Appeal from the Merit Systems Protection Board.
Bennett, Miller, and Smith, Circuit Judges.
This is an appeal of the final order of the Merit Systems Protection Board (MSPB), No. NY 07528210194 (January 7, 1983), sustaining the Department of Housing and Urban Development (HUD) in removing petitioner, Ruby Weston, from her position as an equal opportunity specialist. We affirm.
Ms. Weston was first employed with HUD as a realty specialist in its New York Area Office from 1974 to 1977 and was then transferred to its Newark Area Office to serve as an equal opportunity specialist. Subsequently, HUD received information from the State of New York tending to show that her son was the actual buyer of real property on Pilling Street in Brooklyn, New York, sold by HUD when she was serving as a realty specialist exercising certain responsibilities toward the property and, further, that she subsequently received and endorsed a check from an insurance company in settlement of a claim for fire damage to the property. Richard J. Scott of the Office of the Inspector General of HUD commenced a criminal investigation into this possible conflict of interest by interviewing Ms. Weston on January 23, 1979. He informed her of the pending investigation and her rights under the law, including the right to remain silent and to have the advice of an attorney. She declined to sign a statement setting forth the matters discussed.
Thereafter, efforts to continue the interview with or without her attorney were unsuccessful. On October 20, 1980, Ms. Weston confirmed in person her refusal to continue the interview, and the matter was submitted for review by the United States Attorney, who declined prosecution.
On February 25, 1981, Ms. Weston and her attorney, Michelle Patterson, attended a meeting with Mr. Scott and HUD Acting Regional Inspector General, Earl F. O'Hara. They were given a copy of the statement below to follow as it was read aloud by Mr. O'Hara:
Before we ask you any questions you must understand your rights and your responsibilities as an employee of the Department of HUD.
The purpose of this interview is to obtain your responses to questions concerning possible violations of the HUD Standards of Conduct (24 Code of Federal Regulations Part O, Subpart B, 0.735-202(a)(b)(c)(d)(f); 0.735-204(a)(1)(4)(5)(6)(7)(8)(d); 0.735-205(a)(8)(b)(1); 0.735-210(b)) with respect to the purchase of the HUD-owned property located at 1 Pilling Street, Brooklyn, New York, during 1976 and your outside employment as they relate to your official duties.
You are advised that the United States attorney has declined criminal prosecution of you in the above matter. This is purely an administrative inquiry. You have all the rights and privileges, including the right to remain silent and the right to be represented by legal counsel, guaranteed by the Constitution of the United States, although, since you have a duty as an employee of HUD to answer questions concerning your employment, your failure to answer relevant and material questions, as they relate to your official duties, may cause you to be subjected to disciplinary action, including possible removal by the Department of HUD.
Any information or evidence you furnish in response to questions propounded to you during this interview, or any information or evidence which is gained by reason of your answer, may not be used against you in criminal proceedings; however, it may be used against you administratively.
It is significant that Ms. Weston was thus informed that (1) criminal prosecution against her had been declined by the United States Attorney, (2) no information gained from the interview could be used against her in a criminal proceeding, and (3) her failure to cooperate could subject her as a HUD employee to disciplinary action, specifically including removal from employment.
Ms. Weston refused to sign a form containing the above statement as an acknowledgment that it had been read to her. She requested until March 2, 1981, to consider whether to proceed with the interview. On that date she informed Mr. O'Hara that, based on the advice of her counsel, she would not participate further.
The removal of Ms. Weston for refusing to cooperate in an agency investigation (and other charges related to her abuse of an alleged commission as a notary public, which are not at issue here) was proposed on September 16, 1981, in ...