This question came into the FELTG mailbag with this hypothetical situation:

A direct supervisor of an employee proposed discipline as the Proposing Official and that person’s second-line supervisor was deemed the Deciding Official. However, during the 30-day period between a Proposal and Decision, the appointed “Deciding Official” referenced in the Proposal notice for the employee to submit his reply was moved within the organization and was no longer the employee’s second-line supervisor. Basically, the supervisor, in this hypothetical, is still the employee’s direct supervisor, but everyone else above him has been altered. And the collective bargaining agreement does not address this situation.

What if the Deciding Official is a supervisor elsewhere in the organization? Or not a supervisor at all? Carrying that through to the Grievance, who would be the Grievance decider? The next person up in the old leadership structure or in the new structure?

And here’s the FELTG reply:

The good news for you is that the Deciding Official (DO) can be anyone in the agency who is a supervisor or manager, or even a management official, and does not have to be in the employee’s chain of command. 5 CFR § 752.404(c)(2) says that the DO must have “authority either to make or recommend a final decision on the proposed adverse action.” Nothing about chain of command exists in the law or regs.

The fact that the second-line supervisor has changed has no bearing on the legality of the decision. Some agencies routinely delegate a DO outside the chain of command, or designate a much higher level authority, such as a regional director, to be the DO.

The Department of Justice has a group of “all-time” DOs whose sole jobs are to make decisions on proposed adverse actions. And yes, in cases of misconduct, the PO can also be the DO as long as she can credibly say her mind was not made up until after the employee’s response.

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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