UNITED STATES OF
MERIT SYSTEMS PROTECTION BOARD
63 M.S.P.R. 86
Docket Number PH-0752-94-0014-I-1
JULIUS WEST, JR., Appellant,
DEPARTMENT OF THE NAVY, Agency.
Date: June 7,1994
David B. Schultz, Esquire, Virginia Beach, Virginia, for the appellant.
John R. Schlegel, Norfolk, Virginia, for the agency.
Ben L. Erdreich,
Jessica L. Parks, Vice Chairman
Antonio C. Amador, Member
Member Amador dissents without opinion.
OPINION AND ORDER
The appellant has petitioned for review of an initial decision that sustained his removal. For the reasons set forth below, we GRANT the petition under 5 U.S.C. S 7701(e) and VACATE the initial decision, REMANDING the appeal to the regional office for further adjudication consistent with the Opinion and Order.
The appellant petitioned for appeal from the agency's action removing him from the position of Electrician, WG-10, at the Navy Public Works Center, Norfolk, Virginia. See Initial Appeal File (IAF), Tab 1; Tab 4, Subtab 4a. The agency based the action on its allegation that the appellant's security clearance had been revoked and that he had therefore failed to meet a condition of his employment. See IAF, Tab 4, Subtab 4c. The appellant raised as issues whether his position required a security clearance; whether the agency had a duty to consider reassignment; whether removal promoted the efficiency of the service; and whether the penalty was reasonable. See IAF, Tab 6. He also requested five witnesses, who were
expected to testify that a security clearance is not required for appellant's position; that they have supervised appellant for varying degrees of time and never had occasion to assign him any duty which required unescorted access to classified areas; that there are a sufficient number of electricians with security clearance.
See id. At a prehearing conference, the administrative judge excluded from consideration the issue of whether the appellant's position required a security clearance, stating that it was not relevant and material under applicable Board precedent; he apparently disallowed the appellant's witnesses on the issue for the same reason. See IAF, Tab 8. The appellant took exception to these rulings. See id. He also requested certification to the Board for an interlocutory appeal of the administrative judge's rejection of testimony on the issue of whether his position required a security clearance; the administrative judge denied the request. See IAF, Tabs 12, 13.
At the hearing, the administrative judge questioned the deciding official (Mr. Peterson) concerning whether the appellant's position required a security clearance. The appellant objected, arguing that the administrative judge had disallowed this issue as well as witnesses on the issue at the pre-hearing conference. The administrative judge stated that he had ruled that the appellant could not examine the agency's reasons for imposing a security clearance requirement on his position, asserting that his question was merely intended to elicit whether a security clearance was actually required for the position. The appellant disagreed with this characterization of the administrative judge's ruling at the pre-hearing conference, and the administrative judge noted his objection to that characterization. See Hearing Tape (H.T.), Side IA, Testimony of Frank Peterson. The appellant again proffered the testimony of his five witnesses on the issue of whether his position required a security clearance but was not permitted to examine them; his objection to this ruling was noted for the record. See H.T., Side 1B.
After the hearing, the administrative judge sustained the appellant's removal. See Initial Decision (I.D.) at 1-5. He found based on Mr. Peterson's testimony that the appellant's position required a security clearance and that the appellant's security clearance had been revoked. See I.D. at 2-3. He also concluded that the appellant had been afforded minimum due process and that the appellant had no right to be reassigned to a position for which no security clearance was required. See I.D. at 3-4. He recognized the appellant's contention that his position did not require a security clearance but stated that the Board lacked authority to review the agency's reasons for imposing a security clearance requirement. See id. at 4. Finally, he concluded that the action promoted the efficiency of the service and that the removal penalty had been properly imposed. See id. at 5.
On petition for review, the appellant again challenges the administrative judge's rulings at the prehearing conference and the hearing; he also argues that the administrative judge erred in the initial decision in his treatment of the appellant's claim that his position did not require a security clearance. See Petition for Review File (PFRF), Tab 1. The agency has responded in opposition to the appellant's petition for review. See PFRF, Tab 3.
It is well settled that the Board lacks authority to review the agency's reasons for imposing a security clearance requirement as a condition of employment for a position. See Mitchell v. Department of the Navy, 43 M.S.P.R. 691, 693-94 (1990). In reviewing an adverse action based on the revocation of a security clearance, however, the Board may inquire whether the agency has established that a security clearance was required for the position in question. See, e.g., Lassiter v. Department of the Navy, 3C M.S.P.R. 23, 24-25 (1986).
The administrative judge erred in excluding the testimony proffered by the appellant on the issue of whether his position required a security clearance. As quoted above, the proffer that he made below (before and during the pre-hearing conference, and again during the hearing) indicated that the appellant wished to explore whether the agency would have been justified in imposing a security clearance requirement on his position; by its explicit terms, however, the proffer also shows that the appellant resolved to inquire whether the agency had actually required him to have a security clearance as a condition of employment for his position. See IAF, Tab 6. The pre-hearing conference memorandum clearly states that the appellant raised the issue of whether his position required a security clearance and that the administrative judge excluded testimony of the appellant's witnesses on the issue as not relevant or material; it does not state that the appellant wished to explore the reasons for the imposition of such a requirement. See IAF, Tab 8.
The record before us thus demonstrates that the appellant's argument on the issue of a security clearance requirement did not simply address the merits of such a requirement but also disputed that his position was actually subject to one. The administrative judge therefore erred by not accurately summarizing the appellant's argument here. See H.T., Side 1A, and I.D. at 4; Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980). And, as noted above, the Board may determine whether his position was subject to a security clearance requirement. See Lassiter, 30 M.S.P.R. at 23-24. The administrative judge thus erred by excluding testimony proffered to help resolve this issue. See Barrett v. Department of the Interior, 54 M.S.P.R. 356, 363-64 (1992) (it is error to exclude probative testimony on disputed issues).
Remand is appropriate here, moreover, because the record is not sufficiently developed to dispose of the issue. As discussed above, the administrative judge found based on the testimony of Mr. Peterson that the appellant's position required a security clearance. See I.D. at 2 Mr. Peterson initially testified that the appellant's position required a security clearance because his job description designated the position as non-critical sensitive. See H.T., Side 1A. He admitted, however, that the job description offered by the agency to establish that the appellant's position was non-critical sensitive was not the job description under which he was working at the time of his removal. See id.; IAF, Tab 4, Subtabs 1, 4a, 4t. Mr. Peterson reported that he had been told by an agency personnel specialist that the appellants position was non-critical sensitive but that he did not know whether this was true. See H.T., Side 1A. He also conceded that not all Electrician positions at the Public Works Center required their incumbents to hold security clearances. See id.
Similarly, an agency security officer asserted that the appellant's position must have required a security clearance because the agency would not have granted him one otherwise. See H.T., Side 1H, Testimony of June Jones. She admitted, however, that she had no personal knowledge of whether this was the case. See id. The evidence of record indicates that the agency granted the appellant a security clearance in April 1987 because the duties of his job at the Recurring Work Division of the Public Works Center required him to have access to classified matter. See IAF, Tab 4, Subtab 4u, 4w. Again, however, the appellant was not working at the Recurring Work Division when he was removed in October 1993, and the job description number listed on the request for a security clearance is not the same as the one under which the appellant was working at the time of his removal. See Id., Subtabs 4a, 4u. As the record now stands, then, we cannot determine whether the position the appellant was working in at the time of his removal was subject to a security clearance requirement. In order to resolve the issue, we remand the appeal to the regional office so that additional evidence and testimony may be taken.
For the Board
Robert E. Taylor, Clerk