MSPB Finds No Due Process Violation Where Employee Responded to Uncharged Misconduct

A U.S. Immigration and Customs Enforcement (“ICE”) employee was investigated by ICE’s Office of Professional Responsibility (“OPR”) after her ex-husband alleged she had misused the Treasury Enforcement Communications System (“TECS”) for personal gain. In January 2010, the agency proposed to remove the employee based on four separate charges, including misuse of TECS, failure to declare income, lack of candor, and failure to cooperate, but did not allege in the proposal notice that she had shared the information she obtained from TECS with her ex-husband or any other “unauthorized” individuals. The employee responded to the proposal orally and in writing, but the agency ultimately sustained all four charges and directed the employee’s removal effective June 18, 2010. 

On appeal to the MSPB, an MSPB administrative judge found that the employee failed to establish a claim of harmful procedural error and affirmed the removal, but on review, the full Board vacated the decision because the administrative judge had not addressed the employee’s argument that the deciding official had relied improperly upon uncharged and unsubstantiated misconduct (sharing information from TECS with her ex-husband) as an aggravating factor in his penalty determination. On remand, the administrative judge concluded that the employee had not been denied due process because the information on which the deciding official relied in finding that the employee had shared TECS information was not new and material. On April 18, 2014, the Board affirmed that decision and sustained the removal action.

The Board commenced their analysis by citing to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985), a U.S. Supreme Court case which outlined the essential requirements of due process, “notice and an opportunity to respond.” As the Supreme Court stated in that case, the “public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” The Board cited this case alongside Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999), which states that “the employee’s response is essential not only to the issue of whether the allegations are true, but also with regard to whether the level of penalty to be imposed is appropriate.”

In Lopes v. Department of the Navy, 116 M.S.P.R. 470 (2011), the Board applied the Federal Circuit Court of Appeals’ decision in Stone (which concerned ex parte communication) to establish that the ultimate inquiry in cases where a deciding official considers additional, uncharged, and unsubstantiated material not listed in the proposal is whether the additional material “was substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property absent an opportunity to respond.”

According to Lopes, when a deciding official considers either ex parte or uncharged information not mentioned in the proposal, the employee is no longer on notice of portions of the evidence relied upon by the agency in imposing the penalty, which would work a violation of the constitution. The Board also observed that the agency can only consider the reasons specified in the notice of proposed action and any answer of the employee when making a final decision on an adverse action.

In this case, the Board concluded that, without question, the deciding official based his penalty determination, in part, on an aggravating factor (the disclosure of TECS information to the employee’s ex-husband) not cited in the proposal notice. While the proposal notice and decision letter contained no charge or specification alleging that the employee had shared TECS information, the deciding official did mention sharing information with unauthorized individuals on the “Douglas Factors checklist” when he wrote “[r]unning records checks for personal reasons and sharing information with unauthorized individuals seriously undermines the public trust.” Also, the Board remarked that the deciding official, testifying at a hearing in this case that “even though the allegation of the [employee’s] unauthorized disclosure was not substantiated” he had concluded that the employee did share information and found it to be an aggravating factor.

After contemplating whether the deciding official’s consideration of the employee’s allegedly unauthorized disclosure was a due process violation, the Board concluded that it was not. The Board found that the employee’s due process rights were preserved by her opportunity to respond, memorialized by her actual responses: a 31-page written reply, a one-and-a-half hour oral presentation, and a voicemail message to the deciding official supplementing her written and oral replies. Specifically, the employee said in her written reply: “I never shared TECS information with [my ex-husband] or anyone else,” and “I did not make TECS inquiries for personal or financial gain nor did I disseminate any TECS information to [my ex-husband] or anyone else.” Because the employee had the opportunity, and did, respond to the uncharged and unsubstantiated allegations, the Board found that the agency’s consideration of her allegedly unauthorized disclosure (supplemented by her response) did not deprive her of due process.

The Board, noting the administrative judge’s finding that the deciding official was credible when he testified that that he would have removed the employee based on either the lack of candor or the failure to cooperate charges alone, regardless of his consideration of the employee’s alleged sharing of TECS information, found that the information (that the employee allegedly shared TECS information with her ex-husband) was not material to the penalty determination.

For the above stated reasons, the Board affirmed the administrative judge’s remand initial decision and sustained the agency’s removal action against the employee.

You can read the full case, Wilson v. Department of Homeland Security, here.

This case law update was written by Conor D. Dirks, associate attorney,Shaw Bransford & Roth, PC. 

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: responding to uncharged misconduct, uncharged misconduct, case law update

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