By William Wiley, September 19, 2018

This is the first part of a three-part series.

In our FELTG seminars, we sometimes have to explain the difference between the two burdens of proof relevant in our business of civil service law: substantial and preponderant evidence.

To fire someone from a government position for misconduct, we have to support the action by a preponderance of the evidence. To fire that same person for poor performance, we need support the action by only a substantial evidence, a lower burden of proof.

Our lucky friends at the VA have the blessing of needing only substantial evidence.

Federal regulations define preponderant evidence to mean that there is enough proof to conclude it is more likely than not that the employee engaged in the charged misconduct and otherwise deserves to be fired. 5 CFR 1201.56(c) and 5 CFR 1201.4(q). For substantial evidence, an adjudicator has to conclude that a reasonable person might conclude that there’s enough proof to warrant removal, not that a reasonable person necessarily would conclude that removal is warranted. 5 CFR 1201.56(c)(1) and 5 CFR 1201.4(p). In comparison, the burden of proof required to throw somebody in jail for a crime in our country most of us know is evidence beyond a reasonable doubt.

Yeah, these are nice lawyer terms. Lawyers love to dance around on the head of a legal pin arguing what these terms mean. But what do they mean in terms that a normal person would understand? Well, here at FELTG, we’ve come up what we think is a pretty darned good analogy that anyone can understand. Perhaps not as eloquent as the regulatory definitions, here’s how we see the difference among the three.

Beyond a Reasonable Doubt:  This one is easy. In most every state on our country and in the federal courts, to find someone guilty of a capital crime, 12 jurors need to agree that a crime has been committed. If 1 of the 12 disagrees, we do not have evidence beyond a reasonable doubt. Therefore, we can use 12 jurors as a benchmark for the other burdens of proof.

Preponderant Evidence:  We’re looking for a more likely than not standard using our jury as an avatar. Given that 6 of 12 jurors would be perfectly balanced, and we need a bit more than that, 7 of 12 would be a good number. So if we charged someone with misconduct, if 7 of 12 of his peers would conclude that he deserves to be fired, then we’d have a preponderance of the evidence.

Substantial Evidence:  We know that his has to be less than preponderant evidence. We also know that the courts have defined substantial evidence as “a grain more than a scintilla.” I have no idea what a scintilla looks like, and a grain is pretty darned tiny. Therefore, being generous, I would say that to have substantial evidence, we would need three maybe four jurors to conclude that a performance removal was warranted.

We’re quite proud of this analogy as a teaching tool. No, there’s never been a court or a board that has stated the burdens in a similar manner, but we hereby give notice that this language is hereby released from our copyrighted© protections thereby freeing any of you adjudicators out there to use it. With all due respect, it’s a lot more relatable than a line like a “grain more than a scintilla” to most of us normal humans (yeah, I’m talking to you, Chief Justice Roberts).

With us in the middle of rethinking the civil service protections these days, it recently dawned on us that maybe this model would serve as an option to get us out of the quagmire of employee appeals, complaints, and grievances. Yes, we could change the law. But rather than waiting for that possibility to happen, what if we set up an alternative system that would tempt employees to forgo their appeal/grievance/complaint rights in exchange for an alternative resolution to their dispute?

And that’s when we got the idea of an administrative jury.

“But, Bill, how would that work?”

Ah, dear reader, I guess you’ll have to look for our next article giving the details. See, we don’t want you to ever stop reading and attending FELTG. That’s why we build in little cliff hangers like this one, to keep you interested. Wiley@FELTG.com

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