For this charge, an agency is alleging that an employee misused a government-owned, or government-leased vehicle, in violation of 31 U.S.C. §1349(b). 31 U.S.C.§1349(b) provides that “an officer or employee who willfully uses or authorizes the use of a passenger motor vehicle…owned or leased by the United States Government (except for an official, authorized purpose) …shall be suspended without pay by the head of the agency. The officer or employee shall be suspended for at least one month, and when the circumstances warrant, for a longer period or summarily removed from office.”
To sustain this charge, the agency must establish that: (1) the employee operated a government-owned or a government-leased vehicle; and (2) the operation was either with knowledge that such use would be characterized as unofficial or with reckless disregard for whether the use was official.
It is important to note that this is an intent-based charged. Therefore, the Agency must prove that the misuse was “willful.” The Federal Circuit has provided its interpretation of “willful” to mean that “the employee must have had actual knowledge that the use would be characterized as ‘non-official’ or have acted in reckless disregard as to whether the use was for official purposes.” Kimmv. Dept. of Treasury, 61 F.3d at 892. As a result, this charge cannot be proven if the employee’s use was inadvertent or unintentional. The “willfulness” requirement will not be satisfied by proof of poor judgment, if the use was in good faith.
The attorneys at Melville Johnson, P.C. are highly experienced in MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters.