MSPB Clarifies “Reasonable Cause” for Indefinite Suspension Where an Employee is Accused of a Crime Punishable by Imprisonment

As an agency’s investigation into an employee’s alleged criminal wrongdoing (especially for off-work conduct) is not always possible or wise, the Merit Systems Protection Board (“MSPB” or “the Board”) has acknowledged that in appropriate cases, agencies must be able to act on the information before them, to make personnel decisions which promote the efficiency of the service. Specifically, the Board has stated that an agency may impose an indefinite suspension on an employee when the agency has reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment could be imposed. The point of contention in such cases is often whether the agency had “reasonable cause” to believe the employee committed the crime.

In Hernandez v. Department of the Navy, 2013 M.S.P.B. 54 (July 18, 2013), the Navy imposed an indefinite suspension against an employee police officer after the agency had been informed by the San Diego County Superior Court that the employee had been charged with six misdemeanor counts and was ordered to appear for a jury trial, as each of the six misdemeanor counts, related to domestic violence, was punishable by imprisonment. The employee filed an appeal on the indefinite suspension, on which an administrative judge sustained the Navy’s action. Subsequently, the employee filed a petition for review with the MSPB.

The employee in Hernandez argued that the Navy lacked the requisite cause to suspend him indefinitely without pay, as, at the time the indefinite suspension was imposed, there had been no evidentiary hearing finding probable cause on the merits of the charges against him. In support of his contention, the employee cited the Board’s prior holding in Phillips v. Department of Veterans Affairs, 58 M.S.P.R. 12 (1983), where the Board held that the filing of a criminal complaint was insufficient to establish reasonable cause for an agency to indefinitely suspend an employee accused of committing a felony.

In its decision in Hernandez, however, the Board clarified the procedural trigger for establishing reasonable cause for an agency to indefinitely suspend an employee, where the employee has been accused of committing a crime for which a sentence of imprisonment could be imposed. Addressing the employee’s argument under Phillips, where the employee had been accused of a felony in Missouri, the Board explained that a criminal complaint was insufficient to establish reasonable cause to indefinitely suspend the employee because a criminal complaint is only the first step for bringing felony charges against an individual in Missouri. It is only after the second step in the Missouri process, which provides the accused with a preliminary hearing, when the Missouri courts have jurisdiction to proceed with a trial against an individual accused of a felony.

In Hernandez, however, a misdemeanor complaint had been filed against the employee in California. And, as the Board explained in its decision, under California law, while a felony complaint is a preliminary accusation that does not confer trial jurisdiction, a misdemeanor complaint is a formal charge which grants the California courts jurisdiction to proceed to trial. Having distinguished its holding in Phillips, the Board in Hernandez held that the Navy had reasonable cause to indefinitely suspend the employee, as the facts presented indicated that a District Attorney had assessed the evidence and filed a complaint alleging that the employee had committed specific criminal acts and the case had proceeded to the point where the employee had been ordered to appear for a jury trial.

In so reasoning, the Board indicated in Hernandez that a finding of criminal wrongdoing against an employee is not necessary for an agency to place that employee on indefinite suspension, so long as: the employee has been accused of a crime punishable by imprisonment; a court has jurisdiction over the criminal matter, and; the court has ordered the employee to appear for trial.

The case, Hernandez v. Department of the Navy, may be found here

This case law update was written by James P. Garay Heelan, associate attorney at the law firm Shaw Bransford & Roth, PC.

Posted in Case Law Update

Tags: Hernandez v. Department of the Navy

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