, and

i.'ilT Ml TAW I,

Respondents.

DATE:

JUN ! 5 1937

na l.d_&.i .

» Esquire, Kaas & Najarian, San Francisco,

California, for respondent Waddaras.

, Esquire, San Francisco, California,

for respondent Reyes.

_phlV_H, ....... Kri_c.fc!L2D, Esquire, Erickson. Beasley & Hewitt,

San Francisco, California, for respondent Hitani.

pr.;.;rp ...... P.r...r3H3» Esquire, and Joseph E. Siegelran.

E&quire, for the Special Counsel.

Daniel R, Lev.inson, Chairman

ia L. Johnson, Vice Chainaan

Dennis M. Devaney, Member

DEC I

This is a disciplinary action under 5 U.S.C. § 1206.

?nc. cuse originated with thirteen charges (counts) brought

by th« Special Counsel to discipline the respondents, vho

ware erpioyed by the Department of Education. The charges

allege violations of 5 U.S.C. § i3Q2(b)(4), (5), (6), and

(11) un-i 5 C.F.R. S§ 4.3 and 330.6olr which, in general,

prohibit public officials fron hiring in violation of the
right.s of other individuals being considered for employment.

Respondents allegedly violated these statutory and

regulatory provisions.

On December 17, 1986, the Administrative Law Judge

issued a Recommended Decision, recommending that the Board

grant the joint motions for approval of settlement submitted

by the parties. A separate motion was submitted for each

respondent.

Under the settlement agreement for respondent Waddans,

the Special Counsel naves for the dismissal of Counts IX, X,

XII and XIII, and Waddams admits that he violated 5 U.S.C. §

2302(b}(5), as alleged in Count XI. Th3 settlement

provides for the debarment of Vfaddams fron fedrral

entploynenv for 3 years* and a £ine of $750.

Under the settlement agreement for respondent Reyes,

the Special Counsel isoves for the dismissal of Counts I

through IX, XII and XIII, and Reyes agrees net to contest

the allegations that he violated 5 U.S.C. § 2302 (b) (5) as

alleged in Count XI , a^d with traws his answer to Count XI.

The settlement provides for the debarment of Reyes from

federal employment for 3 years and a fin-? cf $500.

As for respondent Mitani, the Special Counsel aoves for

the dismissal of Counts I, II and IV, ar;d Mitani admits that

she violated 5 C.F.ft, § 3; 0.601 as alleged in Count III.

Kitani's settlement

fine.

for thr imposition of a $250
In waking the recommendation to approve the

settlements, the Administrative Law Judge considered the

penalties in light of the factors described in Doug); as v.

Veterans. Administration, 5 H.S.P.R. 280 (1981), and

concluded thai the penalties are within the bounds of

reasonableness. No exceptions were taken to the Recommended

Decision by the parties.

In light of Homer v, Kerit Systems Protection Board,

No. 86-1155 (Fed. Cir. March 24, 1987), we have considered

whether 5 C.F.R, § 330.601 is a regulation that is within

the scope of the Special Counsel's jurisdiction under 5

IKS.C-. § 1206(e) (1) (D) .*/ In Homer the court concluded

that the Spacial Counsel's jurisdiction under section

1206(e)(1)(D) supplements the authority provided elsewhere

*

in section 1*06 to deal with prohibited personnel practices

by providing the Special Counsel with "authority to

investigate other personnel practices that iray be prohibited

by

 sany civil service law., rule, or regulation. f" Horner,

slip op. at 19 (emphasis in original) * We find that tne

conduct prohibited by the regulation at issue here »ay

appropriately be viewed &s e personnel practice. Indeed,

*/ That section provides?

(ft) (1) In addition to x:he authority otherwise provided in

this section, the Special Counsel shall, except as provided

in paragraph (2) of this subsection, conduct an

investigation of any allegation concerning—

(D) activities prohibited by any civil service law,

, or regulation/ including any activity relating to

political intrusion in personnei
4

to influence or attempt to ir>f)uence candidates to withdraw

from competition, the cordut, prohibited by section 330.601,

if. a prohibited perscr-^^i practice &s defined in 5 U.S.C. §

2302(b)f5). Therefore ^ conclude that the Special Counsel

has the authority to brine this disciplinary action against

respondent Hitftni.

The Board agrees with the Administrative Law Judge that

the agreed upon penalties are within the bounds of

reasonableness. The proposed settlements also accommodate

the need to penalise those who violate merit employment

principles, ar.d the approval of the aotions will result in a

conservation of time, effort,, and expense. Thus no

reasonable purpose would bV served by insisting upon

continued processing of this case.

Accordingly, the Board ADOPTS the Pecomnended Decision

and GRANTS the joint motions for approval of settlement.

Counts IX, X, XII and XIII are hereby DISMISSED as to

respondent Wadda&s. He shall be DEBARRED froia federa.1

employment fcr 3 years and finsd $750. Counts i through IX,

XII and XIII are hereby DISMISSED as to respondent Reyes.

He shall be DEBARR£D fron federal er.pl ay-cent for 3 years and

fined 3500. Counts I, II and IV are hereby DISMISSED as to

respondent Mitani. She shall be fined $350.

Th2 Special Counsel is ORDERED to insure that the

Department of Education placets a copy t>f this decision, and

of the P,ecorrj?ended Decision, into the Official Personnel

Folders of Waddaas and Reyes so that there will not be en
5

unknowing hiring in violation of the bar imposed herein.

The Special Counsel shall submit proof of compliance within

60 days of the date of the Board's order.

This is the final order of the Merit Systems Protection

Board, The respondents are hereby notified of the right to

seek judicial review ol th^ Board's action as provided in !>

U.S.C. § 1207(c),

FOR THE BOARD: _^

 M

~" ' Robert" E. "fay 1 or

r

 Clerk of the Board

Washington, DC