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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