Following is the executive summary of an MSPB report explaining the due process rights of federal employees.
Recently, there has been extensive public discourse comparing the Federal civil service and employment in the private sector, particularly pertaining to adverse actions such as removals. The truth is that the adverse action laws are not entirely different. As with private sector employers, the Government may be sued for discrimination, violation of the rights of veterans to return to duty after military service, retaliation for protected whistleblowing activities, and for ignoring other laws applicable to the private sector that Congress has deemed necessary for the public good. However, it is also true that there are some rules about the process for removing employees that apply only tothe Federal Government. As this report will explain in greater depth, the requirements of the U.S. Constitution have shaped the rules under which civil service agencies may take adverse actions, and the Constitution therefore must play a role in any responsible discourse regarding modifications to those rules.
More than a century ago, the Government operated under a “spoils system” inwhich employees could be removed for any reason, including membership in a different political party than the President or publicly disclosing agency wrong doing. The result of such a system was appointment and retention decisions based on political favoritism and not qualifications or performance. In response, Congress determined that there was a need for a career civil service, comprised of individuals who were qualified fort heir positions and appointed and retained (or separated) based on their competency and suitability. As a part of this system, Congress enacted a law stating that any adverse action must be taken for cause – meaning that the action must advance the efficiency ofthe service.
Today, that law, as amended, is codified in chapter 75 of title 5. Under chapter 75, an agency may implement an adverse action – up to and including removal – forsuch cause as will promote the efficiency of the service. Before an agency imposes a suspension for 14 days or less, an employee is entitled to: (1) an advance written notice stating the specific reasons for the proposed action; (2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4)a written decision and the specific reasons therefor at the earliest practicable date.
Before an agency imposes a suspension for more than 14 days, a change to lower grade, reduction in pay, or a removal action, an employee is entitled to: (1) at least 30days’ advance written notice, unless there is reasonable cause to believe the employeehas committed a crime for which a sentence of imprisonment may be imposed, statingthe specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentaryevidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date. The law also provides that for these more serious adverse actions, once the action has taken effect, the employee is entitled to file an appeal with the Merit Systems Protection Board.
While a legislature can decide whether to grant property, the Constitution determines the degree of legal process and safeguards that must be provided before the Government may take away that property. The U.S. Supreme Court has repeatedly held that, when a cause is required to remove a public employee, due process is necessary todetermine if that cause has been met. Neither Congress nor the President has the power to ignore or waive due process.
Due process “couples” the pre- and post-deprivation processes, meaning that the more robust the post-deprivation process (i.e., a hearing before an impartial adjudicator), the less robust the process must be before the action occurs. However, at a minimum, due process includes the right to: (1) be notified of the Government’s intentions; and (2) receive a meaningful opportunity to respond before the action takesplace.
Congress has enacted the procedural rules described above to help ensure thatadverse actions are taken in accordance with the Constitution and for proper cause. Due process – and the rules that implement it – are in place for everyone, not only for thefew problem employees who will inevitably appear in any workforce of more than a million individuals. Due process is there for the whistleblower, the employee who belongs to the “wrong” political party, the reservist whose periods of military service are inconvenient to the boss, the scapegoat, and the person who has been misjudged basedon faulty information. Due process is a constitutional requirement and a small price topay to ensure the American people receive a merit-based civil service rather than acorrupt spoils system.
When considering any changes to the current statutes for adverse actions, it will be important for those involved in the debates to consider: (1) how best to achieve the goal of a merit-based civil service that has the respect of the American people, including those citizens that the Government hopes will answer the call to public service; and (2) the extent to which the new language of the statutes will comport with the Constitutionas interpreted by the U.S. Supreme Court.
