By Deborah Hopkins, April 7, 2020
When it comes to due process in federal sector employment law, the steps are as easy as 1-2-3. Let’s take a hypothetical where the employee has violated agency purchase card restrictions, and the agency is ready to propose his removal. Here are the three steps that provide Constitutional due process to the employee – mandatory steps if he is a career Title 5 or Title 42 employee and no longer a probationer:
- The agency provides the employee with a proposal notice containing the proposed action (removal), the charge (misuse of an agency purchase card), the penalty justification (Douglas factors worksheet), and boilerplate rights, plus any materials relied upon.
- The employee is given a minimum of seven days to respond orally or in writing, and to be represented.
- The Deciding Official issues an impartial decision based only on the information in the proposal, and the employee’s response.
This is all fairly straightforward, though by no means do all agencies do it perfectly. But now that we are living in a COVID-19 world, there are some new questions that agencies are facing as it relates to providing due process. Let’s take a look.
The employee is working from home and we usually hand-deliver proposal notices, but the employee is on telework. What are our options?
In this case you have two options:
- You can hand-deliver the proposal to the employee at his home. This is currently not advised, as many of us are under social distancing and stay-at home orders. I suppose if you were pulled over by the police on your way to the employee’s house you’d have a pretty good argument that this delivery is mission-essential.
Here is the better option:
- Mail the letter to the employee, email it to the employee, or both. When an employee is teleworking, there’s a presumption of receipt of an email sent by a supervisor. What’s more, the folks in IT can check and see exactly when the employee opened the email. And if you think emailing proposed discipline is frowned upon by MSPB, then check out Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016) (ID), where an MSPB supervisor emailed a proposed adverse action to an employee. You can also send the letter via U.S. mail, where there is a presumption of receipt after 5 days.
Watch the timelines here, because the clock on the notice and response period starts on the day the employee receives the notice. If you only use the mail, you’ll be waiting a few extra days to start the notice period.
The employee needs access to files at the agency in order to prepare his response, and the building is closed because of COVID-19. Do we have to wait until the building re-opens to issue the proposal?
No, you do not need to delay your action. At this point in the process, the employee is not entitled to any agency files to prepare his response – unless your union contract says otherwise. Once the removal is issued and the employee files an appeal, he can request relevant files through discovery and the agency must produce the information. At the proposal stage, however, there is no entitlement. Don’t take my word for it; check out Kinsey v. USPS, 12 MSPR 503 (1982), a foundational Board case that settled this question in the early days of the Civil Service Reform Act.
The employee has requested an in-person response but the Deciding Official is teleworking and does not want to risk being exposed to the virus. Does the agency have to grant the onsite response meeting?
Again, the answer is no. The employee is entitled to an oral response, not a face-to-face response. Telephone or video conferencing are routinely used for the oral response, even when a pandemic is not consuming the globe. As long as the deciding official is able to hear the employee’s response, the legal requirement in 5 USC § 7503 has been met.
The Deciding Official receives an email from the employee’s former supervisor, encouraging the DO to remove the employee. Must the Deciding Official tell the employee about this email?
If the DO considers the information in the email at all in making her decision, then the employee is entitled to notice of this information, commonly known as a Ward letter. The agency would then need to give the employee the statutory minimum of seven days to respond to the email before the DO could implement her decision.
If the DO does not notify the employee of this new information, and the employee or judge finds out, the agency will automatically lose the case on a due process procedural violation – even if the agency has 50 witnesses, a public confession, and a video recording of the entire act of misconduct. Regardless of the evidence, due process violations are losers for the agency every single time.
In fact, most agencies lose cases because of due process violations, rather than on evidence. It’s a tricky area so for that reason, we invite you to join us next week on April 16 for a 60-minute webinar Due Process Violations: How One Mistake Could Cost You the Case. Until then, be safe and take care. Hopkins@FELTG.com