You Are The Judge Part 2: Handling an Adverse Action Reply Meeting
By Bob Gilson
Editor's Note: To download this article's corresponding Adverse Action Reply Meeting Worksheet, visit http://tiny.cc/lirxay. Click here for part one in the series, and click here for part three. This is the second in a three-part series examining the adverse action process for agency deciding officials. Let’s start with a caution. If you are a deciding official, check with your human resources and legal counsel on your agency policies and their effect on the process.
Statute and regulation provide an employee, who is the subject of a proposed adverse action, a right to reply orally and in writing and to have that reply considered by the agency’s designated deciding official before a decision is made on the matter. These meetings are likely to be stressful for all involved and merit careful and complete preparation.
Simply put, deciding officials must be convinced that the statutory and regulatory procedures involved are followed; that the charges specified in the proposal are proven; that the remedy (penalty) is appropriate for the offense and appropriate in the context of prior discipline, if any; that any action taken is “for such cause as promotes the efficiency of the service”; and that the action proposed is not taken for a discriminatory or otherwise prohibited reason.
So what are the “rules” that govern reply meetings? Meaning no disrespect, the principal chefs that author the cookbook are the Merit Systems Protection Board and the Federal Circuit Court of Appeals. Their guidance is cumulative and is issued case by case in their decisions. It is up to practitioners to take the sometimes stiff and always legally constructed language of a decision and make it useful to those agency managers who must apply it. While there are wrinkles applicable to certain specific situations, these are the main concerns in handling an employee’s reply.
Prepare, Prepare, Prepare.
The following are steps a deciding official should take to prepare him or herself to hear the reply:
1. Review the proposal very carefully to become thoroughly familiar the action you’ll decide.
2. Read and review the evidence supporting the charges and specifications. This may include forms, documents, witness statements, diagrams, photographs and other things.
3. Arrange for an appropriate space to hear the reply. You may use your office but may also consider a conference room where authority lines are less defined and where the employee involved may be less nervous or threatened. Your call.
4. Make sure the meeting space is private; reserved for the meeting with more time than you anticipate you will need; and that there will be absolutely no interruptions.
5. If the employee is in a duty status during the notice, arrange for access by the representative (often a lawyer). If a coworker or union representative, that will not generally be necessary.
6. If the employee is in a non-duty status during the notice period, consider whether an escort is necessary for the employee and/or representative and that security is available, if needed.
7. Arrange for someone to be present with you at the meeting and to take notes. My advice is to use an experienced employee relations practitioner and/or agency counsel. Under NO circumstances should you meet alone with the person to hear the reply. Discuss the role of each attendee you invite and make it clear they are not to speak without your OK.
Be ready for a wide variety of behaviors. After all, the person is facing a loss in pay or losing their job and may be expected to be under substantial stress. I have seen people act argumentatively; focus on the effect an action will have on them or their family; deny even objective facts; plead for “mercy’; and even to act so obviously rigidly self-controlled that they enunciate every syllable in every word as opposed to using conversational pronunciation.
At the Meeting
Remember and tattoo it on your palm, in big letters if necessary, that this meeting is the employee’s opportunity to reply. Early in my career, a mentor, now deceased, felt the need to remind me from time to time, “Bob, you’re talking during your listening time”. If you are acting as a deciding official, the reply meeting is your listening time.
The employee will likely be represented, usually by a lawyer or union representative. The representative may speak for the person; allow the person to make their own reply; or some combination of the two.
If the employee or representative tries to draw you into a discussion, remind that person that this meeting is the person’s opportunity to reply to the proposed action and that your role is to hear that reply and only that. If the person or representative has questions, direct them to the human resources office regardless of who is in the room with you. If there’s a specialist in the room suggest they get together after this meeting and extricate yourself from any discussion other than absolutely necessary to hear the reply. This may sound harsh but you are the Agency judge and must exercise great care not to complicate the process. If you think the employee has raised arguments worth considering or evidence (as opposed to mere assertions) that may affect your decision, there will be plenty of time after this meeting for deliberation and fact checking.
If you have a question about something said, ask it. However, this is not the time for cross examination. You may point out differences between versions of the facts and ask the employee if he or she wants to address the difference(s) but be very careful not to defend the proposal or get drawn into an argument on the merits of the action.
When the employee appears done or says so, ask if there is anything else the person wants you to consider in making a decision.
The next in this series on making a decision will follow. If you have questions, you can get in touch at Robert.email@example.com. If your Agency needs training on labor and employee relations, please let me know.
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.