By Deborah Hopkins, June 12, 2019

One of the more common categories of questions we get at FELTG involves the exceedingly technical area of drafting disciplinary charges. Here’s a recent note that came to us:

I have an employee who is being charged with unauthorized absence for a period of time. The specification(s) read something to the effect “You were absent from duty beginning January 28, 2019 through March 22, 2019 without authorization.”

There is a debate as to whether each day the employee was absent should be listed as a separate specification versus how it’s written above. I believe either specification spells out the conduct the Agency can prove. Any recommendations?

And the FELTG response:

Thanks for the email. I can’t give legal advice on your specific situation, but I can speak to the principle of drafting charges in general. When you charge an employee with misconduct you have to prove every single word in the charge. If there’s one word you can’t prove, you lose the whole charge – even if you have mountains of evidence the employee did something wrong. Check out Parkinson v. DoJ, SF-0752-13-0032-I-1, (October 10, 2014) (NP); Thomas v. USPS, 116 MSPR 453 (2011); Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990); Brott v. GSA, 2011 MSPB 52.

When it comes to specifications for charges, you don’t always have to prove every word (though that’s the goal), but you do have to prove the “essence” of the specification. We know from the case law that this means you have to get it pretty close to perfect, but if you get a word or a number wrong you still might get to keep the specification. See, e.g., Russo v. USPS, 284 F.3d 1304 (Fed. Cir. 2002).

Also worth noting, if you have multiple specifications and lose some of those specifications, your charge will still stand – as long as at least one specification sticks. But the more specifications you lose, the more wiggle room it gives MSPB to mitigate your penalty, if the penalty starts to fall outside the bounds of reasonableness.

The danger in [hypothetically] charging something like “absent from duty beginning January 28, 2019 through March 22, 2019 without authorization” is that if during even one of those days the employee was entitled to be absent (let’s say he was incapacitated for duty because of the flu and he had sick leave on the books) then you could lose the entire charge if the adjudicator thinks you have lost the “essence” of the specification. If even a day within the entire span of absence was authorized, have you still proven the specification?

There’s a strong argument to be made that the “essence” is still there, but this is now moving into a gray area. What about the weekends that are included in the span of those dates, when the employee wasn’t supposed to be at work? Is that inclusion of weekends far enough away from the “essence” of the specification, for you to lose you the whole charge? I am not sure I’d want to take on that battle, especially when there is a much easier way to handle this kind of case.

The alternative way of drafting the charge is to list each day of absence as its own specification; that way even if it turns out that for a few of those days the employee would have been entitled to leave, the charge could still stand based on the remaining specifications.

Charge: Unauthorized Absence

Specification A: 8 hours on January 28, 2019

Specification B: 8 hours on January 29, 2019

Specification C: 8 hours on January 30, 2019

Specification D: 8 hours on January 31, 2019

Etc.

It seems like a bit more work to do things this way, but we have learned to be exceedingly conservative when drafting charges. MSPB has traditionally been technical on how it looks at charge drafting, and (if we ever get an MSPB again) we can assume that the new Board members will follow nearly 40 years of precedent in this area.

For more on charge drafting plus a whole lot more, join FELTG in Washington, DC for MSPB Law Week September 9-13. I hope we’ll see you there. Hopkins@FELTG.com

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