POLITZ, Circuit Judge:
This appeal arises pursuant to the judicial review provisions of the Civil Service Reform
On November 28, 1979, Dimas Bonet was fired from the Postal Service after serving 21 years with that department (and a total 24 years with the federal government). At the time of his discharge, Bonet was manager of an El Paso, Texas, post office branch station.
The Postal Service instituted an investigation of Bonet following the August 11, 1979, publication in an El Paso newspaper of the names of 22 people, including Bonet, who were indicted by an El Paso county grand jury. Bonet was charged with indecency with a child. The indictment was based upon an alleged indecent act by Bonet involving his eleven-year-old stepdaughter. On September 7, 1979, the indictment against Bonet was dismissed, due to the unwillingness of the mother to prosecute and a family reconciliation.
The Postal Service secured a copy of the district attorney's file and, on October 25, 1979, issued Bonet a notice of proposed removal. Simultaneously, Bonet was suspended, effective October 29, 1979. The Postal Service's proposed removal action was based on: (1) the charge against Bonet of indecency with a child, and (2) other alleged acts of indecency committed by Bonet said to constitute criminal, dishonest, notoriously disgraceful, and immoral conduct. Bonet denied the charges. On November 8, 1979, the Postal Service removed Bonet on the basis of the two charges listed in the notice of proposed removal.
Bonet appealed the Postal Service decision to the Merit Systems Protection Board, which affirmed the agency action, finding that both charges were supported by a preponderance of the evidence.
On appeal, Bonet contends that no findings were made and no evidence exists in the record to support the conclusion that his discharge will promote the efficiency of the service. Accordingly, Bonet argues, the Board's decision was arbitrary, capricious, and an abuse of discretion, and, therefore, must be reversed.
The Statutory Provisions
The Civil Service Reform Act of 1978, Pub.L.No. 95-454, 92 Stat. 1111 (codified in scattered sections of 5 U.S.C.), retains the same measure of protection for the federal civilian employee that was guaranteed by statute
Accordingly, in an agency removal action based on employee misconduct, the agency must make two determinations: (1) that the employee, in fact, committed the alleged misconduct; and (2) that the employee's discharge, based on this misconduct, will promote the efficiency of the service. Cooper v. United States, 639 F.2d 727 (Ct.Cl. 1980); Phillips v. Bergland, 586 F.2d 1007 (4th Cir. 1978). With regard to the latter determination, the statutory scheme anticipates that the agency will establish what has been termed a "vital nexus" between the misconduct — whether it be criminal, immoral, or both — and the efficiency of the service. See Cooper v. United States, 639 F.2d at 729; Phillips v. Bergland, 586 F.2d at 1011; Young v. Hampton, 568 F.2d 1253 (7th Cir. 1977); Doe v. Hampton, 566 F.2d 265 (D.C.Cir.1977).
The Standard of Judicial Review
With the enactment of the civil service reform legislation in 1978, Congress supplied the courts of appeals with a specific standard of review applicable in federal employee appeals from adverse agency action. The reviewing court is directed to set aside any agency action, findings, or conclusions found to be:
5 U.S.C. § 7703(c).
The essence of Bonet's complaint on appeal is that the agency decision is arbitrary and capricious because it is not based on specific findings of a "nexus" between the charged misconduct and the efficiency of
We find no evidence exists in the administrative record to support the conclusion that Bonet's removal will promote the efficiency of the service. The administrative finding rests on the assumption that the retention of an employee who commits sexually indecent conduct with minors, regardless of any circumstances and without regard to whether this conduct is a matter of public knowledge or not, necessarily reflects adversely on the image of the service, and the further assumption that sanctions against an employee who violates a general standard of off-duty conduct expected of employees necessarily promotes the efficiency of the service.
The Agency Record and the Administrative Findings
Bonet's discharge is based upon his off-duty conduct constituting a violation of section 661.53 of the Code of Ethical Conduct, Employee and Labor Relations Manual of the United States Postal Service. Section 661.53, entitled "Unacceptable Conduct," provides:
The formal notice of proposed discharge lists two charges, alleging five sexually indecent acts Bonet committed with his stepdaughters in his home. The notice concludes: "Conduct of this nature reflects unfavorably upon the image of the U. S. Postal Service and flagrantly violates the standards of conduct prescribed for — and required of — all employees."
The agency discharge, affirmed by the Board, relied upon the following evidentiary showings: (a) the copy of a newspaper account of 22 indictments by the county grand jury, one of which named Bonet, gave his address and noted the offense ("indecency with a child"), without identifying him as a postal employee; and (b) two in-house investigative memoranda prepared by a postal inspector identifying and attaching the district attorney's file, accompanied by a copy of a Texas statute indicating that the conduct charged was criminal. The memoranda noted that the indictment had been dismissed, primarily at the insistence of the mother of the children, since a reconciliation had been effected. The agency report in support of the dismissal acknowledged a communication from the Texas Department of Human Resources advising that the state agency was not filing any charges in connection with the allegations of sexual misconduct and commending Bonet and his family for the initiative exercised by them in resolving their problems.
Finding the sexual misconduct proved by the affidavits, the Postal Service discharged Bonet for gross immorality. The agency acknowledged that Bonet was "a good manager," but stated:
(Emphasis in original.)
At this point, we note the following: (1) The agency made no finding, nor was there any evidentiary showing that the private immoral conduct adversely affected the employee in the performance of its function; (2) the indictment for indecent conduct with a minor is shown to have been dismissed; and (3) so far as the record shows, the private sexual misconduct in Bonet's home is known to the employing authority only because of an in-house postal investigation. A dismissed indictment as to one incident, without more, does not show public knowledge of the employee's sexual misconduct or that it is "notorious."
The Administrative Review
On review of the agency's discharge of Bonet, the Merit Systems Protection Board found the substantive misconduct to be proved adequately and found that it constituted cause for discharge, being conduct in violation of section 661.53, the code of ethical conduct for employees. As noted, this section prohibits any employee from engaging "in criminal, dishonest, notoriously disgraceful or immoral conduct, or other conduct prejudicial to the Postal Service." (Emphasis added.) For purposes of argument, the Board accepted the employee's contention that the conduct was not "criminal." It held, however, that the conduct was "disgraceful," "immoral," and "notorious" as (in the Board's words) "evidenced by the newspaper item which identified the appellant as having been charged with the offense of Indecency with a Child." (Emphasis added.)
We have already stated that a dismissed indictment does not, without more, constitute notorious knowledge of conduct merely charged by an indictment. Nor are we persuaded of the correctness of the Board's unsupported assumption that because Bonet was the manager of a large urban branch office, "[t]herefore he was known as a Postal employee by a large segment of the population." (Emphasis added.) Aside from these deficiencies in the findings, the Board fell into clear error in concluding — on the showing made — that the discharge was shown to "promote the efficiency of the service," a statutory prerequisite for disciplinary action against a protected employee.
The Efficiency of the Service Determination
Before the Board and this court, the Postal Service argued that to maintain Bonet as a branch manager of an important postal station, in light of public knowledge of his indictment for indecency with a child, could conceivably undermine the public confidence and trust in postal employees necessary for the efficient collection and delivery of the mails. Based upon this reasoning
The agency cannot satisfy the statutory requirement that an employee's removal promote the efficiency of the service by use of unsupported, general assertions that such action is necessary to maintain the public confidence. To permit otherwise would be to render nugatory the protections afforded the federal employee by the imposition
Nor is it sufficient that the agency rely on internal regulations proscribing in general certain employee conduct (e. g., "immoral" or "disgraceful") as proof of the required nexus. The Postal Service's reliance on its code of ethical conduct in this respect amounts to a presumed or per se nexus. The government maintains that a per se nexus is appropriate when the employee engages in conduct like that charged to Bonet. While we agree that the off-duty conduct attributed to Bonet is indeed reprehensible — and we, by no means, intend to mitigate or condone such conduct by our disposition of the instant appeal, nor to intimate upon proper showing of nexus that it could not be cause for disciplinary action — we cannot agree that the agency is thereby relieved of its statutory duty to determine the requisite connection between the employee misconduct and the possible undermining of public confidence.
Despite our reflective revulsion for the type of off-duty misconduct in question, whether resulting from a now-cured mental disability or not, the 1978 Act does not permit this court nor an employing agency to characterize off-duty conduct as so obnoxious as to show, per se, a nexus between it and the efficiency of the service. The 1978 Act prohibits the discharge of a federal employee for conduct that does not adversely affect the performance of that employee or his co-employees, 5 U.S.C. § 2302(b)(10).
These provisions clearly signal a legislative intent that the agency must demonstrate by sufficient evidence that the off-duty misconduct, upon which the disciplinary action is founded, adversely affects the performance of the duties of the employee or of the agency. We further conclude, in light of the statutory requirements, that the reviewing authority may not place upon the employee, as the Board did, the burden of showing that his continued employment will not affect the efficiency of the service. The Board may not shift the burden of proof by presumption or application of the per se rule.
Those pre-Act cases recognizing that certain employee misconduct on its face establishes the requisite nexus can generally be distinguished as involving work-related activities easily identifiable with and directly connected to employee performance and agency efficiency. Thus, the following misconduct has been considered to have a bearing "on its face" on the efficiency of the service: insubordination,
However, when the employee misconduct is off-duty and non-work related, even before the 1978 Act, the courts have been generally unwilling to presume that the discharge will promote the efficiency of the service.
In the instant case, the Postal Service admitted that Bonet's employment record was satisfactory throughout his 21 year tenure and that he was considered a good station manager. The agency considered that Bonet's work record was not at issue. Rather, the issue was whether Bonet's private immoral conduct was unacceptable conduct for a postal employee. We agree that Bonet's misconduct may be unacceptable for a postal employee, or at least for a visible management position. However, it can only be the basis for discharge if the agency proves by adequate evidence that the conduct adversely affects the efficiency of the postal service. In the absence of any attempt on the part of the agency to prove any actual nexus between the misconduct and the position of employment, we cannot uphold the decision to discharge.
We must set aside the Board's affirmance of the agency's discharge of Bonet. The conclusory findings do not support the determination that his discharge will promote the efficiency of the service. The record is devoid of proof that Bonet's continued employment is detrimental to the public confidence and trust in the Postal Service or in its employees. Our decision rests partially on the basis of the 1978 legislation apparently not noted as applicable by either the employee or the agency in the prior proceedings. Under these circumstances, we deem it appropriate to remand this cause to the Board, with leave to remand to the agency, if it so chooses, for further proceedings consistent with this opinion.
REVERSED and REMANDED.
5 C.F.R. § 731.202(a).
At least one circuit had rejected the substantial evidence element of the pre-Act majority review standard. See Young v. Hampton, 568 F.2d 1253 (7th Cir. 1977); Wroblaski v. Hampton, 528 F.2d 852 (7th Cir. 1976).
In enacting this 1980 provision, Congress was specifically concerned that disciplinary action not be directed against a protected employee for off-duty misconduct unless it was related to the employee's or the agency's performance of duty. See House Conference Report No. 95-1717, 95th Cong.2d Sess., reprinted in  U.S.Code Cong. & Ad.News 2723, 2864. Entitled "Conduct Unrelated to Job Performance," the report states:
The only opinion from this circuit which might be read to support the government's position, Anonymous v. Macy, 398 F.2d 317 (5th Cir. 1968), is distinguishable on the basis of the standard of judicial review then applied by the reviewing court. The court upheld the discharge of a postal employee charged with engaging in homosexual acts, despite counsel's argument that the employee's conduct was private and, therefore, did not affect the efficiency of the service. Significantly, the court limited its review of the agency decision to a determination of whether it was reached in compliance with procedural requisites. Since the court refused to examine the merits of the decision — that is, whether the agency properly concluded that the employee's removal would promote the efficiency of the service — it does not support the proposition that certain off-duty conduct will support a per se nexus.