You might be surprised by this, but the answer is no – it’s not a problem or issue as long as the employee is given due process:

1. Proposal notice with charge(s), penalty, and the material relied upon in making the proposal;

2. An opportunity to respond orally and in writing, with a representative if desired; and

3. An impartial decision.

If the PO and DO are the same person, there’s no due process issue if that supervisor can credibly testify they kept an open mind and did not make a final determination about discipline until after the employee’s response.

This is a foundational principle going back to early Board case law, which states the “law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.” DeSarno v. Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985).

One quick note: In a Chapter 43 performance-based action, the law requires the DO to be a management official at a higher level than the PO. 5 USC § 4303(b)(1)(D)(2).

Join FELTG for MSPB Law Week March 27-31 (next week!) for more on this topic.

Have a question? Ask FELTG.

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.

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