Manager's Corner: You Are The Judge! (Part 1)
By Bob Gilson
Nobody ever tells Federal managers that the higher up they go in the organization, the more likely they are to be designated a deciding official in disciplinary or other cases involving subordinates at a lower level.
“Deciding Official” is a term of art. A Deciding Official makes the final Agency decision in the matter. In the cases we’ll be discussing in this article, employees affected by the decisions have the right to appeal to an Agency established to hear such appeals and to further appeal in Federal Court. As the Agency’s final decision maker, for all practical purposes, you are your Agency’s judge.
Career Federal employees (post-probation) are generally entitled to file an appeal with the Merit Systems Protection Board (the Board) if adversely affected by an Agency Action. According to the Board most of its cases are appeals of agency adverse actions--removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or less.
This article is a very quick overview of what’s involved in judging adverse actions involving removals, suspensions of more than 14 days, or reductions in grade or pay based on misconduct. This is kind of a cheat sheet for Deciding Officials on how to get the job done. Decisions are made in response to a proposal letter in which the action, cause and basis are spelled out and the employee is afforded the opportunity to reply to you both orally and in writing within a certain period of time.
The proposal, at a minimum, states the action proposed; the charge(s) supporting the proposed action; and the specifications (facts) supporting the charges. Proposals will state why and how the misconduct involved adversely affects Agency interests. In fact, for over 100 years, the only reason one of these actions may be taken is for “such cause as promotes the efficiency of the service”. While not required by the Board, a number of Agencies require the proposal to include consideration of mitigating and aggravating factors addressing the degree of the action proposed. These are called “Douglas” factors and arise from an early Board case suggesting their use. The practice before the Board is that the Deciding Official must address which of these or other relevant factors affected penalty choice in the decision.
I suggest Deciding Officials do a preliminary review of the proposal and send it back to the proposer without a review of the merits of the action in certain circumstances. These include:
• When there are typos, mistakes or inconsistencies in the document on its face;
• When the facts in the attachments to the proposal are inconsistent with those stated in the proposal, e.g., a witness’ name in the specification is Anne Paul but cited as Annie Pauls in the attached documents;
• When dates and times don’t match up or when the proposal itself doesn’t provide the employee 30 days between it and a removal action (statutory right).
• When a charge doesn’t read right, e,g., it’s labeled a second offense and no first offense is mentioned or it doesn’t track with the specifications, e.g., the employee is charged with unauthorized absence and the specifications talk about failing to call in in response to a leave restriction.
• When the components of a specific charge aren’t addressed, e.g., the charge states “unauthorized absence” but there is no mention of whether the employee was scheduled to work on the day in question.
• When the charge is non-specific, e.g., “the employee said bad words” or “the employee said obscene”. The Agency will lose unless the exact words said are specified whether offensive or not.
So do you review the proposal yourself or get help? The answer is yes. If feasible, get someone from Human Resources or Counsel with fresh eyes to look at the proposal. Keep in mind that errors in the proposal may be construed to have denied an employee the “specificity” of notice required by law. As a management advocate, I suggest you be thoroughly familiar with a proposal. You will certainly be asked about it in detail in a hearing if the employee appeals.
After you have critically read the proposal, you’ll hear the employee’s reply. It is common for the person to be accompanied by a lawyer or union representative if the person is in a bargaining unit. Listen very carefully, take notes or get someone familiar with the process to sit in and take notes. This meeting is for you to hear a response not defend the proposal or engage in extraneous discussions. If you feel the need to engage the employee or representative in extensive argument, find another deciding official.
Let’s assume the proposal is procedurally, substantially and factually correct, you are now in a position to judge the merits. You’ll be addressing the following:
• Have your Counsel or HR advisors research and provide you similar cases decided by the Board,
• Most Agencies subscribe to Cyberfeds® which provides not only cases but case analysis and cites to Board precedent.
• Determine whether the facts presented in the specifications and attached evidence are true, i.e., are they proven to your satisfaction, the standard of proof is a preponderance of the evidence, (More convincing (even if minimally) than the evidence presented by the employee or representative.)
• If you consider the charges proven, decide whether those charges warrant an action at the level of the one proposed and if not what action do believe to be supported,
• Apply the Douglas factors to the employee’s behavior stated in the proposal and to any prior discipline,
• Decide which of the factors are relevant and why and develop the requisite analysis,
• If all of the above line up, prepare your assessment of how the behavior has an adverse effect on the efficiency of the service,
• Find other Agency adverse action decisions and use the format used in them,
• Ask Counsel and HR advisors with experience to review your decision and listen to their comments but remember the decision is yours. Remember always that it is likely you will testify in support of your decision.
There are not only dos but don’ts as well, among them:
• You may only consider what is in the proposal letter. Any independent information you may possess may not be included in your decision.
• Be very careful who you consult while deciding. Advisors are OK, other managers not so much.
• Do not conduct an independent investigation of the facts and evidence.
• The Board guarantees an employee a specific notice of the charges and the right to answer them.
• Any consideration of matters outside the proposal taint that right to specificity and will likely jeopardize the Board’s ability to sustain the decision.
This introduction will get you started. Being your Agency’s judge is a serious matter. There’s a lot to learn so don’t be afraid to quiz your advisors on issues about which you are not absolutely confident in your actions and determinations.
Bob Gilson is an SEA member who began his Federal career with the US Civil Service Commission. He held labor and employee relations, managerial, and other HR-related positions with OPM and other agencies. Since his retirement, Bob has provided a variety of HR consulting and training services to Federal agencies and has written number advice and commentary articles appearing in FedSmith.com.