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In any proposal letter, there should be a section that allows you to request the “material relied on” before responding to the proposed action. It is important that you request this information, for many reasons. One of the biggest reasons is that it is much harder to get the information from the Agency in the discovery process before the Merit Systems Protection Board (MSPB).

Often times, Agencies do not provide the material relied upon they provide some information to support their charge. What then, are some examples of material relied on? Here are some common items that you should ask for:

Official Personnel File (OPF)

Employee Performance Folder (EPF)

Drop files maintained by your manager

Copies of any email correspondence supporting facts raised in the proposal

Complete printed copy of the Collective Bargaining Agreement

Complete printed copy of any policies or regulations referenced in the proposal

A copy of your position description

An organizational chart (with names and numbers, this document can be extremely helpful to your attorney)

Copies of all relevant time sheets (if your action involves time, leave or attendance)

A copy of the Agency’s penalty guide

Documentation showing penalties for other employees charged with the same misconduct.

List of individuals involved in the decision to propose the Agency’s action

Much, much more.

If you ask for this information, and it is not provided, and your Deciding Official then uses it in making their decision, they might commit harmful error, depending on the particular circumstances of your case. It’s best to consult with an attorney if you think that you have not been provided all of the material relied upon by your Agency.

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Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.

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