Last Chance Agreement Violation With a Side of Fries

By Deborah J. Hopkins, January 30, 2023

A last chance agreement (LCA) is an alternative disciplinary option for an agency when an employee has engaged in misconduct that warrants a removal, but the agency gives the employee one final opportunity to keep her job. Typically, the LCA is offered after the employee’s response to the proposal and before the decision is due. An LCA generally includes the employee’s promise to follow all the agency’s rules and maintain successful performance for two years. In exchange, the agency agrees to purge the proposed removal from the file upon successful completion of the LCA. If the employee violates the agreement at any time within the two-year period, the agency can remove the employee as quickly as the day of the violation without requiring another proposal. (This is all written into the terms which we’ll discuss in more detail during MSPB Law Week March 27-31).

An LCA can be a marvelous tool for agencies when an employee engages in removable misconduct, but the agency wishes to give the employee one more chance to show she deserves to keep her job. There are multiple reasons why an agency would employ an LCA:

• The employee engaged in misconduct the agency cannot ignore, but the employee is truly remorseful
• The employee engaged in substance misuse and agrees to get treatment if the agency gives her another chance
• The employee has a unique skillset and would be difficult to replace
• The job exists in a geographic area where employees are difficult to recruit and a vacant position would be highly problematic for the agency
• The supervisor has reason to believe the employee has learned her lesson

A recent MSPB case, Bollin v. VA, DA-3443-16-0106-I-2 (Jan. 19, 2023)(NP), involved a VA police officer whose removal was proposed based on two charges:

1.    Failure to follow a direct order, and

2.    Failure to follow supervisory instruction.

The deciding official agreed the evidence and penalty assessment supported removal. Prior to the effective date of the removal, the agency and appellant entered into an LCA. Under the terms of the LCA, “the agency agreed to hold the removal action in abeyance for a 2-year period … and purge the removal and agreement from the appellant’s agency file upon completion of the 2-year period … In exchange, the appellant served a 14-day suspension and agreed that, should he ‘engage[] in any substantiated misconduct’ or violate any other term of the agreement within the 2-year period, then the agency would reinstate the removal action and immediately remove him from his position.” Id. at 2.

Several months later, the appellant violated the LCA when he “was 20 minutes late in departing for firearms training and stopped at a McDonald’s drive-thru to purchase food on the way to the training, which constituted an unreasonable delay in carrying out instructions and an unauthorized use of a Government vehicle.” Id. at 3. The agency removed him for these two acts of misconduct. While seemingly minor, the conduct triggered the violation of the LCA.

As these cases go, the appellant filed an appeal to MSPB. The Board found no jurisdiction because the appellant violated the agreement, which had included a provision that he waived his MSPB appeal rights over the initial action. So in the end, Officer Bollin stayed fired.

Other types of misconduct that the Board has agreed violate an LCA include:

• Referring to a co-worker as a “kiss-ass” in a group email (Reveles v. DHS, DA-0752-08-0306-I-1 (May 30, 2008)(ID)
• Testing positive for alcohol and marijuana while on duty (Complainant v. USPS, EEOC No. 0120130190 (2014))
• Possession of marijuana (Bruhn v. USDA, 2016 MSB 42)

Not every LCA violation involves French fries, but this is probably a lesson with details none of us will soon forget. Hopkins@FELTG.com