By William Wiley, November 7, 2022

As the new Merit Systems Protection Board (MSPB) members plow through the 3,000-plus pending PFRs, we keep an eye out for any new principles of law being developed by the issuance of precedential decisions. However, it is just as valuable to watch for the affirmation of existing Federal employment law principles in new opinions, regardless of whether new law is being created. We all need to know whether any current Board members have a different take on existing precedence or plans to change how we do things.

[Editor’s note: See Bill’s recent article on other principles affirmed in recent MSPB decisions.]

A recent Board decision reminds us that a Deciding Official (DO) can be involved significantly in a disciplinary case before the Proposing Official (PO) issues the proposal notice. In Dieter v. DVA, 2022 MSPB 32 (Sept. 14, 2022), the new Board had to address a claim by the appellant that the agency violated his Constitutional due process rights because, among other things, “the deciding official was biased against him and considered ex parte information in deciding to impose the removal,” Dieter, ¶7. In evaluating this argument, the Board relied on precedence that broadly reinforced that a DO can be significantly involved in the initiation of a disciplinary action.

This is an important issue. At FELTG, we frequently hear from agency DOs who have been told that they must remain isolated from any proposed disciplinary action for fear of violating the employee’s due process rights. This is often frustrating for the higher-level manager who is concerned about workplace misconduct or poor performance yet is supposed to remain above the fray until the lower-level supervisor issues a proposal notice. We all need to appreciate that such isolation of the DO is not required by Board law and is usually bad for workplace management.

In finding no due process violation relative to this issue in Dieter, the Board referenced solid existing precedence that tells us that a DO can be very active in a discipline case without violating due process, e.g.,

  • “A deciding official’s awareness of background information concerning the appellant, her concurrence in the desirability to take an adverse action, or her predisposition to impose a severe penalty does not disqualify her from serving as a deciding official on due process grounds.” Lange v. DoJ, 119 MSPR 625 (2013).
  • “A deciding official’s mere knowledge of an employee’s background does not rise to the level of a due process violation unless ‘that knowledge is a basis for the deciding official’s determination on either the merits of the underlying charge or the penalty to be imposed.’” , 675 F.3d 1349 (Fed. Cir. 2012).

The key to avoiding a due process violation is for the heavily involved DO to be able to testify truthfully something like this:

“Yes, I was deeply involved in this incidence of misconduct. Yes, I have known the appellant for many years and previously witnessed several similar dishonest acts. Yes, I spoke to the employee’s supervisor and told him that he should consider proposing that the employee be fired. And yes, I told the supervisor that I considered that Douglas Factor 1 in the Douglas Factor Worksheet should be specific as to the extent of the harm caused by the misconduct. However, when I made my decision I considered only the evidence file, the employee’s oral and written responses, and the Douglas Factors as assessed by the proposing official.”

The Dieter opinion and order reminds us: If the DO can truthfully deny considering anything outside of these sources, there will be no due process violation.

For this case law reaffirmation, we can say, “Thank you, new Board members.” This principle validates the reality of a typical workplace. Higher level managers are involved in serious personnel situations in the organization, and such involvement is OK. No need to isolate DOs from an incident so long as they know to make their final decision only on facts told to the employee in the proposal materials. We hope all readers of our newsletter understand this concept and work to implement it in real time in their respective roles in discipline and performance-based actions.

In fact, being the aggressive little devils we are at FELTG, we encourage you to go one step further. When drafting a proposed removal letter for misconduct, why not have the PO and the DO sit down together with staff support from legal or human resources, and jointly develop a Douglas Factor Worksheet to be attached to the proposal notice? That way, any predispositions and concerns can be fleshed out early by both management officials simultaneously, and the employee properly notified of those concerns in the proposal notice so he can have a fair chance to respond to them? That should make it easier for the DO to consider the employee’s focused defenses and preclude a need for the DO to bring into the decision-making process any facts or issues not in the proposal.

New decisions that reinforce old principles are good. New ways of doing things built on those old principles that make this business more efficient are even better. Come to our training at FELTG, specifically the upcoming MSPB Law Week December 5-9, and learn how to do this work as well as it can be done. [email protected]

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