By now, we all know the problem. To satisfy the Constitutional mandate for due process, the Deciding Official in a proposed removal should not rely on anything not in the proposal notice or the employee’s response to the proposal. Violate due process, and the agency automatically loses the appeal. There’s no concept of “Was there any harm?” when it comes to evaluating a due process violation, as there would be in other situations in which the agency makes an error.
As issues before MSPB go, this one has evolved to be particularly onerous. It’s very easy for a Deciding Official (DO) to unintentionally rely on something not before the employee in making a decision. DOs are smart people and they know lots of stuff. It’s up to us practitioners to coach them seriously about relying only on the limited information provided in the proposal and the response.
In my practice representing agencies, I’ve become exceedingly gun shy about the DO relying on ANYTHING not known to the employee. In most of the actions in which I work with agencies these days, the DO goes back to the employee at least once during the notice period either asking for more information or providing the employee new information that the DO has acquired, out of fear that there might be some tiny bit of fact that the Board on review finds to be a due process violation. I’ve half-joked (but only half) that I’m thinking about having the DO send a draft decision letter to the employee for comment prior to issuing the darned thing. That way, the chances would be greatly reduced that she would be relying on some fact that accidentally had not been made known to the employee prior to the final decision being issued. I know, sounds silly, but I’d rather be silly than reversed. Here’s the rule:
When an agency intends to rely on aggravating factors as the basis for imposing a penalty, such factors should be included in the advance notice of the adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official. Lopes v. Navy, 116 MSPR 470 (2011). If an employee has not been given notice of an aggravating factor supporting an enhanced penalty, an ex parte communication with the deciding official regarding such a factor may constitute a constitutional due process violation because it potentially deprives the employee of notice of all the evidence being used against him and the opportunity to respond to it. Ward, 634 F.3d at 1280; Lopes, 116 MSPR 470, ¶ 6.
Sometimes an employee will raise an issue or make a statement in his oral response that the DO wants to rely upon as an aggravating factor. I’ve wondered, given this era of special sensitivity to due process, whether the DO is safest to tell the employee that she plans to rely on that information, or how she is characterizing that information, and allowing the employee to respond to that prior to making a decision. After all, it’s entirely possible that a DO might misunderstand an employee’s response somehow and thereby rely on an incorrect understanding of what the employee actually was saying.
Well, the good news for agencies is that the DO does NOT have to tell the employee how she is considering the employee’s response. In a recent case, when the DO considered the employee’s response, she drew the conclusion that the employee was demonstrating a lack of remorse. On appeal, the employee claimed that because he was not informed and allowed to respond to the DO’s conclusion that he lacked rehabilitation potential, his due process rights had been violated.
The Board was clear in rejecting this argument. It reasoned that the agency could not have notified the employee that it would consider the lack of remorse in her response because the response postdated the proposal notice. Regulations requires that the DO consider BOTH the proposal and the RESPONSE to the proposal: “In arriving at its decision, the agency will consider only the reasons specified in the notice of proposed action and any answer…” 5 CFR 752.404(g)(1).
The Board members went out of their way to correct the judge’s finding that there was no due process violation because the DO testified she afforded little weight to the lack of rehabilitation potential. “Little weight” is the wrong principle. The correct principle is that the DO can consider the response (without violating due process) without notifying the employee of the conclusions drawn by the DO subsequent to the response. Nunnery v. Agriculture, DA-0752-15-0378-I-1 (June 9, 2016)(NP)
Frankly, this could have gone the other way, with MSPB requiring that the employee be informed of and allowed to respond to any new conclusions drawn by the DO. Fortunately, the Board came down on the side of efficiency and fairness. DOs can now draw their own conclusions based on the facts before them. Because of this decision, we are tweaking the FELTG approach to decision letters a bit. Previously, we have taught that the best decision letter is the decision letter that simply affirms the proposal without any elaboration by the DO. There’s still nothing wrong with that, and simple affirmance is still the easiest-to-defend approach. However, in a case in which the DO feels compelled to add something to the Proposing Official’s analysis, as long as she adds opinion only based on existing facts and not new facts, we think it’s safe to let it go. Wiley@FELTG.com