On June 17, 2011, the U.S. Merit Systems Protection Board (MSPB) issued a decision reversing the removal of Kevin Gray for off-duty criminal misconduct, finding that the Agency violated Mr. Gray's constitutional right to due process of law. Gray v. U.S. Dept. of Defense, 2011 MSPB 64.
Mr. Gray, an Internal Review Auditor with the Defense Finance and Accounting Service, was indicted and later convicted of two felony counts of receiving stolen property arising out of his alleged participation in a mortgage fraud scheme. The Agency proposed to remove Mr. Gray based upon his felony convictions. The deciding official issued a decision sustaining the charge and finding that a nexus existed between Mr. Gray's off-duty criminal conduct and his ability to perform his duties, and that the penalty of removal was appropriate.
Mr. Gray filed an appeal of the Agency's decision to terminate his employment on the basis that, among other things, the deciding official considered information concerning his eligibility as a convicted felon to hold a sensitive position, without first providing advanced notice of this matter. The Administrative Judge upheld Mr. Gray's removal and Mr. Gray appealed the Administrative Judge's decision to the Board.
Federal employees have a constitutional right to a minimum due process of law, which requires prior notice of the charges against him, an explanation of the Agency's evidence againt him, and an opportunity to respond. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546 (1985). If an employee is not provided with this minimum due process, the adverse action will be reversed.
The Board held that the Agency neither revoked Mr. Gray's eligibility to occupy a sensitive position nor removed him for ineligibility to hold a sensitive position. Further, the Board held that while the Agency considered information regarding Mr. Gray's ability to hold a sensitive position, the Agency failed to include this information in the proposal notice and as such violated Mr. Gray's due process guarantee to notice.
For Federal employees this decision reaffirms the constitutional right of all Federal employees to notice and an opportunity to respond to the charges against them.
If you would like to discuss your employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.
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2 comments:
The Board went even further in Lopes v. Department of the Navy, 2011 MSPB 63 (June 17, 2011). Unlike the case you discussed in your post, Lopes did not involve ex parte communications. Nevertheless, the Board found a violation of due process because the deciding official used information from personal knowledge supporting the removal that was not mentioned in the notice of proposed removal. Thus, under the Board's current jurisprudence, anything not mentioned in the notice of proposed removal supporting an enhanced penalty could be a due process violation requiring immediate reversal.
Thanks for the comment! I'm not sure I would agree that the Lopes case went any further than Gray. As stated in the MSPB's June 24, 2011, case report, that the deciding official did not learn of the aggravating factors via ex parte communications is a "distinction without a difference."
However, you are quite right - when a deciding official considers any evidence not stated in the Notice of Proposed Removal, the employee is no longer on notice, thus resulting in a potential constitutional violation.
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