The Merit Systems Protection Board was called to task by the Federal Circuit U.S. Court of Appeals in Kelly v. Dept. of Agriculture, Slip Copy, 2007 WL 786351 (C.A. Fed. March 12, 2007) (non precedential) for not finding a violation of the employee’s due process rights. In Kelly, the employee was removed from the Dept. of Agriculture for one charge of improper conduct, supported by 11 specifications. The administrative judge upheld two of the 11 specifications, and found the removal still a reasonable penalty. The Board sustained the AJ’s decision.

The issue before the court was this: three weeks before the deciding official issued her decision, she spoke with two individuals who provided negative comments about the employee. However, the employee was not notified of their comments until receiving the decision letter. The Board dismissed these ex parte communications as “harmless,” stating that “the key determination whether a violation of the appellant’s due process rights occurred is whether the challenged ex parte communication improperly determined the outcome of the disciplinary decision.”

The court disagreed with the Board, citing Stone v FDIC, 179 F.3rd 1368, 1377 (Fed Cir. 1999), and reiterated that “the introduction of new and material information by means of ex parte communications to the deciding official undermines the public employee’s constitutional due process guarantees of notice,” and that “ex parte communications rising to the level of a procedural due process violation cannot be excused as harmless error.”

The court went on to explain that protestations that the deciding official did not consider or rely on the ex parte communications does not excuse them. Instead, after contacting and speaking to the witnesses, the deciding official has the duty to notify the employee and give the employee the opportunity to address the new information before making a decision. The Court noted that giving the employee the opportunity to address these comments on appeal of the adverse action does not render the ex parte communications harmless. The procedural deficit overrode the agency’s claim that the employee would have been removed on the merits, even without the procedural defect. The Board’s ruling was thus vacated and the case was remanded for further action.

Also interesting was that although the Court did not make a finding that the two out of 11 specifications sustained by the judge (and the Board) should not be upheld, the court pointed out that, upon remand, the Board could consider all the evidence supporting the employee that it apparently should have considered the first time. In doing so, the court made clear its opinion that the charges against the employee should not be sustained.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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