Employee does not Suffer Due Process Violation Solely Because Deciding Official was Familiar with Facts of Case and had Concurred in Findings of OIG Report which were Contrary to Employee’s Interests, MSPB holds

An employee does not suffer a due process violation solely because her deciding official was familiar with the facts of the case and had expressed his predisposition contrary to the employee’s interests, the Merit Systems Protection Board recently held in a precedential decision. Consequently, the Board did not find a due process violation in a case where the deciding official concurred in an Office of Inspector General report that formed the basis of the charges against the employee.

In August 2009, the Department of Veterans Affairs’ Office of Inspector General released an administrative investigation report which found that Katherine Adair Martinez misused her position, abused her authority, engaged in prohibited personnel practices, failed to provide proper contract oversight and did not properly fulfill her duties as a Contracting Officer’s Technical Representative. The agency then proposed Martinez’ removal from her Senior Executive Service position of Deputy Assistant Secretary for Information Protection and Risk Management in the Office of Information and Technology based on five charges: 1) misuse of her official position for the personal gain of a friend; 2) engaging in a prohibited personnel practice; 3) inadequate contract oversight; 4) inappropriate use of a contractor; and 5) inappropriate sharing of nonpublic contracting information. Roger Baker, the Assistant Secretary for OIG, was identified as the deciding official. Martinez presented both oral and written replies to Baker, who ultimately issued a decision sustaining all five charges against her and directed that her removal was to be effective on Feb. 5, 2010. Martinez appealed.

In January 2011, the administrative judge issued an order in which she identified a possible due process violation stemming from the fact that Baker, the deciding official, had concurred in the OIG draft investigative report which formed the basis of the charges. Ultimately, the administrative judge reversed the agency’s action, finding that a due process violation occurred and explaining that Baker had “painstakingly reviewed evidence…and issued findings that he concurred in the various violations.” Because Baker acted as the deciding official and determined that removal was appropriate based on the OIG’s final report, the administrative judge found that the “risk was too high” that Martinez was deprived of a meaningful opportunity to invoke the discretion of the decisionmaker before her removal took place. The agency petitioned for review.

On review, the agency argued that the administrative judge misapplied Board precedent, specifically in her application of Svejda v. Department of the Interior and Facciponti v. U.S. Postal Service. In Svejda, the same official who had sustained an employee’s unsatisfactory performance rating was later designated as the deciding official for the employee’s proposed performance-based removal action. While the appellant in that case had argued that his due process rights were violated when the supervisor who had initially sustained his unsatisfactory rating later became the deciding official in the adverse action, the Board disagreed and concluded that there was no general rule prohibiting the appointing of a deciding official who is familiar with the facts of the case and who had previously expressed a predisposition contrary to the appellant’s interests.

The administrative judge below distinguished Svejda from the instant case because she found Baker’s consideration and concurrence in the findings of the OIG report to be a “conclusion,” while the deciding official’s sustaining of an unsatisfactory performance rating in Svejda was a mere “predisposition.” However, Board precedent established that the mere fact that the deciding official was fully aware of and concurred in the adverse action before considering the employee’s response to the proposal notice was insufficient to establish a due process violation.

Similarly, in Facciponti and subsequent cases, the Board concluded that the mere fact that the deciding official had been predisposed to severely disciplining an employee did not constitute a violation of law if the appellant was given an opportunity to respond to the charges against him.

In Martinez’s case, the agency provided her with a notice of the charges and Martinez responded both orally and in writing. While Baker did testify to being predisposed to removing Martinez, the Board found enough similarities between Facciponti and this case and concluded that the administrative judge should have considered Facciponti below.

Therefore, the Board felt the administrative judge failed to consider and apply relevant precedent and remanded the matter so the administrative judge could consider all the relevant evidence and case law.

The case is Martinez v. Department of Veterans Affairs and is available here.

Posted in Case Law Update

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