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. To help prepare, look at this Adverse Action Reply Meeting Worksheet.
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 the 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:
- Use the Adverse Action Proposal Review Checklist from Part One of this Article to become thoroughly familiar the proposed action.
- Read and review the evidence supporting the charges and specifications. This may include forms, documents, witness statements, diagrams, photographs and other things.
- 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.
- 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 no interruptions.
- If the employee is in a duty status during the notice, arrange, if necessary, for access by the representative. If a coworker or union representative, that will not generally be necessary.
- 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.
- Arrange for someone to be present with you at the meeting and to take notes. My advice is 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; to focus on the effect an action will have on them or their family; to deny even objective facts; to 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.
- Consider using the Adverse Action Reply Meeting Worksheet to organize your preparation and structure the meeting so what needs to happen does happen.
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, would 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 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 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.
Stay Tuned
Part Three of the series on making a decision will be out shortly.
The above, as always, represents my views and mine alone for any legal purpose.
