Sometimes I Just Want to Sit Down and Cry

By William Wiley

Here at old FELTG, we get some pretty attenuated questions; e.g., “But Bill, what if the individual is actually the hybrid spawn of a space alien and married to a retired federal employee? Is he still entitled to survivor benefits EVEN THOUGH HIS ALLEGIANCES GENETICALLY SPEAKING CLEARLY ARE TO ANOTHER SOLAR SYSTEM???”

Yes, there are some really far out issues in the field of federal employment law, issues for which any answer is just an educated guess. And then, every now and then, we get a question about something so basic, so fundamental to our business, that it makes us consider giving up the fight. How can we maintain a protected civil service when some of the people who are supposed to know, don’t know even the fundamentals? Recently, we got a question from a FELTG-Friend who is trying to do the right thing, but is catching a load of resistance from some smarty-pants up the chain of command who thinks he knows better. Here’s the question and our response.

Question:

Dear FELTG – I am getting pushback on whether the proposing officials are required to conduct a Douglas Factor Analysis.  We have been doing that for a long time and I believe you have taught this in your classes.

5 CFR 752 states, (b) Notice of proposed action. (1) An employee against whom an action is proposed is entitled to at least 30 days’ advance written notice unless there is an exception pursuant to paragraph (d) of this section. The notice must state the specific reason(s) for the proposed action, and inform the employee of his or her right to review the material which is relied on to support the reasons for action given in the notice.

Your thoughts?

Our Answer:

Dear Concerned Reader – Always nice to hear from you. However, it saddens (and angers) me greatly that after all these years, you would get pushback on something this basic. Here’s the deal.

1. Thirty-five years ago, back in 1981, the Douglas decision itself said that the Douglas factors should be included in the Proposal Letter (thereby requiring the proposing official to do a Douglas factor analysis). Here’s a direct quote from Douglas:

Moreover, aggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …

The “advance notice” is what we call the proposal latter, so there it is in black and white. Occasionally, I run into a practitioner who wants to argue that only the “aggravating” Douglas factors have to be included in the proposal letter, not ALL of them. Well, that’s correct. But do I really want to get into a fight about whether a particular factor is aggravating or mitigating? For example, is an eight-year length of service aggravating or mitigating? The smartest thing to do is include all the Douglas factors in the proposal, thereby satisfying the mandate in Douglas without the risk of mistakenly calling something mitigating when a judge decides it was actually aggravating.

2. Due process requires that we notify the employee why his removal is being proposed (thereby allowing him to defend himself), then make the decision. That notice goes into the Proposal Letter, followed by a decision on the proposal in the Decision Letter. In 2009, the Board said that it was OK for the Decision Letter to contain penalty factors not in the Proposal Letter, reasoning that due process did not require prior notice of facts related to the penalty, only to the actual misconduct. Well, the Federal Circuit Court of Appeals thought that was stupid and reversed the Board, thereby ruling that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, 2010-3021 (Fed. Cir. 2011). If you think about it, it just makes sense. The employee should be allowed to defend himself, to correct the record BEFORE a decision is made. If the Proposal Letter does not contain the Douglas factors, and the Deciding Official relies on an incorrect Douglas factor (e.g., mistakenly believing that the employee has poor performance or did not apologize for the misconduct), the employee has been denied the opportunity to defend himself.

3. Given that Douglas requires that the penalty factors be in the Proposal Letter, and that Ward prohibits the Deciding Official from considering any penalty factors not in the Proposal Letter, here’s the best practice that we now teach:

• The Proposal Letter analyzes all 12 Douglas factors in great detail using an attached Douglas Factor Worksheet.
• The employee responds and defends herself.
• The Deciding Official considers only the proposal and the response in making his decision.
• If he agrees with the Douglas factor analysis of the proposal, he says nothing extra about the penalty assessment. Instead, the decision letter says something like this: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” That way, he avoids a Ward mistake.
• If he disagrees with the assessment of the Douglas factors in the Proposal, or wants to consider other penalty facts that were not in the proposal, the safest thing for him to do is to notify the employee of these extra ruminations, and allow her to respond. Otherwise, he runs a risk of a due process violation. He may get away with not taking this extra step, but I don’t believe in taking chances when I can avoid them. I am a careful man, at least when it comes to defending a removal.

Hope this is helpful. Again, I cannot stress how much it bothers me that someone in a position to know better is giving you push back on an issue this basic. Our famous MSPB Law Week seminar is coming up in June in San Francisco. Maybe give the guy FELTG’s toll-free number so we can register him: 844-at-FELTG. Lord knows he needs it, and so does our great country.

(In a related vein, separate from this emailed question, last week in one of our FELTG seminars, a participant asked me if her agency was making a mistake with the Douglas factor analysis. As she explained it, the Proposal Letter policy in her office was simply to identify each of the 12 factors as either “Aggravating” or “Mitigating” without any detail as to the facts relied upon by the Proposing Official to reach that conclusion. I almost cried. How anyone in our business could possibly think that relying on secret facts to determine a penalty satisfies the Constitutional requirement for due process is simply beyond my ability to grasp. Friends, I realize that it would be additional work. But we need practitioner certification. And we should allow only Certified Practitioners to make these sorts of decisions. You don’t learn this stuff in law school. You can’t possibly learn all that needs to be learned by on-the-job experience because you won’t take enough adverse or performance removals in a career to cover all the bases. For the sake of our Great Country (or our soon-to-be great again country, depending on your politics), please get trained. And, feel sorry for people who are not.) Wiley@FELTG.com