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Developments at the MSPB: More Due Process Protections

Developments at the MSPB:  The MSPB continues its assault on due process violations by agencies when taking adverse personnel decisions against federal government employees.  In this latest example, a poorly written complaint by the Office of Special Counsel (OSC) violated the due process rights of government employee Jeffrey E. Smith by failing to place Mr. Smith on notice of his alleged violations, the MSPB recently held.  OSC's complaint alleged that Mr. Smith violated the Hatch Act for engaging in political activity while on duty and while in a government building on a government computer.  However, OSC's complaint lacked necessary particularity and supporting facts.  The complaint failed to properly identify referenced emails and documents Mr. Smith allegedly drafted or edited, and it did not contain any attachments or copies of materials which constituted the bases for its charges.  The MSPB made clear that outlining each specification of a complaint "is precisely what OSC is required to do," and that OSC's failure to do so prevented Mr. Smith from defending himself against OSC's allegations and did not inform the judge as to what must be adjudicated.  The MSPB accepted an amended OSC complaint as a new complaint so that Mr. Smith may exercise his full procedural rights if the new complaint complies with constitutional and regulatory requirements.  Special Counsel v. Smith, 2011 MSPB 69 (July 12, 2011).

For more information about procedures agencies must follow before removing federal employees, and the rights employees have to defend removals, check out Chapter 4 of the Federal Employees Legal Survival Guide, 2d ed. authored by the lawyers of Passman & Kaplan.

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