By Barbara Haga, October 18, 2022

I have written several articles about conditions of employment over the years. They are typically simple cases processed under 5 USC Chapter 75. The newly constituted Merit Systems Protection Board ruled on one of these cases in September. I think it’s worth looking at the issue again since this topic comes up in many of my training courses.

If it is a condition of employment that an employee possess, obtains, and/or maintains a license, certification, or membership status, then failure to comply is the basis for the adverse action.

To win these cases, you would need to show:

  • The employee occupied a job requiring the certificate, license, or status,
  • The employee failed to obtain or lost the certificate/license/status, and
  • If the agency controls granting this certificate/license/status, the agency decision was made in accordance with agency procedures.

In Gallegos v. Department of the Air Force, 114 FMSR 185 (MSPB 2014), the Board wrote the charge of failure to meet a condition of employment contains two elements: (1) the requirement at issue is a condition of employment; and (2) the appellant failed to meet that condition. “Absent evidence of bad faith or patent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to, or retention in, a particular position.”

If the employee engaged in some misconduct that led to the loss of the license or certification granted by a third party, such as off-duty misconduct that led to the loss of membership in the bar, the agency is not required to prove anything about the underlying reasons for loss of the membership, but instead must show that the person no longer has whatever the credentials are that are necessary to fulfill the duties of the position.

‘Possessing Faculties’

In my April 2019 column, I discussed conditions of employment in several different types of cases, one of which involved a Catholic priest.

That case was Ezeh v. Navy, 114 FMSR 13 (NP) (MSPB 2013). The condition of employment in that case was possessing “faculties,” the authority to provide ministry to military members through sacraments of reconciliation, baptisms, weddings, annulments, and parish funerals, and to perform Catholic mass.

The determination to grant or deny faculties was made not by the employing agency but by the Archbishop of the Military Services (AMS), which is not a Federal position, but a position within the Catholic church. AMS is the sole endorser of Roman Catholic priests serving in positions such as that held by Chaplain Ezeh.

In this case, there is no information in the decision about the reasons behind the Archbishop’s determination to terminate Chaplain Ezeh’s faculties.

The new Board issued a decision on a similar set of circumstances, but in this case the information on which the termination of faculties was based is included. The case is Dieter v. Department of Veterans Affairs, 2022 MSPB 32 (September 2022). Chaplain Dieter worked at a VA Medical Center in Florida.  His position was subject to the same requirement as Chaplain Ezeh’s position discussed above, including the requirement to have faculties granted by the AMS. [Editor’s note: Attend Back on Board: Keeping Up with the New MSPB tomorrow (October 20) from 1-3 pm ET.]

The events that led to Dieter’s removal began with a statement he made during Mass. His homily included the following statements:

  1. During the early hours that morning, Dieter received a call from a 95-year-old veteran he knew, and the veteran stated that he was being burglarized at that moment.
  2. Dieter phoned the police then went to the veteran’s home and entered, where he saw two young men in the home and confronted them.
  3. Dieter hit one of the young men and knocked him out. He was wearing the Roman collar at the time he knocked out the young man. He verbally demanded that the other young man get on the floor.

Someone in the congregation recorded a video of the homily. The statements were reported to the chief of chaplains. He reviewed the video and came to certain conclusions, including that Dieter failed to exercise good judgment in revealing information during Mass about the burglary and his response, including potentially being responsible for assault and battery of a minor. The chief of chaplains noted that Dieter presented himself as the rescuer of the weak and powerless and a hero and prided himself as a Roman Catholic priest for having beaten a young man.

Scope of Review

Dieter later said the statement was not true. The reviewing authorities found the statement in the homily to be totally inappropriate whether true or not. Dieter’s ability to serve as a Catholic priest was terminated.

In the initial decision, the AJ notified Dieter the scope of the review was “… was limited to determining whether (1) the appellant’s position required an ecclesiastical endorsement; (2) the ecclesiastical endorsement was denied, revoked, or suspended; (3) the agency provided the appellant with the procedural protections specified in 5 U.S.C. § 7513; (4) the agency complied with its own regulations regarding the matter; and (5) the agency afforded the appellant due process with respect to its decision to remove the appellant.”

Dieter’s arguments focused on two main points. First, because he indicated the information in the homily wasn’t true, management violated his rights by not conducting an appropriate investigation into the misconduct before it was reported to Catholic officials. He said that “… if the agency had interviewed him before it provided information to the AMS, he would have ‘had the opportunity to set the record straight that the homily was fictional, and he had not assaulted a minor.’”

Had that happened, he alleged that it “may well have stopped the agency’s liaison to the AMS from sending the information to the AMS or may have been sufficient to convince the AMS not to withdraw his endorsement.”

The Board noted that Dieter had “… no property or liberty interest in his ecclesiastical endorsement, and, therefore, the agency’s failure to conduct an investigation prior to communicating with the AMS did not implicate any due process concerns.”

Secondly, Dieter noted in his oral reply that he could not adequately defend himself without information regarding AMS’s decision to withdraw his ecclesiastical endorsement. The AJ dealt with this matter in the initial decision stating: “Because the agency relied on the loss of the appellant’s endorsement as the basis for its action, it was not required by the dictates of the due process clause to provide the appellant with notice of the matters the Archdiocese may have considered in reaching its decision to withdraw the appellant’s ecclesiastical endorsement and faculties.”

The Board further addressed the issue: “We agree with the administrative judge’s determination that the Board lacks the authority to review the AMS’s decision to withdraw the appellant’s ecclesiastical endorsement and is, in fact, precluded from doing so by the First Amendment.” [email protected]

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