Personal use of an undeliverable coupon by a mail delivery contractor violated postal regulations but did not justify the default termination of her contract. The particular post office had allowed others in the office to use such undeliverable items, though that local practice violated postal regulations. Although the Postal Service Board of Contract of Contract Appeals (PSBCA) decided the case in the contractor’s favor, one judge dissented and believed the termination was justifiable. See Laura K. McNew, PSBCA No. 6286, April 23, 2012.
For 14 years, Laura McNew held a Highway Contract Route (HCR) contract to deliver mail along a route originating at the Bayfield, Colorado Post Office. In performing the contract, any undeliverable mail was to be returned to the post office. Some undeliverable mail could be forwarded to a new address and some could be returned to sender. But other undeliverable mail was not entitled to forwarding or return service. This mail, known as Undeliverable Bulk Business Mail (UBBM), was to be returned to and disposed of at the post office.
The Bayfield Post Office had containers in the work area in which such UBBM items were to be deposited. These same containers were also used for disposal of general trash.
In practice, not all UBBM was returned to the post office and disposed of as trash. The Postmaster allowed undeliverable promotional items, such as pens, to be used in the post office by postal employees and contractors instead of being trashed. On one occasion, UBBM that contained one dollar bills were opened and the money turned over to the Postmaster. Perishable fruit shipments that were undeliverable and not returnable were consumed by those working in the office.
McNew and the newly appointed Postmaster did not get along. McNew believed the Postmaster wanted to replace her and install another contractor on her route. McNew also signed a petition alleging poor management by the Postmaster and seeking her removal.
The $10 coupon
Around this time, McNew returned to the post office with a UBBM envelope addressed to a customer who had moved and no longer received mail on her route. The envelope was from True Value Hardware and stated “valuable coupon inside.” Instead of putting the envelope in the UBBM/trash bin, McNew opened it and removed the $10 coupon it contained.
The coupon was a rewards certificate issued to a specific person. When McNew tried to redeem it, the store clerk – who knew the intended recipient – refused to let her do so. Eventually, word got back to the Postmaster that McNew had taken a piece of customer mail. The Postmaster contacted the contracting officer, who in turn contacted the USPS Office of Inspector General (OIG).
The OIG commenced an investigation and obtained a written statement from McNew. In her statement, McNew admitted that she knew what she had done was “wrong at the time and I shouldn’t have done it.” [Note: It’s almost always a bad idea to provide a written statement during a surprise OIG investigation. You can provide one at a later time, if you wish to do so.]
The OIG’s report to the contracting officer failed to mention that the practice of the Bayfield Post Office was to allow employees and contractors to use UBBM promotional items. The PSBCA decision doesn’t say why this important fact was left out of the report. In any case, the contracting officer terminated McNew’s contract for default, and she appealed the action to the PSBCA.
The PSBCA’s decision
The Postal Service contended that by taking the mail, McNew failed to perform the services required by the contract and failed to properly account for the mail. Further, the Postal Service contended that her conduct demonstrated she was not reliable, trustworthy, and of good character.
The PSBCA agreed that McNew’s opening of the envelope and taking the coupon was an unauthorized taking of the mail and a serious breach of the duty to deliver mail “with certainty, celerity and security.” Such a breach can warrant the default termination of a contract. Based on the information contained in the OIG Report, the contracting officer had sufficient cause to terminate the contract for default.
But given the past local practice of the Bayfield Post Office, the PSBCA found it would have been reasonable for McNew to believe she was permitted to take the coupon – which was destined for the trash – for her personal use. Thus, her breach of the contract was excusable and negated any finding that her action demonstrated a lack of trustworthiness or reliability or that she was not of good character. The default termination was thus converted to a termination for convenience.
One judge dissented. He believed that the local practice of allowing employees and contractors to use promotional UBBM items did not excuse McNew’s conduct. That use violated Postal Service regulations.
Postal Operations Manual § 681.7 states: “Employees are not permitted to remove undeliverable mail and/or waste or waste receptacles from postal facilities for personal use or for any use not authorized by the Postal Service.”
The fact that other people in the office had also violated this rule did not excuse McNew’s actions, and the judge did not believe the Postmaster had the authority to waive this rule. The judge also found that McNew’s use of the $10 coupon outside the post office was a more public and egregious violation of the rule than the use of UBBM promotional items within the post office itself.
The dissent also noted – and sought to dispel – McNew’s contention that her written statement to the OIG (that she had committed wrongdoing) was coerced. McNew stated that the investigators insisted that she provide a written statement “then and there” and they did not tell her that she could have a representative present. McNew also stated that the investigators pressured her to say in the statement that she knew what she did was wrong at the time.
While the dissenting judge was not convinced on these points, I am. This is standard OIG practice. Had an oral hearing been held, the OIG agents probably would not have even denied it. It also further shows why it is usually a bad idea to provide a written statement to the OIG under the intimidating and stressful conditions of a surprise interview. After her initial interview, McNew submitted a corrected statement. But the OIG – and later this dissenting judge – gave more credence to the initial statement.
What we can learn
This was a close case and could have gone either way. We can draw several conclusions from it. First, just because others are engaging in a certain prohibited practice doesn’t mean it’s allowable or that you should do it. Second, if others are engaging in the same prohibited practice, the Postal Service better have some other, independent grounds for taking an adverse action against just one person. Third, while you should cooperate in an investigation, you shouldn’t provide a written or oral statement at a surprise interview without first consulting a lawyer.