By Ann Boehm, December 11, 2019
Throughout my career, I’ve often heard people mistakenly say, “That would be a due process violation.”
When this occurs, I feel like I should respond as Inigo Montoya (rousingly played by Mandy Patinkin) does to Vizzini (Wallace Shawn) in the fabulous movie “The Princess Bride.” It’s the scene where Vizzini keeps saying, “Inconceivable,” and Inigo finally turns to him and says, “You keep using that word. I do not think it means what you think it means.” That’s how I feel about people who wrongly refer to due process. I do not think it means what you think it means.
Due process is a very simple concept. It’s spelled out in a clause of the Fifth Amendment of the Constitution: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Starting in 1881 with the assassination of President James Garfield by Charles Guiteau, a man who failed to get a federal job (a bit extreme, don’t you think?), Congress transformed the Federal hiring process from a spoils system to a merit-based civil service.
By 1912, Congress recognized that the system was still imperfect and enacted the Lloyd-La Follette Act. A key provision of that Act provided that “no person in the classified civil service … shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing.”
So since 1912, an employee being removed from Federal employment has received notice of the reasons, in writing, and an opportunity to reply.
Decades later, Congress decided to spell out the due process protections for Federal employees in the Civil Service Reform Act of 1978. Due process rights come into play only if pay is taken away from a Federal employee. (Salary is “property” and that is why you do not have due process rights for a letter of reprimand.)
For suspensions of 14 days or less, the due process rights are spelled out in 5 USC § 7503(b): An employee against whom a suspension for 14 days or less is proposed is entitled to: (1) an advance written notice stating the specific reasons for the proposed action; (2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.
Are you still with me? We’re almost home!
For suspensions of 15 days or more, demotions, and removals, the due process rights are spelled out in 5 USC § 7513(b): An employee against whom an action is proposed is entitled to: (1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.
This is what due process is, but here is what it is not.
It does not require that you treat all employees the same. I once had an Employee Relations Specialist tell me that, because we granted extensions of time to anyone who requested one, denying anyone would be a due process violation. Um, no, it’s not.
I recently had someone ask if you could settle a case at the proposal stage without violating due process. Settling at any point is fine – no impact on due process. Due process is notice, reply, impartial decision. That’s it.
Folks, don’t complicate things. Due process is simple. Keep it that way!
Federal employees have plenty of rights. Don’t give them more than what Congress intended. And that’s Good News! Boehm@FELTG.com