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.”