Appealed from Merit Systems Protection Board.
Smith, Newman, and Bissell, Circuit Judges.
John G. Hagmeyer (Hagmeyer) appeals from the decision of the Merit Systems Protection Board (MSPB or Board), Docket No. DC07528310114, affirming his removal from the Department of the Treasury, U.S. Secret Service (agency). We reverse and remand.
Hagmeyer was employed by the agency for seven years and held the position of sergeant in the Office of Protective Operations, Uniformed Division. On June 21, 1982, the agency proposed his removal for the following reasons:
1. Encouraging an applicant to submit an inaccurate official form;
2. The appearance of conflict of interest by socializing with applicants;
3. The appearance of using the authority of his position for personal benefit;
4. Insubordinate refusal to comply with a directive from authorized Secret Service officials; and
5. Falsification of fact in response to questioning by authorized Secret Service officers.
He was removed from Federal service effective October 26, 1982.
Prior to the hearing before the Board's presiding official the agency dropped charges 2 through 5 listed above. Consequently, the evidence received at the hearing was confined to the first charge. The agency contends that while Hagmeyer was serving as recruiting sergeant during September 1981, he instructed an applicant for a Uniformed Division Officer position to falsify her response to a question concerning her use of marijuana on an investigative form. The question at issue was number 44 on agency form 86A which asked the applicant to state whether she had ever used marijuana. Accordingly, she had originally answered the question in the affirmative before changing the answer to the negative. Agency special agents learned of this incident during a follow-up interview with the applicant. The Secret Service then conducted an extensive investigation between January and March 1982. In Spring 1982, Hagmeyer was transferred from his position as recruiting sergeant to the White House protective service.
The presiding official after six days of hearing affirmed the agency's removal. While recognizing the penalty of removal seemed severe for what she described as Hagmeyer's "immature act," she determined that the agency had not exceeded the bounds of ...