UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SPECIAL COUNSEL, )

)

Petitioner, ) Dockex. No. hv?i^u68310017

v. ) Date: ° 5 NOV 1984

)

JEROME HOBAN, )

)

Respondent. )

FINAL DECISION AND ORDER

On June 19, 1984, Administrative Law Judge Frank W.

Vanderheyden (ALJ) issued a Recommended Decision in this case,

which came before the Board upon the Special Counsel's (OSC)

complaint for disciplinary action pursuant to 5 U.S.C. § 1206(a)

and (g). OSC charged that respondent had (1) significantly

changed the duties of Vernon Mize, an employee, in reprisal for

his protected disclosure of information in violation of 5 U.S.C.

§ 2302(b)(8); (2) violated 5 U.S.C. § 2302(b)(4) by willfully

obstructing the right of Mize to compete for employment; (3)

violated § 2302(b)(4) by deceiving and willfully obstructing the

right of Charles Manuel to compete for employment; and (4)

granted a preference for employment not authorized by law to

Ronald Dreveskracht in violation of 5 U.S.C. § 2302 (b) (6) 0-1/

I/ 5 U.S.C. § 2302(b)(4), (6) and (8) provide:

(b) Any employee who has authority to take, direct others to

take, recommend, or approve any personnel action, shall not, with

respect to such authority—

* * * *
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Following a lengthy hearing and the submission of posthearing

briefs, the ALJ sustained all four charges.2/

On July 26, 1984, respondent filed timely exceptions to the

ALJ's Recommended Decision. See 5 C.F.R. § 1201.129(b). OSC

filed a response to the exceptions on September 6, 1984.

FOOTNOTE I/ Continued.

(4) deceive or willfully obstruct any person with

respect to such person's right to compete for employment;

* * * *

(6) grant any preference or advantage not authorized by

law, rule, or regulation to any employee or applicant for

employment (including defining the scope or manner of

competition or the requirements for any position) for the

purpose of improving or injuring the prospects of any

particular person for employment;

* * * *

(8) take or fail to take a personnel action with respect

to any employee or applicant for employment as a reprisal

for —

(A) a disclosure of information by an employee or applicant

which the employee or applicant reasonably believes

evidences —

(i) a violation of any law, rule, cr regulation, or

(ii) mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to

public health or safety,

if such disclosure is not specifically prohibited by law and

if such information is not specifically required by

Executive order to be kept secret in the interest of

national defense or the conduct of foreign affairs; ....

2/ OSC also filed a motion for clarification of the Board's

policy permitting replies to exceptions. Although the Board's

regulations do not provide for replies, the Board has now

directed the Office of the Clerk to notify parties that they may

reply to exceptions within 20 days of receipt.
-3-

The Board has carefully considered the Recommended Decision

and the record in light of the exceptions, response and the

parties' post-hearing briefs. The Board hereby ADOPTS AS

MODIFIED the ALJ's Recommended Decision and incorporates it into

this Final Decision and Order.

!• The Factual Charges

During the relevant time frame, Jerome Hoban, respondent,

was a GS-9 Chief of Police at the Veterans Administration Medical

Center (VAMC), comprising Palo Alto and Menlo Park, California.

He supervised 15 officers, a detective and a clerk-typist,

ranging in grade from GS-4 through 7. Vernon Mize , first

employed at VAMC in 1974 as a GS-4 officer, was promoted through

the ranks to GS-6 supervisory police officer with the rank of

Corporal by 1977. In December 1977, respondent appointed Mize to

the position of "Lieutenant Hospital Police Supervisor, Day Watch

Commander, and Assistant Chief, Hospital Police," making him the

senior police supervisor in the section. Recommended Decision

(R.D.) 2-3. In June 1978, respondent appraised Mize's

performance with regard to 34 supervisory abilities and accorded

Mize the highest rating in all categories.

On May 24, 1979, Mize wrote to the Inspector General of the

Veterans Administration (IG) and to Congressman McCloskey

expressing his concern over matters directly related to the

operation of the VAMC. The letters basically sought legislation

to improve the retirement benefits of VA officers, documented the

rise in criminal activities at the VAMC, cited the need for
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additional officers and a batter grade structure for them,

reported the great volume of non-police duties assigned, and

reported that officers were only given a can of mace for

self-defense. Mize informed respondent of his intent to send

these letters. When the letters were received by the addressees,

inquiries were made to the VAMC, and the displeasure of those in

charge was made quite evident to Mize. R.D. 4-7.

In July or August, 1979, pursuant to a contact made by a

reporter, Mize and others at the VAMC supplied information

concerning their perceptions of improper *nanagement. These

officers talked to the reporter only after receiving clearance

from the VAMC management. Subsequently, a series of news

articles appeared. Shortly thereafter, Mize was sent to Menlo

Park to supervise 1-2 officers; he previously supervised

approximately 15 officers. He was also relieved of his

responsibility of compiling statistical reports, denied access to

files, and assigned to parking enforcement for 3 weeks, i.e.,

writing tickets for illegally parked vehicles. He was also

assigned to the graveyard shift; since his appointment in 1977 to

senior police officer, Mize had worked the day watch. The title

of "Lieutenant" was also revoked. Again, in 1980, Mize wrote to

Congressman McCloskey complaining of improper procedures at the

VAMC. R.D. 10-12.

In November 1980 a new position of detective was created at

the VAMC* Mize wished to be considered for the position. On

November 25, 1982, respondent rated Mize, giving him a lowered
-5-

performance evaluation even though, prior to Mize's letters and

the newspaper articles, respondent had not noticed any

deterioration in Mize's performance. R.D. 13-16.

The detective's position was formally announced on November

20, 1980. On November 4, the day the position was approved, a

performance appraisal for Ronald Dreveskracht, a GS-5 officer at

a VAMC in San Francisco, was prepared and sent directly to

respondent via a laundry truck which traveled between the VA

facilities. An undated Form 171 for Dreveskracht accompanied the

evaluation. However, this original appraisal form was not the

one utilized to rate Dreveskracht's performance for competition

for the detective's position. A second perfect appraisal,

unsigned and unseen by Dreveskracht, was used to rate him as

highly qualified though he was not one of the five highest

ranking candidates. R.D. 16-17; 21-24.

Charles Manuel, an officer at VAMC Allen Park, Michigan,

also applied for the detective's position and was among the five

highest ranking candidates, when respondent called to interview

Manuel sometime during December,^/ he spoke with Manuel's

supervisor regarding Manuel's abilities. Manuel was off duty

that day, but returned respondent's call upon returning to work.

L'

Respondent and Manuel spoke and, at the conclusion of the

3/ While there was much conflict regarding the facts

surrounding the treatment of Manuel, the ALJ made specific

credibility findings and determined that these events

transpired.
-6-

conversation, respondent told Manuel that he would be in touch

with him. Respondent reported to the personnel specialist that

Manuel had not been interviewed because he did not return his

telephone calls. Respondent stated that he spoke with Manuel

only after he had made his final selection for the position.

R.D. 17-21.

II. Analysis

Respondent submitted lengthy, narrative exceptions which,

for the most part, focus on the ALJ's evaluation of the evidence,

but are couched in conclusory terms. In most of these

exceptions, respondent simply disagrees with the ALJfs findings

and reiterates the arguments

 r mitted in his post-hearing brief,

without any references to th ^ecord to support his contentions.

Those exceptions wherein respondent cites the record to support

his allegations of error are addressed below. The Board finds

that the remaining exceptions were adequately resolved by the ALJ

and, accordingly, these exceptions are rejected for the reasons

given by the ALJ.

With regard to respondent's exceptions to the ALJ's

credibility determinations concerning testimony and documentary

evidence, the Board finds no error.$J In the Recommended

Decision, the ALJ thoroughly discussed his consideration of the

witnesses' demeanor and the substance of their testimony in

determining their veracity. He also reviewed the documentary

4/ Respondent excepted to the credibility determinations made

Fy the ALJ on pages 9, 18-21 and 29 of the Recommended Decision.
-7-

evidence, comparing it with the testimony, to ascertain the

inherent truthfulness of that evidence. Respondent's exceptions

to the ALJ's credibility findings failed to show that they are

not entitled to deference. See Weaver v. Department of the

Navy, 2 MSPB 297, 299 (1980).

The remainder of respondent's exceptions which cited record

references can be grouped generally into several categories by

topic: the change in Mize's duties, Mize's reasonable belief in

his disclosed statements, and respondent's appraisal of Mize.

As to the change in Mize's duties, respondent takes

exception to a perceived implication that Mize, a supervisory

police officer, received a promotion when respondent appointed

him to "Lieutenant-Hospital Police Supervisor, Day Watch

Commander, and Assistant Chief, Hospital Police."J3/ He also

takes exception to the finding that, as the result of 1979

letters from Mize to his Congressman and the IG and a series of

newspaper articles to which Mize and others had contributed

information, Mize was sent to Menlo Park, a small facility, as a

supervisor and was assigned to parking enforcement.§/ These

exceptions relate to the charges in Count I that respondent

unlawfully changed Mize's duties in reprisal for protected

disclosures.

5/ Respondent's Exceptions at 6, objecting to Recommeded

Decision at 3.

6/ Respondent's Exceptions at 10, objecting to Recomraeded

Decision at 10.
-8-

The ALJ did not find or imply that Mize was promoted when he

was given his new position and titles; to the contrary, he

carefully stated that Mize did not receive any increase in grade.

R.D. 3. The ALJ merely recounted the increase in Mize's duties

 :

as evidenced both by testimony and documentary evidence.

Further, the ALJ found from the "concatenation of the evidence,"

not simply from the two changes which respondent cites, that the

t

duty changes which Mize suffered were significant and "abrupt and

swift," following the appearance of the newspaper articles, and

thus were the result of protected disclosures. R.D. 10-12;

28-29. The Board finds no error.

Respondent also excepts to the finding of fact and

conclusion of law that Mize's statements in the 1979 letters to

his Congressman and the IG, and his responses to questions by a

reporter were protected.7/ The exceptions state that "while

many of the allegations he [Mize] made contained some technical

element of truth, they were purposefully presented in an entirely

misleading manner" with "the intent to create an implication of

lax law enforcement," Exceptions at 8, and object to the

conclusion that Mize was a protected whistleblower, Exceptions at

20.

The ALJ reviewed and made his findings upon all the

evidence, not simply this cited disclosure which dealt with

alleged lax law enforcement. Moreover, in addressing the

]_/ Respondent's Exceptions at 8, objecting to the Recommended

Decision at 9, and Respondent's Exceptions at 20, objecting to

the Recommended Decision at 26.
"whistleblower" protection set forth in 5 U.S.C. § 2302(b)(8),

the Board has held that the employee need not prove that the

condition reported establishes mismanagement, but "he must only

show the reported condition was one which he reasonably believed

to constitute one of the situations specified." Ramos v.

Federal Aviation Administration, 4 MSPB 446, 448 (1980). The

whistleblower's evidence must show that "a reasonable person in

the employee's position would believe" that the matter reported

was prohibited by § 2302(b) (8).8/ The Board finds no

error.9/

Respondent objects to the finding of fact and conclusion of

law that respondent acted improperly in his 1980 appraisal of

Mize, which relates to the charge in Count II that respondent

unlawfully interfered with Mize's right to compete for

promotion.^)/ Also related to Mize's appraisal is respondent's

exception to the ALJ's characterization of the testimony of Mr.

Smith, a personnel specialist.ll/

Q/ Even one of respondent's witnesses admitted that Mize could

have reasonably believed that criminal laws should be enforced

against VA patients. Tr. 1280.

9/ While respondnet states that, with regard to disclosures to

congressmen and the media, "many of the allegations he [Mize]

made contained some technical element of truth," Exceptions at 8,

he also posits that "most, if not all, of the allegations made by

Mize and those attributed to him in the newspapers were

completely erroneous." Exceptions at 23. These two statements

are in direct opposition; such inconsistency bolsters the ALJ's

findings and credibility determinations.

10/ Respondent's Exceptions at 14, objecting to the Recommended

Decision at 15, and Respondent's Exceptions at 23, objecting to

the Recommended Decision at 30.

117 Respondent's Exceptions at 16, objecting to the Recommended

Decision at 17.
-10-

Again, the ALJ considered the evidence as a whole, including

the statements made by respondent inMize's exit interview and

respondent's admission that he considered Mize's disclosures in

the appraisal. All the evidence taken together led to the

conclusion that respondent downgraded Mize to inhibit his chances

to compete for promotion to a detective's position. Further, the

ALJ did not "infer that Alan Smith was merely speculating" in his

testimony. Respondent's exception is weakly based upon

semantics. The Board finds no error.

Relating to the charge in Count IV that respondent granted

unlawful advantage to Ronald Dreveskracht, respondent excepts to

the alleged implication of a "conspiracy between Chiefs Hoban and

Hanson to appoint Ronald Dreveskracht to the GS-7 position of

detective."]^/ The ALJ did not hint that there was any

conspiracy between the two police chiefs, but rather summarized

the record evidence. The Board finds no error*

Respondent excepts to one additional finding of the ALJ

which the Board sustains. With regard to Mize's change in

duties, the ALJ found that respondent "made and carried out the

decision to reduce the grade of Mize." R*D. 11. This is not

correct. However, as the ALJ had correctly stated previously at

R.D. 3 that Mize had received no increase in grade when he

12/ Respondent's Exceptions at 15, objecting to the Recommended

Decision at 16.
-lias sumed his new title of Lieutenant and Assistant Chief, this

misstatement is not harmful error and does not alter the final

outcome in this case. See_ Karapinka v. Department of

Energy, 6 MSPB 114 (1981).

III. The Penalty

Pursuant to 5 U.S.C. § 1207 (b), the Board has authority to

impose disciplinary action consisting of removal, reduction in

grade, debarment from Federal employment for a period not to

exceed 5 years, suspension, reprimand, or an assessment of a

civil penalty not to exceed $1000. In the past, the Board has

not had the opportunity to consider the criteria to be used in

the selection of a penalty in a Special Counsel disciplinary

action. However, we have considered a simliar issue in the

context of employee appeals from agency adverse actions. See,

e.g., Douglas v. Veterans Administration, 5 MSPB 313

(1981).

In Pouglas and its progeny, we have held that penalties

should ho selected only after a "responsible balancing of the

relfvs.r: factors in the individual case." Douglas, 5 MSPB at

32?,,, Which factors are relevant in an individual case, of

course, may vary. Such factors generally include, but are not

limited to, the nature and seriousness of the offense; the

employee's job level; past disciplinary record; past work record;

length of service; potential for rehabilitation; mitigating

factors; and the adequacy of alternative sanctions to -u:ter

similar conduct in the future. Id. In our view, the method
-12-

for selecting penalties in adverse action cases is a rational

scheme for ensuring that the penalty matches the character of the

offense and, for that reason, we adopt it in disciplinary cases

brought by the Special Counsel.

We find that ALJ Vanderheyden properly analyzed the relevant

factors and recommended the appropriate penalty, a reduction-ingrade. There is no dispute ov^z: the seriousness of the offenses.

And!, as the ALJ stated,

[h]is [respondent's] job level, that of police

chief, has a certain degree of prominence,

particularly within the VAMC, and brings him in

frequen: contact with the public. Respondent is

in a supervisory capacity, and without fair and

equal treatment to his staff and applicants alike

the morale of the employees is reduced. The

ability of respondent to continue to perform as a

supervisor of others has been damaged by his

unlawful conduct, and attendant notoriety,.

R.D. 35. Given these circumstances, a substantial penalty is

required to deter similar conduct in the future. And, because it

was the supervisory function which respondent abused, the penalty

of reduction in grade to a non-supervisory position of GS-5

police officer is appropriate.

IV. Conclusion

Accordingly, the Board AFFIRMS the findings of fact and

conclusions of law of Judge Vanderheyden, and ADOPTS AS MODIFIED,

and incorporates herein, his Recommended Decision as the final

decision of the Board.

This is the final decision of tbe Board. The Veterans

Administration is ORDERED to reduce J2rome Hoban from his
-Imposition of GS-9 Chief of Police to GS-5, Step 1, Police Officer

VA shall file a report of compliance with this decision with the

Special Counsel within 30 days of the date of this Order.

Respondent may obtain judicial review of this Order in an

appropriate United States Court of Appeals. See 5 U.S.C.

§ 1207(c).

FOR THE BOARD:

£JH.

Stephen E. Manrose

Washington, D.C. Acting Clerk of the Board
CERTIFCATE OF SERVICE

It is hereby certified that service of the Final Decision

and Order has been made upon the following individuals on

Nov. 7.1984 by mailing copies thereof in envelopes with

postage prepaid properly addressed as follows:

By certified mail:

Jerome Hoban

Chief of Police

Veterans Administration Medical

Center

Palo Alto, California 96073

John P. Murphy, Esq.

General Counsel

Veterans Administration

810 Vermont Avenue, N.W.

Washington, D.C. 20420

By regular mail:

By Hand:

James P. Rargarten, Esq.

Jennifer P. Kuenster, Esq.

Thelen, Marrin, Johnson and Bridges

Two Embarcadero Center, Suite 2200

San Francisco, California 94111

Joseph Siegelman, Esq.

Office of Special Counsel

Room 11454, P.O. Box 36007

450 Golden Gate Avenue

San Francisco, California 94102

Office of Personnel Management

Appellate Policies Branch

1900 E Street, N.W.

Room 7459

Washington, D»C. 20415

Honorable K. William O'Connor

Special Counsel

Merit Sytems Protection Board

1120 Vermont Avenue, N.W.

Washington, D.C, 20419

(Date)

Washington, D.C

Stephen E. Manrose

Acting Clerk of the Board