The following question came into Ask FELTG:
Must the proposal letter in a proposed disciplinary action contain everything the agency has relied upon in making the proposal?
And here’s the answer:
The letter itself does not have to contain the agency’s entire case against the employee. At a minimum, the proposal must include the charge(s), the proposed penalty with aggravating factors identified, and the employee’s rights at this stage in the process, which under 5 CFR 752.203 and 752.404 includes the right to review the material relied upon.
An NP MSPB case from this past summer addressed this very question. The appellant challenged that the agency did not include in the notice all the material relied upon. The MSPB, however, noted that the proposal notice “informed the appellant of her right to review the material relied upon to support the reasons for the proposal notice.” Duffey v. USPS, DA-0752-16-0105-I-1, ¶5 (Jun. 20, 2023).
The MSPB explained that a proposal notice does not have to be a “self-contained document.” An agency can meet the notice requirement “when attachments to the proposal, together with the proposal itself, provide the employee with specific notice of the charges against her so that she can make an informed and meaningful reply.” Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004).” Id.
We recommend keeping the proposal letter short and to the point, but including all material relied upon in the proposal packet to save your agency time and resources, and a lot of potential back and forth. In addition, as Bill Wiley and I explain in the 5th Edition of the textbook (and the training class) UnCivil Servant, “doing so proactively avoids any claims that the employee was somehow denied the documents relied upon.”
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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.
