Ask FELTG: Are There Restrictions on Gift-giving Between Feds Who are friends?

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December 4, 2023

This question came into the Ask FELTG mailbag: I know there are prohibitions on gift-giving when it involves Federal employees, but are there any restrictions on gift-giving if two people who are friends also happen to be Federal employees

The source for all things gift-related is 5 CFR Part 2635, and Subpart C specifically relates to Gifts Between Employees. The main area of concern involves gift-giving when there’s a supervisor-subordinate relationship, and/or a discrepancy in pay. According to § 2635.302, an employee may not — directly or indirectly — accept a gift from an employee receiving less pay than himself unless:

  • The two employees are not in a subordinate-official superior relationship; and
  • There is a personal relationship between the two employees that would justify the gift.

Unless the friends work for the same agency, and one was the superior of the other, there is probably not an ethical concern about gift-giving if there are no ulterior motives.

If the two of you work for the same agency and there’s a superior-subordinate relationship, you’ll probably want to check with your agency’s Ethics office or Office of General Counsel if you have any concerns. Info@FELTG.com

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The information presented 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.

Ask FELTG: How Much Information Do You Need in the Proposal Letter?

October 23, 2023

The following question came into Ask FELTG:

Must the proposal letter in a proposed disciplinary action contain everything the agency has relied upon in making the proposal?

And here’s the answer:

The letter itself does not have to contain the agency’s entire case against the employee. At a minimum, the proposal must include the charge(s), the proposed penalty with aggravating factors identified, and the employee’s rights at this stage in the process, which under 5 CFR 752.203 and 752.404 includes the right to review the material relied upon.

An NP MSPB case from this past summer addressed this very question. The appellant challenged that the agency did not include in the notice all the material relied upon. The MSPB, however, noted that the proposal notice “informed the appellant of her right to review the material relied upon to support the reasons for the proposal notice.” Duffey v. USPS, DA-0752-16-0105-I-1, ¶5 (Jun. 20, 2023).

The MSPB explained that a proposal notice does not have to be a “self-contained document.” An agency can meet the notice requirement “when attachments to the proposal, together with the proposal itself, provide the employee with specific notice of the charges against her so that she can make an informed and meaningful reply.” Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004).” Id.

We recommend keeping the proposal letter short and to the point, but including all material relied upon in the proposal packet to save your agency time and resources, and a lot of potential back and forth. In addition, as Bill Wiley and I explain in the 5th Edition of the textbook (and the training class) UnCivil Servant, “doing so proactively avoids any claims that the employee was somehow denied the documents relied upon.”

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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.

Ask FELTG: Our Agency Has a Table of Penalties, Must We Follow It?

October 10, 2023

Not all agencies have tables of penalties; approximately half do. For those not familiar with the concept, a table of penalties contains a list of misconduct charges, and a range of potential discipline for a first, second, and third offense. (See example of a penalty table below.)

It’s not mandatory that an agency use its penalty table; it merely serves as a guide. There may be a good reason for an agency to go outside the range of discipline suggested, which is absolutely permitted. See, e.g., Farrell v. Interior, 314 F.3d 584 (Fed. Cir. 2002).

In fact, the deciding official (DO) in a recent, memorable nonprecedential decision from the MSPB did just that. An IRS employee called in to the Howard Stern radio show while he was at work, was placed on hold, began working, and was taken off hold while he was on the phone with a taxpayer. He unknowingly revealed that taxpayer’s personally identifiable information (PII) to the Howard Stern audience live.

Publicly revealing the taxpayer’s PII was the appellant’s first offense of misconduct. However, the severity of the harm and the bad publicity, among other Douglas factors, caused the agency to impose a severe penalty — removal.

The appellant challenged his removal as too harsh. He referred to the penalty table, which set a range of “written reprimand to a 14-day suspension” for the careless, reckless, or negligent disclosure of PII. The Board found that, “in light of the egregiousness of the appellant’s misconduct, the deciding official did not abuse her discretion in deciding to exceed the table of penalties and remove the appellant.” Forsyth v. Treasury, NY-0752-16-0246-I-1 (Mar. 15, 2023)(NP).

For more on outside-the-box MSPB practice, join us for the brand-new Advanced MSPB Law: Navigating Complex Issues Oct. 31 – Nov. 2. Hopkins@FELTG.com

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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.

Ask FELTG: MSPB Only Has 2 Members; What Happens if They Don’t Agree on the Outcome?

September 26, 2023

As the FELTG newsletter reader pointed out, the Merit Systems Protection Board (MSPB) is currently down a member. So what happens if the two remaining members can’t agree on the outcome of a Petition for Review (PFR)?

It’s a great question.

And here’s our answer.

If this happens, and the Board issues what is known as a split decision, the administrative judge’s (AJ) decision becomes the Board’s final, nonprecedential decision. It’s fairly rare to see a split decision, but two were issued during the first week of September. Let’s take a look at one.

The facts of the case are described in the initial decision, Wilber v. DOD, DC-0432-22-0097-I-1 (Mar. 18, 2022). The agency put the appellant, a GS-13 Accountant, on a 30-day PIP after informing him he was performing at an unacceptable level on two critical elements in his performance plan. Because of the appellant’s absences during the PIP, the agency extended the PIP another six days. According to the initial decision, the agency “established that the appellant’s performance was unacceptable prior to and during his placement on a PIP by the substantial evidence standard.” Id. at 40.

Still, the AJ found the agency did NOT provide the appellant with a reasonable opportunity to demonstrate acceptable performance. Several months prior to the PIP, during a performance feedback meeting with his supervisor, the appellant told the supervisor he had a learning disability that contributed to his performance issues. The supervisor “reached out to HR to meet any requirements to address the appellant’s learning disability.” Sounds good so far, right?

The initial decision goes into a lengthy discussion about the appellant’s raising of other medical issues and the supervisor’s reactions, including that he “was still waiting for the appellant’s RA paperwork.” Id. at 44. Uh-oh.

According to the AJ:

[I]t does not appear that a reasonable person, considering the record as a whole, might accept that 17 work-day PIP period, and particularly one that the employee lacked the RA tools he need to perform his duties, is a sufficient amount of time to expect the appellant to correct the above deficiencies, or for the agency to make a determination that he would not.

The agency in this case has not cited to any case law in which the Board or the courts have previously held that a 17 work-day PIP period (particularly where the employee is without the tools he needed to perform his duties pursuant to a RA request), on its face, would ever be a sufficient amount of time to afford an employee the required “reasonable opportunity to improve,” and my extensive research on this issue has produced none.

Id. at 49.

Longtime FELTG students may recall class discussions of a Board case where a 17-day PIP period was found to be acceptable: Bare v. DHHS, 30 MSPR 684 (1986). Whether this did not come up in the AJ’s research, or the facts in Bare were different enough to distinguish the case, we may never know.

Because the Board members disagreed on the outcome in Wilber (with no discussion in the case about why), the AJ’s decision stands and the employee remains reinstated. Wilber v. DOD, DC-0432-22-0097-I-1 (Sept. 7, 2023)(NP).

If you’re interested in reading the (very strong) opinions of the Board members on another recent split decision involving a misconduct-based removal, check out Brinson v. Navy, DC-0752-14-1129-B-1 (Sept. 8, 2023).

We’ll be discussing these tricky topics and much more during the upcoming brand-new class Advanced MSPB Law: Navigating Complex Issues, October 31 – November 2.

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.

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.

Ask FELTG: Does union rep have right to attend staff meeting whenever he wants?

July 31, 2023

Here’s a summarized version of the question that came into FELTG headquarters:

I run a monthly staff meeting with the employees I supervise. They are bargaining unit employees. I received a request from a union rep to attend the staff meetings. I asked him the nature or reasons for his attendance, and he told me: “The union has a right to attend any staff meeting.” He sent a reference to 5 U.S.C. 7114 as his justification.

I need some advice. To my knowledge, no investigation has been launched or a grievance filed, so I’m confused as to why he needs to be present in the meeting.

Is this union rep correct? Can he attend a staff meeting without being invited by an employee and sit in as an observer whenever he wants?

Our perfunctory answer is: No. The union can propose that right and then negotiate to try to get it into the contract, but the statute says nothing about requiring management to allow a union representative into every single work meeting.

By law, there are two occasions when there are rights for a union rep to be in a meeting:

– Weingarten: If a management official (e.g., you) is questioning a bargaining unit employee, and that employee might be disciplined for misconduct, IF the employee requests a union rep, he has that right. Once the rep is in the meeting, he can speak on behalf of the employee, but not control your questioning. This is a statutory employee right.

– Formal Discussion:  If a management official is meeting with bargaining unit employees to discuss working conditions (e.g., how to apply for annual leave around a holiday), the manager must notify the union in advance of the meeting and the topic and allow a rep to be present if the union wants to attend and participate. This is a statutory union right.

Union and management sometimes negotiate to allow union reps into other sorts of meetings (e.g., safety meetings). If that has happened, it would be part of the union contract.

We encouraged our faithful reader to get training on this topic, as one misplaced word by a single management official when working with a union can really mess things up.

FELTG is offering a 60-minute webinar on Aug. 22, titled What Supervisors Should Know About Official Time, the final class in our Supervisory Webinar series. Register here. Or, for a more detailed training, you can attend one or more days of FLRA Law Week, running from Sept. 18-22. The Sept. 19 session will include a module on Meetings. Register here.

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.

Ask FELTG: If an employee is AWOL, should agency charge only AWOL or also Failure to Follow Leave procedures?

June 26, 2023

Thanks for the question; it’s one we get fairly frequently. Let’s look at what the Merit Systems Protection Board (MSPB) says on this matter:

AWOL and Failure to Follow Leave Procedures generally are separate charges with different elements of proof. Valenzuela v. Army, 107 M.S.P.R. 549, 553 (2007).

There are two elements of an AWOL charge:

1. The employee was absent without authorization, and

2. If the employee requested leave, the leave request was properly denied.

Wesley v. USPS, 94 M.S.P.R. 277, ¶ 14 (2003).

To prove Failure to Follow Leave Procedures, the agency must show that the employee failed to request leave for an absence, and that he was clearly on notice of leave-requesting requirements, and the likelihood of discipline for failure to comply. Allen v. USPS, 88 M.S.P.R. 491, ¶ 10 (2001).

If an employee is a no-show at work and did not request leave, there are two separate incidents of misconduct. An agency is “doubly burdened” by an unscheduled absence; once for the loss of the employee’s services, and again for the loss of the opportunity to plan for the absence. Yartzoff v. EPA, 38 M.S.P.R. 403 (1988). In this instance, both charges would make sense.

If the employee properly requested leave, and it was denied, and the employee did not report to work anyway, a sole charge of AWOL would make the most sense.

Under some circumstances, the charges of failure to follow leave procedures and AWOL merge: The charges of failure to follow leave-requesting procedures and AWOL must be merged when they do not involve different misconduct or elements of proof; that is, when the charge of AWOL was based solely on the appellant’s failure to follow leave-requesting procedures. Westmoreland v. VA, 83 M.S.P.R. 625, ¶ 6 (1999), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds as recognized in Pickett v. USDA, 116 M.S.P.R. 439, ¶ 11 (2011).

For a recent case on the matter, check out Doulette v. USPS, NY-0752-17-0060-I-1 (Jun. 5, 2023)(NP), where the agency charged the appellant separately. The Administrative Judge merged the two charges but because the AWOL charge was not based solely on the appellant’s failure to follow leave procedures, the Board determined the merger was not appropriate and upheld the separate charges, and ultimately, upheld the removal. Id.

Looking for more advice on leave matters? Attend the upcoming virtual training Mastering Sick Leave and FMLA: A Roadmap for HR Practitioners July 11-13.

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.

Ask FELTG: Does a Local CBA Trump an Agency’s Nationwide Policy?

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June 14, 2023

Here’s more context from the loyal FELTG reader who posed the question:

Let’s say, hypothetically, management at a regional outpost agrees to terms regarding office workspace with their local union, and then enters into a CBA articulating those provisions. Later, the national agency management team creates a policy on office workspace that is inconsistent with the local CBA.

Which policy controls at the outpost? Is it the local policy as stipulated in the CBA or the national policy? Can the actions of a manager at the local level essentially prevent the agency’s leaders from having a universal policy?

Here’s FELTG’s answer:

The union agreement always trumps an agency’s new policies with two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (DC Cir, 2009).
  2. The new policy is implementing a new law. (The incontrovertible law part of the new policy is effective right away. However, the agency still must bargain I&I and any flexible parts of the law).

So, let’s say local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

Here’s an example we like to discuss during FLRA Law Week (next held September 18-22). Years ago, the Secretary of HHS declared through a new policy that the work places within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Very reasonable reason for a new policy, we tend to think.

However, it conflicted with several local CBAs, including at NIH, which had old provisions allowing designated smoking areas.

There was a huge welcome sign as you entered the main campus of an HHS sub-agency that states it is a “totally smoke-free environment.”

Several times, we had to plead with FELTG Past President Bill Wiley to not add a comment to the sign, stating “unless you’re in certain bargaining units.”

Have a question, Ask FELTG.

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

Ask FELTG: If an employee is out of leave and requests Leave Without Pay for an ongoing illness, is the agency required to grant the LWOP?

May 30, 2023

Thanks for the question. And the answer is … it depends.

A foundational principle regarding Leave Without Pay (LWOP) is that granting or denying LWOP is within the agency’s discretion. See Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011). In cases involving employee medical issues, the MSPB will examine the record as a whole to determine whether the agency’s denial of LWOP was reasonable under the circumstances. Id. When an employee who is incapacitated for duty has exhausted all of her leave, an agency may deny LWOP when there is no foreseeable end to the employee’s absence and the employee’s absence is a burden to the agency. Id.

Allow us to elaborate by way of a recently issued NP case from the MSPB, Evans v. DOL, CH-0752-15-0179-I-1 (May 3, 2023)(NP). Evans was removed for AWOL after the agency denied her request for continued LWOP related to an illness. On appeal, the AJ affirmed the agency’s AWOL charge and concluded that the agency’s denial of LWOP was reasonable because there was no foreseeable end to her absence, and the absence was a burden to the agency. The Board agreed.

Agency policy on LWOP often arises in these cases, and Evans was no exception: “The agency’s policy specifically indicates that the granting of LWOP is discretionary…While it does allow officials to grant LWOP pending final action by the Office of Personnel Management on a disability retirement claim, at their discretion, the policy does not specifically cover the appellant’s situation, when she was AWOL but apparently still deciding whether to apply for disability retirement.”

The intersection of leave and medical issues is one of the more complex areas in Federal employment law, and mistakes can cost the agency dearly. If you work in this arena, FELTG has an upcoming training opportunity you’ll want to take advantage of:

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.

Ask FELTG: Could Last Chance Agreement Open Agency to Disparate Treatment Claim?

May 1, 2023

The following question came into the FELTG mailroom.

Our agency sometimes uses Last Chance Agreements, but a few members of leadership are concerned that offering LCAs to only certain people could open the agency up to claims of disparate treatment discrimination. What are your thoughts?

The good news is that the MSPB has said that an agency’s decision to enter into a settlement agreement with an employee generally cannot form the basis for another employee’s disparate treatment claim. See Ragolia v. USPS, 52 M.S.P.R. 295 (1992); Lewin v. Department of Justice, 74 M.S.P.R. 294 (1997). The Board explained that “to require such an explanation from the agency in order to discount a disparate treatment claim would have a chilling effect on settlement agreements, which are, after all, favored by the courts and the Board.” Ragolia, 52 M.S.P.R at 304.

A recent NP Board decision affirmed this principle. In this case, the appellant was removed after he tested positive during a scheduled drug test. He admitted he had taken THC tablets two days prior to the test, to cope with alcohol withdrawal. He challenged his removal and claimed a due process violation because he was not offered an LCA. The MSPB, citing Lewin, found there was no valid claim of disparate treatment because settlements with other employees need not be explained. Oneal v. USAF, AT-0752-15-0666-I-1 (Feb. 22, 2023)(NP).

For more on this topic, join FELTG for the all-new virtual class Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives on May 17.

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.