MSPB CLARIFIES INDEFINITE SUSPENSION RULES
The law gives management the right to put someone on an immediate, indefinite suspension if it believes the person is guilty of a criminal offense for which he/she may be imprisoned. Unfortunately, agencies are a bit reckless when they use this right and all too often leave a person lingering on suspension well after the threat of imprisonment is over. MSPB just ordered an agency to cut a sizeable back pay check for the employee who it left home without cause.
The case is Camaj v. Dept. of Homeland Security, 2012 MSPB 133. In this case the employee was charged criminally for improperly accessing the agency’s database used to clear travelers into our country. He agreed to sign a Pretrial Diversion (PTD) agreement to avoid prosecution, and on February 22, 2010 the U.S Attorney received notice that the employee had successfully completed the terms of his PTD.
When the agency refused to immediately reinstate Camaj he filed an appeal with MSPB on March 10, 2010. The agency gave him a proposed removal letter on May 19, 2010, and removed him as of November 16, 2010.
MSPB agreed that the employee’s rights had been violated and ordered back pay from February 22 to November 16. It reminded DHS that “an agency must provide reinstatement to the date of the resolution of the criminal charges if it fails to implement an adverse action within a reasonable time” of that date. The Board found DHS had delayed beyond a reasonable time because 1- it had all the information it needed on February 22 to issue the proposed adverse action letter it finally did, and 2- the appellant had admitted in court to the conduct used to remove the employee. It had no reason or need to wait nearly three months to propose the adverse action. The agency had claimed it needed the nearly three months after the February 22 date to investigate the matter.
It would have been a big help to practitioners if the Board had given us a more tangible measure other than “reasonable time.” From where we at FEDSMILL sit if it takes longer than a pay period to issue the letter, the employee is entitled to immediate reinstatement.