It may be an oxymoron but serious discipline in the Federal service requires a two step. This two-step is not a dance but a proposal and decision process. Suspensions, removals and demotions (properly termed a “change to lower grade”) require that substantial decisions are made and very specific procedural requirements are followed.
To help managers who are considering proposing disciplinary/adverse action, see the detailed Proposed Disciplinary/Adverse Action Worksheet. This worksheet is designed to take a manager through the steps necessary to make the critical decisions and follow the required procedures. As always, managers should seek help from experienced employee relations or counsel in preparing an action of this seriousness.
So what’s the proposing official’s job? Simply, it is to put forward to a deciding official a recommended action and the information that supports it while recognizing employee rights and meeting procedural obligations. Let’s nail down what the law requires. The proposing official is responsible for the following:
Assuring Due Process to the Employee
To assure due process, the following must be established:
1. There is a rule.
2. The employee knew or should have known the rule.
3. The employee broke the rule.
4. A preponderance of evidence exists of the violation. This standard, simply put, is that there is more evidence than not that an event took place.
5. The employee is apprised of the recommended disciplinary/adverse action. An adverse action is a suspension over 14 days, a removal or demotion. Discipline is a suspension of 14 days or less. Lesser discipline, for example, a reprimand consists of a one step action.
6. The employee is apprised of the specific charges against him and the evidence relied upon to support the action recommended.
7. The employee is afforded an opportunity to answer the charges to the decision maker.
8. The employee is apprised of the right to representation.
9. If the decision to take action is made, the employee is apprised of any appeal right.
Building a Fact/Evidence Base for the Decision
The proposing official must be satisfied that a fair and impartial fact finding took place. This means that facts both supporting and refuting the allegation were sought and considered. A claimed fact is only an allegation until proven by credible witnesses, documents or things (things may be video, audio, Agency property etc. as determined by the circumstances in the case.) The evidence must be accumulated and organized into a case file for consideration. Here are some questions that may help you evaluate the evidence.
- What kind of evidence do you have?
- Some kinds of evidence are given more weight by third parties than others. 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.
Determining Charges and Specifications
The single most important issue in acting according with the law is the agency’s ability to prove the facts it gave as a reason for action in the proposal notice.
Actions are regularly overturned, not because the agency failed to prove there was a reason for disciplinary action, but rather because the agency failed to prove the specific reason it gave. The best charge is one that states a single offense in clear and simple terms. If you have a number of offenses, separate the charges, don’t combine them. For example, assume an employee calls her supervisor a fool and slaps her. All other factors being equal, there are two separate charges here.
The first would likely be “striking a supervisor”. The second might be “making a disrespectful remark to a supervisor”. Each stands alone and each has its own specification(s).
An example of a specification would be, “On August 10, 2006, you were at work and on duty. You were engaged in a discussion with your supervisor at about 10 AM. Without provocation, you slapped your supervisor in the face. See Attachment 1, statement of supervisor Ann Wilson; Attachment 2, statement of employee Arnold Koch; and Attachment 3, statement of employee Arnold Koch.” Charge and specification writing while straight forward need careful attention. Get help with this.
Establishing “Efficiency of the Service”
Federal law requires that adverse action be taken only “for such cause as promotes the efficiency of the service”. This standard has been in existence for almost 100 years. The agency’s burden is in explaining how the alleged misconduct adversely affected the mission, operations, manager’s confidence in an employee, the morale of coworkers and other similar factors. Most managers find writing an efficiency of the service rationale fairly easy. They must say why the misconduct created problems for the agency and being responsible for agency operations, they are impacted most directly.
The Merit Systems Protection Board’s landmark decision, Douglas vs. Veterans Administration, established criteria that management must consider in determining an appropriate penalty to impose for an act of employee misconduct. These twelve factors, commonly referred to as “Douglas Factors”, are explained in the worksheet.
Meeting Procedural Requirements
The time frames used in proposing an action are not discretionary. They exist in regulation. Employees must get 30 days notice of the action. Employees may reply both orally and in writing and may be represented in doing so. The worksheet seeks to help proposing officials cross the required T’s and dot the mandatory I’s.
So if you’ve been designated a proposing official, recognize you are acting in a statutory capacity. Ask your advisors to explain their advice. Request case decisions when you are told you must do a certain thing a certain way. Make sure that whatever you do makes common sense or don’t do it.
As usual, I am solely responsible for the views and ideas expressed here.