Ask The Lawyer

By Debra Roth

Q & A Session – Security Clearance and Retirement

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

My top secret security clearance was revoked due to financial issues from an old business debt that turned into a lawsuit and was subsequently dropped and withdrawn. The debt still technically exists but they just can’t sue for the $80,000. Everything else, including my car and mortgage payments, are current. I disclosed the debt in the process but I was still denied. Do I have any appeal chances? Is my retirement planned for next year also a loss?

A:

You are entitled to due process, and there are strict time limits and several steps in the process. You should explain your situation as part of that process and include documentation. If, at the end of the process, your clearance is denied, there is little to no other recourse.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Not Enough Sick Leave

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I have been a FERS civilian employee for 20 years. I recently had to use more sick leave than I had accrued. Normally, the difference would be taken out of my annual leave in that situation, but this time I was charged leave without pay instead. Is this legal when I did not “request” LWOP using our OPM-71 form? My ward is now requiring us to sign an AWOL letter. Is that legal?

A:

If you run out of sick leave, you may request advance sick leave, leave without pay or, if qualified, use donated leave. Simply not coming in and not requesting leave can justify an AWOL situation. You might try to retroactively request another form of leave. You must also request annual leave, but must do so in advance and management is not required to grant it retroactively.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Meetings with Employees

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Is there an obligation to have a union representative in my office when I meet with an employee to discuss an administrative issue (i.e., leave, misconduct, time utilization, failure to follow instructions, etc.)? I am a manager and our national agreement states that, if an employee requests the presence of the union, we must agree.

A:

If your union contract requires the presence of a union official in certain situations, you must comply.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Full Time Job Offer with Conditions of Employment

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

My husband accepted a position to serve overseas with the Department of the Army. He left a position with another organization that does not support the war fighter effort. The position was rescinded due to medical issues that arose with the pre-deployment station. His personal doctor said he was fine to go serve. He corrected the medical issues two weeks later and now has no job to return back to. What is the Department of the Army supposed to do in these circumstances?

A:

Your question does not provide enough information. Did your husband previously work for the Department of the Army? If so, why can’t he go back to his old job? If the medical situation is corrected, why can’t he go to the new job? If your husband resigned from another agency and the Army disagrees that the medical condition has been rectified, a reassignment may be possible. If not, disability retirement may be a recourse.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Temporary Assignment as Supervisor

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a GS-13 and my GS-14 supervisor is leaving to take a new position. His supervisor, a GS-15, is going to advertise and keep this position as a GS-14 supervisor. In the interim, he plans on doing 30-day increments of assignments with no pay increase. Most of the staff are GS-12s or below.

Are there limits to how long a person can fill a higher grade without that person being eligible to receive any compensating income for performing at this level? Can a GS-12 be assigned or detailed to a GS-14 position? Is there a difference between “assignment” and “detail?” Are there any federal union issues that this might violate?

A:

Agencies have the discretion to temporarily promote employees, but most advertise if the promotion is to last for more than 120 days. For temporary assignments, designed to fill a gap, there is no requirement to promote or advertise. A GS-12 can be assigned to acting duties, but such a practice could be criticized by higher level management.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Difference between Adverse Actions and Disciplinary Actions

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Is there a difference between adverse actions and disciplinary actions? Do the Douglas factors apply to both areas?

A:

An adverse action is one that is covered by statute. For example, any suspension, demotion or removal is an adverse action. Some agencies and union contracts distinguish between adverse actions as more serious and disciplinary as more minor. Otherwise, a disciplinary action can include more serious adverse actions and less serious discipline such as a letter of reprisal.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Most fired employees remain eligible for annuities

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A frequent question from employees faced with adverse actions because of misconduct, poor performance or criminal conviction is whether these adverse actions can lead to the loss of federal annuity eligibility. The general rule, subject to some exceptions, is that even if you are fired under these circumstances, you are eligible to receive your annuity, assuming you have met the years of service and age requirements. There are nuances.

The first is the distinction between being eligible for regular retirement and being eligible for discontinued service retirement when an adverse action ends your federal employment. The Office of Personnel Management has decided that an involuntary separation because of job abolishment, reduction in force, poor performance or refusal to accept a geographic reassignment (assuming your job does not come with a mobility agreement) will result in eligibility for discontinued service retirement. This means that even if you have not met the normally applicable age and service requirements, you may retire early if you have 20 years of service and are age 50 or have 25 years of service at any age. This is especially important to someone who faces removal because of poor performance. OPM has rules clarifying that the misconduct or delinquency that normally would prevent someone who is fired for misconduct from receiving early discontinued service retirement does not apply to a removal based solely on poor performance.

An additional nuance is that even if you are separated for poor performance before meeting the eligibility for discontinued service retirement, you still have the right to receive a deferred annuity at age 62, assuming you have five years of creditable service. To receive a deferred annuity, you have to keep your contributions deposited and cannot withdraw them. Deferred annuitants, however, are not eligible to carry health insurance into retirement. The right to have health insurance in retirement is based on retiring and taking an immediate annuity, either regular retirement or discontinued service retirement, and having your health insurance in place continuously for the five years preceding retirement.

Another concern with a deferred annuity, and the survivor annuity to a spouse that goes along with the deferred annuity, is that the prospective annuitant must live to age 62 and then claim the annuity to receive it and be eligible for a survivor annuity. Otherwise, the survivor is only eligible for a return of contributions.

While no federal employee expects to be criminally convicted, the reality is that criminal convictions, particularly job-related convictions, do occur. There are numerous newspaper articles about federal employees being convicted of procurement irregularities and being sentenced to prison terms. It is difficult, if not impossible, to continue federal employment in the face of a criminal conviction.

Congress in legislation has concluded that federal employees who are convicted of certain crimes will forfeit their annuities. These crimes are limited to categories related to treason, espionage, sabotage, terrorism, helping the enemy and similar offenses. For example, if someone is convicted of making a false statement in connection with allegations against them concerning espionage, that person loses eligibility for an annuity. That person would be entitled only to a refund of contributions already made.

The rules on forfeiture of pensions because of criminal convictions were expanded a few years ago to include convictions for members of Congress for conduct connected to bribery, perjury and several other job-related crimes. This forfeiture provision applies only to time served as a member of Congress and specifically was not expanded to rank-and-file federal employees. But it shows Congress can change the rules as it sees fit. For now, the only risk of loss of an annuity because of a conviction is for serious espionage- and terrorism-related offenses.

The employee who is convicted of other types of offenses, such as theft of government property, is still eligible for an annuity, if that person has the age and years of service, or a deferred annuity. Ë

Q & A Session – Credit Card Purchase Using Personal Credit Card for Government Activity

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Can I be disciplined for using my own personal credit card to purchase to robot demonstration for an agency program? Before the program, I asked the ethics office if I could use my own funds and they asked why I would do that. I went ahead and did it, and the next week was yelled at in a staff meeting.

A:

The answer to your question depends on your agency’s rules on use of personal funds. It sounds like you knew there was an issue and went to the ethics office and did not get a clear answer. You then used your personal credit card anyway. That could be a problem if the government does not permit such personal purchases.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Performance Rating

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

In 2009, I fell and broke my ankle. I had two surgeries in January 2010 and January 2011. My work fell behind due to my disability and was given no accommodation. My work load actually increased during those periods. Before my injury, I received ratings of 3 but then I was given a written Performance Improvement Plan with bad marks on data entry. I did, however, receive high marks for customer service as a continued to keep up my projects as a realty specialist and delivered a successful project to the customer even during the time I was incapacitated. My performance ratings are now at level 1 due to failure to upload into the electronic file system and keep one limited hard file.  Another realty specialist also could not keep up the hard file or upload their data. However, I was the only person to be rated for not doing so. I now have an EEO claim against my agency and a union grievance on another issue both pertaining to the discrimination. I have continued to receive reprisals and retaliation. Because of the continued reprisals and retaliations, do I have a good basis to go to the Office of Special Counsel based on the retaliation?

A:

The Office of Special Counsel deals with whistleblower reprisal and you have not described any described any whistleblowing activity. Therefore, I think either EEO or a union grievance (most likely not both) would be the best way to address your concerns.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Cancellation of Approved Annual Leave

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Can approved annual leave be canceled by a federal supervisor to make the federal employee complete paperwork?

A:

Yes. You may file a grievance, but managers can cancel pre-approved annual leave for mission-related reasons.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.