By Deborah Hopkins, March 16, 2021
One of the topics we spend an entire day discussing during FELTG’s MSPB Law Week (next offered virtually March 29 – April 2) is disciplinary charges. Poorly drafted charges too often cause agencies to lose cases that they otherwise should easily win, because there’s no problem with the evidence.
Charge drafting is a highly technical area of the law, and a small mistake can often cost an agency an entire case. Sometimes you get lucky, but why leave it to luck when you don’t have to?
As FELTG has taught for more than 20 years, an agency must prove every word in a charge in order for the charge, and corresponding discipline, to be upheld. So imagine the flutter of panic I felt when a longtime FELTG reader sent me a recent Federal Circuit case, with the charge from the case as the subject line:
“Unacceptable Conduct/Purchase and/or Possession of an Illegal Drug While on the Clock and in Uniform.”
Yikes. There are a few things that make me nervous about this charge, including:
- Multiple slashes – punctuation marks are almost always a no-no
- The words “and” and “or” – conjunctives are dangerous
- Too many descriptive terms – terms such as “while on the clock” and “in uniform,” can be difficult to prove
Before we get into why this charge makes me nervous, allow me to provide a summary of the facts in the case, Holmes v. USPS, No. 2019-1973 (Fed. Cir. Feb. 8, 2021).
- During an OIG investigation, the appellant, named Holmes, was caught on video “engaged in alleged narcotics transactions with Mr. Baxter [another USPS employee] while on duty.”
- Baxter later admitted to selling marijuana from his USPS vehicle.
- Six other employees who were also observed in the surveillance video admitted to purchasing marijuana from Baxter.
- Holmes initially denied purchasing marijuana from Baxter while on duty, despite video surveillance showing two separate instances where Holmes appeared to give money to Baxter in exchange for some kind of substance that looked like a “rolled cigar,” and turned out to be marijuana.
- Holmes received a notice of proposed removal with the above-mentioned charge.
- In his oral response, Holmes told the Deciding Official that he was “so embarrassed,” “really wanted to apologize,” and that he “made this little mistake.” The agency removed him, and he appealed his removal.
- The Federal Circuit ultimately affirmed the removal.
There’s nothing earth-shattering in this decision (though you might be interested to know that five of the other employees who were removed for the same misconduct took their removals to arbitration, and the removals were mitigated to suspensions), but there are some lessons to learn from the charge. Next time around, the agency might not get so lucky with a detailed charge.
Let’s look at similarly drafted charges, that went the other way for agencies.
Slashes and Punctuation Marks
The case: Bennett v. DVA, CH-0752-15-0367-I-1 (2016)(NP)
The charge: “Disrespectful, intimidating language toward supervisor/Conduct unbecoming a Federal employee.”
The outcome: Because of the way the charge was drafted, the MSPB merged the “conduct unbecoming” with the “disrespectful, intimidating language” clause. The MSPB found the appellant’s speech was disrespectful, but not intimidating, and reversed the removal.
The case: Brott v. GSA, 116 M.S.P.R. 410 (2011)
- On July 23, 2008, disorderly conduct and failure to follow instruction, specifically, using abusive language to a coworker, while loading the packing belt line, and leaving the facility when his supervisor ordered him to stop using abusive language.
- On July 24, 2008, failure to follow instructions to report to the facility manager, James Gorman, regarding the incident of July 23, 2008, and absence without leave (AWOL).
The outcome: Because of the way these charges were drafted, there was some confusion and discussion about what had actually happened. The MSPB found the agency failed to prove charge 1 because the agency did not prove both the disorderly conduct and a failure to follow instruction. Removal reversed.
The case: Parkinson v. DoJ, SF-0752-13-0032-I-1 (October 10, 2014)(NP)
The charge: “Unprofessional conduct – on duty.”
The outcome: The employee engaged in unprofessional conduct by having inappropriate relationships with contractors, but the agency did not provide evidence the conduct occurred while the employee was on duty. The charge fails.
In the Holmes case where the USPS employee purchased marijuana, there could have been a very different outcome if only minor things were different:
- Had the employee successfully argued to the MSPB that he was on a break when he purchased the marijuana, the charge would have failed. See Downey v. DVA, 2013 MSPB 24.
- Had the employee been wearing only part of his uniform, he may have successfully argued that he was not in uniform, and the charge would have failed.
- The MSPB may have gotten picky about the slashes and discussed the and/or conundrum, and decided the agency did not prove both sides of the charge.
The agency’s removal action in Holmes was ultimately upheld. But might there have been a bit safer way to draft the charge?
In Parkinson, above, MSPB said, “An agency is not required to affix a label to a charge but may simply describe actions that constitute misbehavior in narrative form in its charge letter; however, if the agency chooses to label an act of alleged misconduct, then it must prove the elements that make up the legal definition of the charge.” I couldn’t have said it better myself. Hopkins@FELTG.com