Crime rates dropped suddenly at the beginning of the pandemic. However, several sources are reporting that those rates have started to soar again. Anecdotally, it certainly seems to be the case based on the letters that have come into the old Ask FELTG mailbox recently.
In the first hypothetical scenario provided by a FELTG reader and presented in our headline, the employee has been disciplined after pleading guilty to engaging in criminal conduct of a sexual nature. The employee was temporarily detailed to a non-supervisory position as management tried to determine where to reassign the individual. This is not an easy task, due to the nature of the employee’s criminal activity. Several agency employees, who are aware of the specifics of the criminal case, are concerned about working with this person.
If an employee has been disciplined for misconduct (reprimand, suspension, demotion, removal), he cannot be disciplined again for the same misconduct. If the agency now wishes to remove the employee because of the effect criminal activity had on the workplace, it has the option of canceling the previous discipline and re-issuing a proposal to remove based on the same conduct. As long as the agency makes the employee whole when it cancels the previous discipline, this is an option. Aggressive, but legal.
Because reassignment is not discipline, a reassignment is legal in a circumstance where an employee has already been disciplined. Put another way, an agency can consider an employee’s criminal conviction when deciding where to reassign that person.
Meanwhile, another FELTG reader asked: Is it in the best interest of the Agency to move forward with a Notice of Proposed Removal for an employee with pending criminal charges?
In this hypothetical situation, the reader was concerned about the Agency moving forward with a removal action only to see the criminal charges dropped. What would happen then? Could the employee file an appeal with MSPB to have the removal overturned, allowing him or her back to work?
An agency can absolutely discipline the employee for misconduct that may rise to a criminal level. However, you can avoid the disciplinary action from being overturned if the criminal conviction does not stand, by charging the underlying conduct (for example, striking a coworker) instead of the criminal charge (for example, assault and battery).
The MSPB may stay the hearing until the conclusion of the criminal proceedings (so the employee can focus on her defense), but as long as the agency has a preponderance of the evidence the misconduct occurred, its action is not bound by the result of the criminal trial, since it is a different forum and the standard there is evidence beyond a reasonable doubt. So theoretically the employee might be acquitted, or have the charges dropped, and then the agency could still proceed with the removal appeal.
MSPB addressed this a few years ago in a report, What is Due Process in Federal Civil Service Employment? MSPB, May 2015.
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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.
