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Modrowski v. Department of Veterans Affairs

Court affirmed charges that employee violated conflict of interest rules by participating in the sale of agency-owned property to his son-in-law and that he knowingly concealed information from the agency regarding the sale; however, case remanded because employee was improperly denied an adequate opportunity to consult with his lawyer before either answering questions or being removed.

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Appealed from: Merit Systems Protection Board

This is a federal employment case. Leon Modrowski petitions for review of the June 24, 1999 decision of the Merit Systems Protection Board (“Board”) affirming the decision of the Department of Veterans Affairs (“DVA,” or “agency”) to remove him from federal service. Modrowski v. DVA, No. CH-0752-98-0126-I-1 (MSPB June 24, 1999). The Board’s decision became final on March 16, 2000 upon the Board’s denial of Modrowski’s petition for review. Modrowski filed a timely petition for review with this court under 5 U.S.C. � 7703 (1994), and we have jurisdiction pursuant to 28 U.S.C. � 1295(a)(9) (1994). We heard oral argument in this appeal on May 10, 2001. We affirm the Board’s decision to sustain two charges: (1) that Modrowski violated conflict of interest rules by participating in the sale of agency-owned property to his son-in-law, and (2) that he knowingly concealed such information from the agency, in violation of agency rules of conduct for employees. However, because we conclude that Modrowski was improperly denied an adequate opportunity to consult with his lawyer about the effective scope of a purported grant of prosecutorial immunity before being compelled to answer questions or be removed, we reverse the Board’s decision sustaining the third charge: refusal to cooperate in the agency’s investigation. Because it is unclear what penalty would have been imposed for only the two charges here affirmed, we vacate the Board’s decision sustaining his removal. Accordingly, we affirm-in-part, reverse-in-part, vacate-in-part, and remand for further proceedings.

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