By William Wiley, April 10, 2018

Last week, we encouraged you to think outside the box a bit when it comes to a non-disciplinary removal. We described how HHS has come up with an option called a Terminal Detail. Instead of initiating a removal action, in the right situation the supervisor will offer to fund the employee’s salary for the employee to work in a different organization for several months. That way, the new organization can try out the employee without having to pay his salary, and offer the employee a permanent position at the end of the detail if it has an opening in which he can perform. The benefit to the “losing” supervisor is that he a) doesn’t have to go through the resource-intense processing of firing the guy, b) relief is immediate, and c) the employee has to agree not to return at the end of the detail as part of the contract.

Several readers commented that this was a TERRIFIC idea and could work in their organizations to avoid removals. On the other hand, a few determined just-say-no readers thought this option to be either unwise or illegal, or both.

Wanting to provide more fodder for outside-the-box thought, here’s another “crazy” option that came to me in the dark of the night while I was lying in bed sleepless, worrying about the potential loss of our civil service due to nay-sayers. If you think that a Terminal Detail is a whack-a-doodle idea, wait until you catch a load of this one.

But, first, a couple of facts to work with:

  1. A common mistake that agencies make when firing an employee is having the Deciding Official (DO) say something in her decision memo that is different from what the proposing Official (PO, usually a subordinate to the DO) has said in his Proposal Notice. Allowing the DO to consider a fact of which the employee was not notified in the Proposal Notice is almost always a violation of due process. As a due process violation is per se harmful, the agency automatically loses, and the employee and his lawyer get a whole big bucket of money, with the employee entitled to reinstatement to the position from which he was unfairly fired. If you don’t already know that this is a HUGE problem for agencies, you need to read more MSPB reversals of removals. It may be THE most common reason we lose appeals.
  2. The Civil Service Reform Act of 1978 set up the removal procedures 40 years ago this year. Although most agencies use two officials to fire an employee – a PO and a separate, superior DO – the law has never required that two individuals be involved in deciding a misconduct removal (two are required by law, in comparison, in a performance removal). For whatever reasons, most all agencies have a policy that says that two management officials will be involved in a misconduct removal, but this has never been a legal requirement.

When teaching the basics in our famous FELTG MSPB Law Week seminar (next offered in Denver June 4-8) , we strongly suggest that a way around this problem is to a) have the PO do an extensive evaluation of the Douglas Factors as an attachment to the Proposal Notice, then b) have the DO simply adopt that analysis, assuming of course that complete adoption is actually what the DO is doing. This avoids the mistake that agencies sometimes make of having the DO complete a separate fulsome Douglas Factor analysis as part of the decision memo. Having the DO do a separate analysis is a great way to include additional facts into the case, thereby violating the employee’s due process rights, and causing reversal of the removal on appeal.

“But, Bill. What if the DO disagrees with the PO? What if the DO views the Douglas Factors differently from the PO or knows things about the employee that he wants to rely on in making the removal decision, but are not in the PO’s Douglas factor worksheet? What then?”

For years, our response has been to take the safety route. Have the DO send the employee a memo that says how he views things differently, and then give the employee at least seven days (or whatever your local CBA or policy says) to provide a response to the new information. Legally, this is nice and tidy, but practically, it may delay the removal beyond 30 days. And nobody wants to delay a removal decision more than necessary.

And then it dawned on me (literally “dawned” as the sun was starting to rise over my San Francisco home as the idea came to me a couple of mornings ago):

Why not have the PO and the DO collaborate on the Douglas Factor assessment attached to the Proposal Notice prior to it being given to the employee?

We’ve known for 40 years that it is not a violation of due process to have the same individual be both the PO and the DO. We know that the heart of due process is that the agency makes known to the employee everything that’s being thought about regarding the proposal to remove him. And we know that MSPB does not have a problem with the DO being involved in the proceedings leading up to the proposed removal. Lange v. DoJ, 119 MSPR 625 (2013). Why not simply have this pre-Notice joint-drafting of the Douglas Factor analysis done by the DO and PO, and of course with notice to the employee of its joint authorship? We satisfy due process while simultaneously reducing the likelihood that the DO will want to consider something not in the Proposal Notice. Yes, it takes more time up front to get a document created by two authors rather than one, but the pay-off is significant: a reduction in post-Notice time and a better chance that we will not inadvertently violate the employee’s due process rights.

Congress, OPM, and the White House are looking at ways to change the civil service laws. Smart usage of the laws we already have will reduce the need for drastic change. Wiley@FELTG.com

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