When an agency intends to rely on aggravating factors as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action. Image: Andrey_Popov/Shutterstock.com
By: FEDweek StaffA ruling by the MSPB has stressed the obligations for federal agencies to fully explain to employees the grounds for disciplinary actions and the reasoning behind the choice of penalty.
In 24 MSPB 16, the board overturned a removal of an employee in an appeal centering on the contents of the initial notice of intent to take disciplinary action, which gives an employee an opportunity to respond before a final agency decision, and the use of the “Douglas factor” considerations for deciding on the severity of the penalty.
After an earlier appeal focusing on legal jurisdictional issues, the case had been sent back to the agency, which again imposed removal. An MSPB hearing officer affirmed that decision but the merit board said the agency violated the employee’s due process rights “when it failed to provide him with notice and an opportunity to respond to all of the aggravating factors considered by the deciding official in determining the penalty.”
“When an agency intends to rely on aggravating factors as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency’s deciding official,” it said.
In this case, it said, the employee “was not provided notice of the information that the deciding official would consider in selecting the penalty.” Those included considerations regarding potential future conflicts, a conclusion that no penalty short of removal would act as a deterrent, and the deciding official’s use of a table of penalties.
The employee “did not know” of that “nor did he have an opportunity to respond to it,” the MSPB said in ordering the employee reinstated with back pay and other benefits.
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