Little v. Department of Transportation (Lawyers Weekly No. 040-002-16, 11 pp.) (Fred Morrison, S. ALJ) 16 OSP 05294
Holding: Although petitioner’s job with respondent required petitioner to inspect car dealerships, and although as part of petitioner’s sporadic, unpaid work for his wife’s fire extinguisher company he serviced fire extinguishers at those same dealerships, considering petitioner’s nearly 27 years of very satisfactory service to respondent, respondent did not have just cause to terminate petitioner’s employment.
Petitioner shall be reinstated with the understanding that he have no secondary employment going forward involving his wife’s business and businesses which are regulated by respondent. Petitioner is also awarded back pay, benefits, and attorney’s fees.
Petitioner’s servicing of fire extinguishers for his wife’s company, Little Fire Extinguisher, LLC (LFE), did not constitute “gainful off-duty employment” as that term is used in The Division of Motor Vehicles License and Theft Bureau Policy Manual Directive No. 2.03 – Secondary Employment under the stipulated facts of this case. Petitioner’s servicing of fire extinguishers for LFE in car dealerships over which he had regulatory oversight did not create an actual conflict of interest with his responsibilities as a License and Theft Bureau officer under the facts of this case.
The facts of this case show that petitioner did not willfully violate the DMV Secondary Employment Directive. Petitioner has never been an employee, officer, or manager of LFE; has never received any direct compensation from LFE; and had no set duties or schedule to assist his wife with the LFE business.
While DOT ethics policy provides that “[a]n appearance of a conflict of interest exists when a reasonable person would conclude from the circumstances … that the employee’s ability … is compromised by personal interest,” the policy does not provide that an appearance of a conflict of interest exists when a person could conclude the existence of a compromised ability.
This case requires balancing petitioner’s exemplary work performance career against the conduct in question. Any reasonable weighing of this balance would determine that equity and fairness would not be served by dismissing petitioner.
Petitioner sought and was approved for secondary employment as a fireman in his local community. A local fireman helping his teacher-wife by servicing fire extinguishers, with no findings that it affected the performance of his DMV duties, did not constitute serious/substantial misconduct justifying dismissal.
Petitioner is reinstated with back pay and benefits.