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MSPB: Burden of proof in charges of misconduct.

MSPB: Burden of proof in charges of misconduct.

When a Federal Agency charges you with misconduct, it has the burden of proving its case against you. What does the Agency have to prove?

The first thing the Agency has to prove is that the misconduct occurred. This is usually broken into two parts:

The conduct charged actually occurred;

The conduct charged is misconduct;

Many times, one or the other is not disputed. For example: an employee and the Agency may agree that the employee was AWOL (Absent Without Leave). However, they may not agree that the AWOL was actually misconduct. This usually happens when the employee provides administratively acceptable evidence of a medical condition requiring them to be absent. In this example, the Agency can prove an employee was AWOL, but they can’t prove the employee was “wrong” to be AWOL.

After proving that the conduct occurred, and that the conduct was misconduct, the Agency must prove that the misconduct affects, or has a nexus to, the Agency’s mission. It is a rare case where this is contested. In fact, there are very few cases where the MSPB has said that a charged and proven allegation of misconduct does not bear any nexus to the Agency’s mission. Usually, this happens in three general scenarios:

The misconduct occurred entirely outside of the workplace and doesn’t affect the employee’s job or the Agency’s work;

The misconduct occurred at work, but has no connection to the Agency’s mission (extremely rare);

The charged misconduct is a novel charge or a vague charge.

Once the Agency has proved that the misconduct occurred, and that the misconduct is connected to the Agency’s mission, it merely has to prove that it chose a reasonable penalty. To do so, the deciding official will testify to his or her analysis of the “Douglas Factors”.

The MSPB is typically very deferential to the Agency’s penalty selection. When the Agency has proved all of the misconduct, the Board cannot insert its own judgment – it can only consider whether the Agency’s selection of a penalty was “within the tolerable bounds of reason”.

However, when the Agency cannot prove all of the misconduct, the Board may substitute its own analysis in assessing the penalty. In either case, the evidence pertaining to the Douglas Factors will prove crucial in your case.

The misconduct affects or “has a nexus to” the Agency’s mission;

The penalty promotes the efficiency of the service.

In all of the above, the Agency has to prove its case by what is called a “preponderance of the evidence”. If just a hair more of the evidence supports the Agency’s charges, they will likely prevail.If you are representing yourself, your Administrative Judge should explain all of this to you very clearly, and provide more information specific to your case.

Please consider retaining an attorney to represent you before the MSPB. Many people can – and do – represent themselves very well before the MSPB. The Administrative Judge’s are typically quite accommodating to pro se litigants.

However, there is a lot on the line. If an adverse action against a federal employee is sustained, it is next to impossible to have it removed from your employment record. Moreover, your federal career could be in jeopardy. If the Agency sustains an adverse action against you, their next step is likely to be removal — the sustained adverse action will typically be Agency Exhibit One.

If you would like to consult with an MSPB attorney regarding misconduct, contact the Law Offices of Eric L. Pines, PLLC as soon as you receive the proposal letter.