When an Agency charges an employee with failure to follow instructions, they are required to prove certain facts: An instruction or order was issued; The Agency was entitled to have the instruction followed; and, The employee did not follow the instruction. It is important that the instruction to the employee be clear – enough to put the employee on...
Continue ReadingIn MSPB Appeals, the Appellant (employee) can assert “harmful error” as a defense to an Agency adverse action. Harmful error can be a difficult concept, even for many attorneys. Here is what it is, in layman’s terms. First – a little background. Because Federal Employees are employed by the United States Government, they typically have a “property interest”, protected...
Continue ReadingTo establish the elements of a performance-based removal action, the Agency again has the Burden of Proof. That is, the Agency must prove the elements of the removal – however, the burden is much lower than in misconduct cases. In a performance case, the Agency must only prove their case by “substantial evidence”. This is the lowest burden of...
Continue ReadingFor attorneys and pro-se appellants, understanding the MSPB Appeal Process can be a bit daunting. Here’s the various stages of your appeal, beginning with the Adverse Action Proposal Letter and continuing through an Appeal to the Full Board. Proposal Letter: This is the most crucial document in the entire process – it proposes the action that the Agency wants...
Continue ReadingA question folks frequently ask when contacting my Firm is an explanation of the difference between a “disciplinary action” or an “adverse action”. A “Disciplinary Action” is a suspension of 14 days or less, written letter of reprimand, or oral counseling. Aside from truly egregious misconduct, an Agency will usually propose a disciplinary action before taking more serious steps....
Continue ReadingIn almost every adverse action case before the MSPB, the issue of the “Douglas Factors” is likely to come up. In short, the Douglas Factors are a tool that the Deciding Official should use in choosing the property penalty to take when a Federal Employee commits misconduct. Later, at hearing, the MSPB will either take testimony regarding the consideration...
Continue ReadingWhen 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...
Continue ReadingIncreasingly, Federal agencies are charging employees with misconduct based on “lack of candor”. This charge is what Agencies use when they can’t prove “falsification”. Falsification is an intentional misrepresentation of some fact. It often arises in filling out some government form, or in the course of an official (or unofficial) investigation – the employee is accused of knowingly providing...
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