Is it valid for a federal official to rely upon ex parte information when deciding what kind of discipline to issue the employee? That question has bedeviled the Merit Systems Protection Board for years. On August 16, 2013, the MSPB again addressed it in Bennett v. Department of Justice, 2013 MSPB 64.
Ex parte information is something the decider hears, but does not disclose to the employee who is about to be disciplined. The principles are fairly straightforward. A federal employee who may be disciplined is entitled under the Constitution to certain basic due process rights: written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. In its leading decision on the subject, the U.S. Court of Appeals for the Federal Circuit applied this principle both to whether the employee should be disciplined and to “the level of penalty to be imposed”. Stone v. FDIC, 179 F.3d 1368, 1376 (Fed.Cir. 1999). According to the Court, due process is violated if the employee has “notice only of certain charges or portions of the evidence and the deciding official considers new and material information.” In other words, “[i]t 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.”
In Stone, after the employee was removed and appealed to the Board, he learned through discovery that the deciding official had received two memoranda which had not previously been disclosed. The first was a memorandum from the proposing official recommending that Stone be removed; the second was a memorandum from yet another official urging Stone’s removal. While the deciding official testified he would have removed Stone anyway, the Court held that Stone’s due process rights had been violated and it remanded the case so Stone could receive a fair hearing.
In Bennett, the Board addressed a similar situation. Bennett was a Supervisory Criminal Investigator whose removal was proposed on several grounds, including providing false information to a law enforcement officer in the course of an official inquiry. Regarding the charge of providing false information, the proposal included this statement:
You hold a position in which your honesty and integrity must be unquestioned. In this case, you compromised your honesty by telling the arresting officer that you did not have your weapon with you, when, in fact, you did. Your conduct as set forth in this notice is such that sustaining [the falsification charge] alone would be enough to support removal.
After Bennett submitted his response to the Proposal, the deciding official asked HR for an analysis of the discipline actually imposed on employees who had provided false information to local law enforcement officers. The HR Specialist replied that such cases involved Giglio concerns, under which an investigator who had been accused of providing false information could not testify against a defendant in criminal proceedings because the investigator’s testimony could be easily impeached. Of the five employees whose removal had been proposed for giving false information, only two had been removed. The deciding official removed Bennett, stating that the falsification charge standing alone was sufficient. She did not mention any Giglio concerns. In an earlier case, Solis, which also involved Giglio, the Board held that the deciding official’s failure to alert the employee to Giglio constituted a violation of his due process rights. In Solis, the deciding official admitted that he had considered Giglio when he decided on removal as a penalty.
In Bennett, however, the Board held that while the deciding official clearly knew about the Giglio issue, there was no evidence that she actually considered it as a factor in the removal decision. The Board found there was a difference between knowledge and reliance, and it remanded the case for a supplemental hearing because of the absence of evidence on this issue in this case.
We believe the Board’s decision tips the scales in favor of the agencies. In this case, the agency knew of evidence that the penalty may have been based upon a factor hidden from the employee. Specifically, the employee was never given a chance to address management’s concerns about the impact of Giglio on the employee’s future law enforcement activities. The agency bears the burden of proving at the hearing that it did not rely upon that factor. If the Agency fails to meet that burden, it should not be given a second chance. In this case, it is particularly unfair that the Board is allowing the decision-maker to testify again – after the Board has advised the deciding official how to testify.
In Stone, the court held that the outcome would depend upon the importance of the evidence withheld. In Bennett, the Board has allowed the Agency merely to deny that it considered the evidence. That is, to say the least, unfortunate.