Adverse Action: Question From A Reader

Frequently I get emails from readers who do not want to comment on an article but would like advice on an issue. I have one I would like to share (complete with the grammatical errors many of us use in sending an email):

“Mr. Gilson, i am having an issue with one of my colleagues about including a douglas factor analysis in a decision letter. specifically, i am advising a deciding official on a proposed removal. the deciding official has found that the charge in the proposal is sustained and concurs with the penalty of removal because it promotes the efficiency of the service etc. i drafted a letter for the deciding official where i merely stated ” i have given full and impartial consideration to all the information gathered in your reply and the relevant douglas factors etc.” i did not provide a detailed analysis in the decision as my colleague told me i must do. i did not find anywhere in law or regulation where there is a requirement to include a douglas factor analysis in a decision letter. personally, i have been advised by a legal counselor that the more you put in the decision letter, the more the deciding official will have to prove. in other words, it is not necessary to bring in specific douglas factors because they now become something the appellant can argue. the real focus should be on the charge and not proving the douglas factors. i feel that either a checklist or memo addressing the douglas factors be maintained in a working folder for reference is sufficient enough. i do not have to have the douglas factor analysis incorporated in the decision letter unless the deciding official is mitigating the penalty. i do not feel i have to provide aggravating factors in a decision letter when these factors are taken into consideration at the proposing stage. your comments…… thanks.”

I take my lead on this issue from the MSPB. It is my understanding that the Administrative Judge is required by Board policy to read the entire Agency submission before either attempting settlement, as they all do, or hearing the case. I believe that is an enormous advantage to the Agency if we wish to make use of it. Judges hear tons of cases. I believe that the more evidence and argument we can work into a decision letter and case file, the more likely the judge will see that the Agency not only has a convincing fact case but, more importantly, understands each of the burdens it must carry and demonstrates its ability to do so.

I teach a class: Advanced Employee Relations: Focus on Case Management in which I stress my belief in the importance of such things as: putting all material relied upon in the proposal letter as attachments; including complete rationale on all points in a decision letter; and putting in statements from both proposing and deciding officials. That way, the judge will have seen the entire case before taking any action. I think this will generally encourage a judge to press the appellant to settle much more strongly than otherwise.

It may lower appellant counsel’s confidence in his/her client’s case also promoting settlement. It will also more likely put the judge in the position of waiting for appellant’s counsel to make a case in the face of strong argument and evidence which is always where I wanted to be in the process. Al, I am afraid I share your colleague’s view and as you can see from the above, much more. The lawyers who will go forward on Army’s behalf will sing your praises for the above if they are advocates not bureaucrats.

I have done a series of articles for Fedsmith on this issue. Take a look, in particular at Deciding an Adverse Action: The Process and the Proposal. (February 2008) In the article, I compared the Board to Emeril Lagasse or Julia Child because of my belief that they were giving us (Federal practitioners) a cookbook.

After it was published, I got a call from a senior person at MSPB telling me that there was some uncertainty there whether my comment was critical or complimentary. I told him that it was, in my view, the highest praise. The Board has told all of us, as has the Federal Circuit, not what standards to meet, the law does that, but how to go about meeting those standards and the height of the bar. I can’t imagine a better service to our community.

As always, my comments are mine and do not reflect the views of others although in the case of the above, hope they do.