Consulting Outside Family Members on Pending Adverse Action Considered “Ex Parte” Communication

When an Air Force official testified at arbitration that he had consulted two family members about the fired employee’s defense, he threw a wrinkle into the agency’s case.

In Johnson v Department of the Air Force (CAFC No. 2021-1579, 9/26/2022), the court’s opinion sets forth these facts. Mr. Johnson was a firefighter at Dyess Air Force Base, Texas, for a couple of years before problems arose with a random drug test showing him positive for oxycodone and oxymorphone. Johnson was subjected to random drug testing because of the critical nature of his position. The positive result raised a red flag and subjected him to discipline and possibly removal. Johnson’s explanation to his boss was that his mother had come to live with his family and she was taking 13 pills for various ailments. Mr. Johnson was taking 7 or 8 pills daily and he was sure he must have somehow inadvertently taken a couple of his mother’s pills. (Opinion pp. 1-2)

Apparently not buying this explanation, the boss proposed Johnson’s removal. The notice of proposed removal cited the finding of the Medical Review Officer that “there was no legitimate medical explanation for the positive drug results,” and that Johnson being under the influence of oxy could “impair” his ability to “perform his duties safely.” (P.2)

The deciding official, LTC Fletcher, saying he could “not risk the possibility of [Johnson] coming to work again under the influence of illicit drugs,” fired Johnson. (P. 3)

Johnson opted to challenge his removal through the union’s grievance and arbitration procedure. In a hearing before Arbitrator Cipolla, LTC Fletcher testified that he simply did not believe Mr. Johnson’s explanation that he had to have taken his mother’s pills by mistake, and that Johnson’s lack of candor “absolutely” was a major part of his decision to fire him. LTC Fletcher, when pressed on this, apparently by agency counsel, indicated he had consulted two of his family members, one of whom was his wife, “his number one advisor,” who was a registered nurse, and his brother-in-law, a nurse practitioner. Both confirmed to him that the chances that Johnson had taken his mother’s pills by accident were “slim to none.” (P. 3)

Defense counsel pressed LTC Fletcher on these interactions with his relatives, trying to establish that both had said that Johnson was not being truthful. His answer was that, no they did not say he was lying,  but they both said it was “a low probability of that happening.” (P. 3)

The arbitrator affirmed Johnson’s removal, among other things stating that Johnson’s explanation for the positive drug test was “so fantastic it is difficult to give it credence.” Put the positive drug test together with Mr. Johnson’s position that directly impacted the safety of the facility and personnel, and the arbitrator concluded removal was warranted. As to Mr. Johnson’s argument that his due process had been violated by the LTC’s ex parte communications, the Arbitrator did not agree. (P. 4)

The federal appeals court did agree, however, that the ex parte communications, without telling Johnson about them and giving him a chance to respond to this evidence, did in fact violate his due process since they introduced “new and material information to the deciding official.” The court has concluded that the Arbitrator erred. The court found that the deciding official had to give Mr. Johnson the opportunity to respond to the new information before making his final decision on removal. Instead, Johnson learned of the ex parte communications only when the testimony of the deciding official occurred during the arbitration hearing.  (Pp. 7-8)

Finally, on the question of the appropriate remedy for this violation of due process, including whether Johnson should be reinstated with back pay, the court remanded the matter to the Arbitrator who should give the parties opportunity to brief this question given the specific facts and legal guidelines, and then make a determination. The court points out that the agency can always take an “entirely new” and “constitutionally correct” procedure to remove Mr. Johnson all over again. (P. 9) Of course, that would entail full reinstatement with back pay.

This is one of those cases where the key witness’ testimony had thrown a huge monkey wrench into the agency’s case. It happens, it’s discouraging, but there’s nothing to be done but make the best of it when in front of the Arbitrator again, or initiate a “do-over” of the removal action.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.