LAW REVIEW 1155
City Employee Accused of Wrongdoing: Can He Be Fired while in Afghanistan?
By Captain Samuel F. Wright, JAGC, USN (Ret.)
22.214.171.124-State and local governments
1.3.1-Eligibility criteria for reemployment
126.96.36.199-Special protection against discharge, except cause
4.3-Right to continuance and protection against default judgment
An ROA member has brought to my attention an article published in The Virginian-Pilot (newspaper for the Norfolk-Virginia Beach area in Virginia) on June 3, 2011. The article concerns Jason Cosby1, who has served as public works chief for the City of Virginia Beach. On May 31, 2011, City Auditor Lyndon Remias sent a report to the City Council, recommending that Cosby be terminated because of alleged misuse of a city credit card for personal expenses, lax department oversight, and misuse of the city's gym program.
Jason Cosby is a member of the Army Reserve. He reported to active duty on May 312 and is currently serving somewhere "down range," possibly in Afghanistan. He is not expected back until August 2012.
According to the Virginia-Pilot article, when asked about the Auditor's report, City Manager Jim Spore "cited federal labor laws that bar employers from taking any personnel action against an employee who is on active military service." This is an apparent reference to the Uniformed Services Employment and Reemployment Rights Act (USERRA). I have been asked whether it is true that USERRA precludes the city from holding Cosby accountable for misconduct, under these unusual circumstances.
As I explained in Law Review 0766 and many other articles, Jason Cosby (or any service member) must meet five eligibility criteria to have the right to reemployment after a period of absence from work for service in the uniformed services:
a. He must have left a position of civilian employment for the purpose of performing service in the uniformed services. It is clear that he did so.
b. He must have given the employer prior oral or written notice. There has been no suggestion that he failed to do so.
c. His cumulative period or periods of uniformed service, relating to his employer relationship with the City of Virginia Beach, must not have exceeded five years. As I explained in Law Review 201, all involuntary service and some voluntary service are exempted from the computation of his limit.
d. He must have been released from the period of service without having received a punitive (by court martial) or other-than-honorable discharge.
e. He must have made a timely application for reemployment, after release from the period of service. If his period of service is 181 days or more, he has 90 days to apply for reemployment, starting on the date of release from service. 38 U.S.C. 4312(e)(1)(D). Shorter deadlines apply after shorter periods of service.
If Jason Cosby leaves active duty as scheduled in August 2012 and meets these five criteria, the City will have an obligation to reemploy him promptly. At that time, Cosby can tell his side of the story, and the City can hold him accountable for substantiated misconduct, regardless of whether the misconduct occurred before or after his absence from work for uniformed service.3
It is by no means certain that Jason Cosby will apply for reemployment after he leaves this period of active duty, or that he will be entitled to reemployment if he does apply. He could remain on active duty voluntarily and go over the five-year limit. He could be discharged in a manner that disqualifies him from reemployment under 38 U.S.C. 4304. He could win the Publisher's Clearinghouse Sweepstakes and retire. He could choose to take a new job elsewhere, instead of applying for reemployment with the City of Virginia Beach. Unless and until he leaves active duty and applies for reemployment with the City, there is no occasion to determine his USERRA rights-therefore this is not a ripe question.
It is not correct to say that USERRA specifically forbids the City of Virginia Beach from taking an adverse personnel action (like termination) against Jason Cosby at this time, but I certainly think that it is prudent and fair to defer taking any definitive action until Cosby returns from active duty and has the opportunity to tell his side of the story. I think that City Manager Jim Spore got it right when he stressed that the conduct alleged is "inconsistent with the city's values" but that these serious allegations against Cosby have not been substantiated.
There is another federal statute that may be relevant here. That is the Servicemembers Civil Relief Act (SCRA), enacted in 2003 to replace the Soldiers' and Sailors' Civil Relief Act (SSCRA), which dates back to 1917. The SCRA is codified in title 50 Appendix of the United States Code, sections 501-597b (50 U.S.C. App. 501-597b).
Under the SSCRA, going back to World War I, the service member on active duty has been entitled to a continuance and to protection against default judgment if the member is a party to a civil action while on active duty and is unable, because of military service, to appear for the civil proceeding. In 2003, as part of the SCRA, Congress expanded this protection to include administrative as well as judicial proceedings. See 50 U.S.C. App. 511(5).
If the City of Virginia Beach decides to terminate Cosby's employment, Cosby may be entitled to a hearing to tell his side of the story. That hearing cannot lawfully be held in Cosby's absence if Cosby's service in Afghanistan precludes his appearance for a hearing in Virginia Beach.
The principal purpose of the SCRA, as well as USERRA, is to remove from the service member's mind, insofar as possible, distractions related to the civilian job and other matters back home. While Jason Cosby is serving our country at the tip of the spear, he should not have to worry about his civilian job back home.
This is a safety issue, for Cosby and for his colleagues in arms. If I am in the foxhole next to Cosby, I should not have to worry that he is not paying full attention to his sector of the perimeter because he cannot put out of his mind his concern about the Auditor's report and action that may be taken on that report.
I have never met Jason Cosby. Maybe he is guilty of the misconduct alleged by the Auditor, and maybe he is not. But I think that there is no pressing reason to take action on the Auditor's report at this time.
1 In the "Law Review" column, we generally use a pseudonym like "Joe Smith" for the name of the service member, except when the article is about a published court decision. In this case, Jason Cosby's name has already been mentioned in the news media, so using a pseudonym would serve no useful purpose.
2 The fact that the active duty period began on the same day that the Auditor reported to the City Council is interesting but almost certainly coincidental. I know from personal experience, pertaining to my own military service and scores of reservists that I have advised, that the military does not work that fast. It is unrealistic to believe that Cosby quickly got out of town on military orders after he received word that an unfavorable report was in the works, or that he would go to Afghanistan for a year just to avoid having to answer for the Auditor's findings. It should also be emphasized that Cosby's side of the story has not been told, and we do not know that all the facts are as alleged by the Auditor.
3 If the City fires Cosby within one year after his reemployment, the City will be required to demonstrate that the firing was for cause. 38 U.S.C. 4316(c).