Kimm v. Department Of The Treasury

61 F.3d 888 (1995)


D is a highly-decorated criminal investigator who has served for more than ten years at the Bureau of Alcohol, Tobacco, and Firearms (ATF). D had rules and regulations and a policy that limited the employees’ use of government-owned vehicles. Civilian passengers were permitted if the passenger’s presence was essential for the successful performance of official business. P had driven his son to daycare in his government vehicle one time during November 1992 and on two or three other occasions during the preceding year. P did this because his wife was placed on bed rest due to complications arising from her pregnancy. At the hearing, P testified that his position required him to be 'on call' around the clock, seven-days-a-week, that he was often called out in the middle of the night, and occasionally had to sleep in his vehicle. The vehicle was equipped with weapons and an encrypted radio so that he could be in constant contact with his office. P deviated from the most direct route to and from work by 2.6 miles each way in order to take his son to or from daycare. Taking his own car would have taken a total of approximately 40 minutes, due to heavy commuter traffic. P testified that he believed the agency's regulations allowed him discretion to make a 'minor deviation.' He testified that it was standard practice, for example, to make minor deviations to find a place to eat dinner while on a mission, or to alter one's route to and from the office, if a death threat had been received. He also testified that the agency was lax in the enforcement of its vehicle regulations, and cited a number of incidents that he believed had occurred to support this belief. The Administrative Judge (AJ) found that P did not act with the requisite knowledge or reckless disregard that constituted a nonofficial use. The AJ found that 'his belief that he had discretion to rectify a family emergency and simultaneously maximize the time he was available to perform his agency functions, was a good faith belief, and not in reckless disregard of the agency's regulations.' The AJ found that D did not prove willful misuse within the meaning of § 1349(b). D petitioned the full board for review of the initial decision. The board reversed the initial decision and sustained the suspension. P petitioned for review of the board's final decision.