As a federal employee, you hope to avoid ever receiving the dreaded “proposed disciplinary action.” But you should be prepared to know what to do in the event that you face such a situation.

Contact Kator, Parks & Weiser today for a free consultation if you are a federal employee facing a proposed disciplinary action.

Federal employees may face proposed disciplinary action for a slew of reasons. Some of the most common accusations are:

• Leave and attendance policy violations, such as time card fraud or misrepresentation, absence without leave (AWOL), unavailability to work for medical or other reasons, or misrepresentation of working hours;
• Sexual misconduct, such as inappropriate sexually-based behavior in the workplace, sexual harassment, perpetuating a hostile work environment on the basis of sex, inappropriate sexual comments, or unwanted sexual touching;
• The ever-vague “conduct unbecoming a federal employee;” which agencies use to cover virtually any kind of behavior that your supervisor finds annoying, inappropriate, or irritating;
• Insubordination, disrespectful conduct toward a supervisor, failure to carry out supervisory instructions, or other charges relating to not listening to a supervisor;
• Charges relating to off-duty conduct, such as arrests, convictions, or outside employment;
• Failure to maintain a requirement for a position, such as a license, security clearance, privilege, credentials, or training;
• Ethics violations, such as conflicts of interest, use of government office for private gain, or inappropriate transactions with government contractors;
• Lack of candor or false statements in a government investigation or to a supervisor;
• Falsification or misrepresentation charges, such as resume fraud, misrepresentations on a security clearance questionnaire, or any other government form;
• Misuse of government property, including vehicles (GOVs), computers, cell phones, telephones, pagers, copiers, or mail;
• Drug and alcohol related offenses, such as failing to pass a drug test, substitution of a sample during a drug test, intoxication at work, or illegal drug sales, possession or distribution.

The above list is not exhaustive– Human Resource specialists and government lawyers who draft these charges can be quite creative in their phrasing. The proposed disciplinary action can range from a reprimand to a removal from the federal service. In between are suspensions, demotions, and reassignments.

If you receive a proposed disciplinary action, you should take it very seriously. Even a proposed reprimand could be the first step in management’s plan to eventually fire you. What you choose to include in your reply to the proposed disciplinary action involves many complicated considerations, including:

• Whether the deciding official will be receptive to your defenses, or whether you want to save some or all of your defenses for an appeal;
• Whether your statements in the replies could be used against you;
• Whether you want to admit or deny the proposed charges;
• Whether you want to raise any affirmative defenses, such as discrimination on the basis of sex, race, color, national origin, disability, sexual orientation, veteran status, marital status, or retaliation for EEO activity or whistleblowing;
• Whether you want to include witness statements that help your case;
• What arguments you might want to present in favor of mitigation of the penalty.

We strongly suggest that you seek guidance and assistance from an attorney experienced in representing federal employees in disciplinary matters.

The attorneys at Kator, Parks & Weiser have been successful in representing federal employees at every level of the disciplinary process. In representing federal employees at their oral and written replies to proposed discipline, we have succeeded in getting proposed disciplinary actions completely dismissed or mitigated to a lesser penalty. For example, in a recent matter, the attorneys at KPW got a proposed demotion reduced to a written reprimand. In other instances, we have successfully represented federal employees in appeals of disciplinary actions to the Merit Systems Protection Board (MSPB). In one recent case, an employee represented by KPW was terminated for misconduct relating to a random drug test, but was reinstated after the MSPB reversed the removal. In another recent case, the attorneys at KPW won a victory for a terminated employee at the Court of Appeals for the Federal Circuit.

Kator, Parks & Weiser’s MSPB practice group is led by former MSPB Vice Chair and Administrative Judge Jessica Parks. Contact Kator, Parks & Weiser today for a free consultation if you are a federal employee facing a proposed disciplinary action.

The Merit Systems Protection Board (MSPB) has again strengthened due process protections for federal employees, when it cancelled the removal of a federal employee because the agency considered aggravating penalty factors which had not been  disclosed to the employee.  The employee was a criminal investigator who had been terminated from federal service by the Department of Justice on charges of “Conduct Unbecoming a DEA Special Agent” and “Making False Statements.”   Solis v. Department of Justice, 2012 MSPB 21, issued February 28, 2012.

After considering the employee’s reply, the agency decision sustained the penalty of removal. The deciding official found that the charges could be considered  criminal in nature and affect the investigator’s credibility if he testified in criminal prosecutions, raising Giglio issues.  As the MSPB noted, the Supreme Court case of Giglio v. United States, 405 U.S. 150 (1972), requires investigative agencies to turn over to prosecutors any potential impeachment evidence that might affect the credibility of agents involved in that case.   As a result, the investigator’s testimony might have marginal value and the government’s prosecution could be adversely affected in criminal cases.

In the employee’s appeal to the MSPB, it was determined that the Giglio issue, on which the deciding official relied, had never been raised with the employee.  Therefore, the employee was denied his constitutional due process right to respond to that penalty issue.  The MSPB found that the agency’s failure to inform the employee was substantial.  The Solis case notes the factors that the MSPB considers when deciding whether an ex parte communication is constitutionally impermissible: “(1) whether the ex parte communication merely introduces ‘cumulative’ information or new information;  (2) whether the employee knew of the information and had a chance to respond to it; and (3) whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner.”

In Solis, the MSPB found that the deciding official made it clear in his decision that he relied on the Giglio factor when he set the removal penalty.  The MSPB found that the agency’s failure to inform the employee of this information and allow him to respond was a due process violation,  reversing the removal and ordering payment of  back pay.  The Board noted that the employee would be “entitled to a new constitutionally correct removal proceeding.”