Right to representation

The Court of Appeals for the Federal Circuit sent a case back to the Merit Systems Protection Board regarding a fed who was fired by his agency for selling government property to a family member.

The case in point involved Leon Modrowski, who was employed as a GS-12 senior realty specialist with the Department of Veterans Affairs' regional office in Chicago. Modrowski's duties involved processing sales of VA-owned real estate. Modrowski participated in the sale of two agency-owned houses to his son-in-law, Ronald Perzanowski, by authorizing the payment of brokerage fees for both sales. The VA prohibits sales of agency property to close family members.

In early 1997, VA officials initiated an investigation of Modrowski for suspected participation in criminal acts, and in the course of the investigation, they stumbled across the two sales. Modrowski had a small role in the sale of the properties to his son-in-law his only official duty was to authorize the payment of brokerage fees. Still, Modrowski violated VA regulations, and the agency decided to punish him for it.

On July 9, 1997, Ronald Rogala, a VA loan guaranty officer, confronted Modrowski concerning the transactions, but Modrowski did not respond to the accusations. Two days later, Rogala again questioned Modrowski, who was then accompanied by a union representative. Modrowski refused to answerRogala's questions and invoked the Fifth Amendment.

The VA referred the matter to the U.S. Attorneys, who declined to prosecute, so the case was handled internally. Modrowski received a letter from Rogala telling him that he would be granted "immunity," so there was no need to invoke the Fifth Amendment. The letter said that if he didn't cooperate, he'd be fired and he was.

The VA fired Modrowski because he refused to cooperate in the interrogations conducted on July 31 and Aug. 6, 1997. Modrowski received Rogala's letter on July 30 and had questions regarding the scope of the immunity described in that letter. The next day, he met with Rogala and refused to respond to his questions because he "had no idea of the scope of the immunity." Modrowski arranged to meet with his attorney the following week on August 8, but the VA fired him two days before that occurred. The MSPB sided with the VA dismissal. Fortunately, the Court of Appeals didn't agree.

The court's deciding official in this case testified that the legal significance of Rogala's letter was unclear. The official said it would be reasonable "to give the guy two days to get legal counsel so he can answer the questions."

The court ruled that the VA was arbitrary and capricious in denying Modrowski the opportunity to consult with his attorney. What I'd like to know is how the MSPB arrived at the conclusion that Modrowski wasn't entitled to consult an attorney. The case was sent back to the MSPB for reconsideration.

Zall is a retired federal employee who since 1987 has written the Bureaucratuscolumn for Federal Computer Week.


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