Anyone who has worked for or around the federal government for any time hears the phrase that goes something like: “You can’t fire a federal employee.”
There is something to the stereotype as federal employees that are fired are much fewer in number than in private sector companies. And every so often a new case comes along that highlights the difficulties of the appeal system when an agency does take a removal action. (“Removal” is the preferred term to “being fired”-perhaps because it doesn’t sound as harsh.)
With this as a background, can a federal employee be fired after being charged with murder (but convicted of a lesser offense)?
In a Postal Service case, this was the issue. As this case demonstrates, a federal employee can be fired after being charged with a serious crime but it may not be quick or easy.
Willie M. Rawls found himself in an uncomfortable position. He was arrested in July 1999 and charged with attempted first degree murder for allegedly shooting a nightclub bouncer several times with a 12-gauge pump shotgun.
The Postal Service issued an indefinite suspension notice and, on August 19, 1999, he was suspended based on reasonable cause to believe he committed a crime for which a sentence of imprisonment could be imposed. He was tried on the charge of attempted first degree murder, convicted in March 2002 of the lesser offense of reckless endangerment, and sentenced to 11 months and 29 days’ incarceration. The agency removed him, effective June 21, 2002, based on his criminal conviction.
The employee filed an appeal with the Merit Systems Protection Board. The Administrative Judge agreed with the employee the removal action and the indefinite suspension were too harsh because the agency did not issue a separate proposal prior to making a decision to either suspend him or to remove him.
This was apparently too much for the agency, which appealed the judge’s decision to the Board, and it was also too much for the Board to swallow as well. The MSPB told the judge to reconsider the case because failing to issue proposal notices under the circumstances was not a denial of minimum due process.
The Administrative Judge apparently got the message and decided that the employee was properly fired from his job. But, she concluded, the indefinite suspension was invalid because the agency did not specifically identify what actions were necessary to end the suspension.
So the case bounced back to the full Board again for another decision.
In previous decisions, the MSPB has held that an indefinite suspension with no end in sight won’t hold up on review. In this case, the decision did not say when the suspension would end which is what bothered the judge hearing the initial case. On the other hand, the suspension decision did tell the employee he was being suspended “because the agency found reasonable cause to believe that [he had] committed a crime for which a sentence of imprisonment [could] be imposed.”
But, ruled the Board, while the communication with the employee didn’t give specific notice of when the suspension would end, it was based on a criminal charge. The fact that he was convicted and imprisoned demonstrates the agency had a reasonable basis for believing he would be convicted and imprisoned. And, reasoned the MSPB, it was based on a criminal charge which would lead to an end result of conviction or acquittal. So, while the notice did not specifically notify the employee of when his suspension would end, there was an end date since it was based on the criminal charge.
Requiring the agency to reinstate the employee while he was serving his sentence and then go through the process of firing him didn’t make much sense to the Board-especially since the former employee didn’t get around to notifying the agency of his conviction until two months after the fact. And, once the agency learned of the conviction, it took action right away to remove him from its employment rolls.
So, more than five years after the initial leading up to the administrative process to fire him, the agency now knows that the employee was properly fired.
But, for readers who think the employee did not get a fair shake in the system so far, he still has additional appeal rights he can use to contest his removal, all of which are documented at the end of the decision. You can download the decision from the link on the left hand side of this page.
