Federal employees who contend that management has not lived up to settlement agreements would have broader rights to gather evidence seeking to prove their argument, under interim rules MSPB has published in the Federal Register.
The rules respond to a recent court case holding that employees have the right to legal discovery in proceedings involving alleged non-compliance with agreements, which typically are used to avoid or end what can be long and contentious personnel action appeals. An agency might agree to remove references from its proposed discipline from its records, for example, in exchange for a promise by the employee not to repeat certain misconduct.
However, after such settlements, one party or the other–usually it is the employee–can bring a separate case before the MSPB contending that the other is not doing what it promised.
MSPB said it was changing its rules of procedures to address the court holding and to “make clear that the parties have a right to discovery in such cases under the Board’s existing discovery procedures.”
It said that while ordinarily there is a notice and comment period before rules changes take effect, the policy had to be made immediate “to avert any further confusion regarding the Board’s practice and procedures governing the right to discovery in compliance cases.”
