1. Selecting and Framing the Charge
When proposing certain disciplinary actions and all adverse actions,(1)a manager must give the employee(2) a written notice setting forth the specific reasons for the proposed action. In recent years, this specificity requirement has translated proposal notices into formal documents in which "charges" and their underlying "specifications" are set out. The Merit Systems Protection Board (MSPB), to which employees subject to adverse actions have a right of appeal, has issued a myriad of decisions concerning the proper way to select and frame a charge. This process is very complex and fraught with dangers for management officials. Even the experts often find the process confusing. Therefore, to ensure proposal notices contain charges that are fair, accurate and defensible, it is essential for managers to consult closely with their employee relations specialists, who may in turn wish to consult with an attorney in the Office of the Solicitor, during the crucial stage of crafting a charge. (It is also imperative that personnelists/managers review any applicable union agreement prior to taking disciplinary or adverse actions to ensure contract compliance.)
To assist human resources specialists and managers, the Department has compiled the following guidance and added a column to the Table of Penalties setting out possible charges. The Department cautions, however, that the following guidance, which is based on the most frequently encountered charging errors, are based on current precedent of the MSPB and United States Court of Appeals for the Federal Circuit. In recent years, the MSPB has overruled or modified what many believed to be well-established principles. Thus, the guidance articulated below is subject to change and managers should not consider it a replacement for consultation with their personnel offices and attorneys.
A. The Agency Must Prove What it Charges
(1) Conduct a thorough investigation before selecting the charge. Keep in mind it is not enough to have just a general idea of what occurred. The agency must prove all elements of the charged misconduct. Perhaps more importantly, an employee facing misconduct charges is entitled to know all of the facts upon which the agency has based its proposed disciplinary action (i.e., who, what, where, when and how). In this regard, it is crucial for management to investigate the matter before initiating action against the employee. This may include interviewing witnesses and other parties involved and/or obtaining written statements and other documentary evidence. The following are examples of types of documentation that may be appropriate depending on the circumstances: audit reports, witness statements, time and attendance records, sign-in or sign-out logs, copies of written communication to the employee. The results of the investigation will form the basis for whatever action is taken or proposed and will become part of the supporting documentation. The proposal or action itself is not evidence that something occurred.
Example: The proposing official knows that an employee took money from the imprest fund. Without investigating further, the proposing official charges the employee with "theft." To sustain the theft charge, the agency must prove that the employee "intended to permanently deprive the owner of possession or use of the money." King v. Nazelrod, 43 F.3d 663, 667 (Fed. Cir. 1994). On appeal to the MSPB, the evidence revealed that the employee replaced the money she had taken. Thus, the agency could not prove an essential element of the theft charge - that the employee intended to permanently deprive the agency of the money - and lost the case. The agency could have avoided losing this case if it had collected all of the facts before choosing the charge. For example, even though the employee replaced the money, she could have been charged with "unauthorized use of government funds" or "unauthorized removal of government funds", charges which do not contain the element of "intent to permanently deprive."
(2) Make sure the facts support the charge. A common problem in the charging process is to over-describe the misconduct, resulting in a charge unsupported by the facts. In addition to raising possible fairness issues, an overly descriptive charge can lead to an MSPB decision unfavorable to the agency.
Example: In one recent case before the Board, the agency charged the employee with "verbal abuse and physical threats made to another employee." Acox v. USPS, 76 M.S.P.R. 111, 113 (1997). At the prehearing conference, the administrative judge split the charge in two, finding the agency had charged the employee with (a) verbal abuse and (b) physical threats. Id. The judge then upheld the verbal abuse charge but found that the facts did not support the second charge of physical threats. Id. On a petition for review, the Board reversed, finding that an agency's charge may not be split when it is based on a single act. Id. at 114. Thus, the Board held that the agency had to prove that the acts of misconduct constituted both verbal abuse and physical threats. Id. The Board therefore found that the agency failed to sustain this charge. If the agency had labeled the charge only "verbal abuse of another employee," the Board indicated it would have sustained the charge.
In addition, keep in mind that if the facts do not support the charge, and all of the charges are therefore not sustained by the Board, the Board may use its own judgement in determining what a reasonable penalty would be based on the Douglas factors (see Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) and discussion in Part 2 of this handbook). While it will not guarantee success, it is suggested that, in the case of multiple, serious charges, a statement be included in the decision letter that any of the serious charges, standing alone, would justify the penalty imposed, based on the specifications of each charge and the Table of Penalties. (See White vs. USPS, 71 MSPR 521 (1996)).
B. Common Pitfalls in the Charging Process
(1) Avoid duplicative charges. Another mistake agency charge writers make is to use a single act of misconduct as the basis for charges that are not factually or legally distinct from each other. Where a general charge such as conduct unbecoming a Federal employee is based on the same specification or set of facts as a more specific charge, such as AWOL or falsification, the Board will "merge" the charges, turning the two charges into one:
Example: In Gunn v. USPS, 63 M.S.P.R. 513 (1994), the agency charged the employee with (1) unacceptable conduct in violation of an agency's employee relations manual and (2) falsification of a leave form. Both charges stemmed from an incident in which the employee forged another employee's name on a leave form. The Board merged the general charge of unacceptable conduct into the more specific falsification charge on the ground the agency had not alleged any facts other than the falsification of the leave form to support the charge. The Board therefore held that this one act could not form the basis for the two charges. See also, Wolak v. Department of the Army, 53 M.S.P.R. 251 (1992) (Administrative Judge should have merged a "conduct unbecoming" charge into charges of (1) misuse of government time and property and (2) providing false statement and impeding an investigation). In another case, the agency charged the employee with (1) destruction of government property and (2) unauthorized use of bolt cutters. Delgado v. Department of the Air Force, 36 M.S.P.R. 685, 688 (1988). Again, both charges stemmed from a single act, which was that the employee used the bolt cutters to cut a chain securing a three-wheeled cycle in an attempt to move the vehicle. The Board held that since the charges were based on the same act the agency should have assigned only one charge.
Note: An agency may craft more than one charge arising from a single incident where proof of one of the charges does not necessarily constitute proof of the other charge(s). For example, an agency charged an employee with, among other things, (1) using her public office for private gain and (2) conversion of government property. Both charges were based on the employee's personal use of a Federal Express air bill containing the agency's account number. The MSPB held that the two charges did not merge because proving one charge did not automatically mean that the agency had proven both charges. Specifically, the MPSB noted that while the agency proved the second charge, it did not meet its burden of proof for the first charge (i.e., the agency had to also prove private gain to the employee). Mann v. HHS, 78 M.S.P.R. 1 (1998).
The consequence of an MSPB ruling which merges two charges into one is that the Board will determine the maximum reasonable penalty that may be imposed for the single sustained charge. Barcia v. Department of the Army, 47 M.S.P.R. 423, 430 (1991). In almost all cases that means the Board will mitigate the agency-imposed penalty and, for example, replace a removal action with a lengthy suspension.
(2) Omit charges that refer to a regulation or statute. This is a variation on the general rule that the charging official must make sure the facts fit the charge. In this instance, the problem arises when the charge contains a citation to a regulation or statute.
Example: If an employee makes unwanted sexual advances to a co-worker the charge in the proposal notice may read "Misconduct of a sexual nature in violation of 29 C.F.R. § 1604.11(a)." Under Board precedent, the charge has two elements: (a) misconduct of a sexual nature and (b) a violation of 29 C.F.R. § 1604.11(a), the regulation which contains the EEOC's definitions of sexual harassment. To sustain the action, the agency will have to prove that the employee's conduct met the regulatory definition of sexual harassment, a heavy burden which will require the agency to show that the employee's conduct created a "hostile work environment" or constituted "quid pro quo" harassment. Downes v. FAA, 775 F.2d 288 (Fed. Cir. 1985); Alsedek v. Department of the Army, 58 M.S.P.R. 220 (1993). In contrast, if the agency merely charges the employee with "misconduct of a sexual nature," the agency will have to prove only that the employee made unwanted advances to a co-worker that were sexual in nature. See also, Pittman v. Department of the Interior, 60 M.S.P.R. 365, 372 (1994) (Where agency charged employee with "removal of Government property without proper authorization in violation of 43 C.F.R. § 20.735-15" the agency had to prove not only that the employee removed government property from agency premises without proper authorization but that such action violated the cited regulation).
(3) Avoid hiding the charge in the specification. Often an employee's bad behavior seems to defy specific description or the employee has committed various acts of misconduct to which managers are reluctant to attach specific labels. In both situations, the proposing official may charge the employee with "inappropriate conduct". The proposing official will then set forth the particulars of the misconduct in the accompanying specifications. Under this scenario, the agency runs the risk of an Administrative Judge defining the charge as something other than the agency intended. Except in very limited circumstances, this type of charge should be avoided. If a manager must use a general charge, "conduct unbecoming a Federal employee" may be an appropriate label as it connotes unseemly or distasteful conduct.
Example: The agency is investigating an allegation that an employee violated procedures for handling agency money. During the investigation, the employee tells a witness (and subordinate) that whatever the subordinate says to agency investigators can be used against him, the supervisor, and that the subordinate needs to be careful of what she says to the investigators. In the ensuing proposal notice, the agency charges the employee with "unacceptable and inappropriate behavior by a supervisor." Under MSPB precedent, an administrative judge must determine the essential elements of the charge. Hanner v. Department of the Army, 55 M.S.P.R. 113 (1992). Since the charge is ambiguous, the administrative judge must look to the specification to define it. In this case, the specification states that it appeared that the supervisor was trying to persuade the subordinate employee into not cooperating fully in the investigation. Based on this specification, the administrative judge may well characterize the charge as "Engaging in unacceptable and inappropriate behavior as a supervisor with the intent to impede or interfere with an investigation." In so doing, the administrative judge adds additional elements the agency must prove to prevail before the MSPB. Because the agency's facts do not support the charge, the agency loses. See Crouse v. Department of the Treasury, 70 M.S.P.R. 623 (1996); Crouse II, 75 M.S.P.R. 57 (1997), (case upon which this example is loosely based). For this particular example, had the agency charged the employee with "making an improper statement to a subordinate to be interviewed pursuant to an agency investigation", it may have had more success in defending itself. (Note: On appeal to the United States Court of Appeals for the Federal Circuit, the court reversed and remanded the MSPB's decision on the ground that the MSPB Administrative Judge had not properly interpreted the entire specification in giving content to the charge of "unacceptable and inappropriate behavior by a supervisor." LaChance v. MSPB, 147 F.3d 1367 [Fed. Cir. 1998]. The appeals court also ruled, however, that where an agency uses a vague, general label charge, an Administrative Judge must look to the specification to give content to the charge. Thus, if the specification had been drafted as narrowly as in the above example, the court likely would have upheld the AJ's determination that the agency had charged the supervisor with "engaging in unacceptable and inappropriate behavior as a supervisor with the intent to impede or interfere with an investigation.")
(4) Limit the information in the specification to the facts necessary to support the charge. The specifications contain the factual basis for each charge. A good specification sets out only those facts necessary to prove each element of the charged misconduct (i.e., who, what, when and where). Other information, such as prior misconduct or mitigating information should be placed in the sections of the proposal and decision documents that discuss the appropriate penalty. Similarly, pertinent background information could be inserted into a "background" section. Organizing the proposal notice and decision letter in this way helps to avoid prehearing rulings in which the agency could be held to a higher standard of proof.
Example: Charge: "Claiming overtime for hours not worked"
Specification (1): On December 11, 1996, your normal tour of duty was 7:30 a.m. to 4 p.m. Surveillance records for December 11, 1996, reveal that you arrived at your duty station at 7:30 a.m. and left for the day at 2:20 p.m. You did not take a lunch break that day so you were entitled to claim barely 7 hours of regular time. Instead, you claimed 8 hours of regular time plus three hours of overtime. (This is an example of a well-drafted specification.)
Background: In this section the proposing official could discuss any pertinent background information.
Penalty Section: The proposing official could discuss the employee's record, explanation for over-claimed time and should address the Douglas factors.
(5) Clearly delineate between the charge and each specification. As discussed above, an agency must prove all elements of its charge. Each specification should include enough information to meet all elements of the charge. If the agency proves only one of its specifications, MSPB will sustain only that charge. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990); Avant v. Department of the Air Force, 71 M.S.P.R. 192 (1996); Payne v. USPS, 72 M.S.P.R. 646, 649 (1996). To avoid adding elements to a charge, the charge should be clearly labeled in the manner set forth under Item (4), above, and each specification should likewise be labeled.
In conclusion, it is important to keep in mind that if a charge is not properly framed the agency cannot later modify or correct the proposal letter already given to the employee. Rather, management must begin the process over again or it is likely to be reversed. In this regard, human resources specialists, managers and supervisors will find it helpful to first carefully craft a charge and write it out. Later, the charge writer should review what has been written, with an eye toward determining whether each specification fits under the charge and that the charge does not create an unnecessary burden of proof. Also, the proposal letter should be looked at from the standpoint of the employee: will he or she understand what the charge is for and what specific act or acts of misconduct he or she must defend against? If not, modifications can then be made as appropriate prior to issuing the proposal letter to the employee.
1. For the purposes of this document, an "adverse action" is defined as a suspension for more than 14 days, a reduction in grade, a reduction in pay, removal, or a furlough of 30 days or less (5 U.S.C. § 7512). Adverse actions are appealable to the Merit Systems Protection Board (MSPB) or through a negotiated grievance procedure, if applicable. They are also appealable through the EEO process if discrimination is alleged. Also for the purposes of this document, "disciplinary actions" are actions taken for misconduct which include letters of reprimand and suspension for 14 days or less. Although not directly appealable to MSPB, disciplinary actions may be appealable through a negotiated grievance procedure, the administrative grievance procedure, or the EEO process if discrimination is alleged. Advance written notice is not normally required for lesser disciplinary actions (i.e., letters of warning and reprimand).
2. Most employees who have completed their probationary periods are covered by this guidance. Managers should consult their personnel offices with questions about the applicability of this guidance to particular employees.