ARE THESE ADVERSE ACTION SUSPENSIONS LEGIT OR NOT?
Look over these facts to figure out how you would represent these two employees. Then we will tell you the official outcome of the case. The Department of Justice suspended two attorneys for behaving unprofessionally in a case involving prosecution of a U. S Senator. Bottini got 40 days and Goeke 15 days.
The department’s official process calls for the Office of Professional Responsibility to investigate allegations and draft a report recommending disciplinary action. That report was then passed on to the Chief of the Professional Misconduct Review Unit (PMRU) to decide whether s/he agreed with the OPR recommendation and if s/he did to assign the case to a PMRU attorney to review the Douglas factors as well as draft and sign a proposal letter. However, over time the practice became that once the PMRU Chief reached a preliminary conclusion as to whether the OPR report supported discipline the Chief would send the case file to one of his/her attorneys to independently review the report and propose action. The PMRU Chief would make the final decision on the proposal once replies were received.
The agency began doing that. But when the PMRU attorney concluded that the two employees did not deserve to be disciplined at all, he sent an 80-page memo to the PMRU Chief supporting this conclusion with facts, legal arguments and over 300 footnotes. He had decided that the errors the employee did commit were not the result of misconduct, but “the culmination of a series of errors on the part of several agency officials.”
At that point, the PMRU Chief was given permission from a Deputy Attorney General to be the proposing official. The deciding official responsibility was assigned to one of his supervisors. The PMRU Chief recommended a 45-day suspension, which the deciding official reduced to a 40-day suspension after the employee replied. The employee then appealed to MSPB. How would you have defended the employee, assuming you knew all the facts above?
If your first thought was to argue that the employees were not guilty and use the 80-page memo to bolster your case that is good. But, the Board never got to that far into the case. If your next thought was to argue that similarly-situated employees were given disparate penalties, that probably would not work unless you had far more facts than provided above about why they were similarly situated. Checkout “Who Are the Similarly Situated” and “Test Your Adverse Action Defense Knowledge” for the needed details. The same thing goes for any plan to argue the Douglas factors to get mitigation. Many more facts were needed.
If you thought that you would allege harmful error over the switching of the proposing and deciding official roles, we first want to remind you that neither the statute nor Office of Personnel Management’s regulations addresses the particular agency officials who should serve as proposing or deciding officials in adverse employment actions. They do not even speak to the level either agency official should be. However, your instinct was right. MSPB held that the agency committed harmful error because the record shows that had the PMRU attorney been allowed to fulfill his role as the proposing official, rather than been overruled, “it was likely to have caused the agency to reach a conclusion different from the one it would have reached. (See Goeke and Bottini v. DOJ, 2015 MSPB 1 (2015)).
The Board reminded the agency that the Federal Circuit Court of Appeals has twice held that the agency committed harmful error when it did not follow its internal disciplinary procedure. In one case, the employee’s first-line supervisor in that case was not in favor of disciplining the employee, and after he was pressured into proposing the employee’s demotion, the agency removed him from his role as the proposing official and appointed a higher-level official who proposed a more severe demotion. The critical factor is whether the proposing official had reached a final decision on whether to propose action and how severe a penalty.
Admittedly, these particular facts are not likely to pop up very often. However, this case should be helpful to substantiate that the agency should not tamper with proposing officials’ independence. It should also help when the agency practice differs from its formal regulations and a decision must be made as to which takes precedence. In this case the Board enforced the practice over the formal regulations.