UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

) DOCKET NUMBERS

GERALD ALEXANDER ) DC07528310310

) DC07528310948

v. )

)

) ft DEC 1984

DEPARTMENT OF THE NAVY ) Date:

OPINION AND ORDER

Gerald A. Alexander (appellant) was suspended for

twenty-one days and reduced in grade from a Supervisory

Personnel Management Specialist, GM-13, to an unspecified

GS-12 position in the Consolidated Civilian Personnel Office

(CCPO), Department of the Navy (agency). The agency based

its actions on two instances of appellant's alleged

"advocating" of his daughter for employment with the agency

and also negligence in the management of the Summer Employment

Program for 1982.

Appellant filed a petition for appeal with the Board's

Washington, D.C. Regional Office. Following a hearing, the

presiding official issued an initial decision reversing the

agency action. In that decision, the presiding official held,

first, that the agency had failed to establish that

appellant's actions constituted "advocacy" in violation of

5 U.S.C. S§ 2302(b)(7), and 3110, 5 C.F.R. Part 310 and 310

FPM Subchapter 1, and second, that it had failed to prove

the negligence charge.

The agency has filed a timely petition for review

contending that the presiding official erred in finding
that appellant's actions did not constitute advocacy.

Specifically, it argues that the presiding official misinterpreted the relevant statutes and regulations by finding

that appellant did not "advocate" as that item is defined

in the American Heritage Dictionary (Second College Edition)

and not applying the definition of the term contained in the

Office of Personnel Managment (OPM) regulations and the

Federal Personnel Manual.

The Office of the Special Counsel has filed an amicus

brief in which it argues that the presiding official

erroneously defined "advocacy" in the initial decision because

the regulations and the FPM implementing instructions provide

a clear interpretation of the term.

The petition for review is GRANTED.

Appellant, a public official as that term is defined in

5 U.S.C. § 3110, was charged with two specifications of

"advocating" his daughter,!/ Perea Alexander, for a position

with the agency.

The first specification concerned a telephone call that

appellant made to Sylvia Mitchell, Assistant Administrative

Officer, Headquarters, Naval District of Washington (NDW) ,

in June 1982. The presiding official found that although

appellant initiated a conversation concerning employment

opportunities in NDW, it was only after an inquiry from

Ms. Mitchell that appellant indicated his daughter was

looking for employment, and it was Ms. Mitchell who asked

appellant to send over his daughter's SF-171.2/

i/ A daughter is considered a relative under 5 U.S.C.

§ 3110(a) (3) .

See Initial Decision at 4-6. These findings are entitled

to deference since the presiding official had the opportunity

to observe the demeanor and hear the testimony of the

witnesses. Weaver v. Department of the Navy, 2 MSPB 297

(1980) .
The second specification concerns appellant's conduct

following the conversation. Appellant asked his subordinate,

Ms. Tyra Dent, to take his daughter's SF-171 to Ms. Mitchell.

Ms. Dent was the designated Coordinator for the 1982 Summer

Employment Program and as such, was responsible for the hiring

of persons to serve as summer aids within CCPO and the agency

commands that it serviced. However, an activity such as NDW

could request that a specific individual be appointed by ueans

of a "Recruit 52" form to fill one or more of its available

summer positions. After receiving Ms. Alexander's SF-171

from Ms. Dent, Ms. Mitchell determined that a position was

not available in WND and shortly thereafter returned the

SF-171 to Ms. Dent who refiled Ms, Alexander's application.

In the initial decision, the presiding official found

that these actions did not constitute advocacy because the

dictionary definition of "advocacy" is "to speak in favor

of; recommend11 and appellant's conduct did not rise to that

level.

Restrictions on the employment of relatives in the

federal civil service are found in several statutory and

regulatory provisions.A/ Each of these provisions prohibits

a public official from advocating a relative for appointment

or employment in the agency in which the person is employed.

The relationship between a father and daughter is included

in the statutory prohibition. 5 U.S.C. § 3110(a)(3);

Roberts v. United States Postal Service, 11 MSPB 106

(1982).

I/ 5 U.S.C. SS 2302(b)(7); 3110; 5 C.F.R. Part 310.
4

The term "advocate" is not defined by statute. However,

regulations promulgated by OPM£/ do provide a definition and

examples of the term.

Section 310.103 of title 5, Code of Federal Regulations,

provides that "a public official shall not advocate one of

his relatives for appointment, employment, promotion, or

advancement to a position in his agency or in an agency over

which he exercises jurisdiction or control." 5 C.F.R.

§ 310.103(a). This section further states:

For the purpose of this section, a

public official who recommends a

relative, or refers a relative for

consideration by a public official

Standing lower in the chain of command,

for appointment, employment, promotion,

ar advancement, is deemed to have

advocated the appointment, employment,

premotion, or advancement of relative.

(Enrpivasis added.)

5 C.F.R. § 310ol03(c) .

Because the regulations clearly state what actions

constitute advocating, the presiding official erred in

considering appellant's action under the definition of

advocacy contained in th£ dictionary, which limits the

!/ The regulations set forth at 5 C.F.R. §S 310.101-310.103,

although closely related to the nepotism restriction in 5

U.S.C. § 3110, neither derive from nor interpret the statute.

These regulations are promulgated under the general authority

of 5 U.S.C. § 1104, which authorizes the Director of OPM to

prescribe regulations and ensu?£ compliance with the civil

service laws. Except for the emergency exceptions contained

in §§ 310.201-202, OPM has no authority to interpret or to

regulate under 5 U.S.C. § 3110.
definition to recommending. The regulatory «3e';/-tAt'

of the term includes either a recommendation or 6

of the relative for consideration by a subor&irv

Therefore, appellant's behavior must be measured :j iinst

this dual prohibition.I/

This Board cannot find that appellantf<s conversation

with Ms. Mitchell constitutes advocacy under the statute or

regulations. It is clear that Ms. Mitchell was not a subordinate of appellant, nor is there any evidence that

appellant spoke in favor of, recommended, commended, or

endorsed the employment of his daughter by NDW.£/ Even

assuming, arguendo, that appellant's conduct revealed

an interest in securing or facilitating his daughter's

consideration for employment, as arqued by the agency, and

his conduct does constitute referral for consideration, such

conduct does not violate the regulations since Ms. Mitchell

was not lower in the chain of Command.

Similarly, the Board cannot find that appellant's

request that Msa Dent take his daughter's SF-171 to

In its brief, the Office of Special Counsel relies upon

310 FPM § l-3a(2) which expands upon the "referral for consideration" requirement set forth in the regulations. The

FPM, insofar as it includes more than a restatement of

statutory and regulatory requirements, constitutes only the

Office of Personnel Management's official "guidance" to

agencies. See Tuggle v. Consumer Product Safety

Commission, MSPB Docket No. DC03518210356 (March 17, 1984);

Carter v. Department of the Navy, 6 MSPB 92 (1981).

.§/ See Initial Decision at 6.
Ms. Mitchell constituted advocacy. > .vowtjb Ms. Dent was the

coordinator of the- summer program - had hiring authority,

in this instance she was merely arK-.ig in a ;i» iaisterial manner

by taking the application to Ms* i"i .chell, wtrr.> was the public

official considering th? ipplicafJ <-••; . Ms,,. Den. could not

ha"e facilitated the Mr:.'.n;j of appellant*.'; daughter since

the initial determination as to whether there was a position

available in NOW was to be wade by Ms. Mitchell. Therefore,

appellant did not "refer * his daughter "for consideration

by a public official standing lower in the chain of command"1,

as required by the regulation, since the application was not

for Ms. Dent's consideration but rather for Ms. Mitchell's.

Finally, the agency contends that ths presiding

official's findings concerning the negl£<p<nce charge were

incorrect. These arguments constitute luers disagreement

with the factual findings and credibili'v? statements of

the presiding official ^<-' h are entitled to due deference

by the Board. See_ t%e-.\ ^ Department oi the Navy,

2 MSPB 29? (180)*2f

U The agency has also introduced as "new and material

evidence" affidavits of Frank Sharkey and Susan Reider,

to attempt to show that apellant was calling other agency

activities looking for employment for his daughter. The

agency has not made a sufficient showing that this evidence

was unavailable prior to the close of the record and therefore

fails to meet the due diligence requirement of 5 C.F.R

S 1201.115(a). Avansino v. U.S. Postal Service, 3 MSPB

308 (1980). Further, the Board notes that the evidence

would not be relevant since appellant was not charged with

contacting these two officials concerning his daughter's

employment opportunities with the agency.
7

Accordingly, the initial decision is AFFIRMED as MODIFIED

herein. The agency is hereby ORDERED to cancel the suspension

and the reduction >n grade L^_ ^n against appellant Gerald A.

Alexander, Proof, ol compliance with this Order shall be

submitted by t^e agency to the Office or the Secretary of

the Board within twenty (20) days of the date of issuance

of this opinion. Any petition for enforcement of this Order

shall be made to the Washington, D.C. Regional Office in

accordance with 5 C.F.R. § 1201.181 (a).

This is the final order of the Merit Systems Protection

Board in this appeal. 5 C.F.R. § 1201.113(c).

The appellant has the statutory right under 5 U.S.C.

§ 7702fb)(l) to petition the Equal Employment Opportunity

Commission (EEOC) for consideration of the Board's final

decision with respect to claims of prohibited discrimination.

The statute requires at 5 U.S.C. § 7702(b)(l) that such a

petition be filed with the EEOC within thirty (30) days

after notice of this decision.

If the appellant elects not t-o petition the EEOC

for further review, the appellant has the statutory right

under 5 U.S.C. § 7703(b) (2) to file a civil action in an

appropriate United States District Court with respect to such

prohibited discrimination claims. The statute requires at

5 U.S.C. § 7703(b)(2 ) that such a civil action be filed in

a United States District Court not later than thirty (30)

days after the appellant's receipt of this order. In such

an action involving a claim of discrimination based on race,

color, religion, sex, national origin, or a handicapping

condition, the appellant has the statutory right under 42

U.S.C. §§ 2000e5(f) - (k) , and 29 U.S.C. § 794a, to request

representation by a court-appointed lawyer, and to request

waiver of any requiresent of prepayment of fees, costs, or

other security.
8

If the appellant chooses not to pursue the

discrimination issue before the EEOC or a United States

District Court, the appellant has the statutory right under

5 U.S.C. S 7703 (b) (1) to seek judicial review of the Board's

final decision on issues other than prohibited discrimination

before the United States Court of Appeals for the Federal

Circuit, 717 Madison Place, N.W., Washington, D.C. 20439.

The statute requires at 5 U.S.C. S 7703(b)(1) that a petition

for such judicial review be received by the court no later

than thirty (30) days after the appellant's receipt of this

order.

FOR THE BOARD?

Stephen E. Manrose

Wa sh ing ton, D.C. Acting Clerli of the Board