ASKING THE SPOUSE IS A D.O. DUE PROCESS NO-NO
When a federal firefighter failed a random drug test, he claimed that he must have mistakenly taken one of his mother’s pills given that they live together. The agency decided not to buy that excuse and proposed his termination. When the employee made the same claim as part of his official reply, the Deciding Official (D.O.) elected to ask his wife, a nurse, whether it was likely someone could confuse the pills the employee was legitimately prescribed for the pill he allegedly took from his mother’s prescribed pills. For good measure, he also asked his brother-in-law, another nurse. When both said it was most unlikely, the DO upheld the termination. Can you see yet why the federal courts overturned this removal even though the arbitrator of his grievance refused to do so?
Almost every federal employee who has completed a probationary or trial period is entitled to Constitutional due process. Among other things, that means a deciding official cannot consider “new and material evidence” gathered after an employee has made his/her reply to the proposed charges. Typically, the D.O. gets this new information from someone, which the court labels an ex parte communication.
To determine whether information is “new and material,” the court considers:
- “whether the ex parte communication merely introduces ‘cumulative’ information or new information;”
- “whether the employee knew of the error and had a chance to respond to it;” and
- “whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner.”
Ultimately, the court, MSPB or arbitrator must determine whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances. If it is, the violation is not subject to the harmless error test. The court wrote,
It is “constitutionally impermissible to allow a deciding official to receive additional material information that may undermine the objectivity required to protect the fairness of the process.”
The arbitrator decided not to overturn the firefighter’s removal despite the D.O. admitting on the record that he questioned his wife and brother-in-law about the case. The court, on the other hand, concluded the arbitrator was wrong because the medical opinions of the wife and brother-in-law were not further evidence of something already in the record, but new information, never considered earlier in the case.
The court also relied on the fact that the D.O. only admitted to contacting his wife and brother-in-law in the arbitration. Given that was long after the employee made his reply to the charges, it was too late for the employee to correct before the decision to remove was finalized.
In the end, the employee gets his job back, but as with virtually all cases overturned for procedural reasons the agency has the right to reinitiate the removal after it gives the employee back pay, interest, attorney fees, retroactive leave accruals, and retroactive health insurance coverage.
Other common due process violations include 1- failing to give an employee advance written notice of the proposed discipline, 2- failing to give the employee copies of all the evidence being used to support the charges against him/her, 3- fail to notify the employee of all the factors relied upon to propose the disciplinary actions, and 4 – failing to give the employee a meaningful opportunity to respond to the charges.
For more details about this specific case, check out Jacob Johnson v. Dep’t. of the Air Force, No. 2021-1579 (Fed Cir. 2022)