This article follows a number of related articles on FedSmith written for managers who must decide whether to take disciplinary or adverse actions and Agency staff who help collect and organize the documentation, advise on the case’s worth and get the matter ready to resolve or try before a third party.
This article focuses on the Disciplinary/Adverse Action Case File Template. Take a look at this template before you read on. Many of you that will read this are responsible for putting a case file together, supervising people who do or taking a case to settlement or hearing. I’ve always thought that a review of a person’s case files told you a lot about their knowledge, skill and professionalism. Program managers may want to look at the template offered here as a means to train new staff, keep current staff on track, create a consistent approach or offer with pride to hearing advocates, judges or arbitrators.
As you can see, the template is an organizing tool and until the action is taken serves as a work in progress. It’s divided into two parts (sides) that hold the record of the case. The left side is for documents that may or not be included in the final version. The right side holds the records that form the Agency’s case. Since arbitrators don’t have a case file preference, this obviously reflects what will be needed to reply to a Merit Systems Protection Board acknowledgment order to an Agency following an appeal. If you’ve done the work this template requires, you’ll be ready to produce the evidence necessary to influence an informal resolution (settlement) or prevail at trial.
People move on to another job, take leave at, in retrospect, sometimes inconvenient times, get sick or worse. If you’re the succeeding specialist or supervisor, can you pick up their files and see where they left them. If not, read on.
The Left Side
The left side is the true working side of the file. As you read down this side, follow the links to the working papers such as the chronology and proposing official’s worksheet. These will help organize the information gotten from the investigation or inquiry (depending on your Agency). You’ll also see that lots of things on this side are drafts. This is the side for the Agency specialist’s notes, scribbled or otherwise; yellow stickies (Post-It Notes, according to 3M and you sticklers for detail); To Do lists; and other related ephemera. Other items on this side include documents that may or may not make it to the permanent side like a union agreement, PD, legal citation, etc. On the left will be any analyses such as those addressing due process, charges and specifications, case law on the issues raised in the case, Douglas, efficiency of the service and the like. You’ll want to include a draft evidence list that you can turn into a table of contents when the right side does its thing and becomes permanent.
Tossing Out the Junk
Just as I advise specialists and managers not to trade emails including manager venting and extensive draft revisions for discovery reasons, the same advice applies to notes and drafts in the file. The right side is the case and is open to view by appropriate parties including the employee and advocate after action is taken. The left belongs to the specialist and the specialist may destroy at will anything that doesn’t belong on the right side lest it be discovered.
The Right Side
This is where the originals and certified copies of forms, documents, witness statements and other evidence are kept. Pay attention to Board acknowledgment orders and update the template to keep up with what the Board wants and to minimize running around trying to get everything together to meet a deadline. You might ask why put all of this in the same file. My experience in juggling paper is that the one document you’ll need in a meeting will be the one you leave out of the file for some reason. If it won’t fit in the file or is unwieldy (videotape, CD, audiotape, smoking gun, etc.), make sure you list it in the file and that it is secure for chain of custody purposes.
Obsessive Compulsive Disorder
So you’ve read this far and are considering whether or not I wrote this from the inside of an institution for the terminally anal-retentive. If OCD will get an average person committed, applied to the art of casework it will likely get the critically detailed specialist or manager promoted, awarded or otherwise treated well. Cases are won or lost in their preparation much more often than in their delivery. You need a superstar like the fictional Jack McCoy (Law & Order) for an iffy or bad case. On the other hand, competent people can win a well-prepared, well-developed and well-organized case 99.9% of the time.
Every Case Deserves This Treatment
Not every case needs every document in the template but every case needs a well done case file. Some wag once gave me a saying to put over my desk and once it was up scrawled a line underneath:
If it crosses my desk it’s a Federal case.
(Or he’ll make one out ofit!)
The reality is that good preparation builds confidence for the settlement negotiation and the better your case file the more respect and cooperation you’ll get from managers and counsel. For you to be an effective management advisor and to work well with counsel, both must see you as a professional in the business you’re about.
Spike Lee suggests that we all "Do the right thing". Working through the template can make that happen. If the evidence isn’t there, if a due process hurdle wasn’t made, or the like, it’s wise to know that early on.
I’ll leave you with my ten rules for dealing with paper in the disciplinary process:
Control its creation.
It lasts forever.
It’s usually discoverable.
It is interpreted against its writer (see Elkouri & Elkouri).
It should be written for the reader.
The reader is the employee and the judge.
Plain English is good. Technical or legal writing is usually bad.
Everybody knows who does the writing but make sure the manager owns it.
Relevance is everything.
Edit it mercilessly.
Also, FYI – this summer I’ll be teaching a two-day advanced employee relations course in the DC area on the subject of case management. I’ll keep you posted about dates and location once finalized.
As always, the above represents my views and not those of past, present or future employers, publishers, friends, associates or, more than likely, anyone else.
Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.