Sheiman served with the Internal Revenue Service (IRS) as a Senior Appraiser, GS-13, in Honolulu. He apparently worked independently with little supervision. When an anonymous letter accused Sheiman of abusing official time, the Treasury Inspector General for Tax Administration (TIGTA) began an investigation. Some three years later, the agency proposed to remove Sheiman based on two reasons: (1) providing false information on his time and attendance records, supported by 168 specifications, each of which was a date when the investigation found that he had played golf during duty hours over a period of seven years, and (2) providing misleading information on his time and attendance records, supported by 29 specifications, each of which was a date that he was alleged to have played golf when he was supposed to be on sick leave. (Sheiman v. Department of the Treasury (CAFC No. 2022-2045 (nonprecedential) 4/23/24)
The agency deciding official sustained all of the specifications in both reason 1 and 2. He specifically found that each of the charges supported the penalty of removal.
Sheiman appealed to the Merit Systems Protection Board (MSPB). The administrative judge (AJ) held a hearing and initially decided that Reason 1 was not sustained by the agency, that only 8 of the 29 specifications supported Reason 2 were sustained, and that Sheiman’s penalty should be mitigated from removal to a 30-day suspension.
As to the first reason, the AJ, based on all the evidence and Sheiman’s explanations, stated, “I find the agency did not show he intended to defraud or deceive the government when he completed his time and attendance records.” (p. 4)
That left Reason 2. The AJ sustained only those specifications where she found that Sheiman took sick leave on days when he was not ill or going to a doctor, therefore he “knowingly provided inaccurate information on his time and attendance records….[and he] knew or should have known that he needed to take annual leave for recreational activities or a sport such as playing golf.” (p. 4)
Finding that “the penalty of removal was not within the parameters of reasonableness,” the AJ pointed to strong mitigating factors, specifically the potential for rehabilitation. (p. 4) She further pointed to Sheiman’s remorse, his acknowledgement that he had made a mistake, and that once confronted by the TIGTA, he sat down with his supervisor for instruction on how to correctly do his time and attendance reporting., and from that point he correctly submitted his reports. Having thus concluded removal was “outside the bounds of reasonableness,” the AJ mitigated his penalty to a 30-day suspension, “the maximum reasonable penalty under the circumstances of this case.” (p. 5)
Both the agency and Sheiman petitioned the full MSPB for review. The agency argued it had proved Reason 1, contrary to the AJ’s findings, and that the 8 sustained specifications were sufficient to sustain Reason 2. Therefore the AJ’s mitigation of the penalty was in error. Mr. Sheiman argued that the AJ erred in sustaining Reason 2.
The full MSPB held that, contrary to the agency’s argument on Reason 1, the agency had in fact failed to prove that charge and the Board sustained the AJ’s finding as to Reason 1. Specifically the Board agreed with the AJ that the agency failed to prove that Sheiman “intended to deceive or defraud the Government when he completed his time and attendance records.” (P. 6)
As to Reason 2, the Board sustained the AJ’s finding that only 8 of the 29 specifications were proved. So far, so good for Mr. Sheiman. However, the Board found that mitigating the penalty to a 30 day suspension was error by the AJ. The Board did not agree that there was potential for rehabilitation: while he was remorseful, the AJ did not weigh all the relevant evidence on whether he could be rehabilitated, “and that therefore this finding was not entitled to deference.” (p. 7)
First of all, Sheiman only fessed up to his errors after the TIGTA confronted him, that his “admissions” only related to Reason 1, and as to Reason 2, Sheiman had “never owned up to his misuse of sick leave or expressed any remorse for his lack of candor in the matter.” (p. 8) The Board called Sheiman’s “lack of candor” on the sick leave “a serious offense striking at the heart of the employer-employee relationship.” (P. 8) The Board went on to note that Sheiman “worked remotely,” “was in a position of public trust,” and “had contact with the public,” all considerations that “led the deciding official to lose trust” in him. (p. 8)
Most importantly, the full Board found that the deciding official had specifically concluded that either Reason 1 or Reason 2, if sustained, supported a penalty of removal, and that removal was within the agency’s Guide to Penalty Determination. (p. 8)
The Board therefore disagreed with the AJ’s mitigation of the penalty and reinstated Sheiman’s removal.
Sheiman took his appeal to the federal appeals court; however that court has now upheld the MSPB and declined to upset its decision. The court brushed aside Sheiman’s argument that removal was not authorized by the agency’s penalty guide, noting that this was a “guide” only quoting this language from the document: “The range off penalties should serve as a guide ONLY, not a rigid standard. Deviations…are permissible…” (p. 11)
In short, Mr. Sheiman remains removed from his position. How can I resist saying it? He at least now has plenty of time for golf.
