Once again, I willingly choose to engage in the crime of lèse-majesté. Consider the following exchange:
Bill: Hey, Deb, how did you get to work today?
Deb: Well, I drove my Ford, as usual.
Bill: You’re lying. I saw you driving a truck.
Deb: I wasn’t lying. I drove a Ford like I said; it just happened to be a truck.
Bill: No, when you said a “Ford,” I decided that you really meant to say “car.” When I saw that you weren’t driving a car, I concluded that you were lying.
Doesn’t seem quite fair, does it. Deb said one thing; Bill re-characterized it as something else; then Bill decided that Deb was lying about the something else. It would seem that a person should be held accountable for doing what she says, not what someone else thinks she meant when she said it.
And that’s exactly what the Board said about 20 years ago in Otero v. USPS, 73 MSPR 198 (1997). In that seminal opinion, the judge had re-characterized the agency’s charge into something he thought better fit the circumstances, and then found that the re-characterization was not proven. In its wisdom, the Board said the judge was wrong to re-characterize. Noting that 5 USC Chapter 75 states that the agency must tell the employee the “reasons” for the removal, and that the narrative paragraph the agency used states facts that are a statutory “reason,” the Members faulted the judge for the re-characterization and reversed his logic as unsound. That rationale is very much like the rationale that leads to the conclusion that Bill’s logic is unsound and unfair when he says that when Deb said “Ford,” she meant to say “car.”
Unfortunately, the Board appears to have reverted to the pre-Otero unfair way of doing things. Here was the charge and some samples of the specifications in a recent removal, O’Lague v. DVA, 2016 MSPB 20:
Charge: Inappropriate Conduct
Specification 1: On 4 February 2015, you recorded in the VA Police Daily Operations Journal (VAP DOJ) that, at 0330 hours, you conducted a vehicle patrol of all parking lots, roads and grounds. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such a patrol.
Specification 2: On 4 February 2015, you recorded in the VAP DOJ that, at 0358 hours, you conducted a vehicle patrol of all parking lots and roads. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such a patrol.
Specification 3: On 4 February 2015, you recorded in the VAP DOJ that, at 0600 hours, you conducted a vehicle patrol of all parking lots, roads and grounds. However, Officer Bright testified that he and Officer Brad Huffman-Parent had possession of the keys for both VA Police vehicles at that time and you could not possibly have conducted such patrol.
On appeal, the judge, then the Board, concluded that these seven specifications actually were charges of “making false statements” EVEN THOUGH THERE ISN’T A SINGLE FREAKING “F” WORD IN SIX OF THE SPECIFICATIONS! And once that unjustified leap of conclusion-drawing is made, the agency was held accountable for not only proving the facts (the “reasons”) in the specifications, but also the elements of a Falsification charge:
- That there was false information,
- Knowingly provided,
- With the intent to deceive the agency, and
- For personal gain.
Hey, Board. If DVA had wanted to charge “Falsification,” it knows how to charge “Falsification.” It clearly did not intend to charge falsification because it labeled the misconduct with the generic charge of “Inappropriate Conduct” followed by specific factual statements as to what the employee did that was inappropriate, as clearly allowed for in Otero. The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency; the Board may not substitute what it considers to be a more adequate or proper basis. Gottlieb v. DVA, 39 MSPR 606 (1989). With all due respect, you are not in the charging business.
While I’m on a roll lecturing the Board, would you guys please stop talking like a bunch of lawyers who fell asleep during the Plain English class? How about “reasonable” instead of “did not exceed the bounds of reasonableness,” “serious” instead of “nonfrivolous,” and “lied” instead of “not credible”? We’re about to get a new President, and it may be someone who prefers simple words. Make America strong again by using plain English.
Some might say that since the Board eventually upheld the charges in O’Langue, no-harm no-foul. Well, those some would be wrong. This is an ugly road for the Board to go down. MSPB’s role in this business is and always has been to adjudicate the charges brought by agencies, not to come up with charges on its own, and then decide whether they have been proven. Agencies should live and die by their characterization of the charge. MSPB has long held that an agency is bound to prove what it charged, not what it could have charged (e.g., charge “Theft” and you’d darned sure better have proof of an element of permanent deprivation because the Board will not re-characterize your charge to some lesser charge such as “Unauthorized Removal”). The Board is out of line when it labels acts of misconduct differently from what the agency labeled them, thereby retroactively changing the agency’s proof burden after the removal is taken. You can’t change the rules after the game has been played (unless, of course, you’re running a political convention).
By the way, if an agency charges “Inappropriate Conduct” and the Board on appeal re-characterizes the charge into “Falsification,” has the Board not violated the employee’s right to due process? MSPB sure beats up on Deciding Officials who testify on appeal to regarding a charge that was not noticed. Does not the same logic apply when the Board comes up with a new non-noticed charge? Hmmm.
In O’Lague, DVA said the employee was driving a Ford. The Board said that the agency was wrong, that a Ford is not a truck. And the Board is thereby driving me freaking crazy. [email protected]