Ask FELTG: Is There Case Law That Warns Against Alternative Discipline?

September 1, 2023

Much like the Merit Systems Protection Board, we at FELTG are longtime proponents of alternative discipline. And why not? In many cases, alternative sanctions are the more effective approach when addressing misconduct.

Not too long ago, we received the following question:

For alternative discipline agreements, and even last chance agreements, are there a couple good cases that pop into mind for me to look at, that would warn AGAINST doing these BEFORE a proposal is issued? 

FELTG’s answer:

There are no cases that warn against entering into an alternative discipline agreement prior to the issuance of a proposal. The manager says to the employee, “Bob, I could propose that you be removed for that, but if you’ll voluntarily accept a 14-day suspension without appealing, that will end this thing.” Write it up, sign it, and it’s settled. There is no case law on something like this because it could not get to MSPB in any normal fashion.

Perhaps a creative union attorney could argue that in a subsequent removal for new misconduct the agency should not be allowed to rely on the alternative discipline suspension as an aggravating Douglas factor because it was coerced, but we haven’t seen that — and there are plenty of cases showing that a voluntary settlement is not coercion. In addition, the Board would most likely not want to get involved in reviewing the prior action.

Last Chance Agreements (LCAs), on the other hand, are critically different. That’s because if an LCA is done properly, the employee acknowledges that the prior proposal warrants removal, but is agreeing to refrain from future misconduct for some period of time in exchange for the agency holding the removal decision in abeyance. Then, if the employee engages in a new act of misconduct, the original proposal is implemented, not a removal-decision based on the new misconduct. You have to have a proposal in place to make use of a last chance agreement. Any case law you find that discusses “abeyance agreements” should give you authority if you need it.

Looking for more guidance on this topic, register for Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives on Nov. 14. Can’t wait, or you’re looking for more general disciplinary or MSPB content? MSPB Law Week returns Sept. 11-15.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.