By William Wiley, October 17, 2018

As we all know, once the supervisor serves the notice of proposed removal on the mischievous employee, the employee has the right to make an oral response and defend himself to the deciding official. About 10 years ago, we started recommending that the proposal notice tell the employee the scheduled date and time for him to make that response if he chose to exercise that option.

Recently, we received a question from a webinar participant who had worries about our FELTG approach:

 Dear FELTG,

Our office is trying to decide whether or not to use your example from a recent FELTG Webinar (Watch Your Words: Drafting, Defensible Charges in Misconduct Cases), and rewrite the oral and written reply paragraph in our proposals to include a date for the oral reply.  However, setting a date in advance seems to be somewhat concerning to us.  For example, will the employee feel that the oral reply is a requirement or expectation of management and would we try to schedule the reply within the 10-day comment period (for CBA employees) or just outside those 10 days?  In addition, is there a potential argument of ex parte communication if it appears the Proposing Official secured a meeting time with the Deciding Official?  Does it call into question the extent to which they discussed the proposal?

And our ever-elucidating FELTG response:

If you’re concerned that the employee might believe the scheduled date is an expectation, then word the notice strongly: “Although not a requirement nor expectation, should you choose to respond to the proposal notice, you may do so at 2:00 on Friday, July 13 in the main conference room, Building 101. Some employees exercise this option, others do not.”

As for the date for the oral response, I usually set it on Day 10 or the next business day. I would not set it sooner because of the literal wording of your CBA. For non-CBA employees, I set it on Day Seven or the day after. No reason to set it later.

Absolutely no problem with ex parte between the proposing and deciding officials relative to setting the date. When I’m representing an agency, I usually make the appointment myself with the DO. Even if the PO made the appointment personally, discussions of such logistical matters have never been found to be prohibited ex parte communications. If there’s ever a question as to whether they discussed the proposal, all we have to do is have the PO or DO swear on a stack of CFRs that they did not discuss anything other than scheduling the meeting. No problem at all.

The benefit of prescheduling the oral response is much greater than any risk. Agencies have lost cases because they did NOT pre-schedule and waited for the employee to make a contact to schedule. The typical problem is when set the meeting when it’s convenient for us, but also we avoid any lost-message claims.

Hope this helps. [email protected]

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