Ricci v. United States

507 F.2d 1390, 205 Ct. Cl. 687, 1974 U.S. Ct. Cl. LEXIS 28

Opinion

Kunzig, Judge,

delivered the opinion of the court:

Footnotes

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*

In this civilian pay case, the question before us is whether plaintiff’s discharge from his position as a welder at the Philadelphia Naval Shipyard for taking numbers bets from his fellow employees was supported by substantial evidence and not arbitrary or capricious. We must also decide whether the Navy complied with applicable procedural requirements in effecting plaintiff’s removal on a charge of “Conduct Unbecoming a Government Employee.” Finally, we must decide the further question whether Navy regulations prohibiting “Gambling or unlawful betting on Navy premises” (gambling) and “Promotion of gambling on Navy premises” (promotion of gambling) are sufficiently clear and distinct to withstand a “void for vagueness” challenge under the due process clause of the fifth amendment to the Constitution.¹

We hold for defendant. The dismissal was supported by substantial evidence; the procedures followed by the Philadelphia Naval Shipyard in removing plaintiff were in accordance with appropriate Civil Service regulations; and the distinction between “gambling” and “promotion of gambling” is sufficiently clear to withstand constitutional challenge, particularly in light of plaintiff’s acknowledged awareness of the distinction prior to his dismissal.

This case is before ns on exceptions by both parties to the trial judge’s report. After a full hearing, Trial Judge C. Murray Bernhardt resolved both the substantial evidence and procedural issues against plaintiff. Nevertheless, he found for plaintiff on the ultimate question of defendant’s liability for wrongful termination of plaintiff’s employment. This paradoxical result was made possible by the conclusion that Navy civilian personnel regulations forbidding “gambling” and “promotion of gambling” lacked sufficient clarity to distinguish one from the other and were, accordingly, void for vagueness under the due process clause of the fifth amendment. While agreeing with the trial judge’s determination on the first two issues, we find the record before ’him to be supportive of an opposite result on this constitutional issue. Accordingly, on review, aided by the findings of fact as modified and by the briefs and arguments of the parties, we reach the opposite result and hold that plaintiff’s removal was entirely proper and not constitutionally infirm.

Factual Background

Anthony J. Ricci was charged as an employee of the Philadelphia Naval Shipyard (Shipyard) in 1968 for “Conduct Unbecoming a Government Employee.” The charge was accompanied by three specifications of misconduct, the first two relating to instances of Ricci’s accepting numbers bets from two of his co-workers at the Shipyard,² namely:

a. Information has been received from Mr. Stanley J. Polite, a Shipyard employee, that he placed $1.00 numbers bets with you in the cafeteria, Building #570, in May 1967.

b. Mr. Walter L. Mason, another Shipyard employee, has reported that he has also placed numbers bets with you in the amounts of $.25 to $1.00 during a six-week period between August 1967 to on or about 1 October 1967, in the employees’ cafeteria, Building #570.

After plaintiff made written reply to the Notice of Proposed Removal, a letter dated July 16, 1968 from the Shipyard production officer informed plaintiff that specifications 2a and 2b, supra, were found to be sustained. Plaintiff was discharged from his position, effective July 19, 1968. At an administrative appeal hearing held September 16,1968, Shipyard employees Polite and Mason corroborated the evidence implicating plaintiff, which they had earlier given to an FBI special agent. The officer who presided at plaintiff’s administrative appeal provided a report of his findings to the Commander of the installation. This document noted that the Standard Schedule of Disciplinary Offenses and Penalties for Civilian Employees in the Naval Establishment (Standard Schedule), posted on the bulletin board of every shop at the Philadelphia Naval Shipyard, specified “promotion of gambling on Navy premises” (promotion of gambling) as an offense for which removal was within the permissible range of penalties for a first infraction.³ Finding that the evidence proved plaintiff had, in fact, been involved in “promotion of gambling,” the hearing officer concluded plaintiff’s dismissal on a charge of “Conduct Unbecoming a Government Employee” was warranted.

On May 29, 1969, the Civil Service Commission’s Acting Philadelphia Kegional Appeals Officer (the Eegion) found all procedures required by Civil Service regulations had been followed, the evidence sustained the charge, and the penalty of removal was justified. Plaintiff subsequently appealed to the Civil Service Commission Board of Appeals and Eeview (CSC BAE) which, by decision issued July 18, 1969, again sustained plaintiff’s removal.⁴

In Ms petition, plaintiff seeks back pay, alleging simply tliat Ms removal was arbitrary, capricious, and not based upon substantial evidence. Our standard of review in a civilian personnel dismissal action is two-fold. TMs court will both

[make certain that the] administrative agency has complied with the prescribed procedural requirements * * * [and] * * * review the action to determine whether the officials who effected the dismissal acted arbitrarily, capriciously or were so grossly erroneous as to be in bad faith, as for instance where they may have acted without substantial evidence or where they exceeded their authority.

Morelli v. United States, 177 Ct. Cl. 848, 858 (1966). Accord, Grover v. United States, 200 Ct. Cl. 337, 343 (1973).

/. Substantial Evidence

Plaintiff alleges his discharge was improper because he was not involved in “promotion of gambling” for which removal was an authorized penalty for a first infraction. He claims, following his perception of the distinction between “promotion of gambling” and “gambling” we made in Reil v. United States, 197 Ct. Cl. 542, 456 F. 2d 777 (1972), to have been simply wagering his own money and paying winners out of his own pocket rather than taking numbers bets on behalf of a numbers bank connected with organized crime. This, plaintiff says, was simply “gambling” and not “promotion of gambling” within the meaning of Reil.5

The record before us completely repudiates plaintiff’s contention. In considering issues of arbitrariness and lack of substantial evidence, this court is entitled to review all available evidence, including both the administrative record and de novo evidence taken before the trial judge. Schlegel v. United States, 189 Ct. Cl. 30, 36, 416 F. 2d 1372, 1375 (1969). After receiving testimony from both of the Shipyard employees who had previously given written statements impli- eating plaintiff to the FBI, the Navy hearing officer found the charges against plaintiff supported by the weight of available evidence. This official’s findings were approved by the Region, the CSC BAR, and the trial judge.

Furthermore, at the hearing before Trial Judge Bernhardt, plaintiff admitted taking numbers bets from his co-workers at the Shipyard over a period of time. The trial judge rejected as inherently implausible plaintiff’s claim that he did not turn bets over to a numbers writer or so-called “house” or “bank,” but simply pocketed the bets and personally assumed the risk he would have to make payment in the event of a “hit” by one of his customers. The trial judge did not believe that plaintiff’s personal financial resources or daily take (4 to 11 bets a day for a period of 6 weeks) were adequate for plaintiff to run the risk of having to pay off at 400 to 1 or 500 to 1 odds. Significantly, the trial judge who saw and heard the witnesses, observed that plaintiff’s “demeanor on the stand produced the ineluctable impression that plaintiff was lying.” ⁶

After reviewing the evidence presented both at the administrative and trial levels, aided by the briefs and arguments of the parties, and in the absence of evidence to the contrary, we cannot say the decision to remove plaintiff was so lacking in factual support that it must be characterized as arbitrary or capricious.⁷

II. Procedural Requirememis

In his presentation before the Philadelphia Civil Service Eegion and the CSC BAE, plaintiff contended his removal was procedurally defective because the charge “Conduct Unbecoming a Government Employee” was too broad, the proper offense with which plaintiff should have been charged being “Promotion of Gambling on Navy Premises.”⁸ The Eegion and the CSC BAE rejected this argument, finding all of plaintiff’s mandatory procedural rights had been preserved.⁹ All that is necessary in a proceeding of this nature, the agency concluded, is for sufficient information to be set forth in the Advance Notice of Proposed Eemoval to enable the employee to understand the charges against him and prepare his reply. Any possible defect in the charge had been cured by the two specifications of misconduct enumerated above.

We agree.

The requirements for notice of proposed adverse action in the Federal Personnel Manual, 752-6 (2-2), (1969) are:

(1.) “General Standard.” The notice must state the reasons supporting the proposed action, specifically and in detail, including names, times, and places. The notice should be self contained, so that a person unacquainted with the facts and circumstances involved can obtain from the notice a clear understanding of the reasons for the proposed action.

(2.) It is necessary to state the factual reasons in sufficient detail to afford the employee a clear understanding of the reasons so that he can prepare an answer. Mere statements of conclusion such as “you are guilty of immoral conduct,” without supporting details, do not meet the requirements for specificity.

Plaintiff’s removal notice met all of the above requirements. It informed him precisely what accusations had been leveled against him and who his accusers were. As in Schlegel v. United States, supra at 38, 416 F. 2d at 1376, also a case in which a general charge (“immoral and indecent conduct”) was accompanied by specifications of particular incidents (homosexual behavior), “ [t]here can be no doubt that plaintiff was informed with specific certainty of the nature of the conduct for which his removal was contemplated.”

We sustain the finding of the CSC BAE that plaintiff was furnished with sufficient information to enable him to defend against the charge of “Conduct Unbecoming a Government Employee.”

We reject the contention that the “Conduct Unbecoming a Government Employee” charge does not provide sufficient notice. Plaintiff conveniently overlooks the fact that the specifications of misconduct accompanying the general charge were in themselves violations of a particular Navy rule against “promotion of gambling” by its civilian employees. A similar attack upon the charge “Conduct Unbecoming an Officer and a Gentleman” was rejected recently in a military context by the Supreme Court in Parker v. Levy, 417 U.S. 733, 755-56 (1974). The Levy Court held that judicial constructions by the Court of Military Appeals and other military authorities had sufficiently narrowed the broad reach of the litei’al language of Articles 133 (“Conduct Unbecoming an Officer and a Gentleman”) and 134 (“All disorders and neglect to the prejudice of good order and discipline in the armed forces”) of the Uniform Code of Military Justice that the articles could withstand a void for vagueness attack. The Court added that content could be supplied to the articles even by “less formalized custom and usage.” A fortiori, where, as here, the general charge is accompanied by instances of conduct violating specific, published regulations, a vagueness assault must fail.

The standard of review used by the Supreme Court in Levy is that which the Court normally applies to criminal statutes regulating economic affairs rather than within the area of protected first amendment expression. Id. at 756. We find no reason to employ a stricter test here. Nor are we persuaded that the Levy standard is inapplicable because plaintiff is a civilian rather than a military employee of the Government. The conduct proscribed by the regulations at bar in no way infringes on the exercise of free expression; only illegal conduct is proscribed. “[Only] where a statute’s [or regulation’s] literal scope, unaided by narrowing * * * court interpretation, is capable of reaching expression sheltered by the First Amendment, [does] the [void for vagueness] doctrine demand a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 578 (1974). Thus, in either a military or civilian setting, the regulations at bar would be subject to the Levy standard.¹⁰

Since the “Conduct Unbecoming” charge in Levy was sustainable even in the absence of regulations as specific as the ones violated by plaintiff here, we find that under the circumstances of this case, the “Conduct Unbecoming a Government Employee” charge leveled against plaintiff must be upheld.¹¹

III. Void For Vagueness

Up to this point, our decision is in harmony with the findings of the trial judge. However, at this juncture, the trial judge marched to the beat of a different drummer and arrived at a decision which we find inconsistent with the evidence presented.

After finding the evidence sufficient to warrant a violation of regulations prohibiting “promotion of gambling,” after finding that the Navy had followed proper procedures in terminating plaintiff, and after finding plaintiff knew he could be discharged upon discovery by Shipyard officials of his extracurricular activities, the trial judge nevertheless ruled that plaintiff be awarded back pay because the regula tions defining “gambling” and “promotion of gambling” lack sufficient clarity to distinguish one from the other. Stating that “[i]t is the province and the obligation of those who fashion offenses to define them clearly and unambiguously, whether a criminal statute, a municipal ordinance, or even an employment regulation proscribing, on pain of publicized penalties, certain conduct on the job,” the trial judge found the above-mentioned regulations in violation of the “void for vagueness” doctrine.

We disagree.

We find sufficient delineation between the offenses of “gambling” and “promotion of gambling” properly to forewarn an individual of the consequences of his actions in participating in either activity, and therefore reject the conclusion that these regulations are impermissibly vague.

In arriving at his conclusion, the trial judge apparently utilized the following reasoning. He rejected the contention that plaintiff was acting as his own bank. But, relying on his interpretation of the holding in Reil v. United States, 197 Ct. Cl. 542, 456 F. 2d 777 (1972), to be guilty of “promotion of gambling,” one must be acting on the behalf of another, the trial judge speculated it would be possible for someone to act on his own behalf in this banking capacity and not be in violation of “promotion of gambling.”¹² In the above hypothetical situation, a civilian employee acting on the behalf of another would be subject to dismissal for a first offense, while another civilian employee doing exactly the same thing, but acting on his own behalf would be subject only to a 10-clay suspension under the offense of “gambling.” The possibility of such a result led the trial judge to conclude that a reasonable man would not be properly forewarned by the regulations in question of the potential consequences of his conduct.

Our understanding of the distinction between “gambling” and “promotion of gambling” which the Beil court made does not coincide with the interpretation of the trial judge. In Beil, the plaintiff had been discharged for allegedly taking bets on horse races and, in one instance, allegedly accepting one numbers bet in the amount of $.05 or $.10. Unlike the plaintiff in this suit, Eeil denied under oath having taken the bets in question. Unlike the witnesses in the present case, the witnesses against Eeil who participated in the transactions involved never testified under oath. The Beil court found for plaintiff on alternative grounds: (1) the meager evidence presented, when weighed against plaintiff’s strong denials, was not sufficient to meet the substantial evidence test required to sustain the agency’s determination, 197 Ct. Cl. at 549, 456 F. 2d at 780, and (2) the evidence presented in a rather skimpy record did not clearly indicate that plaintiff was guilty of the more serious “promotion of gambling” offense. Id. at 549-50, 456 F. 2d at 781.

The trial judge erroneously presumes that the Beil court requires a person to be an agent for some undisclosed third party in order to be in violation of the regulation prohibiting “promotion of gambling.” To support this interpretation, the following was quoted from the Beil opinion:

The record does not directly explain why activity accessory to gambling was to be dealt with more severely than gambling itself. In the absence of a better explanation, we suppose the framers of the Schedule viewed “promotion of gambling” as making gambling transactions on behalf of others, such others being thought to be typically engaged in organized crime. The offender might not he wagering his own money or paying winners out of his own pocket. On the other hand, “gambling” pure and simple might be a personal peccadillo of some but little significance to the management of the Shipyard, (emphasis added)

Id. at 545, 456 F. 2d at 778-79.

. Piad the trial judge read further iu the same paragraph, we are certain he would have perceived the true distinction between “promotion of gambling” and “gambling” which Judge Nichols adroitly made:

The record reflects that such a distinction was in the minds of the participants in the case. Pennsylvania law * * * made conducting a lottery a crime and 18 U.S.C. § 13 made this law apply within the Naval Shipyard. The FBI agent who took the * * * statement advised * * * that one who placed a “numbers” bet did not violate Federal or State criminal 1cm but one who was “involved in the operation of a numbers lottery’ did. (emphasis added)

Id. at 545, 456 F. 2d at 779.

The true import of the Beil decision can only be found in its total context, and not in a single phrase as the trial judge presumes. This distinction, as we understand it, is that the necessary element to be in violation of “promotion of gambling” is involvement in the business of gambling, be it as principal or agent.

The logic of this distinction and the more severe penalty ' for “promotion of gambling” from the Naval Shipyard’s standpoint is clear. Gambling at Government facilities (and in private industry as well) can and does have a deleterious effect on the morale and efficiency of the work force, be it civilian or militaiy. Thus, regulations aimed at discouraging employees from participating in gambling serve a useful purpose to curtail employee involvement and, for first offenders, warrant a penalty less severe than dismissal. But when an employee elevates his activity from the placing of an individual bet to that of serving as an outlet for his fellow employees’ gambling proclivities, be it on his own account or as an agent for others, his effect on overall morale and efficiency becomes multiplied, thus justifying the more serious first offender penalty of possible discharge.

In addition, plaintiff has admitted that he was involved in the business of gambling, taking from 4 to 11 bets a day from fellow employees during the period in question. He further acknowledged awareness that if caught by Shipyard officials he would be discharged. Accordingly, the vagueness issue raised by the trial judge has no realistic factual foundation.

Eelevant case law supports this conclusion. The Supreme Court has held that regulations set out in terms ordinary people exercising common sense can understand and comply with are not impermissibly vague. United States Civil Service Comm. v. Nat'l. Assoc. of Letter Carriers, 413 U.S. 548 (1973). Even in the area of criminal law, where courts are traditionally most vigilant to insure fair application, the Supreme Court has held, “no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952). In Jordan v. De George, 341 U.S. 223 (1951), the Court noted:

We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. * * * Impossible standards of specificity are not required. * * * The test is whether the language conveys sufficiently definite warning as to the proscribed, conduct wihen measured by common understanding and, practices, [citations omitted] (emphasis added). Id. at 231-32.

These standards obviously do not demand mathematical precision in delineating areas of proscribed conduct.

The dictionary is one reliable repository of the “common understanding and practices” which are the measure of language. Webster's Third New International Dictionary, Unabridged Edition (1971), defines “promote” as

[T]o contribute to the growth, enlargement, or prosperity of: FUETHEE, ENCOUEAGE * * * to bring or help to bring (as a business enterprise) into being * * * to present (merchandise) for public acceptance through advertising and publicity * * *.

Certainly, plaintiff was a “promoter” of gambling as the word is commonly understood. Plaintiff indicated at trial that he had a sizable numbers clientele, at least four to eleven persons strong each working day. On either characterization of plaintiff’s activities, be it as agent or principal, plaintiff promoted gambling. If one installs himself as an agent for a gambling principal whose money is wagered against that of others and solicits, collects and turns bets in to his principal, the agent promotes gambling by being a cog in the gambling machine of the principal. In this capacity, one promotes gambling even though he is not himself the principal nor is his own capital at stake. Should an individual, acting on his own account and not as an agent for another, similarly take bets from all comers at stated odds on the happening of a contingent event (the role professed by Ricci), he is at least as culpable as a principal as he would be as an agent doing precisely the same thing.

A final consideration supporting our view that plaintiff knew he was engaged in “promotion of gambling” is that plaintiff himself urged throughout his administrative appeal that the proper offense with which he should have been charged was “promotion of gambling” rather than “Conduct Unbecoming a Government Employee.” It certainly would be quixotic for us to introduce an element of uncertainty about what plaintiff was doing when plaintiff himself never was in doubt.

We hold the distinction between “gambling” and “promotion of gambling” to be sufficiently clear to withstand any “void for vagueness” challenge.

In conclusion, we find the CSC BAR decision sustaining plaintiff’s removal is neither arbitrary nor capricious, nor unsupported by substantial evidence, and that the Philadelphia Naval Shipyard and the Civil Service Commission Region and BAR have complied with all of the prescribed procedural safeguards due plaintiff. Moreover, the Navy regulations prohibiting “Gambling or unlawful betting in Navy premises” and “Promotion of gambling on Navy premises” are sufficiently clear and distinct to withstand a “void for vagueness” challenge under the due process clause of the fifth amendment to the Constitution.

In light of the foregoing, we conclude that plaintiff is not entitled to recover. The petition is hereby dismissed.

FINDINGS OF FACT

The court, having considered the evidence, the Report of Trial Judge C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff entered Federal employment in 1935 at the Brooklyn Navy Yard as a general helper and served there until 1946, having been promoted to welder in 1938. He came to the Philadelphia Naval Base in 1953 and was employed there as a Welder, WB-11, until he was separated from employment July 19, 1968. Until then his employment record had been clear of offenses.

2. By letter of May 27, 1968, plaintiff was given a Notice of Proposed Removal for Conduct Unbecoming a Government Employee, and was informed as follows:

2. This proposed action is based on the following:

a. Information has been received from Mr. Stanley J. Polite, a Shipyard employee, that he placed $1.00 numbers bets with you in the cafeteria, Building #570, in May 1967.

b. Mr. Walter L. Mason, another Shipyard employee, has reported that he has also placed numbers bets with you, in the amounts of $.25 to $1.00 during a six week period between August 1967 to on or about 1 October 1967, in the employees’ cafeteria, Building #570.

c. You had in your possession an Irish Sweepstakes ticket when arrested by agents of the Federal Bureau of Investigation in the Shipyard on 15 March 1968.

3. On June 6, 1968, plaintiff replied in writing to the Notice of Proposed Removal, stating inter alia, that he had a constitutional privilege against giving information relative to the matter until criminal charges then pending against him had been disposed of and the FBI investigation report disclosed.

4. By letter of July 16,1968, the plaintiff was advised that (a) the specifications set forth in 2a and 2b of the letter of May 27, 1968, were sustained; (b) the specification 2c set forth in the letter of May 27, 1968, was not sustained; and (c) his removal would be effected July 19, 1968. More par ticularly, paragraphs 3 and 4 of the above-mentioned letter stated:

The entire case, including your written and personal reply, has been reviewed. My finding on the specifications contained in enclosure (1) is stated below. The details of the various specifications as contained in paragraph 2 of enclosure (1) are not repeated because of their length, but are referred to below:

'Specifications relating to the charge of Conduct Unbecoming a Government Employee as set forth in paragraph 2a and 2b of enclosure (1).

Finding — Sustained.

Specifications relating to the charge of Conduct Unbecoming a Government Employee as set forth in paragraph 2c of enclosure (1).

Finding — Not sustained since possession alone of an Irish Sweepstakes ticket is not a violation of either the State or Federal statutes.

Based on the foregoing, it is considered that your removal from the rolls of the Philadelphia Naval Shipyard based on the charge of Conduct Unbecoming a Government Employee is fully supported by the information of record. Your removal is warranted and is an act that will promote the efficiency of the Federal Service. Therefore, your removal will be effected on 19 July 1968.

5. (a) Pursuant to the request of plaintiff’s representative of July 23, 1968, for a hearing before a hearing officer from another Naval activity, a hearing was held on September 16, 1968, before a hearing officer from the Industrial Eelations Office of the Marine Corps Supply Activity, at the Philadelphia Naval Shipyard. Testimony was received from Shipyard employees Polite and Mason, and from FBI Special Agent Kevell. Plaintiff was represented by counsel, but elected to refuse to testify on the constitutional grounds that his testimony might possibly be used against him in a pending criminal proceeding. Plaintiff called no witnesses in his behalf. The evidence against plaintiff consisted of the testimony and signed but unsworn statements of Shipyard employees Polite and Mason, and the testimony of FBI Special Agent Eevell who had interviewed Polite and Mason and reduced their statements to writing.

(b) Mr. Polite testified that within the preceding 2 years he had placed a $1 numbers bet with plaintiff on one occasion and that lie had observed plaintiff taking numbers bets from others in a Shipyard cafeteria during a 4- to 6-montli period. Polite was subsequently suspended for 5 days without pay as a disciplinary measure for betting in the Shipyard. The testimony of Mr. Polite is approximately paralleled by his signed but unsworn written statement of April 10,1968, which is in the administrative hearing record and was procured by FBI Special Agent Eevell on the basis of his interrogations.

(c) Mr. Mason testified that over a period of 5- to 6-weeks around August 1967, he had placed numbers bets of from 25 cents to $1 a few times a week with plaintiff in a Shipyard cafeteria. He was suspended 5 days without pay for betting in the Shipyard. The testimony of Mr. Mason is approximately paralleled by his signed but unsworn written statement of March 22,1968, which is in the administrative hearing record and was procured by FBI Agents Eevell and Wickman. The written statement also said that Mason had observed Shipyard employees placing numbers bets with plaintiff in a Shipyard cafeteria.

(d) Special Agent Eevell of the FBI testified that in March and April 1968, he had helped Messrs. Mason and Polite prepare their signed statements relating to their placing numbers bets with plaintiff. In taking these statements Mason and Polite were aware that Eevell was conducting an official investigation of illegal gambling at the Shipyard. They were informed that their cooperation would be considered in mitigation of any administrative disciplinary action that might lie against them by the Shipyard for making bets at the Shipyard, and that such activity itself was not a criminal offense. They were not told that no disciplinary action would be taken against them.¹³ Subsequently both Polite and Mason were disciplined by being suspended for 5 workdays without pay for betting in the Shipyard, as stated in paragraphs (b) and (c) of this finding 5, supra.

6. On. October 23,1968, the hearing officer furnished a report of his findings of fact to the Commander, Philadelphia Naval Shipyard. His findings were:

8. FINDINGS OF FACT

a. No procedural defects were noted in the manner in which Mr. Ricci's removal was effected. However, it would appear that it is the intent of CMMI 751.1 that where an appropriate offense [is] listed in the Standard Schedule of Disciplinary Offenses and Penalties for Civilian Employees in the Naval Establishment (CMMI 751-A), that such offense be cited. In the instant case, Item 19 of CMMI 751-A, “Promotion of Gambling on Navy Premises” appears to be much more specific and appropriate than “Conduct Unbecoming a Government Employee.” It is not felt, however, that this point is significant in terms of the final decision on this appeal since removal falls within the range of penalties for a first offense of item 19.

b. In conclusion, based on the weight of available evidence, it is my finding that the offense of Conduct Unbecoming a Government Employee, as modified by the discussion above, did occur and was sustained by the evidence and testimony developed in the course of the hearing.

7. (a) At the time plaintiff was furnished with the May 27, 1968, Notice of Proposed Removal there existed a Standard Schedule of Disciplinary Offenses and Penalties for Civilian Employees in the Naval Establishment, which was issued under Civilian Manpower Management Instruction 751 and was posted on the bulletin board of each shop at the Philadelphia Naval Shipyard. The parties stipulated that the Schedule applied, although it was noted to be effective June 17,1968. The Schedule defined 32 separate offenses and provided a range of minimum and maximum penalties for each according to whether it was the first, second, or third infraction in the reckoning period. The offenses listed in the Schedule were expressly not intended to cover every possible type of offense, and the penalties prescribed could be beyond the prescribed range under unusual circumstances. Offenses number 14 and 19 in the Schedule were, respectively, “Gambling or unlawful betting on Navy premises” (No. 14) and “Promotion of gambling on Navy premises” (No. 19). The penalties provided for offense No. 14 for first, second, and third infractions were, respectively, reprimand to 10 days’ suspension, suspension for 10 days to removal, and suspension for 15 days to removal. The penalties provided for offense No. 19 for first, second, and third infractions were, respectively, reprimand to removal, suspension for 10 days to removal, and removal. The enumeration of offenses in the Schedule did not include “Conduct Unbecoming a 'Government Employee.” However, a footnote to the Schedule referred to other offenses for which employees may be punished, infor-formation as to which “may be found in FPM 735, subchap-ter 2-10, and appendix B-2 thereto.” FPM 735, subchapter 2-10, which was published on November 9,1965, as Instruction 57, revised July 1969, prohibited an employee from engaging in “* * * conduct prejudicial to the Government.” In addition, subchapter 1-1 of FPM 735, provided under “General Policy” that employees “are expected to conduct themselves in a manner which will reflect favorably upon their employer.” No penalties are stated with reference to these provisions of the FPM, although elsewhere in sub-chapter 4 of FPM 735 maximum penalties are given for a non-exclusive list of specific offenses, and each agency is said to be responsible for identifying the prohibitions imposed on its employees.

(b) Chapter 751 of the Federal Personnel Manual relates to Discipline, and in paragraph 1-la refers to Section 01.3 (d) of Executive Order 9830 which imposes responsibility on each agency head to remove any employee “whose conduct or capacity is such as his removal * * * will promote the efficiency of the service.”

(c) The Navy promulgated Civilian Manpower Management Instruction 751.1 which in paragraph 1-2 (c)(4) referred to an Appendix A, a Standard Schedule of Disciplinary Offenses and Penalties for Civilian Employees in the Naval Establishment, as a “guide to management officials in administering discipline.” The Schedule was designed as a uniform code affording employees “a clearer understanding of what constitutes reasonable cause for disciplinary action and the consequences of misconduct.” The Schedule was to be displayed on official bulletin boards in all Naval activities.

The Schedule, which was posted throughout the Philadel phia Naval Shipyard listed some 82 offenses which were not intended to cover every possible type of offense. Among them were “Gambling or unlawful betting on Navy premises” (No. 14), and “Promotion of gambling on Navy premises” (No. 19). Penalties for offense No. 14 ranged from reprimand to 10-day suspension for the first infraction, 10-day suspension to removal for the second infraction within a 2-year reckoning period. A preamble to the Schedule advised that “Penalties for disciplinary offenses will, in general, fall within the range indicated.”

(d) The Standards of Conduct enclosure to Philadelphia Naval Shipyard Instruction ’5370.2D states in paragraph XI that:

Gambling, Betting, and Lotteries

DoD personnel shall not participate, while on Government-owned or leased property or while on duty for the Government, in any gambling activity including the operation of a gambling device, in conducting a lottery or pool, in a game for money or property, or in selling or purchasing a numbers slip or ticket.

Eicci’s removal was proposed under this provision and in order to promote the efficiency of the Federal Service.

8. Plaintiff was notified by the Commander of the Philadelphia Naval Shipyard, by letter of October 31, 1968, that the charge of “Conduct Unbecoming a Government Employee” was fully supported and that plaintiff’s removal from the rolls of the Philadelphia Naval Shipyard was warranted and justified and that his appeal was denied.

9. Plaintiff’s counsel duly appealed on November 7, 1968, to the Philadelphia Eegion of the United States Civil Service Commission. Although plaintiff initially indicated that he desired a hearing on his appeal to the United States Civil Service Commission, Philadelphia Eegion, and had requested that the hearing not be held until after the culmination of the criminal proceedings then pending, on April 17, 1969, plaintiff’s counsel advised the Eegion that he did not wish a hearing, that a determination could be made on the then state of the record and without awaiting the outcome of criminal proceedings then pending against plaintiff.

10. By a decision issued May 29,1969, the Acting Eegional Appeals Officer for the United States Civil Service Commission, Philadelphia Eegion, held that the record evidence sustained the charge of Conduct Unbecoming a Government Employee, that all procedural requirements had been met, and that the penalty of removal was warranted.

11. Plaintiff appealed to the Board of Appeals and Eevdew of the United States Civil Service Commission (CSC BAE). On July 18,1969, the CSC BAE found as follows:

In the light of the above [Analysis and Findings] and the appellate record, the Board finds that specifications 2a and 2b are sustained by credible evidence of record, and that the sustained specifications support and sustain the charge of “Conduct Unbecoming a Government Employee.” The Board further finds that the agency’s action in removing the appellant was not unreasonable, arbitrary or capricious, but was for such cause as will promote the efficiency of the service.

The decision of the Eegion upholding plaintiff’s removal was thereupon affirmed.

12. Plaintiff, on December 3, 1968, was indicted on two counts by the Grand Jury in the United States District Court for the Eastern District of Pennsylvania, in the proceeding entitled United States of America v. Anthony Joseph Ricci, Docket Criminal No. 23529, the First Count being that during the period from about March 1966 to about March 1968, at the Philadelphia Naval Shipyard, on land ceded to the United States by the legislature of Pennsylvania, plaintiff did unlawfully erect, set up, open, make and draw a lottery, and was unlawfully concerned in the management, conduct and carrying on of a lottery, and the Second Count being that during the period from about March 1966 to about March 1968, at the Philadelphia Naval Shipyard, on land ceded to the United States by the legislature of Pennsylvania, plaintiff did unlawfully engage in bookmaking. The charges were alleged to be in violation of Title 18, USC § 13, adopting Title 18, Purdon’s §§ 4601 and 4607.

13. (a) Title 18, United States Code, Section 13 reads:

§ 13. Laws of States adopted for areas within Federal jurisdiction.

Whoever within or upon any of the places now_ existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment. (June 25, 1948, ch. 645, 62 Stat. 686.)

(b) Purdon’s §§ 4601 and 4607 refei-red to in the description of the indictment in the preceding finding 12 are found in 18 Pa. Stat. Ann., §§ 4601, 4607, and provide as follows:

(1) §4601. Lotteries

All lotteries, whether public or private, for moneys, goods, wares or merchandise, chattels, lands, tenements, hereditaments, or other matters or things whatsoever, are hereby declared to be common nuisances. Every grant, bargain, sale, conveyance or transfer of any goods or chattels, lands, tenements or hereditaments, which shall be made in pursuance of any such lottery, is hereby declared to be invalid and void.

Whoever, either publicly or privately, erects, sets up, opens, makes or draws any lottery, or is in any way concerned in the managing, conducting or carrying on the same, is guilty of a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars, or undergo imprisonment, by separate or solitary confinement at labor, not exceeding one

(1) year, or both. 1939, June 24, P.L. 872, § 601.

(2) § 4607. Pool-selling and book-making

Whoever engages in pool-selling, or book-making, or occupies any place with books, apparatus or paraphernalia for the purpose of recording or registering bets or wagers, or of selling pools, or records or registers bets or wagers, or sells pools upon the result of any political nomination, appointment or election, or being the owner or lessee or occupant of any premises, knowingly permits the same to be used or occiipied for any of such purposes, or keeps, exhibits or employs therein any device or apparatus for the purpose of recording or registering such bets or wagers, or the selling of such pools, or becomes the custodian or depository for gain, hire or reward of any money, property or thing of value staked, wagered or pledged, or to be wagered or pledged, upon any such result, or receives, registers, records, forwards, or purports or pretends to forward, to or for any race-course, any money, thing or consideration of value, bet or wager or money, thing or consideration, offered for the purpose of being bet or wagered upon the speed or endurance of any man or beast, or occupies any place with books, papers, apparatus or paraphernalia, for the purpose of receiving or pretending to receive, or for recording or registering or for forwarding, or pretending or attempt-ting to forward in any manner, any money, thing or consideration of value, bet or wagered, or to be bet or wagered, for any other person, or receives or offers to receive any money, thing or consideration of value, bet or to be bet at any race-track, or assists or abets in any manner in any of the acts forbidden by this section, is guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine of not more than five hundred dollars ($500), or undergo imprisonment of not more than one (1) year, or both. 1939, June 24, P.L. 872, § 607.

14. Plaintiff came to trial in the United States District Court for the Eastern District of Pennsylvania on January 12 and 13, 1970. The case against him and a lottery indictment against Hall were, by agreement of counsel, consolidated for trial, although the offenses for which the respective defendants were indicted and tried were not closely related. Jury trial was waived. The court found Hall not guilty. It found Ricci guilty on Count I and not guilty on Count II. Ricci was sentenced to imprisonment for one year, but the sentence was suspended and he was placed on probation for 1 year and fined $500. The evidence resulting in Hall’s acquittal was not the same evidence which resulted in Ricci’s conviction. Hall testified and plaintiff did not. The only witness whose testimony related to both defendants was that of Mr. Polite (cf. Finding 5(b), supra), and his testimony of placing bets with both Hall and Ricci related to completely different occasions as to each.

15. Peter T. Byrne, an employee of the Shipyard, testified at both the criminal trial referred to in the preceding finding 14, and at the subsequent civil trial before this court in the case under consideration. In his testimony at the criminal and civil trials referred to above, Byrne testified that he had never talked to Ricci in the Shipyard about taking bets nor had he seen Ricci taking bets.

16. When plaintiff was arrested March 15, 1968, no numbers slips were found on his person or in his locker or tool box. 'On his person there was found $81.40. In his locker there were found two rolls of bills totalling $875 and coins totaling $4.10, as to which the plaintiff voluntarily offered an explanation that he had attended the Liberty Bell race-track the night before and had won the “double” and the “exacta.” At trial before this court plaintiff varied this statement by testifying that he had won about $1,500 on a single horse-race, and not on the daily double and exacta.

17. By his amended petition filed herein on June 8, 1971, plaintiff alleged that his removal was arbitrary, capricious and not supported by substantial evidence, and asserted that he is entitled to back pay and allowances for the period of his removal.

18. At the trial held herein on July 27, 1972, Lieutenant William Cole of the Philadelphia Police Department, after being qualified as an expert on the subject of the “numbers game” as it exists in Philadelphia, Pennsylvania, testified as a witness for the plaintiff. Lt. Cole gave credible testimony to the effect that:

(a) The “numbers game” is a lottery wherein an individual picks a three digit number and wagers that the number he picks will be selected as the winning number. The results of horseraces that take place on a designated day ai'e contemporaneously utilized in Philadelphia to determine the winning number. The first digit of the winning number is ascertained by adding the pari-mutuel results from the first, second, and third races; the second digit is derived by adding the pari-mutuel results of the fourth and fifth races; and the pari-mutuel results of the sixth and seventh races are totalled to constitute the third and final digit of the winning number.

(b) Persons responsible for taking numbers are called “writers.” At the beginning of the day they place themselves throughout the city, walk the street, frequent bars, or sit at home by a telephone. A “bettor” gives the writer a three digit number and the amount of his bet, expecting a large return in the event he has bet on the winning number. The odds paid by a writer may vary between 400 to 1 and 500 to 1, depending on the writer with whom the bettor is playing. Thus, if a person places a 25 cent bet and the odds are 400 to 1, he wins $100.

(c) The writer typically turns his bets in to a “house”, which is also known as a “bank” or “backer.” Houses vary greatly in size, with a large house receiving as much as $100,000 in numbers bets in a week. It is the house that furnishes the money to pay off winning bettors. There are believed to be from 50 to 100 major banks in the Philadelphia area. A house could not run its organization without writers, and a writer without a house would have to have a large volume of work to stay in business.

(d) From time to time a house or bank may feel that there is too much money being bet on one particular number. When this occurs, the house will attempt to place or “lay-off” a portion of these bets with another house. In Philadelphia the common vernacular for this practice is to “edge off”, and there are certain houses which handle only “edge” work.

(e) A writer turns his numbers in for a profit. At times an individual will receive a profit for the numbers that he collects from others and turns in to a writer. These persons are usually heavy bettors who get bets from their friends and turn those bets in with their own bets, sometimes receiving as much as 25 percent of the bets turned into the writer as a commission. These individuals are often called “subwriters.”

(f) One individual does not bet against another individual in the numbers game. The bet is against the house. The numbers game is run by professional gamblers who may or may not be connected directly with organized crime. A writer always works in conjunction with a house. Except in rare instances where he will “hold out” a $5 or $10 bet, he turns his bets in to a house. The writer who holds out a bet is in effect personally taking a chance that, with the odds 1,000 to 1 against the bettor, the particular number held out will not win, and thus the writer will be able to keep the total bet. If it should happen to win, then the writer will owe the bettor whatever the latter would have received if his bet had been turned in to a house by the writer in the usual way.

(g) Occasionally an individual bettor will take numbers bets from his co-workers as a convenience to them and place them with a writer when he places his own bets. These coworkers are usually close associates rather than merely people who happen to be working in the same installation, and they are people with whom this individual has day-to-day working contact. This person is not a “writer” as he does not receive profits from taking such bets, but is merely doing his friend a favor by placing their bets with his own.

(h) The identity of numbers writers is common knowledge among numbers bettors. When a numbers bettor states that he has bet a number or placed a number with someone he is speaking of placing a numbers bet with a numbers writer.

(i) There are two basic methods that have been utilized in court proceedings to prove that an individual is a numbers writer. One method involves introducing confiscated gambling paraphernalia. The main determinante of whether a piece of paper with figures on it is gambling paraphernalia are the presence of “repeats” and the amount of money involved. For example, if a piece of paper is confiscated with 10 different numbers on it aggregating $50, or if a number appears moré than once 445 for $1, 445 for $2), this is usually deemed to be the work of a writer. The second method of proving that an individual is a numbers writer, normally utilized when little or no gambling paraphernalia has been confiscated, is used when a better is willing to testify that he has played numbers with an individual. This bettor first makes a sworn statement to that effect thereby permitting the police to obtain a body warrant and arrest the man with whom'the bettor has indicated he placed numbers. The bettor after signing a criminal complaint form, will then testify in .court as- to the facts. In this type of case, an individual can be convicted as a writer, notwithstanding the fact that no gambling paraphernalia was confiscated.

19. Plaintiff admitted that he plays the numbers but never in the Shipyard, and that during the period involved in this litigation he would take money bets in the Shipyard from his fellow employees but would retain these bets instead of turning them in to a writer or a house, with the resulting obligation of having to pay off out of his own pocket any of the bets thus collected which happened to hit. He admitted that on at least two occasions he had to pay off $100 for a 25 cent bet, representing odds of 400 to 1. He denied being a writer, or having any connection with a house in the numbers business, and described his function as acting as a bank for the players, a role which he referred to as “outbetting” the players, who did not know he was not turning in their bets to a writer. He described himself as a gambler and not a writer. In taking bets from his fellow employees in the Shipyard he testified that he did not make a written record of the names, numbers and amounts of the 4 to 11 bets he accepted each day, but memorized these details. Although he claimed to be able to memorize 20 to 30 three digit numbers, when the trial commissioner suggested that his memory be tested ho pled that his powers of memorization had become rusty. He attributed his practice of not keeping a written record of the bets he received to a fear of jeopardizing his job, and stated that whether the Shipyard regarded him as a writer or a house he would still lose his job if caught.

20. It is reasonable to conclude that, in accepting bets from his co-workers at the Shipyard during the period in question prior to his discharge, plaintiff was a numbers writer or sub-writer for an undisclosed house or writer despite the absence of gambling “paraphernalia” (i.e., numbers slips) at the time of his arrest either on his person, in his locker, or at his home. This conclusion is based primarily on two facts: (a) the testimony of Messrs. Polite and Mason, and (b) the inherent implausibility of plaintiff’s testimony that he collected bets on his own account and stood ready to pay off any and all hits in the same manner as a numbers house. The conclusion is fortified by other considerations in or derived from the record, viz: (c) it is not believed that plaintiff’s financial situation or daily “take” (i.e., receipts from 4 to 11 bets a day) were adequate for Mm to meet the 1,000 to 1 risk of personal liability to those co-workers whose bets he accepted if their numbers hit and required him to pay them off at odds of 400 to 1 or 500 to 1; (d) the description of the numbers game by police Lt. Cole is completely inconsistent with plaintiff’s version of his “outbetting” practice; (e) plaintiff’s self-contradictory accounting for the cash found in his locker and at his home at the time of his arrest, his reluctance to demonstrate in court his claimed ability to memorize 20 to 30 three digit numbers without writing them down, his explanation that he kept the bets instead of placing them through fear of jeopardizing his job, and his demeanor on the stand produced the ineluctable impression that plaintiff was lying; and (f) the negative testimony by co-worker Byrne that he had neither placed a numbers bet with plaintiff nor knew of him as one who would accept numbers bets was of no weight in disproving that plaintiff accepted bets from others without the knowledge of Byrne.

CONCLUSION OF LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed.

We are indebted to Trial Judge C. Murray Bernhardt for his findings of fact, which have been adopted in their near entirety, and for his recommended opinion, though we have substituted our own in reaching a different result.

1

It should be noted that plaintiff never raised the “void for vagueness” issue with regard to the distinction between “gambling” and “promotion of gambling.” Rather, this issue was injected am aponte by the trial judge. Although the propriety of such action is questionable in this case, we decline to reverse the trial judge on the technical grounds offered by defendant in its brief. We reverse the trial judge’s recommended opinion on the merits, opting for this course because we feel our recent decision in Reil v. United States, 197 Ct. Cl. 542, 456 F. 2d 777 (1972), distinguishes the two offenses with sufficient clarity to withstand any void for vagueness challenge. Although we would not preclude a trial judge in an appropriate situation from raising an issue am aponte, this is not such a case.

2

The third specification, relating to Ricci's possession of an Irish Sweep-states ticket when he was arrested by FBI agents at the Shipyard on March 15, 1968, was dropped.

3

When the penalty chosen by an agency Is -within the range of sanctions provided by applicable disciplinary regulations, the severity of the sanction imposed is within the discretion of the agency. De Nigris v. United States, 169 Ct. Cl. 619, 625 (1965) ; Grover v. United States, 200 Ct. Cl. 337, 353 (1973). This doctrine is firmly rooted in precedents of this court. In Grover, we held that a penalty authorized by regulation may be overturned if the sanction is so harsh that there is “an inherent disproportion between offense and punishment.” 200 Ct. Cl. at 353, citing Heffron v. United States, 186 Ct. Cl. 474, 484, 405 F. 2d 1307, 1312 (1969). We cannot say as a matter of law that the penalty of dismissal Is in this instance inherently disproportionate to the offense “promotion of gambling” nor has the severity of the penalty been challenged by plaintiff on this ground.

4

Six months after the CSC BAR decision upholding the dismissal, plaintiff was convicted (January 13, 1970) by a united States District Court in a non-jury proceeding of “unlawfully ercct[lng], setfting]' up, openfing], matting] and drawling]; a lottery and [being] unlawfully concerned in the management, conduct and carrying on a lottery” on a Federal reservation in violation of 18 U.S.C. § 13. The facts on which plaintiff was convicted were the same as those which had provided the basis for his removal from his job.

5

Even if we were to accept plaintiff’s statements as to liis serving as his own bant for the numbers bets placed with him, this factor alone would not preclude a finding of "promotion of gambling” within the meaning of Reil. A full discussion of the distinction between “gambling” and “promotion of gambling” can be found in point III infra as it relates to the “void for vagueness” theory offered by the trial judge.

6

Plaintiff’s subsequent conduct lends support to this observation. To bolster his claim that his removal was not based upon substantial evidence, plaintiff alleges that he was acquitted of the charges brought against him in the united States District Court for the Eastern District of Pennsylvania. We note this is not the case. The trial judge found plaintiff was, in fact, convicted of one count of setting up an illegal lottery In violation of 18 U.S.C. § 13.

7

As pointed out in notes 4 and 6 supra, plaintiff was convicted in United States District Court of setting up an illegal lottery on a Federal reservation in violation of 18 U.S.C. § 13. The fact of this conviction was not before the CSC BAR when it sustained plaintiff’s removal because the criminal proceedings had not yet taken place. Nevertheless, the conviction, which was based upon the same evidence which led to plaintiff’s removal, provided an acid test for that evidence and, therefore, suggests strongly that plaintiff did, In fact, engage in the proscribed conduct with which he was charged by the Shipyard. We need not decide whether plaintiff is now collaterally estopped by his subsequent conviction from asserting he did not take numbers bets on behalf of others. We note only the outcome of plaintiff’s criminal trial lends additional credibility to the evidence upon which plaintiff’s removal was sustained.

8

As noted supra, this offense was Usted as Item 19 of the Standard Schedule posted In every shop at the Philadelphia Naval Shipyard, for which removal was a permissible penalty.

9

Though plaintiff was a non-veteran, he was afforded all procedural rights that have been provided by Congress to veterans. See 5 U.S.C. §§ 7501, 7511, 7512, 7701 (1970).

10

In fact, plaintiff argued orally that the standards applied In Parker v. Levy, 417 U.S. 733 (1974), should be the same as those employed here. Only after the Supreme Court decision in the Levy case adverse to military plaintiffs did plaintiff in this suit seek to distinguish between military and civilian settings. It should be noted that a reason given by the Levy Court for different treatment of military and clvilan personnel is that “unlike the civilian, situation, the Government is often employer, landlord, provisioner and law giver rolled into one. That relationship also reflects the different purposes of the two communities.” (at 751). Thus, in military settings, the less strict “economic affairs” standard can be applied to all cases, whereas in civilian settings, a stricter test is mandated in certain (first amendment) situations. Clearly, a proscription against gambling on a military installation by a civilian employee does not require a stricter standard.

11

In his exceptions to the trial judge’s report, plaintiff for the-first time raised the further procedural argument that his removal without a prior trial-type hearing contravened due process. In his supplemental brief filed August 16, 1974, it is conceded that this issue has been conclusively decided, adversely to plaintiff, by the Supreme Court in Arnett v. Kennedy, 416 U.S. 134 (1974). Therefore, this argument has been abandoned as futile.

12

The trial judge justified his conclusion in his report at page 16 :

“In reality the two offenses in question are partially fused, and the fade-point where one ends and the other begins is at best opaque. In a sense one ‘promotes’ gambling in the very act of gambling, whether he risks his own money or that of another, for without his participation the wager would not occur or, if it did, would not involve him. If one installs himself as an agent for a gambling principal whose money is wagered against that of others which is solicited, collected, and turned in to the principal by the agent, the agent promotes gambling in that he is a cog in the gambling machine of liis principal, and in this capacity is not himself the principal nor is his capital at stake. Should this individual, acting on his own account and not as agent for a principal, take bets from all comers at stated odds on the happening of an event (the role professed by Ricci), he is both promoting and engaging in gambling at the same time, for whether those whose wagers he takes are one, a few, or many the effect of his conduct remains.”

13

Polite and Mason testified that Revell had told them that there would be no disciplinary action taken against them, but this was elicited by leading questions, is refuted by Revell’s testimony, and the administrative finding of procedural regularity is construed to support Revell’s testimony. Such conclusion is supported by substantial evidence.