Proposing and deciding officials can err when performing the procedures for implementing adverse actions against employees, MSPB said it its latest report, although some can be repaired.
It says that an adverse action that violates a “substantive right” cannot be allowed to stand; such rights include an employee’s right to notice and not less than seven days to respond before removal.
In contrast, some rights–such as the 30-day wait until a finalized removal takes effect–are only procedural. “When a procedural right is violated, an adjudicator must perform an additional analysis to determine the remedy. This is known as the harmful error test. Under this test, once the non-substantive procedural error is found, for the action to be reversed, the appellant must show that is likely that the error caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error,” it says.
It cited a case in which an agency erroneously shortened that period by eight days but the merit board sustained the removal, with compensation added for the those days, because the employee was provided the substantive rights of adequate notice and the opportunity to respond and the procedural error had no effect on the outcome–the employee would still have been removed eight days later, MSPB had ruled.
Further, “if the Board cancels an action for substantive or procedural errors, the agency can fix those errors by starting over. The Board has long held that an agency can renew an adverse action based on charges brought in an earlier proceeding where the adverse action in that proceeding was invalidated on procedural grounds.”
