Board Reaffirms and Explains Legal Standard to Determine Whether a Deciding Official's Ex Parte Communications Violate an Employee's Due Process Rights

On the September 11, 2013, the Board ordered the Department of Health and Human Services to cancel its removal action of Mr. Andrew Kolenc because the Agency violated Mr. Kolenc’s due process rights by the deciding official’s ex parte communications in sustaining charges of misconduct.  See Kolenc v. Dep’t of Health and Human Services, -- M.S.P.R. ---, 2013 M.S.P.B. 70, 2013 WL 4831013 (Sept. 11 2013).  In deciding this case, the Board reaffirmed and explained its standard for determining whether ex parte communications by a deciding official violate an employee’s due process rights.  

As noted by the Board in this case, the U.S. Court of Appeals for the Federal Circuit held that when a deciding official in a disciplinary action receives new and material information by means of ex parte communications, then a due process violation has occurred and the employee is entitled to a new, constitutionally correct disciplinary procedures.  See Stone v. Federal Deposit Insurance Corp., 179 F.3d 1368, 1377 (Fed. Cir. 1999).  The Board noted that per Stone not every ex parte communication will be a due process violation.  Rather, the ex parte communication must “introduce new and material information,” in order to rise to the level of violating an employee’s due process rights. 

The Federal Circuit in Stone listed the following three factors to be considered when determining whether ex parte communication introduces new and material information:  (1) whether the information is merely cumulative; (2) whether the employee knew of and had an opportunity to respond to the information; and (3) whether the ex parte communication would likely result in undue pressure upon the deciding official to rule in a particular matter. 

In regards to the first factor, the Federal Circuit explained in Blank v. Army, 247 F.3d 1225, 1229 (Fed. Cir. 2011), that “when a deciding official initiates ex parte communication that only confirms or clarifies in formation already contained in the record, there is no due process violation,” as such communication does not introduce “new and material” information. 

In Kolenc, the Board found that the ex parte communication by the deciding official, was not merely cumulative, as the deciding official obtained new information that was not previously available, namely information obtained from local police regarding whether a traffic ticket had been dismissed.  

The Board also found in regards to the second factor that the Appellant did not know of this new information, and that he never had an opportunity to respond to this new information.  

The Federal Circuit has held that the third factor, whether the ex parte communication would likely result in undue pressure upon the deciding official to rule in a particular matter, is “less relevant” when a deciding official admits that the communication “influenced her determination.”  See Young v. Young v. Dep’t of Housing and Urban Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013) citing Ward v. U.S.P.S., 634 F.3d 1274, 1280 n. 2 (Fed. Cir. 2011).  

In assessing the third factor, the Board found that the new information obtained by the deciding official via ex parte communication, namely that the traffic ticket had not been dismissed, “was considered significant by the deciding official because he referred to it in the decision letter and because he testified that it affected his findings regarding the appellant's credibility with regard to all of the charged misconduct.” 

Based upon the Board’s analysis of the 3-part analysis established by Stone, the Board concluded that the deciding official’s ex parte communication introduced new and material information, and thus violated the Appellant’s due process.  As such, the Board ordered the Agency to cancel the removal action.  

This case law update was written by Christopher J. Keeven, associate attorney of Shaw Bransford & Roth, PC.

Posted in Case Law Update

Tags: due process rights, employee due process rights

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