Supervisors and managers sign disciplinary proposals or decisions for reprimands, suspensions, demotions and removals. They may draft the letters themselves or ask employee relations people or lawyers to draft them.
Arguably the most important part of the letter is the identification of the behavior that warrants the action. Due process requires (among other things) that employees know what they are accused of doing and that management prove the accusation it makes.
So what’s the problem? Pretty easy stuff, right? You merely charge an employee with insubordination, theft, or assault if that’s what you’ve got and move on.
Not quite. It is extremely rare in Federal sector to charge insubordination, theft or assault because these charges have very specific elements including a requirement to establish intent. Intent is tough to prove so we often charge failure to follow instructions, unauthorized possession or removal of government property or striking a coworker instead.
Let’s look at the basics. A charge is the reason for the action or the offense giving rise to discipline or other administrative action. Each charge is composed of elements which are the unique components that must exist and can be proven to support the charge.
For example, if you charge an employee with AWOL (Absence without Leave), you must be able to prove that the employee was scheduled to work, did not come to work and wasn’t authorized to be off. These are the critical elements of an AWOL charge.
You must be able to prove the facts given as a reason for action in the proposal notice.
Actions are overturned because of a failure to prove the specific reason given, not because of a failure to prove there was a reason for disciplinary action. So if you charge someone with “making an obscene gesture”, you must show that they made a particular gesture (easy to prove) and that it is obscene (very difficult to prove, even the Supreme Court has trouble with this definition.)
Independent acts usually rate separate charges, but one act may be the basis for more than one charge. For example, an employee is under a leave restriction, doesn’t come to work, doesn’t call in and doesn’t bring medical documentation upon return to work. The charges may include absence without leave, failure to call in an absence and failure to follow leave restriction requirements. The key is that the charges must be based on genuinely different reasons often with different burdens of proof.
Cumulative charges should be avoided. Charges are not justified on the basis that one act of misconduct may be characterized several ways, or was repeated, predictably, several times. This is sometimes called “piling on”. For example, charging someone with using abusive language with a coworker, rude statements to a coworker and making an inappropriate remark to a coworker for the same words doesn’t cut it.
Elements of a Charge
The elements of a charged offense must be proven in order to prove the charge. Some elements are inherent in the charge. Criminal offenses like theft, perjury, or embezzlement always have such inherent elements. If the agency cites a particular statute, the language of the statute defines the burdens. Sometimes the elements derive from the way the charge is written. If a charge consists of more than one element, each element must be proven by a preponderance of the evidence to sustain the charge. Remember, unless all the elements of a charge are proved, the entire charge will fail.
Before you construct a charge, evaluate the evidence.
Ask yourself some questions. What kind of evidence do you have? What does the evidence prove? Where are the holes? Do you have the employee’s explanation? How would you attack the evidence if you were the employee’s representative? Is there additional evidence you can readily get that will make a difference? Try to get to the bottom of any conflicting accounts. Where it’s simply one person’s word against another’s, evaluate their relative credibility.
Consider Alternative Charges
Stick to plain language that fits the evidence and avoid terms with specific meanings in criminal law, like “assault” or “theft“. Think of all plausible approaches that fit the evidence. For example, a person may be unavailable for duty because he’s in jail. If management does not approve leave, AWOL is a very plausible charge that fits your evidence! If the type of behavior at issue specifically discussed in the standards of conduct or disciplinary policy, consider a charge that cites the policy and uses the language used in the policy.
So if you are considering charging theft, threat, assault, insubordination, abandonment of duties or lying, consider instead unauthorized possession, making a threatening statement, inappropriate conduct, striking a coworker, failure to follow instructions, AWOL or providing inaccurate information.
Check the Case Law
Some charges may carry specific burdens of proof defined in case law. For instance, if you are considering a charge of “insubordination,” review case law and your evidence and determine whether you can prove intent. Could the employee’s failure to perform have been negligence rather than willful disobedience? Can the employee prove mental or emotional problems that explain the failure? If the duties are important to management, an action for failure to perform them promotes the efficiency of the service without taking on the “intent” burden inherent in the “insubordination” charge.
Distinguish Charges from Specifications
A specification provides the facts that support the charge. A specification need not be proven in its entirety. If something is not intended to be proven, it doesn’t belong in the specification. A specification provides the “who, what, when, where”. There should be at least one separate specification for each charge. You can distinguish the specifications from the charge by putting them in a separate sentence or paragraph with language. The specific incidents, allegations, etc. that support the charge are described and why the agency considers the behavior serious. If you have proven some specifications and not others, the charge as a whole can still be sustained.
Example: Charge and Specification
Charge: Unauthorized Possession of Government Property
On June 15, 2006, at approximately 12:40pm, government property, specifically an LCD projector, inventory number 3475221AV, (see attachment 1) was found in your vehicle by security personnel conducting a random search. You were exiting the on-premises parking lot at the time of the search. This was approximately 10 minutes after completion of your shift which ended at 12:30pm that day. The projector was found in the trunk of you vehicle which you were directed to open by the security personnel. The search was conducted in accordance with AGENCY NAME policy (see attachment 2)
You did not complete a property pass as required by AGENCY NAME policy (see attachment 3). You did not request permission of appropriate authority to take the property from the AGENCY NAME office at the FACILITY NAME. (see attachment 4). You did not have authorization to possess the above referenced property.
You told the security officer conducting the search that the projector was your personal property. When the officer showed you the inventory bar code label on the projector, you refused to answer any further questions (see attachment 5).
You’ll notice that the specification above is fact intensive and includes references to the proof of the facts contained in attachments to the letter. Some of you may argue we shouldn’t include the evidence with the letter. I say why not? If you got it, flaunt it.
Common Charge Problems
Here are some thoughts on staying out of trouble in the charge writing business:
- Don’t including the result in the charge. If included, the result must also be proven. Since you’ll likely address the result in the “efficiency of the service” or “just cause” paragraph so don’t do it in the charge.
- Avoid duplicative charges, using a single act of misconduct as the basis for charges that are not factually or legally distinct from each other.
- Clearly delineate between the charge and each specification. Try not to pull something out of the penalty guide that’s clearly not the offense in your case.
- Don’t overwrite the charge, or you might end up with a charge that’s not fully supported by the facts.
- Try not to use adverbs and adjectives that characterize the offense. Charges like “Egregious” AWOL or Making “Unnecessary” Personal Phone Calls on Agency Time create more proof problems that the language is worth.
- Don’t use the word “intentional” in the charge or specification unless it is absolutely provable.
Hope this helps. As always, the opinions expressed are mine alone.