Developments at the MSPB: This case represents another case from the MSPB where an employee's removal was reversed because the agency considered detrimental information in its decision-making process without sharing that information with the employee. Because the employee was not given the opportunity to rebut this information, the agency violated the employee's due process rights which requires a reversal of the employee's termination.
The Department of Agriculture violated an employee's due process rights when one of its deciding officials removed the employee after considering information not contained in its proposal to remove, the MSPB recently held. In Pickett v. Department of Agriculture, the Agency took into account the employee's prior arrest and a newspaper article concerning the employee's supposed criminal conduct without providing notice to him that such information was being considered in making a decision about his removal. Because the employee did not know that the agency was considering this information, he did not address such issues in his oral or written replies. The Agency removed the employee after taking this information into account. Denying the employee the opportunity to address these issues turned out to be fatal to the Agency's decision, as the Board reversed the removal and ordered that the employee be reinstated with back pay. Pickett v. Department of Agriculture, 2011 MSPB 58 (June 3, 2011).
This case should warn Agencies of the need to provide employees notice of all information considered in a decision to discipline. Failing to do so can result in a procedural due process violation which can invalidate an Agency's disciplinary decision altogether.