The safest way to handle the Douglas Factor analysis is to have the supervisor complete a Douglas Factor Worksheet, attach that worksheet to the proposal notice, then in the body of the proposal notice, include a paragraph that says this: “In selecting a penalty, I relied on the assessment of the relevant penalty selection factors as described in the attached Douglas Factor Worksheet.”
As for the alternatives, here’s why they are more risky than the above:
- Using the Douglas Factor Worksheet as a separate document from the Proposal and embedding the language from the Worksheet in the Proposal. This is unnecessarily risk because it allows for the possibility of making an embedding mistake. For example: If the Douglas Factor Worksheet says that the conduct was “serious” and the embedded language says that the conduct was “very serious,” you’ve now created an inconsistency that you may have to deal with on appeal. Of course, if your copy-and-paste is perfect, you won’t have this problem. However, what we teach at FELTG is to avoid any unnecessary risks. As there is no benefit in embedding the language, and because of the possibility of making a mistake when doing so, we recommend not doing it this way.
- Listing the Douglas Factor WITHIN the body of the Proposal letter and not using a separate Worksheet. If you have been to our seminars, you know that the Board requires agencies to provide EVERYTHING in a charge, but will forgive facts not proven in the Douglas Factor analysis. The better we can organize the Douglas Factor analysis the way that judges consider them, the more likely it is that the judge will agree with our penalty assessment. By using a worksheet laid out exactly the way judges think about them, and keeping the worksheet as a document separate from the charge, we avoid any confusion as to what we are saying.
There is nothing illegal about the two other ways you have seen this handled before. It’s just that the way we recommend it be done is less risky. Since there is no case law that suggests that our approach is weak, or that the two approaches you have seen are better, we strongly recommend going with the safest approach.
The materials presented here and on this website are for informational purposes only and are not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. Should you need legal advice, you should contact an attorney.